Velasquez v. Astrue

Filing 13

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered denying 9 Motion to Remand ; granting 11 Motion for Order Affirming Decision of Commissioner (Woodlock, Douglas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JOSE SERPA VELASQUEZ

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Plaintiff,
v.
MICHAEL J. ASTRUE
Defendant.

Civil Action NO.
10-10765-DPW

MEMORANDUM AND ORDER
August 18, 2011
Plaintiff Jose Serpa Velasquez (“Plaintiff”) appeals the
final decision of the Commissioner of Social Security (the
“Commissioner”) denying his claim for Social Security Disability
Insurance (“SSDI”) and Supplemental Security Income (“SSI”).
Because I find that the Commissioner’s denial is supported by
substantial evidence, I affirm the decision.
I. BACKGROUND
A. Medical History
1.

Mental Impairments

Plaintiff has a history of substance abuse and mental health
issues.

See generally Progress Notes, Dept. Veterans Affs., Exs.

F1-F3, A.R. 289-556.

As part of his treatment for alcohol abuse

provided by the Department of Veterans Affairs (“VA”) from 20032005, Plaintiff underwent periodic psychiatric evaluations.

Id.

At his first psychiatric evaluation after leaving the military,
Plaintiff reported anxiety, depression and alcohol abuse.

Psychiatry Admission Evaluation Note, Ex. F3, A.R. 482 (June 18,
2003), and he complained of depression periodically throughout
his treatment.

See Psychiatric Progress Notes, A.R. 338-39 (Jan.

3, 2005), A.R. 365 (Aug. 20, 2004), A.R. 392 (Mar. 25, 2004) A.R.
475 (June 23, 2003).

However, certain mental health evaluations

noted that Plaintiff did not feel depressed or anxious and that
he was “alert, coherent, spontaneous, cooperative and in no acute
distress.”

See, e.g., Psychiatric Progress Note, A.R. 374 (July

30, 2004).

Plaintiff was discharged from the VA’s substance

abuse program on June 6, 2005.

SATP Counseling Note, A.R. 302.

Between 2007 and 2009, three mental health professionals
preformed consultative examinations of Plaintiff and a fourth
provided treatment.

First, on December 28, 2007, psychologist

Robert Heskett conducted a psychodiagnostic interview of
Plaintiff.

Ex. 10F, A.R. 571-75.

In his report, Dr. Heskett

noted that Plaintiff worked 15-25 hours per week as a janitor and
that he reported only being able to work alone in positions which
involve little stress.

A.R. 571.

Dr. Heskett took a history and

observed that Plaintiff’s “facial expression suggestion
depression,” he had slow, monotonic speech, and he “presented
psychotic thinking,” including hearing people calling his name
and being able to talk with friends who had died.

A.R. 574.

Dr.

Heskett diagnosed Plaintiff with chronic post-traumatic stress
disorder; a major depressive disorder, severe with psychotic

2

features; a panic disorder with agoraphobia; and an adjustment
disorder.

A.R. 574.

He assigned a Global Assessment of

Functioning (“GAF”) score of 45 to Plaintiff.1
The second examination was performed by Dr. Sheree Estes on
July 19, 2008.

Ex. 22F, A.R. 631-35.

At the time, Plaintiff was

working 15-20 hours per week and reported that he had no auditory
or visual hallucinations.

A.R. 632-33.

Dr. Estes found that he

had “some difficulties with attention, concentration and memory”
and “there are some levels of internal distraction, although he
performed reasonably well on Mini-Mental Status Examination.”
A.R. 634.

Dr. Estes diagnosed Plaintiff with “major depressive

disorder” and noted that he had “some slight PTSD issues related
to” his military services in Iraq.
of 55.

Id.

She assigned a GAF score

A.R. 635.

