UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

ROBERT R. GRUDZINSKI, :

Plaintiff :

CIVIL ACTION NO. 4:04-1495

v. :

(MCCLURE, D.J.)

SOCIAL SECURITY : (MANNION, M.J.)

COMMISSIONER,

:

Defendant

:

REPORT AND RECOMMENDATION

 The record in this action has been reviewed pursuant to 42 U.S.C. §§

405(g) to determine whether there is substantial evidence to support the

Commissioner’s decision denying the plaintiff’s claim for Social Security

Disability Insurance Benefits, (“DIB”), under Title II of the Social Security Act,

(“Act”). 42 U.S.C. §§ 401-433.

I. Procedural Background

The plaintiff filed his present application for benefits on September 4,

2002, in which he alleged that he had become disabled on June 1, 1997, due

to anxiety, depression, attention deficit hyperactivity disorder, prostate

problems and arthritis. (TR. 10, 45). He subsequently requested a closed

period of disability, from December 1, 2001 though March 1, 2003, the date

that he returned to substantial gainful employment. The plaintiff had filed a

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prior application for disability benefits, for which he had been granted a closed

period of disability benefits, June 1, 1997 through September 5, 2001. (TR.

10). 

 After the claim under consideration was denied initially, (TR. 30-35), 

the plaintiff’s application came on for a hearing before an administrative law

judge (“ALJ”), on October 1, 2003. The claimant was not represented at the

hearing. In addition to the plaintiff’s testimony, the ALJ heard the testimony of

Ronald Sholtis, a vocational expert. (TR. 149-177). On January 26, 2004, the

ALJ issued a decision which denied benefits. The ALJ concluded that: the

plaintiff met the disability status requirements of the Social Security Act as

amended, as of December 1, 2001, through March 1, 2003, the closed period

of disability, and continued to meet those requirements until December 31,

2004; the plaintiff had not engaged in substantial gainful activity during the

closed period; the plaintiff had earned $6,900 for six weeks work during that

period which was not SGA (Substantial Gainful Employment); the medical

evidence of record established that the plaintiff had impairments which were

considered to be severe, however, the impairments were not severe enough

to meet or equal any listed impairments set forth in Appendix 1, Subpart P,

Social Security Administration Regulations No. 4. The ALJ further concluded

that although the plaintiff did not retain the functional capacity to perform his

past relevant work, he did retain the functional capacity to perform a range of

modified work, and that such appropriate work existed in sufficient numbers

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in the local, regional and national economies. Examples of such work included

working as an intake/eligibility worker, low level sales and telemarketing.

(TR.14). As a result, the ALJ concluded that the plaintiff had not been

disabled within the meaning of the Act at any time during the closed period

December 1, 2001 through March 1, 2003.

The plaintiff filed a request for review with the Appeals Council which

was denied on May 7, 2004. (TR. 3-5). Thus, the ALJ’s decision stood as the

final decision of the Commissioner. Currently pending before the court is the

plaintiff’s pro se appeal of the decision of the Commissioner of Social

Security, which was filed on July 9, 2004. (Doc. No. 1).

II. Disability Determination Process

A five step process is required to determine if an applicant is disabled

for purposes of social security disability insurance. The Commissioner must

sequentially determine: (1) whether the applicant is engaged in substantial

gainful activity; (2) whether the applicant has a severe impairment; (3)

whether the applicant's impairment meets or equals a listed impairment; (4)

whether the applicant's impairment prevents the applicant from doing past

relevant work; and (5) whether the applicant's impairment prevents the

applicant from doing any other work. See 20 C.F.R. § 404. 1520.

The instant action was ultimately decided at the fifth step of the process,

when the ALJ determined that even though the record did show evidence of

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a mental impairment, the plaintiff was not precluded from all work during the

closed period in question. (TR. 15-16). At issue is whether there exists

substantial evidence to support the ALJ’s determination.

III. Evidence of Record

The plaintiff was born on September 19, 1948. (TR. 45, 58). He

“completed college with a B.A. and also earned an MBA in 1973.” (TR. 13,

69). His past relevant work includes employment as a salesman. (TR. 64).

