Rivera-Correa v. Commissioner of Social Security Administration

Filing 10

OPINION AND ORDER DISMISSING WITH PREJUDICE 1 Complaint filed by Carmelo A. Rivera-Correa. The Commmissioner's determination is AFFIRMED. Signed by Chief Judge Jose A Fuste on 1/8/10.(mrj)

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U N IT E D STATES DISTRICT COURT D IS T R IC T OF PUERTO RICO C A R M E L O A. RIVERA-CORREA, Claimant, v. M IC H A E L S. ASTRUE, R e s p o n d e n t.

C i v il No. 08-2294 (JAF)

O P I N IO N AND ORDER C la im a n t, Carmelo A. Rivera-Correa, petitions this court under 42 U.S.C. § 405(g) to re v ie w the decision of Respondent, Commissioner of Social Security Michael S. Astrue ("C o m m issio n er" ), denying Claimant's application for disability benefits. (Docket No. 1.) C laim an t filed a memorandum in support of his petition (Docket No. 8), and Commissioner f ile d a memorandum in opposition (Docket No. 9). I. F a c tu a l and Procedural History W e derive the following facts from the parties' filings (Docket Nos. 1; 6; 8; 9) and the re c o rd in this case ("R.") (Docket No. 5). Claimant was born on November 27, 1960. (R. at 2 2 .) He completed the twelfth grade and began college. (R. at 245.) He worked from 1986 to 1 9 9 1 as group leader at Abbott Pharmaceutical and from 1991 to June 2004 as pharmaceutical c o m p o u n d i n g supervisor at Isomedic. (R. at 139, 252.) On June 28, 2004, Claimant stopped

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w o r k in g due to "severe depressive symptoms." (R. at 218.) Claimant applied for Social S ec u rity benefits on October 5, 2005. (R. at 186.) O n July 5, 2006, Commissioner determined that Claimant was not disabled and, ac co rd in g ly, was not entitled to disability benefits under the Social Security Act. (R. at 35-40.) O n September 2, 2006, Claimant requested reconsideration of the determination. (R. at 31.) C o m m issio n er obliged and, on January 24, 2006, affirmed the earlier denial. (R. at 43-47.) O n February 24, 2006, Claimant requested an administrative hearing before an a d m in is tra tiv e law judge ("ALJ") (R. at 48), which took place before ALJ Soloman Goldman o n October 31, 2007 (R. at 50-53, 241). Claimant attended the hearing with counsel and te stif ie d regarding his alleged disability. (R. at 243-51.) A vocational expert, Dr. Margarita V a llad a re s-D íaz , also testified at Claimant's hearing. (R. at 251-54.) She opined that Claimant is unable to perform his past work (R. at 252), and she discussed lighter jobs available in su b sta n tial numbers in various industries (R. at 252-53). When asked by Claimant's counsel a b o u t a relatively severe condition of depression, Dr. Valladares opined that a person suffering fro m such would be "unable to perform any job in our national economy." (R. at 253-54.) A ls o before the ALJ was the record showing Claimant's history of chronic depression. C la im a n t first sought psychiatric treatment for anxiety in June of 2004; he saw Dr. Armando F o rtu ñ o -P a d illa twice in June and Dr. Raúl Benítez-Pérez once the following month. (See R. a t 218-32.) At that time, both doctors recommended rest from work for at least a month due to sev ere depression. (Id.)

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T h e evidence shows that Claimant next sought psychiatric care in May 2005, from D r. José A. Juarbe, who continued to see Claimant at least through July 2007. (R. at 153-61, 2 1 0 -1 7 .) The record contains two reports by Dr. Juarbe, along with his progress notes from v is its with Claimant. (Id.) Said notes document Claimant's attitude toward his workplace, s u g g e s t i n g that Claimant was, in fact, working during that time.1 (See R. at 155-61.) As a g e n e ra l matter, Dr. Juarbe reported that Claimant suffers from a "markedly severe" mental im p a irm e n t and has "marked" impairment in all four functional capacities, discussed below. (R . at 153-54, 212.) A ls o on record were medical findings and reports from the initial and reconsideration in v e stig a tio n s by Commissioner. Specifically, in 2006, psychiatrist Dr. J.A. Mojica-Sandoz e x a m in e d Claimant, and psychiatrist Dr. Luis Sánchez reviewed Claimant's medical records. (R. at 194-208, 231-33.) Dr. Mojica diagnosed mild to moderate dysthymic disorder (R. at 2 3 3 ) , and Dr. Sánchez rated Claimant's degree of limitation in relevant functional capacities as m ild (R. at 204). In 2007, psychiatrist Dr. Hazel A. Toledo-Espiet examined Claimant, and p sych iatrist Dr. Jeanette Maldonado reviewed Claimant's medical records. (R. at 170-84, 1878 9 .) Dr. Toledo diagnosed Claimant with a major depression disorder (R. at 189), and D r. Maldonado rated Claimant's degree of limitation in relevant functional capacities as mild to moderate (R. at 180).

