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Perdomo v. Astrue

August 14, 2009


The opinion of the court was delivered by: Suzanne H. Segal United States Magistrate Judge



Jaime Perdomo ("Plaintiff") brings this action seeking to overturn the decision of the Commissioner of the Social Security Administration (hereinafter the "Commissioner" or the "Agency") denying his application for Supplemental Security Income ("SSI"). The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. This matter is before the Court on the parties' Joint Stipulation ("Jt. Stip."), filed on July 9, 2009. For the reasons stated below, the decision of the Commissioner is AFFIRMED.


Plaintiff filed an application for SSI on April 19, 2006. (Administrative Record ("AR") 72). He claimed that his disability onset date was July 17, 1995. (AR 94). The Commissioner denied SSI benefits on September 6, 2006. (AR 75). On September 15, 2006, Plaintiff filed a request for reconsideration. (AR 80). The Commissioner upheld the initial denial of benefits on February 2, 2007. (AR 84). On March 6, 2007, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR 90). On February 26, 2008, ALJ Jay E. Levine held a hearing to consider Plaintiff's claims. (AR 33). On June 17, 2008, the ALJ found that Plaintiff was not disabled. (See AR 8-22). Plaintiff requested a review of the hearing decision on July 16, 2008. (AR 4). The Appeals Council denied this request on September 23, 2008. (AR 1). Plaintiff filed the instant Complaint on December 3, 2008.


A. Generally

Plaintiff was born on August 13, 1970 and was 37 years old at the time of the hearing. (AR 94). He has limited education and did not graduate from high school. (AR 39-41). In various disability reports Plaintiff claims to have never held a job. (See, e.g., AR 98).

However, at the hearing Plaintiff testified that he had worked as a carpet cleaner and as a car windshield repairman. (AR 60). Additionally, Plaintiff works for his sister, watching her autistic son. (AR 37). Plaintiff claims that he is unable to work due to a brain injury in 1973 resulting in an inability to remember, concentrate, or answer questions. (AR 98).

B. Relevant Medical History

1. Treating Physician

The medical records from Plaintiff's treating psychiatrist are sparse. Plaintiff met with Dennis Payne, M.D., for the first time on October 7, 2005. (See AR 208). At the time, Dr. Payne found that Plaintiff made poor eye contact and was withdrawn. (AR 209). He also described Plaintiff as having a "poverty of speech [and] thought content." (Id.). Although Dr. Payne considered Plaintiff to be depressed and found that he exhibited "thought blocking," he also found that Plaintiff's perceptual process and thought content were within normal limits. (Id.). In Dr. Payne's opinion, Plaintiff's insight and judgment were poor, and Plaintiff's memory was impaired. (Id.). Dr. Payne ultimately concluded that Plaintiff had dementia, a non-specific depressive disorder, and borderline intellectual functionality. (Id.). Dr. Payne did not diagnose Plaintiff with any specific disorders. (Id.). Dr. Payne prescribed Paxil. (Id.).

Plaintiff returned to Dr. Payne intermittently for several months, and the treatment notes from that period are few and brief. (See AR 290-311). When Plaintiff complied with Dr. Payne's treatment plan, the medication was "fairly effective." (AR 306). Plaintiff's sister, who accompanied him on his visits to Dr. Payne, reported that he was doing better, with a fifty-percent improvement. (AR 297-98). There were, however, numerous times when Plaintiff failed to keep his appointments with Dr. Payne, (see AR 291, 300, 304, 308), or was not fully compliant with the treatment plan. (See AR 305, 203).

Dr. Payne apparently was not aware of any substance abuse by Plaintiff. (AR 310). However, Plaintiff has a significant history of illegal drug use and alcoholism. He was arrested for driving under the influence of alcohol and methamphetamine. (AR 159). Plaintiff "drank heavily" until 2001 or 2002. (Id.). He began using illicit drugs at age thirteen, and was a chronic user of marijuana, cocaine, and methamphetamine until 2002. (Id.). Plaintiff's parents asked him to stop living with them, in part, because of his drug use. (AR 158).

Although Dr. Payne did not specifically address his lack of knowledge about Plaintiff's substance abuse history, he did admit that he did not have a "good feel" for Plaintiff. (AR 227). When Dr. Payne met with Plaintiff, Plaintiff was always accompanied by his sister, who did most of the talking. (Id.). Dr. Payne stated that most of what he knows about Plaintiff comes from Plaintiff's sister. (Id.).

