United States District Court, E.D. New York
MEMORANDUM DECISION AND ORDER
M. Cogan U.S.D.J.
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.
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).
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
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.
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.
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.
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.
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
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.
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.
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
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 ...