Urena v. Colvin

Filing 23

MEMORANDUM DECISION & ORDER granting 15 Motion for Judgment on the Pleadings; denying 20 Motion for Judgment on the Pleadings. Plaintiff Merys Urena seeks review, pursuant to 42 U.S.C. § 405(g), of the decision by defendant Commi ssioner of Social Security ("Commissioner"), finding that she was not disabled and not entitled to Disability Insurance Benefits under Title II of the Social Security Act and Supplemental Security Income benefits under Title XVI o f the Social Security Act. The parties have filed cross-motions for judgment on the pleadings. Plaintiff argues that the Commissioner made several errors in her decision and requests that the decision be reversed and plaintiff's claim be rem anded for an award and calculation of benefits or, in the alternative, for further proceedings. The Commissioner opposes, arguing that the decision was legally correct and supported by substantial evidence. For the reasons set forth below, the Court GRANTS plaintiff Urena's motion for judgment on the pleadings and DENIES the Commissioner's cross-motion for judgment on the pleadings. The Court finds that there are gaps in the administrative record that were not properly devel oped by the ALJ-specifically, those concerning Dr. Nunez's treatment notes and Mental Status Examination ("MSE") findings. Accordingly, as described herein, this case is remanded for further proceedings consistent with this Opinion. (As further set forth in this Memorandum Decision & Order.) (Signed by Judge Katherine B. Forrest on 5/16/2017) (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
MERYS URENA,
:
:
Plaintiff,
:
:
-v:
:
NANY A. BERRYHILL, Acting Commissioner of :
Social Security,
:
:
Defendant.
:
:
---------------------------------------------------------------------- X
KATHERINE B. FORREST, District Judge:

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: May 16, 2017

16-cv-4194 (KBF)
MEMORANDUM
DECISION & ORDER

Plaintiff Merys Urena seeks review, pursuant to 42 U.S.C. § 405(g), of the
decision by defendant Commissioner of Social Security (“Commissioner”), finding
that she was not disabled and not entitled to Disability Insurance Benefits under
Title II of the Social Security Act and Supplemental Security Income benefits under
Title XVI of the Social Security Act. The parties have filed cross-motions for
judgment on the pleadings. Plaintiff argues that the Commissioner made several
errors in her decision and requests that the decision be reversed and plaintiff’s
claim be remanded for an award and calculation of benefits or, in the alternative,
for further proceedings. The Commissioner opposes, arguing that the decision was
legally correct and supported by substantial evidence.
For the reasons set forth below, the Court GRANTS plaintiff Urena’s motion
for judgment on the pleadings and DENIES the Commissioner’s cross-motion for
judgment on the pleadings. The Court finds that there are gaps in the

administrative record that were not properly developed by the ALJ—specifically,
those concerning Dr. Nunez’s treatment notes and Mental Status Examination
(“MSE”) findings. Accordingly, as described below, this case is remanded for further
proceedings consistent with this Opinion.
I.

BACKGROUND
A.

Procedural Background

Plaintiff Merys Urena filed applications for Disability Insurance Benefits
(“DIB”) under Title II of the Social Security Act (“Act”) and Supplemental Security
Income (“SSI”) under Title XVI of the Act on October 28, 2010, alleging disability
since January 1, 2009, because of depression, low back pain, and arthritis. (Tr. 6061, 163-73, 196.) The Social Security Administration (“SSA”) denied the
applications. Plaintiff then requested an administrative hearing, which took place
before an administrative law judge (“ALJ”) on January 13, 2012. (Tr. 20-59.) The
ALJ, before whom plaintiff and her attorney appeared, issued a decision finding
that plaintiff was not disabled and not eligible for DIB and SSI. (Tr. 26-34.) The
Appeals Council denied plaintiff’s request for review (Tr. 1-8), and plaintiff
thereafter filed a civil action. On February 11, 2015, the district court remanded
the case for further administrative proceedings to consider plaintiff’s mental
impairments. (Tr. 403-36.)
Upon remand, a second hearing was held before an ALJ on January 27, 2016.
(Tr. 345-69.) Plaintiff, who was represented by an attorney, appeared and testified;
a vocational expert also testified. (Tr. 345-69.) On March 31, 2016, the ALJ again
found that plaintiff was not disabled under the Act. (Tr. 370-95.) The ALJ’s
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decision became the final decision of the Commissioner of Social Security
(“Commissioner”), and plaintiff filed this instant action on June 6, 2016. (ECF No.
1.) The period at issue is from January 1, 2009—plaintiff’s alleged disability onset
date—through the Commissioner’s March 31, 2016, final decision.
B.

