Roman-Traverzo v. Commissioner of Social Security

Filing 20

OPINION AND ORDER dismissing the complaint and affirming the decision of the Commissioner. Final judgment to be entered. Signed by US Magistrate Judge Bruce J. McGiverin on July 23, 2013.(McGiverin, Bruce)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
RAUL F. ROMAN-TRAVERZO,
Plaintiff,
v.

Civil No. 12-1798 (BJM)

MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant.
OPINION AND ORDER
Raul F. Roman-Traverzo challenges a final decision denying his application for
Social Security disability benefits. The parties agreed to proceed before a magistrate
judge. See Docket No. 7. Roman-Traverzo filed a memorandum of law (Docket No. 18,
“Pl. Mem.”) and the Commissioner opposed (Docket No. 19, “Def. Mem.”).

The

Commissioner’s decision is affirmed.
STANDARD OF REVIEW
The court’s review is limited to determining whether the Commissioner and his
delegates employed the proper legal standards and found facts upon the proper quantum
of evidence.

Manso-Pizarro v. Sec’y, 76 F.3d 15, 16 (1st Cir. 1996).

The

Commissioner’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); Ortiz v. Sec’y, 955 F.2d 765, 769 (1st Cir. 1991). The court “must
affirm the [Commissioner’s] resolution, even if the record arguably could justify a
different conclusion, so long as it is supported by substantial evidence.” Rodríguez
Pagán v. Sec’y, 819 F.2d 1, 3 (1st Cir. 1987).

Written reports submitted by non-

examining physicians who merely reviewed the written medical evidence are not
substantial evidence, although these may serve as supplementary evidence for the

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Commissioner to consider in conjunction with the examining physician’s reports.
Irizarry-Sánchez v. Comm’r, 253 F. Supp. 2d 216, 219 (D.P.R. 2003).
A claimant is considered disabled if he 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). Under the
statute, a claimant is unable to engage in any substantial gainful activity when he “is not
only unable to do his previous work but cannot, 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)(2)(A). In determining whether a claimant is
disabled, all of the evidence in the record must be considered.

20 C.F.R.

§ 404.1520(a)(3).
The Commissioner must employ a five-step evaluation process to decide whether
a claimant is disabled. 20 C.F.R. § 404.1520; see Bowen v. Yuckert, 482 U.S. 137, 140-42
(1987); Goodermote v. Sec’y, 690 F.2d 5, 6-7 (1st Cir. 1982).

In step one, the

Commissioner determines whether the claimant is currently engaged in “substantial
gainful activity.” If so, the claimant is not disabled. 20 C.F.R. § 404.1520(b). At step
two, the Commissioner determines whether the claimant has a medically severe
impairment or combination of impairments.

20 C.F.R. § 404.1520(c).

If not, the

disability claim is denied. At step three, the Commissioner must decide whether the
claimant’s impairment is equivalent to an impairment already determined to be so severe
as to preclude substantial gainful activity. 20 C.F.R. § 404.1520(d); 20 C.F.R. pt. 404,
subpt. P, App. 1.

If the claimant’s impairment meets or equals one of the listed

impairments, he is conclusively presumed to be disabled. At step four, the Commissioner
determines whether the impairment prevents the claimant from performing the work he
has performed in the past. If the claimant is able to perform his previous work, he is not
disabled. 20 C.F.R. § 404.1520(e). If he cannot perform this work, the fifth and final

