Silva v. Colvin
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 12 Plaintiff's Motion for Judgment on the Pleadings to the extent that the matter is remanded for further administrative proceedings consistent with this Decision and Order; denying 17 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 9/10/15. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
-vsCAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Represented by counsel, Veronica Silva (“Plaintiff”) brings
this action pursuant to Titles II and XVI of the Social Security
Act (“the Act”), seeking review of the final decision of the
Commissioner of Social Security (“the Commissioner”) denying her
Supplemental Security Income (“SSI”). The Court has jurisdiction
over this matter pursuant to 42 U.S.C. § 405(g). For the reasons
remanded for development of the record with regard to Plaintiff’s
treating psychiatrist, re-application of the treating physician
rule, and consideration of evidence submitted to the Appeals
On February 28, 2011, Plaintiff protectively filed for SSI and
DIB, alleging disability beginning February 5, 2011, based on
attention deficit disorder (“ADD”), severe dyslexia, depression,
and possible autism (pending further testing). T.91-98, 138.1 After
this application was denied, Plaintiff requested a hearing, which
was held before administrative law judge Connor J. O’Brien (“the
ALJ”) on May 16, 2012. Plaintiff appeared with her attorney and
testified. T.479-551. On September 26, 2012, the ALJ issued a
decision finding Plaintiff not disabled. T.15-28.
On administrative appeal, Plaintiff submitted records from
seven sources which were accepted by the Appeals Council. See T.5
(citing Ex. 15E (high school transcript dated 1997); Ex. 16E
(Plaintiff’s representative’s legal brief); Ex. 20F (urgent care
records dated 7/25/12); Ex. 21F (therapy records from St. Joseph’s
Neighborhood Center from 12/02/04 through 3/24/11); Ex. 22F (lumbar
Dr. Ronald Guzman from 7/30/12 through 10/02/12); and Ex. 24F
concluded, without elaboration, that this “additional evidence does
not provide a basis for changing the [ALJ]’s decision.” T.7. On
April 23, 2014, the Appeals Council denied Plaintiff’s request for
Commissioner. This timely action followed.
The parties have filed cross-motions for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rule of Civil
Procedure. The Court adopts and incorporates by reference herein
Citations to “T.” refer to pages from the certified transcript of the
administrative record, submitted by the Commissioner in connection with her
answer to the complaint.
the undisputed and comprehensive factual summaries contained in the
parties’ briefs. Because Plaintiff does not challenge the physical
aspect of the ALJ’s RFC assessment, the Court limits its recitation
of the medical evidence to the opinions issued by Plaintiff’s
treating sources and by the consultative psychologist who examined
Plaintiff at the Commissioner’s request.
III. Psychiatric and Psychological Opinion Evidence
On December 2, 2004, Arif Mirza, M.D. and Rory Houghtalen,
M.D. of St. Joseph’s Neighborhood Center (“St. Joseph’s”) assessed
Plaintiff, then aged 28, for treatment of ADD and depression.
T.239-42. On examination, her speech was repressed and childlike;
she had poor eye contact, an inappropriate affect, no delusions or
paranoia, and no thoughts of hurting herself or others. T.240.
Dr. Houghtalen noted Plaintiff’s “odd features, dysconjugate gaze,
odd affect,” “social anxiety, [and] ritualistic behavior[,]” T.242,
such as walking in circles when anxious, T.241.
He opined that
Plaintiff’s social isolation and inappropriate affect “point to
autism spectrum [disorder].” T.241. See also T.242 (Dr. Houghtalen
noted this was a “complex case that may represent an autistic
spectrum disorder [with] prominent attention deficit” and that her
Strattera was prescribed for her ADD, Prozac was continued for her
depression, and new psychological testing was recommended. T.241.
Dr. Houghtalen’s evaluation, Plaintiff was disabled, precluded from
continuing her academic work, and needed to withdraw from her
On October 29 and November 19, 2010, see, T.282-86; T.220-22,
psychologist John Amos, Ph.D. administered the WAIS-III IQ test to
Plaintiff, who scored a Verbal IQ of 89, a Performance IQ of 63,
with a resultant Full Scale IQ of 69; this placed her in the
reported that she had been delivered with forceps which did “some
requiring maxillofacial surgery at age 22. T.220. Plaintiff stated
that after she was born, her father (a physician) abandoned her and
her mother when he learned she might have cognitive disabilities
psychiatric history was “lengthy,” and she reported having seen
“too many psychologist and psychiatrists to name individually.”
