CARTAGENA v. COMMISSIONER OF SOCIAL SECURITY
Filing
15
OPINION. Signed by Judge William J. Martini on 4/9/12. (gh, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
April ‘/,2012
MARTIN LUTHER KiNG JR FEDERAL BLDG & U S COURTHOUSE
50 WALNUT STREET, P0 BOX 419
NEWARK, NJ 07101-0419
(973) 645-6340
WILLIAM J. MARTINI
JUDGE
LETTER OPINION
Tracey Ellen Cahn
Law Offices of Barbara B. Comerford, PA.
6 Prospect Street, Suite 2B
Midland Park, NJ 07432
(Attorneyfor Plaintiff)
Maria Pia Fragassi-Santagelo
Office of the U.S. Attorney
Social Security Administration
26 Federal Plaza, Room 3904
New York, NY 10278
(Attorney for commissioner ofSocial Security)
RE:
C’artagena v. comm ‘r ofSoc. Sec.
Civil Action No. 2:10-cv-05712-WJM
Dear Counsel:
Standard of Review and the Social Security Legal Framework
Petitioner Roberto Cartagena brings this action pursuant to 42 U.S.C. §
405(g) and 1383(c)(3), seeking review of a final determination by the
Commissioner of Social Security (“Commissioner”) denying his application for
Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”).
There was no oral argument. See Fed. R. Civ. P. 78. For the following reasons, the
Commissioner’s decision is AFFIRMED.
I.
This Court has plenary review of the Administrative Law Judge’s (“AU”)
application of the law. See Schaudeck v. Comm ‘r ofSoc. Sec. Admiti., 181 F.3d
Factual and Procedural Background
429, 431 (3d Cir. 1999). When substantial evidence exists to support the AU’s
factual findings, this Court must abide by the AU’s determinations. Sykes v. Apfel,
228 F.3d 259, 262 (3d Cir. 2000) (citing 42 U.S. § 405(g)).
At the administrative level, a five-step process is used to determine whether
an applicant is entitled to benefits. 20 C.F.R. § 404.1520, 4 16.920. At Step One,
the AU determines whether the claimant has engaged in substantial gainful
activity since the onset date of the alleged disability. 20 C.F.R. § 404.1520(b),
416.920(b). If not, the AU moves to Step Two to determine if the claimant’s
alleged impairments qualify as “severe.” 20 C.F.R. § 404.1520(c), 4 16.920(c). If
the claimant has a severe impairment or impairments, the AU inquires at Step
Three as to whether the impairment or impairments meet or equal the criteria of
any impairment found in the Listing of Impairments. 20 C.F.R. Part 404, Subpart
P, Appendix 1, Part A. If so, the claimant is automatically eligible to receive
benefits and the analysis ends; if not, the AU moves on to Step Four. 20 C.F.R. §
404.1520(d), 416.920(d). At Step Four, the AU decides whether, despite any
severe impairment(s), the claimant retains the Residual Functional Capacity
(“RFC”) to perform past relevant work. 20 C.F.R. § 404.1520(e)-(f), 416.920(e)(f). The claimant bears the burden of proof at each of these first four steps. At Step
Five, the burden shifts to the Commissioner to demonstrate that the claimant is
capable of performing other jobs that exist in significant numbers in the national
economy in light of the claimant’s age, education, work experience, and RFC. 20
C.F.R. § 404.1520(g), 4 16.920(g); see Poitlos v. Comm ‘r ofSoc. Sec. Admin., 474
F.3d 88, 9 1-92 (3d Cir. 2007) (citations omitted).
II.
Mr. Cartagena applied for a period of disability, DIB, and SSI on February
10, 2006. In his applications, Mr. Cartagena claimed that he is entitled to DIB and
SSI beginning December 14, 2002 because of his diabetes. His claim was initially
denied on August 12, 2006 and again upon reconsideration on June 8, 2007. Mr.
Cartagena then filed a written request for an AU hearing on June 18, 2007. That
hearing took place on October 24, 2008 in Newark, New Jersey.
At the hearing, Mr. Cartagena claimed additional impairments, not part of
his original applications, including hypertension, lower back pain, wrist fractures,
depression, and possible substance abuse. After consulting the record and Mr.
