Garcia v. Colvin
OPINION AND ORDER re: 17 MOTION for Judgment on the Pleadings filed by Belgica Garcia, 19 CROSS MOTION for Judgment on the Pleadings filed by Carolyn W. Colvin. For the foregoing reasons, the decision of the Commi ssioner is REVERSED and the case is REMANDED for the calculation of benefits. The Clerk of the Court is directed to close these motions (Dkt. Nos. 17, 19) and terminate this case. (As further set forth in this Opinion and Order.) (Signed by Judge Shira A. Scheindlin on 3/3/2016) (mro)
On August 8, 2012, Garcia applied for SSI alleging disability since
January 12, 2010, based on a permanent hand injury, high blood pressure, diabetes,
and cardiovascular problems and later alleged mental disabilities as well.1 When
the application was denied, Garcia requested a hearing to appeal this
determination.2 A hearing was held on April 24, 2014, before Administrative Law
Judge (“ALJ”) Michael Friedman.3 ALJ Friedman – addressing claims for both
physical and mental disability – found Garcia “not disabled under section
1614(a)(3)(A) of the Social Security Act.”4 On May 15, 2015, the decision of the
ALJ became the final decision of the Commissioner when the Appeals Council
denied Garcia’s request for review.5
Garcia does not contest ALJ Friedman’s determination that she does
not have a physical disability, but contends that he erred by finding her not
mentally disabled. Garcia argues that ALJ Friedman failed to properly (1) weigh
See Transcript of the Administrative Record (“Tr.”) at 132-141, 155.
See id. at 66-78.
See id. 41-65.
Id. at 24.
See id. at 1-5.
the medical evidence and (2) evaluate her credibility at the hearing. The
Commissioner contends that ALJ Friedman’s decision should be upheld because it
is supported by substantial evidence.
At the time Garcia applied for SSI in 2012, she was fifty-years-old
and had not worked since 2010.6 She has graduated from high school and
completed two years of college in the Dominican Republic.7 Garcia attributed her
initial physical disability to a fall she suffered which she alleges caused permanent
injuries.8 Prior to suffering these injuries, Garcia reported that she worked as a
waitress and factory worker from 1984 to 1990 and as a babysitter from 1990 to
At the hearing, Garcia testified with the aid of a Spanish interpreter.10
Although she indicated that she could speak and understand some English, she
See id. at 132.
See id. at 156.
See id. at 460.
See id. at 156, 180, 211. Different documents in the record show
conflicting dates for when Garcia actually performed these jobs, but the
discrepancies are immaterial for purposes of this opinion.
See id. at 44.
testified that she could not read or write in English.11 Garcia testified that she lived
in an apartment with her two daughters and her two-year-old granddaughter.12
Physically, she testified that she was only able to stand for about thirty
minutes, walk for only two blocks, sit for twenty minutes, and could only
momentarily lift a “one or two pound bag of sugar.”13 She described pain in her
leg, hip, shoulder, and wrist.14 As a result, she testified that she can do little
housework although she can go grocery shopping and cook simple meals.15 She
can dress herself in plain clothing but struggles with buttons or zippers.16
Mentally, she reported a “poor” mood and that she did not care for her
appearance or comb her hair, but others would do so for her.17 She sees a
psychiatrist once a month and a therapist twice a month.18 She mentioned
problems with concentration because “all day [problems are] going through my
See id. at 54, 154.
See id. at 44.
Id. at 47.
See id. at 45, 50.
See id. at 48.
See id. at 49.
Id. at 51.