Plaintiff’s Instant Motion

Plaintiff filed her instant motion “to contest the decision of the Commissioner
of Social Security . . . . that she is not disabled as a result of a severe psychiatric
illness.” (Memorandum of Law in Support of Plaintiff’s Motion for Judgment on the
Pleadings (“Plaintiff’s Mem. in Supp.”), ECF No. 16, at 1.) First, plaintiff argues
that the ALJ’s decision should be reversed because the ALJ violated the treating
physician rule. (Id. at 15-26.) Specifically, plaintiff asserts that the ALJ improperly
failed to give “controlling weight” to plaintiff’s treating psychiatrist, Dr. Giovanny
Nunez. (Id.) Second, plaintiff argues that the ALJ’s assessment of the credibility of
plaintiff’s testimony was legally deficient. (Id. at 27-28.) Plaintiff asks the Court to
reverse the Commissioner’s decision and remand solely for the calculation of
benefits or, in the alternative, remand to the Commissioner for a new hearing and
decision. (Id. at 28-31.)
The Commissioner has opposed plaintiff’s motion and has filed a cross-motion
for judgment on the pleadings. The Commissioner argues that “the Commissioner’s
decision is supported by substantial evidence in the record, and is based upon the
application of correct legal standards.” (Memorandum of Law in Support of the
Commissioner’s Cross-Motion for Judgment on the Pleadings and in Opposition to
Plaintiff’s Motion for Judgment on the Pleadings (“Commissioner’s Mem. in Supp.”),
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ECF No. 21, at 1.) Specifically, the Commissioner argues that the ALJ properly
considered the medical evidence and opinions in the record and appropriately
evaluated plaintiff’s credibility. (Id. at 21-33.) The Commissioner asks the Court to
affirm its decision or, in the event that the Court reverses, to remand for further
proceedings. (Id. at 33-34.)
II.

APPLICABLE LEGAL PRINCIPLES
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 same
standard applicable to Fed. R. Civ. P. 12(b)(6) motions to dismiss applies to Fed. R.
Civ. P. 12(c) motions for judgment on the pleadings.” Bank of N.Y. v. First
Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010) (citation omitted). Therefore,
“[t]o survive a Rule 12(c) motion, the complaint ‘must 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 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). 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
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any other kind of substantial gainful work which exists in the national economy.”
Id. § 423(d)(2)(A). The disability must be “demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.” Id. § 423(d)(3).
The Commissioner uses a five-step process when making disability
determinations. See 20 C.F.R. §§ 404.1520, 416.920. 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 [Appendix 1]. If the
claimant has a listed impairment, the Commissioner will consider the
claimant disabled without considering vocational factors such as age,
education, and work experience; the Commissioner presumes that a
claimant who is afflicted with a listed impairment is unable to perform
substantial gainful activity. Assuming the claimant does not have a
listed impairment, the fourth inquiry is whether, 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 Cir. 1999) (citation and footnote omitted); see
also Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003); DeChirico v. Callahan, 134
F.3d 1177, 1179-80 (2d Cir. 1998). The claimant bears the burden of proof in steps
one through four, while the Commissioner bears the burden in the final step.
Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012).

