Murphy v. Commissioner of Social Security

Filing 21

MEMORANDUM & ORDER: The Commissioner's 16 Motion for Judgment on the Pleadings is DENIED and this case is REMANDED to the Commissioner for a proper evaluation of Dr. Hurtado's opinion and a reevaluation of Plaintiff's subjective complaints in light of all the medical evidence.. So Ordered by Judge Nicholas G. Garaufis on 8/19/2014. (c/m to pro se; fwd'd for jgm) (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

-------------------------------------------------------------------){
MICHAEL J. MURPHY,

MEMORANDUM & ORDER

Plaintiff,

CV-12-4504 (NGG)

-againstCAROLYN W. COLVIN, Acting Commissioner of
Social Security,
Defendant.

-------------------------------------------------------------------){

NICHOLAS G. GARAUFIS, United States District Judge.
Plaintiff Michael J. Murphy brings this action, pursuant to 42 U.S.C. §§ 405(g) and
1383(c), seeking judicial review of the Social Security Administration's ("SSA") decision that he
is not disabled and therefore not entitled to supplemental security income ("SSI"). The Acting
Commissioner of Social Security ("the Commissioner") has filed a Motion for Judgment on the
Pleadings pursuant to Federal Rule of Civil Procedure l2(c). For the reasons set forth below, the
Commissioner's motion is DENIED, Plaintiffs motion is GRANTED, and this case is
REMANDED to the SSA for further proceedings.

I.

BACKGROUND
Plaintiff was born on June 2, 1958. (Administrative Record ("Rec.") (Dkt. 19) at 67,

131.) He has previously worked as a police officer and, most recently, as a security guard. (Id.
at 141, 151-53, 207, 690.)
On July 15, 2011, Plaintiff filed an application for SSI benefits (ill,_ at 131-32), claiming
that he had been disabled since February 28, 2010, due to anxiety disorder, post-traumatic stress
disorder ("PTSD"), major depressive disorder, panic attacks, chronic sinusitis, and

1

gastroesophagael reflux disease ("GERD")

fuL. at 140).

The SSA denied his application on

November 16, 2011. (Id. at 67, 71-76.)
Plaintiff requested a hearing on his application which was held before Administrative
Law Judge Jay L. Cohen ("ALJ") on February 21, 2012. (Id. at 25-66.) Plaintiff, represented by
counsel, testified at the hearing, as did medical expert Sharon Grand, Ph.D., and vocational
expert Amy Leopold. (MJ On March 28, 2012, the ALJ issued a written decision concluding
that Plaintiff was not disabled within the meaning of the Social Security Act. (Id. at 5-24.)
Plaintiff requested that the SSA Appeals Council review the ALJ's unfavorable decision. (Id. at
207-11.) The Appeals Council denied Plaintiffs request for review on August 29, 2012 (id. at 14), rendering the ALJ's decision the final decision of the Commissioner. See 42 U.S.C. § 405(g).
On September 10, 2012, Plaintiff, now proceeding pro se, filed the instant Complaint
seeking judicial review, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), of the SSA's decision
that he was not disabled and therefore not entitled to SSL (Comp!. (Dkt. 1).) The Commissioner
moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). (Def.
Mem. (Dkt. 17).)
II.

LEGAL STANDARD

A.

Federal Rule of Civil Procedure 12(c)

Federal Rule of Civil Procedure J2(c) provides: "After the pleadings are closed-but
early enough not to delay trial-a party may move for judgment on the pleadings." "Judgment
on the pleadings is appropriate where material facts are undisputed and where a judgment on the
merits is possible merely by considering the contents of the pleadings." Sellers v. M.C. Floor
Crafters, Inc., 842 F .2d 639, 642 (2d Cir. 1988). The standard for reviewing a Rule 12(c) motion
is the same standard that is applied to a Rule 12(b)(6) motion to dismiss for failure to state a

2

claim. See Bank ofN.Y. v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010). To survive
either kind of motion, the complaint must contain "sufficient factual matter ... to state a claim to
relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A court is
required "to accept as true all allegations in the complaint and draw all reasonable inferences in
favor of the non-moving party." Vietnam Ass'n for Victims of Agent Orange v. Dow Chem.
Co., 517 F .3d 104, 115 (2d Cir. 2008). In addition to the pleadings, the court may consider
"statements or documents incorporated by reference in the pleadings ... and documents
possessed by or known to the plaintiff and upon which it relied in bringing the suit." ATSI
Commc'ns, Inc. v. Schaar Fund. Ltd., 493 F.3d 87, 98 (2d Cir. 2007).
B.

Review of Final Determinations of the Social Security Agency

"The role of a district court in reviewing the Commissioner's final decision is limited."
Pogozelski v. Barnhart, No. 03-CV-2914 (JG), 2004 WL 1146059, at *9 (E.D.N.Y. May 19,
2004). "[I]t is up to the agency, and not [the] court, to weigh the conflicting evidence in the
record." Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998); see also Tommasetti
v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). "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." Shaw v. Chater,
221F.3d126, 131 (2d Cir. 2000) (quoting 42 U.S.C. § 405(g)). "Substantial evidence means
more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009). Thus, as
long as (1) the ALJ has applied the correct legal standard and (2) his findings are supported by
evidence that a reasonable mind would accept as adequate, the ALJ's decision is binding on this
court. See Pogozelski, 2004 WL 1146059, at *9.

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C.

