DeJesus v. Berryhill
Filing
35
OPINION AND ORDER: For the reasons set forth above, Ms. DeJesus's motion for judgment on the pleadings (ECF No. 12) is GRANTED and the Commissioner's motion (ECF NO. 16) is DENIED. The Commissioner's decision denying benefits is vac ated, and this matter is remanded to the agency for further proceedings. The Clerk of Court is respectfully directed to close this case. SO ORDERED. (Signed by Magistrate Judge Sarah L Cave on 3/9/2020) (va) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ADANE P. DEJESUS,
Plaintiff,
against
CIVIL ACTION NO.: 18 Civ. 3170 (SLC)
OPINION AND ORDER
NANCY A. BERRYHILL, Commissioner of Social
Security,
Defendant.
SARAH L. CAVE, United States Magistrate Judge:
I.
INTRODUCTION
Plaintiff Adane P. DeJesus (“Ms. DeJesus”) commenced this action pursuant to
Section 205(g) of the Social Security Act (the “Act”), as amended, 42 U.S.C. § 405(g). She seeks
review of the January 20, 2016 decision by the Commissioner (the “Commissioner”) of the Social
Security Administration (“SSA”), denying her application for Supplemental Security Income
(“SSI”) and Disability Insurance Benefits (“DIB”) under the Act. Ms. DeJesus contends that the
decision of the Administrative Law Judge (“ALJ”) was erroneous, not supported by substantial
evidence, and contrary to law, and asks the Court to (a) reverse the Commissioner’s decision for
the calculation and award of benefits, or (b) remand for a new hearing to reconsider the
evidence.
The parties have cross-moved for judgment on the pleadings, pursuant to Rule 12(c) of
the Federal Rules of Civil Procedure. On June 6, 2017, Ms. DeJesus filed a motion for judgment
on the pleadings (ECF No. 12), and on July 17, 2017 the Commissioner cross-moved (ECF No. 16).
1
For the reasons set forth below, Ms. DeJesus’ motion (ECF No. 12) is GRANTED and the
Commissioner’s motion (ECF No. 16) is DENIED.
II.
BACKGROUND
A. Procedural History
On December 21, 2012, Ms. DeJesus filed an application for DIB 1 and SSI benefits, 2
alleging that she had been unable to work since September 6, 2011. (Joint Stipulation of Facts
(“JSF”) 1 (ECF No. 14)). On April 24, 2013, the SSA denied Ms. DeJesus’s application, finding that
she was not disabled. (SSA Administrative Record (“R.”) 149–55 (ECF No. 11)). On June 6, 2013,
Ms. DeJesus filed a written request for a hearing before an ALJ. (JSF 1). On December 30, 2013,
she appeared before ALJ Kenneth Scheer for an evidentiary hearing. (JSF 1). On January 13,
2014, ALJ Scheer issued a decision finding that Ms. DeJesus was not disabled under the Act. (JSF
1). On April 7, 2014, the SSA Appeals Council denied her request for review. (JSF 1). On June 5,
2014, Ms. DeJesus filed a complaint in this District. 3 (JSF 1). The parties thereafter agreed to
remand the case for further proceedings, and by an Order dated August 5, 2014, the Court
remanded the claim to the Commissioner for further administrative proceedings. (JSF 1).
In an Order dated August 14, 2014, the Appeals Council remanded the claim for a new
hearing and decision. (JSF 1). On January 28, 2015, ALJ Seth I. Grossman conducted a new
In order to quality for DIB, one must be both disabled and insured for benefits. 42 U.S.C. § 423(a)(1)(A);
20 C.F.R. §§ 404.120, 404.315(a). The last date a person meets the insurance requirement is the date by
which the claimant must establish a disability. Ms. DeJesus met the insurance requirements through
June 30, 2016, and thus her disability must have begun on or before that date to quality for DIB.
2
SSI, unlike DIB, has no requirement of being insured for benefits, but requires a showing of financial
need. 20 C.F.R. § 416.202. The definition of disability is the same for both DIB and SSI, but the onset date
for SSI is the date the claimant filed an application for benefits, and the benefits are limited to that date
forward.
3
DeJesus v. Colvin, No. 14 Civ. 4074 (JPO).
1
2
evidentiary hearing. (JSF 1). On October 27, 2015, ALJ Grossman held a supplemental hearing to
obtain testimony from a vocational expert and an orthopedic expert. (JSF 1; R. 720). On
January 20, 2016, ALJ Grossman issued a decision finding that Ms. DeJesus was not disabled
under the Act. (JSF 1). Although he found that Ms. DeJesus had eight severe impairments—
asthma, diabetes mellitus, hypertension, degenerative disc disease of the lumbar spine,
depressive disorder, hammertoe and metatarsalgia of the foot, obesity, and bilateral knee
arthritis—the ALJ concluded that the severity of Ms. DeJesus’s impairments did not meet or
medically equal the requisite criteria for a finding of disability. (R. 647). On February 18, 2016,
Ms. DeJesus filed written exceptions to the ALJ decision, and on November 4, 2016, the SSA
Appeals Council denied her request for review. (JS 1–2).
On January 6, 2017, after exhausting her administrative remedies as to ALJ Grossman’s
findings, Ms. DeJesus filed a complaint in the District of Connecticut. (ECF No. 1). On April 12,
2018 the case was transferred to this District. (ECF No. 23). Ms. DeJesus argues that the ALJ
Grossman failed to appropriately weigh the medical evidence and failed to properly evaluate her
credibility. 4 (ECF No. 13).
B. Factual Background
1. Non-medical Evidence
Ms. DeJesus was born in 1960 and was 50 years old as of her alleged disability onset date.
(JSF 2). She has an eleventh grade education, and engaged in past relevant work as a service
attendant, a hospital room cleaner, and a home health aide. (JSF 2).
This report will focus on the decision by ALJ Grossman and will not address the previous administrative
findings except to the extent necessary to evaluate his decision.
4
3
2. Medical evidence
a. Dr. Eric Walter, treating podiatrist
Dr. Eric Walter, a podiatrist at Montefiore Medical Center, has treated Ms. DeJesus since
at least December 18, 2009. (R. 423). In March 2011, Ms. DeJesus saw Dr. Walter for continued
foot pain and swelling. (R. 418). At this appointment, Dr. Walter diagnosed her with bilateral
hallux valgus deformities (bunions), hammertoe of the lesser toes, metatarsalgia (pain in
forefoot), and equinus (a condition in which the upward bending motion of the ankle joint is
limited). (R. 418). Dr. Walter prescribed Naproxen, an anti-inflammatory drug, and directed Ms.
DeJesus to continue wearing her custom orthopedic shoes. (R. 418). He scheduled a follow-up
appointment for three months, at which he would discuss the possibility of surgery if the pain
had not resolved. (R. 418).
On July 7, 2011, Ms. DeJesus’s foot pain had not resolved and she requested surgical
intervention. (R. 420). On September 1, 2011 Ms. DeJesus’s primary care doctor, Dr. Noel Brown,
cleared her for surgery (R. 357), and on September 16, 2011, Dr. Walter performed a left
bunionectomy with screw fixation, arthrodesis of the proximal interphalangeal joint (“PIP”) of
the second toe with pin fixation, a Weil osteotomy secondary metatarsal with screw fixation, and
an arthroplasty of the fifth digit with hemiphalangectomy. (R. 353). Dr. Walter saw Ms. DeJesus
several times over the next four months; each appointment revealed mild residual pain and mild
swelling but overall normal post-operative healing. (R. 482–97). On December 20, 2011, Dr.
Walter noted at the three-month post-operative appointment that Ms. DeJesus was scheduled
to return to work on January 3, 2012, but she did not return to work then or at any later date.
(R. 493; JSF 1). On March 29, 2012, Ms. DeJesus returned to Dr. Walter and reported pain and
4
swelling when wearing shoes. (R. 497). Imaging revealed post-operative edema and residual
hammertoe deformity. (R. 298). Dr. Walter gave Ms. DeJesus injections of Lidocaine and Kenalog
in the toe with the hammertoe deformity, and noted that she could walk and exercise in normal
shoes to tolerance. (R. 298).
About a year later, on March 14, 2013, Ms. DeJesus returned to Dr. Walter complaining
of increased pain. (R. 500). Imaging taken at this appointment indicated subluxation or
dislocation of second toe consistent with a plantar plate tear and a contraction deformity of the
third left toe. (R. 502). Ms. DeJesus requested surgical intervention, which was scheduled for
May of 2013. (R. 502). Dr. Walter operated, and at her two-week post-operative appointment,
Ms. DeJesus reported mild pain and Dr. Walter noted that the surgical wounds were well-healed,
with no sign of infection and only mild edema. (R. 506). At her subsequent follow-up
appointments, Ms. DeJesus continued to report mild pain and imaging revealed good healing,
but with a lateral deviation and mild subluxation in the third toe, likely due to a bunion pression
against the toe. (R. 509–12). In a November 19, 2013 progress note, Dr. Walter noted that the
previous surgeries were not well healed, and that imaging evidenced the hammertoe deformity
and contraction at the previous surgery site. (R. 606).
