Ayala-Rosario v. Colvin

Filing 16

OPINION AND ORDER re 1 Complaint filed by Edwin Ayala-Rosario. Signed by US Magistrate Judge Camille L. Velez-Rive on 5/4/15.(ljt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
EDWIN AYALA ROSARIO,
Plaintiff,
v.
CIVIL NO. 14-1633 (CVR)
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

OPINION AND ORDER
INTRODUCTION
Plaintiff Edwin Ayala Rosario (“Plaintiff”) filed this action to obtain judicial review
of the final decision of Defendant Carolyn W. Colvin, the Acting Commissioner of Social
Security (“Commissioner” or “Defendant”), denying his application for disability benefits.
(Docket No. 1).1 On August 26, 2014, Plaintiff filed a consent to proceed before a United
States Magistrate Judge. (Docket No. 6).2 On December 12, 2014, the Commissioner
answered the Complaint and filed a copy of the administrative record. (Docket Nos. 10 and
11). On February 4, 2015, Plaintiff filed his memorandum of law (Docket No. 12) and on
April 6, 2015, the Commissioner filed her memorandum of law. (Docket No. 15). 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).

Edwin Ayala Rosario v. Acting Commissioner of S.S.
Opinion and Order
Civil No. 14-1633 (CVR)
Page No. 2

ADMINISTRATIVE AND PROCEDURAL HISTORY
On August 8, 2011, Plaintiff, a former hardware and lumberyard employee, filed an
application for disability benefits, with an alleged onset date of disability of August 3, 2011.
The application was initially denied, as was the reconsideration. (Tr. pp. 63-66 and 68-69).
Plaintiff then requested an administrative hearing, which was held on May 7, 2013, where
Plaintiff was present with counsel and testified regarding his alleged disabilities. (Tr. pp.
33-57). On August 6, 2013, the presiding Administrative Law Judge (“ALJ”) issued an
opinion, finding Plaintiff was not disabled from August 3, 2011 through the last insured
date. (Tr. pp. 18-29). The ALJ enumerated the following findings of fact in his decision:
1.

Plaintiff last met the insured status requirements of the Social Security Act
on March 31, 2013.

2.

Plaintiff did not engage in any substantial gainful activity during the period
from his alleged onset date of August 3, 2011 through his last insured date of
March 31, 2013.

3.

Through the last date insured, Plaintiff had the following severe impairment:
depression.

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.

5.

Through the last date insured, Plaintiff had the residual functional capacity
to perform a full range of work at all exertional levels but with the following

Edwin Ayala Rosario v. Acting Commissioner of S.S.
Opinion and Order
Civil No. 14-1633 (CVR)
Page No. 3

nonexertional limitations: he is limited to unskilled, simple, repetitive work,
avoiding contact with the public.
6.

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

7.

Plaintiff was born on August 23, 1969, and was 43 years old, which is defined
as a younger individual, age 18-49, on the date last insured.

8.

Plaintiff has a limited education and is not able to communicate in English.

9.

Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that Plaintiff is “not disabled” whether or not a claimant has
transferable job skills.

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.3

11.

Plaintiff was not under a disability, as defined in the Social Security Act, at
any time from August 3, 2011, the alleged onset date, through March 31,
2013, the date last insured.

3
At the hearing, the ALJ found that Plaintiff could perform the following jobs: merchandise marker, gluer or
electronic worker. Yet, Plaintiff suffered from occasional asthma, and taking that into consideration, the ALJ then found
that Plaintiff could be a merchandise marker, wire preparation machine tender, and electrical accessory assembler I, as
they were “clean” jobs that had no fumes or odors. Although the ALJ’s final decision indicated that Plaintiff could perform
the “unclean” jobs instead of the “clean” jobs, this oversight by the ALJ is irrelevant for purposes of this decision, as all
that is required is that plaintiff be able to perform some work. See §§ 404.1520(f) (The claimant would be entitled to
disability benefits only if he/she is not able to perform any other work).

