Rodriguez v. Colvin

Filing 13

DECISION AND ORDER granting 9 Plaintiff's Motion for Judgment on the Pleadings to the extent that the Commissioners decision is reversed and the matter remanded solely for calculation and payment of benefits; denying 10 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 11/6/2017. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RICARDO RODRIGUEZ,
Plaintiff,

No. 6:17-cv-06048(MAT)
DECISION AND ORDER

-vsNANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
INTRODUCTION
Represented by counsel, Ricardo Rodriguez (“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 Acting
Commissioner of Social Security (“Defendant” or “the Commissioner”)
denying his application for disability insurance benefits (“DIB”)
and supplemental security income (“SSI”). For the

reasons set

forth below, the Commissioner’s decision is reversed, and the
matter is remanded for further administrative proceedings.
PROCEDURAL STATUS
On July 5, 2013, Plaintiff filed a Title II application for a
period of disability and DIB. On July 31, 2013, Plaintiff filed a
Title XVI application for SSI. In both applications, he alleged
disability beginning March 4, 2013, due to depressive disorder,
anxiety disorder, mood disorder, bipolar disorder, post-traumatic
stress disorder (“PTSD”), hypertension, and low back pain. These
claims were denied initially on September 25, 2013. Plaintiff filed

a request for a hearing which was conducted via videoconference on
March 18, 2015, by administrative law judge Gregory M. Hamel (“the
ALJ”). Plaintiff appeared with his attorney in Rochester, New York,
and testified, as did Stephanie R. Archer, an impartial vocational
expert (“the VE”).

On May 15, 2015, the ALJ issued an unfavorable

decision finding, inter alia, that Plaintiff has the residual
functional capacity (“RFC”) to perform a full range of work at all
exertional

levels

with

certain

postural

and

environmental

limitations, including that he is limited to performing routine and
repetitive tasks that require only occasional interaction with the
general public and co-workers. The ALJ also found that Plaintiff
can perform his past relevant work as a cleaner, packer, and
warehouse worker, which are all medium exertional level, unskilled
jobs.
Plaintiff’s request for review was denied by the Appeals
Council on March 25, 2016, making the ALJ’s decision the final
decision of the Commissioner. Plaintiff then timely commenced this
action.
Presently before the Court are the parties’ competing motions
for judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules

of

Civil

Procedure.

For

the

reasons

discussed

below,

Plaintiff’s motion is granted, and the Commissioner’s motion is
denied.
DISCUSSION

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I.

Error in Weighing Treating Psychiatrist’s Opinions
The

treating

physician

rule

requires

an

ALJ

to

give

controlling weight to a treating physician’s opinion when that
opinion is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the
other
§

substantial

404.1527(c)(2);

evidence
see

also

in

[the]

record.”

Green-Younger,

335

20

F.3d

C.F.R.
at

106.

However, an ALJ may give less than controlling weight to a treating
physician’s opinion if it does not meet this standard, so long as
the ALJ sets forth the reasons for the determination. See Halloran
v.

Barnhart,

362

F.3d

28,

33

(2d

Cir.

2004);

20

C.F.R.

§ 404.1527(c)(2) (“We will always give good reasons in our notice
of

determination

or

decision

for

the

weight

we

give

[the

claimant’s] treating source’s opinion.”).
Plaintiff’s treating psychiatrist, Dr. Roma Fortuna of Strong
Behavioral Health, completed two mental RFC questionnaires on
Plaintiff’s behalf. On April 16, 2014, Dr. Fortuna completed a
mental
treated

RFC

questionnaire

Plaintiff

for

(T.366-70),

mood

disorder,

indicating
PTSD,1

and

that

she

anxiety

has
with

thoughts of suicide, feelings of guilt or worthlessness, impairment

1

The PTSD is the result of Plaintiff being sexually molested by one of his
older cousins who used to babysit him. The abuse started in 1979 and lasted for
several years, around the time he was in fourth grade. Plaintiff’s PTSD symptoms
include nightmares from which he wakes up screaming, sweating, and thinking his
cousin is in the room and trying to hurt him. Plaintiff also has flashbacks which
can be triggered by many things, including television shows. (T.22). The
flashbacks can occur 2 to 3 times a week or up to 2 or 3 times a day. (T.23).