Cartagena’s testimony, the AU ultimately determined that Mr. Cartagena was not
disabled. The AU recognized that Mr. Cartagena had certain impairments, but also
found that he had the residual functional capacity (“RFC”) to perform light work
activity limited to simple, routine, repetitive job tasks in a low stress work
environment with certain other social and environmental limitations. The Appeal’s
2
Legal Analysis
Council denied Mr. Cartagena’s request for review on September 8, 2010, after
which he filed this appeal.
Mr. Cartagena claims that the AU’s findings regarding his RFC as
explained in the June 2, 2009 decision are not supported by substantial evidence
for several reasons discussed below. Mr. Cartagena raises no other issues
concerning any of the AU’s other findings.
III.
A
The AU’s Development of the Record in Light of Mr. Cartagena’s
Pro Se Designation Was Not Erroneous.
Mr. Cartagena alleges that the AU failed to develop the record to the extent
required when a claimant appears pro Se. This argument is without merit.’
Where a claimant appears unrepresented, the AU has a duty to exercise “a
heightened level of care” and “assume a more active role” developing the record.
Smith v. Harris, 644 F.2d 985, 989 (3d Cir. 1981); Livingston v. calfano, 614 F.2d
342, 344 (3d Cir. 1980). The Third Circuit “does not prescribe any particular
procedures” for developing the pro se claimant’s record, but there are several
accepted steps the AU may take to fulfill this duty. See e.g. Reefer v. Barnhart
326 F.3d 376, 380 (3d Cir. 2003) (remanding AU determination due to a “wholly
inadequate” record). Most importantly, the AU should insure that the claimant
presents a complete medical history as required by statute. See 20 C.F.R. §
404.1512(d) (“Before we make a determination that you are not disabled, we will
develop your complete medical history. . .“); Money v. Barnhart, 91 F. App’x 210
(3d Cir. 2004) (finding AU evaluated enough records to meet standard for a
complete medical history); Reefer 326 F.3d at 376 (finding AU could have met
duty by requesting additional medical records). To complete the medical history,
the AU should also solicit testimony from the claimant at the hearing. See
Plummer v. Apfel, 186 F.3d 422, 434 (3d Cir. 1999) (finding AU could have met
duty to investigate by soliciting more testimony from claimant); Moran v. Astrue,
569 F.3d 108, 114 (2d Cir. 2009) (noting it was “especially important” for the AU
‘Mr. Cartagena also suggests that the AU did not designate him as a pro se claimant to begin with, yet this is
clearly false. The AU began the hearing by clarifying Mr. Cartagena’s right to attorney representation. (Tr. 31.) Mr.
Cartagena indicated that he understood his right and expressed his desire to have Ms. Ramos represent him. (Tr. 32.)
The AU explained that Ms. Ramos could assist as a non-attorney representative but reminded Mr. Cartagena that
“[s]he is, as she’s mentioned, I just want the record to be clear, not an attorney.” Id. The AU then clarified Mr.
Cartagena’s pro se designation by asking, “[a]nd you wish to proceed without an attorney?” to which Mr. Cartagena
responded, “Yes.” (Tr. 34.) The final opinion also reflects Mr. Cartagena’s pro se designation. (Tr. 10.) (“Although
informed of the right to representation, the claimant chose to appear and testify without the assistance of an attorney
or other representative.”)
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to help pro se claimant develop testimonial record). Additionally, the AU may
leave the record open so that more medical evidence can be added after the
hearing. Sanches v. Comm ‘r ofSoc. Sec. 271 F. App’x 230, 233 (3d Cir. 2008)
(holding AU met enhanced duty by leaving record open); Mathews v. Apfel, 239
F.3d 589, 595 (3d Cir. 2001) (declining to remand where AU kept record open).
Despite the AU’s heightened duty, the claimant ultimately retains the burden to
prove he or she is disabled. See 20 C.F.R. 404.1512.; Money 91 F. App’x 210, 215.