The plaintiff claims that he was unable to work in any capacity during the

closed period in question due to severe anxiety, depression, and attention

deficit disorder which prevented him from being able to concentrate for any

period of time. (TR. 70). The plaintiff does not appear to claim any other

serious physical limitations which would have prevented him from working

during the relevant period.

The medical evidence indicates that on November 26, 2002, the plaintiff

was examined at the Moses Taylor Hospital Emergency Room. He was

complaining of chest pain and stated that he had passed out. He had

apparently donated blood earlier in the day. A chest x-ray was read as normal.

The diagnosis was syncope. It is unclear what further treatment the plaintiff

had, if any, as the hand writing on the ER record is largely illegible. (TR. 92-

100).

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The Agency referred the plaintiff for a psychological evaluation to

Anthony A. Galdieri, Ph.D., on January 27, 2003. Dr. Galdieri performed a

battery of psychological testing. Dr. Galdieri reported that the plaintiff was on

time for the appointment, was appropriately dressed and was pleasant and

cooperative throughout the interview. The plaintiff reported that he last

worked in 2002, but before that he was not able to work on a regular basis

due to depression. The plaintiff stated that he had not sought treatment for

the depression because he had no medical insurance. The plaintiff reported

that although in the past he had been treated from time to time for his

psychiatric problems, he had never had a psychiatric hospitalization.

Dr. Galdieri found that during the interview the plaintiff would from time

to time exhibit tangential thinking, however, his speech flow was average in

volume and was appropriate. He denied any thoughts of wanting to hurt

himself or others. His concentration was quite good, although the plaintiff

reported that when he is in a work situation, his concentration is very poor.

It was noted that the plaintiff has a full scale IQ of 113, with a verbal score of

115 and a performance score of 110. Verbal comprehension scores fell

between average to high average and perceptual organization skills were

rated as within average range. Working memory scores fell between average

to superior. The diagnoses were: AXIS I: Depressive disorder (NOS); AXIS

II: Schizoid personality trait versus schizoid personality disorder, and AXIS III:

Enlarged prostate and hypertension.

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Dr. Galdieri stated that despite the fact that the plaintiff had earned a

Masters Degree, and his cognitive skills appeared to be very well developed,

the plaintiff reported that he had trouble maintaining a job. The plaintiff

explained that in the short run he is able to perform well, but that he is unable

to maintain any level of productivity. Dr. Galdieri stated, “There is flavoring

that underlies this man’s personality, suggestive of the possibility of a schizoid

personality disorder or possible a schizotypal characterological make up.”

(TR. 101-107).

In conjunction with his examination, Dr. Galdieri also completed a

Medical Assessment of Ability to do Work-Related Activities (Mental), which

is also dated January 27, 2003. The Assessment indicates that the plaintiff’s

ability was “good” in the following areas: following work rules, relating to coworkers, dealing with the public, use of judgment, interaction with supervisors

and to function independently. He was assessed to be “fair to poor” in dealing

with work stresses; and “poor” in maintaining attention/concentration. The

plaintiff was assessed to be “very good” in his ability to understand, remember

and carry out simple job instructions; “Good” in his ability to understand,

remember and carry out detailed but not complex job instructions, and “fair”

in his ability to understand, remember and carry out complex job instructions.

(TR. 110).

The Assessment further indicated that the plaintiff’s ability to maintain

personal appearance was very good; his ability to behave in an emotionally

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stable manner was good; his ability to relate predictably in social situations

was fair to good, and his ability to demonstrate reliability was also fair to good.

(TR. 111).

An agency Psychological Review Technique Form dated February 27,

2003, indicated that the plaintiff had a record of a personality disorder, which

included persistent disturbances of mood or affect and pathological

dependence, passivity or agressivity. It was determined that the plaintiff had

“mild” limitations in the areas of restrictions of daily living and difficulty in

maintaining social functioning. It was felt he had “moderate” difficulties in

maintaining concentration, persistence or pace, and that there had been “one

or two” episodes of decompensation, each of an extended duration. The

reviewer stated:

...[Claimant’s] allegations are considered partially credible.

