Ramos-Rosado v Commissioner of Social Security

Filing 17

OPINION AND ORDER re 1 SOCIAL SECURITY COMPLAINT, filed by Jose A. Ramos-Rosado. 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
JOSE A. RAMOS-ROSADO,
Plaintiff,
v.
CIVIL NO. 11-2048 (CVR)
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

OPINION AND ORDER
INTRODUCTION
Plaintiff José Ramos-Rosado (hereafter plaintiff “Ramos-Rosado”) filed this federal
complaint seeking judicial review of the final decision of the defendant, the Commissioner
of Social Security (hereafter “Commissioner”), denying his application for a period of
disability and ensuing disability benefits. (Docket No. 1). 1
On April 20, 2012, the Commissioner answered the Complaint and filed a copy of the
administrative record. (Docket Nos. 5 and 6). On May 18, 2012, plaintiff Ramos-Rosado
filed, through Atty. Salvador Medina De-La-Cruz, a consent to proceed before the
Magistrate Judge. (Docket No. 8).2 On May 24, 2012, Atty. Medina De-La-Cruz filed
plaintiff’s memorandum of law. (Docket No. 10). Thereafter, the Commissioner filed his
memorandum. (Docket No. 16).

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).

José Ramos-Rosado v. Commissioner of S.S.
Opinion and Order
Civil No. 11-2048 (CVR)
Page No. 2

BACKGROUND
On January 11, 2005, plaintiff Ramos-Rosado filed an application for disability
benefits with onset date of disability of January 20, 2003, due to cervical condition and a
mental component. After the application was initially denied, the requested administrative
hearing was held. Thereafter, the presiding Administrative Law Judge (hereafter “ALJ”)
issued an opinion finding plaintiff Ramos-Rosado was not disabled for he could still
perform his past relevant work or other jobs which were available in the national economy.
The Appeals Council denied the request for review.
Plaintiff Ramos-Rosado now seeks herein judicial review of the final decision of the
Commissioner on grounds the hypothetical questions posed to the vocational expert at the
administrative hearing did not accurately reflect all of the limitations for the responses to
be considered substantial evidence in support of the ALJ’s determination. Plaintiff RamosRosado also avers the ALJ failed to rely on the opinions of treating physicians for not giving
proper weight or explaining why same were not considered. (Docket No. 10, pp. 3-4). The
Commissioner’s memorandum of law summarizes the medical evidence of record that
served as ground to the ALJ’s findings. (Docket No. 16). In addition to the vocational
expert, there was a medical expert Dr. Charles Payne (hereafter “Dr. Payne”) who testified
at the administrative hearing. Said expert opined plaintiff Ramos-Rosado could not lift
heavy objects and was limited as to no more than ten pounds occasionally. Dr. Payne also
testified he was unable to offer an opinion regarding plaintiff’s ability to stand during an
eight-hour work shift for he did not examine the patient but he considered, based on the
medical record, that plaintiff Ramos-Rosado should not be working and the musculo-

José Ramos-Rosado v. Commissioner of S.S.
Opinion and Order
Civil No. 11-2048 (CVR)
Page No. 3

