Mendez v. Commissioner of Social Security
Filing
21
OPINION AND ORDER re 1 social security complaint, remanding the case for further proceedings. Signed by US Magistrate Judge Marcos E. Lopez on 2/10/14. (MT)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
FRANCISCO MÉNDEZ,
Plaintiff,
v.
CIVIL NO.: 12-1725 (MEL)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
OPINION AND ORDER
I.
PROCEDURAL AND FACTUAL BACKGROUND
Francisco Méndez (“claimant”) was born in 1968 and has a high school education. (Tr.
268) On April 23, 2008, claimant filed an application for Social Security disability insurance
benefits, alleging that he had been disabled due to lumbar spine degenerative discogenic disease
and annulus budge at the L4-L5 level, lumbar L4 radiculopathy, a left medial meniscus tear,
median nerve entrapment in both wrists, and major depressive disorders. (Tr. 19-20) The
alleged onset date of the disability was May 19, 2006 and the end of the insurance period was
December 31, 2011. (Tr. 19.) Since May 19, 2006, claimant has been unable to perform his past
work as a welder for a construction company. (Tr. 26.) Claimant’s application was denied
initially on November 21, 2008 and upon reconsideration on March 9, 2009. (Tr. 17.) Claimant
requested a hearing before an Administrative Law Judge (“ALJ”). He waived his right to appear
at the hearing held on February 1, 2010, but he was represented by counsel and a vocational
expert (“VE”) testified at the hearing. (Tr. 17) The ALJ rendered a decision on June 17, 2010,
concluding that claimant was not disabled prior to May 20, 2009, but became disabled on said
date and continued to be disabled through the date of decision. (Tr. 17.) The Appeals Council
denied claimant’s request for review on July 14, 2012. (Tr. 1.) Therefore, the ALJ’s opinion
became the final decision of the Commissioner of Social Security (the “Commissioner” or
“defendant”). Id.
On September 6, 2012, claimant filed a complaint seeking review of the ALJ’s decision
pursuant to 42 U.S.C. § 405(g) and 5 U.S.C. § 706, alleging that defendant’s finding that
claimant was not disabled between May 19, 2006 and May 20, 2009 was not based on substantial
evidence. ECF No. 1, ¶ 3, 6. On March 8, 2013, defendant filed an answer to the complaint and
a certified transcript of the administrative record. ECF Nos. 14; 15. Both parties have filed
supporting memoranda of law. ECF Nos. 19; 20.
II.
STANDARD OF REVIEW
The Social Security Act (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). The Commissioner’s decision must be
upheld if the court determines that substantial evidence supports the ALJ’s findings, even if a
different conclusion would have been reached by reviewing the evidence de novo. Lizotte v.
Sec’y of Health & Human Servs., 654 F.2d 127, 128 (1st. Cir. 1981). The Commissioner’s fact
findings are not conclusive, however, “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) (per
curiam).
An individual is deemed to be disabled under the Act if he or 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
2
last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). If the ALJ
concludes that the claimant’s impairment or impairments do prevent him from performing her
past relevant work, the analysis then proceeds to step five. At this final step, the ALJ evaluates
whether the claimant’s residual functional capacity (“RFC”),1 combined with his age, education,
and work experience, allows him to perform any other work that is available in the national
economy. 20 C.F.R. § 404.1520(a)(4)(v). If the ALJ determines that there is work in the
national economy that the claimant can perform, then disability benefits are denied. 20 C.F.R. §
404.1520(g). Under steps one through four, the claimant has the burden to prove that he cannot
return to his former job because of his impairment or combination of impairments. Ortiz v.
Sec’y of Health & Human Servs., 890 F.2d 520, 524 (1st Cir. 1989) (per curiam). Once he has
carried that burden, the Commissioner then has the burden under step five “to prove the
existence of other jobs in the national economy that the claimant can perform.” Id.
III.
SUMMARY OF MEDICAL EVIDENCE
The medical evidence in the record reveals claimant sustained a workplace accident on
December 28, 2005, at which time he slipped and suffered trauma to his back and left knee, and
that he has a history of pain located in his lower back and left knee. He underwent arthroscopic
surgery on May 17, 2006 due to a left medial meniscus tear. (Tr. 94-267) He has visited the
emergency room at Clínica Española on numerous occasions in 2007 and 2008, due mainly to
pain in his lower back. (Tr. 290-397).