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in

impulse

control,

generalized

persistent

anxiety,

mood

disturbance, difficulty concentrating, recurrent recollections of
trauma, psychomotor

agitation,

disturbances in

mood,

unstable

interpersonal relationships, and emotional lability. In regards to
his ability to work, Dr. Fortuna assessed that Plaintiff was
“limited”

or

“seriously

limited”

in

his

ability

to

maintain

attention for two hour segments; work in coordination with, or
proximity to, others without being distracted; complete a normal 8hour workday; perform at a consistent pace; accept instructions;
get along with coworkers; and deal with normal work stress. Dr.
Fortuna opined that Plaintiff would be “unable to meet” competitive
employment standards for dealing with the stress of a typical workday, and that his impairments would cause him to miss about 4 days
per month of work.
Dr. Fortuna completed a second questionnaire on February 19,
2015

(T.502-07),

indicating

that

Plaintiff’s

current

Global

Assessment of Functioning (“GAF”) was 40, with his highest GAF in
the past year being 50.
The ALJ gave “little weight” to both of Dr. Fortuna’s reports.
The ALJ noted that in 2014, Dr. Fortuna found that Plaintiff was
“limited or seriously limited in almost all activities required for
unskilled, semiskilled and skilled work,” but in 2015, she found
that he was “seriously limited or completely unable to perform
almost all activities required for unskilled, semiskilled, and

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skilled work.” According to the ALJ, “[t]here [was] no explanation
as to why the claimant’s limitations [were] reported as more
pronounced in [the 2015] report.” However, Dr. Fortuna notes in the
2015 opinion that Plaintiff’s “symptoms have been worsening over
the past couple months.” The ALJ found that Dr. Fortuna’s opinions
were “inconsistent with [Plaintiff]’s treatment records, which show
[Plaintiff]’s symptoms have improved overtime [sic] with medication
and therapy.” The ALJ did not cite to the specific records he
believed demonstrated improvement in Plaintiff’s symptoms. Without
identifying the alleged inconsistencies in the record, the ALJ did
not provide any basis for rejecting Dr. Fortuna’s opinions, and
prevents the Court from conducting a meaningful review. See, e.g.,
Ely v. Colvin, No. 14-CV-6641P, 2016 WL 315980, at *4 (W.D.N.Y.
Jan. 27, 2016) (“[T]he ALJ's statement that the rejected opinions
were “not supported by the record as a whole” is too conclusory to
constitute a “good reason” to reject the treating psychiatrist's
opinions. The ALJ does not identify anything in the record, other
than the GAF scores, discussed below, that is inconsistent with
Rodic’s opinions.”) (citing, inter alia, Crossman v. Astrue, 783 F.
Supp.2d 300, 308 (D. Conn. 2010) (ALJ’s statement that treating
physician’s opinion was “inconsistent with the evidence and record
as a whole” was “simply not the ‘overwhelmingly compelling type of
critique

that

would

permit

the

Commissioner

to

overcome

otherwise valid medical opinion’”) (quotation omitted)).

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an

The Court has reviewed the available records, and while
Plaintiff attended his psychiatric and counseling appointments
regularly

and

demonstrate

participated

that

willingly

Plaintiff

in

continued

therapy,
to

have

the

records

significant

psychiatric symptoms. On August 22, 2014, for instance, Plaintiff
presented as “anxious” and reported to his therapist that he had
shaved off his eyebrows the other day but denied knowing why he had
shaved them. (T.467). He had experienced vague thoughts of hanging
himself the previous week but did not act on those thoughts. (Id.).
The Court notes, however, that there appears to be a slight gap in
the administrative transcript with regard to treatment records from
Strong Behavioral Health after August 22, 2014, up until Dr.
Fortuna’s

February

2015

mental

RFC

questionnaire.

