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Delaizarah Zgraggen Rosario v. Commissioner of Social Security

December 5, 2011

DELAIZARAH ZGRAGGEN ROSARIO, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



M EMORANDUM OF D ECISION

Delaizarah Zgraggen Rosario (hereafter "Claimant") maintains she became disabled on or about October 17, 2005, due to bipolar disorder, anxiety, asthma, thyroid condition and carpal tunnel syndrome. R. 15, 26-29, 370. This is Claimant's second appeal of a final decision of the Commissioner of Social Security (hereafter "Commissioner") denying her applications for disability benefits. R. 367-86. This Court reversed and remanded the initial denial of Claimant's applications for disability benefits because the Commissioner did not state the weight given to various medical opinions submitted for consideration. R. 422. The Commissioner held a rehearing on September 9, 2010, finding once again that Claimant was not disabled and denying her applications for disability benefits. R. 367-86, 783.*fn1

Claimant raises three issues on appeal. Claimant contends the Administrative Law Judge (hereafter "ALJ") erred in giving little weight to the opinion of her treating physician, Najir Kirmani, M.D. Doc. No. 15 at 12-16. Claimant asserts the ALJ erred in finding that jobs existed in the national economy that she could perform because the ALJ's hypothetical to the vocational expert did not account for her moderate limitations in concentration, persistence and pace. Doc. No. 15 at 7-12. Claimant contends the ALJ erred in accepting the vocational expert's testimony as to jobs she could perform because the vocational expert's testimony conflicted with the Dictionary of Occupational Titles (hereafter "DOT"). Doc. No. 15 at 16-18. Claimant requests this Court reverse the Commissioner's decision and remand for an award of disability benefits or remand for another hearing. Doc. No. 15 at 19. For the reasons set forth below, the Commissioner's decision is AFFIRMED.

I. MEDICAL HISTORY

Claimant's medical history has previously been set forth in this Court's prior memorandum of decision. Rosario v. Comm'r of Social Sec., No. 6:09-cv-209-Orl-GJK (M.D. Fla. Mar. 1, 2010). The Court adopts that medical history and incorporates it herein by reference.

Dr. Kirmani is Claimant's treating psychiatrist. R. 383. In August 2008, Dr. Kirmani wrote in a prescription note that "[Claimant] is unable to work due to her psychiatric condition."

R. 300. In his December 2008, "Treating Source Mental Health Report," Dr. Kirmani indicated that Claimant's thought process was "logical and clear"; her thought content was "appropriate"; her memory was "intact"; there was "no evidence" that Claimant was suffering from hallucinations; his behavioral observations of Claimant were "within normal limits"; and that Claimant had a "slight impairment" in concentration. R. 696-97. Dr. Kirmani indicated that Claimant "may be able to work in limited setting." R. 697. Yet, Dr. Kirmani indicated that Claimant was not capable of maintaining full time employment because Claimant had "impaired concentration," could not "keep pace" and had "some limitations in social interaction." R. 697.

In August 2009, Dr. Kirmani completed a Medical Verification Form that indicated Claimant suffered from the permanent conditions of bipolar disorder and posttraumatic stress disorder that prevented her from working. R. 735-36. From January 2009 to May 2010, Dr. Kirmani filled out a number of "Brief Psychiatric Assessment" forms that consistently diagnosed Claimant with bipolar disorder and posttraumatic stress disorder. R. 538-52. On these forms, Dr. Kirmani also assessed Claimant with a Global Assessment of Function score between 45 and 50. R. 538-52.

Three non-examining doctors, Theodore Weber, Psy.D., Eric Wiener, Ph.D. and Richard Willens, Psy.D., also offered opinions. R. 700, 718, 748. Dr. Weber, Dr. Wiener and Dr. Willens reviewed Claimant's medical records and found that Claimant was "moderately limited" in her ability to maintain attention and concentration for extended periods of time. R. 700, 718, 748. This moderate limitation notwithstanding, Dr. Weber concluded that Claimant was "capable of completing simple tasks on a regular basis" and "could work in a limited setting." R. 702. Dr. Wiener concluded that Claimant "seemed mentally capable of independently performing routine tasks in a low demanding work environment." R. 720. Dr. Willens concluded that Claimant has a "limited ability to sustain CPP for extended period but should be able to complete simple tasks for 6-8 hours in an eight-hour period at an appropriate pace, and sustain this level across days and weeks." R. 750. Dr. Willens also concluded that Claimant "can understand, retain, and carry out simple instructions," as well as "consistently and usefully perform routine tasks on a sustained basis." R. 750.

