Baez v. Colvin

Filing 16

OPINION & ORDER denying plaintiff's 11 Motion for Judgment on the Pleadings; granting the Commissioner's 13 Motion for Judgment on the Pleadings. The Clerk of Court is directed to enter judgment in favor of defendant. Ordered by Judge Nina Gershon on 3/11/2019. (Barrett, C)

FILED

IN CLERK'S OFFICE
U.S. DISTRICT COURT E.D.N.Y.

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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WILLIAM BAEZ,

Plaintiff,

MAR \ \ 20\9

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BROOKLYN OFFICE

OPINION & ORDER

- against -

16-cv-6372 (NG)

NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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GERSHON, United States District Judge:

Plaintiff William Baez is a 52-year-old high school graduate who applied for Supplemental
Security Income benefits on August 22, 2013, claiming that he became disabled on March 1,2010.
(Administrative Record ("AR") 178-86). Plaintiff's application w s initially denied on October
21, 2013. (AR 86-89). Plaintiff then requested a hearing, which w s held on February 18, 2015
before Administrative Law Judge Mark Solomon (the "ALJ"). (AR 0, 52-73). By decision dated
April 21, 2015, the ALJ affirmed the denial of benefits. (AR 34-51) The ALJ found that plaintiff
had severe physical impairments, but that plaintiffs mental impairments were non-severe. (AR
34-51 ). Despite plaintiff's physical impairments, the ALJ determined that he had the residual
functional capacity to perform light work with non-exertional limitations. (AR 42-46).
On June 3, 2015, plaintiff requested review of the ALJ's decision by the Appeals Council.
(AR 30-33).

The Appeals Council considered additional materials, specifically a brief by

plaintiff's counsel dated February 12, 2016 to the Appeals Council seeking to have the ALJ's
decision vacated, records from Union Square Medical Imaging dated April 6, 2015, and multiple
records from plaintiff's internist, Alvin Lindsay, M.D. (AR 4-10). On July 20, 2016, the Appeals

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Council denied plaintiffs request for review, and the decision of the ALJ became the final decision
of the defendant Commissioner of Social Security (the "Commissioner"). (AR 4-10).
On November 16, 2016, plaintiff commenced this action seeking reversal of the
Commissioner's decision under Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). On
May 22, 201 7, plaintiff moved for judgment on the pleadings to have the decision of the
Commissioner remanded for a new hearing and decision. On July 21, 2017, the Commissioner
submitted her opposition to plaintiffs motion and moved for judgment on the pleadings.
Essentially, plaintiff challenges the ALJ's determination that he has no severe mental impairments;
he argues that the ALJ improperly weighed the opinion of his treating physician and failed to
properly evaluate plaintiffs credibility regarding his claimed mental impairments.

ST AND ARD OF REVIEW
A district court's review of a Commissioner's final decision regarding disability is limited.
Absent legal error, a finding by the Commissioner that a claimant is not disabled is conclusive if
supported by substantial evidence. 42 U.S.C. § 405(g). "Substantial evidence is more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion." Consol. Edison Co. ofN.Y v. N.L.R.B., 305 U.S. 197,229 (1938). Thus, where the
court finds that substantial evidence exists to support the Commissioner's determination, the
decision will be upheld, even if contrary evidence exists. See DeChirico v. Callahan, 134 F.3d
1177, 1182 (2d Cir. 1998). This standard applies not only to findings of fact but also to inferences
and conclusions drawn from such facts. D 'Amato v. Apfel, 2001 WL 776945, at *3 (S.D.N.Y. July
10, 2001).
A district court must also determine whether the ALJ applied the correct legal standards.

Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999). An error of law that might have affected the

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disposition of the case provides grounds for reversal. Townley v. Heckler, 748 F.2d 109, 112 (2d
Cir. 1984). Thus, I conduct a de novo review to determine whether the correct legal principles
were applied and whether the legal conclusions reached by the ALJ were based on those principles.
See id.

DISCUSSION
I.

Whether the ALJ Failed to Properly Weigh the Medical Evidence

Plaintiff first argues that, despite a "low threshold requirement," the ALJ did not find a
severe mental impairment because "the ALJ gave 'little weight' to the opinions from his treating
psychiatrist Dr. [Fernando] Taveras." Plaintiff contends that the ALJ erred in placing "some
weight" on the opinions of examining psychologist Haruyo Fujiwaki, Ph.D., and non-examining
consulting psychologist, V. Reddy, Ph.D., instead of giving "controlling weight" to his treating
physician. Plaintiff further argues that the ALJ's finding that Dr. Taveras's opinions conflict with
"unremarkable status examinations" is "wholly rebutted by the record," and, as a result, the ALJ
erred in finding that plaintiff has no severe mental impairment.
Plaintiff is correct that the Code of Federal Regulations establishes that a treating
physician's opinion will be given controlling weight if the opinion is "well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in [the Plaintiffs] case record." 20 C.F.R. § 404.1527(c)(2). However, the
deference afforded to a treating physician's opinion may be reduced upon consideration of other
factors, including the length and nature of the treating doctor's relationship with the patient, the
extent to which the medical evidence supports the doctor's opinion, whether the doctor is a
specialist, the consistency of the opinion with the rest of the medical record, and any other factors
"which tend to ... contradict the opinion." Micheli v. Astrue, 501 Fed. Appx. 26, 28 (2d Cir. 2012)

