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Velez v. Colvin

United States District Court, D. Connecticut

March 8, 2016

CARLOS VELEZ
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY

RULING ON DEFENDANT'S OBJECTION TO, AS CONSTRUED AS A MOTION FOR RECONSIDERATION OF, RULING ON PLAINTIFF’S MOTION FOR ORDER REVERSING THE DECISION OF THE COMMISSIONER, OR IN THE ALTERNATIVE MOTION FOR REMAND FOR A HEARING, AND ON DEFENDANT’S MOTION FOR AN ORDER AFFIRMING THE DECISION OF THE COMMISSIONER

Joan Glazer Margolis United States Magistrate Judge

On November 23, 2015, this Magistrate Judge filed a Recommended Ruling granting in part plaintiff's Motion to Reverse the Decision of the Commissioner and denying defendant's Motion to Affirm the Decision of the Commissioner (Dkt. #41)["November 2015 Ruling"]. On December 2, 2015, defendant filed an objection to the November 2015 Ruling which, due to the circumstances set forth in detail in this Judge's December 3, 2015 Order Regarding Recent Filings (Dkt. #47), this Court will construe as a Motion for Reconsideration.

Defendant claims the November 2015 Ruling is flawed because it remands the case "for the ALJ to reconsider whether [p]laintiff's prostate problems and upper extremity pain were severe impairments[, ]" "for the ALJ to consider additional factors in weighing the opinion of a treating physician[, ]" and for the ALJ "to consider opinions given before the relevant period began." (Dkt. #44, at 1).

"The major grounds justifying reconsideration are an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)(internal quotations & citations omitted).

For the reasons stated below, defendant's Motion for Reconsideration (Dkt. #44) is granted, but the Court still adheres to the conclusions reached in the November 2015 Ruling.

I. PLAINTIFF'S PROSTATE PROBLEMS AND UPPER EXTREMITY PAIN

A. PROSTATE PROBLEMS

Defendant argues that the November 2015 Ruling is incorrect in its analysis of plaintiff's prostate problems. (Dkt. #44, at 2-4). First, defendant claims that the Court erred by relying upon Cobb v. Astrue, 613 F.Supp.2d 253 (D. Conn. 2009) "to find that the ALJ should have considered the credibility of [p]laintiff's testimony about the effects of his prostate problems[.]" (Id. at 2). In support of this contention, defendant states that "there was no error in the ALJ's failure to specifically consider the credibility of [p]laintiff's testimony about the effects of his prostate problems[]" because "[i]t was [p]laintiff's burden to prove by medical evidence that his impairment was severe[]" and "[p]laintiff's own complaints are not medical evidence." (Dkt. #44, at 2)(emphasis in original)(citation omitted).

Defendant's brief cites multiple sources to support his claim that plaintiff was required to provide medical evidence to demonstrate that his impairment was severe at the second step of the disability process. (Id.). However, the November 2015 Ruling does not state that the ALJ erred at the second step of the analysis when he found that plaintiff's prostate problems were not a severe impairment; rather, the ruling found that "after the ALJ determined that plaintiff's prostate problems were not a severe impairment, he did not analyze the credibility of plaintiff's testimony about the effects of his prostate problems or consider any limitations caused by this impairment." (November 2015 Ruling, at 42). To the extent that any aspect of the original ruling was not explicit on this point, the Court now clarifies this issue.

Defendant claims that "the ALJ specifically found that [p]laintiff's statements concerning the intensity, persistence, and limiting effects of his symptoms were not credible to the extent that they were inconsistent with the assessed residual functional capacity ["RFC"] - that is, that any testimony of limitations beyond those assessed in the RFC was not credible[, ]" and that plaintiff did not challenge this finding. (Dkt. #44, at 2-3). However, contrary to defendant's assertion, plaintiff's brief specifically stated that the ALJ "failed to properly and consistently evaluate [plaintiff's] credibility[.]" (Dkt. #30, Brief at 3). Additionally, as discussed in the November 2015 Ruling, the ALJ's determination that plaintiff's "statements concerning the intensity, persistence and limiting effects of [his] symptoms were not credible to the extent that they are inconsistent with the [RFC]" was flawed and required remand. (See November 2015 Ruling, at 41-43).

Here, as in Cobb, the ALJ ignored plaintiff's statements regarding his urinary problems. After plaintiff urinated on himself at the hearing, the ALJ questioned him about the incident and plaintiff explained that he had difficulty holding his urine. (Tr. 1265, 1287-88). In addition to this testimony, plaintiff has a history of frequent urination. (Tr. 562, 760, 795, 811, 937, 943). Despite these records and the testimony from the hearing, there is no evidence that the ALJ considered these symptoms at any point in his decision. When assessing plaintiff's credibility, the ALJ acknowledged plaintiff's claims of prostate problems but made no reference to any symptoms of this condition. Instead, when recounting plaintiff's medical history and analyzing his subjective complaints, the ALJ focused on plaintiff's complaints of pain and ignored his urinary issues. (Tr. 20). It is not sufficient for an ALJ "to make a single, conclusory statement that 'the individual's allegations have been considered' or that 'the allegations are (or are not) credible.'" Social Security Ruling ["SSR"] SSR 96-7p, 1996 WL 374186, *2 (S.S.A. July 2, 1996). The ALJ's decision provides no explanation for why he chose to discredit plaintiff's testimony that he had difficulty holding his urine, particularly when such testimony was given after plaintiff urinated on himself in public.

Next, defendant argues that the November 2015 Ruling erred by stating that "the medical record documented the limiting effects of [p]laintiff's prostate problems[]" because the "vast majority" of the evidence cited predates plaintiff's alleged onset date and that the evidence after plaintiff's alleged onset date "documents only complaints of pain, receipt of medication, and one instance of blood in [his] urine[.]" (Dkt. #44, at 3)(internal citations omitted).

As an initial matter, even if there was no medical evidence to support plaintiff's alleged symptoms of his prostate problems, that would not excuse the ALJ from completely ignoring this testimony in his credibility determination. Cobb, 613 F.Supp.2d at 259 ("Even when the Court considers the lack of objective medical evidence on this issue, it cannot conclude that the ALJ's general credibility determination necessarily encompassed a finding as to [the claimant's] claimed urinary needs."), citing SSR 96-7p, 1996 WL 374186, at *4 ("[T]he absence of objective medical evidence supporting an individual's statements about the intensity and persistence of pain or other symptoms is ...


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