# Cortez v. Commissioner of Social Security

> District Court, W.D. New York · September 29, 2020

URL: https://www.frixlaw.com/law-library/cases/10362860

## Case

- **Court:** District Court, W.D. New York
- **Decided:** September 29, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10362860

## How later opinions describe it (automated extraction)

- holding that “an ALJ cannot reject a treating physician’s diagnosis without first attempting to fill any clear gaps in the administrative record”

## Opinion text

UNITED STATES DISTRICT COURT
W ESTERN DISTRICT OF NEW YORK

LUIS CORTEZ,

Plaintiff,
v.
19-CV-214
COMMISSIONER OF SOCIAL SECURITY,

Defendant.

DECISION AND ORDER

Pursuant to 28 U.S.C. § 636(c), the parties have consented to have the
undersigned conduct any and all further proceedings in this case, including entry of final
judgment. Dkt. No. 11. Luis Cortez (“Plaintiff”), who is represented by counsel, brings this
action pursuant to the Social Security Act (“the Act”) seeking review of the final decision of
the Commissioner of Social Security (“the Commissioner”) denying his application for
benefits. This Court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g).
Presently before this Court are the parties’ competing motions for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Dkt. Nos. 7, 9.
For the following reasons, Plaintiff’s motion (Dkt. No. 7) is granted, and the
Commissioner’s motion (Dkt. No. 9) is denied.

BACKGROUND
On August 5, 2015, Plaintiff filed for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”), alleging that he became disabled on April 15, 2014
by herniated discs, back pain/inflammation, mood swings, weight gain, and partial tears in
both knees and ankles. Tr. at 218, 220, 265, 273.1 Plaintiff’s claims were denied at the
initial level and he requested review. Tr. at 160-61. Administrative Law Judge Mary
Mattimore (“the ALJ”) conducted an in-person hearing on December 22, 2017. Tr. at 57-
117. Plaintiff, who was represented by counsel, testified as did an impartial vocational
expert. Tr. at 57-117. On February 23, 2018, the ALJ issued a decision in which she
found that Plaintiff was not disabled and, therefore, not entitled to benefits. Tr. at 10-33.
The Appeals Council denied Plaintiff’s request for review, making the ALJ’s determination

the final decision of the Commissioner. Tr. at 1-7. Plaintiff thereafter commenced this
action seeking review of the Commissioner’s decision. Dkt. No. 1.

LEGAL STANDARD
Disability Determination
An ALJ must follow a five-step process to determine whether an individual is
disabled under the Act. See Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). At step
one, the ALJ must determine whether the claimant is engaged in substantial gainful work
activity. See 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. If not, the ALJ

proceeds to step two and determines whether the claimant has an impairment, or
combination of impairments, that is “severe,” meaning that it imposes significant
restrictions on the claimant’s ability to perform basic work activities. 20 C.F.R. §
404.1520(c). If the claimant does not have a severe impairment or combination of

1 Citations to “Tr. at __” refer to the pages of the administrative transcript, which appears at Docket
No. 6.
2
impairments, the analysis concludes with a finding of “not disabled.” If the claimant does,
the ALJ continues to step three.

At step three, the ALJ examines whether the claimant’s impairment meets or
medically equals the criteria of a listed impairment in Appendix 1 of Subpart P of
Regulation No. 4 (the “Listing”). 20 C.F.R. § 404.1520(d). If the impairment meets or
medically equals the Listing criterion and meets the durational requirement (20 C.F.R.

§ 404.1509), the claimant is disabled. If not, the ALJ determines the claimant’s residual
functional capacity (“RFC”), which is the ability to perform physical or mental work activities
on a sustained basis, notwithstanding limitations for collective impairments. See 20 C.F.R.
§ 404.1520(e)-(f).