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(quoting 20 C.F.R. § 404.1527(c)(2)(i)-(ii) and (c)(3)-(6)); accord Halloran v. Barnhart, 362 F.3d
28, 32 (2d Cir. 2004). Additionally, "[a] physician's opinions are given less weight when his
opinions are internally inconsistent." Micheli, 501 Fed. Appx. at 28 (citing Michels v. Astrue, 297
Fed. Appx. 74, 75 (2d Cir. 2008)).
By way of background, plaintiff was first seen in Dr. Taveras's clinic by Mencia Gomez
de Vargas, M.D., on February 26, 2014. 1 (AR 788-89). On that first date, Dr. Gomez de Vargas
described plaintiff as "anxious," but his mood was "normal," his affect was "appropriate," his
thinking was "logical," and his social judgment appeared "fair."

(AR 788).

Plaintiff also

"convincingly denied symptoms of depression." (AR 788). When plaintiff was next seen by Dr.
Gomez de Vargas on November 4, 2014, plaintiff "denie[d] any psychiatric problems or
symptoms," and Dr. Gomez de Vargas noted that "[n]o signs of anxiety are present. Insight and
judgment are intact."

(AR 790).

Plaintiff was again described as having "no signs of

depression[.]" (AR 790). On December 3, 2014, plaintiff was seen by Yvanka Pachas, M.D., in
Dr. Taveras's clinic. (AR 792-93). At that visit, plaintiff "report[ ed] to be stable under present
treatment." (AR 792). The following month, on January 5, 2015, plaintiff saw Dr. Taveras
himself, for the first and only time, after the previous psychiatrist left the clinic. (AR 684). Dr.
Taveras reported that "[s]igns of mild depression are present" and also noted that plaintiff had
"difficulty sleeping." (AR 794). However, in that same visit, Dr. Taveras indicated that plaintiff
was "fully communicative," and his "[v]ocabulary and fund of knowledge indicate cognitive
functioning in the normal range. Insight into problems appears fair. Social judgment appears fair.
There are no signs of anxiety. There are no signs of hyperactive or attentional difficulties." (AR

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Plaintiffs brief states that Dr. Taveras evaluated plaintiff with Dr. Gomez de Vargas on February
26, 2014. The record does not support this statement.
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794).
Nevertheless, Dr. Taveras completed a Mental Impairment Questionnaire dated February
19, 2015 in which Dr. Taveras indicated that multiple areas of plaintiffs mental capacity presented
a "marked" degree of limitation, such as his concentration and persistence and social interactions.
(AR 682-86). The Questionnaire also asked the preparing physician to "list and discuss any other
clinical findings which support your diagnosis and assessment." (AR 684). In response, Dr.
Taveras provided only that plaintiff "has described his mood as depressed and anxious." (AR
684).
Upon review of the record, I conclude that the ALJ did not err in declining to give
controlling weight to Dr. Taveras's opinion because nothing in Dr. Taveras's statements on the
Questionnaire or in the treatment notes supports Dr. Taveras's opinion that plaintiff had "marked"
limitations in his understanding, memory, concentration, social interactions, or adaptation. Dr.
Taveras's opinion was also inconsistent with the bulk of plaintiffs medical records, as well as
plaintiffs own testimony at the hearing.

Specifically, plaintiffs lengthy medical records

frequently describe him as having a stable mood, appropriate affect, and logical thought
processing.

He is typically described as having anxiety that is appropriately controlled by

medication, and the only visits where his anxiety is not under control appear to coincide with
changes to his medication, such as changes to prescriptions or his loss of previously filled
prescriptions. Those appointments mentioning anxiety coincide with plaintiff running out of his
preferred medication, and the anxiety is not mentioned in the intervening appointments where his
physical ailments alone are addressed. Moreover, the records amply indicate that there were no
side effects from the medication. At the hearing, plaintiff credibly explained how he was able to
perform a variety of tasks, including shopping, laundry, and cooking, and able to live with

