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Vasquez v. Colvin

United States District Court, S.D. New York

July 20, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


JAMES L. COTT, Magistrate Judge.

Pro se plaintiff Adriano Vasquez seeks judicial review of a final determination by the Commissioner of Social Security ("Commissioner"), denying his application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). The Commissioner has moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), to which Vasquez submitted no opposition. For the reasons set forth below, the Commissioner's motion is denied, and the case is remanded to the Commissioner for further proceedings.


A. Procedural History

Vasquez filed an application for DIB on April 21, 2011, and filed an application for SSI on May 9, 2011. Administrative Record ("R.") at 144-51, 152-62.[1] Vasquez claimed disability beginning on March 12, 2009 due to depression, polio, and difficulty breathing.[2] Id. at 152, 178. The Social Security Administration ("SSA") denied both of his applications on August 25, 2011. Id. at 62-67. On September 19, 2011, Vasquez filed a request for a hearing before an Administrative Law Judge ("ALJ"). Id. at 70-72. Appearing with an attorney, Vasquez testified at a hearing before ALJ Zachary Weiss on August 9, 2012. Id. at 49-59. The ALJ found that Vasquez was not disabled and denied his claims in a written decision dated January 11, 2013. Id. at 37-45. The SSA Appeals Council received Vasquez's request for a review of the ALJ's decision on May 24, 2013, id. at 29-30, and denied review on July 3, 2014, id. at 1-4, rendering the ALJ's determination the Commissioner's final decision.

Vasquez timely commenced his action seeking judicial review of the Commissioner's decision pursuant to 42 U.S.C. ยงยง 405(g) and 1383(c)(3); which he filed on September 5, 2014. See Complaint ("Compl.") (Dkt. No. 1); R. at 1. On March 2, 2015, the Commissioner filed her Answer and moved for judgment on the pleadings pursuant to Rule 12(c). See Notice of Motion for Judgment on the Pleadings (Dkt. No. 11); Memorandum of Law in Support of Judgment on the Pleadings ("Def. Mem.") (Dkt. No. 12). While Vasquez sought an extension of time to file papers in opposition to the motion, which the Court granted (Dkt. No. 17), he ultimately never submitted any opposition to the motion.

B. The Administrative Record

1. Vasquez's Background

Vasquez was born on May 17, 1973, and was 35 years old on the onset date of his alleged disability. R. at 152. Vasquez lives in the Bronx, has completed the eleventh grade, and speaks Spanish as his primary language. Id. at 283, 313. He is married with four children. Id. at 153. In his application, Vasquez described his work history, which includes various positions as a temporary worker and, most recently, working as a forklift operator from 2007 until 2009. Id. at 193-99. He stopped working at his most recent job due to mental health issues and his worsening right hand. Id. at 52.

Vasquez's claims for DIB and SSI are based on both mental and physical impairments: depression and polio. Id. Vasquez has a negative psychiatric history, with no instances of hospitalizations, prior treatment, substance abuse, or assaultive or suicidal behavior. Id. at 342. Additionally, Vasquez began experiencing weakness in his right arm at the age of two. Id. at 354. Vasquez's arm weakness and atrophy had generally remained stable throughout his life. Though a previous doctor told Vasquez that the cause may be polio, he never received a formal diagnosis as a child. Id.

At his hearing and in his submissions to the SSA, Vasquez described his daily activities. Id. at 53-55, 185-90. He said that he spends most of the day at home watching television and occasionally goes for walks in a park near his house with his children. Id. at 188-89. He is able to take public transportation without assistance. Id. at 187. Vasquez also said that he regularly takes his children to and from school, helps his children with homework, and goes grocery shopping with his wife. Id. at 185, 188.

2. Medical Evidence

a. Assessment of Mental Health

i. Dr. Fernando Taveras's Treatment Notes

Since January 10, 2011, Vasquez has received psychiatric treatment from Dr. Fernando Taveras. Id. at 342. His primary complaint was that the disability in his right arm caused him to suffer low self-esteem. Id. Vasquez had unremarkable psychiatric, social and developmental, family, and medical histories with no instances of psychiatric hospitalization, medication, or harmful behavior. Id. Dr. Taveras initially diagnosed Vasquez with adjustment disorder with depressed mood and prescribed Remeron, an anti-depressant. Id.