The ALJ then proceeds to step four and determines whether the claimant’s
RFC permits him or her to perform the requirements of his or her past relevant work. 20
C.F.R. § 404.1520(f). If the claimant can perform such requirements, then he or she is not
disabled. If not, the analysis proceeds to the fifth and final step, wherein the burden shifts

to the Commissioner to demonstrate that the claimant “retains a residual functional
capacity to perform alternative substantial gainful work which exists in the national
economy” in light of the claimant’s age, education, and work experience. See Rosa v.
Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quotation marks omitted); see also 20 C.F.R.
§ 404.1560(c).

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District Court Review
42 U.S.C. § 405(g) authorizes a district court “to enter, upon the pleadings
and transcript of the record, a judgment affirming, modifying, or reversing the decision of
the Commissioner of Social Security, with or without remanding the cause for a rehearing.”
42 U.S.C. § 405(g) (2007). Section 405(g) limits the scope of the Court’s review to two
inquiries: whether the Commissioner’s conclusions were based upon an erroneous legal
standard, and whether the Commissioner’s findings were supported by substantial

evidence in the record as a whole. See Green-Younger v. Barnhart, 335 F.3d 99, 105-106
(2d Cir. 2003). Substantial evidence is “more than a mere scintilla.” Moran v. Astrue, 569
F.3d 108, 112 (2d Cir. 2009). “It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Id. (emphasis added and citation
omitted). The substantial evidence standard of review is a very deferential standard, even
more so than the “clearly erroneous” standard. Brault v. Comm’r of Soc. Sec., 683 F.3d
443, 447-48 (2d Cir. 2012) (citing Dickinson v. Zurko, 527 U.S. 150, 153 (1999)).

When determining whether the Commissioner’s findings are supported by

substantial evidence, the Court’s task is “‘to examine the entire record, including
contradictory evidence and evidence from which conflicting inferences can be drawn.’”
Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (quoting Mongeur v. Heckler, 722 F.2d
1033, 1038 (2d Cir. 1983) (per curiam)). If there is substantial evidence for the ALJ’s
determination, the decision must be upheld, even if there is also substantial evidence for
the Plaintiff’s position. See Conlin ex rel. N.T.C.B. v. Colvin, 111 F. Supp. 3d 376, 384
(W.D.N.Y. 2015). Likewise, where the evidence is susceptible to more than one rational

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interpretation, the Commissioner’s conclusion must be upheld. See, e.g., Rutherford v.
Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

DISCUSSION AND ANALYSIS
The ALJ’s Decision
The ALJ analyzed Plaintiff’s claims using the familiar five-step process
described above. Lynch v. Astrue, No. 07-CV-249, 2008 WL 3413899, at *2 (W.D.N.Y.

Aug. 8, 2008) (detailing the five steps). At step one, the ALJ found that Plaintiff has not
engaged in substantial gainful activity since the amended alleged onset date, April 15,
2014. Tr. at 16. At step two, she found that Plaintiff had the following severe impairments:
cervical spine herniated and disc bulges; lumbar spine disc displacement and
radiculopathy; traumatic arthropathy; myofascial pain syndrome; bilateral knee partial tears
and tendinopathy and internal derangement of the left knee; arthritis; and receptive and
expressive language disorders. Tr. at 16-17.2 The ALJ found that Plaintiff’s adjustment
disorder with depression and history of substance abuse were non-severe based on
Plaintiff’s testimony that he did not have any significant limitations from his depression and

that he had been clean and sober for over three years. Tr. at 16-17.

At step three, the ALJ concluded that Plaintiff’s impairments did not, either
individually or in combination, meet or equal the Listing criterion, giving special
consideration to Listing 1.02 (Major Dysfunction of a Joint), 1.04 (Disorders of the Spine)

2 This Court presumes the parties’ familiarity with Plaintiff’s medical history, which is detailed at
length in the papers.
5
12.02 (Neurocognitive Disorders); 12.04 (Depressive, Bipolar and Related Disorders) and
12.11 (Neurodevelopmental Disorders). Tr. at 17-18. Regarding the “paragraph B”
criteria, the ALJ found that Plaintiff had a mild limitation in three broad areas of functioning
(interacting with others; concentrating, persisting, or maintaining pace; and adapting or
managing oneself), and a moderate limitation in the area of understanding, remembering,
or applying information. Tr. at 19.