Dr. Galdieri’s 164 of 1/27/03 states that [claimant] has no ability

to maintain attention/concentration. This is not supported by

[claimant’s] performance on the WAIS-III...

...[Claimant is a 54 y.o. [male] [with] mixed personality

disorder. He currently receives no [treatment] & has no

[treatment] hospitalizations. His condition interferes [with] his

ability to maintain attention, concentration, & persistence [with]

tasks. He has limited judgment & tolerance for frustration.

However, he remains able to do routine ADLs & self care. He can

communicate & relate adequately . He retains the capacity to

perform SGA... 

(TR. 112-125; 128). Another Agency Disability Determination Case Analysis

report dated March 8, 2003, states “There is no evidence of physical

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impairment that can cause a minimal limitation on his work related activities.”

(TR. 130).

The Agency referred the plaintiff for a Disability Examination (Physical)

to John Querci, D.O., which took place on March 21, 2003. The plaintiff’s

primary complaint was depression, but he also mentioned to Dr. Querci that

he has been diagnosed with ADHD. He reported that “he cannot concentrate

since 1977.” The plaintiff told Dr. Querci that he had undergone a prostate

biopsy which was negative; that he had old fractures of both knees and

elbows; torn ligaments in both shoulders; torn rotator cuffs in both shoulders,

and bilateral carpal tunnel syndrome. 

Dr. Querci’s physical examination revealed agitated depression

“seemingly fairly well controlled” and that the prognosis was good. As far as

any type of physical impairments, there were none. Dr. Querci stated:

Functional limitations absolutely none.

ADHD. Prognosis fair. Functional limitations–I don’t think

he has any. He was not recommended any medications and

he has had this for years and performed quite well as a

stock worker when he still had it.

Prostatic problems, probably benign prostatic hypertrophy.

 PROGNOSIS:

Fair. Functional limitations–absolutely none.

(TR. 131-134).

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There are also treatment notes from Community Counseling Services

of N.E.P.A. An Identifying Data form dated January 16, 2003, states:

AXIS I: Adult ADHD

AXIS II: None

AXIS III: None

AXIS IV: Poor primary support system

(TR. 141). The records indicate that in February 2003, the plaintiff was

prescribed anti-depressant medications. A treatment note dated June 4,

2003, stated that the plaintiff reported that he felt “a lot better”, that he was

sleeping better and that he was “doing really well at work.” The plaintiff stated

that he was employed in sales work, and that the prior month he was “number

two” in sales in his company country wide. He reported also, however, that

he felt he does poorly in his social life. He related that he had a date, and that

he had visited his son. He stated that he had an old IRS problem, but that he

now felt that he was better capable to cope with it. The reviewer’s

assessment was “depression, anxiety–improved.” (TR. 147-148). 

The plaintiff testified at the hearing that he tried to work several times

since the prior closed period of disability ended, doing mostly sales work. He

stated also that he had been incarcerated because he had passed a bad

check. He explained that he had written the check to purchase tires for his

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The exact period of the plaintiff’s incarceration is unclear. A note from

Community Counseling Services dated June 19, 2000, states that the plaintiff

reported that he was “recently released from Luzerne County Prison on May

30, 2000. (TR. 142). He filed the prior application for Social Security disability

benefits on June 16, 2000, which was granted, after a hearing, on October 12,

2001. The ALJ mentioned in his decision that the plaintiff had been

incarcerated. (TR. 26-28). 

10

car so that he could use the car for work.1

 He stated further that each time he

would attempt to work, that he would do well at first, but then due to personal

problems, he would begin to have problems with concentration which would

inevitably lead to deterioration in his work performance. (TR. 158). He said he

started having panic attacks and developed nervous tics. (TR. 161). The

plaintiff believes that the decompensation which occurred in his ability to

maintain a steady work performance was due in large part to the fact that he

had no money, and no insurance, and so therefore he could not get the

treatment and medications he needed to stay well. (TR. 163, 165).

