Garcia v. Commissioner of Social Security
Filing
24
OPINION AND ORDER re: 14 MOTION for Judgment on the Pleadings filed by Commissioner of Social Security. For the reasons stated above, the Commissioner's motion for judgment on the pleadings (Docket# 14) is denied, and the case is remanded for further proceedings in accordance with this Opinion. (As further set forth in this Order.) (Signed by Magistrate Judge Gabriel W. Gorenstein on 9/23/2016) Copies Sent By Chambers. (kko)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------X
FRANCISCO GARCIA,
:
:
Plaintiff,
OPINION AND ORDER
15 Civ. 6544 (GWG)
:
-v.:
COMMISSIONER OF SOCIAL SECURITY,
:
Defendant.
:
---------------------------------------------------------------X
GABRIEL W. GORENSTEIN, United States Magistrate Judge:
Plaintiff Francisco Garcia brings this action under 42 U.S.C. § 405(g) and 1383(c) to
obtain judicial review of the final decision of the Commissioner of Social Security
(“Commissioner”) denying his claim for supplemental security income and disability insurance
benefits under the Social Security Act. On March 1, 2016, the Commissioner moved for
Judgment on the Pleadings pursuant to Fed R. Civ. P. 12(c). See Motion for Judgment on the
Pleadings, filed March 1, 2016 (Docket # 14); Memorandum of Law in Support of Defendant’s
Motion for Judgment on the Pleadings, filed March 1, 2016 (Docket # 15) (“Comm. Mem.”).
Garcia, who is proceeding pro se, has not filed any opposition to the Commissioner’s motion.
For the following reasons, the Commissioner’s motion is denied and the case is ordered
remanded.
I.
BACKGROUND
A.
Garcia’s Claim for Benefits and Procedural History
Garcia filed applications for benefits on April 11, 2013, alleging disability beginning on
April 17, 2010. See Administrative Record, filed March 1, 2016 (Docket # 13) (“R.”), at 23.
The Social Security Administration (“SSA”) denied his applications on June 26, 2013. Id. On
August 22, 2014, Administrative Law Judge Patrick Kilgannon (“ALJ”) held a hearing by video
during which Garcia was represented by an attorney. R. 40-58. Testimony was taken from
vocational expert Melissa Bass-Harlan. R. 51-58. On November 4, 2014, the ALJ issued a
decision finding that Garcia was not disabled. R. 23-32. The Appeals Council denied Garcia’s
request for review on July 21, 2015, making the ALJ’s determination the Commissioner’s final
decision. R. 1-7. Garcia filed the instant lawsuit to review that determination on August 19,
2015. Complaint, filed August 19, 2015 (Docket # 2).
B.
The ALJ’s Decision
The ALJ ruled that Garcia had not been under a disability since April 11, 2013, the date
he filed his application for benefits. R. 32. In his decision, the ALJ used the five-step sequential
evaluation process described in the Social Security regulations for determining whether an
individual is disabled. R. 23-25; see 20 C.F.R. 416.920(a). The ALJ found that Garcia met the
insured status requirements of the Social Security Act through September 30, 2011, R. 25; that
Garcia had not engaged in substantial gainful activity since April 17, 2010, the date of the
alleged onset of his limitations, id.; and that Garcia suffered from two severe impairments —
specifically, a “learning disorder” and “major depressive disorder,” id.
The ALJ determined, however, that Garcia’s alleged physical impairments, “including
hypertension, a back disorder, high cholesterol, asthma, and glaucoma,” were non-severe. R. 2526. In reaching this determination, the ALJ gave the opinion of a consulting physician, Dr. Iqbal
Teli, “[g]reat weight,” which the ALJ found was well supported by Dr. Teli’s examination. R.
26.
Next, the ALJ determined that Garcia “d[id] not have an impairment or combination of
2
impairments that me[t] or medically equal[ed] the severity of one of the listed impairments in 20
CFR 404, Subpart P, Appendix 1.” R. 26 (citation omitted). The ALJ found that in activities of
daily living, Garcia had only a “mild restriction.” Id. With regard to social functioning,
concentration, persistence or pace, the ALJ found that Garcia had only moderate difficulties. Id.