Determination of Disability

"To receive federal disability benefits, an applicant must be 'disabled' within the
meaning of the [Social Security] Act." Shaw, 221 F.3d at 131; see also 42 U.S.C. § 423. A
claimant is "disabled" within the meaning of the Act if he has an "inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not Jess than 12 months." 42 U.S.C. § 423(d)(l)(A). The
impairment must be of"such severity that [claimant] is not only unable to do his previous work
but cannot, considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy." Id. § 423(d)(2)(A).
The SSA has promulgated a five-step procedure for determining whether a claimant is
"disabled" under the Act. See 20 C.F.R. § 404. l 520(a)(4). In Dixon v. Shalala, 54 F.3d 1019
(2d Cir. 1995), the Second Circuit described this five-step analysis as follows:
The first step in the sequential process is a decision whether the claimant is
engaged in "substantial gainful activity." If so, benefits are denied.
If not, the second step is a decision whether the claimant's medical condition or
impairment is "severe." If not, benefits are denied.
If the impairment is "severe," the third step is a decision whether the claimant's
impairments meet or equal the "Listing of Impairments" ... of the social security
regulations. These are impairments acknowledged by the Secretary to be of
sufficient severity to preclude gainful employment. If a claimant's condition
meets or equals the "listed" impairments, he or she is conclusively presumed to be
disabled and entitled to benefits.
If the claimant's impairments do not satisfy the "Listing of Impairments," the
fourth step is assessment of the individual's "residual functional capacity," i.e.,
his capacity to engage in basic work activities, and a decision whether the
claimant's residua] functional capacity permits him to engage in his prior work. If
the residual functional capacity is consistent with prior employment, benefits are
denied.

4

If ~ot, the fift? and final .step is a decision whether a claimant, in light of his
resid~al functional capacity, age, education, and work experience, has the
capacity to perform "alternative occupations available in the national economy."
If not, benefits are awarded.

Id. at 1022 (citations omitted).
The ultimate "burden is on the claimant to prove that he is disabled." Curry v. Apfel, 209
F.3d 117, 122 (2d Cir. 2000) (alterations omitted). But ifthe claimant shows at step four that his
impairment renders him unable to perform his past work, there is a limited shift in the burden of
proof at step five that requires the Commissioner to "demonstrate[] that other work exists in
significant numbers in the national economy that you can do, given your residual functional
capacity and vocational factors." 20 C.F.R. § 404.1560(c)(2).
In making the determinations required by the Social Security Act and the regulations
promulgated thereunder, "the Commissioner must consider (1) the objective medical facts;
(2) the medical opinions of the examining or treating physicians; (3) the subjective evidence of
the claimant's symptoms submitted by the claimant, his family, and others; and (4) the
claimant's educational background, age, and work experience." Pogozelski, 2004 WL 1146059,
at *10 (citing Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983)).
Moreover, "the ALJ conducting the administrative hearing has an affirmative duty to investigate
facts and develop the record where necessary to adequately assess the basis for granting or
denying benefits." Id.

III.

DISCUSSION
In his pro se Complaint, Plaintiff avers that the ALJ's conclusion that he was not disabled

under the Social Security Act "was erroneous, not supported by substantial evidence on the
record[,] and/or contrary to the law." (Compl. at 2.) Conversely, the Commissioner's Motion to
Dismiss for Judgment on the Pleadings argues that the ALJ correctly found Plaintiff not disabled

s

because, contrary to both Plaintiff's and his treating psychiatrist's opinions of total disability,
neither his physical or mental impairments prevent him from participating in substantial gainful
activity. (See Def. Mem. at 35-37.) The Commissioner asserts 1) that the medical evidence does
not support a claim of total disability and no doctor indicated that Plaintiffs physical
impairments by themselves prevented him from working (see id. at 35-37), 2) that little weight
should be attributed to the treating physician's opinion of Plaintiff's total disability because that
opinion is unsupported by the psychiatrist's own examinations and is inconsistent with other
evidence in the record (see id.at 37-39), and 3) that Plaintiff's subjective complaints are not
entirely credible where the medical records and his own assertions to his physician do not
support the severity of the allegations in his statements and testimony (see id. at 42-45).
In his five-step analysis, the ALJ properly decided the first three steps. At step one, the
ALJ found that Plaintiff had "not engaged in substantial gainful activity since February 28, 20 I 0,
the alleged onset date." (Rec. at 10.) At step two, the ALJ found that Plaintiff suffered from
"severe impairments" including "seizure problems, COPD, sleep apnea, GERD, Barrett's
Esophagus, obesity, major depressive disorder, and generalized anxiety disorder.'' 1 (Id.) And at
step three, the ALJ found that Plaintiff did "not have an impairment or combination of
impairments that [met] or medically equal[ed] the severity of one of the listed impairments." (Id.
at 10-11.)
At step four, the ALJ found that Plaintiff has the residual functional capacity to perform
the "full range oflight work as defined in 20 C.F.R. § 404.1567(b) except he must avoid asthma
irritants. " 2 (Id. at 11.) He is limited to work that "does not entail responsibility for the well-

1

The ALJ wrote that Plaintiff had seizure problems. (Rec. at 10.) This appears to be a mistake as there is no
discussion of seizures in the record. (See. e.g., Rec. at 140, 356, 518, 580, 637.) However, the ALJ did not discuss
seizures other than noting them at page 10 of his decision. (See Rec. at 8-19.)
2
"Light work" is defined as follows:

