Perez v. Colvin

Filing 17

MEMORANDUM and ORDER: Perez motion 9 for judgment on the pleadings is granted, the Commissioner motion 11 for judgment in the pleadings is denied, and the case is remanded for further proceedings consistent with this Memorandum and Order. Ordered by Judge Frederic Block on 7/24/2018. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DIANA PEREZ,
Plaintiff,
-against-

MEMORANDUM AND ORDER
Case No. 14-CV-6246 (FB)

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
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BLOCK, Senior District Judge:
Diana Perez seeks review of the Commissioner of Social Security’s final
decision denying her application for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”). Both parties move for judgment on the
pleadings. For the reasons stated below, Perez’s motion is granted, the
Commissioner’s motion is denied, and the case is remanded for further proceedings.
I
Perez was born in 1962, has a ninth-grade education, and previously worked
as a home health aide and a security guard. She applied for benefits in 2012, alleging
an onset date of April 1, 2010, based on pain in her right knee, high blood pressure,
allergies, arthritis, and asthma. After her applications were denied, she sought a
hearing before an administrative law judge (“ALJ”). The evidence developed by the
ALJ was as follows.
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A.

Medical Evidence: Physical Conditions
Perez first sought treatment for her knee pain at Jamaica Hospital Medical

Center (“JHMC”) Richmond Hill Family Medicine in March 2012. She complained
of burning pain and swelling over the previous three years. An MRI revealed, among
other things, a partially torn anterior cruciate ligament (“ACL”). She received a
cortisone injection and physical therapy, but the pain persisted. She was eventually
diagnosed with osteoarthritis in both knees; she was advised to lose weight, use a
cane and continue physical therapy.
Perez also received treatment from Dr. Betsy Varghese at the Joseph P.
Addabbo Family Health Center. Dr. Varghese took x-rays of Perez’s right knee,
which confirmed the diagnosis of arthritis, and of her hands, which showed a
possible ossicle or avulsion fracture. Dr. Varghese prescribed anti-inflammatory
medications and a pain reliever.
Dr. Varghese completed a Multiple Impairment Questionnaire at the
Commissioner’s request. She diagnosed arthritis, hypertension, mild asthma and
allergies. She opined that Perez could stand or walk for a less than one hour in an
eight-hour workday, and that she could sit for a total of five hours, but would need
to get up and move around for 15-20 minutes every hour. She further opined that
Perez could occasionally lift and carry no more than five pounds.

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Dr. John Joseph performed a consultative examination for the Commissioner.
He observed swelling in Perez’s right knee and difficulty squatting, but felt she did
not need a cane to walk. He opined that Perez was mildly limited in her ability to
stand and walk, and moderately limited in her ability to squat and kneel. He further
recommended that she avoid respiratory irritants.
Dr. Allan Levine, an orthopedic surgeon, testified telephonically as a medical
expert at the ALJ’s request. Based on his review of the records, he assessed Perez’s
residual functional capacity (“RFC”). He opined that Perez could lift 20 pounds
occasionally and 10 pounds frequently; could occasionally navigate stairs or a ramp
with a railing; and could occasionally -- but not repetitively -- crouch, stoop or bend.
He further opined that she could walk for up to 20 minutes at a time and for a total
up to two hours a day, stand for up to 40 minutes at a time and for a total of up to
four hours a day, and sit for up to six hours a day. He recommended that Perez not
crawl or kneel, and that she avoid uneven surfaces, ladders, ropes, scaffolds,
vibrating machinery, unprotected heights and extreme cold.

He further

recommended that she continue to use a cane.
B.

Medical Evidence: Mental Conditions
During the course of her treatment of Perez, Dr. Varghese saw signs of

depression. She recommended mental health treatment.