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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 ALJ applied the correct legal standard
and whether his or her findings of fact are supported by substantial evidence.
When these two conditions are met, the Commissioner’s decision is final. See 42
U.S.C. § 405(g); Burgess v. Astrue, 537 F.3d 117, 127-28 (2d Cir. 2008); Veino v.
Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Rosa v. Callahan, 168 F.3d 72, 77 (2d
Cir. 1999); Balsamo v. Chater, 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.” (citation omitted)).
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 v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)) (internal quotation marks omitted). 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).
While the Court must consider the record as a whole in making this
determination, it is not for this Court to decide de novo whether the plaintiff is
disabled. See Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); Beauvoir v. Chater,
104 F.3d 1432, 1433 (2d Cir. 1997); Veino, 312 F.3d at 586 (“Where the
Commissioner’s decision rests on adequate findings supported by evidence having
rational probative force, we will not substitute our judgment for that of the
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Commissioner.”). The Court must uphold the Commissioner’s decision upon a
finding of substantial evidence, even when contrary evidence exists. See Alston v.
Sullivan, 904 F.2d 122, 126 (2d Cir. 1990) (“Where there is substantial evidence to
support either position, the determination is one to be made by the factfinder.”
(citation omitted)); see also DeChirico, 134 F.3d at 1182-83 (affirming an ALJ
decision where substantial evidence supported both sides).
Finally, it is the function of the Commissioner, not the Court, “to resolve
evidentiary conflicts and to appraise the credibility of witnesses, including the
claimant.” Aponte v. Sec’y, Dep’t of Health & Human Servs., 728 F.2d 588, 591 (2d
Cir. 1984) (quoting Carroll v. Sec’y of Health & Human Servs., 705 F.2d 638, 642
(2d Cir. 1983)) (internal quotation mark omitted); see also Gernavage v. Shalala,
882 F. Supp. 1413, 1419 n.6 (S.D.N.Y. 1995) (“Deference should be accorded the
ALJ’s [credibility] determination because he heard plaintiff’s testimony and
observed his demeanor.” (citations omitted)). An ALJ’s decision on credibility “must
contain specific reasons for the finding on credibility, supported by the evidence in
the case record, and must be sufficiently specific to make clear to the individual and
to any subsequent reviewers the weight the adjudicator gave to the individual’s
statements and the reasons for that weight.” Soc. Sec. Ruling 96–7p, 61 Fed. Reg.
34484.
D.

The Treating Physician Rule

“[T]he treating physician rule generally requires deference to the medical
opinion of a claimant’s treating physician,” although an ALJ need not afford
controlling weight to a treating physician’s opinion that is “not consistent with other
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substantial evidence in the record, such as the opinions of other medical experts.”
Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (citations omitted); see also
Burgess, 537 F.3d at 128. An ALJ who does not accord controlling weight to the
medical opinion of a treating physician must consider various factors, including “(i)
the frequency of examination and the length, nature and extent of the treatment
relationship; (ii) the evidence in support of the treating physician’s opinion; (iii) the
consistency of the opinion with the record as a whole; [and] (iv) whether the opinion
is from a specialist.” Halloran, 362 F.3d at 32 (citing 20 C.F.R. § 404.1527(d)(2)).
After considering these factors, the ALJ must “comprehensively set forth reasons for
the weight assigned to a treating physician’s opinion.” Id. at 33.
Although the ALJ will consider a treating source’s opinion as to whether a
claimant is disabled or able to work, the final responsibility for deciding those
issues is reserved to the Commissioner, and the treating source’s opinion on them is
not given “any special significance.” 20 C.F.R. § 416.927(d)(3); see also Soc. Sec.
Ruling 96-5p, 1996 WL 374183, at *3 (July 2, 1996); Snell v. Apfel, 177 F.3d 128,
133 (2d Cir. 1999). When a finding is reserved to the Commissioner, “the Social
Security Administration considers the data that physicians provide but draws its
own conclusions as to whether those data indicate disability. A treating physician’s
statement that the claimant is disabled cannot itself be determinative.” Snell, 177
F.3d at 133. It is the ALJ’s duty, as the trier of fact, to resolve conflicting medical
evidence. See Richardson, 402 U.S. at 399.

