Delgado Torres v. Commissioner of Social Security

Filing 18

OPINION & ORDER re: 15 CROSS MOTION for Judgment on the Pleadings filed by Commissioner of Social Security, 13 MOTION for Judgment on the Pleadings filed by Jesus Manuel Delgado Torres. For these reasons, plaintiffs motion for judgment on the ple adings is GRANTED and defendant's motion for judgment on the pleadings is DENIED. This matter is REMANDED to the Commissioner, who shall: 1. Request that plaintiff secure complete medical records from all doctors and institutions that treated pl aintiff, including Dr. Gutierrez. 2. Request that Dr. Ang substantiate his reports, particularly his finding that plaintiff was "[u]nable to work for at least 12 months." (See R. at 259.) 3. Hold a new administrative hearing. The Clerk of Court is directed to close the motions at ECF Nos. 13 and 15 and to terminate this action. (Signed by Judge Katherine B. Forrest on 2/3/2014) (tro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATE FILED:

-FEB 032014

JESUS MANUEL DELGADO TORRES,
Plaintiff,

13 Civ. 730 (KBF)
OPINION & ORDER

-v-

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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KATHERINE B. FORREST, District Judge:
Plaintiff Jesus Manuel Delgado Torres seeks review of the decision by
Defendant Commissioner of Social Security ('the Commissioner' or'tlefendant)
denying him Social Security Supplemental Security Income (SSI) benefits on the
basis of low back pain, gastritis, and psychiatric problems. (Compi. 'ill, ECF No.1;
R. at IS.)

Plaintiff first filed an application for SSI on June 10, 2010, alleging that he
was disabled as of March 30,2007. (R. at 101-D7.) On July 30,2010, defendant
denied plaintiffs application on initial review. (R. at 3842.) On July 5, 2011,
plaintiff appeared pro se before an Administrative Law Judge (,ALJ) for an
administrative hearing, which lasted 11 minutes. (R. at 2h34, 4445.) On August 5,
2011, the ALJ issued a decision finding that plaintiff had not established that he
was disabled, as defined by the Act, and thus was not entitled to SS!. (R. at 10-21.)

On December 3,2012, the ALJ's decision became defendant's final decision when
the Appeals Council denied plaintiffs request for review. (R. at 1-4.)
On February 1, 2013, plaintiff filed this action seeking judicial review of the
ALJ's decision. (ECF No. 1.) Now before the Court are plaintiff and defendant's
motions for judgment on the pleadings. (ECF Nos. 13, 15.) For the reasons set
forth below, plaintiffs motion is GRANTED and defendant's motion is DENIED.
This matter is remanded for further proceedings before the Commissioner.
I.

FACTUAL BACKGROUND
The Court recites here only those facts relevant to its review.l
At his ll-minute hearing on July 5, 2011, plaintiff testified that he was born

in Puerto Rico, and that he had worked for a children's foundation in Puerto Rico
and in a factory in the United States before he stopped working due to back pain,
headaches, and depression. (R. at 28-31.) Plaintiff stated that he was being
treated for depression and saw a psychiatrist (Dr. Gutierrez) every eight weeks;
while medication helped his emotional condition "a little bit," he did not think that
his emotional condition had gotten any better with medication. (R. at 31.) Plaintiff
stated that he was limited to sitting for 15 minutes at a time before his back would
hurt and he had to get up, and that he was limited to walking three blocks slowly at
a time before he had to stop due to breathing problems. (R. at 30-32.)
The transcript from the hearing is eight pages long, of which five consists of
the ALJ's examination of plaintiff. (See R. at 27-34.) As stated, the hearing lasted
for 11 minutes. (See idJ Although the ALJ stated that the claimant "does
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A thorough summary of plaintiffs medical history is set forth in the administrative record.

