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Angel L. Alvelo Rivera v. Michael Astrue Commissioner of Social Security

August 21, 2012


The opinion of the court was delivered by: Dearie, District Judge.


Plaintiff Angel Rivera challenges the Commissioner of the Social Security Administration's ("SSA") denial of Supplemental Security Income ("SSI") benefits for his claimed disabilities, which include diabetes, neuropathy, headaches, arthritis, and severe depression. ECF Docket # 16, Record ("R.") at 16, 18, 66, 69.*fn1 The Commissioner moves for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), arguing that the administrative law judge's ("ALJ") decision is supported by "substantial evidence" in the record, including plaintiff's testimony, and that the ALJ applied the correct legal standards. Def.'s Mem. at 2. In response, plaintiff asserts that (1) the ALJ improperly rejected plaintiff's claims of pain and depression as not credible; (2) the ALJ violated the "treating physician rule" by affording insufficient weight to the opinion of plaintiff's primary care physicians; and (3) the ALJ failed to fully develop the record of plaintiff's mental illness, as is required for pro se litigants. Pl.'s Mem. at 3-9. For the reasons stated below, the Court remands the case to the ALJ for further proceedings consistent with this Memorandum and Order.


A. Medical History: 1995-2007

Plaintiff is a 56-year-old native of Puerto Rico who has lived in the United States on and off since 1974. R. at 29-30. Plaintiff was diagnosed with diabetes in 1998, kidney stones in 2000, and arthritis, asthma, high cholesterol, and neuropathy in 2002. R. at 256. Records from Grupo Medico Enmanuel, a Puerto Rican clinic, show that from 2005 to 2007, plaintiff's diabetes was uncontrolled, with consistently elevated blood sugar and Hemoglobin A1C levels.

R. at 156-64; see also R. at 182-84.

Plaintiff also suffers from severe depression and suicidal ideation, which resulted in at least five suicide attempts.*fn2 Despite numerous bouts of depression without meaningful recovery, plaintiff apparently received no mental health care beyond two years of treatment prior to 1995 in Puerto Rico, until the period immediately preceding his application for SSI benefits in January of 2008. R. at 16, 190, 197.

Plaintiff was last gainfully employed in February of 2007, at which time he quit his job in construction because of dizziness, depression, "nerves," and pain stemming from his arthritis and diabetic neuropathy. R. at 33, 38, 188. Plaintiff claims he felt the neuropathic pain throughout his entire body, but especially in his brain, his hands, and his feet, and that the neuropathy induced lethargy and swelling of his legs, which made working difficult. R. at 38-39, 42.

Between August 31 and September 18, 2007, plaintiff underwent biopsychosocial examinations at FEGS Health and Human Services,*fn3 which revealed major depressive disorder as well as physical ailments. R. at 186-212. Plaintiff reported to FEGS that "[n]early [e]veryday" he felt depressed or hopeless; had trouble falling or staying asleep or sleeping too much; felt tired or had little energy; felt bad about himself; had trouble concentrating; and thought he would be better off dead or hurting himself in some way. R. at 190. These feelings made it "[e]xtremely

[d]ifficult" for him to do work, take care of things at home, and get along with other people, although plaintiff acknowledged that he could wash dishes and clothes, sweep the floor, vacuum, watch television, shop for groceries, cook meals, read, socialize, bathe, and get dressed. R. at 191. Plaintiff denied having any immediate intent to take his life, but reported that he thought about suicide on a daily basis. R. at 198. In addition, he complained of decreased concentration, insomnia, agoraphobia, panic attacks, crying spells, and "near-persistent anxious mood and fears," R. at 195, including of traveling alone and "being in the city." R. at 191.

On August 31, 2007, plaintiff scored a 19 on the Patient Health Questionnaire ("PHQ")-9-a screening tool for depressive syndromes-a score, which corresponds to moderately severe depression. R. at 192, 200-01. A Phase II psychiatric exam found that plaintiff was oriented to time and place, possessed sufficient general knowledge, had a neat appearance and normal speech cadence, and appeared cooperative and logical. R. at 206-07. The exam also revealed, however, that plaintiff had "severe" impairments in his ability to follow work rules, accept supervision, deal with the public, relate to co-workers, and adapt to change and stressful situations, and had a "moderate" impairment in his ability to maintain attention. R. at 206. Plaintiff's mood was depressed, and his Global Assessment of Functioning ("GAF") score was a 39.*fn4 R. at 207-08. A physical examination showed that plaintiff suffered from diabetes and associated peripheral neuropathy, lower back pain, hyperlipidemia, and decreased visual acuity bilaterally. R. at 195.

The examiners at FEGS concluded that plaintiff suffered from major depressive disorder, severe, R. at 197, and labeled him "[t]emporarily disabled from work," but projected he would be able to return to full-time employment within six months if he received proper mental health treatment. R. at 209. FEGS recommended that plaintiff obtain outpatient psychotherapy and rehabilitation and begin antidepressant medications. R. at 209.

