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Cortes v. Colvin

United States District Court, S.D. New York

May 11, 2015

JUAN J. CORTES, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.


ANDREW J. PECK, Magistrate Judge.

Plaintiff Juan Cortes, represented by counsel (the Urban Justice Center), brings this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security (the "Commissioner") denying him Social Security disability insurance benefits ("DIB"). (Dkt. No. 2: Compl.) Presently before the Court are the parties' cross-motions for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Dkt. No. 9: Cortes Motion for Judgment on the Pleadings; Dkt. No. 21: Gov't Motion for Judgment on the Pleadings.) The Commissioner concedes that remand is necessary, while Cortes seeks remand for the calculation of benefits. (See page 12 below.) The parties have consented to decision of the case by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 20: Consent Form.)

For the reasons set forth below, the Commissioner's motion (Dkt. No. 21) is DENIED and Cortes' motion (Dkt. No. 9) is GRANTED and the case remanded to the Commissioner for the calculation of benefits.


Prior Proceedings

In August or September 2005, Cortes applied for DIB benefits, alleging that he became disabled as of October 1, 1999. (R. 50, 58, 670.)[1] On October 3, 2007, Cortes appeared at a hearing before ALJ Paul A. Heyman. (R. 429-63.) On November 13, 2007, ALJ Heyman denied Cortes' claim. (R. 11-24.) On February 6, 2008, the Appeals Council denied Cortes' request for review. (R. 4-6.) Cortes sought judicial review, and on September 4, 2008, the Court vacated the Appeals Council's decision pursuant to a stipulation between the parties and remanded for further proceedings. (R. 517-19.)

On May 13, 2009, ALJ Heyman held a second hearing (R. 630-56) and on July 24, 2009 again denied Cortes' claim (R. 468-79). On January 22, 2011, the Appeals Council denied Cortes' second request for review. (R. 464-66.) Cortes again appealed, and on November 21, 2011, the Court again remanded the matter to the Appeals Council for further proceedings pursuant to a stipulation between the parties. (R. 671-72.) On March 28, 2012, the Appeals Council remanded Cortes' application to an ALJ for a further hearing (R. 674-79.)

On January 11, 2013, Cortes appeared at a hearing before ALJ Moises Penalver (R. 873-934), who denied Cortes' application on August 29, 2013 (R. 657-70). The Appeals Council chose not to review the ALJ's decision, and Cortes appealed to the Court for the third time. (See Cortes Br. at 3; Gov't Br. at 2.)

Non-Medical Evidence

Cortes, born on January 8, 1964 (R. 490), completed the sixth grade in Honduras (R. 97). Cortes was last employed as a building superintendent from January 1995 until October 1, 1999. (R. 84.) His duties included maintaining the building's boiler and plumbing, and making repairs to apartments. (R. 92.) He sometimes lifted and carried 100 pounds or more and frequently lifted fifty pounds or more. (R. 85, 101.)

An October 4, 2005 adult function report for the New York State Office of Temporary and Disability Assistance described Cortes' degree of independence in activities of daily living. (R. 73-83.) Cortes could do many personal care activities, including brushing his teeth, showering and shaving, but stated that "I cannot lift (L) arm to comb my hair." (R. 74-75.) He reported that bathing takes "more time" because his left arm is totally immobile and claimed that he was not able to "lift any heavy objects." (R. 74.) Cortes did not prepare his own meals or cook. (R. 74-75.) He could, however, wash his own clothes using his right arm. (R. 76.) He visited his pastor's home weekly and sang in church. (R. 74, 77.) Cortes stated that he could walk four blocks before needing to rest for ten minutes due to back pain. (R. 79.)

Medical Evidence

On October 1, 1999, Cortes fell down stairs while working and fractured his left shoulder. (R. 147, 172.) In 1999 or 2000, he had reconstructive surgery to repair his fractured left shoulder. (R. 140, 147.)

A May 31, 2002 MRI of Cortes' thoracic spine showed "posterior disc bulging beyond the vertebral margins." (R. 118.) A cervical spine MRI on the same day showed "[t]he C2-C3 through C4-C5 disc annuli[2] are bulging posteriorly beyond the vertebral margins" and "straightening of the cervical lordosis[3] compatible with muscle spasm." (R 119.)

On June 19, 2002, a physician was unable to examine Cortes' shoulder fully because of severe pain. (R. 161.) Cortes was diagnosed with RSD[4] in his left upper extremity and a possible rotator cuff tear. (R. 161.)

On August 5, 2002, Dr. Ian Cole examined Cortes. (R. 160.) Dr. Cole found that Cortes' left shoulder abduction and flexion were 0-5 degrees, and his extension was 0 degrees. (R. 160.) Cortes' strength was limited by severe pain. (Id.) On September 10, 2002, Dr. Cole found that Cortes' left shoulder had zero to ten degrees of abduction and flexion but that Cortes also had diffuse tenderness and atrophied biceps and triceps. (R. 159.)

On October 22, 2002, Dr. Harvey Insler diagnosed Cortes with reflex sympathetic dystrophy of the left shoulder. (R. 158.) On December 9, 2002, Cortes complained to Dr. Insler of numbness and paresthesia[5] in his left arm and hand. (R. 157.) Nerve conduction velocity studies for Cortes from December 2002 were normal (R. 153-55), as were EMG studies in January 2003 (R. 149-51).

A March 22, 2004 x-ray of Cortes' shoulder showed "[n]o gross evidence of fracture or dislocation or any other bony pathology." (R. 199.) A June 16, 2004 examination at Jacobi Medical Center's Orthopedic Clinic found global weakness in Cortes' left shoulder and fingers, as well as contraction of his elbow and fingers on his left side. (R. 211-13.) A June 21, 2004 x-ray of Cortes' left shoulder showed "no evidence of an acute fracture or dislocation." (R. 176.)