1

The GAF scale “consider[s] psychological, social, and
occupational functioning on a hypothetical continuum of mental
health–illness” expressed by a number 1-100. AM. PSYCHIATRIC ASS’N,
DIAGNOSTICS & STATISTICAL MANUAL OF MENTAL DISORDERS: DS-IV-TR 34 (4th ed.
text revision 2000). On the GAF scale 100 denotes superior
functioning and no symptoms, and 1 denotes an individual posing a
persistent danger of hurting one’s self or others, suicidal
potential, or a persistent inability to take care of one’s self.
The scores relevant to Plaintiff’s medical history range from 45
to 65. A score of 41-50 denotes “serious symptoms (e.g.,
suicidal ideation, severe obsessional rituals, frequent
shoplifting) OR any serious impairment in social, occupational,
or school functioning (e.g., no friends, unable to keep a job).”
Id. A score in the range of 51-60 denotes “moderate symptoms . .
. OR moderate difficulty in social, occupational, or school
functioning,” and a score in the range of 61-70 indicates “some
mild symptoms . . . OR some difficulty in social, occupational,
or school functioning . . . but generally functioning pretty
well, has some meaningful interpersonal relationships.” Id.
3

In June 2009, Plaintiff began treatment with Dr. Guillermo
Gonzalez.

Psychiatric Evaluation Report, Ex. 34F, A.R. 694-97,

(June 3, 2009).

In his initial assessment, Dr. Gonzalez gave

Plaintiff a GAF score of 50 and noted marked restrictions in his
activities of daily living and marked difficulties in maintaining
social functioning.

A.R. 694-97.

The record includes Dr.

Gonzalez’s notes from six sessions with Plaintiff between June
and October of 2009.

A.R. 689-697.

In each session after the

initial assessment, Dr. Gonzalez noted that Plaintiff had only
moderate restrictions on daily activities and moderate difficulty
in maintaining social functioning.

A.R. 689-93.

In the second

session, Dr. Gonzalez assigned a GAF score of 50; in the third
and fourth sessions he assigned a score of 60; and on the last
session, he assigned a score of 65.2

A.R. 689-693.

On July 31, 2009, Plaintiff was evaluated by Dr. Barbara
Stelle for the purposes of assisting in the determination of
disability.
80.

Consultative Examination Report, Ex. 34F, A.R. 678-

Dr. Stelle concluded that “[t]he patient would appear to be

a poor occupational candidate at present” and diagnosed him with
chronic post-traumatic stress disorder; major depressive
disorder, recurrent with severe psychotic features; panic
disorder with agoraphobia; and adjustment disorder with mixed

2

Dr. Gonzalez did not assign a GAF score on Plaintiff’s
fifth visit. A.R. 690.
4

disturbance of emotions and conduct.
GAF score of 48.

Id.

A.R. 680.

She assigned a

On the day before, Dr. Gonzalez had

assigned a GAF score of 60 during a session with Plaintiff.

A.R.

692.
Massachusetts’ Disability Determination Services performed
a Mental Residual Functional Capacity Assessment on January 15,
2008.

Ex. 14F, A.R. 586-89.

The evaluator concluded, from the

information available at that time, that although Plaintiffs’
claims of depression had support in the clinical records, and
although he demonstrated difficulty concentrating, being in large
groups and dealing with increased stress, he appeared “able to
understand, remember and carry out at the very least simple basic
tasks,” “able to maintain adequate concentration/pace to simple
tasks for 2 hour intervals in an 8 hour day,” “to have the
capacity to relate adequately with others,” and “able to adapt
adequately to routine changes.”

A.R. 588.

At the hearing conducted by Administrative Law Judge Martha
Bower (the “ALJ”) in November of 2009 concerning Plaintiff’s
claim for disability, Dr. John Ruggiano, a psychiatrist,
testified as a medical expert.
A.R. 51-63.

Tr. of Oral Hearing Nov. 6, 2009,

Dr. Ruggiano noted that, despite Plaintiff’s claims

of mental illness, and the “severe pathology” described in the
2008 and 2009 consultative exam reports, he had not participated
in consistent treatment for those issues until after the first

5

hearing before the ALJ in May of 2009.

A.R. 52-53, 63.

In

addition, although there had been mentions of auditory
hallucinations in consultations and at the first session with
Plaintiff’s treating physician, Dr. Gonzalez, that issue did not
appear in subsequent session notes or any treatment records.
A.R. 52.
2.

Physical Impairments

Plaintiff has a history of obesity and degenerative disease
of the lumbar spine.

See generally Progress Notes, Dept.

Veterans Affs., Exs. F1-F3, A.R. 289-556.

His claimed physical

impairments also include hearing loss, penile cancer,
hypertension, sleep apnea, asthma, and headaches, but his appeal
does not address the ALJ’s findings with respect to physical
ailments other than his lumbar condition.

