Torres-Ortiz
Filing
23
OPINION AND ORDER re 1 SOCIAL SECURITY COMPLAINT, filed by Carmen M. Torres-Ortiz. Signed by US Magistrate Judge Camille L. Velez-Rive on 1/14/13.(ljt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
CARMEN M. TORRES-ORTIZ,
Plaintiff,
v.
CIVIL NO. 11-1892 (CVR)
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
INTRODUCTION
Plaintiff Carmen M. Torres-Ortíz (hereafter plaintiff “Torres-Ortíz”) filed this federal
complaint seeking 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).1
On February 21, 2012, the Commissioner answered the Complaint and filed a copy
of the administrative record. (Docket Nos. 6 and 7). On March 19, 2012, plaintiff TorresOrtíz filed, through Atty. Salvador Medina De-La-Cruz, a consent to proceed before the
Magistrate Judge. (Docket No. 9).2 On June 25, 2012, Atty. Medina De-La-Cruz filed
plaintiff’s memorandum of law. (Docket No. 19). Thereafter, the Commissioner filed his
memorandum. (Docket No. 22).
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).
Carmen L. Torres-Ortíz v. Commissioner of S.S.
Opinion and Order
Civil No. 11-1892 (CVR)
Page No. 2
BACKGROUND
On September 28, 2005, plaintiff Torres-Ortíz filed an application for a protected
period of disability benefits with onset date of August 13, 2004, because of a major
depressive condition. After the application was initially denied, the requested
administrative hearing was held on March 5, 2009.
Thereafter, the presiding
Administrative Law Judge (hereafter “ALJ”) issued an opinion finding plaintiff was not
disabled from onset date alleged of August 13, 2004 through the date she was last insured
for disability purposes, March 31, 2005. The ALJ ruled that, although plaintiff Torres-Ortíz
could not perform her past relevant work as a sewing machine operator, there were other
jobs within her residual functional capacity for light and unskilled work that were available.
As such, plaintiff was found not under disability. The Appeals Council denied the request
for review.
Plaintiff Torres-Ortíz submits in the Complaint and in her memorandum of law the
final decision of the Commissioner denying disability failed to present to the vocational
expert at the administrative hearing the hypothetical questions necessary to accurately
reflect all of plaintiff’s limitations and the ALJ did not give proper weight to the opinion of
treating sources and/or failed to explain the reasons for not giving proper credit to same.
(Docket No. 18, pp. 3, 4).3
3
The excessive use of italics, various fonts and use of bold and underlining simultaneously when referring to
administrative record and case law certainly dilute proper emphasis to relevant legal arguments and relevance of the
citations in the record. The Court also notes the recent tendency to raise objections to hypothetical questions or lack
thereof to the vocational expert and to the weight given to the treating physicians’ opinions (although good legal
arguments) need to be incorporated when appropriate and applicable to the case situation, not as pro-forma in plaintiff’s
memorandum of law.
Carmen L. Torres-Ortíz v. Commissioner of S.S.
Opinion and Order
Civil No. 11-1892 (CVR)
Page No. 3
The Commissioner’s memorandum of law discussed the ALJ’s opinion clearly
indicated the weight given to treating psychiatrist Dr. Ronald Malavé (hereafter “Dr.
Malavé”) from Centro de Salud Conductual del Oeste. Dr. Malavé reported the patient’s
most recent visit was February 2004, with complaints of crying spells, feeling depressed,
anhedonia and anxiety. There were no side effects from medication. (Docket No. 5,
Transcript, pp. 155-158). Dr. Malavé thereafter completed a questionnaire having first seen
the patient in January 2002 and a last visit on August 9, 2004. He opined plaintiff was
markedly limited in her ability to understand, remember and carry out very short and
simple instructions; was very limited in maintaining attention and concentration; and
moderately limited in the ability to interact with others. Dr. Malavé stated he believed
plaintiff would be absent from work more than four days per month. (Id.). The ALJ ruled
Dr. Malavé’s opinion was not supported by any progress notes for which it was not entitled
to controlling weight. For controlling weight, a treating source’s opinion must be well
supported by medically acceptable clinical and laboratory diagnostic techniques and
consistent with other evidence of record. There were progress notes from the Behavioral
Health Center - Ponce School of Medicine which also treated plaintiff Torres-Ortíz during
the relevant period indicating the patient was logical, coherent, relevant and well oriented,
with appropriate affect, judgment, thought process and content. These notes described the
patient as stable with prescribed treatment. (Docket No. 5, Transcript, pp. 19; 135-148).
The ALJ further considered the opinion of a clinical psychologist, Dr. Orlando E. Reboredo
(hereafter “Dr. Reboredo”), who upon a review of the record, opined plaintiff Torres-Ortíz
did not have a severe impairment before last insured date of coverage, March 31, 2005. (Id.,
Carmen L. Torres-Ortíz v. Commissioner of S.S.
