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Lopez v. Colvin

United States District Court, D. Massachusetts

February 18, 2016

JOSE A. LOPEZ, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


MARK G. MASTROIANNI United States District Judge.

I. Introduction

This is an action for judicial review of a final decision by Carolyn Colvin, the acting Commissioner of the Social Security Administration (“Commissioner”), regarding an individual’s entitlement to Supplemental Security Income (“SSI”) pursuant to 42 U.S.C. § 1383(c)(3) (referring to 42 U.S.C. § 405(g)). Jose A. Lopez (“Plaintiff”) asserts the Commissioner’s decision denying him such SSI-memorialized in a May 21, 2013 decision of an administrative law judge (“ALJ”)-is in error. Plaintiff has filed a motion for judgment on the pleadings and the Commissioner has moved to affirm. For the reasons set forth below, the court allows the Commissioner’s motion and denies Plaintiff’s motion.

II. Background

Plaintiff was born on July 16, 1971. (Administrative Record (“A.R.”) at 160.) He is literate in English and has completed education up to the ninth grade. (Id. at 30.) Plaintiff last worked in 2008 as a housekeeper. (Id. at 30, 63-64.) Plaintiff worked sporadically as a machine operator in 1998 and 1999 as well as a laborer through a temp agency from 1987 to 2006, albeit for only brief durations at a time. (Id. at 30-31, 63-64.) He has never had a job for over three months. (Id. at 65.)

Plaintiff has an extensive criminal history and was last incarcerated in 2004. (Id. at 32-33.) Thereafter, he was placed on probation for nine-and-a-half years until June 21, 2014. (Id. at 57.) At the time of application, he resided in Springfield, Massachusetts with his girlfriend. (Id. at 53.) Plaintiff first applied for SSI on June 11, 2010 and indicated his disability began on February 1, 2010. (Id. at 160.) After Plaintiff’s applications were denied both initially and upon reconsideration, he requested a hearing in front of an administrative law judge. (Id. at 10.)

A. Medical Evidence in the Administrative Record

Plaintiff’s medical records indicate that he saw Richard C. Mindess, M.D. for left shoulder pain on May 27, 2010. (Id. at 231.) He stated that problems with his shoulder began three months earlier. (Id.) Plaintiff attributed this injury to diving off a slide into the water at a “swimming ground.” (Id. at 36.) On September 10, 2010, Plaintiff successfully had surgery to repair the rotator cuff in his injured shoulder. (Id. at 37, 255-59.) From November 15, 2010 through January 17, 2011, he completed a total of 17 visits to Pro Ex physical therapy for his shoulder before being discharged due to unsuccessful attempts to schedule further appointments. (Id. at 297.) On March 25, 2011, Plaintiff saw Martin Hernandez-Bem, M.D. at Comprehensive Family Medical Care. (Id. at 317-23.) Dr. Hernandez-Bem reported that Plaintiff had a history of left shoulder pain and chronic low back pain. (Id. at 317.)

Plaintiff had a psychiatric assessment at the Center for Psychological and Family Services on May 2, 2011. (Id. at 352-69.) The diagnoses were depression and alcohol abuse with a Global Assessment of Functioning (“GAF”) score of 55.[1] (Id. at 354, 363.) Plaintiff was evaluated by Mary T. Hafey, L.I.C.S.W. at River Valley Counseling on January 24, 2012. (Id. at 419.) Plaintiff reported depression, anxiety, anger issues, and memory problems, and mentioned going in front of a judge for social security disability. (Id.) He further shared that he drank alcohol several times a week and smoked marijuana “when I have enough money.” (Id. at 421.) Ms. Hafey diagnosed Plaintiff with depressive disorder not otherwise specified and psychotic disorder not otherwise specified and assessed a GAF score of 50. (Id. at 424.)

