Hatcher v. Commissioner of Social Security
Filing
17
OPINION AND ORDER re 1 SOCIAL SECURITY COMPLAINT filed by David G. Hatcher. Judgment is to be entered accordingly. Signed by US Magistrate Judge Camille L. Velez-Rive on 10/31/14.(ljt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
DAVID G. HATCHER,
Plaintiff,
v.
CIVIL NO. 13-1847 (CVR)
CAROLYN COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
OPINION AND ORDER
INTRODUCTION
On November 8, 2013, Plaintiff David G. Hatcher (hereafter “Plaintiff”) filed this
action to obtain judicial review of the final decision of Defendant Acting Commissioner of
Social Security (hereafter “Commissioner” or “Defendant”), who denied his application for
disability benefits, finding that Plaintiff was not disabled prior to his last insured date of
December 31, 2003. (Docket No. 1).1 On May 27, 2014, the Commissioner answered the
Complaint and filed a copy of the administrative record. (Docket Nos. 6 and 7). On June
30, 2013, Plaintiff filed a consent to proceed before a Magistrate Judge and the case was
transferred to the undersigned. (Docket Nos. 10 and 12).2 On July 28, 2014, Plaintiff filed
his memorandum of law (Docket No. 13) and, on September 29, 2014, the Commissioner
filed his memorandum of law. (Docket No. 16). After careful review, the Court VACATES
1
42 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).
2
The government has provided a general consent to proceed before a Magistrate Judge in all Social Security
cases. Title 28 U.S.C. Section 636(b)(1)(A), (c)(1) and (c)(2); Fed.R.Civil P. 73(a).
David G. Hatcher v. Acting Commissioner of Social Security
Civil No. 13-1847 (CVR)
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the decision of the Commissioner and REMANDS the present case to the Administrative
Law Judge (“ALJ”) for further proceedings consistent with this Opinion and Order.
ADMINISTRATIVE AND PROCEDURAL HISTORY
On August 12, 2004, Plaintiff filed an application for disability benefits with an
alleged onset date of disability of March 2, 2002. Plaintiff met the insured status
requirement up to December 31, 2003. (Tr. p. 298). Therefore, the relevant time period in
this case is substantially limited.
The application was initially denied, and it was also denied on reconsideration. (Tr.
pp. 17). Plaintiff then requested an administrative hearing, where Plaintiff waived his right
to be present, and the ALJ found that Plaintiff was not disabled. (Tr. pp. 17). A Complaint
was then filed before this Court in Civil Case No. 10-1558 (MEL) challenging that
determination, and the Court remanded the case to the ALJ in order to complete the record
and issue a new decision. (Civil No. 10-1558 (MEL), Docket No. 16). (Tr. pp. 311-324). On
May 11, 2011, a new hearing was held and Plaintiff again waived his right to be present. The
ALJ again found Plaintiff not disabled. (Tr. pp. 298-307). The ALJ determined that
Plaintiff had not engaged in any substantial gainful activity since his alleged onset date of
March 2, 2002 until his last insured date, and that he had the following severe
impairments: bipolar disorder and social phobia. (Tr. p. 300). The ALJ further found that
Plaintiff did not have an impairment or combination of impairments that met or medically
equaled one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d) and 404.1526). (Id.). Although the ALJ found Plaintiff could not perform any
of his previous jobs, he found Plaintiff could perform a limited range of unskilled work
David G. Hatcher v. Acting Commissioner of Social Security
Civil No. 13-1847 (CVR)
Opinion and Order
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which did not require contact with the public and/or frequent contact with supervisors and
co-workers, and that there were jobs that existed in significant numbers in the national
economy that he could perform. (Tr. p 304-306). The Appeals Council subsequently
denied Plaintiff’s request for review, thus making the ALJ’s decision the final decision of the
Commissioner, subject to review by this Court. (Tr. pp. 287-290).
