Martinez Torres v. Commissioner of Social Security

Filing 17

OPINION AND ORDER affirming the Commissioner's decision. Signed by US Magistrate Judge Bruce J. McGiverin on 10/31/2017. (jm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
RONALD MARTINEZ-TORRES,
Plaintiff,
v.

Civil No. 16-1538 (BJM)

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
Ronald Martinez-Torres (“Martinez”) seeks review of the Commissioner’s decision
finding he is not entitled to disability benefits under the Social Security Act (“Act”), 42
U.S.C § 423, as amended. Martinez asks for judgment remanding the case to the
Commissioner for further proceedings. (Docket Nos. 2, 15). The Commissioner answered
the complaint and filed a memorandum. (Docket Nos. 13, 16). This case is before me on
consent of the parties. (Docket No. 10). After careful review of the administrative record
and the briefs on file, the Commissioner’s decision is affirmed.
STANDARD OF REVIEW
The court’s review is limited to determining whether the Commissioner and her
delegates employed the proper legal standards and found facts upon the proper quantum of
evidence. Manso-Pizarro v. Secretary of Health & Human Services, 76 F.3d 15, 16 (1st Cir.
1996). The Commissioner’s findings of fact are conclusive when supported by substantial
evidence, 42 U.S.C. § 405(g), but are not conclusive when derived by ignoring evidence,
misapplying the law, or judging matters entrusted to experts. Nguyen v. Chater, 172 F.3d
31, 35 (1st Cir. 1999); Ortiz v. Secretary of Health & Human Services, 955 F.2d 765, 769
(1st Cir. 1991). “Substantial evidence means ‘more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Visiting Nurse Association Gregoria Auffant, Inc. v. Thompson, 447 F.3d 68, 72 (1st Cir.
2006) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). The court “must affirm
the [Commissioner’s] resolution, even if the record arguably could justify a different

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conclusion, so long as it is supported by substantial evidence.” Rodríguez Pagán v.
Secretary of Health & Human Services, 819 F.2d 1, 3 (1st Cir. 1987).
A claimant is disabled under the Act if he is unable “to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be expected to last for
a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). Under the
statute, a claimant is unable to engage in any substantial gainful activity when he “is not
only unable to do his previous work but cannot, 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)(2)(A). In determining whether a claimant is
disabled, all of the evidence in the record must be considered. 20 C.F.R. § 404.1520(a)(3).
Generally, the Commissioner must employ a five-step evaluation process to decide
whether a claimant is disabled. 20 C.F.R. § 404.1520; see Bowen v. Yuckert, 482 U.S. 137,
140–42 (1987); Goodermote v. Secretary of Health & Human Services, 690 F.2d 5, 6–7
(1st Cir. 1982). In step one, the Commissioner determines whether the claimant is currently
engaged in “substantial gainful activity.” If so, the claimant is not disabled. 20 C.F.R.
§ 404.1520(b). At step two, the Commissioner determines whether the claimant has a
medically severe impairment or combination of impairments. 20 C.F.R. § 404.1520(c). If
not, the disability claim is denied. At step three, the Commissioner must decide whether
the claimant’s impairment is equivalent to a specific list of impairments contained in the
regulations’ Appendix 1, which the Commissioner acknowledges are so severe as to
preclude substantial gainful activity. 20 C.F.R. § 404.1520(d); 20 C.F.R. § 404, Subpt. P,
App. 1. If the claimant’s impairment meets or equals one of the listed impairments, he is
conclusively presumed to be disabled. If not, the evaluation proceeds to the fourth step,
through which the Administrative Law Judge (“ALJ”) assesses the claimant’s residual
functional capacity (“RFC”) and determines whether the impairments prevent the claimant
from doing the work he has performed in the past. An individual’s RFC is his ability to do
physical and mental work activities on a sustained basis despite limitations from his
impairments. 20 C.F.R. § 404.1520(e) and 404.1545(a)(1). If the claimant is able to perform
his previous work, he is not disabled. 20 C.F.R. § 404.1520(e). If he cannot perform this
work, the fifth and final step asks whether the claimant is able to perform other work

