Montalvo-Velazquez v. Commissioner of Social Security
STATEMENT OF REASONS IN SUPPORT OF 20 SEPTEMBER 30, 2016 JUDGMENT. Signed by Judge Carmen C. Cerezo on 10/14/2016. (mld)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
CAROLYN W. COLVIN, Acting
Commissioner of Social Security
STATEMENT OF REASONS
(IN SUPPORT OF SEPTEMBER 30, 2016 JUDGMENT)
This case is on appeal from an unfavorable disability determination on
claimant Denisse Montalvo-Vazquez’ application for a period of disability and
benefits filed on November 9, 2011 which was issued by Administrative Law
Judge (ALJ) Emily Ruth Statum on December 9, 2013. Under the heading
“Findings of Fact,” the ALJ determined that “claimant has the following severe
impairments: degenerative disc disease, asthma, severe airflow obstruction,
and depression.” TR., p. 16. Claimant reported a date of onset beginning on
July 20, 2010. She met the insured status requirements through December 31,
2015. As to both the physical and mental impairments, the determination was
made that their severity did not meet or equal the criteria of the listings.
Claimant received extensive treatment at the State Insurance Fund since
October 21, 2009 until June 2011 for a condition diagnosed as
cervical-dorsal-lumbar strain and bilateral arm and hand strain supported by
This treatment consisted of physical therapy and
medication to treat what is acknowledged to have been a painful back
condition. The ALJ observed that “ the evidence of record shows that the
claimant developed pain in neck, shoulders, back, arms and hands and sought
treatment through the State Insurance Fund.” TR., p. 18.
The record also reflects that she has been treated by a pneumologist
since May 2003 for bronchial asthma with medications and inhalers. The
treating pneumologist gave a prognosis of “guarded.” (Exhibit 4F, pp. 2-3).
The ALJ commented at page 8 of her decision that “the claimant’s
physical conditions affected her mental health.” She then compared the
progress notes of claimant’s treatments at the APS Clinics of P.R. in the town
of Yauco where she was psychiatrically evaluated on September 22, 2011 and
had follow-up visits in 2012 and 2013. Simultaneously, she was independently
treated by Dr. Alberto Rodriguez-Robles from January 25, 20111 to
September 3, 2013.
This treatment consisted of psychotherapy and
It should be noted that the medications prescribed at
APS Clinics, following a diagnosis of depressive disorder, were Thorazine,
Wellbutrin, Klonopin and Risperdal.
See TR., p. 20, paragraph 2 of
ALJ Decision and Exhibit 12F at p. 14. By June 12, 2012, her diagnosis was
changed at APS Clinics from one of depressive disorder to bipolar disorder and
two medications, Lithium and Elavil, were then added to the other four.
Claimant manifested, approximately by June 12, 2012, poor judgment, poor
insight, anxiety and depression as evidenced in the progress notes of
APS Clinics. Other progress notes from APS Clinics revealed she suffered
from sleep pattern alteration (August 10, 2011); poor concentration
(December 8, 2011); anxious mood, poor judgment, altered sleep pattern
(February 7, 2012); anxious mood, altered sleep pattern, poor insight (June 5,
2012); depressed mood (September 10, 2012) and anxious mood (October 18,
Incorrectly stated by the ALJ as January 19, 2012. See TR., p. 20.
The APS Clinics’ progress notes all had a same format that required the
physicians to check each of the boxes listed in it regarding appearance,
consciousness level, mood, affect, insight, judgment, delusion, sleep pattern,
appetite, libido, hallucination and thought process. These progress notes do
not contain, except for a very few, any personal observations by the
psychiatrists regarding the patient. Most of the boxes listed, corresponding to
months for the period from the initial evaluation in 2011 to the year 2013, were
marked “adequate.” Throughout the entire treatment period at APS Clinics,
claimant took six medications, four of which were prescribed continuously
during the two-year period and two which were added upon the change of
diagnosis to one of bipolar disorder.
