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Adolfo Marquez v. Michael J. Astrue

March 4, 2011


The opinion of the court was delivered by: Honorable Jerome B. Simandle


SIMANDLE, District Judge:


This matter comes before the Court pursuant to § 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), to review the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying the application of Mr. Adolfo Marquez ("Plaintiff"), for Disability Insurance Benefits under Title II of the Social Security Act ("the Act"), 42 U.S.C. §§ 401-434.

This Court must decide: 1) whether there is substantial evidence to support the Administrative Law Judge's ("ALJ") determination that Plaintiff's non-exertional (psychological) impairments were non-severe; and if so, 2) whether the ALJ erred by not considering Plaintiff's non-severe psychological impairment in his residual functional capacity assessment. For the reasons explained below, this Court finds that substantial evidence supports the ALJ's determination of non-severe non-exertional impairment and that the ALJ adequately considered Plaintiff's non-severe psychological impairment in his determination of Plaintiff's residual functional capacity. Consequently, this Court will affirm the decision of the ALJ.


A. Procedural History

On November 14, 2006, Plaintiff filed an application for Social Security Disability Insurance Benefits (DIB), alleging a disability onset date of July 7, 2006 (R. at 11), due to neck and back injuries that arose out of falling from a ladder while at work. (R. at 33.) The Social Security Administration (SSA) denied Plaintiff's claim initially and on reconsideration. (Id.)

Plaintiff subsequently filed a Request for an Administrative Hearing on June 4, 2007 (R. at 71), which was held before ALJ Mark Barrett on September 18, 2008. (R. at 21-57.) The ALJ issued a denial of benefits on October 15, 2008. (R. at 20.)

The ALJ found that Plaintiff suffered from a severe physical impairment of the back and a non-severe psychological impairment. Plaintiff's physical impairment was degenerative disc disease of the lumbar spine. (R. at 13-14.) However, the ALJ concluded that Plaintiff: 1) did not have an impairment or combination of impairments that met or medically equaled one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1; and 2) based on the Medical-Vocational Guidelines ("grids"), Plaintiff had the residual functional capacity to a) lift ten pounds regularly, b) lift twenty pounds on occasion, c) to stand or walk for six hours in an eight hour work day, and d) sit for six hours in an eight hour work day. (R. at 14.)

Plaintiff then requested a review by the Appeals Council, which was denied on December 18, 2009. (R. at 1-4.) Thereafter, on May 26, 2010, Plaintiff filed the present action urging this Court to reverse the decision of the ALJ.

B. Statement of Facts

1. Plaintiff's Work and Personal History Plaintiff is a resident of Newtonville, New Jersey and was 45 years old at the time of his Administrative Hearing. (R. at 27.) He has a high school diploma and can speak both English and Spanish, but cannot read or write. (R. at 28.) Additionally, Plaintiff has a valid driver's license and drives his sister's Oldsmobile. (R. at 28-29.) His wife passed away in 1986 and he is the father of a child (presumably with another woman) who, at the time of Plaintiff's Administrative Hearing, was seventeen years old. (R. at 27-28.)

Plaintiff last worked in 2006 at Reveilles Remodeling (Reveilles) where he performed "hard labor:" laid sheetrock, painted, installed linoleum flooring, and restored homes that had been destroyed by fires. (R. at 30-31.) Plaintiff stopped working after he fell from a ladder while on the job at Reveilles on July 7, 2006. (R. at 33.) He suffered severe back and neck pain, went to the emergency room, and was eventually given medical treatment at Cooper University Hospital. (Id.) Later in 2006, he underwent an operation where a surgeon fused his back together. (R. at 47-48.) Plaintiff's physical pain persisted in 2007 and he reported that it continued even on the day of his Administrative Hearing. (R. at 34.) Ever since his work-related injury, he has been unemployed and getting financial assistance from his mother. (Id.)

Before working for Reveilles, Plaintiff drove forklifts for Gillespie of Vineland (R. at 36), lifted approximately one hundred pounds of precast forms that he made for Paris Stone (R. at 37), and worked construction for various other companies. (R. at 37-41.) However, after suffering from his work-related injury, Plaintiff testified that lifting even a gallon of milk was painful and that he would have difficulty lifting his cane if he were to drop it. (R. at 44-45.) Moreover, Plaintiff has intense difficulty climbing the two steps required to enter the house he lives in. (R. at 55.) He also testified that he cannot live with his girlfriend because he cannot make it up her staircase, which contains approximately thirteen steps. (Id.)

Furthermore, Plaintiff stated that he went for physical therapy for approximately five months and had pain management treatments sometime during 2007. (R. at 49.) Since his temporary worker's compensation benefits have been terminated, he has not had ongoing, regular appointments with doctors. (R. at 50.)*fn1 Consequently, Plaintiff goes to emergency rooms for prescription drugs to alleviate the pain that he reportedly experiences throughout his neck and back. (R. at 45-46.)

At one point, Plaintiff used "street drugs," such as powder cocaine, to cope with what he called "depression," which resulted from the combination of his physical pain and mental frustration concerning the termination of his worker's compensation benefits.

(R. at 51-53.) Moreover, in the past, he has been diagnosed as suffering from an "adjustment disorder with mixed anxiety and a depressed mood." (R. at 506). However, Plaintiff has not received any medical treatment regarding a mental disorder. (R. at 13.)

2. Medical Reports

Plaintiff submitted medical and psychiatric reports from several physicians and psychologists. Relevant to the present appeal are the psychological reports submitted by Renee Levin, Ph.D., Edward Tobe, D.O., and Howard Adelman, Ph.D.

Plaintiff met with Dr. Levin once on August 28, 2007, based on the recommendation of his treating physician, as part of the process for determining whether or not a spinal cord stimulator trial ought to be conducted. (R. at 384.) During this appointment, Dr. Levin documented Plaintiff's history of physical pain, the current activities he is able to perform, and gave her opinion regarding his overall mental status. (R. at 384-387.) Dr. Levin concluded that Plaintiff suffered from a depressed mood, but did not diagnose him as clinically depressed. (R. at 385.) Her report suggests that Plaintiff is having trouble coping with the chronic pain throughout his body and the limitations on his lifestyle. (R. at 386).

Dr. Levin further explained that she believed that Plaintiff seemed "irritable" and had trouble emotionally coping with his physical impairment. (Id.) She stated that Plaintiff believes that he is "worthless" and spends many days crying, but does not have suicidal tendencies. (Id.) Ultimately, she concluded that the spinal cord stimulation would not be advisable "from a psychological standpoint" due to what appeared to be Plaintiff's overall resistance to it. (Id.)

Plaintiff had one appointment with Dr. Tobe on August 22, 2008. His report comes in the form of a letter that he sent directly to Plaintiff's worker's compensation attorney. (R. at 532-534.) In that letter, Dr. Tobe discusses Plaintiff's psychological status. Dr. Tobe mentions that Plaintiff previously had a psychological evaluation performed by Dr. Adelman. (R. at 532.) ...

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