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available in the national economy in view of his RFC, as well as age, education, and work
experience. If the claimant cannot, then he is entitled to disability benefits. 20 C.F.R. §
404.1520(f).
At steps one through four, the claimant has the burden of proving he cannot return
to his former employment because of the alleged disability. Santiago v. Secretary of Health
& Human Services, 944 F.2d 1, 5 (1st Cir. 1991). Once a claimant has done this, the
Commissioner has the burden under step five to prove the existence of other jobs in the
national economy the claimant can perform. Ortiz v. Secretary of Health & Human
Services, 890 F.2d 520, 524 (1st Cir. 1989). Additionally, to be eligible for disability
benefits, the claimant must demonstrate that his disability existed prior to the expiration of
his insured status, or his date last insured. Cruz Rivera v. Secretary of Health & Human
Services, 818 F.2d 96, 97 (1st Cir. 1986).
BACKGROUND
Martinez (who did not finish high school or independent studies, does not
understand English, and worked in maintenance for ten years) applied for disability
insurance benefits on March 14, 2012, claiming disability since August 10, 2006 (alleged
onset date) at the age of 261 due a back injury and an emotional condition. Social Security
Transcript [“Tr.”] 33, 52, 73, 293, 389, 418. He last met the insured status requirements of
the Act on December 31, 2010 (date last insured). Tr. 293. The claim was denied initially
and on reconsideration. Tr. 52, 292. A hearing before an ALJ was held on June 13, 2014.
Tr. 30-46. On September 3, 2014, the ALJ found that through the date last insured, and
considering Martinez’s age, education, work experience, and RFC, there were jobs that
existed in significant numbers in the national economy that Martinez could perform. Tr.
13-25. Martinez requested review of the ALJ’s decision, and on February 5, 2016, the
Appeals Council denied Martinez’s request, rendering the ALJ’s decision the final decision
of the Commissioner. Tr. 1-6. The present complaint followed. Docket No. 2.
The record contains evidence of treatment for back pain and high blood pressure
by the State Insurance Fund and Centro San Cristobal. Martinez also received mental health
1

Martinez was born on November 21, 1979 (Tr. 389), and was considered to be a younger
individual (Tr. 40), and “[i]f you are a younger person (under age 50), we generally do not consider
that your age will seriously affect your ability to adjust to other work.” 20 C.F.R. 404.1563(c).

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treatment for a major depressive disorder from the Ponce School of Medicine and INSPIRA
Behavioral Care. Through the Disability Determination Program (“DDP”), medical
consultants Dr. Benjamin Cortijo and Dr. Carlos Jusino offered their RFC assessments as
to Martinez’s conditions and the medical evidence on record. The following is a summary
of the medical evidence and self-reported symptoms and limitations as contained in the
Social Security transcript.
Treating physicians
State Insurance Fund (“SIF”)
Martinez was treated by the SIF from 2006 to 2011 after feeling a shooting pain in
his back while lifting at work. Progress notes show that Martinez was in pain, and that he
suffered from a dorsal and lumbar sprain, bilateral S1 radiculopathy, and depression. He
was prescribed physical therapy, muscle relaxants, and anti-inflammatory and nerve pain
medications (Flexeril, Relafen, Neurontin, and others). Tr. 88-134, 143-190, 475-521, 592639.
Magnetic resonance images (“MRIs”) and x-rays of the spine taken in 2006 showed
that Martinez’s dorsal and lumbosacral spine was normal, but an electromyographic
examination and a nerve conduction velocity study revealed bilateral S1 radiculopathy. Tr.
115-118, 502-505. In 2007, Martinez expressed having pain all the time. Tr. 112, 499. He
was seen by a physiatrist, and received physical therapy, but showed decreased range of
movement and lumbosacral pain with mild to moderate progress. Tr. 109-111, 129, 496498, 516. In December 2007, Martinez expressed feeling worse from the pain after physical
therapy, and was referred to a neurologist. Tr. 107, 494.
In 2008, Martinez still showed decreased range of movement and lumbosacral pain.
Tr. 104, 106, 491, 493. He also felt numbness in both legs and pain on palpation. Tr. 128,
515. In January 2008, Martinez was injected intramuscularly with Depromedrol and
Norflex. Tr. 105, 492. Progress notes from March 2008 reflect Martinez’s concern
regarding his pain (“I am really bothered by the pain in my back and it worries me.”). A
neurologist found that Martinez had normal strength, could walk on heels and toes, and
squat, and concluded that Martinez did not show active radiculopathy and that he could
work. Tr. 509. Martinez was discharged from the SIF in June 2008 (Tr. 61, 103, 396, 490),

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but on appeal his case was referred back for further evaluation at the pain clinic. Tr. 90,
127, 477, 514.
In 2010, Martinez was referred to an anesthesiologist. Tr. 102, 489. In June, he
received Toradol and Kenalog injections, but August progress notes show that Martinez
described his pain as strong, deep, constant, and worsening. Pain would increase when
standing, bending, or climbing stairs. Pain reduced with rest and sleep. His gait was
unsteady, and his ability to flex, extend, toe-walk, and heel-walk were diminished. Tr. 101,
121, 488, 508. In September, Martinez received a lumbar blockage (Tr. 98, 120, 486, 507),
and, in November, received a bilateral sacroiliac joint epidural injection. Tr. 90, 92-93, 477,
479-480. Progress notes from October 2010 through February 2011 reflect that Martinez
suffered from vertebral and paravertebral muscular pain with range of movement
limitations in his lumbar spine. Ultimately, Martinez was found to have diminished ability
to perform toe walking, heel walking, and extension, and he was discharged with a partial
permanent disability (6% loss of general physiological function). Tr. 89-91, 94, 119, 476478, 481, 506.
Centro San Cristobal
Progress notes from Centro San Cristobal, from 2007-2013, are mostly illegible.
Tr. 205-268, 685-707, 708-748. During this time period, Martinez was seen and medicated
several times for lower back pain, leg pain and weakness, a muscle spasm, rectal bleeding
due to hemorrhoids, and was diagnosed with lumbago. Tr. 697, 706-707, 724-734, 739745. From 2010 through 2012, he was seen, medicated and referred to surgery for a
complicated pilonidal abscess and a left gluteus abscess.2 He was also seen for back and
hip pain, depression, neuropathy, and hemorrhoids. He was diagnosed with lumbago, was
prescribed medications, and was pending a psychiatric evaluation. Tr. 687, 694, 696, 700703, 708-718, 719-722, 739. May 2012 notes show that he had high blood pressure. Tr.
690. In 2013, Martinez was referred to a surgeon due to a dorsal tongue mass and to
physical therapy in the lumbar area due to severe back pain, and was prescribed
medications. Tr. 688-689, 691-692. A muscle and nerve study by Dr. Yanira Vazquez, dated
September 2013, revealed left L5 radiculopathy. Tr. 762-763.