The ALJ acknowledged that Garcia did suffer from certain difficulties with memory and
concentration, but noted that he “was able to count and recalled 2 of 3 objects after 5 minutes.”
Id. The ALJ found that Garcia held the residual functional capacity to
perform a full range of work at all exertional levels but with the following nonexertional
limitations: unskilled tasks in a low stress job, occasional decision making and occasional
changes in work setting. Occasional interaction with public and co-workers.
R. 27.
Although the ALJ found that Garcia’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms, he found that Garcia’s description
regarding the intensity and limiting effects of the symptoms was not entirely credible. R. 28.
The ALJ noted, among other things, that Garcia’s “allegations are not supported by the treating
source evidence of record, which reflects a positive response to medication treatment and
therapy,” and that overall Garcia’s “treatment has been conservative and he endorsed an ability
to perform several activities of daily living.” Id.
In reaching this conclusion, the ALJ dismissed an opinion from treating physician Dr.
Upendra Bhatt that Garcia was unable to work for at least 12 months due to his mood disorder,
and that he was, for a time, temporarily unemployable. R. 30. The ALJ found Dr. Bhatt’s
opinion “highly inconsistent with her own treatment notes[,] . . . with [Garcia’s] conservative
course of treatment, which has only involved therapy and medication management [, and
Garcia’s] activities of daily living.” Id. Similarly, the ALJ granted “little weight” to the opinion
3
of consultive examiner Dr. David Mahony. He determined that Dr. Mahony’s “conclusions
[were] largely based on [Garcia’s] own subjective complaints, as Dr. Mahony failed to observe
any perceptual disturbances during his examination,” and that his conclusions were generally
inconsistent with both his own examination results and Garcia’s ability to perform activities of
daily living. Id.
The ALJ assigned “great weight” to the opinion of DDS mental consultant Dr. L.
Blackwell. Id. The ALJ noted that Dr. Blackwell’s conclusions were consistent with Garcia’s
“conservative course of treatment . . . [and Garcia’s] activities of daily living.” Id. The ALJ also
awarded “[s]ome weight” to the opinion of Dr. Michael McNett,1 one of Garcia’s treating
physicians, who concluded that Garcia had no functional limitations, because the conclusion was
“supported by the record,” and Garcia’s “lack of treatment for his alleged physical impairments.”
R. 30-31. The ALJ also reviewed the third party function report of Ms. Norma Tejada, but
granted it no more weight than the claimant’s own testimony. R. 31.
The ALJ determined that Garcia was capable of performing his past relevant work as a
cleaner, both “as actually and generally performed,” and thus that Garcia had not been under a
disability since April 17, 2010. R. 31-32.
II.
APPLICABLE LAW
A court reviewing a final decision by the Commissioner “is limited to determining
whether the [Commissioner’s] conclusions were supported by substantial evidence in the record
and were based on a correct legal standard.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013)
(per curiam) (citation and quotation marks omitted); accord Burgess v. Astrue, 537 F.3d 117,
1
The ALJ incorrectly referred to Dr. McNett as Dr. “Manett” or “Manette.” Compare R.
30, 31 with R. 405, 409.
4
127 (2d Cir. 2008); 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 . . . .”); id.
§ 1383(c)(3) (“The final determination of the Commissioner of Social Security . . . shall be
subject to judicial review as provided in section 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.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); accord Burgess, 537 F.3d at 127-28;
Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000).
“Even where the administrative record may also adequately support contrary findings on
particular issues, the ALJ’s factual findings must be given conclusive effect so long as they are
supported by substantial evidence.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (per
curiam) (citation and internal quotation marks omitted). Thus, “[i]f the reviewing court finds
substantial evidence to support the Commissioner’s final decision, that decision must be upheld,
even if substantial evidence supporting the claimant’s position also exists.” Johnson v. Astrue,
563 F. Supp. 2d 444, 454 (S.D.N.Y. 2008) (citing Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir.
1990)); accord McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014) (“If evidence is susceptible
to more than one rational interpretation, the Commissioner’s conclusion must be upheld.”)