On February 22, 2012, Leon Hutt, Ph.D. conducted a consultative psychiatric examination of Plaintiff at Massachusetts Rehabilitation Commission Disability Determination Services. (Id. at 414.) Plaintiff complained of anxiety and that he had become a “hermit” who stayed at home watching television and playing video games. (Id. at 415.) Plaintiff stated that he occasionally would shop for food and was able to clean, but was unable to cook. (Id.) Dr. Hutt explicitly rejected that Plaintiff suffered from panic disorder, agoraphobia, or generalized anxiety disorder. (Id. at 416.) Rather, Plaintiff was diagnosed with adjustment disorder with anxious mood, alcohol abuse, cannabis abuse, and arithmetic disorder with a GAF score of 75. (Id.)

Plaintiff was seen by LaVerne Kelly, L.I.C.S.W. at Clinical and Support Options on May 22, 2012. (Id. at 430-43.) Ms. Kelly diagnosed Plaintiff with generalized anxiety disorder and major depressive disorder with a GAF score of 48. (Id. at 442.) Plaintiff would continue to visit Ms. Kelly on 26 occasions from June 6, 2012 through April 2, 2013. (Id. at 456-61, 464-71, 478-95.) On December 5, 2012, Plaintiff saw Rafael Mora de Jesus, Ph.D. at Hartford Psychological Services LLC for an evaluation. (Id. at 473.) Plaintiff reported to Dr. de Jesus that he initiated psychiatric treatment due to stress, anxiety, and other problems in his life. (Id. at 475.) Dr. de Jesus found evidence of a significant affective disturbance likely associated with major depressive disorder or “a chronic disposition to becoming depressed.” (Id.) Dr. de Jesus also recorded that there was no significant evidence of psychosis or a formal thought disorder. (Id. at 476.) Ultimately, Dr. de Jesus diagnosed Plaintiff with dysthymic disorder and anxiety disorder not otherwise specified with a GAF score of 60. (Id.) On April 19, 2013, Ms. Kelly completed a mental impairment questionnaire evaluating Plaintiff. (Id. at 499.) Once again, Ms. Kelly diagnosed Plaintiff with general anxiety disorder and major depressive disorder with a GAF score of 48. (Id.)

B. Testimony Before the ALJ

Plaintiff’s application for SSI was originally denied on August 9, 2010. (Id. at 72-74.) Shortly thereafter, a request for reconsideration was filed and the initial denial was affirmed on January 11, 2011. (Id. at 75-77.) A hearing subsequently took place before ALJ Judith M. Stolfo on January 19, 2012. (Id. at 25-45.) Plaintiff was represented by an attorney, who asserted that Plaintiff suffered from chronic low back strain, shoulder pain, major depressive disorder, and severe and generalized anxiety. (Id. at 29.) The ALJ questioned Plaintiff about his difficulty obtaining employment. (Id. at 31.) Plaintiff indicated that he had applied for jobs but had not been hired because of his criminal background and lack of experience. (Id. at 32.) The ALJ further inquired about his criminal background. (Id. at 32-33.) Plaintiff testified that he had last been in jail in 2004 for delivery and manufacturing of crack cocaine. (Id. at 32.) He added that he had approximately 10 or 12 prior charges, including assault and battery on a police officer, possession of a deadly weapon, possession of marijuana, delivery of cocaine, possession of a stolen motor vehicle, and possession of stolen goods. (Id. at 33.) Plaintiff stated that he stopped doing drugs when incarcerated, but had a history of using cocaine, crack cocaine, marijuana, acid, and mescaline. (Id.)

Plaintiff testified that he had not received any treatment in the past six months. (Id. at 34-35.) The ALJ extensively questioned Plaintiff about his lack of recent medical treatment. (Id. at 34-36.) He responded that a tornado had damaged the building of his psychiatrist in June 2011 and no additional appointments were scheduled afterwards. (Id. at 34.) After being pressed on why he was not seeking treatment, Plaintiff indicated that he did not want to leave the house, face people, or do anything. (Id. at 42.) The ALJ ...

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