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Opinion and Order
Civil No. 14-1633 (CVR)
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After analyzing all the factors, the ALJ opined that Plaintiff had the capacity for light
unskilled work, and concluded that Plaintiff was therefore not disabled. (Tr. p. 28). 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
he failed to adequately assess the medical evidence when he gave little weight to Plaintiff’s
treating physician, Dr. Luis Rojas, and further, that he erred when he failed to give more
weight to the testimony of Plaintiff’s wife. Therefore, Plaintiff argues the ALJ’s decision was
not based on substantial evidence. The Commissioner, on the other hand, asserts there is
substantial evidence to support the ALJ’s conclusion, insofar as he properly considered
other medical evidence and his decision to give partial weight to the testimony of Plaintiff’s
wife was proper.
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

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Opinion and Order
Civil No. 14-1633 (CVR)
Page No. 5

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,
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

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Opinion and Order
Civil No. 14-1633 (CVR)
Page No. 6

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 any other work. §§
404.1520(f). In the case at bar, at step 5, the ALJ determined that, while Plaintiff was
unable to return to his past work, he was able to perform other jobs that were available in
the national economy.
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 (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

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Opinion and Order
Civil No. 14-1633 (CVR)
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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).
Plaintiff’s first argument is that the ALJ failed to adequately assess the medical
evidence when he gave little weight to Plaintiff’s treating physician, Dr. Rojas. The ALJ
stated he gave little weight to Dr. Rojas’ opinion because his findings and conclusions
conflicted with other substantial evidence in the record. 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.
In the present case, the ALJ opined the consultative examination performed by Dr.
Ricardo Diez-Delgado contradicted the opinion rendered by Plaintiff’s treating physician,
Dr. Rojas. While this alone is not enough to disregard Dr. Rojas’ opinion, Dr. DiezDelgado’s findings and conclusions were further bolstered by the opinions of the state
physicians, Dr. Wanda Machado and Dr. E. Charles. Furthermore, the ALJ opined that
Plaintiff’s testimony at the hearing also evidenced the findings and conclusions of the state
doctors. Thus, the ALJ had substantial evidence in the record in which to evaluate, weigh
and opine on the contradictions he encountered in the record.

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Opinion and Order
Civil No. 14-1633 (CVR)
Page No. 8

Turning now to those contradictions, Dr. Diez-Delgado was told by Plaintiff himself
that he assisted with some house chores, took care of his personal hygiene, watched
television, read the Bible, did light agriculture, maintained some relations (albeit
superficial) with family members and neighbors, and sometimes attended church. (Tr. pp.
21-22). This testimony contradicts Dr. Rojas’ diagnosis of marked difficulty in social
functioning and marked restrictions of daily living. Dr. Diez-Delgado also found that
Plaintiff maintained his attention, could recite the calendar, recalled immediate and remote
past events adequately, performed arithmetic calculations perfectly, which is also consistent
with the agency’s findings of Plaintiff being only moderately limited in these areas. (Tr. pp.
22 and 127-129).
Dr. Diez-Delgado further found the record did not evidence any hospitalizations at
all, and that it was further devoid of any changes in medications.4 Thus, despite the
allegations of the severity of his symptoms, the record evidenced that all treatment provided
to Plaintiff was outpatient and the medications remained unchanged, in direct
contravention to Dr. Rojas’ findings that Plaintiff had suffered four periods of
decompensation.

4
Plaintiff takes issue with the fact the ALJ is not qualified “to interpret raw data in functional terms”, and
therefore, he could not opine regarding the dosage and medications taken. The Court cannot agree. The ALJ concluded
the record evidenced no change in the medications and dosage given to Plaintiff over the relevant time period. This is not
interpreting raw medical data, but rather, simply looking at the record to see what medications and dosage were being
administered to Plaintiff and noting they did not change.