On February 3, 2011, Vasquez returned to Dr. Taveras with symptoms of depression due to his low self-esteem and inability to find work. Id. at 332. Vasquez revealed that he had previously never discussed with anyone his frustrations and feelings of helplessness "due to his lifelong disability." Id. at 333. After encouraging Vasquez to "vent, " Dr. Taveras evaluated him and found Vasquez sad, yet friendly, attentive, fully communicative, and well-groomed. Id. at 332. Though Vasquez was slow to respond, his speech had normal rate, volume, and articulation. Id. Vasquez was also coherent and spontaneous in his use of language skills. Id. Though his facial expressions and demeanor revealed a depressed mood, his affect matched the topics he discussed. Id. Vasquez did not show any indications of psychosis (such as hallucinations, delusions, or bizarre behaviors). Id. Dr. Taveras noted that Vasquez could create mental associations and think logically, all with appropriate thought content. Id. Vasquez had recurring wishes to die, but did not have suicidal intentions. Id. Vasquez's social judgement remained intact with no signs of anxiety, but he was easily distracted. Id. Dr. Taveras diagnosed Vasquez with depressive disorder, not otherwise specified ("NOS"). Id.

On February 9, 2011, Dr. Taveras noted that Vasquez appeared to be in a better mood. Id. at 334. Vasquez told Dr. Taveras that he wanted to return to school to become a social worker and that he would no longer be able to perform any physical activities due to his right arm disability. Id. Vasquez seemed friendly, fully communicative, well-groomed, and relaxed, with normal body language and physical behavior. Id. Additionally, Vasquez did not appear anxious and had a "normal" mood. Id. He denied any suicidal ideas or intentions and showed no signs of psychosis. Id. His speech was normal in rate, volume, and articulation. Id. Vasquez remained attentive and focused. Id.

On February 18, 2011, Vasquez returned to Dr. Taveras for individual therapy. Id. at 335. Vasquez described improvement regarding his sense of worthlessness, and stated that he began to love himself more, expressed his determination to continue regular therapy, and denied suicidal thoughts. Id. Vasquez was friendly, fully communicative, casually groomed, and relaxed, with normal body language and physical behavior. Id. Dr. Taveras observed that Vasquez did not appear anxious. Id.

On March 3, 2011, Vasquez reported to Dr. Taveras that he felt "slightly better." Id. at 336. However, Vasquez stated that he was living in fear for his family due to the condition of his neighborhood and sought to move them to a different neighborhood. Id. Mental status examination findings included normal mood and speech, and appropriate affect of full range. Id. Dr. Taveras noted that Vasquez seemed attentive, focused, and capable of good judgment. Id.

On April 28, 2011, Vasquez again reported improvement, but also complained about his physical condition preventing him from working certain jobs that require physical force. Id. at 337. Vasquez was friendly and fully communicative, but Dr. Taveras also observed that he was "not happy." Id. Despite this evaluation, Vasquez was relaxed with a normal mood and no signs of psychotic symptoms. Id. Vasquez's speech was normal and he was attentive and focused. Id. His affect had a full range and was appropriate. Id. His judgment was also still good. Id.

On May 23, 2011, Vasquez reported difficulty finding a new home for his family. Id. at 338. With his wife undergoing treatment for addiction, Vasquez described needing to serve as both "the mother and the father" for his children. Id. Dr. Taveras found Vasquez calm, attentive, fully communicative, and fairly groomed, but also "sad-looking" and unhappy. Id. Nevertheless, Vasquez's language skills and associations were intact, but his affect was constricted. Id. Vasquez's thinking was logical and thought content was appropriate. Id. He denied suicidal ideas and he had no signs of anxiety. Vasquez's insight was normal and his social judgment was intact. Id. Dr. Taveras focused the session on helping Vasquez improve on coping issues related to his interpersonal problems. Id. at 339.

