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Jirau v. Astrue

June 1, 2010

JUAN A. JIRAU, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Morton Denlow United States Magistrate Judge

Magistrate Judge Morton Denlow

MEMORANDUM OPINION AND ORDER

Claimant Juan A. Jirau ("Claimant") brings this action under 42 U.S.C. § 405(g), seeking reversal or remand of the decision by Defendant Michael J. Astrue, Commissioner of Social Security ("Commissioner"), denying Claimant's application for Title XVI Supplemental Security Income ("SSI"). The parties raise the following issues: (1) whether new and material evidence in the form of a subsequent award of benefits and accompanying mental health records establishes Claimant had disabling mental retardation that requires reversal and remand; and (2) whether the ALJ committed reversible error in not calling a medical expert to resolve inconsistencies in Claimant's mental health records. The Court held an oral argument on May 13, 2010. Dkt. 38. For the following reasons, the Court affirms the ALJ's decision and grants the Commissioner's motion for summary judgment.

I. BACKGROUND FACTS

A. Procedural History

Claimant initially received Title II Disability Insurance Benefits from August 5, 1987 to February 24, 1994 due to upper extremity numbness and a left arm fracture incurred in a 1987 motorcycle accident. R. 28-29, 104-05, 718-20. On May 25, 2001, Claimant filed a subsequent application for SSI benefits, alleging a disability onset date of July 1, 1994 due to a herniated disc, pinching nerve, and chronic pain. R. 284-86. The Social Security Administrator ("SSA") denied the claim initially and upon reconsideration. R. 144, 151.

Claimant requested a hearing before an Administrative Law Judge ("ALJ"), and two hearings subsequently took place before ALJ Helen Cropper on September 10, 2003 and February 3, 2004. R. 705-99, 800-88. The ALJ issued a decision on May 17, 2004, finding Claimant was not disabled under the Social Security Act. R. 101-43. Specifically, the ALJ found Claimant's date last insured ("DLI") for disability benefits was June 30, 1998, and Claimant's impairments did not meet or medically equal one of the listed impairments. R. 143. Claimant filed for a review of the ALJ's decision to the Appeals Council, who on July 22, 2005 remanded the case back to the ALJ for further proceedings with specific instructions to give further consideration to Claimant's alleged mental impairments. R. 232, 234-45, 247-49.

ALJ Cropper held a supplemental hearing on September 19, 2006. R. 889-984. On February 1, 2007, ALJ Cropper issued a written decision finding that Claimant was not disabled. R. 25-88. Specifically, the ALJ found Claimant's DLI was December 30, 1995, he was able to perform "sedentary work," and there were a significant amount of jobs in the national economy that he could perform. R. 25-88. On February 2, 2009, the Appeals Council denied review of ALJ Cropper's second decision. R. 7-9. ALJ Cropper's February 1, 2007 decision is therefore the one currently before this Court for review.

While review of ALJ Cropper's February 1, 2007 decision was pending before the Appeals Council, Claimant filed a subsequent application for SSI on February 12, 2007. Cx.*fn1 A. Following denial of this latest application, Claimant requested another hearing in front of an ALJ. On August 7, 2008, ALJ Michael R. McGuire issued a written decision finding Claimant was disabled under the Social Security Act as of February 12, 2007. Cx. A at 4. Specifically, ALJ McGuire found the severity of Claimant's "mental retardation, depression and degenerative disc disease of the lumbar spine," met the listing criteria in Section 12.05(c) of 20 C.F.R. 404, Subpart P, Appendix 1. Id. at 5. In his decision, ALJ McGuire relied on an April 19, 2007 psychological consultative examination report and a May 2, 2007 State agency Psychiatric Review Technique Form. Neither of these records were before ALJ Cropper, nor are they present in the record before this Court.

