Morales v. Colvin

Filing 24

MEMORANDUM AND ORDER granting plaintiff's 15 Motion for Judgment on the Pleadings and denying Commissioner's 17 Cross Motion for Judgment on the Pleadings. The final order of the Commissioner is reversed, the decision of the ALJ is vac ated, and the matter is remanded for further proceedings consistent with this Order. The Clerk of Court is directed to enter judgment accordingly and to close this case for administrative purposes. So Ordered by Judge Eric N. Vitaliano on 1/17/2020. (Almonte, Giselle)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MEMORANDUM & ORDER

RENE MORALES,

15-CV-6734 (ENV)

Plaintiff,
-against-

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

X

Vitaliano, D.J.
Plaintiff Rene Morales requests review, pursuant to 42 U.S.C. §405(g), of a final decision
by the Commissioner of Social Security (the "Commissioner") denying his claim for Disability
Insurance Benefits ("DIB"), under the Social Security Act (the "Act"). The parties have crossmoved for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. For the reasons stated below, plaintiffs motion is granted, the Commissioner's crossmotion is denied and this matter is remanded for further proceedings consistent with this opinion.
Procedural History
Morales applied for DIB on March 13, 20 14. R. at 69. On August 20, 20 14, the Social
Security Admini stration ("SSA") determined that Morales was not disabled and denied his claim.
R. at 68. On August 28, 20 14, Morales requested a hearing before an Administrative Law Judge
("ALJ'') which took place on January 30, 2015. R. at 82, 26. On May 29, 2015, the ALJ denied
Morales' s claim for DIB. R. at 10. The ALJ determined that Morales had the capacity to perform

medium work. R. at 21. Appeals Council review was denied on September 20, 2015. R. at 7-8.
This action followed.
Background
Morales was born on April 28, 1958. R. at 30. He received a G.E.D. in 1976. Morales
lives in Queens with his wife. Id He held a job as a resident manager for residential buildings
from 1999 through September 2013. R. at 188. His job duties included oversight and assistance
with plumbing and electrical work, as well as lifting up to 100 pounds. R. at 189-90. It is
undisputed that Morales suffers from extensive physical and mental ailments including urinary
tract infections, severe gout and mental illness including depression and panic attacks. R. at 33,
43-5, 48. The combination of medications he takes, in Morales's words, "put me down when I
take [them]." R. at 44. He states that he is unable to stand for long periods of time and consistent
with that limitation, he uses a cane. R. at 41. Morales claims that his disability began on September
1, 2013, and his disability benefits filing came a bit more than six months later on March 13, 2014.
R. at 164.

I.

Treatment History
The medical records demonstrating Morales's disabilities include documentation

beginning in 1998 and continuing, principally, from 2012-2015. In 1998, Morales underwent an
MRI brain scan that showed findings of a non-operable tumor, a finding which was confirmed by
2012 and 2014 scans. R. at 241-43, 330. Separately, he was examined by Dr. Antoine Abed, a
pulmonologist, who reported that he was morbidly obese, had mild asthma, and required treatment
for sleep apnea. R. at 236. Dr. Abed believed Morales had previously suffered from an episode
of respiratory failure and ongoing acute respiratory distress syndrome, but later made a
"remarkable recovery." Id. In September 2013, Morales sought treatment from his longtime

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internist, Dr. Maria Santana, complaining of dysuria, foul smelling urine, loss of sleep, and
snoring.

R. at 283, 362. Dr. Santana diagnosed plaintiff with a urinary tract infection and

prescribed antibiotics. R. at 283, 362. In the following months, Morales returned to Dr. Santana
complaining of foul-smelling urine and infections, fatigue, gout attacks, anxiety, depression,
headaches and lower back pain. R. at 286-88, 291, 344, 365-66.
In May 2014, Dr. Santana reported that she had treated Morales every two to three months
beginning in 2007. R. 231-35. She diagnosed him with anxiety, hypertension, hyperlipidemia,
sleep apnea, gout, recurrent urinary tract infections, and pituitary adenoma. Id. His symptoms
included joint pain, dysuria, anxiety attacks, insomnia, and snoring.

