Cancel-Pena v. Commissioner of Social Security, No. 3:2016cv01201 - Document 24 (D.P.R. 2017)
Court Description: OPINION AND ORDER: The Commissioners decision is VACATED, and this case REMANDED for further proceedings consistent with this opinion. Judgment is to be entered accordingly. Signed by US Magistrate Judge Camille L. Velez-Rive on 6/20/2017.(ari)
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Cancel-Pena v. Commissioner of Social Security Doc. 24 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO MANUEL E. CANCEL PEÑA, Plaintiff, CIVIL NO. 16-120 1 (CVR) v. NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY,1 Defendant. OPIN ION AN D ORD ER IN TROD U CTION On February 4, 20 16, Plaintiff Manuel Cancel Peña (“Plaintiff” or “Claim ant”) filed this action to obtain judicial review of the final decision of Defendant Nancy A. Berryhill, the Acting Com m issioner of Social Security (“Com m issioner” or “Defendant”), who denied his application for disability benefits (Docket No. 1).1 On February 5, 20 16, Plaintiff consented to the jurisdiction of a Magistrate J udge for all further proceedings, including the entry of judgm ent, and the case was therefore referred to the undersigned. (Docket Nos. 5, 7 and 8).2 On J une 20 15, 20 16, the Com m issioner answered the Com plaint and filed a copy of the adm inistrative record. (Docket Nos. 12 and 13). On 1 At the tim e this suit was filed, Carolyn W. Colvin was Acting Com m issioner of Social Security. On J anuary 23, 20 17, Nancy A. Berryhill becam e Acting Com m issioner of said agency. Acting Com m issioner Berryhill is thus autom atically substituted as a Defendant in this case. See Fed. R. Civ. P. 25(d). 1 42 U.S.C. Sec. 40 5(g), provides for judicial review of the final decision of the Com m issioner. “... [t]he court shall have power to enter, upon the pleadings and transcript of the record, a judgm ent without rem anding the cause for rehearing”. Section 20 5(g). 2 The government has already provided a general consent to proceed before a Magistrate J udge in all Social Security cases. Title 28 U.S.C. Section 636(b)(1)(A), (c)(1) and (c)(2); Fed.R.Civil P. 73(a). Dockets.Justia.com Am ador Vera Arocho v. Acting Com m issioner of S.S. Opinion and Order Civil No. 15-20 36 (CVR) Page No. 2 October 27, 20 16, Plaintiff filed his m em orandum of law (Docket No. 22) and on Novem ber 2, 20 16, the Com m issioner filed her m em orandum of law. (Docket No. 23). After careful review of the entire record, the Court REMANDS the present case for further proceedings consistent with this opinion. AD MIN ISTRATIVE AN D PROCED U RAL H ISTORY Plaintiff, a form er sales representative, filed an application for disability benefits with an alleged onset date of disability of October 15, 20 10 . The application was initially denied, as was the reconsideration. (Tr. pp. 115-120 , 121-124). Plaintiff then requested an adm inistrative hearing, which was held on May 16, 20 14, where Plaintiff was represented by counsel and offered testim ony regarding his alleged disabilities. (Tr. pp. 50 -92). During the hearing, a Medical Expert testified regarding Plaintiff’s condition and ailm ents, and a Vocational Expert also testified regarding possible jobs that Plaintiff could perform in the national econom y. On August 26, 20 14, the presiding Adm inistrative Law J udge (“ALJ ”) issued an opinion, finding Plaintiff was not disabled from the onset date through his last insured date. (Tr. pp. 30 -42). The ALJ m ade the following findings of fact in his decision: 1. Plaintiff m et the insured status requirem ents of the Social Security Act through Decem ber 31, 20 15. 2. Plaintiff did not engage in any substantial gainful activity since October 15, 20 10 , the alleged onset date. 3. Plaintiff had the following severe im pairm ents: status post cervical fusion, bulging disc at C3-C4, lum bar and cervical discogenic disease, cervical and Manuel E. Cancel Peña v. Acting Com m issioner of S.S. Opinion and Order Civil No. 16-120 1 (CVR) Page No. 3 lum bar degenerative disc disease, degenerative spondylosis, Diabetes Mellitus type II, hypertension and m ajor depression. 