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adequately communicate in English," a Spanish-language interpreter was used at
the hearing. (R. at 27.) Plaintiff testified that he saw Dr. Gutierrez rather than a
Dr. Silverman because "sometimes they didn't have a translator so they changed me
to a doctor who speaks Spanish." (R. at 32.)
The record contains numerous medical reports from various physicians.
For example, on October 19, 2009, plaintiff saw Dr. Luis Ang at Fordham
Tremont Community Mental Health Center ("FTCMHC"). (R. at 181-86.) Dr. Ang
noted that plaintiffs speech and language abilities were intact; that his subjective
mood was anxious and depressed; and that he had no abnormalities regarding his
thought process or content. (R. at 183-84.) Dr. Ang diagnosed major depression.
(R. at 186.)

In November 2009, Dr. A. Salem also diagnosed plaintiff with major
depression, recurrent with psychotic feature in partial remission, and polysubstance
dependence. (R. at 189, 191.) On May 13, 2010, Dr. Salem diagnosed major
depression disorder in remission and renewed plaintiffs medications. (R. at 211.)
In December 2009 and January 2010, plaintiff reported that he was feeling
better and less anxious and depressed. (R. at 201-02.) On February 24, 2010,
plaintiff reported that he was doing well, and had no hallucinations or side effects
from medication. (R. at 204.) In early March 2010, however, plaintiff claimed to see
shadows and felt that people were following him. (R. at 206.) On May 12, 2010,
plaintiff reported that he was feeling stressed and having trouble sleeping. (R. at
210.)

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On July 12, 2010, consulting psychologist Dr. Dmitri Bougakov examined
plaintiff, who complained oflow energy, poor appetite, trouble sleeping, and
problems with concentration. (R. at 218.) Dr. Bougakov observed that plaintiffs
language functioning was adequate and his thought process was coherent; that his
concentration, attention, and memory were mildly impaired; and that his
intellectual functioning was below average. (R. at 217-18.) Dr. Bougakov further
stated that plaintiff did not have vocational difficulties other than some mild
difficulties learning new tasks and performing complex tasks. (R. at 218.) Dr.
Bougakov diagnosed opioid and cocaine dependence in remission and depressive
disorder. (ld.)
On July 20, 2010, plaintiff was examined by a consulting internal medicine
physician, Dr. Catherine Pelczar-Wissner, who diagnosed gastritis, back pain,
anxiety, and depression, and who found plaintiff to have no objective limitations.
(R. at 222.) In August 2010, plaintiff underwent a physical examination that

resulted in normal findings. (R. at 270-305.) A screening test revealed moderate
depression. (R. at 295.)
On September 13, 2010, Dr. Bhawesh Patel opined, inter alia, that plaintiff
could sit, stand, or walk continuously for two hours each, and that, in an eight-hour
workday, he could sit up to four hours and stand and walk for up to two hours each.
(R. at 246-51.)

On September 17, 2010, treating psychiatrist Dr. Luis Ang completed two
forms with conflicting opinions. In his "medical source statement," Dr. Ang opined

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that plaintiff had, inter alia, no limitations in understanding, remembering and
carrying out simple instructions, and in making simple work-related decisions. (R.
at 254.) Dr. Ang also believed that plaintiffs ability to respond appropriately to
supervision and to interact with coworkers and the public was unimpaired. (R. at
255.) However, in a separate "wellness plan report" also completed on that day,
clinician Celeste Benitez and Dr. Ang indicated that plaintiff was "[u]nable to work
for at least 12 months." (R. at 259.) Psychiatrist Dr. Azra Mansoor also completed
a wellness plan report on December 28, 2010, which indicated that plaintiff was
"temporarily unemployable." (R. at 265.)
Orthopedist Dr. Marc Silverman completed a wellness plan report on October
27, 2010, in which he diagnosed low back pain; he also noted that plaintiff had been
treated with physical therapy, which had provided "some improvement." (R. at
262-63.) Dr. Silverman noted low back strain and checked a box indicating that
plaintiff was "employable" and that he could perform "light weight work." (R. at
263.)
II.

