DeJesus Gonzalez v. Commissioner of Social Security
MEMORANDUM DECISION AND ORDER denying 11 Motion for Judgment on the Pleadings; granting 13 Motion for Judgment on the Pleadings. The Clerk shall enter judgment accordingly, dismissing the complaint. Ordered by Judge Brian M. Cogan on 3/19/2017. (Cogan, Brian)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------RADAMES DEJESUS GONZALEZ,
- against COMMISSIONER OF SOCIAL SECURITY,
COGAN, District Judge.
Plaintiff seeks judicial review of the determination of the Commissioner of Social
Security, following a hearing before an Administrative Law Judge (“ALJ”), finding that he was
not disabled for purposes of qualifying for supplemental security income benefits despite his
severe impairments of major depression, post-traumatic stress disorder, degenerative disc
disease, and history of chronic obstructive pulmonary disease. Although plaintiff alleges that the
ALJ’s decision was not supported by substantial evidence, I have little doubt that on the record
as it stands, there is substantial evidence to support the ALJ’s decision. However, plaintiff also
contends that the ALJ committed four errors that distort the record, and that these errors
overshadow the picture of plaintiff’s condition that might otherwise exist.
Plaintiff is correct that the ALJ’s decision contains several observations and
findings that are contradicted by the record, which the Commissioner has acknowledged in this
proceeding. The issue is whether, singly or collectively, those mistakes were material to the
decision such that a remand is necessary. See Cillari v. Colvin, No. 13CV4154, 2015 WL
1433371, at *21 (S.D.N.Y. March 30, 2015) (“Any error made by the ALJ . . . was . . .
immaterial and provides no basis for reversal or remand.”); Gonzalez v. Colvin, No. 14-CV6206, 2015 WL 1514972 at * 19 (S.D. N.Y. April 1, 2015) (“Any shortcoming in the ALJ’s
explanation is harmless error that does not require remand.”); Zubizarreta v. Astrue, No. 08 CV
2723, 2010 WL 2539684, at * (E.D.N.Y. June 16, 2010) (declining to remand even though the
ALJ failed to properly apply the treating physician rule because it would be “futile” as correct
application of the rule would lead to the same conclusion); see also Johnson v. Bowen, 817 F.2d
983, 986 (2d Cir. 1987) (where application of the correct legal principles to the record could lead
to only one conclusion, there is no need to require agency reconsideration).
Plaintiff’s points of error are: (1) the ALJ misperceived the relationship between
plaintiff and two of his treating physicians, and, for that reason, misapplied the treating physician
rule; (2) the ALJ did not fulfill his duty to complete the medical record, as the records that he had
from one treating physician suggested that there were more records, and the ALJ discounted the
treating physician’s opinion because of the lack of records; (3) the ALJ erred in finding that
plaintiff can communicate in English; and (4) there were technical defects in the testimony of the
The last of plaintiff’s points of error is disposed of easily. Plaintiff’s objection to
the vocational expert is twofold: (a) the ALJ did not “qualify” the vocational expert, i.e., show
him to have the expertise to give vocational testimony; and (2) the ALJ did not give plaintiff’s
attorney the opportunity to object to the vocational expert giving testimony. It is true that the
ALJ did not demonstrate that the vocational expert, referred to in the transcript of the hearing
only as “Mr. Vaughn,” had any qualifications at all. The record, which usually contains a
resume of the vocational expert, does not even indicate the vocational expert’s first name except
in the ALJ’s decision, let alone any information on his expertise. It would have been better
practice to have completed the record.
However, plaintiff was represented by the same law firm who has appeared for
him in this review proceeding. The lawyer from that firm cross-examined the vocational expert
and did not object to his testimony. The fact that counsel had – and used – the opportunity to
cross-examine directly disposes of plaintiff’s claim that he had no opportunity to object to the
expert – an opportunity to cross-examine necessarily includes an opportunity to object to the
It also disposes, albeit less directly, of the claim that the absence of testimony on
qualifications was a material error. This is not a pro se case. If counsel didn’t ask about
qualifications, it must be inferred that he knew the expert and was satisfied with his
qualifications. In effect, counsel is asking the Court to excuse what could only be, if it were
material, his own ineptitude. But the point is purely technical, and insufficient to require remand
even in combination with other errors in the record that might.
The other points of error also arise from mistakes or alleged mistakes by the ALJ.
First, one of plaintiff’s psychiatrists, Dr. Dalia Olivier, filled out a medical source statement in
May, 2014 (the “Olivier MSS”) as to plaintiff’s mental condition – a checklist of symptoms –
which, if viewed in isolation, would seem to weigh heavily in support of a finding of disability.
