Rivera-Cruz v. Berryhill

          RULING AND ORDER

          Robert N. Chatigny United States District Judge

         Plaintiff brings this action against the Commissioner of Social Security pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), challenging the denial of his applications for Title II disability insurance benefits (“DIB”) and Title XVI supplemental security income (“SSI”) benefits.^[1] Plaintiff moves for an order reversing the decision and remanding for payment of benefits.

         The Commissioner moves for an order affirming the denial of benefits. Because the ALJ did not provide an adequate statement of reasons for the weight he gave to the opinions of the plaintiff's treating physicians, as he was obliged to do by the treating physician rule, the case must be remanded. On the remand, the ALJ will have an opportunity to reconsider the weight to be given the medical opinions and provide a detailed statement of reasons. In addition, it will be necessary for the ALJ to revisit the issue of the plaintiff's credibility in light of the ALJ's reassessment of the weight to be given the medical opinions under the treating physician rule.

         I. Background

         Plaintiff first applied to the Social Security Administration (“SSA”) for DIB on June 8, 2009, and for SSI on April 22, 2010. The SSA determined that plaintiff was disabled under both programs for a closed period from May 20, 2008 to December 6, 2010, but that he had medical improvement as of December 7, 2010, which ended his disability. Plaintiff reapplied for SSI on December 11, 2012 and for DIB the next day, alleging a disability onset date of September 16, 2011. Plaintiff met the insured status requirements of the Social Security Act through March 31, 2016.^[2] A disability adjudicator denied plaintiff's applications on February 5, 2013, and upon reconsideration on May 16, 2013.

         On May 12, 2015, plaintiff appeared with counsel and a Spanish-language interpreter for a hearing before an ALJ. On June 11, 2015, the ALJ issued a decision denying benefits. The Appeals Council denied plaintiff's request for review on October 18, 2016. This appeal followed.

         Plaintiff was 38 years old on the alleged disability onset date. He has a ninth or tenth grade education and speaks Spanish; he is not able to communicate in English. Plaintiff previously worked as a janitor and car mechanic.

         Before the alleged disability onset date of September 16, 2011, plaintiff had a history of medical impairments. He experienced problems with both wrists in 2008, leading to surgical procedures on his right wrist that year and on his left wrist in 2010. He had a history of some disc degeneration at ¶ 5-S1, lower back pain with radiation into his lower extremities, and Achilles bursitis or tendinitis. Additionally, he had diagnoses of asthma, obesity, a shoulder impairment, high cholesterol, and diabetes mellitus.

         A December 2011 examination showed that plaintiff had acquired cavovarus feet. In 2012, he underwent surgery for his right elbow, and in 2013 he underwent a shortening osteotomy of the right forearm. He received prescriptions for a back brace and cane in 2013 at his request, though he eventually stopped using the cane due to wrist pain. That same year, he was diagnosed with insertional Achilles tendinitis and post-trauamatic arthritis of the right wrist. X-rays of his left elbow in 2013 were negative, but X-rays of his feet and ankles in 2013 and 2014 showed calcaneal enthesophytes. In 2014, he underwent a tendon sheath release surgery for stenosing tenosynovitis of his left index finger. Later that year, a cyst was excised from his right little finger. Also in 2014, he visited the emergency room complaining of lumbar pain and was diagnosed with lumbar strain. Physical examinations throughout the period in question showed ongoing back pain, including posterior spinal tenderness and paravertebral muscle spasm. Plaintiff's primary care doctor noted a diagnosis of depression in 2013, 2014, and 2015.

         II. Legal Standard

         “A district court reviewing a final . . . decision [of the Commissioner] pursuant to . . . 42 U.S.C. § 405(g), is performing an appellate function.” Zambrana v. Califano, 651 F.2d 842, 844 (2d Cir. 1981). Accordingly, the court may not make a de novo determination of whether a plaintiff is disabled in reviewing a denial of disability benefits. See id.; Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the court's function is to ascertain (1) whether the Commissioner applied the correct legal principles in reaching her conclusion and (2) whether the decision is supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). The “deferential” “substantial evidence” standard of review does not apply to conclusions of law. Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984). Absent legal error, however, this court may not set aside the decision of the Commissioner if it is supported by substantial evidence. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). “The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, [are] conclusive . . . .” 42 U.S.C. § 405(g). If the Commissioner's decision is supported by substantial evidence, it will be sustained, even if there may also be substantial evidence to support the plaintiff's position. Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Substantial evidence must be “more than a mere scintilla or a touch of proof here and there in the record.” Id.

