CARTAGENA v. COMMISSIONER OF SOCIAL SECURITY, No. 2:2010cv05712 - Document 15 (D.N.J. 2012)

Court Description: OPINION. Signed by Judge William J. Martini on 4/9/12. (gh, )

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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. ) 3 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. 6 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. 7 . . 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. 8

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