Plaintiff objects to the ALJ’s final decision, alleging that he failed to deploy the
correct legal standards by disregarding substantial evidence, and that as a consequence, he
failed to correctly reflect Plaintiff’s limitations in the hypothetical presented to the
Vocational Expert. Therefore, Plaintiff argues the ALJ’s decision is not based on substantial
evidence. The Commissioner contends in turn that the ALJ properly relied on the
Vocational Expert, that the administrative proceedings met the substantial evidence test,
and that the ALJ correctly evaluated Plaintiff’s residual functional capacity.
STANDARD
To establish entitlement to disability benefits, the burden is on the claimant to prove
disability within the meaning of the Social Security Act. See, Bowen v. Yuckert, 482 U.S.
137, 146-47, n. 5 (1987). A claimant will be found 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
David G. Hatcher v. Acting Commissioner of Social Security
Civil No. 13-1847 (CVR)
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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. 42 U.S.C. § 423(d)(2)(a).
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 in making a final determination as to whether a
claimant is or not disabled. 20 C.F.R. §§ 404.1520; see Bowen, 482 U.S. at 140-42;
Goodermote v. Sec’y of Health & Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982). At 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, where he or she must determine 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
David G. Hatcher v. Acting Commissioner of Social Security
Civil No. 13-1847 (CVR)
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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).
Once the ALJ determines that the claimant cannot perform his or her former kind
of work, then the fifth and final step of the process demands a determination of whether
claimant is able to perform other work in the national economy in view of the claimant’s
residual functional capacity, as well as his/her age, education, and work experience. The
claimant would be entitled to disability benefits only if he/she is not able to perform any
other work. §§ 404.1520(f).
In the case at bar, at step 4, the ALJ found that Plaintiff was unable to perform any
of his past jobs as a restaurant manager. (Tr. p. 305). At step 5, the ALJ determined that
considering Plaintiff’s age, education, work experience and residual functional capacity, he
could perform other jobs which existed in significant numbers in the national economy,
primarily that of a Hand Packer or Cleaner II. (Tr. p. 306).
LEGAL ANALYSIS
The Court’s review in this type of case 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. Sec’y of Health and Human Servs., 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. Sec’y of Health and Human Servs., 803 F.2d 24, 26 (1st Cir. 1986); Ortíz v. Sec’y
of Health and Human Servs., 955 F.2d 765, 769 (1st Cir. 1991). The term “substantial
David G. Hatcher v. Acting Commissioner of Social Security
Civil No. 13-1847 (CVR)
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evidence” has been defined as “more than a mere scintilla.”
It means such relevant
evidence that a reasonable mind might accept as adequate to support a conclusion.
Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971).
Furthermore, the Court’s role is not to reinterpret the evidence or substitute its own
judgment for that of the Commissioner. Colón v. Sec’y of Health and Human Servs, 877
F.2d 148, 153 (1st Cir. 1989). “The findings of the [Commissioner] are conclusive if
supported by substantial evidence and should be upheld even in those cases in which the
reviewing Court, had it heard the same evidence de novo might have found otherwise.”
Lizotte v. S.H.H.S, 654 F.2d 127, 128 (1st Cir. 1981). However, although the Court cannot
second-guess the ALJ’s credibility findings, it must make certain that the complete record
has been considered by the ALJ in its analysis of each particular case. That is the basis for
the Court’s holding today.
This case presents a troubling issue inasmuch as the relevant period barely covers
two (2) years and there are scant medical records for that time period. While there are a
multitude of RFC’s and evaluations dated after the relevant cutoff date (some even up to
five (5) years afterwards), there are only two (2) treating sources for the relevant time
period, to wit, notes from the Ponce School of Medicine’s Centro de Salud Conductal del
Oeste, and the records of treating physician Dr. Ricardo Fumero (“Dr. Fumero”), which are
incomplete, as they only include assessments of Plaintiff’s condition and do not include
progress notes.
