Soto-Valentin v. Commissioner of Social Security

Filing 22

OPINION AND ORDER re 1 SOCIAL SECURITY COMPLAINT, filed by Rosa M. Soto-Valentin. Signed by US Magistrate Judge Camille L. Velez-Rive on 1/9/13.(ljt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ROSA SOTO-VALENTIN,
Plaintiff,
v.
CIVIL NO. 11-1837 (CVR)
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

OPINION AND ORDER
INTRODUCTION
Plaintiff Rosa Soto-Valentín (hereafter plaintiff “Soto-Valentín”) filed this action for
judicial review of the final decision of the defendant, the Commissioner of Social Security
(hereafter “Commissioner”), denying her application for a period of disability and ensuing
disability benefits. (Docket No. 1). Plaintiff Soto-Valentín submits the administrative
determination denying her a period of disability because of a moderate depressive disorder
as of December 1, 2004, should be set aside for the administrative decision that she could
still perform her past relevant work was not supported by substantial evidence.1 On
January 30, 2012, the Commissioner answered the Complaint and filed a copy of the
administrative record. (Docket Nos. 7 and 8). On February 1, 2012, plaintiff Soto-Valentín,
through her legal representative, Atty. Salvador Medina De-La-Cruz, consented to proceed
before the Magistrate Judge. (Docket No. 9).2 On May 30, 2012, Atty. Medina De-La-Cruz

1

2

U.S.C. Sec. 405(g) provides for judicial review of the final decision of the Commissioner.
“... [t]he court shall have power to enter, upon the pleadings and transcript
of the record, a judgment without remanding the cause for rehearing”. Section 205(g).

The government has already provided a general consent to proceed before a Magistrate Judge in all Social
Security cases. Title 28, United States Code, Section 636(b)(1)(A), (c)(1) and (c)(2); Fed.R.Civil P. 73(a).

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Opinion and Order
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filed plaintiff’s memorandum of law. (Docket No. 18). Thereafter, the Commissioner filed
his memorandum. (Docket No. 21).
BACKGROUND
On January 18, 2006, plaintiff Soto-Valentín filed her application for disability
benefits alleging onset date of disability since December 1, 2004, because of a mental
condition. After the application was initially denied, the requested administrative hearing
was held. On May 9, 2009, the presiding Administrative Law Judge (“ALJ”) issued an
opinion finding plaintiff Soto-Valentín not disabled. The Appeals Council denied the
request for review.
Plaintiff Soto-Valentín seeks herein judicial review of the final decision of the
Commissioner on grounds the ALJ did not deploy the legal standard when he submitted
hypothetical questions to the vocational expert at the administrative hearing. Plaintiff
submits the questions did not convey all of plaintiff’s limitations, and as such, ignored vital
medical evidence and relevant facts. Plaintiff’s memorandum of law also submits the ALJ
failed to rely on the opinion of the treating physicians for not giving proper weight or
explaining why same was not considered. (Docket No. 18, p. 3).
The Commissioner’s memorandum of law summarizes the medical evidence of
record which served as ground to the ALJ’s findings. It also refers to the vocational expert’s
testimony insofar that plaintiff Soto-Valentín worked in the tuna cannery industry which
is an unskilled job not requiring formal education. Upon plaintiff being found able to retain
the residual functional capacity for simple, repetitive tasks that need not interact with the

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public and have only occasional interaction with co-workers and supervisors, plaintiff’s
emotional condition did not preclude performance of same.
The ALJ considered the medical evidence of record, the testimony of a vocational
expert, as well as allowed plaintiff’s legal representative to ask questions to the vocational
expert. Then, on May 19, 2009 the ALJ issued an opinion finding plaintiff retained the
residual functional capacity to perform a full range of work at all exertional levels, except
for executing complex instructions. The residual functional capacity allowed Soto-Valentín
to perform work that was simple, repetitive, unskilled, not involving contact with the public
and frequent contact with supervisors and co-workers. As such, the limitations allowed
plaintiff to perform her past relevant work and she was considered not under disability.
ADMINISTRATIVE AND PROCEDURAL HISTORY
Plaintiff Soto-Valentín claimed disability due to a non-exertional condition, that is,
a mental impairment diagnosed as moderate severe depression. Plaintiff Soto-Valentín
waived her appearance at the administrative hearing. (Docket No. 7, Trans., p. 19). The ALJ
concluded that plaintiff Soto-Valentín’s mental condition was a depressive disorder,
moderate in intensity, which resulted only in slight limitations to her capacity to perform
regular work activity. (Id., p. 20).
THE ALJ’S DECISION AND THE APPEALS COUNCIL
The ALJ applied in his administrative process the evaluation process mandated by
law, insofar as concluding that plaintiff: (1) met the non-disability requirements for a period
of disability and disability insurance benefits and is insured for benefits through December
31, 2006; (2) had not engaged in substantial gainful activity since the alleged onset date