skeletal condition present equated the severity of the listing of impairments with the
presence of degenerative disc disease in the neck and psychomotor weakness. (Docket No.
5, Transcript, pp. 318-320).
The ALJ considered the medical evidence of record, the testimony of a vocational
expert Dr. Héctor Puig (hereafter “Dr. Puig”) and of the medical expert, Dr. Payne, and
issued an opinion on June 30, 2009, finding plaintiff Ramos-Rosado retained the residual
functional capacity to perform his previous work as a quality control clerk. Through the
vocational expert’s testimony, the ALJ also ruled there were other jobs, of light level of
exertion, that were simple and unskilled that plaintiff Ramos-Rosado could also perform,
such as ticketer or ticket labeler. These jobs existed in significant numbers in the national
economy and were within the residual functional capacity of plaintiff, for which he was
found not under disability.
ADMINISTRATIVE AND PROCEDURAL HISTORY
Plaintiff Ramos-Rosado claimed disability due to exertional and non-exertional
conditions during a relevant period of January 23, 2003, through June 30, 2007, the date
of his last insured status. After the application was denied initially and on reconsideration,
the requested administrative hearing was held on June 18, 2009. Plaintiff waived being
present at the hearing, wherein the ALJ entertained the testimonies of a vocational and a
medical expert and plaintiff was represented by counsel. The ALJ stated plaintiff RamosRosado had complaints of having headaches, cervical pain, partial motor seizures, chronic
lower back pain and a major depressive disorder with panic attacks. On June 30, 2009, the
ALJ issued an opinion denying the application upon finding plaintiff Ramos-Rosado was

José Ramos-Rosado v. Commissioner of S.S.
Opinion and Order
Civil No. 11-2048 (CVR)
Page No. 4

able to perform his previous relevant work as a quality control clerk for it was light,
unskilled, simple and routine.
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 June 30,
2007; (2) had not engaged in substantial gainful activity since the alleged onset date of
disability on January 20, 2003; (3) allegations of severe impairments or combination
thereof because of headaches, cervical pain, partial motor seizures, chronic lower back pain
and moderate major depressive disorder with panic traits, had more than a minimal affect
on ability to perform basic work-related activities, and constituted severe impairments; (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 Ramos-Rosado retained the residual functional capacity to perform
the full range of light type of work except for executing complex instructions. He was also
considered able to follow and execute simple and repetitive instructions and, thus, perform
unskilled, simple, repetitive work activity not involving contact with the public and/or
frequent contact with co-workers and supervisors. (Docket No. 5, Transcript pp. 16-21).
The above residual functional capacity would not allow the former work that was of
medium level of exertion, such as merchandise delivery person, but still allowed another
relevant work as quality control clerk that was of light exertion and unskilled.

José Ramos-Rosado v. Commissioner of S.S.
Opinion and Order
Civil No. 11-2048 (CVR)
Page No. 5

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
exists, or whether he/she would be hired if he/she applied for work.
§ 423(d)(2)(a).

42 U.S.C.

José Ramos-Rosado v. Commissioner of S.S.
Opinion and Order
Civil No. 11-2048 (CVR)
Page No. 6

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
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

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Opinion and Order
Civil No. 11-2048 (CVR)
Page No. 7

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, and although at step four the ALJ
considered Ramos-Rosado could still perform his past relevant work as quality control
clerk, he proceeded to analyze the existence of other type of work which was available and
could be performed, such as classifier of products, ticketing or ticket labeling. (Docket No.
5, Transcript p. 326).
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 Ramos-Rosado was found by the ALJ able to perform his previous past relevant
work as quality control clerk and, thus, there would have been no need not continue from
the examination after said step four consideration. By determining the residual functional
capacity for full range of light kind of work, logically following that other type of light and
unskilled work could also be performed. Upon the testimony of a vocational expert Dr.
Puig, the ALJ concluded Ramos-Rosado was not under disability for there were also other
jobs available that he could still perform. (Docket No. 5, Transcript, p. 324-327).

José Ramos-Rosado v. Commissioner of S.S.
Opinion and Order
Civil No. 11-2048 (CVR)
Page No. 8

Plaintiff’s memorandum of law submits several aspects of the administrative
proceedings 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. 10, p. 3). Plaintiff’s memorandum also avers the
vocational expert Dr. Puig was not presented with the full panoply of relevant hypothetical
questions that accurately reflected all of plaintiff’s limitations. (Id.). Unless a vocational
expert’s testimony contains all relevant facts, it cannot be considered to have probative
value and such facts cannot be sufficient 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).
Insofar as not giving proper weight to the treating physicians’ record, Dr. José J.
Zamora, a psychiatrist, the ALJ is required to provide the specific reasons for the weight
given or not.