B. Hearing Testimony

1. September 10, 2003 Hearing Juan Jirau - Claimant

At the time of the hearing, Claimant was forty-one years old and unmarried. R. 729. He testified that he completed school through eighth or ninth grade but never graduated from high school. R. 733. He resides with his fiancee's parents, the Jacintos, who support him financially. R. 734-35, 747. Claimant's most recent employment was as a doorman at a neighborhood bar on the weekends for four hours per night. R. 731, 787-88. Claimant also testified to sporadic previous work at a garage, as a dishwasher, as a valet, at McDonald's, and installing alarm systems. R. 738-44, 772. Otherwise, his last employment was in 1991 as a sous chef at T.G.I. Friday's. R. 737-38. Claimant testified he cannot work now because of constant pain in his leg, back, and arms, as well as lack of sleep. R. 747, 749-54.

Additionally, Claimant stated he suffers from depression and has attempted suicide.

R. 765-66. Claimant spoke with a social worker, who recommended Prozac, but Claimant refused the prescription. R. 766-67. Claimant had not seen a psychiatrist as of this hearing.

R. 767, 824.

2. February 3, 2004 Hearing

The ALJ held supplemental proceedings on February 3, 2004 in order to take testimony of four witnesses, including two expert witnesses. R. 802.

a. Juan Jirau - Claimant

Claimant testified that his condition had become worse since the September 10, 2003 hearing, and he had not worked, been to school, traveled, or played pool. R. 827. Claimant also testified to having headaches every other day. R. 815. Additionally, a social worker had recommended Zoloft, but Claimant refused due to the side effects. R. 824.

b. Phyllis Jacinto - Claimant's Witness

Phyllis Jacinto ("Ms. Jacinto") testified that she was Claimant's fiancee and had known him for four years, although they had a twenty-year-old daughter together. R. 828. At the time of the hearing, Ms. Jacintolived in her parent's basement with Claimant. R. 828-29. She testified that Claimant stayed in bed most of the day due to pain, but did get up to walk a little. R. 831. Ms. Jacintosaid Claimant cannot stand for long periods and items frequently fall out of his hand. R. 833-35. She also confirmed that Claimant has headaches every other day but does not take medicine to treat them. R. 841.

Ms. Jacintobelieved that Claimant was depressed because he could not provide for the family like he wants to, had trouble sleeping, and did not enjoy the things he used to do.

R. 838. Ms. Jacinto said she was aware of Claimant's suicide attempts. R. 839-40. Ms. Jacintohelped Claimant fill out his Social Security applications because he had difficulty writing. R. 843-44.

c. Dr. Irwin Rich - Medical Expert ("ME")

After reviewing Claimant's medical record, the ME, an orthopedic specialist, opined that Claimant suffers from impairments in his left upper extremity. R. 806, 857-59. The ME testified that Claimant may be able to lift ten pounds with his right hand only, and could stand and walk two hours in an eight-hour work day if he had a sit and stand option. R. 860, 863. The ME disagreed with the report of orthopedic specialist Dr. James Elmes, who examined Claimant at the ALJ's request. R. 862. The ME opined that Claimant was more limited in his ability to lift and carry than Dr. Elmes found; however, he did not find that Claimant met a listed impairment. R. 464, 859-60, 862.

d. Grace Gianoforte - Vocational Expert

After reviewing Claimant's employment history, and assuming, at the ALJ's instruction, that Claimant had the Residual Functional Capacity ("RFC")*fn2 to perform a full range of work at the sedentary*fn3 level, the VE determined that there were five occupations available in the national economy Claimant could perform. R. 877. These included order clerk (1,500 positions), clerical sorter (2,500 positions), checker (2,500 positions), parking lot cashier (1,500 positions) and surveillance monitor (1,500 positions). R. 878-80. The VE noted that Claimant would have to be productive 80 percent of the workday with no lapses in concentration, persistence, and pace. R. 882. Lack of productivity for more than 20 percent of the workday would place Claimant beyond the threshold for competitive employment. Id.

3. September 19, 2006 Hearing Testimony Following Appeals Council Remand

a. Juan Jirau - Claimant

At the time of this hearing, Claimant was 44 years old. R. 918. Claimant testified he lost 36 pounds since his last hearing and attributed the weight loss to depression, but had still not been treated. R. 908-09. Claimant testified that he will not go to see a mental health provider ...


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