See generally Pl.’s

Br., Dkt. No. 10.
Plaintiff’s degenerative disease of the lumbar spine has
been documented through multiple diagnostic test results.

An MRI

in September 2003 revealed small posterior paracentral soft L2-L3
disc protrusion, prominent posterior L5-S1 disc bulge and
degenerative disc disease, and straightened lumbar curvature;
Plaintiff was diagnosed with lumbar spondylosis.

Physical

Medicine Rehab Attending Note, A.R. 386-87 (Apr. 8, 2004).

In

January 2004, an EMG revealed no evidence of L4-L5-S1
radiculopathy but did indicate left mid-lumbar L4-L5 increase

6

insertional activity.

Physical Medicine Rehab Diagnostic Study

Report, A.R. 412 (Jan. 29, 2004).

In February 2004, an x-ray

showed straightening of the cervical spine and degenerative
changes at C5-C6.

Radiology Report, A.R. 547 (Feb. 2, 2004).

In

June of 2004, a CT scan of Plaintiff’s lumbar spine revealed
degenerative disc disease at L4-5 and L5-S1 and right-sided
spondylolysis at L4 without significant spondylolisthesis.
Radiology Report, A.R. 543 (June 21, 2004).
In December 2007, Plaintiff underwent a medical consultative
examination performed by Dr. Simon Tenenbaum.
69.

Ex. 8F, A.R. 563-

At that consultation, Plaintiff complained of low back pain

and a neck ache that radiated to the head and caused daily
headaches.

A.R. 563

235 pounds.

Id.

At the time, Plaintiff was 5'5" and weighed

In the examination, Dr. Tenenbaum noted that

Plaintiff could not turn his head to the right or left beyond 75
degrees and was not able to bend at the waist beyond 80 degrees.
A.R. 564.

In addition, Plaintiff’s sensation was decreased on

the left side in the “distal region.”

Id.

An x-ray of the spine

indicated narrowing of the L4 transitional vertebra interspace.
A.R. 567-68.
In 2008, Plaintiff became a patient of Greater New Bedford
Community Health, and he was seen by Ann L. Leal, GNP, on May 6,
2008.

Ex. 16F, A.R 604-10.

weighed 247 pounds.

She examined him and noted that he

A.R. 606.

At that time, Plaintiff reported

7

back pain with left lower extremity parathesis.
recommended that Plaintiff lose wight.

Id.

Id.

Nurse Leal

In October 2008,

Plaintiff saw Nurse Leal again and reported intermittent back
pain that improved as he got up and moved around in the mornings.
Progress Note, Ex. 21 F, A.R. 626 (Oct. 17, 2008).

At that time,

Nurse Leal also noted that Plaintiff worked intermittently.

Id.

Dr. Parakrama Ananta examined Plaintiff in January of 2009.
Initial Outpatient Evaluation Note, Ex. 20F, A.R. 620-21.
Plaintiff complained of low back pain without significant
radiating symptoms, though he did report that he had discomfort
in the back and on the left side radiating into the buttock.
A.R. 620.

The physical evaluation revealed a moderate amount of

lumbar paraspinal spasm, limited range of motion, straight leg
raising to 90 degrees bilaterally, motor examination of grade 5
strength in bilateral lower extremities, and no significant
sensory deficits.

Id.

Dr. Ananta diagnosed Plaintiff with

degenerative joint disease and mechanical low back pain and
recommended that he be started in a pool therapy program.

A.R.

621.
B. Procedural History
On October 19, 2007, Plaintiff filed applications for SSDI
and SSI, claiming disability since July 9, 2004.

Application

Summary for Supplemental Security Income, Ex. 1D, A.R. 165-71;
Application Summary for Disability Insurance Benefits, Ex. 2D,
8

A.R. 172-79.

The claims were both denied at the initial level of

review on January 18, 2008, Disability Determination and
Transmittal, Exs. 1A & 2A, A.R. 86-87, and subsequently by the
Federal Reviewing Official on May 29, 2008.

Office of Federal

Reviewing Official, Notice of Unfavorable Decision, Ex. 3A, A.R.
88-93.

Plaintiff filed a written request for a hearing on June

19, 2008.

Ex. 6B, A.R. 105-106.

An initial hearing was held before the ALJ on May 28, 2009,
and a second hearing was held on November 6, 2009.