Ronald Sholtis, a vocational expert. Also testified at the hearing. The

ALJ posed the following hypothetical to him:

...[L]et’s assume that this hypothetical claimant...really

doesn’t have any serious physical problems in terms of his health,

which would interfere with performing work from a purely

exertional standpoint. In terms of his nonexertional

standpoint...our claimant here today in terms of his ability to

function, had no serious impediment in terms of restrictions of

activities of daily living or difficulties in maintaining social

functioning. But it did have at least a moderate degree in terms

of maintaining concentration, persistence and pace. And the

moderate limitation would [also] be in the ability to perform

activities within a schedule, maintain regular attendance and be

punctual within customary tolerances. The ability to work in

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coordination or proximity with others, without being distracted by

them. The ability to complete a normal work day or work week

without interruptions from psychologically based symptoms. And

to perform at a consistent pace without unreasonable number and

length of rest periods...With that type of residual functional

capacity, it being applied say to this hypothetical claimant...would

there be any occupations to which he might transfer any of the

skills he developed in conjunction with his [past ] work?

(TR. 168-169). Mr. Sholtis replied that there were several jobs which he

believed the plaintiff could perform, which included work as an intake

interviewer, lower level sales work and telemarketing. (TR. 169).

IV. Standard of Review

When reviewing the Commissioner’s denial of disability benefits, this

court is limited to determining whether the Commissioner’s denial is supported

by substantial evidence. Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988).

Substantial evidence is “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.

389, 401 (1971). It is less than a preponderance of the evidence but more

than a mere scintilla. Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir.

1999)(citing Ventura v. Shalala, 55 F.3d 900, 901(3d Cir. 1995). While it is

true that the district court may not engage in fact-finding, it is commonplace

for the district court to go beyond the ALJ’s decision and look to the record in

order to determine whether substantial evidence supported the ALJ’s findings.

McCrea v. Comm’r of Soc. Sec., 370 F.3d 357 (3d Cir. 2004). 

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V. Discussion 

 As noted above, the plaintiff is proceeding pro se. A review of the

Complaint, and his Statement of the Case and Argument, indicates that the

plaintiff’s primary complaint on appeal is that the ALJ’s decision is not

supported by substantial evidence. Specifically, the plaintiff claims that the

ALJ “ignored” the opinion of Dr. Galdieri that the plaintiff’s psychiatric

impairments prevented him from working at any kind of employment during

the closed period in question. The plaintiff also claims that the records from

his prior application for benefits should have been reviewed by the ALJ, but

were not. The plaintiff also believes that he was prejudiced by questions

asked by the ALJ relative to a law suit the plaintiff was involved in, which had

no bearing whatsoever upon his claim for disability benefits. 

The Commissioner argues that the sole issue before the court is

whether substantial evidence supports the ALJ’s conclusion that, despite his

impairments, the plaintiff could perform certain work with restrictions for an 8-

hour work day. (Doc. No. 7).

Initially, it is apparent that despite the plaintiff’s many statements to the

effect that he is claiming only a closed period of disability, December 1, 2001

through March 1, 2003, many aspects of his arguments suggest that he is

attempting to reopen and/or relitigate the prior grant of benefits for the closed

period June 1, 1997 through September 5, 2001. For example, in his Request

for Review of Hearing Decision/Order dated March 23, 2004, the plaintiff

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The plaintiff originally told the ALJ that he was requesting a closed

period of December 1, 2002 through March 1, 2003, however, he had

misspoken, and the correct period was clarified as December 1, 2001 through

March 1, 2003. (TR. 165).

13

states:

All evidence was not considered. My prior file, which was

an approved claim, was not available at the hearing and the judge

only considered current evidence. My condition is the same as in

the previous claim with mild improvement. 

(TR. 6). 

The plaintiff also insists in his Statement of the Case that the ALJ’s file

was incomplete because the ALJ did not review psychiatric treatment records

dating as far back as 1994. He complains, “...absent were the reports from

Community Counseling Services which documented a history since 1969 of

mental illness.” (Doc. No. 27, unpaginated)(emphasis in original). In a motion

for extension of time to file a brief in support of his appeal, the plaintiff

requested the court to order Community Counseling Services to produce

records “from 1969 forward ..” He specifically requests certain reports from

1994. (Doc. No. 14). 

