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Delgado v. Berryhill

United States District Court, D. Connecticut

March 13, 2018

JOSE DELGADO, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.


          Janet C. Hall, United States District Judge


         Plaintiff Jose Delgado brings this action under section 1383(c)(3) of title 42 of the United States Code, appealing from the final decision of the Commissioner of the Social Security Administration (“SSA”), which denied his application for Title XVI supplemental security income. See Complaint (“Compl.”) (Doc. No. 1) at 1. Delgado seeks reversal of the Decision rendered by the Administrative Law Judge (“ALJ”) Brian Curley, which affirms the Commissioner's denial. See Motion to Reverse the Decision of the Commissioner (“Mot. to Reverse”) (Doc. No. 19). The Commissioner cross-moves for an order affirming the Decision. See Motion to Affirm the Decision of the Commissioner (“Mot. to Affirm”) (Doc. No. 22).

         For the reasons set forth below, the Motion to Reverse the Decision of the Commissioner is GRANTED. The Motion to Affirm the Decision of the Commissioner is DENIED. The case is remanded to the ALJ for proceedings consistent with this Ruling.


         Delgado applied for supplemental security income benefits on May 7, 2013. See Joint Statement of Facts (“Joint Facts”) (Doc. No. 19-2) at 1; Certified Transcript of Record (“Tr.”) (Doc. No. 11) at 11. The Commissioner denied Delgado's application initially on August 30, 2013, and upon reconsideration on January 21, 2014. See Tr. at II, 84-88, 96-99. Delgado requested a hearing with an ALJ, which was held by video conference before ALJ Curley on September 29, 2015. See id. at 11.

         On October 27, 2015, ALJ Curley issued an unfavorable Decision for Delgado, affirming the Commissioner's denial and finding that Delgado was not disabled. See Id. at 11-21. Specifically, ALJ Curley found that, based on Delgado's residual functional capacity, he could perform past relevant work as an industrial cleaner. See id. at 20. Delgado requested review by the Appeals Court, and the Appeals Court denied the request on December 2, 2016. See id. at 1-4. Following that denial, ALJ Curley's October 27, 2015 Decision became a final decision reviewable by this court. Delgado then filed this appeal on January 12, 2017. See Compl.

         III. FACTS

         The court adopts the facts as stated in the Joint Statement of Facts, to which both parties have agreed. See Joint Facts; Memorandum in Support of Motion to Affirm the Commissioner's Decision (“Mot. to Affirm Mem.”) (Doc. No. 22-1) at 2. Only those facts relevant to the issues raised in the Motions before the court are set forth below.

         Delgado was born on July 27, 1957, [1] and alleges an onset of disability beginning November 18, 2011. See Joint Facts ¶ 1; Tr. at 11. His disability application alleged impairments including asthma, anxiety, depression, blurry vision, sleep problems, nervous problems, body pain, headaches, and memory problems. See Joint Facts ¶ 1. Delgado testified that he previously worked at a hotel for almost three years “doing laundry, taking out trash, and cleaning toilets.” See id. at 19. He testified that the extreme heat from the laundry was affecting his asthma and, after a discussion with his supervisor, he was let go. See id. He has not worked since 2011. See id. at 1.

         Medical records indicate that Delgado received treatment at Hartford Behavioral Health, Charter Oak Health Center, Hartford Hospital Liver Transplant Program, and Hartford Hospital Emergency Room. See id. at 2-11. He was evaluated at Hartford Behavioral Health on October 16, 2012, by Juliana Steahr, NPC, who diagnosed him with adjustment disorder with mixed anxiety and depression, alcohol dependence, and cocaine dependence. See id. at 2. He was subsequently treated by Jeannie Dilworth, APRN, Katherine Bonilla, MSW/ADC, Linda Thorpe, MSW, and Sarah Eliason, LCSW. See id. at 2-11. Bonilla changed the primary diagnosis to bipolar disorder on April 15, 2013. See id. at 3.