Ms. DeJesus continued to see Dr. Walter throughout 2014, and on April 30, 2014 he
referred her to physical therapy to ease her intermittent foot pain associated with prolonged
standing or walking. (R. 1008). Dr. Walter continued to recommend inserts, arch supports, toe
spacers, and proper diabetic foot care to alleviate the pain. (R. 1008, 1498). On October 26,
2015, Dr. Walter renewed Ms. DeJesus’s physical therapy referral for an additional four weeks,
in order to increase the range of motion in her toe affected by the hammertoe deformity.
5
(R. 1505). The record reflects that Ms. DeJesus regularly went to physical therapy as directed.
(See, e.g., R. 981, 1022–57).
As part of Ms. DeJesus’s application for SSA benefits, Dr. Walter completed two Lower
Extremities Impairment Questionnaires, the first dated June 10, 2013, and the second undated,
but faxed to the SSA on October 27, 2015. (R. 466, 1513). As of the 2013 questionnaire, Dr.
Walter had been seeing Ms. DeJesus monthly since December 2009, with her most recent
appointment on June 6, 2013. (R. 466). Dr. Walter diagnosed Ms. DeJesus with metatarsalgia,
plantar plate tear, and hammertoe, and noted that she also had diabetes mellitus. (R. 466). Dr.
Walter supported his diagnosis with x-rays and clinical findings, namely that Ms. DeJesus had
tenderness and limited range of motion in the MTPJ of the first, second and third toes, with
swelling and joint deformity in her left foot. (R. 466–67). Dr. Walter noted her primary symptoms
were throbbing and aching pain and swelling in her left foot, exacerbated by walking. (R. 468).
Dr. Walter indicated that while she could ambulate and carry out activities of daily living
independently, she used a cane to do so and pain interfered with her ambulation. (R. 468). Dr.
Walter concluded that with these limitations, he would medically recommend that Ms. DeJesus
not stand or walk continuously in a work setting, and that she could stand or walk for a maximum
of one hour per day. (R. 469). Dr. Walter opined that she could frequently lift 0–10 pounds,
occasionally lift 10–50 pounds, and could never lift over 50 pounds. (R. 470). He indicated that
she could frequently carry 0–5 pounds, occasionally carry 5–20 pounds, and could never carry
over 20 pounds. (R. 470). As to work, Dr. Walter stated that he believed Ms. DeJesus was capable
of low-stress work, would likely be absent about one day per month, and that her pain would
6
seldom interfere with her attention and concentration. (R. 471–72). Finally, Dr. Walter stated
that he did not think Ms. DeJesus’s impairments would last twelve months. (R. 472).
In the 2015 questionnaire, Dr. Walter maintained his hammertoe diagnosis, and indicated
that Ms. DeJesus also had diabetes mellitus and a degenerative condition. (R. 1513). He
supported his diagnosis by citing to x-rays and clinical findings of limited range of motion,
tenderness, muscle weakness, swelling and deformity in the left foot. (R. 1513–14). Dr. Walter
listed Ms. DeJesus’s primary symptoms as pain, weakness, and swelling, precipitated by walking.
(R. 1515). Dr. Walter again noted that Ms. DeJesus could ambulate effectively with the assistance
of a cane, but in this questionnaire opined that she could not carry out the activities of daily living
independently without assistance. (R. 1515–16). However, Dr. Walter noted that Ms. DeJesus
could travel to and from her home to appointments, could prepare meals, and could bathe and
dress herself. (R. 1516). As for working, Dr. Walter’s opinion slightly changed, in that he now
believed Ms. DeJesus could sit for approximately 3-4 hours during the workday and stand for
approximately 1-2 hours in a workday. (R. 1516). He recommended that Ms. DeJesus not sit or
stand continuously in a work setting. (R. 1516). Dr. Walter indicated changes in her ability to lift
and carry since the 2013 questionnaire. He now stated that Ms. DeJesus could occasionally lift
0–20 pounds but never lift over 20 pounds; that she could occasionally carry 0–20 pounds but
could never carry over 20 pounds. (R. 1517). Dr. Walter stated that he believed Ms. DeJesus was
capable of moderate-stress work (increased from low-stress in the prior questionnaire), would
likely be absent about more than three times per month (up from about once per month), and
that her pain would periodically interfere with her attention and concentration (versus seldomly
7
interfering). (R. 1518–19). Finally, Dr. Walter stated that he now believed Ms. DeJesus’s
impairments would last twelve months. (R. 1518).
b. Dr. Joseph Charles, treating psychiatrist
Dr. Joseph Charles provided psychiatric services to Ms. DeJesus at Federal Employment
and Guidance Services (“FEGS”). On July 17, 2013, at the outset of Ms. DeJesus’s treatment, Dr.
Charles completed a psychiatric evaluation. (R. 541). Dr. Charles first noted biographical
information; Ms. DeJesus was 51 years old at the time of her appointment, living with four of her
children as well as her granddaughter, and that she reported a history of asthma, diabetes, foot
problems and depressive symptoms. (R. 541). Dr. Charles assessed that Ms. DeJesus’s perceived
reliability was “fair” on a three-step scale of “good,” “fair,” and “poor.” (R. 541). Ms. DeJesus
explained to Dr. Charles that since losing her job, she had been experiencing, among other
symptoms, sadness, lack of motivation, insomnia, irritability, and crying spells. (R. 541). She
stated that her primary care doctor prescribed Citalopram, and that a social worker referred her
to the FEGS clinic. (R. 541).
In the Mental Status Examination part of the psychiatric evaluation, Dr. Walter indicated
that Ms. DeJesus looked her stated age, dressed appropriately, and was alert and attentive, but
lethargic. (R. 544). She was cooperative during the interview, and exhibited appropriate
behavior, normal speech, and appropriate thought content. (R. 544–45). She described her
symptoms as including sleep and appetite disturbance, anhedonia, helplessness, hopelessness
and worthlessness.
(R. 544).
Dr. Walter noted that Ms. DeJesus presented with some
ruminations and preoccupations, and that she had attempted suicide in the past. (R. 545). Dr.
Walter indicated a depressed and constricted mood but found the mood appropriate for the
8
situation. (R. 546). In all areas of cognitive functioning, Dr. Walter assessed her as “good,” but
assessed her overall cognitive ability as “fair.” (R. 546). Dr. Walter opined that Ms. DeJesus’s
judgment, insight into illness and impulse control were all age appropriate. (R. 546). Finally, Dr.
Walter diagnosed her with major depression, recurrent, moderate, with obsessive traits. (R.
548).
On August 19, 2013, Dr. Charles saw Ms. DeJesus for a pharmacological management
appointment. (R. 573). At this appointment, she reported feeling better and calmer. (R. 573).
Dr. Charles reported no notable changes and renewed her medications. (R. 573). On the same
day, Dr. Charles completed a Mental Impairment Questionnaire. (R. 515). Dr. Charles provided
his diagnosis of Ms. DeJesus as major depression, recurrent, moderate with obsessive traits. (R.
515). He assessed her prognosis as “fair” and noted that her symptoms of sleep disturbance,
mood disturbance, loss of interest, feelings of guilt, and difficulty concentrating all supported his
diagnosis. (R. 516). Dr. Charles opined that these symptoms were reasonably consistent with
her impairments, and found Ms. DeJesus to be moderately limited in her abilities to understand
and remember detailed instructions, carry out detailed instructions, maintain attention and
concentration for extended periods, perform activities within a regular schedule, work in
coordination or proximity to others without being distracted by them, interact appropriately with
the general public, get along with co-workers without distracting them, maintain socially
appropriate behavior, and set realistic goals or make plans independently. (R. 517–20). Dr.
Charles found her to have mild limitations in her abilities to: remember locations and work
procedures, understand and remember simple instructions, carry out simple instructions,
maintain an ordinary routine without supervision, make simple work-related decisions, ask
9
simple questions, respond appropriately to criticism from supervisors, be aware of normal
hazards, and travel to unfamiliar places or use public transportation. (R. 518–20). Dr. Charles
assessed Ms. DeJesus as having two marked limitations; first, in her ability to complete a normal
work-week without interruptions from psychologically based symptoms, and second, in her
ability to respond appropriately to changes in the work setting. (R. 519). Dr. Charles noted that
although he expected Ms. DeJesus’s impairments to last at least twelve months and that her
psychiatric condition exacerbated her pain, she was capable of low stress work. (R. 521). He also
noted that she would likely be absent from work more than three times per month. (R. 522).
