# Cortes v. Commissioner of Social Security

> District Court, W.D. New York · September 23, 2020

URL: https://www.frixlaw.com/law-library/cases/10362778

## Case

- **Court:** District Court, W.D. New York
- **Decided:** September 23, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JOEL PAUL CORTES ,
Plaintiff, 19-CV-19Sr
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

DECISION AND ORDER
As set forth In the Standing Order of the Court regarding Social Security
Cases subject to the May 21, 2018 Memorandum of Understanding, the parties have
consented to the assignment of this case to the undersigned to conduct all proceedings
in this case, including the entry of final judgment, as set forth in 42 U.S.C. § 405(g).
Dkt. #11.

BACKGROUND

Plaintiff applied for disability insurance benefits and supplemental security
income (“SSI”), with the Social Security Administration (“SSA”), on June 1, 2015,
alleging disability beginning January 31, 2013, at the age of 31, due to post-traumatic
stress disorder (“PTSD”), depression and anxiety. Dkt. #7, pp.96-97.

On December 12, 2017, plaintiff appeared with counsel and testified,
along with an impartial vocational expert (“VE”), Rachel Duchon, at an administrative
hearing before Administrative Law Judge (“ALJ”), Melissa Lin Jones. Dkt. #7, pp.33-84.
Plaintiff testified that he has been homeless since he filed for benefits. Dkt. #7, pp.38-
39. He completed eleventh grade and obtained his general equivalency diploma. Dkt.
#7, pp.42-43. He was an information systems technician for the Navy until he was
placed in the brig for unauthorized absence. Dkt. #7, pp.43-45. Plaintiff’s work history

included numerous jobs, including as a laborer, dishwasher and delivery driver. Dkt. #7,
pp.46-54. He was currently looking for work, but explained that whenever he speaks
with someone regarding a job, his anxiety shows “and people don’t really want to hire
somebody who’s nervous and shaky.” Dkt. #7, p.55. He recently obtained a New York
State driver’s license to replace his expired Pennsylvania license, but rarely drove, not
only because he did not have a vehicle, but because he understood he shouldn’t drive
due to his inability to pay attention. Dkt. #7, p.40.

Plaintiff has difficulty sleeping and testified that the smallest thing wakes

him up. Dkt. #7, p.60. Sometimes he wakes up thinking he is “at war, still.” Dkt. #7,
p.60. He is always on guard and has flashbacks every day or every other day. Dkt. #7,
p.61. He explained that he has no stability and nothing seems to be getting better. Dkt.
#7, p.61. Sometimes, he won’t sleep or eat for days. Dkt. #7, pp.61-62. He recognized
the impact of sexual and physical abuse as a child but explained that he was unable to
work on these issues when he didn’t know where his next meal was coming from. Dkt.
#7, pp.63-64. He experiences panic attacks and is depressed every day, even with his
medication, causing him to wish his life would end. Dkt. #7, pp.66-67. Plaintiff
recognized that he probably should have been hospitalized at various times, but
expressed fear of having his freedom taken away from him. Dkt. #7, pp.72-73.
When asked to assume an individual with the residual functional capacity
(“RFC”), to perform work at all exertional levels, but was limited to simple, routine,
repetitive tasks, not at a production-rate pace, with occasional interactions with
supervisors, and rare interaction with coworkers and the public, and limited to simple
decisions when dealing with changes in the work setting, the VE testified that plaintiff

could not perform any of his past work, but could work as a laundry laborer or factory
helper, both of which are unskilled, medium exertion positions, or as a warehouse
support worker, which is an unskilled, light exertion position. Dkt. #7, pp.79-80. The VE
testified that such positions would allow a maximum of 15% off-task in an eight-hour
day and no more than one day absent per month. Dkt. #7, p.80.

The ALJ rendered a decision that plaintiff was not disabled on January 29,
2018. Dkt. #7, pp.19-24. The Appeals Council denied review on November 6, 2018.
Dkt. #7, p.5. Plaintiff commenced this action seeking review of the Commissioner’s final

decision on January 3, 2019. Dkt. #1.