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E.

The ALJ’s Duty to Develop the Record

Although “[t]he claimant has the general burden of proving that he or she has
a disability within the meaning of the Act,” “the ALJ generally has an affirmative
obligation to develop the administrative record.” Burgess, 537 F.3d at 128 (citations
and internal quotation marks omitted). SSA regulations require an ALJ to “inquire
fully into the matters at issue and . . . receive in evidence the testimony of witnesses
and any documents which are relevant and material to such matters.” Id. (quoting
20 C.F.R. § 702.338). “In light of the ALJ’s affirmative duty to develop the
administrative record, ‘an ALJ cannot reject a treating physician’s diagnosis
without first attempting to fill any clear gaps in the administrative record.’” Id. at
129 (citation omitted); see also Calzada v. Asture, 753 F. Supp. 2d 250, 277
(S.D.N.Y. 2010) (“If the ALJ is not able to fully credit a treating physician’s opinion
because the medical records from the physician are incomplete or do not contain
detailed support for the opinions expressed, the ALJ is obligated to request such
missing information from the physician.” (citing Perez, 77 F.3d at 47)).
III.

DISCUSSION
Plaintiff advances two arguments in support of her position that the ALJ

erred in finding that she was not disabled: (1) the ALJ improperly failed to give
“controlling weight” to plaintiff’s treating psychiatrist, Dr. Giovanny Nunez; and (2)
the ALJ’s assessment of the credibility of plaintiff’s testimony was legally deficient.
(See Plaintiff’s Mem. in Supp. at 15-28.) As discussed below, the Court finds that
the ALJ failed to fully develop the administrative record; the Court thus remands
for the ALJ to do so and consider plaintiff’s claim upon a full record.
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A.

The ALJ’s Decision

The ALJ evaluated plaintiff’s claim pursuant to the five-step sequential
evaluation process and concluded that plaintiff has not been under a disability
within the meaning of the Act since January 1, 2009, the date of plaintiff’s
application. At step one, the ALJ found that plaintiff had not engaged in
substantial gainful activity since January 1, 2009 (the application date). (Tr. 378.)
At step two, he determined that plaintiff had the following severe impairments:
major depressive disorder, hypertension, hypothyroidism, obesity, gastritis,
degenerative joint disease of the right knee, a history of vertigo, and migraines. (Tr.
379.) The ALJ determined at step three that none of plaintiff’s impairments, nor
any combination of those impairments, was of a severity to meet or medically equal
one of the listed impairments in Appendix 1 of the regulations. (Tr. 379)
Before proceeding to step four, the ALJ determined that plaintiff had the
residual functional capacity to perform “medium work” as defined in the
regulations, except that she must avoid working at unprotected heights or around
hazardous machinery; the ALJ further determined that plaintiff perform the full
range of only repetitive unskilled work that requires no more than occasional close
interpersonal contact with supervisors and coworkers and no close interpersonal
contact with the general public. (Tr. 380.) In making this finding, the ALJ
considered plaintiff’s symptoms, objective medical evidence and other evidence, as
well as opinion evidence. The ALJ concluded that plaintiff’s “medically
determinable impairments could reasonably be expected to cause the alleged
symptoms, but further concluded that plaintiff’s “statements concerning the
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intensity, persistent and limiting effects are these symptoms are not entirely
consistent with the record.” (Tr. 385.) The ALJ also noted that his finding reflected
“significant weight” given to the opinion of Dr. Gonzales; “significant weight” to the
opinion of Dr. Matthew; “little weight” to the opinion of Dr. Gerhart; “substantial
weight” to the opinion of Dr. Brewer; “partial, but not controlling weight” to the
opinion of Dr. Nunez; “partial weight” to the opinion of Dr. Alexander; “partial
weight” to the opinion of Dr. Mahony; and “limited weight” to the opinion of the
DDS reviewing psychologist. (Tr. 386-87.)
At step four, the ALJ found that plaintiff was unable to perform any past
relevant work. (Tr. 388.) Proceeding to step five, the ALJ determined that
considering plaintiff’s “age, education, work experience, and residual functional
capacity, there are jobs that exist in significant numbers in the national economy
that [plaintiff] can perform.” (Tr. 388.) Thus, the ALJ found that plaintiff was not
disabled under the Act and denied her claims. (Tr. 388-89.) The ALJ relied on the
Medical-Vocational Guidelines as a framework for his decision and utilized a
vocational expert. (Tr. 388.)
B.

