Vargas v. Astrue
Filing
17
MEMORANDUM & ORDER, The Commissioner's cross-motion for judgment on the pleadings is denied. Vargas's motion for judgment on the pleadings is granted. The ALJ's decision is reversed and the matter is remanded to the ALJ under the fourth sentence of 42 U.S.C. § 405(g) for further proceedings consistent with this Memorandum and Order. So Ordered by Judge Carol Bagley Amon on 12/10/2019. (fwd'd for jgm) (Lee, Tiffeny)
FILED
IN CLERK'S OFFICE
U.S. DISTRICT COURT E.D.IlJ.Y
5
DEC 11 2019
V,
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
BROOKLYN OFFIC
ANA T. VARGAS,
Plaintiff,
NOT FOR PUBLICATION
MEMORANDUM & ORDER
-against-
ll-CV-5683(CBA)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
-X
AMON,United States District Judge:
Plaintiff Ana T. Vargas("Vargas")commenced this action pursuant to Title II ofthe Social
Security Act, 42 U.S.C. § 405(g), seeking review of a final determination by the Commissioner
("Commissioner" or "Defendant") of the Social Security Administration ("SSA") denying her
application for Social Security Disability Benefits from May 1,2003 through September 18,2006.
(See D.E. # 1 ("Compl.").) Both parties have moved for judgment on the pleadings pursuant
to Rule 12(c) of the Federal Rules of Civil Procedure. Vargas seeks an order reversing the
Commissioner's determination that she was not disabled from May 1,2003 through September 18,
2006, and a remand for reconsideration of the agency's decision. The Commissioner defends the
SSA's decision and seeks dismissal of the Complaint. For the reasons set forth below, the Court
concludes that the case must be remanded.
BACKGROUND
I.
Procedural History
Vargas alleges that she became disabled on May 1, 2003. (D.E. # 7 ("Administrative
Record" or "R.") at 322, 341, 400.) On November 19, 2004, Vargas applied for Social Security
Disability Insurance and Income Benefits. (Id. at 33.) From there, this case took on a winding,
complicated history. On March 6, 2007, an administrative law judge ("ALJ")found that Vargas
was not disabled. (Id. at 109-29.) The Appeals Council shortly thereafter remanded for further
administrative proceedings so that the ALJ could give more extensive consideration to a treating
physician's opinion. (Id. at 102.) On July 24, 2009,the ALJ ruled that Vargas was disabled as of
August 23,2008, due to her mental and physical impairments. (Id. at 176.) Believing that she had
become disabled earlier, Vargas again sought review from the Appeals Council. (Id at 241.) On
August 11, 2011, the Appeals Council proposed a finding of disability beginning on September
19, 2006. (Id at 243.) On September 13, 2011, Vargas's attorney accepted this proposal, writing
"[a]t this time, with Ms. Vargas' authorization, we accept the Appeals Council's proposal finding
the claimant disabled beginning September 19, 2006." (Id. at 246.) Pursuant to that agreement,
the Appeals Council thereafter issued a ruling finding that Vargas became disabled as of
September 19,2006. (Id at 241-45.)
Despite Vargas's onetime consent to an onset date of September 19,2006,she resuscitated
her effort to obtain benefits from May 1, 2003 through September 18, 2006 by commencing the
instant action on November 21,2011. (D.E.# 1.) Due to a missing hearing transcript, the parties
thereafter stipulated to a remand for further administrative proceedings. (D.E. #5.) On June 19,
2013,the ALJ held another hearing. (R. at 1249.) On January 21,2014,the ALJ found that Vargas
was not disabled for this time period,(id at 216),and Vargas again sought review from the Appeals
Council,(id at 221). The Appeals Council remanded yet again, finding that Vargas was eligible
for relief pursuant to the class settlement reached in Padro v. Colvin, 1 l-CV-1788(CBA). (Id at
224.) On remand, an ALJ who was not named in that lawsuit was assigned to hear her case. (Id)
On February 19, 2015, for the fifth time, Vargas went before an ALJ for a hearing about
whether she was disabled between May 1,2003 and September 18,2006. (Id at 10.) On February
19,2015,the ALJ found that Vargas was not disabled during that time period. (Id at 23.) Because
this Court retained jurisdiction pursuant to 42 U.S.C. § 405(g), the Commissioner requested that
the case be reopened on April 8,2016. (D.E.# 8.) The Court granted the Commissioner's motion
on May 10, 2016. (D.E. # 10.) On July 18, 2016, the Commissioner filed for judgment on the
pleadings. (D.E. # 14("Comm'r Br.").) Vargas, now proceeding pro se following her attomey's
decision that it would be "inappropriate" to continuing representing her after he had informed the
SSA that she consented to an onset date of September 19, 2006, (R. at 35), opposed the
Commissioner's motion,(D.E.# 15 ("PI. Mem.")).
11.
Relevant Medical Evidence
To briefly recount the background facts ofthis case, Vargas was bom in 1961 and attended
school through the ninth grade in the Dominican Republic. (R. at 322, 341,400.) She worked as
a home health aid from 1984 until May 1, 2003. (Id) She stopped working on that day because
she slipped on ice and hit her head while walking to work. (Id at 322.) Given the thousands of
pages of medical evidence in the Record and the fact that there is no dispute that Vargas has been
disabled since September 18,2006,the Court limits most ofits review to the disputed time period,
L^, May 1, 2003 through September 18, 2006. The Court further limits its review to the medical
evidence conceming Vargas' mental impairments because that issue is dispositive ofthe case.
A. Consultative Examinations
a. Dr. Kautilya Puri
On December 23,2004,Dr. Kautilya Puri performed a consultative examination of Vargas.