On July 16, 2004, Cortes was diagnosed with "Adhesive Capsulitis/RSD"[6] and scheduled for physical therapy three times a week for six to eight weeks at Columbia Presbyterian Medical Center. (R. 165.) A September 1, 2004 note from Columbia Presbyterian stated that Cortes complained that his pain was "10/10" and "reports no relief of pain even [with] meds." (R. 169.)

On December 10, 2004, Dr. Leena Mathew of New York Presbyterian's Pain Management Center evaluated Cortes, who was "extremely tearful throughout the entire encounter." (R. 237.) Dr. Mathew observed that Cortes "walks cradling his left elbow with his right hand, " "does not swing his left arm as he walks, " "has not used his arm in over a year prior to this visit because of the pain, " and "holds his arm in a very guarded manner with his right arm." (R. 237-38.) When she abducted Cortes' shoulder, he reported that his pain was "around 9/10." (R. 237.) Dr. Mathew found that Cortes "had pain with any degree of motion." (R. 238.) Dr. Mathew opined that Cortes had "progressive shoulder pain, most probably secondary to adhesive capsulitis. He is s/p rotator cuff tear and repair." (Id.)

Progress notes from the Walton Family Health Center in September and October 2005 state that Cortes had a depressed mood and constricted affect. (R. 376-79). Cortes was diagnosed with acute stress reaction and organic mood disorder. (R. 377.) Treatment notes from Dr. Gabriela Bermudez show that on December 13, 2005, Cortes complained of depression and reported having been on Zoloft several years previously. (R. 363.) Dr. Bermudez prescribed Zoloft and follow-up with a social worker. (R. 364.)

On March 19, 2006, Dr. Bermudez completed a medical source statement assessing Cortes' limitations based on his medical history and other records. (R. 240-43.) Dr. Bermudez opined that Cortes could not carry any weight with his left arm. (R. 240.) Dr. Bermudez stated that Cortes had no standing, walking or sitting limitations, but his pushing and pulling was affected by his impairments. (R. 240-41.) Dr. Bermudez specifically noted that Cortes "cannot use" his left upper extremity. (R. 241.) The clinical findings supporting Dr. Bermudez's conclusions were that Cortes had left reflex sympathetic dystrophy and could not extend or flex his left shoulder/arm. (Id.) Cortes could never climb ramps, stairs, ladders, ropes or scaffolds. (Id.) Cortes' reaching, handling, fingering and feeling all were limited because Cortes could not do them with his left arm. (R. 242.) Finally, Cortes had environmental limitations with respect to temperature extremes, humidity/wetness, hazards, and fumes, odors, chemicals and gases. (R. 243.)

On September 19, 2007, Dr. Sarah Nosal of the Urban Horizons Family Practice completed a residual functional capacity questionnaire on Cortes. (R. 252-55.) Dr. Nosal diagnosed Cortes with rotator cuff syndrome and identified his symptoms as pain, stiffness, swelling and limited mobility. (R. 252.) Dr. Nosal observed that Cortes had joint deformity, reduced grip strength, sensory changes, reflex changes, abnormal posture and muscle weakness. (Id.) She opined that Cortes could sit for about two hours out of an eight hour workday and stand for less than two. (R. 253.)

On April 29, 2009, Dr. Joseph DiLullo of the Institute for Family Health completed a residual functional capacity questionnaire on Cortes. (R. 550-54.) Dr. DiLullo had been treating Cortes since June 2006, and he diagnosed Cortes with "maj[.] depressive disorder, recurrent, severe." (R. 550.) He opined that Cortes' prognosis was fair to poor because Cortes had lost his livelihood and felt useless and helpless. (Id.) Dr. DiLullo opined that Cortes had severe deficiencies in his concentration, persistence or pace; marked difficulties in maintaining social functioning; moderate restriction in activities of daily living; and one or two episodes of decompensation, each of at least two weeks' duration, in the prior year. (R. 551.) Dr. DiLullo found Cortes seriously limited in his ability to get along with coworkers or peers without unduly distracting them or exhibiting behavioral extremes. (R. 552.) Cortes had no useful ability to complete a normal workday and workweek without interruptions from psychologically based symptoms or to perform at a consistent pace without an unreasonable number and length of rest periods. (Id.) Dr. DiLullo found Cortes too limited to meet competitive standards with respect to a wide range of additional mental abilities necessary for work activities. (Id.) Dr. DiLullo opined that Cortes had a medically documented history of a chronic affective disorder of at least two years' duration and a residual disease process that had resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause him to decompensate. (R. 553.) Finally, Dr. DiLullo stated that Cortes would be absent from work more than four days per month. (Id.)

On May 12, 2009, Dr. Adam Szerenesy of the Urban Horizons Family Practice completed a medical source statement for Cortes. (R. 555-58.) Dr. Szerenesy observed that Cortes was unable to move his left arm and diagnosed Cortes with "frozen shoulder" and possible RSD. (R. 555.) He found that Cortes had tenderness, reduced grip strength, muscle spasm, muscle weakness and muscle atrophy in his left arm. (Id.) According to Dr. Szerenesy, Cortes could sit for at least six hours out of an eight hour workday and stand for less than two hours. (R. 556.) He opined that Cortes could never lift or carry with his left arm. (R. 557.) Similarly, Cortes could only occasionally twist, stoop, crouch or climb stairs and never climb ladders. (Id.) Dr. Szerenesy found that Cortes could not use his left hand, fingers and arm for grasping, twisting, and turning of objects, fine manipulation, and reaching. (Id.) Dr. Szerenesy opined that Cortes' depression and anxiety contributed to the severity of Cortes' symptoms. (R. 558.)

Expert Testimony

Dr. Arthur ...

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