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Rodriguez v. Colvin

United States District Court, S.D. New York

March 31, 2017

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




         Plaintiff Rafael Rodriguez commenced this action under the Social Security Act (the "Act"), 42 U.S.C. § 405(g), challenging a final decision of the Commissioner of Social Security (the "Commissioner") denying his claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). On November 30, 2015, Rodriguez moved for judgment on the pleadings, asking the Court to reverse the Commissioner's denial, and remand for a calculation of benefits. In the alternative, Rodriguez asks for a remand for further administrative proceedings with assignment to a different ALJ and with time limits imposed on the remand proceedings. Pl's Mem. in Support of his Mot. for J. on the Pleadings at 1. The Commissioner filed a cross-motion for remand, asking the Court to remand the case for further administrative proceedings. Def.'s Mem. of Law in Support of the Commissioner's Cross Motion for Remand and in Opp'n to Pl's Mot. for J. on the Pleadings at 1. For the reasons set forth below, the case is REMANDED for further administrative proceedings. Rodriguez's request for an instruction for calculation of benefits, and his request for remand to a different ALJ with a time limit on proceedings are both DENIED.


         A. Procedural History

         Rafael Rodriguez applied for DIB on June 11, 2010, and for SSI on September 22, 2010, alleging disability that began on February 1, 2009. (Tr. at 282-89). Both claims were denied by the Social Security Administration ("SSA") on January 26, 2011. (Id. at 184). Rodriguez submitted a request for a hearing by an Administrative Law Judge ("ALJ") on February 11, 2011. (Id. at 196). ALJ Seth Grossman held hearings on December 15, 2011, April 23, 2012, and May 13, 2013. Rodriguez attended the December 2011 hearing with counsel, Karen Tobin. (Id. at 136). He attended the April 2012 hearing with a different attorney, Aaron Vega, a vocational expert, Merriam Greene, and a medical expert, Dr. Donald Goldman. (Id. at 55). Vega also represented Rodriguez at the May 2013 hearing, attended by a different vocational expert, Jakob Tikes, and a different medical expert, Dr. Malcolm Brahms. (Id. at 29). On August 8, 2013, ALJ Grossman issued a decision denying Rodriguez either benefit. (Id. at 21). Rodriguez filed a request with the Appeals Council for a review of ALJ Grossman's decision on August 8, 2013. (Id. at 7). The request was denied on March 9, 2015. (Id. at 1). Rodriguez filed this action on April 3, 2015, and both parties consented on May 7, 2015, to the jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c). (Doc. No. 1, 6).

         B. Medical Evidence

         Rodriguez claims his disability is caused by a number of psychological and physical impairments: anxiety, depression, schizophrenia, right leg and knee pain, left shoulder pain, and complications from past surgeries. (Id. at 188, 314). The medical evidence presented to ALJ Grossman covers the period from August 8, 2006, to April 25, 2013, and individual pieces of evidence often concern multiple impairments, (See, e.&, Tr, at 070-76) (treating physician's report opining on disc herniation, lower back pain, and osteoarthritis in the right knee). ALJ Grossman was thus required to analyze a lengthy and complex record to assess the effects that a number of impairments - both independently and in combination - had on Rodriguez's ability to work. This Opinion and Order presents the medical evidence grouped by impairment.

         1. Right Knee Impairment

         In 2006, Rodriguez was allegedly assaulted by a co-worker and suffered a contusion to his right knee. (Id. at 149, 381). Stephen Kette, a physician's assistant at the Center for Bone and Joint Disease, diagnosed Rodriguez with a ligament sprain and meniscal tear in his right knee. (Id. at 403). Rodriguez made subsequent visits to Dr. Richard Katz at the Center, complaining of pain in his knee. Dr. Katz ordered an arthroscopy, and concluded that the meniscal tear might have aggravated some pre-existing problems. He noted that Rodriguez would have to be disciplined about physical therapy to improve his knee condition. (Id. at 398-402).

         On November 19, 2010, Dr. Dipti Joshi examined Rodriguez for the SSA. Dr. Joshi found some soft tissue swelling around Rodriguez's right knee and extension out to 75 degrees. (Id. at 569). Dr. Joshi concluded that Rodriguez had "moderate limitation to walking, climbing, and standing" and "[m]arked limitation to squatting." (Id. at 570). On November 30, 2011, Dr. Daniel Sotelo-Garza, one of Rodriguez's treating physicians at All Med Clinic, diagnosed Rodriguez with severe osteoarthritis in his right knee. (Id. at 671).