         At Charter Oak Health Center, Delgado was treated for hyperlipidemia, hepatitis C, and asthma. See id. at 7-8. His treating physicians for these conditions included Dr. Rita Bustamante, MD, and Dr. Brimal Patel, MD. See id. at 8-10. He was also treated by Dr. Mohammed Teleb and Dr. Thomas Winters for hallux abducto valgus, or chronic painful bunions. See id. at 7-10. On May 22, 2013, Dr. Mohammed diagnosed the bunions, debrided the calluses, and applied tube foam. See id. at 7-8. Delgado reported immediate relief. See id. at 8. Dr. Teleb also referred Delgado for surgical correction and prescribed antifungal treatment for the mycotic nails, but Delgado did not attend the surgical appointment. See id. On September 10, 2014, Delgado was seen by Dr. Thomas Winters, a podiatrist, regarding the bunions and requested a surgical consult. See id. at 9. He had the pre-operative examination on December 23, 2014, but he had still not had the surgery by the date of the hearing on September 19, 2015. See id. at 9; Tr. at 38-39.

         For his hepatitis C, Delgado was referred to Hartford Hospital Liver Transplant Program, where he was evaluated by Dr. Colin Swailes, MD. See Joint Facts ¶ 10. Dr. Swailes indicated that Delgado had most likely spontaneously cleared the virus and would not need treatment. See id. Although the liver function tests excluded chronic hepatitis C, Dr. Swailes suspected celiac disease and ordered a biopsy to confirm. See id. The record does not indicate the results of the biopsy, nor have either of the parties presented additional information confirming whether Delgado suffers from celiac disease or not. See Memorandum in Support of Motion to Reverse the Commissioner's Decision (“Mot. to Reverse Mem.”) (Doc. No. 19-1) at 8 (stating that celiac disease “had not been worked up ‘yet'”).

         Additionally, Delgado went to the Hartford Hospital Emergency Room on four occasions. See Joint Facts ¶ 10-11. On August 11, 2012, he was seen for acute exacerbation of chronic asthma and acute bronchitis. See id. at 10. On October 25, 2013, he complained of rib, back, and chest pain. See id. at 11. On December 12, 2014, he again was seen for chest pain. See id. Finally, on April 9, 2015, he was seen for productive cough and lung pain related to his asthma, and the emergency department doctor diagnosed him with upper respiratory infection, bronchitis with acute asthma, and influenza like symptoms. See id.

         A. Medical Opinion Evidence

         The record contains two opinions from providers who treated Delgado. The first opinion (the “Bonilla opinion”) was completed by Katherine Bonilla, MSW/ADC, Jeannie Dilworth, APRN, and Marian Moca, MD, on May 15, 2013. See Joint Facts ¶ 11. The report indicates that they had been treating Delgado since June 28, 2012, for bipolar disorder with slight improvement. See id. They reported that Delgado had a slight problem (rated 2 out of 5) with caring for his own physical needs, an obvious problem (rated 3 out of 5) with personal hygiene and using coping skills to meet the ordinary demands of a work environment, and a serious problem (rated 4 out of 5) with using good judgment regarding safety and dangerous circumstances and handling frustration appropriately. See id. at 12. The record appears to be missing the third page of their four-page opinion. See Tr. at 281-83. The ALJ did not give the opinion substantial weight. See id. at 18-19.

         The second opinion (the “Thorpe opinion”) was completed by Linda Thorpe, MSW, and Jeannie Dilworth, APRN, on October 21, 2013. See Joint Facts ¶ 12. Thorpe and Dilworth had also been treating Delgado since June 28, 2012, for bipolar disorder, which was recurrent and severe, and alcohol and cocaine dependence, which were in remission. See id. Their report indicates no improvement. See Tr. at 309. They opined that Delgado had no problem (rated 1 out of 5) with taking care of personal hygiene, caring for his physical needs, using good judgment regarding safety and dangerous circumstances, asking questions or requesting assistance, and responding appropriately to others in authority. See Joint Facts ¶ 12-13. They further opined that he had a slight problem (rated 2 out of 5) with handling frustration appropriately, an obvious problem (rated 3 out of 5) with changing from one simple task to another, and a serious problem (rated 4 out of 5) with interacting appropriately with others in a work environment and with carrying out simple instructions. See id. at 13. Finally, they opined that he had a very serious problem (rated 5 out of 5) with using appropriate coping skills to meet the ordinary demands of a work environment, getting along with others without distracting them or exhibiting behavioral extremes, carrying out multi-step instructions, focusing long enough to finish assigned simple activities or tasks, performing basic work activities at a reasonable pace, and performing work activities on a sustained basis. See id. The ALJ also did not give the opinion substantial weight. See Tr. at 18-19.