The ALJ reached the following unwarranted conclusion: “no weight is
given to the medical source statement of Dr. Alberto Rodriguez (Exhibit 3F), as
the assessed limitations about claimant’s Mental Residual Functional Capacity
are not supported by APS Clinics’ treatment notes (Exhibits 12F and 19F).” No
reason is advanced by the ALJ for discarding the Mental Residual Functional
Capacity Assessment prepared by Dr. Alberto Rodriguez Robles (Exhibit 3F),
other than the blanket statement that they are unsupported by APS Clinics’
progress notes. The following are relevant observations. The progress notes,
with the exception of one, prepared during the period of Montalvo-Vazquez’
treatment at APS Clinics for depression and bipolar disorder, all reflect that
pharmacotherapy was the only therapeutic technique employed. Claimant
remained on the same treatment plan at the APS Clinics consisting of the six
medications, prescribed in the same dosage and frequency, except when a
change or dosage increase was recorded due to “lack of response”
(February 7, 2012 and October 18, 2012; see Exhibit 12F, TR. pp. 291
and 309) and “crisis due to development of panic attacks with irritability”
(June 5, 2012, incorrectly translated as May 6, 2012; see Exhibit 12F,
TR. p. 301). The clinic’s progress notes do not reflect any respite in the
pharmacotherapy prescribed consisting of four to six different medications
during the entire period.
The Administrative Decision makes the following reference to the
symptoms presented and the treatment provided to claimant by psychiatrist
Dr. Alberto Rodriguez-Robles during the period of thirty three (33) months
which partially coincided with her visits to the APS Clinics:
Throughout treatment, consisting of psychotherapy and medication
such as Strattera, Wellbutrin, Zoloft and Klonopin, the claimant has
presented signs and symptoms of depressed mood, lack of energy,
nihilism, low self-esteem, guilt, insomnia, anxiety and
somatizations. The claimant also alleged memory problems,
isolation, panic attacks, being stressed due to familial problems ...
and was diagnosed by Dr. Rodriguez with a severe major
The record reflects that Dr. Rodriguez-Robles was claimant’s treating
psychiatrist from January 25, 2011 through September 3, 2013.
Exhibit 3F, initial psychiatric evaluation dated August 12, 2011, incorrectly
translated as dated December 8, 2011, TR. pp. 274-284; Exhibit 13F, TR.
p. 320 and Exhibit 23F, TR. pp. 415-426.
Dr. Rodriguez-Robles lasted 33 months.
Her treatment with
The ALJ incorrectly calculated
Dr. Rodriguez-Robles’ treatment as lasting 17 months, that is, from January 19,
2012 to September 3, 2013 (TR., p. 20), when the correct starting date for that
treatment was January 25, 2011, a year before, as documented by the record.
The ALJ’s Decision refers to the findings in a May 1, 2012 Psychiatric
Evaluation Report (Exhibit 8F, TR. p. 285) prepared by Dr. Alberto
Rodriguez-Robles on a consultative basis as evaluator and at the request of
the Social Security Administration, 16 months after claimant became his
patient. This consultative psychiatric evaluation indicates that “the patient is
undergoing treatment at our office” and includes the following findings: “As to
daily activities,” he reported “personal hygiene and getting dressed as the
only daily activities” that she could perform; as to “social functioning,” he
observed that “the patient remains aloof, withdrawn, and does not like to spend
time with people;” on “work history,” the patient reported that she felt
“restless, nervous, afraid, could not concentrate, became mad easily and forgot
things frequently.” During the interview held in preparation of his May 1, 2012
Report, Dr. Rodriguez-Robles made the following observations: “she is
apprehensive, depressed, has psychomotor retardation, her affect is restricted,
mood depressed, her flow of thought is slow, logical, coherent and relevant and
her thought content concerned self-deprecation ideas, helplessness,
hopelessness and panic attacks.”