(citation omitted). The Second Circuit has characterized the “substantial evidence” standard as
“a very deferential standard of review — even more so than the ‘clearly erroneous’ standard.”
Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443, 447-48 (2d Cir. 2012) (per curiam) (citation
omitted). “The substantial evidence standard means once an ALJ finds facts, [a court] can reject
those facts only if a reasonable factfinder would have to conclude otherwise.” Id. at 448
(emphasis in original) (citation and internal quotation marks omitted). “The role of the
5
reviewing court is therefore quite limited and substantial deference is to be afforded the
Commissioner’s decision.” Johnson, 563 F. Supp. 2d at 454 (citation and internal quotation
marks omitted).
III.
DISCUSSION
Garcia’s form complaint seeks reversal or remand of the ALJ’s decision on the ground
that the decision was “not supported by substantial evidence . . . and/or contrary to law.”
Complaint, filed August 19, 2015 (Docket # 2), at 2. While Garcia has not filed any further
papers, a claimant’s failure to submit a motion for judgment on the pleadings “does not prevent
the Court from remanding this matter to the Commissioner if the record shows that remand is
warranted.” Rivera v. Comm’r of Soc. Sec., 2015 WL 6619367, at *9 (S.D.N.Y. Oct. 30, 2015)
(quoting Orr v. Comm’r of Soc. Sec., 2014 WL 4291829, at *4 (S.D.N.Y. Aug. 26, 2014)). The
defect we see in the proceeding before the agency relates to the consideration of evidence that
was submitted by Garcia to the Appeals Council following the adverse decision from the ALJ.
Accordingly, we begin by reviewing the law governing the submission of such evidence.
Under 20 C.F.R. §§ 404.970(b) and 416.1470(b), a claimant may submit new evidence to
the Appeals Council if it is “new,” “material,” and “relates to the period on or before the [ALJ’s]
hearing decision.” It is undisputed that these three criteria were met in Garcia’s case.
If the Appeals Council denies review of the ALJ’s decision, the new evidence “becomes
part of the administrative record for judicial review.” See Perez v. Chater, 77 F.3d 41, 45 (2d
Cir. 1996). Typically, a district court then “review[s] the entire administrative record, which
includes the new evidence, and determine[s], as in every case, whether there is substantial
evidence to support the decision of the Secretary.” Id. at 46; accord Lesterhuis v. Colvin, 805
F.3d 83, 87 (2d Cir. 2015); Urena v. Colvin, 2015 WL 585583, at *9 (S.D.N.Y. Feb. 11, 2015).
6
When the new evidence submitted to the Appeals Council includes the opinion of a
treating physician, however, the Appeals Council must give the same degree of deference to this
opinion that an ALJ would be required to give. See Snell v. Apfel, 177 F.3d 128, 134 (2d Cir.
1999); accord Shrack v. Astrue, 608 F. Supp. 2d 297, 302 (D. Conn. 2009). Under the so-called
“treating physician rule,” an ALJ generally must give “more weight to opinions” of a claimant’s
treating physician when determining if the claimant is disabled. See 20 C.F.R.
§§ 404.1527(c)(2), 416.927(c)(2). An ALJ must accord “controlling weight” to a treating
physician’s medical opinion as to the nature and severity of a claimant’s impairments 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 claimant’s] case record.” Id.
§§ 404.1527(c)(2), 416.927(c)(2). If the ALJ does not give controlling weight to a treating
physician’s opinion, the ALJ must provide “good reasons” for the weight given to that opinion.
Halloran v. Barnhart, 362 F.3d 28, 32-33 (2d Cir. 2004) (citing Schaal v. Apfel, 134 F.3d 496,
505 (2d Cir. 1998)) (internal quotation marks omitted). The regulations make clear that the SSA
“will always give good reasons . . . for the weight [they] give [a claimant’s] treating source’s
opinion,” 20 C.F.R. § 404.1527(c)(2). Case law holds that “[f]ailure to provide ‘good reasons’
for not crediting the opinion of a claimant’s treating physician is a ground for remand.” Snell v.
Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (citing Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir.
1998)).