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of disability in the year 2004; (3) allegations of severe impairments or combination thereof
did not have more than a minimal affect on her ability to perform basic work-related
activities, and did not constitute a severe impairment; (4) plaintiff did not have an
impairment or combination that meets or equals the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1; (5) upon consideration of the entire record plaintiff had the
residual functional capacity to perform the full range of all type of work from onset date of
disability in 2004 and up to the date she was last insured. Considering plaintiff’s residual
functional capacities for all type of work, with the slight limitation of following and
executing complex instructions, the ALJ determined she could not perform her previous
kind of work as a tuna factory worker.
LEGAL ANALYSIS
The Court’s review is limited to determine whether the ALJ deployed the proper legal
standards and found facts upon the proper quantum of evidence. See Manso-Pizarro v.
Secretary of Health and Human Services, 76 F.3d 15, 16 (1st Cir. 1996). The ALJ’s findings
of fact are conclusive when supported by substantial evidence, 42 U.S.C. § 405(g), but are
not conclusive when derived by ignoring evidence, misapplying the law, or judging matters
entrusted to experts. Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999); Da Rosa v. Secretary
of Health and Human Services, 803 F.2d 24, 26 (1st Cir. 1986); Ortiz v. Secretary of Health
and Human Services, 955 F.2d 765, 769 (1st Cir. 1991).
To establish entitlement to disability benefits, the burden is on the claimant to prove
that she 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

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Act if he/she is unable “to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less than
12 months.” 42 U.S.C. § 423(d)(1)(a). A claimant is unable to engage in any substantial
gainful activity when the claimant is not only unable to do his/her previous work but,
considering age, education, and work experience, cannot engage in any other kind of
substantial gainful work which exists in the national economy, regardless of whether such
work exists in the immediate area in which he/she lives, or whether a specific job vacancy
exists, or whether he/she would be hired if he/she applied for work.

42 U.S.C.

§ 423(d)(2)(a).
In making a determination as to whether a claimant is disabled, all of the evidence
in the record must be considered. 20 C.F.R. § 404.1520(a). A five-step sequential
evaluation process must be applied to every case in making a final determination as to
whether a claimant is or not disabled. 20 C.F.R. §§ 404.1520; see Bowen v. Yuckert, 482
U.S. 137, 140-42 (1987); Goodermote v. Sec. of Health & Human Servs., 690 F.2d 5, 6-7 (1st
Cir. 1982).
Through step one the ALJ determines whether the claimant is engaged in
“substantial gainful activity.” If he/she is, disability benefits are denied. §§ 404.1520(b).
If not, the decision-maker proceeds to step two, through which it is determined whether the
claimant has a medically severe impairment or combination of impairments. See §§
404.1520(c). If the claimant does not have a severe impairment or combination of
impairments, the disability claim is denied.

