Collazo v. Commissioner of Social Security

Filing 25

MEMORANDUM AND OPINION. Signed by US Magistrate Judge Silvia Carreno-Coll on 9/30/2014.(NBB)

IN THE UNITED STATES COURT
FOR THE DISTRICT OF PUERTO RICO

SAMUEL COLLAZO,
Plaintiff,
v.

CIV. NO.: 12-1521(SCC)

COMMN’R OF SOC. SEC.,
Defendant.

MEMORANDUM AND ORDER
Plaintiff Samuel Collazo asks this Court to review the
decision of Defendant Commissioner of Social Security (“the
Commissioner”), denying Plaintiff’s application for disability
benefits. After a review of the record and the parties’ memoranda, I reverse the Commissioner’s decision and remand for
further proceedings.

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STANDARD OF REVIEW
Under the Social Security Act (“the Act”), a person is
disabled if he is unable to do his prior work or, “considering
his age, education, and work experience, engage in any other
kind of substantial gainful work which exists in the national
economy.” 42 U.S.C. § 423(d). The Act provides that “[t]he
findings of the Commissioner . . . as to any fact, if supported by
substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g).
Substantial evidence exists “if a reasonable mind, reviewing
the evidence in the record as a whole, could accept it as
adequate to support [the] conclusion.” Irlanda-Ortiz v. Sec’y of
Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991). Thus,
the Commissioner’s decision must be upheld if I determine that
substantial evidence supports the ALJ’s findings, even if I
would have reached a different conclusion had I reviewed the
evidence de novo. Lizotte v. Sec’y of Health & Human Servs., 654
F.2d 127, 128 (1st Cir. 1981).
The scope of my review is limited. I am tasked with
determining whether the ALJ employed the proper legal
standards and focused facts upon the proper quantum of
evidence. See Manso-Pizarro v. Sec’y of Health and Human Servs.,
76 F.3d 15, 16 (1st Cir. 1996). The ALJ’s decision must be

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reversed if his decision was derived “by ignoring evidence,
misapplying law, or judging matters entrusted to experts.”
Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999). In reviewing a
denial of benefits, the ALJ must have considered all of the
evidence in the record. 20 C.F.R. § 404.1520(a)(3).
The Act sets forth a five-step inquiry to determine whether
a person is disabled. See 20 C.F.R. § 404.1520(a)(4). The steps
must be followed in order, and if a person is determined not to
be disabled at any step, the inquiry stops. Id. Step one asks
whether the plaintiff is currently “doing substantial gainful
activity.” 20 C.F.R. § 404.1520(a)(4)(i). If he is, he is not disabled
under the Act. Id. At step two, it is determined whether the
plaintiff has a physical or mental impairment, or combination
of impairments, that is severe and meets the Act’s duration
requirements. 20 C.F.R. § 404.1520(a)(4)(ii). The plaintiff bears
the burden of proof as to the first two steps. Step three considers the medical severity of the plaintiff’s impairments. 20 C.F.R.
§ 404.1520(a)(4)(iii). If, at this step, the plaintiff is determined to
have an impairment that meets or equals an impairment listed
in 20 C.F.R. pt. 404, subpt. P., app. 1, and meets the duration
requirements, he is disabled. 20 C.F.R. § 404.1520(a)(4)(iii).
If the plaintiff is not determined to be disabled at step three,

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his residual functional capacity (“RFC”) is assessed. 20 C.F.R.
§§ 404.1520(a)(4), (e). Once the RFC is determined, the inquiry
proceeds to step four, which compares the plaintiff’s RFC to his
past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If the plaintiff
can still do his past relevant work, he is not disabled.
Id. Finally, at step five, the plaintiff’s RFC is considered
alongside his “age, education, and work experience to see if
[he] can make an adjustment to other work.” 20 C.F.R.
§ 404.1520(a)(4)(v). If the plaintiff can make an adjustment to
other work, he is not disabled; if he cannot, he is disabled. Id.
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff made his initial application for disability benefits
on October 5, 2009, alleging that his disability began on
December 31, 2004. The claim was denied, as was reconsideration. Plaintiff then requested a hearing, which was held on
November 17, 2010. The ALJ determined that Plaintiff was not
disabled as of his last-insured date, which was December 31,
2004. The appeals council refused to review the ALJ’s decision,
and he filed this appeal.
The ALJ determined at Step One that Plaintiff had not
engaged in any substantial gainful activities between his