The

last

treatment note from Strong Behavioral Health, quoted in Plaintiff’s
Memorandum of Law (“Pl’s Mem.”) (Docket #9-1), is September 15,
2014. On that date Plaintiff had a psychotherapy session, and his
therapist noted that Plaintiff continued to ruminate over past
events, had intrusive thoughts about his past, and had “no real
change” in decreasing anxiety or impulsive responses to emotions.
(Pl’s Mem. at 20). Plaintiff indicates that these treatment notes
are

located

at

pages

494

through

496

of

the

administrative

transcript. However, this is incorrect, as pages 494 through 496 of
the administrative transcript are notes from Dr. Peter Creigh at
Strong Memorial Hospital Neurology dated March 4, 2014, for follow-

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up regarding Plaintiff’s tic disorder. (T.494-96). Dr. Creigh noted
that

Plaintiff

continued

to

experience

a

“significant

mood

disorder” in addition to his tic disorder and his other symptoms
which were suggestive of Tourette’s syndrome. (T.496).
The ALJ’s purported reasons for discounting Dr. Fortuna’s
opinions

are

legally

erroneous

and

not

based

on

substantial

evidence. They reflect an abdication of his duty to develop the
record by obtaining all pertinent records and by recontacting the
treating source if he required clarification about her opinion.
See, e.g., Clark v. Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d
Cir.1998) (“[W]hen an ALJ believes that a treating physician’s
opinion . . . is internally inconsistent, he may not discredit the
opinion on this basis but must affirmatively seek out clarifying
information from the doctor.”); Schaal v. Apfel, 134 F.3d 496, 505
(2d Cir. 1998) (“[E]ven if the clinical findings were inadequate,
it was the ALJ’s duty to seek additional information . . . sua
sponte.”); Rolon v. Comm’r of Soc. Sec., 994 F. Supp.2d 496, 505
(S.D.N.Y. 2014) (“The applicable regulations required the ALJ to
recontact Dr. Bogard. Even under the current amended regulations,
which give an ALJ more discretion to ‘determine the best way to
resolve the inconsistency or insufficiency’ based on the facts of
the case, the first option is still to recontact the treating
physician.”) (citing 20 C.F.R. §§ 404.1520b(c)(1), 416.920b(c)(1)

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(2013); Lowry v. Astrue, 474 F. App’x 801, 805 n. 2 (2d Cir. 2012);
footnote omitted).
This error cannot be harmless, as Dr. Fortuna’s description of
Plaintiff’s symptoms are consistent with consultative psychologist
Dr. Adam Brownfeld’s notes and observations on August 27, 2013.
Plaintiff reported that he was experiencing dysphoric moods, crying
spells, and irritability. Although he denied current suicidal
ideation, plan, or intent, his last suicidal ideation was two to
three weeks ago. Plaintiff told Dr. Brownfeld that he is not
allowed in his garage because he once measured the beam in his
garage to determine how long the rope would have to be if he wanted
to commit suicide. Plaintiff also reported that in the summer of
2012, he cut himself, and Dr. Brownfeld observed visible scars on
his arm.
The ALJ accorded the opinion of consultative psychologist Dr.
Adam Brownfeld “considerable weight.” However, Dr. Brownfeld’s
report does not provide substantial evidence to support the RFC
assessment, but rather is consistent with Dr. Fortuna’s reports in
many respects and is supportive of Plaintiff’s disability claim.
Dr. Brownfeld noted that throughout the consultative evaluation
(T.245-49), Plaintiff “was manic, anxious, and tearful.” (T.245).
His affect “[v]aried between depressed and anxious,” and his mood
was “dysthymic.”

Plaintiff’s

attention

and

concentration were

mildly impaired due to emotional distress secondary to anxiety. He

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was able to count and do simple math but unable to do serial 3s
correctly.

Plaintiff’s

recent

and

remote

memory

skills

were

“[i]mpaired due to emotional distress secondary to anxiety. He was
able to recall 3 out of 3 objects immediately and l out of 3
objects after a delay. He was able to recall 4 digits forward and
3

digits

backward.”

Dr.