6

being and safety of others or work that has production rate quotas in an environment with limited
public contact with no more than 25 people." (Id.) Based on Plaintiff's residual functional
capacity, the ALJ found at step four that Plaintiff was "unable to perform his past relevant work"
but, at step five, he was "able to adjust to other jobs existing in significant numbers in the
national economy." (Id. at 17.) Accordingly, the ALJ concluded that Plaintiff was not disabled
within the meaning of the Social Security Act. (Id. at 18-19.)
In making his assessment of Plaintiffs disability, the ALJ rejected a treating physician's
opinion of total disability. (Id. at 12-14, 16.) However, the ALJ provided little analysis for
failing to give a treating physician's opinion controlling weight. Thus, the court finds that the
ALJ's opinion was insufficient in supplying "good reasons" for rejecting the treating physician's
opinion. See 20 § C.F .R. 404.1527( c)(2). Additionally, this lack of analysis taints the ALJ' s
evaluation of whether Plaintiffs testimony and statements are credible in light of the objective
medical evidence.
A.

Plaintiff's Physical Impairments

The ALJ properly found that although Plaintiff suffers from several severe impairments
including COPD, sleep apnea, GERD, Barrett's Esophagus, and obesity, he had no physical
limitations that, by themselves, would prevent him from engaging in substantial gainful activity.
(Rec. at 12.) The ALJ considered the entirety of the record, including examinations and

Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to JO pounds. Even though the weight lifted may be very little, a job is in this
category when it requires a good deal of walking or standing, or when it involves sitting most of
the time with some pushing and pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, you must have the ability to do substantially all of
these activities. If someone can do light work, we determine that he or she can also do sedentary
work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for
long periods of time.
20 C.F.R. § 404.1567(b).

7

statements from Plaintiffs treating and non-treating physicians, and found no indications of
disabling limitations. (Id. at 12-14.) All of Plaintiffs treating physicians for his physical
ailments were accorded controlling weight and the ALJ determined that their opinions were
consistent with Plaintiff's residual functional capacity. (Id. at 16.)
Moreover, Plaintiff underwent an internal medical evaluation on September 19, 2011, by
Iqbal Teli, M.D. (Id. at 356-58.) Dr. Teli's examination ultimately found that Plaintiff has a
history of hypertension and, in his medical source statement, opined that his prognosis was stable
and that he should avoid dust and other respiratory irritants due to a history of asthma. (Id. at
357.)
Finally, a state agency medical consultant, W. Wells, M.D. completed a functional
assessment and opined that Plaintiff did not have an impairment that met the requirements of a
listing. (Id. at 309, 386.) Dr. Wells' assessment stated Plaintiff was unlimited in standing and/or
walking, unlimited in lifting and carrying, and should avoid concentrated dust and fumes. (Id.)
B.

Evaluation of Plaintiff's Treating Psychiatrist

The ALJ failed to evaluate properly the opinion of psychiatrist, Alicia Hurtado, M.D.,
Plaintiffs treating physician during the relevant period. A "treating physician" is a physician
"who has provided the [claimant] with medical treatment or evaluation, and who has or who had
an ongoing treatment and physician-patient relationship with the individual."3 Sokol v. Astrue,
No. 04-CV-6631(KMK),2008 WL 4899545, at *12 (S.D.N.Y. Nov. 12, 2008) (internal
quotation marks omitted). Under the SSA's regulations, "a treating physician's report is
generally given more weight than other reports." Snell v. Apfel, 177 F.3d 128, 133 (2d Cir.
1999). The SSA's "treating physician rule" requires an ALJ to give a treating physician's
opinion "controlling weight" if "the issue(s) of the nature and severity of [the claimant's]
3

It is undisputed that Dr. Hurtado qualifies as a "treating physician" under this definition.

8

impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in [the] case record." 20
C.F.R. § 404.1527(c)(2). On the other hand, "[w]hen other substantial evidence in the record"such as other medical opinions-"conflicts with the treating physician's opinion, ... that opinion

will not be deemed controlling." Snell, 177 F.3d at 133. And in any case, "some kinds of
findings-including the ultimate finding of whether a claimant is disabled and cannot work-are
reserved to the Commissioner" and are therefore never given controlling weight. Id. (internal
quotation marks omitted).
Even when an ALJ does not give controlling weight to a treating physician's opinion, the
ALJ must assess several factors to determine how much weight to give the assessment. See 20
C.F.R. § 404.1527(c)(2). Specifically, the ALJ must assess "(i) the frequency of examination
and the length, nature and extent of the treatment relationship; (ii) the evidence in support of the
opinion; (iii) the opinion's consistency with the record as a whole; (iv) whether the opinion is
from a specialist; and (v) other relevant factors." Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir.
1998); see also 20 C.F.R. § 404.1527(c)(2)-(6). While an ALJ need not mechanically recite each
of these factors, the ALJ must "appl[y] the substance of the treating physician rule." Halloran v.
Barnhart, 362 F.3d 28, 32 (2d Cir. 2004). The court will "not hesitate to remand when the
Commissioner has not provided 'good reasons' for the weight given to a treating physician's
opinion" or when the court "encounter[s] opinions from ALJs that do not comprehensively set
forth reasons for the weight assigned to a treating physician's opinion." Id. at 33.
Dr. Hurtado, the treating physician at issue, was a psychiatrist at the World Trade Center
Mental Health Program at the Mount Sinai School of Medicine ("WTC Center"). (Rec. at 244.)
She treated Plaintiff monthly in 2011 and 2012 for symptoms consistent with PTSD, major