The ALJ gave Dr. Olivier’s opinion “little weight” because the records
show that Dr. Olivier only treated the claimant for only two months from May
through July, 2012. Thus, Dr. Olivier had not treated the claimant in nearly two
years at the time he [sic] rendered his [sic] opinions . . . and did not possess a
longitudinal understanding of claimant’s history and symptoms.
That was at least partially wrong. In fact, the record contains treatment notes showing that Dr.
Olivier treated plaintiff twice more, in September and December 2012. So the longitudinal
relationship was not as short as the ALJ thought – it was eight months, not three months.
In addition, Dr. Olivier’s treatment overlapped to a large extent with treatment
that plaintiff received from her colleague, a psychologist named Dr. Juan Rodriguez – both of
them were at Lutheran Family Health Center (“Lutheran Family”). In fact, as the ALJ alluded
to, plaintiff had also been evaluated by Lutheran Family social workers on two occasions in the
end of April and the beginning of May 2012. Lutheran Family issued two treatment plans on Dr.
Rodriguez’s letterhead that were signed by Dr. Olivier. (Plaintiff considers these to be treatment
notes, but they are not.) According to the Olivier MSS, the arrangement was for Dr. Olivier to
see plaintiff monthly and Dr. Rodriguez to see him every two weeks. Although the treatment
notes do not quite reflect that schedule, Dr. Olivier saw plaintiff, starting in May 2012, on five of
the sixteen sessions that plaintiff had between the two of them. This means that Dr. Rodriguez
and Dr. Olivier conducted the sessions on about a two-to-one ratio, respectively.
For these reasons, it can only be fair to conclude that Dr. Olivier, the psychiatrist,
and Dr. Rodriguez, the psychologist, were jointly treating plaintiff on his emotional issues. I
therefore think the ALJ was incorrect, not only as to the dates that plaintiff was receiving therapy
at Lutheran Family from Dr. Olivier, but also in isolating Dr. Olivier’s treatment without
recognizing that this treatment was part and parcel of Dr. Rodriguez’s treatment.
The question is, again, whether the ALJ’s misconception was material. I agree
with the Commissioner that it was not. First, the two treatment notes of Dr. Olivier that the ALJ
overlooked, from September and December of 2012, show plaintiff’s condition as less impaired
than just about any of her prior treatment notes. Although Dr. Olivier noted his mood as
“depressed” on September 12 – after all, there is no dispute that plaintiff is suffering from
depression – she also noted that his attitude was “cooperative, well-related”; his speech was
“clear, normal”; his thought process was “intact, logical, goal-oriented;” his thought content was
“unremarkable;” his insight and judgment were “fair;” and he had no perceptual disorders or
suicidal ideation. Dr. Olivier further noted that her assessment of plaintiff was “improved.”
All of her prior treatment notes are similar but assessed him as either “stable” or “unimproved.”
She also noted on September 12 that plaintiff “reports feeling well, no new issues. Patient calm,
relates well, mental status is unremarkable.”
Her other overlooked treatment note from December 26, 2012, assessing plaintiff,
without explanation, as “relapsing,” was otherwise the same as her September 2012 treatment
note. The December 26th note also stated that plaintiff was “feeling better, less anxious. Mood
has improved. Patient calm, relates well, mental status unremarkable.”
Even if the ALJ had viewed Dr. Rodriguez and Dr. Olivier as a single treating
physician, this would not have assisted plaintiff because Dr. Rodriguez was more positive
throughout his treatment of plaintiff. Of Dr. Rodriguez’s eleven treatment notes, seven assessed
plaintiff’s mood as “euthymic,” and all but one of the remaining notes were from the beginning
of the treatment period. Having reviewed all of Dr. Olivier and Dr. Rodriguez’s treatment notes,
I do not see how an ALJ could rely on them to support a finding of disability.
For this reason, although the ALJ discounted the Olivier MSS for the wrong
reason, he was clearly right to discount it. Many if not most of the findings in it are not only
unsupported by the record, but are flatly contradicted by it. For example, Dr. Olivier noted that
plaintiff had suicidal ideation, but every treatment note, including Dr. Rodriguez’s treatment
notes, states “no” next to that field. Dr. Olivier’s primary diagnoses on the MSS from the DSM-
IV was 296.34, which is a “severe” major depressive disorder “with psychotic features,” and
309.81, which is “Posttraumatic Stress Disorder,” but every primary diagnosis in her and Dr.
