Figueroa-Ruperto v. Commissioner of Social Security
Filing
21
MEMORANDUM AND OPINION. Signed by US Magistrate Judge Silvia Carreno-Coll on 3/28/2016.(VCC)
IN THE UNITED STATES COURT
FOR THE DISTRICT OF PUERTO RICO
PAULALEE FIGUEROA
RUPERTO,
Plaintiff,
CIV. NO.: 14-1673 (SCC)
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
MEMORANDUM AND ORDER
Plaintiff Paulalee Figueroa Ruperto asks this court to
review the decision of Defendant Commissioner of Social
Security (“the Commissioner”), denying Plaintiff’s application
for disability benefits. Docket No. 1. After a review of the
record and the parties’ memoranda, we remand this matter to
the Commissioner.
STANDARD OF REVIEW
Under the Social Security Act (“the Act”), a person is
FIGUEROA-RUPERTO v. COMMISSIONER
Page 2
disabled if he is unable to do his prior work or, “considering
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.”
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Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999). In reviewing a
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.
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§§ 404.1520(a)(4), (e). Once the RFC is determined, the inquiry
proceeds to step four, which compares the plaintiff’s RFC to his
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
Plaintiff made her initial application for disability benefits
on June 27, 2012, alleging that her disability began on March 5,
2012. See TR. at 1149.1 The claim was initially denied, as was the
reconsideration, and Plaintiff thereafter requested a hearing.
See id. at 1062-1085. The hearing was held on May 20, 2014. See
TR. at 36-60. The ALJ determined that Plaintiff was not
disabled. See id. at 15-29. The appeals council refused to review
the ALJ’s decision, see id. at 1-5, and she filed this appeal.
Docket No. 1.
1.
We will refer to the Social Security Transcript as “TR.” throughout.
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At step three, the ALJ determined that Plaintiff did not have
a combination of impairments equaling the severity of one of
those listed at 20 C.F.R. pt. 404, subpt. P, app. 1. TR. at 20. The
ALJ concluded that Plaintiff had the Residual Functional
Capacity (“RFC”) to perform “light” work . Id. at 29. The ALJ
then found that while she could no longer perform her past
relevant work, there existed work that she could perform;
therefore, she was not disabled. Id.
ANALYSIS
Plaintiff alleges three errors in the ALJ’s decision. First, she
claims that the ALJ erred in finding that her mental condition
did not satisfy the criteria of Listing 12.04 for Affective
Disorders, and 12.06 for Anxiety-Related Disorders. Second,
Plaintiff claims that the ALJ erred in finding that her bronchial
asthma did not qualify under Listing 3.03B. Third, Plaintiff
complains that the ALJ did not properly evaluate her
subjective
complaints
of
pain
in
making
the
RFC
determination.
1.1 Plaintiff’s Mental Impairment
The first “error” concerns the ALJ’s determination at step
three of the sequential evaluation process, where the ALJ
found that Plaintiffs’ impairment did not meet the criteria
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listed at 20 C.F.R. Part 404 Subpart P, Appendix 1. To succeed,
Plaintiff carries the burden to produce evidence that her
impairment results in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration,
persistence, or pace; or
4. Repeated episodes of decompensation, each of extended
duration.
20 C.F.R. Part 404 Subpart P, Appendix1.
In finding that Plaintiff did not meet the criteria of
Listings 12.04 and 12.06 of Appendix 1, the ALJ pointed to the
evaluations of Dr. Luis Toro and Dr. Yaritza M. López
Robledo, both consultative examiners, as well as the Plaintiff’s
self-described symptoms. See TR. at 22. The Commissioner’s
regulations require the ALJ to give the opinions of treating
physicians “on the nature and severity” of a plaintiff’s
impairments “controlling weight,” at least where the opinions
are “well-supported by medically acceptable clinical and
laboratory diagnostic techniques” and are “not inconsistent
with other substantial evidence” in the case record. 20 C.F.R.
§ 404.1527(c)(2). But see 20 C.F.R. § 404.1527(d)(2) (noting that
“final responsibility for deciding” various issues, including an
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impairment’s nature and severity, “is reserved to the
Commissioner”). The ALJ must “always give good reasons” for
the weight it gives a treating source opinion. 20 C.F.R.
§ 404.1527(c)(2); see also Polanco-Quiñones v. Astrue, 477 F.
App’x 745, 746 (1st Cir. 2012) (per curiam).
The ALJ found that Plaintiff had only “mild restriction”
in her activities of daily living because she stated during her
consultations with Dr. Toro and Dr. López that she was able to
take care of her personal needs. See TR. at 22. Likewise, the ALJ
concluded that Plaintiff had “mild difficulties” in social
functioning since she did not allege any difficulties in
interacting with others in her Adult Functions Report. Id. As to
concentration, persistence and pace, the ALJ found that
Plaintiff had “moderate difficulties.” Id.