If the impairment or combination of

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impairments is severe, the evaluation proceeds to the third step, in order to determine
whether the impairment or combination of impairments is equivalent to one of a number
of listed impairments that the Commissioner acknowledges are so severe as to preclude
substantial gainful activity. §§ 404.1520(d); 20 C.F.R. pt. 404, subpt. P, App. 1. If the
impairment meets or equals one of the listed impairments, the claimant is conclusively
presumed to be disabled. If the impairment is not one that is conclusively presumed to be
disabling, the evaluation proceeds to the fourth step, through which the ALJ determines
whether the impairment prevents the claimant from performing the work he/she has
performed in the past. If the claimant is able to perform his/her previous work, he/she is
not disabled. §§ 404.1520(e). If it is determined that the claimant cannot perform this
work, then the fifth and final step of the process demands a determination on whether
claimant is able to perform other work in the national economy in view of the residual
functional capacity, as well as age, education, and work experience. The claimant would be
entitled to disability benefits only if he/she is not able to perform other work. §§
404.1520(f). The ALJ in the instant case examined and analyzed plaintiff ’s case following
the relevant five steps above described, as applicable, although only examined same up to
step four upon finding Soto-Valentín could still perform her past relevant work.
The claimant has the burden, under steps one through four, of proving that he/she
cannot return to his/her former employment because of the alleged disability. Santiago v.
Secretary of Health and Human Services, 944 F.2d 1, 5 (1st Cir. 1991). In the present case,
plaintiff Soto-Valentín was found by the ALJ able to perform her previous past relevant
work as tuna factory worker and, thus, need not continue from the examination after said

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step four consideration. By determining the residual functional capacity for full range of
all kind of work, which logically follows that her past relevant work could be performed,
and upon the testimony of a vocational expert, the ALJ concluded the previous job in the
tuna factory was not precluded. Said job was one within the residual functional capacity,
for the vocational expert testified it was very elemental, repetitive and routine type of job.
(Docket No. 7, Transcript, p. 241).
Plaintiff’s memorandum of law submits several aspects of the case in regards to the
medical evidence and the combination of plaintiff’s impairments, particularly that no
proper weight was given by the ALJ to the treating physicians’ medical reports. (Docket No.
18, p. 3). Plaintiff’s memorandum also avers the vocational expert was not presented with
the full panoply of relevant hypothetical questions which accurately reflect all of plaintiff’s
limitations. (Id.). Plaintiff provides a synopsis of the various different reports with dates
as these appear on record as to the treating psychiatrist, Dr. Ariel Rojas-Davis (hereafter
“Dr. Rojas-Davis”). (Id., pp. 5-8). Still, plaintiff submits the residual capacity even upon
a diagnostic of major, depression, recurrent, severe, allowed for understanding and
remembering very short and simple instructions and respond to criticism from supervisors.
(Id., p. 7).
As to the vocational expert, plaintiff indicates that, upon questions of plaintiff’s
representative, for an individual with a profile of limited concentration and attention to no
more than 20 minutes consecutive and being absent four days a month, would preclude
performance of her past relevant work and any other work. (Docket No. 7, Transcript p. 7).

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Plaintiff avers the questions submitted by the ALJ to the vocational expert were not based
on the opinion of Dr. Rojas-Davis, the treating psychiatrist. (Id., p. 11).
The Court of Appeals the First Circuit has indicated an ALJ is “not required to recite
every piece of evidence that favored appellant.” See Stein v. Sullivan, 966 F.2d 317, 319 (7th
Cir. 1992) (noting that the level of articulation required is not precise). See 20 C.F.R. §
404.1527(d) ("We will always give good reason in our notice of determination or decision
for the weight we give your treating source's opinion); SSR 96-2p ("the notice of
determination or decision must contain specific reasons for the weight given to the treating
source's medical opinion, supported by the evidence in the case record, and must be
sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator
gave to the treating source's medical opinion and the reasons for that weight.").
The Commissioner, through the ALJ, is authorized to give greater weight to
testimony and reports of medical experts commissioned by the administrative agency than
to testimony and reports of other medical experts in determining whether a claimant is
disabled. Similarly, the ALJ is entitled to reject a treating physician’s conclusions that a
claimant is totally disabled and accept contradictory medical evidence in the record.
Keating v. Secretary of Health & Human Servs., 848 F.2d 271 (1st Cir. 1988). That more
weight is given to those reports of non-primary treating physician is not an error of the ALJ.
See Barrientos v. Secretary of Health & Human Servs., 820 F.2d 1, 2-3 (1st Cir. 1987). On
the basis of this legal precedent, the ALJ made the determinations as to plaintiff SotoValentín’s limitations as supported by the medical record and thereafter submitted the

