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Maldonado v. Berryhill

United States District Court, S.D. New York

March 10, 2017

MARITZA MALDONADO, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security Defendant.

          OPINION AND ORDER

          JAMES L. COTT United States Magistrate Judge

         TABLE OF CONTENTS

         I. BACKGROUND.......................................................................................................1

         A. Procedural History....................................................................................1

         B. The Administrative Record......................................................................3

         1. Maldonado's Background...............................................................3

         2. Medical Evidence in the Record....................................................5

         a. Medical History...................................................................5

i. Asthma..........................................................................5
ii. Bariatric Surgery..........................................................5
iii. Dr. Marguerite Bernard - Primary Care Physician ...6 iv. Catskill Pain Management Clinic................................7

         b. Physician's Assessments...................................................11

i. Dr. Arlene Tieng - Treating Rheumatologist............11
ii. Dr. Catherine Pelczar-Wissner - Internal Medical Consultative Examiner...............................................13
iii. Dr. Iqbal Teli - Internal Medical Consultative Examiner.....................................................................15

         c. Physicians' Assessments - Mental Impairments.............17

i. Dr. Richard Frenkel- Treating Psychiatrist............17
ii. Dr. John Spiegel - Treating Psychiatrist..................18
iii. Shelbi Simmons, LCSW - Treating Psychotherapist..........................................................19
iv. Dr. David Mahony - Psychiatric Consultative Examiner.....................................................................21
v. Dr. Alexander Alerte - Psychiatric Consultative Examiner.....................................................................23
vi. Dr. M. Apacible - Psychiatric Consultative Examiner.....................................................................24

         C. Hearings Before the ALJ........................................................................25

         1. Medical Expert Testimony - Dr. Bernard Gussoff.....................25

         2. Vocational Expert Testimony - Mr. Michael Smith...................27

         II. DISCUSSION..........................................................................................28

         A. Standard of Review.................................................................................28

         1. Judicial Review of the Commissioner's Determination..............28

         2. Commissioner's Determination of Disability..............................30

a. Five-Step Inquiry...............................................................31
b. Duty to Develop the Record..............................................32
c. Treating Physician's Rule.................................................33
d. Claimant's Credibility.......................................................37

         B. The ALJ's Decision..................................................................................38

         C. Analysis...................................................................................................48

         1. The ALJ properly evaluated Maldonado's fibromyalgia as part of the five-step sequential evaluation process................................50

a. Maldonado's assertion that the ALJ did not find a medically determinable impairment of fibromyalgia is moot....................................................................................52
b. The ALJ's finding that Maldonado has a medically determinable impairment of fibromyalgia does not render her per se disabled.............................................................52
c. The ALJ considered Maldonado's fibromyalgia in conjunction with other impairments at Step Three.........53
d. The ALJ considered the waxing and waning nature of fibromyalgia in the residual functional capacity assessment.........................................................................55

         2. The ALJ's Step Three findings as to Maldonado's mental impairments are supported by substantial evidence..................57

a. The ALJ properly assigned little weight to Simmons' opinion................................................................................58
b. The ALJ's finding that Maldonado's mental impairments do not medically equal Listings 12.04 or 12.06 is supported by substantial evidence....................................61

         3. The ALJ properly posed hypothetical to the vocational expert............................................................................................65

a. The ALJ accounted for Maldonado's difficulties in concentration, persistence, and pace................................66
b. The ALJ considered Maldonado's documented symptoms of mental impairments......................................................67
c. The ALJ's hypotheticals accounted for Maldonado's hand limitations..........................................................................68
d. The hypotheticals matched the ALJ's residual functional capacity assessment, which is supported by substantial evidence..............................................................................70

         4. Maldonado has not met her burden in alleging bias and thus remand is not warranted.............................................................70

         III. CONCLUSION........................................................................................75

         Plaintiff Maritza Maldonado ("Maldonado") brings this action seeking judicial review of a final determination by Defendant, Nancy A. Berryhill, Acting Commissioner of Social Security (the "Commissioner"), which denied Maldonado's application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") pursuant to the Social Security Act. Maldonado has moved, and the Commissioner has cross-moved, for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, Maldonado's motion is denied and the Commissioner's cross-motion is granted.