The plaintiff is incorrect in his assumption that the prior approved closed

period records needed to be reviewed by the ALJ. This is because the plaintiff

specifically advised the ALJ at the hearing held on October 1, 2003, that he

was requesting a closed period, December 1, 2001 through March 1, 2003.2

(TR. 156, 165). The prior case records are irrelevant to the closed period

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under review. 

The court notes that the plaintiff told the ALJ that he believed that he

remained disabled after the prior closed period ended due to the fact that he

did not receive any type of treatment. He told the ALJ that if he had been in

treatment, he could have maintained steady work. (TR. 162). He stated that

the reasons he did not get treatment were primarily because he did not have

any money or insurance. He told the ALJ that he had only recently restarted

treatment within the past five months, which would have been approximately

May 2003. The ALJ did have those recent treatment records available to him

for consideration. (TR. 141-148).

Additionally, the plaintiff complains that despite being granted benefits

for the prior closed period, he received no insurance coverage in connection

with that grant of benefits. He apparently believes that he was entitled to

ongoing medical insurance secured by the Social Security Administration. As

noted, he maintains that it was this lack of insurance, and the concomitant

inability to pay for and receive appropriate treatment, which caused his

continued disability through March 1, 2003. The plaintiff is mistaken in his

assumption that he was entitled to any type of ongoing Social Security health

care benefits. The prior closed period ended September 5, 2001.

The plaintiff also argues that the ALJ ignored a report of Dr. Galdieri

which the plaintiff believes stated that he was completely disabled. Dr.

Galdieri prepared two reports, one dated January 29, 2003, and the other

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dated December 22, 2004. Neither report expresses an opinion that the

plaintiff is disabled by his psychiatric impairments. The plaintiff is correct,

however, that the ALJ did not consider the report of December 22, 2004. It

is not in the record. It was generated approximately 11 months after the

January 26, 2004 decision in this matter. The report therefore is irrelevant to

the closed period under review. 

Furthermore, as noted, there is nothing in Dr. Galdieri’s report of

January 29, 2003, which supports the plaintiff’s claim that Dr. Galdieri

expressed an opinion that the plaintiff is totally precluded from any type of

work as a result of his combined mental impairments. Even though the report

details the results of some objective psychological testing (the WAIS-III test

results, for example) it is otherwise largely a compendium of the plaintiff’s

subjective complaints and observations about himself and his impairments.

Other than to note that the plaintiff’s continuity of thought was sometimes

tangential, Dr. Galdieri’s findings were not indicative of an individual who is

incapacitated by mental illness. In fact, Dr. Galdieri stated:

In regards to his employment history, he seems to have no

real insight as to what has happened to him in terms of the job

market. He does say in somewhat vague terms that his

depression and poor concentration seemed to interfere with his

ability to maintain employment. He believes that he worked full

time from 1970-1994, and since that time, the jobs that he did

hold were piecemeal...

...He reports that in the past he has never had any difficulty

dealing with supervisors, co-workers, or the public. He has been

arrested but it is interesting that he was able to file his own lawsuit

and win it...

(TR. 104-107). There is no merit, therefore, to the plaintiff’s claim that the ALJ

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“ignored” evidence of his disability in the form of Dr. Galdieri’s reports.

There is also no merit to the plaintiff’s complaint that the ALJ did not

take into consideration the prior ALJ decision of October 12, 2001, which

granted the June 1, 1997 through September 5, 2001, closed period of

disability. That decision is in the record, and was referred to by the ALJ in his

decision. (TR. 10, 26-29). Even if the ALJ had failed to take the prior decision

into consideration, there would be no error because that decision is not

relevant to the application under review. 

There is also no merit to the plaintiff’s claim that he was prejudiced by

certain questions the ALJ asked him regarding a lawsuit the plaintiff allegedly

successfully brought and prosecuted, pro se, against the Luzerne County

Prison. It is true that the ALJ did inquire as to what happened to the alleged

award of damages in that case, but there is nothing in the decision to indicate

that the fact of the lawsuit influenced the ALJ one way or the other. The ALJ

stated regarding the lawsuit, “He eventually won a quarter of a million dollars

award but stated he did not feel he will ever collect that money.” (TR. 12). The

ALJ did not draw attention to the fact that the plaintiff brought the claim pro se,

or in any other manner imply that the lawsuit had any bearing upon the

plaintiff’s ability to concentrate or maintain a sustained effort towards a goal.

