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Velic v. Commissioner of Social Security

United States District Court, E.D. New York

February 27, 2018

MUSTAFA VELIC, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM DECISION AND ORDER

          BRIAN M. COGAN U.S.D.J.

         1. Plaintiff pro se brings this action pursuant to sections 205(g) and 1631(c)(3) of the Social Security Act (the “Act”), as amended, 42 U.S.C. §§ 405(g) & 1383(c)(3), seeking review of a final decision of defendant Commissioner of Social Security which held that plaintiff was not disabled under sections 216(i) and 223(d) of Act and was, therefore, ineligible for Disability Insurance Benefits or Supplemental Security Income. For the reasons set forth below, defendant's motion for judgment on the pleadings is denied and this matter is remanded to the Commissioner for rehearing.[1]

         2. The ALJ determined that plaintiff had five severe impairments: a depressive disorder, an anxiety disorder, arthritis, hyperlipidemia, and COPD. However, he also found that plaintiff had the residual functional capacity to perform light work, although limited to performing simple and repetitive tasks. The ALJ found that plaintiff's medically determinable impairments could reasonably be expected to cause the symptoms he alleged, but that plaintiff's statements regarding the intensity, persistence and limiting effects of these symptoms were not “entirely credible.”

         3. The ALJ conceded that the evaluations completed by plaintiff's treating psychiatrists, Dr. Dusan Pekovic[2] and Dr. Miodrag Ristich, were “somewhat consistent” with plaintiff's allegations, but found that these doctors' opinions were “unsupported by the mental status examinations of record.” He noted that the Administrative Record contained “little evidence of treatment for affective disorder, ” but assumed that the treatment began on June 25, 2011 - the date of plaintiff's first visit to Dr. Pekovic. The ALJ then discussed the Progress Notes of plaintiff's first three visits to Dr. Pekovic - characterizing the September 5, 2011, entry as the “last treatment note”-and observed that these treatment notes revealed that plaintiff was benefitting from the medication. The ALJ noted that the Administrative Record did not contain “any further treatment records from 2011 for [his] affective disorder.”

         4. The ALJ decided to give “little weight” to plaintiff's two treating psychiatrists, but elected to give “great weight” to the opinion of consulting psychologist Dr. Haruyo Fujiwaki and “some weight” to the opinions of two psychiatric consultants, Dr. Harvey Barash, and Dr. Mariano Apacible. In so doing, the ALJ did not explicitly consider the qualifications of these professionals, or the frequency, length, nature, and extent of their contacts with plaintiff. This failure is especially notable in this case, in light of the manner in which psychiatric evaluations are conducted and plaintiff's limited English abilities.

         5. Psychiatric examinations, much more than physical examination, require verbal communication. Although plaintiff has lived in the United States since 1997, he grew up and attended school in Bosnia-Herzegovina. His primary language is not English, but Serbo-Croatian. As plaintiff's lawyer informed the ALJ at the start of the hearing, plaintiff has “some difficulty expressing himself in English.” This language difficulty was apparent during the hearing itself, during which plaintiff proved fairly inarticulate and generally responded in phrases rather than complete sentences.

         6. Plaintiff's two treating psychiatrists are themselves immigrants from the former Yugoslavia. Dr. Ristich received his medical degree from the University of Belgrade, having graduated in 1962. See, e.g., http://health.usnews.com/doctors/miodrag-ristich-114459; https://www.zocdoc.com/doctor/ miodrag-ristich-md-4053; https://www.doximity.com/pub/miodrag-ristich-mda. He speaks multiple languages, including Serbo-Croatian. Id. Dr. Pekovic is also a graduate of the University of Belgrade Faculty of Medicine, having received his degree in 1976. See, e.g., http://health. usnews.com/doctors/dusan-pekovic-121212; https://www.doximity.com/pub/dusan-pekovic-md. Although the doctor does not advertise his ability to speak languages other than English, his surname and history suggest that he, too, is fluent in Serbo-Croatian.

         7. Plaintiff met with both of these two psychiatrists on a monthly basis for well over a year. In a report completed on December 27, 2012, Dr. Pekovic stated that he had monthly sessions with plaintiff during the 17-month period between June 25, 2011, and December 20, 2012. In a report completed January 8, 2013, Dr. Ristich stated that he had been seeing plaintiff on a monthly basis since November 2010. The doctors' statements are corroborated by statements offered by plaintiff's attorney at the hearing, in which she explained that plaintiff had two psychiatrists because “problems with insurance” prevented his seeing Dr. Pekovic exclusively, and that plaintiff was seeing “each of them at least eight times a year, usually more.”

         8. In contrast, Dr. Fujiwaki and Dr. Barash met with plaintiff only once. The record implies that neither of these examiners could speak Serbo-Croatian. Dr. Barash's notes indicate that he used a “professional Bosnian interpreter” to assist in that portion of the examination in which he asked plaintiff to perform “simple calculations.” The specificity of this note suggests that the interpreter was not used for other portions of the examination. Dr. Fujiwaki's report states that plaintiff's speech and language skills were “adequate, ” implying that their conversation was entirely in English.

         9. There is no evidence that Dr. Apacible ever examined plaintiff at all. Rather, this SSA consultant appears to have made an assessment based on records provided by the Examiner. The Examiner's own decision, however, indicates that he had only Dr. Fujiwaki's report and a “report of 09/17/11” of Dushan Kosovich, M.D. -- presumably, Progress Notes from Dr. Pekovic's first three sessions with plaintiff.

         10. Drs. Pekovic and Ristich not only saw plaintiff frequently and over a relatively long period of time, but were highly qualified to assess his mental health. According to the websites cited above, both doctors were Board Certified Psychiatrists and each had over 30 years of experience by the time they treated plaintiff. Dr. Ristich was affiliated with Lenox Hill Hospital in Manhattan, while Dr. Pekovic practiced in Manhattan but was affiliated both with Burke Rehabilitation Hospital in White Plains and Montefiore Medical Center in the Bronx.

         11. None of the other three professionals were as qualified. Dr. Fujiwaki's report states that he is a psychologist affiliated with Industrial Medicine Associates, P.C., a corporation which regularly performs consultative examinations for the SSA. Dr. Barash's paperwork indicates that he is a “Phase II Physician” and a Staff Member at the Institute for Family Health, but does not indicate his specialty. Dr. Apacible may be a psychiatrist, but works as a Medical Consultant for the SSA.

         12. Even though Drs. Pekovic and Ristich spoke plaintiff's language, spoke with plaintiff on a regular basis over more than a year, and were highly qualified to assess plaintiff's mental health, the ALJ elected to give their opinions less weight than less qualified professionals who had seen plaintiff at most once and could not speak his language. The ALJ provided four reasons for this decision. None of them were good reasons.

         13. First, he opined that the two treating physicians' opinions that plaintiff was restricted in his activities of daily living were “largely unsupported by the record.” In his report dated December 27, 2012, Dr. Pekovic opined that plaintiff was only moderately limited in this regard, in part because of his lack of energy. Less than two weeks later, Dr. Ristich opined that plaintiff has a marked restriction in his activities of daily living, noting that he relied on a friend to do shopping, house cleaning, and laundry. The ALJ rejected these opinions, noting that plaintiff could still utilize public transportation and take ...


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