2

He was also treated for a left gluteus abscess in 2007. Tr. 739

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Hospital Damas
Martinez had a catherization performed in May 2014 by Dr. Carlos Carro (“Dr.
Carro). Tr. 773-782.
Ponce School of Medicine
Martinez was assisted at Community Cornerstone of Puerto Rico, a crisis center,
on August 9, 2010 to help him “control myself.” He presented self-harm ideation, and was
sad, nervous, and altered. His conditions were triggered by unemployment, economic
problems, and his physical conditions. He told staff that watching television, using the
computer, and bathing helped him relax. Progress notes from September 16 indicate that,
after treatment with medications, he was calm, cooperative, alert, oriented, and free of
suicidal and homicidal ideas. Martinez was referred to outpatient treatment, and he
expressed being committed to continuing treatment, following the recommendations of the
therapist, and calling a help line if needed. He was prescribed medications. Tr. 135-136,
412, 526-530, 640-647.
He continued receiving treatment for his behavioral and emotional problems at the
Ponce School of Medicine, from August 2010 to 2013. Tr. 522-531, 758-760. Progress
notes in general show that he was anxious, and had thought process disorders, bad mood,
and suicidal thoughts. His Global Assessment of Functioning (“GAF”)3 was at 55-60. He
was diagnosed with major depressive disorder and prescribed medications. Martinez
reported that his medications relaxed him and helped him control himself. One of the
medications made him drowsy. Tr. 295-296, 413.
Progress notes from November and December 2010, and March 2011 show that he
was calm and cooperative. His mood was depressive and anxious and sometimes euthymic,

3

“GAF is a scale from 0 to 100 used by mental health clinicians and physicians to
subjectively rate the social, occupational, and psychological functioning of adults. A GAF score
between 51 and 60 indicates ‘moderate symptoms’ or ‘moderate difficulty in social occupational,
or school functioning.’” Hernandez v. Comm’r of Soc. Sec., 989 F. Supp. 2d 202, 206 f.n. 1 (D.P.R.
2013)(quoting Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 32
(4th ed. text rev. 2000) (DSM–IV–TR)).
“[T]he GAF rating system . . . is not raw medical data; rather, the system provides a way
for a mental health professional to turn raw medical signs and symptoms into a general assessment,
understandable by a lay person, of an individual’s mental functioning.” González-Rodríguez v.
Barnhart, 111 Fed. Appx. 23, 25 (1st Cir. 2004) (per curiam) (unpublished) (citing Howard v.
Comm’r of Soc. Sec., 276 F.3d 235, 241 (6th Cir. 2002)).

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his affect appropriate, speech normal, and thought process intact. He showed no cognitive
difficulties, and no suicidal, homicidal, or psychotic thought content. Tr. 523-525. By
December 2010, he was found to have improved in his condition. Tr. 523. He was stable
by March 2011. Tr. 524, 586.
However, progress notes from September 2013 show that he was anxious and
depressed, with cognitive difficulties in attention and concentration, and his thought
content presented ideas of reference and obsessions (although no suicidal or homicidal
thoughts). His GAF was at 45-50.
INSPIRA Behavioral Care
Martinez also received mental health treatment for major depressive disorder from
Dr. Bogart Esparza (“Dr. Esparza”) at INSPIRA Behavioral Care, from August 2010 to
2013. Tr. 196-204, 269-277, 411, 650-684, 749-757, 765-772. His prescribed medications
included antipsychotics (to treat acute and clinical psychosis), antidepressants (for severe
major depression), mood stabilization (to control manic/depressive state and poor impulse
control), benzodiazepines (to treat anxiety), and hypnotics (to induce sleep). Tr. 202-204,
662-666. There is evidence that he was discharged twice from hospitalization, on July 12,
2013 (Tr. 650) and on September 5, 2013 (for 5 days), Martinez was discharged and
referred to outpatient treatment. The discharge summaries (although mostly illegible)
indicate that he had been diagnosed with major depressive disorder, recurrent, severe with
psychotic symptoms (diagnostic code 296.34); that he was or had been sad, hostile, and
irritable; that his GAF was at 60; and that he was prescribed medications and advised about
the importance of continuing treatment at home. Tr. 196, 198, 270, 650-651, 654, 749-750.
Procedural History
Martinez applied for disability insurance benefits on March 14, 2012, claiming that
a back injury and an emotional condition limited his ability to work. Tr. 389, 417. Martinez
was interviewed by a field officer, to whom he claimed having difficulty concentrating,
standing, and walking. The field officer observed that Martinez had trouble remembering,
difficulty walking and standing up, walked slowly, and had a limp on his left side. His wife
helped him remember during the whole interview. Tr. 297, 408.
Martinez claimed in a function report (Tr. 62-71, 294, 424-433) that his conditions
affected his ability to get up, squat, bend, and reach, but not to stand, walk, sit, kneel, climb