         I. BACKGROUND

         A. Procedural History

         Maldonado applied for DIB and SSI on August 4, 2011. Administrative Record ("R."), Dkt. No. 14 at 21.[2] The Social Security Administration ("SSA") denied Maldonado's application on December 8, 2011. Id. at 223-28. On December 20, 2011, Maldonado requested a hearing before an Administrative Law Judge pursuant to 20 C.F.R. § 404.929 and 20 C.F.R. § 416.1429. Id. at 229-30. Represented by counsel, Maldonado then appeared at three hearings before Administrative Law Judge Seth I. Grossman (the "ALJ") on November 28, 2012, September 9, 2013, and March 26, 2014. Id. at 51-219. In a written decision dated September 5, 2014, the ALJ found that Maldonado was not disabled and denied her application for DIB and SSI benefits. Id. at 21-43. Maldonado requested review by the SSA Appeals Council on October 9, 2014, but this request was denied on November 27, 2015, rendering the ALJ's decision final. Id. at 5-8, 15-16.

         Represented by the same counsel who had represented her administratively, Maldonado timely filed this action on January 6, 2016, requesting judicial review of the Commissioner's decision pursuant to 42 U.S.C. § 405(g). Complaint, Dkt. No. 2 at 1-3. The Commissioner answered and filed the Administrative Record on April 19, 2016. Answer, Dkt. No. 13; R., Dkt. No. 14. On June 21, 2016, Maldonado moved for judgment on the pleadings, seeking reversal of the Commissioner's determination and requesting remand for the calculation of benefits only. Motion for Judgment on the Pleadings, Dkt. No. 20; Memorandum of Law in Support of Plaintiffs Motion for Judgment on the Pleadings ("PI. Mem."), Dkt. No. 21. On July 12, 2016, the Commissioner cross-moved for judgment on the pleadings. Motion for Judgment on the Pleadings, Dkt. No. 24; Memorandum of Law in Support of the Commissioner's Motion for Judgment on the Pleadings ("Def. Mem."), Dkt. No. 25. On July 21, 2016, Maldonado filed a reply in opposition to the Commissioner's cross-motion. Memorandum of Law in Opposition to Defendant's Motion for Judgment on the Pleadings and in Further Support of Plaintiffs Motion for Judgment on the Pleadings ("PI. Reply"), Dkt. No. 26.

         B. The Administrative Record

         1. Maldonado's Background

         Maldonado was 46 years old on the amended disability onset date of January 1, 2012. Id. at 21, 189, 372. She was born in Brooklyn and lived there until she was 11 years old, when she moved to Puerto Rico. Id. at 190-91. She graduated from high school in Puerto Rico, then moved to the Bronx when she was 22 years old to attend Bronx Community College, but she did not attain a degree. Id. at 191, 124-25. Maldonado lives with her two adult daughters, a toddler son, and a toddler granddaughter. Id. at 200. She previously worked as a travel agent, receptionist, field interviewer, driving instructor, and marketing collector (a job that required her to sit in an office and call "people who owed money"). Id. at 163-65, 377.

         Maldonado applied for SSI and DIB based on several alleged medical conditions: fibromyalgia, asthma, depression, and severe body pain. Id. at 376. She further testified during the administrative hearings that she had anxiety, osteoporosis, arthritis, and Carpal Tunnel Syndrome. Id. at 92, 196-97, 214.

         During the hearings before the ALJ, Maldonado described her impairments and ability to function. Regarding her fibromyalgia symptoms, Maldonado reported that she experienced chronic and constant pain in her arms, back, hips, legs, ankles, and toes. Id. at 60-61, 130, 183. She claimed that her body was sensitive, and the pain was often magnified, intensified, and widespread. Id. at 130, 183. She also said that she experienced numbness and stiffness in her hands and arms. Id. at 61-62, 199. She added that she was constantly tired and fatigued. Id. at 56, 61, 199.

         Maldonado addressed her physical limitations and testified that she could not walk long distances or climb stairs. Id. at 214. She could not sit, stand, walk for more than 10 to 20 minutes, or bend over. Id. at 59-61, 134. She could sometimes carry a can of soda, but not a gallon of milk. Id. at 62, 94, 134. She could not push or pull objects. Id. at 135. She could not pick up a coin, open 10 files, make 20 phone calls, use scissors, or pack boxes of widgets. See, e.g., Id. at 62-63, 135-36. She "dropped everything" and could not write her name. Id. at 61-62, 94, 135, 183.