Decision in

the Case of Jose R. Serpa Velasquez, Office of Diability
Adjudication and Review (Nov. 23, 2009) (Bower, ALJ) [hereinafter
“ALJ Decision”].

At the hearings, the ALJ accepted testimony

from the Plaintiff, as well as a medical expert and a vocational
expert.

Id.

On November 23, 2009, she issued her decision

concluding that Plaintiff had not been disabled from July 9, 2004
through the date of the decision under the meaning of the Social
Security Act.

Id.

The ALJ determined that Plaintiff suffered from the
following severe impairments:

degenerative joint disease of the

spine, hearing loss, obesity, penile cancer as of December 2008,
and a post traumatic stress disorder.

Id. at 4.

Notwithstanding

these findings, the ALJ concluded that Plaintiff had the
“residual functional capacity to perform less than the full range
of light work,” as defined by regulation.

9

Id. at 5.

In

particular, she found that:
[Plaintiff] can lift and/or carry up to 10 pounds
frequently and 20 pounds occasionally, as well as sit
for at least 6 hours, and stand or walk for 6 hours in
an 8 hour workday. The claimant may only occasionally
climb, balance, kneel, stoop, crouch, and crawl. He
may perform occasional bilateral overhead reaching.
The claimant must avoid concentrated exposure to loud
noise. He has a moderate limitation in concentration,
persistence and pace, such that he can understand,
remember and carry out simple 1-2-3 step tasks not
involving independent judgment. The claimant also has
a moderate limitation in social interactions, requiring
an object oriented task with only occasional work
related interactions with supervisors, co-workers, and
the general public.
Id.

The ALJ further concluded that, although Plaintiff could not

perform past relevant work, “there are jobs that exist in
significant numbers in the national economy that” Plaintiff can
perform.

Id. at 11.

The Decision Review Board selected

Plaintiff’s claim for review but did not complete its review
within 90 days; consequently at that point the ALJ’s decision
became final.

Notice of Decision Review Board Action, A.R. 1-3

(Mar. 8, 2010).
Plaintiff filed a timely complaint appealing the final
decision of the Social Security Administration on May 5, 2010.
Dkt. No. 1.

Following the filing of the administrative record,

the Plaintiff moved to reverse the decision, or in the
alternative, remand for further hearing.

Dkt. No. 9.

thereafter moved for an order affirming the decision.
11.

10

Defendant
Dkt. No.

II. LEGAL FRAMEWORK
A.

Standard for Entitlement to SSDI and SSI Benefits
The issue on appeal is whether the Plaintiff is “disabled”

for purposes of the Social Security Act and is therefore eligible
for SSDI and SSI benefits.

A “disability” is defined as an

inability “to engage in 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 at
least twelve months.

42 U.S.C. § 423(d)(2)(A) (providing the

definition with respect to SSDI); 42 U.S.C. § 1381c(a)(3)(A)
(same with respect to SSI).

An individual may only be considered

“under a disability” for purposes of receiving benefits if “his
physical or mental impairment or impairments are of such severity
that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists in the
national economy.”

42 U.S.C. §§ 423(d)(2)(A), 1381c(a)(3)(B).

The Commissioner has adopted a five-step analysis for
determining whether an individual is disabled.
404.1520(a), 416.920(a).

20 C.F.R. §§

The determination of disability may be

made at any point in the sequential evaluation process; that is,
if the Social Security Administration can determine that an
individual is or is not disabled at a step, the decision is made

11

and it is not necessary to move to subsequent steps.

Id. §§

404.1520(a)(4); 416.920(a)(4).
Under the first step, if the individual is engaged in
“substantial gainful activity,” he or she is not disabled.

Id.

The second and third steps consider the severity of the alleged
impairment.

Under the second step, if the Plaintiff does “not

have a severe medically determinable physical or mental
impairment that meets the duration requirement . . . or a
combination of impairments that is severe and meets the duration
requirement” the individual is not disabled.

Id.

Under the

third step, if an impairment meets or is equal to an impairment
specifically listed in the regulations and meets the durational
requirement, the individual is deemed disabled.

Id.

At the fourth step, the claimant’s residual functional
capacity is determined, and if, given this determination, the
claimant is capable of performing his or her past relevant work,
he or she is not disabled.

Id.