STANDARDS OF REVIEW
A. Judgment on the Pleadings
"After the pleadings are closed-but early enough not to delay trial-a party

may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). The Court reviews
Rule 12(c) motions for judgment on the pleadings under the same standard as Rule
12(b)(6) motions to dismiss. Bank of K.Y. v. First Millennium, Inc., 607 F.3d 905,
922 (2d Cir. 2010). Therefore, "[t]o survive a Rule 12(c) motion, the complaint 'must

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contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.'" Id. (quoting Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir.
2010».
B. The Disability Standard
The Commissioner will find a claimant disabled under the Act if he or she
demonstrates an "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 that 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). The claimant's
impairment 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."
42 U.S.C. § 423(d)(2)(A). The disability must be "demonstrable by medically
acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3).
The Commissioner uses a five-step process when making disability
determinations. See 20 C.F.R. §§ 404.1520, 416.920; DeChirico v. Callahan, 134
F.3d 1177, 1179-80 (2d Cir. 1998). The Second Circuit has described the process as
follows:
First, the Commissioner considers whether the claimant is currently engaged
in substantial gainful activity. Where the claimant is not, the Commissioner
next considers whether the claimant has a "severe impairment" that
significantly limits her 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 that is
listed in 20 C.F.R. Part 404, Subpart P, App. 1 ["Appendix I"]. Assuming the
claimant does not have a listed impairment, the fourth inquiry is whether,
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despite the claimant's severe impairment, she has the residual functional
capacity to perform her past work. Finally, if the claimant is unable to
perform her past work, the burden then shifts to the Commissioner to
determine whether there is other work which the claimant could perform.
Tejada v. Apfel, 167 F.3d 770, 774 (2d Cil'. 1999).
C. Review of the ALJ's Judgment
The Commissioner and ALJ's decisions are subject to limited judicial review.
The Court may only consider whether the Commissioner has applied the correct
legal standard and whether his findings of fact are supported by substantial
evidence. When these two conditions are met, the Commissioner's decision is final.
42 U.S.C. § 405(g); Burgess v. Astrue, 537 F.3d 117,127-28 (2d Cir. 2008) (citing
Shaw v. Chatel', 221 F.3d 126, 131 (2d Cir. 2000»; Veino v. Barnhart, 312 F.3d 578,
586 (2d Cir. 2002); Balsamo v. Chatel', 142 F.3d 75,79 (2d Cir. 1998) ("We set aside
the ALJ's decision only where it is based upon legal error or is not supported by
substantial evidence.").
By statute, the Commissioner is required to develop the complete medical
history for at least a twelve-month period prior to the date of application. 42 U.S.C.

§ 423(d)(5)(B); see also Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999) ("[W]here
there are deficiencies in the record, an ALJ is under an affirmative obligation to
develop a claimant's medical history."). The Commissioner's regulations state that
the agency will make "every reasonable effort" to help claimants obtain medical
reports from medical sources. 20 C.F.R. § 416.912(d).2 An ALJ commits legal error
where he or she improperly fails to develop the record. See, e.g., pratts v. Chatel',
2 "Every reasonable effort" means "an initial request for evidence from [the claimant's] medical
source" and follow-up requests as necessary. 20 C.F.R. § 416.912(d)(1).

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94 F.3d 34, 39 (2d Cir. 1996). "One of the factors which the court must consider is
whether the claimant was represented by counsel at the administrative hearing."
Hankerson v. Harris, 636 F.2d 893,895 (2d Cir. 1980).
If the Commissioner and ALJ's findings as to any fact are supported by

substantial evidence, then those findings are conclusive. 42 U.S.C. § 405(g); Diaz v.
Shalala, 59 F.3d 307, 312 (2d Cir. 1995). 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.'" Pratts, 94 F.3d at 37 (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971»; see Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir.
2002).
III.

DISCUSSION
The ALJ conducted the five-step analysis required by 20 C.F.R. §§ 404.1520

and 416.920 without properly developing the record, and therefore committed legal
error.
A. The ALJ's Failure to Develop the Record
The ALJ failed to affirmatively develop plaintiffs complete medical history,
contrary to his obligation under law. See Shaw, 221 F.3d at 131 ("The ALJ has an
obligation to develop the record in light of the non-adversarial nature of the benefits
proceedings, regardless of whether the claimant is represented by counse1.").
First, the ALJ failed to request reports from Dr. Gutierrez, who plaintiff had
told the ALJ was his primary doctor, or to question the plaintiff about him. (See R.
at 31.) The hearing transcript reflects the following exchange:

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Q
A
Q
A
Q
A

Q
A

Now, you're seeing a Dr. Silverman.
No, Gutierrez is my doctor.
What?
Gutierrez.
That's the psychiatrist?
Yes.
But there's a Dr. Silverman who wrote a report about your back.
Yes, that was my first doctor, but sometimes they didn't have a
translator so they changed me to a doctor who speaks Spanish.