9

depressive disorder, recurrent, moderate without psychotic features, and panic disorder without
agoraphobia. (Id. at 243.) In a letter dated June 17, 2011, Dr. Hurtado opined that Plaintiff's
psychiatric symptoms developed as a result of exposure to "multiple traumatic events during his
work at Ground Zero on September 11, 2001, and thereafter." (1.QJ Dr. Hurtado opined that
Plaintiff was "totally disabled secondary to his psychiatric symptoms and is unable to work at
this time." (IQJ In the same letter, she averred that his symptoms included panic attacks which
occurred "out of the blue" along with heart palpitations, shortness of breath, and dizziness. (IQ)
Additionally, she stated that Plaintiff presented with symptoms of depression, such as feelings of
hopelessness, extreme guilt, and decreased energy, and that he "endorsed symptoms of posttraumatic stress disorder that include severe anxiety on most days, severe insomnia, difficulties
with memory, social withdrawal, avoidance of all [September 11, 2001, attack]-related issues,
dissociation, and irritability." (Id.) She opined that he avoided "seeking treatment as a way of
avoiding the [September 11, 2001] traumatic events experienced." (IQJ She prescribed Prudi,
Alprazolam, and Klonopin and stated that Plaintiff started group therapy. (Id.)
The ALJ rejected Dr. Hurtado's opinion of totally disability. (Id. at 14, 16.) The ALJ
reasoned that Dr. Hurtado's opinion would not receive controlling weight because the testifying
medical expert, Dr. Grand, disagreed with her assessment of total disability and that Dr. Grand's
opinion was better supported by the record. (Id. at 13,16.) Dr. Grand opined that Plaintiff's
mental impairments were only limiting rather than fully disabling, and that he had significant
improvement with his current treatment regimen. (Id.) The ALJ concluded that the medical
expert's testimony was thorough and subject to "extensive cross examination." (Id. at 14.)
In order to determine whether the ALJ properly evaluated Dr. Hurtado's opinion, the
court must first decide whether that opinion was entitled to controlling weight. See 20 C.F.R.

IO

§ 404.1527(c)(2). If not, the court must decide whether the ALJ provided "good reasons" for
discounting Dr. Hurtado's opinion, see Halloran, 362 F.3d at 33, based on the factors set forth in
the regulations, see 20 C.F.R. § 404.1527(c)(2).
I.

Controlling Weight

The ALJ properly found that Dr. Hurtado's opinion was not entitled to controlling weight
because it lacked· support and was inconsistent with other substantial evidence in the record. See
20 C.F.R. § 404.1527(c)(2); Snell, 177 F.3d at 133. Dr. Hurtado's June 17, 2011, letter opining
total disability failed to reconcile her own findings of Plaintiffs improvement and abated
symptoms. (See Rec. at 243-44.) Moreover, Dr. Hurtado's June 17, 2011, assessment, conflicts
with the opinions of Dr. Grand, Herb Meadow, M.D., and psychiatric medical consultant R.
McClintock, M.D., which were consistent with a residual functional capacity for light work.
(See id. at 50-56, 351-54, 394-402, 414-17.)
(i.)

Dr. Hurtado's Opinion

On January 24, 2011, Dr. Hurtado, recorded that Plaintiff had multiple panic attacks daily
lasting about two to three minutes with palpitations, accelerated heart rate, diaphoresis, shortness
of breath, dizziness, and feelings of derealization. (Id. at 3 82.) Plaintiff also reported he felt
depressed, had decreased energy, felt hopelessness, and had difficulty concentrating and
sustaining attention. (Id.) Dr. Hurtado observed that Plaintiff was anxious but was wellgroomed, well-related, cooperative and pleasant, goal directed, coherent, and with appropriate
insight andjudgment. (Id. at 383.) Dr. Hurtado also recorded Plaintiff experienced irritability,
hypervigilance, and problems sleeping. CM:) She diagnosed PTSD, panic disorder without
agoraphobia, and major depressive disorder, recurrent, moderate without psychotic features. (Id.
at 384.) She stated that his psychiatric problems included a "depressed mood most of the day, ..
. loss of appetite, insomnia, decreased energy, diminished ability to concentrate, [and] recurrent
11

suicidal ideation without a specific plan." (l!h) Dr. Hurtado prescribed 12.5 mg of Paxil and 0.5
mg of Klonopin daily. (1.QJ
Plaintiff described similar symptoms at his second visit with Dr. Hurtado on February 7,
2011. (Id. at 378-80.) Dr. Hurtado recorded that Plaintiff took his medications incorrectly. (Id.
at 379.) Plaintiff reported having continued panic attacks, feeling excessively tired, and having
extreme anxiety multiple times per day. (l!h) Dr. Hurtado again observed that Plaintiff was
well-groomed, well-related, and calm and cooperative, that he was panicky but less dysphoric
and anxious, and that he had appropriate insight, judgment, and overall was "stable within
established limits." (Id.)
At Plaintiffs four appointments with Dr. Hurtado preceding her June 17, 2011, letter
(after approximately two months of treatment), Dr. Hurtado documented Plaintiffs continual
improvement. (See id. at 316, 318-319, 322, 325.) At his March 7, 2011, appointment with Dr.
Hurtado, Plaintiff averred that he experienced one to two panic attacks per week and that they
were "less frequent and less intense" than they had been previously but also that he had
"excessive daytime sleepiness." (Id. at 325.) At Plaintiffs April 8, 2011, appointment with Dr.
Hurtado, Plaintiff reported a "much improved mood ... including feeling less depressed and
anxious." (Id. at 322.) He stated that he continued to have panic attacks but they were
"occurring in less frequency and intensity" and that he was "able to talk [himself] down from the
panic attacks." (Id.) He also reported and that he was sleeping through the night. (Id.)
During his May 9, 2011, appointment with Dr. Hurtado, Plaintiff reported that his panic
attacks had decreased to once per week, that he had "decreased feelings of sadness and somatic
preoccupations," and continued improvement of his mood on his medication regimen. (Id. at
318-19.) During his June 7, 2011, appointment, Plaintiff reported that overall he was "much