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step asks whether the claimant is able to perform other work available in the national
economy in view of his residual functional capacity (“RFC”), as well as age, education,
and work experience. If the claimant cannot, then he is entitled to disability benefits. 20
C.F.R. § 404.1520(f).
The burden is on the claimant to prove that he is disabled within the meaning of
the Social Security Act. See Bowen, 482 U.S. at 146-47 n.5. At steps one through four,
the claimant has the burden of proving that he cannot return to her former employment
because of the alleged disability. Santiago v. Sec’y, 944 F.2d 1, 5 (1st Cir. 1991). Once a
claimant has demonstrated a severe impairment that prohibits return to his previous
employment, the Commissioner has the burden under step five to prove the existence of
other jobs in the national economy that the claimant can perform. Ortiz v. Sec’y, 890 F.2d
520, 524 (1st Cir. 1989).
Additionally, to be eligible for disability benefits, the claimant must demonstrate
that his disability existed prior to the expiration of his insured status, or his date last
insured. Cruz Rivera v. Sec’y, 818 F.2d 96, 97 (1st Cir. 1986).
BACKGROUND
Roman-Traverzo was born on May 5, 1955. Transcript (Tr.) 145. He has four or
more years of college. Tr. 263. He held jobs as a warehouse manager, materials
administrator, and a manager between 1995 and 2000. Tr. 259. He claims a disability
onset date of February 1, 2004 and was insured through December 31, 2004. Tr. 34, 36.
He applied for Social Security Disability Insurance Benefits on February 26, 2009. Tr. 34.
His claim was denied on July 1, 2009 and again on reconsideration on September 23,
2009. Tr. 34. On October 26, 2009, he requested a hearing, and one was held on June 4,
2010 before Administrative Law Judge (“ALJ”) Hortensia Haaverson. Tr. 34.
Roman-Traverzo waived his right to appear and testify at the hearing, but was
represented by attorney Alberto Diaz. Tr. 34. On June 4, 2010, David Sypher, M.S.
testified as a vocational expert (“VE”) at the hearing. Tr. 46-59. The VE testified that

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Roman-Traverzo’s past job as a manager qualified under the Dictionary of Occupational
Titles (“DOT”) as sedentary-level work and his job as a warehouse manager qualified as
light duty work. Tr. 49. The judge posed two hypotheticals with different exertional
limitations to the VE. The exertional limitations in the first hypothetical were: six hours
of sitting, at least two hours of standing or walking, frequent lifting of up to ten pounds,
occasional lifting of twenty pounds, frequent balancing and stopping, and occasional
climbing, kneeling, and crawling in an eight-hour workday. Tr. 49-50. Based on that
hypothetical, the VE determined that Roman-Traverzo could return to his past work. Tr.
50. The exertional limitations in the second hypothetical were: less than two hours of
sitting, less than two hours of standing and walking, occasional lifting of up to ten
pounds, rare stooping, and no twisting, crouching, or climbing in an eight-hour workday.
Tr. 51. Based on the second hypothetical, the VE determined that Roman-Traverzo could
not return to his past work. Tr. 51. The ALJ reviewed the evidence de novo, concluded
that Roman-Traverzo’s exertional limitations aligned with the first hypothetical, and
found that he could therefore return to his past work as essentially a Stock Supervisor. Tr.
40-41. On March 26, 2012, the Appeals Council denied Roman-Traverzo’s request for
review. Tr. 13-17.
Roman-Traverzo had three treating physicians from 2004 to 2009 when he filed
for disability benefits. Dr. Juan M. Padilla was his neurosurgeon. Tr. 283. Dr. Padilla first
treated Roman-Traverzo on May 30, 2002 after Roman-Traverzo took a fall. Tr. 293. A
follow-up appointment was scheduled, although there is no evidence that it took place. Tr.
295. In 2004, Dr. Padilla ordered three MRIs on August 17, September 8, and October 5.
Tr. 288-89, 291, 382. In the MRIs he found various back injuries including bulging discs,
decreased height of the visualized thorac-lumbar vertebral bodies, degenerative vertebral
end plate change, early facet arthrosis, and more. Tr. 288-89, 291. Also included in the
record are Dr. Padilla’s progress notes from 2004 and 2005 that are illegible, see Tr. 283287, and a number of prescription slips also from 2004 and 2005. Tr. 369-71, 375-76,

