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Roldan v. Commissioner of Social Security

May 7, 2010

RE: ROLDAN
v.
COMMISSIONER OF SOCIAL SECURITY



The opinion of the court was delivered by: William J. Martini Judge

MARTIN LUTHER KING JR. FEDERAL BLDG. & U.S. COURTHOUSE 50 WALNUT STREET, P.O. BOX 419 NEWARK, NJ 07101-0419 (973) 645-6340

LETTER OPINION

Dear Counsel:

Plaintiff Deborah Roldan ("Roldan") brings this action pursuant to 42 U.S.C. § 405(g) of the Social Security Act, seeking review of a final determination by the Commissioner of Social Security ("Commissioner") denying her application for Supplemental Security Income ("SSI"). There was no oral argument. Fed. R. Civ. P. 78. For the following reasons, the Commissioner's decision is AFFIRMED.

I. BACKGROUND AND PROCEDURAL HISTORY

Plaintiff is a forty-seven year old female who claims to suffer from back and knee pain, diabetes, hypertension, arthritis, asthma, depression, a prior history of substance abuse, and obesity. (Administrative Transcript, hereinafter "Tr.," 18, 60-62, 126, 164). Roldan was born in Puerto Rico, grew up in the mainland United States, and presently lives in Newark, New Jersey. (Tr. 53-54, 127). She is fluent in English but has a limited education, having left high school without graduating. (Tr. 23, 170). She has not worked since 2002 and receives public assistance. (Tr. 56, 127). She lives alone and takes care of her daily responsibilities herself, although she has three grown children who live in Florida and sisters who help her out occasionally. (Tr. 54-55, 127, 150, 156). She takes public transportation to see her father every weekend and communicates with her children often. (Tr. 71, 80). However, she states that she does not like to leave the house or to be around people. (Tr. 68, 85, 154).

Plaintiff filed an application for SSI on October 17, 2005, alleging disability since March 31, 2002. (Tr. 51, 126). Her claim was denied on July 28, 2006, and again on November 2, 2006. (Tr. 91, 96). Roldan subsequently requested a hearing. (Tr. 101). At the February 27, 2008 hearing before Administrative Law Judge ("ALJ") Donna A. Krappa ("Krappa"), Roldan described her physical and mental pain arising out of her back and knee problems, diabetes, hypertension, asthma, obesity, history of substance abuse, and depression. (Tr. 45-87). She also testified that she suffered from the frequent need to urinate as a symptom of her diabetes and as a result was "constantly in the bathroom. every five minutes. or less." (Tr. 59). However, she did not request to go to the bathroom at all during the forty-five minute hearing. She did inform the ALJ several times during the hearing that she needed to stand to alleviate her back pain, and the ALJ noted that she stood awkwardly. (Tr. 69, 73).

The ALJ began the analysis of Roldan's claim by analyzing her medical records. (Tr. 20). Dr. Stephen J. Conte, who treated Plaintiff after she was in a car crash in 2000 (prior to the alleged onset date) diagnosed her with a "tear of the posterior horn of the medial meniscus" and noted problems with her cervical spine, leading or contributing to her back and knee pain. (Tr. 60-62, 193-196). Dr. Eddie A. Rosa, Plaintiff's former primary care physician, treated her on multiple occasions between 2004 and 2005 for arthritis and disc desiccation in the lumbar spine, among other ailments. (Tr. 241-243). Dr. Hilal Abboushi, Roldan's most recent primary care physician, submitted records indicating that he had treated her for back and knee pain frequently from 2006 -- 2007. (Tr. 332, 348-349).

Roldan also provided mental health records that were reviewed by the ALJ. (Tr. 21). In the fall of 2006, Plaintiff sought treatment from Dr. Karen Henningson for depression that had persisted since the 2004 death of her mother. (Tr. 305). Dr. Henningson noted that Roldan said she did not try to seek treatment any earlier because she did not want to talk about her problems. (Tr. 305-308). The doctor diagnosed her with depressive disorder and noted that Roldan's depression was "characterized by not wanting to come out of the house, not wanting to socialize, interrupted sleeping pattern, decreased interest in activities and decreased concentration." (Id.)

Plaintiff also had consultative examinations with Dr. R.C. Patel and Dr. Hugh D. Moore. (Tr. 22, 247, 262). Dr. Patel found that physically, Plaintiff was not in acute distress, had a normal gait, and had no abnormalities in her skin, eyes, ears, nose, and throat. (Tr. 248). He also examined Plaintiff's complaints of spine tenderness and found no spine deformity. (Tr. 249). A pulmonary function test showed no distress and no wheezing. (Tr. 251). He diagnosed Roldan with asthma, anxiety depression syndrome, diabetes mellitus, possible arthritis of the lumbosacral spine without permanent deformity, and hypertension. (Tr. 249). Dr. Hugh D. Moore performed a psychiatric consultative examination. (Tr. 262). Plaintiff reported no history of psychiatric hospitalizations, was not currently in outpatient treatment, and had only briefly been in outpatient treatment six years prior. (Id.) Plaintiff reported using cocaine for one year in 1990 but had never been in drug treatment and had been clean for over 13 years. (Tr. 20, 65, 262, 305). Overall, Dr. Moore concluded that Plaintiff's psychiatric problems did not appear significant enough to interfere with her ability to function on a daily basis. (Tr. 264).

ALJ Krappa evaluated the evidence and testimony according to the five step sequential evaluation process promulgated by the Social Security Administration for determining whether an individual is disabled pursuant to the Social Security Act. See 20 C.F.R. §§ 404.1520, 416.920. (Tr. 16-17). As part of the process, the ALJ sent interrogatories to vocational expert ("VE") Rocca Meola ("Meola") without first submitting them to Roldan. (Tr. 116, 383-390). This omission constitutes part of Roldan's claim, as she alleges that it violated the Hearings, Appeals, and Litigation Manual ("HALLEX") I-2-5-57. (Tr. 116; Plaintiff's Brief, hereinafter "Pl. Br.," at 5). Roldan also requested a supplemental hearing with a different VE. (Tr. 117). This request was denied but Roldan was granted a supplemental hearing with Meola, which was held on July 24, 2008. (Tr. 121). Roldan's counsel questioned Meola at the hearing. (Tr. 25-44).

On August 28, 2008, the ALJ issued her opinion concluding that Roldan was not disabled pursuant to 20 C.F.R. § 416.920(g). (Tr. 12). Specifically, the ALJ made the following determinations: Plaintiff (1) had not engaged in substantial gainful activity since October 17, 2005, (2) has severe impairments which include a back disorder, diabetes, hypertension, asthma, depression, a history of substance abuse (in remission) and obesity, (3) does not have an impairment or combination of impairments that meets or medically equals one of the impairments listed in the C.F.R., (4) has the residual functional capacity to perform a range of light work, with certain limitations including that an incontinence pad could be worn, and (5) could perform jobs that exist in significant numbers in the economy. (Tr. 18-19).

Roldan requested review of the ALJ's decision by the Appeals Council. (Tr. 11, 378). On March 6, 2009, the Appeals Council denied Roldan's request. (Tr. 5-8). On May 15, 2009, Roldan filed her Amended Complaint, which is presently before the Court. Roldan alleges that the ALJ made the following errors when denying her claim: (1) the ALJ failed to follow the "special technique" required during the analysis of mental health claims, (2) the ALJ failed to properly evaluate the evidence when considering whether her conditions met or equaled a C.F.R. listing, (3) the ALJ sent interrogatories directly to the VE without first providing Plaintiff with a copy, in violation of HALLEX, and (4) the ALJ should not have substituted her own judgment for that ...


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