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Gilberto Acanda v. Commissioner of Social Security

May 27, 2010


The opinion of the court was delivered by: Debevoise, Senior District Judge


Plaintiff, Gilberto Acanda, seeks review, pursuant to 42 U.S.C. 405(g) and 1383(c)(3), of the determination of the Commissioner of Social Security (the "Commissioner") denying Plaintiff's application for Disability Benefits under Title II and/or title XVI of the Social Security Act. Plaintiff argues that the Administrative Law Judge ("ALJ") erred in his Step Three and Step Four analysis, rendering a decision unsustainable under the substantial evidence doctrine. Additionally, Plaintiff contends that the ALJ improperly rejected the testimony of the Vocational Expert ("VE") who has expert knowledge on the precise matters to which he was testifying. Because the Court finds that the ALJ's decision was supported by substantial evidence and that Plaintiff's assertions of error are without merit, the Commissioner's determination will be affirmed.


i. Plaintiff's history and claims

Plaintiff is a fifty-seven year-old native of Cuba, who came to the United States in 1980; he has attained three years of high school education in Cuba. (R. at 74, 291.) Plaintiff does not speak or understand English. (R. at 77.) He was previously employed sweeping streets until January 2003, loading and unloading trucks in a factory between 1984 and 1995, and, most recently, in 2005, in a perfume factory putting sprayers into bottles of perfume. (R. at 303.) On August 9, 2004, Plaintiff filed a Title II application for a period of disability and Title XVI application for supplemental security income, in which the Plaintiff claimed disability because of herniated discs, water in the brain, vision, vision conditions, headaches, forgetfulness, and electrocution. (R. at 31.) On January 31, 2005 Plaintiff's claims were denied initially and on September 20, 2005, they were denied upon reconsideration; on November 3, 2005, plaintiff filed a timely written request for hearing. (R. at 18.) Plaintiff was granted a hearing before an ALJ on January 31, 2007 in Newark, New Jersey. (R. at 280.)

In a written report, Plaintiff asserted he was able to dress, bathe, groom, and feed himself.

(R. at 92.). He also indicated he prepared multiple course meals for himself (taking an hour to an hour and a half), did cleaning, laundry, and sometimes mowing (for two to three hours, two to three times a week). (R. at 93.). Plaintiff indicated he went out to shop and pay bills (accompanied by his wife) and could count change but could not write checks as a result of his inability to read or write English. (R. at 94.) In one part of the report, the Plaintiff indicated he got along with authority figures and had never been fired from a job because of problems getting along with people; however, he earlier noted problems getting along with others. (R. at 97, 96) He also noted taking Motrin since 1993 to relieve his pain. (R. at 85.)

ii. Medical Evidence

The medical evidence in the record is expansive; given the variety of Plaintiff's complaints and the alleged cumulative effect, the account of medical reports and evaluations will be comprehensive. In October 2004, Plaintiff's ophthalmologist, Dr. Adolphus Anosike, reported on the basis of Plaintiff's most recent evaluation that his best corrected visual acuity "at a distance" was twenty/twenty-five in his right eye and twenty/twenty in his left; "at near" both eyes were twenty/twenty, with correction. The visual fields were full and without abnormalities.

(R. at 145.) Later, on July 14, 2005, Dr. Edgar Braunstein found Plaintiff's visual acuity was correctable to twenty/twenty in each eye and that visual fields were within normal limits. The doctor concluded, "[t]his patient has no specific eye complaints. He has good vision and he is capable of all visual functions." (R. at 204.).

On October 21, 2004, a consultative examiner, Dr. Joseph Buceta, having performed a psychiatric examination, reported that Plaintiff's speech was coherent and goal directed without flight of ideas. His mood and affect were mildly angry but he denied signs of delusions, suicidal or homicidal ideations, feelings of worthlessness or hopelessness, and there were no signs of psychomotor agitation or retardation. His long term memory was fairly good, but the doctor did note short term memory difficulties recalling three items after five minutes. However, Plaintiff was able to perform simple arithmetic, serial threes, and his knowledge was commensurate with his level of education. He could also identify similarities between objects, abstract from Spanish proverbs, and spell words forwards and backwards. (R. at 149.) His social judgment and insight were adequate. (R. at 149-150.) The doctor assessed his global assessment of function ("GAF") to be sixty-five. (R. at 150.)

On October 28, 2004, Dr. Luis Vassallo performed a physical consultative examination in which Plaintiff could bend down to remove his shoes, stand up easily, walk on tiptoes and heels and squat completely. The doctor also noted that Plaintiff walked without a limp and sat comfortably during the interview. He had full range of motion of the lumbar spine (and an X-ray examination of the lumbosacral spine was normal (R. at 156.)) and, while sitting, was able to bring both lower extremities parallel to the floor without any back pain. The doctor concluded that the Plaintiff had chronic back pain without any neurological deficit and all the joints were within normal range of motion. (R. 152.)

On December 7, 2004, Dr. Ira Gash, a State agency non-examining medical consultant completed a Psychiatric Review Technique Form (PRTF) in which he noted that Plaintiff had an anxiety disorder not otherwise specified (NOS) and under the "B" Criteria of the Listings for Section III, Ration of Functional Limitations, found that Plaintiff had moderate difficulties in maintaining concentration, persistence, and pace, and moderate restrictions of activities of daily living. (R. at 162, 167.) On August 9, 2005, Dr. Thomas Harding, also a State agency non-examining medical consultant, affirmed Dr. Gash's assessment. (R. at 170.)

On December 7, Dr. Gash also completed a mental residual functional capacity ("RFC") assessment which stated that Plaintiff blamed his dependence on family on his poor vision and found that the Plaintiff presented with adequate concentration and memory. He was found to be cooperative but with a mildly angry mood. He had no overt thought disorder, his speech was coherent and goal directed, and his social judgment was adequate. (R. at 173.)

In a report dated December 6, 2004, it is noted that complaints of severe pain and limitations due to back condition are not supported by the objective findings. (R. at 211.)

On August 22, 2005, Dr. Seung Park, a State agency non-examining medical consultant, indicated that Plaintiff complained of low back pain but noted that Plaintiff had a normal gait and was able to stand and walk on heels and toes. Cervical and lumbosacral spines had full forward flexion. There was also no evidence of significant neurological deficit. Based on the medical evidence, the doctor concluded the Plaintiff had no confirmed medically determined impairment.

(R. at 213.).

On September 19, 2005, Dr. Carlos Jusino-Berrios completed a Medical Consultant's Review of Psychiatric Review Technique form and a Medical Consultant's Review of Mental Residual Functional Capacity Assessment in which he agreed with findings of the State Agency non-examining consultants in the PRTF and MRFC. Dr. Jusino-Berrios states that overall, the Plaintiff was able to understand, remember and execute simple instruction, able to maintain attention, sustain persistence and pace, adapt to changes, and interact with others. (R. at 215.)

A January 12, 2005 abdominal X-ray examination was negative but revealed early degenerative changes of the lumbar spine. (R. at 203.)

In February 2006, Plaintiff requested that Dr. Rastogi, Plaintiff's physician, complete papers for Social Security disability. Plaintiff reported to the doctor that he had back pain, since sustaining a fall in 1992, as well as poor vision. (R. at 222.) On examination, Plaintiff's back showed no tenderness, his straight leg raising test was negative, and he had a normal gait and posture. On February 8, Dr. Rastogi indicated in an examination report that the Plaintiff was capable of working full time and was not incapacitated. He also indicated the Plaintiff's orthopedic disability was categorized as ...

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