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stairs, use his hands, talk, hear, or see. He could walk 30 feet before needing to stop and
rest for five minutes. His ability to remember, concentrate, understand, follow written and
spoken instructions, and socialize with others was also affected. He could pay attention for
only a few seconds and could not complete tasks.4 Tr. 68, 430.
Martinez also reported living at home with his wife. He would have breakfast,
watch television all day, take his medications, and sleep. Prior to his conditions, he could
work, bend over, and take care of himself. His conditions affected his ability to sleep
because they produced pain, anxiety, and depression. Now, he felt depressed and needed to
be reminded to bathe, care for his hair, and shave. He did not do house chores, shop, or
drive because his medication made him forgetful and disoriented. He did not spend time
with others (in person, or by phone or computer), and claimed having problems getting
along with others because he is bipolar and schizophrenic. Tr. 62-67, 424-430. He handled
stress and changes in routine through medication, and was afraid of committing a crazy act
or killing someone. Tr. 69, 431.
Martinez’s neighbor, Maribel Pabon (“Pabon”), also reported that Martinez was
anxious, depressed, had mood swings, and felt severe pain in his body. He moved with
difficulty, took his medications, and spent his day lying down, watching television, and
sleeping. His wife took care of him and prepared his meals. He had to be reminded to bath,
shave, cut his hair, and take his medications. Martinez’s brother helped care for his hair.
He did not do house chores or yard work because his depression would not allow it. He did
not socialize or go out, except once a week to visit his doctor, and did not drive or go out
alone because he was disoriented and nervous. He did not handle funds. Tr. 73-77, 294,
434-439.
Pabon added that Martinez’s conditions affected his ability to get up, squat, bend,
reach, and kneel, but not his ability to stand, walk, sit, climb stairs, use his hands, talk, hear,
or see. His conditions also affected his ability to remember, concentrate, follow
instructions, and get along with others, but not understand and complete tasks. Tr. 77, 439.
Martinez, who is right-handed, could not lift more than one or two pounds. Tr. 78.

4

The function report contains a section where a claimant check-marks the abilities affected
by his conditions. The box for “Completing tasks” was not check-marked, but further down, another
box asking if the claimant finished what he started was check-marked “No”. Tr. 68.

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Dr. Benjamin Cortijo (“Dr. Cortijo”), a non-examining consultant, assessed on May
17, 2012 that Martinez’s conditions could reasonably be expected to produce pain and other
symptoms, but not the extent he claimed. Martinez’s statement that he needed to rest after
walking thirty feet and could only lift two pounds was not credible and was inconsistent
with his own reports on personal care. Dr. Cortijo found that Martinez did have exertional
and postural limitations, but retained the RFC to lift/carry twenty pounds occasionally and
ten pounds frequently. He could stand and walk for four hours, sit for six hours, and could
push and pull unlimitedly. He could occasionally climb, balance, stoop, kneel, crouch, and
crawl. Dr. Cortijo found no manipulative, visual, communicative, or environmental
limitations. Tr. 299-301, 579.
On May 22, 2012, Dr. Carlos Jusino (“Dr. Jusino”), also a non-examining
consultant, reported that the medical evidence showed that Martinez suffered from a nonsevere condition of major depression, and that he was alert, well oriented, and with good
attention, concentration, and memory. He assessed that Martinez had mild restrictions of
activities of daily living, mild difficulties in maintaining social functioning, mild
difficulties in maintaining concentration, persistence or pace, and no repeated episodes of
decompensation. Tr. 298-299, 580.
The claim was denied on May 25, 2012, with a finding that Martinez could not
perform past relevant work, but according to his age, education, and prior employment
experience, could perform sedentary work. Vocational Rule 201.23 directed to a finding of
not disabled, and although he could not perform past work, there were other jobs in the
unskilled occupational base that Martinez could perform, such as election clerk
(government service), processor (pharmaceutical), or addresser (clerical). Tr. 292, 297298, 301-303, 319-321.
Martinez requested reconsideration (Tr. 324) and claimed that his conditions
worsened since the initial denial of benefits. He was forgetful, unable to do anything, and
tried to end his life. Tr. 445. He was aggressive, and did not tolerate being with people. Tr.
449.
The case was referred to psychiatrist Dr. Jose Casiano (“Dr. Casiano”) and internist
Dr. Pedro Nieves (“Dr. Nieves”) for RFC assessments on reconsideration (Tr. 582-585) and