Dr. Charles continued to manage Ms. DeJesus’s psychological medications. (See, e.g., R.
568, 1109, 1116, 1123, 1131, 1137, 1143, 1149). On October 15, 2015, Dr. Charles completed
another Mental Impairment Questionnaire. (R. 1507). Dr. Charles noted that he had been
treating Ms. DeJesus starting in July 2013, with her last appointment on June 17, 2015. (R. 1507).
He maintained the 2013 diagnosis of Major depression, recurrent, moderate, with symptoms
expected to last at least 12 months. (R. 1507). Ms. DeJesus’s current symptoms included
depressed mood, loss of interests, decreased energy, and decreased need for sleep. (R. 1508).
Dr. Charles opined that Ms. DeJesus now had several additional limitations, and found her to be
markedly limited in her abilities to perform activities within a schedule, work in coordination with
others without being distracted by them, complete a workday without interruptions from
psychological symptoms, perform at a consistent pace, be aware of hazards and take cautions,
and set realistic goals. (R. 1510). Dr. Charles found Ms. DeJesus to be moderately-to-markedly
limited in her abilities to carry out detailed instructions, maintain attention and concentration
for extended periods, sustain ordinary routines without supervision, accept instructions and
10
respond appropriately to supervisors, respond appropriately to workplace changes, travel to
unfamiliar places or use public transportation, and make plans independently. (R. 1510). Dr.
Charles noted Moderate limitations in all other categories. (R. 1510). Finally, he stated that Ms.
DeJesus would likely be absent more than three times per month, and that her symptoms applied
as far back as September 6, 2011, her alleged disability onset date. (R. 1510).
c. Jose Espinal, LCSW, treating therapist
Jose Espinal, LCSW, provided therapy services to Ms. DeJesus from June 2013 through at
least early 2015. Mr. Espinal completed an initial assessment of Ms. DeJesus on June 15, 2013,
and diagnosed her with major depressive disorder, recurrent, severe. (R. 1064). In conjunction
with Mr. Espinal’s treatment, Ana Rosa, LCSW, conducted a psychosocial assessment of Ms.
DeJesus. (R. 550). As to appearance and behavior Ms. Rosa noted normal speech and thought
content, with no evidence of disorder. (R. 551–52). Ms. Rosa assessed good cognitive functioning
and insight but noted that Ms. DeJesus did not enjoy activities like she used to, and that her social
activities and community and involvement were limited. (R. 552–54). At the time of this
assessment, Ms. DeJesus was not employed, and Ms. DeJesus told Ms. Rosa that her physical
limitations, including her arthritis, diabetes, and high blood pressure, prevented her from
working. (R. 555). Ms. Rosa concluded that since being laid off, Ms. DeJesus’s health had
deteriorated, and she was stressed about relying on her children financially. (R. 560).
Mr. Espinal treated Ms. DeJesus weekly throughout 2013 and 2014.
At her first
appointment on July 20, 2013, Ms. DeJesus discussed her symptoms and how her depression
affected her daily functioning. (R. 582). At this appointment her mood and affect were sad and
depressed, but Mr. Espinal noted that she was able to talk and process her feelings. (R. 582).
11
Throughout 2013, Ms. DeJesus continued to express feelings of hurt and anger associated with
her medical condition and current financial situation. (See, e.g., R. 571, 1105, 1116). She
remained communicative and Mr. Espinal noted that Ms. DeJesus was gaining perspective on her
negative automatic thoughts. (R. 1109, 1114). In early 2014, she experienced a period of
preoccupation after the death of her aunt, and her mood became sad and depressed. (R. 1129,
1134). By March 2014, Mr. Espinal reported that Ms. DeJesus’s preoccupation with her loss
continued to reduce, and that she was feeling more hopeful about the future and more in control.
(R. 1147).
On May 24, 2014, Mr. Espinal completed a Mental Impairment Questionnaire in
connection with Ms. DeJesus’s application for SSA benefits. (R. 969). Mr. Espinal noted that he
first treated her in June 2013, with bi-monthly visits through the date of the Questionnaire. (R.
969). Mr. Espinal diagnosed Ms. DeJesus with major depression, recurrent, moderate, with
psychosocial factors of health conditions, housing and financial issues. (R. 969). He indicated
that he expected condition to last twelve months, and that her primary symptoms were feelings
of guilt, sadness, irritability, difficulty thinking or concentrating, poor recent memory, decreased
energy, and social withdrawal, among other symptoms. (R. 969–70). As clinical support for these
findings, Mr. Espinal cited her forgetfulness and poor concentration. (R. 971). As to her
limitations, Mr. Espinal assessed no marked or severe limitations, but noted several moderate,
and moderate-to-marked limitations. (R. 972). Mr. Espinal assessed that Ms. DeJesus had
moderate-to-marked limitations in her abilities to: understand and remember both simple and
detailed instructions, and carry out those instructions, maintain attention and concentration,
sustain ordinary routines without supervision, work in coordination with others without
12
distraction, complete a workday without interruptions from psychological symptoms, perform at
a consistent pace, accept supervisor instructions and respond appropriately to supervisor
criticism, respond appropriately to workplace changes, be aware of hazards, and travel to
unfamiliar places. (R. 972). He assessed that Ms. DeJesus had moderate limitations in her
abilities to remember locations and work-like procedures, perform activities on schedule, make
simple work-related decisions, interact appropriately with the public, ask simple questions, get
along with peers without distracting them, maintain socially appropriate behavior, adhere to
basic standards of neatness, set realistic goals and make plans independently. (R. 972). As to her
ability to work, Mr. Espinal opined that her psychotic condition impaired her cognitive ability to
function, and that she would be absent more than three times per month. (R. 973). He noted
that he believed these opinions applied as far back as January 14, 2014. (R. 973).
The record reflects that Ms. DeJesus continued to see Mr. Espinal regularly throughout
2015. (See, e.g., R. 1151–1227).
d. Dr. Inessa Svistunova, SSA consultative internal medicine examiner
On March 21, 2013, Dr. Inessa Svistunova conducted a consultative internal medicine
examination in connection with Ms. DeJesus’s SSA application. (R. 431). At the time of the
examination, Ms. DeJesus’s chief complaints were neck pain, which she described as radiating
and aggravated by movement, and back pain, which was aggravated with walking, stairs, bending
and prolonged sitting. (R. 431). She reported experiencing numbness in her right hand, as well
as numbness, weakness and pins and needles sensation in both lower extremities. (R. 431).
Ms. DeJesus stated that she cooked twice a week, does laundry once a week, and
performs childcare duties daily. (R. 432). She stated that she did not clean or shop, but that she
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was able to take care of her own hygiene needs. (R. 432). At the examination, Ms. DeJesus
appeared not to be in acute distress, and used no assistive devices. (R. 432). She walked with a
slow and steady gait but declined to walk on heels and toes or squat. (R. 432). During the
musculoskeletal examination, Dr. Svistunova noted pain to palpation and spasms of cervical
paraspinal muscles, pain to palpation of lumbar paraspinal muscle with spasm, and pain to
palpation of right shoulder. (R. 433).
Dr. Svistunova diagnosed Ms. DeJesus with neck pain, lower back pain, right shoulder
pain, diabetes, hypertension, and asthma, and found her prognosis to be stable. (R. 434). Dr.
Svistunova’s Medical Source Statement opined that based on her examination and interview, Ms.
DeJesus had mild limitations walking, climbing stairs, standing, sitting, bending, squatting,
kneeling, pushing, pulling, lifting and carrying, all secondary to her lower back pain. (R. 434). Dr.
Svistunova assessed moderate limitation with overhead activities due to her shoulder pain, and
noted that she should avoid smoke, dust, and other respiratory irritants due to her asthma. (R.
343).
e. Dr. Lucy Kim, SSA consultative psychologist
On October 22, 2013, Dr. Lucy Kim conducted a consultative psychological examination in
connection with Ms. DeJesus’s application for SSA benefits. (R. 591). At the time of this
examination, Ms. DeJesus was 53 years old and was living with four of her children and two of
her grandchildren. (R. 591). She stated that she was unemployed due to medical issues. (R. 591).
Ms. DeJesus informed Dr. Kim that she was currently seeing a psychiatrist once per month and
therapist twice per month, and that she had been diagnosed with major depressive disorder. (R.
591). Ms. DeJesus explained that her symptoms included difficulty falling asleep and waking up
14
in middle of night, depressed mood, crying spells, guilt, hopelessness, and fatigue, among other
symptoms. (R. 592). She reported auditory hallucinations for the past ten years, and cognitive
issues including short term memory loss, concentration difficulties, difficulty learning material,
long term memory loss, and difficulty finding words. (R. 592). As to daily functioning, Ms.
