United States District Court, S.D. New York
OPINION AND ORDER
L. ELLIS, UNITED STATES MAGISTRATE JUDGE
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.
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).
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.
Right Knee Impairment
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).
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).
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
was also examined by Dr. Henry Sardar, 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).
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 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).
Herniation and Lower Back Pain
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).
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).
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).
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).
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).
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).
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. (Id. at 663).
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).
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).
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).
Bipolar Disorder and Depression
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.)
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).
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).
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).
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.).
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).
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
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