T.221. Plaintiff had a history of petit mal seizures, which lasted
until she was 17. T.283. Most recently she had been followed at
St. Joseph’s by psychiatrist Dr. Tullio R. Ortega for 2 years. She
diagnosed Plaintiff with ADD and major depressive disorder, with a
“rule out” diagnosis of autism pending further evaluation.
On May 5, 2011, State agency consultative psychologist Kavitha
Finnity, Ph.D. evaluated Plaintiff at the Commissioner’s request.
T.223-26. Plaintiff reported living with her mother. She had been
working part-time as a cashier at Tops supermarket, which ended in
February 2011, as a result of her depression and anxiety symptoms.
She had been receiving outpatient psychiatric treatment for the
past 13 years. On examination, her affect was depressed and her
mood was dysthymic. T.224. Her attention and concentration were
“mildly impaired,” and she had difficulty with serial 3s. T.224.
Also, her recent and remote memory skills were “mildly impaired”;
she was able to recall only 1 out of 3 objects after 5 minutes and
was unable to recall any digits backward. T.224. Noting that the
allegations,” T.224, Dr. Finnity diagnosed bipolar disorder, not
otherwise specified (“NOS”); panic disorder without agoraphobia;
and ADD, by history, T.255. For her medical source statement,
Dr. Finnity opined that Plaintiff “can follow and understand simple
directions and perform simple tasks” but “has difficulty with
attention and concentration.” T.225. Plaintiff “can maintain a
regular schedule”; “can learn new tasks and perform complex tasks
However, she “has difficulty [in being able] to relate with others
and deal with stress[,]” and will need assistance in managing her
On May 16, 2011, Plaintiff’s treating therapist, Michael
Boucher, LCSW-R (“Mr. Boucher”) of St. Joseph’s, completed a
Mr. Boucher had treated Plaintiff about 2 to 3 times per month
since 2000. As diagnoses, Mr. Boucher indicated major depressive
disorder, attention deficit/hyperactivity disorder (“ADHD”), panic
attacks, and possible autism spectrum disorder. T.228. Current
symptoms were as follows: consistent up/down moods, difficulty
isolation. T.228. Mr. Boucher observed that while Plaintiff “has
had periods of greater and lesser relief from symptoms since
2000[,]” “[m]uch of symptomatology remains the same[.]” T.229.
Plaintiff’s fatigue was related to her major depressive disorder
and affected her desire to engage socially with others and perform
tasks. T.230. Mr. Boucher noted that Plaintiff was “never able to
work full time” and that she reported difficulties in functioning
examination was notable for Plaintiff appearing childlike at times,
being emotionally labile, and having a blunted or inappropriate
affect at times, some distortions in speech, and limited eye
contact. T.231, 232. Plaintiff did not drive because she could not
pass the test and got confused about right and left. Mr. Boucher
noted that Plaintiff had struggled with anger outbursts, which led
to her being fired from her part-time job as a cashier. T.232. She
had “limited” attention, “limited” ability to perform calculations,
serial 7s, and similar tasks, and “limited” insight and judgment
“at times.” T.233.
pressure,” and has “difficulties reading social cues (at times).”
T.233. Her understanding and, in particular, short-term memory were
“limited” and she “needs to focus to recall details.” T.235.
Mr. Boucher stated that Plaintiff’s social interaction skills were
“limited”; she could “accept simple instructions and supervisory
instructions.” T.235. Mr. Boucher opined that she could “work
independently but [she is] not always aware of limits” and “reacts
to emotional content.” T.236.
On June 29, 2011, treating psychiatrist Dr. Ortega completed
a questionnaire at the Commissioner’s request. See T.264-70. He
noted he had treated Plaintiff since March 31, 2008, for ADHD,
severe dyslexia, depression; he indicated a “rule out” diagnosis of
social anxiety. Plaintiff’s symptoms were “depression, [illegible],
[illegible], [illegible], temper problem, [illegible], avoidant
[sic].” T.264. Dr. Ortega reported that Plaintiff’s prescriptions
were Depakote, fluoxetine, and Strattera, to which she had “fair
response, but still [was] very limited.” T.265. Dr. Ortega’s
description of Plaintiff’s clinical course is illegible, apart from
the notation, “fair to medication, but very limited social skills.”
