Puerto Rico Telephone Company, Inc. v. San Juan Cable LLC

Filing 37

OPINION AND ORDER: Remanding the case to the Commissioner of Social Security. Signed by Judge Gustavo A. Gelpi on 8/22/2012.(TC)

1

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

2
3
4

FRANK GASCOT-NARVAEZ

5

Plaintiff,

6

v.

7
8

Civil No. 10-1419 (GAG)

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

9
OPINION AND ORDER

10
11
12

The instant case is hereby REMANDED to the Commissioner of Social Security for
proceedings consistent with this order.

13

The Commissioner at page eleven of his memorandum concedes that the Administrative Law

14

Judge’s (“ALJ”) failure to find any severe impairment at Step II may have been an error. (See

15

Docket No. 19 at 11.) However, the Commissioner argues it was harmless. (See id.)

16

The court, upon review, cannot conclude that said error was indeed harmless or not. The

17

ALJ either missed or inadvertently ignored evidence that DDS psychologist Ramóm Nevares

18

determined that plaintiff had conditions tantamounting to a severe mental impairment. (See Tr. 371-

19

87); see also Memorandum of Commissioner at 11 n.4. This puts the court in a scenario opposite

20

to that in cases cited by the Commissioner (Docket No. 19 at 12-13), in which it was readily

21

determined that the error harmless. Here, we are not only looking at an ALJ who committed error

22

at Step II, but also one which now prevents the court from determining whether the error was

23

harmless or not because it appears that the ALJ in part did not consider all the evidence of record

24

before him.

25
26
27
28

Civil No. 10-1419 (GAG)

2

1

SO ORDERED.

2

In San Juan, Puerto Rico this 22nd day of August, 2012.

3

S/Gustavo A. Gelpí

4

GUSTAVO A. GELPÍ

5

United States District Judge

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28