B. Care by Treating Physicians 1. Dr. Billy Geris, M.D. (2007-present)

Billy N. Geris, M.D., an internist operating out of BG Medical on Staten Island, first saw plaintiff on October 18, 2007. R. at 219. Plaintiff's first exam revealed uncontrolled diabetes, malaise and fatigue, generalized arthritis in his lower leg, mixed hyperlipidemia, and diabetic neuropathy. R. at 219-20. Dr. Geris prescribed Cymbalta for plaintiff's neuropathic pain and ordered a series of X-rays performed the same day. R. at 220. The X-rays showed early marginal osteophytosis in the lateral patellar margins of plaintiff's knees, straightening of the normal cervical lordosis and early anterior bridging osteophytes in plaintiff's lower cervical spine, and early multi-level degenerative changes in plaintiff's lumbar spine. R. at 237-39. The X-rays were otherwise normal. R. at 237-39. Dr. Geris prescribed Topamax for headaches,

Vicodin for arthritis pain, Lyrica for joint pain, and a continued regimen of Ambien for insomnia. R. at 223, 225.

In February of 2008, Dr. Geris diagnosed plaintiff with bronchitis, benign hypertensive heart disease without congestive heart failure, myalgia and myositis, and thoracic or lumbosacral neuritis or radiculitis, and, in March of 2008, with asthma, gastritis, and gastroduodenitis. R. at 226-30. Chest X-rays performed on February 6, 2008, showed the lungs to be clear, bony structures to be intact, and heart and mediastinal structures to be unremarkable. R. at 234. A March 6, 2008 neurological evaluation revealed mildly decreased range of motion and pain upon extremes of motion in the cervical spine, as well as abnormal spontaneous activities in the left C5-6 nerve roots, consistent with radiculopathy; the exam also showed normal variance in amplitude among all tested nerves and no significant delay in motor and sensory nerve responses. R. at 249-53.

On January 18, 2010, Dr. Geris completed a questionnaire provided by the SSA to assess plaintiff's physical impairments and resulting limitations.*fn5 R. at 336-40. According to the report, plaintiff had to lie down during the day as a result of his back pain and the prognosis for plaintiff's back and neck pain was "poor." R. at 337. Dr. Geris estimated that plaintiff could sit for up to four hours continuously, for a total of four hours in an eight-hour workday; stand for up to one hour continuously, for a total of four hours in an eight-hour workday; and walk for up to 15 minutes continuously, for a total of 45 minutes in an eight-hour workday. R. at 338. Plaintiff would be limited during an eight-hour workday to "[o]ccasionally" lifting or carrying between zero and five pounds, and plaintiff could "[o]ccasionally" bend or reach but could never squat or climb. R. at 338-39. Because of his COPD, plaintiff had "[t]otal" restrictions in his ability to work in an area exposed to dust, fumes, gases, or marked changes in temperature and humidity.

R. at 339-40. Dr. Geris reported that plaintiff was "total[ly]" restricted in his ability to work at unprotected heights, to be around moving machinery, or to drive a motor vehicle. R. at 339. Plaintiff was physically unable to travel to and from work. R. at 340.

2. Dr. Javier Garcia, M.D. (2007-2008)

Plaintiff began seeing his primary psychiatrist, Dr. Javier Garcia, M.D., on November 6, 2007. R. at 279, 293. Dr. Garcia's first exam revealed that plaintiff experienced a depressed mood, poor sleep, decreased energy, and passive suicidal ideation. R. at 279. Plaintiff also reported hearing voices in times of stress, complained of being stressed about his physical ailments, which were preventing him from working, and described his current level of pain as a seven on a scale from zero to ten. R. at 279-81. Although plaintiff did not appear to be suffering from hallucinations or delusions and had a coherent thought process, his mood was depressed and his affect constricted; he scored a 51 on the GAF test.*fn6 R. at 282. Dr. Garcia prescribed Lexapro for plaintiff's depression and Ambien for insomnia, and at a follow-up meeting one week later, directed plaintiff to attend weekly individual therapy sessions. R. at 212-13, 283. Dr. Garcia noted that he needed more information before he could assess plaintiff's ability to return to work, but that plaintiff continued to have "significant depressive" symptoms. R. at 213.

At a series of-on average-monthly checkups between February and June of 2008, plaintiff continued to complain that he remained depressed about the limitations his physical impairments imposed on his ability to work, although his psychiatric medications improved his depressive symptoms somewhat, R. at 286, 288, 302, 305, 307; that he continued to have passive suicidal ideation, though less frequently, R. at 302; and that his "major problem" was his neuropathic pain, which was getting worse, R. at 304, 307. Accordingly, on a New York City Department of Social Services form dated February 20, 2008, Dr. Garcia reported that plaintiff was temporarily unemployable, but did not indicate a date on which he expected plaintiff to be able to return to work. R. at 215. In May of 2008, Dr. Garcia assigned plaintiff a GAF score of 56.*fn7 R. at 286.

From November of 2007 through June of 2008, as prescribed by Dr. Garcia, plaintiff also attended weekly therapy sessions with Gloria Mendoza at the St. George Clinic. See R. at 296-308. Plaintiff also reported that the medication Dr. Geris prescribed had significantly alleviated his psychiatric symptoms. R. at 300.

C. Consultative Examinations

Under the Social Security regulations, an ALJ is permitted to consider the opinions of medical or psychological consultants retained by state agencies, as well as other outside physicians, psychologists, and medical experts. See 20 C.F.R. ยง 404.1527(e)(2). Plaintiff was referred for a consultative exam to Dr. Jerome Caiati, M.D., an internist at Industrial Medicine Associates, P.C. in Queens, and on that same day, plaintiff also underwent a consultative ...

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