         III. Discussion

         The Social Security Act establishes that benefits are payable to individuals who have a disability. 42 U.S.C. §§ 423(a)(1), 1381a. A “disability” is an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” Id. § 423(d)(1)(A); see also id. § 1382c(a)(3)(A). There are five steps in a disability determination: (1) the Commissioner considers whether the claimant is currently engaged in substantial gainful activity; (2) if not, the Commissioner considers whether the claimant has a “severe medically determinable physical or mental impairment” which limits his mental or physical ability to do basic work activities; (3) if so, the Commissioner asks whether, based solely on the medical evidence, the claimant has an impairment which “meets or equals” an impairment listed in Appendix 1 of the regulations. If so, and the impairment meets the duration requirements, the Commissioner will consider the claimant disabled, without considering other factors; (4) if not, the Commissioner then asks whether, despite the claimant's severe impairment, he has the “residual functional capacity” (“RFC”) to perform his past work; and (5) if the claimant cannot perform his past work, the Commissioner then determines whether there is other work in the national economy which the claimant can perform.^[3] 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). The claimant bears the burden of proof at the first four steps, while the burden shifts to the Commissioner at the last step. McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (citing Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 445 (2d Cir. 2012); Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)).

         In this case, the issues presented by the parties are (1) whether the ALJ correctly determined that plaintiff's depressive disorder was non-severe and did not meet or equal the severity of a listed impairment under 20 C.F.R. Part 404, Subpart P, Appendix 1; and (2) whether substantial evidence supports the ALJ's determination that plaintiff's RFC was for a limited range of unskilled sedentary work. Regarding plaintiff's RFC, plaintiff challenges (a) whether the ALJ properly found that reports from a treating physician, Syed Naqvi, M.D., and treating surgeon, Duffield Ashmead, M.D., were “not entitled to significant probative weight”; and (b) whether the ALJ properly found that plaintiff's statements concerning the intensity, persistence, and limiting effects of his symptoms were “not entirely credible.” After careful review of the record, I agree with the Commissioner that the ALJ relied on substantial evidence in determining that plaintiff's depressive disorder was non-severe.

         However, because the ALJ did not comply with the requirements of the treating physician rule, the case must be remanded. Because the weight to be given the medical opinions bears on the plaintiff's credibility, the ALJ must also revisit the credibility issue.

         A. Depressive Disorder

         At step two of his analysis, the ALJ found that plaintiff had a medically determinable depressive disorder that was non-severe because it did not “cause more than minimal limitation in [plaintiff's] ability to perform basic mental work activities.” R. at 15. At step three, the ALJ also found that none of plaintiff's impairments, including his depressive disorder, met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Plaintiff contends that the ALJ's determinations were not supported by substantial evidence. The Commissioner responds that the ALJ's reasoning was supported by substantial evidence.^[4]

         Once the ALJ found that plaintiff had a medically determinable mental impairment in the form of a depressive disorder, he next had to consider “four broad functional areas in which [the ALJ would] rate the degree of [plaintiff's] functional limitation: Activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation.” 20 C.F.R. § 404.1520a(c)(3) (2015).^[5] If the plaintiff's degree of limitation in the first three areas was “none or mild, ” and in the fourth area was “none, ” it would be proper to find that his impairment was not severe, “unless the evidence otherwise indicate[d] that there [was] more than a minimal limitation in [plaintiff's] ability to do basic work activities.” Id. § 404.1520a(d)(1) (emphasis added).

         In this case, the ALJ considered the “four broad functional areas” and concluded that plaintiff's degree of limitation was “none” in all four. Accordingly, 20 C.F.R. § 404.1520a(d)(1) would direct a finding that the impairment was not severe unless additional evidence indicated that there was more than a minimal limitation in his ability to ...