R. 231.

Dr. Santana

prescribed allopurinol, colchicine, Percocet, Klonopin, and Synthroid. R. at 232. She concluded
that plaintiff was limited in his work capability by carpal tunnel syndrome, anxiety and panic
attacks. R. at 234. She also noted in her findings that Morales was overweight, experienced
shortness of breath when climbing stairs, and was limited in his ability to lift and carry. Id.
Morales's medical issues continued in the summer and fall of 2014 when he returned to Dr.
Santana complaining of recurring gout and low back pain and Dr. Santana recommended
consultation with specialist physicians. R. 294, 339, 342. In this period she repeatedly prescribed
colchichine and Percocet, and recommended diet and lifestyle changes. R. at 295, 324. Around
the same time, Dr. Ruben Dybner, a urologist, treated plaintiff for a ureteral stricture and ordered
tests which revealed a faulty liver and hepatic steatosis. R. at 264-7, 374. He was treated for
severe urinary tract infections and pus drainage, including a prostate operation. R. at 376, 378.
In addition to his physical treatments, Morales was referred for psychiatric care to Dr. Luz
Cervantes. R. at 273-74. He saw Dr. Cervantes monthly beginning in 2014, and reported panic
attacks, depression, and suicidal ideations. Id. Dr. Cervantes found that plaintiff was at risk of

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addiction to his anxiety medication, clonazepam. R. at 228. He prescribed Pristiq and Remeron
and directed him to stop taking the clonazepam. Id. He also diagnosed dysthymia and an anxiety
disorder. R. at 227. In April, May, June and July 2014, Morales reported panic attacks, anxiety
and a painful gout attack. R. at 229, 274-75. In fall of 2014, he reported difficulty getting out of
bed, bad moods and difficulty coping with stress worsened by his unemployment. Dr. Cervantes
found plaintiff was having difficulty with his activities of daily living and changed Morales's
medications to venlafaxine and Buspar. R. at 276-78.
II.

SSA Findings
In compliance with the SSA review process, Morales was examined by a psychologist and

a medical doctor. Morales reported to a psychologist, Dr. Taula Georgiou, that he had been
hospitalized in 2010 for bladder and urinary tract infections, and, in 2012, for pneumonia. R. at
251-54. Other medical issues he reported included a brain tumor, back problems, gout, asthma,
thyroid problems, sleep apnea, and high blood pressure.

Id.

Morales also complained of

depression, difficulty falling and staying asleep, decreased appetite, dysphoria, loss of interest, loss
of pleasure, concentration difficulties, fatigue, and thoughts of suicide. Id.

Morales reported

severe panic attacks two to three times a month along with sweatiness, dizziness, and breathing
difficulties. 1 Id. Dr. Georgiou observed that his patient used a cane to walk. R. at 252. He
observed, additionally, that Morales's concentration was impaired and his memory was slightly
impaired, but he was able to do simple calculations. R. at 252-53. It was noted that though Morales
was capable of bathing, dressing, and grooming himself on his own, but his physical problems
prevented him from cooking and cleaning. R. at 253. Dr. Georgiou diagnosed Morales with a

1 The roll call of Morales's medications included allopurinol, clonazepam, quinapril, proair,
Pristiq, levothyroxine, indomethacin, testosterone, buspirone, Percocet, and cabergoline. R. at
252.

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panic disorder and depressive disorder. R. at 253-54. Dr. Georgiou's report indicated that Morales
could have difficulty maintaining a regular schedule and dealing with stress. R. at 253.
Plaintiff was also examined by internist Dr. John Joseph on June 3, 2014. R. at 256. At
this examination, he presented with complaints of a herniated disc in his lumbar spine, daily back
pain, a non-operable brain tumor, gout, urinary tract infections and prior treatment for respiratory
failure. 2 Id.