Mr. Cartagena asserts that the record should have been developed further
concerning his tolerance for standing, walking, sitting, and using his hands. He
also asserts that the AU should have done more to investigate his ability to
concentrate and focus, given his eleventh grade education and enrollment in
special education classes. Finally, Mr. Cartagena argues that the record should
have been developed further regarding his vision. Yet for each of these concerns,
the AU consulted numerous medical records, took care to solicit testimony at the
hearing, and offered to leave the record open—meeting the heightened duty to
develop the record required in this case.
1. Tolerance for Standing/Walking/Sitting: The AU consulted several medical
reports and elicited direct testimony from Mr. Cartagena about his ability to
stand, walk, and sit. The AU discussed a general medical report from Dr. Bipin
Parikh, MD, which “did not indicate that claimant had any limitation in
standing, walking, stooping, bending, climbing, or using his hands.” (Tr. 21.)
The AU also discussed the findings of a consultative examination by Dr.
Alexander Hoffman, MD, which concluded that Mr. Cartagena “had a slow but
normal gait and no difficulty getting on or off the examination table.” (Tr. 14.)
The AU also solicited testimony from Mr. Cartagena at the hearing about his
ability to walk (Tr. 47.) (“what happens when, when you walk that much?”).
.
.
2. Tolerance for Using Hands: The AU elicited direct testimony from Mr.
Cartagena about his ability to work with his hands and also consulted numerous
medical reports on the question. At the hearing, Mr. Cartagena explained to the
AU that he is hampered by arthritis but can write with his right hand and
squeeze them both together tolerably. (Tr. 56.) Additionally, the AU relied on
the findings of a consultative examination by Dr. Anthony J. Candela, Ph.D.,
which suggested “good functioning of both wrists”. The AU also relied on the
reports from Dr. Hoffman and Dr. Parikh which found “a good result from
treatment of [Mr. Cartagena’s] right wrist fracture” and “no indication that [Mr.
Cartagena] had any limitation. using his hands.” (Tr. 21.)
3. Ability to Concentrate and Focus: The AU investigated Mr. Cartagena’s ability
4
to concentrate and focus by consulting medical records, soliciting direct
testimony, and keeping the record open so that additional evidence could be
supplied after the hearing. The AU consulted Dr. Candela’s report, which
diagnosed “borderline lower intellectual functioning”, but also found that Mr.
Cartagena could “engage in the activities of daily living” and had “no organic
mental disorder”. (Tr. 18.) The AU also considered Dr. Hoffman’s report,
which found “no evidence of organic memory loss.” Id. Additionally, the AU
relied on an assessment from State agency consultant Dr. Ira Gash, which found
that Mr. Cartagena was generally able to maintain concentration, pace, and
persistence. (Tr. 22.) The AU also elicited direct testimony from Mr. Cartagena
at the hearing. (Tr. 63,66.) The AU understood that liver damage caused by
diabetes can lead to problems with fatigue and concentration, so he also asked
Mr. Cartagena about his liver function. (Tr. 58.) Finally, the AU left the record
open and specifically invited additional evidence concerning Mr. Cartagena’s
ability to concentrate and focus. (Tr. 71.) (“I want to keep the record open and I
would arrange for that diagnosis to be sent to me.”)
.
.
4. Vision: The AU noted that Mr. Cartagena reported episodes of blurred vision
to Dr. Hoffman, who found Mr. Cartagena’s vision to be 20/50 bilaterally
without correction. (Tr. 14.) Mr. Cartagena never mentioned vision problems in
his applications or at the hearing. Though the AU did not take specific steps to
develop this issue, he pressed Mr. Cartagena to explain any other impairments
that might impact his ability to work, and Mr. Cartagena consistent failed to
mention blurred vision. (Tr. 63) (“Are there other questions or areas that you
think the claimant should be discussing that I’m not asking about?”); (Tr. 64.)
(“Are there things you want to tell me about that I have not been asking you
about?”); (Tr. 66.) (“So let me just ask you, ask you again, if there was ajob
available for you today. why is it that you wouldn’t be able to do it?”) The
responses to these questions gave the AU no indication that the record might be
incomplete on the question of vision, suggesting that the issue did not require
additional investigation. See 20 C.F.R. § 404.1527 (“[W]hen despite efforts to
obtain additional evidence the evidence is not complete, we will make a
determination or decision based on the evidence we have.”)