(Id. at 410-14.) Vargas complained that she suffered from persistent headaches and forgetflilness.
(Id at 410.) Dr. Puri found that Vargas was oriented in all spheres and demonstrated no defects
in her judgment or memory. (Id. at 412.) He diagnosed diabetes mellitus, diabetic neuropathy.
and chronic headaches. (Id.") He opined that Vargas did not have any objective limitations in
communicating or gross motor activity. (Id at 413.)
b. Dr. Kenneth Cochrane
On February 23, 2005, Dr. Kenneth Cochrane performed a consultative examination. (Id
at 415-20.) Dr. Cochrane reported that Vargas had vocational difficulties caused by cognitive
deficits and measured her IQ at 56. (Id at 418.) He opined that she suffered from mild retardation.
(Id) In sharp contrast with Dr. Puri's opinion. Dr. Cochrane opined that Vargas could not perform
simple tasks independently, maintain her concentration and attention, or maintain a regular
schedule without assistance. (Id) He also opined that she was unable to leam new tasks and was
only minimally able to make appropriate decisions and deal with stress. (Id)
c. Dr. Rochelle Sherman
On May 5, 2005, Dr. Rochelle Sherman performed a consultative evaluation in Spanish.
(Id. at 427-32.) Dr. Sherman found Vargas confused and disoriented, but marginally self-
sufficient. (Id at 428.) She measured Vargas's IQ at 64 points and opined that this caused her
difficulties in learning new tasks. (Id) Dr. Sherman also opined that Vargas's functioning was in
the impaired range, but she was capable of performing work tasks. (Id) She diagnosed Vargas as
suffering from depression and dementia. (Id)
d. Dr. Arlene Rupp-Goolnick
On May 27, 2005, Dr. Arlene Rupp-Goolnick conducted a consultative psychiatric
evaluation of Vargas. (Id at 433.) Vargas reported that she had short and long term memory
deficits and difficulties concentrating. (Id at 434.) Dr. Rupp-Goolnick diagnosed Vargas as
suffering from depressed mood and mild mental retardation. (Id at 243.) Dr. Rupp-Goolnick
opined that, even though Vargas was mentally handicapped, she was capable of performing all
"necessary tasks." (Id.) Dr. Rupp-Goolnick concluded that Vargas was able to leam new tasks
but was unable to make appropriate decisions or deal with stress. (Id.) Despite these significant
limitations, Dr. Rupp-Goolnick opined that there "was no real evidence of psychiatric
disturbance." (Id.)
B. Non-Examining Physicians
a. Dr. Jusino
On April 18, 2005, Dr. C. Jusino, a state agency psychiatric consultant, reviewed the
record, which at that point consisted ofthe contrasting opinions offered by Drs. Puri and Cochrane.
(Id. at 425.) Dr. Jusino cast doubt on the conclusions reached by Dr. Cochrane because, according
to him, Vargas should have been given a different IQ test since she was from the Dominican
Republic and primarily spoke Spanish. (Id. at 424.) Dr. Jusino noted that Vargas's past work
history suggested that she could perform jobs with simple, repetitive tasks. (Id at 426.) However,
this prognostication did not account for Vargas's head injury that caused her to stop working in
the first place.(^id) Ultimately, Dr. Jusino concluded that there was "insufficient evidence .
.. to accurately determine the severity of any mental impairment." (Id)
b. Dr. Yakov Burstein
On July 26, 2005, Dr. Yakov Burstein, a state agency psychological consultant, reviewed
the record and assessed Vargas's Residual Functional Capacity ("RFC ). (Id at 455~58.) Dr.
Burstein noted that although Vargas's IQ was well below average, her overall functioning—^based
upon her daily activities—indicated that she did not suffer from very many limitations. (Id) For
example. Dr. Burstein opined that Vargas had mild restrictions in her daily activities and in
maintaining social functioning. (Id at 469.) He also found that she had moderate difficulties in
maintaining concentration, persistence, or pace, and had experienced one or two episodes of
deterioration. (Id.)
C. Treating Physicians
a. Dr. Luis Locuratolo
On September 19, 2006, Dr. Luis Locuratolo, a psychiatrist, assessed Vargas's overall
mental capacity. (Id at 502.) He stated that his assessment of Vargas was based upon his
examinations of her during the past year. (Id) In opining on Vargas's condition. Dr. Locuratolo
appears to have quoted Vargas's statements reporting her crying spells, fatigue, difficulty
concentrating, and forgetfulness. (Id) He also reported that Vargas was taking Lexapro and
several painkillers. (Id) He opined that Vargas was suffering from persistent generalized anxiety
disorder and moderate to severe depression. (Id) He further opined that her prognosis was"poor."
m
Dr. Locuratolo also completed a medical source statement a few months later on January
29, 2007. (Id at 600-08.) In that assessment. Dr. Locuratolo opined that Vargas suffered from
14 marked limitations, including the ability to: understand and carry out detailed instructions,
complete a work week without a major psychological interruption, make plans, get along with coworkers, respond to changes in the workplace, and the ability to make simple work related
decisions. (Id at 604.) Based upon that assessment. Dr. Locuratolo opined that Vargas could not
handle even "low stress" employment. (Id at 606.) Lastly, he opined that Vargas's limitations
began in "late 2002." (Id at 607.)