See id. at 46.
head.”19 Garcia struggles to sleep and takes Ambien but has “no energy in the
A vocational expert (“VE”) was called to testify about whether any
jobs for someone with certain hypothetical limitations existed in the national
economy. Based on a hypothetical person with Garcia’s language skills, “medium
physical [residual functional capacity (“RFC”)],” use of her right hand limited to
“no more than occasional overhead reaching,” and the ability to perform “jobs
involving simple routine tasks without production quotas and involving only
occasional interaction with supervisors, co-workers and the public,” the VE
concluded that there were at least three jobs in the national economy with 310,000
positions in aggregate: bagger, hand packer, and cleaner II.21
Garcia’s attorney then questioned the vocational expert. He added an
additional hypothetical limitation to those already considered – “an inability to
maintain a regular schedule defined as requiring three absences per month from the
workplace” – and asked whether this hypothetical person could perform any work
Id. at 46, 50.
Id. at 50.
Id. at 54-58.
in the national economy.22 The VE testified there would be no jobs for such a
The record contains treatment notes spanning January 2012 to January
2014 from the Emma L. Bowen Community Service Center (“Bowen”), also
known as the Upper Manhattan Mental Health Center, although the record
indicates she received treatment there since 1998.24 At Bowen, Garcia primarily
saw social worker (“SW”) Milagros Nunez for therapy and psychiatrist Dr. Yvonne
Kury, M.D. for medication management.
SW Milagros Nunez
The record contains Progress Notes from several dozen sessions with
SW Nunez. SW Nunez’s notes show that Garcia frequently complained of
depression and anxiety, with the therapy sessions focused primarily on issues with
her family – in particular she described concerns about domestic violence and
substance abuse – and problems with her health.25 At times, she mentioned
Id. at 62.
See id. at 481-548, 550-575, 577-597.
See id. at 515-518, 521, 523, 525, 528, 532, 536, 539, 543-544, 546547, 552, 554, 558-559, 562, 566, 568, 570, 573, 578, 582, 585, 587, 590, 594.
financial issues and fear of eviction as stressors.26 Garcia also recounted instances
of childhood trauma and continued conflict with her mother.27 Garcia never
reported any suicidal ideation and reported compliance with her medications
except when she ran out.28
Dr. Yvonne Kury
The record contains three main types of medical records from Dr.
Kury: (a) Progress Notes documenting office visits, (b) Treatment Plan Reviews
conducted every few months, and (c) Impairment Questionnaires summarizing Dr.
Kury’s findings. The Progress Notes in the record, consistent with SW Nunez’s
notes, describe complaints of depression and anxiety centered on her family issues
and physical problems.29 Dr. Kury prescribed Wellbutrin (an antidepressant) and
Ambien (a sleep aid) through August 2013, and then switched Garcia to
Citalopram (an antidepressant) but continued Ambien.30 The notes on Garcia’s
See id. at 578, 585, 587, 590, 594.
See id. at 558-559, 568.
See id. at 515-518, 521, 523, 525, 528, 532, 536, 539, 543-544, 546547, 552, 554, 558-559, 562, 566, 568, 570, 573, 575, 578, 582, 587, 590, 594.
See id. at 520, 537, 542, 545, 555-556, 564-565, 571-572, 580-581,
588-589, 591-592, 595-596.
See id. at 597.
mental status indicate that she was well groomed,31 well oriented,32 with neat
appearance,33 cognition in normal limits,34 and no suicidal ideation.35 However,
Dr. Kury’s treatment notes indicate she most frequently assessed Garcia as
depressed36 although on a couple of occasions assessed her as stable.37
The five “Treatment Plan Reviews” span January 19, 2012 to
December 12, 2012.38 Of these reviews, four out of five indicate “severe”
impairment in the functional categories of “Health,” “Social/Interpersonal,” and
“Leisure.”39 Three out of five indicate “severe” impairment in
See id. at 537.
See id. at 520, 537, 542, 545.
See id. at 537, 555, 564, 571, 580, 588, 591, 595.
See id. at 564, 571, 580, 588, 591, 595.
See id. at 520, 537, 542, 545, 555, 564, 571, 580, 588, 591, 595.
See id. at 520, 542, 545, 555, 564, 571, 588, 595.
See id. at 537, 591.
Note that all of these reviews were signed by Dr. Kury with the
exception of the January 19, 2012 review which was completed by Dr. Orozco.
