Nieves-Robles v. Commissioner of Social Security

Filing 16

OPINION AND ORDER affirming denial of disability benefits. Signed by Judge Salvador E. Casellas on 2/27/12.(PR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
YANDELIS NIEVES-ROBLES
Plaintiff,
v.
Civil No. 11-1316 (SEC)
COMMISSIONER OF SOCIAL
SECURITY
Defendant.
OPINION AND ORDER
This is an action brought under § 205(g) of the Social Security Act 42 U.S.C. §405(g).
Plaintiff Yandelis Nieves-Robles (“Plaintiff”) seeks review of the Social Security
Commissioner’s (the “Commissioner”) denial of her mother’s application for disability
benefits. Docket # 1.1 Plaintiff filed a legal memorandum supporting her request (Docket
# 9), and the Commissioner opposed (Docket # 15). After reviewing the filings and the
applicable law, the Commissioner’s decision denying disability benefits is AFFIRMED.
Procedural and Factual Background
On February 17, 2006, Plaintiff’s mother, Eliza Robles-Agosto, then 61 years-old,
filed an application for disability benefits. Among the reasons for an alleged complete
disability, Robles-Agosto claimed high blood pressure, osteoporosis, gastritis, diverticulitis,
breast cancer, stomach hernia, gastric reflux, and depression. Tr., pgs. 19 and 23. Her
application and subsequent reconsideration were denied. Id., at p. 16.2 She then requested
a hearing before an administrative law judge (“ALJ”), which was held on May 23, 2008. Id.
Robles-Agosto and a vocational expert (“VE”) testified at the hearing. Id. But, after de novo

1

Plaintiff’s mother passed away in December 2010 while the case was pending at the
administrative level. Docket # 9, p. 2.
2

Nevertheless, Robles-Agosto began receiving Social Security retirement benefits in
September 2007. Id.

2
review, the ALJ denied the petition, finding that Robles-Agosto was capable of performing
medium work of different sorts, all available in significant numbers in the national economy.
Id., at 27.
To reach his conclusion, the ALJ compared Robles-Agosto’s medical history with her
hearing testimony. The medical history included records from at least four treating sources:
(1) Luis Perez-Toro, M.D., Robles-Agosto’s treating general practitioner since December
2006; (2) Miguel Godreau, M.D., a consulting specialist in internal medicine; (3) Oscar
Benitez, M.D., a consulting neurologist; and (4) Lilliana Bicchi-Consuegra, M.D., a
psychiatric who had treated Robles-Agosto since 2003. Tr. pgs. 20 and 21. The ALJ also
examined progress notes of treatment Robles-Agosto received at the State Insurance Fund.
Id., at 20. The following excerpt from the ALJ’s memorandum of opinion best illustrates the
ALJ’s methodology and findings:
The undersigned has paid special attention to the claimant’s
allegations of pain and discomfort, during the period at issue. In
evaluating the functional limitations resulting from her subjective
complaints, I considered the evidence in the record regarding the overt
symptoms typical of disabling pain, such as: severe muscle weakness,
atrophies, deformities, swelling, tenderness, marked spasm, joint
stiffness, wasting of muscle, range of motion limitation, weight loss, and
sensory-motor deficits. I also considered the type and amount of
medication prescribed, and the frequency of claimant’s doctor visits with
complaints of pain and discomfort. Claimant’s testimony at the hearing
has also been carefully considered, to the extent consistent with
treatment record and statements of health care providers.
In this case, the record shows that the claimant’s high blood
pressure is amenable to control and has not resulted in major end-organ
damage. She is a successful cancer survivor (given partial mastectomy
for carcinoma of right breast several years ago which has not recurred).
Granted that the claimant complains of residual underarm discomfort
(unknown if such discomfort is related to her having undergone the
partial mastectomy in the past), yet such discomfort does not prevent her
from moving her arms and shoulders within the ranges of normal. It is
further acknowledged that the claimant has stomach problems; that she
needs to take antacids and that she, in turn, is possibly limited by the
types of medications and dosages prescribed to her. Nevertheless,
medications such as Prevacid help her, and the rest of the record does not
show that she remains on a strict diet or that she is otherwise limited in
her function due to stomach problems. Upon considering that the
claimant was reported to be obese, it is acknowledged that she stands 6'

