Rosario v. Comm'r of Soc. Sec.

THELMA ROSARIO, Petitioner, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

Civil No. 19-1413 (BJM)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

March 26, 2021

OPINION AND ORDER

Thelma Rosario ("Rosario") seeks review of the Social Security Administration Commissioner's ("the Commissioner's") finding that she is not entitled to disability benefits under the Social Security Act ("the Act"), 42 U.S.C. § 423. Rosario contends that the administrative law judge's ("ALJ") decision must be reversed because (1) the ALJ improperly weighed the opinion evidence in assessing her mental residual functional capacity ("RFC"), (2) the ALJ failed to provide a function-by-function assessment when determining her RFC, and (3) the ALJ failed to find her disabled under the Commissioner's Medical-Vocational Guidelines ("the Grid"). Docket No. ("Dkt.") 15. The Commissioner opposed. Dkt. 16. This case is before me by consent of the parties. Dkt. 5, 9. For the reasons set forth below, the Commissioner's decision is AFFIRMED.

STANDARD OF REVIEW

After reviewing the pleadings and record transcript, the court has "the power to enter a judgment affirming, modifying, or reversing the decision of the Commissioner." 20 U.S.C. § 405(g). The court's review is limited to determining whether the Commissioner and his 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—and means only—'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)) (internal citation omitted). The court "must affirm the [Commissioner's] resolution, even if the record arguably could justify a different 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).

The Commissioner employs 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). At 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 ALJ assesses the claimant's 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 can 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 can perform other work 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. Rosario 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

The following facts are drawn from the transcript ("Tr.") of the record of proceedings.

Rosario was born on January 7, 1962. Tr. 467. She completed her GED and earned a living by cleaning hospitals, Tr. 31, 46, 471, but she left her job and moved to Puerto Rico when her mother needed her assistance. Tr. 47. Rosario's mother had undergone knee surgery, and Rosario planned to take care of her during her recovery. Id. After moving to Puerto Rico, however, Rosario could not find another job. Id. She fell into a depression and developed anxiety, alongside various other ailments, including chronic back and neck pain. Tr. 42, 47-48.

On May 15, 2013, Rosario applied for disability benefits, claiming an onset date of August 29, 2010. Tr. 21. The Commissioner denied Rosario's claim initially, on reconsideration, and after a hearing before an ALJ. Id. The record before the Commissioner, which included medical evidence and Rosario's self-reports, is summarized below.

In a function report dated June 18, 2013, Rosario explained that pain and depression prevented her from performing any work. Tr. 113. She reported limitations related to lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, climbing stairs, using hands, memory, completing tasks, and following instructions. Tr. 118. She also stated that she could not concentrate and was easily distracted. Id. Rosario reported that she could not lift more than ten pounds and that she had difficulty dressing, bathing, and caring for her hair because she struggled to raise her arms above her shoulders and could be easily hurt. Tr. 114, 118. She also needed someone to come to her home to help with all the chores. Tr. 115. Although Rosario did not require reminders to take care of her personal needs, she needed reminders to take medications. Tr. 114-15. She could prepare her own simple meals, such as sandwiches, cereal, and frozen meals, but she could not prepare complicated meals as she once did. Tr. 115. Rosario also reported that she could not go out alone and could not drive, though she could get to medical appointments by public transport or if someone gives her a ride. Tr. 116. She could shop for quick items in stores, though it would take her a lot of time. Id. Although she could pay her bills and count change, she could not manage a savings account or use a checkbook. Id. Rosario also reported that she did not spend time with others, and she had problems getting along with family, friends, and neighbors because she could not tolerate being spoken to about the same things all the time. Tr. 117-18. She also stated that she was once fired from a hospital because she could not stand the pressure from other people. Tr. 119.

Medical records show that Rosario sought treatment for chronic back and cervical pain, varicose veins, and other ailments. From November 1, 2012 to November 10, 2015, Rosario's primary care provider, Dr. Betzy Acevedo Rodriguez ("Dr. Acevedo") treated Rosario for hyperlipidemia; muscle spasm; pain in the joints, neck, shoulder, and low back; insomnia; urinary tract infection; and varicose veins; and she recorded diagnoses of depression and anxiety. Tr. 177-96, 587-615, 620-52, 691-92, 695-96, 704, 709. Treatment records show that Rosario frequently suffered muscle spasm in the neck, joint swelling, joint pain, and back pain, Tr. 589, 591-92, 595-96, 599, 609, 612, 621, 627-28, 633, 637, 642, 647-48, 650, and at times Dr. Acevedo noted pain facies, Tr. 639, 643. Typically, Rosario was negative for signs of neurological problems such as muscle weakness, memory loss, tremors, or paralysis, Tr. 588, 592, 595-96, 599, 602-03, 609, 612, 621-22, 627, 634, 637, 642-43, 647, 651, though she occasionally had muscle weakness, Tr. 253, 609, 694. Her gait was normal. Tr. 592, 596, 603, 607, 609, 622, 628, 639, 643, 648, 651. Records show that Rosario also suffered from sleep problems, Tr. 605, 620, 626, 632, 637, as well as leg pain due to varicose veins and ankle edema. Tr. 603, 606, 621, 628, 633, 639. Dr. Acevedo prescribed Adipex, Dexamethasone, Diclofenac, Indocin, Keflex, Ketorolac, Neurontin,...