T.266. On examination, Plaintiff’s speech, thought, and perception
were “limited” and her mood/affect were “dysphoric/anxious.” T.267.
“anxious/[illegible]/concrete and simple.” T.267. Her attention and
concentration were “short”; her orientation, “good”; her memory,
calculations and serial 7s, “poor”; and her insight and judgment,
“poor/very limited.” T.267. Dr. Ortega’s description of Plaintiff’s
activities of daily living is illegible, apart from the notation
“limited” and “fired from part-time job.” T.268. According to
Dr. Ortega, Plaintiff’s ability to function in a work setting was
“poor, even in supportive setting.” T.268 (emphasis in original).
Dr. Ortega opined that her understanding and memory; sustained
concentration and persistence; social interaction; and adaption
T.271-81 (records).2 Dr. Ortega opined that Plaintiff had a “poor
prognosis” and that her mental condition was expected to last for
On May 10, 2012, Dr. Ortega completed a “Mental Impairment
Questionnaire (RFC & Listings)” at the Commissioner’s request. See
T.413-18. Dr. Ortega noted that he saw Plaintiff every 12 weeks for
15-to-30-minute appointments. T.413. Her Axis I diagnoses were ADHD
and bipolar disorder; her Axis II diagnosis was dyslexia. T.269.3
Dr. Ortega’s assessment of Plaintiff’s limitations in his previous
questionnaire was again quite restrictive.
As discussed further below, the bulk of Dr. Ortega’s handwritten treatment
notes are illegible.
Axis I is the “top-level of the [Diagnostic and Statistical Manual
of Mental Disorders] multiaxial system of diagnosis” and “represents
http://www.psyweb.com/DSM_IV/jsp/Axis_I.jsp (last accessed Sept. 8,
2015). “Axis II is for assessing personality disorders and intellectual
accessed Sept. 8, 2015).
Statement of Ability to Do Work-Related Activities (Mental). See
T.423, 425-26. Dr. Ortega checked boxes indicating that Plaintiff’s
regarding other abilities affected by the impairment are illegible,
apart from “easily angered.” T.425. Dr. Ortega left blank the area
III. Scope of Review
When considering a claimant’s challenge to the decision of the
Commissioner denying benefits under the Act, the district court is
limited to determining whether the Commissioner’s findings were
Commissioner employed the proper legal standards. Green-Younger v.
Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). The district court
must accept the Commissioner’s findings of fact, provided that such
findings are supported by “substantial evidence” in the record.
See 42 U.S.C. § 405(g) (the Commissioner’s findings “as to any
fact, if supported by substantial evidence, shall be conclusive”).
The reviewing court nevertheless must scrutinize the whole record
and examine evidence that supports or detracts from both sides.
Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1998) (citation
omitted). “The deferential standard of review for substantial
evidence does not apply to the Commissioner’s conclusions of law.”
Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley
v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).
Failure to Properly Weigh the Opinion Evidence
physician rule and erroneously discounted the three questionnaires
completed by her treating psychiatrist, Tullio R. Ortega, M.D. See
T.264-70 (June 29, 2011 questionnaire); T.413-18 (May 10, 2012
“Mental Impairment Questionnaire (RFC & Listings)”; T.423, 425-26
(June 2, 2012 “Medical Source Statement of Ability to Do WorkRelated Activities (Mental)”).
The Second Circuit has explained that “[a]lthough the treating
physician rule generally requires deference to the medical opinion
of a claimant’s treating physician, the opinion of the treating
physician is not afforded controlling weight where . . . the
treating physician issued opinions that are not consistent with
other substantial evidence in the record. . . .” Halloran v.
Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (per curiam) (internal and
controlling weight to a treating physician’s opinion, the ALJ “must
consider various ‘factors’ to determine how much weight to give to
the opinion[,]” id. (quoting 20 C.F.R. § 404.1527(d)(2)), such as
“(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; (iv) whether the opinion is from a
and (v) other factors brought to the Social Security
Administration’s attention that tend to support or contradict the
opinion.’” Id. (quoting 20 C.F.R. § 404.1527(d)(2)).
A corollary to the treating physician rule is the so-called
“good reasons rule,” which is based on the regulations specifying
that “the Commissioner ‘will always give good reasons’” for the
weight given to a treating source opinion. Halloran, 362 F.3d at 32
§ 416.927(d)(2); Schaal v. Apfel, 134 F.3d 496, 503-04 (2d Cir.