3
3 tall and weighs 163 pounds, but she is not limited in her functioning,
as evidenced by the fact that she has no gait disturbance and full ranges
of motion of mayor joints. Regarding her complaints of chronic multiple
joint pain, the record is consistent in showing that the claimant remains
with no significant neurological compromise. The undersigned has been
particularly persuaded by the fact that the progress notes from Dr. PerezToro, who is the claimant’s own treating medical source, were consistent
in indicating that the claimant did not have pain. The undersigned has
also been persuaded by the reports completed by Dr. Godreau and by Dr.
Benitez who found that the claimant had no major neurological
compromise, no gait disturbance, and normal hand function. They were
also consistent in reporting that the claimant did not have significant
limitations of movement of major joints—including her cervical region,
shoulders, arms, hands, back and lower extremities. The undersigned
thus gives great weigh to the reports of Dr. Godreau and Dr. Benitez,
because their findings are internally and externally consistent, both
physicians are specialists in their fields, and they conducted thorough
evaluations of the claimant.
Tr. pgs. 24 and 25.
On February 11, 2011, the Appeals Council denied Robles-Agosto’s request to review
the ALJ’s decision, and her daughter filed this suit two months later. Docket # 1. In essence,
Plaintiff contends that the ALJ made five reversible errors: (1) failed to require a medical
evaluation of Robles-Agosto (Docket # 9, p. 14); (2) presented a hypothetical to the VE that
failed to account for Robles-Agosto’s severe mental impairment (id., at 15); (3) “failed to
adequately consider [Robles-Agosto’s] allegations of disabling pain” (id., at 18); (4) “bas[ed]
his conclusions on his own medical opinion . . . where no other evidence support[ed] his
conclusions” (id., at 19); and (5) “cited only the evidence favorable to the Commissioner, to
the disregard of the overwhelming evidence to the contrary” (id., at 20).3 The Commissioner
opposed all of Plaintiff’s contentions. Docket # 15.
Standard of Review
The scope of review over the Commissioner’s final decision is limited both by statute
and case law. See 42 U.S.C. §405(g). Section 405(g) provides that the findings of the
3

Plaintiff also contends that the jobs the VE stated were available failed to comport with
the definition of “medium jobs.” Id., at 17-18. Plaintiff provides no legal citations as support for
this contention. Therefore, the Court need not consider it here. See Local Rule 7(a).

4
Commissioner “as to any fact, if supported by substantial evidence, shall be conclusive . . .
.” In Richardson v. Perales, 402 U.S. 389, 401 (1971), the United States Supreme Court
defined “substantial evidence” as “more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” The First
Circuit has therefore directed district courts within this Circuit to uphold the Commissioner’s
“findings . . . if a reasonable mind, reviewing the evidence as a whole, could accept it as
adequate to support his conclusion.” Irlanda Ortiz v. Secretary of H.H.S., 955 F.2d 765, 769
(1st Cir. 1991). Accordingly, even if the record could justify a different conclusion, the
Commissioner’s findings must be affirmed if supported by substantial evidence. Evangelista
v. Secretary of H.H.S., 826 F.2d 136, 144 (1st Cir. 1987). That is, absent a legal or factual
error in the evaluation of a claim, the Commissioner’s denial of disability benefits stands.
Sullivan v. Hudson, 490 U.S. 877, 885 (1989); Seavey v. Barnhart, 276 F.3d 1, 15 (1st Cir.
2001); Manso-Pizarro v. Secretary of H.H.S., 76 F.3d 15, 16 (1st Cir. 1996).
Applicable Law and Analysis
As stated above, Plaintiff first contends “that the ALJ was required to medically
evaluate Robles-Agosto. Docket # 9, p. 14. The Commissioner, however, points the Court
to 20 C.F.R. § 404.1527(f)(4), which affords administrative law judges with discretion to ask
for and consider the opinions of medical advisors on the nature and severity of an
impairment. He also underscores the SSA Office of Disability Adjudication and Reviews
Hearing, Appeals, and Litigation Law Manual, I-2-5, stating that the need for medical expert
opinion evidence is left to the administrative law judge discretion.4 Well-settled law supports
the Commissioner’s position. See e.g., Horn v. Astrue, 345 Fed. Appx. 235, 236 (9th Cir.
2009) (holding that an administrative law judge is not required to consult a medical expert
upon a denial of disability). Plaintiff’s first contention therefore lacks merit.

