Rivera v. Commissioner of Social Security

Filing 16

OPINION AND ORDER AFFIRMING the Commissioner of Social Security's determination and denying Claimant's petition for relief. Judgment shall enter dismissing 1 Complaint, filed by Juan A Rivera. Signed by Chief Judge Jose A Fuste on 1/8/10.(mrj)

1 2 3 4 5 6 7 8 9 J U A N A. RIVERA, Claimant, v.

U N IT E D STATES DISTRICT COURT D IS T R IC T OF PUERTO RICO

C i v il No. 08-2281 (JAF)

C O M M IS S IO N E R OF SOCIAL SECURITY, R e s p o n d e n t.

10 11 12 13 14 15 16 17 18 19 20 21 22

O P I N IO N AND ORDER C la im a n t, Juan A. Rivera, petitions this court under 42 U.S.C. § 405(g) to review the d e c is io n of Respondent, the Commissioner of Social Security ("Commissioner"), denying d is a b ility benefits to Claimant (Docket Nos. 1; 14); Commissioner opposes (Docket Nos. 9; 15). I. F a c tu a l and Procedural History W e derive the following facts from the parties' filings (Docket Nos. 1; 9; 14; 15) and the re c o rd in this case ("R.") (Docket No. 6). Claimant, a high-school graduate, was born on O c to b e r 23, 1953. (R. at 59.) He worked as a computer operator from April 1989 to July 1990 a n d as a sales associate from October 1994 to September 1995, and again from October 1998 to February 2004. (R. at 106.) He has also worked as a materials handler. (R. at 136, 431.) C la im a n t ceased working on February 6, 2004, citing ailments due to herniated vertebral discs, d iabe tes, major depression, Hepatitis C, fibrosis of the liver, and panic attacks. (R. at 87.)

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C la im a n t applied for disability insurance benefits on July 7, 2004 (R. at 59-62), which C o m m is s io n e r denied initially on January 25, 2005 (R. at 48), and again on reconsideration on M a y 15, 2005 (R. at 56). On May 17, 2007, Claimant appeared with counsel before

A dm inistra tiv e Law Judge ("ALJ") Gilbert Rodríguez to contest Commissioner's determination. ( R . at 427-59.) The ALJ issued a decision on October 31, 2007, upholding Commissioner's fin d ing of non-disability. (R. at 14-32.) T o reach his decision, the ALJ consulted medical evidence provided by Dr. Henry G o n z á le z , a gastrointestinal specialist; Dr. Angelo Rosado, an endocrinologist; Dr. William M a to s, a rheumatologist; Dr. Héctor Rodríguez ("Rodríguez"), Claimant's treating psychiatrist; D r. Reinaldo Kianes, a consultative psychiatrist; and various medical experts employed by the P u e rto Rico State Insurance Fund. (Id.) Claimant visited Rodríguez monthly for psychiatric trea tm en t beginning in January 3, 1997, until April 26, 2006. (R. at 410, 415.) Claimant later resu m ed his visits in May 2007. (R. at 410.) O n August 4, 2004, Rodríguez reported that Claimant's psychiatric symptoms, including m o o d swings, anxiety attacks, and obsessive-compulsive disorder, began sometime in 1996. ( R . at 353-56.) Rodríguez noted that he was capable of traveling alone; manifested an a p p ro p ria te attitude and behavior; spoke coherently in a normal tone of voice; exhibited no d e lu s io n s despite his depression and obsessive thoughts; was oriented in the three spheres of p e rs o n , place and time; possessed adequate attention during the interview; displayed no d e te rio ra tio n in intellect; had adequate insight; benefitted from treatment with Zoloft, an

