Rosado_Serrano v. Commissioner of Social Security

Filing 20

OPINION AND ORDER regarding 1 Social Security Complaint, remanding the case for further proceedings. Signed by US Magistrate Judge Marcos E. Lopez on 3/24/2015. (MT)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ERNESTO ROSADO-SERRANO,
Plaintiff,
v.

13-cv-1900 (MEL)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

OPINION AND ORDER
I.

PROCEDURAL HISTORY

Ernesto Rosado-Serrano (“plaintiff” or “claimant”) was born on April 27, 1964, and has a
6th grade education. (Tr. 22; 393.) He has prior work experience as a Telephone Line Installer
and a Heavy Truck Driver. (Tr. 22; 56.) On June 30, 2010, claimant filed an application for
Social Security disability insurance benefits, alleging that on May 25, 2009 he became unable to
work due to a disabling condition. (Tr. 393.) His date last insured was September 30, 2013. (Tr.
15.) Claimant’s application was denied initially and upon reconsideration. (Tr. 13.) He requested
a hearing before an Administrative Law Judge (“ALJ”). He waived his right to appear and testify
at the hearing held on October 11, 2012, but was represented by counsel at the hearing. Id. A
vocational expert (“VE”) testified by telephone. Id. The ALJ rendered a decision on October 12,
2012, finding that claimant was not disabled because jobs exist in significant numbers in the
national economy that claimant can perform. (Tr. 19.) The Appeals Council denied plaintiff’s
request for review on October 24, 2013. (Tr. 1.) Therefore, the ALJ’s opinion became the final
decision of the Commissioner of Social Security (the “Commissioner”). Id.

On June 19, 2012, plaintiff 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 plaintiff
was not disabled was not based on substantial evidence. ECF No. 1, ¶¶ 2, 6. Plaintiff and
defendant have submitted supporting memoranda of law. ECF Nos. 18, 19.
II.

STANDARD OF REVIEW

The Social Security 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 upon review of 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 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
last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). Claims for
disability benefits are evaluated according to a five-step sequential process. 20 C.F.R.
§ 404.1520 (2012); Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003); Cleveland v. Policy Mgmt.
Sys. Corp., 526 U.S. 795, 804 (1999). If it is determined that the claimant is not disabled at any
step in the evaluation process, then the analysis will not proceed to the next step. At step five of
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the sequential process, 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
plaintiff 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 of the sequential process “to prove the existence of other jobs in
the national economy that the plaintiff can perform.” Id.
III.

MEDICAL EVIDENCE SUMMARY
A.

Physical Health Evidence

Claimant has a history of cardiac problems and has been diagnosed with severe dilated
non-ischemic cardiomyopathy and atrial fibrillation. (Tr. 269.) He was hospitalized from July 6,
2007 through July 20, 2007 for uncontrolled atrial fibrillation. (Tr. 105.) An echocardiogram
study performed on July 7, 2007 revealed a “severely reduced” left ventricular ejection fraction
of 10-20%.2 (Tr. 97; 98.) In August 2007 claimant underwent cardiac catheterization.3 (Tr. 94;
105.) Claimant has been prescribed oral medication for his heart condition, including Coumadin,
Metroprolol, Enalapril, Digoxin, and Warfarin. (Tr. 135; 507; 560).
1

An individual’s RFC is the most that he can do in a work setting despite the limitations imposed by his mental and
physical impairments. 20 C.F.R. § 404.1545(a)(1).
2
Left ventricular ejection fraction “is one of the major tests used to evaluate the severity of cardiomyopathy.”
Charles T. Hall, Soc. Sec. Disab. Pract. § 7:46 (2014). “An ‘ejection fraction’ is the measurement of the percentage
of blood leaving someone’s heart each time it contracts.” Benson v. Colvin, Civil Action No. 11-11935-JCB, 2013
WL 1328084, at *8 n. 5 (D. Mass. March 29, 2013). An ejection fraction of 65% is considered normal; “[a] person
with an ejection fraction of 30% or below will feel quite weak,” and “[a]n ejection fraction of less than 20% is
considered ground for consideration of a heart transplant.” Charles T. Hall, Soc. Sec. Disab. Pract. § 7:46 (2014).
3
At some point prior to September 28, 2009, claimant had a pacemaker implanted. (Tr. 153; 118.) However, a
review of the medical evidence in the record that the parties and the ALJ have cited does not reveal the actual date
of implantation.

