Sanjurjo v. Colvin

Filing 17

MEMORANDUM-DECISION and ORDER. Sanjurjo's motion for judgment on the pleadings is GRANTED in part; The Commissioner's motion for judgment on the pleadings is DENIED; the Commissioner's decision is VACATED; and this matter is remanded to the Commissioner for further administrative proceedings. Signed by Judge David N. Hurd on 12/1/2015. (lah)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------LUIS FELIPE DIAZ SANJURJO,
Plaintiff,
-v-

1:14-CV-85

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
-------------------------------APPEARANCES:

OF COUNSEL:

LEGAL AID SOCIETY OF NORTHEAST
NEW YORK - ALBANY
Attorneys for Plaintiff
55 Colvin Avenue
Albany, NY 12206

MICHAEL J. TELFER, ESQ.
SHUBH NIGAM MCTAGUE, ESQ.

OFFICE OF REGIONAL GENERAL COUNSEL
SOCIAL SECURITY ADMINISTRATION
REGION II
Attorneys for Defendant
26 Federal Plaza, Room 3904
New York, NY 10278

VERNON NORWOOD, ESQ.

DAVID N. HURD
United States District Judge
MEMORANDUM–DECISION and ORDER
I. INTRODUCTION
Plaintiff Luis Felipe Diaz Sanjurjo ("Sanjurjo" or "plaintiff") brings this action, pursuant
to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking review of defendant Commissioner of Social
Security's ("Commissioner" or "defendant") final decision denying his application for
Supplemental Security Income ("SSI"). The parties have filed their briefs as well as the

Administrative Record on Appeal and the motions will be considered on the basis of these
submissions without oral argument.1
II. BACKGROUND
On January 22, 2008, Sanjurjo filed an application for SSI claiming a period of
disability beginning on December 1, 2006. R. at 334-36. This application was initially denied
on March 31, 2008. Id. at 131-33. At plaintif f's request, a hearing was scheduled before
Administrative Law Judge ("ALJ") Carl Stephan on December 1, 2009, but was adjourned so
that plaintiff could secure legal representation in this matter. Id. at 100-05, 137-38. The
rescheduled hearing was then held on March 17, 2010. Id. at 77-90. Plaintif f, this time
represented by an attorney, appeared and testified through a Spanish interpreter. Id.
On April 21, 2010, the ALJ rendered a written decision concluding that Sanjurjo was
not disabled within the meaning of the Social Security Act (the "Act") from January 8, 2008
through the date of this decision. R. at 113-20. Plaintiff timely appealed this unfavorable
disability determination to the Appeals Council, who granted his request for review, vacated
the ALJ's decision, and remanded the claim for further consideration.2 Id. at 125-29.
On April 19, 2012, the ALJ held a supplem ental hearing in accordance with the
remand order issued by the Appeals Council. R. at 35-58. Plaintiff, represented by an
attorney, again testified through a Spanish interpreter. Id. This time, the ALJ also heard
testimony from Vocational Expert ("VE") Peter Manzi. Id.

1

Pursuant to General Order No. 18 of the Northern District of New York, consideration of this matter
will proceed as if both parties had accompanied their briefs with a motion for judgment on the pleadings
pursuant to Federal Rule of Civil Procedure 12(c).
2

The Appeals Council concluded that the ALJ: (1) did not obtain all relevant treatment records;
(2) failed to evaluate all of plaintiff's alleged impairments; (3) failed to consider all the opinion evidence; and
(4) improperly articulated his residual functional capacity assessment. R. at 127.
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On May 22, 2012, the ALJ rendered another written decision, again concluding
Sanjurjo was not disabled within the meaning of the Act. R. at 17-25. This administrative
denial became the final decision of the Commissioner on December 5, 2013, when the
Appeals Council denied plaintiff's renewed request for review. Id. at 1-3.
On January 27, 2014, Sanjurjo filed this action seeking judicial review of the
Commissioner's denial of benefits. Because the parties are familiar with the underlying facts,
they are discussed only to the extent necessary to address plaintiff's appeal.
III. DISCUSSION
A. Standard of Review
A court's review of the Commissioner's final decision is limited to determining whether
the decision is supported by substantial evidence and the correct legal standards were
applied. Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir. 2009) (per curiam ). "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.'" Id. (quoting Consol.
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
"To determine on appeal whether an ALJ's findings are supported by substantial
evidence, a reviewing court considers the whole record, examining the evidence from both
sides, because an analysis of the substantiality of the evidence must also include that which
detracts from its weight." Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (citing
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)). If the Commissioner's
disability determination is supported by substantial evidence, that determination is
conclusive. See id. Indeed, where evidence is deemed susceptible to more than one
rational interpretation, the Commissioner's decision must be upheld—even if the court's
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independent review of the evidence may differ from the Commissioner's. Rutherford v.
Schweiker, 685 F.2d 60, 62 (2d Cir. 1982); Rosado v. Sullivan, 805 F. Supp. 147, 153
(S.D.N.Y. 1992).
However, "where there is a reasonable basis for doubting whether the Commissioner
applied the appropriate legal standards," the decision should not be affirmed even though the
ultimate conclusion reached is arguably supported by substantial evidence. Martone v.
Apfel, 70 F. Supp. 2d 145, 148 (N.D.N.Y. 1999) (citing Johnson v. Bowen, 817 F.2d 983, 986
(2d Cir. 1987)).
B. Disability Determination—The Five-Step Evaluation Process
The Act defines "disability" as the "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 less than 12 months." 42 U.S.C. § 423(d)(1)(A). In addition, the Act requires
that a claimant's:
physical or mental impairment or impairments [must be] of such
severity that he 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, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he applied for work.
Id. § 423(d)(2)(A).
The ALJ must follow a five-step evaluation process in deciding whether an individual is
disabled. See 20 C.F.R. §§ 404.1520, 416.920. At step one, the ALJ m ust determine
whether the claimant has engaged in substantial gainful activity. A claimant engaged in
substantial gainful activity is not disabled, and is therefore not entitled to
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benefits. Id. §§ 404.1520(b), 416.920(b).
If the claimant has not engaged in substantial gainful activity, then step two requires
the ALJ to determine whether the claimant has a severe impairment or combination of
impairments which significantly restricts his physical or mental ability to perform basic work
activities. Id. §§ 404.1520(c), 416.920(c).
If the claimant is found to suffer from a severe impairment or combination of
impairments, then step three requires the ALJ to determine whether, based solely on medical
evidence, the impairment or combination of impairments meets or equals an impairment
listed in Appendix 1 of the regulations (the "Listings"). Id. §§ 404.1520(d), 416.920(d); see
also id. Pt. 404, Subpt. P, App. 1. If the claimant's impairment or combination of impairments
meets one or more of the Listings, then the claimant is "presumptively disabled." Martone,
70 F. Supp. 2d at 149 (citing Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984)).
If the claimant is not presumptively disabled, step four requires the ALJ to assess
whether—despite the claimant's severe impairment—he has the residual functional capacity
("RFC") to perform his past relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f). The burden
of proof with regard to these first four steps is on the claimant. Perez v. Chater, 77 F.3d 41,
46 (2d Cir. 1996) (citing Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 642 (2d
Cir. 1983)).
If it is determined that the claimant cannot perform his past relevant work, the burden
shifts to the Commissioner for step five. Perez, 77 F.3d at 46. This step requires the ALJ to
examine whether the claimant can do any type of work. 20 C.F.R. §§ 404.1520(g),
416.920(g). The regulations provide that factors such as a claimant's age, physical ability,
education, and previous work experience should be evaluated to determine whether a
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claimant retains the RFC to perform work in any of five categories of jobs: very heavy,
heavy, medium, light, and sedentary. Perez, 77 F.3d at 46 (citing 20 C.F.R. § 404, Subpt. P,
App. 2). "[T]he Commissioner need only show that there is work in the national economy
that the claimant can do; [she] need not provide additional evidence of the claimant's residual
functional capacity." Poupore, 566 F.3d at 306 (citing 20 C.F.R. § 404.1560(c)(2)).
C. ALJ's Decision Following Remand
The ALJ found Sanjurjo had not engaged in substantial gainful activity since January
8, 2008, the application date. R. at 19. T he ALJ next found plaintiff's back impairments,
respiratory impairments, and diabetes mellitus to be severe impairments. Id. Next, the ALJ
concluded that plaintiff's combination of severe impairments did not meet or equal any of the
"musculoskeletal" Listings. Id. at 20. The ALJ then determined plaintiff retained the RFC to
perform "light work," except that:
he can sit for up to 7 hours in an eight hour work day, and up to 2
hours at one time; stand for up to 2 hours in an eight hour work day,
and up to 1 hour at one time; walk for up to 4 hours in an eight hour
work day, and up to 2 hours at one time; occasionally climb stairs,
stoop, crouch, crawl, kneel or balance; no climbing of ladders; no
exposure to concentrated amounts of respiratory irritants; only
occasional operation of foot controls; and no exposure to
unprotected heights.
Id. at 20-21.
Based on these findings and Sanjurjo's age, education, and work experience, the ALJ
determined jobs existed in significant numbers in the national economy that plaintiff could
perform. R. at 24. Accordingly, the ALJ concluded plaintiff was not disabled within the
meaning of the Act. Id.

