Velez v. US Attorney General et al

Filing 31

MEMORANDUM AND ORDER re: 27 Motion to Remand. By 10/9/2015, Attorney Fabio A. Roman-Garcia shall respond to the Order to Show Cause.Signed by US Magistrate Judge Silvia Carreno-Coll on 9/29/2015.(NBB)

IN THE UNITED STATES COURT
FOR THE DISTRICT OF PUERTO RICO

ENRIQUE VÉLEZ,
Plaintiff,
v.

CIV. NO.: 14-1203(SCC)

CAROLYN W. COLVIN,
COMMN’R OF SOC. SEC.,
Defendant.

MEMORANDUM AND ORDER
Petitioner Enrique Vélez asks this court to review the
decision of the Commissioner of Social Security denying his
application for disability benefits. After a review of the record
and the parties’ memoranda, I affirm the Commissioner’s
decision.
STANDARD OF REVIEW
Under the Social Security Act (“the Act”), a person is
disabled if he is unable to do his prior work or, “considering

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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). The Act provides that “[t]he
findings of the Commissioner . . . as to any fact, if supported by
substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g).
Substantial evidence exists “if a reasonable mind, reviewing
the evidence in the record as a whole, could accept it as
adequate to support [the] conclusion.” Irlanda-Ortiz v. Sec’y of
Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991). Thus,
the Commissioner’s decision must be upheld if we determine
that substantial evidence supports the ALJ’s findings, even if
we would have reached a different conclusion had we reviewed the evidence de novo. Lizotte v. Sec’y of Health & Human
Servs., 654 F.2d 127, 128 (1st Cir. 1981).
The scope of our review is limited. We are tasked with
determining whether the ALJ employed the proper legal
standards and focused 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 decision must be
reversed if his decision was derived “by ignoring evidence,
misapplying law, or judging matters entrusted to experts.”
Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999). In reviewing a

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denial of benefits, the ALJ must have considered all of the
evidence in the record. 20 C.F.R. § 404.1520(a)(3).
The Act sets forth a five-step inquiry to determine whether
a person is disabled. See 20 C.F.R. § 404.1520(a)(4). The steps
must be followed in order, and if a person is determined not to
be disabled at any step, the inquiry stops. Id. Step one asks
whether the plaintiff is currently “doing substantial gainful
activity.” 20 C.F.R. § 404.1520(a)(4)(i). If he is, he is not disabled
under the Act. Id. At step two, it is determined whether the
plaintiff has a physical or mental impairment, or combination
of impairments, that is severe and meets the Act’s duration
requirements. 20 C.F.R. § 404.1520(a)(4)(ii). The plaintiff bears
the burden of proof as to the first two steps. Step three considers the medical severity of the plaintiff’s impairments. 20 C.F.R.
§ 404.1520(a)(4)(iii). If, at this step, the plaintiff is determined to
have an impairment that meets or equals an impairment listed
in 20 C.F.R. pt. 404, subpt. P., app. 1, and meets the duration
requirements, he is disabled. 20 C.F.R. § 404.1520(a)(4)(iii).
If the plaintiff is not determined to be disabled at step three,
his residual functional capacity (“RFC”) is assessed. 20 C.F.R.
§§ 404.1520(a)(4), (e). Once the RFC is determined, the inquiry
proceeds to step four, which compares the plaintiff’s RFC to his

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past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If the plaintiff
can still do his past relevant work, he is not disabled.
Id. Finally, at step five, the plaintiff’s RFC is considered
alongside his “age, education, and work experience to see if
[he] can make an adjustment to other work.” 20 C.F.R.
§ 404.1520(a)(4)(v). If the plaintiff can make an adjustment to
other work, he is not disabled; if he cannot, he is disabled. Id.
BACKGROUND AND PROCEDURAL HISTORY
Vélez made his initial application for disability benefits on
August 30, 2011, alleging that his disability began on July 3,
2008. Vélez’s last-insured date was June 30, 2011. The claim
was denied initially and on reconsideration, after which Vélez
requested a hearing, which was held on November 9, 2012.
After the hearing, the ALJ determined that Vélez was not
disabled.
The ALJ found that Vélez, despite having major depressive
disorder, recurrent, without psychotic features, did not have a
listed impairment. The ALJ then found that Vélez had the
mental RFC to perform work at all exertional levels, so long as
it was simple work, with no public interaction and only
occasional interaction with co-workers and supervisors. Based

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on the testimony of a vocational expert, the ALJ further found
that Vélez could perform his past relevant work as an automotive detailer, an unskilled job with a specific vocational preparation (“SVP”) level of 2. Based on the same testimony, the ALJ
also found that Vélez could perform other work that exists in
significant numbers in the national economy like hand packager, labeler, and inspector–missing parts, all of which also have
an SVP of 2. For this reason, the ALJ determined that Vélez
was not disabled.
ANALYSIS
Vélez makes two arguments, neither of which are welldeveloped. First, he argues that the ALJ failed to develop the
record by sending him for a medical evaluation. Docket No. 28,
at 8. But the ALJ is not obligated to order medical evaluations
in every case, and Vélez fails to point to any discrepancies or
other information in the administrative record that should
have prompted the ALJ to send Vélez, specifically, for such an
evaluation. I thus deem this argument waived.1

1.

Vélez also points to the fact that during the hearing, the ALJ granted
Vélez 10 days to subpoena certain psychological records. See Docket
No. 28, at 9. And the ALJ in fact waited much more than ten days to

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Second, Vélez claims that the vocational expert’s testimony
was erroneous insofar as it called labeler, hand packager, and
inspector–missing parts “simple” work. Docket No. 28, at 11.
He makes this argument in reliance on the Dictionary of
Occupational Terms, which he says “describes all those jobs as
entailing understanding and carrying out ‘detailed’ written or
oral instructions.” Id. at 13. Unless Vélez is referring to something different than the descriptions in the Dictionary of Occupational Terms,2 this argument is troublingly dishonest. I have
looked up each position, and none of them mentions the word
“detailed” or even “instructions.” And, as the Commissioner

issue her ruling, which meant Vélez had time to comply with the ALJ’s
order. But Vélez doesn’t say whether he submitted the records, which
means he probably did not; it is thus difficult to hold against the ALJ
the fact that the records weren’t considered. The ALJ did all that was
required of her.
2.

As noted, Vélez writes that Dictionary “describes all” of the jobs the
ALJ cited as requiring the following of “‘detailed’” instructions. Docket
No. 28, at 13. For this proposition, Vélez cites to nothing, but his use of
quotations around “detailed,” constitutes a statement that the
Dictionary actually uses that word. But, at least in the descriptions of
those positions, the Dictionary does not use that word. Within ten days,
Vélez’s attorney, Fabio A. Roman-García shall file a motion informing
the Court of his source for that claim; at the same time, he must SHOW
CAUSE why sanctions should not be entered against him for this
apparent misrepresentation.

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points out, each has an SVP of 2, meaning that they are jobs
that require little instruction. And finally, Vélez’s argument
ignores the ALJ’s alternative finding that he could perform his
past relevant work as an automotive detailer, which, according
to the Dictionary, also does not require following “detailed”
instructions.
CONCLUSION
For the reasons stated above, I affirm the decision of the
Commissioner.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 29th day of September, 2015.
S/ SILVIA CARREÑO-COLL
UNITED STATES MAGISTRATE JUDGE