b. Dr. Azariah Eshkenazi
On September 21, 2006, Dr. Azariah Eshkenazi examined Vargas at the request of her
attorney. (Id at 510-13.) He indicated that Vargas had poor memory,appetite, and difficulties in
concentrating. (Id at 512.) Like Dr. Locuratolo, Dr. Eshkenazi found Vargas was severely limited
by her mental condition. For example, he opined that her mental impairments would cause her to
miss work three times per month. (Id) More specifically, Dr. Eshkenazi found that Vargas was
markedly limited in: understanding and remembering detailed instructions, carrying out detailed
instructions, maintaining attention and concentration for extended periods, performing activities
within a schedule, maintaining regular attendance, being punctual within customary tolerance, and
responding appropriately to changes in the workplace setting. (Id at 516-17.) He found that
Vargas was moderately limited in: remembering locations and work-like procedures, carrying out
simple one or two step instructions, sustaining ordinary routine without supervision, working in
coordination with or proximity to others without being distracted, and making simple work-related
decisions. (Id) Unlike Dr. Locuratolo, Dr. Eshkenazi opined that Vargas could handle "low
stress" employment. (Id at 519.)
c. Dr. Lober Cervantes
Dr. Lober Cervantes, a psychiatrist, began treating Vargas on August 23, 2008. (Id at
812.) A few months later, on October 4,2012,Dr. Cervantes completed two written assessments.
The first was a short "narrative report" describing Vargas's medical condition. (Id at 842.) This
report stated that Vargas suffered from depression, which was accompanied by low energy levels,
poor concentration, and panic attacks. (Id) This report also noted Vargas's statements that she
felt isolated due to her mental impairments. (Id) Dr. Cervantes opined that Vargas had impaired
cognition and a poor short-term memory. (Id)
The other assessment completed by Dr. Cervantes on October 4, 2012 was a much longer
and more detailed medical source statement. (Id at 812—19.) In this assessment, the doctor
diagnosed Vargas as suffering from major depressive disorder and panic disorder. (Id at 812.)
The clinical findings that Dr. Cervantes gave supporting his diagnosis were: poor memory, mood
disturbance, emotional lability, retardation, difficulty thinking, decreased energy, and persistent
anxiety. (Id at 813.) Dr. Cervantes opined that Vargas was markedly limited in 17 different ways,
including, the ability to: remember locations and work procedures, carry out simple instructions,
maintain attention, and complete a work week without interruption. (Id at 813-16.) Like Dr.
Locuratolo, Dr. Cervantes opined that Vargas was "incapable of even low stress" work
environments. (Id at 815.)
D. Testimony of the Medical Expert
The ALJ called Dr. Rita Clark to testify at the hearing. (R. at 1310-16.) From her review
of the Record, Dr. Clark opined that Vargas was severely limited due to her severe intellectual
impairment. (Id at 1311.) Thus,she opined that Vargas was per se disabled because she met the
listing for mental impairments in 12.04 of the SSA regulations. (Id) She based her assessment
on Dr. Cochrane's opinion of February 23,2005 and Dr. Cervantes's opinion of October 4,2008.
(Id. at 1311-12.) Dr. Clark relied on the opinion of Dr. Cervantes from 2008, even though the
ALJ had cautioned her that it fell outside of the time frame. (Id at 1312.)
III.
The ALJ's Decision
Walking through the five-step sequential framework provided by the SSA regulations, the
ALJ first found that Vargas met the insured status requirements ofthe SSA through December 31,
2008, and that she had not engaged in substantial gainful activity since May 1, 2003. (Id at 19.)
The ALJ then found that Vargas's mental condition was a severe impairment. (Id) On the other
hand,the ALJ found that Vargas had not established that any of her physical impairments met the
severe impairment threshold. (Id) At the next step, the ALJ determined that Vargas s mental
condition did not render her per se disabled, despite the medical expert's opinion to the contrary.
8
(Id.) The ALJ next determined that Vargas could not perform her past job as a home health aide,
(id. at 24), but she had the RFC to perform "the full range of medium work,"(id at 25). The
Vocational Expert opined that Vargas could perform jobs such as hand packager, cleaner, and
kitchen helper. (Id)
Key to the ALJ's RFC determination, and ultimately his decision that Vargas was not
disabled for the time period, was that he gave "significant weight" to opinions from three of the
four consulting physicians. (Id) In doing so, the ALJ gave no weight to the opinions from
Vargas's treating physicians, Drs. Locuratolo and Cervantes. (Id.) The ALJ also set aside the
opinion ofthe testifying medical expert on the grounds that she relied on Dr. Cervantes's opinion
from October 4, 2008, and she "appeared to have a general unfamiliarity with the record." (Id at
23.)
STANDARD OF REVIEW
"A district court may set aside the Commissioner's determination that a claimant is not
disabled only if the factual findings are not supported by 'substantial evidence' or if the decision
is based on legal error." Burgess v. Astrue, 537 F.3d 117, 127(2d Cir. 2008)(quoting Shaw v.
Chater. 221 F.3d 126, 131 (2d Cir. 2000)). "To determine whether the findings are supported by
substantial evidence, the reviewing court is required to examine the entire record, including
contradictory evidence and evidence from which conflicting inferences can be drawn." Snell v.
Apfel. 177 F.3d 128, 132(2d Cir. 1999)(quoting Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d
Cir. 1983)(per curiam)). "Substantial evidence is 'more than a mere scintilla' and 'means such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'"
Lesterhuis v. Colvin,805 F.3d 83,87(2d Cir. 2015)(quoting Richardson v. Perales.402 U.S. 389,
401 (1971)). "Where the Commissioner's decision rests on adequate findings supported by
evidence having rational probative force, [the court] will not substitute [its]judgment for that of
the Commissioner." Veino v. Bamhart. 312 F.3d 578, 586 (2d Cir. 2002): see also 42 U.S.C.