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On January 18, 2010 claimant was admitted to the Mayagüez Medical Center due to
complaints of chest pain, dizziness, and increased perspiration. (Tr. 115.) A chest x-ray showed
“[i]ncreased interstitial markings involving the right lung base,” no pleural effusion, no
pneumothorax, and that his pacemaker was in place. (Tr. 118.) An echocardiogram report dated
July 5, 2010 revealed “adequate left ventricular contractility” with a left ventricular ejection
fraction of 55-60%, that claimant’s pacemaker was in place, and “mild mitral and tricuspid
regurgitations.” (Tr. 556.)
Claimant was evaluated by consultant internist Dr. Karen V. Stewart (“Dr. Stewart”) on
November 5, 2010. (Tr. 560-70.) Dr. Stewart noted claimant’s history of atrial fibrillation and
that he had a pacemaker implanted. (Tr. 560.) She indicated that his heart had an irregular
rhythm, but no gallops or murmurs. (Tr. 561.) She gave him a “guarded” prognosis and in the
“assessment” section of her report she wrote: “Case of a 46 y/o man with Atrial fibrillation, HBP
and PVD that makes him limited to sustained standing, sitting, bending, kneeling and pushing.”
(Tr. 562.) A chest x-ray Dr. Stewart ordered revealed “no acute disease.” (Tr. 570.)
On April 25, 2011 state agency consultant Dr. Iván Acosta (“Dr. Acosta”) completed an
RFC assessment of claimant. (Tr. 574-84.) Dr. Acosta indicated that claimant could occasionally
lift up to 20 pounds; frequently lift 10 pounds; sit, stand or walk about 6 hours in an 8-hour
workday; and engage in unlimited pushing and pulling. (Tr. 577.) He opined that claimant could
frequently engage in balancing, stooping, kneeling, and crouching; occasionally climb ramps or
stairs or crawl; and never climb ladders, ropes, or scaffolds. (Tr. 578.) Dr. Acosta stated that
claimant’s “symptoms seem out of proportion to the evidence [are] probably related to an
associated depressive reaction.” (Tr. 581.)

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An echocardiogram report dated May 16, 2011 indicates that claimant’s pacemaker was
in place and he had “decreased systolic function” with a left ventricular systolic ejection fraction
of 25-30%. (Tr. 256.) The interpreting physician noted: “There is global hypokinesis. The aortic
valve is calcified. There is mild aortic regurgitation. There is mild to moderate tricuspid
regurgitation (183 cm/s).” Id.
On July 29, 2011, Dr. Juan F. Rodríguez-Acosta (“Dr. Rodríguez-Acosta”), claimant’s
treating cardiologist since August 23, 2007, completed an RFC questionnaire, indicating that the
symptoms and limitations reported in it were applicable beginning in early 2007. (Tr. 259-62.)
Dr. Rodríguez-Acosta assessed a guarded prognosis. (Tr. 260.) He noted that claimant could not
walk a city block without rest and indicated that claimant could sit for 1 hour at a time before
needing to get up, could stand for 10 minutes at a time, and would sometimes need to take
unscheduled breaks during an 8-hour working shift, requiring 30 to 40 minutes of rest before
returning to work. Id. Dr. Rodríguez-Acosta checked off boxes to indicate that claimant could lift
less than 10 pounds on occasion in an 8-hour working day and could never lift more than 10
pounds, twist, stoop, bend, crouch, climb latters, or climb stairs during an 8-hour working day.
(Tr. 261.) In Dr. Rodríguez-Acosta’s estimate, claimant would likely be absent from work more
than four days per month as a result of claimant’s impairments or treatment. (Tr. 262.)
B.
Claimant

Mental Health Evidence
sought

psychiatric

treatment

from

Dr.

