Marquez

Filing 17

MEMORANDUM AND OPINION re 2 SOCIAL SECURITY COMPLAINT filed by Joselito Marquez. Signed by US Magistrate Judge Silvia Carreno-Coll on 8/21/2018.(VCC)

IN THE UNITED STATES COURT
FOR THE DISTRICT OF PUERTO RICO

JOSELITO MARQUEZ,
Plaintiff,
CIV. NO.: 15-2127 (SCC)
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

MEMORANDUM AND ORDER
Joselito Marquez, (“Plaintiff” and/or “Claimant”), moves
the Court to remand this case to the Commissioner of Social
Security (“the Commissioner”). However, after a review of
the record and the parties’ memoranda, we 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

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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. § 404.1520(a)(4), (e). Once the RFC is determined, the

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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
Mr. Marquez made his initial application for disability
benefits on July 9, 2012, alleging that his disability began on
January 1, 1999. Tr. 515. Plaintiff’s application was initially
denied, as was the reconsideration, and Plaintiff thereafter
requested a hearing. Tr. 442-53, 459-460. The hearing was held
on February 24, 2014. The Administrative Law Judge (“ALJ’)
determined that Plaintiff was not disabled. Tr. 13-26. The
appeals council refused to review the ALJ’s decision, and he
filed his appeal. Tr. 1-6.

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The ALJ concluded that Plaintiff had the RFC to perform
light work as defined in 20 C.F.R. 404. 1567 (b), except that he
had to alternate positions between sitting and standing every
two hours. Tr. 23. The ALJ then found that while he could no
longer perform his past relevant work, there existed work that
he could perform; therefore, he was not disabled. Tr. 25, 26.
ANALYSIS
Plaintiff alleges several errors in the ALJ’s decision. First,
he claims that the ALJ did not assign controlling weight to
Plaintiff’s treating physicians. Second, the Plaintiff argues
that although he has the RFC to perform light work, the ALJ’s
conclusion that he needs to alternate between sitting and
standing positions every two hours, is erroneous. Third,
Plaintiff avers that the ALJ did not apply the proper legal
standards for evaluating subjective complaints of pain and
did not conduct a full discussion of the Avery Factors.
As to the first “error,” 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 “wellsupported by medically acceptable clinical and laboratory

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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 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).
Upon review of the record, the Court finds that the ALJ
properly considered the evidence of record, including the
treating physician’s opinions, prior to June 30, 2012, the date
of the onset of the disability. As the government correctly
points out, Mr. Marquez did not specify which of the
evaluations of Drs. Figueroa and Cummings he relied upon
to contest the ALJ’s findings. Assuming that Mr. Marquez
was referring to Dr. Figueroa’s March 5, 2010 note stating that
Marquez is “totally disabled,” (Tr. 683), such evaluation took
place after the expiration of Mr. Marquez’ insured status. To
be eligible for Disability Insurance Benefits, a claimant must
establish that he became disabled prior to the expiration of his

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insured status. See McNier v. Commissioner of Social Security,
166 F.Supp.3d 904, 911 (S.D. Ohio, 2016). Therefore, medical
evidence regarding a time after plaintiff’s Date Last Insured
(“DLI”), “is only minimally probative” and should “only [be]
considered to the extent it illuminates a claimant's health
before the expiration of his or her insured status.” Id.
(citations omitted). In this case, Mr. Marquez’ last insured
date was June 30, 2002, well before the 2010 evaluation that
he relies upon. See Tr. 534-36. Aside from mentioning Drs.
Figueroa and Cummings’ opinions, without specific reference
to dates, plaintiff did not point to a single evaluation post June
30, 2002 that contradicted the ALJ’s determinations.
Next, Plaintiff claims that the ALJ erred in concluding that
he needed to alternate between sitting and standing positions
every two hours. A review of the record belies plaintiff’s
arguments. As expressed in his Memorandum, the ALJ took
into consideration the treating physician notes from February
7, 2000, which mentioned that “the claimant’s cervical spine
appeared to be ok in the radiological studies.” Tr. 24. The ALJ
also took into consideration the evaluation made by Dr.
Ramón Del Prado, a neurosurgeon. Dr. Del Prado found that

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Plaintiff had a mildly limited range of motion of the neck and
lumbosacral spine, and otherwise negative exam. He
diagnosed cervical and lumbar sprain and recommended
physical therapy. Id. Moreover, the ALJ gave “little weight” to
the opinion of the State Agency’s medical consultant that
there was insufficient evidence dated before the claimant’s
date last insured to make a determination. Tr. 24. The ALJ
properly considered all the evidence on record and concluded
that plaintiff retained the RFC to perform a significant
number of the jobs.
As the third, and final, error, plaintiff avers that the ALJ
did not apply the Avery factors in evaluating his subjective
complaints of pain. In making an RFC determination, the ALJ
must consider all relevant medical evidence, which includes
the claimant’s own statements. See Pachilis v. Barnhart, 268
F.Supp.2d 473, 477 (E.D.Pa. 2003). The ALJ’s decision properly
considered the Avery factors in assessing his allegations of
pain and diminished physical activity, but ultimately
concluded that the record did not support a finding of
disability. According to the ALJ, plaintiff’s subjective
complaints were not consistent with the other medical factors.

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See Tr. 24.
After careful consideration of the evidence, the
undersigned finds that, during the period at issue, the
claimant’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms;
however, the claimant’s statements concerning the
intensity, persistence, and limiting effects of these
symptoms are not entirely credible for the reasons
explained in this decision.
Because our review of the ALJ’s decision is limited to
determining whether the findings in the final decision are
supported by substantial evidence, and whether the ALJ
applied the correct legal standards, 1 we affirm.
CONCLUSION
For the reasons stated above, we AFFIRM the decision of
the Commissioner.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 21st day of August, 2018.
S/ SILVIA CARREÑO-COLL
UNITED STATES MAGISTRATE JUDGE

1 Seavey v. Barnhart, 276 F.3d 1, 9 (1st Cir. 2001).