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a n tid e p re ss a n t medication; and was capable of handling funds. However, Rodríguez also re p o rte d that Claimant lived at home with his parents; had recently attacked his father due to lo w tolerance for stress; had a sad mood; stated that he had many problems with concentration; ra re ly ventured outside the house except to attend meetings with Narcotics Anonymous; had e x p e rie n c ed panic attacks; and suffered from worsened depression and anxiety due to the failure o f his treatment for Hepatitis C. Rodríguez diagnosed Claimant with major depressive disorder, re c u rre n t, severe but without psychotic traits; obsessive compulsive disorder; and unspecified m o o d disorder. Rodríguez also opined that Claimant's prognosis was poor and that his "mood [ w a s] not adequate to engage in sustained activities," and "believe[d] that he is totally and p e rm a n e n tly disabled both emotionally and physically to engage in daily work activities." O n April 13, 2005, Rodríguez submitted to Commissioner his progress notes from C la im a n t 's clinical visits from August 25, 2004, to February 21, 2005, asserting that "[n]o p o sitiv e change has occurred in the patient's condition since 8/25/2004 up to now," and that C laim an t "is still in a depressive phase and is not able to engage in work functions." (R. at 3586 8 .) The notes show that Claimant consistently exhibited lethargy, sadness, and depression, but n o signs of risk of harm to himself or others. He remained under medication throughout this p e rio d , and his progress note on December 15, 2004, indicated that "[e]verything's fine." R o d ríg u e z also submitted a "Mental Residual Functional Capacity [`RFC'] Assessment" o n a form published by the Social Security Administration which he had completed on April 6, 2 0 0 5 , covering the period from December 1, 2004, through May 15, 2005. (R. at 411-14.)

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A c c o r d in g to Rodríguez' checked boxes, Claimant exhibited moderate limitations in his abilities to "understand and remember detailed instructions;" "carry out detailed instructions;" "sustain a n ordinary routine without special supervision;" "work in coordination with or proximity to o th e rs without being distracted by them;" "make simple work-related decisions;" "interact a p p ro p r ia te ly with the general public;" "accept instructions and respond appropriately to criticism from supervisors;" "get along with coworkers or peers without distracting them or e x h ib itin g behavioral extremes;" "maintain socially appropriate behavior and to adhere to basic s ta n d a rd s of neatness and cleanliness;" "respond appropriately to changes in the work setting;" " b e aware of normal hazards and take appropriate precautions;" and "set realistic goals or make p l a n s independently of others." Rodríguez also ticked boxes to note that Claimant displayed m a rk e d limitations in his abilities to "maintain attention and concentration for extended p e rio d s;" "perform activities within a schedule, maintain regular attendance, and be punctual w ith in customary tolerances;" "complete a normal workday and workweek without interruptions f r o m psychologically based symptoms and to perform at a consistent pace without an u n re a so n a b le number and length of rest periods." Furthermore, Rodríguez added in writing that C la im a n t had a history of mood swings, anxiety that was consistent with obsessive-compulsive d iso rd e r, and a worsening emotional condition due to unfavorable outcomes from his treatment f o r Hepatitis C. Rodríguez ended again with the remark that Claimant was in a state of d e p re ss io n that "disable[d] him for any work activity." Lastly, on May 15, 2007, Rodríguez

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w ro te a letter to certify that Claimant had resumed treatment that day after having foregone trea tm en t since April 26, 2006. (R. at 410.) K ia n e s, a consultative psychiatrist, made an independent examination of Claimant on S e p te m b e r 23, 2004. (R. at 332-34.) Kianes reported that, although Claimant had received a m b u la to ry psychiatric treatment since 1997, Claimant had no history of psychiatric h o s p ita l iz a t io n . As for daily activities, Kianes observed that Claimant was capable of taking c a r e of personal needs, assisted with household chores, and went shopping, but spent most days a t home in bed and had superficial relations with neighbors. As for Claimant's appearance and b e h a v io r, Kianes noted that Claimant arrived alone, had normal physical development, p o s s e ss e d good personal hygiene, cleanly dressed, made sporadic eye contact but was c o o p e r a tiv e , had no tics in mannerism, possessed normal motor activity and gait, was alert, was in contact with reality, and understood questions addressed to him. Kianes remarked that C laim a n t produced spontaneous speech with a rapid flow and exhibited an adequate affect, but s h o w e d an anxious mood that was occasionally hostile. With respect to Claimant's thoughts, K ian e s stated that Claimant exhibited no blocking, flight of ideas, suicidal or homicidal id e a tio n , delusions, phobias, obsessive ideas, ideas of persecution; that Claimant was coherent, re le v a n t, and logical; but that Claimant had to deal with multiple somatic complaints due to v a rio u s physical conditions. Kianes reported that Claimant did not appear to suffer from p e rc e p tu a l disturbances; was well oriented in the three spheres; had fair judgment and insight; a n d had preserved recent, past, and remote memory. However, Kianes also observed that

