Rodriguez-Negron v. Commssioner of Social Security

Filing 26

OPINION AND ORDER re 1 SOCIAL SECURITY COMPLAINT, filed by Angel A. Rodriguez-Negron. Signed by US Magistrate Judge Camille L. Velez-Rive on 4/1/15.(ljt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ANGEL A. RODRIGUEZ NEGRON,
Plaintiff,
v.
CIVIL NO. 13-1926 (CVR)
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

OPINION AND ORDER
INTRODUCTION
Plaintiff Angel A. Rodríguez Negrón (“Plaintiff”) filed this action to obtain judicial
review of the final decision of Defendant Carolyn Colvin, the Acting Commissioner of Social
Security (“Commissioner” or “Defendant”), denying his application for disability benefits.
(Docket No. 1).1 On May 8, 2014, the Commissioner answered the Complaint and filed a
copy of the administrative record. (Docket Nos. 6 and 7). On June 30, 2014, Plaintiff filed
a consent to proceed before a United States Magistrate Judge (Docket No. 11).2 On October
30, 2014, Plaintiff filed his memorandum of law (Docket No. 22) and on December 22,
2014, the Commissioner filed her memorandum of law. (Docket No. 25). After careful
review, the Court AFFIRMS the Commissioner’s decision.

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 already 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).

Angel Rodríguez Negrón v. Acting Commissioner of S.S.
Opinion and Order
Civil No. 13-1926 (CVR)
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ADMINISTRATIVE AND PROCEDURAL HISTORY
On August 26, 2011, Plaintiff, a disabled veteran3, filed an application for disability
benefits, with an alleged onset date of disability of October 29, 2010. The application was
initially denied, as was the reconsideration. (Tr. pp. 62-65 and 66-67). Plaintiff then
requested an administrative hearing, which was held on March 21, 2013, where Plaintiff was
present and testified regarding his alleged disabilities. (Tr. pp. 29-58). On June 27, 2013,
the presiding Administrative Law Judge (“ALJ”) issued an opinion, finding Plaintiff was not
disabled from October 29, 2010 through the last insured date. The ALJ enumerated the
following findings of fact in her decision:
1.

Plaintiff had met the insured status requirements of the Social Security Act
on June 30, 2011.

2.

Plaintiff did not engage in any substantial gainful activity during the period
from his alleged onset date of October 29, 2010 through his last insured date
of June 30, 2011.

3.

Through the last date insured, Plaintiff had the following severe impairments:
a right shoulder dislocation, a left tibial stress fracture, sinus bradycardia and
a bipolar disorder.

4.

Through the last date insured, Plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity of one
of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.

3
In 2006, Plaintiff received a 70% service connected disability due to a mood disorder from the Veteran’s
Administration (“VA”). He also received a 30% disability rating regarding limitations on the use of his right arm, and a
20% disability determination based on limitations of use of his left knee.

Angel Rodríguez Negrón v. Acting Commissioner of S.S.
Opinion and Order
Civil No. 13-1926 (CVR)
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5.

Through the last date insured, Plaintiff had the residual functional capacity
to perform light work requiring lifting and/or carrying 20 pounds
occasionally, and 10 pounds frequently, sitting about 6 hours in an 8 hour
workday, standing and/or walking about 6 hours in an 8 hour workday, with
no limitations pushing and/or pulling, with occasionally right upper
extremity reaching in front and/or laterally and over the shoulder, and with
an ability for unskilled work that is simple and routine.

6.

Through the last date insured, Plaintiff was unable to perform any past
relevant work.

7.

Plaintiff was born on November 11, 1977, and was 33 years old, which is
defined as a younger individual, age 18-49, on the date last insured.

8.

Plaintiff has, at least, a high school education and is able to communicate in
English.

9.

Transferability of job skills is not material to the determination of disability
because Plaintiff is limited to unskilled work.

10.

Through the last date insured, considering Plaintiff’s age, education, work
experience, and residual functional capacity, there were jobs that existed in
significant numbers in the national economy that Plaintiff could have
performed (counter clerk, furniture rental consultant and account
investigator).

Angel Rodríguez Negrón v. Acting Commissioner of S.S.
Opinion and Order
Civil No. 13-1926 (CVR)
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11.

Plaintiff was not under a disability, as defined in the Social Security Act, at
any time from October 29, 2010, the alleged onset date, through June 30,
2011, the date last insured.