Alberto

Rodríguez-Robles

(“Dr. Rodríguez-Robles”) on February 15, 2011, due to feelings of depression, problems
concentrating, irritability, and anxiety. (Tr. 265.) Dr. Rodríguez-Robles diagnosed claimant with
major depressive disorder and noted that claimant’s depressed mood and anxiety began 20 years
prior to the consultation. Id.

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Dr. Rodríguez-Robles completed a disability determination form on April 8, 2012, based
on an evaluation that took place on April 3, 2012. (Tr. 278.) Dr. Rodríguez-Robles stated that
claimant had “little attention and concentration” and noted that claimant could not “follow the
sequence,” became very anxious, and that he did not complete tasks. (Tr. 273-76.) He indicated
that claimant needs help to complete daily tasks and that claimant did “not tolerate stress” and
had “a fear of dying from heart problems.” (Tr. 277.) Dr. Rodríguez-Robles also indicated that
plaintiff had panic attacks three to four times a week, lasting 10-15 minutes, during which
claimant “becomes afraid, gets palpitations, and feels like he is going to die.” Id. Dr. RodríguezRobles’s disability determination form indicates that claimant did not go out alone due to fear of
the panic attacks. Id. On April 8, 2012 Dr. Rodríguez-Robles also completed a mental health
RFC assessment, indicating that claimant’s mental health condition imposed marked limitations
in claimant’s understanding and memory, sustained concentration and persistence, social
functioning, and adaptation. (Tr. 282-84.)
IV.

LEGAL ANALYSIS

Plaintiff argues that the ALJ ignored substantial evidence regarding his functional
limitations and failed to give good reasons for giving “little weight” to the opinions of his
treating cardiologist, Dr. Rodríguez-Acosta, and treating psychiatrist, Dr. Rodríguez-Robles.
ECF No. 18, at 12. The ALJ rendered an RFC assessment that conflicted with the opinions of
claimant’s treating physicians and formulated a hypothetical question to the VE based on the
abilities and limitations included in this RFC assessment. (Tr. 18; 38.) Thus, it is plaintiff’s
position that because the hypothetical question to the VE did not account for all of his functional
limitations, the VE’s testimony that claimant could perform the job of Wire Preparation Machine
Tender or Electronic Worker (Tr. 12.) does not support the determination at step five of the

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sequential process that claimant was not disabled between May 25, 2009 and September 30,
2013 (the “disability insurance period”). ECF No. 18, at 18-19.
Pursuant to the Social Security regulations, the ALJ evaluates all medical opinions he
receives “[r]egardless of its source,” unless a treating physician’s opinion is given controlling
weight. 20 C.F.R. § 404.1527(d) (2012). “Generally, the ALJ gives ‘more weight to the opinions
from the claimant's treating physicians, because these sources are likely to be the medical
professionals most able to provide a detailed, longitudinal picture of the claimant's medical
impairments.’” Berríos Vélez v. Barnhart, 402 F.Supp.2d 386, 391 (D.P.R. 2005) (citing 20
C.F.R. § 404.1527(d)(2)). To be given controlling weight, the treating physician’s opinion must
be “‘well-supported by medically acceptable clinical and laboratory diagnostic techniques and
. . . not inconsistent with the other substantial evidence in [the] record.’” Polanco-Quiñones v.
Astrue, 477 Fed. Appx. 745, 746 (1st Cir. 2012) (quoting 20 C.F.R. § 404.1527(d)(2)). The ALJ,
however, is not always required to give controlling weight to the opinions of treating physicians.
Barrientos v. Sec’y of Health & Human Servs., 820 F.2d 1, 2-3 (1st Cir. 1987); Rivera-Tufino v.
Comm’r of Soc. Sec., 731 F. Supp. 2d 210, 216 (D.P.R. 2010). Rather, the ALJ can give less
weight to a treating physician’s opinion, but must “give good reasons in [his] notice of
determination or decision for the weight [given to the] treating source’s opinion.” Rodríguez v.
Colvin, Civ. No. 12-1546(SEC), 2014 WL 1309964 (D.P.R. March 31, 2014) (citing 20 C.F.R.
§ 404.1527(c)(2); and Soto- Cedeño v. Astrue, 380 Fed. App’x 1, 4 (1st Cir. 2010) (per curiam);
see also Pagán-Figueroa v. Comm’r of Soc. Sec., 623 F. Supp. 2d 206, 210-211 (D.P.R. 2009)
(citing Carrasco v. Comm’r of Soc. Sec., 528 F. Supp. 2d 17, 25 (D.P.R. 2007)).