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Civil No. 13-1847 (CVR)
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Since 1985, Plaintiff has been employed as a restaurant manager in several places.3
The record shows that out of the four (4) places he worked at from 1985 through 2002, he
was only employed a month or less at two (2) of these establishments (Fez, Inc., and Bob’s
Big Boy). (Tr. p. 79). He began having trouble at his last job as a Manager of Buffalo’s Café
in March of 2001 because of his verbally abusive and physically aggressive behavior towards
his co-workers. This behavior escalated and ultimately resulted in his dismissal in March
of 2002, which is the disability onset date. In the end, the record shows that Plaintiff was
ultimately dismissed from all of his previous jobs due to his aggressive behavior. (Tr. p.
94).
Regarding Plaintiff’s treatment, he was seen by Dr. Fumero from 1998 through 2007;
specifically, twenty-nine (29) times from 1998 through 2002 for bipolar disorder of
depressed type and social phobia. (Tr. p. 221, 272). After Plaintiff lost his job in 2002, he
sought treatment at the Government clinic, but continued to see Dr. Fumero on and off
until 2007. (Tr. p. 146). Progress notes from the clinic indicate that Plaintiff was generally
stable without hallucinations or suicidal ideas (Tr. pp. 167-172) until August of 2004, when
Dr. Ricardo Ramírez Glez found Plaintiff “completely disabled.” (Tr. p. 187). The next
month, in September, 2004, Dr. Fumero rendered an evaluation in which he stated, among
others, that Plaintiff was “unable to keep a work schedule, does not complete tasks, does
not resist receiving orders from supervisors”, and was “unable to keep focus of attention
3
It is relevant to note that Plaintiff was initially diagnosed with bipolar depression and social phobia
in 1991, but had problems with his condition prior to that date (Tr. p. 94, 221) and had previously collected
Supplemental Security Income (“SSI”) benefits. These are mistakenly referred to in Dr. Fumero’s September,
2004 Psychiatric Medical Report as “Social Security Disability-SSI” benefits. (Tr. p. 219). It is evident that
this refers to SSI benefits, because if Plaintiff had received disability benefits, this case would not be before
the Court.
David G. Hatcher v. Acting Commissioner of Social Security
Civil No. 13-1847 (CVR)
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and unable to complete the tasks of a normal workday.” (Tr. p. 224). Two (2) months later,
in November, 2004, Dr. Jeanette Maldonado rendered a diagnosis of bipolar disorder and
stated that “[o]nset 3-02 as allegated (sic) is credible. He was unable to get recovered (sic)
of his major emotional symptoms all through the PS IT since October- 98.” (Tr. pp. 190).
Shortly after that, in January, 2005, Dr. Armando Caro (“Dr. Caro”) examined
Plaintiff and, although he found him well groomed, he indicated he had a foul smelling
odor. ( Tr. p. 192). Yet Dr. Caro found Plaintiff with good concentration and with preserved
memory and diagnosed him with bipolar disorder, depressed. (Tr. pp. 191-192). He further
concluded Plaintiff had problems with his primary support group, that his capacity for
social interaction was impaired and his prognosis was guarded. Id.
Evaluating physician Dr. Luis Sánchez Rafucci performed a psychiatric review
technique and an RFCA in February of 2005, where he found that Plaintiff was not
significantly limited in most areas, and that by the cutoff date, he should have been able to
understand, remember and carry out simple instructions, react appropriately to supervisors
and sustain concentration for extended periods of time. (Tr. p. 212). This diagnosis was
reaffirmed a few months later. (Tr. p. 211).
