Baez v. Astrue

Filing 9

OPINION AND ORDER. After reviewing the parties filings and the applicable law, the Commissioners decision to deny Plaintiff disability benefits will be REVERSED, and this case will be REMANDED for further proceedings consistent with this opinion. Signed by Judge Salvador E Casellas on 3/18/2009.(THD)

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF PUERTO RICO M IL A G R O S BAEZ * * P l a in tif f * * v. * * C O M M IS S IO N E R OF SOCIAL * S E C U R IT Y * * D efendant * ***********************************

Civil No. 07-1646 (SEC)

O P I N IO N AND ORDER T h is is an action brought under 42 U.S.C. § 405(g), the "Social Security Act." P la in tif f seeks review of the Commissioner of Social Security's ("the Commissioner") denial o f social security benefits (Docket # 1). The Commissioner of the Social Security A d m in is tra tio n ("SSA") filed a Memorandum of Law in support of the decision to deny b e n e fits (Docket # 7), and Plaintiff filed her own Memorandum of Law (Docket # 6). After re v ie w in g the parties' filings and the applicable law, the Commissioner's decision to deny P la in tif f disability benefits will be REVERSED, and this case will be REMANDED for f u rth e r proceedings consistent with this opinion. S t a n d a r d of Review T h e scope of our judicial review of a Commissioner's final decision is limited both b y statute and case law. See 42 U.S.C. §405(g). Section 405(g) provides that the findings of th e Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . . ." In Richardson v. Perales, 402 U.S. 389 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 3 0 5 U.S. 197 (1938)), the United States Supreme Court defined "substantial evidence" as " m o r e than a mere scintilla. It means such relevant evidence as a reasonable mind might a c ce p t as adequate to support a conclusion." Id. at 401; see also Tsarelka v. Secretary of H .H .S ., 842 F. 2d 529, 534 (1st Cir. 1987). Moreover, the First Circuit has held that this d eterm inatio n of substantiality must be made on the record as a whole. See Ortiz v. Secretary o f H.H.S., 955 F.2d 765, 769 (1st Cir. 1991). Furthermore, written reports submitted by non-

2 C iv il No. 07-1646 (SEC) e x a m in in g physicians who merely reviewed the written medical evidence are not substantial e v id e n c e, although these may serve as supplementary evidence for the Administrative Law J u d g e ("ALJ") to consider in conjunction with the examining physician's reports. Irrizary v. C o m m is s io n e r of Social Security, 253 F. Supp. 2d 216, 218 (D.P.R. 2003). Lastly, "it is the S e c re ta ry's responsibility to choose between conflicting evidence." Burgos López v.

S e c re ta ry of H.H.S., 747 F.2d, 37, 41 (1 st Cir. 1984); see also Tremblay v. Secretary of H .H .S ., 676 F. 2d 11, 12 (1 st Cir. 1982). T o establish entitlement to disability benefits, the burden is on the claimant to prove th a t he is disabled within the meaning of the Social Security Act. See Bowen v. Yuckert, 482 U .S . 137, 146-47, n.5 (1987). It is well settled law that a claimant is disabled under the Social S e c u rity Act if he is unable "to engage in any substantial gainful activity by reason of any m e d ica lly determinable physical or mental impairment which can be expected to result in d e a th or which has lasted or can be expected to last for a continuous period of not less than 1 2 months." 42 U.S.C. § 423 (d)(1)(a). A claimant is unable to engage in any substantial g a in f u l activity when the claimant is not only unable to do his previous work but cannot, c o n sid e rin g age, education, and work experience, engage in any other kind of substantial g a in f u l work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or w h e th e r he would be hired if he applied for work. 42 U.S.C. § 423(d)(2)(a). In making this d e te rm i n a t i o n , the ALJ employs a five-step sequential evaluation process. 20 C.F.R. § 4 0 4 .1 5 2 0 ; see, e.g., Goodermote v. S.H.H.S., 690 F.2d 5, 6-7 (1 st Cir. 1982). T h e five-step inquiry made by the ALJ in determining whether a claimant is disabled is as follows. First, the ALJ asks: is the claimant currently employed? If so, she is not d is a b le d ; if she is not, then the ALJ must turn to the second question: does the claimant have a severe impairment (one which significantly limits his ability to perform work-related f u n c tio n s )? If not, then she is not disabled; if so, the ALJ must ask: does the claimant have a n impairment equivalent to those contained in the regulations' Appendix I? If so, then she