(R. at 31-32.) The transcript reflects no further follow-up questioning or discussion
related to Dr. Gutierrez, and the record as a whole is devoid of any report or
evidence proffered by him.
The Commissioner argues that she met her duty to develop the record
pursuant to 20 C.F.R. § 416.912(d) by requesting and receiving treatment notes
from plaintiffs treating sources, St. Barnabas Hospital and FTCMHC. (See R. at
225.) On these particular facts, this Court disagrees. It is true that, on August 27,
2010, an ALJ advised plaintiff to obtain treatment records and a completed
functional assessment from his "current treating doctor." (R. at 244-45.) In
response, plaintiff submitted Dr. Ang and Dr. Patel's functional assessments. (See
R. at 246-51, 254-56,258-59.) However, the ALJ who held plaintiffs hearing did
not, even after plaintiff said that Dr. Gutierrez was his doctor, ask plaintiff about
Dr. Gutierrez's role vis-a.-vis Dr. Ang and Dr. Patel, or inquire why plaintiff
submitted those reports rather than a report from Dr. Gutierrez. (See R. at 32.)
Rather, the ALJ immediately moved to the topic of plaintiffs back pain. (See id.)
Nor did the ALJ follow up with either St. Barnabas Hospital or FTCMHC to procure
reports or notes by Dr. Gutierrez.

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Thus, when rendering his decision, the ALJ lacked information regarding the
extent or nature of Dr. Gutierrez's treatment of plaintiff, if any. Rather, the ALJ
relied on the sparse, limited reports of Dr. Ang and Dr. Patel. See Rosa, 168 F.3d at
80 (explaining that the ALJ erred by failing "to obtain or attempt to obtain the
records of a number of other physicians identified by" the plaintiff). Defendant's
claim that "the record contains records from all treating sources identified by
plaintiff' (see Def.'s Mot. 15) is therefore incorrect.
The ALJ also erred by failing to resolve conflicts within Dr. Ang's reports,
either through questioning or analysis in his decision. (See R. at. 20.) Specifically,
Dr. Ang's "wellness plan report" indicated that plaintiff was "less depressed" but
suffered from "occasional auditory hallucinations" and that he would be "[u]nable to
work for at least 12 months." (R. at 258-59.)3 However, Dr. Ang's "medical source
statement" reflects that plaintiff had no limitations with simple instructions and
only "mild" instructions with complex instructions, and that plaintiff had no
impairments in his ability to "interact appropriately with supervision, co-workers,
and the public." (R. at 254-55.) Notably, Dr. Ang failed to complete the entire form
and left a blank space where the form instructed him to "[i]dentify the factors ...
that support your assessment." (R. at 255.) Faced with "inconsistencies in a
treating physician's reports," the ALJ bore "an affirmative duty to seek out more

The Court is mindful that blanket opinions regarding an ability to work do not control this Court.
20 C.F.R. § 416.927(d)(l) ("A statement by a medical source that you are 'disabled' or 'unable to
work' does not mean that we will determine that you are disabled."); Snell v. Apfel, 177 F.3d 128, 133
(2d Cir. 1999) ("[TJhe ultimate finding of whether a claimant is disabled and cannot work [is]
'reserved to the Commissioner."'). Even so, the ALJ was obligated to develop the record further
given the conflicts in the record and the sparseness of Dr. Ang's reports. See Hartnett v. Apfel, 21 F.
Supp. 2d 217,221 (E.D.N.Y. 1998).
3