§ 405(g)("The findings ofthe [Commissioner] as to any fact, ifsupported by substantial evidence,
shall be conclusive ...
This deferential standard of review does not apply, however, to the ALJ's legal
conclusions. Bvam v. Barnhart. 336 F.3d 172, 179(2d Cir. 2003). "[W]here an error of law has
been made that might have affected the disposition of the case," the court will not defer to the
ALJ's determination. Pollard v. Halter. 377 F.3d 183, 189 (2d Cir. 2004)(quoting Townlev v.
Heckler. 748 F.2d 109, 112(2d Cir. 1984)). Rather, an ALJ's "[f]ailure to apply the correct legal
standards is grounds for reversal." Id (quoting Townlev, 748 F.2d at 112). Legal error may
include failure to adhere to the applicable regulations. See Kohler v. Astrue, 546 F.3d 260, 265
(2d Cir. 2008). "Even if the Commissioner's decision is supported by substantial evidence, legal
error alone can be enough to overturn the ALJ's decision." Ellington v. Astrue, 641 F. Supp. 2d
322, 328(S.D.N.Y. 2009).
"When the plaintiff proceeds pro se, as in this case, a court is obliged to construe his
pleadings liberally" and interpret them as raising the strongest arguments they suggest. McEachin
V. McGuinnis,357 F.3d 197,200(2d Cir. 2004); see also Harris v. Mills, 572 F.3d 66,72(2d Cir.
2009)("Even after Twomblv ... we remain obligated to construe a pro se complaint liberally.").
Accordingly, the Court will construe Vargas's handwritten submission as raising the strongest
arguments it suggests.
DISCUSSION
Vargas appears to contend that the ALJ erred by failing to consider that her disability began
on May 1,2003 and continues to this day. (PI. Mem.at 2.) For support,she argues that the clinical
10
evidence supported a ruling that she was disabled from May 1,2003 through September 18, 2006.
(Id.) By contrast, the Commissioner argues that it was within the ALJ's discretion to weigh
conflicting medical reports and that he was entitled to give controlling weight to a non-treating
physician. (D.E. # 12 ("Comm'r Br.") at 19.) At the outset, it bears mentioning that Vargas
previously accepted the SSA's proposed finding that she became disabled on September 18,2006.
(Id. at 246.) Nonetheless,she challenged that finding and the SSA afforded her two new hearings.
(Id. at 22.) The Commissioner does not appear to have attempted to bind Vargas to that agreement
before proceeding to grant Vargas two more hearings. Indeed, in seeking dismissal of the instant
Complaint, the Commissioner only lightly treads on this point, describing it as "interesting" that
Vargas had previously accepted September 19, 2006 as her disability onset date. (Comm. Br. at
25.) Therefore, because the Commissioner proceeded to hold two new hearings on whether Vargas
was disabled from May 1, 2003 through September 18, 2006 and does not seek to somehow hold
Vargas to her prior agreement now,the Court proceeds to determine whether the ALJ s decision
comported with the evidence and the law. For the reasons set forth below, the Court concludes
that the ALJ's failure to apply the treating physician rule requires this case to be remanded.
A treating physician's opinion on the "nature and severity" of the plaintiffs impairments
will be given "controlling weight" if the opinion is "well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in [the plaintiffs] case record." 20 C.F.R. § 404.1527(c)(2); s^ Mattav. Astrue, 508 F.
App'x 53,57(2d Cir. 2013)(discussing the treating physician rule); Petrie v. Astrue. 412 F. App'x
401,405(2d Cir. 2011)("The opinion of a treating physician is accorded extra weight because the
continuity of treatment he provides and the doctor/patient relationship he develops place him in a
11
unique position to make a complete and accurate diagnosis of his patient."(quoting Mongeur, 722
F.2datl039 n.2)).
Furthermore,"[w]here mental health treatment is at issue, the treating physician rule takes
on added importance." Amarante v. Comm'r of Soc. Sec., No. 16-CV-717 (RJS), 2017 WL
4326014,at *9(S.D.N.Y. Sept. 8,2017)fciting Rodriguez v. Astrue.No.07-CV-534(WHP),2009
WL 637154, at *26(S.D.N.Y. Mar. 9,2009)).
A mental health patient may have good days and bad days; [he] may respond to
different stressors that are not always active. Thus, the longitudinal relationship
between a mental health patient and her treating physician provides the physician
with a rich and nuanced understanding ofthe patient's health that cannot be readily
achieved by a single consultative examination.
Boddenv. Colvin.No. 14-CV-8731 (SN),2015 WL 8757129, at *9(S.D.N.Y. Dec. 14,2015);s^
also Richardson v. Astrue, No.09 Civ. 1841 (SAS),2009 WL 4793994, at *7(S.D.N.Y. Dec. 14,
2009) ("Because mental disabilities are difficult to diagnose without subjective, in-person
examination, the treating physician rule is particularly important in the context of mental health."
(internal citations and quotation marks omitted)).
Implicit in the foregoing, the treating physician rule, while important, is not unassailable.
For example, "when treating sources' opinions swim upstream, contradicting other substantial
evidence (such as opinions of other medical experts), or for any good reason, administrative law
judges can decline to afford them controlling weight." Tavlor v. Comm'r of Soc. Sec., No. 14CV-0814(GTS),2015 WL 4649820, at *8(N.D.N.Y. Aug. 5, 2015). But, when the ALJ declines
to afford a treating physician's opinion controlling weight,"SSA regulations require the ALJ to
consider several factors in determining how much weight the opinion should receive." Greek v.