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379-91. Other prescription slips submitted are undated. Tr. 366-68. Dr. Padilla submitted
no report accompanying these documents.
Dr. Aurelio Collado Veléz was Roman-Traverzo’s general practitioner. According
to his report, he treated Roman-Traverzo monthly beginning September 4, 2004. Tr. 296.
Dr. Collado reported that Roman-Traverzo experienced severe back pain all the time. Tr.
296. He reported that he could sit and stand for only ten minutes at one time, and that he
could sit and stand or walk for about two hours in an eight-hour work day. Tr. 298. He
also reported that Roman-Traverzo did not need a job that permitted shifting positions at
will from sitting, standing, and walking, that his concentration and attention were never
impacted by his impairment, and he would never have to miss work due to his
impairment. Tr. 297-99. He found that Roman-Traverzo could never lift even less that ten
pounds, he could never twist, and he was “totally disabled.” Tr. 299-300. The progress
notes included with his report stretch from 2003 to 2010, despite the fact that his report
shows Roman-Traverzo’s first visit occurring in 2004. Tr. 385-396. His progress notes
were illegible to the translator, and upon review, to me as well. Tr. 126, 129, 132, 135,
139, 141.
Dr. Raul V. Marco was Roman-Traverzo’s neurologist during this time period. He
reported that Roman-Traverzo experienced moderate severe pain and that this pain
frequently interfered with his attention and concentration. Tr. 301-02. In addition, he
reported that Roman-Traverzo could not sit or stand for more than ten minutes at any one
time and that he could only sit, stand or walk for less than two hours in an eight-hour
period. Tr. 303. He reported that he could occasionally lift less than or ten pounds, that he
could never twist, crouch, or climb ladders or stairs, and that he could stoop only rarely.
Tr. 304. Dr. Marco also performed the following tests: a bone densitometry report, a
lower extremity venous vascular study, a lower extremity arterial plethysmography, and a
lower extremity arterial study. Tr. 362, 399-403. The bone densitometry report is

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accompanied by notes that report “sagging” on both legs and that the patient gets up
using arms and hands. Tr. 98.
The Social Security Administration requested a consultative examination from Dr.
Samuel Mendez Figueroa, which was completed on May 29, 2009. Tr. 306. Based on Dr.
Mendez’s findings, DDS expert Dr. Florentino Figueroa rendered his opinion of RomanTraverzo’s residual functional capacity (“RFC”). He found that Roman-Traverzo could
occasionally lift twenty pounds, he could frequently lift ten pounds, he could stand or
walk for at least two hours in an eight-hour workday, and he could sit for about six hours
in an eight-hour workday. Tr. 322. In addition, he found that he could balance and stoop
frequently and that he could climb stairs or ladders, crouch, and crawl only occasionally.
Tr. 323. The ALJ’s first hypothetical to the VE used this RFC and the VE found that
Roman-Traverzo could perform his past work based on the exertional limitations
described. Tr. 50.
DISCUSSION
Roman-Traverzo argues that the ALJ erroneously disregarded evidence in
deciding that he could still perform his past work. He generally argues that the ALJ
failed to give controlling weight to his treating physicians’ opinions and did not
adequately explain why they were not accorded more weight. Pl. Mem. at 2–3. More
pointedly, he also argues that because the ALJ found their records sparse and notes
illegible, she had an obligation to re-contact them and develop the record. Id. at 12–13.
I first address the ALJ’s duty to supplement the record, then turn to her
consideration of each treating source’s opinion.
I.

Follow-Up Obligation
Roman-Traverzo contends that the ALJ had to follow up with his treating sources

first before discounting their opinions for lack of supporting evidence. Pl. Mem. at 13.
Even though claimants bear the burden of persuasion at step four, the Commissioner still
has a duty to develop an adequate record on which reasonable conclusions may be based.

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See Carrillo Marin v. Sec’y, 758 F.2d 14, 17 (1st Cir. 1985). Specifically, the regulations
in effect when this case was decided provided that:
When the evidence we receive from your treating physician or
psychologist or other medical source is inadequate for us to determine
whether you are disabled . . . [w]e will first recontact your treating
physician or psychologist or other medical source to determine whether
the additional information we need is readily available. We will seek
additional evidence or clarification from your medical source when the
report from your medical source contains a conflict or ambiguity that must
be resolved, the report does not contain all the necessary information, or
does not appear to be based on medically acceptable clinical and
laboratory diagnostic techniques. . . .
20 C.F.R. § 404.1512(e)(1) (Westlaw 2011). 1 But to prevail on failure-to-recontact
grounds, a claimant must make a showing of unfairness or prejudice—specifically, that
there was some evidence that, if considered, could have altered the ALJ’s conclusions.
See Newton v. Apfel, 209 F.3d 448, 458 (5th Cir. 2000); Shannon v. Chater, 54 F.3d 484,
488 (8th Cir. 1995); Cox v. Astrue, Civ. A. No. 08-10400-DPW, 2009 WL 189958 at *8
(D. Mass. Jan. 16, 2009) (citing Newton and Shannon).
Roman-Traverzo has not shown prejudice here. His memorandum summarizes
the ALJ’s opinion and factual conclusions, but sheds little light on what additional
information might have been considered had the ALJ reached out to his treating sources.
And cutting against any shadow of a doubt, the ALJ expressly noted Roman-Traverzo’s
“outright refusal to submit evidence” from his sources despite her “repeated requests”
that he do so. Tr. 40. This likely refers to two letters from Roman-Traverzo’s law firm’s
secretary, dated August 14 and October 26, 2009, stating that:
We are not submitting the forms SSA-3441 and SSA-827 since the “Date
Last Insured” on this case = December 31, 2004.
We understand that under these circumstances, the development of medical
evidence is totally unnecessary at this time.
1

