United States District Court, D. Connecticut
RULING ON PENDING MOTIONS
F. MARTINEZ, UNITED STATES MAGISTRATE JUDGE
Ruben Rodriguez, seeks judicial review of the final decision
of the Commissioner of Social Security (the
“Commissioner”) denying his application for
disability insurance benefits
(“DIB”). Administrative Law Judge
(“ALJ”) James Kearns held a hearing on May 9,
2011, and determined that plaintiff was not disabled within
the meaning of the Social Security Act. (R. 10-20.)
Plaintiff timely appealed to this court.
pending are plaintiff’s motion to reverse the decision
of the Commissioner (doc. #9) and defendant’s motion to
affirm the decision of the Commissioner. (Doc. #12.) On
November 9, 2015, pursuant to the court’s scheduling
order, counsel filed a joint stipulation of facts and medical
chronology, which I incorporate by reference. (Doc. #14.) I
heard argument on May 24, 2016. For the following reasons,
plaintiff’s motion is GRANTED and defendant’s
motion is DENIED.
standards for determining an individual’s entitlement
to DIB, the Commissioner’s five-step framework for
evaluating claims, and the district court’s review of
the final decision of the Commissioner are well-settled. I am
following those standards, but do not repeat them here.
argues that the ALJ “cherry picked” the medical
source opinions that supported his residual functional
capacity (“RFC”) determination and ignored those
that detracted from it and thus, his decision is not
supported by substantial evidence. I agree.
term “cherry picking” generally refers to
“improperly crediting evidence that supports findings
while ignoring conflicting evidence from the same source . .
. . The fundamental deficiency involved with ‘cherry
picking’ is that it suggests a serious misreading of
evidence, or failure to comply with the requirement that all
evidence be taken into account, or both . . . .”
Dowling v. Comm’r of Soc. Sec., No.
5:14-CV-0786 (GTS)(ESH), 2015 WL 5512408, at *11 (N.D.N.Y.
Sept. 15, 2015) (citations omitted).
the ALJ assigned different levels of weight to the several
opinions of plaintiff’s treating cardiologist, Dr.
Steven Horowitz. He credited Dr. Horowitz’s August,
September, and November 2010 opinions that plaintiff could
return to work as long as he did not perform extensive manual
labor (R. 391, 395, 427), but gave only “partial
weight” to Dr. Horowitz’s more recent October
2011 assessment of greater limitations. (R. 958-61.) In his
October 2011 report, Dr. Horowitz indicated that plaintiff
would be off task 25% of the day; would be absent from work
four days a month; and would need to elevate his legs 80% of
the time while seated. (R. 958-61.) In dismissing these
opinions, the ALJ state merely that “[t]he medical
evidence of record provides some support for the opinion, but
some of the findings are not supported.” (R. 18.) The
only additional explanation the ALJ gave for this assignment
of weight was that plaintiff did “not mention in any of
his disability reports or in his testimony that he elevates
his legs while at home.” (R. 18.)
record is replete with evidence that supports Dr.
Horowitz’s assessment. Plaintiff testified that at
work, he has anxiety, panic attacks, and irritability that
contribute to being off-task. (R. 53-54.) Dr.
Horowitz’s treatment notes starting in March 2011
repeatedly indicate that plaintiff is unable to work more
than three or four hours a day due to severe fatigue. (R.
606-09, 917-20, 947-50, 952-56, 964-68.) The evidence also
supports Dr. Horowitz’s opinion that plaintiff would
miss more than four days of work a month. Plaintiff testified
that in his current part-time job,  at which he works four hours
a day, three to five days a week, he misses a scheduled shift
once or twice a week. (R. 51.) Plaintiff’s absence
report reveals that from July 1, 2011 to December 31, 2011,
he missed 35 days of work, ranging from three to ten days a
month. (R. 291-92.) The ALJ’s decision is silent as to
this evidence. This cherry picking is especially troubling in
light of the vocational expert’s testimony that were
plaintiff to miss one day of work a week, it would eliminate
all employment. (R. 61.)
is grounds for remand for the ALJ to ignore parts of the
record that are probative of the claimant’s disability
claim.” Sutherland v. Barnhart, 322 F.Supp.2d
282, 289 (E.D.N.Y. 2004); see also Raymer v. Colvin,
No. 14-CV-6009P, 2015 WL 5032669, at *6 (W.D.N.Y. Aug. 25,
2015) (“Remand is especially appropriate where, as
here, the ALJ gave [physician’s] opinion
‘considerable weight, ’ but failed to provide an
explanation for not incorporating into the RFC some of the
limitations identified in that opinion--particularly those
that would lead to a finding of disability.”);
Ardito v. Barnhart, No. 3:04-CV-1633(MRK), 2006 WL
1662890, at *5 (D. Conn. May 25, 2006) (ALJ erred when he
“cherry-picked out of the record those aspects of the
physicians’ reports that favored his preferred
conclusion and ignored all unfavorable aspects, without
explaining his choices, let alone basing them on evidence in
the record.”). In light of the foregoing, I need not
reach the merits of plaintiff’s remaining arguments.
foregoing reasons, plaintiff’s motion (doc. #9) is
GRANTED and defendant’s motion (doc. #12) is DENIED.
not a recommended ruling. The consent of the parties allows
this magistrate judge to direct the entry of a judgment of
the district court in accordance with the Federal Rules of
Civil Procedure. Appeals can be made directly to the
appropriate United States Court ...