See id. at 510.
Id. at 481, 493, 499, 505. The reviews allow a doctor to rank
impairment (in order from most to least impaired): none, mild, moderate, severe,
“Educational/Vocational” functioning.40 Notably, the only review which found
across the board “moderate” impairment was conducted September 27, 2012 – two
days after Garcia was examined by a consulting psychiatrist.41 All of the reviews
diagnosed Garcia with “Major Depressive Disorder, Recurrent, Moderate” and
assigned her a Global Assessment of Functioning (“GAF”) score of 65.42
Dr. Kury completed two Impairment Questionnaires. In the first,
completed January 10, 2013, Dr. Kury diagnosed Garcia with “Major Depressive
Disorder, Recurrent, Moderate” and assigned Garcia a decreased GAF score of
55.43 In her specific findings, Dr. Kury noted Garcia was “markedly limited” –
meaning the individual is “effectively preclude[d] . . . from performing the
activity” – in her ability to “maintain attention and concentration for extended
periods of time,” “perform activities within a schedule, maintain regular
attendance, and be punctual with customary tolerance,” “to sustain ordinary routine
without supervision,” and “to complete a normal workweek without interruptions
from psychologically based symptoms and to perform at a consistent pace without
Id. at 493, 499, 505.
Id. at 487.
Id. at 481, 487, 493, 499, 505.
Id. at 473.
an unreasonable number and length of rest periods.”44 From this Dr. Kury
concluded that Garcia could tolerate “low [work] stress,” but that she would miss
work as a result of her “impairments or treatment” “more than three times a
In the final Impairment Questionnaire before the ALJ hearing,
completed February 21, 2014, Dr. Kury again diagnosed Garcia with “Major
Depressive Disorder, Recurrent, Mod[erate].”46 In her specific findings, she again
found marked limitation in the aforementioned areas related to “Sustained
Concentration and Persistence.”47 Once more Dr. Kury concluded that Garcia
would likely need to miss work as a result of her “impairments or treatment” “more
than three times a month.”48 However, Dr. Kury found decreased ability to deal
with stress and concluded that Garcia could not tolerate “even ‘low stress’” work.49
Dr. Haruyo Fujiwaki
Id. at 475-478.
Id. at 479-480.
Id. at 608. Dr. Kury did not include a GAF score in this
Id. at 611-612.
Id. at 614-615.
Id. at 614.
On September 25, 2012, prior to both of the Impairment
Questionnaires, Dr. Fujiwaki performed a consultative psychiatric evaluation.50 He
observed that Garcia was “dressed casually and adequately groomed.”51 Dr.
Fujiwaki noted that “[s]he was able to count and do simple calculations” and able
to “perform serial 3s.”52 He found her to have dysphoric affect and dysthymic
In his “Medical Source Statement,” Dr. Fujiwaki concluded that
“[s]he can maintain attention and concentration to a certain extent” and “perform
certain complex tasks independently.”54 Importantly, he concluded that Garcia
could “maintain a regular schedule with some difficulty due to depressed mood”
but that “[s]he may have some difficulty . . . dealing with stress appropriately.55
He diagnosed her with “[d]epressive disorder, NOS.”56
See id. at 460-463.
Id. at 461.
Id. at 462.
See id. at 461.
Id. at 462.
Id. at 463.
Decision of the ALJ57
Relevant here, ALJ Friedman found both that Garcia was not mentally
disabled and that she could perform work in the national economy. The ALJ did
not assign controlling weight to the opinion of Dr. Kury as set forth in the
Impairment Questionnaires because Dr. Kury’s opinion is not “supported by
clinical findings . . . and is contradicted by . . . other substantial evidence.”58
In particular, the ALJ found that “treatment records . . . contradict Dr.