3

Perez began receiving counseling from Dr. Lisardo Augustin and Brenda
Jordan, a licensed clinical social worker, on March 22, 2013, a few months after she
applied for benefits. Dr. Augustin diagnosed dysthymic disorder (now renamed
“persistent depressive disorder”), with a Global Assessment of Functioning (“GAF”)
score of 45-50, corresponding to severe symptoms. He prescribed a 100-milligram
dose of Zoloft.
Perez had monthly meetings with Dr. Lisardo and weekly psychotherapy
sessions with Jordan through at least November 2013. In August of that year, Jordan
completed a Psychiatric/Psychological Impairment Questionnaire. She noted a
history of depression dating back “several years,” Administrative Record (“AR”)
527, including a suicide attempt in 2005 or 2006. She observed appetite disturbance
with weight change, sleep disturbance, mood disturbance, decreased energy,
paranoia or suspiciousness, feelings of guilt or worthlessness, hostility and
irritability, and suicidal ideations.

She further reported that Perez’s primary

symptoms were bouts of depression, difficulty sleeping, explosive episodes, anxiety,
crying spells, and mood swings. She opined that those symptoms began in 2005,
and that they would require treatment “for an indefinite time.” AR 527.
The questionnaire asked for opinions regarding the functional effects of
Perez’s mental impairment. Jordan saw at least some level of limitation in 19 of 20
categories. She saw either “mild” or “moderate” limitations in Perez’s ability to
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remember simple instructions, her ability to work with others without being
distracted, her ability to ask questions or request assistance, her ability to behave
appropriately in a social setting, her ability to take precautions, her ability to travel
and her ability to set goals and make plans. And she opined that Perez was “markedly
limited” in her ability to remember procedures and detailed instructions, her ability
to carry out detailed instructions, her ability to concentrate for an extended period,
her ability to sustain a routine without supervision, her ability to make simple
decisions, her ability to complete a normal workweek at a reasonable pace with
reasonable breaks, her ability to interact with the public and co-workers, her ability
to accept instructions and criticism, and her ability to adapt to changes.1
In addition, Jordan opined that Perez would experiences episodes of
decompensation in a work setting, causing her symptoms to worsen, and that she
could not tolerate even low stress because “she becomes extremely anxious in
settings that are stressful.” AR 533. She opined that Perez would likely miss more
than three days of work per month as a result of her condition, and that “she is not
likely to acquire and sustain employment at this time.” AR 534.
In response to an inquiry from Perez’s attorneys, Jordan explained that the
clinic did not make patients’ progress notes available. Instead, she provided a

1

Jordan did not opine that Perez had no limitations in the remaining
category -- ability to conform to a schedule. Rather, she answered “Not ratable on
available evidence.” AR 530.
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summary narrative consistent with her questionnaire responses. She did, however,
correct Perez’s mental health history, noting that she had reported two suicide
attempts, one in 2005 and a second in 2006.
C.

Perez’s Testimony
Perez testified regarding her daily life. She lives with her two daughters and

six-year-old grandson in public housing. One of her daughters pays the rent, and
she receives food stamps.
Her daily routine is to get up before her daughter goes to work. She watches
television and reads books. Three times a week a social worker takes her to a senior
center, where she plays bingo. She does not drive or do housework. Instead, a home
aide visits her three days a week, cleans her room, and does the shopping and
laundry. The aide and one of her daughters do the cooking. She needs help getting
dressed. She does not help her grandson get ready for school or care for him after
school.
Perez testified that she can walk about a half a block before she experiences a
burning sensation in her right leg. She can stand for ten minutes and sit for 15-20
minutes before she gets the same sensation. She cannot bend or kneel, and has
difficulty balancing without a cane. Mentally, she feels sad and nervous and, as a
result, cries, becomes angry and non-communicative, and cannot concentrate.
Medication helps her focus, but does not completely eliminate her symptoms.
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D.

Vocational Evidence
Andrew Vaughn testified as a vocational expert (“VE”). He opined that an

individual with the RFC described by Dr. Levine could not perform Perez’s past
work. However, he identified three jobs at the light exertional level, and another
three at the sedentary level, that such an individual could perform. In response to
questions from Perez’s counsel, Vaughn acknowledged that use of a cane would
preclude the light-level jobs, and that the limitations described by Dr. Varghese
(sitting for up to five hours and standing or walking for up to one hour) would
preclude all full-time employment.
E.