The fifth step considers the

residual functional capacity as well as age, education and work
experience to determine whether the claimant can make an
adjustment to other work; if an adjustment can be made the
individual is not disabled, and if an adjustment cannot be made,
the individual is disabled.

Id.

If an applicant shows that he

or she is unable to perform past relevant work under step four of
the analysis, the Commissioner must come forward with evidence of
12

the existence of specific jobs in the national economy that the
applicant would be able to perform.

See Seavey v. Barnhart, 276

F.3d 1, 5 (1st Cir. 2001).
B.

Standard of Review of ALJ’s Decision
Judicial review of social security disability determinations

is authorized by the Social Security Act, 42 U.S.C. § 405(g),
which provides this court with the “power 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.”

The factual findings of the Commissioner must be

treated as conclusive if “supported by substantial evidence.”
Id.

Review is “limited to determining whether the ALJ used the

proper legal standards and found facts based on the proper
quantum of evidence.”

Ward v. Comm’r of Soc. Sec., 211 F.3d 652,

655 (1st Cir. 2000); see also Seavey, 276 F.3d at 9.
Substantial evidence exists where, “‘a reasonable mind,
reviewing the record as a whole, could accept it as adequate to
support [the Commissioner’s] conclusion.’”

Irlanda Ortiz v.

Sec’y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991)
(per curiam) (quoting Rodriguez v. Sec’y of Health & Human
Servs., 647 F.2d 218, 222 (1st Cir. 1981)); see also Doyle v.
Paul Revere Life Ins. Co., 144 F.3d 181, 184 (1st Cir. 1998)
(“Substantial evidence . . . means evidence reasonably sufficient
13

to support a conclusion.”).

In contrast, the court is not bound

by factual findings that are “derived by ignoring evidence,
misapplying law, or judging matters entrusted to experts.”
Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (per curiam).
III. ANALYSIS
Plaintiff challenges the ALJ’s findings with respect to the
severity of his physical and mental impairments.

He appears to

argue, first, that his mental impairment meets the criteria of
listing 12.06 of Appendix 1 to Subpart P of the Social Security
Regulations at 20 C.F.R. Part 404, and therefore qualify him as
disabled under step three of the five-step analysis.

He also

argues that the ALJ improperly discounted the severity of both
his mental health impairment and his lumbar condition in arriving
at her assessment of residual functional capacity.
A. Assessment of Mental Impairment
In the third step of her analysis, the ALJ considered
several listings of impairments set out in the Social Security
Administration’s regulations to determine whether Plaintiff’s
impairments met or were equal to those described conditions.
Decision at 4-5.

ALJ

The listings she examined included one mental

health listing, at 12.06, which describes anxiety related
disorders.

Id.

In order to meet the required level of severity

of listing 12.06, a claimant must experience the signs and
symptoms in paragraph A as well as the functional impairments

14

described in either paragraph B or C.
P, Appx. 1, Listing 12.06.

20 C.F.R. Pt. 404, Subpt.

The ALJ did not address whether the

claimant displayed the signs or symptoms in paragraph A, and so
for purposes of my analysis I will assume that she found that
Plaintiff satisfied that component of the listing.
The ALJ analyzed Plaintiff’s impairment under paragraph B.3
ALJ Decision at 5.

Paragraph B provides that a qualifying

disorder must result in at least two of the following conditions:
(1) “Marked restriction of activities of daily living;” (2)
“Marked difficulties in maintaining social functioning;” (3)
“Marked difficulties in maintaining concentration, persistence,
or pace;” or (4) “Repeated episodes of decompensation, each of
extended duration.”

The ALJ observed that “marked” means more

than moderate but less than extreme on the scale for evaluating
mental impairments.

Id. at 4; see 20 C.F.R. Pt. 404 Subpt. P,

Appx. 1, Listing 12.00(C).

“Episodes of decompensation” are

defined as “exacerbations or temporary increases in symptoms or
signs accompanied by a loss of adaptive functioning, as
manifested by difficulties in performing activities of daily
living, maintaining social relationships, or maintaining
concentration, persistence, or pace.”

3

Id. 12.00(C)(4).

As the

The ALJ summarily concluded that paragraph C, which
describes a disorder “[r]esulting in complete inability to
function independently outside the area of one’s home,” does not
apply to Plaintiff. ALJ Decision at 5. Plaintiff does not
dispute that this provision is inapplicable to his impairment.
15

ALJ noted, the phrase “repeated episodes of decompensation, each
of extended duration” is defined as three episodes in one year,
or an average of one over four months, each lasting at least two
weeks.