Dr. Zamora treated plaintiff Ramos-Rosado for consecutive and regular

treatment as of May 7, 2004 and submitted numerous reports which clearly documented
the symptoms, signs, conditions, and limitations through out these years regardless that no
progress notes were included with Dr. Zamora’s reports. The reports also refer to attention
and concentration as being markedly impaired with judgment poor and memory
diminished. There is also reference to limited capacity to maintain regular attendance,
complete a normal workday without interruptions at a consistent pace. The patient was
found markedly limited also in accepting instructions and responding appropriately to
criticism from supervisors and getting along with co-workers, dealing with normal stress
and/or being aware of normal hazards. The record shows that none of these conditions and

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Opinion and Order
Civil No. 11-2048 (CVR)
Page No. 9

symptoms were presented to the vocational expert when the hypothetical questions were
posed by the ALJ. (Docket No. 10, pp. 6-7).
As to the vocational expert Dr. Puig, the hypothetical questions proposed by the ALJ
included only that plaintiff Ramos-Rosado could execute in the light range of exertion,
repetitive and simple tasks and not having contact with the public and only occasional
contact with supervisors and workers. No reference to the mental limitations were included
and other limitations of the cervical and spine condition were omitted. (Id., p. 13).
Thus, unless the ALJ deploys the proper legal standards and finds facts upon proper
quantum of evidence, no substantial evidence supports the administrative decision. In the
present case, there is also additional evidence by a medical expert who testified at the
administrative hearing, a neurologist, Dr. Payne, who considered Ramos-Rosado’s cervical
and lumbar conditions limited the patient to lifting and carrying a maximum of ten pounds
occasionally and further indicated he was unable to work for the condition was severe
enough to meet the Listings of Impairments as to disorders of the spine.
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

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Opinion and Order
Civil No. 11-2048 (CVR)
Page No. 10

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).
Notwithstanding, the ALJ made the determinations as to plaintiff Ramos-Rosado’s
limitations based on his longitudinal analysis of the evidence and affording little credibility
to its own medical expert Dr. Payne under an argument that he was unresponsive to
questions or gave conflicting testimony. If anything, Dr. Payne was being cautious in his
responses in that he had not examined the patient to determine residual functional capacity
and stating that, upon the examination of the medical evidence as a whole, he reached a
conclusion that the spine condition, including the cervical condition, would not allow
plaintiff to work.
Insofar as to the hypothetical questions to the vocational expert Dr. Puig, the
testimony of a vocational expert who, in response to the ALJ's hypothetical, opined that
plaintiff could perform a number of jobs cannot serve the ALJ as a finding of plaintiff not
being not disabled for the hypothetical questions impermissibly omitted any mention of a

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Opinion and Order
Civil No. 11-2048 (CVR)
Page No. 11

significant functional limitation arising from the uncontested medical conditions of
musculo-skeletal and mental condition which do not rest on controverted medical evidence
as to their existence and limitations. 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).
Succinctly, a review of the medical evidence considered by the ALJ as to plaintiff
Ramos-Rosado shows he was hospitalized at the Bella Vista hospital in 2003 after an
accident to receive neurological treatment.

There were complaints of seizures and

numbness of the right side of the body in February 2003. An MRI dated September 2004
showed white matter ischemic changes. Treating neurologist Dr. Alfredo Pérez-Canabal
referred to partial motor seizures and headaches after first examining Ramos-Rosado in
2005. The ALJ concluded that, although the patient had a history of seizures, a longitudinal
analysis of the record should allow a conclusion that these were not significant or persistent
for the patient did not present cuts, bruises, marks or any significant sequel of seizures or
bodily trauma that results from frequent seizures. (Docket No. 5, Transcript, p. 17).
Dr. Payne, the medical expert who testified at the administrative hearing, stated that
Ramos-Rosado’s musculo-skeletal conditions equaled the requirements of the listing of

