Valdivieso v. Comm'r of Soc. Sec., Civil Action No.: 10-1001 (CCC)

Decision Date30 November 2011
Docket NumberCivil Action No.: 10-1001 (CCC)
CourtU.S. District Court — District of New Jersey


Hon. Claire C. Cecchi, U.S.D.J.


CECCHI, District Judge

Plaintiff Alexander Valdivieso 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 Supplemental Security Income Benefits. Pursuant to Federal Rule of Civil Procedure 78, no oral argument was heard before this Court. For the following reasons, the Commissioner's decision is affirmed in part and remanded in part for further proceedings in accordance with this opinion.


On July 24, 2006, Plaintiff filed for Supplemental Security Income Benefits under the Social Security Act, alleging that he was disabled as of May 15, 2006. (Administrative Transcript, hereinafter "Tr.," 89-95.) In his application, Plaintiff alleged that he was disabled due to a fractured skull, a broken left ankle, a hernia, and memory problems. (Id. 102.) His application was denied initially and on reconsideration. (Id. 288-89). Thereafter, he requested reconsideration and a hearing before an Administrative Law Judge ("ALJ"). After a hearing heldon June 26, 2009, ALJ Dennis O'Leary issued a decision, dated July 17, 2009, finding that Plaintiff was not disabled and denying Plaintiff's claim for benefits. (Id. 10-20.) On January 22, 2010, the Appeals Counsel denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner. (Id. 1-4.) Plaintiff then commenced this action seeking review of the Commissioner's final decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

Plaintiff was 36 years old at the time of the 2009 hearing and testified that he had a ninth or tenth grade education (Tr. 25). He did not obtain a GED or receive any vocational training (Id.). Prior to his alleged disability, Plaintiff had done carpentry and construction, had worked as a trucker's helper, and had been a high-low operator in a warehouse. (Id. 103). He spent ten years in prison for aggravated assault. (Id. 34, 242).

On May 15, 2006, a group of men assaulted Plaintiff outside his home. He suffered a fractured skull and left ankle and was comatose for a period of time as a result. (Id. 102, 179, 243, 311-12). Initial and follow-up CT scans and an MRI of Plaintiff's skull showed no intracranial abnormality, no acute intracranial pathology, no diffuse axional injury, no acute or obvious brain contusion, and no acute infarct. (Id. 316, 319, 334).

Plaintiff testified to the effects of the assault at the hearing. He stated that since the assault he could not remember information from more than one to two months prior. (Id. 26). He ached when it rained. (Id. 27). He felt pins and needles in his left foot and pain in his leg if he walked more than two blocks. (Id. 33). He got headaches and pain in his left eye when he watched TV for too long. (Id. 34). He also stated that he still had a skull fracture. (Id. 27). He got distracted easily and could not remember instructions after a few minutes. (Id. 30-31). Plaintiff stated he attempted to return to work four times but was not successful. (Id. 28-30). Hewas fired as a roofer for repeatedly dropping heavy roofing materials from ladders and rooftops. (Id. 26).

On November 30, 2006, Plaintiff went to the Jersey City Medical Center emergency room complaining of knee pain, but was able to walk at a steady gait. (Id. 229-30). He was diagnosed with a knee sprain. (Id. 235).

Dr. M. Rubani performed an orthopedic consultative examination on December 19, 2006 and found Plaintiff had diminished dorsal and plantar flexion in his left ankle and difficulty squatting due to heel pain but walked at a normal tandem gait (although not toe-to-toe) and was able to sit, stand, and lie down without assistance. (Id. 237-38). An x-ray taken that same day showed Plaintiff's leg fracture had healed. (Id. 241). An x-ray taken on January 20, 2007 showed "no acute fracture." (Id. 267).

Dr. Harry Silver conducted a physical residual functional capacity ("RFC") assessment ("the Silver assessment") on January 24, 2007 and found that, in part because of Plaintiff's fractured ankle, Plaintiff could occasionally lift or carry 20 pounds and frequently lift or carry 10 pounds, could stand or walk at least two hours in an eight-hour workday, could sit about six hours, and had unlimited ability to push or pull. (Id. 246, 250). Plaintiff was not permitted to use a ladder/rope/scaffolds or crouch, and could only occasionally use stairs, balance, stoop, kneel, and crawl. (Id. 247). Plaintiff had to avoid concentrated exposure to vibration and hazards such as machinery and heights. (Id. 249). The Silver assessment found that the severity of Plaintiff's subjective physical symptoms were consistent with medical and non-medical evidence. (Id. 250).