Where the Appeals Council fails to appropriately consider new and material evidence in
light of the treating physician rule, “the proper course for the reviewing court is to remand the
case for reconsideration in light of the new evidence.” Shrack, 608 F. Supp. 2d at 302 (citing
Milano v. Apfel, 98 F. Supp. 2d 209, 216 (D. Conn. 2000)); accord Collazo v. Colvin, 2015 WL
7
9690324, at *13 (S.D.N.Y. Dec. 22, 2015) (noting that “the Appeals Council is bound by the
treating physician rule,” and that the Council’s boilerplate denial failed to satisfy the regulation’s
requirement that the Commissioner give good reasons for rejecting such an opinion); Lebow v.
Astrue, 2015 WL 1408865, at *6-7 (S.D.N.Y. Mar. 9, 2015) (same); La Torre v. Colvin, 2015
WL 321881, at *13 (S.D.N.Y. Jan. 26, 2015) (same).
Here, after receiving an unfavorable decision from the ALJ in this matter, Garcia sought
review from the Appeals Council. See R. 1-7. In his submission to the Appeals Council, Garcia
included a number of documents that were not previously made available to the ALJ. See R. 45. These documents included questionnaires completed by two treating physicians: one from Dr.
Homa Gerami dated June 26, 2014, R. 386-90, and another from Dr. Raman Patel dated July 1,
2014, R. 379-83. Dr. Gerami’s questionnaire notes that she first treated Garcia on September 27,
2012, and, at least for the year of 2014, saw Garcia every two months. R. 386. Dr. Gerami’s
answers to the questionnaire reflect her opinion that Garcia suffers from severe physical
restrictions, including a near inability to lift or carry items weighing less than 5 pounds and the
ability to remain seated for at most an hour and stand for less than an hour in a normal 8-hour
workday. R. 388-90. Dr. Gerami also states that Garcia’s symptoms would require him to take
unscheduled breaks every 30 minutes to an hour, that his symptoms would “[f]requently”
interfere with his attention and concentration during a normal 8-hour work day, and that they
would cause him to be absent from work more than three times per month. R. 390. Dr. Gerami
also indicated that these symptoms have been present since Garcia’s first treatment date,
September 27, 2012. Id.
Dr. Patel’s responses depict Garcia’s mental impairments as significant. Dr. Patel notes
that his treatment relationship with Garcia began on December 2, 2012, and that he has seen
8
Garcia “[e]very 1 to 2 months.” R. 379. Dr. Patel stated that Garcia was diagnosed with “major
depression - recurrent,” and that he suffered from symptoms including feelings of guilt or
worthlessness, a flat affect, difficulty thinking or concentrating, and auditory hallucinations. R.
379-80. Dr. Patel suggested that Garcia suffered from various moderate-to-marked limitations in
an array of mental activities, including marked limitations in both “complet[ing] a workday
without interruptions from psychological symptoms,” and “[p]erform[ing] at a consistent pace
without rest periods of unreasonable length or frequency.” R. 382. Dr. Patel concluded that
Garcia was likely to be absent from work more than three times per month due to his
impairments and treatment. R. 383. Dr. Patel stated that Garcia’s symptoms occurred as far
back as December 2, 2012. Id.
The Appeals Council, however, provided no explanation for why it rejected this evidence
in its denial of Garcia’s request for review. See R. 1-7. This evidence appears to have
significance, given that it falls in line with other evidence that the ALJ rejected. See, e.g., R. 30
(rejecting Dr. Bhatt’s opinion that Garcia was unable to work for a period of time due to his
mood disorder); R. 29-30 (rejecting Dr. Mahony’s conclusions that Garcia suffered from, among
other things, “marked limitations [in] making appropriate decisions, relating to others, and
dealing with stress,” because his conclusions were based heavily on Garcia’s subjective
complaints). Dr. Gerami and Dr. Patel’s conclusions that Garcia would be absent from work
more than three times per month are relevant to whether Garcia can engage in past work
inasmuch as such a limitation would, as the vocational expert described, “preclude all work.” R.
57-58.
Although the Appeals Council included these medical opinions in the administrative
record, R. 4-5, its ruling stated only that the record evidence “does not provide a basis for
9
changing the [ALJ’s] decision,” R. 2. The decision does not discuss either Dr. Gerami or Dr.