On October 24, 2011, Vasquez returned to Dr. Taveras, who noted that Vasquez had been regularly attending therapy sessions and taking his medication. Id. at 340. Dr. Taveras assessed Vasquez's response to the treatment as "adequate" but with symptoms indicative of a "more advanced mood disorder." Id. Dr. Taveras adjusted his diagnosis to rule out adjustment disorder and noted that Vasquez appeared both preoccupied and anxious. Id. Vasquez also reported no side effects to treatment with Remeron and Paroxetine. Id. Vasquez was calm and attentive, but also unhappy looking. Id. Yet his affect was appropriate and of full range and he denied having suicidal thoughts. Id. Dr. Taveras spent the session working with Vasquez on coping with depression and interpersonal problems. Id. Dr. Taveras recommended continuing Vasquez's prescription of Remeron and Paroxetine.

On March 14, 2012, Vasquez told Dr. Taveras that he was doing better, but also claimed unspecified new emotional and physical complaints. Id. at 341. However, Vasquez also reported that his behavior was under control and his mood was less depressed. Id. Vasquez was calm, attentive, and fairly groomed. Id. His affect was appropriate and congruent with his mood and he had no signs of hallucinations, delusions, bizarre behaviors, or other indicators of psychosis. Id. Vasquez's associations were normal, he was fully oriented, and his cognitive functioning was adequate. Id. He also denied suicidal or homicidal ideas. Id. Dr. Taveras affirmed Vasquez's diagnosis of depressive disorder not otherwise specified and recommended that Vasquez continue taking Remeron and Paroxetine. Id.

On December 7, 2012, Dr. Taveras completed a psychiatric report on Vasquez. Id. at 245-48. The report described Vasquez's chief complaints as depression and low self-esteem stemming from his right arm disability. Id. at 245. Dr. Taveras assessed Vasquez as continuing to do "poorly" despite medication. Id. Dr. Taveras noted that in his mental status examination findings from March 14, 2012 Vasquez was calm, attentive, and fairly groomed, with appropriate affect and congruent mood. Id. Vasquez was also coherent and spontaneous with intact language skills. Id. at 246. While there were no signs of attentional issues, Dr. Taveras also noted that Vasquez was sad-looking with mildly constricted affect. Id. Additionally, Dr. Taveras described him as "downcast." Id. at 245. Vasquez's memory was fair-to-good and he had adequate ability to perform mental functions like calculations and serial sevens. Id. at 246. His insight and judgment were fair and his ability to process information was normal. Id. The doctor reported that, except for limitations due to his right arm, Vasquez's ability to tend to daily activities was adequate. Id. at 247. Vasquez told him that he avoided the presence of others because he was ashamed of his arm. Id. Dr. Taveras stated further that Vasquez's right arm condition limited his working ability. Id.

Additionally, on December 7, 2012, Dr. Taveras completed a medical source statement questionnaire for Vasquez. Id. at 249-51. Dr. Taveras found Vasquez had a moderate ability to carry out simple instructions.[3] Id. Dr. Taveras also found Vasquez markedly limited in his ability to understand and remember short simple instructions, understand and remember detailed instructions, and carry out detailed instructions.[4] Id. Furthermore, Dr. Taveras found Vasquez extremely limited in his ability to make judgments on simple work-related decisions.[5] Id.

b. Assessment of Physical Health

i. New York Presbyterian Hospital ("NYPH") Treatment Notes

On July 27, 2009, Vasquez visited Dr. Asqual Getaneh at NYPH for a general physical examination. Id. at 345-49. Vasquez reported a history of upper extremity paralysis since age two, but that he had no joint pain, numbness, tingling, or anesthesia. Id. 346-47. Vasquez reported full mobility in activities of daily living. Id. at 347. Upon physical examination, Dr. Getaneh found that Vasquez's right trapezius, shoulder, biceps, triceps, and forearm muscles had atrophied. Id. at 348. Dr. Getaneh noted mid-arm circumferences of seven centimeters on the right arm and ten centimeters on the left arm. Id. The atrophy was worse at the shoulder and proximal upper extremity. Id. Additionally, Vasquez had no extension at the elbow. Id. He had reduced strength and range of motion of the right upper extremity. Id. at 349. The rest of the doctor's physical examination findings were normal. Id. Dr. Getaneh assessed right upper extremity paralysis and referred Vasquez for a neurology consultation. Id.