Rodriguez’s treatment notes was 296.32, which is “moderate” major depressive disorder without
any psychotic features. In addition, although every treatment note has multiple diagnoses, none
mentions PTSD. In fact, despite the “psychotic features” diagnosis on the Olivier MSS, there is
absolutely nothing in the treatment notes that suggests anything near psychosis or a psychotic
Similarly, the Olivier MSS listed “poor memory” as one of plaintiff’s symptoms,
but every treatment note that addressed plaintiff’s memory stated “memory intact.” In the same
vein, Dr. Olivier said the highest Global Assessment of Functioning (“GAF”) score plaintiff had
was 50, which would mean “serious symptoms, (e.g., suicidal ideation, severe obsessional
rituals, frequent shoplifting) or any serious impairment in social, occupational, or school
functioning (e.g., no friends, unable to keep a job),” Access Behavioral Health, “Global
Assessment of Functioning,” at
visited March 18, 2017), but there is nothing in the treatment notes or diagnoses mentioning a
GAF score at all, nor any notes that would reflect anywhere near that level of impairment.
I do not know why Dr. Olivier’s MSS deviates so significantly from her and Dr.
Rodriguez’s treatment notes, especially since no mental health provider from Lutheran Family
had seen plaintiff for eighteen months when Dr. Olivier completed the MSS. It is clear that in
completing the MSS, Dr. Olivier set out to make plaintiff seem more impaired than she had ever
evaluated him to be. But I am not about to remand the case so that another ALJ can reach the
same inevitable conclusion that this ALJ reached – that there is no support for Dr. Olivier’s
opinions as expressed in the MSS – just so that the proper ground for discounting it can be
stated. That would be a waste of everyone’s time.
Before leaving the topic of Dr. Olivier and Dr. Rodriguez, I would also note that
Dr. Rodriguez’s opinion, which was expressed in a short note to plaintiff’s employer on June 24,
2013, suffers from the same infirmities, and the ALJ properly discounted it. Dr. Rodriguez’s
opinion, on which plaintiff heavily relies, varies less from the treatment notes than the Olivier
MSS, and is even accurate in some observations, but its main purpose was to express Dr.
Rodriguez’s opinion that plaintiff could not handle his workload for at least six months. I think
the ALJ properly discounted his opinion, not only because nothing in the treatment notes
suggested that plaintiff could not work, but also because, as the ALJ noted, the determination of
whether a claimant can work is reserved to the Commissioner. See Snell v. Apfel, 177 F.3d 128,
133 (2d Cir. 1999).
Plaintiff’s third claim of factual error by the ALJ is very likely not an error at all.
Plaintiff relies on a medical source statement completed by Dr. Marwa Mohammed Moussa, an
internist at Lutheran Family, on April 29, 2013 (the “Moussa MSS”). This evaluation, once
again, would weigh heavily in support a finding of disability – for example, Dr. Moussa opined
that plaintiff could not sit for more than one hour or walk for more than two hours in an eight
hour period. However, the ALJ gave the Moussa MSS “little weight” because Dr. Moussa “on
the first page of her [sic] statement . . . stated that she [sic] had only begun treating the claimant
30 minutes earlier.” The ALJ was referencing a field on the MSS that asked: “Name, frequency,
and length of contact,” where Dr. Moussa hand-wrote in, “30 minutes.”
Plaintiff claims that the ALJ misconstrued Dr. Moussa’s “30 minutes” notation,
arguing that he must have been referring to how long it took him to fill out the MSS and
therefore Dr. Moussa should have received all of the deference normally afforded to a treating
physician. Plaintiff bases this argument on two documents in the record: (a) a prescription form
that Dr. Moussa signed on April 18, 2012, for an inhaler that plaintiff used for his asthma; and
(b) three of Dr. Rodriguez’s treatment notes towards the end of 2012, which contain a reference
at the top to “PCP” (I assume that is “primary care physician,” or “primary care provider”),
followed by Dr. Moussa’s name. Because of these documents, plaintiff criticizes the ALJ for
failing to develop the record by not obtaining other records from Dr. Moussa, and for
discounting the Moussa MSS because Dr. Moussa purportedly met plaintiff for only 30 minutes.
It is, again, ironic that the same law firm that represented plaintiff at the hearing is
accusing the ALJ of failing to obtain records when counsel at the hearing never alerted the ALJ
to any gaps in the record. Plaintiff relies on Perez v. Charter, 77 F.3d 41, 47 (2d Cir. 1996), for
the rule that an ALJ must develop the record even if a claimant is represented by counsel.
