Vega v. Astrue

Decision Date19 September 2011
Docket NumberC.A. No. 10-cv-30129-MAP
CourtU.S. District Court — District of Massachusetts



(Dkt. Nos. 12 & 15)



This action seeks review of a final decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff's applications for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI"). Plaintiff applied for DIB and SSI on September 2, 1999, alleging disability since August 14, 2008, due to arthritis, lower back pain, and Hepatitis C. Plaintiff's claim was denied initially on February 23, 2002, but in August 2002, theAppeals Council vacated the decision and remanded the case for further proceedings. (A.R. 232, 270-73.) On February 14, 2003, the ALJ issued a second unfavorable decision. (A.R. 21-37.) The Appeals Council denied Plaintiff's request for review, at which time Plaintiff filed suit in this court. On November 14, 2005, this court remanded the case with instructions to obtain additional evidence, request a consultative orthopedic examination, evaluate Plaintiff's mental impairments, evaluate Plaintiff's residual functional capacity ("RFC"), and obtain evidence from a vocational expert ("VE"). (A.R. 552-54.) Following a November 30, 2006, hearing before a different judge, the ALJ found Plaintiff not disabled. (A.R. 527-41.) On February 18, 2010, the Appeals Council declined to assume jurisdiction, making the ALJ's decision final and subject to judicial review.

Plaintiff now moves for judgment on the pleadings (Dkt. No. 12), and Defendant moves for an order affirming the decision of the Commissioner (Dkt. No. 15). For the reasons stated below, Plaintiff's motion will be denied, and Defendant's motion will be allowed.

A. Physical Conditions.

Plaintiff is a high-school graduate and was forty-eight years old at the time of his administrative hearing. (A.R. 210, 657).

On July 20, 1999, x-rays of Plaintiff's cervical spine indicated a possible muscle spasm and were otherwise normal. (A.R. 140.) X-rays of Plaintiff's lumbar spine indicated minimal degenerative changes and were otherwise normal. (Id.) Follow-up x-rays of Plaintiff's lumbar spine, which took place one week later, confirmed "minimal degenerative facet changes at all levels" and a minimal disc bulge. (A.R. 134.)

An abdominal ultrasound on August 19, 1999, showed "no significant abnormality." (A.R. 348.) A September 1, 1999, liver biopsy confirmed a diagnosis of Hepatitis C. (A.R. 123, 126.)

Plaintiff was referred to Dr. Jose Azocar on November 30, 1999, for a consultative physical examination. (A.R. 154-156.) Dr. Azocar found that Plaintiff moved his extremities well, had no deformities, displayed optimalstrength bilaterally, and had normal posture and gait. (A.R. 155-56.) He also noted that Plaintiff would be limited by activities that would exacerbate his back pain, including frequent bending and lifting heavy weights. (A.R. 156.)

Plaintiff presented to Pioneer Valley Pain Management & Palliative Medicine Center ("Pioneer Center") on January 27, 2000, complaining of back pain and numbness in his right upper extremity. (A.R. 165-68.) On examination, Dr. Bentley Ogoke observed that Plaintiff's deep tendon reflexes, sensation, and motor strength were within normal limits; judgment, concentration, and memory were intact; coordination and balance were good; cervical spine range of motion was within normal limits; straight leg raising was negative; grip strength was equal. The only findings of note were tenderness in certain areas of Plaintiff's back. (A.R. 167.) A January 31, 2000, x-ray of Plaintiff's dorsal spine revealed no abnormalities. (A.R. 163, 169.)

On February 4, 2000, Plaintiff returned to Dr. Ogoke at the Pioneer Center with neck, left shoulder, and low back pain, reporting a pain level of six out of ten. Dr. Ogokeobserved some tenderness in Plaintiff's back, but Plaintiff reported that physical therapy had improved his pain. (A.R. 163.) Plaintiff demonstrated a normal gait and showed no difficulty in routine diagnostic tests, including straight leg raising. (A.R. 163.)

A week later, Plaintiff described his pain as five out of ten, but noted that he had discontinued his pain medication because it caused nausea and vomiting. (A.R. 161.) He reported that bioelectric treatment had significantly improved pain in his neck and left shoulder. (A.R. 161.) The examination again revealed some tenderness in his back. (A.R. 161.) Plaintiff was advised to continue his home exercise program and medications with the exception of the medication that caused Plaintiff's intestinal problems. (A.R. 162.)

On June 30, 2000, Plaintiff underwent an MRI of his thoracic spine, which showed no abnormality. (A.R. 373.) On June 15, 2001, x-rays of Plaintiff's shoulders revealed no abnormality. (A.R. 423.)