DeJesus stated that she maintained her own hygiene and manages her own money, but that her
daughter helps with the cooking, cleaning, laundry and shopping. (R. 593).
Ms. DeJesus was cooperative and responsive during the Mental Status Examination. (R.
592). Dr. Kim noted that Ms. DeJesus was dressed appropriately, had clear and expressive speech
and exhibited coherent and goal directed thought processes. (R. 592–93). Dr. Kim found her
mood and affect to be of full range and appropriate, and found her attention and concentration
intact. (R. 593). Dr. Kim opined that her cognitive functioning was average, but that her memory
was mildly impaired, possibly due to Alzheimer’s disorder. (R. 593).
In her Medical Source Statement regarding functional limitations, Dr. Kim opined that Ms.
DeJesus had mild limitations maintaining attention and concentration and had moderate
limitations in learning new tasks and performing complex tasks independently. (R. 594). Dr. Kim
found no evidence of limitations in her ability to follow and understand simple directions,
perform simple tasks independently, maintain a regular schedule, make appropriate decisions,
relate adequately with others and appropriately deal with stress. (R. 593–94). Dr. Kim concluded,
“the results of the examination appear to be consistent with psychiatric problems and this may
significantly interfere with claimant's ability to function on a daily basis." (R. 594). She diagnosed
Ms. DeJesus with major depressive disorder, moderate with psychotic features, and found her
prognosis to be “guarded given cognitive decline.” (R. 594).
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C. Administrative Proceedings
1. The first ALJ decision and the Appeals Council’s remand order
On January 13, 2014, ALJ Kenneth L. Scheer issued the first ALJ decision in this matter,
finding that Ms. DeJesus was not disabled under the Act. (R. 72).
ALJ Scheer followed the five-step disability determination process. As a preliminary
matter, the ALJ found that Ms. DeJesus met the insured status requirements for her DIB
application through June 30, 2016. (R. 73). At step one, ALJ Scheer found that Ms. DeJesus had
not engaged in substantial gainful activity since her alleged onset date. (R. 73). At step two, the
ALJ found that Ms. DeJesus had eight severe impairments: metatarsalgia of the left foot,
hammertoe of the 2nd and 3rd digits of the left foot, plantar plate tear of second MTPJ, varicose
veins, asthma, obesity, diabetes, and a depressive disorder. (R. 73). At step three, the ALJ found
that Ms. DeJesus did not have an impairment or a combination of impairments that met or
medically equaled the severity of one of the listed impairments in the Act. (R. 74).
ALJ Scheer determined that Ms. DeJesus had the residual functional capacity to perform
light work, limited to simple, repetitive tasks and without exposure to dust, gases, fumes, or
extreme temperatures. (R. 75). However, at step four, ALJ Scheer found that Ms. DeJesus was
capable of performing her past work as a cashier, and thus did not proceed to step five. (R. 83).
On March 18, 2014, Ms. DeJesus appealed ALJ Scheer’s decision to the Appeals Council,
arguing that the ALJ had failed to evaluate the opinions of the treating sources and had failed to
make a proper residual functional capacity assessment. (R. 326). On April 7, 2014, the Appeals
Council denied the request to review (R. 1), and, on June 5, 2014, Ms. DeJesus appealed to this
Court (R. 752).
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On August 6, 2014, the Commissioner and Ms. DeJesus stipulated that her case be
remanded to the SSA for further administrative proceedings “to include the opportunity for a
new hearing and decision.” (R. 752). By an Order dated August 14, 2014, the Appeals Council
remanded the case for rehearing, and provided explicit instructions to the ALJ on remand. The
Appeals Council ordered the ALJ, on remand, to:
•
•
•
•
•
Update the treatment evidence on the claimant’s medical condition consistent
with the requirements of 20 CFR 404.1512–1513 and 416.3912–913.
Expressly evaluate the treating and examining medical source opinions cited
above under 20 CFR 404.1527 and 416.927, Social Security Rulings 96-2p, 96-5pm
and 96-6p. The Administrative Law Judge will explain the reasons for the weight
he gives to this opinion evidence.
Further consider the claimant’s residual functional capacity on the updated
record, citing specific evidence in support of the assessed limitations (20 CFR
404.1545 and 416.945).
Further consider whether the claimant has past relevant work he could perform
with the limitations established by the evidence (Social Security Rulings 82-61 and
82-62).
As appropriate, secure supplemental evidence from a vocational expert to clarify
the effect of the assessed limitations on the claimant’s occupational base (Social
Security Rulings 83-14 and 85-15). The hypothetical questions should reflect the
specific capacity/limitations established by the record as a whole. The
Administrative Law Judge will ask the vocational expert to identify examples of
appropriate jobs and to state the incidence of such jobs in the national economy
(20 CFR 404.1566 and 416.966). Further, before relying on the vocational expert
evidence the Administrative Law Judge will identify and resolve any conflicts
between the occupational evidence provided by the vocational expert and
information in the Dictionary of Occupational Titles (DOT) and its companion
publication, the Selected Characteristics of Occupations (Social Security Ruling 004p).
(R. 770). ALJ Grossman was assigned Ms. DeJesus’s case on remand.
2. Hearings before an ALJ Grossman
On January 28, 2015, ALJ Grossman held an initial hearing, at which Ms. DeJesus was
represented by counsel. (R. 706). ALJ Grossman first established Ms. DeJesus’s past relevant
work, and then asked her why she could no longer do these jobs. (R. 708–14). She testified that
17
it was hard to be on her feet because she had orthopedic problems with her legs and back. (R.
714). She testified that she participated in physical therapy for her shoulder, back and knees, but
that she had to stop because she did not have a good way of getting there and had a change in
her insurance. (R. 716). After going through the evidence in record, ALJ Grossman issued
subpoenas for additional evidence, and scheduled an additional hearing with testimony from an
orthopedic expert and a vocational expert. (R. 719–20). The hearing was then adjourned. (R.
721).
On October 27, 2015 ALJ Grossman held a supplemental evidentiary hearing, at which Ms.
DeJesus was again represented by counsel. (R. 666). ALJ Grossman began the proceedings by
asking her about her employment history. (R. 670). She explained that she last worked in
September 2011, and that her last long-term employment was as a Social Service Assistant at
Montefiore in 2009. (R. 670–71). When asked if she was currently capable of working, she
replied that she was not, due to her back pain. (R. 672). Ms. DeJesus explained that her job at
Montefiore required her to stand most of the time, and required some pushing and lifting. (R.
674–75). She testified that she would not be able to do that job now because of its physical
requirements. (R. 675). ALJ Grossman also inquired into her past work as a home health aide.
(R. 675). Ms. DeJesus testified that she stopped that job because she was no longer able to keep
up with her patient after her foot surgery. (R. 675–76).
Ms. DeJesus’s counsel then asked her several questions, focusing on her foot operations
and her foot pain. (R. 678–79). He then inquired into her knee and back pain, which she testified
were caused by arthritis in the knees and sciatica in her back. (R. 679–80). She testified that she
had previously attended physical therapy for her feet, knees, and back. (R. 681). Ms. DeJesus
18
also testified that she would be able to walk for about a block and a half without stopping, that
she could stand for about one and a half to two hours before needing to sit, and that she could
sit for about two hours before needing to adjust, all due to her constant pain. (R. 680–82). When
asked about her daily activities, Ms. DeJesus replied that she was very depressed, but that she
walked her dog to get out of the house. (R. 683). She explained that her daughters did the
cleaning and grocery shopping, and that when she did accompany them, she used the electric
scooter to get around the store. (R. 685–86).
The ALJ next questioned Dr. Brovender, the impartial medical expert called for the
hearing. (R. 687). The ALJ asked, “What can you tell me?” (R. 687). Dr. Bovender recited some
of Ms. DeJesus’s medical history, noting her back and right shoulder pain, varicose veins, and her
hammertoe deformity. (R. 687–88). When asked by ALJ Grossman “what limitations could you
reasonably expect from all this?,” Dr. Brovender replied, “Not much.” (R. 688). ALJ Grossman
asked if the hammertoe would cause any loss of function, to which Dr. Brovender replied, “[n]o,
they would correct it, as far as I know.” (R. 688). Dr. Brovender continued, testifying that there
was no objective evidence in the record that Ms. DeJesus could only walk one block before
stopping. (R. 690). Ms. DeJesus’s counsel then questioned Dr. Brovender, first inquiring into the
two foot surgeries. (R. 690–91). When asked if the need for a second surgery just two years after
the first indicated an ongoing problem, Dr. Brovender testified, “[t]hey didn’t mention that. I
don’t know. There’s nothing in here that says there was a problem. I don’t know.” (R. 691).