         Rodriguez had another orthopedic evaluation on February 2, 2012. Dr. Jose Corvalan noted mild swelling of the right knee and 40 degrees of flexion. He concluded that Rodriguez was moderately limited in walking long distances, bending, climbing, and standing and sitting for lone neriods of time because of right knee and back pain, (Id., at 759-60).

         Rodriguez was also examined by Dr. Henry Sardar, [1]a pain management specialist, on April 11, June 6, and August 8 of 2012. (Id. at 967-74). Dr. Sardar noted during each of those visits that Rodriguez had mild effusion, osteoarthritic hypertrophy, and patellar grinding in his right knee. (Id.). He ordered an x-ray on February 29, 2012, which documented degenerative change, and an MRI on August 22, 2012, which found a degenerative meniscus tear, mild effusion, and osteoarthritic changes. (Id. at 940-41). On September 14, 2012, however, Rodriguez was examined by Dr. Ashok Dubey at All Med Clinic. (Id. at 893). Dr. Dubey noted mild swelling in Rodriguez's right knee, but found no misalignment, defects, or muscle atrophy. (Id.). Rodriguez was examined again by Dr. Sardar on January 9, 2013. Dr. Sardar's findings were the same as the three prior visits. (Id. at 961).

         2. Left Shoulder Impairment

         During his consultative examination on November 19, 2010, Dr. Joshi noted that Rodriguez had rotator cuff surgery performed on his left shoulder and that he suffered "moderate limitation to reaching" with his left arm. (Id. at 570). Forward elevation of the left arm was limited to 100 degrees, abduction to 120 degrees, and external rotation to about 75 degrees. (Id. at 569). Dr. Corvalan also found "moderate limitation" on using the left shoulder at his February 2, 2012 consultative examination. (Id. at 759). He concluded, however, that Rodriguez should never lift or carry objects even under ten pounds because of his left shoulder pain. (Id. at 761). Similarly, Dr. Sardar noted decreased range of motion in forward flexion and abduction in the left[2] shoulder during his examinations on April 11, 2012, June 6, 2012, August 8, 2012, November 7, 2012, December 12, 2012, and January 9, 2013. (Id. at 961-72).

         3. Disc Herniation and Lower Back Pain

         Following Rodriguez's 2006 injury, an MRI revealed he had a moderately herniated disc at ¶ 4-5. (Id. at 404). In September and October 2006, Dr. Craig Bennett recommended physical therapy to treat the pain from the herniation and an apparent lumbar sprain. (Id. at 400-05). Rodriguez later received an MRI sometime in 2010 and another on February 7, 2011, both of which showed disc herniation at ¶ 4-5. (Id. at 530, 946).

         On October 22, 2010, Rodriguez visited the Clay Avenue Health Center and was examined by Lucy Palomino, a nurse practitioner, who found "no abnormalities" in his back or spine. (Id. at 559). On November 2, 2010, Anthony Mandese, a physician's assistant at All Med Clinic, ordered a disc herniation evaluation for Rodriguez. (Id. at 587). On December 29, 2010, Mandese assessed Rodriguez with "lumbar chronic pain syndrome." (Id. at 581).

         On October 19, 2011, Dr. Danilo Sotelo-Garza evaluated Rodriguez at All Med and found disc herniation and tenderness at ¶ 4-5. Dr. Sotelo-Garza also performed a positive straight leg test and determined specific reductions in range of motion. He found that Rodriguez suffered a 10 degree decrease in flexion, a 5 degree decrease in extension, a 25 degree decrease in lateral bending, and a 20 degree decrease in lateral rotation, as measured against the normal range for each of those motions. (Id. at 895).