         Maldonado also testified about her daily activities. She explained that she had "good days" and "bad days" concerning the severity of her symptoms. Id. at 60. She described a bad day as when "[she] had no sleep . . . could barely get out of bed . . . [and her] back [was] aching." Id. A good day was when she "maybe slept an hour, hour and a half. . . [and had] some energy to get up and do . . . what a normal day would be." Id. A normal day for Maldonado consisted of taking three to four naps during the day. Id. She had trouble climbing into and getting out of bed. Id. at 56, 60, 183. She could not do chores; her daughters had to help around the house. See, e.g., Id. at 61-62, 200. They helped Maldonado bathe, dress, fix her hair, grocery shop, clean, cook, and write letters. See, e.g., Id. at 95, 142. Maldonado could not care for her toddler son; Nesley Santiago, one of Maldonado's daughters, testified that she and her sister would bathe and dress their younger brother, cook for him, pick him up from daycare, and clean up after him. See, e.g., Id. at 57, 131, 201. At times, Maldonado could go shopping with her daughters, but she would complain about pain in her feet and tiredness. Id. at 61, 144, 146.

         Regarding her mental impairments, Maldonado testified that she suffered from anxiety, forgetfulness, "mental fog, " and concentration issues. Id. at 197, 199, 214. She added that her memory was not good. Id. at 131. Santiago testified that her mother was able to go to church with relatives. Id. at 141, 146. According to Santiago, she got along with her friends, did not fight with others, and had not distanced herself from anyone. Id. at 168. However, at times she preferred not to be bothered when people called her. Id. At the time of the administrative proceedings, Maldonado was taking several different psychiatric medications to manage her mental-health symptoms. Id. at 210. As is described further below, she had also been receiving psychotherapy treatment at Morris Heights Health Center. Id. at 212.

         2. Medical Evidence in the Record

         a. Medical History

         i. Asthma

         Maldonado has had a history of asthma since childhood, having previously used Singulair, Ventolin, and Albuterol. Id. at 519, 558, 767. Maldonado reported that she visited the emergency room for asthma about two to three times per year, id. at 767, though the administrative record does not contain evidence of these hospital visits. Id. at 27.

         ii. Bariatric Surgery

         Maldonado's primary-care physician, Dr. Marguerite Bernard, first documented Maldonado's obesity on September 10, 2010 and ordered a bariatric surgery to reduce her weight. Id. at 527.[3] On October 27, 2011, Dr. Catherine Pelczar-Wissner, an internist, consultatively examined Maldonado and reported that Maldonado was 61 inches tall and 243 pounds. Id. at 520. Maldonado then had a bariatric sleeve placed on February 9, 2012. Id. at 653. After the operation, at the hearing on November 28, 2012, and at the second hearing on September 9, 2013, Maldonado testified that she weighed 170 pounds and 168 pounds, respectively. Id. at 149, 203. On December 19, 2012, Dr. Iqbal Teli, another internist, noted that Maldonado weighed 136 pounds, id. at 767, though both Maldonado and the ALJ believed that number could have been a typographical error. Id. at 149-50.

         iii. Dr. Marguerite Bernard - Primary Care Physician

         Maldonado visited her primary-care physician, Dr. Bernard, six times between September 26, 2011 and April 24, 2013. Id. at 523-32, 685-88, 699-702, 707-10, 756-58, 853-55, 859-64. She reported headaches, joint pain, and back pain on several occasions, but Dr. Bernard noted that she walked with a normal gait, was fully oriented, displayed appropriate affect, and her memory was "grossly intact." Id. at 686, 700, 756-57. On September 14, 2012, Dr. Bernard referred her to a neurologist for a second opinion on her "throbbing frontal headaches" and noted that although Maldonado seemed anxious, she walked with a normal gait, was fully oriented, and her memory was intact. Id. at 708-09. On December 14, 2012, Maldonado complained of pain from her chest down to her left side and back that lasted for three weeks leading up to the appointment. Id. at 853. Dr. Bernard noted that Maldonado's left latissumus dorsi muscle region was tender and had a limited range of motion. Id. at 854.[4] Maldonado demonstrated lateral flexion and rotation to the right. Id. Dr. Bernard diagnosed her with muscle strain and prescribed medication. Id. at 855. Finally, on April 24, 2013, Maldonado continued to complain of pain in her middle to lower back, right arm, and extremities. Id. at 859. Dr. Bernard again noted that she walked with a normal gait, was fully oriented, displayed appropriate affect, and her memory was largely intact. Id. at 861.

         iv. Catskill Pain Management Clinic

         Maldonado's treating rheumatologist, Dr. Arlene Tieng, referred her to a pain-management clinic in June 2012. Id. at 635. Treatment notes from the Catskill Pain Management Clinic ("Catskill") show that Maldonado made visits to the clinic 30 times from September 25, 2012 through September 4, 2013. Id. at 789-888.