Morales walked with a cane, could walk on heels and toes without difficulty, fully

squat, rise from chairs without help, and perform lumbar spine flexion to 60 degrees. R. at 257-8.
Dr. Joseph diagnosed him with low back pain, a history of herniated discs, hypertension, bronchial
asthma, history of pituitary tumor, gout, chronic urinary tract infections, anxiety, depression, and
sleep apnea. R. at 259. Dr. Joseph opined that Morales was restricted from heavy lifting and
carrying because of his herniated disc, and that he should avoid dust, smoke, and other respiratory
irritants due to his history of asthma. Id.
Standard of Review
Section 405(g) of the Act empowers district courts to review a disability decision of the
Commissioner and affirm, reverse or modify it "with or without remanding ... for a rehearing."
42 U.S.C. § 405(g); see Butts v. Barnhart, 388 F.3d 377,385 (2d Cir. 2004). But, when evaluating
a determination by the Commissioner to deny a claimant disability benefits, a reviewing court may
reverse the decision only if it is based upon legal error or if the factual findings are not supported
by substantial evidence. Lockwoodv. Comm'r ofSoc. Sec., 914 F.3d 87, 91 (2d Cir. 2019) (citing
42 U.S.C. § 405(g)). "Substantial evidence is 'more than a mere scintilla. It means such relevant

2 Dr.

Joseph noted that Morales's medications included quetiapine, levothyroxine, Pristiq,
indomethacin, testosterone, cabergoline, Busperione, Percocet, allopurinol, clonazepam,
quinapril, and ProAir. R. at 257.
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evidence as a reasonable mind might accept as adequate to support a conclusion."' Cage v.

Comm 'r ofSoc. Sec., 692 F.3d 118, 122 (2d Cir. 2012) (internal citation omitted).
Case law also cautions courts to "keep[] in mind that it 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 Watson v. Berryhill, 732 F. App'x 48, 51 (2d Cir. 2018) (summary
order). When evaluating the evidence, "[t]he court may not substitute its own judgment for that
of the [Commissioner], even if it might justifiably have reached a different result upon a de novo
review." Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991); see also Selian v. Astrue, 708 F.3d
409,419 (2d Cir. 2013) (ALJ's medical conclusion "overlooked the facts in the record and, more
egregiously, constituted an improper substitution by the ALJ of her own lay opinion in place of
medical testimony"). Nonetheless, if "there is a reasonable basis for doubt whether the ALJ
applied correct legal principles, application of the substantial evidence standard to uphold a finding
of no disability creates an unacceptable risk that a claimant will be deprived of the right to have
[his] disability determination made according to the correct legal principles." Johnson v. Bowen,
817 F.2d 983,986 (2d Cir. 1987).
Discussion

I.

Entitlement to Benefits
A "disability" justifying DIB or SSI benefits exists if the claimant demonstrates an
"inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment . . . which has lasted or can be expected to last for a continuous
period of not less than 12 months." 42 U.S.C. § 423(d)(l)(A); see Schaal v. Apfel, 134 F.3d 496,
501 (2d Cir. 1998). The impairment must be "of such severity that [the claimant] is not only unable
to do his previous work but cannot, considering his age, education, and work experience, engage

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in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. §
423(d)(2)(A). The Commissioner has adopted a five-step sequential evaluation for adjudication
of disability claims, set forth at 20 C.F.R. § 404.1520. The Second Circuit describes the process
as follows:
First, the [Commissioner] considers whether the claimant is currently engaged in
substantial gainful activity. Ifhe is not, the [Commissioner] next considers whether
the claimant has a "severe impairment" which significantly limits his physical or
mental ability to do basic work activities.