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A. Physical Health RFC Assessment
The ALJ determined that for the disability insurance period, claimant had the RFC to
perform light work, as defined in 20 C.F.R. § 404.1567(b), except that he needs to alternate
positions every two hours. (Tr. 18.) In making this determination, the ALJ gave “little weight” to
Dr. Rodríguez-Acosta’s RFC assessment, explaining that “the medical evidence fails to show
that the claimant’s cardiac condition has deteriorated to the point that he could not engage in
even sedentary type of exertion.”4 (Tr. 21.) However, the ALJ assessed that claimant could do
more than just sedentary work, as light work includes jobs that require “a good deal of walking
or standing” and “involves lifting no more than 20 pounds at a time with frequent lifting or
carrying or objects weighing up to 10 pounds.” 20 C.F.R. § 404.1567(b). Even accepting the
ALJ’s conclusion that the medical evidence does not support a finding that claimant’s condition
is so severe that he cannot engage in sedentary work, additional evidence is necessary to sustain
his conclusion that claimant is capable of frequent walking and standing, lifting up to 20 pounds
at a time, and frequently lifting or carrying objects weighing up to 10 pounds.
In reaching the modified light work RFC determination, the ALJ relied on the opinion of
state agency consultant Dr. Acosta. (Tr. 21.) As a rationale for his agreement with Dr. Acosta,
the ALJ stated that “[t]he record fails to show worsening in claimant’s condition.” Id. However,
Dr. Acosta completed his RFC assessment on April 25, 2011—that is, prior to the May 16, 2011
echocardiogram, which demonstrates that claimant had “decreased systolic function” with a left
ventricular ejection fraction of 25-30%. Particularly in light of the ALJ’s explanation that he
accepted Dr. Acosta’s assessment because the record does not reflect a worsening of claimant’s

4

Under the Social Security Administration regulations, “[s]endentary work involves lifting no more than 10 pounds
at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools.” 20 C.F.R.
§ 404.1567(a). While “a sedentary job is defined as one which involves sitting,” they may involve occasional
walking and standing. Id.

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cardiac condition, the ALJ’s reliance on Dr. Acosta is problematic because the record contains
objective medical evidence that claimant’s condition worsened subsequent to the assessment.
Claimant’s treating cardiologist Dr. Rodríguez-Acosta rendered his assessment after the
May 16, 2011 echocardiogram. The ALJ did take note of the results of this echocardiogram, but
reasoned that it did not support Dr. Rodríguez-Acosta’s “restricted” RFC assessment, stating:
The record does not contain a recent echocardiogram study
showing that the claimant’s ejection fraction as remained severely
decreased. There was only one occasion after the placement of the
pacemaker when the claimant had an ejection fraction of 25-30%.
The medical record does not contain evidence after that showing
this type of severity.
Id. However, neither the ALJ’s decision nor the parties in this case have cited or referred to a
more recent echocardiogram study in the medical record. Thus, there was also no evidence before
the ALJ that claimant’s ejection fraction improved between May 16, 2011 and the date of the
ALJ’s decision.
The ALJ appears to have concluded that the lack of an additional echocardiogram study
after May 16, 2011 undermines Dr. Rodríguez-Acosta’s opinion as to what tasks claimant could
and could not perform in a work setting throughout the disability insurance period. However, it is
far from self-evident that the lack of additional evidence regarding claimant’s ejection fraction
translates to the ability to perform light work, if permitted to change positions every two hours,
and the ALJ did not adequately explain this conclusion. The ALJ did note that Dr. RodríguezAcosta’s “most recent treatment notes . . . show a controlled hypertensive condition.” (Tr. 21.)
The latest treatment note from Dr. Rodríguez-Acosta in the medical record is dated September 1,
2012 and lists claimant’s medications, diagnoses, and a brief summary of the course of his cardiac
illness. (Tr. 290-91.) It is not clear, however, how this treatment note contradicts his July 29, 2011
physical RFC assessment, which also accounted for claimant’s medications, diagnoses, and

