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Rodriguez v. Berryhill

United States District Court, W.D. New York

November 6, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          MICHAEL A. TELESCA United States District Judge


         Represented by counsel, Ricardo Rodriguez (“Plaintiff”) brings this action pursuant to Titles II and XVI of the Social Security Act (“the Act”), seeking review of the final decision of the Acting Commissioner of Social Security (“Defendant” or “the Commissioner”) denying his application for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). For the reasons set forth below, the Commissioner's decision is reversed, and the matter is remanded for further administrative proceedings.


         On July 5, 2013, Plaintiff filed a Title II application for a period of disability and DIB. On July 31, 2013, Plaintiff filed a Title XVI application for SSI. In both applications, he alleged disability beginning March 4, 2013, due to depressive disorder, anxiety disorder, mood disorder, bipolar disorder, post-traumatic stress disorder (“PTSD”), hypertension, and low back pain. These claims were denied initially on September 25, 2013. Plaintiff filed a request for a hearing which was conducted via videoconference on March 18, 2015, by administrative law judge Gregory M. Hamel (“the ALJ”). Plaintiff appeared with his attorney in Rochester, New York, and testified, as did Stephanie R. Archer, an impartial vocational expert (“the VE”). On May 15, 2015, the ALJ issued an unfavorable decision finding, inter alia, that Plaintiff has the residual functional capacity (“RFC”) to perform a full range of work at all exertional levels with certain postural and environmental limitations, including that he is limited to performing routine and repetitive tasks that require only occasional interaction with the general public and co-workers. The ALJ also found that Plaintiff can perform his past relevant work as a cleaner, packer, and warehouse worker, which are all medium exertional level, unskilled jobs.

         Plaintiff's request for review was denied by the Appeals Council on March 25, 2016, making the ALJ's decision the final decision of the Commissioner. Plaintiff then timely commenced this action.

         Presently before the Court are the parties' competing motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons discussed below, Plaintiff's motion is granted, and the Commissioner's motion is denied.


         I. Error in Weighing Treating Psychiatrist's Opinions

         The treating physician rule requires an ALJ to give controlling weight to a treating physician's opinion when that opinion is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record.” 20 C.F.R. § 404.1527(c)(2); see also Green-Younger, 335 F.3d at 106. However, an ALJ may give less than controlling weight to a treating physician's opinion if it does not meet this standard, so long as the ALJ sets forth the reasons for the determination. See Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004); 20 C.F.R. § 404.1527(c)(2) (“We will always give good reasons in our notice of determination or decision for the weight we give [the claimant's] treating source's opinion.”).

         Plaintiff's treating psychiatrist, Dr. Roma Fortuna of Strong Behavioral Health, completed two mental RFC questionnaires on Plaintiff's behalf. On April 16, 2014, Dr. Fortuna completed a mental RFC questionnaire (T.366-70), indicating that she has treated Plaintiff for mood disorder, PTSD, [1] and anxiety with thoughts of suicide, feelings of guilt or worthlessness, impairment in impulse control, generalized persistent anxiety, mood disturbance, difficulty concentrating, recurrent recollections of trauma, psychomotor agitation, disturbances in mood, unstable interpersonal relationships, and emotional lability. In regards to his ability to work, Dr. Fortuna assessed that Plaintiff was “limited” or “seriously limited” in his ability to maintain attention for two hour segments; work in coordination with, or proximity to, others without being distracted; complete a normal 8hour workday; perform at a consistent pace; accept instructions; get along with coworkers; and deal with normal work stress. Dr. Fortuna opined that Plaintiff would be “unable to meet” competitive employment standards for dealing with the stress of a typical workday, and that his impairments would cause him to miss about 4 days per month of work.

         Dr. Fortuna completed a second questionnaire on February 19, 2015 (T.502-07), indicating that Plaintiff's current Global Assessment of Functioning (“GAF”) was 40, with his highest GAF in the past year being 50.

         The ALJ gave “little weight” to both of Dr. Fortuna's reports. The ALJ noted that in 2014, Dr. Fortuna found that Plaintiff was “limited or seriously limited in almost all activities required for unskilled, semiskilled and skilled work, ” but in 2015, she found that he was “seriously limited or completely unable to perform almost all activities required for unskilled, semiskilled, and skilled work.” According to the ALJ, “[t]here [was] no explanation as to why the claimant's limitations [were] reported as more pronounced in [the 2015] report.” However, Dr. Fortuna notes in the 2015 opinion that Plaintiff's “symptoms have been worsening over the past couple months.” The ALJ found that Dr. Fortuna's opinions were “inconsistent with [Plaintiff]'s treatment records, which show [Plaintiff]'s symptoms have improved overtime [sic] with medication and therapy.” The ALJ did not cite to the specific records he believed demonstrated improvement in Plaintiff's symptoms. Without identifying the alleged inconsistencies in the record, the ALJ did not provide any basis for rejecting Dr. Fortuna's opinions, and prevents the Court from conducting a meaningful review. See, e.g., Ely v. Colvin, No. 14-CV-6641P, 2016 WL 315980, at *4 (W.D.N.Y. Jan. 27, 2016) (“[T]he ALJ's statement that the rejected opinions were “not supported by the record as a whole” is too conclusory to constitute a “good reason” to reject the treating psychiatrist's opinions. The ALJ does not identify anything in the record, other than the GAF scores, discussed below, that is inconsistent with Rodic's opinions.”) (citing, inter alia, Crossman v. Astrue, 783 F.Supp.2d 300, 308 (D. Conn. 2010) (ALJ's statement that treating physician's opinion was “inconsistent with the evidence and record as a whole” was “simply not the ‘overwhelmingly compelling type of critique that would permit the Commissioner to overcome an otherwise valid medical opinion'”) (quotation omitted)).

         The Court has reviewed the available records, and while Plaintiff attended his psychiatric and counseling appointments regularly and participated willingly in therapy, the records demonstrate that Plaintiff continued to have significant psychiatric symptoms. On August 22, 2014, for instance, Plaintiff presented as “anxious” and reported to his therapist that he had shaved off his eyebrows the other day but denied knowing why he had shaved them. (T.467). He had experienced vague thoughts of hanging himself the previous week but did not act on those thoughts. (Id.). The Court notes, however, that there appears to be a slight gap in the administrative transcript with regard to treatment records from Strong Behavioral Health after August 22, 2014, up until Dr. Fortuna's February 2015 mental RFC questionnaire. The last treatment note from Strong Behavioral Health, quoted in Plaintiff's Memorandum of Law (“Pl's Mem.”) (Docket #9-1), is September 15, 2014. On that date Plaintiff had a psychotherapy session, and his therapist noted that Plaintiff continued to ruminate over past events, had intrusive thoughts about his past, and had “no real change” in decreasing anxiety or impulsive responses to emotions. (Pl's Mem. at 20). Plaintiff indicates that these treatment notes are located at pages 494 through 496 of the administrative transcript. However, this is incorrect, as pages 494 through 496 of the administrative ...

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