Overall, the AU developed a record that was complete with numerous medical
reports, Mr. Cartagena was questioned thoroughly, and the record was left open so
that additional evidence could be introduced later. These facts indicate that the AU
met his duty to develop the record, even under the heightened standard that applies
for a pro se claimant. Additionally, AU ‘s passivity in developing the record will
only be sufficient for remand or reversal when it has clearly prejudiced the
5
claimant, which is not apparent here. Livingston 614 F.2d at 345; Doinozik v.
Cohen, 413 F.2d 5, 9 (3d Cir. 1969). Ultimately, Mr. Cartagena retained the burden
to prove he is disabled. See 20 C.F.R. 404.1512.; Money 91 F. App’x 210, 216
(finding AU inquiry sufficient because “[n]othing else indicate[d] that the record
lacked enough data for the AU to make a well-informed decision.”)
B.
The AU’s Failure to Rely on Both of Mr. Cartagena’s Global
Assessment Functioning Scores Was Not Erroneous.
Mr. Cartagena argues that the AU improperly ignored a Global Assessment
Functioning (“GAF”) score 2 included in the record, but this argument fails
because the AU provided adequate justification for discounting it.
When reviewing medical evidence, the AU may assess credibility and
assign weight, but must “give some indication of the evidence that he rejects and
his reason[s] for discounting that evidence.” Fargnoli v. Massanari, 247 F.3d 34,
43 (3d Cir. 2001); Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994); Cotter v.
Harris, 642 F.2d 700, 705 (3d Cir. 1981). GAF scores, a form of medical evidence,
may be rejected or discounted under the same assessments of weight and
credibility, so long as those assessments are adequately explained. See Rios v.
Comm ‘r ofSoc. Sec., 444 F. App’x 532, 535 (3d Cir. 2011); Smith v. C’o,nm ‘r of
Soc. Sec., No. 10-468, 2010 WL 4063347 (D.N.J. Oct. 15, 2010); Carpenter v.
Comm ‘r ofSoc. Sec., No.10-5762, 2012 WE 194384 at *4 (D.N.J. Jan. 23, 2012)
(finding that AU did not err by ignoring GAF score because reasons for doing so
were adequately explained and based on the record).
Here, the AU adequately explained his reasons for relying on the GAF score
of 65 assigned by Dr. Candela while discounting an alternative GAF score of 40
assigned by Miriam Perez, a social worker. First, the AU pointed out that Ms.
Perez’s report was inconsistent with the rest of the record because it emphasized
Mr. Cartagena’s substance abuse rather than his depression. (Tr. 22.) None of the
other medical reports focused on substance abuse, and the AU ultimately
concluded that substance abuse did not result in a disabling limitation. (Tr. 19, 22.)
This inconsistency was a legitimate reason for discounting the GAF score of 40.
See 20 C.F.R. § 404.1535; Rios 444 F. App’x 532 at 533 (finding AU did not err
by only using GAF score that accurately reflected claimants symptoms); Carpenter
2012 WE 194384 at *4 Second, the AUJ explained how the GAF score of 40 was
assigned by a “nontreating source”—Ms. Perez, who had no prior history of
treating Mr. Cartagena. (Tr. 22; Exhibit 12F). Since the reliability of medical
2
The GAF score is a calculation endorsed by the American Psychiatric Association to quantify an individuals
psychological, social, and occupational functioning on a hypothetical continuum of one to a hundred. See 65 FR
50746-01 at 50765.
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evidence should be weighed according to history of treatment with the source,
discounting the lower GAF score for this reason was also justified. See 20 C.F.R. §
404.1527(d)(2); Adorno 40 F.3d at 47; Mason v. Shalala, 994 F.2d 1058, 1067 (3d
Cir. 1993). Also, the AU found that Dr. Candela’s report assigning the GAF score
of 65 was more consistent with the rest of the record and was supported by more
medical evidence. See 20 C.F.R. § 404.1527; Rios 444 F. App’x 532 at 533
(finding no error where AU used GAF score that aligned with her “overall
judgment”). Overall, the AU adequately justified the greater weight he assigned to
the GAF score of 65 such that Mr. Cartagena’s argument is without merit.
The AU’s Failure to Comply with the Hearings, Appeals and
C
Litigation Manual Was Not Erroneous.