ALJ’s Decision
The ALJ rendered her decision on June 16, 2014. Applying the familiar five-

step sequential evaluation process, 2 she concluded at step one that Perez has not

2

The Commissioner must determine “(1) whether the claimant is currently
engaged in substantial gainful activity; (2) whether the claimant has a severe
impairment or combination of impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of Impairments; (4)
based on a “residual functional capacity” assessment, whether the claimant can
perform any of his or her past relevant work despite the impairment; and (5)
whether there are significant numbers of jobs in the national economy that the
claimant can perform given the claimant’s residual functional capacity, age,
education, and work experience.” McIntyre v. Colvin, 748 F.3d 146, 150 (2d Cir.
2014) (citing 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4)). The burden of proof is
on the claimant in the first four steps, but shifts to the Commissioner at the fifth
step. Id.
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engaged in substantial gainful activity since April 2010, and last met the insured
status requirement for DIB in December 2012.
At step two, the ALJ found that Perez had a severe combination of
impairments, namely, a partially torn ACL in the right knee, arthritis in both knees,
hypertension and asthma. She expressly excluded from her determination Perez’s
“medically determinable mental impairment of dysthymia” because it “does not
cause more than minimal limitation in the claimant’s work activities and [is]
therefore non-severe.” AR 16. 3 She reasoned that “dysthymia . . . is not depression,”
that “there are no treatment records to establish that the claimant has suffered any
vocational limitations due to this impairment,” and that “the evidence presented in
connection with this complaint consists solely of a letter and functional capacity
assessment from a social worker, not a psychologist . . . , and not supported by any
medical evidence or reports.” AR 16. She concluded that Jordan’s assessment was
“completely uncorroborated by any objective medical evidence” and “contradicted
by [Perez’s] own testimony in that she maintains a household for her two daughters
and grandson; cooks; attends the Senior citizens’ Center three times a week and
retains her concentration to play Bingo.” AR 26.

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She excluded Perez’s obesity, allergies, and – confusingly – hypertension
for the same reason.
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At step three, the ALJ found that none of Perez’s impairments met the criteria
for a presumptively disabling impairment in the Listing of Impairments.
Before turning to steps four and five, the ALJ adopted Dr. Levine’s RFC
assessment. In so doing, she rejected Perez’s description of her symptoms and their
severity as “not supported by the substantial medical evidence[.]” AR 24.
At step four, the ALJ adopted the VE’s conclusion that Perez could not
perform her past work. At step five, she found that Perez could perform other work
in the national economy, citing the VE’s example of light work that would not
conflict with Dr. Levine’s non-exertional limitations.
Based on her findings, the ALJ concluded that Perez was not disabled. The
Commissioner’s Appeals Council reviewed the case in accordance with the
settlement in Padro v. Astrue, Case No. 11-CV-1788 (E.D.N.Y.), but declined to
countermand the ALJ’s decision, making it the final decision of the Commissioner.4
Perez timely sought judicial review.

4

The settlement entitled claimants who had received unfavorable decisions
from five ALJs between January 1, 2008, and October 18, 2013, to a new hearing
before a different ALJ. For claimants, like Perez, who received an unfavorable
decision from one of the specified ALJs between October 18, 2013, and April 18,
2016, the settlement required the decision to be reviewed by a select group of the
Appeals Council’s staff.
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II
“In reviewing a final decision of the Commissioner, a district court must
determine whether the correct legal standards were applied and whether substantial
evidence supports the decision.” Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004);
see also 42 U.S.C. § 405(g). “[S]ubstantial evidence . . . means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971); see also Selian v. Astrue, 708 F.3d
409, 417 (2d Cir. 2013).
Perez challenges the ALJ’s decision in three respects. First, she argues that
the ALJ erred in finding that her mental impairment was not severe. Second, she
argues that ALJ erred in finding that Perez had the physical RFC for any light work.
Third, she argues that the ALJ failed to properly evaluate her credibility.
A.