The Social Security Administration has since removed this provision from its
regulations. See 77 FR 10651 (Feb. 23, 2012) (amending 20 C.F.R. § 404.1512).

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Tr. 93–94 (emphasis altered).2 See also Tr. 269–282 (noting Roman-Traverzo’s refusal to
submit SSA-3441 forms). Having taken this position at the ALJ stage, Roman-Traverzo
cannot now complain that the ALJ improperly closed the record on his treating sources.
Cf. Cox, 2009 WL 189958, at *7 (duty to recontact not triggered where ALJ identified a
gap in the record and requested submissions from the claimant, and claimaint provided
additional evidence). See also Shaw v. Sec’y, No. 93-2173, 25 F.3d 1037 (table), 1994
WL 251000 (1st Cir. June 9, 1994) (unpublished, per curiam) (rejecting recontact
argument for lack of prejudice where claimant was “afforded ample opportunity to
present her case, and did not indicate any desire to offer further evidence. After the ALJ’s
decision, she was afforded a further opportunity to present additional or clarifying
evidence to the appeals council, but chose not to.”).
As will be discussed below, the ALJ’s assessment of treating source opinions
hinges largely on the existence of gaps in, and inconsistencies with, the underlying
medical evidence. While the ALJ was obligated under the past regulations to seek
additional information from them, Roman-Traverzo has not demonstrated the requisite
prejudice from any failure in this regard—indeed, his own position was that no further
medical evidence needed to be developed at all. Because Roman-Traverzo has not
established that the ALJ’s error was prejudicial, he is not entitled to remand on this
ground.
II.

Weighing Treating Source Opinions
Roman-Traverzo challenges the ALJ’s consideration of three treating sources: Dr.

Collado, Dr. Marco, and Dr. Padilla.

The Commissioner gives treating physicians’

opinions controlling weight if they are “well-supported by medically acceptable clinical

2

Form SSA-827 is a broad authorization for the disclosure of information to the SSA,
including medical information. See Form SSA-827, available at http://www.ssa.gov/online/ssa827.pdf. Form SSA-3441 is a questionnaire titled “Disability Report — Appeal.” See Form
SSA-3441, available at http://www.ssa.gov/online/ssa-3441.pdf.

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and laboratory diagnostic techniques and [are] not inconsistent with the other substantial
evidence in [the] case record.” 20 C.F.R. § 404.1527(c)(2). When the Commissioner
decides not to give controlling weight to a treating-source opinion, the decision must
provide good reasons for doing so. Id. Once the ALJ determines that a treating
physician’s opinion is not controlling, she must determine the weight that the opinions do
receive in light of a number of factors. 20 C.F.R. § 404.1527(c). Yet detailed analysis of
each factor is not strictly necessary; so long as the ALJ’s decision and reasoning are clear
and supported by substantial evidence, it is wasteful to remand simply “so that another
hearing officer may arrive at the same decision with more clarity.” Green v. Astrue, 588 F.
Supp. 2d 147, 155 (D. Mass. 2008).
A.

