Sanchez-Velazquez v. Commissioner of Social Security

Filing 23

MEMORANDUM AND ORDER. Signed by US Magistrate Judge Silvia Carreno-Coll on 3/8/2016.(VCC)

IN THE UNITED STATES COURT
FOR THE DISTRICT OF PUERTO RICO

ANGEL J. SANCHEZVELAZQUEZ,
Plaintiff,
CIV. NO.: 14-1723(SCC)
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

MEMORANDUM AND ORDER
Plaintiff Angel J. Sánchez-Velázquez 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
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

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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 an application for disability benefits on June
22, 2011, alleging disability since May 6, 2011. See TR. at 409410.1 The claim was initially denied on April 27, 2012, (TR.5356), as was the reconsideration, (TR. 57-59), and Plaintiff
thereafter requested a hearing, which was held was held on
July 22, 2013. See TR. 35-48. The ALJ ultimately determined that
Plaintiff was not disabled. TR. 10-34. The appeals council
refused to review the ALJ’s decision, see id. at 1-5, and he filed
this appeal. Docket No. 1.
At step four, the ALJ determined that Plaintiff did not have
a combination of impairments that meets or medically equals

1.

We will refer to the Social Security Transcript as “TR.” throughout.

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the severity of those listed at 20 C.F.R. pt. 404, subpt. P, app. 1.
TR. at 20. Likewise, the ALJ concluded that Plaintiff had the
Residual Functional Capacity (“RFC”) to perform “light work,”
except that he needs to alternate positions approximately every
2 hours and cannot deal with the general public. Id. at 23. The
ALJ then found that while Plaintiff could no longer perform his
past relevant work, there existed work that he could perform;
therefore, he was not disabled. Id. at 29.
ANALYSIS
Plaintiff alleges three errors in the ALJ’s decision. First,
Plaintiff claims that the ALJ, in determining his RFC, erred in
not giving controlling weight to Plaintiff’s treating psychiatrist.
Second, Plaintiff claims that the ALJ’s decision that he could
still perform alternate work is not supported by the record.
And third, that the ALJ did not accurately convey to the
Vocational Expert (“VE”) the full extent of Plaintiff’s
limitations.
1. The ALJ’s RFC finding
The ALJ determined that Plaintiff had an RFC permitting
“unskilled work that involves simple and repetitive taks” and
that does not require dealing with the general public. TR. at 23.
In reaching this conclusion, the ALJ summarized the findings

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of Dr. Luis A. Toro, a psychiatrist who examined Plaintiff on
October 25, 2011. TR. at 494-496. Dr. Toro found Plaintiff’s
“attention, concentration and retention” to be normal. Id. at
495. He also noted that Plaintiff’s “judgment and reasoning”
were not impaired and that he was “capable of normal
interpersonal relationships.” Id.
The ALF gave the opinion of Dr. Toro “great weight” (TR.
at 27) and accorded “lesser weight” to the findings of Plaintiff’s
treating psychiatrist, Dr. Maritza Ortiz. TR. at 26. Plaintiff was
also examined by psychological consultants from the State
Insurance Fund (“SIF”), but the ALJ gave “lesser weight” to
their findings. Id. at 27.
Dr. Ortiz examined Plaintiff on June 9, 2011, July 14, 2011,
November 8, 2011 and July 12, 2012. TR. at 535. Dr. Ortiz
completed a medical report (Id.) and a mental residual
functional capacity assessment (TR. 540-544), both dated
November 16, 2012. She found that Plaintiff had marked and
extreme limitations on his ability to understand, remember and
carry out instructions, as well as extreme limitations in his
ability to perform activities within a schedule, make simple
work-related decisions and sustain an ordinary routine
without supervision. Id.

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Plaintiff avers that the ALJ erred in granting “great weight”
to Dr. Toro’s conclusions even though he only examined him
on one occasion, while giving “lesser weight” to his treating
physician. Furthermore, Plaintiff argues that his condition has
worsened since Dr. Toro’s examination on October of 2011, a
fact that was also not considered by the ALJ in his Decision.
To justify his credibility finding regarding Dr. Ortiz’s
testimony, the ALJ stated that it was inconsistent with other
evidence on the record, including “her own clinical findings in
the medical report or the findings of the SIF psychiatrists.” TR.
at 26. This is so because, even though Dr. Ortiz found that
Plaintiff had marked and extreme limitations, she reported that
he was “alert”, and had “adequate” memory, judgment and
intellectual functions.

TR. at

106-108.

This apparent

contradiction between her observations and her diagnosis is
the ALJ’s basis for giving her findings “lesser weight.” As for
Dr. Toro’s assessment, it was given “great weight” because it
was “consistent” with the observations of Dr. Ortiz’ and the
other examining sources. TR. at 27.
The RFC “is an assessment of an individual’s ability to do
sustained work-related physical and mental activities in a work
setting on a regular and continuing basis,” i.e., “8 hours a day,

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for 5 days a week.” SSR 96-8P, 1996 WL 374184, *1 (July 2,
1996). In making an RFC assessment, the ALJ “must consider
all relevant evidence in the record, including the opinions and
statements by all medical sources.” Hynes v. Barnhart, 379 F.
Supp. 2d 220, 224 (D.N.H. 2004) (citing 20 C.F.R. §§ 404.1545(a)
& 404.1564). 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 impairment’s nature and severity,
“is reserved to the Commissioner”). The ALJ’s opinion must
“provide a clear explanation for its evidentiary basis and
reasons for rejecting medical source opinions.” Id. (citing
Fargnoli v. Massanari, 247 F.3d 34, 41 (3d Cir. 2001)). 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).

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Upon careful review, we find that the ALJ failed to support
his opinions as to Plaintiff’s RFC. The ALJ mostly relied on the
testimony of Dr. Toro, who only examined Plaintiff once,
whereas Dr. Ortiz was Plaintiff’s treating physician. Moreover,
Dr. Ortiz was the last doctor to examine Plaintiff and render an
opinion as to his condition. Neither Dr. Toro, nor the SIF
consultants’ opinions, accounted for the deterioration of
Plaintiff’s psychological state after he was examined by them.
Thus, we can find no basis in the ALJ’s decision for his
conclusion, nor can we find an explanation for his decision to
disregard the opinion of Plaintiff’s examining physician.
CONCLUSION
Because the ALJ failed to properly explain his findings with
regard to Plaintiff’s RFC, this matter is REMANDED to the
Commissioner for further proceedings consistent with this
opinion.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 10th day of March, 2016.
S/ SILVIA CARREÑO-COLL
UNITED STATES MAGISTRATE JUDGE