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information from the treating physician and to develop the administrative record
accordingly." Hartnett v. Apfel, 21 F. Supp. 2d 217, 221 (E.D.N.Y. 1998); see also
Rosa, 168 F.3d at 80:1
In light of these gaps and conflicts in the record, a cursory, II-minute hearing
was insufficient. See Thibodeau v. Commissioner of Soc. Sec., 339 F. App'x 62,63
(2d Cir. 2009) (finding that "the scant administrative record-the hearing transcript
spans fourteen pages-was left undeveloped"); Crespo v. Barnhart, 293 F. Supp. 2d
321, 324-25 (S.D.N.Y. 2003) ("The hearing conducted by the ALJ on November 10,
1998 appears to have lasted only ten minutes ... hardly enough time fully to
develop the record in this case ...."). The facts that the claimant appeared pro se
and had at least limited English ability rendered the ALJ's error more serious. (R.
at 27, 32.)5 See Rosa, 168 F.3d at 79.
"Where there are gaps in the administrative record, remand to the
Commissioner for further development of the evidence is in order." Sobolewski v.
Apfel, 985 F. Supp. 300, 314 (E.D.N.Y. 1997).
B. Plaintiffs Remaining Claims
Because the Court remands this decision to the Commissioner to develop the
record fully and hold further proceedings, the Court need not address plaintiffs
arguments that the ALJ incorrectly analyzed plaintiffs subjective complaints of

<1 The Court need not reach plaintiffs allegations that the record was also insufficiently developed as
to several other symptoms in light of its decision to remand this case to the Commissioner for further
proceedings.
5 The Court notes that the ALJ's letter requesting plaintiff to submit records from his treating
physician was written in English. (See R. at 244-45.)

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pain G and lacked substantial evidence to support his determination. See, e.g.,
Hankerson, 636 F.2d at 896.
Nonetheless, while the record is insufficiently developed, the Court does note
that certain evidence in the record supports the ALJ's finding.7 For example, while
plaintiff claimed a disabling back impairment, no medical source in the record
diagnosed a condition other than "low back pain." (See R. at 221-22, 262.)8
Additionally, treating psychiatrist Dr. Ang opined that plaintiff had no limitations
in making simple work-related decisions and that his ability to respond to
supervision and interact with coworkers was unimpaired. (R. at 254-55.) Plaintiff
also stated on several occasions that his medication helped his condition and that he
was feeling less depressed. (See, e.g., R. at 201,202,205,206,211,215.) Without a
fully developed record, however, an ALJ's "decision to deny [a claimant] benefits is
not supported by substantial evidence." Pratts, 94 F.3d at 37.
IV.

CONCLUSION

For these reasons, plaintiffs motion for judgment on the pleadings is

GRANTED and defendant's motion for judgment on the pleadings is DENIED.
This matter is REMANDED to the Commissioner, who shall:
(j In any event, the COUl't doubts that an ll-minute hearing is sufficient to assess plaintiffs

credibility. See Crespo, 293 l". Supp. 2d at 324-25.

7 Plaintiff also asserts that defendant's assessment of plaintiffs Rl"C was "vague." (Pl.'s Mot. 15,

ECl" No. 14.) That is incorrect. The AW appropriately referred to a specific provision of the

regulations, 20 C.l".R. § 416.967(b), which sets forth the functions and requirements of light work.

R. at 19.)
8 Dr. Silverman reported that a lumbar spine MRI was negative in all respects, and concluded that
plaintiff could perform light work. (R. at 262-63.) Dr. Pelczar-Wissner opined that she found no
sign of "objective limitations" based on her examination of plaintiff. (R. at 222.) Dr. Patel also
completed a functional assessment in which he opined that plaintiff could continuously sit, stand, or
walk for two hoUl's each, and that plaintiff could perform various daily living activities. (R. at 246­
50.)

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1. Request that plaintiff secure complete medical records from all doctors

and institutions that treated plaintiff, including Dr. Gutierrez.
2. Request that Dr. Ang substantiate his reports, particularly his finding
that plaintiff was "[u]nable to work for at least 12 months." (See R. at
259.)

3. Hold a new administrative hearing.
The Clerk of Court is directed to close the motions at ECF Nos. 13 and 15 and
to terminate this action.
SO ORDERED.
Dated:

New York, New York
February 1> 2014

KATHERINE B. FORREST
United States District Judge

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