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Fernando Soto Vasquez v. Michael J. Astrue

January 11, 2013


The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge


This matter is before the Court for review of the decision by the Commissioner of Social Security denying Plaintiff's application for disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have consented that the case may be handled by the Magistrate Judge. The action arises under 42 U.S.C. §405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner. The parties have filed the Joint Stipulation ("JS"), and the Commissioner has filed the certified Administrative Record ("AR").

Plaintiff raises the following issues:

1. Whether the Administrative Law Judge's ("ALJ") residual functional capacity assessment is supported by substantial evidence;

2. Whether the ALJ's literacy finding is supported by substantial evidence; and

3. Whether the ALJ's credibility determination is supported by substantial evidence.

(JS at 4.)

This Memorandum Opinion will constitute the Court's findings of fact and conclusions of law. After reviewing the matter, the Court concludes that the decision of the Commissioner must be affirmed.


In Plaintiff's first issue, he asserts that the ALJ erred in determining his RFC.

Plaintiff's RFC is determined in the ALJ's Decision (AR 19-28) as follows: the capacity to perform medium work as defined in the regulations, including the ability to stand and walk up to six hours and sit up to six hours in an eight-hour workday with normal breaks. Plaintiff is precluded from climbing ladders, ropes or scaffolds, and can occasionally climb ramps or stairs, and frequently stoop, kneel, crouch and crawl. Plaintiff is restricted from work involving environmental irritants or poorly ventilated areas, and he is limited in his ability to communicate in English. (AR 22.)

The underlying medical evidence includes a Medical Evaluation: Respiratory Impairment three-page form dated March 3, 2010, prepared by Dr. Foraste, a board-certified internal medicine treating physician. (AR 386-388.) In addition, the ALJ relied upon a consultative internal medicine evaluation ("CE") performed June 17, 2008 by Dr. Tamayo, a board-eligible internist, at the request of the Department of Social Services. (AR 280-284.) Also relied upon was an internal medicine CE performed April 8, 2010 at the request of the Department of Social Services by Dr. Klein. (AR 391-397.)

The ALJ devoted substantial discussion to the report of Dr. Foraste but determined to accord "little weight" to his opinion. It was noted that Dr. Foraste "set forth very extreme functional limitations that have inadequate, if any, justification." (AR at 24.) As examples, the ALJ rejected Dr. Foraste's conclusion that Plaintiff can stand continuously for only 20 minutes, sit continuously for a half-hour, lift five pounds and carry two pounds, and requires the use of supplemental oxygen 24 hours per day. (Id.) The ALJ noted that a pulmonary function test was referenced by Dr. Foraste, but it is not known when the test was administered, and no documentary report is included. Further, the ALJ reviewed Dr. Foraste's treatment notes which showed little more than "brief documentation of the [Plaintiff's] subjective allegations of continued abdominal pain from June 2007 through January 2008." (Id.) The ALJ determined that Dr. Foraste "appears to have routinely considered [Plaintiff] disabled." (Id.) Finally, the ALJ found that Dr. Foraste's opinion "is completely inconsistent with all objective evidence of record, ..." (AR 24-25.)

The Court notes that if the ALJ had rejected Dr. Foraste's opinion because of a generic comment that it was inconsistent with the remainder of the objective medical evidence, it would have found that the ALJ's decision was not supported by substantial evidence. That is not the case here. In fact, the ALJ undertook a substantial review of the relevant medical evidence, and set it forth in his Decision. As an example, in evaluating Dr. Foraste's opinion that Plaintiff requires 24-hour use of supplemental oxygen, the ALJ compared this to a March 16, ...

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