Regarding “concentration,” she was
described as easily distracted and unable to follow the backward sequence of
the months. Her memory was described as adequate. She was found to be
oriented in the three spheres and her judgment was adequate. The prognosis
made was “poor.”
The record reflects that claimant received pharmacotherapy and
Dr. Rodriguez-Robles in addition to the medications prescribed at APS Clinics.
The medical records pertaining to Dr. Rodriguez-Robles are much more
extensive than what the ALJ discusses in her analysis. The earliest psychiatric
evaluation prepared by Dr. Rodriguez-Robles is dated August 12, 2011.
See Exhibit 3F (TR. pp. 274-279). The English translation for the date of this
report, as well as for others, transposes the month for the day without taking
into account that dates are written in Spanish in the following order:
day/month/year. Therefore, the date of the psychiatric evaluation, at page 274
of Exhibit 3F, is incorrectly reported as December 8, 2011, instead of
August 12, 2011. Dr. Rodriguez-Robles observed in this initial evaluation that
claimant presented the following symptoms: “a depressive mood, poor
concentration, crying, confusion, anxiety, forgets things, psychomotor
retardation, does not want to get out of bed, lack of appetite, nightmares, poor
attention and concentration, poor short and long term memory, restricted
affect.” TR., p. 274. He also observed that “she was not groomed, overweight,
looked afraid and anguished”, and that her attitude was “retracted, hostile, and
she was angry and crying,” her “posture was tense,” “had psychomotor
retardation,” her “affect was depressed and irritable,” her “thought process was
coherent and relevant,” she was oriented in the three spheres, her judgment
was “regular” and her “immediate, recent and remote memories affected.”
TR. pp. 274-279.
At the time, he prescribed three medications for her
The Mental Residual Functional Capacity Assessment prepared by
Dr. Rodriguez-Robles (Exhibit 3F, TR. pp. 280-284) classifies claimant as
“unable to meet competitive standards” for unskilled, semi-skilled and skilled
work. He also found that claimant was unable to meet competitive standards
in interacting with the general public, maintaining socially appropriate behavior,
adhering to basic standards of cleanliness, and using public transportation.
This residual functional capacity assessment defines “unable to meet
competitive standards” as follows: “patient cannot satisfactorily perform this
activity independently, appropriately, effectively and on a sustained basis in a
regular work setting.” The explanation given for the work limitations reported
were the following: “psychomotor retardation, depressive mood, affect
restricted, irresponsibility, crying, poor attention and concentration, and poor
memories.” Exhibit 3F, TR. p. 281. Upon answering the question on whether
“the psychiatric condition exacerbates your patient’s experience of pain or any
other physical symptom?,” Dr. Rodriguez-Robles replied: “the anxiety and
depression do not allow her to manage stressful situations and aggravate the
condition and frequency of the asthma.” He also reported that “claimant’s
impairments or treatments would cause her to be absent from work more than
four days per month.” Exhibit 3F, TR. p. 283.
There are two other exhibits, Exhibits 13F and 23F, records prepared by
Dr. Rodriguez-Robles during several months of psychotherapy and
pharmacotherapy provided to claimant. Exhibit 13F, dated October 25, 2012,
lists the dates of claimant’s visits to Dr. Rodriguez-Robles’ office as
January 25, February 23, March 23, April 20, May 25, June 29, July 20,
August 17, September 14, October 13, November 8 and December 8, 2011;
January 19, February 16, March 12, May 9, June 4, August 2 and
September 6, 2012. See TR., p. 320. There are other visits for the year 2013
reported in Exhibit 23F, which consists of extensive clinical notes prepared by
Dr. Rodriguez-Robles pertaining to claimant.