Plaintiff states that the ALJ did not give sufficient weight
to her multiple hospitalizations and emergency room visits on
account of her emotional condition. After reviewing the record,
we agree with that assessment. Plaintiff received treatment
from the State Insurance Fund throughout 2012. See TR. at 87,
146 and 159. She was also treated at Hospital Panamericano
and Hospital de Damas. Id. at 78-86 and 793-795. The ALJ took
into consideration Plaintiff’s hospitalizations, but pointed out
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that she has not required any inpatient treatment since her
discharge in September of 2012. See TR. at 25. Moreover, the
ALJ highlighted that Plaintiff’s progress notes showed that, as
of April 2014, her prognosis had improved. Id. at 26. However,
a thorough analysis of the evidence paints a more complicated
picture.
For example, when Plaintiff was evaluated by Dr.
Esparza on October 22, 2013, it was determined that she was
at “high risk” and was “dangerous.” See TR. at 737. Similarly,
on April 23, 2014, Dr. Hector Martinez at Damas Hospital in
Ponce evaluated Plaintiff and concluded that she had a
“generalized anxiety disorder with panic attacks and major
depressive disorder, single episode, moderate.” See TR. at 955.
Hence, the record shows that even after her last hospitalization
for mental-related afflictions, Plaintiff continued to exhibit
symptoms consistent with a “generalized anxiety disorder with
panic attacks.” See TR. at 993. The pervasiveness of these
symptoms leads us to believe that the ALJ did not properly
support the conclusion that Plaintiff’s mental condition is not
an impairment that meets or medically equals the severity of
one of these listed in 20 CFR Part 404, Subpart P, Appendix 1.
1.2 Plaintiff’s Bronchial Asthma
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Plaintiff contends that the ALJ erred in not finding that
her asthma diagnosis meets the criteria of Listing 3.03(b)
(Asthma) of Appendix 1. In order to satisfy that criteria, the
claimant must show that in spite of prescribed treatment, she
suffers "severe attacks" requiring physician intervention, at
least once every two months, or on average six times a year.
Part 404, Subpart P, Appendix 1, 3.03B. "Severe attacks," in this
context, are defined as "prolonged episodes lasting at least
several hours, requiring intensive treatment such as
intravenous drug administration or inhalation therapy in a
hospital or emergency room." Section 3.00 C.
The extensive record shows that Plaintiff visited the
emergency room on numerous occasions during the relevant
time period. She was admitted at Damas Hospital on March 28,
2014, with acute bronchial asthmatic symptoms. Plaintiff was
discharged on April 4, 2014. See TR. at 862, 905. A few weeks
later, on April 17, 2014, Plaintiff was once again admitted at
Damas with asthma symptoms and was released on August 20.
She received respiratory therapy and was assigned a level of
“Urgent.” See TR. at 927-946, 988. On April 21, 2014, Plaintiff
returned to the emergency room of Damas and was admitted
with “exacerbated chronic obstructive pulmonary disease.”See
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TR. at 947. She was discharged four days later. In addition to
the hospitalizations of over 24 hours, Plaintiff paid frequent
visits to the emergency room. On March 11, 2014, she was
admitted with “strong headache and persistent cough,” as well
as “bronchospasm.” See TR. at 775.
In its brief, the ALJ avers that Plaintiff’s symptoms were
not severe enough because the treatment reports show that she
was “simply treated with Albuterol nebulizers.” Docket No. 18
at page 16. The record says otherwise. In at least three
consecutive instances, Plaintiff was hospitalized for several
days to treat her symptoms and received “inhalational
bronchodilator therapy” in the hospital. According to Listing
3.03 B, each in-patient hospitalization for longer than 24 hours
to control asthma attacks, counts as two attacks. The record
therefore shows that Plaintiff had at least 6 asthma attacks that
lasted several hours, and that required treatment either at
home or at her doctor's office with various types of remedies,
including inhalation therapy and other medications. It thus
appear on the evidence before us that Plaintiff’s conditions
meets the listing.
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III. Residual Functional Capacity
Because we remand to the ALJ regarding the conclusions
at step three of the sequential analysis, we need not analyze
whether the RFC determination was proper.
CONCLUSION
Due to the fact that the ALJ’s decision failed to adequately
explain why Plaintiff’s mental diagnosis and bronchial asthma
do not meet the severity of Listings 12.04, 12.06, and 3.03B,
respectively, contained in Part 404, Subpart P, Appendix 1, this
matter is REMANDED to the Commissioner for further
proceedings consistent with this opinion.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 28th day of March, 2016.
S/ SILVIA CARREÑO-COLL
UNITED STATES MAGISTRATE JUDGE
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