Dr. Collado

The ALJ did not give Dr. Collado’s opinion controlling weight because it was
“plagued with inconsistencies.” Tr. 38-39. This conclusion is supported by the evidence.
For instance, Dr. Collado’s report states that Roman-Traverzo complains of severe pain,
see Tr. 296, but nonetheless states that he will never be absent from work on account of
his impairment. Tr. 299. In addition, the report states that Roman-Traverzo suffers from
depression, somatoform disorder, psychological factors affecting physical condition,
anxiety, personality disorder, and has a marking for “other” that was then left blank. Tr.
297. On balance, the ALJ’s decision not to give Dr. Collado’s opinion controlling weight
is sufficiently supported by the evidence. The ALJ’s opinion adequately discusses the
supportability and consistency problems with Dr. Collado’s opinion, satisfying the
obligation to provide good reasons for disregarding it. See 20 C.F.R. § 404.1527(c)(3)–
(4).
B.

Dr. Marco

The ALJ did not give Dr. Marco’s opinion controlling weight because RomanTraverzo only saw Dr. Marco sporadically. Tr. 38-39. The medical evidence of Dr.
Marco’s treatment consists of notes from an October 11, 2004 visit, an October 22 bone

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densitometry report, and three studies of the lower extremities dated February 06, 2009.
Tr. 362-364, 399-403. Dr. Marco’s opinion did not state how frequent Roman-Traverzo’s
visits were. See Tr. 301. The apparent lack of medical evidence regarding Dr. Marco’s
course of treatment permits a conclusion that the opinion was not based on a sufficiently
close or longitudinal treatment relationship. See 20 C.F.R. § 404.1527(c)(2).
Even if the infrequency of treatment alone were not enough to discount Dr.
Marco’s opinion, the ALJ also noted that Dr. Marco made no effort to correlate RomanTraverzo’s MRIs to any of his physical findings. Tr. 38. Dr. Marco reported reduced
range of motion, abnormal gait, reflex changes, tenderness, swelling, muscle spasm,
muscle weakness, weight change, and impaired sleep. Tr. 302. The report further states
that Roman-Traverzo can raise his left and right legs only sixty degrees. Id. But the bone
densitometry and lower extremity tests do not report specific exertional limitations, see
Tr. 362, 399–403, and Dr. Marco’s progress notes only report “sagging” on both legs and
that Roman-Traverzo uses his arms and hands to get up. Tr. 98. Dr. Marco’s opinion is
“brief and unsupported by clinical findings,” and the Commissioner permissibly refused
to give it controlling weight. See Rodriguez v. Sec’y, 46 F.3d 1114, No. 94-1868, 1995
WL 45781 at *4 (1st Cir. Feb. 7, 1995) (internal citations omitted). The ALJ’s discussion
adequately identified problems with Dr. Collado’s opinion and discharged the
Commissioner’s obligation to explain why it was disregarded.

See 20 C.F.R.

§ 404.1527(c)(3)–(4).
C.

Dr. Padilla

The ALJ did not find Dr. Padilla’s report controlling largely because his progress
notes were “quite illegible and cryptic,” “skimpy,” and did not (legibly) convey specifics
about any treatment or its outcome. Tr. 38–39. Dr. Padilla’s progress notes were only
accompanied by an initial consultation report from May 30, 2002, Tr. 293-95, and MRI
reports from September and October 2004, Tr. 289–291. The ALJ observed that the
initial consultation report from 2002 showed that Roman-Traverzo did not need assistive

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devices, had a normal gait, and could rise from a sitting position without difficulty, see
Tr. 295, and thus “yield[ed] few findings in support of the alleged severity.” Tr. 37. In
addition, the ALJ found that the MRI reports themselves made no specific references to
exertional limitations. Tr. 38. On these terms, the ALJ permissibly found the opinion to
be unsupported and inconsistent with the medical evidence.

See 20 C.F.R.

§ 404.1527(c)(3)–(4).
III.

Summary
The ALJ permissibly gave no weight to Roman-Traverzo’s treating sources, and

Roman-Traverzo failed to explain how recontacting those sources would alter the
outcome; indeed, he resisted the ALJ’s requests to develop the medical record. Because
he has not shown how the Commissioner’s decision was contrary to law or not supported
by substantial evidence, his appeal fails.
CONCLUSION
For the foregoing reasons, the Commissioner’s decision is AFFIRMED.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 23rd day of July, 2013.
S/Bruce J. McGiverin
BRUCE J. MCGIVERIN
United States Magistrate Judge