4. Plaintiff does not have an im pairm ent or com bination of im pairments that m eets or m edically equals the severity of one of the listed im pairm ents in 20 CFR Part 40 4, Subpart B, Appendix 1. 5. After careful consideration of the entire record, the ALJ found that Plaintiff had the residual functional capacity to perform less than the full range of light work defined in 20 CFR 40 4.1567 (b). Plaintiff can lift and carry 20 pounds occasionally and 10 pounds frequently, sit for 6 hours in an 8-hour workday, stand and walk for 4 hours in an 8-hour workday. He can frequently clim b ram ps and stairs and crawl. He can occasionally stoop and crouch, and never clim b ladders, scaffolds and ropes. He is also lim ited to jobs involving sim ple and repetitive tasks. 6. Plaintiff is unable to perform any past relevant work. 7. Plaintiff was born on August 20 , 1964, and was 46 years old, which is defined as a younger individual, age 18-49, on the alleged disability onset date. 8. Plaintiff has at least a high school education and is able to com m unicate in English. 9. Transferability of jobs is not m aterial to the determ ination of disability because using the Medical-Vocational Rules as a fram ework supports a Manuel E. Cancel Peña v. Acting Com m issioner of S.S. Opinion and Order Civil No. 16-120 1 (CVR) Page No. 4 finding that Plaintiff is “not disabled” whether or not Plaintiff has transferable job skills. 10 . Considering Plaintiff’s age, education, work experience, and residual functional capacity, there are jobs that exist in significant num bers in the national econom y that Plaintiff can perform . 11. Plaintiff has not been under a disability, as defined in the Social Security Act, from October 15, 20 15 through the date of this decision. The Appeals Council subsequently denied Plaintiff’s request for review, thus m aking the ALJ ’s decision the final decision of the Com m issioner, subject to review by this Court. (Tr. pp. 1-4). Plaintiff objects the ALJ ’s final decision denying him disability benefits, alleging he failed to properly assess both his physical and m ental Residual Functional Capacity (“RFC”). For purposes of this Opinion and Order, the Court focuses on the m ental RFC, insofar as it finds it to be dispositive of this case. Plaintiff asserts that the ALJ disregarded the unrebutted m edical conclusions given by Plaintiff’s treating physician regarding Plaintiff’s condition, and, thus, m ade his m ental RFC findings without any m edical support in the record. Conversely, the Com m issioner asserts there is substantial evidence to support the ALJ ’s ultim ate conclusion and his decision to afford little weight to the treating physician. STAN D ARD To establish entitlem ent to disability benefits, the burden is on the claim ant to prove disability within the m eaning of the Social Security Act. See Bowen v. Yuckert, 482 Manuel E. Cancel Peña v. Acting Com m issioner of S.S. Opinion and Order Civil No. 16-120 1 (CVR) Page No. 5 U.S. 137, 146-47, n. 5 (1987). It is well settled law that a claim ant is disabled under the Act if he/ she is unable “to engage in any substantial gainful activity by reason of any m edically determ inable physical or m ental impairm ent 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 m onths.” 42 U.S.C. § 423(d)(1)(a). A claim ant is unable to engage in any substantial gainful activity when the claim ant is not only unable to do his/ her previous work but, considering age, education, and work experience, cannot engage in any other kind of substantial gainful work which exists in the national econom y, regardless of whether such work exists in the im m ediate area in which he/ she lives, or whether a specific job vacancy exists, or whether he/ she would be hired if he/ she applied for work. 42 U.S.C. § 423(d)(2)(a). In m aking a determ ination as to whether a claim ant is disabled, all of the evidence in the record m ust be considered. 20 C.F.R. § 40 4.1520 (a). A five-step sequential evaluation process m ust be applied in m aking a final determ ination as to whether or not a claim ant is disabled. 