If the claimant suffers such an

impairment, the third inquiry is whether, based solely on medical- evidence, the
claimant has an impairment which is listed in Appendix 1 of the regulations. If the
claimant has such an impairment, the [Commissioner] will consider his disabled
without considering vocational factors such as age, education, and work experience
. . . . Assuming the claimant does not have a listed impairment, the fourth inquiry
is whether, despite the claimant's severe impairment, he has the residual functional
capacity to perform his past work. Finally, if the claimant is unable to perform his
past work, the [Commissioner] then determines whether there is other work which
the claimant could perform.
Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quoting Berry v. Schweiker, 675 F.2d 464, 467

(2d Cir. 1982) (per curiam)). Although the claimant bears the burden of proof as to the first four
steps, the burden shifts to the Commissioner at the fifth step. McIntyre v. Colvin, 758 F.3d 146,
150 (2d Cir. 2014).
In applying the five-step process, an ALJ must consider "(1) the objective medical facts;
(2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability

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testified to by the claimant or others; and (4) the claimant's educational background, age, and work
experience." Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (quoting Mongeur v. Heckler, 722
F.2d 1033, 1037 (2d Cir. 1983)); see also Cammy v. Colvin, No. 12-CV-5810 (KAM), 2015 WL
6029187, at *10 (E.D.N.Y. Oct. 15, 2015). Where the information in the record is inconsistent,
the Commissioner can weigh the relevant evidence to determine whether the claimant is
disabled. 20 C.F.R. § 404.1520b(b). The ALJ need not address every conflict in the record, but
"the crucial factors in any determination must be set forth with sufficient specificity to enable [the
court] to decide whether the determination is supported by substantial evidence." Ferraris v.

Heckler, 728 F.2d 582, 587 (2d Cir. 1984).
II.

The ALJ's Opinion
There is no question that, procedurally, the ALJ followed the prescribed five-step format
in analyzing Morales's claims. At step one, she found that plaintiff has not engaged in substantial
gainful activity since the alleged disability onset date of September 1, 2013. R. at 15. At step two,
the ALJ found that Morales has severe impairments satisfying the de minimis standard of severity
and causing more than minimal functional limitations to do basic work-related activities. R. at 15.
However, at step three, she found his impairments did not meet or medically equal the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix, specifically, Sections
3.00, 5.00, 6.00, 9.00, 11.00 and SSR-02-lp. R. at 16. The ALJ concluded, as a result, that no
impairment singly or in combination was severe enough to cause a "marked" limitation. R. at 16,
17. The ALJ did not consider Morales's gout at this stage. Id.
Completing her analysis on this case, the ALJ found that Morales has the residual
functional capacity to perform less than a full range of medium work yet determined he could lift
and carry up to 50 pounds occasionally and 25 pounds frequently. R. at 17. 20. In reaching this

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determination, the ALJ focused on lack of evidence of back pain to illustrate Morales's ability to
perform a range of medium work. R. at 19. Then, at step four, the ALJ found Morales unable to
perform his past relevant work based on his physical and mental limitations. R. at 13,
20. Nonetheless, at step five, relying on vocational expert Andrew Pasternak's testimony, the ALJ
found that Morales could perform jobs that exist in sufficient numbers in the national economy
such as "hand packager," "warehouse worker," and "landscape specialist." R. at 21.
III.

The Treating Physician's Rule
The treating physician rule mandates that, in reaching her final disability determination, an

ALJ must give "controlling weight" to the opinion of the claimant's treating physician or
psychiatrist as to the nature and severity of the patient's physical and/or mental impairments if that
opinion 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). Although the ultimate determination of disability is left to the ALJ it is clear that
"a statement by a treating source that a claimant is disabled should not be disregarded," Arruda v.
Comm 'r of Soc. Sec., 363 F. App'x 93, 96 (2d Cir. 2010) (citation omitted). When an ALJ does

not give the treating source's opinion controlling weight, the ALJ "must explicitly [show her
consideration of]," among other things, "(l) the frequen[ c]y, length, nature, and extent of
treatment; (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" in
determining the proper weight to give the opinion. Greek v. Colvin, 802 F.3d 370, 375 (2d Cir.
2015); see also Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004); Schisler v. Sullivan, 3 F.3d
563, 567-68 (2d Cir. 1993). The determination by the ALJ that Morales does not qualify for DIB