Next, ALJ Grossman took testimony from a vocational expert. (R. 693). The expert
established that Ms. DeJesus’s past relevant work included her service attendant position at
Montefiore and her time as a home health aide. (R. 695–96). ALJ Grossman asked the expert, “if
19
she could do the full range of light work, with only occasional overhead reaching, she could do
the service attendant job; is that correct?” (R. 696). The expert stated that she could, then
opined that her past work had occasional interactions with coworkers and the public, and that
the service attendant job would not include exposure to chemicals. (R. 697).
Ms. DeJesus’s counsel posed a hypothetical to the vocational expert: “If a person could
sit for six hours and stand or walk for two hours, lift five to ten pounds frequently and lift 20 to
50 pounds occasionally, could a person do [Ms. DeJesus’s] past [work]? (R. 699). The expert
replied that they would not be able to. (R. 699). Counsel then asked, as to simple routine tasks
jobs, if someone could do those jobs if they were off task for more than ten percent of the day
or absent more than once a month; to which the vocational expert replied, “no.” (R. 699–700).
In closing, Ms. DeJesus’s counsel reiterated her treatment for depression, and objected
to Dr. Brovender’s testimony being given more than minimal weight based on the fact that it was
inconsistent with the treating source opinions. (R. 701).
3. The ALJ’s decision
On January 20, 2016, ALJ Grossman issued his decision denying Ms. DeJesus SSI and DIB
benefits. (R. 641). He held that, “[a]fter careful consideration of all of the evidence, the
undersigned concludes the claimant has not been under a disability within the meaning of the
Social Security Act from September 6, 2011, through the date of this decision.” (R. 645).
ALJ Grossman followed the five-step disability determination process. As a preliminary
matter, the ALJ found that Ms. DeJesus met the insured status requirements for her DIB
application through June 30, 2016. (R. 647). At step one, ALJ Grossman found that Ms. DeJesus
had not engaged in substantial gainful activity since her alleged onset date. (R. 647). At step
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two, the ALJ found that Ms. DeJesus had eight severe impairments: asthma, diabetes mellitus,
hypertension, degenerative disc disease of the lumbar spine, depressive disorder, hammertoe
and metatarsalgia of the foot, obesity and bilateral knee arthritis. (R. 647).
At step three, the ALJ found that Ms. DeJesus did not have an impairment or a
combination of impairments that met or medically equaled the severity of one of the listed
impairments in the Act. (R. 647). (The impairments listed in 20 CFR Appendix 1, Subpart P, Part
404 are known as the “Listings”). The ALJ found that Ms. DeJesus’s hammertoe deformity and
knee arthritis did not meet or medically equal Listing 1.02, dysfunction of major joints, because
they did not involve a weightbearing joint resulting in an inability to ambulate effectively. (R.
648). ALJ Grossman opined that the record did not reflect the requirements of Listing 1.04, for
disorders of the spine, nor the criteria in Listing 3.03, for asthma, which requires a prescribed
number of attacks evidenced by pulmonary function tests. (R. 648). ALJ Grossman also
considered Ms. DeJesus’s hypertension and obesity, although neither have individual listings. (R.
648).
In discussing Ms. DeJesus’s mental impairment, ALJ Grossman explained that he first
assessed whether the “paragraph B” criteria of Listing 12.04 covering depression were met.
(R. 649). To satisfy paragraph B, the mental impairment must result in at least one extreme or
two marked limitations in a broad area of functioning (activities of daily living, social functioning,
maintaining concentration, persistence, or pace). (R. 649). ALJ Grossman found that Ms. DeJesus
had only mild to moderate limitations in the broad areas of functioning, and thus the paragraph
B criteria were not satisfied. (R. 650). ALJ Grossman also considered whether the “paragraph C”
criteria of the Listings were satisfied, and concluded that there was no evidence of ongoing
21
medical treatment, mental health therapy, psychosocial support, or a highly structured setting
that is ongoing with only marginal adjustment, as required by the paragraph. (R. 650).
ALJ Grossman assessed Ms. DeJesus’s residual functional capacity as being able to
perform light work with some limitations. (R. 650). ALJ Grossman concluded that Ms. DeJesus
could perform simple tasks, have occasional interactions with coworkers and the public, and
could understand and carry out instructions, maintain attention and concentration, interact
appropriately with others, and keep a regular schedule, all within normal work expectations.
(R. 650). ALJ Grossman stated that his RFC finding was supported by the testimony of Dr.
Brovender, an impartial orthopedic medical expert. Accordingly, at step four, ALJ Grossman
found Ms. DeJesus capable of performing her past work as a service attendant. (R. 656). Because
he determined Ms. DeJesus capable of performing her past work, he did not proceed to step five.
(R. 657).
4. The Appeals Council decision
On February 18, 2016, Ms. DeJesus filed written exceptions to the ALJ’s decision and a
request for review to the Appeals Council. (R. 852). By letter dated November 4, 2016, the
Appeals Council found no reason to review the ALJ’s decision and denied the request. (R. 621).
5. The cross-motions
On January 6, 2017, Ms. DeJesus filed the Complaint in this action, alleging that the
Commissioner’s decision was erroneous and not supported by substantial evidence. (ECF No. 1).
The parties have cross moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure. (ECF Nos. 12, 16).
22
Ms. DeJesus raises two points: (1) that the ALJ failed to properly weigh the medical opinion
evidence; and (2), that the ALJ failed to properly evaluate Ms. DeJesus’s credibility. (ECF No. 13).
The Commissioner argues that the decision is supported by substantial evidence. (ECF No. 17).
III.
DISCUSSION
A. Applicable Legal Standards
1. Standard of Review
Under Rule 12(c) of the Federal Rules of Civil Procedure, a party is entitled to judgment
on the pleadings if he establishes that no material facts are in dispute and that he is entitled to
judgment as a matter of law. Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999); Morcelo v.
Barnhart, No. 01 Civ. 743 (RCC) (FM), 2003 WL 470541, at *4 (S.D.N.Y. Jan. 21, 2003).
The Act provides that the Commissioner’s findings “as to any fact, if supported by
substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). A court may set aside the
Commissioner’s decision denying SSI benefits if it is not supported by substantial evidence or was
based on legal error. Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009). Judicial review,
therefore, involves two levels of inquiry. First, the Court must decide whether the ALJ applied
the correct legal standard. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Calvello v. Barnhart,
No. 05 Civ. 4254 (SCR) (MDF), 2008 WL 4452359, at *8 (S.D.N.Y. Apr. 29, 2008). Second, the Court
must decide whether the ALJ’s decision was supported by substantial evidence. Id. “In
determining whether substantial evidence exists, a reviewing court must consider the whole
record, examining the evidence from both sides, because an analysis of the substantiality of the
evidence must also include that which detracts from its weight.” Longbardi v. Astrue, No. 07 Civ.
5952 (LAP), 2009 WL 50140, at *21 (S.D.N.Y. Jan. 7, 2009). Substantial evidence is “more than a
23
mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (internal citations
omitted). The substantial evidence test applies not only to the factual findings, but also to the
inferences and conclusions drawn from those facts. See, e.g., Carballo ex rel. Cortes v. Apfel, 34
F. Supp. 2d 208, 214 (S.D.N.Y. 1999). In determining whether the administrative record contains
evidence to support the denial of claims, the Court must consider the whole record, and weigh
all evidence to ensure that the ALJ evaluated the claim fairly. See, e.g., Brown v. Apfel, 174 F.3d
59, 62 (2d Cir. 1999). The Commissioner, not the Court, resolves evidentiary conflicts and
appraises the credibility of witnesses, including the claimant. See, e.g., Veino v. Barnhart, 312
F.3d 578, 588 (2d Cir. 2002); Clark v. Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998).
Disability-benefits proceedings are non-adversarial in nature, and therefore, the ALJ has
an affirmative obligation to develop a complete administrative record, even when the claimant
is represented by counsel. See Lamay v. Comm’r of Soc. Sec., 562 F.3d 503, 508–09 (2d Cir. 2009).
To this end, the ALJ must make “every reasonable effort” to help an applicant get medical reports
from her medical sources. 20 C.F.R. § 416.912(b). Ultimately, “[t]he record as a whole must be
complete and detailed enough to allow the ALJ to determine the claimant’s residual functional
capacity.” Casino-Ortiz v. Astrue, No. 06 Civ. 155 (DAB) (JCF), 2007 WL 2745704, at *7 (S.D.N.Y.
Sept. 21, 2007). When there are inconsistencies, gaps, or ambiguities in the record, the
regulations give the ALJ options to collect evidence to resolve these issues, including recontacting the treating physician, requesting additional records, arranging for a consultative
examination, or seeking information from others. 20 C.F.R. § 416.920b.