.
.
Mr. Cartagena argues that the AU erred by failing to comply with
provisions of the Hearing Appeals and Litigation Manual (“HALLEX”), but this
3
argument is meritless as well. Specifically, Mr. Cartagena argues that the AU did
not attach an appropriately marked Exhibit List to his decision in violation of
HALLEX 1-2-1-20, and that he failed to hold a supplemental hearing on the
question of substance abuse in violation of HALLEX-I-2-6-80. The Third Circuit
has stated clearly that “HALLEX provisions. lack the force of law and create no
judicially enforceable rights.” Bordes v. Coimn ‘r ofSoc. Sec., 235 F. App’x 853,
859 (3d Cir. 2007) (citing Schweiker v. Hansen, 450 U.S. 785 (1981)). In fact, Mr.
Cartagena’s own brief cites a Ninth Circuit opinion that reached the same
conclusion. Moore v. Apfel, 216 F.3d 864, 868 (9th Cir. 2000) (“HALLEX is a
purely internal manual and as such has no legal force and is not binding.”) (internal
citations omitted). Since the manual is not binding, allegations of noncompliance
should not be reviewed. Id. at 869 (citing Western Radio Services Co. v. Espy, 79
F.3d 896, 900 (9th Cir. 1996) (“we will not review allegations of noncompliance
with an agency statement that is not binding on the agency.”))
E
The AU’s Decision to Ignore a Portion of the Vocational Expert’s
Testimony Was Not Erroneous.
Finally, Mr. Cartagena claims that the AU erroneously ignored portions of
Vocation Expert (“yE”) Rocco Meola’s testimony, but this argument also fails.
In disability proceedings, it is typical for the AU to present a VE with
hypothetical questions that ask whether, given certain assumptions about the
claimant’s capabilities, he or she can perform jobs that are available in the national
“HALLEX” is an internal manual that conveys guiding principles, procedural guidance, and information to the
Social Security Office of Hearings and Appeals Staff.See HALLEX 1-1-001.
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.
.
Conclusion
.
.
economy. See Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir. 1984) (reviewing
use of VE testimony in disability proceedings). These hypothetical questions must
accurately portray the nature or extent of the claimant’s impairment as contained in
the record. See Wallace v. Sec ofHealth & Human Services, 722 F.2d 1150, 1155
(3d Cir. 1983). Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987); Burns
v. Barnhart, 312 F.3d 113, 123 (3d Cir. 2002). Still, the AU is not required to
submit to the VE every impairment alleged in the record, only those that have been
credibly established. Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005)
(“We do not require an AU to submit to the vocational expert every impairment
alleged by a claimant. Instead.. the hypotheticals posed must accurately portray
the claimant’s impairments.”)
In Mr. Cartagena’s case, the AU ignored one of the hypothetical questions
he posed to the yE, but this was not erroneous because the question included an
impairment that the AU deemed not credible. The second hypothetical differed
from the first by adding that “the individual was limited in concentration and focus
such that they would need to take unscheduled breaks of indeterminate length
during the course of an eight hour day.” (Tr. 75.) These additional impairments—
“limited concentration and focus”—were not found credible, and an explanation
for that finding was provided. (Tr. 20-21.) (“[a]fter careful consideration of the
evidence
the claimant’s statements concerning the intensity, persistence and
limiting effects of the symptoms are not credible to the extent they are inconsistent
with the above [RFC].”) In making this credibility determination, the AU pointed
to Mr. Cartagena’s activities of daily living, and specifically to the report of State
agency consultant Dr. Gash, who found that Mr. Cartagena could “psychiatrically
maintain concentration, pace, and persistence.” (Tr. 22, 273.) Since the second
hypothetical only added impairments reasonably found to lack credibility based on
the record, the AU did not err by disregarding it. Rutherford 399 F.3d 546 at 555
(“We hold that all of those [additional limitations] were reasonably discounted by
the AU, so that the hypotheticals submitted to the vocational expert included all of
the limitations credibly established by the record.”)
IV.
WILLIAM J
ARTINI, U.S.D.J.
For the foregoing reasons, the Commissioner’s decision is AFFIRMED.
An appropriate Order follows.
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