Colvin. 802 F.3d 370, 375 (2d Cir. 2015)(citing Selian v. Astrue, 708 F.3d 409, 418 (2d Cir.
2013)). The factors that the ALJ must consider in determining the amount of weight to assign to
12
a treating physician's opinion are:"(1)
frequen[cy], length, nature, and extent oftreatment;(2)
the amount of medical evidence supporting the opinion;(3) the consistency of the opinion with
the remaining medical evidence; and (4) whether the physician is a specialist." Selian, 708 F.3d
at 418 (citing Burgess. 537 F.3d at 129); see also Halloran v. Bamhart, 362 F.3d 28, 32(2d Cir.
2004)(citing 20 C.F.R. § 404.1527(d)(2) and discussing the factors). Although the ALJ is not
required to discuss the factors explicitly, it must be clear from the decision that the proper analysis
was undertaken. ^Petrie. 412 F. App'x at 406("[W]here 'the evidence of record permits us to
glean the rationale of an ALJ's decision, we do not require that he have mentioned every item of
testimony presented to him or have explained why he considered particular evidence unpersuasive
or insufficient to lead him to a conclusion of disability.'" (quoting Mongeur,722 F.2d at 1040)).
A corollary to the treating physician rule and the 20 C.F.R. § 4041527(c)(2)-(6) factors is
the "good reasons rule," which is based on the regulations specifying that"the Commissioner will
always give good reasons'" for the weight given to a treating source opinion. Halloran, 362 F.3d
at 32(quoting 20 C.F.R. § 404.1527(d)(2); Schaal v. Apfel, 134 F.3d 496,503-04(2d Cir. 1998)).
"Those good reasons must be 'supported by the evidence in the case record, and must be
sufficiently specific ... ."' Blaklev v. Comm'r of Social Sec., 581 F.3d 399, 406—07 (6th Cir.
2009)(quoting Social Security Ruling ("SSR") 96-2p, 1996 WL 374188, at *5 (S.S.A. July 2,
1996)). When the ALJ fails to weigh a treating physician's opinion refiected in the record and give
"good reasons" for declining to accord it controlling weight,"his decision is neither supported by
substantial evidence nor based on proper application of 20 C.F.R. § 4[04.1527]." Tavarez v.
Bamhart. 124 F. App'x 48, 50(2d Cir. 2005). Thus,the Second Circuit has instmcted that courts
should not "hesitate to remand when the Commissioner has not provided 'good reasons' for the
weight given to a treating physician's opinion." Halloran. 362 F.3d at 33.
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Here,the ALJ gave no weight to the opinions of Drs. Locuratolo and Cervantes. (R. at 23.)
Both of those opinions placed numerous and severe limitations on Vargas's abilities due to her
mental impairments. Dr. Locuratolo opined that Vargas was limited in 14 basic activities, such as
the ability to make simple work-related decisions, (R. at 604), and Dr. Cervantes opined that
Vargas was limited in 17 basic activities, such as the ability to ask simple questions,(id. at 816).
The ALJ gave their opinions no weight because "[t]hese opinions appear to be based largely on
claimant's complaints of pain ... and allegations that she is very limited in performing activities
of daily living, [but] this is completely inconsistent with the record, which does not indicate any
significant treatment for claimant's physical impairments during the relevant time period." (Id.)
The ALJ also stated that he was setting aside the opinions from these two treating physicians
because "the clinical findings by the consultative examiner were all in the normal range." (Id.)
For several reasons,the ALJ's analysis failed to demonstrate proper fealty to the treating physician
rule before discarding the opinions from Drs. Locuratolo and Cervantes. Specifically, in declining
to give Drs. Locuratolo's and Cervantes's opinions any weight,the ALJ neglected to:(A)consider
any of the factors enumerated in 20 C.F.R. § 404.1527(c) and (B) give "good reasons" for doing
so.
A. The ALJ Did Not Consider the 20 C.F.R.§ 404.1527(c) Factors
The ALJ was obligated to follow the analytical path mandated by 20 C.F.R. § 404.1527,
which requires that he consider the length ofthe treating relationship, the expertise ofthe treating
doctors, the consistency of their findings, and the extent to which the record offers support for
some or all ofthose findings. See Burgess. 537 F.3d at 129(quoting 20 C.F.R. § 404.1527(d)(2));
Fox V. Astrue. No. 05-CV-1599(NAM),2008 WL 828078, at *8(N.D.N.Y. Mar. 26,2008). The
ALJ here erred because it does not appear that he applied any ofthe factors provided by 20 C.F.R.
14
§ 404.1527(c)(2)-(6) in determining the weight to give Drs. Locuratolo's and Cervantes's
opinions. See Bunn v. Colvin. ll-CIV-6150(NGG),2013 WL 4039372, at *7(E.D.N.Y. Aug. 7,
2013) (citing Schaal. 134 F.3d at 504) (finding the ALJ erred because "in evaluating Dr.
[Chapman's] opinion, the ALJ did not appear to have applied any of the factors provided by 20
C.F.R. § 404.1527(c)(2)-(6) for determining the weight to give a noncontrolling opinion of a
treating physician")). For example, the ALJ did not consider the treatment relationship between
Vargas and Dr. Locuratolo, which the Record indicates involved examinations over the course of
the 18 months prior to the date on which Dr. Locuratolo issued his first opinion. (R. at 600.) This
factor weighs heavily in this case because the ALJ was forced to look in 2015 to determine whether
Vargas was disabled in 2003 through 2006—a time period for which there are limited medical
records—and it appears that Dr. Locuratolo had by far the longest look at Vargas's condition.