24
The Act authorizes a court, when reviewing decisions of the SSA, to order further
proceedings: “The 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(g); Butts v.
Barnhart, 388 F.3d 377, 382 (2d Cir. 2004). If “‘there are gaps in the administrative record or the
ALJ has applied an improper legal standard,’” the court will remand the case for further
development of the evidence or for more specific findings. Rosa, 168 F.3d at 82–83 (quoting
Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996)). Remand is particularly appropriate where further
findings or explanation will clarify the rationale for the ALJ’s decision. Pratts, 94 F.3d at 39. If,
however, the reviewing court concludes that an ALJ’s determination to deny benefits was not
supported by substantial evidence, a remand solely for calculation of benefits may be
appropriate. See, e.g., Butts, 388 F.3d at 386 (discussing Curry v. Apfel, 209 F.3d 117, 124 (2d Cir.
2000)).
2. Standards for Benefit Eligibility
For purposes of SSI and DIB benefits, one is “disabled” within the meaning of the Act, and
thus entitled to such benefits, when she is “unable 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 twelve months.” 42 U.S.C. § 1382c(3)(A). The Act also requires that the impairment be
“of such severity that [the claimant] 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. § 1382c(3)(B). In reviewing a claim
25
of disability, the Commissioner must consider: “(1) objective medical facts; (2) diagnoses or
medical opinions based on those facts; (3) subjective evidence of pain and disability testified to
by claimant and other witnesses; and (4) the claimant’s background, age, and experience.”
Williams ex rel. Williams v. Bowen, 859 F.2d 255, 259 (2d Cir. 1988); 20 C.F.R. § 404.15; 20 C.F.R.
§ 416.927.
Under SSA regulations, disability is evaluated under the sequential five-step process set
forth in 20 C.F.R. § 404.1520(a)(4)(i)–(v). The Second Circuit has described the process as follows:
First, the Secretary considers whether the claimant is currently engaged in
substantial gainful activity. If not, the Secretary next considers whether the
claimant has a “severe impairment” which significantly limits his physical or
mental ability to do basic work activities. If the claimant suffers such an
impairment, the third inquiry is whether, based solely on the medical evidence,
the claimant has an impairment which is listed in Appendix 1 of the regulations. If
the claimant has such an impairment, the Secretary will consider him disabled
without considering vocational factors such as age, education, and work
experience; the Secretary 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, he has the residual functional capacity to
perform his past work. Finally, if the claimant is unable to perform his past work,
the Secretary then determines whether there is other work which the Claimant
could perform.
Bush v. Shalala, 94 F. 3d 40, 44–45 (2d Cir. 1996) (quoting Rivera v. Schweiker, 717 F.2d 719, 722
(2d Cir. 1983)).
At the first four steps, the claimant bears the burden of proof. At the fifth step, the
burden shifts to the Commissioner to demonstrate that there are jobs in the national economy
that the claimant can perform. See, e.g., Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009). In
meeting the burden of proof at the fifth step, the Commissioner can usually rely on the Medical-
26
Vocational guidelines contained in 20 C.F.R. Part 404, Subpart P, App. 2, known as “the Grid.”
Zorilla v. Chater, 915 F. Supp. 662, 666–67 (S.D.N.Y. 1996).
3. Treating Physician Rule
The SSA regulations require the ALJ to give “controlling weight” to “the opinion of a
claimant’s treating physician as to the nature and severity of the impairment . . . so long as it is
well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] case record.” Burgess, 537 F.3d at 128
(internal citation omitted); accord Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003);
Correale-Englehart v. Astrue, 687 F. Supp. 2d 396, 426 (S.D.N.Y. 2010). “This preference is
generally justified because treating sources are likely to be ‘the medical professionals most able
to provide a detailed, longitudinal picture’ of a plaintiff’s medical impairments and offer a unique
perspective that the medical tests and SSA consultants are unable to obtain or communicate.”
Correale-Engelhart, 687 F. Supp. 2d at 426 (quoting 20 C.F.R. § 416.927([c])(2)).
If the ALJ determines that a treating physician’s opinion is not controlling, he is
nevertheless required to consider the following factors in determining the weight to be given to
that opinion: (1) the length of the treatment relationship and the frequency of examination; (2)
the nature and extent of the treatment relationship; (3) the evidence provided to support the
treating physician’s opinion; (4) the consistency of the opinion with the record as a whole; (5)
whether the opinion is from a specialist; and (6) other factors brought to the Commissioner’s
attention that tend to support or contradict the opinion. 20 C.F.R. § 416.927(c). The ALJ must
give “good reasons” for not crediting the plaintiff’s treating physician. 20 C.F.R. § 416.927(c)(2);
see Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (explaining that Appeals Council had “an
27
obligation to explain” the weight it gave to the opinions of the non-treating physicians). After
considering these factors, the ALJ must fully set forth his reasons for the weight assigned to the
treating physician’s opinion. Burgess, 537 F.3d at 129.
While the ultimate issue of disability is reserved to the Commissioner, the regulations
make clear that opinions from one-time examining sources that conflict with treating source
opinions are generally given less weight. 20 C.F.R. § 416.927(c)(2). See also Selian v. Astrue, 708
F.3d 409, 419 (2d Cir. 2013) (“ALJs should not rely heavily on the findings of consultative
physicians after a single examination.”); Cabreja v. Colvin, No. 14 Civ. 4658 (VSB), 2015 WL
6503824, at *30 (S.D.N.Y. Oct. 27, 2015) (explaining that opinions of one-time consultants should
not overrule those provided by the treating medical sources unless there are “serious errors” in
treating sources’ opinions). Failing to apply proper weight to a treating physician’s opinion is
reversible error. Greek v. Colvin, 802 F.3d 370, 376 (2d Cir. 2015).
4. Assessing claimant credibility
In considering a claimant’s symptoms that allegedly limit his or her ability to work, the ALJ
must first determine “whether there is an underlying medically determinable physical or mental
impairment(s) —i.e., an impairment(s) that can be shown by medically acceptable clinical and
laboratory diagnostic techniques — that could reasonably be expected to produce the claimant’s
pain or other symptoms.” 20 C.F.R. § 404.1529(c)(1). If such an impairment is found, the ALJ
must next evaluate the “intensity, persistence, and limiting effects of the claimant’s symptoms
to determine the extent to which they limit the claimant’s functional limitations.” 20 C.F.R. §
404.1529(c)(1). To the extent that the claimant’s expressed symptoms are not substantiated by
the objective medical evidence, the ALJ must evaluate the claimant’s credibility. Meadors v.
28
Astrue, 370 F. App’x 179, 183–84 (2d Cir. 2010); Taylor v. Barnhart, 83 F. App’x 347, 350–51 (2d
Cir. 2003).
Courts have recognized that “the second stage of [the] analysis may itself involve two
parts.” Sanchez v. Astrue, No. 07 Civ. 931 (DAB), 2010 WL 101501, at *14 (S.D.N.Y. Jan. 12, 2010).
“First, the ALJ must decide whether objective evidence, on its own, substantiates the extent of
the alleged symptoms (as opposed to the question in the first step of whether objective evidence
establishes a condition that could ‘reasonably be expected’ to produce such symptoms).” Id.
“Second, if it does not, the ALJ must gauge a claimant’s credibility regarding the alleged
symptoms by reference to the seven factors listed [in 20 C.F.R. § 416.929(c)(3)].” Id. (citing
Gittens v. Astrue, No. 07 Civ. 1397 (GAY), 2008 WL 2787723, at *5 (S.D.N.Y. June 23, 2008)). If
the ALJ does not follow these steps, remand is appropriate. Id. at *15.
When a claimant reports symptoms that are more severe than medical evidence alone
would suggest, SSA regulations require the reviewing ALJ to consider specific factors in
determining the credibility of the claimant’s symptoms and their limiting effects. SSR 96-7p, 1996
WL 374186, at *2 (superseded by SSR 16-3p for cases filed after March 27, 2017). These seven
factors include: (1) an individual’s daily activities; (2) the location, duration, frequency and
intensity of pain or other symptoms; (3) factors that precipitate and aggravate those symptoms;
(4) the type, dosage, effectiveness, and side effects of medication that the individual takes or has
taken to alleviate pain or other symptoms; (5) treatment, other than medication, that the
individual receives or has received for pain or other symptoms; (6) measures other than
treatment the individual uses or has used to relieve pain or other symptoms; and (7) other factors
29
concerning the individual’s functional limitations and restrictions due to pain or other symptoms.
See Bush, 94 F.3d at 46 n.4.