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both affirmed in May 2013 the physical and mental assessments submitted at the initial
stage as written. Tr. 312.
On May 15, 2013, the claim was denied upon reconsideration, and the original
determination was affirmed as written. The examiner noted that no evidence was received
at the reconsideration level. Tr. 57, 304-306.
At Martinez’s request (Tr. 329), a hearing was held before an ALJ on June 13, 2014.
Tr. 30-46. Martinez and Dr. Ariel Cintrón, a vocational expert (“VE”), testified. Tr. 30-46.
Martinez testified that he hurt his back while lifting at work, and that despite receiving
treatment through the SIF, his pain kept getting worse. Tr. 37. He felt throbbing, stabbing
pain in his lower body and needed to shift positions between sitting and standing. He took
medications for his back, high blood pressure, cholesterol, and insomnia. He also took
medications for his mental health because he saw shadows, heard voices that tell him to
kill himself, and has tried to take his own life on a few occasions. Tr. 34-37. He needed to
be reminded of things, and did not help clean because he felt pain and was medicated. He
was also aggressive, and did not live with his wife because she sometimes feared for her
life. Tr. 36. He spent his day lying down and watching television. Tr. 38. When asked if he
could work with the public, Martinez answered that he would not be able to because he
was aggressive and got upset if people yelled at him. Tr. 39. He did not know for how long
he could pay attention or concentrate, or if he could follow simple instructions . Tr. 39.
The ALJ asked the VE whether a young person with limited education, who does
not communicate in English, and has a vocational profile of medium and heavy work,
unskilled, with the following functional limitations could work: perform light work,
alternate positions every two hours (two hours sitting down and two hours standing up,
consecutively), and perform unskilled, simple, repetitive work that did not require serving
the public. The VE answered that such a person could do light jobs that were unskilled,
routine, and repetitive, such as electronic worker (electronic components), plastic hospital
products assembler (instruments and apparatus), and gluer. Tr. 41-43.
Martinez’s attorney asked the VE if such a person could perform these jobs if he
had to alternate every hour instead of in two-hour periods and if credibility was given to
Martinez’s allegations of severe continuous throbbing pain and psychotic episodes. Tr. 43.
The VE answered that he would not be able to perform those jobs in a sustained way. Tr.

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43-44. Counsel argued that Martinez’s depressive disorder characteristics fit listing 12.04.
Tr. 45.
On September 3, 2014, the ALJ found that Martinez was not disabled under sections
216(i) and 223(d) of the Act. Tr. 7-29. The ALJ sequentially found that Martinez:
(1) had not engaged in substantial gainful activity since his alleged onset date of
August 10, 2006 through his date last insured of December 31, 2010 (Tr. 15);
(2) had severe impairments (bilateral S1 radiculopathy, high blood pressure, and a
major depressive disorder) (Tr. 15);
(3) did not have an impairment or combination of impairments that met or
medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526) (Tr. 16-18);
(4) could not perform past relevant work, but retained the RFC to perform light
work as defined in 20 C.F.R. § 404.1567(b) except that he had to alternate positions
occasionally (two hours sitting alternating with two hours standing consecutively during
an eight-hour work routine), and retained the ability to perform unskilled, simple, and
repetitive tasks that did not require dealing with the public (Tr. 18); and
(5) as per his age, education, work experience, and RFC, there were jobs that
existed in significant numbers in the national economy that Martinez could perform (subassembler of electrical products, wire worker, and electrical accessories assembler). Tr. 2627.
Martinez requested review of the ALJ’s decision, which the Appeals Council denied
on February 5, 2016, rendering the ALJ’s decision the final decision of the Commissioner.
Tr. 1-6. The present complaint followed. Docket No. 2.
DISCUSSION
This court must determine whether there is substantial evidence to support the
ALJ’s determination at step five in the sequential evaluation process that based on
Martinez’s age, education, work experience, and RFC, there was work in the national
economy that he could perform, thus rendering him not disabled within the meaning of the
Act.
Martinez argues that the ALJ erred in finding at step three of the sequential
evaluation process that his mental impairment did not meet the criteria of Section 12.04 for