Id.; ALJ Decision at 4.

For purposes of both evaluating Plaintiff’s impairments in
light of listing 12.06 and determining his residual functional
capacity, the ALJ concluded that Plaintiff had the following
limitations as a result of his mental impairments: “mild
restriction of activities of daily living; moderate difficulties
in maintaining social functioning; moderate difficulties in
maintaining concentration, persistence or pace; and no episodes
of decompensation.”

ALJ Decision at 5.

The ALJ concluded that Plaintiff’s treatment history and
activities of daily living contradicted his assertions regarding
the limitation caused by his mental impairments.

The ALJ found

Plaintiff’s “statements concerning the intensity, persistence and
limiting effects” of his symptoms, including his symptoms related
to the mental impairment, “not credible.”

Id. at 6.

It is appropriate for the ALJ to make a determination of a
claimant’s credibility in light of the treatment history, daily
activities, and medical opinions provided.

See SSR 96-7p, 1996

WL 374186, at *1-2 (July 2, 1996) (“In determining the
credibility of the individual’s statements, the adjudicator must
consider the entire case record. . . . The determination or

16

decision must contain specific reasons for the finding on
credibility . . . .”).
In reaching her conclusion that Plaintiff’s claims lacked
credibility, the ALJ observed that Plaintiff did not participate
in consistent treatment for his claimed mental health problems
until June 2009, after the initial hearing, and was not on mental
health medication from July 2005 to June 2009.

Id. at 9.

She

also noted that he testified to using public transportation and
working part time from February to November 2008 as a janitor in
a movie theater.

Id.

During the time period for which he

claimed disability, Plaintiff also reported that he handled his
personal care, cleaned, shopped, handled finances, read, watched
television, played dominos, talked to his parents, sister and
occasionally his children, wrote his thoughts down, listened to
the radio, and sometimes went out with his parents.
Exs. 9E, 22F).

Id. (citing

In addition to his work at the movie theater in

2008, he also worked there part time in 2007 and was a part time
security guard in 2007.
10D).

Id. at 10 (citing Exs. 6D, 8D, 9D, and

The ALJ concluded that these factors indicated Plaintiff’s

“symptoms are not as severe as alleged.”

Id.

The ALJ also relied on the treatment records of Dr.
Gonzalez, which “consistently noted” that Plaintiff had only
“moderate limitations in his daily activities;” the Disability
Determination Services psychological consultant’s evaluation; and

17

the testimony of Dr. Ruggiano.

Id.

She gave these pieces of

evidence “significant probative weight,” or alternatively stated,
“substantial probative value,” because they were generally
consistent with the record as a whole.

Id. at 10-11; see 20

C.F.R. §§ 404.1527(d), (f) (setting out criteria for weighing
medical opinions).
Plaintiff argues that his testimony with respect to his
mental impairment is corroborated by the consultative
examinations by Drs. Heskett, Estes, and Stelle, and that the
reliance on Dr. Gonzalez’s treatment notes and the testimony of
the medical expert was misplaced.

He points out that Dr.

Gonzalez’s assessments were not supported by explanatory notes,
unlike those produced in the three consultative examinations, and
that Dr. Ruggiano’s expert testimony should be disregarded
because he could not rebut the consultative exams and because he
exhibited bias towards Plaintiff.
The ALJ considered the consultative evaluations performed in
2007, 2008 and 2009 as well as Plaintiff’s treatment history at
the VA.

ALJ Decision at 8-9.

It is the responsibility of the

ALJ “to determine issues of credibility and to draw inferences
from the record evidence,” and to resolve “conflicts in the
evidence.”

Irlanda Ortiz, 955 F.2d at 769.

There were several

conflicts in the evidence presented to the ALJ.

For example, Dr.

Stelle’s consultative examination on July 31, 2009, at which she

18

assigned a GAF of 48, Ex. 32F, A.R. 680, differed considerably
from the assessment by Dr. Gonzalez from a session the day
before, at which he assigned a GAF of 60.
34F, A.R. 692.

Progress Note, Ex.