Brownfeld,

diagnosed

Plaintiff

with

“bipolar disorder, severe with psychotic features.” For his medical
source statement, Dr. Brownfeld opined, in part as follows:
The claimant is moderately to markedly limited in
relating adequately with others. The claimant is markedly
limited in appropriately dealing with stress. These
difficulties are caused by psychiatric deficits. The
results of the present evaluation appear to be consistent
with psychiatric problems, and this may significantly
interfere with the claimant’s ability to function on a
daily basis.
(T.249 (emphasis supplied)). While Dr. Fortuna’s 2015 questionnaire
is more restrictive than Dr. Brownfeld’s 2013 assessment, at least
with regard to Plaintiff’s ability to remember and understand
instructions, maintain attention, and make appropriate decisions,2
the

opinions

are

quite

similar

with

regard

to

Plaintiff’s

limitations in handling stress and relating adequately with others.
Moreover, Dr. Brownfeld’s assessment of moderate to marked, and
marked limitations in social functioning in the workplace raises

2

Dr. Brownfeld assessed no evidence of limitation in following and
understanding simple instructions and directions, performing simple tasks
independently, and making appropriate decisions; and mild limitation in
maintaining attention and concentration, maintaining a regular schedule, learning
new tasks, and performing complex tasks independently that do not require
supervision. (T.249).

-9-

questions

as

to

whether

his

opinion

constitutes

substantial

evidence to support the ALJ’s RFC assessment. Cf., e.g., Seignious
v. Colvin, No. 6:15-CV-06065(MAT), 2016 WL 96219, at *3 (W.D.N.Y.
Jan. 8, 2016) (“Dr. Toor’s evaluation of ‘moderate to severe’
limitations is too vague, on its face, to constitute substantial
evidence supporting the ALJ’s conclusion that Plaintiff can perform
the exertional requirements of sedentary work. . . . [C]ourts have
found that even “moderate” limitations raise questions as to a
claimant’s ability to perform prolonged sitting or standing[.]”)
(internal and other citations omitted).
To the extent that the ALJ found that Plaintiff’s daily
activities

were

inconsistent

with

Dr.

Fortuna’s

mental

RFC

questionnaires, the Court finds that this conclusion was the
product of
evidence.
“further

legal

error and

According

to

undermin[ed]”

the
his

was
ALJ,

not

supported

Plaintiff’s

credibility;

the

by

daily
ALJ

substantial
activities

recited

that

Plaintiff lives in a home with and cares for his mother, who has
lupus

and

kidney

difficulties

with

failure,

cooks

performing

and

washes

personal

clothes,
care

has

no

activities

independently, shovels snow, sees his son on weekends, has visitors
on the weekend, and mows the lawn “sometimes.” First of all,
Plaintiff is not claiming significant physical limitation and thus,
being able to care for his mother, perform daily hygiene and selfcare, cook and wash clothes, mow the lawn, and shovel snow has no

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bearing on the mental portion of the RFC assessment that is at
issue here. Plaintiff’s limitations from his mental impairments
affect his ability to engage in social interactions appropriately
and maintain focus and attention. The only two daily activities
mentioned by the ALJ that relate to those areas are Plaintiff’s
weekend visits with his son and other visitors. “There is nothing
inherent in these activities that proves Plaintiff has the ability
to

perform

‘[t]he

basic

mental

demands

of

competitive,

remunerative, unskilled work[, which] include the abilities (on a
sustained basis) to understand, carry out, and remember simple
instructions; to respond appropriately to supervision, coworkers,
and usual work situations; and to deal with changes in a routine
work setting[,]” SSR 85-15, much less to do so ‘8 hours a day, for
5 days a week, or an equivalent work schedule[,]’” Harris v.
Colvin, 149 F. Supp.3d 435, 445 (W.D.N.Y. 2016) (quoting SSR 96–8p,
1996 WL 374184, at *2).
B.