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an affective disorder, as contained in 20 C.F.R. § 404, Subpart P, Appendix 1. Under step
three of the sequential evaluation process, a finding that the claimant suffers from one of
the listed impairments in the social security regulations results in an automatic finding of
disability. See 20 C.F.R. § 416.920(d). However, the claimant has the burden of producing
evidence that he satisfies the criteria for a particular “listed” condition. Hernandez v.
Comm’ r of Soc. Sec., 989 F. Supp. 2d 202, 208 (D.P.R. 2013) (citing Mills v. Apfel, 244
F.3d 1, 6 (1st Cir. 2001)).
For a claimant to show that his impairment matches a listed impairment, he must
present medical evidence that meets all the specified medical criteria. Sullivan v. Zebley,
493 U.S. 521, 530 (1990). If his impairment or combination of impairments is unlisted,
then he must present medical evidence equal in severity to all the criteria for the most
similar listed impairment in order to show that his impairment is equivalent to a listed
impairment. “A claimant cannot qualify for benefits under the ‘equivalency’ step by
showing that the overall functional impact of his unlisted impairment or combination of
impairments is as severe as that of a listed impairment.” Id. at 531. The Commissioner then
has final responsibility for determining whether the claimant has a listed impairment. The
Commissioner and her delegates consider both medical sources and non-treating source
opinions on whether a claimant’s condition equals a listed impairment. 20 C.F.R. §§
404.1527(d)(2) & (e)(2).
The ALJ evaluated Martinez’s mental impairment under Section 12.04 and found
that Martinez did not meet or equal the criteria of any listed impairments described in
Appendix 1 of the Regulations. Tr. 16-17. Martinez asserts that the medical evidence shows
that he suffers from a major depressive disorder, recurrent, with psychotic features and that
his impairment meets the criteria of Section 12.04. Mental disorders under this section have
criteria organized under three paragraphs (A, B, and C), and in order to be granted disability
under step three, the claimant’s mental disorder must satisfy the requirements of both
paragraphs A and B, or the requirements of both paragraphs A and C. 20 C.F.R. Part 404,
Subpt. P, App. 1, § 12.00. Martinez specifically argues that his mental impairment meets
all the criteria of Listing 12.04.
Martinez first addressed Paragraphs A and C. Paragraph A includes the medical
criteria that must be present in the record. Under Listing 12.04, depressive, bipolar, or

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related disorders, including major depressive disorder, “are characterized by an irritable,
depressed, elevated, or expansive mood, or by a loss of interest or pleasure in all or almost
all activities, causing a clinically significant decline in functioning.” 20 C.F.R. Part 404,
Subpt. P, App. 1, § 12.00B(3). Martinez believes that the record contains evidence of
essentially all of the listed characteristics in section 12.04A(1), which includes depressed
mood, diminished interest in almost all activities, appetite disturbance with increase in
weight, psychomotor retardation, decreased energy, feelings of worthlessness, difficulty
concentration, and thoughts of suicide. However, Martinez does not point to the specific
evidence he believes demonstrates this, and the ALJ does not specifically address
paragraph A in the step three analysis, either.
Upon reviewing the record, I note that the INSPIRA hospitalization discharge
summaries indicate that he had been diagnosed with major depressive disorder, and that
the progress notes from the Ponce School of Medicine show that his mood was depressed,
that he had difficulty concentrating, was anxious and irritable, and was at times suicidal
when not medicated. Martinez self-reported having trouble sleeping, being forgetful, was
aggressive to others, and the only activity he would generally do was watch television. As
to weight, the ALJ discussed obesity in the decision, weight then being an issue although
not a severe condition. I further note that Dr. Jusino’s assessment that Martinez’s
depression was non-severe came at a time in 2012 when Martinez was under continuous
treatment (starting in 2010) and was found by a physician at the Ponce School of Medicine
to have improved in his condition, but from the record it appears that his progress might
have back-tracked in 2013 because he was anxious, depressed, and with difficulty paying
attention and concentrating. I am concerned by the fact that there is evidence that Martinez
has been suicidal. In my opinion, paragraph A might be worth reviewing on remand.
However, paragraph B or C would also have to be met.
Martinez also disagrees with the ALJ’s finding that Martinez’s condition did not
meet the “paragraph C” criteria because there was no evidence showing a residual disease
process that had resulted in such a marginal adjustment that even a minimal increase in
mental demands or change in the environment would cause Martinez to decompensate, and
because there was no evidence of a history of one or more years of inability to function
outside a highly supportive living arrangement with an indication of continued need for

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such an arrangement. Tr. 18. Paragraph C requires that the mental disorder be serious and
persistent, that is, that there be a medically documented history of its existence over a
period of at least two years. It also requires that there be evidence of treatment or therapy
that diminishes the symptoms and evidence of a minimal capacity to adapt to changes in
his environment or to demands that are not part of his daily life. Martinez does not present
arguments or specify evidence to support this claim, but there is a medically documented
history of over two years, and evidence that he can deal with his mental condition with
prescription medications and therapy, as long as he heeds the advice of the importance of
continued treatment at home. I thus find that the ALJ’s finding that there is no evidence of
minimal capacity or inability to adapt to changes to his daily life is supported by the record.
The ALJ also discussed at step three that Martinez’s depression did not meet or
medically equal the paragraph B criteria of Section 12.04. To satisfy the requirements of
Section 12.04, Martinez had to demonstrate that he had at least two of the following
restrictions: marked restriction of activities of daily living; marked difficulties in
maintaining social functioning; marked difficulties in maintaining concentration,
persistence, or pace; or repeated episodes of decompensation, each of extended duration.
The ALJ found that, in activities of daily living, Martinez presented mild
restrictions, and even though Martinez reported not doing household chores, yard work,
cooking, shopping, or driving, the medical evidence did not support a physical or mental
condition severe enough to prevent him from doing light work. Tr. 17. Martinez also had
moderate difficulties in social function. While he did not want to share or relate with others,
he was found to be cooperative during follow-up medical visits and did not have a history
of problems with figures of authority. Tr. 17. He also had moderate difficulties in
concentration, persistence, or pace. The ALJ reasoned that while pain could affect
concentration, Martinez watched television most of the day, and that activity in the ALJ’s
opinion required some amount of concentration. Martinez was also described as alert,
coherent, and relevant by treating physicians. Id. Lastly, Martinez experienced one episode
of decompensation, but his mental condition was promptly stabilized and there was no
evidence of a need for emergency room treatment or a long hospitalization. Tr. 18.
I am concerned with the ALJ’s findings regarding Martinez’s difficulties
maintaining social functioning because the record contains evidence that Martinez could