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relevant questions to the vocational expert, as the opinion of the treating psychiatrists could
not be the only uncontroverted evidence regarding plaintiff’s impairments.
Plaintiff’s memorandum submits that the testimony of a vocational expert who, in
response to the ALJ's hypothetical questions, opined that plaintiff could perform a number
of jobs, may not serve the ALJ as substantial evidence to support a finding that plaintiff is
not disabled. Those hypothetical questions impermissibly omitted any mention of a
significant functional limitation arising from the uncontested medical condition and fatigue
symptoms associated with plaintiff’s chronic fatigue syndrome condition and thus were
insufficient. See Rose v. Shalala, 34 F.3d 13,19 (1st Cir. 1994) (remanding for further
proceedings because the ALJ did not ask the vocational expert proper questions about nonexertional limitations); see, e.g., Arocho v. Secretary of HHS, 670 F.2d 374, 375 (1st
Cir.1982).
However, the ALJ presented the vocational expert with the corresponding questions
as to limitations within the residual functional capacity for all kind of work with the
assessed restrictions of being limited to simple, repetitive tasks and without contact with
the public and occasional contact with co-workers and supervisors.
Notwithstanding the objection of plaintiff’s legal representative to the hypothetical
questions, the ALJ provided the vocational expert with the necessary premises as sustained
by the medical record on plaintiff’s limitations imposed by her mental condition. Plaintiff’s
legal representation added thereafter to the hypothetical questions for which the more

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stringent limitations appear on record but the ALJ did not consider them relevant and/or
based on credible determinations based on the consistent medical evidence of record.
The ALJ had a consultative evaluation by Dr. Armando Caro in June of 2003 in
which it was reported the patient had anxiety, depressed mood, anhedonia, poor sleep,
irritability, poor concentration and memory and worthless feeling. Medications prescribed
by the attending psychiatrist, Dr. Rojas-Davis were Prozac and Xanax. Dr. Caro noted
plaintiff was well-groomed and appeared her stated age, had fair eye contact and speech was
fluent, coherent and logical. She was also fully oriented in the three spheres and short,
recent and remote memory were preserved. Insight and judgment were fair. (Docket No.
7, Transcript, pp. 149-151).
Dr. Rojas-Davis, the treating psychiatrist completed a medical report on April 7,
2005, referring to initial visit in March of 2002. Plaintiff Soto-Valentín had several visits
throughout 2002-2005.

Dr. Rojas-Davis observed a depressed mood, somewhat

diminished short-term memory and frequent distraction in the last visit. The patient was
still described as being fully oriented, with preserved recent and remote memory, adequate
intellectual functioning, concentration, insight and judgement. The diagnosis was of major
depressive disorder with poor prognosis and ability to manage her own funds. (Id., p. 192).
A second report by Dr. Rojas-Davis appears for November 2005. It referred to no
withdrawal or isolation, generalized persistent anxiety, blunt effect, illogical thinking, panic
attacks, impaired impulse control and be easily distracted. The diagnosis remained the
same. Dr. Rojas-Davis considered the patient was limited in all work-related abilities and

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she could understand and remember very short and simple instructions, could not maintain
attention and concentration for extended periods, perform activities within a schedule,
maintain regular attendance and sustain an ordinary routine without supervision. Dr.
Rojas-Davis stated the patient’s impairments would cause her to be absent from work more
than four times per month as of March 15, 2002. (Id., pp. 177-192).
Dr. Carlos Vázquez, a state agency psychologist, indicated that from December 1,
2004 through August 2, 2006 plaintiff Soto-Valentín had a non-severe affective disorder,
a slightly depressed mood and no anxiety disorder. Restrictions of activities of daily living,
difficulties in maintaining social functioning and difficulties in maintaining concentration,
persistence or pace were considered mild. (Id., pp. 152, 163, 167).