B. Evaluation of the ALJ’s Decision
The Court finds that the ALJ failed to comply with the remand order from the Appeals
Council by failing to “expressly evaluate the treating and examining medical source opinions . . .
explain[ing] the reasons for the weight” given, and by failing to pose hypothetical questions to
the vocation expert that “reflect the specific capacity/limitations established by the record as a
whole.” (R. 644). Specifically, ALJ Grossman failed to apply the proper legal standards in weighing
the opinions of Dr. Walter, Ms. DeJesus’s treating podiatrist, and Dr. Charles, Ms. DeJesus’s
treating psychiatrist. In addition, remand for a further evidentiary hearing is appropriate because
the ALJ failed to apply the proper legal standards in weighing Ms. DeJesus’s credibility, in that he
failed to consider all relevant evidence (or, at least failed to explain his implicit rejection of
relevant evidence).
1. Weight of the medical opinion evidence
a. Dr. Eric Walter
Ms. DeJesus alleges that the ALJ erred by failing to properly weigh the opinion of her
treating podiatrist, Dr. Walter. (ECF No. 13 at 1). Here, ALJ Grossman afforded “little weight” to
Dr. Walter’s opinion in the June 2013 Lower Extremities Impairment Questionnaire “because it
was during an acute period in the claimant’s treatment and is not representative of her
functionality during the period at issue as a whole.” (R. 653). As the ALJ noted, this questionnaire
was completed approximately two weeks after Ms. DeJesus had foot surgery. (R. 466). However,
nowhere in the record is it indicated that Dr. Walter’s opinions were limited to her post-surgical
30
condition, rather than based on his longitudinal treatment of Ms. DeJesus. At the time of the
questionnaire, Dr. Walter had been treating Ms. DeJesus monthly for four years. (R. 466). The
opinions expressed in the questionnaire are supported by longitudinal progress notes, as well as
clinical findings from before and after her surgeries, such as limited range of motion, swelling,
and joint deformities. (R. 467). Dr. Walter repeatedly noted that pain was Ms. DeJesus’s primary
concern, and that it interfered with her movement, and would likely cause one absence a month
from work. (R. 4669, 471). There is no indication that these opinions are limited to a specific
time period, and if the ALJ believed them to be, he should have requested such clarification from
Dr. Walter. Otherwise, there is no reason to discredit these opinions which are based on
longitudinal and detailed treatment records.
The ALJ similarly gave “little weight” to Dr. Walter’s updated 2015 Lower Extremities
Questionnaire, this time “because Dr. Walter’s record reveal[ed] only mild pain in the left foot
with scarce objective findings such as loss of sensation or strength to support the restrictions or
absences he asserted.”
(R. 655).
In the 2015 questionnaire, Dr. Walter maintained his
hammertoe diagnosis, supported by x-rays and clinical findings of limited range of motion,
tenderness, muscle weakness, swelling and deformity in the left foot. (R. 1513–14). Dr. Walter
listed Ms. DeJesus’s primary symptoms as pain, weakness, and swelling, precipitated by walking.
(R. 1515). Dr. Walter again noted that Ms. DeJesus could ambulate effectively with the assistance
of a cane, but in this questionnaire opined that she could not carry out the activities of daily living
independently without assistance, which could be attributed to the passage of two years
between questionnaires. (R. 1515–16). At every appointment of record Ms. DeJesus complained
of pain, and even after two surgeries she was still experiencing “radiating pain” in her left foot,
31
exacerbated by wearing shoes, standing and walking. (R. 606, 1008, 1012, 1498). Dr. Walter’s
treatment records reflect continual complaints of pain, and he noted in November of 2013 that
“no surgeries are well healed.” (R. 606).
Dr. Walter’s finding of muscle weakness and the repeated complaints of more than mild
pain in the treatment records directly contradict the ALJ’s assertion that “Dr. Walter’s record
reveal[ed] only mild pain” and that there were “scarce objective findings such as loss of sensation
or strength to support the restrictions.” (R. 655). Accordingly, the ALJ was likely required to give
this opinion “controlling weight” as Dr. Walter’s opinion was “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] case record.” Burgess, 537 F.3d at 128 (internal citation omitted);
accord Green-Younger, 335 F.3d at 106. If the ALJ determined that less that controlling weight
was appropriate, he was nevertheless required to consider the factors listed in 20 C.F.R. §
416.927(c) when determining the weight to be given to that opinion. ALJ Grossman did not
address these factors, even implicitly, and as such failed to comply with the treating physician
rule or the remand order, which directed him to “expressly evaluate the treating and examining
source opinions.” (R. 644) (emphasis added).
In addition, opinions from one-time examining sources that conflict with treating source
opinions are generally given less weight. 20 C.F.R. § 416.927(c)(2). Despite the fact that many of
Dr. Walter’s opinions were consistent between the two questionnaires and supported by other
record evidence, ALJ Grossman afforded “great weight” to the opinion of the testifying—but nontreating—orthopedic expert Dr. Brovender, who stated that there was no objective support for
32
Ms. DeJesus’s allegations that she can walk only one block and cited to specific treatment notes
to support his opinion. (R. 656).
Contrary to the ALJ’s description, Dr. Brovender’s testimony was vague and he was unable
to address direct questions about Ms. DeJesus’s medical record. (R. 687–91). He began his
testimony by reading out the results of several of Ms. DeJesus’s examinations, providing no
analysis until asked by ALJ Grossman, “what limitations could you reasonably expect from all
this?,” to which Dr. Brovender replied, “[n]ot much.” (R. 688) When pressed on any potential
limitations caused by the hammertoe deformity, including the ability to stand or walk, Dr.
Brovender replied, “[n]o, they would correct it,” and continued “there [were] no post-operative
x-rays . . . her toes should be straight.” (R. 688–89). This statement evidences Dr. Brovender’s
unfamiliarity with the record. First, radiographs were taken during at least four post-operative
appointments, and the results were included in Dr. Walter’s contemporaneous treating notes.
(R. 506, 509, 512, 606). In late 2013, radiographs showed a contraction deformity in Ms.
DeJesus’s left foot, with subluxation at the site of her previous surgery. (R. 606). As of the
April 30, 2014 progress note, Dr. Walter had officially re-diagnosed “hammertoe deformity of the
fourth toe,” and referred Ms. DeJesus to physical therapy. (R. 1008). Thus, the ALJ’s grant of
“great weight” to Dr. Brovender’s opinion and his reliance on that opinion in declining to afford
treating podiatrist Dr. Walter’s opinion controlling weight was unsupported by the evidence and
necessitates remand.
b. Dr. Joseph Charles
Ms. DeJesus alleges that the ALJ also erred by giving “little weight” to the marked
limitations described by treating psychiatrist Dr. Charles in his 2013 Mental Impairment
33
Questionnaire. (ECF No. 13 at 5). While ALJ Grossman gave “little weight” to the marked
limitations, he accorded Dr. Charles’s opinion “significant weight” as to the findings that Ms.
DeJesus had at most moderate limitations in several areas of work activity. (R. 654). The ALJ
stated that “the marked limitations are not supported by the treatment records or Dr. Charles’s
own mental status examination.” (R. 654). As with Dr. Walter, ALJ Grossman did not cite to any
evidence as to the why this treating source opinion should not be given controlling weight, and
did not go through the prescribed factors when such weight is not afforded, especially as to one
part of the opinion but not the other. (R. 654). The Court notes that while Dr. Charles’s treating
records are sparse, they are longitudinal and supplemented with records from other clinicians at
the FEGS clinic.
Although opinions from one-time examining sources that conflict with treating source
opinions are generally given less weight, ALJ Grossman afforded consultative examiner Dr. Kim’s
opinion “significant weight,” because it was “well supported by her evaluation findings.” (R. 654).
While Dr. Charles’s records may not include extensive detail, they do evidence limitations in the
broad areas of functioning, which ALJ Grossman did not assess or sufficiently include in his
determination of Ms. DeJesus’s residual functional capacity. Further, the ALJ’s assessment of Ms.
DeJesus’s mental limitations did not consider Dr. Kim’s finding that Ms. DeJesus’s psychiatric
problems “may significantly interfere with claimant's ability to function on a daily basis." (R. 594).
*
*
*
*
On remand, and with appropriate weight granted to the opinion of Dr. Brovender, if the
ALJ maintains that the opinions of Dr. Walter and Dr. Charles do not merit controlling weight, and
grants greater weight to the opinions of one-time consultative examiners, he must explain his
34
decision using the prescribed factors. 20 C.F.R. §§ 404.1529. On remand the ALJ is also directed
to adequately analyze the potential limitations of mental functioning when determining Ms.
DeJesus’s residual functional capacity.