12

better," but he had a "few ups and downs." (Id. at 316.) He also asserted that he was sleeping
well, denied having any "recent panic attacks," and denied feeling hopeless or worthless. (IQJ
At all four of these appointments, Dr. Hurtado documented that Plaintiff was well-groomed,
well-related, calm and cooperative, had appropriate insight and judgment, was able to pay and
sustain attention, was in a "better" mood, was less anxious and dysphoric, and overall that he
was "improving." (Id. at 316, 318-319, 322, 325.)
Dr. Hurtado's reports of improvement continued after her June 2011 letter. During his
July 25, 2011, appointment with Dr. Hurtado, Plaintiff denied any panic attacks in the past
month and said he was somewhat less anxious on his current medication regimen. (Id. at 312.)
Plaintiff reported continued anxiety, but also said his depression and energy level had improved,
was taking care of himself, had improved sleep, and denied any medication side effects, chest
pains, or shortness of breath. (Id. at 313.) Although she recorded that Plaintiff was "somewhat
anxious" and "jittery," Dr. Hurtado reiterated that Plaintiffs overall trend of improvement
continued and that he was in a "better" mood and had a less anxious and dysphoric affect. (Id.)
By his October 25, 2011, appointment with Dr. Hurtado, Plaintiff reported "no recent panic
attacks" and "[n]o flashbacks." (Id. at 608.) Plaintiff reported difficulty falling asleep at night
which Dr. Hurtado opined may be secondary to "untreated sleep apnea." (IQJ Otherwise, Dr.
Hurtado recorded that Plaintiff was still improving. (Id.) Finally, in a letter dated February 10,
2012, Dr. Hurtado acknowledges Plaintiffs treatment since January 2011 and his diagnosis. (Id.
at 673.) She doesn't discuss his symptoms or opine on his limitations but notes that "throughout
treatment he has remained adherent to schedule appointments and medication treatment." (Id.)
The record does not reflect whether Plaintiffs improvements were significant enough
that Dr. Hurtado would reconsider whether she believed Plaintiff was "totally disabled." Neither

13

Dr. Hurtado's June 2011 letter nor February 2012 letter attempts to reconcile the inconsistency
between her ongoing documentation of Plaintiffs ability to pay and sustain attention, appropriate
insight and judgment, lessening anxiety, and overall trend of improvement with her statement
opining total disability. (See id. at 243-44.) Nor does Dr. Hurtado address her prior notes to the
effect that Plaintiff reported fewer and less intense panic attacks, denied that he felt hopeless or
worthless, or that his sleep had improved. (Id.) Thus, Dr. Hurtado's June 2011 opinion of total
disability lacked support and was inconsistent with her own preceding medical notes - other
substantial evidence in the record. See Snell, 177 F.3d at 133; see also 20 C.F.R.
§ 404.1527(c)(2).

Dr. Hurtado's clinic notes also undermine the credibility of Plaintiffs testimony and
statements regarding his functional limitations related to mental impairments. In determining
whether a plaintiff is disabled, the ALJ considers "[the plaintiffs] symptoms and the extent to
which [those] symptoms can reasonably be accepted as consistent with the objective medical
evidence and other evidence." 20 C.F.R. § 404.1529(a). However, the ALJ will not reject a
plaintiffs statements about the intensity and persistence of pain or other symptoms or about the
effect they have on the plaintiffs ability to work "solely because the available objective medical
evidence does not substantiate [his or her] statements." 20 C.F.R. § 404. l 529(c)(2).
Furthermore, "since symptoms sometimes suggest a greater severity of impairment than can be
shown by objective medical evidence alone, [the ALJ] will carefully consider any other
information [the plaintiff] may submit about [his or her] symptoms." 20 C.F.R. §
404.1529(c)(3). Among other things, other evidence includes statements made by the plaintiff

14

and reports from treating sources. 4 20 C.F.R. § 404.1529(a). At the hearing, Plaintiff testified
that he had panic attacks four or five times per week, each lasting at least 15 minutes (Rec. at 54)
and that he had major problems with sleep (id. at 43). However, at his appointments with Dr.
Hurtado from April through October 2011, Plaintiff reported significant abatement of his panic
attacks, improved sleep, and somewhat lessened anxiety. (See id. at 312-13, 316, 318-19, 322,
608.) Significantly, Plaintiffs claims regarding his functional limitations are also unsupported
by other, non-treating physicians' statements in the record. (See id. at 51-52, 353-54, 414-18.)
However, Plaintiffs allegations are supported by Dr. Hurtado's June 2011 letter fui at 243),
which was discounted by the ALJ and will be discussed further below.
(ii.)