Severity of Mental Impairment
Under the well-known treating physician rule, “the opinion of a claimant’s

treating physician as to the nature and severity of the impairment is given
‘controlling weight’ so long as it ‘is well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] case record.’” Burgess v. Astrue, 537 F.3d 117, 128 (2d

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Cir. 2008) (quoting 20 C.F.R. § 404.1527(d)(2)). 5 Perez argues that this rule obliged
the ALJ to give controlling weight to Dr. Augustin’s assessment of the severity of
her mental impairment. The assessment, however, was prepared by Jordan, who is
not a psychiatrist or psychologist. Contrary to counsels’ representation, the record
does not reflect that Dr. Augustin endorsed Jordan’s assessment.
Nevertheless, an ALJ is obliged to evaluate every medical opinion
“[r]egardless of its source.” 20 C.F.R. § 404.1527(c). This applies if the opinion is
not from an “acceptable” medical source (such as a physician or psychiatrist), and
even if it is not from a medical source at all. See id. § 404.1527(f)(1). An ALJ
“generally should explain the weight given to opinions from these sources or
otherwise ensure that the discussion of the evidence in the determination or decision
allows a claimant or subsequent reviewer to follow the adjudicator’s reasoning,
when such opinions may have an effect on the outcome of the case.” Id. §
404.1527(f)(2).
The ALJ gave reasons for giving Jordan’s assessment little weight, but those
reasons are unpersuasive. Her statement that “dysthymia . . . is not depression,” AR
16, is cryptic and incorrect, as evidenced by the current name of the impairment.
Her concern for the lack of reports and objective medical evidence is unfounded. As

5

Due to amendments to the regulation, the rule is now embodied in 20
C.F.R. § 404.1527(c)(2).
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the Court has previously explained, “[m]ental impairments are difficult to diagnose.”
Polis v. Astrue, 2010 WL 2772505, at *10 (E.D.N.Y. July 13, 2010). The patient’s
self-reported history is “an essential diagnostic tool,” Green-Younger v. Barnhart,
335 F.3d 99, 107 (2d Cir. 2003), as are the mental health professional’s own
observations, see Polis, 2010 WL 2772505, at *10 (citing Clester v. Apfel, 70 F.
Supp. 2d 984 (S.D. Iowa 1999) (“Quite frankly, the Court is unaware of what a
psychiatrist is expected to do . . . other than to review the patient’s history, conduct
a mental status examination and to report the results and recommendations regarding
the patient's ability to function.”)).

Her conclusion that Perez’s testimony

contradicts the assessment grossly misreads that testimony. Perez did not testify that
she “maintain[ed] a household.” AR 26. To the contrary, she testified that others do
the cooking and cleaning, and that she even needs assistance getting dressed. And
the fact that she can concentrate on a game of bingo hardly means that she can
maintain the same focus in a work environment. See Carroll v. Secretary of Health
& Human Servs., 705 F.2d 638, 643 (2d Cir. 1983) (“There was no proof that Carroll
engaged in any of these activities [reading, watching television, and taking public
transportation] for sustained periods comparable to those required to hold a
sedentary job.”); Murdaugh v. Secretary of Health & Human Servs., 837 F.2d 99,
102 (2d Cir. 1988) (“[A] claimant need not be an invalid to be found disabled under
. . . the Social Security Act.”).
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The only conclusion to be drawn from Jordan’s assessment is that Perez’s
mental impairment imposed sufficient limitations not to be excluded at step two
and to be considered in the constellation of other impairments at the remaining
steps. See Dixon v. Shalala, 54 F.3d 1019, 1025 (2d Cir. 1995) (“[The three
dissenting justices in Bowen v. Yuckert, 482 U.S. 467 (1986)] made clear that they
agreed with [Justices O’Connor and Stevens] that the only valid severity regulation
would be one that screened out only de minimis claims.”). Since the ALJ reached a
contrary conclusion, she did not consider whether it met the criteria for a listed
impairment or, if not, what effect it had on Perez’s RFC.6 In addition -- perhaps
because Perez first sought mental-health treatment after applying for benefits -- no
consultative exam for her mental impairment was ordered. Remand is necessary to
fill these gaps in the record. See Butts v. Barnhart, 388 F.3d 377, 385 (2d Cir.
2004) (“[W]here the administrative record contains gaps, remand to the
Commissioner for further development of the evidence is appropriate.”).