1998)). “Those good reasons must be ‘supported by the evidence in
the case record, and must be sufficiently specific . . . .’”
Blakely v. Commissioner of Social Sec., 581 F.3d 399, 406 (6th Cir.
2009) (quoting Social Security Ruling (“SSR”) 96–2p, 1996 WL
374188, at *5 (S.S.A. July 2, 1996)). Because the “good reasons”
rule exists to “ensur[e] that each denied claimant receives fair
process,” Rogers v. Commissioner of Social Sec., 486 F.3d 234, 243
(6th Cir. 2007), an ALJ’s “‘failure to follow the procedural
requirement of identifying the reasons for discounting the opinions
and for explaining precisely how those reasons affected the weight’
given ‘denotes a lack of substantial evidence, even where the
conclusion of the ALJ may be justified based upon the record.’”
Blakely, 581 F.3d at 407 (quoting Rogers, 486 F.3d at 243; emphasis
Here, the regulatory factors regarding the length of the
treatment relationship and the nature of Dr. Ortega’s practice
support a finding that he is a treating source: Dr. Ortega is a
specialist in the field of psychiatry, and he treated Plaintiff on
a consistent basis (approximately every 12 weeks for 15-to-30
minute appointments) beginning in 2008 to at least 2012. Indeed,
the Commissioner does not dispute that Dr. Ortega qualifies as a
weight” despite his treating relationship with Plaintiff, T.25,
finding that his “opinions of multiple marked impairments are not
supported by objective medical evidence” and “are inconsistent with
treatment notes.” T.25. The Court has reviewed the administrative
transcript and attempted to decipher Dr. Ortega’s questionnaires,
reports, and notes, all of which are handwritten. However, the
Court is forced to conclude that significant portions of the
treatment notes, are illegible, as evidenced by numerous instances
in the parties’ submissions where Dr. Ortega’s notes and comments
are not transcribed. The Court therefore is unable to determine
whether the ALJ’s main reason for discounting his opinions—that
they are “inconsistent with his own mental status exams provided in
substantial evidence. Accordingly, the Court finds that remand for
transcription of Dr. Ortega’s notes, questionnaires, and reports is
required. See Connor v. Barnhart, No. 02 Civ. 2156(DC), 2003 WL
21976404, at *8 (S.D.N.Y. Aug. 18, 2003) (“[C]ourts have held that
illegibility of important medical records is a factor warranting a
remand for clarification and supplementation.”) (quoting Vaughn v.
Apfel, No. 98 Civ. 0025(HB), 1998 WL 856106, at *6 (S.D.N.Y.
Dec. 10, 1998)). The Court is unclear how the ALJ could find that
the Dr. Ortega’s opinions are inconsistent with his own treatment
notes when the notes (and portions of the opinions) are illegible.
In addition, as Plaintiff points out, the remainder of the
ALJ’s analysis of Dr. Ortega’s opinion is marred by legal error and
Dr. Ortega’s opinion was “inconsistent with other substantial
psychologist] Dr. [Kavitha] Finnity and the assessment of the
claimant’s treating counselor [Michael Boucher, LCSW-R].” T.25. “It
is a fundamental tenet of Social Security law that an ALJ cannot
pick and choose only parts of a medical opinion that support his
determination.” Nix v. Astrue, No. 07–CV–344, 2009 WL 3429616, at
As Plaintiff argues, it is improper for the ALJ to discount a treating
physician opinion solely based on a comparison of it to the physician’s treatment
notes. Pl’s Br. at 32 (citing Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998)).
In Balsamo, the Second Circuit held that the ALJ erred in rejecting the opinions
of the claimant’s treating physicians “solely on the basis that the opinions
allegedly conflicted with these physicians’ own clinical findings” because under
regulations, “the medical conclusion of a ‘treating’ physician is ‘controlling’
if 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.’” Balsamo, 142 F.3d at 80 (quoting 20 C.F.R. §
*7 (W.D.N.Y. Oct. 22, 2009) (citing Robinson v. Barnhart, 366 F.3d
1078, 1083 (10th Cir. 2004) (other citation omitted)). Here, the
ALJ relied upon parsed, selected portions of Dr. Finnity’s and Mr.