Claimant developed a severe depressive disorder resulting from his physical impairments.
On July 9, 2008, consulting psychiatrist Alberto Rodríguez Robles (“Dr. Rodríguez”) completed
a report describing claimant as depressed with psychomotor retardation. The report indicated
1
An individual’s RFC is the most that he or she can do in a work setting despite the limitations imposed by her
mental and physical impairments. 20 C.F.R. § 404.1545(a)(1).
3
claimant’s attention and concentration were diminished. Dr. Rodríguez opined that claimant’s
prognosis was poor and that he did not possess the ability to handle his own funds. (Tr. 268-72)
Psychiatrist Ronald Malavé (“Dr. Malavé”) completed a report regarding claimant’s
mental health condition, indicating that claimant was treated from May 9, 2008 through
November 18, 2008 with pharmacology and psychotherapy. Dr. Malavé noted claimant’s history
of lower back pain and co-morbid depression.
He evaluated claimant on March 2, 2009,
reporting that that claimant remained isolated most of the time, his mood was depressed, he was
tense with psychomotor retardation, and his attention and concentration were poor. He indicated
in his report that claimant’s memory was preserved, his judgment was fair, and he had a
moderate insight into his illness. (Tr. 343-57) The “Summary Conclusions” section of the
Mental Residual Function Capacity (“MRFC”) Report Dr. Malavé completed indicates, inter
alia, that claimant was extremely limited in his ability to accept instructions and respond
appropriately to criticism from supervisors, to get along with coworkers or peers without
distracting them or exhibiting behavioral extremes and markedly limited in his ability to respond
appropriately to changes in work settings. (Tr. 355-56)
On May 20, 2009, an electrodiagnostic study revealed evidence of a severe left and
moderate-to-severe nerve entrapment neuropathy at the wrist level. Claimant was treated with
bilateral wrist splints for nighttime use and with physical therapy. (Tr. 728)
IV.
ANALYSIS
Claimant’s sole objection is that the ALJ’s hypothetical presented to the VE did not
accurately reflect all of claimant’s functional limitations, relying on the standard from Arocho v.
Secretary of Health and Human Services, 670 F.2d 374 (1st Cir. 1982) . See ECF No. 19 at 1214. Arocho provides that in order for a VE’s answer to a hypothetical question to be relevant,
the information included in the question “must correspond to conclusions that are supported by
4
the outputs from the medical authorities.” Arocho, 670 F.2d at 375. Claimant argues that the
ALJ’s hypothetical did not mention that the alternative work had to be a low stress level job.2
See id. at 13. He contends that the ALJ ignored substantial evidence in failing to include this
“limitation” in the hypothetical, and thus the testimony of the VE cannot constitute substantial
evidence to support an ALJ’s determination regarding claimant’s lack of a disability between
May 19, 2006 and May 20, 2009. See id. at 14.
The omission of a functional limitation from the hypothetical to a VE warrants remand of
the Commissioner’s decision where inclusion of such information could have impacted the VE’s
conclusion and the ALJ’s ultimate reliance on the VE’s conclusion. See Aho v. Comm'r of Soc.
Sec. Admin., CIV.A. 10-40052-FDS, 2011 WL 3511518 (D. Mass. Aug. 10, 2011) (remanding
“for further proceedings to permit the ALJ to translate claimant’s right-eye blindness into
functional limitations and to examine whether jobs exist in significant number that she can
perform” where ALJ failed to consider potential limitations from right-eye blindness and “if
right-eye blindness in fact impose[d] functional visual limitations, it may [have] prevented
plaintiff from working at the jobs proffered by the vocational expert); Musto v. Halter, 135
F.Supp. 2d 220, 234 (D. Mass. 2001) (“A hypothetical question that explicitly outlines the
limitations on Musto’s ability to sit could well alter the vocational expert’s conclusion that
Musto is capable of some sedentary employment, and thus this Court must vacate and remand for
further proceedings.”