         On November 30, 2011, Dr. Sotelo-Garza filled out a "Multiple Impairments Questionnaire" for the SSA and diagnosed Rodriguez with lumbar spine disc herniation, finding a decreased range of motion with pain and noting that Rodriguez had previously been prescribed a hark hrace (id at 6711. Dr. Sotelo-Garza found that the back pain affected Rodriguez's lower extremities. (Id. at 672). Rodriguez could sit and stand for only one to two hours a day, and only occasionally lift and carry objects weighing five to ten pounds. (Id. at 673-74). Dr. Sotelo-Garza opined that Rodriguez could not sit, stand, or walk continuously in a work setting. (Id.). Rodriguez also had "significant limitations in doing repetitive reaching, handling, fingering, or lifting" according to Dr. Sotelo-Garza. (Id.). Finally, Dr. Sotelo-Garza noted in the questionnaire that Rodriguez could not push, pull, kneel, bend, or stoop on a sustained basis in a work setting. (Id. at 679).

         Dr. Sardar noted a decreased range of motion in the lumbar spine with pain at the end range during examinations on February 1, 2012; April 11, 2012; June 6, 2012; August 8, 2012; November 7, 2012; December 12, 2012; and January 9, 2013. (Id. at 961-74).

         4. Ambulatory Impairments

         There is some evidence in the record that suggests Rodriguez may suffer from significant ambulatory impairments. On November 19, 2010, Dr. Shelia Aspinal performed a psychiatric evaluation of Rodriguez for the SSA. In her report, she noted that Rodriguez "walked with a cane" and "had a shuffling gait." (Id. at 563).

         A physical residual functional capacity assessment, completed on January 24, 2011, by "E. Sousa" noted that during the physical examination, Rodriguez "limped when he walked with his cane which he always uses for weight bearing [sic]." (Id. at 591). Rodriguez told Sousa that his doctor prescribed the cane, but Sousa noted "actually the cane was ordered by an RN NP, who reported that [Rodriguez] was ambulating without any difficulty." (Id.). Despite the ambiguity about the cane, Sousa reported that Rodriguez "could not walk on his toes, had difficulty walking on heels, [and] only squatted 25%." (Id.). On February 3, 2011, Anthony Mandese of All Med Clinic prescribed a cane for Rodrisuez. (Id. at 643). On December 6, 2011, a "rollator" - a kind of walker - was delivered to Rodriguez from West 5th Medical Supply.[3] (Id. at 663).

         When Rodriguez appeared at his first hearing before ALJ Grossman, on December 15, 2011, Grossman asked about a device Rodriguez had next to him. "This is called my cart [...] [I]t helps me with my disc, so every time I walk, every 15 - every let's say it's two blocks. I'll sit down and I'll relax." (Id. at 165). Rodriguez had his cart again at the second ALJ hearing on April 23, 2012. (Id. at 61-62).

         On February 3, 2012, Dr. Corvalan reported in a medical source statement to the SSA that Rodriguez required a walker to ambulate, and that a cane was "medically necessary" to ambulate. (Id. at 762). On February 1, 2012, and on April 11, 2012, Dr. Sardar noted that Rodriguez "has slow gait, difficulties in standing and walking without [an] assistive device." (Id. at 972, 974). In contrast, Dr. Ashok Dubey reported that Rodriguez's gait was "coordinated and smooth" in his June 28, 2012 examination. (Id. at 893).

         Finally, in his July 12, 2012 written interrogatory to ALJ Grossman, Dr. Donald Goldman, a consultative medical expert, indicated some uncertainty whether Rodriguez could ambulate without a cane. In his source statement questionnaire, Dr. Goldman left blank the question "Does the individual require the use of a cane to ambulate? Yes/No, " writing beside it "Cane? Brace?" (Id. at 779). Dr. Goldman also questioned Rodriguez several times about his use of a back brace, (Id. at 85), and his need for a walker, (Id. at 96), at the April 2012 hearing, but appeared skeptical that the record firmly showed a walker was medically necessary. (Id. at 115-19).

         5. Bipolar Disorder and Depression

         On September X. 7010. Rodriauez was examined by a FEGS social worker, He reported a history of depression, anxiety, and suicidal ideation. (Id. at 526). At the time, he was taking Zoloft, Xanax, Navane, Trazadone, and Dioxeine. (Id. at 527). On October 22, 2010, Esther Aguirre at the Clay Avenue Health Center diagnosed Rodriguez as having major depression. (Id. at 553-56). She decided to continue his medication regime. (Id.)