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is automatically rendered disabled. If not, then the ALJ must determine if the claimant's im p airm e n t prevents her from performing work that he has done in the past. If the ALJ d e ter m in e s that the claimant cannot perform her past work, then he must determine if c la im a n t's impairment will prevent him from performing other work of the sort found in the n a tio n a l economy. If the claimant cannot perform any such work, she is disabled. If she is c a p ab le of performing work available in the economy, then she is not disabled under the S o c ia l Security standards. See Goodermore, 690 F. 2d at 6-7. As stated above, the burden is on the claimant to establish that he is disabled, and u n a b le to return to his past work. Id. at 7. However, if the claimant meets this burden, then it is the Secretary's burden to show that there are other jobs in the national economy that the c la im an t can perform, notwithstanding his disability. Id.; see also, Torres v. Secretary of H. H . S., 677 F. 2d 167, 168 (1 st Cir. 1982); González-Alemán v. Secretary of H.H.S., 86 F. 3d 1 1 4 6 , 1996 U.S. App. LEXIS 11655 (1 st Cir. 1996). In satisfying this burden, the Secretary m a y rely on a set of rules, referred to as Grids, which are basically a matrix "combining d if f ere n t permutations of the four essential factors set out in the statute (age, education, work, ex p erien ce , and residual work capacity) and stating, as to each combination, whether a c la im a n t with those characteristics is disabled or not disabled." Vázquez v. Secretary of H .H .S ., 683 F. 2d 1, 2 (1 st Cir. 1982). W h e re a claimant has only strength limitations, that is, exertional limitations, the ALJ m a y rely on the Grids to meet the burden of determining that there are jobs available for the c la im a n t in the national economy which he can perform. González-Alemán, 1996 U.S. App. L E X IS 11655 at * 2. However, if the claimant has non-exertional impairments, the Grid may n o t accurately reflect the availability of suitable jobs. Id. That is, considering that the Grid is based on a claimant's exertional capacities, "it can only be applied when a claimant's none x e rtio n a l limitations do not significantly impair claimant's ability to perform at a given e x e rtio n a l level." Rivera-Rivera v. Barnhart, 330 F. Supp. 2d 35, 37 (D.P.R. 2004)(Rose v. S h a la la , 34 F.3d 13, 19 (1st Cir. 1994)). Therefore, in cases "where a nonexertional

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im p a irm e n t significantly affects claimant's ability to perform the full range of jobs he is o th e rw is e exertionally capable of performing, the Secretary must carry his burden of proving th e availability of jobs in the national economy by other means, typically through the use of a vocational expert." Miranda-Monserrate v. Barnhart, 520 F. Supp. 2d 318, 325 (D. P. R. 2 0 0 7 )(in ter n a l citations omitted). However, "should a non-exertional restriction be found to im p o se no significant limitation on the range of work a claimant is exertionally able to p e rf o rm , reliance on the Grid remains appropriate." Rivera-Rivera, 330 F. Supp. 2d at 37-38. I n considering whether a claimant's residual work capacity is reduced by nonex ertio n al limitations (i.e. a mental impairment), the Secretary must assess the claimant's m en tal capability for unskilled work, and his ability to cope with the demands of any work e n v iro n m e n t. See Miranda-Monserrate, 520 F.Supp. 2d at 326; Irlanda v. Secretary of H .H .S ., 955 F. 2d 765, 769-770 (1 st Cir. 1991). The first inquiry focuses on whether a c la im a n t is able to understand, remember, and carry out simple instructions, respond ap p rop riately to the normal work environment, and to deal with the changes in a routine work situ a tio n . Id. The second inquiry requires determining whether a claimant can be punctual, atten d work on a regular basis, accept supervision, and remain in the work place for an entire d a y. Id. at 326. Finally, an ALJ is a lay fact finder that lacks the expertise to make a medical c o n c lu sio n , and, as such, "he cannot interpret raw, technical medical data." Irrizary, 253 F. S u p p . 2d at 219 (citing Rivera-Torres v. Secretary of H. H. S., 837 F. 2d 4, 7 (1 st Cir. 1988); B e rr ío s v. Secretary of H. H. S., 796 F. 2d 574, 576 (1 st Cir. 1986)). F a c tu a l and Procedural Background M s . Baez was born in 1955, she has a fifth grade education, and work experience as a janitor, cafeteria employee, and nurse's aide. Ms. Baez alleges to have stopped working at h e r janitorial position with the Municipality of Yabucoa on June 30, 2002, due to her poor h e a lth . She suffers from a variety of medical conditions including asthma, circulation p ro b le m s , arthritis, back pain, which impedes her from lifting her arms, and kidney