Taking all the evidence into account, regarding the limitations imposed by the
mental component, although the ALJ found Plaintiff had moderate difficulties in
maintaining concentration, persistence and pace, none of these were found to be severe.
Tr. p. 17. Plaintiff suffered no episodes of decompensation during the relevant period. Id.
The ALJ further found that, in spite of Plaintiff’s limitations, and in spite of the VA’s 70%
mental disability determination, Plaintiff was independent regarding personal care, paying
his bills, counting change, taking care of his child and helping him with his homework, and
doing household chores, among others. Id.
Regarding the physical component, the ALJ found Plaintiff had some limitations in
his right arm due to an injury, but that he had the capacity for light unskilled work. Tr. p.
20. In so doing, the ALJ found that Plaintiff was able to make simple, unskilled and routine
work, taking into account the VA’s physical disability determinations. The ALJ concluded
that Plaintiff was therefore not disabled. 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. p. 1.
Plaintiff objects the ALJ’s final decision denying him disability benefits, alleging that
she disregarded or gave little weight to the VA’s internal determination of disability.
Plaintiff also claims the hypothetical posed to the Vocational Expert was in error, insofar
as it did not present all of Plaintiff’s limitations. Therefore, Plaintiff argues that the ALJ’s

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Opinion and Order
Civil No. 13-1926 (CVR)
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decision was not based on substantial evidence. The Commissioner, on the other hand,
argues there is substantial evidence to support the ALJ’s conclusion that Plaintiff had the
residual functional capacity for light work, and that the correct weight was given to the VA’s
disability determination.
LEGAL ANALYSIS
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). It is well settled law that a claimant is 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 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,

Angel Rodríguez Negrón v. Acting Commissioner of S.S.
Opinion and Order
Civil No. 13-1926 (CVR)
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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
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 residual
functional capacity, as well as age, education, and work experience. The claimant would
be entitled to disability benefits only if he/she is not able to perform other work. §§
404.1520(f). In the case at bar, at step 5, the ALJ determined that while Plaintiff was

Angel Rodríguez Negrón v. Acting Commissioner of S.S.
Opinion and Order
Civil No. 13-1926 (CVR)
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unable to return to his past work, he was able to perform other jobs that were available in
the national economy.
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).
Substantial evidence is “more than a mere scintilla and such, as a reasonable mind might
accept as adequate to support a conclusion”. Richardson v. Perales, 402 U.S. 389 (1971),
quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197 (1938). The court will set aside
a denial of benefits only if it is not supported by substantial evidence or if it is based on a
legal error. See, Seavey v. Barnhart, 276 F.3d 1, 9 (1st Cir. 2001); Rodríguez v. Sec’y of
Health and Human Servs, 647 F.2d 218, 222 (1st Cir. 1981).
It is important to note that courts must give deference to the ALJ’s interpretation of
the medical record and, although an ALJ is not at liberty to ignore medical evidence or
substitute his own views for uncontroverted medical opinion, upon the existence of conflicts
in the medical record from the report and sources, it is for the ALJ and not this Court to
resolve them. See Nguyen v. Chater, 172 F.3d at 31; Lizotte v. Sec’y of Health & Human
Servs., 654 F.2d 127 (1st Cir. 1981) (the resolutions of conflicts in the evidence and the
determination of the ultimate question of disability is for him [the ALJ], not for the doctors
or for the courts); see also Rodríguez v. Sec’y of Health and Human Servs., 647 F.2d at 222.

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Opinion and Order
Civil No. 13-1926 (CVR)
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The Court gives short shrift to Plaintiff’s first argument, that little or no weight was
given to the VA’s determination of disability. It was been well established that, while the
ALJ should consider the disability findings of other agencies, a VA disability rating is not
binding on the Commissioner. See 20 C.F.R. § 404.1504 (“Therefore, a determination made
by another agency that you are disabled or blind is not binding on us”); see also Pelkey v.
Barnhart, 433 F.3d 575, 579 (8th Cir. 2006) (regulations provide that the Commissioner
must ultimately make its disability determination based on social security law, not the rules
of other agencies); Werner v. Comm’r of Social Security, 421 Fed.Appx. 935 (11th Cir. 2011)
(findings of other agencies are not binding on the Commissioner); Mandrell v. Weinberger,
511 F.2d 1102, 1103 (10th Cir.1975) (although entitled to consideration, finding of disability
by Veteran’s Administration not controlling). Therefore, the fact that Plaintiff was disabled
by the VA is not controlling in this case. Notwithstanding this, the Court finds the ALJ did,
in fact, take the VA’s disability determinations into account in her analysis.
This case presents some difficulty in the analysis of the relevant findings, insofar as
the window of coverage is less than a year, the onset date is October 29, 2010 and the end
of coverage is June 11, 2011. A review of the medical record during that period, however,
shows Plaintiff’s GAF scores 4 ranged from 55-59, which show moderate difficulty in several
areas, but not complete impediments. Tr. p. 371. Furthermore, notes from VA just two

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 51 - 60 indicates moderate symptoms
(e.g., flat affect and circumlocutory speech, occasional panic attacks) or moderate difficulty in social,
occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).