Erroneous Credibility Analysis

Plaintiff argues that the ALJ improperly speculated about why
Plaintiff’s earning record does not show earnings for three years
(1988, 1989, or 1997) and why he worked for less than SGA in some
years. The ALJ commented that Plaintiff’s earning record “raises
some questions as to whether the present lack of substantial
gainful activity level income is related to his alleged impairments
as opposed to other reasons” and “whether the claimant’s continuing

-11-

unemployment is actually due to medical impairments.” (T.21, 22).
The Court agrees that based on pure speculation, the ALJ drew an
adverse inference against Plaintiff’s credibility.
Plaintiff’s earnings record (T.178-91) shows that he started
working when he was 16; that he had earnings every year from the
ages of 20 to 26, and then from the ages of 28 to 43; and that he
did earn less than SGA in a number of years. Plaintiff testified
that the reason he had so many different jobs is that because he
would be terminated for “not being able to follow instructions,”
“not being able to carry out simple tasks” and “pretty much going
out of control for no reason.” (T.51). Plaintiff’s contemporaneous
statements to his treatment providers are consistent with this
testimony. In treatment notes from Plaintiff’s June 14, 2013,
appointment at Strong Behavioral Health, Plaintiff reports having
lost jobs due to hyper-vigilance, panic attacks, and “feeling on
edge.” (T.256). He reported to one of his therapists that lost his
last job in February 2013, after he got into three accidents in
four months while driving a company truck; he attributed them to
his tic disorder in which his limbs would twitch suddenly, causing
the steering wheel to jerk uncontrollably. That employer also
witnessed him having a panic attack and putting his fist through
the car window. (T.251). He was let go after that and encouraged to
obtain psychiatric treatment. The Court finds that the ALJ’s
discounting of Plaintiff’s credibility based on the fact he had

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less-than-SGA earnings in some years was not based on substantial
evidence and resulted from a misapplication of the proper legal
principles.
C.

Remedy

Under 42 U.S.C. § 405(g), the district court has the power to
affirm, modify, or reverse the ALJ’s decision with or without
remanding for a rehearing. The standard for directing a remand for
calculation

of

benefits

is

met

when

the

record

persuasively

demonstrates the claimant’s disability, Parker v. Harris, 626 F.2d
225, 235 (2d Cir. 1980), and where there is no reason to conclude
that the additional evidence might support the Commissioner’s claim
that the claimant is not disabled, Butts v. Barnhart, 388 F.3d 377,
385–86 (2d Cir. 2004). As discussed above, the ALJ erred in
applying the treating physician rule to the opinions offered by
psychiatrist Dr. Fortuna, and failed to explain satisfactorily why
her opinions were not afforded controlling weight by the ALJ, who
gave

controlling

weight

to

the

opinion

of

the

consultative

psychologist which was actually more consistent with Dr. Fortuna’s
opinions than not. The ALJ also relied on improper factors in
discounting the severity of the limitations caused by Plaintiff’s
psychiatric impairments and in finding Plaintiff less than fully
credible. Even without the few months of treatment notes from
Strong Behavioral Health, substantial evidence exists in the record
to warrant giving deference to the opinions of Plaintiff’s treating

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psychiatrist, and when that deference is accorded, a finding of
disability is compelled. See Spielberg v. Barnhart, 367 F. Supp.2d
276, 283 (E.D.N.Y. 2005) (“[H]ad the ALJ given more weight to the
treating sources, he would have found plaintiff disabled. . . .”).
In the present case, further administrative proceedings would serve
no purpose. Accordingly, remand for the calculation of benefits is
warranted. See Parker, 626 F.2d at 235.
CONCLUSION
For

the

foregoing

reasons,

the

Court

finds

that

the

Commissioner’s decision is legally erroneous and unsupported by
substantial evidence. Accordingly, Plaintiff’s Motion for Judgment
on the Pleadings is granted to the extent that the Commissioner’s
decision is reversed and the matter remanded solely for calculation
and payment of benefits. Defendant’s Motion for Judgment on the
Pleadings is denied. The Clerk of Court is directed to close this
case.
IT IS SO ORDERED.
S/Michael A. Telesca
_______________________________
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

November 6, 2017
Rochester, New York.

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