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roommates. (AR 57-62). Notably, the only specific reference to his mental impairment at the
hearing was a statement that when he engages in social interactions, he "get[s] panicked. [He]
get[s] anxiety and [has] difficulty relating because [he has] bipolar disorder." (AR 63).
The ALJ was permitted to consider the internal inconsistencies between Dr. Taveras's
opinion and his treatment notes and the inconsistencies between Dr. Taveras's opinion and the
records of the other treating and consulting physicians, and then to assign less weight to Dr.
Taveras's opinion as a result. Vanterpool v. Colvin, 2014 WL 1979925, at *16 (S.D.N.Y. May 15,
2014); accord Camille v. Colvin, 104 F. Supp. 3d 329, 341 (W.D.N.Y. 2015), ajf'd, 652 Fed.
Appx. 25 (2d Cir. 2016); Montaldo v. Astrue, 2012 WL 893186, at *15 (S.D.N.Y. Mar. 15, 2012).
There are some medical records that suggest a greater degree of impairment than the ALJ
found. Dr. Fujiwaki, a psychologist, found moderate impairments in plaintiffs ability to learn
new tasks and to perform complex tasks independently and found that he could work only in a
"structured environment." (AR 508-11). Additionally, Dr. Lindsay, an internist, opined that
plaintiff could not work in part as a result of his mental impairments. (AR 808-09). Plaintiff also
points to approximately a dozen records in which he is described as depressed and/or irritable.
Most of those records, however, describe plaintiff as "mildly depressed" and thus do not compel a
finding that he has a severe impairment. As a result, the ALJ did not err in concluding that the
record as a whole did not support Dr. Taveras's opinion.
In addition, while Dr. Taveras stated in his Questionnaire that he saw plaintiff monthly for
a year, the records reflect that plaintiff was seen only three times by other doctors in Dr. Taveras'
clinic from February 2014 through December 2014 and by Dr. Taveras himself once on January

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5, 2015.

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(AR 788-95). Accordingly, the rationale for the presumption of controlling weight-

continuity of treatment and doctor/patient relationship development-is not applicable here. In
fact, the opinions of Dr. Taveras and Dr. Fujiwaki are each based on a single visit with plaintiff
and review of his medical records.
I agree with plaintiff that the ALJ's decision to give "some weight'' to the opinion of Dr.
Reddy, the non-examining consulting psychologist, is troubling, especially in light of other
available examining medical professionals. However, given the weight of the other evidence, I
find that the ALJ would have reached the same conclusion even if he had given no weight to Dr.
Reddy.

It is true, as plaintiff argues, that the standard for finding a mental impairment to be severe
is modest. However, as the Commissioner argues, even if the ALJ erred in finding plaintiffs
mental impairment non-severe, "this error was harmless, as the ALJ considered both [plaintiffs]
severe and non-severe impairments as he worked through the later steps." Rivera v. Colvin, 592
Fed. Appx. 32, 33-34 (2d Cir. 2015). While the ALJ did not find that plaintiff has a severe mental
impairment, he considered his mental limitations in determining plaintiffs ability to work.
Specifically, he provided the vocational expert with a hypothetical for a person who could only do
"simple, repetitive work." (AR 68-69). As a result, the residual functional capacity finding
reflects the degree of limitation the ALJ found in the mental function analysis.
I therefore conclude that the ALJ's decision to discount the weight afforded Dr. Taveras's
opinion and his determination that plaintiff does not have a severe mental impairment are without

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The record contains notations of prescriptions written by Dr. Gomez de Vargas on April 9, 2014
and June 2, 2014, but no medical records indicating visits on those dates. (AR 790-91). However,
even if those dates reflect visits of plaintiff to Dr. Gomez de Vargas (as opposed, for example, to
a simple prescription refill), they would not change my opinion regarding the weight given to Dr.
Taveras' s opinion by the ALJ.
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legal error and are supported by substantial evidence.
II.

Whether the ALJ Properly Evaluated Plaintifrs Credibility
Plaintiff also argues that the ALJ erred by using "boilerplate" language to indicate that he

found plaintiffs statements to be "not entirely credible," without making any "credibility findings
related to [plaintiffs] statements on his psychiatric impairments[.]" According to plaintiff, he
"gave detailed testimony on his depressive symptoms and resulting limitations, his limited
activities of daily living, and his lack of significant or sustained response to treatment," but the
ALJ "failed to consider any of the seven factors in the Regulations regarding [plaintiffs] medically
determinable impairment of depression."
As an initial matter, nothing in plaintiffs testimony regarding his daily living and claimed
lack of significant or sustained response to medical treatment required a finding of severe mental
impairment. Nevertheless, the ALJ did specifically support his finding that plaintiffs "statements
concerning the intensity, persistence and limiting effects of these symptoms are not entirely
credible." (AR 43). For example, the ALJ's decision mentions that plaintiffs history of drug
arrests, while "clearly not dispositive on the issue of disability, [does] bear[] upon his credibility
as to why he is or has been unable to work." (AR 43). In fact, when examined by psychiatrist
James McKnight, M.D., on January 4, 2014, plaintiff reported that his social isolation was not the
result of his medical condition but, rather, "because many in the neighborhood still believe that he
sells drugs." (AR 522). Additionally, the ALJ cited specific medical records evincing normal
mental health status evaluations at times when plaintiff claimed he was fully disabled. So, while
the ALJ does use the boilerplate phrase "not entirely credible," he provided specific reasons for
his finding on credibility, supported by the evidence in the case record.

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CONCLUSION

Based on review of the record as a whole, the final decision of the Commissioner is based
upon the correct legal standards and is supported by substantial evidence. For the foregoing
reasons, the Commissioner's motion is granted and plaintiffs motion is denied. The Clerk of
Court is directed to enter judgment in favor of defendant.
SO ORDERED.

Nina Gershon

/s/
NINA GERSHON
United States District Judge
March 11, 2019
Brooklyn, New York

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