         Physical exams showed no clubbing, edema, or cyanosis in her extremities. Id. at 790. On September 25, 2012, a physician at Catskill recommended an electromyography test for Maldonado's wrist and physical therapy to alleviate pain in her shoulder. Id. at 790.[5] Based on the electromyography and other tests, Maldonado was diagnosed with Carpal Tunnel Syndrome. Id. at 792. A physician at Catskill also diagnosed Maldonado with rotator cuff tendinitis following positive tests consistent with symptoms of shoulder pain, which worsened with overhead activity. Id.[6]

         On October 24, 2012, Maldonado's neurological exam was positive for tingling and numbness, and her muscoskeletal exam was positive for joint pains and arthritis. Id. at 793. She began physical therapy thereafter and received cortisone injections to her wrist on October 25, 2012. Id. at 794-97. Maldonado tolerated the physical therapy "well without adverse effects." Id. at 798. She also wore hand braces as part of her treatment. Id. at 803. She continued to attend physical therapy at Catskill, where the medical associates noted after most visits that Maldonado felt "better after treatment" and that she was "making steady progress." See, e.g., Id. at 799-801, 804-07, 813-16, 830-33.

         Maldonado's physical therapy was interrupted after January 28, 2013, because her medical insurance did not allow for additional treatment. Id. at 821. On February 20, 2013, a physician at Catskill noted that her neck pain was not improving. Id. at 823. On March 6, 2013, a different physician noted that she walked with an antalgic gait. Id. at 825.[7] Notes from this visit indicated that Maldonado's symptoms of overall body pain dating back to 2009 were "likely related to fibromyalgia, " and that they would restart physical therapy to improve her pain and function. Id.[8]The physician also noted that there was "no clear neurological deficit." Id. On May 13, 2013, Maldonado received a cortisone injection to help with her shoulder pain. Id. at 829. On June 13, 2013, treatment notes referenced a cervical MRI test administered on May 16, 2013 that showed a moderate focal size disc bulge to the left side with effacement of the thecal sac and flattening of the cord. Id. at 835-36.[9] The treatment notes also indicated that Maldonado's bilateral shoulder pain and range of motion limitation was likely related to myofascial pain, and thus a physician at Catskill diagnosed Maldonado with cervicalgia and myofascial pain. Id.[10]

         On July 24, 2013, Maldonado received more trigger point injections. Id. at 837-38. A Catskill physician documented that she walked with an antalgic gait but did not need an assistive device, and that her balance and coordination were intact. Id. On August 21, 2013, Maldonado reported that her symptoms were more severe than her previous visit, and the treatment notes refer to an x-ray showing mild degenerative changes of bilateral acromioclavicular joints. Id. at 839.[11]

         b. Physician's Assessments

         i. Dr. Arlene Tieng - Treating Rheumatologist

         Maldonado visited Dr. Tieng, her treating rheumatologist, five times between June 30, 2011 and September 21, 2012. Id. at 548-53, 651-54. Dr. Tieng diagnosed Maldonado with fibromyalgia and osteoarthritis of the spine, and indicated that her fibromyalgia pain affected her daily activities. Id. at 516, 548, 550, 552, 651, 653.[12]Dr. Tieng noted that NSAIDS did not alleviate Maldonado's hand pain and numbness, or her foot pain. Id. at 548, 550, 552, 651, 653.[13] At all of Maldonado's visits, Dr. Tieng noted 11 to 12 fibromyalgia tender points, but observed that Maldonado walked with a normal gait. Id. She also documented a Mental Resonance Imaging ("MM") test showing "[m]ild degenerative changes of desiccation . . . of multiple lumbar discs . . . [m]inor degenerative bone changes . . . at the anterior inferior margin of L2 vertebral body, [and n]o significant lumbar disc herniations, spinal stenosis, abnormalities of corners of intradural lesions of lumbar dural sac." Id.[14]At each visit, Dr. Tieng encouraged diet and exercise for Maldonado's obesity, and prescribed medication for her fibromyalgia and osteoarthritis. Id. She referred Maldonado to the Catskill Pain Management Clinic in June 2012. Id. at 654.

         Dr. Tieng completed a Medical Source Statement on June 8, 2012. Id. at 628-34. In the Statement, she reiterated her diagnosis of fibromyalgia and osteoarthritis, and supported her findings by indicating Maldonado's symptoms of diffuse body pain, trigger points, weight change, and tenderness in areas of her body. Id. at 628. She stated that depression and anxiety affected Maldonado's pain by increasing the severity of her symptoms and limitations. Id. at 629. She indicated that Maldonado frequently experienced severe pain that interfered with her attention and concentration abilities. Id. ...


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