ROSA v. ASTRUE
MEMORANDUM. SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 06/28/2013. 06/28/2013 ENTERED AND COPIES E-MAILED.(jmg, )
IN THE UNITED ST~TES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY
FOR SUMMARY JuiDGMENT OR REMAND
June 28, 2013
Plaintiff, William Rosa, seeks judicial eview of the Social Security Administration's
("SSA") denial of his application for Supplem ntal Security Income ("SSI"). Rosa contends that
the Administrative Law Judge ("ALJ") denied him a full and fair hearing by failing to order a
consultative examination of his physical impairments, and failing to obtain the treatment records
from his psychiatrist. For the reasons discuss I d below, the Court agrees that the ALJ erred in
failing to obtain Plaintiffs mental health treat ent records and will GRANT Plaintiffs motion
to remand on this basis.
FACTUAL BACKGROUND & PROCEDU~L HISTORY
On December 11, 2009, Plaintiff filed an application for SSI on the basis of a heel injury
he suffered in a September 2009 car crash. 1 P aintiff s heel, which was shattered in the crash,
now has an inserted metal plate and several m .tal screws to hold it together. Although Plaintiff
was initially unable to walk, he is now able to
alk with the assistance of a cane. Plaintiff
Plaintiffs application also referenced high blood pres ure, but a subsequent medical examination found his blood
pressure to be within normal limits. Since Plaintiff no l nger alleges a disability on this basis, the Court will not
address the issue here.
claims that his heel continues to give him con tant pain, and makes it difficult to walk, stand, and
On April13, 2010, Dr. Kurt Maas co
leted a residual functional capacity assessment of
Plaintiffs physical abilities on behalf of the S$A. After reviewing Plaintiffs medical records,
Maas concluded that the heel fracture was res, onding well to treatment (i.e., physical therapy
and medication), and that Plaintiff would havelthe ability to resume work at the medium
exertionallevel by September 2010. On the same day that Maas completed his assessment, the
SSA denied Plaintiff's claim for SSI benefits i n the grounds that his injury was "not expected to
remain severe enough for 12 months in a row o keep [Plaintiff] from working." Administrative
Record ("A.R.") at 59.
Following the SSA's denial of his claim, Plaintiff requested a hearing and underwent
several medical examinations by DL Thomas
Zavitsanos and Dr. Galina Zeltser. These
examinations, which occurred between April26, 2010 and July 7, 2010, revealed "persistent
right foot pain post heel surgery" and "possib+ degenerative changes (i.e., "possible
radiculopathy per EMG in conjunction with a right peroneal neuropathy"). Id. at 266. Based on
indications of degenerative changes, an MRI 1 as conducted of Plaintiff's spine. The MRI
showed "minimal disc bulging from L2-L3 through L4-L5," but otherwise "normal height and
marrow signal" of the vertebral bodies, and "n[ significant narrowing of the central canal or
neural foramina." !d. at 261. Shortly thereaf+ , Plaintiff received a steroid injection in his
lumbar spine. The record does not contain ad1itional reports of spine-related ailments
subsequent to this injection.
Plaintiffs hearing before the ALJ (Gerald Spitz) occurred on November 17, 2010. At the
hearing, ALJ Spitz asked Plaintiff: "Is it fair to say, and please correct me if it's not fair to say,
that the-what brings you here today, the proiJlem you have, let' s say, one year after the
accident, is all from the heel and pain from th heel, or do you have some other problems in
addition to difficulties arising from . . . that da age to your heel?" Id. at 40. The Plaintiff, who
represented himself prose, responded: "Yes. l really can' t walk the way I used to walk," adding
that he was "constantly in pain" because of the heel. Id.
The AU followed up by asking PlainJ fto describe his daily routine. In his response,
Plaintiff mentioned "going on doctor visits," it eluding to his "psych doctor." ld. at 41.
Plaintiffs reference to having a "psych doctorr prompted the ALJ to ask "where do you go for
your mental health? ... I don't have that, I dor t believe, and I'm [sic] want to go get it." Id.
Plaintiff handed the ALJ a one-page docume t from the Hispanic Community Counseling
Services ("HCCS"). The document, dated No ember 16,2010, identified Plaintiff as suffering
from adjustment disorder (i.e., "309 Adj. Diso der NOS") and stated that he was receiving
"psychotherapy" from one ofHCCS's therapi~s (Miguel Cotes) and medications from an HCCS
psychiatrist (Dr. Geraldine Mayor). !d. at
2701Plaintiffs admission date was listed as August
16, 2010, and an antidepressant (Citalopram) was listed as one of the medications he was being
After receiving the HCCS document, t e ALJ told Plaintiff several times that he would
attempt to obtain Plaintiffs mental health trea
ent records from HCCS. See id. at 41 -42, 45 ,
51 , 55. The ALJ reiterated this assurance at the close of the hearing, stating: "So, what I'll do is
close the record for today and, upon receipt of r e records from Hispanic counseling, I'll review
the totality of the records that I have, the testil ony, the documents. I'll apply all of it to the
statutory law and regulations .... " Id. at 55.
The HCCS document appears to list two medications, li>ut only the Citlopram prescription is legible. A.R. at 270.
At the hearing, Plaintiff provided the ALJ prescription nbtes for two antidepressants (Citloplam and Mirtazapine).
During the hearing, the ALJ asked Plai tiff a question to clarify the nature of his mental
health problem. The ALJ asked, "how do you feel the mental aspects would impact- how do
they impact you now? How do you think they
ould impact on a job?" Id. at 48. Plaintiff
responded: "Well, I'm mostly depressed. I m ·an, I'm-I'm not used to being-how do you say
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