Bodden, 2015 WL 8757129, at *9 (finding that "the longitudinal relationship between a mental
health patient and her treating physician provides the physician with a rich and nuanced
understanding of the patient's health that cannot be readily achieved by a single consultative
examination."); Bunn. 2013 WL 4039372 at *7-8 (finding that the ALJ erred where "the ALJ's
decision makes no reference to the fact that [the treating physician] is a specialist who had the
opportunity to examine [the plaintiff] every one to three months over the course of fourteen
months"). Accordingly, because the "ALJ failed to consider all ofthe relevant factors in deciding
what weight to assign the opinion of a treating physician, the ALJ's decision is flawed." Box, 3
F. Supp. 3d at 44.
Moreover,"[w]hile the ALJ is not required to discuss the factors explicitly, it must be clear
from the decision that the proper analysis was undertaken." Calixte v. Colvin. No. 14-CV-5654
(MKB),2016 WL 1306533, at *24(E.D.N.Y. Mar. 31, 2016)(citing Petrie. 412 F. App'x at 406
15
("[W]here the evidence ofrecord permits us to glean the rationale of an ALJ's decision, we do not
require that he have mentioned every item of testimony presented to him or have explained why
he considered particular evidence unpersuasive or insufficient to lead him to a conclusion of
disability." (internal quotation marks omitted)). The Record here does not provide a sufficient
basis to conclude that the proper analysis was undertaken. Indeed, the ALJ does not mention the
treating physician rule or acknowledge that it requires special consideration of the treating
physicians' opinions. See Bradlev v. Colvin. 110 F. Supp. 3d 429, 437 (E.D.N.Y. 2015)
(remanding where"ALJ O'Leary did not properly apply—or even acknowledge the existence of—
the treating physician rule"). Instead, the ALJ gave less consideration to the opinions of Drs.
Locuratolo and Cervantes than he gave to the opinions given by consulting physicians. For
example, prior to concluding "there is not support for the claimant's allegations to the psychiatrist,
and the psychiatrist's conclusions must be called into question,"(R. at 24), the ALJ analyzed the
two treating physician opinions in just two sentences total,(id. at 24—25). Without more,the Court
cannot divine a basis for the ALJ's conclusions that Drs. Locuratolo's and Cervantes's opinions
were "inconsistent" with the Record. Therefore, because the Record is unclear about whether the
ALJ considered the requisite factors before giving no weight to the treating physicians' opinions,
the case must be remanded.
B. The ALJ Failed to Provide "Good Reasons" for Discarding the Opinions of Two
Treating Physicians
1. Dr. Locuratolo
Despite the cursory treatment the ALJ gave to Dr. Locuratolo's opinions, the
Commissioner argues that the ALJ nevertheless discharged his duties under the treating physician
rule by providing "good reasons" for discarding his opinions. (Comm Br. at 31-33.) According
to the Commissioner, this is shown by the ALJ's statement that he was setting aside Dr.
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Locuratolo's opinion because it "quoted extensively from [Vargas's] statements in both [of] his
letters as the basis for his opinions." (Id. at 31.) As an initial matter,the Commissioner's argument
fails because, even though it appears to have some merit regarding the letters submitted by Dr.
Locuratolo, it fails to reckon with the formal medical source statement that he completed on
January 29, 2007. (See R. at 607.) In fact, the Commissioner aims its argument solely at the two
letters without ever mentioning the January 29, 2007 opinion. (See Comm'r Br. at 31 ("Indeed,
Dr. Locuratolo quoted extensively from Vargas's statements in both his letters as the basis for his
opinions.").)
The Commissioner's failure to address the January 29, 2007 opinion is understandable
because, even though the ALJ cited it as a document that he considered, it is not clear that he
reckoned with its substance. Indeed, similar to the Commissioner's argument, the ALJ's analysis
appears aimed solely at the letters because, although the letters quote Vargas's statements about
her condition, there is no indication from Dr. Locuratolo's January 29, 2007 opinion that he relied
upon her subjective statements. To the contrary, unlike his two letters. Dr. Locuratolo's January
29, 2007 opinion states that it was "based upon objective clinical evidence." (R. at 607.) And,
there was "objective clinical evidence" supporting Dr. Locuratolo's findings, including Dr.
Cochrane's report of February 23, 2005. (Id. at 420.) Dr. Cochrane reported that he conducted
several mental capacity tests, including the "picture completion subtest" that revealed that Vargas'
mental limitations rendered her unable to perform simple tasks, maintain concentration, make
appropriate decisions, or deal with stress. (R. at 420.) Additionally, Dr. Locuratolo identified 13
different "positive clinical findings" that supported his opinion. (Id at 601.) Therefore, even if
the ALJ's opinion grappled with Dr. Locuratolo's January 29,2007 opinion—a conclusion that is
unclear not clear from the Record—^his basis for rejecting it is insufficient because there is no
17
indication that it was based upon only Vargas's subjective complaints. Accordingly, because Dr.
Locuratolo's January 29, 2007 opinion appears to have eluded the review of both the ALJ and the
Commissioner,the reasons that the ALJ gave for affording it no weight necessarily fail to comply
with the treating physician rule.
The other argument advanced by the ALJ for rejecting Dr. Locuratolo's January 29,2007
opinion is likewise insufficient. The ALJ stated that Dr. Locuratolo's findings were "completely
inconsistent with the record." (R. at 23.) This cannot serve as a basis for discarding Dr.
Locuratolo's opinions because it contradicts the Appeals Council's prior pronouncements on the
issue. "Failing to abide by an Appeals Council remand order is also grounds for a court to remand
the case." Holman v. Colvin. No. 12-CV-5817(JMF), 2014 WL 941823, at *3 (S.D.N.Y. Mar.