Although that oft-quoted dictum is accurate, I have not seen any case applying that rule to a
situation where the alleged gap in the record is a theory of counsel in hindsight, rather than one
that should have been reasonably apparent to the ALJ. An ALJ will generally be found to have
breached his duty where there were obvious deficiencies in the record. If plaintiff’s attorney
wanted to come up with a creative theory on how there might be more documents, he needed to
have done it before the ALJ, not in a review proceeding. Cf. Jordan v. Comm'r of Soc. Sec., 142
F. App’x 542, 543 (2d Cir. 2005) (summary order) (finding that the ALJ fulfilled his duty to
develop the record where counsel volunteered to obtain documents from the plaintiff’s treating
physician; the ALJ kept the record open to allow counsel to submit the documents; counsel later
advised that he had “nothing further to add”; and counsel did not request the ALJ to help him
obtain the documents); Alachouzos v. Comm’r of Soc. Sec., No. 11 Civ. 1643, 2012 WL
601428, at *6 (E.D.N.Y. Feb. 23, 2012) (noting that although the fact that plaintiff was
represented at the administrative hearing by counsel does not reduce the ALJ’s duty to obtain
records even if the attorney does not request them, “it is of more than passing interest that
plaintiffs counsel not only did not identify any missing records when he was before the ALJ . . .
or raise this point on his administrative appeal from that decision . . . . ”). That is entirely
reasonable considering that all a plaintiff’s attorney needs to do to validate his theory is get his
client’s history to determine if there should be more records.
Both sides, and the ALJ, seem to have failed to recognize that the most accurate
way to understand how to view plaintiff’s care from a treating physician perspective is to look at
his relationship with Lutheran Family in its totality and how that institution provided care to him.
He saw many doctors, social workers, and other professionals at Lutheran Family, and it was
where he would go if he had any ailment – some of which are immaterial to this proceeding –
that he felt needed to be treated. In a practical sense, it was Lutheran Family that was providing
his care rather than any one physician.
Thus, there are a number of doctors whose prescription forms appear in the
record, not just the one from Dr. Moussa. There are also prescriptions from Dr. Levin, Dr. Ali El
Atat, and Dr. Ahmad. Almost all of Dr. Olivier and Dr. Rodriguez’s notes, except the three that
plaintiff highlights, list plaintiff’s “PCP” as “Community PCP,” not Dr. Moussa. Additionally,
when plaintiff needed a lesion removed from his nose in May of 2012, his PCP was listed as Dr.
Naggar, an internist. Other forms show his “Attending Physician” as Dr. Nawaiz Ahmad, a
plastic surgeon and orthopedist. Further, when plaintiff was treated for the flu as late as
September as 2014, a condition that might be worrisome for someone with COPD and asthma, it
was not Dr. Moussa who treated him, but Dr. El Atat.
Because of the way Lutheran Family provided plaintiff with care (and I am not
criticizing that in any way), there is no mystery as to why Dr. Moussa would have written a
prescription, appeared as PCP on three of the sixteen mental health treatment notes, or filled out
an MSS. When plaintiff needed a new inhaler, it could have just as easily been Dr. Naggar or
Dr. El Atat who wrote the prescription. Similarly, while Dr. Rodriguez listed Dr. Moussa as the
PCP on three of his eleven treatment notes, for whatever reason, he could have just as easily
listed either of the other internists. The fact is that plaintiff’s COPD/asthma was under good
control – the ALJ was being indulgent when he found it to be a “severe” impairment – so he
usually did not need an internist.
When the Commissioner asked for a medical MSS from Lutheran General,
somebody had to fill it out, and that happened to be Dr. Moussa. There wasn’t very much to
report. We know this because the ALJ made requests for documents from Lutheran Family on at
least three occasions, and it produced voluminous records. The presence of one prescription
from Dr. Moussa, and cross-references by Dr. Rodriguez to Dr. Moussa on three occasions, is
insufficient to trigger on obligation of the ALJ to hunt for more.
Finally, plaintiff asserts that the ALJ improperly found that he could communicate
in English. Plaintiff is correct. Indeed, the ALJ even noted at the hearing that plaintiff could not
communicate in English. The error is so blatant that I am almost inclined to believe that when
the ALJ wrote, “claimant has a limited education and is able to communicate in English,” he
inadvertently dropped the word “not.” This possibility is supported by the fact that in framing
the hypothetical to the vocational expert, the ALJ included the assumption that the individual
could not speak English. In any event, as the Commissioner points out, the error is not material
for precisely this reason – with the vocational expert having assumed an inability to
communicate in English, the ALJ’s analysis would not have changed.
In sum, this was far from a perfect decision based on a careful review of the
record. Nevertheless, the errors that the ALJ made are immaterial because the conclusion is
sound and based on the record.
Plaintiff’s motion for judgment on the pleadings is denied, and the
Commissioner’s motion is granted. The Clerk shall enter judgment accordingly, dismissing the
Digitally signed by Brian M.
Dated: Brooklyn, New York
March 19, 2017
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