The ALJ found, based on the entire record and the vocational expert’s
testimony, that Plaintiff retained the RFC for sedentary work as defined in
20 C.F.R. § 404.1567(a) and 20 C.F.R. § 404.967(a), except that he requires occasional
use of a cane to ambulate; can occasionally climb stairs, ramps, ladders, ropes, and
scaffolds; can occasionally balance, stoop, kneel, crouch, and crawl; and can perform
simple, routine, and repetitive tasks consistent with unskilled work. Tr. at 20. Continuing
to the fourth step, the ALJ found that Plaintiff was able to perform jobs that exist in
significant numbers in the national economy, including the sedentary jobs of order clerk
(DOT 209.567-014), document preparer (DOT 249.587-018), and stuffer (DOT 731.685-

014). Tr. at 27. Accordingly, concluded the ALJ, Plaintiff was not under a disability from
April 15, 2014, through the date of her decision. Tr. at 24.

Judgment on the Pleadings
As noted above, the parties have cross-moved for judgment on the
pleadings. Dkt. Nos. 7, 9. Plaintiff argues that the ALJ relied on stale medical opinion
evidence in making her physical RFC finding, and that she substituted her own lay

6
judgment for that of the speech and language pathologist. Dkt. No. 7-1, pp. 9-16. The
Commissioner contends that the ALJ’s determination that Plaintiff is not disabled is
supported by substantial evidence, and that the ALJ properly evaluated the opinion
evidence of the pathologist. Dkt. No. 9-1, pp. 7-18. Having reviewed the record in its
entirety, this Court finds that the opinion evidence upon which the ALJ relied in rendering
the RFC was stale and that this erroneous reliance requires remand.

The ALJ’s Physical RFC Assessment
As the ALJ noted in her decision, Plaintiff alleges an inability to work based
on physical and mental impairments. Tr. at 21. The record shows that Plaintiff was
involved in several accidents, which caused him physical injury. Tr. at 70. For example,
Plaintiff was struck by a vehicle while riding on a bicycle in April of 2014; was hit by a car
as a pedestrian in May of 2017, resulting in back and neck injuries; and fell off a ladder
and fractured his left tibia, requiring surgery, in August of 2017. Tr. at 70, 372, 376, 377,
427. The ALJ acknowledged these accidents in her opinion. Tr. at 21.

In formulating the RFC, the ALJ afforded “great weight” to only one medical
opinion relating to Plaintiff’s physical limitations, specifically, the assessment of consulting
examiner, Dr. Hongbiao Liu, who opined in November of 2015, that Plaintiff has moderate
limitations for prolonged walking, bending, and kneeling. Tr. at 326-29. The ALJ explicitly
afforded “little weight” to (thus, essentially rejecting) the opinions of George Huckell, M.D.,
Pratibha Bansal, M.D., and Julius Horvath, D.C., Plaintiff’s treating physicians and
chiropractor, who all opined that Plaintiff was much more restricted in his physical abilities

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than Dr. Liu did. Tr. at 25, 340 (Dr. Huckell finding Plaintiff to be temporarily disabled on
June 11, 2014); 309 (Dr. Bansal concluding on August 5, 2014, that Plaintiff was 75%
temporarily impaired); 512 (Mr. Horvath indicating on May 25, 2017, that Plaintiff’s tear in
his knee and his herniated discs would disable him for approximately 4-6 months).