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D. Plaintiff's Appeal
Sanjurjo argues the ALJ: (1) improperly weighed, or failed to discuss, certain medical
opinions in the record; (2) incorrectly assessed his credibility; and (3) posed an incorrect
hypothetical to the VE.
1. Medical Opinions
Sanjurjo first argues that the ALJ's RFC determination is not supported by substantial
evidence because he failed to weigh, or even discuss, the opinions of several medical
sources in the record in formulating his ultimate RFC assessment.
A claimant's RFC is an assessment of "what an individual can still do despite his or
her limitations." Pardee v. Astrue, 631 F. Supp. 2d 200, 210 (N.D.N.Y. 2009) (Mordue, C.J.)
(citations omitted). "In making a residual functional capacity determination, the ALJ must
consider a claimant's physical abilities, mental abilities, [symptomatology], including pain and
other limitations which could interfere with work activities on a regular and continuing
basis." Id. (citing 20 C.F.R. § 404.1545(a)). "In practice, administrative law judges rely
principally on medical source opinion and subjective testimony when assessing impaired
individuals' ability to engage in work-related activities." Casey v. Comm'r of Soc. Sec., 2015
WL 5512602, at *10 (N.D.N.Y. Sept. 15, 2015) (Suddaby, J.) (adopting Report &
Recommendation of Hines, M.J.).
In his written decision, the ALJ first gave "great weight" to the opinion of John W.
Axline, M.D., a medical consultant who had reviewed "all available evidence in the medical
record" as of October 2011. R. at 22; 833-43. The ALJ then discussed the opinion of
consultative examiner Amelita Balagtas, M.D., finding her opinion on Sanjurjo's limitations to
be consistent with Dr. Axline's "more detailed and specific opinion." Id. at 22; 420-24.
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Finally, the ALJ discussed the opinion of consultative examiner Suraj Malhotra, M.D., finding
certain aspects of his opinion supported by the medical evidence in the record but
specifically declining to adopt Dr. Malhotra's limitations on standing and walking. Id. at 22;
689-98.
Sanjurjo argues that the ALJ's discussion of the medical evidence fails to include any
mention of, let alone any narrative discussion regarding, the medical opinions of two of
plaintiff's treating providers as well as the opinion of at least one consultative examiner
whose opinion allegedly diverges from that of the doctors discussed above.
Sanjurjo first identifies Physician's Assistant John Sullivan, who opined in March 2009
that plaintiff was "moderately limited" in walking, standing, and sitting, and "very limited" in
sitting, lifting, carrying, pushing, pulling, and bending. R. at 525. PA Sullivan treated plaintiff
from June 2008 through January 2010. Id. at 468, 492.
Sanjurjo next identifies Denia Pedreira, M.D., who opined in June 2011 that plaintiff
was "moderately limited" in walking and standing and "very limited" in lifting, carrying,
pushing, pulling, bending, and climbing. R. at 818. Dr. Pedreira treated plaintiff from
November 2010 to June 2011. Id. at 591, 824.
Third, Sanjurjo identifies Farag Aboelsaad, M.D., who opined in February 2009 that
plaintiff "needs to avoid bending, twisting, [or] lifting heavy objects." R. at 447. Dr.
Aboelsaad examined plaintiff at least three times between February and November 2009. Id.
at 446-49.
The Commissioner retorts that Sanjurjo's contention regarding these medical
opinions—namely, that the ALJ completely omitted any discussion of them in his written