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C la im a n t had difficulty with immediate and short-term memory; could not concentrate on re c itin g the months of the year; asserted that both grapefruits and oranges are square; claimed to have difficulty with memories when asked the names of five towns; and asserted that he c o u ld not perform simple calculations. Kianes diagnosed Claimant with a mood disorder due to Hepatitis C and an adjustment disorder with anxious mood, and remarked that, based on K ia n e s ' observations, Claimant was capable of handling funds. In the course of Claimant's application for benefits, doctors employed by the State In s u ra n c e Fund also examined Claimant. Dr. Luis Vecchini submitted a report on

N o v e m b e r 24, 2004, that determined that Claimant exhibited affective disorders, specifically a mood disorder due to his physical condition, diminished concentration, and short-term m e m o r y. (R. at 385-98.) Vecchini rated Claimant's functional limitations, finding moderate f u n c tio n a l limitations in restriction of activities of daily living, difficulties in maintaining social f u n c tio n in g , and difficulties in maintaining concentration, persistence, or pace; and no l im i ta t io n s in terms of extended episodes of decompensation. Vecchini also appended a " M e n ta l RFC Assessment," dated the same day. (R. at 399-402.) Vecchini reported moderate lim itatio n in Claimant's abilities to "understand and remember detailed instructions;" "carry out d e ta ile d instructions;" "maintain attention and concentration for extended periods;" "perform a c tiv itie s within a schedule, maintain regular attendance, and be punctual within customary to le ra n c e s ;" "complete a normal workday and workweek without interruptions from p s yc h o lo g ic a lly based symptoms and to perform at a consistent pace without an unreasonable

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n u m b e r and length of rest periods;" "interact appropriately with the general public;" and "accept in s tru c tio n s and respond appropriately to criticism from supervisors." Vecchini noted no m a rk e d limitations in Claimant. Finally, Vecchini added in written remarks that Claimant ex h ibited "depression & diminished concentration & short term memory;" "is able to remember & carry out simple instructions but not complex ones;" "can maintain attention brief intervals;" a n d "can interact w/ supervisors." U p o n reviewing the record, Dr. Orlando Rebosedo, another consultative physician, o p in e d on November 24, 2004, that neither the overall medical evidence nor the treating p h ysician 's opinions supported the alleged intensity of Claimant's condition. (R. at 382.) R e b o s e d o noted that "TP's [sic] own progress notes, as opposed to what he describes in his re p o rt" failed to support Rodríguez' conclusions (Id.) On May 6, 2005, Rebosedo reported, " E v id e n c e in file fails supporting [sic] worsening of conds [sic]. Prior forms seems [sic] ready to be adopted." (Id.) T h e record also includes two vocational expert reports. The first, dated January 19, 2 0 0 5 , concluded that Claimant was capable of working as a surveillance system monitor, a s c h o o l-b u s monitor, and a call-out operator. (R. at 136.) The second opinion, dated May 10, 2 0 0 5 , drew the same conclusion, but explicitly stated that Claimant had "marked limitations due t o an emotional condition in areas such as: understanding and memory, sustain attention and p e r s i s t e n c e , social interaction and adaptation." (R. at 148.) Both opinions included codes co rresp o n d in g to the respective vocational expert in place of their names. (R. at 136, 148.)