Plaintiff argues, and this Court agrees, that because Dr. Liu’s opinion
predated Plaintiff’s 2017 surgery for his fractured tibia, it cannot, as the only opinion

concerning Plaintiff’s functional limitations, constitute substantial evidence in support of the
RFC. Pagano v. Comm’r of Soc. Sec., No. 16-CV-6537-FPG, 2017 WL 4276653, at *5
(W.D.N.Y. Sept. 27, 2017) (citing cases for the proposition that “[a] stale medical opinion,
like one that is rendered before a surgery, is not substantial evidence to support an ALJ’s
finding”); Girolamo v. Colvin, No. 13-CV-06309 MAT, 2014 WL 2207993, at *8 (W.D.N.Y.
May 28, 2014) (holding that the ALJ should not have afforded great weight to medical
opinions rendered before the claimant’s second surgery). The record shows that in the
weeks following his surgery, Plaintiff presented to the emergency room with complaints of
pain in his left lower leg, that he could not walk on the leg three months after surgery, and

that when examined by Dr. Bansal at that time, he had tenderness on the medial malleoli,
pain on flexion, and tenderness on palpation of the medial aspect of his left leg. Tr. at 411,
413, 563. Moreover, post-surgical x-rays revealed some incomplete bridging callus
formation at the tibial and diaphyseal fractures. Tr. at 564.

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While the record does contain post-surgical x-rays and Doppler imaging
showing generally stable alignment of the left tibial open reduction and internal fixation and
normal blood flow (Tr. 564, 567), the ALJ, not being a medical professional, cannot
translate these bare medical findings into specific conclusions about Plaintiff’s functional
capacities. Cestare v. Colvin, No. 15-CV-6045P, 2016 WL 836082, at *2 (W.D.N.Y. Mar.
4, 2016) (citing Dailey v. Astrue, No. 09-CV-0099(A)(M), 2010 WL 4703599, at *11
(W.D.N.Y. Oct. 26, 2010) for the principle that “an ALJ is not qualified to assess a

claimant’s RFC on the basis of bare medical findings, and as a result[,] an ALJ’s
determination of RFC without a medical advisor’s assessment is not supported by
substantial evidence”). The ALJ’s rejection of all of the medical opinions related to
Plaintiff’s post-surgical physical functioning created a gap in the record that must now be
developed.3 Rosa, 168 F.3d at 79 (holding that “an ALJ cannot reject a treating
physician’s diagnosis without first attempting to fill any clear gaps in the
administrative record”).4 Accordingly, this case is remanded to the Social Security
Administration with directions to develop the record relating to Plaintiff’s post-surgical
physical limitations.

3 Because the ALJ rejected all of the post-surgical opinions, this case is distinguishable from
Johnson v. Colvin, 669 F. App’x 44, 46 (2d Cir. 2016), cited to by the Commissioner, where the
ALJ supported claimant’s RFC with a letter from the claimant’s doctor stating that he had “severe
functional limitations” prior to his aortic valve replacement surgery, but since that surgery had made
“clinical improvement.”
4 The Commissioner argues that because Plaintiff was represented by counsel and she did not
attempt to supplement the record relating to Plaintiff’s physical limitations following surgery,
remand is not warranted. This Court does not agree. It was the ALJ’s post-hearing rejection of the
post-surgical medical opinions that created the gap in the record, and, in any case, the duty to
develop a complete record applies even when the claimant is represented by counsel. Moran, 569
F.3d at 112.
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Having remanded on this basis, this Court need not reach Plaintiff’s
remaining argument regarding his mental deficits. Hooper v. Colvin, 199 F. Supp. 3d 796,
816 (S.D.N.Y. 2016). Instead, on remand, this Court directs the ALJ to reassess whether it
was appropriate to afford “limited weight” to the opinion of speech and language
pathologist, Justin Carr, CCC-SLP.

CONCLUSION

For the reasons stated herein, Plaintiff’s motion for judgment on the
pleadings (Dkt. No. 7) is hereby GRANTED, and the Commissioner’s motion for
Judgment on the pleadings (Dkt. No. 9) is DENIED. Consistent with the foregoing
decision, this matter is remanded to the Social Security Administration for an opinion
regarding Plaintiff’s post-surgical limitations and a reassessment of whether it was
appropriate to afford “limited weight” to the opinion of the speech and language
pathologist, Justin Carr, CCC-SLP. The Clerk of the Court is directed to close this case.

SO ORDERED.

DATED: Buffalo, New York
September 29, 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/10362860. Public record. Not legal advice.