The ALJ, however, affirmatively found that Claimant had "not engaged in substantial gainful activity since June 28, 2004." (R. at 16.)

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T h e ALJ issued his decision denying Claimant disability benefits on December 26, 2007. (R . at 11-24.) He found, inter alia, that Claimant has a severe impairment in that he suffers from a major depressive disorder; that Claimant does not have an impairment that meets or medically e q u a ls a listed impairment, discussed below; that Claimant has the residual functional capacity (" R F C " ) to perform a full range of work at all exertional levels but has some nonexertional lim ita tio n ; and, finally, that Claimant is not disabled, as defined by the Social Security Act. (R. a t 16-24.) In his written opinion, the ALJ surveyed Claimant's relevant medical history (R. at 1 6 -1 8 ); found that Claimant's mental impairment does not cause "marked" limitations in at least tw o categories of functional capacities, discussed below (R. at 18-19); and assessed and applied C la im a n t's RFC (R. at 19-23). O n January 2, 2008, Claimant sought review of the ALJ's decision from the Appeals C o u n c il (R. at 9-10), which denied review on September 12, 2008 (R. at 3-5). On November 12, 2 0 0 8 , Claimant filed the present petition in this court seeking review of the ALJ's decision. (D o c k e t No. 1.) Claimant filed a memorandum of law on March 24, 2009 (Docket No. 8), and C o m m is s io n e r filed a memorandum of law on April 21, 2009 (Docket No. 9). 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." § 405(g). Substantial evidence exists "if a

re a so n a b le 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 C la im a n t argues that the ALJ erred in comparing Claimant's impairment to a listed m e n t a l disorder and in assessing Claimant's RFC. (Docket No. 8 at 9-15.) Claimant alleges th a t the ALJ gave undue weight to non-examining physicians' opinions; improperly disregarded

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C la im a n t's treating physician's conclusions; made findings that contradicted both the evidence an d his other findings; and ignored relevant medical evidence. (Id.) S e c tio n 404.1520a describes a particular technique the ALJ must apply to assess a c laim e d mental impairment. See 20 C.F.R. § 404.1520a(a) (describing need for special te c h n iq u e ). The ALJ first must determine whether the claimant has a medically determinable im p a irm e n t and, if so, must both "specify the symptoms, signs, and laboratory findings that s u b s ta n tia te the presence of the impairment" and "rate the degree of functional limitation re su ltin g from the impairment." § 404.1520a(b). The ALJ must so rate as to four broad fu n ctio n al areas: Activities of daily living; social functioning; concentration, persistence, or p a c e ; and episodes of decompensation. § 404.1520a(c)(3). The ratings for the first three areas a re based on a five-point scale (none, mild, moderate, marked, and extreme); the rating for the f o u r t h area is based on a four-point scale (none, one or two, three, four or more). § 404.1520a(c)(4). If the ALJ rates the limitation in the first three functional areas as "none" o r "mild" and in the fourth area as "none," the ALJ will generally conclude that the impairment i s not severe. § 404.1520a(d)(1). Otherwise, the ALJ must continue the assessment by d eterm in in g whether the impairment meets or is equivalent in severity to a listed mental disorder a n d , if so, assessing the claimant's RFC. § 404.1520a(d)(2), (3). The ALJ's "written decision m u s t incorporate the pertinent findings and conclusions based on the technique." § 404.1520a(e)(2).

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T h e ALJ found that Claimant has a severe impairment, a major depressive disorder, and m ad e a specific finding as to the degree of limitation in each of the functional areas. (R. at 161 9 .) Next, and most relevant to this review, the ALJ determined that (1) Claimant's impairment, w h ile severe, neither meets nor is equivalent in severity to a listed mental disorder (R. at 18-19); a n d (2) Claimant had sufficient RFC to sustain gainful employment, albeit not the same work h e had performed before (R. at 19-23).2 On review, we must determine whether substantial e v id e n c e supports the ALJ's findings. See Irlanda-Ortíz, 955 F.2d at 769. T o determine that Claimant's impairment neither meets nor is equivalent in severity to a listed mental disorder, the ALJ had to find that Claimant's impairment did not match the c r it e r ia in either (1) paragraphs A and B of a particular section in the Code of Federal R e g u la tio n s ("Code"), 20 C.F.R. pt. 404, subpt. P, app. 1, pt. A, 12.04; or (2) paragraph C of s a m e , id. See 20 C.F.R. §§ 404.1520a(d)(2), 404.1525. He found that Claimant's condition did n o t match the description in either paragraphs B or C. (R. at 18-19.) F o r Claimant's impairment to match the criteria in paragraph B, the ALJ had to d e t e r m in e that Claimant has a sufficiently-extreme limitation in at least two of the four areas o f functional capacities. See 20 C.F.R. pt. 404, subpt. P, app. 1, pt. A, 12.04B. Instead, the ALJ f o u n d "mild" restriction in activities of daily living; "moderate" restriction in both social

These two findings are those explicitly disputed by Claimant in his memorandum. (See Docket No. 8 at 9-15.)