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I n his decision, the ALJ assessed the credibility of Claimant's allegations based on his a p p e a r a n c e at the hearing and the aforementioned medical opinions. (R. at 29-31.) The ALJ n o ted that Claimant testified that he had suffered from migraine headaches and an emotional c o n d itio n beginning around 1991 or 1993, sustained injuries from an automotive accident in M a r c h 2003, and suffered from hand and wrist pain and a diminished ability to grasp. (R. at 2 5 .) The ALJ found that the totality of the evidence weighed against the alleged severity of C la im a n t's conditions. (R. at 29-31.) Citing the assessment of several vocational experts and th e Medical-Vocational Guidelines (the "Grids"), 20 C.F.R. pt. 404, subpt. P, app. 2, the ALJ c o n c lu d e d that Claimant is capable of performing jobs that exist in significant numbers in the n atio n al economy and, hence, is not disabled. (R. at 31-32.) O n September 10, 2008, the Appeals Council declined to review the ALJ's decision. (R. a t 7.) On November 7, 2008, Claimant filed the present petition in this court seeking review of th e ALJ's decision. (Docket No. 1.) Commissioner filed a memorandum of law on April 29, 2 0 0 9 (Docket No. 9), and Claimant filed his memorandum on June 8, 2009 (Docket No. 14), to which Commissioner responded on June 18, 2009 (Docket No. 15). II. S t a n d a r d of Review A n individual is disabled under the Social Security Act ("the Act") if he is unable to do h is prior work or, "considering his age, education, and work experience, engage in any other k in d of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d).

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T h e Act provides that "[t]he findings of the Commissioner . . . as to any fact, if supported by s u b s ta n tia l evidence, shall be conclusive." 42 U.S.C. § 405(g). Substantial evidence exists "if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support [the] conclusion." Irlanda-Ortíz v. Sec'y of Health & Human Servs., 955 F.2d 765, 7 6 9 (1st Cir. 1991) (internal quotation marks omitted) (quoting Rodríguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)). W e must uphold Commissioner's decision if we determine that substantial evidence s u p p o rts the ALJ's findings, even if we would have reached a different conclusion had we re v ie w e d the evidence de novo. Lizotte v. Sec'y of Health & Human Servs., 654 F.2d 127, 128 ( 1 s t Cir. 1981). In reviewing a denial of benefits, the ALJ must consider all evidence in the re c o rd . 20 C.F.R. § 404.1520(a)(3) (2009). Credibility and "[c]onflicts in the evidence are . . . f o r the [ALJ] ­ rather than the courts ­ to resolve." Evangelista v. Sec'y of Health & Human S e rv s ., 826 F.2d 136, 141 (1st Cir. 1987). We reverse the ALJ only if we find that he derived h is decision "by ignoring evidence, misapplying the law, or judging matters entrusted to e x p e rts ." Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999). III. A n a l y s is A lleg in g that the ALJ's decision was not based on substantial evidence, Claimant s p e c if ic a lly argues that the ALJ (1) improperly discredited the medical opinion of Claimant's tre a tin g doctor and (2) consulted faulty assessments by vocational experts that were

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u n a u th e n tic a te d and not based upon Claimant's true mental condition. (Docket No. 14.) We tre a t each contention in turn. A. M e d ic a l Evidence by Treating Source C la im a n t maintains that the ALJ gave insufficient weight to the opinion of Rodríguez, w h o treated Claimant's mental illness. (Id.) Commissioner argues that the ALJ properly w eigh ed Rodríguez' assessment against other medical evidence in the record. (Docket No. 15.) U n d e r the "treating physician rule," Commissioner must generally accord greater weight to the opinions of a claimant's treating sources than other sources because of the treating d o c to rs ' longitudinal perspective of the claimant's condition. 20 C.F.R. § 404.1527(d)(2). If "a treating source's opinion on the issue(s) of the nature and severity of [the claimant's] im p a irm e n t(s ) is well-supported by medically acceptable clinical and laboratory diagnostic te c h n iq u e s and is not inconsistent with the other substantial evidence in [the] case record, [ C o m m is s io n e r ] will give it controlling weight." Id. Nevertheless, deference to the treating p h ys ic ia n is not absolute: "A treating physician's conclusions regarding total disability may be re je c te d by [Commissioner] . . . when . . . contradictory medical advisor evidence appears in the re c o rd ." Keating v. Sec'y of Health & Human Servs., 848 F.2d 271, 276 (1st Cir. 1988). In the present case, there is ample evidence by consulting mental health experts that eith er differ from, or contradict, the opinion of Rodríguez, Claimant's treating psychiatrist. For in s ta n c e , Vecchini's Mental RFC Assessment reported significantly-less severity in Claimant's lim ita tio n s than Rodríguez' report, even though Vecchini's report predated Rodríguez' by only