DISCUSSION AND ANALYSIS
“In reviewing a final decision of the SSA, this Court is limited to
determining whether the SSA’s conclusions were supported by substantial evidence in
the record and were based on a correct legal standard.” Talavera v. Astrue, 697 F.3d
145, 151 (2d Cir. 2012). Substantial evidence is defined as “such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.” Moran v. Astrue,
569 F.3d 496, 501 (2d Cir. 2009). If the evidence is susceptible to more than one
rational interpretation, the Commissioner’s determination must be upheld. McIntyre v.
Colvin, 758 F.3d 146, 149 (2d Cir. 2014). “Where an administrative decision rests on
adequate findings sustained by evidence having rational probative force, the court
should not substitute its judgment for that of the Commissioner.” Yancey v. Apfel, 145

F.3d 106, 111 (2d Cir. 1998).

To be disabled under the Social Security Act (“Act”), a claimant must
establish an inability to do any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not less than
twelve months. 20 C.F.R. § 404.1505(a). The Commissioner must follow a five-step
sequential evaluation to determine whether a claimant is disabled within the meaning of
the Act. 20 C.F.R. § 404.1520(a). At step one, the claimant must demonstrate that he is
not engaging in substantial gainful activity. 20 C.F.R. § 404.1520(b). At step two, the

claimant must demonstrate that he has a severe impairment or combination of
impairments that limits the claimant’s ability to perform physical or mental work-related
activities. 20 C.F.R. § 404.1520(c). If the impairment meets or medically equals the
criteria of a disabling impairment as set forth in Appendix 1 of Subpart P of Regulation
No. 4 (the “Listings”), and satisfies the durational requirement, the claimant is entitled to
disability benefits. 20 C.F.R. § 404.1520(d). If the impairment does not meet the criteria
of a disabling impairment, the Commissioner considers whether the claimant has
sufficient RFC for the claimant to return to past relevant work. 20 C.F.R. § 404.1520(e)-
(f). If the claimant is unable to return to past relevant work, the burden of proof shifts to
the Commissioner to demonstrate that the claimant could perform other jobs which
exist in significant numbers in the national economy, based on claimant’s age,
education and work experience. 20 C.F.R. § 404.1520(g).

In the instant case, the ALJ made the following findings with regard to the

five-step sequential evaluation: (1) plaintiff had not engaged in substantial gainful
activity since his alleged disability onset date of January 31, 2013; (2) plaintiff’s PTSD,
anxiety disorder and depressive disorder constitute severe impairments; (3) plaintiff’s
impairments did not meet or equal any listed impairment; (4) plaintiff retained the RFC
to perform work at all exertional levels but is limited to simple, routine, repetitive work,
not at a production rate pace, with occasional interaction with supervisors and rare
interaction with coworkers and the public, and is limited to simple decisions when
dealing with changes in the work setting; and (5) plaintiff was not capable of performing
any of his past work as those positions required too much interaction with others and

more than just simple, repetitive tasks, but was capable of performing work as a laundry
laborer or factory helper, both of which are unskilled, medium exertion positions, or as a
warehouse support worker, which is an unskilled, light exertion position, and was not,
therefore, disabled within the meaning of the SSA. Dkt. #7, pp.16-23.

Plaintiff challenges the ALJ’s evaluation of Dr. Tzetzo’s opinion and the
weight afforded Dr. Fabiano’s opinion, arguing that the ALJ rejected portions of their
opinions without explanation and also failed to explain how their opinions supported his
RFC determination. Dkt. #8-1, pp.15-17. Plaintiff argues that the ALJ should have
sought clarification as to the impact of Dr. Fabiano’s opinion of moderate limitations in
plaintiff’s ability to maintain attention and concentration and deal with stress on
plaintiff’s ability to remain on task for a full workday, and should have sought an opinion
from plaintiff’s treating sources with respect to these functional limitations. Dkt. #8-1,
pp.18-23. Plaintiff also argues that the ALJ mischaracterized plaintiff’s medical record

without seeking a medical source opinion from his health care providers, especially
from Dr. Vasquez, with whom plaintiff treated for three years. Dkt. 8-1, pp.23-26.
Plaintiff notes minimal improvement of his symptoms throughout his medical record
despite general compliance with treatment recommendations. Dkt. #8-1, pp.27-29.

