Pizarro-Osorio v. Commissioner of Social Security

Filing 18

MEMORANDUM AND OPINION AND ORDER remanding this case to the Commissioner of Social Security Signed by Judge Gustavo A. Gelpi on 12/23/08.(sm)

1 2 3 4 5 6 7 8 9 10

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO MARIA PIZARRO-OSORIO Plaintiff v. COMMISSIONER OF SOCIAL SECURITY Defendant CIVIL NO. 08-1404 (GAG)

MEMORANDUM OPINION AND ORDER Plaintiff, pursuant to 42 U.S.C. § 405(g), seeks judicial review of the final decision of the

11 Commissioner of Social Security denying her application for disability insurance benefits from 12 March 25, 1995 to December 31, 2000, date in which she last met insured status. Upon review of 13 the administrative record the court concludes that the Commissioner's decision is not supported by 14 substantial evidence, hence must be vacated. 15 Plaintiff filed the present claim for disability benefits on May 25, 2004, alleging disability

16 benefits as of March 25, 1995. Previously, she filed another claim on November 25, 1995, claiming 17 the same date of disability. This claim was denied by an administrative law judge ("ALJ") on 18 August 26, 1997, and subsequently by the Appeals Council on April 6, 1999. (Tr. 23). In regards to the present claim, the ALJ found that plaintiff had a "severe combination of 19 20 impairments: bronchial asthma, and an affective disorder". (Tr. 25). He also found that said 21 impairment and symptoms "have more than minimal effect on the claimant's ability to perform basic 22 work related activities. Therefore, they constitute "severe impairments"." (Tr. 25). The ALJ then 23 went on to conclude that "the claimant had the residual functional capacity to work in a clear 24 environment involving the lifting of up to ten (10) pounds frequently and up to twenty (20) pounds 25 occasionally, sit for six (6) hours, during an 8-hour workday, and walk up to six (6) hours, during 26 an 8-hour workday." (Tr. 26). The ALJ also noted that plaintiff was diagnosed with major 27 depressive disorder; however, said evidence post-dated the last insured date of December 31, 2000. (Tr. 27).

Civil 08-1404 (GAG) 1

2

The commissioner in his memorandum of law (Dtk12 at page 9) notes that on January 29,

2 1996 a Disability Determination Services physician reviewed plaintiff's medical records on behalf 3 of the agency and completed a physical RFC assessment (Tr. 81-85). This is the only physical RFC 4 assessment of record. In the same, contrary to the ALJ's determination that a severe impairment was 5 present, Dr. Lorena Díaz Trancón determined that plaintiff had no exertional limitations. (Tr. 82). 6 The ALJ, thus must have either (i) discredited Dr. Díaz Trancón's medical determination, or (ii) seen 7 other more favorable evidence of disability. Notwithstanding, the ALJ, as a lay fact-finder, was not 8 at liberty to determine plaintiff's RFC as he did, without a proper medical basis in the record.
st 9 Rivera-Torres v. S.H.H.S., 837 F. 2d 47 (1 Cir. 1988). Here, no medical expert (examining or non1 10 examining) has reached the same RFC determination as the ALJ.

11

This case accordingly must be REMANDED to the Commissioner for further proceedings.

12 Specifically, the ALJ must properly determine plaintiff's RFC between the dates object of this 13 judicial review claim. The ALJ's final RFC determination must be based on a medical evidence of
2 14 record, that is, a proper RFC finding, physical and/or mental, by a medical expert.

15 16 17 18 19 20 21 22 23

SO ORDERED. In San Juan, Puerto Rico this 23rd day of December, 2008.

S/Gustavo A. Gelpí GUSTAVO A. GELPI United States District Judge

The ALJ correctly noted that on June 16, 1996 the Commonwealth State Insurance Fund granted plaintiff total disability. (Tr. 26, 305). The state agency documents, however, do not 24 provide a RFC determination which could in fact support the ALJ's exact conclusion. 25 26 The Court notes that on June 26, 1996 Dr. Enrique Vassallo personally evaluated plaintiff, completed a psychiatric evaluation and diagnosed her with a dysthymic disorder (Tr. 108-111). The 27 ALJ, however, does not mention this in his decision, only noting that a diagnosis of major disorder was not reached until after December 31, 2000 (Tr. 27).
2

1