         The Joint Statement of Facts refers to both of the above opinions as treating source reports, see Joint Facts ¶ 11-13, but the court notes that only the Bonilla opinion is co-signed by an acceptable medical source and is therefore appropriately considered a treating source opinion.[2]

         In addition, Delgado was also examined by a non-treating consultative examiner, Dr. Dodenhoff, MD, on August 22, 2013. See id. at 13. Dr. Dodenhoff conducted a physical examination and opined that Delgado could sit, stand, walk, lift, and handle objects. See id. at 14. As part of the examination, Dr. Dodenhoff also evaluated Delgado's mental status and reported normal findings. See id. He opined that Delgado could understand, remember, and carry out instructions, as well as respond appropriately to supervision and coworkers. See id. The ALJ gave Dr. Dodenhoff's opinion substantial weight. See Tr. at 19.

         Finally, two non-examining state medical consultants and two non-examining state psychological consultants provided medical opinions based on a review of the available evidence in the record. At the initial review stage, Dr. Lenworth Ellis, MD, opined that Delgado's asthma was a severe impairment, but that his hepatitis C, bunions, and vision problems were non-severe. See Joint Facts ¶ 16. Based on Delgado's asthma, Dr. Ellis found that Delgado had no exertional limitations, but did have environmental limitations, specifically the need to avoid concentrated exposure to extreme heat or cold, wetness, humidity, fumes, odors, dusts, gases, and poor ventilation. See id. On reconsideration, Dr. Annita Bennett, MD, found that Delgado had no severe impairments and did not note any limitations. See id. at 17. The ALJ gave Dr. Ellis's and Dr. Bennett's opinions reduced weight. See Tr. at 19.

         Regarding Delgado's psychological limitations, at the initial review stage, Dr. Thomas Hill, MD, opined that Delgado had moderate limitations in understanding, remembering, and carrying out detailed instructions, working in coordination with others, interacting appropriately with the general public, maintaining socially appropriate behavior, adhering to basic standards of neatness and cleanliness, and setting realistic goals or plans independently of others. See Joint Facts ¶ 15. On reconsideration, Dr. Marc Zekowski, PhD, reached the same conclusions as Dr. Hill as to the limitations stated above. See id. at 17. The ALJ gave Dr. Hill's and Dr. Zekowski's opinions great weight. See Tr. at 19.


         It is not the function of the district court to review de novo the ALJ's decision as to whether the claimant was disabled. See Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); see also 42 U.S.C. § 1383(c)(3) (2016) (indicating that review under section 1383(c) is subject to the same review as provided in section 405(g) of title 42). Instead, the court may only set aside the ALJ's determination as to disability if the decision “is based upon legal error or is not supported by substantial evidence.” Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). Substantial evidence requires “more than a mere scintilla, ” but is a “very deferential standard of review.” Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 447-48 (2d Cir. 2012). It requires “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. at 448. If the Commissioner's findings of fact are supported by substantial evidence, those findings are conclusive, and the court will not substitute its judgment for the Commissioner's. See 42 U.S.C. § 405(g) (2016); Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998).

         V. DISCUSSION

         Section 416.920 of title 20 of the Code of Federal Regulations lays out a five-step sequential evaluation process for determining whether an individual claimant is disabled. See 20 C.F.R. § 416.920 (2017).

First, the Commissioner of Social Security considers whether the claimant is currently engaged in “substantial gainful activity.” If he is not, the Commissioner proceeds to the second step and determines whether the claimant has a “severe medically determinable physical or mental impairment, ” that “significantly limits his physical or mental ability to do work activities.” If the claimant does suffer such an impairment, the third step is “whether, based on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations.” If so, the claimant is per se “disabled” and thus presumptively qualified for benefits. If not, the Commissioner proceeds to the fourth step and examines whether, “despite the claimant's severe impairment, he has the residual functional capacity to perform his past work.” If the claimant is unable to perform his past work, the Commissioner finally determines whether there is other work the claimant can perform, taking into consideration the claimant's RFC, age, education, and work experience.

Petrie v. Astrue, 412 Fed. App'x 401, 404 (2d Cir. 2011) (internal citations omitted).