11, 2014); Mortise v. Astrue. 713 F. Supp. 2d 111,120-24(N.D.N.Y. 2010)(remanding based on
the ALJ's failure to comply with the Appeals Council's remand order to follow the treating
physician rule); Mann v. Chater, No. 95-CV-2997 (SS), 1997 WL 363592, at *3 (S.D.N.Y. June
30, 1997)(Sotomayor, J.); see also 20 C.F.R. § 404.977(b)("The administrative law judge shall
take any action that is ordered by the Appeals Council and may take any additional action that is
not inconsistent with the Appeals Council's remand order."). Here, in ruling that Vargas was
disabled as of September 19, 2006, the Appeals Council found that "the medical record supports
Dr. Locuratolo's opinion ... dated September 19, 2006, January 29, 2007, and June 19, 2008."
(R. at 243-44.) Thus, directly contrary to the ALJ's finding, the Appeals Council had already
determined that Dr. Locuratolo's September 19, 2006 and January 29, 2007 opinions were
18
consistent with the Record. Accordingly, the ALJ could not use this as a basis to reject Dr.
Locuratolo's opinion.
On the surface, it might seem possible to look beyond this prior ruling from the Appeals
Council because, upon Vargas's consent, the Appeals Council found that she was disabled
beginning only on September 19, 2006. But, after Vargas withdrew from that agreement, it is not
possible to cabin the Appeals Council's ruling to September 19, 2006 forward. A review of the
Record demonstrates that the Appeals Council's ruling contained several implicit findings about
Dr. Locuratolo's opinions that the ALJ appears to have overlooked. First, Dr. Locuratolo's
January 29, 2007 opinion, which the Appeals Council described as "supported" by the evidence,
(R. at 243), opined that Vargas's symptoms and limitations began in "late 2002,"(id at 607).
Moreover,the Record demonstrates that at the time of Dr. Locuratolo's opinions of September 19,
2006 and January 29, 2007,the only evidence in the Record was from the time period currently in
dispute—May 1, 2003 through September 18, 2006. (See, e.g., id at 315-608.) Indeed, the
Appeals Council implicitly recognized as much because all of the evidence that it reviewed prior
to finding that Dr. Locuratolo's opinion was supported by the medical record was from before
September 19, 2006.
id at 242.) To illustrate, just before discussing Dr. Locuratolo's
opinions, the Appeals Council discussed the report by Dr. Cochrane from February 23, 2005, Dr.
Sherman's report from May 5,2005, and Dr. Rupp-Goolnick's report from May 27,2005. (Id)
Limiting the Appeals Council's construction of Dr. Locuratolo's opinions would also be
inconsistent with the Record as a whole. The genesis of Vargas's mental limitations appears to be
her fall on the ice in the spring of 2003; she worked for twenty years before that day and has not
worked since. (See, e.g.. id. at 429.) Moreover, the Appeals Council recognized that there had
been no material change in Vargas's condition since at least 2005 by ruling that Dr. Locuratolo s
19
opinion was consistent with the medical reports from 2005 and "consistent with Dr. Cervantes'
opinion dated October 4, 2008." (Id at 243.) Consequently, the ALJ's decision to discard Dr.
Locuratolo's opinions on the basis that they were inconsistent with the evidence is not only
unsupported by the Record, but it also contradicts the Appeals Council's prior findings.
Accordingly,the ALJ erred by relying on these reasons for setting Dr. Locuratolo's opinions aside.
2. Dr. Cervantes's Opinion from October 4,2008
The ALJ's decision to give no weight to Dr. Cervantes's opinion from October 4, 2008,
failed to comport with the SSA's regulations because it does not appear that he weighed one ofthe
doctor's opinions, and even if he did, the reasons given are inadequate. First, it appears that the
ALJ failed to weigh a medical source statement signed by Dr. Cervantes on October 4, 2008.
Given the importance of the treating physician rule, the ALJ's failure to consider an opinion a
treating source warrants remand without much further ado. See SnelL 177 F.3d at 134 ("We
therefore conclude that Snell is entitled to an express recognition from the Appeals Council ofthe
existence of Dr. Clark's favorable August report and,ifthe Council does not credit the findings of
that report, to an explanation of why it does not."); Gonzalez v. Astrue, No. lO-CV-2941 (DLI),
2012 WL 3930412, at *7(E.D.N.Y. Sept. 10, 2012). In considering Dr. Cervantes's opinion, the
ALJ cited only to Exhibit 38F,(R. at 23), which is a short narrative report from Dr. Cervantes, also
dated October 4, 2008,(id at 842). However, the much more comprehensive medical source
statement wherein Dr. Cervantes opined that Vargas was markedly limited in 17 different ways,
(id at 815-17), was Exhibit 36F,(id at 7), and the ALJ neglected to mention or consider that
exhibit,(see id. at 16-25).
The Commissioner fails to account for the ALJ's failure to consider Dr. Cervantes's
October 4,2008 medical source statement. Instead, the only basis the Commissioner proposes for
20
finding that the ALJ adequately considered Dr. Cervantes's medical source statement relates to the
short narrative report from Dr. Cervantes also from October 4,2008.(Comm.Br. at 30.) However,
even ifthe Court were to consider the ALJ's citation to Dr. Cervantes's short narrative report from
the same day as Dr. Cervantes's lengthier medical source statement, the reasons given by the ALJ
would be insufficient to set aside the medical source statement. The Commissioner argues that the
ALJ properly found that Dr. Cervantes's opinion was "based on Plaintiffs subjective symptoms
rather than objective examination findings." (Comm. Br. at 31.) However, although this might
well apply to Dr. Cervantes' short narrative report, neither the ALJ, nor the Commissioner,
explains how it can be discerned that Dr. Cervantes's medical source statement was based upon
Vargas's subjective statements. Indeed,Dr. Cervantes's medical source statement is free from any
references to Vargas's subjective statements. Furthermore, Dr. Cervantes's opinion identified 14
different "positive clinical findings" that supported his diagnosis. (R. at 813.) Accordingly, the
ALJ and the Commissioner's speculation that Dr. Cervantes's October 4, 2008 opinion was based
upon Vargas's subjective statements is an insufficient basis to reject his opinion because it is
unsupported by the Record.