Opinion and Order
Civil No. 11-1892 (CVR)
Page No. 4
pp. 180-181). Thus, considering the entire record, the ALJ determined plaintiff TorresOrtíz had the residual functional capacity to perform a full range of work at all exertional
levels, except that her mental impairment hindered performance of complex tasks, frequent
contact with the public and frequent contact with supervisors and co-workers. The ALJ
concluded Torres-Ortíz could perform unskilled, simple work activity, without contact with
the public and frequent contact with supervisors and co-workers. Although unable to
perform her past relevant work as a sewing machine operator, the ALJ, assisted by a
vocational expert’s testimony, found there were other jobs available within her residual
functional capacity and determined she was not under disability. (Id., pp. 22-23).
ADMINISTRATIVE AND PROCEDURAL HISTORY
After the initial application was denied, plaintiff Torres-Ortíz waived being present
at the administrative hearing, wherein the ALJ entertained the testimony of a vocational
expert, Dr. Miguel Pellicier.
The vocational expert testified in regard to plaintiff Torres-Ortíz previous work as
sewing machine operator , which was of medium level of exertion and semi-skilled. (Docket
No. 5, Transcript, p. 234). The ALJ proposed to the vocational expert the hypothetical facts
for a person such as plaintiff’s profile, with a maximum exertional capacity for light work
and requiring working for no more than two hours without at least a five minute break,
without contact with the public and occasional contact with the public and occasional
maximum contact with supervisors and co-workers. Since the occupation as sewing
machine operator required her to be sitting most of the day and was considered medium,
the vocational expert answered she would not be able to perform same. However, with
Carmen L. Torres-Ortíz v. Commissioner of S.S.
Opinion and Order
Civil No. 11-1892 (CVR)
Page No. 5
those proposed limitations, there were other jobs that were simple where plaintiff could
change body positions, that is, alternate positions at her discretion, such as garment folder
in the clothing manufacturing industry. There was also jobs as mounter. These jobs were
light, performed at a table not in an assembly line, where positions could be alternated, and
were available in significant numbers in the national economy. (Id., pp. 235-236).
The ALJ concluded that, since alleged onset date, plaintiff Torres-Ortíz’ mental
condition was moderate in intensity from a medical standpoint but was considered severe
for it imposed more than slight limitations in her capacity to perform regular work activity.
(Docket No. 5, Transcript p. 19). Interpreting the evidence in the manner more favorable
to plaintiff, the ALJ concluded the evidence of record as a whole established plaintiff’s daily
activities were moderately restricted, she had moderate difficulties in maintaining social
functioning, and had only one or two episodes of decompensation through date last insured
of March 31, 2005. (Id., p. 20). Plaintiff’s condition could be expected to result in sadness,
tension and forgetfulness, precluding complex work activity.4 Still, these were not of such
disabling frequency and intensity as to prevent her from performing simple, unskilled work.
The record also showed Torres-Ortíz received visits from friends and relatives, had
adequate interpersonal relationships and attended church regularly. (Id., p. 22).
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
4
The ALJ found Dr. Malavé’s conclusion as to markedly restricted in the ability to make occupational
adjustment was not supported by said psychiatrist’s own medical findings or by those other medical opinions and progress
notes which appear in the whole record. (Docket No. 5, Transcript, p. 22).
Carmen L. Torres-Ortíz v. Commissioner of S.S.
Opinion and Order
Civil No. 11-1892 (CVR)
Page No. 6
of disability and disability insurance benefits and is insured for benefits through March 31,
2005; (2) did not engage in substantial gainful activity since the alleged onset date of
disability on August 13, 2004; (3) allegations of severe impairment as to the mental
condition diagnosed as moderate major depression constituted a severe impairment for it
had more than a slight limitation in her capacity to perform work activity; (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 careful consideration of the entire record
prior to the date Torres-Ortíz was last insured for disability purposes, March 31, 2005, she
retained the residual functional capacity to perform light and unskilled type of work, except
jobs not involving contact with the public and/or frequent contact with supervisors and coworkers, affording the opportunity for a five minutes break after two hours of work. The
ALJ found above residual functional capacity did not allow plaintiff Torres-Ortíz to perform
her past relevant work as sewing machine operator, but with the assistance of the vocational
expert’s testimony, other jobs were identified that she could still perform, such as garment
sorter and mounter. (Docket No. 5, Transcript pp. 20-23).
The ALJ discussed the opinion of treating psychiatrist Dr. Malavé who opined the
patient was markedly limited because of her mental impairment. The ALJ noted Dr.
Malavé’s opinion was limited to a questionnaire where check-marks were placed and did
not list the dates of treatment nor explain the data on which he based his diagnostic
impression and conclusions. Besides the failure to include progress notes, Dr. Malavé’s
opinion was also contradicted by other medical evidence of record of treating sources from
Carmen L. Torres-Ortíz v. Commissioner of S.S.
Opinion and Order
Civil No. 11-1892 (CVR)
Page No. 7
the Ponce School of Medicine, which included progress notes and discharge summary, and
by the consultative evaluation of Dr. Reboredo. (Id., p. 19).