Kury’s assessment of disability.”59 While the treatment notes found “some degree
of depressed and anxious mood,” Garcia was found to be within normal limits on
certain areas of her mental status exams, and there were no findings of “significant
cognitive difficulties, suicidal/homicidal ideation, impaired thought processes, and
hallucinations or delusions.”60 Finally, the ALJ recognized that the Treatment Plan
Reviews regularly found “severe” levels of impairment across the functional
spectrum, but Garcia was still assigned a GAF score of 65 which represents “mild
Although the ALJ’s decision addressed both Garcia’s claimed mental
and physical disabilities, I summarize the decision only as it relates to her mental
disabilities as challenged here.
Id. at 21-22.
Id. at 22.
ALJ Friedman accorded “significant weight” to the findings of Dr.
Fujiwaki, yet he did not specify the reason for according Dr. Fujiwaki’s opinion
such weight.62 The ALJ summarized Dr. Fujiwaki’s findings as indicating that
Garcia had “partial limitations only as to her ability to maintain attention and
concentration, maintain a regular schedule, relate with others, and deal with stress,
as a result of depression and anxiety.”63
Based on Garcia’s RFC and the testimony of the VE, the ALJ
concluded that “the claimant is capable of making a successful adjustment to other
work that exists in significant numbers in the national economy.”64
Standard of Review
In reviewing an ALJ’s decision, a district court does not conduct a de
novo review of the ALJ’s decision.65 The ALJ must set forth the crucial factors
Id. at 23.
See Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004).
supporting her decision with sufficient specificity,66 but a district court must not
disturb the ALJ’s decision if “correct legal standards were applied” and
“substantial evidence supports the decision.”67 “Substantial evidence is ‘more than
a scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’”68
“‘To determine whether the findings are supported by substantial
evidence, the reviewing court is required to examine the entire record, including
contradictory evidence and evidence from which conflicting inferences can be
drawn.’”69 Even if there is substantial evidence for the claimant’s position, the
Commissioner’s decision must be affirmed when substantial evidence exists to
support it.70 Moreover, the Commissioner’s findings of fact, as well as the
See Moss v. Colvin, No. 13 Civ. 731, 2014 WL 4631884, at *26
(S.D.N.Y. Sept. 16, 2014) (citing Ferraris v. Heckler, 728 F.2d 582 (2d Cir.
Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004). See also 42
U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive.”).
Burgess v. Astrue, 537 F.3d 117, 127-28 (2d Cir. 2008) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)).
Tarsia v. Astrue, 418 Fed. App’x 16, 17 (2d Cir. 2011) (quoting Snell
v. Apfel, 177 F.3d 128, 132 (2d Cir. 1999)).
See Davila-Marrero v. Apfel, 4 Fed. App’x 45, 46 (2d Cir. 2001)
(“‘Where there is substantial evidence to support either position, the determination
is one to be made by the factfinder.’”) (quoting Alston v. Sullivan, 904 F.2d 122,
inferences and conclusions drawn from those findings, are conclusive even in cases
where a reviewing court’s independent analysis of the evidence might differ from
the Commissioner’s analysis.71
Pursuant to the Act, the SSA has established a five-step sequential
process to determine whether a claimant is disabled.72 At step one, the ALJ must
decide whether the claimant is engaging in substantial gainful activity (“SGA”).73
Generally, if the claimant has earnings from employment above a certain level, she
is presumed to be able to engage in SGA and is deemed not disabled.74 If the
claimant is not engaging in SGA, the analysis continues.
At step two, the ALJ must determine whether the claimant has a
“severe” medically determinable impairment or combination of impairments.75 An
impairment or combination of impairments is severe if it significantly limits the
126 (2d Cir. 1990)).
See Hartwell v. Barnhart, 153 Fed. App’x 42, 43 (2d Cir. 2005).
See 20 C.F.R. § 404.1520(a)(4).
See id. § 404.1520(a)(4)(i).
See id. § 404.1520(b).