Dr. Grand?s Testimony

As the ALJ notes, Dr. Grand's conclusions were also inconsistent with Dr. Hurtado's
June 2011 letter. Based on the record, Dr. Grand opined that Plaintiffs severe impairments did
not equal or meet a Medical Listing. (Id. at 50.) Dr. Grand testified that Plaintiffs mental status
"improved significantly" and that this happened "really after only two to three months of
treatment" with his panic attacks decreasing from several times per day to being very limited.
(Id. at 51.) Dr. Grand opined that Plaintiff, even with treatment, had residual symptoms
including anxiety around crowds, some difficulties with concentration, and an overpreoccupation with his health concerns. (Id.) Nevertheless, she testified that he would be able
to work in a low stress job in which he is not responsible for the well-being or safety of others,
has no more than moderate contact with the public, and is in a non-crowded work environment
with no more than twenty-five people. (Id. at 51-52.) She opined that Plaintiff could do

4

The ALJ must consider all of the evidence presented, including information about Plaintiffs prior work record,
statements about Plaintiffs symptoms, evidence submitted by Plaintiffs treating or nontreating source, and
observations by the ALJ's employees and other persons. 20 C.F.R. § 404.1529

15

complex work, and could make job-related discretionary decisions, but that he could not handle
more than moderate production quotas. (Id. at 52.)
(iii.)

Dr. Meadow's Evaluation

Dr. Meadow's consultative examination of Plaintiff and subsequent medical opinion on
September 19, 2011, conflicted with Dr. Hurtado's opinion of total disability. (See id. 351-54.)
Dr. Meadow ultimately gave Plaintiff a "fair" prognosis and opined that his exam results,
although consistent with psychiatric problems, "[did] not appear to be significant enough to
interfere with [Plaintiffs] ability to function on a daily basis." (Id. at 353-54.)
Dr. Meadow similarly diagnosed Plaintiff with PTSD, depressive disorder not otherwise
specified, and panic disorder without agoraphobia. (Id. at 353.) However, in his medical source
statement, Dr. Meadow opined that Plaintiff"could perform complex tasks independently, learn
new tasks, maintain attention and concentration, make appropriate decisions, relate adequately
with others, and deal with stress. (IQ.) Dr. Meadow opined that Plaintiff may have "some
difficulty maintaining a regular schedule if he has to travel by public transportation because of
his panic attacks in crowded spaces." (14:.)
Dr. Meadow recorded that Plaintiff "was cooperative," "well groomed," had "coherent
and goal directed" thought processes, and that he was "appropriate in speech and thought
content." (Id. at 352.) While he found Plaintiff to be depressed, he found his attention and
concentration to be intact for counting, calculations, and serial threes from twenty. (Id. at 35253.) Dr. Meadow found Plaintiffs recent and remote memory skills intact, his cognitive
functioning "average," and his insight and judgment "fair." (Ml at 353.)
Plaintiff presented with complaints of difficulty falling asleep, depression with dysphoric
moods, irritability, loss of usual interests, low energy, diminished self-esteem, and difficulty

16

concentrating. (Id. at 351-52.) Plaintiffhad passive suicidal thoughts without intent and
flashbacks and nightmares about the September 11, 2001, World Trade Center events. (Id. at
352.) Plaintiff also reported his panic attacks, which occurred at varying frequency, were caused
by crowded spaces, precipitating with palpitations and sweating. (IQ)
(iv.)

Dr. McClintock's Findings

The opinions of Dr. McClintock, a state agency reviewing physician, were also
inconsistent with those of Dr. Hurtado and mostly supportive of Dr. Grand's findings. (See id. at
394-407, 414-18.) On November 16, 2011, Dr. McClintock reviewed Plaintiffs medical records
and completed a psychiatric review technique form QQ,_ at 394-407) and a mental residual
functional capacity assessment (id. at 414-18). In his residual functional capacity narrative, Dr.
McClintock acknowledges seeing Dr. Hurtado's June 2011 opinion in the records but found that
Plaintiff's "current condition shows him to be capable of basic occupational activities, such as he
performed fairly recently, as a [s]ecurity [g]uard at the Stock Exchange." (Id. at 417.) Dr.
McClintock also wrote there was a "clear problem w[ith] credibility in terms of [Plaintiffs]
alleged functional limitations." (!QJ
In his psychiatric review technique form

ful at 394-407), Dr. McClintock opined that

Plaintiff did not meet or medically equal the criteria of listings in 12.04 (affective disorders) or
12.06 (anxiety related disorders). 5 (Id.) Furthermore, Dr. McCiintock did not find that Plaintiff
was "markedly limited" in any of the "B" criteria of listings (id. at 404). He found only mild
limitations in activities of daily living and "only one or two" repeated episodes of deterioration,
each of extended duration. And he found only moderate limitations in social functioning and in

5

The required level of severity for 12.04 and 12.06 disorders is met when the requirements in both "A" and "B"
criteria are satisfied, or when the requirements in "C" are satisfied. See 20 C.F.R. § 404app. I.

17

maintaining concentration, persistence, or pace. He did not complete the form for "C" criteria of
listings (id. at 405).
In the residual functional capacity assessment form, Dr. McClintock stated that Plaintiffs
understanding and memory were "not significantly limited" and that he may be "moderately
limited" in his ability to carry out detailed instructions, maintain attention and concentration for
extended periods, or to perform activities within a schedule, maintain regular attendance, and be
punctual within customary tolerances. 6 (Id. at 414.) Dr. McClintock found that Plaintiff is
"moderately limited" in the ability to complete a normal workday and workweek without
interruptions from psychologically based symptoms and to perform at a consistent pace without
an unreasonable number and length ofrest periods. (Id. at 415.) He judged Plaintiff to be
"moderately limited" in some social interactions such as accepting instructions and responding
appropriately to criticism from supervisors or maintaining socially appropriate behavior. (IQJ
He reported that Plaintiff is "moderately limited" in his ability to respond appropriately to
changes in the work setting, to travel in unfamiliar places or use public transportation, to set
realistic goals, or make plans independently of others. (Id.)
(v.)