II. ADMINISTRATIVE PROCEEDINGS

On March 1, 2010, this Court reversed and remanded, pursuant to sentence four of 42 U.S.C. § 405(g), the Commissioner's initial decision to deny Claimant's applications for disability benefits. R. 403-22. On September 9, 2010, pursuant to this Court's remand, a rehearing was held before ALJ Pamela Houston. R. 783. At the rehearing, Claimant and Ronald Spitznagel, a vocational expert, testified. R. 784. In addition to the record evidence previously received, the ALJ also admitted into evidence "Brief Psychiatric Assessment" forms completed by Dr. Kirmani. See R. 536-58, 785.

At the hearing, Claimant testified that she worked full-time at a thrift store for three weeks in 2007, but was fired because she "wasn't doing the stuff that I was supposed to be doing right" and she missed two days because she was feeling "severely depressed." R. 792. Prior to her alleged onset date of disability, Claimant worked as a fitness technician, secretary, fast food worker and general clerk. R. 376, 818, 820. Claimant testified that she experiences auditory hallucinations almost every day and is "very depressed." R. 794. Claimant also testified to having panic attacks every day, ranging from severe to moderate. R. 794-95. Claimant testified that she takes Xanax which relaxes her and makes her sleepy such that she takes a couple of naps every day. R. 797-99. Claimant also testified to driving on a weekly basis, grocery shopping, house cleaning, helping with her youngest son's homework and participating in his extracurricular activities. R. 800-04.

Claimant also testified to various physical ailments stemming from a bus accident in 2001: neck pain, back pain, hip pain, headaches, and exacerbation of her carpal tunnel syndrome. R. 811-13, 817. Claimant testified that she did not believe there were any jobs she could perform and that she cannot keep a job because "I know my depression is not going to get better." R. 819.

The ALJ also received testimony from Ronald Spitznagel, a vocational expert. R. 822.*fn2

The ALJ asked Spitznagel to consider a hypothetical person with the following limitations:

1. The individual can "lift no more than ten pounds occasionally, sit, stand, and walk for six out of eight hours with normal breaks, unlimited pushing and pulling with extremities but consistent with the weight, the lift and carry limitation of ten pounds."

R. 824.

2. The individual has "[l]imited fingering and grasping bilaterally to frequent, no overhead reaching, occasional climbing but never ladders, ropes, or scaffolds, occasional stooping, crouching [or] crawling . . . ." R. 824.

3. The individual can perform "simple, routine, and repetitive [tasks] in an environment where she can work within her own work space, meaning there's no third parties walking in an out of her area that would cause distractions . . . ." R. 824.

4. The individual's "[i]nteraction with third parties should be limited to that which is necessary to complete the task, otherwise brief and superficial," and only "occasional interaction with the general public." R. 825.

5. The individual's work environment would consist of a desk, cubicle or space, but not like a fast food environment. R. 825.

In light of these limitations, the ALJ asked if "such a hypothetical individual [could] perform any of the prior work of the claimant either as she performed it or as it is typically performed?" R. 825-26. Spitznagel responded that the hypothetical individual "could not return to any of the past relevant work" performed by Claimant. R. 826. The ALJ then asked if "there be [would] any other work in the local or national economy for such a hypothetical individual?"

R. 826. Spitznagel identified three jobs:

1. Surveillance System Monitor, DOT number 379.367-010, scheduled as sedentary with an SVP of 2. Approximately 40,000 jobs in the national economy; 2,000 in Florida (R. 826);

2. Order Clerk Food and Beverage, DOT number 209.567-014, scheduled as sedentary with an SVP of 2. Approximately 35,000 jobs in the national economy; 1,200 in Florida (R. 826-27); and

3. Lamp Shade Assembler, DOT number 739.684-094, scheduled as sedentary with an SVP of 2. Approximately 25,000 jobs in the national ...


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