The Commissioner responds that the ALJ appropriately relied upon the
opinion of the medical consultant, Dr. Tzetzo and that Dr. Tzetzo’s determination of
moderate limitations is not inconsistent with the ALJ’s RFC. Dkt. #9-1, pp.5-7. The
Commissioner further responds that the ALJ properly relied upon the opinion of the

consultative examiner, Dr. Fabiano, which is not contradicted by a treating source
opinion, to render a determination as to plaintiff’s RFC. Dkt. #9-1, pp.7-8. More
specifically, the Commissioner argues that the ALJ’s determination that plaintiff could
perform simple, routine and repetitive tasks as required by unskilled work and was
limited to occasional interaction with supervisors and rare interaction with coworkers
and the public is not inconsistent with Dr. Fabiano’s opinion that plaintiff was
moderately limited in maintaining attention and concentration, relating adequately with
others, and appropriately dealing with stress. Dkt. #9-1, pp.9-10. The Commissioner
argues that remand to obtain a treating source opinion is not necessary because the
record contains sufficient evidence from which the ALJ could assess plaintiff’s RFC.
Dkt. #9-1, pp.11-12. Specifically, the Commissioner notes that Dr. Vasquez indicated
that plaintiff should pursue employment. Dkt. #9-1, p.12. Finally, the Commissioner
argues that the ALJ properly evaluated plaintiff’s subjective complaints and assessed
his credibility. Dkt. #9-1, pp.13-16.

Plaintiff replies that the ALJ failed to clarify whether the vague limitations
identified by Dr. Tzetzo and Dr. Fabiano would render plaintiff off task and absent in
excess of customary allowances for full-time work. Dkt. #10, pp.5-8.

Gregory Fabiano, Ph.D., conducted a constulative examination of plaintiff
on August 14, 2015. Dkt. #7, p.372. Dr. Fabiano observed that plaintiff’s posture was
tense; his motor behavior was restless; and his affect was agitated and anxious. Dkt.
#7, p.374. Dr. Fabiano found plaintiff’s attention and concentration and recent and
remote memory skills to be mildly impaired, perhaps due to anxiety or nervousness in

the evaluation. Dkt. #7, p.374. His intellectual functioning appeared average. Dkt. #7,
p.374. Dr. Fabiano opined that plaintiff
does not appear to have evidence of limitation in his ability
to follow and understand simple directions and simple
instructions, perform simple tasks independently, maintain a
regular schedule, learn new tasks, perform complex tasks
independently, make appropriate decisions. He appears to
have moderate limitations in his ability to maintain attention
and concentration, relate adequately with others, and
appropriately deal with stress.
The results of this examination appear to be consistent with
psychiatric problems and this may be significant enough to
interfere with the claimant’s ability to function on a daily
basis.
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Dkt. #7, p.375. Dr. Fabiano recommended that plaintiff continue with psychological and
psychiatric treatment as currently provided. Dkt. #7, p.376. Dr. Fabiano further
recommended that plaintiff continue with vocational and educational training as
currently provided and suggested that plaintiff may benefit from a case manager or
social worker to help him obtain reliable housing. Dkt. #7, p.376. Dr. Fabiano opined

that plaintiff’s prognosis was guarded given initiation of appropriate supports and
interventions as well as the continuance of current psychological and psychiatric
treatment. Dkt. #7, p.376. The ALJ afforded Dr. Fabiano’s opinion significant weight,
stating that it was based on his evaluation of plaintiff and consistent with the medical
evidence of record. Dkt. #7, p.22.

Dr. Tzetzo completed a psychiatric review technique on September 18,
2015. Dkt. #7, p.100. In addition to Dr. Fabiano’s report, Dr. Tzetzo reviewed records
from Lakeshore Behavioral Health, and noted that plaintiff was attending life skills