         On November 19, 2010, Dr. Shelia Aspinal evaluated Rodriquez psychiatrically and concluded that, although he had some attention and concentration limitations because of pain, and although his ability to handle stress appeared "compromised, " his impairments did "not appear to be significant enough to interfere with [his] ability to function on a daily basis." (Id. at 564-65). Rodriguez appeared capable of (1) understanding and following simple instructions, (2) performing simple tasks independently (although he needed assistance because of physical limitations), (3) regularly attending to a routine, and (4) maintaining a schedule. (Id. at 564).

         In contrast to Dr. Aspinal's assessment, non-examining psychologist Dr. E. Kamin concluded in a residual functional capacity assessment dated January 1, 2011, that Rodriguez had (1) marked limitations in his ability to understand, remember, and carry out detailed instructions, and (2) moderate limitations in his ability to interact appropriately with the general public, accept instruction and criticism from supervisors, and get along with co-workers. (Id. at 611). None of his abilities, however, were significantly limited. (Id. at 610).

         On February 2, 2012, Dr. Herb Meadow completed a psychiatric evaluation of Rodriguez. He found that Rodriguez suffered from depression and a panic disorder, but could perform complex tasks independently, learn new tasks, maintain a schedule, make appropriate decisions, and relate adequately to others. (Id. at 750).

         Rodriguez would, however, have trouble dealing with stress, and his attention and concentration appeared impaired "due to limited intellectual functioning." (Id. at 749-501, Between November 12, 2010, and September 24, 2013, Rodriguez was treated by Dr. Edward Fruitman and psychiatric staff at All Med Clinic. On July 6, 2011, Dr. Fruitman completed a psychiatric impairment questionnaire. He noted that Rodriguez had chronic depression and anxiety. (Id. at 682). Rodriguez had marked limitations in his ability to remember and carry out detailed instructions, work around others without being distracted, and accept instructions and respond to criticism from supervisors. (Id. at 687-89). He had moderate limitations in his ability to (1) remember locations and procedures, (2) maintain attention and concentration for extended periods, (3) follow a schedule, (4) sustain a routine without supervision, (5) get along appropriately with the general public and co-workers, and (6) respond appropriately to changes in the workplace. (Id.). Dr. Fruitman reported that Rodriguez experienced episodes of deterioration or decomposition in work settings. (Id. at 689). Dr. Fruitman also noted that Rodriguez was taking Zoloft, Seroquel, Xanax, and Alprazolam. (Id.).

         In an August 27, 2012 assessment, Dr. Fruitman noted that Rodriguez had depression and bipolar disorder. (Id. at 795). In a September 24, 2013 medical report to the SSA, Dr. Fruitman wrote that Rodriguez suffered from clinical depression, anxiety, and bipolar disorder. (Id. at 857-58). He also reported that Rodriguez was unable to perform activities of daily living, and that his pain conditions and COPD exacerbated his depression. (Id. at 870-71). In contrast to his 2011 psychiatric questionnaire, Dr. Fruitman concluded in his September 2013 report that Rodriguez suffered marked limitations in his ability to understand, remember, and carry out simple instructions, make judgments on simple work-related decisions, and act appropriately with the general public and co-workers. (Id. at 872-73). Rodriguez had extreme limitations in his ability to understand, remember, and carry out complex instructions, interact appropriately with supervisors. and respond appropriately to changes in a routine work setting, (Id.). Dr, Fruitman based his assessment on "patient appointments, statements, and mental status evaluations documenting conditions by others since November 2009." (Id. at 873).

         6. Manipulative Limitations

         In his November 19, 2010 internal medicine examination, Dr. Joshi found that Rodriguez had a full range of motion in his elbows, forearms, and wrists, bilaterally. (Id. at 569). However, in a February 3, 2012 medical source statement, Dr. Corvalan stated that Rodriguez could never perform reaching, pushing, or pulling with either his right or left hand, but could only occasionally reach overhead, handle, finger, or feel with either hand. (Id. at 763).

         Dr. Goldman found that Rodriguez could only occasionally reach and push and pull with his right hand, but that all other manipulative functioning was fully unlimited. (Id. at 780). Dr. Brahms found that Rodriguez could occasionally finger and push and pull with his right hand, and that he could frequently handle and feel with it. (Id. at ...

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