On September 29, 2009, Vasquez visited the neurology clinic at NYPH for his arm weakness. Id. at 354-56. Drs. Michael Daras and Rebecca Traub jointly examined Vasquez. Id. at 356. Vasquez reported that at the age of two his right arm swelled and weakened without numbness following a vaccination. Id. at 354. Vasquez noted that the weakness and atrophy had been stable for his entire life, but was uncertain about the cause. Id. He stated that a prior doctor suggested that he had polio, but no testing was ever done to confirm the diagnosis, and it was not a diagnosis he received as a child. Id. A physical examination found him in no acute distress, but with reduced strength and atrophy in the right arm, greater in the proximal than distal. Id. at 355. His left arm and legs had normal bulk, tone, and full strength. Id. His gait was normal, but his reflexes were absent in the right arm. Id. Mental status examination findings described Vasquez as awake, alert, and oriented with fluent speech. Id. Drs. Daras and Traub diagnosed Vasquez with monoparesis.[6] Id. at 356. They referred him to physical therapy and a somatosensory evoked potentials ("SSEP") assessment to differentiate between plexitis and polio as potential causes.[7] Id.

On January 28, 2010, Vasquez returned to Dr. Getaneh for a follow-up examination. Id. at 357-58. His chief complaint was right shoulder pain. Id. at 357. Vasquez stated that he had lost his referral to physical therapy and was unable to undergo the SSEP because his insurance did not cover it. Id. at 358.

On January 29, 2010, an electromyography ("EMG") and nerve conduction studies revealed abnormal findings, including electrophysiologic evidence of a right plexopathy predominantly affecting the upper cord. Id. at 403-04. There was no evidence of generalized neuropathy, radiculopathy, or myopathy. Id. at 404.

On April 19, 2010, Vasquez met with Yvonne Valle, a social worker at NYPH. Id. at 360-63. Valle reported that Vasquez was independent in his physical functioning, including his activities of daily living. Id. at 361. The social worker determined that Vasquez's level of overall intellectual functioning was average and that he was both fully oriented and cooperative. Id. at 362. Valle also reported that Vasquez's affect was anxious, but that his insight, judgment, and memory were good. Id. Vasquez lacked mobility in the right arm and was self-conscious about it. Id.

On September 21, 2010, NYPH psychiatrist Dr. Daniel Pilowsky evaluated Vasquez. Id. at 364-65. Vasquez reported insomnia, approximately twice weekly, sadness one-to-two times a week, and variable appetite. Id. at 364. Vasquez's energy and concentration were not affected, but his sadness stemmed from his inability to find a job and fear of rejection attributed to his right arm. Id. Dr. Pilowsky was unsure why Vasquez had become so preoccupied with his right arm and noted that Vasquez had worked for nine years without fixating on his right arm, although the doctor noted that Vasquez's right arm harmed his self-esteem. Id. Dr. Pilowsky speculated that Vasquez's preoccupation with his right arm condition was an unhealthy way of coping with his inability to find work and his wife's ongoing treatment for substance abuse. Id. at 364-65. A mental status examination revealed that Vasquez was calm and cooperative and spoke in a relevant and coherent manner. Id. at 365. His thinking was goal-directed and logical, although he perseverated on his arm. Id. Vasquez's affect was appropriate to ideation and his cognition and memory were grossly intact. Id. Dr. Pilowsky diagnosed dysthymia, prescribed Trazodone, and referred Vasquez to a mental health clinic.[8] Id.

On October 15, 2010, Vasquez returned to social worker Yvonne Valle. Id. Valle "strongly recommended" that Vasquez follow through with his psychiatric appointments to help with current stressors, specifically on the issue of seeking employment. Id.