20 C.F.R. §§ 40 4.1520 ; see Bowen, 482 U.S. at 140 -42; Gooderm ote v. Sec’y of Health & Hum an Servs., 690 F.2d 5, 6-7 (1st Cir. 1982). At step one, the ALJ determines whether the claim ant is engaged in “substantial gainful activity.” If he/ she is, disability benefits are denied. §§ 40 4.1520 (b). If not, the decision-m aker proceeds to step two, where he or she m ust determ ine whether the claim ant has a m edically severe im pairm ent or com bination of im pairm ents. See §§ 40 4.1520 (c). If the claim ant does not have a severe im pairm ent or com bination of im pairm ents, the disability claim is denied. Manuel E. Cancel Peña v. Acting Com m issioner of S.S. Opinion and Order Civil No. 16-120 1 (CVR) Page No. 6 If the im pairm ent or com bination of im pairm ents is severe, the evaluation proceeds to the third step, in order to determ ine whether the im pairm ent or com bination of im pairm ents is equivalent to one of a num ber of listed im pairm ents that the Com m issioner acknowledges are so severe as to preclude substantial gainful activity. §§ 40 4.1520 (d); 20 C.F.R. pt. 40 4, subpt. P, App. 1. If the im pairm ent m eets or equals one of the listed im pairments, the claim ant is conclusively presum ed to be disabled. If the im pairm ent is not one that is conclusively presum ed to be disabling, the evaluation proceeds to the fourth step through which the ALJ determ ines whether the im pairm ent prevents the claim ant from perform ing the work he/ she has perform ed in the past. If the claim ant is able to perform his/ her previous work, he/ she is not disabled. §§ 40 4.1520 (e). Once the ALJ determ ines that the claim ant cannot perform his or her form er kind of work, then the fifth and final step of the process dem ands a determ ination of whether claim ant is able to perform other work in the national econom y in view of the residual functional capacity, as well as age, education, and work experience. The claim ant would be entitled to disability benefits only if he/ she is not able to perform any other work whatsoever. §§ 40 4.1520 (f). In the case at bar, the ALJ determ ined at step 5 that Plaintiff was not disabled and that there were jobs in the national econom y that he could perform in view of his residual functional capacity, age, education, and past work experiences. Manuel E. Cancel Peña v. Acting Com m issioner of S.S. Opinion and Order Civil No. 16-120 1 (CVR) Page No. 7 LEGAL AN ALYSIS The Court’s review in this type of case is lim ited to determ ine whether the ALJ deployed the proper legal standards and found facts upon the proper quantum of evidence. See Manso-Pizarro v. Sec’y of Health and Hum an Servs, 76 F.3d 15, 16 (1st Cir. 1996). The ALJ ’s findings of fact are conclusive when supported by substantial evidence, 42 U.S.C. § 40 5(g), but are not conclusive when derived by ignoring evidence, m isapplying the law, or judging m atters entrusted to experts. Nguyen v. Chater, 172 F.3d 31 (1st Cir. 1999). Substantial evidence is “m ore than a m ere scintilla and such, as a reasonable m ind m ight accept as adequate to support a conclusion”. Richardson v. Perales, 40 2 U.S. 389 (1971), quoting Consolidated Edison Co. v. N.L.R.B., 30 5 U.S. 197 (1938). The court will set aside a denial of benefits only if it is not supported by substantial evidence or if it is based on a legal error. See Seavey v. Barnhart, 276 F.3d 1, 9 (1st Cir. 20 0 1); Rodríguez v. Sec’y of Health and Hum an Servs, 647 F.2d 218, 222 (1st Cir. 1981). Substantial evidence is som ething less than a preponderance of the evidence, so the possibility of drawing two inconsistent conclusions from the evidence does not prevent an adm inistrative agency’s finding from being supported by substantial evidence. Gottier v. Colvin, No. 15-CV-355-SM, 20 16 WL 473440 2, at *1 (D.N.H. Sept. 12, 20 16); see also Richardson v. Perales, 40 2 U.S. 389, 40 1 (1971). It is therefore im portant to note that courts m ust give deference to the ALJ ’s interpretation of the m edical record and although an ALJ is not at liberty to ignore m edical evidence or substitute his own views for uncontroverted m edical opinion, upon the existence of conflicts in the m edical record from the report and sources, it is for the ALJ and not this Court to resolve them . See Manuel E. Cancel Peña v. Acting Com m issioner of S.S. Opinion and Order Civil No. 16-120 1 (CVR) Page No. 8 Nguyen v. Chater, 172 F.3d at 31; Lizotte v. Sec’y of Health & Hum an Servs., 654 F.2d 127 (1st Cir. 1981) (the resolutions of conflicts in the evidence and the determ ination of the ultim ate question of disability is for him [the ALJ ], not for the doctors or for the courts); see also Rodríguez v. Sec’y of Health and Hum an Servs., 647 F.2d at 222. This court's review of the ALJ ’s decision is, therefore, both lim ited and deferential. In the present case, Plaintiff’s m ain argum ent is that the ALJ failed to give proper weight to Plaintiff’s m ental treating physician’s reports and conclusions and thus, he erred in determ ining his m ental residual functional capacity. The Court agrees. The ALJ decided to give the notes and opinion of Plaintiff’s treating physician, Dr. J aphet Gaztam bide Montes (“Dr. Gaztam bide”), little or no weight, opining that the lim itations Dr. Gaztam bide found were not explained and were allegedly inconsistent with his own progress notes. (Tr. p. 38). The ALJ based this conclusion on the fact that Plaintiff’s GAF 2 scores ranged between 50 and 60 (ranging from serious to more m ild sym ptom s) and on two exam inations by agency consulting physician Dr. Fernando Torres-Santiago (“Dr. Torres”) which allegedly showed Plaintiff’s sym ptom s not com patible with Dr. Gaztam bide’s conclusions. Because of this, the Com m issioner avers that evidence in the 2 The Global Assessm ent of Functioning (GAF) is a num eric scale (0 through 10 0 ) used by m ental health clinicians and physicians to rate subjectively the social, occupational, and psychological functioning of adults, e.g., how well or adaptively one is m eeting various problem s-in-living. The score is often given as a range. Since 20 13, the GAF is no longer used in the DSM-5. A score of 41-50 denotes serious sym ptom s (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious im pairm ent in social, occupational, or school functioning (e.g., no friends, unable to keep a job, cannot work). A score of 51-60 denotes m oderate sym ptom s (e.g., flat affect and circum locutory speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Defendant alleges that these GAF scores present m ild to m oderate sym ptom s. While that m ay be true for a GAF of 51-60 , it is not the case for a GAF score of 41-50 . Manuel E. Cancel Peña v. Acting Com m issioner of S.S. Opinion and Order Civil No. 16-120 1 (CVR) Page No. 9 present record was sufficient for the ALJ to reach a conclusion of not disabled. The Court is unconvinced. The Com m issioner first contends that Dr. Gaztam bide’s m ental Residual Functional Capacity Assessm ent (“RFCA”) should not be considered because it applies from Decem ber 20 12 through August 20 13. Although correct, Dr. Gaztam bide treated Plaintiff for several m onths past the August, 20 13 RFC date, and his conclusions regarding Plaintiff’s condition do not differ. Generally, the ALJ gives m ore weight to m edical opinions from a claim ant’s treating sources, because “these sources are likely to be the m edical professionals m ost able to provide a detailed, longitudinal picture of the claim ant's m edical impairm ents.” 20 C.F.R. § 40 4.1527(d)(2). Regulations state that “the longer a treating source has treated you and the m ore tim es you have been seen by a treating source, the m ore weight we will give to the source's m edical opinion. When the treating source has seen you a num ber of tim es and long enough to have obtained a longitudinal picture of your im pairm ent, we will give the m edical source’s m edical opinion m ore weight than we would give it if it were from a nontreating source”. 