Dr. Sodaro and Dr. Ilardi

Plaintiff had two other treating physicians for his mental impairments, neither of whose
views were discussed in the ALJ's decision. Melissa Ilardi, Ph.D., a clinical psychologist at the
WTC Center, wrote a letter acknowledging that she "treat[s] [Plaintiff] in once weekly
psychotherapy" for panic disorder with agoraphobia since July 26, 2011. 7 (Id. at 683.)

6

The form allows the reviewing physician to give Plaintiff assessments of"not significantly limited," "moderately
limited," "markedly limited," "no evidence of limitation in this category, or "not ratable on available evidence."
(See Rec. at414-416.)
7
Dr. Ilardi was still providing Plaintiff with weekly treatment Plaintiff at the time of his hearing. (Rec. at 48.)

18

However, she provides no opinion on Plaintiff's functional limitations and there are no other
documents in the record from Dr. Ilardi. (ld.) 8
Psychiatrist Edward Sodaro, M.D., states that he has treated Plaintiff for anxiety
symptoms in supportive individual psychotherapy approximately every six weeks since May 19,
2010. 9 (Id. at 239, 467, 662.) There are three documents entitled "Psychiatric Examination of
Michael Murphy" in the record from Dr. Sodaro dated May 7, 2011, (id. at 239), December 12,
2011 (id. at 467), and February 3, 2012 (id. at 663). Dr. Sodaro did not opine on Plaintiff's
functional limitations based on his mental impairments. (See id. at 239-42, 467-71, 662-66.)
Also, it is unclear whether his reports reflect an update of Plaintiffs assertions of his own
symptoms over time or merely a statement of his medical history. Nevertheless, Dr. Sodaro's
objective observations are consistent with Dr. Meadow's (id. at 251-54) and Dr. Grand's
opinions (id. at 50-57). They are also consistent with Dr. Hurtado's medical notes although not
necessarily with her opinion of total disablement. (See id. at 239-42, 467-71, 662-66.)
In each of Dr. Sodaro's letters, he observed that Plaintiffs mood was "dysphoric" and
that he "seem[ed] "anxious and fidgety." (Id. at 241, 470, 665.) However, Dr. Sodaro also
recorded that Plaintiffs recent and remote memory were intact, that he was well oriented to
person, place, and time, and that his alertness and concentration appeared to be normal. (Id. at
247, 469-70, 664-65.) He documented Plaintiff's own assertions that, among other things, he
had difficulty with several daily activities, had significant symptoms with worrying, an inability
to sit still, was easily exhausted, and had trouble concentrating. (Id. at 240, 468, 663.) Dr.
Sodaro also reported Plaintiff's assertions that it was very difficult for him to get along with

8

The New York State Office of Temporary and Disability Assistance sent letters to Dr. Ilardi requesting her
reports. (Rec. at 360 (August 23, 2011, follow-up to letter dated August 10, 2011, requesting evidence).)
19

people, that he felt depressed, had trouble sleeping, had night terrors "every night," and suffered
panic attacks. (I.QJ
Because Dr. Hurtado's opinion of total disability was inconsistent with her own medical
records, as well as the conclusions of Dr. Grand, Dr. Meadow, and Dr. McClintock, it was not
entitled to controlling weight. See 20 C.F.R. § 404.1527(c)(2).
2.

Good Reasons

Thus, the question for the court is whether the ALJ provided "good reasons" for
discounting Dr. Hurtado's opinion of total disability, see Halloran, 362 F.3d at 33, based on the
factors set forth in the regulations. See 20 C.F.R. § 404.1527(c)(2). The ALJ failed to
adequately accord "good reasons" for rejecting Dr. Hurtado's opinion and leaves the court
unable to properly assess whether the ALJ's findings were based on substantial evidence. See
Halloran, 362 F.3d at 33; see also 20 C.F.R. § 404.1527(c)(2).
The ALJ's decision rejected Dr. Hurtado's opinion of total disability because: (1) Dr.
Grand, the medical expert at the hearing, "disagreed and concluded that while the claimant's
mental impairments impose limitations, they are not disabling limitations and he has significant
improvement with his current regimen"; (2) that "the medical expert's testimony was thorough,
well supported by the record and was subject to extensive cross examination"; (3) that Dr.
Grand's conclusion was better supported by the record than Dr. Hurtado's conclusion; and (4)
that "the record does not establish the criteria of any disabling mental limitations to prevent
Plaintiff from engaging in substantial gainful activity." (Rec. at 14, 16.)
These reasons may explain why the ALJ accorded Dr. Grand's opinion such weight, but
fail to explain why Dr. Hurtado's opinion should be rejected. See cf. Schisler v. Sullivan, 3 F.3d

9

It appears that, at the time of Plaintiffs hearing, Dr. Sodaro was still treating Plaintiff approximately every two
months. (Rec. at 48.)

