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Gonzalez v. Commissioner of Social Security

United States District Court, E.D. New York

March 19, 2017

RADAMES DEJESUS GONZALEZ, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM DECISION AND ORDER

          Brian M. Cogan U.S.D.J.

         1. Plaintiff seeks judicial review of the determination of the Commissioner of Social Security, following a hearing before an Administrative Law Judge (“ALJ”), finding that he was not disabled for purposes of qualifying for supplemental security income benefits despite his severe impairments of major depression, post-traumatic stress disorder, degenerative disc disease, and history of chronic obstructive pulmonary disease. Although plaintiff alleges that the ALJ's decision was not supported by substantial evidence, I have little doubt that on the record as it stands, there is substantial evidence to support the ALJ's decision. However, plaintiff also contends that the ALJ committed four errors that distort the record, and that these errors overshadow the picture of plaintiff's condition that might otherwise exist.

         2. Plaintiff is correct that the ALJ's decision contains several observations and findings that are contradicted by the record, which the Commissioner has acknowledged in this proceeding. The issue is whether, singly or collectively, those mistakes were material to the decision such that a remand is necessary. See Cillari v. Colvin, No. 13CV4154, 2015 WL 1433371, at *21 (S.D.N.Y. March 30, 2015) (“Any error made by the ALJ . . . was . . . immaterial and provides no basis for reversal or remand.”); Gonzalez v. Colvin, No. 14-CV-6206, 2015 WL 1514972 at * 19 (S.D. N.Y. April 1, 2015) (“Any shortcoming in the ALJ's explanation is harmless error that does not require remand.”); Zubizarreta v. Astrue, No. 08 CV 2723, 2010 WL 2539684, at * (E.D.N.Y. June 16, 2010) (declining to remand even though the ALJ failed to properly apply the treating physician rule because it would be “futile” as correct application of the rule would lead to the same conclusion); see also Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (where application of the correct legal principles to the record could lead to only one conclusion, there is no need to require agency reconsideration).

         3. Plaintiff's points of error are: (1) the ALJ misperceived the relationship between plaintiff and two of his treating physicians, and, for that reason, misapplied the treating physician rule; (2) the ALJ did not fulfill his duty to complete the medical record, as the records that he had from one treating physician suggested that there were more records, and the ALJ discounted the treating physician's opinion because of the lack of records; (3) the ALJ erred in finding that plaintiff can communicate in English; and (4) there were technical defects in the testimony of the vocational expert.

         4. The last of plaintiff's points of error is disposed of easily. Plaintiff's objection to the vocational expert is twofold: (a) the ALJ did not “qualify” the vocational expert, i.e., show him to have the expertise to give vocational testimony; and (2) the ALJ did not give plaintiff's attorney the opportunity to object to the vocational expert giving testimony. It is true that the ALJ did not demonstrate that the vocational expert, referred to in the transcript of the hearing only as “Mr. Vaughn, ” had any qualifications at all. The record, which usually contains a resume of the vocational expert, does not even indicate the vocational expert's first name except in the ALJ's decision, let alone any information on his expertise. It would have been better practice to have completed the record.

         5. However, plaintiff was represented by the same law firm who has appeared for him in this review proceeding. The lawyer from that firm cross-examined the vocational expert and did not object to his testimony. The fact that counsel had - and used - the opportunity to cross-examine directly disposes of plaintiff's claim that he had no opportunity to object to the expert - an opportunity to cross-examine necessarily includes an opportunity to object to the testimony.

         6. It also disposes, albeit less directly, of the claim that the absence of testimony on qualifications was a material error. This is not a pro se case. If counsel didn't ask about qualifications, it must be inferred that he knew the expert and was satisfied with his qualifications. In effect, counsel is asking the Court to excuse what could only be, if it were material, his own ineptitude. But the point is purely technical, and insufficient to require remand even in combination with other errors in the record that might.

         7. The other points of error also arise from mistakes or alleged mistakes by the ALJ. First, one of plaintiff's psychiatrists, Dr. Dalia Olivier, filled out a medical source statement in May, 2014 (the “Olivier MSS”) as to plaintiff's mental condition - a checklist of symptoms - which, if viewed in isolation, would seem to weigh heavily in support of a finding of disability.

         The ALJ gave Dr. Olivier's opinion “little weight” because the records

show that Dr. Olivier only treated the claimant for only two months from May through July, 2012. Thus, Dr. Olivier had not treated the claimant in nearly two years at the time he [sic] rendered his [sic] opinions . . . and did not possess a longitudinal understanding of claimant's history and symptoms.

         That was at least partially wrong. In fact, the record contains treatment notes showing that Dr. Olivier treated plaintiff twice more, in September and December 2012. So the longitudinal relationship was not as short as the ALJ thought - it was eight months, not three months.

         8. In addition, Dr. Olivier's treatment overlapped to a large extent with treatment that plaintiff received from her colleague, a psychologist named Dr. Juan Rodriguez - both of them were at Lutheran Family Health Center (“Lutheran Family”). In fact, as the ALJ alluded to, plaintiff had also been evaluated by Lutheran Family social workers on two occasions in the end of April and the beginning of May 2012. Lutheran Family issued two treatment plans on Dr. Rodriguez's letterhead that were signed by Dr. Olivier. (Plaintiff considers these to be treatment notes, but they are not.) According to the Olivier MSS, the arrangement was for Dr. Olivier to see plaintiff monthly and Dr. Rodriguez to see him every two weeks. Although the treatment notes do not quite reflect that schedule, Dr. Olivier saw plaintiff, starting in May 2012, on five of the sixteen sessions that plaintiff had between the two of them. This means that Dr. Rodriguez and Dr. Olivier conducted the sessions on about a two-to-one ratio, respectively.

         9. For these reasons, it can only be fair to conclude that Dr. Olivier, the psychiatrist, and Dr. Rodriguez, the psychologist, were jointly treating plaintiff on his emotional issues. I therefore think the ALJ was incorrect, not only as to the dates that plaintiff was receiving therapy at Lutheran Family from Dr. Olivier, but also in isolating Dr. Olivier's treatment without recognizing that this treatment was part and parcel of Dr. Rodriguez's treatment.

         10. The question is, again, whether the ALJ's misconception was material. I agree with the Commissioner that it was not. First, the two treatment notes of Dr. Olivier that the ALJ overlooked, from September and December of 2012, show plaintiff's condition as less impaired than just about any of her prior treatment notes. Although Dr. Olivier noted his mood as “depressed” on September 12 - after all, there is no dispute that plaintiff is suffering from depression - she also noted that his attitude was “cooperative, well-related”; his speech was “clear, normal”; his thought process was “intact, logical, goal-oriented;” his thought content was “unremarkable;” his insight and judgment were “fair;” and he had no perceptual disorders or suicidal ideation. Dr. Olivier further noted that her assessment of plaintiff was “improved.” All of her prior treatment ...


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