On October 25, 2011, Vasquez visited the emergency department chiefly complaining of right chest pain for two days. Id. at 367. Attending physician Dr. Enid Coleman noted that Vasquez had atrophy in the right arm with a minimal range of motion, and that his pain increased whenever he moved his arm or turned his torso Id. at 370. She assessed Vasquez with muscle pain, prescribed Naprosyn, and discharged him the same day with instructions to follow up with his primary care physician. Id. at 371-72. An electrocardiogram ("EKG") performed on that date revealed normal findings. Id. at 379-80.

On November 9, 2011, Vasquez returned to Dr. Getaneh for a follow-up visit. Id. at 373-74. Vasquez reported that his chest pain had resolved. Id. at 374. Dr. Getaneh assessed Vasquez as having dysthymia and atrophy with poliomyelitis.[9] Id. at 374, 407. Dr. Getaneh also stated that it was "not clear if this is completely disabling" and that Vasquez's condition would need further evaluation to determine the extent of his disability. Id. at 374.

ii. Federation Employment & Guidance Service Treatment Notes

On April 29, 2011, Vasquez visited an organization called Federation Employment & Guidance Service ("FEGS") for an evaluation of his disability by social workers.[10] Id. at 258-64. Vasquez reported right-arm paralysis and weakness since childhood due to polio, which had worsened and spread to his left arm over the previous two years.[11] Id. at 259-60. He also reported that he had recently developed depression and started therapy. Id. at 260. A physical examination revealed muscle atrophy in the right upper extremities with abnormal muscle bulk, power, and tone. Id. at 262. Additionally, Vasquez's right arm demonstrated an absence of reflexes. Id. at 262. The mental health examination indicated mild depression, but also advised further assessment by physicians. Id. at 258.

On May 10, 2011, Vasquez returned to FEGS to receive a final diagnosis. Id. at 262-63. Vasquez received a diagnosis of depressive disorder, but this diagnosis was labeled as "unstable, " meaning prone to change or worsening. Id. Vasquez also received a diagnosis of "other paralytic symptoms, " although this diagnosis was also labeled as "unstable." Id. at 263.

On August 3, 2011, FEGS prepared a biopsychosocial summary of Vasquez. Id. 276-99. The summary noted that Vasquez lived in an apartment with his domestic partner and four children. Id. at 279-82. Vasquez reported that he was diagnosed with depression in January 2011, but he denied suicidal or homicidal ideations or hallucinations. Id. at 287. He stated that he felt depressed more than half the days in the past two weeks and experienced little interest or pleasure in doing things. Id. at 287-88. He also stated that he had trouble either falling or staying asleep or sleeping too much, feeling tired or having little energy, poor appetite or overeating, feeling bad about himself or that he was a failure, trouble concentrating, and moving or speaking slowly or feeling restless for several days in the past two weeks. Id. Additionally, Vasquez reported that he was able to perform activities of daily living, including cleaning and tidying the home, grooming himself, shopping for groceries, cooking meals, reading, socializing, getting dressed, and watching television. Id. at 289.

iii. Consultative Examiners and State Agency Consultants

On August 5, 2011, Dr. William Lathan performed an internal consultative examination of Vasquez. Id. at 309-12. The examination results noted that Vasquez was diagnosed with polio at the age of two and that his primary problem was atrophy of the right arm. Id. at 309. It also noted that Vasquez began treatment for depression in May 2011, and that he was cooperative and appropriate in dress and affect during the examination. Id. His current medications included Mirtazapine and Lexapro. Id. Vasquez could perform all activities of personal care, but he reported that others performed the cooking, cleaning, laundry, and shopping for him.[12] Id.

Upon physical examination, Dr. Lathan found Vasquez in no acute distress and with normal gait and stance. Vasquez had full range of motion of the left shoulder, elbow, forearm, and wrist. Id. at 310-11. However, Vasquez's right shoulder was abducted and elevated approximately 10 degrees greater than it should have been. Id. at 311. And although Vasquez's right elbow flexion was normal at the joint, the elbow could only extend to a maximum of 45 degrees. Id. Additionally, his right wrist could only bend upward to a maximum of five degrees and his fingers could only flex 30 degrees upon palm stimulation. Id. Despite the fact ...

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