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decision—is "simply wrong." Def.'s Mem., ECF No. 15, at 15. 3 But defendant does not
actually support this blanket denial with any guidance regarding where such a discussion can
be found in the ALJ's written decision; rather, defendant attempts to articulate how Dr.
Pedreira's and Dr. Aboelsaad's opinions are non-specif ic and/or otherwise consistent with the
medical opinions the ALJ actually did bother to discuss.
There is a good reason the Commissioner has been forced to pursue this tactic on
review: the ALJ completely neglected this trio of medical professionals in his written
decision. And defendant implicitly concedes this fact, going on to argue that "[i]n any event,
that an ALJ must consider all relevant evidence does not mean that the ALJ must specifically
address each piece of evidence in his decision." Def.'s Mem. at 16. Defendant closes this
portion of argument by noting that PA Sullivan "is not an acceptable medical source and, as
such, his opinion is not entitled to deference." Id.
After careful consideration, it is concluded that the ALJ's f ailure to discuss the opinions
of PA Sullivan, Dr. Pedreira, or Dr. Aboelsaad necessitates remand. First, "the ALJ
committed reversible error when he failed to mention, consider, or discuss plaintiff's
treatment" with Dr. Pedreira, a treating physician. Drollette v. Colvin, 2014 WL 2880022, at
*7 (N.D.N.Y. June 23, 2014) (Suddaby, J.) (adopting Report & Recommendation of Hummel,
M.J.). Even assuming, as the Commissioner suggests, that Dr. Pedreira's opinion was
somehow sufficiently "non-specific" so as to preclude a meaningful evaluation, the
appropriate course would have been for the ALJ to re-contact this treating source for
clarification. Id.

3

Pagination corresponds with CM/ECF.
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Second, although the Commissioner argues that PA Sullivan "is not an acceptable
medical source and, as such, his opinion is not entitled to def erence," Def.'s Mem. at 16, the
ALJ still had a "duty to address and discuss the opinion." Drollette, 2014 WL 2880022, at *6;
see also 20 C.F.R. § 416.927(c) ("Regardless of its source, we will evaluate every medical
opinion we receive."); see also Saxon v. Astrue, 781 F. Supp. 2d 92, 103 (N.D.N.Y. 2011)
(Mordue, C.J.) (directing ALJ to "address" an "other source" opinion and "provide an
explanation of what weight, if any, he assigns to that opinion" on remand). And whether or
not Dr. Aboelsaad is considered a treating or examining source, the same requirement of
discussion and explanation applies to his opinion. Id.
Further, Sanjurjo correctly argues that the ALJ failed to assign any particular quantum
of weight to Dr. Balagtas's opinion. "Unless there is a treating source opinion, which is given
controlling weight, an ALJ's failure to explain the weight given to the opinion of a State
agency medical consultant is legal error." Dutcher v. Comm'r of Soc. Sec., 2014 WL
2510557, at *5 (N.D.N.Y. June 4, 2014) (Suddaby, J.).
In sum, remand is necessary so that the ALJ can evaluate and weigh all of the
relevant medical opinion evidence in this matter in accordance with the appropriate factors
found in the Regulations. Because Sanjurjo's remaining challenges are predicated on
conclusions drawn by the ALJ that may be impacted by his reconsideration of the medical
evidence, they will not be directly addressed at this time. However, the ALJ is specifically
directed to articulate whether, and to what extent, a thorough re-evaluation of the medical
evidence alters his assessment of plaintiff's credibility.
IV. CONCLUSION
The deficiencies in the ALJ's written decision leave a reasonable basis for doubting
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whether the Commissioner applied the appropriate legal standards.
Therefore, it is
ORDERED that
1. Sanjurjo's motion for judgment on the pleadings is GRANTED in part;
2. The Commissioner's motion for judgment on the pleadings is DENIED;
3. The Commissioner's decision is VACATED; and
4. This matter is remanded to the Commissioner for further administrative
proceedings consistent with this opinion.
The Clerk of the Court is directed to close the case.
IT IS SO ORDERED.

Dated: December 1, 2015
Utica, New York.

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