2
Claimant’s memorandum of law states: “In particular the ALJ said nothing on [sic] his hypothetical regarding that
one of the requirements for a possible alternative job was, ‘that it had to be a low level stress job.’” ECF No. 19, at
4, 13. Claimant uses quotation marks to convey this alleged requirement, but provides no citation to a source from
which this requirement derives, in either of the sections of his memorandum that contain this quotation. See id. The
ALJ did find that claimant “was able to . . . tolerate the low levels of stress found in unskilled types of work,”
insinuating a limitation in claimant’s ability to tolerate stress. Tr. 21 (emphasis added).
5
In the case of caption, the ALJ determined, based on the medical evidence in the record,
“that prior to May 20, 2009 the claimant was able to perform simple unskilled sedentary types of
work.” (Tr. 25) The ALJ solicited the assistance of the VE in order “[t]o determine the extent to
which [claimant’s] limitations eroded the unskilled sedentary occupational base . . . .” Tr. 27
(emphasis added). The ALJ determined that claimant possessed the RFC:
to perform sedentary work as defined in 20 C.F.R. [§] 404.1567(a)
except using his hands for repetitive movements, lifting and
carrying even less than 10 pounds, and doing more than simple
repetitive tasks.
Mentally, the claimant has been able to
understand, remember and carry out simple instructions, make day
to day simple decisions, sustain attention and concentration for
more than a two hours [sic] period, adjust to work changes and
demands, and tolerate low levels of stress found in unskilled types
of work. (Tr. 25)
At the hearing, the ALJ posed the following hypothetical to the VE:
Consider a person with the same job experience, same age, and
vocational and academic profile as the claimant. In addition, a
person whose maximum excertional level is sedentary, whose
maximum mental capacity is to perform simple and repetitive tasks
. . . . Is there an occupation in the national or regional economy
that this individual with these characteristics could perform? (Tr.
38-39)
In response to the ALJ’s hypothetical, the VE identified two unskilled positions—ampule
examiner (in the Pharmaceutical Industry) and final assembler (in the Ophthalmological
Industry—available in significant numbers in the national economy and in claimant’s area. Id.
at 39-40. Based on this testimony of the VE, the AJL concluded that other work existed in the
national economy prior to May 20, 2009, from which he concluded that claimant was not
disabled prior to said date.
Claimant suggests that the ALJ’s RFC determination rests on his own assessment that
unskilled work inherently involves low levels of stress for employees. ECF No. 19, at 13, n 7.
6
The definition of unskilled work in the social security regulations is silent regarding the level of
stress such work entails. See 20 C.F.R. § 404.1568. The regulations state:
Unskilled work is work which needs little or no judgment to do
simple duties that can be learned on the job in a short period of
time. The job may or may not require considerable strength. For
example, we consider jobs unskilled if the primary work duties are
handling, feeding and offbearing (that is, placing or removing
materials from machines which are automatic or operated by
others), or machine tending, and a person can usually learn to do
the job in 30 days, and little specific vocational preparation and
judgment are needed. A person does not gain work skills by doing
unskilled jobs. Id.
While a correlation between unskilled and low-stress positions may indeed exist, it does not
follow that unskilled work is necessarily low-stress. Social Security Ruling 85-15 elaborates on
this distinction, explaining:
Because response to the demands of work is highly individualized,
the skill level of a position is not necessarily related to the
difficulty an individual will have in meeting the demands of the
job. A claimant’s condition may make performance of an
unskilled job as difficult as an objectively more demanding job, for
example, a busboy need only clear dishes from tables. But an
individual with a severe mental disorder may find unmanageable
the demand of making sure that he removes all dishes, does not
drop them, and gets the table cleared promptly for the waiter or
waitress. Similarly, an individual who cannot tolerate being
supervised may be not able to work even in the absence of close
supervision; the knowledge that one’s work is being judged and
evaluated, even when the supervision is remote or indirect, can be
intolerated for some mentally impaired persons. Any impairmentrelated limitations created by an individual’s response to demands
of work, however, must be reflected in the RFC assessment.
Social Security Ruling 85-15 (emphasis in original).