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cardiac history. (Tr. 259-62.) The September 1, 2012 treatment note recounts much of the same
information as the July 29, 2011 assessment and contains no evidence suggesting an improvement
in claimant’s condition that might support the ALJ’s decision to set aside Dr. Rodríguez-Acosta’s
conclusions regarding claimant’s work-related limitations in favor of adopting Dr. Acosta’s lessrestrictive assessment of his cardiac condition.
B. Mental Health RFC Assessment
With regard to claimant’s mental condition, the ALJ assessed that claimant “has a severe
mental impairment, but not to the extent that he cannot engage in simple tasks on a sustained
basis.” (Tr. 21.) The ALJ’s primary explanation for giving “little weight” to the mental RFC
assessment complete by claimant’s treating psychiatrist, Dr. Rodríguez-Robles, was that “no
other treating physician reported similar findings.” Id. However, a review of the evidence the
ALJ cited in support of this assertion reveals that the “other treating physician[s],” Dr. Stewart
and Dr. Rodríguez-Acosta, are specialists in internal medicine and cardiology, respectively—not
mental health. (Tr. 21; 561.) Dr. Stewart found that claimant’s general appearance was “alert and
oriented,” “well-groomed,” and had “[a]dequate thought content and idea communication”
during his evaluation on November 5, 2010. (Tr. 561.) However, not only does her report
explicitly indicate that she was performing a physical examination rather than a mental one, her
findings regarding claimant’s general appearance on that date are not necessarily inconsistent
with Dr. Rodríguez-Robles’s assessment that claimant has work-related impairments in his
understanding and memory, sustained concentration and persistence, social functioning, and
adaptation. Dr. Rodríguez-Robles was the only mental health professional to examine claimant.
It is true that the medical record does not contain another opinion corroborating Dr. Rodríguez-

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Robles’s findings, but given that the record contains no other mental health assessment this is not
a sufficient basis for discarding Dr. Rodríguez-Robles’s findings.
The ALJ also indicated that he found Dr. Rodríguez-Robles’s April 8, 2012, findings that
the claimant was “logic [sic], coherent, and fully oriented and presented adequate recent and
remote memory skills and superficial judgment” to be inconsistent with the “level of severity”
reported in his mental RFC assessment. (Tr. 21.) While Dr. Rodríguez-Robles did note that
claimant was “[o]riented x3” during the evaluation, had “superficial judgement [sic],” and was
“logical and coherent,” Dr. Rodríguez-Robles also made numerous findings within the April 8,
2012 psychiatric medical report substantiating the marked limitations he found with regard to
claimant’s understanding and memory, sustained concentration and persistence, social
functioning, and adaptation. (Tr. 273-74.) Dr. Rodríguez-Robles expressly found that claimant
had “poor memory." (Tr. 273.) While Dr. Rodríguez-Robles noted that claimant’s recent and
remote memory was “OK,” as to his immediate memory Dr. Rodríguez-Robles stated that
claimant “[could not] remember the numbers in reverse order and he only remember[ed] one
thing out of five.” (Tr. 275.) Similarly, as to claimant’s short-term memory Dr. RodríguezRobles expressed that claimant “remember[ed] two words out of five.” Id. The finding that
claimant had the ability to appropriately recall recent and remote events during the April 3, 2012
evaluation does not necessarily undermine Dr. Rodríguez-Robles’s conclusions that he was
markedly limited in the ability to “remember locations and work-like procedures,” “understand
and remember very short and simple instructions,” and “understand and remember detailed
instructions,” as Rodríguez-Robles’s findings with regard to claimant’s immediate and shortterm memory support these limitations. Dr. Rodríguez-Robles also found that claimant had
“[p]oor attention and concentration.” (Tr. 273.) Indeed, it is conceivable that claimant gave the