Application of the Treating Physician Rule

Plaintiff’s principal claim is that the ALJ failed to properly weigh the opinion
evidence in the record. (Mem. in Supp. at 15-24.) Specifically, plaintiff claims that
the ALJ failed to apply the treating physician rule in giving “partial, but not
controlling weight” to Dr. Nunez plaintiff’s treating psychiatrist. (Id.)
The ALJ did not assign Dr. Nunez’s opinion controlling weight primarily
because, in the ALJ’s view, Dr. Nunez’s opinion and clinical findings were in conflict
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with her office notes. (Tr. 387.) The ALJ explained that “opinions by treating
sources must be supported by substantial evidence, the best evidence of which are
contemporaneous treatment notes, which in this case, do not support the medical
source statements.” (Tr. 387.) The ALJ further stated that “[i]f office notes are
defective, the onus is on the provider to document actual defects.” (Tr. 387.)
Plaintiff acknowledges that the sections of Dr. Nunez’s notes that record
plaintiff’s findings on mental status examination (“MSE”) are mostly normal.
(Plaintiff’s Mem. in Supp. at 14.) However, plaintiff explains that this is based, in
part, on the computer program Dr. Nunez used for progress notes. (Id.) This
computer program was “programmed to produce a normal MSE, and Dr. Nunez did
not always remember to edit out normal findings when she should have.) (Id.
(citing Tr. 683)) Plaintiff cites five examples. (Id.)
The Court has already noted that while “[t]he claimant has the general
burden of proving that he or she has a disability within the meaning of the Act,”
“the ALJ generally has an affirmative obligation to develop the administrative
record.” Burgess, 537 F.3d at 128 (citations and internal quotation marks omitted).
“In light of the ALJ’s affirmative duty to develop the administrative record, ‘an ALJ
cannot reject a treating physician’s diagnosis without first attempting to fill any
clear gaps in the administrative record.’” Id. at 129 (citation omitted); see also
Calzada v. Asture, 753 F. Supp. 2d 250, 277. Here, the Court finds that the ALJ
erred in rejecting Dr. Nunez’s diagnosis without first attempting to fill the clear
gaps as a result of the erroneous progress notes. Presented with Dr. Nunez’s

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testimony regarding the computer program and the potentially incorrect MSE
findings in the treatment notes, the ALJ should have inquired further.
C.

Remedy

The Social Security Act directs that “[t]he court shall have power to enter,
upon the pleadings and transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Commissioner of Social Security, with or without
remanding the cause for a rehearing.” 42 U.S.C. § 405. The Second Circuit has
explained that “where the administrative record contains gaps, remand to the
Commissioner for further development of the evidence is appropriate.” Quinion v.
Apfel, 8 F. App’x 53, 54 (2d Cir. 2001); see Rosa, 168 F.3d at 82-83. That is, when
“further findings would so plainly help to assure the proper disposition of [the]
claim, we believe that remand is particularly appropriate.” Id. (alteration in
original).

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The Court has noted the gaps in the administrative record that were not
properly developed by the ALJ—specifically, those concerning Dr. Nunez’s
treatment notes and MSE findings. The Court thus remands this case to the ALJ
for further proceedings consistent with this Opinion & Order.1 Upon remand, the
ALJ must appropriately apply the legal principles as described above.
SO ORDERED.
Dated:

New York, New York
May 16, 2017
______________________________________
KATHERINE B. FORREST
United States District Judge

1

The Court finds no error in the ALJ’s assessment of plaintiff’s credibility.

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