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15

be aggressive and hostile towards others, that he had to be medicated to stabilize his mood
and for poor impulse control, and that there might be an issue with him continuing
treatment on his own. He also testified that his wife sometimes feared him.
I am more concerned by the evidence that Martinez had been at times suicidal.
Martinez indicated in his memorandum of three instances when he had to be admitted due
to an emotional crisis, which do appear in the record. The ALJ considered one occasion
which fell on a date prior to the date last insured, and mentioned in the RFC discussion
(but does not consider in the credibility findings) one hospitalization that occurred after the
date last insured. Tr. 21. A claimant is not entitled to disability benefits unless he can
demonstrate that his disability existed prior to the expiration of his insured status. Cruz
Rivera v. Sec’y of Health & Human Servs., 818 F.2d 96, 97 (1st Cir. 1986) (per curiam)
(citations omitted). Even so, medical evidence generated after the expiration of insured
status may be considered, as it may shed light on the question of whether a claimant’s
impairments reached disabling severity before the insured period expired. Nieves-Velez v.
Comm’r of Soc. Sec., 2010 WL 174883, at *5 (D.P.R. Jan. 12, 2010) (citing Deblois v. Sec’y
of Health & Human Servs., 686 F.2d 76, 81 (1st Cir. 1982)). Nevertheless, even while
considering the instances cited by Martinez, these episodes would not fulfill the paragraph
B requirement of “repeated episodes of decompensation, each of extended duration,” which
is defined as three episodes in one year or an average of one over four months, each lasting
at least two weeks. 20 C.F.R. Part 404, Subpt. P, App. 1, § 12.00C(4). Except for one
hospitalization which lasted five days, the length of the other two are unclear in the record,
and there is no evidence that he suffered three episodes in one year. Because by regulation
Martinez would have to have evidence of repeated episodes of decompensation, and
because there is evidence that while medicated he is calm, cooperative, alert, oriented, with
no cognitive difficulties, and free of suicidal ideation, I find that there is sufficient evidence
in the record to support the ALJ’s step three finding.
Martinez argues next that the ALJ, in assessing his RFC, did not properly evaluate
his symptoms and subjective complaints of severe pain nor fully discuss the following
factors when evaluating his subjective complaints, as per Avery v. Secretary, 797 F.2d 19
(1986): (1) nature, location, onset, duration, frequency, radiation, and intensity of pain, (2)
precipitating and aggravating factors such as movement, activity, and environmental

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conditions, (3) type, dosage, effectiveness, and adverse side effects of pain medications,
(4) treatment for relief of pain, (5) functional restrictions, and (6) daily activities. Martinez
cited his testimony at the hearing to support this claim.
As part of the lengthy RFC analysis, the ALJ addressed the Avery factors, including
Martinez’s self-reported allegations of pain and limitations and longitudinal treatment
record, and found that Martinez’s determinable impairments could reasonably be expected
to cause his alleged symptoms but that his statements concerning intensity, persistence, or
functionally limiting effects of pain were not entirely credible based on the record. Tr. 1922. SSR 96-7p directs the ALJ to consider a claimant’s statements regarding pain in light
of the entire record and the factors also laid out in Avery, and to include specific credibility
findings to corroborate or discredit a claimant’s pain allegations. 1996 SSR LEXIS 4 at
*18-19.5 I note that the ALJ stated that he would discuss Martinez’s symptoms and the
physical and mental evidence in the record based on the requirements of 20 CFR 404.1529,
SSR 96-4p, and SSR 96-7p, and found that he so did.
The ALJ determined that through the date last insured, Martinez retained the RFC
to perform light work, except that he had to alternate positions between sitting and standing
every two hours. Tr. 18. The ALJ further found that despite his depression, Martinez
retained the capacity to perform unskilled, simple, and repetitive tasks that do not involve
working with the public. Id. Light work involves lifting no more than twenty pounds at a
time with frequent lifting or carrying of up to ten pounds, walking or standing up to six
hours of an eight-hour workday, and some pushing or pulling. Light work includes
sedentary work, or work that requires lifting no more than ten pounds at a time, sitting for
at least six hours out of an eight-hour work day, occasional walking and standing for no
more than about two hours a day, and good use of the hands and fingers for repetitive handfinger actions. 20 C.F.R. § 404.1567(a) & (b); SSR 83-10.
The ALJ noted that, as to Martinez’s back condition, Martinez claimed inability to
lift, crouch, bend, and walk for long periods of time or distance due to the pain he felt in
his back which would become exacerbated by these activities, and that he reported being
limited in his daily activities as a result. The SIF record showed that Martinez had
5

SSR 69-7p, which was in effect at the time of the filing of this complaint, was superseded
by SSR 16-3p effective March 16, 2016. 2016 SSR LEXIS 4.