The plaintiff makes many allegations that the evidence relied upon by

the ALJ was either flawed, produced by unqualified individuals, or

misinterpreted by the ALJ. The following excerpt from the plaintiff’s reply to

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the respondent’s response is representative of these complaints:

...[T]he defendants talk a little about Dr. Galdieri’s

examination. The defendant raises the fact that I can dress, pay

bills, etc. Usually to any extent any person can do this. The fact

is Dr. Galdieri’s Diagnosis is:

Bipolar Disorder II with Generalized Anxiety

Disorder...Schizoid Personality and Psoriasis, enlarged prostate,

elevated lipids and past history of numerous surgeries.

Psychological stressors: Financial, Chronic mental health

issues.

Dr. Galdieri also puts a Global Assessment of Functioning

(GAF) at 50 which indicates a serious impairment of social,

occupational and school functioning. Also on page 6 of Dr.

Galdieri’s report he states there is little or no ability to deal with

work stresses. He also states there is little or no ability to maintain

attention or concentration.

(Doc. No. 31, p.4)(emphasis in original).

The plaintiff is referring to Dr. Galdieri’s report of December 22, 2004,

which as noted above, did not exist at the time of the decision under review.

Furthermore, even if Dr. Galdieri made such diagnoses and/or statements at

some point, that fact, in and of itself, does not entitle the plaintiff to Social

Security benefits. Whatever the diagnosis, the claimant must still provide

sufficient evidence that he has met the Act’s statutory definition of disability.

Petition of Sullivan, 904 F.2d 826, 845 (3d Cir. 1990). 

In order to qualify for Social Security disability benefits a claimant must

demonstrate that he is unable “to engage in any substantial gainful activity by

reason of any medically determinable physical or mental impairment which

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can be expected to result in death or which has lasted or can be expected to

last for a continuous period of not less than 12 months.” 42 U.S.C. A. 423

(d)(1)(A)(1991); Heckler v. Campbell, 461 U.S. 458, 460 (1983). Furthermore,

the mere memorialization of a claimant’s subjective statements in a medical

report does not elevate those statements to a medical opinion. Craig v.

Chater, 76 F.3d 585, 590 n. 2 (4th Cir. 1966). An ALJ may discredit a

physician’s opinion on disability that was premised largely on a claimant’s own

account and symptoms and limitations when the claimant’s complaints are

otherwise properly discounted. Fair v. Bowen, 885 F. 2d 597, 605 (9th Cir.

1989).

The ALJ stated regarding the plaintiff’s perception of his mental

limitations:

During the requested closed period of December 1, 2001,

through March 1, 2003, the claimant’s problems were not totally

disabling to him. He was not taking medications or receiving

treatment during this period, nor did he have any hospitalizations.

There is no evidence to establish that the claimant met or equaled

any listing of impairments during the closed period...

...In reaching the determination that the claimant is able to

perform work during the closed period, as testified to by the

vocational expert, the claimant’s subjective allegations of

limitations have been carefully considered pursuant to the criteria

set forth in Social Security Ruling 96-7p and 20 C.F.R. 404.1529.

In this regard, his pain and limitations are subjective and not

susceptible to measurement by reliable techniques, therefore, the

extent to which his limitations affect the individual’s functional

ability to do basic work activities is difficult to evaluate.

Nevertheless, in this case, while it is doubtless true that the

claimant is prohibited by his overall condition from performing

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certain kinds of work; the claimant was not precluded from all

work. Based on the record...he lives alone in a room, and

performs all his activities of daily living. He goes shopping,

changes the bed linens, watches television, as well as takes care

of his personal hygiene and has no physical impairments. There

is no medical or psychological opinion in this case which finds that

the claimant is totally unable to work.

(TR. 14, 15). 

The ALJ did not find the plaintiff’s testimony entirely credible as it

pertained to the plaintiff’s perceived inability to concentrate and maintain a

minimum productivity level due to his depression and ADHD diagnoses.