Exhibit 13F describes the following symptoms: “Patient presents anxiety,
loss of memory, crying, insomnia, does not want to leave her bed, does not feel
like doing anything, increased weight, gets anxious, insecure, and has
conscience guilt. Female patient with psychomotor retardation, poor attention
and concentration, depressive mood, self-deprecating ideas, hopelessness,
helplessness, and guilt.” Id., TR. p. 320. The prognosis reported was poor; the
course of the illness was described as having started as a depressive mood in
2010 and worsening and developing to a clinical profile of “Major Depression,
severe and a GAF of 50.” Id.
The Clinical Notes contained in Exhibit 23F (TR. pp. 415-426) for visits
in 2012 and 2013 consistently reflect information regarding recurring panic
attacks, generalized anxiety, major depressive disorder, cannot go out alone,
forgetfulness, lack of concentration, nihilism and feelings of low self-esteem.
The September 3, 2013 Note (TR. p. 415) states that claimant reported that
she was at the Metropolitan Stabilizer Room in August 2013, referring to the
Metropolitan Hospital at Cabo Rojo, Puerto Rico,2 because she was very
anxious, depressed, and having panic attacks. She stated that she suffered
panic attacks all the time, had shortness of breath and would have to leave
from places due to feelings of desperation. She also reported feeling insecure,
incapable of relating with people and being with groups. A state of extreme
anxiety, lack of concentration, forgetfulness, difficulty sleeping and panic
attacks are persistent symptoms reported not only in the 2012-2013 Clinical
Dr. Rodriguez-Robles examined before. For example, in his initial Psychiatric
Evaluation dated August 12, 2011 (Exhibit 3F) he narrates that claimant
presented a depressive mood, poor concentration, confusion, anxiety,
forgetfulness, psychomotor retardation, not wanting to get out of bed, poor
short and long term memories, lack of appetite and restricted affect
(TR., p. 274), self-deprecating ideas, “hopelessness state” (TR., p. 276) and
he gave a diagnosis of severe major depression, referring to the applicable
code 296.23 for Axis I (TR. p. 278). In his May 1, 2012 Psychiatric Evaluation
TR., pp. 948-953.
August 15-16, 2013.
See hospital records of her admission through discharge dated
Report (Exhibit 8F, TR. pp. 285-286), he refers to the limitations to her daily
activities and social functioning. Her restricted affect, psychomotor retardation
and sense of helplessness, together with her frequent panic attacks (3 to
4 weekly), turned her into a withdrawn person who stays at home and away
from people. The evidence shows that this is a patient who, in addition to
being treated at APS Clinics with pharmacotherapy, received both
Dr. Rodriguez-Robles. The record also reflects that she was treated by
Dr. Rodriguez-Robles without interruption.
Despite this, she continued
manifesting the same symptoms of loss of memory, anxiety, insomnia,
insecurity, psychomotor retardation, poor concentration, self-deprecation, panic
attacks and major depression. See Exhibits 3F, 8F, 13F and 23F. She took
a total of six medications to manage the symptoms of her major depression
Dr. Rodriguez-Robles’ office. This resulted in claimant being heavily sedated,
as evidenced by medical records which contain notations that her sleep pattern
was altered because of the heavy sedation. Heavy sedation as a side effect
of medications is a fact largely ignored by the ALJ, despite repeated references
in Dr. Rodriguez-Robles’s reports that her daily activities and social functioning
were limited, her concentration and memory poor, her affect restricted and that
she manifested confusion and psychomotor retardation.
Finally, during the administrative hearing the ALJ probed as to claimant’s
ability to perform her previous jobs of “supervisor, order taker” and “sales
representative, food products, ... both classified as skilled jobs with an Specific
Vocational Preparation (SVP) of 5,” (TR. pp. 35-36; emphasis ours). The ALJ
submitted vocational factors to the vocational expert’s consideration that were
limited to claimant’s academic preparation, age, previous work, ability to lift ten
to twenty pounds, and other physical activities such as climbing stairs, walking,
leaning, number of hours she could sit or stand during an eight-hour workday,
exposure to fumes, odors and poor ventilation, and the ability to do unskilled
work of a simple, routine and repetitive nature. TR., pp. 34-36. No mention
was made to the expert of claimant’s mental disorder. When the vocational
expert was asked if claimant “could do any of the jobs ... indicated previously,”
his answer was: “No, due to the fact that she is limited to unskilled work.”