6

“The mental RFC assessment used at steps 4 and 5 of the sequential
evaluation process requires a more detailed assessment [than the step-two
determination] by itemizing various functions contained in the broad categories
found in paragraphs B and C of the adult mental disorders listings in 12.00 of the
Listing of Impairments[.]” SSR 96-8p, 1996 WL 374184, at *4 (S.S.A. July 2,
1996).
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B.

Other Issues
Although the Court is remanding based on Perez’s first claim of error, it

briefly addresses her other two claims to possibly obviate the need for a second
round of judicial review.
Contrary to Perez’s argument, the ALJ was entitled to credit Dr. Levine’s RFC
assessment over Dr. Varghese’s assessment. An RFC assessment is not subject to
the treating-physician rule. See 20 C.F.R. § 404.1527(d)(2) (“Although we consider
opinions from medical sources on issues such as . . . your residual functional capacity
. . . , the final responsibility for deciding these issues is reserved to the
Commissioner.”); id. § 404.1527(d)(3) (“We will not give any special significance
to the source of an opinion on issues reserved to the Commissioner[.]”) And while
the ALJ was still required to evaluate Dr. Varghese’s non-controlling opinion, Dr.
Levine’s expertise as an orthopedic surgeon was a valid consideration in her decision
to give it more weight. See id. § 404.1527(c)(5) (“We generally give more weight
to the medical opinion of a specialist about medical issues related to his or her area
of specialty than to the medical opinion of a source who is not a specialist.”). On
the other hand, the ALJ was not free to disregard, without explanation, Dr. Levine’s
recommendation that Perez continue to use a cane. See Sutherland v. Barnhart, 322
F. Supp. 2d 282, 289 (E.D.N.Y. 2004) (“It is not proper for the ALJ to simply pick

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and choose from the transcript only such evidence that supports his determination,
without affording consideration to evidence supporting the plaintiff’s claims.”).
With regard to Perez’s credibility, the Commissioner’s two-step procedure for
evaluating pain and other symptoms required the ALJ to first ask whether there was
“objective medical evidence from an acceptable medical source that shows [Perez
had] a medical impairment(s) which could reasonably be expected to produce the
pain or other symptoms alleged.” 20 C.F.R. § 404.1529(a). If so, then she was
required to evaluate the intensity and persistence of the symptoms “based on all of
the available evidence.” Id. The ALJ’s conclusion that Perez’s symptoms were “not
supported by the substantial medical evidence” was -- at least with respect to Perez’s
conceded knee pain -- inconsistent with that procedure. See id. § 404.1529(c)(2)
(“[W]e will not reject your statements about the intensity and persistence of your
pain or other symptoms or about the effect your symptoms have on your ability to
work solely because the available objective medical evidence does not substantiate
your statements.”); SSR 96-7p, 1996 WL 374186, at *1 (recognizing that
“symptoms, such as pain, sometimes suggest a greater severity of impairment than
can be shown by objective medical evidence alone”).
III
For the foregoing reasons, Perez’s motion for judgment on the pleadings is
granted, the Commissioner’s motion for judgment in the pleadings is denied, and the
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case is remanded for further proceedings consistent with this Memorandum and
Order.
SO ORDERED.

/S/ Frederic Block
______________________________
FREDERIC BLOCK
Senior United States District Judge

Brooklyn, New York
July 24, 2018

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