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 he 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 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
Carmen L. Torres-Ortíz v. Commissioner of S.S.
Opinion and Order
Civil No. 11-1892 (CVR)
Page No. 8
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
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
Carmen L. Torres-Ortíz v. Commissioner of S.S.
Opinion and Order
Civil No. 11-1892 (CVR)
Page No. 9
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 for at step four the ALJ considered plaintiff Torres-Ortíz
could not perform her past relevant work as a sewing machine operator.
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). Having determined
the residual functional capacity for full range of light type of unskilled work and through
the testimony of a vocational expert Dr. Pellicier, the ALJ concluded plaintiff Torres-Ortíz
was not under disability.
In plaintiff’s memorandum of law, she submits the ALJ failed to rely on the opinion
of the treating physician without explaining the weight given to accept or disregard same.
As above discussed, plaintiff’s allegation is incorrect for the ALJ clearly discussed the
reasons why Dr. Malavé’s opinion was not given full credibility.
Plaintiff also argued the ALJ should meet his burden as to the existence of jobs that
plaintiff could perform considering all her limitations as these are to be presented in the
Carmen L. Torres-Ortíz v. Commissioner of S.S.
Opinion and Order
Civil No. 11-1892 (CVR)
Page No. 10
hypothetical questions posed to the vocational expert. Plaintiff’s memorandum submits
that, unless a vocational expert’s testimony contains all relevant facts, it cannot be
considered to have probative value and such facts cannot be sufficient substantial evidence
when the ALJ has ignored evidence, misapplied the law or judge matters entrusted to
experts. Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999).5 If a vocational expert’s testimony
is to have probative value, the hypothetical questions posed must contain all relevant facts.
Arocho v. Secretary of Health and Human Services, 670 F.2d 374, 375 (1st Cir. 1982) (in
order for a vocational expert’s answer to a hypothetical question to be relevant, the inputs
into that hypothetical must correspond to conclusions that are supported by the outputs
from medical authorities).
The legal argument as to the vocational expert’s testimony is correct but uneventful
for, when the ALJ deploys the proper legal standards and finds facts upon proper quantum
of evidence, substantial evidence supports the administrative decision denying plaintiff’s
disability claim. 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
5
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 non-exertional limitations); see, e.g., Arocho v. Secretary of HHS, 670
F.2d 374, 375 (1st Cir.1982).
Carmen L. Torres-Ortíz v. Commissioner of S.S.
Opinion and Order
Civil No. 11-1892 (CVR)
Page No. 11
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.").
Additionally, 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. The ALJ presented arguments as to why the opinion of the
consultative medical advisor Dr. Reboredo was considered. The ALJ’s opinion also
discussed the extent of other treating sources’ opinion as to Torres-Ortíz’ mental condition
and how those other treating sources findings were supported by progress notes and
evaluations, for which reason these were given more weight than the one of the treating
psychiatrist, Dr. Malavé. 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).
A perusal of the medical evidence in the record as a whole is consonant with the
ALJ’s conclusions that plaintiff was a good informant in that she was able to provide an
adequate description of her personal, medical and occupational background to health
professionals and to disability interviewers. The mental impairment was diagnosed as a
moderate depressive disorder. Although plaintiff’s condition could have been expected to
result in sadness, tension and forgetfulness, precluding complex work activity and imposed
more than a slight limitation in her capacity to perform work, it was not of such disabling
Carmen L. Torres-Ortíz v. Commissioner of S.S.
Opinion and Order
Civil No. 11-1892 (CVR)
Page No. 12
frequency and intensity, to prevent performance of light unskilled work that required no
frequent contact with the public and occasional contact with co-workers and supervisors.
Regardless that plaintiff could not perform her previous job as a sewing machine operator,
which was of medium level of exertion and required productivity quota, the ALJ identified
other jobs within plaintiff’s residual functional capacity for light and unskilled work and
within the limitations above indicated that she could still perform.
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.6 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.
In view of the above discussed and upon examination of the record as a whole, this
Magistrate Judge opines the decision of the Commissioner is supported by substantial
evidence.
6
Falu v. Secretary of Health & Human Servs., 703 F. 2d 24 (1st Cir. 1983).
Carmen L. Torres-Ortíz v. Commissioner of S.S.
Opinion and Order
Civil No. 11-1892 (CVR)
Page No. 13
CONCLUSION
After having carefully perused the record and considered there was substantial
evidence in support of the decision issued by the Commissioner denying entitlement to a
period of disability and ensuing benefits, this United States Magistrate Judge determines
the Commissioner’s decision is AFFIRMED.
Judgment to be entered.
IT IS SO ORDERED.
In San Juan, Puerto Rico, on this 14th day of January of 2013.
S/CAMILLE L. VELEZ-RIVE
CAMILLE L. VELEZ RIVE
UNITED STATES MAGISTRATE
JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?