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f u n c tio n in g and concentration, persistence, or pace; and no episodes of decompensation. (R. a t 19.) We find substantial evidence on the record supporting this evaluation.3 F o r Claimant's impairment to match the criteria in paragraph C, the ALJ had to determ in e that Claimant experienced (1) repeated episodes of decompensation, each of extended d u ra tio n ; (2) a residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to c a u se the individual to decompensate; or (3) a current history of one or more years' inability to f u n c tio n outside a highly-supportive living arrangement, with an indication of continued need f o r such an arrangement. See 20 C.F.R. pt. 404, subpt. P, app. 1, pt. A, 12.04C. Upon review o f the record, we find that substantial evidence supports the ALJ's determination that none of th e s e conditions exist in Claimant's case (R. at 19). T o conclude, finally, that Claimant is not disabled, the ALJ first had to assess Claimant's R F C and then use that assessment to determine whether Claimant could perform his past re le v a n t work or, if not, nevertheless adjust to other work. See 20 C.F.R. §§ 404.1520(e), 4 0 4 .1 5 2 0 a (d )(3 ), 404.1545, 404.1560-.1569a. Section 404.1545 guides the ALJ's assessment o f RFC, which is defined as "the most [one] can do despite [one's] limitations."

Evidence to consider when rating a claimant's limitations in these four categories is described in a section of the Code, 20 C.F.R. pt. 404, subpt. P, app. 1, pt. A, 12.00C. We find that the record, on the whole, contains sufficient evidence to support the ALJ's rating for each. (See, e.g., R. at 187, 212, 232 (activities of daily living); R. at 153, 156, 157, 159, 161, 187, 188, 212, 217, 232 (social functioning); R. at 153, 156, 157, 173, 187, 189, 212, 232 (concentration, persistence, or pace); R. at 187, 231 (episodes of decompensation).)

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§ 404.1545(a)(1). The ALJ must use "all of the relevant medical and other evidence" to assess R F C . § 404.1545(a)(3); see also § 404.1545(c) (describing evidence relevant to mental lim ita tio n s ). Section 404.1529 guides the ALJ's evaluation of symptoms and their effect on a c la im a n t's capacity for work. See, e.g., § 404.1529(c), (d)(4). R e f e re n c in g relevant regulations, the ALJ found that Claimant has only nonexertional lim ita tio n s , in that he cannot perform complex tasks, perform under intense stress or pressure, o r deal with the public. (See R. at 19-22.) In so deciding, the ALJ considered Claimant's s ym p to m s , noting that "consultative evaluations have shown that the prescribed treatment and th e medication were effective in the control of [those] symptoms." (R. at 21.) He found p e rs u a siv e , "in view of the record as a whole," the assessments by state consultants who opined th a t Claimant is able to work. (Id.) He noted Dr. Juarbe's opinion to the contrary, but found s a id opinion insufficiently supported by the record evidence. (R. at 22.) Upon review of the re c o rd , we find that substantial evidence supports the ALJ's assessment. (See, e.g., R. at 167, 2 0 8 .) N e x t, the ALJ must determine whether the claimant, given his particular RFC, can p e rf o rm past relevant work. See §§ 404.1520(f), 404.1560(b). A vocational expert may be used to aid this determination. § 404.1560(b)(2). The ALJ found Claimant unable to perform his p a st relevant work, given Claimant's nonexertional limitations. (R. at 22.) Claimant does not d is p u te this finding (Docket No. 8), and we find it supported by substantial evidence (see, e.g., R . at 251-54).

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F in a lly, if the ALJ finds that the claimant's RFC precludes his return to past relevant w o r k , the ALJ must then determine whether said RFC nevertheless permits other work that e x ists in substantial numbers in the national economy. See §§ 404.1520(g), 404.1545(a)(5)(ii); s e e also §§ 404.1560-.1569a (guidelines for assessing vocationally relevant factors such as age, e d u c atio n , work experience, and work availability); 20 C.F.R. pt. 404, subpt. P, app. 2 ( " M e d ic a l Vocational Guidelines"); id. § 204.00 (framework for decisions involving solely n o n e x e rtio n a l limitations). With reference to both the framework provided by the Medical V o c a tio n a l Guidelines and the vocational expert's testimony, the ALJ determined that Claimant is "capable of making a successful adjustment to other work that exists in significant numbers in the national economy." (R. at 22-23.) Upon review of the record, we find that substantial e v i d e n c e supports this determination (see, e.g., R. at 251-54) and, thus, uphold the ALJ's a tte n d a n t conclusion that Claimant is not disabled. III. C o n c lu s io n In view of the foregoing, we hereby AFFIRM Commissioner's determination. We D E N Y Claimant's petition (Docket No. 1) and DISMISS WITH PREJUDICE all claims th e re in . 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 JOSE ANTONIO FUSTE Chief U.S. District Judge