4

This manual is available at http://www.ssa.gov/OP_Home/hallex/halex.html, last visited
on February 23, 2012.

5
Next, Plaintiff takes issue with the hypothetical the ALJ presented to the VE, arguing
that it failed to account for the severe mental impairment of Plaintiff’s mother. Docket # 9,
p. 15. The following colloquy between the ALJ and the VE at the disability hearing suffices
to discard Plaintiff’s contentions in this regard:
ALJ: Simply, if we take into consideration [Robles-Agosto’s] testimony
as fact, taking into consideration the complaints about pain, movement
limitations, her frame of mind, her irritability, and her family problems
caused by her emotional condition, would she be able to perform any job
in the national economy based on your judgment?
VE: Her work flow is significantly reduced. She does not have any
opportunities.
Tr. p. 55. At any rate, as discussed below, the ALJ did not take Robles-Agosto’s testimony
“as fact.” This hypothetical thus has no impact on the present decision.
Plaintiff also argues that the ALJ erred by failing “to consider [Robles-Agosto’s]
allegations of disabling pain.” Docket # 9, p. 18. Plaintiff misses the mark on this front too.
The ALJ memorandum of opinion unequivocally shows that all of Robles-Agosto’s alleged
disabilities were considered. The ALJ nonetheless discounted such allegations against all
the contrary evidence of record and decided not to credit them. Indeed his remarks show as
much:
The record does not establish a severe or advanced physical or other
pathology, as evidenced by the claimant’s conserved daily activities and
functioning, her demeanor throughout the record, by statements and
assessments from examining and evaluating sources, and by other
evidence of record. Thus, the claimant’s allegations are found not
credible, nor do they result in limitations additional to the ones stated.
The record supports and the undersigned so finds, that the claimant’s
retained residual functional capacity is compatible with medium work
where climbing, kneeling, crouching, or crawling are performed
occasionally.
Tr. p. 25.
***
In sum, the above residual functional capacity assessment is
supported by the credible and substantial evidence which corroborates
that the claimant has no major neurological compromise. Her subjective

6
complaints are not of the intensity or severity alleged, nor do they
compromise the claimant’s retained residual functional capacity at
disabling levels.
Id., at 26; see also id., at 25-26 (setting forth specific findings as to Robles-Agosto’s
allegations of pain and discomfort). The ALJ was duty-bound to no more and no less. See
e.g., Da Rosa v. Secretary of Health and Human Services, 803 F.2d 24, 26 (1st Cir. 1986).
Lastly, Plaintiff contends that the ALJ based his conclusions on his own medical
opinion and “cited only the evidence favorable to the Commissioner . . . .” Docket # 9, pgs.
19 and 20. The record before the Court proves Plaintiff wrong. Among other things, the ALJ
weighed evidence from four medical sources, including Robles-Agosto’s personal treating
source, Dr. Perez-Toro. Tr. pgs. 20-21, and 23. Moreover, the ALJ’s opinion contains a
detailed account of Robles-Agosto’s negative past medical prognosis. Id. The ALJ, however,
determined that her medical problems were “amenable to remained controlled/stable with
treatment and medication.” Tr. p. 23. And again, as to Robles-Agosto’s hearing testimony
on her alleged disability, the ALJ found that “[t]he credible and substantial evidence, as well
as a longitudinal analysis of this claim supports that the allegations and medically determined
impairments are not of the frequency, intensity, or severity required to be disabling.” Id. The
record contains ample evidence to support these findings; therefore, Plaintiff’s last
contentions also fail.
Conclusion
Based on the foregoing, the ALJ’s decision is AFFIRMED, and Plaintiff’s complaint
is DISMISSED with prejudice.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 27th day of February, 2012.
s/ Salvador E. Casellas
SALVADOR E. CASELLAS
U.S. Senior District Judge

7