Dr. Anthony J. Candela performed a psychiatric consultative examination of Plaintiff on January 19, 2007. Plaintiff told Dr. Candela that he suffered memory loss as a result of theassault. (Id. 243). In addition, Plaintiff stated that both heat from the stove and cold weather caused him to faint, he could not do heavy lifting or pushing, his ankle caused him pain, and he had chronic headaches. (Id.). Dr. Candela completed a functional assessment, finding that Plaintiff was depressed and anxious and afraid he would be assaulted again if he left his home. (Id.). In his mental status evaluation, Dr. Candela found Plaintiff had cognitive and emotional after effects from his head injury, including flashbacks, sweats, nightmares, depression, and phobia. (Id.). Plaintiff had limited intellectual, memory and concentration abilities but "was alert, attentive and oriented." (Id. 243-44). Dr. Candela did not perform tests for memory or concentration, as noted by Dr. Benito Tan in his initial psychiatric review technique, conducted on January 30, 2007. (Id. 265). Dr. Candela concluded that Plaintiff had posttraumatic stress disorder secondary to mugging, depression, selective memory impairment secondary to traumatic head injury, chronic medical problems and cognitive limitations, and was unable to manage money on his own. (Id. 244). He assigned Plaintiff a Global Assessment Functioning (GAF) score of 35-40.1 (Id.).

During Dr. Tan's review, Plaintiff complained of long-term memory loss. Dr. Tan noted that Plaintiff had not been placed on any medication for psychiatric issues and had not received a referral for psychiatric treatment. He concluded there was insufficient evidence to determine Plaintiff's psychiatric status. (Id. 266).

Dr. Leslie Williams conducted a mental RFC assessment on November 23, 2007 ("the Williams assessment") and concluded that Plaintiff was "capable of understanding instructions and sustaining pace and persistence in simple, routine work." (Id. 285). Plaintiff had subjectivecomplaints of cognitive limitations, but Dr. Williams questioned Plaintiff's credibility based on his history of alcohol abuse, which he had previously denied, and his prior criminal behavior. (Id.).

Vocational expert Rocco Meola testified at the hearing as to work in the national economy Plaintiff could perform. The ALJ asked Meola the following hypothetical: whether work existed for a person of Plaintiff's age, education, and work history who could not remember information for more than one to two months but could remember instructions for simple, repetitive tasks from day to day. (Id. 40). Meola responded that jobs existed for such a person at all exertional levels. (Id. 41). Plaintiff's attorney asked Meola if such a person with a Global Assessment of Functioning of 35-40 would be able to work, and Meola answered that such a person would require restructuring in a vocational rehabilitation program. (Id. 42).

A. Determining Disability

Pursuant to the Social Security Act, to receive Supplemental Security Income Benefits, a claimant must show that he is disabled by demonstrating that he is unable 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 not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A). Taking into account the claimant's age, education, and work experience, disability will be evaluated by the claimant's ability to engage in his previous work or any other form of substantial gainful activity existing in the national economy. 42 U.S.C. § 1382c(a)(3)(B). Thus, the claimant's physical or mental impairments must be "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 ...." Id. Impairments that affect the claimant's "ability to meet the strength demands of jobs" with respect to "sitting, standing, walking, lifting, carrying, pushing, and pulling" are considered exertional limitations. 20 C.F.R. § 416.969a(a)-(b); Sykes v. Apfel, 228 F.3d 259, 263 (3d Cir. 2000). All other impairments are considered nonexertional. 20 C.F.R. § 416.969a(a), (c); Sykes, 228 F.3d at 263. Decisions regarding disability will be made individually and will be based on evidence adduced at a hearing. Sykes, 228 F.3d at 262 (citing Heckler v. Campbell, 461 U.S. 458, 467, 103 S.Ct. 1952, 76, L.Ed.2d 66 (1983)). Congress has established the type of evidence necessary to prove the existence of a disabling impairment by defining a physical or mental impairment as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic...

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