20

563, 570 (2d Cir. 1993) ("Where the opinion of a treating source is being rejected or overridden,
there must be ... an explanation as to why the substantial medical evidence of record contradicts
the opinion(s) of a treating source(s). This discussion must be set out in a determination or
decision rationale.") Moreover, the ALJ failed to discuss specific evidence for according more
weight to the findings of Dr. Grand, a non-treating physician who did not personally examine
Plaintiff, over the findings of Dr. Hurtado, when more weight is generally placed on the opinion
of doctor who has personally examined the plaintiff. See 20 C.F.R. § 404. l 527(c)(2).
The ALJ cites Dr. Grand's findings that Plaintiff was able to work with some limitations.
(Rec. at 12.) However, the only evidence the ALJ offers in support of his assertion that Dr.
Grand's opinion is better supported by the record than the treating physician's is: 1) that
Plaintiffs mental status improved after two to three months of treatment with his panic attacks
becoming very limited and decreasing from several times a day to not happening in over a month
at a time (id. at 12); and 2) that Dr. Meadow's source statement maintained that Plaintiffs
psychiatric problems do not in themselves appear to be significant enough to interfere with his
ability to function on a daily basis and Plaintiff would be able to perform complex tasks
independently, learn new tasks, maintain attention and concentration, make appropriate
decisions, relate adequately with others, and deal with stress Wi at 13).
First, while it is significant that Plaintiffs symptoms abated, the statement that a patient
has improved does not automatically make an opinion of total disability inconsistent with the
record-it only indicates that the plaintiffs health is better than before. Second, the ALJ did not
explain why he gave Dr. Meadow's opinion more weight than Dr. Hurtado's when Dr. Meadow
only examined Plaintiff once. (Id. at 16); see cf. Pogozelski, 2004 WL 1146059, at* 13 (ALJ
erred in according "more than limited weight" to opinion of physician who had examined the

21

claimant on only one occasion); Crespo v. Apfel, No. 97-CV-4777 (MGC), 1999 WL 144483, at
*7 (S.D.N.Y. Mar. 17, 1999) (noting that a "consulting physician's opinions or report should be
given limited weight" because "they are often brief, are generally performed without benefit or
review of the claimant's medical history and, at best, only give a glimpse of the claimant on a
single day").
In rejecting the treating physician's opinion, the ALJ failed to consider fully the
substance of the previously discussed relevant factors under 20 C.F.R. § 404.1527(c)(2)-(6). See
also Schaal, 134 F.3d at 503. Dr. Hurtado treated Plaintiff monthly in 2011. (See Rec. at 31229, 378-80, 607-12.) Other than a passing mention that Plaintiff started treatment with Dr.
Hurtado in January of2011, the ALJ did not adequately consider the first factor- the frequency
of examination and the length, nature and extent of the treatment relationship.

ilil. at 12.)

Similarly, the ALJ failed to adequately assess the second factor - the evidence in support of Dr.
Hurtado's opinion. The ALJ merely asserted that Dr. Grand's conclusion was better supported
and that the record does not establish criteria of disabling mental limitations. (Id.) As previously
discussed, the ALJ failed to sufficiently discuss the consistency of Dr. Hurtado's opinion with
the record as a whole - the third factor. Although the ALJ stated perfunctorily that Dr. Hurtado
is a psychiatrist, he did not give any consideration to the fact that she is a specialist, the fourth
factor in the regulations. (Id.) Finally, it is not clear that the ALJ considered the fifth factorother relevant factors. 10 The only discussion of Dr. Hurtado's treatment of Plaintiff concerned
the contents of her June 2011 letter. (Id. at 12-14, 16.)
0

When considering how much weight to give to a medical opinion, the ALJ must also consider any factors brought
to their attention which tend to support or contradict the opinion. The regulation cites examples ofrelevant factors
including "the amount of understanding of [the] disability programs and their evidentiary requirements that an
acceptable medical source has, regardless of the source of that understanding, and the extent to which an acceptable
medical source is familiar with the other information in [the] case record."
'

20 C.F.R. § 404.1527 (c)(6)

22

The ALJ failed to provide "good reasons" for the lack of weight he gave to Dr. Hurtado's
opinion. The court must now remand his case for a proper evaluation of Dr. Hurtado's opinion.
C.

Evaluation of Plaintiff's Credibility

The ALJ determined that Plaintiffs statements and testimony "while somewhat credible
and somewhat supported by the record," were inconsistent with the residual functional capacity
assessment and could not be corroborated by objective medical evidence. (Rec. at 12, 14.) This
evaluation was tainted by the ALJ's failure to properly evaluate the opinion of Plaintiff's treating
physician-a failure that would naturally have affected how the ALJ viewed Plaintiff's
statements and testimony. On remand, the ALJ is directed to consider Plaintiffs subjective
complaints in light of the ALJ's fresh evaluation of Dr. Hurtado's opinion. See Sutherland, 322
F. Supp. 2d at 291 (because the ALJ's failure to properly apply the treating physician rule
"affect[ed] consideration of the ALJ's treatment of the plaintiff's subjective complaints," the
court would "not now consider" plaintiffs argument that the ALJ did not properly consider her
complaints).

IV. CONCLUSION
For the foregoing reasons, the Commissioner's Motion for Judgment on the Pleadings is
DENIED and this case is REMANDED to the Commissioner for a proper evaluation of Dr.
Hurtado's opinuion and a reevaluation of Plaintiffs subjective complaints in light of all the
medical evidence.
SO ORDERED.

s/Nicholas G. Garaufis
Nl,CHOLAS G. GARAUFIS ~
United States District Judge

Dated: Brooklyn, New York
August l.j_, 2014

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