When a claimant’s mental impairments are at issue, there is a need to examine the individual’s
specific vocational abilities in light of the impairment. Lancellotta v. Sec'y of Health & Human
Servs., 806 F.2d 284, 285-86 (1st Cir. 1986) (reversing decision of the United States District
Court for the District of Rhode Island’s decision and remanding to the Secretary for an
7
assessment of Lancellota’s vocational capabilities in light of his mental impairment where ALJ
determined that Lancellota could perform low-stress jobs but made no findings regarding his
ability to perform the basic work-related activities necessary for low-stress work). “The basic
mental demands of competitive, remunerative, unskilled work include the abilities (on a
sustained basis) to understand, carry out, and remember simple instructions; to respond
appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a
routine work setting.” Id. at 286 (citing Social Security Ruling 85-15); see also Social Security
Ruling 85-16 (“Consideration of these factors [ability to understand, carry out and remember
instructions; respond appropriately to supervision, coworkers and customary work pressures] is
required for the proper evaluation of the severity of mental impairment.”).
Thus, the relevant inquiry is whether the ALJ properly considered these factors and
incorporated them into his RFC determination and in the hypothetical he subsequently posed to
the ALJ. In reaching his conclusion that the claimant could perform “simple unskilled sedentary
types of work” the ALJ considered Dr. Malavé’s report, finding that “[w]hile [Dr. Malavé]
reported that claimant’s attention and concentration were poor the rest of the evidence indicated
that while the concentration and attention were diminished the claimant was able to understand,
remember and carry out simple instructions and was able to sustain attention and concentration
for more than a two hours [sic] period.” (Tr. 25) The ALJ’s hearing decision is silent, however,
with regard to claimant’s capacity to respond appropriately to supervision, coworkers, and
customary work pressures.
A hypothetical to the VE that included a finding that claimant was limited in his ability to
respond to supervision and customary work pressures—i.e. tolerate various forms of workplace
stress—could have altered the VE’s conclusion that the individual from the ALJ’s hypothetical
8
could work in these unskilled positions. Lancellotta, 806 F.2d at 286 (citing Social Security
Ruling 85-16) (“A substantial loss of ability to meet any of these basic work-related activities
[the ability to understand, carry out and remember instructions; to respond appropriately to
supervision, coworkers, and usual work situations; and to deal with changes in a routine work
setting] would severely limit the potential occupational base. This, in turn, would justify a
finding of disability because even favorable age, education, or work experience will not offset
such a severely limited occupational base.”) The ALJ relied on the VE’s testimony that claimant
could perform two unskilled positions in reaching his conclusion that claimant was not disabled
between May 19, 2006 and May 20, 2009. Therefore, if the ALJ finds “functional limitations” in
claimant’s ability to meet any of the basic work-related activities discussed in Lancellotta—i.e.
tolerate various forms of workplace stress—his hypothetical to the VE should accurately reflect
said limitations, so that the ALJ may properly rely on the VE’s conclusion that jobs exist in
sufficient numbers in the economy that the hypothetical individual could perform.
The ALJ erred in making an independent assumption that unskilled work is inherently
low-stress, rather than incorporating the factors necessary to properly evaluate the impact of a
mental impairment on claimant’s vocational abilities into his hypothetical to the VE. In light of
this deficiency, along with the ALJ’s subsequent reliance on the VE’s testimony in reaching his
disability determination, the court cannot find that the ALJ’s decision is supported by substantial
evidence and will remand the case for further development on this issue. On remand, the ALJ
shall pose a new hypothetical to the VE that does not rest on the assumption the unskilled work
necessarily involves low levels of stress. Although the ALJ need not expressly state in the
hypothetical that any position the VE identifies must be a low-stress job, as claimant suggests in
his memorandum (See ECF No. 19, at 4, 13), in view of the ALJ’s RFC finding that plaintiff can
9
tolerate low levels of stress, at a minimum the hypothetical ought to include.factors associated
with low-stress environments, such as the ability or inability to interact with supervisors and coworkers. See Lancellota, 806 F.2d 286.
V.
CONCLUSION
Based on the foregoing analysis, the court concludes that the decision of the
Commissioner was not based on substantial evidence. Therefore, the Commissioner’s decision is
hereby VACATED and the case is REMANDED for further proceedings consistent with this
opinion.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 10th day of February, 2014.
s/Marcos E. López
U.S. Magistrate Judge
10
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?