José Ramos-Rosado v. Commissioner of S.S.
Opinion and Order
Civil No. 11-2048 (CVR)
Page No. 12

impairments. The ALJ concluded, however, the testimony was not supported by clinical
signs and/or laboratory findings and thus was not credible. (Id., p. 18).3
Insofar as the treating physician, Dr. José L. Zamora, a mental health professional
who treated Ramos-Rosado, he submitted several reports indicating the presence of panic
and major depressive disorders, a possible affective disorder secondary to cerebral lesion
and possible vascular dementia, with a poor prognosis. Dr. Zamora submitted reports
dated October 11, 2005, April 7, 2006 and May 16, 2007, as well as a summary report dated
May 16, 2007. Dr. Zamora indicated the patient’s memory, attention, concentration,
judgment and insight were poor. The ALJ noted, however, Ramos-Rosado provided an
adequate history of the symptoms of his mental condition and Dr. Zamora besides the
reports failed to include progress notes of the extensive treatment. The absence of such
progress notes was considered by the ALJ as depriving him from analyzing the pattern of
the treatment and its effect on the patient. (Id., p. 19). Still, the reports submitted by Dr.
Zamora were not vague, sparse or incredible simply for the lack of progress notes being
attached to same. (Docket No. 5, Transcript, pp. 220-254, 294-295). Treating physician’s
reports should be accorded great weight, specially when their opinions reflect expert
judgment based on a continuing observation of the patient’s condition over a prolonged
period of time. 20 C.F.R. §404.1527(d)(2); Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir.
1999).

3

Although it is clear that it is within the Secretary’s province to accord greater weight to the report or testimony
of a medical expert commissioned by the Secretary, in the present case the ALJ chose rather to disregard same.
Richardson v. Perales, 402 U.S. 389, 399, 91 S.Ct. 1420, 1426; Lizotte v. Secretary of Health and Human Services, 654 F.2d
127, 130 (1st Cir. 1981).

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Opinion and Order
Civil No. 11-2048 (CVR)
Page No. 13

A consultative evaluation by Dr. Alberto Rodríguez dated May 17, 2005, refers to an
individual who was receiving psychiatric treatment by Dr. Zamora. The evaluation showed
he appeared apprehensive, depressed and with psychomotor retardation. The affect was
restricted and the mood depressed. The flow of thought was slow, logical, coherent and
relevant. The content of thought displayed low self-worth, helplessness and hopelessness.
Attention and concentration were diminished and the patient was easily distracted and
could not follow the backward sequence. He was oriented. The diagnosis was consistent
for DSM IV 296.23 (major depressive disorder severe without psychotic features). The
prognosis was poor and the patient was not considered able to handle funds. (Docket No.
5, Transcript, pp. 182-185).
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.4 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.

4

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

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Opinion and Order
Civil No. 11-2048 (CVR)
Page No. 14

Additionally, the ALJ needs also to consider the aggregate effect of the entire
constellation of ailments, including those impairments that may on isolation be considered
not severe. 20 C.F.R. §404.1523. The perusal of the record as a whole fails to support
substantial evidence to support the administrative decision in this case. Furthermore, the
hypothetical questions to the vocational expert did not present the complete panoply of
established conditions that could have served as substantial evidence to the determination
that plaintiff Ramos-Rosado could perform his past relevant work or other work presented
for assessment within the residual functional capacity determined. 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).
In view of the foregoing, this Magistrate Judge opines the decision of the
Commissioner is not supported by substantial evidence in the record as whole, for which
reason it is REMANDED for further proceedings consonant with this opinion.
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

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Opinion and Order
Civil No. 11-2048 (CVR)
Page No. 15

decision is not supported by said substantial evidence criteria. As such, the Commissioner’s
decision is REMANDED.
Judgment is 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