2. Vocational expert testimony
In granting Ms. DeJesus a further evidentiary hearing after her first complaint in this
District, the Appeals Council directed the ALJ to “secure supplemental evidence from a vocational
expert” and noted that “[t]he hypothetical questions [to the vocational expert] should reflect the
specific capacity/limitations established by the record as a whole.” (R. 644). The order
continued, “[t]he Administrative Law Judge will ask the vocation expert to identify examples of
appropriate jobs and to rate the incidence of such jobs in the national economy.” (R. 644). ALJ
Grossman did not comply—he did not ask the vocational expert any hypothetical questions, let
alone a hypothetical that included all of Ms. DeJesus’s alleged symptoms, and did not have the
expert identify examples of appropriate jobs available in the national economy. (R. 689–90).
Instead, the ALJ offered his own assessment, and asked the expert whether he agreed. After
establishing Ms. DeJesus’s past relevant work, the entirety of ALJ Grossman’s questioning of the
vocational expert follows:
ALJ:
VE:
ALJ:
Those – those are simple task instruction jobs; correct?
Yes.
And do they have more than occasional – is there any psychiatric alleged here
counsel?
ATTY: Yes, Yes.
ALJ: Okay would they have more than occasional contact with supervisors, coworkers
or the public?
VE:
it’s occasional.
ALJ: Occasional okay. So it’s simple task instructions. It’s occasional. Does it have any
exposure to concentrated chemicals or pollutants?
VE:
So if the job was just to take the food back and forth, it’s not the cleaning also,
they don’t use irritants or pollutants.
35
ALJ:
VE:
ALJ:
VE:
ALJ:
Okay, so the service attendant doesn’t have it; right?
Right.
Okay.
The – the other job could have been.
Okay.
(R. 696–97). As evidenced by the above, ALJ Grossman did not comply with the Appeals Council’s
remand order, and must do so on remand from this Court.
3. Evaluation of Ms. DeJesus’s credibility
Ms. DeJesus also contends that the ALJ did not properly evaluate her credibility. (ECF No.
13 at 5). ALJ Grossman found that while Ms. DeJesus’s “medically determinable impairments
could reasonably be expected to cause the alleged symptoms,” her “statements concerning the
intensity, persistence and limiting effects of these symptoms are not entirely credible[.]” (R.
656). In support, the ALJ noted that while some reduction in strength and range of motion appear
in the record, they are not so severe as to preclude light work. (R. 656). He also justified his
decision because her alleged limited daily activities could not be verified, and noted that even if
they were true, it would be difficult to attribute the limitation to her medical condition. (R. 656).
The ALJ does not cite to any record evidence to support his assessment of Ms. DeJesus’s
credibility. As noted above, when a claimant reports symptoms that are more severe than
medical evidence alone would suggest, the regulations require the ALJ to consider specific factors
in determining the credibility of the claimant’s symptoms and their limiting effects. SSR 96-7p,
1996 WL 374186, at *2 (superseded by SSR 16-3p for cases filed after March 27, 2017). These
seven factors include: (1) an individual’s daily activities; (2) the location, duration, frequency and
intensity of pain or other symptoms; (3) factors that precipitate and aggravate those symptoms;
(4) the type, dosage, effectiveness, and side effects of medication that the individual takes or has
36
taken to alleviate pain or other symptoms; (5) treatment, other than medication, that the
individual receives or has received for pain or other symptoms; (6) measures other than
treatment the individual uses or has used to relieve pain or other symptoms; and (7) other factors
concerning the individual’s functional limitations and restrictions due to pain or other symptoms.
See Bush, 94 F.3d at 46 n.4. ALJ Grossman did not engage in this analysis.
Additionally, ALJ Grossman erred by finding Ms. DeJesus not credible because her
limitations in activities of daily living could not be “objectively verified.” (R. 656). Courts have
rejected this reasoning because these types of statements are impossible to verify. See, e.g.,
Beardsley v. Colvin, 758 F.3d 834, 837 (7th Cir. 2014) (“Whatever uncertainty may exist around
such self-reports is not by itself a reason to discount them—otherwise, why ask in the first
place?—and the relevant regulations specifically allow ALJs to consider claimants’ ‘daily
activities.’ 20 CFR §§ 404.1529(a), 416.929(a). By the ALJ’s reasoning, the agency could ignore
applicants’ claims of severe pain simply because such subjective states are impossible to verify
with complete certainty, yet the law is to the contrary.”). An applicant is not required to verify
statements regarding her stated limitations in daily activities, and thus here, ALJ Grossman
improperly dismissed Ms. DeJesus’s stated limitations.
ALJ Grossman also ignores the cross-corroborating and longitudinal evidence of Ms.
DeJesus’s pain throughout the record. Ms. DeJesus discussed her foot pain with her Primary Care
Doctor, Dr. Noel Brown, who cleared Ms. DeJesus for both foot surgeries, referred Ms. DeJesus
for physical therapy, and opined in her Impairment Questionnaire that Ms. DeJesus had daily foot
pain on a scale of six or seven out of ten. (R. 357, 451, 474). Ms. DeJesus also discussed her pain
37
with Dr. Charles and Mr. Espinal at FEGS, and her physical limitations were noted in her
comprehensive psychological treatment plans. (See, e.g., R. 550, 562, 1065, 1234).
As explained above, the ALJ did not engage the required analysis for determining the
credibility of a claimant’s symptoms and their limiting effects as required by 20 C.F.R. §§ 404.1529
and 416.929(c)(3). Further, because a claimant’s credibility can only be properly assessed upon
the correct application of the treating physician rule, as the treating physician’s opinion
contributes significantly to the evidence that is weighed in determining a claimant’s credibility
under these factors, the ALJ’s failure to apply that rule properly impacted his assessment of Ms.
DeJesus’s credibility.
C. Appointments Clause Challenge
Ms. DeJesus claims that the ALJ was not constitutionally appointed at the time of the
decision in this case and, therefore, lacked the power to decide her claim. (ECF No. 27). Article II,
Section 2, Clause 2 of the Constitution provides, in pertinent part, that only the President, “Courts
of Law,” or “Heads of Departments,” can appoint “Officers” of the United States. Actions taken
by an “Officer” of the United States who was not appointed in accordance with the Constitution
appear to have no legal effect. See Lucia v. SEC, 138 S. Ct. 2044, 2055 (2018). The Commissioner
opposes Ms. DeJesus’s Appointments Clause challenge on the ground that she waived any such
challenge by failing to raise it at any point in the administrative process. (ECF No. 30).
In the context of Social Security proceedings, the overwhelming majority of district courts
have held that Lucia requires challenges under the Appointments Clause to be raised during the
administrative proceedings; courts have found that a plaintiff’s failure to do so operates as a
waiver. See, e.g., Kimberly B. v. Berryhill, No. 17 Civ. 5211 (HB), 2019 WL 652418, at *14–15
38
(D. Minn. Feb. 15, 2019); Michelle Alicia S. v. Berryhill, EDCV 17-2115-JPR, 2019 WL 631913, at
*3 n.6 (C.D. Cal. Feb. 14, 2019); Axley v. Comm'r, Soc. Sec. Admin., 18 Civ. 1106-STA-cgc, 2019
WL 489998, at *1–2 (W.D. Tenn. Feb. 7, 2019); Shipman v. Berryhill, 17 Civ. 00309-MR, 2019 WL
281313, at *3 (W.D.N.C. Jan. 22, 2019); Dierker v. Berryhill, 18 Civ. 145-CAB (MSB), 2019 WL
246429, at *2–4 (S.D. Cal. Jan. 16, 2019), adopted by 2019 WL 446231, at *1 (S.D. Cal. Feb. 5,
2019); A.T. v. Berryhill, 17-4110-JWB, 2019 WL 184103, at *7 (D. Kan. Jan. 14, 2019); Stearns v.
Berryhill, 17 Civ. 2031-LTS, 2018 WL 4380984, at *6 (N.D. Iowa Sept. 14, 2018).
Ms. DeJesus concedes that her Appointments Clause challenge was not raised before the
ALJ or the Appeals Council. (ECF No. 27) (“this objection was not made when this case was
pending before the Agency”). Her challenge to the constitutionality of the ALJ’s appointment is,
therefore, denied as untimely. See Bonilla-Bukhari v. Berryhill, 357 F. Supp. 3d 341, 349–51
(S.D.N.Y. 2019) (collecting cases following Lucia where the Courts have concluded that exhaustion
before the ALJ is required).
IV.
CONCLUSION
For the reasons set forth above, Ms. DeJesus’s motion for judgment on the pleadings (ECF
No. 12) is GRANTED and the Commissioner’s motion (ECF NO. 16) is DENIED. The Commissioner’s
decision denying benefits is vacated, and this matter is remanded to the agency for further
proceedings.
The Clerk of Court is respectfully directed to close this case.
Dated:
New York, New York
March 9, 2020
SO ORDERED
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