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alleged disability onset date and his last-insured date. TR. at
23.1 At Step Two, however, the ALJ determined that while
Plaintiff had various medically determinable impairments as
of his last-insured date, they were not disabling. Id. The ALJ
reached this conclusion by looking at the only pre-2004 medical
records that Plaintiff had produced, which were treatment
records from Plaintiff’s internist, Dr. Acevedo, from 2001 and
2002. See id. at 23–24. These records showed hypertension,
abnormal liver function, and various other ailments, but
according to the ALJ Plaintiff “did not follow any additional
treatment afterwards.” Id. at 23. The ALJ’s opinion further
states that Plaintiff “did not return to medical treatment until
October 2008,” by which point his condition had significantly
worsened. Id. at 24. Based on the minimal pre-2004 records and
Plaintiff’s lack of treatment history, the ALJ determined that
Plaintiff had not been severely impaired as of his last-insured
date. Id. at 24–25. Accordingly, the ALJ found that Plaintiff was
not disabled.

1.

I will refer to the Social Security Transcript as “TR.” throughout.

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ANALYSIS
Plaintiff’s allegations focus on what he says was a failure of
the ALJ to fully develop the record. Specifically, Plaintiff
contends that the ALJ should have subpoenaed certain other
medical records from before Plaintiff’s last-insured date, which
Plaintiff says he could not afford to pay for himself. In the
specific context of this case, I agree with Plaintiff.
As a general matter, it is incumbent upon the person
seeking disability benefits to show his entitlement to those
benefits. However, given that Social Security proceedings “are
inquisitorial rather than adversarial,” the ALJ has a “duty to
investigate the facts and develop the arguments both for and
against granting benefits.” Sims v. Apfel, 530 U.S. 103, 110–11
(2000). This is especially true where, as here, the petitioner was
unrepresented at the hearing, in which case “the ALJ has a
heightened duty to develop the record.” Mandziej v. Chater, 944
F. Supp. 121, 130 (D.N.H. 1996) (citing Heggarty v. Sullivan, 947
F.2d 990, 997 (1st Cir. 1991)); see also Mickevich v. Barnhart, 453
F. Supp. 2d 279, 287 (D. Mass. 2006). To this end, the ALJ has
a duty to develop the record and fill evidentiary gaps when
doing so would not require “undue effort” on his part—for
example “by ordering easily obtained further or more com-

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plete reports.” Currier v. Sec. of Health, Educ. & Welfare, 612 F.2d
594, 598 (1st Cir. 1980). Remand for failure to develop the
record is appropriate where “that further evidence is necessary
to develop the facts of the case fully,” and where the “evidence
is not cumulative” and its “consideration . . . is essential to a
fair hearing.” Evangelista v. Sec. of Health & Human Servs., 826
F.2d 136, 139 (1st Cir. 1987). Plaintiff need also show good
cause for his failure to produce the evidence. Heggarty, 947 F.2d
at 997.
During the hearing, Plaintiff testified that his condition
originated in 2004, though it was not diagnosed until 2008. TR.
at 34. When asked about the lack of medical evidence, Plaintiff’s wife testified that she had tried to secure records from
another doctor—a Dr. Méndez—that Plaintiff had seen in 2004,
when his condition began to worsen, but she could not afford
the fee that the doctor wanted for the medical records. Id. at
37–40. The ALJ closed the hearing without inquiring into what
transpired during Plaintiff’s treatment by Dr. Méndez, and he
did not subpoena Dr. Méndez’s treatment records after the
hearing, though he was empowered to do so. I find that this
was error requiring remand.
The ALJ’s conclusion that Plaintiff was not disabled as of

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his last-insured date was based in large part on the dearth of
medical records, coupled with a lack of treatment history. In
this context, the relevance of Dr. Méndez’s records is obvious:
according to Plaintiff’s wife, they show worsening symptoms
from the 2001–02 records, and they moreover show that
Plaintiff did seek further treatment before his last-insured date.
Furthermore, Plaintiff had good cause for his failure to
produce the records: poverty. In these circumstances, and
especially considering that Plaintiff was unrepresented, the
ALJ should have taken it upon himself to secure the records of
Plaintiff’s treatment by Dr. Méndez, which would have filled
some of the crucial gaps in the evidentiary record. Cf. Baker v.
Bowen, 886 F.2d 289, 290 (10th Cir. 1989) (holding that where
ALJ had not fully developed the record, “his reliance on the
dearth of objective medical evidence” was “erroneous”);
Donato v. Sec. of Dep’t of Health & Human Servs., 721 F.2d 414,
419 (2d Cir. 1983) (similar).
Remand is necessary so that the Commissioner can consider
the entire record of Plaintiff’s treatment.
CONCLUSION
For the reasons stated above, I VACATE the decision of the

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Commissioner and REMAND this matter for further proceedings consistent with this opinion.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 30th day of September, 2014.
S/ SILVIA CARREÑO-COLL
UNITED STATES MAGISTRATE JUDGE