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a few months. (R. at 399-401, 411-14.) Even more salient is Rebosedo's determination that R o d ríg u e z ' own progress notes on Claimant contradicted his assessment of Claimant's mental f u n c tio n a lity. (R. at 382.) Furthermore, Kianes' examination suggested that, while Claimant e x h ib ite d some antisocial traits and suffered from some deficiencies in memory, he was capable o f handling personal funds and carrying out household chores. (R. at 332-34.) L a stly, while Rodríguez believed that Claimant was disabled and unable to work (R. at 4 1 4 ), disability under the Act is a legal determination that is reserved to the ALJ, and medical e x p e rts are not qualified to render this ultimate legal conclusion. See Frank v. Barnhart, 326 F .3 d 618, 620 (5th Cir. 2003). Under the relevant regulations, a rating of extreme functional l i m i ta tio n in activities of daily living, social functioning, or maintenance of concentration, p ersisten ce , or pace, would render a claimant disabled. 20 C.F.R. § 1520a(c)(4). Similarly, four o r more episodes of extended decompensation would also render a claimant disabled. Id. V e c ch in i reported only moderate limitation in the first three categories and no episodes of d e c o m p e n s a tio n . (R. at 395.) Therefore, the ALJ properly weighed Rodríguez' opinions a g a in st countervailing medical opinions by other doctors to find that Claimant's mental lim ita tio n s were not as severe as Rodríguez believed. See Keating, 848 F.2d at 276. B. V o c a t io n a l Experts C la im a n t also argues that the ALJ improperly relied on unauthenticated assessments by v o c a tio n a l experts who lacked the necessary evidence on Claimant's mental health to make p ro p e r evaluations. (Docket No. 14.) Commissioner contends that the vocational reports are

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p r o p e r ly authenticated, and that the experts accounted for certain limitations in Claimant's m en tal capacity, even though their reports predated the ALJ's hearing. (Docket No. 15.) U p o n finding that a claimant is unable to return to his prior work, Commissioner bears th e burden of proving that the claimant could perform other jobs in the national economy. A roc h o v. Sec'y of Health & Human Servs., 670 F.2d 374, 375 (1st Cir. 1982). Commissioner m a y meet this burden by relying on the testimony of vocational experts, usually offered in resp o n se to hypothetical medical conditions posed by the ALJ at a hearing. Id. "But in order f o r a vocational expert's [opinion] to be relevant, the inputs into that hypothetical must c o rr e s p o n d to conclusions that are supported by the outputs from the medical authorities." Id. W h e re the vocational expert omits a significant functional limitation from his assumptions about th e claimant's health, the ALJ may not rely on this expert's opinion. Rose v. Shalala, 34 F.3d 1 3 , 19 (1st Cir. 1994). In the instant case, the ALJ found that Claimant was unable to perform any past relevant w o rk . (R. at 31.) The ALJ then consulted both the Grids and reports by vocational experts. ( I d .) Both vocational reports included codes to identify the responsible experts. (R. at 136, 1 4 8 .) Furthermore, while the vocational experts did not benefit from a hypothetical posed by th e ALJ at a hearing, the second vocational report specifically accounted for marked limitations in Claimant's ability to understand and remember, sustain attention and persistence, and social in te ra c tio n and adaptation. (R. at 148.) These assumptions correspond to the more severe M e n ta l RFC Assessment of Rodríguez, dated April 6, 2005 (R. at 411-14), rather than the

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m ild e r assessment of Vecchini from November 24, 2004 (R. at 399-402). Because the second v o c a tio n a l report was premised upon assumptions that were more severe than the ratings that th e ALJ ultimately accepted, the ALJ properly relied on the report to conclude that Claimant w a s able to perform other work in the national economy and, hence, not disabled. Accordingly, w e find that the ALJ's determination of Claimant's non-disability has support in substantial e v id e n c e and is, thus, conclusive. See 42 U.S.C. § 405(g). IV . C o n c lu s io n F o r the reasons stated above, we hereby AFFIRM Commissioner's determination and D E N Y Claimant's petition for relief (Docket No. 1). I T IS SO ORDERED. S a n Juan, Puerto Rico, this 8 th day of January, 2010. s /J o s é Antonio Fusté J O S E ANTONIO FUSTE C h ie f U.S. District Judge