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impression that he was oriented, logical, and coherent, but nevertheless exhibited limitations in
sustained attention and concentration, such that he would experience problems carrying out
instructions in the work place and performing activities within a schedule. Dr. Rodríguez-Robles
explicitly noted that claimant was “easily distracted,” “[did] not complete tasks,” and “need[ed]
help for daily tasks.” (Tr. 276-77.) With regard to claimant’s social functioning, Dr. RodríguezRobles indicated that claimant was “always isolated” and stated that he “[did] not like to go out
and he cannot stay where there are many people.” (Tr. 274.) As to claimant’s adaptation,
Dr. Rodríguez-Robles noted that claimant “[did] not go out alone” due to fear of panic attacks,
which he experienced three or four times a week. (Tr. 277.) Viewed in their totality
Dr. Rodríguez-Robles’s detailed findings are consistent with the limitations he found in his
mental RFC assessment; the findings that the ALJ referred to as “inconsistent” with
Dr. Rodríguez-Robles’s assessment do not warrant the “little weight” given to his opinion and
the resultant omission of the limitations from the ALJ’s RFC determination and hypothetical
question to the VE.
V.

CONCLUSION

In reaching an RFC determination regarding claimant’s physical abilities, the ALJ relied
on state agency consultant Dr. Acosta, whose assessment that claimant could engage in light work
is not supported by substantial evidence in the record.5 In doing so, he failed to provide good
reasons for discrediting the contradictory assessment from claimant’s treating cardiologist,
5

The ALJ interpreted consultant internist Dr. Stewart’s assessment that claimant was “limited to sustained standing,
sitting, bending, stepping, kneeling, and pushing,” as meaning that claimant has limitations in these areas. (Tr. 21.)
In other words, the ALJ read Dr. Stewart’s assessment to mean that claimant was limited “with regard to” sustained
standing, sitting, bending, stepping, kneeling, and pushing, not that he can only perform these activities, as a plain
language reading of her assessment might imply. Given the context of Dr. Stewart’s sentence, the ALJ’s reading of
her assessment was appropriate, as taken literally it would mean that because of claimant’s heart condition he must
engage in these 6 activities on a sustained basis. This would be particularly irrational because there is no indication
that Dr. Stewart’s assessment is limited to what claimant can and cannot do in the workplace, but rather applies to
his capabilities in general. Such a reading would essentially mean that he cannot do anything else aside from these 6
activities, including rest or take breaks from the activities Dr. Stewart enumerated.

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Dr. Rodríguez-Acosta. See Polanco-Quiñones, 477 Fed. Appx. at 746. Similarly, the ALJ rejected
the mental RFC assessment from claimant’s treating psychiatrist, Dr. Rodríguez-Robles, but
lacked an adequate basis for doing so. Although the ALJ was not required to give the treating
physicians’ opinions controlling weight if they were not well-supported or were inconsistent with
other substantial evidence in the record, neither of those rationales is applicable in this case. Id.
Therefore, the Commissioner’s decision is hereby REMANDED for further proceedings
consistent with this opinion.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 24th day of March, 2015.
s/ Marcos E. López
United States Magistrate Judge

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