Id. § 404.1520(a)(4)(ii). See also id. § 404.1520(c).
claimant’s ability to perform basic work-related activities.76 An impairment is not
severe when the evidence establishes only a slight abnormality or a combination of
slight abnormalities that would have no more than a minimal effect on the
claimant’s ability to work.77
At step three, the ALJ determines whether the claimant’s impairment
meets or medically equals the criteria of a listed impairment.78 If the impairment is
contained in the Listings, the claimant is considered disabled and the ALJ does not
reach steps four or five.79 If the impairment does not meet the Listings, the
At step four, the ALJ determines the claimant’s RFC,80 which is “the
most [claimant] can still do despite [her] limitations,” with respect to past relevant
See id. §§ 404.1520(c); 404.1521(b) (defining basic work activities).
See id. § 404.1521(a).
See id. Part 404, subpart P, Appendix 1 (hereinafter the “Listings” or
“Listing of Impairments”). The Listings define impairments that would prevent an
adult, regardless of her age, education, or work experience, from performing any
gainful activity, not just SGA. See id. § 404.1525(a) (stating that the purpose of
the Listings is to describe impairments “severe enough to prevent an individual
from doing any gainful activity”).
See id. § 404.1520(d), (a)(4).
See id. § 404.1520(e), 404.1545.
work.81 In making this finding, the ALJ must consider all of the claimant’s
impairments, including any “related symptoms, such as pain, [which] may cause
physical and mental limitations that affect what [claimant] can do in a work
setting.”82 Then, the ALJ must determine whether the claimant has the RFC to
perform any relevant work that the claimant has done in the past.83 If the claimant
is unable to do any past relevant work, the analysis proceeds.84
At the last step of the evaluation, step five, the ALJ must determine
whether the claimant’s RFC, age, education and work experience allow her to
perform any other work in the national economy.85 If so, the claimant is not
disabled. But if she is unable to do other work, the claimant is disabled.
Although the claimant generally continues to have the burden of
proving disability, a limited burden of production shifts to the Commissioner at
step five. To support a finding that the claimant is not disabled at this step, the
Commissioner must provide evidence demonstrating that other work exists in
significant numbers in the national economy that the claimant can perform, given
Id. § 404.1545(a)(1).
See id. § 404.1520(f).
See id. § 404.1520(g)(1).
her RFC, age, education and work experience.86
Medical Sources and the “Treating Physician” Rule
“The term ‘medical sources’ refers to both ‘acceptable medical
sources’ and other health care providers who are not ‘acceptable medical
sources.’”87 Medical sources include licensed physicians, licensed or certified
psychologists, licensed optometrists, licensed podiatrists, and qualified speechlanguage pathologists.88 Medical sources who are not acceptable medical sources
include nurse practitioners, physician assistants, and certain other sources.89
Only acceptable medical sources can be relied on to establish the
existence of a medically determinable impairment or be considered treating sources
whose opinions are entitled to controlling weight under the “treating physician”
rule.90 Under the “treating physician” rule, “the medical opinion of a claimant’s
treating physician is given controlling weight if it is well supported by medical
See id. §§ 404.1520(g), 404.1560(c).
SSR 06-03p, 2006 WL 2329939, at *1 (S.S.A. Aug. 9, 2006) (“SSR
Medical Sources”) (citing 20 C.F.R. §§ 404, 1512, 416.912).
See id. at *2.
See id. at *2-3.
findings and not inconsistent with other substantial record evidence.”91 When a
treating physician’s opinion is not given controlling weight, the regulations require
the ALJ to consider several factors in determining how much weight it should
receive. These factors include: (1) the frequency of examination and the length,
nature, and extent of the treatment relationship; (2) the evidence in support of the
opinion; (3) the opinion’s consistency with the record as a whole; and (4) whether
the opinion is from a specialist.92 After considering the above factors, the ALJ
must “‘comprehensively set forth [her] reasons for the weight assigned to a treating
The ALJ erred at step five of the disability analysis by finding that
Shaw v. Carter, 221 F.3d 126, 134 (2d Cir. 2000) (citing 20 C.F.R. §
416.927(d)(2)). See also 20 C.F.R. § 404.1527(d)(2) (“If we find that a treating
source’s opinion on the issue(s) of the nature and severity of your impairment(s) is
well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in your case
record, we will give it controlling weight.”).