Dr. Fumero, Plaintiff’s treating psychiatrist, rendered a thorough evaluation in
April, 2005 that found Plaintiff with sleeping problems, suicidal thoughts, tense and
anxious and with agitated pressure of speech. (Tr. p. 220). Dr. Fumero further stated that
Plaintiff’s manic behavior had clearly manifested itself that week, as he visited that doctor’s
David G. Hatcher v. Acting Commissioner of Social Security
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office on several occasions, that he had obsessive ideas, poor self esteem and diminished
memory. Id. Dr. Fumero gave him a GAF score of 35.4
Dr. Orlando Reboredo (“Dr. Roboredo”) performed an RFCA in June 2007, where
he found Plaintiff moderately limited in six (6) and markedly limited in three (3) areas out
of twenty (20) and found his condition did not present such a severe picture as Dr. Fumero
had suggested. (Tr. p. 244.). Dr. Reboredo further found Plaintiff had the capacity to learn,
understand, remember and execute simple tasks and could sustain the pace and attention
of a regular workday or week. (Id.). Dr. Fumero’s RFCA a month later painted a drastically
different picture, where he found Plaintiff unable to meet competitive standards in fifteen
(15) out of twenty (20) areas, no useful ability to function in three (3) areas and marked
and extreme functional limitations. (Tr. p. 283-84).
Certainly this conflicting medical evidence of record could support a possible finding
of Plaintiff not being disabled, simply because “the responsibility of weighing conflicting
evidence, where reasonable minds could differ as to the outcome, fall on the Commissioner
and his designee, the ALJ.” Seavey v. Barnhart, 276 F.3d 1, 10 (1st Cir. 2001). The amount
of post-coverage date evidence that was considered in order for the ALJ to reach his
determination, however, is troubling. While courts have reached different conclusions as
to whether and how much post-coverage medical evidence should weigh in determining
4
The Global Assessment of Functioning (GAF) is a numeric scale (0 through 100) used by mental health
clinicians and physicians to rate subjectively the social, occupational, and psychological functioning of adults, e.g., how
well or adaptively one is meeting various problems-in-living. The score is often given as a range. Since 2013, the GAF is
no longer used in the DSM-5. A score of 31-40 indicates some impairment in reality testing or communication (e.g.,
speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family
relations, judgment, thinking, or mood (e.g., depressed adult avoids friends, neglects family, and is unable to work).
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whether a condition was disabling during the coverage period, the First Circuit has held that
“[m]edical evidence generated after a claimant's insured status expires may be considered
for what light (if any) it sheds on the question [of] whether the claimant's impairment
reached disabling severity before his insurance status expired.” Padilla Pérez v. Sec'y of
Health & Human Servs., 985 F.2d 552 (1st Cir. 1993) (unpublished); (citing Deblois v. Sec'y
of Health & Human Servs., 686 F.2d 76, 81 (1st Cir. 1982).; see also Basinger v. Heckler,
725 F.2d 1166, 1169 (8th Cir. 1984); and Cooper v. Comm'r of Soc. Sec., 277 F.Supp.2d 748,
754 (E.D.Mich. 2003) (“Medical evidence that postdates the insured status date may be,
and ought to be, considered, but only insofar as it bears on the claimant's condition prior
to the expiration of insured status.”). However, in order for the evidence to be useful, it
ought to be “ ‘reasonably proximate’ ” to the date last insured. Cooper, 277 F.Supp.2d at 754
(quoting Begley v. Mathews, 544 F.2d 1345, 1354 (6th Cir. 1976)).
The Court is at a loss to understand how a physician could render an accurate
evaluation on a patient a full four (4) or five (5) years after his insured status ended.
Certainly, the Court can see how an evaluation perhaps one (1) year, or two (2) later can aid
in the determination of Plaintiff’s residual functional capacity at the time his insured status
ended, but the Court in unable to see the relevance in examinations older than that.
In the case at bar, Dr. Reboredo performed an RFCA dated June 2007, five (5) years
after Plaintiff’s insured status had expired. (Tr. pp. 228-244). Five (5) years from the onset
date and four (4) years from the cutoff date is simply too remote to be able to determine
what disability Plaintiff had, if any. The Court cannot accept this assessment after such a
large time lapse.
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The same applies to Dr. Fumero’ s RFCA and analysis dated July and October, 2007,
yet Dr. Fumero simply restated his diagnosis from day one (1), and which he originally
made a lot closer to the cutoff period- that Plaintiff is completely disabled. The Court
therefore finds the ALJ erred in considering evidence after December, 2005 in its analysis
of Plaintiff’s residual functional capacity. See, Meredith v. Bowen, 833 F.2d 650 (7th Cir.