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decreased range of motion of the lumbar spine and pain at movement, but that the treating
neurologist reported that Martinez exhibited normal strength, with no atrophy, or sensory
or reflex systems deficits. The SIF record further showed that Martinez’s symptoms
improved with injections, medications, and therapy. Tr. 21.
In my review for substantial evidence, I found that the SIF record shows that
Martinez’s physical conditions were progressively getting worse. As noted by the ALJ,
Martinez was diagnosed in 2006 with bilateral S1 radiculopathy. In 2007, treating sources
noted that Martinez presented decreased range of motion of the lumbosacral spine and pain
on palpation. He was continuously treated with physical therapy, muscle relaxants, and
pain medications. And, while in 2008 a SIF neurologist found that he no longer presented
active radiculopathy and that he had normal strength, could walk on heels and toes and
squat, and was fit to work, the ALJ did not mention that in 2009, Martinez was referred
back to the pain clinic and ultimately found in 2011 to have diminished ability to toe and
heel walk, and extend, and was discharged with partial permanent disability by the SIF. By
2013, he was referred to treatment at Centro San Cristobal for severe lumbar back pain. I
further note that there is evidence that Martinez had difficulty standing, walking, and
bending because those activities exacerbated his pain, and that he testified that he needed
to shift positions between sitting and standing. However, Martinez does not have appear to
have impairments with the use of his hands or fingers. He reported so upon applying for
disability when asked about his functions, and Dr. Cortijo did not find manipulative
limitations in the case record. So, even if Martinez were limited in his ability to perform
light work because it requires a good deal of walking, sitting or standing, it appears that he
would still able to perform at least sedentary work. The record shows that he has no hand
or finger impairments, and sedentary work does not require that he be seated for six
unbroken hours without shifting position during an eight-hour work day. Halloran v.
Barnhart, 362 F.3d 28, 33 (2d Cir. 2004).
As to mental impairments, the ALJ cited Martinez’s 2010 mental crisis, for which
he was stabilized and found to be calm, cooperative, alert, oriented, and free of suicidal
and homicidal ideas after treatment with medications and therapy from 2010 to 2011.
However, as discussed earlier, there is also evidence from INSPIRA and the Ponce School
of Medicine that from 2010 to 2013, under inpatient and outpatient treatment, while his

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18

major depressive disorder was continuously being treated with antipsychotics,
antidepressants, and mood stabilizers, his depressive mood, cognitive difficulties in
attention and concentration, and aggressiveness or hostility would sometimes be present,
for which he was advised of the importance of continuing treatment. Also, his last GAF
score of 60 suggested a moderate mental condition. The record suggests that Martinez, with
psychotherapy and medications, is able to maintain his mental condition stable, if he sticks
to the treatment plan.
I therefore find that the record, as discussed above, substantially supports the ALJ’s
RFC finding. The RFC discussion also contains numerous credibility findings when
addressing Martinez’s disability allegations and the medical evidence. Thus, I also find that
the ALJ took into account all the Avery factors as discussed in this opinion.
It is the Commissioner’s responsibility to determine issues of credibility, draw
inferences from the record evidence, and resolve conflicts in the evidence. See Ortiz, 955
F.2d at 769 (citing Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d 218, 222 (1st
Cir. 1981)); Evangelista v. Sec’y of Health & Human Servs., 826 F.2d 136, 141 (1st Cir.
1987). The review of this court is limited to assuring that the ALJ “deployed the correct
legal standards and found facts upon the proper quantum of evidence.” Roman-Roman v.
Comm’r of Soc. Sec., 114 Fed. App’x. 410, 411 (1st Cir. 2004). This court is bound to
uphold the ALJ’s findings if it is supported by substantial evidence. Id. at 411. The above
evidence in the record shows that there is substantial evidence from treating and nonexamining medical opinions to support the ALJ’s RFC finding. The function of weighing
evidence and determining if a person meets the statutory definition of disability is the
Secretary’s, 20 C.F.R. § 404.1527(d), and, as discussed in this opinion, there is substantial
evidence in the record to support the ALJ’s final determination.
CONCLUSION
For the foregoing reasons, the Commissioner’s decision is AFFIRMED.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 31st day of October, 2017.
s/ Bruce J. McGiverin
BRUCE J. MCGIVERIN
United States Magistrate Judge
.