For instance, with regard to Mr. Boucher, the ALJ
described his questionnaire as supporting “the ability to maintain
Mr. Boucher’s opinion that qualify these statements, such as
pressure,” and has “difficulties reading social cues (at times).”
T.233. Dr. Finnity found that Plaintiff was unable to complete any
of the recent and remote memory tests during her consultative
examination, but the ALJ found that Plaintiff could “focus on
unskilled work for two-hour periods throughout the day, with brief
(up to one minute) moments to stretch and refocus.”
The Court notes that there are other opinions in the record by
treating sources, namely, Dr. Mirza, Dr. Houghtalen and Dr. Amos,
which support Dr. Ortega’s opinion. However, the ALJ did not
Dr. Tullio’s opinions. “Regardless of its source,” the regulations
require that “every medical opinion” in the administrative record
be evaluated when determining whether a claimant is disabled under
the Act. 20 C.F.R. § 416.927(d). Dr. Mirza, Dr. Houghtalen, and
Dr. Amos would constitute “[a]cceptable medical sources” that can
provide evidence to establish an impairment include, inter alia, a
claimant’s treating physicians, psychiatrists, and psychologists.
20 C.F.R. § 416.913(a). This, again, constitutes an improper
selective reading of the record. See Royal v. Astrue, Civil Action
No. 5:11–456, 2012 WL 5449610, at *6 (N.D.N.Y. Oct. 2, 2012) (“In
effect, ALJ Armstrong ‘cherry picked’ the evidence, relying on some
substantive detail to the contrary from the same sources. . . .
While ALJs are entitled to resolve conflicts in the record, they
cannot pick and choose only evidence that supports a particular
conclusion.”) (citing, inter alia, Smith v. Bowen, 687 F. Supp.
902, 904 (S.D.N.Y. 1988) (citing Fiorello v. Heckler, 725 F.2d 174,
17576 (2d Cir. 1983)).
Lastly, the ALJ relied on Dr. Ortega’s finding that the
Plaintiff “had a GAF [Global Assessment of Functioning] score of
55,” T.25, to discount his opinion because, the ALJ noted, “[a] GAF
score of 55 indicates moderate symptoms or moderate difficulty in
social, occupational, or school functioning. It does not indicate
marked limitations in functioning.” T.26. However, Plaintiff’s GAF
score of 55 is not a “good reason” to discount wholesale all of
Dr. Ortega’s opinions. See Estela-Rivera v. Colvin, No. 13 CV
5060(PKC), 2015 WL 5008250, at *14 (E.D.N.Y. Aug. 20, 2015) (“[T]he
Plaintiff’s GAF as a 75 as a basis for giving little weight to the
rest of Dr. Breving’s opinion. While the ALJ correctly noted that
Plaintiff’s GAF score of 75 indicated that her symptoms were
‘transient and acceptable reaction to psychosocial stressors, which
would cause her no more than slight impairment in social or
occupational functions’, a claimant’s GAF score is insufficient
findings.”) (internal citations to record omitted; citing Santiago
v. Colvin, 12 CV 7052, 2014 WL 718424, at *20 n. 10 (S.D.N.Y.
Feb. 25, 2014)). As the district court in Santiago noted, “[t]he
Commissioner has made clear that the GAF scale does not have a
direct correlation to the severity requirements contained in the
[regulations] that the ALJ considers [to determine whether the
claimant has a per se disability].” Id. (citing Revised Medical
Injury, 65 Fed. Reg. 50746–01, 50764–65, 2000 WL 1173632 (Aug. 21,
2000); emphasis supplied).
Commissioner’s determination was erroneous as a matter of law and
was not supported by substantial evidence. Accordingly, Defendant’s
Motion for Judgment on the Pleadings (Dkt #17) is denied, and
Plaintiff’s Motion for Judgment on the Pleadings (Dkt #12) is
granted to the extent that the matter is remanded for further
Specifically, the ALJ is directed to develop the record fully by
questionnaires transcribed. The ALJ is then directed to evaluate
Dr. Ortega’s treating source opinions in light of the appropriate
regulatory factors and in accordance with the case law discussed
above, and re-assess the weight to be given Dr. Ortega’s opinions.
The ALJ also is directed to consider, as part of the record, the
new evidence submitted to the Appeals Council by Plaintiff on
The Clerk of the Court is directed to close this case.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
September 10, 2015
Rochester, New York.
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