20 C.F.R. § 40 4.1527(c)(2)(i). The ALJ will therefore give controlling weight to the opinions of treating physicians if they are well-supported by m edically acceptable clinical and laboratory diagnostic techniques and not inconsistent with other substantial evidence in the record. Berríos-Vélez v. Barnhart, 40 2 F. Supp. 2d 386, 391 (D.P.R. 20 0 5). Generally, the m ore consistent an opinion is with the record as a whole, the m ore weight is given to it. 20 C.F.R. § Manuel E. Cancel Peña v. Acting Com m issioner of S.S. Opinion and Order Civil No. 16-120 1 (CVR) Page No. 10 40 4.1527(c)(4); Bouvier v. Astrue, 923 F.Supp.2d 336, 347– 48 (1st Cir. 20 13) ; AgostiniCisco v. Com m ’r of Soc. Sec., 31 F. Supp. 3d 342, 348 (D.P.R. 20 14). Office treatm ent notes by Dr. Gaztam bide from December, 20 12 through August 20 13, show Plaintiff well-groom ed and cooperative, yet depressed and with cognitive difficulties in concentration, insight and judgm ent and with slow thought and speech. (Tr. pp. 471-480 ). Dr. Gaztam bide gave Plaintiff GAF of 55 at the initial visit, a GAF of 50 four times, and a GAF of 60 once. The RFCA perform ed by Dr. Gaztam bide dated August 15, 20 13 found Plaintiff extrem ely lim ited 6 out of 20 instances and m arkedly lim ited in 11 of 20 . (Tr. p. 486490 ). Dr. Gaztam bide concluded that “the physical and m ental sym ptom s cause clinically severe im pairm ent in social occupational and other areas of functioning”. (Tr. p. 490 ). Post-RFCA assessm ent notes from visits to Dr. Gaztam bide’s office from Septem ber, 20 13 through April 23, 20 14 found Plaintiff with a GAF ranging from 51 to 55, and with depressed m ood, som etim es retarded m otor activity, and cognitive difficulties in attention, concentration and insight. (Tr. p. 50 3). These findings do not change over the tim e span Dr. Gaztam bide saw Plaintiff in his office or after he issued the RFC. His findings are in line with the GAF scores. The Com m issioner then bases his argum ent on the fact that “Dr. Torres-Santiago provided two m ental status exam ination (sic), already, as part of his com prehensive exam inations…” and this provided the extra evidence on which the ALJ based his ultim ate opinion. (Docket No. 23, p. 15). Yet, what Dr. Torres perform ed was an “Internist Cardiovascular Exam ination” in J une, 20 12 and an “Internist Evaluation” in J une, 20 13. Manuel E. Cancel Peña v. Acting Com m issioner of S.S. Opinion and Order Civil No. 16-120 1 (CVR) Page No. 11 The only m ental com ponent of these exam inations seem s to be where the doctor gathered the relevant m edical history directly from Plaintiff. In 20 12, the report stated “[h]e denies m ental illness or m em ory problem s”, and in 20 13, the report stated “[h]e referred being depressed after em ploym ent loss”. Dr. Torres perform ed a num ber of physical tests on Plaintiff, including range of m otion, gait, and hand function, and provided details as to the different tests perform ed and the results. (Tr. p. 442-451 and 458-467). Markedly absent from the record are any m ental tests perform ed by Dr. Torres. Therefore, it seem s that Dr. Torres did not perform these m ental tests on Plaintiff. 3 Consequently, Plaintiff’s m ental record only has Dr. Gaztam bide’s notes and findings (which the ALJ gave little or no weight to) and the ALJ ’s personal assessm ent of Plaintiff’s testim ony and dem eanor at the hearing.4 Furtherm ore, the consulting agency physicians, who only reviewed the record in this case and did not exam ine Plaintiff, deserve less weight, as they also had no evidence upon which to m ake a finding of not im paired. Bouvier v. Astrue, 923 F. Supp. 2d 336, 347 (D.R.I. 20 13) (“All things being equal, however, a treating doctor’s report m ay be entitled to ‘greater’ weight than an inconsistent non-treating source.”). Therefore, when the Com m issioner states that the ALJ had sufficient evidence from which to conclude Plaintiff was not disabled, the ALJ really only had his own assessm ent of Plaintiff’s dem eanor and testim ony at the hearing to buttress his conclusion. 3 The agency consulting physicians review of the record likewise listed Dr. Torres’ exam ination of Plaintiff under the label of “physical”, not “mental”. Tr. p. 220 . 