See 20 C.F.R. § 404.1527(d)(2).
Newbury v. Astrue, 321 Fed. App’x 16, 17 (2d Cir. 2009) (quoting
Halloran, 362 F.3d at 33). See also 20 C.F.R. § 404.1527(d)(2) (stating that the
agency “will always give good reasons in our notice of determination or decision
for the weight we give [the claimant’s] treating source’s opinion”).
Garcia could perform jobs in the national economy.94 Specifically, the ALJ erred
by failing to accord proper weight to the opinion of the treating psychiatrist Dr.
Kury. Failure to properly apply the treating physician rule means the
Commissioner’s decision is not based on substantial evidence.95
The crucial piece of Dr. Kury’s opinion that the ALJ disregarded was
the conclusion that Garcia would miss work more than three times a month
because of her mental condition. The VE testified that, assuming Garcia
maintained the RFC to perform medium work, there would be no jobs in the
national economy if she could not “maintain a regular schedule defined as three
absences per month.”96
Dr. Kury’s opinion should have been given controlling weight. Dr.
Kury, as a psychiatrist, specializes in mental health. Garcia was treated at Bowen
Because proper application of the treating physician rule at step five is
sufficient to find Garcia disabled, I decline to address whether the ALJ committed
error at the remaining steps of the analysis.
See Golden v. Secretary of Health & Human Servs., 740 F. Supp. 955,
960 (W.D.N.Y. 1990) (“Where the treating physician rule has been applied
incorrectly, a decision by the Secretary denying benefits cannot be upheld on the
grounds that the denial is supported by substantial evidence.” (citing Johnson v.
Bowen, 817 F.2d 983, 986 (2d Cir. 1987)).
Tr. at 62.
since 1998 and by Dr. Kury for at least two years.97 During those two years, Dr.
Kury consistently found severe functional limitations and even documented a
decline in GAF score – a metric that the ALJ afforded significant weight. These
factors, while mentioned by the ALJ, were given no weight. ALJ Friedman found
the opinion of Dr. Kury “not at all convincing” based on the remaining two factors,
that the opinion was not supported by evidence in the record and was not
consistent with the record as a whole.98 This conclusion is not supported by
The ALJ noted that the source of her depression and anxiety were
“family issues . . . as well as other domestic issues . . . [and] concerns regarding her
physical problems.”99 The ALJ cited the dozens of therapy notes spanning two
years from SW Nunez and Dr. Kury chronicling these stressors. From this the ALJ
inexplicably concluded that the extensive documentation of Garcia’s depression
was evidence undermining the opinion of her treating psychiatrist instead of
evidence corroborating it.100
Id. at 548.
Id. at 22.
The ALJ also pointed to the lack of documentation regarding
“significant cognitive difficulties, suicidal/homicidal ideation, impaired thought
processes, and hallucinations or delusions” as evidence undermining Dr. Kury’s
functional assessment.101 Yet the ALJ failed to accord any significance to the
numerous explicit clinical findings of severe impairments on the Treatment Plan
Reviews and ignored the fact that Garcia had been prescribed two different
antidepressants for the entire time period documented by the Treatment Notes.
An ALJ may not “simply pick and choose from the transcript only
such evidence that supports his determination.”102 This is precisely the sort of
second guessing the treating physician rule is designed to prevent. Indeed,
“[b]ecause mental disabilities are difficult to diagnose without subjective,
in-person examination, the treating physician rule is particularly important in the
context of mental health.”103 ALJ Friedman erred by “improperly and ‘arbitrarily
substitut[ing] his own judgment for competent medical opinion,’ and ‘set[ing] his
Sutherland v. Barnhart, 322 F. Supp. 2d 282, 289 (E.D.N.Y. 2004).
