Rico v. Commissioner of Social Security

C/M

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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ANTONIO RICO, :

: MEMORANDUM

: DECISION AND ORDER

Plaintiff, :

: 19-cv-4761 (BMC)

- against – :

:

:

ANDREW SAUL, as Commissioner of Social :

Security, :

:

Defendant. :

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COGAN, District Judge.

Plaintiff seeks review of the decision of the Commissoner of Social Security, following a

hearing before an Administrative Law Judge, that he is not disabled under the Social Security

Act for the purpose of receiving disability insurance benefits. Plaintiff was represented by an

attorney before the ALJ, but is proceeding before me pro se. He has not submitted a substantive

response to the Commissioner’s motion for judgment on the pleadings. However, because of his

pro se status, I have carefully scrutizined the administrative record to ascertain “the strongest

arguments that they suggest.” See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d

Cir. 2006).1 Notwithstanding this standard of review, I can find no substantive error with the

ALJ’s conclusion.

1 Plaintiff has moved for the appointment of counsel before me, but I cannot find that the factors militating towards

the appointment of counsel are present here. See Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986). That

motion is therefore denied.

The threshold obstacle that plaintiff faced before the ALJ was that his date last insured

(“DLI”), June 30, 2013, was substantially before he obtained any treatment for the primary

condition that he claimed rendered him disabled, that is, general anxiety and post-traumatic

stress disorder. His attorney made a perfunctory effort to extend his DLI by asserting that

plaintiff was blind in one eye, which would have extended the DLI. But the attorney ultimately

had to concede that as of 2016, plaintiff’s corrected vision was either 20/20 in each eye or 20/40

in the right eye and 20/25 in the left eye, so he clearly was not blind in one eye.

The ALJ concluded that there was no medical evidence that plaintiff’s mental

impairments qualified him for disability benefits. In so concluding, the ALJ dismissed a series

of treatment notes from plaintiff’s psychiatrist beginning in October 2014 because that treatment

started after his DLI. The ALJ considered plaintiff’s testimony at the hearing, and a state

psychologist’s examination report, and concluded that neither of these, separately or together,

were sufficient to warrant a finding of disability.

With regard to the ALJ’s evaluation of plaintiff’s testimony, most of which was on direct

examination by his attorney, I agree that it was insufficient for plaintiff to carry his burden. At

most, plaintiff testified to anxiety. He claimed that the anxiety stemmed from the suicide of his

grandfather, with whom he was close, in 2012 (when plaintiff was about 32 years’ old), although

plaintiff described having anxiety even prior to that time. But mere anxiety is not disability and,

as the ALJ found, plaintiff testified that he can carry on normal activities of daily living with, at

worst, a moderate impairment in getting along with strangers.

The state consultant’s evaluation did not help plaintiff’s case at all. He found only mildly

impaired attention, concentration and memory skills. The psychologist found that plaintiff’s

mental impairment should not prevent him from maintaining a regular schedule or learning new

tasks; that he adequately relates to others; and has only mild problems dealing with stress.

The ALJ committed procedural error, however, in not considering the treatment notes of

plaintiff’s psychiatrist on the ground that his treatment did not start until after his DLI. It is well-

established that post-DLI medical records can have a bearing on a claimant’s pre-DLI

impairment. See Lisa v. Sec’y of Dep’t of Health & Human Servs., 940 F.2d 40, 44 (2d Cir.

1991) (noting that the Court has “repeatedly” observed that evidence of an applicant’s condition

after the DLI “is pertinent” to the applicant’s pre-DLI impairment). This is particularly the case

with mental disorders like anxiety and trauma-induced disorders, as those conditions do not

spring like Athena from Zeus’s head and may have manifested before the patient realized he

needed treatment. See Wahl v. Astrue, No. 10-CV-499, 2012 WL 1676995, at *4 (N.D.N.Y.

Mar. 23, 2012), report and recommendation adopted, 2012 WL 1676987 (N.D.N.Y. May 14,

2012) (error to deny claim solely because PTSD not diagnosed before DLI because “there is

certainly a likelihood that Plaintiff suffered from PTSD and related symptoms since his

[Vietnam] service and that those symptoms may have become disabling prior to the date last

insured.”). Especially in this case, where plaintiff asserted that he had sought mental health

treatment before his DLI but had been “waitlisted” at the facility he wanted until fifteen months

after the DLI, the ALJ should have considered what, if any, bearing the treatment notes had on

his impairment prior to his DLI.

However, I cannot see remanding to correct for this procedural error because it did not

prejudice plaintiff. I have carefully reviewed the treatment notes myself, and they do not show a

level of severity of plaintiff’s impairment that would warrant a finding a disability. To the

contrary, they show that once plaintiff began taking medication for his condition, it steadily

improved so that in 2018, he “‘admitted to doing better [...] exercising biking gardening etc. and

remains well and stable and no evidence of distress physical and psychological and no overt

thought disorders.” A remand would not result in a finding contrary to that of the ALJ.

I therefore find that the ALJ’s decision was supported by substantial evidence. The

Commissioner’s motion for judgment on the pleadings is granted and the Clerk is directed to

enter judgment dismissing the complaint.

SO ORDERED.

USD

Dated: Brooklyn, New York

November 17, 2020