1987) (“While we sympathize with the claimant and her physical problems and we realize
that she was diagnosed as totally disabled by Drs. Kachmann and Stibbens in 1984, these
diagnoses simply are not relevant to her physical condition some eleven years earlier in
1973 when her insured status expired”).
Besides the inordinate amount of time lapsed between the last RFCA’s performed
and the cutoff date, the second problem with this case is that the ALJ chose to practically
ignore one (1) of the two (2) only treating sources for the relevant time period, and relied
instead on the multiple evaluations that were done after the cutoff date in order to conclude
that Plaintiff was not disabled.
The Court is not convinced that this was the correct
approach in this particular case.
Under the “treating physician rule,” the Commissioner generally must accord greater
weight to the opinions of a claimant’s treating sources than other sources because of the
treating doctors’ longitudinal perspective on the claimant's condition. 20 C.F.R. §
404.1527(d)(2). It has been clearly established that even though claimants generally bear
the burden of persuasion at step four, the Commissioner, through the ALJ, still has a duty
to develop an adequate record on which reasonable conclusions may be based. See, Carrillo
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Civil No. 13-1847 (CVR)
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Marin v. Sec'y, 758 F.2d 14, 17 (1st Cir.1985). Specifically, the regulations in effect when the
ALJ rendered his opinion 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).5
Thus, the ALJ had a duty to solicit additional information from the medical
practitioner in order to flesh out an opinion for which highly relevant medical support or
evidence was not readily discernable. See, Smith v. Apfel, 231 F.3d 433, 437–38 (7th Cir.
2000) (holding the ALJ’s duty to develop the record included soliciting updated medical
records when the ALJ did not afford the treating doctor’s opinion controlling weight on that
basis) and Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) (“If the ALJ thought he
needed to know the basis of [medical] opinions in order to evaluate them, he had a duty to
conduct an appropriate inquiry, for example, by subpoenaing the physicians or submitting
further questions to them.”).
In the present case, with such scant records to establish Plaintiff’s condition, and
where progress notes were not included in the record that had direct bearing upon
5
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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Civil No. 13-1847 (CVR)
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Plaintiff’s condition on or near the covered period, it was the ALJ’s duty to ask for
additional information in the form of the treatment notes in order to complete the record.
As a matter of fact, the ALJ specifically pointed to the lack of Dr. Fumero’s progress notes
in the record, (Tr. p. 303) and yet he failed to complete the record by requesting them.
While this may not be important in some cases, in this particular case, where the physician
was Plaintiff’s treating physician for the relevant period, it becomes highly relevant.
Ironically, while the ALJ states that Dr. Fumero’s conclusion that Plaintiff’s disorders were
severe is not supported by the evidence “on the whole record during the period at issue”,
he failed to request and examine relevant documentation from the period at issue precisely
from the source that was concluding that Plaintiff was disabled. Thus, the record the ALJ
examined cannot be considered “the complete record.”
In sum, the ALJ failed to complete the record, relying instead on medical data that
was years past the cutoff date and rejecting the opportunity for first hand, treating
information within the relevant period. This lack of evidence may have altered the ALJ’s
final conclusion in the present case and could certainly prejudice Plaintiff. The undersigned
therefore VACATES the final decision of the Commissioner and REMANDS this case to the
ALJ, in order for him to further develop the medical record with treating physician Dr.
Fumero’s progress notes of Plaintiff’s visits to his office.
CONCLUSION
For the reasons above discussed, this United States Magistrate Judge VACATES the
final decision of the Commissioner and REMANDS the case so that the ALJ may further
and completely develop the record, as instructed herein.
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Civil No. 13-1847 (CVR)
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Judgment is to be entered accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, on this 31st day of October 2014.
S/CAMILLE L. VELEZ-RIVE
CAMILLE L. VELEZ RIVE
UNITED STATES MAGISTRATE JUDGE
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