Roman v. Astrue, No. 10 Civ. 3085, 2012 WL 4566128, at *18
(E.D.N.Y. Sept. 28, 2012) (citing Canales v. Commissioner of Soc. Sec., 698 F.
Supp. 2d 335, 342 (E.D.N.Y. 2010)). Accord Drake v. Astrue, No. 07 Civ. 377,
2008 WL 4501848, at *4 (W.D.N.Y. Sept. 30, 2008) (“In cases where the Plaintiff
alleges a disability primarily based on a mental impairment, the treating
physician’s opinion may be more important still.”).
own expertise against that of [the treating psychiatrist].’”104
The ALJ’s reliance on Dr. Fujiwaki’s evaluation is also misplaced.
Dr. Fujiwaki noted, consistent with the opinion of Dr. Kury, that Garcia would
have difficulty maintaining a regular work schedule and that she would struggle to
deal with stress. Although these findings note slightly less severe restrictions than
those found by Dr. Kury, Dr. Fujiwaki examined Garcia four months prior to Dr.
Kury’s completion of the first Impairment Questionnaire and over a year prior to
the completion of the second Impairment Questionnaire.105 Most notably, Dr.
Fujiwaki evaluated Garcia two days prior to the completion of Garcia’s least
restrictive Treatment Plan Review. At the time Dr. Fujiwaki assessed Garcia, Dr.
Kury assigned Garcia a GAF score of 65 – indicating “mild overall impairment” –
but by the time the first Impairment Questionnaire was completed Dr. Kury
Sublette v. Astrue, 856 F. Supp. 2d 614, 619 (W.D.N.Y. 2012)
(quoting Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998)).
See Colegrove v. Commissioner of Soc. Sec., 399 F. Supp. 2d 185, 194
(W.D.N.Y. 2005) (noting that the opinion of a consulting psychiatrist did not
constitute substantial evidence contradicting the opinion of the treating psychiatrist
when it covered a different time period); Talanker v. Barnhart, 487 F. Supp. 2d
149, 159 (E.D.N.Y. 2007) (“[B]because the treating physician has developed a
relationship with the claimant over time and has the benefit of a longitudinal view
of the claimant’s condition and progress, the treating physician’s opinion is
considered more valuable than the opinions of consulting physicians, who may
have examined the claimant only once.”).
assigned Garcia a GAF score of 55 – indicating more severe impairment.106
Finally, it was error to assign “significant weight” to the opinion of a consulting
psychiatrist who evaluated Garcia a single time while completely disregarding the
opinion of Dr. Kury who evaluated Garcia at least eleven times.107
Remand is unnecessary “‘[w]here application of the correct legal
standard could lead to only one conclusion.’”108 Properly applying the treating
physician rule here leads to the conclusion that Garcia would not be able to
maintain a regular work schedule or deal with the stress of a work environment. In
addition to the testimony of the VE, “there is ample authority that absences of three
or more days per month preclude gainful employment.”109 Garcia is therefore
disabled within the meaning of the SSA.
For the foregoing reasons, the decision of the Commissioner is
Tr. at 21-22.
See Avila v. Astrue, 933 F. Supp. 2d 640, 654 (S.D.N.Y. 2013)
(finding error in assigning controlling weight to the opinion of a consulting
psychiatrist who only evaluated the claimant a single time).
Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010) (quoting Schaal v.
Apfel, 134 F.3d 496, 504 (2d Cir. 1998)).
Saunders v. Colvin, 93 F. Supp. 3d 179, 186 (W.D.N.Y. 2015)
- Appearances For Plaintiff:
Charles E. Binder, Esq.
Binder and Binder P.C.
60 East 42nd Street, Suite 520
New York, NY 10165
Jeremy Asen Linden, Esq.
Social Security Administration, Office of the General Counsel
26 Federal Plaza, Rm. 3904
New York, NY 10278
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