Plaintiff reported to clinicians at Northgate Medical Center on October 21, 2004, that he had stopped taking hisinsulin for diabetes because the needles were "too fat" and hurt him. (A.R. 597-98.)

During May 2006, Northgate Medical Center records indicate that Plaintiff had stopped taking his medication five or six months earlier because he did not like the way it made him feel. However, his blood sugar was under control. (A.R. 594-95.)

An examination by Dr. Willard Brown on December 13, 2006 revealed that Plaintiff had a normal gait and did not report any pain during movement. (A.R. 643-47.) His upper and lower extremities, sensory exam, and strength and motor function were normal. (A.R. 643-44.) Dr. Brown determined that Plaintiff "may have problems doing any activities where he would have to stand too long, sit too long, or go up and down stairs too frequently." (A.R. 647.) Dr. Brown also noted possible difficulties working on a stepladder or stool, or performing activities involving "excessive bending, twisting, heavy lifting, or other strenuous activities." (A.R. 647.)

B. Mental Conditions.

Between March and July 2000, Plaintiff was seen bySisters of Providence Behavioral Healthcare ("Sisters of Providence"). (A.R. 181-87.) He reported depression, anxiety, insomnia, and irritability. (A.R. 181.) At an evaluation on March 9, Plaintiff reported that his depression and substance abuse stemmed in part from the recent loss of four members of his family. (A.R. 360.) His global assessment of functioning (GAF) score at that time was 50, his highest score of the year was 90, and his expected GAF score upon discharge was 80.1 (A.R. 184, 360.)

On November 27, 2000, Dr. Michael Braverman conducted a consultative mental examination. (A.R. 375-77.) Dr. Braverman observed no signs of thought disorder, psychosis, hallucinations, delusions, paranoia, or pressured speech. (A.R. 376.) However, when Dr. Braverman listed seven digits and asked Plaintiff to recall as many as he could, Plaintiff could only recall the first three. (A.R. 376.) When askedto spell "house" and "world," Plaintiff misspelled both words. (A.R. 376.) Plaintiff reported that he had ingested alcohol and cocaine a few days prior. (A.R. 376.) Dr. Braverman observed that Plaintiff appeared to be depressed and concluded that Plaintiff needed a highly structured dual-diagnosis treatment program to help him to achieve and maintain sobriety. (A.R. 375-77.) Dr. Braverman largely reiterated these findings in a second consultative exam on May 17, 2001. (A.R. 437-38.)

At a visit with his therapist, Edmund Bouley, on August 2, 2001, Plaintiff evidenced symptoms of sadness and hopelessness. (A.R. 412.) Mr. Bouley prescribed anti-depressants and sleeping medication. (A.R. 413.)

On June 17, 2002, Plaintiff was referred to Dr. Rafael Mora de Jesus for a psychological evaluation. In connection with this, Plaintiff undertook a series of tests, including the Weschler Memory Scale, the Bender Gestalt test, and the WAIS III examination. Dr. Mora de Jesus determined that Plaintiff's test results appeared "bizarre" in that they were consistent with someone who would be incapable of independently functioning without significant support, yetPlaintiff's in-person assessment and current living situation demonstrated otherwise. (A.R. 435.) With respect to the Bender Gestalt test in particular, Dr. Mora de Jesus noted that "the magnitude of the errors are indicative of severe perceptual distortion or of minimal motivation to perform on the tasks presented to him." (A.R. 435.) Consequently, Dr. Mora de Jesus determined that Plaintiff's actual symptoms consisted of mild anxiety and that employment would benefit him by increasing his self-esteem. (A.R. 432-36.)

On October 1, 2002, Plaintiff was seen by Dr. Martin Markey. Plaintiff's test results indicated a wide variety of extreme symptoms, which Dr. Markey determined was "the result of carefully responding rather than responding in an inconsistent or random pattern." (A.R. 453.) Plaintiff achieved "an extraordinarily elevated 'F' score," which Dr. Markey labeled a "fake bad score." (A.R. 453.) Consequently, Dr. Markey concluded that Plaintiff's test results were invalid, and he observed that Plaintiff was operating in the average or low-average range of intelligence. (A.R. 452.) He further explained thatPlaintiff was "not at all mentally retarded," and that, given the "extreme exaggeration" of his symptoms, Plaintiff was malingering. (A.R. 453.)

C. RFC Assessments.
1. Physical RFC.

On April 5, 2000, Dr. Jorge Baez-Garcia, a non-examining state agency physician, reviewed the medical evidence of record and assessed Plaintiff's physical RFC. He found that Plaintiff suffered from no significant physical limitations and was capable of performing light work. (A.R. 172-77.)

On September 25, 2000, Dr. Ogoke opined that evidence of degenerative change in Plaintiff's...

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