classes and pre-collegiate classes through the City Mission. Dkt. #7, p.100. Dr. Tzetzo
determined that plaintiff would be moderately limited in his ability to, inter alia:
maintain attention and concentration for extended periods
of time;
perform activities within a schedule, maintain regular
attendance, and be punctual to customary tolerances;
work in coordination with or in proximity to others without
being distracted by them;
complete a normal workday and workweek without
interruptions from psychologically based symptoms and to
perform at a consistent pace without an unreasonable
number and length of rest periods;
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interact appropriately with the general public;
accept instructions and respond appropriately to criticism
from supervisors;
get along with coworkers or peers without distracting them or
exhibiting behavioral extremes;
maintain socially appropriate behavior and adhere to basic
standards of neatness and cleanliness; and
respond appropriately to changes in the work setting.
Dkt. #7, p.100. Dr. Tzetzo opined that plaintiff appeared capable of handling simple
work tasks and that his
ability to deal with co-workers and the public would be
somewhat reduced, but adequate to handle brief and
superficial contact. Similarly, his ability to tolerate and
respond appropriately to supervision would be reduced, but
adequate to handle ordinary levels of supervision in the
customary work setting.
Dkt. #7, p.101. The ALJ afforded Dr. Tzetzo’s opinion partial weight, indicating that Dr.
Tzetzo’s opinion regarding plaintiff’s time off task is not consistent with the medical
evidence of record. Dkt. #7, p.21-22.
The medical record reveals that plaintiff presented to Buffalo General
Hospital for a psychiatric evaluation on November 17, 2014 at the recommendation of
his pastor at the City Mission prior to starting a new employment program. Dkt. #7,
p.344. Plaintiff was referred for inpatient admission at ECMC because it was
determined that a higher level of care was required, but was permitted to leave against
medical advice after it was determined that he did not meet the criteria for involuntary
admission. Dkt. #7, pp.316 & 347.
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Plaintiff began treatment with Lake Shore Behavioral Health on February
4, 2015 for treatment of major depression, generalized anxiety and PTSD. Dkt. #7,
pp.319 & 330. On February 16, 2015, Psychiatric Nurse Practitioner (“PNP”), Suzanne
Miller opined that plaintiff’s depressive and anxious symptoms cause a significant
inability for him to function and maintain employment. Dkt. #7, p.327. On March 9,

2015, plaintiff was observed to be restless, with no significant improvement since
starting medication three weeks prior. Dkt. #7, pp.447-448. On March 23, 2015, PNP
Miller observed that plaintiff was fidgety and wringing his hands and noted that plaintiff’s
focus and concentration remain poor1 and that plaintiff continued to deny any significant
improvement in symptoms. Dkt. #7, p.449. As of July 28, 2015, plaintiff was “still
working on finding the most appropriate combination of medications to best help with
his symptoms.” Dk. #7, p.443.

On March 1, 2016, plaintiff reported that his anxiety symptoms were

beginning to improve on his current medications, but his depression had not improved
much. Dkt. #7, p.470. On May 10, 2016, plaintiff’s medication was adjusted to address
an increase in depression with poor sleep, appetite and energy as well as dissociative
symptoms. Dkt. #7, p.473. On May 23, 2016, plaintiff reported that he was feeling less
depressed, sleeping better and not feeling as agitated, but was increasingly isolated.
Dkt. #7, p.474. On June 16, 2016, plaintiff continued to report overall avoidant tactics to
cope with his symptoms, describing himself as frequently isolative and rarely leaving his

1 Plaintiff’s attention and concentration were noted within normal limits between
February 2, 2016 and May 23, 2016. Dkt. #7, pp. 468, 470, 472 & 474.
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home. Dkt. #7, p.444. Because of his level of instability, exploration of the impact of
plaintiff’s history of trauma on his ability to function was deferred. Dkt. #7, p.445.

On September 9, 2016, plaintiff’s Crisis Counselor at Lakeshore
Behavioral Health Center, Alexis Lutrell Brown, completed a discharge summary for

plaintiff after he missed several scheduled appointments with her and PNP Miller. Dkt.
#7, p.417. Ms. Brown opined that plaintiff
made limited progress during the course of the treatment
episode as he experienced various barriers to change and
experienced limited success with the use of medications.
There was some question as to whether he was in need of a
higher level of care which should continue to be evaluated
should he return to [treatment].
Dkt. #7, p.418. She further noted that when she last spoke to him, plaintiff reported that
he was no longer taking any of his prescribed medications. Dkt. #7, p.418.
Plaintiff returned to his primary care physician, Dr. Vazquez, on November
17, 2016. Dkt. #7, p.381. Dr. Vazquez observed that plaintiff appeared anxious and
uncomfortable and opined that his anxiety disorder, depression and PTSD had
worsened. Dkt. #7, pp.383-385. Dr. Vazquez renewed plaintiff’s psychiatric medication
and referred him for psychiatric treatment. Dkt. #7, pp. 383-385. Dr. Vazquez assessed
plaintiff’s condition as stable on December 21, 2016. Dkt. #7. p.389. On January 26,
2017, Dr. Vazquex observed that plaintiff appeared uncomfortable and assessed his
condition as worsened. Dkt. #7, pp.393-394 On February 18, 2017, plaintiff reported
that his depression had improved and was rated as mild, but his anxiety continued to be
rated as moderate. Dkt. #7, p.396.
On November 14, 2017, plaintiff presented for an initial psychiatric
evaluation with Dr. Cowan at BestSelf Behavioral Health. Dkt. #7, p.490. He was
observed to be angry and hostile. Dkt. #7, pp.494 & 496. Dr. Cowan’s impression was
that plaintiff’s depressive and anxious symptoms cause a significant inability for him to
function and maintain employment. Dkt. #7, p.495. Dr. Cowan commented that