Dr. Luis Sánchez, a

state agency psychiatrist, also assessed the mental impairments on May 24, 2007, for the
same time period above and concluded the affective disorder was not severe. Symptoms
were depressed mood, without an anxiety disorder and restrictions of daily living and in
maintaining concentration, persistence or pace were considered mild. It was also noted the
treating psychiatrist Dr. Rojas-Davis’ record showed a significant gap in treatment dates.
(Id., pp. 204, 208).
The vocational expert referred to plaintiff Soto-Valentín previous job as a quality
inspector in a tuna processing plant from 1977 through 2001. The job consisted mainly in
checking clean pieces of fish from a conveyor belt to make sure these were clean from bones
or scales and inspect tuna cans before sealing. She would not supervise other people and
was not a lead worker. Plaintiff Soto-Valentín left her work after being laid-off and did not

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work since that time. The previous job did not require formal education and can be learned
in one or two steps. The vocational expert testified at the administrative hearing that if
plaintiff was limited to simple, repetitive tasks, would not interact with the public and had
only occasional contact with co-workers and supervisors, Soto-Valentín could perform her
previous job in the tuna factory.
The ALJ considered the medical evidence from consultative medical experts that
plaintiff showed during examinations normal appearance, proper eye contact, was oriented,
and have preserved judgment and insight. The treating psychiatrist Dr. Rojas-Davis also
referred to the patient being fully oriented with preserved recent and remote memory,
adequate intellectual functioning and only mildly impaired short-term memory and
concentration. Medication prescribed was not increased during treatment. The frequency
of the visits to Dr. Rojas-Davis were reduced from monthly to bi-monthly during her
treatment period.
Courts give deference to the ALJ’s interpretation of the medical record and notice
that, although an ALJ is not at liberty to ignore medical evidence or substitute his own
views for uncontroverted medical opinion, upon the existence of conflicts in the medical
record from the report and sources, it is still not for the Court to resolve same. See Nguyen
v. Chater, 172 F.3d 31 (1st Cir. 1999); Lizotte v. Secretary of Health & Human Servs., 654
F.2d 127 (1st Cir. 1981) (the resolutions of conflicts in the evidence and the determination
of the ultimate question of disability is for him [the ALJ], not for the doctors or for the
courts). See also Rodríguez v. Secretary of Health and Human Servs., 647 F.2d 218, 222 (1st

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Cir. 1981). A treating physician’s opinion deserves credit when well-supported by medically
clinical and laboratory techniques and, as to Dr. Rojas-Davis, there is no indicia of having
performed a mental status examination between April and November 2005, mostly
reporting plaintiff’s subjective complaints, such as poor appetite and sleep, nor included
any progress or treatment notes to his two medical reports. The absence of such notes was
still not determinative to the ALJ for it appears as a mere reference at step two of the fivestep sequential consideration insofar that plaintiff’s depression was a severe impairment.
For the most part, Dr. Rojas-Davis’ findings are also for dates past plaintiff’s insured period
of December 31, 2006 –2007 and 2009.
To review the final decision of the Commissioner courts must determine if the
evidence of record meets the substantial evidence criteria. Substantial evidence is "more
than a mere scintilla and such, as a reasonable mind might accept as adequate to support
a conclusion". Richardson v. Perales, 402 U.S. 389 (1971), quoting Consolidated Edison Co.
v. N.L.R.B., 305 U.S. 197 (1938). The findings of the Commissioner as to any fact are
conclusive, if supported by the above stated substantial evidence.3 The court would set
aside a denial of benefits only if it is not supported by substantial evidence or if it is based
on a legal error. See Seavey v. Barnhart, 276 F.3d 1, 9 (1st Cir. 2001); Rodríguez, 647 F.2d
at 222.

3

Falu v. Secretary of Health & Human Servs., 703 F. 2d 24 (1st Cir. 1983).

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In view of the foregoing, this Magistrate Judge opines the decision of the
Commissioner is supported by substantial evidence in the record as whole, for which reason
it should be AFFIRMED.
CONCLUSION
For the reasons above discussed, this United States Magistrate Judge, having
carefully perused the record and considered whether there was substantial evidence in
support of the decision rendered by the Commissioner concludes the Commissioner’s
decision is supported by substantial evidence. As such, the Commissioner’s decision is
AFFIRMED.
Judgment to be entered accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, on this 9th day of January of 2013.
S/CAMILLE L. VELEZ-RIVE
CAMILLE L. VELEZ RIVE
UNITED

STATES

MAGISTRATE

JUDGE