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afflictions. Docket # 6 at 4. Baez filed for disability benefits with the SSA on October 8, 2 0 0 3 , but she was denied, first on January 28, 2004, and upon reconsideration on November, 3 of that same year. T.R. at 14. A hearing was then held before an ALJ, who found that c la im a n t was not disabled. Her request for review before the Appeals Council was also d e n ie d . Notwithstanding, this Court notes that Claimant filed a second application with the S S A , which led to a declaration of disability. See Docket # 8. The SSA found Claimant to h a v e become disabled on February 21, 2007, and awarded her benefits beginning 12 months b e f o re . Id. On August 16, 2006, the ALR entered an order declaring that "[b]ased on the a p p lic a tio n for a period of disability and disability insurance benefits filed on October 8, 2 0 0 3 , the claimant is not disabled . . ." T.R. at 22. The ALJ concluded that Claimant suffered f ro m severe impairments stemming from an affective disorder and back problems. T.R. at 1 6 . Furthermore, the decision stated that Claimant was not involved in gainful activity, and w a s unable to return to her previous past relevant work under 20 CFR 404.1565, which inclu d ed jobs as a cook and a janitor. T.R. at 17 & 21. Despite recognizing Claimant's d is a b ilitie s, the ALJ found her to possess the residual capacity to perform unskilled medium l i g h t work,1 for which a significant number of jobs are available in the national economy. T .R . at 21. T h e ALJ followed the five step inquiry into Plaintiff's application for benefits. As m e n tio n e d above, he found that Plaintiff was incapable of performing her past work, but that sh e had the residual functional capacity ("RFC") to do light work. See Tr. 15-21. This contrasted with the opinion of Claimant's treating physician, who concluded that she suffered
1

" A f te r consideration of the entire record, I find that the claimant has the residual functional capacity for lifting and/or c a r r y i n g 50 ponds occasionally, and frequently 25 pounds; she can sit/stand/walk for six hours in an eight hour workday; s h e is not limited in pushing and pulling; she can occasionally climb, stoop, and crawl; she should avoid concentrated e x p o s u r e to extreme cold and heat, and wetness and humidity; and, she should avoid even moderate exposure to fumes, o d o r s , dust, gases, and poor ventilation. From te mental standpoint, the claimant can learn, understand, remember, and e x e c u te simple, but not detailed or complex instructions; can sustained pace and attention, and activity without special s u p e r v is io n ; and, can interact with the public, coworkers, and supervisors; and can adjust to changes in work routines a n d environments." T.R. at 17.

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from severe major depression, and that she was unable to work given her poor prognosis. The A L J did not give weight to his conclusion, in part, because he did not ". . . [recommend] or p la c e [ ] Claimant in a hospital or a sheltered or highly supported living environment." T.R. a t 20. Due to this, and based on the State Agency's evaluation, and his own observations d u rin g the hearing, the ALR concluded "Claimant is an alert, fully oriented, logical, and c o h e re n t person, with preserved memory, preserved ability to provide information, and p re se rv e d capacity to described her symptoms." Id. Accordingly, the ALJ concluded that, in v ie w of Plaintiff's RFC, her age, education, and skills, the Medical Vocational Guidelines (a /k /a Grid) mandated a not disabled determination. T.R. at 21; see also 20 CFR § 404, S u b p a rt P., App. 2. This Court notes that in applying the Guidelines, the ALJ did not c o n s id e r the non-exertional limitations alleged by Plaintiff.

Applicable Law and Analysis C la im a n t alleges the following specific errors of law committed by the ALJ: 1) " . . .[ h e ] did not consider the nature and extent of the limitations arising from plaintiff's medical c o n d itio n s" ; 2) "[he] did not make a proper Residual Functional Capacity ("RFC") analysis b a se d on a physician's evaluation"; 3) "[he] did not give proper weight to the treating p h ys ic ia n 's medical reports . . ."; 4) [he] did not give proper weight to the testimony of the p lain tiff ." Docket # 6 at 3-4. Because this Court finds that Claimant's arguments are in te rtw in e d , they will be discussed together. Claimant alleges that the ALJ did not give proper weight to her treating physicians' re p o rts . For example, the ALJ discredited claimant's treating psychiatrist, Dr. Jaime M a r c h e n a ("Dr. Marchena"), who had evaluated patient on at least 18 occasions, because h e concluded she suffered from "severe, recurrent major depressive disorder," but did not g iv e specific scientific factors to substantiate his conclusions.2 T.R. at 18 & 290.