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cannot survive without a clear expression ofreasoning as to why the opinion of Morales's treating
medical professionals should be discounted. No such explanation is present in the ALJ's decision.
At the top of the error list here is the ALJ's disregard of Dr. Santana's opinion in her final
disability determination. The ALJ relied on some of Dr. Santana's findings, such as plaintiffs
ability to sit, stand, and walk, but discounted other findings which would favor a disability
determation as "imprecise."

R. at 18. This was error.

"Even under the current amended

regulations, which give an ALJ more discretion to 'determine the best way to resolve the
inconsistency or insufficiency' based on the facts of the case, the first option is still to recontact
the treating physician." Rolon v. Comm 'r ofSoc. Sec., 994 F. Supp. 2d. 496,505 (S.D.N.Y. 2014).
In the ultimate disposition, despite the ALJ's claim that she placed great weight on the
treating physicians' opinions, she discounted their opinions where they supported a finding of
disability. R. at 16-17. Failure to properly apply the treating physician rule, like not applying it
at all, constitutes an error of law. Where a district court, as here, finds a " ... reasonable basis for
doubt whether the ALJ applied correct legal principles, application of the substantial evidence
standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be
deprived of the right to have her disability determination made according to the correct legal
principles." Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987). There is such a "reasonable
basis for doubt" in this case. Id. The ALJ failed to consider, in any consistent fashion, the evidence
from Dr. Santana related to Morales's gout. The ALJ also violated the treating physician rule at
step four by not considering Dr. Cervantes's findings. As a result of her cherry picking, the ALJ
did not give full consideration to two categories that would demonstrate "marked" limitations, and
support a finding of disability, under Sections 11.00 and 14.00 and failed to explain her reasoning
as to why.

The error list does not stop there. Next on it, the ALJ erred in determining Morales's
residual functional capacity by failing to give appropriate weight to Morale's gout in her
evaluation, in the face of repeated findings that he suffered from gout attacks and his own
testimony that gout caused him to leave his previous employment. R. at 17. Although gout is one
of the main symptoms in Morales's claim of disability, the ALJ's only note was that gout
symptoms presented a de minimis standard of severity not rising to a sufficient level to cause
limitation. R. at 15. In testament to the inadequacy df this determination, the ALJ weakly points
to Dr. Santana's notes and claimed that they documented no longitudinal treatment for significant
symptoms suggesting incapacity for a full range of medium work. At the same time, importantly,
there is no discussion of how Morales's gout would affect his ability to perform a full range of
medium work. R. at 19. But, notwithstanding the gap in the findings, the ALJ determined that
Morales had the residual functional capacity to perform less than a full range of medium work. In
short, not rationalizing it with her finding that Morales could not perform a full range of medium
work, she went on to reach the conclusion, without medical evidence that Morales could carry 25
pounds regularly and 50 pounds occasionally. This determination was made, moreover, without
rebutting Dr. Santana's records showing that Morales was consistently prescribed medications for
his lower back pain, and gout attacks. R. at 286, 288, 291, 294-96. At any rate, the ALJ's
determination at step four finding Morales not disabled fails to consider gout, and therefore, the
conclusion reached in step five of not disabled fails to consider all relevant factors. R. at 16-17.
Conclusion
For the foregoing reasons, plaintiffs motion for judgment on the pleadings is granted and
the Commissioner's cross-motion is denied, the final order of the Commissioner is reversed, the
decision of the ALJ is vacated, and the matter is remanded for further proceedings consistent with

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this Order. The Clerk of Court is directed to enter judgment accordingly and to close this case for
administrative purposes.
So Ordered.
Dated:

Brooklyn, New York
January 17, 2020

s/ Eric N. Vitaliano
ERIC N. VITALIANO
United States District Judge

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