Angel Rodríguez Negrón v. Acting Commissioner of S.S.
Opinion and Order
Civil No. 13-1926 (CVR)
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months before the alleged onset date state that Plaintiff “...is willing to work both outside
and inside R shoulder has minor ROM limitations. Vet is willing and capable of doing
almost any job. He is determined to change his situation, as he realizes he needs a job.
Although he has anxiety with the agoraphobia he is determined to attend work on a daily
basis”. Tr. p. 683. Additional findings from June, 2011 when coverage ended indicate that,
while Plaintiff had limited insight and impaired memory, he was alert and oriented with
appropriate affect and in no apparent distress, with no suicidal ideas, had normal and
coherent thought process and was oriented as to three spheres. Tr. p. 329.
The ALJ further found that Plaintiff had mild restrictions in daily activities and
social functioning, insofar as he performed household chores, took care of his child, helped
his child with his homework, managed his own funds and visited his mother, among others.
Tr. pp. 72-74. Regarding concentration, the ALJ also found that, while Plaintiff had
moderate difficulties, he used a computer, counted change, administered his checking and
savings accounts, and that there were no extended episodes of decompensation. Tr. pp. 17
and 73. In short, the ALJ found substantial evidence to sustain her conclusion of mild to
moderate restrictions for the applicable time period.
Plaintiff avers the ALJ erroneously considered these daily chores as indicative of the
fact that Plaintiff was able to do unskilled light work. Yet, it is the ALJ’s responsibility, as
well as that of this Court, to review the whole record, including other activities that Plaintiff
may or may not do. See Beardsley v. Colvin, 758 F.3d 834 (7th Cir. 2014). (“As we have
said, it is proper for the Social Security Administration to consider a claimant’s daily
activities in judging disability”). Here, the ALJ found ample evidence in the record of the

Angel Rodríguez Negrón v. Acting Commissioner of S.S.
Opinion and Order
Civil No. 13-1926 (CVR)
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many other daily activities Plaintiff was able to perform which undermined his allegations
of a complete disability. Furthermore, Plaintiff’s own testimony at his hearing afforded the
ALJ an important opportunity to assess his credibility regarding his condition.
Thus, the record for the relevant time period amply supports the ALJ’s conclusion
that, while Plaintiff did have a mental disorder, he was capable of functioning with
treatment. The ALJ took all these findings, coupled together with the fact that the VA had
issued a 70% disability determination for a mood disorder, and correctly concluded that
Plaintiff had the ability for simple and unskilled, routine work. Tr. p. 21. To this, she added
the additional physical disability determination rendered by the VA, which, together with
the medical evidence, sustains a finding that Plaintiff could perform light work, but was
limited to reaching in front, laterally, and over the shoulder.
Insofar as the hypothetical questions posed to the vocational expert, there is also
substantial evidence on the record to support the questions posed. A Physical Residual
Functional Capacity Assessment (“RFCA”) was performed in March and again in October,
2011. Tr. p. 97, 108. Both found Plaintiff was able to lift and/or carry 20 lbs. occasionally,
lift and/or carry 10 lbs. frequently, sit for 6 hours in an 8 hour day, stand or walk for 6
hours in an 8 hour day, with no limitations for pushing and pulling but with limited reach
in his right arm. Tr. pp. 102-103. The first hypothetical presented to the ALJ described
precisely the condition that these two RFCA’s evidenced. The Court sees no error in this.
Tr. pp. 54-55.
Plaintiff takes issue with the fact the ALJ found that Plaintiff was limited in reaching
with his right arm, but not in pushing or pulling. To questions posed by Plaintiff’s counsel

Angel Rodríguez Negrón v. Acting Commissioner of S.S.
Opinion and Order
Civil No. 13-1926 (CVR)
Page No. 11

at the hearing, however, the vocational expert testified that the jobs he mentioned could be
performed with one hand if necessary, and they did not require bilateral manual dexterity.
Tr. p. 57. This effectively renders this issue moot.
It has been well established that, although the record may support more than one
conclusion, we must uphold the Secretary “if a reasonable mind, reviewing the evidence in
the record as a whole, could accept it as adequate to support his conclusion.” Ortíz v. Sec’y
of Health and Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (quoting Rodríguez, 647 F.2d
at 222); see also, Richardson v. Perales, 402 U.S. at 401. Where the facts permit diverse
inferences, we will affirm the Secretary even if we might have reached a different result.
Rodríguez Pagán v. Sec’y of Health and Human Servs., 819 F.2d 1, 3 (1st Cir. 1987); Lizotte,
654 F.2d at 128.
In view of the above, the Court finds the decision of the Commissioner is supported
by substantial evidence in the record as a whole, insofar as Plaintiff’s condition did not
preclude performance of work dealing with simple tasks and unskilled work, and where he
was qualified to perform other jobs available in the national economy. The Court finds the
ALJ correctly took into account the VA’s disability determinations in her analysis, and
further finds the hypothetical posed to the Vocational Expert was correctly premised on the
RFC’s findings.
CONCLUSION
For the reasons above discussed, this United States Magistrate Judge finds there is
substantial evidence on the record in support of the Commissioner’s decision. As such, the
Commissioner’s decision is AFFIRMED.

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Opinion and Order
Civil No. 13-1926 (CVR)
Page No. 12

Judgment is to be entered accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, on this 1st day of April of 2015.
S/CAMILLE L. VELEZ-RIVE
CAMILLE L. VELEZ RIVE
UNITED STATES MAGISTRATE JUDGE