         In this case, the ALJ found at step one that Delgado had not engaged in substantial gainful activity since May 7, 2013, the date on which he filed his application. See Tr. at 13. At step two, the ALJ found that Delgado suffered from three severe impairments: asthma, depression, and personality disorder. See id. The ALJ further found that Delgado's hyperlipidemia, left ring finger fracture, hallux valgus deformities (bunions), and polysubstance dependence were non-severe impairments. See id. at 13-14. The ALJ also concluded that Delgado's heptatitis C and potential celiac disease were not sufficiently medically determinable and that his headaches, back pain, and chest pain were symptoms not related to any medically determinable impairments. See id. at 14. However, the ALJ stated that he considered Delgado's headaches, back pain, and chest pain in formulating Delgado's residual functional capacity (“RFC”) nonetheless. See id.

         At step three, the ALJ then found that none of Delgado's impairments met or medically equaled a listed impairment, specifically considering Listings 3.02, 3.03, 12.04, and 12.08. See id. at 14-16. The ALJ next assessed the following RFC:

After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform medium work as defined in 20 C.F.R. § 416.967(c) with the ability to stand, walk, and sit 6 hours each out of an 8-hour day and lift 50 pounds occasionally and 25 pounds frequently. However, the claimant must avoid more than occasional exposure to respiratory and pulmonary irritants, extreme heat, cold, humidity, and exposure to animals. He cannot work in food preparation or food service. He can maintain concentration, persistence, and pace to carryout simple, routine, repetitive instructions in two-hour increments in a work environment that is goal-oriented and not production paced. He is able to function alone and relate with work staff when motivated. He is able to adapt to predictable routines.

Id. at 16. At step four, the ALJ determined that, based on this RFC, Delgado was able to perform past relevant work as a cleaner and therefore was not disabled. See id. at 20.

         Delgado now makes a vast number of arguments in support of his Motion to Reverse the Decision of the Commissioner. The court broadly organizes these arguments into four categories.[3] First, Delgado makes a number of arguments that the ALJ failed to develop the record. See Mot. to Reverse Mem. at 5-9. These include, inter alia, that the ALJ failed to obtain certain records, that the ALJ should have ordered a psychological consultative examination in addition to a physical one, and that the ALJ relied on his own lay interpretation of the evidence because there was no treating source opinion on Delgado's physical limitations. See id. at 5-9, 21-22. Delgado also challenges several aspects of the hearing, including that the ALJ failed to meaningfully canvas Delgado, that the ALJ permitted the VE to appear by telephone, that Delgado's hearing testimony was inaudible and unintelligible, and that the ALJ used an interpreter from his own office rather than an interpreter service. See id. at 5-9.

         Second, Delgado argues that the ALJ failed at step two to consider all of Delgado's medically determinable impairments. See id. at 9-12. Specifically, Delgado argues that the ALJ erred in finding that Delgado's bunions and back pain were not severe. See id. Delgado also notes that the ALJ afforded great weight to the state psychological consultants, but omitted anxiety as a severe impairment even though the state consultants considered it to be severe. See id. at 19-21. However, Delgado acknowledges that, even if this was error, it may be harmless because the ALJ did not alter his RFC to reflect the omission of anxiety as a severe impairment. See id. at 21.

         Third, Delgado advances a number of arguments that the RFC is not supported by substantial evidence. See id. at 12-26. These include, inter alia, that the ALJ assigned less than substantial weight to Delgado's treating source opinions in violation of the treating physician rule, that the ALJ erred in relying on the state psychological consultants' RFCs because they were based on incomplete information, that the ALJ erred in relying on Dr. Ellis's RFC because he reviewed only three clinical appointments, that the ALJ disregarded Delgado's testimony about his pain, that the ALJ improperly discounted Delgado's depression, that the ALJ improperly relied on Delgado's receipt of benefits, and that the ALJ failed to include social restrictions in the RFC despite Delgado's severe personality disorder. See id.

         Finally, Delgado argues that the ALJ erred at step four in finding that Delgado could perform his past work as an industrial cleaner because the ALJ mischaracterized Delgado's past work. See id. at 1-5. He argues that this past work was a composite job that involved both laundry and cleaning, which should not have been separated into two jobs of laundry worker and industrial cleaner. See id. He further argues that the ALJ did not ...

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