2. Consultative Physicians

On September 30, 2003, Dr. Jagvinder Singh performed an internal medicine consultation on Plaintiff. (See AR 152-56). Dr. Singh is board certified in internal medicine. (AR 156). Plaintiff complained to Dr. Singh that he had memory problems, depression, and that he was unable to control his anger. (AR 152). Dr. Singh opined that Plaintiff did not have dementia, but noted that Plaintiff was "[a] little slow on mathematical skills." (AR 155). Dr. Singh reported that Plaintiff had "no problem in dressing, grooming and bathing himself. [Plaintiff did] cooking, vacuuming, dishwashing, and watches television." (AR 152). In evaluating Petitioner's physical ability to work, Dr. Singh stated:

I think that [Plaintiff] is able to stand and walk for 6 hours. Sitting is no restriction. He does not require the use of assistive devices. He would be able to lift and carry occasionally and frequently is [sic] 50 & 25 pounds. Posturally and manipulatively there are no restrictions. Environmentally, [Plaintiff] should avoid working at extremes of temperature and at heights.

(AR 156).

On October 1, 2003, Dr. Kim Goldman, a clinical psychologist, performed a psychological evaluation of Plaintiff. (See AR 158-62). During the examination, Plaintiff "responded in a coherent and relevant fashion. The rate of his speech was normal." (AR 159). He knew the day of the week and the date, and he knew both the city of the examination and his city of residence. (Id.). Plaintiff knew his age and birthday, as well as the current and previous President. (Id.). He was able to recall two of three objects after a five minute delay. (Id.). Nonetheless, Plaintiff was low functioning in some categories.

He claimed not to know the alphabet and could not recite it. (AR 160). Dr. Goldman found Plaintiff's I.Q. to be sixty-four. (Id.). His overall thinking and reasoning abilities were in the first percentile. (Id.).

Dr. Goldman specifically warned readers of the report that Plaintiff's test results "should be interpreted with caution as [Plaintiff] did not appear to make his best effort on the tasks presented to him." (Id.). Dr. Goldman specifically cited Plaintiff's inability to reproduce more than nine out of fifteen items from memory as evidence of not making his best effort on the tests. (AR 161). Dr. Goldman ultimately concluded that:

[Plaintiff's] ability to understand, carry out and remember simple instructions is not impaired. His ability to respond appropriately to co-workers, supervisors and the public is mildly impaired due to limits in his cognitive functioning. His ability to respond appropriately to usual work situations and deal with changes in a routine work setting is mildly to moderately impaired due to limits in his cognitive functioning.

(AR 162).

On January 13, 2004, Dr. John Woodard performed a psychological evaluation of Plaintiff. (See AR 184-87). Dr. Woodard is a board eligible neurologist and psychiatrist. (AR 187). Dr. Woodard found that Plaintiff had a history of abusive alcohol consumption as well as methamphetamine abuse. (AR 184).

In evaluating Plaintiff's intellectual functioning, Dr. Woodard found that Plaintiff could recall both the current President and three former Presidents. (AR 186). Plaintiff had knowledge of current events. (Id.). He could "subtract sevens serially from 100 to 72 without error," and had an average range vocabulary. (Id.). Dr. Woodard found that:

[Plaintiff's] [i]mpairments are slight to moderate for interacting with the public; slight for interacting with supervisors and co-workers, for maintaining concentration and attention, for withstanding normal stresses and pressures in the workplace, and for performing detailed, complex tasks; and none for performing simple repetitive tasks. Incapacity is slight for working on a continuous basis without special supervision and slight to moderate for completing a normal workweek without interruption.

(Id.). Dr. Woodard concluded that Plaintiff's prognosis was "good for improvement in psychiatric status with abstinence from alcohol and illegal drugs and with appropriate treatment." (AR 187).

Plaintiff's final consultative examination was on May 5, 2006, with Dr. Clifford Taylor, a licensed clinical psychologist. (See AR 190-94). During this evaluation, Plaintiff stated that he had never worked in any capacity, and his sister stated that he had never attended school. (AR 191). Plaintiff denied any current or past use of illegal drugs, and also denied ever being arrested. (Id.). Neither Plaintiff nor his sister provided Dr. Taylor with any medical records. (AR 191-92).

Dr. Taylor evaluated Plaintiff's mental status and found that he had an I.Q. of forty-eight. (AR 192). Plaintiff "could not count, say any letters from the alphabet, recognize shapes, does not know his last name, age, the date or the date of his birth. He could not point to simple body parts such as his nose and ear."*fn1 (Id.). Given Plaintiff's performance on these evaluations, Dr. Taylor suspected Plaintiff of malingering. (AR 192, 194).

3. Plaintiff's Testimony

Plaintiff testified at the disability hearing. (AR 36-66). Plaintiff knew his age and the place of his birth. (AR 36). He denied being able to drive a car. (AR 40). Plaintiff testified that he could read and write "[a] little bit," and that he had taught himself to read. (Id.). Plaintiff testified that he went to school, but could not remember for how long. (AR 40-41). Plaintiff admitted to drinking "once in a while" and having used marijuana, speed, and cocaine "a long time ago." (AR 42). Plaintiff testified that he sits at his sister's house ...

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