Berenguer v. Commissioner of Social Security
Filing
27
MEMORANDUM AND OPINION re 1 SOCIAL SECURITY COMPLAINT, filed by Jorge I. Berenguer. The Commissioner's decision is AFFIRMED. Signed by US Magistrate Judge Silvia Carreno-Coll on 7/25/2017.(VCC)
IN THE UNITED STATES COURT
FOR THE DISTRICT OF PUERTO RICO
JORGE I. BERENGUER,
Plaintiff,
CIV. NO.: 15-3106 (SCC)
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
MEMORANDUM AND ORDER
Plaintiff Jorge I. Berenguer 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 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
BERENGUER v. COMMISSIONER
Page 2
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
BERENGUER v. COMMISSIONER
Page 3
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
Plaintiff made his initial application for disability benefits
on December 16, 2011, alleging that his disability began on
September 16, 2011. The claim was initially denied, as was the
reconsideration, and Plaintiff thereafter requested a hearing.
See TR. at 71-76. 1 The hearing was held on October 30, 2013.
The ALJ determined that Plaintiff was not disabled. The
appeals council refused to review the ALJ’s decision, and he
filed this appeal. See Docket No. 1
1.
We will refer to the Social Security Transcript as “TR.” throughout.
BERENGUER v. COMMISSIONER
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ANALYSIS
Plaintiff alleges several errors in the ALJ’s decision. First,
he claims that the ALJ erred by failing to give proper weight
to the opinions of his treating physicians. The ALJ considered
that Dr. León’s assessments of severe functional limitations
were not entitled to controlling weight because they were not
well supported and were inconsistent with evidence from
other sources. According to Plaintiff, the ALJ incorrectly
evaluated
Dr.
electromyography
León’s
and
examination
nerve
findings
conduction
and
(EMG/NCV)
findings.
However, the ALJ considered treatment records from
before and after the EMG/NCV, which failed to support the
presence of sustained carpal tunnel syndrome symptoms to
the severe extent alleged, or any more restrictive limitations
in the use of Plaintiff’s hand. Dr. León himself assessed, on
January 26, 2012, that Plaintiff was able to continuously move
his fingers and hands, and frequently grab/squeeze and reach
in front at desk-level. In addition, treating rheumatologist Dr.
Babilonia concluded that Plaintiff had no hand limitations,
and specifically that he was able to bilaterally grip, grasp,
pinch, oppose fingers, button a shirt, pick up a coin, and
BERENGUER v. COMMISSIONER
Page 6
write. See Tr. 47-48, 347. Dr. Babilonia’s later examinations
also revealed normal neurological findings. See Tr. 45-46, 890,
895, 1302. The ALJ also noted that Dr. León’s opinion was
inconsistent with the opinion of medical consultant Dr.
Lourdes Marrero, who reviewed the evidence in the file on
March 18, 2013 and concluded that Plaintiff retained the
capacity for light work with occasional reaching overhead
and in front and/or laterally with the right arm. See Tr. 51, 65561, 1209; 20 C.F.R. § 404.1512(b)(6).
We concur with the ALJ that the evidence, medical signs
and laboratory findings did not support Dr. León’s opinion.
Furthermore, it was inconsistent with largely normal
examination findings and opinions of both Dr. Babilonia and
State Agency medical consultant Dr. Marrero, which
supported the ALJ’s RFC finding for a range of light work.
Plaintiff also alleges that the ALJ erred by giving little
weight to the December 14, 2012 report of psychologist Dr.
Ruiz and the February 26, 2013 report of psychiatrist Dr. De
Jesús. See P. Brf. At 18-24, 29; Tr. 386-91, 498-506, 1110-13,
1210-29. However, The ALJ considered these opinions and the
other evidence of record, and properly declined to give
opinions greater or controlling weight, as they were not well-
BERENGUER v. COMMISSIONER
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supported by objective findings and were inconsistent with
the doctors’ treatment notes and other record evidence.
Dr. De Jesús’s opinion was inconsistent with his treatment
notes. He stated in his report that Plaintiff was irritable, had
low tolerance for social interaction, and had diminished
speech. This description clearly contradicts his treatment
notes, which indicate that Plaintiff was cooperative, and his
speech was coherent. See, e.g., Tr. 366, 370, 507, 526. In
addition, although other treatment notes revealed abnormal
findings, such as trouble concentrating, they documented that
Plaintiff was oriented, his thought process was logical and
relevant, and he had an appropriate affect. Based upon these
factors, we concur with the ALJ in not granting significant
weight to Dr. De Jesus’s opinion.
The ALJ also took in consideration the examination report
of consultative psychiatrist Dr. Efren Mangual. His report is
inconsistent with the reports of Dr. Ruiz and Dr. De Jesus. Dr.
Mangual’s examination revealed normal findings, describing
Plaintiff as has having a logical, coherent, and relevant
thought process; controlled emotions; adequate language;
good immediate, recent, and remote memory; good attention,
concentration, intellectual ability, orientation, and judgment;
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Page 8
and no suicidal ideation. See Tr. 41, 43, 353-56. In addition, Dr.
Mangual noted that Plaintiff’s demeanor was cheerful; he was
clean and well groomed, and assessed that Plaintiff was able
to take total responsibility for himself and for the
management of his monetary funds. These findings are
clearly consistent with the ALJ’s RFC finding for simple
unskilled light work.
The ALJ’s RFC finding is also supported by the opinion of
psychological consultant Dr. Jesús Soto, who reviewed the
evidence and concluded that Plaintiff retained the capacity to
perform simple unskilled work, including the ability to
appropriately interact with coworkers and others, and
adequately complete a normal workweek and workday. See
Tr. 658-59, 661-63, 1208. The opinions of non-examining
psychological consultants, who, like Dr. Soto are experts in
the evaluation of medical issues in disability claims under the
Act, may constitute substantial evidence in support of an
ALJ’s decision. See 20 C.F.R § 404.1527(e)(2)(i); Berrios-Lopez v.
Sec’y of Health and Human Servs., 951 F.2d 427, 431 (1st Cir.
1991).
Plaintiff alleges that Dr. De Jesus’s descriptions of
Plaintiff’s signs and symptoms would meet the requirements
BERENGUER v. COMMISSIONER
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of Listing 12.04A and 12.04B. Substantial evidence supports
the ALJ’s finding that Plaintiff’s mental impairment did not
meet the requirements of 12.04B, including her finding that
Plaintiff had only moderate limitations in activities of daily
living, social functioning, and concentration, persistence, or
pace. Accordingly, Plaintiff failed to satisfy his burden of
establishing that his mental impairment met all of the
required criteria of Listing 12.04, and therefore, does not
qualify. All the medical opinions and substantial evidence
support the ALJ’s RFC finding.
Plaintiff also alleges that the ALJ did not pose a proper
hypothetical question to the vocational expert (“VE”). We find
that the ALJ’s RFC finding is supported by substantial
evidence and included all of the functional limitations that
where supported by the record consequently incorporating
all the pertinent factors when posing a hypothetical scenario
to the VE.
It is worth restating that 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
she applied the correct legal standards. Seavy v. Barnhart, 276
F.3d 1, 9 (1st Cir. 2001). We find that the ALJ fulfilled both
BERENGUER v. COMMISSIONER
Page 10
requirements.
CONCLUSION
For the reasons stated above, we AFFIRM the decision of
the Commissioner.
IT IS SO ORDERED
In San Juan, Puerto Rico, this 25th day of July, 2017.
S/ SILVIA CARREÑO-COLL
UNITED STATES MAGISTRATE JUDGE
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