Dr. Marchena stated that, "[d]uring the evaluation and the follow-up visits patient, shows and is unable to i n t e r a c t properly with others and maintains poor social interaction with personal co-workers." T.R. at 480.

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N e v e rth e le ss , Dr. Marchena listed the battery of medicines prescribed to Claimant, including D e p a k o te , Navane, Temazepan, and Norrithyline, and based his opinion on her extensive tre a tm e n t history. T.R. at 288. Another psychiatrist, Dr. Llona Sanchez ("Dr. Llona"), found C laim a n t to suffer from uncontrolled bipolar affective disorder, and to be unqualified to h a n d le her funds. T.R. at 321. The ALR judge disregarded Claimant's treating psychiatrist's conclusion of severe d e p re ss io n . The focus of the ALR's criticism is on another psychiatrist's observation that she d id not suffer from deliriums or hallucinations. However, Dr. Marchena's conclusions were n o t based on said symptoms. Nevertheless, the ALJ gave greater weight to the State A g e n c y's evaluators, who found that Claimant had only moderate limitations. T.R. at 19. F u r th e rm o re , the ALJ discredited Dr. Marchena's conclusions, stating that they "do not seem to be a true reflection of the claimant's functioning." T.R. at 20. His basis for this was his p e rs o n a l observation of Claimant, and that "Dr. Marchena has not recommended or placed claim an t in a hospital or a sheltered or highly supported living environment." Id. This Court f in d s that there is no evidence, scientific or otherwise, that said actions would have been a p p ro p ria te , taking as true Mr. Marchena's finding Claimant as disabled, especially in light o f the fact that the record shows that she receives significant help and support from her sister a n d daughter. Furthermore, Plaintiff gave extensive testimony as to the support and help her f a m ily provides in her daily routine. T.R. at 495-499. The ALJ did not give credence to this t e s t i m o n y. Beyond the controversy regarding Claimant's mental health, the ALJ disregarded C laim an ts allegations regarding pain. He states to have not observed "the overt s ym t o m a t o l o g y typical of disabling pain," while he also considered the medication

p re sc rib e d to her and the frequency of her medical visits. T.R. at 19. In holding that her pain w a s not disabling he, ". . . found that heavy lifting or carrying may worsen her condition, but o th e rw is e she should function adequately." Id. No record citations, or specific medical c o n c lu s io n s were proffered to substantiate this conclusion. Furthermore, another of

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C la im a n t's treating physicians, Dr. Jorge Corretjer, concluded that "claimant cannot engage in work activities." T.R. at 17. However, more weight was given to the consulting physician, Dr. Alan Rapaport's (" D r. Rapaport") evaluation, which did not have significant conclusions regarding disability.3 N e v e rth e le ss , Dr. Rapaport did find that Claimant could only carry light objects. Id. A c c o r d in g ly, once again the ALJ gave greater weight to the State Agency's doctors' c o n c lu sio n that Claimant had a residual functional capacity for medium work, and could sit s ta n d or walk for six hours a day. T.R. at 18 F r o m the above, this Court finds that, especially in the case of Claimant's mental state, th e ALJ erred in substituting Claimant's treating physicians' medical opinions with his la ym a n opinion, and in disregarding Plaintiff's medical record and her testimony during the h e a rin g so lightly. W h e n a claimant has met the initial burden, as Plaintiff did here, of establishing that s h e cannot return to her previous work, the burden of proof shifts to the Secretary to prove th a t there are sufficient numbers of jobs in the national economy that the claimant can p erf o rm . Gonzalez-Aleman v. Secretary of HHS, No. 95-2168, 1996 U.S. App. LEXIS 1 1 6 5 5 , *2 (1st Cir. 1996). Although the Secretary may usually meet this burden by placing th e claimant within one of the subcategories contained in the social security regulations ("the G rid s" ), "where a claimant has non-exertional impairments, the Grid may not accurately re f le c t the availability of suitable jobs." Id. at * 4. In these circumstances, the testimony of a vocational expert should be procured. Id.; see also, Padilla v. Barnhart, Commissioner of th e H.H.S., 186 Fed. Appx. 19, 2006 WL 2008108, * 2 (unpublished)(finding that " [ e]x c lu s iv e reliance on the Grid is not appropriate in mixed exertional/non-exertional c a se s" ); Vázquez-Rosario v. Barnhart, Commissioner of H. H. S., 149 Fed. Appx. 8, 2005

In fact, Dr. Rappaport diagnosed Claimant with: 1) massive obesity, 2) mild h yp e rte n sio n , 3) chronic depression, 4) low back syndrome, 5) perennial asthma, 6) h irs u tis m , and 7) illiteracy. T.R. at 323.