Credibility determinations as to a claimant’s testimony regarding his limitations

are for the Administrative Law Judge to make. VanHorn v. Schweiker, 717

F.2d 871, 873 (3d Cir. 1983). “Because he had the opportunity to observe the

demeanor and to determine the credibility of the claimant, the Administrative

Law Judge’s observations concerning these questions are to be given great

weight.” Shively v. Heckler, 739 F.2d 987, 989-90 (4th Cir. 1984). The ALJ

gave precise reasons for the weight he gave to the plaintiff’s testimony, which

are valid. Most notably, the ALJ referenced the Agency’s Psychiatric Review

Technique Assessment prepared by Dr. Mascetti dated January 27, 2003.

(TR. 112-129). That assessment indicated that the plaintiff had only “mild”

restrictions of daily living or difficulties in maintaining social functioning;

“moderate” limitations as far as maintaining concentration, persistence, or

pace, and that there were only one or two episodes of decompensation of

extended duration. (TR. 15). The ALJ noted correctly that these findings did

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not satisfy, or equal, the criteria of listing 12.08 relating to personality

disorders. 

The plaintiff disputes that he was capable of working, even if the work

did not require sustained periods of concentration. He writes in his Statement

of the Case:

It is clear that most people can transfer some skills to a job

other than what they were trained for but can they sustain it! It is

also clear that if one thinks about it you can find a job for anyone.

A person with an I.Q. of 10 can be a movie extra. A comatized

person can test mattresses.

(Doc. No. 27, unpaginated)(emphasis in original). 

Our review, however, indicates that there are inconsistencies between

the record on the whole, and the plaintiff’s testimony regarding his mental

impairments and their impact upon his ability to work. Although it is

undisputed that Dr. Galdieri noted that the plaintiff’s thoughts did appear to be

tangential, his findings for the most part demonstrate that the plaintiff is

capable of sustained gainful activity. Dr. Galdieri noted that during the course

of the evaluation, especially performance on the IQ testing, the plaintiff’s

concentration was “quite good” although the plaintiff stated that his

concentration is poor “in a work type environment.” Dr. Galdieri noted that the

plaintiff’s areas of strength included his ability to learn an unfamiliar task within

a given time period and visual motor dexterity, and that his weaknesses were

in dealing with the ability to nonverbally size up a social situation, nonverbal

abstract reasoning, and nonverbal concept formation. As noted above, Dr.

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Galdieri did not render an opinion that the plaintiff was incapable of working.

In fact, Dr. Galdieri stated he believed that, if granted benefits, the plaintiff “is

capable of managing benefits in a competent manner on his own behalf.” (TR.

107).

Furthermore, the Agency intake clerk who did the initial interview with

the plaintiff when he filed this claim for benefits wrote:

The claimant’s concentration did not affect his answering

questions during the disability interview. He spoke very well.

Robert was well groomed & he dressed neat, clean and casual.

He appears to be an intelligent individual. (TR. 60).

The court notes further that the plaintiff had no difficulty in representing

himself at the hearing in this matter, and that the pleadings he has filed in

connection with his appeal appear to be complete and are adequate for

meaningful review. It is also noteworthy that there is no record that any health

care professional ever took the plaintiff off of work, or that he was ever

terminated from a job due to poor performance. It appears that the plaintiff

stopped working whenever he felt that the stresses of a particular job caused

him to become overwhelmed. 

In summary, there is no medical opinion or evidence to support the

plaintiff’s claim that he was completely disabled from any and all work as a

result of his combined mental impairments for the closed period December 1,

2001 through March 1, 2003. As a result, the ALJ did not err in concluding

that the plaintiff did not meet the Act’s statutory requirements to show

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disability, and the decision should not be disturbed on appeal.

VI. Recommendation

On the basis of the foregoing, IT IS RECOMMENDED that the plaintiff’s

appeal of the decision of the Commissioner (Doc. No. 1), be DENIED. 

s/ Malachy E. Mannion

 MALACHY E. MANNION

United States Magistrate Judge

Dated: August 26, 2005

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