Patel’s new medical opinions, let alone give “good reasons” for rejecting such opinions, as is
required by the treating physician rule. Halloran, 362 F.3d at 32-33. The agency’s failure to
provide this explanation was legal error. See Collazo v. Colvin, 2015 WL 9690324, at *13
(S.D.N.Y. Dec. 22, 2015) (“[T]he Appeals Council stated . . . that it ‘considered . . . the
additional evidence’ and that it . . . ‘did not provide a basis for changing the [ALJ]’s decision.’
This statement did not ‘satisfy the regulations’ requirement that the Commissioner give good
reasons for the weight given [to] the treating physician’s opinion.”) (quoting McIntire v. Astrue,
809 F. Supp. 2d 13, 20-21 (D. Conn. 2010)) (further citations omitted); Lebow v. Astrue, 2015
WL 1408865, at *6-7 (S.D.N.Y. Mar. 9, 2015) (noting that new evidence was submitted before
the Appeals Council, and that “[t]he Appeals Council’s failure to evaluate this additional
evidence in the manner required by the treating physician rule was legal error and prejudiced
[claimant].”); La Torre v. Colvin, 2015 WL 321881, at *13 (S.D.N.Y. Jan. 26, 2015) (“Because
Dr. Takeshige’s and Dr. Bhatt’s multiple impairment questionnaires were new evidence from
treating physicians, the Appeals Council was required to evaluate them according to the
applicable regulations and give reason[s] for its determination not to credit the favorable reports.
Failure to do so was legal error.”) (internal citations omitted).
The defendant argues, Comm. Mem. at 23-25, that both Dr. Gerami and Dr. Patel’s
opinions are disputed by the other medical evidence of record. See, e.g., R. 293 (Dr. McNett
describes Garcia as suffering from “[n]o functional limitations”); R. 73-74 (Dr. Blackwell
concludes that Garcia “can return to his past work.”). We agree. Indeed, some of Dr. Gerami
and Dr. Patel’s conclusions appear inconsistent with their own earlier findings. See, e.g., R. 42526 (Dr. Gerami’s January 10, 2014, report notes that Garcia has no uncontrolled pain, “feels
10
better after increasing his medication,” and had “[n]o complains [sic] today.”); R. 428-29 (Dr.
Patel’s October 28, 2014, report notes that despite the recent death of Garcia’s brother, he
presented a stable affect, intact memory, normal thought content, and good insight, impulse
control, and judgment). But the defendant provides no basis for excusing the agency from the
requirement that it make findings as to the impact of the “treating physician rule” and provide
“good reasons” for rejecting a treating physician’s opinion.
Defendant cites to an unpublished decision in the case of Feliciano v. Colvin, 14 Civ.
9088 (S.D.N.Y. Jan. 8, 2016), annexed as Ex. A to Comm. Mem., in which the court performed a
treating physician analysis based on new evidence submitted to the Appeals Council. But even
Feliciano recognized that remand is appropriate where “the new evidence contradict[s] the ALJ’s
conclusion in important respects,” as is true here. Feliciano at 11 (citing Lesterhuis, 805 F.3d at
88). Notably, in Feliciano, the medical records and the opinions of three consulting physicians
refuted the new evidence. Id.
Here, by contrast, the evidence supporting the ALJ’s opinion is not nearly as strong as in
Feliciano. The ALJ’s conclusions rely heavily on the opinion of a consultant, Dr. Blackwell, see
R. 30, who does not appear to have met with Garcia, but who instead based his opinion on a
review of medical records. R. 59-80; 339-43; see also R. 267 (Garcia’s representative describes
Dr. Blackwell as a “non-examining” physician). Generally, such reports are entitled to less
weight than those of a treating or consulting physician who examined a claimant. See Bailey v.
Comm’r of Soc. Sec., 2016 WL 3962950, at *8 (E.D.N.Y. July 21, 2016) (“because Dr.
Gonzalez was a non-examining physician, his findings may be deemed ‘not sufficiently
substantial to undermine the opinion of the treating physician’”) (quoting Burgess, 537 F.3d at
128).
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?