The ALJ noted that Dr. Stelle’s conclusion that

Plaintiff would be a “poor occupational candidate at present,”
Consultative Examination Report, Ex. 32F, A.R. 680, is “not
supported by and is not consistent with the record as a whole”
and is therefore “not entitled to significant probative weight.”
ALJ Decision at 10.
Another conflict existed between Dr. Heskett’s conclusions
regarding the severity of Plaintiff’s impairments and the fact
that, at the time of the evaluation, Plaintiff was employed as a
janitor.

Finally, as noted, the Plaintiff’s own statements

contradicted his treatment history and his daily activities
throughout the time period.

I find that the ALJ’s resolution of

these conflicts and determinations with respect to Plaintiff’s
mental impairment are supported by substantial evidence.

She

adequately evaluated and weighed all of the evidence in arriving
at her conclusion.

In particular, she gave specific reasons for

concluding that Plaintiff’s assertions were not credible.4

4

Plaintiff argues that Dr. Ruggiano exhibited “significant
bias towards social security claimants,” pointing to the
following statement made at the hearing: “There is such a
contrast that it makes me, if I needed to interpret it, I would
say he’s doing what most people do who apply for benefits,
putting his worst foot forward.” Tr. of Oral Hearing Nov. 6,
2009, A.R. 61. Plaintiff fails to demonstrate that the ALJ
19

B. Assessment of Physical Impairment
With respect to the assessment of his physical impairments,
Plaintiff argues that the ALJ “improperly discounted the severity
of the lumbar condition,” pointing to the diagnostic results of
his x-rays, MRI, CT scan, and EMG.

Plaintiff asserts that the

residual functioning capacity for his degenerative disease of the
spine should have been assessed as more restrictive.
The ALJ considered the diagnostic results cited by
Plaintiff, as well as the examinations performed by Dr.
Tenenbaum, Nurse Leal, and Dr. Anata.

ALJ Decision at 6-7.

The

ALJ concluded that, as with the mental impairment, the record did
not support Plaintiff’s allegations of disability.

Id. at 9.

She noted that Plaintiff had apparently not followed the
recommendations of Dr. Anata to participate in aqua or physical
therapy, that he was not on pain medication nor had he received
any physical therapy or injections for his lumbar pain during the
relevant time period.

Id.

Despite repeated recommendations to

lose weight, he had not done so in any significant amount.

Id.

In addition, the ALJ noted that, as with Plaintiff’s mental
impairment, his exertions in part-time work and recreational
activities was inconsistent with the claimed limitations.

Id. at

improperly relied on this portion of Dr. Ruggiano’s testimony (or
relied on it at all), or that the statement unduly influenced the
outcome of the hearing. Consequently, I find no error in the use
the ALJ actually made of Dr. Ruggiano’s testimony.
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9-10.

The ALJ noted a lack of evidence describing Plaintiff’s

physical limitations at the level claimed.

Id. at 10.

She found

that the Disability Determination Services report concluding
Plaintiff could perform light exertional work activity with
occasional overhead reaching bilaterally was supported by and
consistent with the record as a whole.

Id.5

Contrary to Plaintiff’s assertions, the results of the xrays, CT scan, MRI and EMG are not independently conclusive of
the severity of Plaintiff’s impairment.

Plaintiff offers no

direct evidence supporting his claimed limitations.

I find that

the ALJ considered the entire record, including the diagnostic
results cited by Plaintiff in his brief, and that her conclusion
with respect to the physical residual functional capacity is
supported by substantial evidence.

Here again, she gave specific

reasons for finding Plaintiff’s assertions were not credible.
IV. CONCLUSION
For the reasons explained herein, I conclude that the ALJ
had substantial evidence to conclude that Plaintiff was not
disabled.

I therefore GRANT Defendant’s motion for an order

5

The ALJ, in fact, went beyond the Disability
Determination Services assessment of physical residual functional
capacity. She notes that the assessment pre-dated the evaluation
of Plaintiff’s hearing and so did not include noise limitations
which she independently incorporated in the residual functional
capacity. ALJ Decision at 10. In addition, the ALJ found that
Plaintiff had postural limitations beyond those found by DDS.
Id.
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affirming the decision of the Commissioner (Dkt. No. 11) and DENY
Plaintiff’s motion for an order to reverse, or in the alternative
remand, the decision (Dkt. No. 9).

/s/ Douglas P. Woodlock
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

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