(Emphasis ours.) TR., p. 36.
The ALJ then turned to the question “would there be any other job in the
national economy that this person could do?” (TR. p. 36). He used the same
hypothesis outlined above, that is, vocational factors and functional activity
relevant to claimant without any mention to the vocational expert of her mental
disorder. This was done despite the extensive medical evidence on record
documenting claimant’s mental impairments and her Mental Residual
Functional Capacity Assessment dated August 12, 2011 prepared by
Dr. Rodriguez-Robles (Exhibit 3F; TR. pp. 280-284). The Mental Residual
Functional Capacity Assessment included findings that linked claimant’s
“psychomotor retardation, depressive mood, restricted affect, irresponsibility,
crying, poor attention and concentration and poor memories” to being “unable
to meet competitive standards to do unskilled, semi-skilled and skilled work.”
This residual functional report also indicated that the anxiety and depression
did not allow her to manage stressful situations and aggravated her asthma
condition. Her social functioning and daily activities as well as concentration
and persistence were reported as markedly restricted.
assessment report is part of a more inclusive initial psychiatric evaluation
prepared by Dr. Rodriguez-Robles as early as August 12, 2011 (Exhibit 3F;
TR. pp. 274-279) which is compatible with the medical evidence corresponding
to the years 2012 and 2013.
The vocational expert’s response, based on that incomplete setting, was
that three jobs were available in the national economy that could be performed
by claimant: “cashier II,” “finisher,” “mail clerk.” TR. pp. 36-37.
Immediately after this response, the following exchange took place
between claimant’s attorney and the vocational expert:
–: If we take a person like the one described in the records, who
has emotional limitations according to those described by
Dr. Rodriguez Robles, psychiatrist and social security evaluator.
He indicates that she “is unable to meet competitive standards,”
with regard to her ability – and I’ll read it in English, just as the
document is written: “perform at a consistent pace without an
unreasonable number and length of rest periods, work in
coordination with or in proximity to others without being unduly
distracted, sustain an ordinary routine without special supervision,
maintain attention for two hour segments, respond appropriately to
changes in a routine work setting, get along with co-workers or
peers without unduly distracting them or exhibiting behavioral
extremes.” Considering just one of these, would the person be
able to do the jobs that you mentioned previously, or any other job
that exists in the national economy?
--: How is she classified? In what way?
--: She is unable to meet competitive standards –
–: At all?
–: At all.
–: The answer is, she wouldn’t be able to do any of the jobs
TR., pp. 37-38 (Emphasis ours.)
There is a medically documented history of a major, severe depression
for a period of more than two years during which she has required continuous
psychiatric treatment and during which she has manifested constant symptoms
of sleep disturbance, psychomotor retardation, difficulty concentrating,
isolation, low self-esteem, marked restriction of activities of daily living and
social functioning, poor memories.
These symptoms have persisted
uninterruptedly despite constant medication during the entire period of
treatment which resulted in functional limitations due to the effects of heavy
sedation. The vocational expert unequivocally concluded that based on the
applicable guidelines, she is unable to perform her past work or any
less-demanding, unskilled work of the type identified by him which is available
in the national economy.
Regarding the date of onset of the disability, the Court finds that the
applicable date is August 12, 2011 as supported by the medical evidence on
For the reasons stated, the Court concluded in its Judgment issued on
September 30, 2016 (d.e. 20) that the Secretary's determination was not
supported by substantial evidence in the record.
At San Juan, Puerto Rico, on October 14, 2016.
S/CARMEN CONSUELO CEREZO
United States District Judge
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