4 Interestingly, D. Torres concluded both his evaluations saying Plaintiff “ was unable to do regular work”. Tr. pp. 445 & 461. Although the ALJ gives weight to Dr. Torres’ exam ination and attempts to use it it to bolster his ultim ate conclusion that Plaintiff is not disabled, he does not accept the Dr. Torres’ conclusion that Plaintiff cannot work. Manuel E. Cancel Peña v. Acting Com m issioner of S.S. Opinion and Order Civil No. 16-120 1 (CVR) Page No. 12 It has been well established that an ALJ is “not qualified to interpret raw m edical data in functional term s” and an ALJ ’s RFC assessm ent cannot stand when “no m edical opinion support[s] the determ ination.” Nguyen v. Chater, 172 F.3d at 35 (ALJ was not at liberty to ignore m edical evidence or substitute his own views for uncontroverted m edical opinion); Rose v. Shalala, 34 F.3d 13, 18 (1st Cir.1994). The ALJ ’s personal perception of Plaintiff’s capacities, alone, is insufficient evidence in which to base a conclusive finding, more so because the ALJ is a lay person and, therefore, not qualified to m ake these kinds of determ inations without evidentiary m edical support. Thus, the ALJ was ill-equipped to conclude, as he did in this case, that Plaintiff was not disabled when he did not consider the only m edical opinion backing up that conclusion on the record. It is im portant to rem em ber that a social security claim ant need not be com pletely disabled from all activities, per se, in order to be found disabled for purpose of Social Security benefits. See, e.g., Balsam o v. Chater, 142 F.3d 75, 81– 82 (2d Cir.1998); Baum garten v. Chater, 75 F.3d 366, 369 (8th Cir.1996); Sm ith v. Califano, 637 F.2d 968, 971 (3d Cir.1981). A claim ant need not be an invalid to be disabled for purposes of social security benefits, and activities in pursuit of im portant goals such as household tasks, done while enduring pain, do not necessarily underm ine a finding of disability. Balsam o, 142 F.3d at 81; Rallis v. Barnhart, No. CIV. 0 1-30 3, 20 0 2 WL 482565, at *6 (D.N.H. Mar. 29, 20 0 2). Therefore, the ALJ ’s findings that Plaintiff’s concentration was unim paired during the hearing and that he could he could talk on the phone, am ong others, are not dispositive of this issue and certainly cannot, by them selves, be considered substantial evidence in which to base a disability decision on. Manuel E. Cancel Peña v. Acting Com m issioner of S.S. Opinion and Order Civil No. 16-120 1 (CVR) Page No. 13 Although it has been well established that the record m ay support m ore than one conclusion, the Court m ust uphold the Secretary “if a reasonable m ind, reviewing the evidence in the record as a whole, could accept it as adequate to support his conclusion.” Ortíz v. Sec’y of Health and Hum an Servs., 955 F.2d 765, 769 (1st Cir. 1991) (quoting Rodríguez, 647 F.2d at 222); see also, Richardson v. Perales, 40 2 U.S. at 40 1. Where the facts perm it diverse inferences, the Court m ust affirm the Secretary even if we m ight have reached a different result. Rodríguez Pagán v. Sec’y of Health and Hum an Servs., 819 F.2d 1, 3 (1st Cir. 1987); Lizotte, 654 F.2d at 128. But where, as here, the ultim ate conclusion is unsupported by substantial evidence in the record as a whole, the Court m ust reverse the Com m issioner’s conclusion. The record contains no evidence of Plaintiff’s m ental capacity except the treating physician’s treatm ent notes, which the ALJ refused to give any weight to, thus rendering the record hollow in this area. The ALJ ’s personal perception of Plaintiff at the hearing is insufficient to base a final capacity determ ination. In light of the above, the Court finds that the ultim ate conclusion of not disabled is not supported by substantial evidence in the record as a whole. CON CLU SION For the reasons above discussed, this United States Magistrate J udge finds that substantial evidence does not support of the Com m issioner’s decision in the present case. Therefore, the Com m issioner’s decision is VACATED, and this case REMANDED for further proceedings consistent with this opinion. J udgm ent is to be entered accordingly. Manuel E. Cancel Peña v. Acting Com m issioner of S.S. Opinion and Order Civil No. 16-120 1 (CVR) Page No. 14 IT IS SO ORDERED. In San J uan, Puerto Rico, on this 20 th day of J une, 20 17. S/ CAMILLE L. VELEZ-RIVE CAMILLE L. VELEZ RIVE UNITED STATES MAGISTRATE J UDGE
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