As history of recent years appears to demonstrate, he has
not been helped with current pattern of out-patient
treatment. I do not regard him as reliable. Earlier reports
indicate that he was not so belligerent, but even when he
was more agreeable, treatment was not effective. I think he
needs a PROS program2 that he attends 3d/w so staff can
really get to know him to sort out what are significant
[symptoms] versus non-significant [symptoms]. I told him
that he is too young to retire, that he has a good brain with
which he can perform a job, and needs a job, that medicine
alone would not fix him. He commented that a job would
interfere with Disability Income that he is trying to secure.
Dkt. #7, p.496.
The ALJ’s determination that Dr. Tzetzo’s opinion regarding plaintiff’s time
off task is not consistent with the medical evidence of record is not supported by
substantial evidence. To the contrary, plaintiff’s referral for inpatient psychiatric
treatment on November 17, 2014 (Dkt. #7, pp.316 & 347); PNP Miller’s opinion on
February 16, 2015 that plaintiff’s depressive and anxious symptoms cause a significant
2 The Personalized Recovery Oriented Services (“PROS”), program is a comprehensive
model that integrates rehabilitation, treatment and support services for individuals with serious
mental illnesses, with a goal of promoting independence and improving quality of life through,
inter alia, social and basic life skills training, problem solving and coping skills, housing
assistance, vocational training, clinical counseling and health assessment and symptom
monitoring and medication management. www.omh.ny.gov
inability for him to function and maintain employment (Dkt. #7, p.327); treatment notes
from June 16, 2016 noting plaintiff’s isolation and level of instability (Dkt. #7, pp.444-
445); PNP Miller’s question as to whether plaintiff was in need of a higher level of care
than he had been receiving (Dkt. #7, p.418); and Dr. Cowan’s impression on November
14, 2017 that plaintiff’s depressive and anxious symptoms cause a significant inability

for plaintiff to function and maintain employment, along with a recommendation that
plaintiff enroll in a PROS program (Dkt. #7, p.496), all support a determination that
plaintiff would be significantly limited in his ability to complete a normal workday and
workweek without interruptions from his mental impairments. Such a determination is
also consistent with Dr. Fabiano’s opinion that plaintiff would have moderate limitations
in his ability to maintain attention and concentration and that plaintiff’s psychiatric
problems may be significant enough to interfere with his ability to function on a daily
basis. Dkt. #7, p.375.

While Dr. Tzetzo’s assessment of moderate limitations does not
necessarily mean that plaintiff’s capacity is at a level that is unacceptable to the
workforce, remand is required to clarify the impact of such functional limitations on
plaintiff’s capacity to work on a sustained basis. See Smith v. Comm’r of Soc. Sec’y,
631 F.3d 632, 637 (3d Cir. 2010) (noting that guidance from SSA indicates that
moderately limited should be selected when an individual’s capacity to perform the
activity is impaired and that the degree and extent of such capacity or limitation must be
described in the narrative format of the Mental Residual Functional Capacity
Assessment); Hunter v. Berryhill, 373 F.Supp.3d 393, 397 (E.D.N.Y. 2019) (remanding

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for clarification as to whether plaintiff’s difficulty maintaining attention and concentration
would preclude ability to work on a sustained basis); See also Williams v. Comm’r of
Soc. Sec’y, 18-CV-1027, 2020 WL 4904947, at *6 (W.D.N.Y. Aug. 20, 2020)
(recognizing that although moderate limitations in work-related functions do not

necessarily prevent a claimant from performing unskilled simple and repetitive tasks, an
ALJ must explain how plaintiff would be able to perform such work despite his
difficulties in, inter alia, completing a normal workday).

CONCLUSION
Based on the foregoing, plaintiff’s motion for judgment on the pleadings
(Dkt. #8), is granted in so far as plaintiff seeks remand for further proceedings and the
Commissioner’s motion for judgment on the pleadings (Dkt. #9), is denied.

The Clerk of the Court is directed to close this case.

SO ORDERED.

DATED: Buffalo, New York
September 23, 2020
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10362778. Public record. Not legal advice.