Additionally, to the extent the ALJ rejected Dr. Cervantes's October 4, 2008 medical
source statement as inconsistent with the Record, this could not serve as a proper basis. As was
the case with Dr. Locuratolo's opinions, the Appeals Council had already deemed Dr. Cervantes's
October 4,2008 medical source statement fully supported by the Record. (R. at 243("The Appeals
Council finds that the medical record supports Dr. Locurato [sic] and Dr. Cervantes' opinions.").)
21
Therefore, because the Appeals Council had already held that Dr. Cervantes's October 4, 2008
opinion was supported by the Record,the ALJ was not entitled to discard it on that basis.
It also appears that the ALJ may have given no credence to Dr. Cervantes's opinion because
it was issued on October 4, 2008, two years after the disputed period ended. (R. at 23 ("This
evidence,however,is a report dated October 4,2008.").) Courts in this Circuit hold that"[mjedical
opinions given after the date that [claimant's] insured status expired are taken into consideration
ifsuch opinions are relevant to [claimant's] condition prior to that date. The expiration date should
not act as a cutoff with regard to the reports considered on this specific issue." Cardoso-Navarrete
V. BerrvhilL No. 17-CV-2446 (RJS), 2017 WL 6375947, at *11 (S.D.N.Y. Dec. 13, 2017)
(citations omitted); see also Pollard, 377 F.3d at 194 (finding that "the district court erred insofar
as it categorically refused to consider," as evidence of disability, records "generated [after the
relevant time period] and [that] did not explicitly discuss [the claimant's] condition during the
relevant time period"(citations omitted)).
Here, it is not dispositive that Dr. Cervantes's opinion was issued two years after the
disputed period ended for at least three reasons. First, the medical evidence that the Appeals
Council found to have supported Dr. Cervantes's opinion was all from 2003 through 2006. (R. at
243.) Second, Dr. Cervantes expressly opined that Vargas's conditions dated back to at least to
2005. (Id at 842.) Third, the ALJ was obligated to expressly state why he found that Dr.
Cervantes's opinion did not relate back to the period between May 1, 2003 and September 18,
2006. See Stewart v. Astrue. No. lO-CV-3032(DLI), 2012 WL 314867, at *9(E.D.N.Y. Feb. 1,
2012) ("[T]he Second Circuit has recognized that medical evidence obtained subsequent to a
Plaintiffs last insured date is not irrelevant to whether a Plaintiff ha[s] been continuously disabled
...."(quoting Amone v. Bowen.882 F.2d 34,39(2d Cir. 1989))); Stewart v. Colvin,No. 15-CV-
22
2427(MKB),2016 WL 5349768, at *16(E.D.N.Y. Sept. 23, 2016)("AU Hein was incorrect in
summarily concluding that Dr. Khan's opinions were irrelevant to assessing whether Plaintiffs
condition was continuous and severe prior to 2009, even if Dr. Khan made no reference to
Plaintiffs limitations in 2005."). Accordingly,the Court finds that the ALJ was not entitled to set
the medical source statement aside merely because it was issued two years after the disputed period
had ended,'
*
*
*
The Court recognizes the difficult position that Vargas put the SSA in by retracting her
prior agreement that she became disabled as of September 19, 2006. However, it does not appear
that the Commissioner attempted to enforce that agreement. Instead, the SSA held two new
hearings and ALJs had to look back a decade to determine whether Vargas was disabled from May
1, 2003 through September 18, 2006 on a somewhat sparse record. As commendable as the sheer
amount of process that the SSA afforded Vargas is, it was still necessary for the ALJ to adhere to
the SSA's regulations and the Appeals Council's prior pronouncements throughout the protracted
history of this case. That was not done. Those failures require remand for reconsideration.
CONCLUSION
For the reasons set forth above, the Commissioner's cross-motion for judgment on the
pleadings is denied. Vargas's motion for judgment on the pleadings is granted. The ALJ's
'The ALJ also declined to give any weight to the testifying medical expert because she relied on Dr. Cervantes's
opinions from October 4, 2008. (S^ R. at 23("[T]he testifying medical expert. .. appeared to rely only on a 2008
report ofthe claimant's psychiatrist.").) The Commissioner asserts this was proper because the testifying expert"had
expressly relied on the 2010 opinion of Dr. Cervantes, which post-dated the relevant period by four years." (Comm.
Br. at 30.) However, as the ALJ recognized, the testifying expert relied on Dr. Cervantes's opinions from October 4,
2008. (R. at 23.) That opinion has already been found to be consistent with the Record from 2005. (R. at 243.)
Accordingly, on remand,the ALJ should re-weigh the testifying expert's opinion.
23
decision is reversed and the matter is remanded to the ALJ under the fourth sentence of42 U.S.C.
§ 405(g)for further proceedings consistent with this Memorandum and Order.
SO ORDERED.
Dated: December
s/Carol Bagley Amon
,2019
Brooklyn, New York
Carol Bagh
United States iMstrict Judge
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