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W L 2435747, * 2 (unpublished)(same). The reason behind procuring vocational evidence is th a t the fact that a claimant can, according to the Grids, technically perform a particular level o f work, does not automatically mean that she can function in the workplace. See Wingo v. B o w e n , Secretary of H.H.S., 852 F. 2d 827, 831 (5 th Cir. 1988). An ALJ must consider the a g g re g a te impact of all of a claimant's ailments. Id. In light of the above, the ALJ should have procured the evidence of a vocational e x p e rt to determine whether Plaintiff's RFC was further diminished by Plaintiff's none x e rtio n a l (not related to strength) limitations, i.e., her depression, and overall mental c o n d itio n . After reviewing the record, this Court finds that there could be legitimate room fo r interpretation in terms of the severity of Claimant's mental health conditions. However, a ll of the treating doctors agreed she did suffer from persistent depression. Due to this fact, re g a rd le ss of whether or not the depression was totally disabling or not, the circumstances w a rra n ted the use of a vocational expert, and greater ponderance of Claimant's actual ability to perform in a workplace environment. Furthermore, this Court understands that her back p a in should have also been factored in to the ALJ's interpretation of the Grid. Nguyen v. C h a te r, 172 F.3d 31, 36 (1st Cir. Mass. 1999)(holding "[p]ain can constitute a significant n o n - e x e r tio n a l impairment which precludes naked application of the Grid and requires use o f a vocational expert.") M o re o v e r, as stated above, when a claimant has exertional, plus non-exertional im p a irm e n ts , the Secretary must assess the claimant's mental capability for unskilled work, a n d his ability to cope with the demands of any work environment. See Irlanda-Ortíz, 955 F . 2d at 769-770. The first inquiry focuses on whether a claimant is able to understand, rem em b er, and carry out simple instructions, respond appropriately to the normal work en v iro n m en t, and to deal with the changes in a routine work situation. Id. The second inquiry r e q u ir e s determining whether a claimant can be punctual, attend work on a regular basis, ac ce p t supervision, and remain in the work place for an entire day. Id. at 770. This Court f in d s no substantial evidence in the record to support a finding that Plaintiff was able to

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c o n sis te n tly perform in the workplace. To the contrary, the record shows, on numerous o c c as io n s , that Plaintiff was unable to cope with simple daily situations, was unable to do v irtu a lly any house chores, and suffered from persistent depression, which her treating p h ys ic ia n s cataloged as severe. F u r th e rm o re , the ALJ also erred in his reasoning with regards to Dr. Marchena, and th u s minimized, in a manner tantamount to total disregard, the doctor's conclusion that C laim an t was unable to work. An ALJ must give considerable weight to treating physician's o p in io n s in determining disability, and may only disregard these with a showing of good c a u se , namely: (1) that they are brief and conclusory, (2) not supported by medically a c ce p ta b le clinical laboratory diagnostic techniques, or (3) are otherwise unsupported by the re c o rd . See Sánchez v. Commissioner of Social Security, 270 F. Supp. 2d 218, 221 (D.P.R. 2 0 0 3 ). The ALJ's conclusion that Plaintiff's mental condition was not as severe as alleged is not supported by the record. A s such, the ALJ's decision is hereby REVERSED, and this case is REMANDED f o r further proceedings consistent with this opinion. This Court does not encourage the ALJ to make a finding of disability. The ALJ must, however, further investigate, through v o c a ti o n al expert testimony, the extent to which Plaintiff's mental condition might have im p a c te d her ability to function in the workplace between 2003 and 2007, when she was d e c la re d disabled. S O ORDERED. In San Juan, Puerto Rico, this 18 th day of March, 2009. S/ Salvador E. Casellasla SALVADOR E. CASELLAS U.S. Senior District Judge

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