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Opinion and Order
Civil No. 14-1633 (CVR)
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Dr. Diez-Delgado assessed Plaintiff with a GAF score range of 55-60,5 which showed
moderate difficulty in several areas, but not complete impediments. (Tr. p. 371). A residual
functional capacity assessment performed during November of 2011, the same month Dr.
Diez-Delgado met with Plaintiff, bolstered Dr. Diez-Delgado’s observations and
conclusions, and found exactly the same symptoms and conditions. (Tr. pp. 122-130). It
found Plaintiff moderately limited in some areas, yet found that he was still capable of
understanding, retaining and comprehending simple basic word related directives of two
or three steps. (Tr. p.127).
Finally, the ALJ had the opportunity to personally assess Plaintiff’s demeanor at the
hearing, thus allowing him an important opportunity to assess his credibility regarding his
condition. Plaintiff takes issue with the fact that, since he was allegedly unable to fully
develop answers to the questions posed by the ALJ, his short “yes” and “no” answers and
the ALJ’s perception of him because of these answers were unfair to his case. Yet, the
burden is on Plaintiff to prove his disability, and he must do that by providing the ALJ with
all the necessary tools (including signs, symptoms, findings, tests and personal testimony)
to do so. The more information the ALJ has, the better equipped he is to deal with the issue
at hand. The ALJ noted that Plaintiff was cooperative, calm, attentive and provided
answers to all the questions presented. (Tr. p. 22). Although the Court might disagree on

5
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).

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Opinion and Order
Civil No. 14-1633 (CVR)
Page No. 10

the degree (or lack) of “detail” that Plaintiff provided in his answers, it is for the ALJ and
not this Court to assess issues of credibility. The ALJ was in the unique position to observe
that.
In short, the ALJ found substantial evidence to sustain his conclusion of moderate
restrictions for the applicable time period. He correctly afforded more weight to the
conclusions of the agency’s physician and specifically stated his reasons for doing so. See
Gray v. Heckler, 760 F.2d 369, 373 (1st Cir. 1985) and Lester v. Chater, 81 F.3d 821 (9th Cir.
1995). The Court cannot find error in this.
As a second claim of error, Plaintiff avers the ALJ failed to give proper weight to his
wife’s testimony about his condition. As is well known, it is the ALJ’s responsibility, as that
of this Court, to review and develop the whole record. Lay testimony as to a claimant’s
symptoms is competent evidence that an ALJ must take into account, unless he or she
expressly determines to disregard such testimony and gives reasons germane to each
witness for doing so. Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir.1996) (citing Dodrill
v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993)). One reason for which an ALJ may discount
lay testimony is that it conflicts with evidence. Vincent v. Heckler, 739 F.2d 1393, 1395 (9th
Cir. 1984).
The Court finds the ALJ’s decision in this case met these standards, insofar as the
record evidence found that Plaintiff was capable of assisting (and in fact, did assist) with
some chores, took care of his personal hygiene, watched television, read the Bible, did light
agriculture, attended medical appointments, maintained relations with family members and
neighbors, and attended church sporadically. (Tr. pp. 314-318). The answers provided to

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Opinion and Order
Civil No. 14-1633 (CVR)
Page No. 11

the questionnaires by Plaintiff’s wife indicated he could not perform many of these things,
thus, directly contradicting Plaintiff’s testimony. (Tr. pp. 72-79). The fact that Plaintiff
himself stated that he was able to perform these tasks in turn undermined his allegations
of a complete disability, and supported the ALJ’s decision to give his wife’s testimony less
weight. Furthermore, her testimony barely lasted a few minutes, not enough time to supply
any particularly useful information at all. 6 The ALJ also opined that Plaintiff’s wife was not
medically trained to make exact observations regarding medical signs and symptoms, and
therefore, the accuracy of her testimony was questionable, thus providing the express
reasons required under case law to discredit her testimony.
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

6

The portion of the transcript of her testimony consisted of two and a half pages of double spaced testimony.

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Opinion and Order
Civil No. 14-1633 (CVR)
Page No. 12

was qualified to perform other jobs available in the national economy. There is no error in
giving lesser weight to his wife’s testimony in light of its conflicting nature.
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.
Judgment is to be entered accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, on this 4th day of May of 2015.
S/CAMILLE L. VELEZ-RIVE
CAMILLE L. VELEZ RIVE
UNITED STATES MAGISTRATE JUDGE