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De Abreu v. Colvin

United States District Court, E.D. New York

May 2, 2017

DENNISSE G. GONELL DE ABREU, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

          MEMORANDUM DECISION AND ORDER

          BRIAN M. U.S.D.J.

         1. Plaintiff seeks review pursuant to 42 U.S.C. § 405(g) of the decision of the Acting Commissioner of Social Security that she is not disabled and thus not entitled to disability insurance benefits. An Administrative Law Judge (“ALJ”) found that she had sufficient residual functional capacity (“RFC”) to do the full range of sedentary work, with slight restrictions, despite having severe impairments of a bulging cervical disc with stenosis and radiculopathy, a herniated lumbar disc with radiculopathy, gastritis, and acid reflux disease.

         2. The Appeals Council disagreed with the ALJ to the extent it found that plaintiff also had a severe mental impairment (depression), which the ALJ had rejected, but the Appeals Council held that notwithstanding this additional severe impairment, the ALJ's RFC determination and other conclusions were correct. It therefore adopted those conclusions, which became the decision of the Commissioner by operation of law. See 20 C.F.R. § 404.981.

         3. In this review proceeding, plaintiff raises two points of error: (i) the ALJ and the Appeals Council failed to properly consider plaintiff's mental impairments; and (ii) the ALJ failed to adequately develop the record by not seeking to enforce subpoenas that he had served on plaintiff's hand surgeon.

         4. The first point of error turns largely, although not exclusively, on the weight that the ALJ and the Appeals Council chose to afford, or more precisely chose not to afford, to the opinions of Dr. Daniel Fulford, a psychologist who testified as a medical expert at the request of the ALJ on the first day of plaintiff's hearings (she had three days of hearings).

         5. Dr. Fulford's opinion was that plaintiff met the Listing of Impairments, 20 C.F.R. Appendix 1 to Subpart Plaintiff of Part 404, § 12.04 (“Affective Disorders”)[1], by reason of having a “depression syndrome.” If the Commissioner had accepted Dr. Fulford's opinion that plaintiff met a Listing, plaintiff would have been deemed disabled without regard to her RFC. See 20 C.F.R. § 404.1520(a)(4)(iii), (d).

         6. Section 12.04 of the Listings has two relevant parts, Part A and Part B, both which must be met. (There is a Part C but it is not involved in our inquiry.) The first, Part A, has two subparts. Part A(1) requires the presence of at least four of nine listed criteria. As an alternative to Part A(1), Part A(2) requires the presence of at least three of eight listed criteria, which are different from the Part A(1) criteria. If the claimant proves that she has at least four of the Part A(1) or three of the Part A(2) criteria, she must then show that those criteria “result in” at least two of the four listed criteria set forth in Part B.

         7. There can be no dispute that Dr. Fulford, after reviewing plaintiff's records prior to the hearing and hearing her testify at the hearing, properly recited the criteria that he found plaintiff had met to support his conclusion that plaintiff had a Listed impairment. Dr. Fulford testified that plaintiff had four of the nine criteria in Part A(1): “appetite disturbance with significant weight gain, ” see § 12.04(A)(1)(b), noting that she had gained 50 lbs.; “sleep disturbance, ” see § 12.04(A)(1)(c); “difficulty concentrating or thinking, ” see § 12.04(A)(1)(g); and visual hallucination, see §12.04(A)(1)(i), since she had an episode of seeing “spiders on the wall.”

         8. He also testified that plaintiff met two of the listed criteria in Part B: “marked activity of daily living restrictions [sic] . . ., ” see 12.04(B)(1), and marked difficulties in maintaining social functioning, see 12.04(B)(2). However, he was somewhat more qualified as to whether these two criteria “result[ed] from” the Part A factors that he found. As he stated it: “[With regard to] the B criteria . . . activities of daily living, again, without speaking to causality, as many times they're not really differentiated. We can say there is a marked activity of daily living restrictions for whatever reason.” (Emphasis added).

         9. Even without any kind of probative inquiry by the ALJ, Dr. Fulford specifically identified two records on which he relied to form his opinion that plaintiff met the § 12.04 Listing. The first was a report from a consultative psychologist, Dr. Michael Kushner, who examined plaintiff. His summary of plaintiff's self-reporting to him is essentially the same as the facts found by Dr. Fulford to support his conclusion as to the Part A(1) criteria - “great difficulty falling asleep”; “visual hallucination of spiders on the wall”; “increased appetite with a weight gain of 50 lb[s]”; and “significant amount of short-term memory trouble and concentration difficulties.” Thus, if one credits plaintiff's self-reporting, there is no daylight between Dr. Fulford and Dr. Kushner as to the Part A(1) criteria.

         10. Dr. Kushner also found that plaintiff's attention and concentration, and short and long term memory, were “mildly impaired.” He found that plaintiff can follow simple directions and perform simple tasks, but that her ability to maintain concentration “may be impaired.” He also found that she can maintain a regular schedule and learn new tasks, and that she “may be able” to perform complex tasks under supervision. He further found that she could make appropriate decisions.

         11. However, Dr. Kushner also found that “her ability to relate adequately with others and appropriately deal with stress may be impaired, ” and that these “difficulties are caused by psychiatric problems.” He further found that plaintiff “will need assistance to manage funds because, she reports, her sister helps her manage funds.” His ultimate conclusion was that his observations “appear to be consistent with psychiatric problems, but, in itself, this does not appear to be significant enough to interfere with the claimant's ability to function on a daily basis.” He diagnosed her with a “depressive disorder, nos, ” and his prognosis was “fair, given the claimant's symptoms.”

         12. The other record that Dr. Fulford specifically referenced was a very brief letter from a Licensed Mental Health Counselor, who stated that she had been treating plaintiff for just over a year and diagnosed her with “Dysthymic disorder 300.4.” This is a reference to the Diagnostic and Statistical Manual IV (a standard which was superseded by DSM-V a couple of months later). The letter does not provide any further details as to the meaning of this diagnosis, but the DSM-VI Dysthymic Disorder diagnosis contained a number of criteria that were in some but not all ways similar to the criteria in Listing § 12.04. Principally, it required a depressed mood for most of the time on most days, with at least two of six “plus factors, ” including overeating, insomnia, or poor concentration or decision-making ability. It also required that these symptoms cause “clinically significant distress or impairment” in social, occupational, or “other important areas of functioning.”

         13. The ALJ essentially rejected Dr. Fulford's opinion, giving it “minimal weight” because he found there was no substantiation in the record for the opinion that plaintiff had a listed impairment. The Appeals Council, although disagreeing with the ALJ's conclusion that plaintiff's depression was not a severe impairment, agreed with his determination to give minimal weight to Dr. Fulford's opinion because, based on the overall record, “the evidence does not support a conclusion that the claimant's mental status impairment met the severity requirements of Listing 12.04.” (I do not understand why plaintiff repeatedly asserts that both the ALJ and the ...


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