Torres-Roldan v. Commissioner of Social Security, No. 3:2019cv01625 - Document 23 (D.P.R. 2021)
Court Description: OPINION AND ORDER. Judgment shall be entered accordingly. Signed by US Magistrate Judge Camille L. Velez-Rive on 2/10/2021.(ari)
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Torres-Roldan v. Commissioner of Social Security Doc. 23 Case 3:19-cv-01625-CVR Document 23 Filed 02/10/21 Page 1 of 17 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO LUZ MINERVA TORRES ROLDAN, Plain tiff, v. CIVIL NO. 19-1625 (CVR) ANDREW SAUL, Com m issioner of Social Security, Defen dant. OPIN ION AN D ORD ER IN TROD U CTION On J un e 28, 20 19, Plaintiff Luz Minerva Torres Roldán (“Plain tiff”) filed th e presen t case challenging th e denial of her petition for Social Secu rity disability ben efits by Defen dant Andrew Saul, Com m issioner of Social Security (“Com m ission er” or “Defen dan t”). (Docket No. 1). 1 Plaintiff th en consented to proceed before a Magistrate J udge an d the presiding District J udge referred this case to the undersigned for all fu rth er proceedin gs, including the entry of judgm en t. (Docket Nos. 3 and 6). 2 On October 30 , 20 19, th e Com m issioner answered the Com plaint and th ereafter filed a copy of the adm inistrative record. (Docket Nos. 10 and 13). On April 29, 20 20 , Plain tiff filed h er m em oran dum of law (Docket No. 20 ) and on J une 5, 20 20 , the Com m issioner filed his m em oran dum of law. (Docket No. 22). 1 42 U.S.C. Sec. 40 5(g), provides for judicial review of the final decision of the Commission er. “... [t]he court shall have power to enter, upon the pleadings and transcript of the record, a judgment without remanding the cause for rehearing”. Section 20 5(g). 2 The government has provided a general consent to proceed before a Magistrate J udge in all Social Security cases. 28 U.S.C. section 636(b)(1)(A), (c)(1) and (c)(2); Fed. R. Civ. P. 73(a). Dockets.Justia.com Case 3:19-cv-01625-CVR Document 23 Filed 02/10/21 Page 2 of 17 Luz Minerva Torres Roldán v. Andrew Saul Opinion and Order Civil No. 19-1625 (CVR) Page No. 2 After careful review of the entire record, th e Court AFFIRMS the Com m ission er’s decision . AD MIN ISTRATIVE AN D PROCED U RAL H ISTORY Plaintiff, a form er accounts payable clerk, auditor an d accountant, filed an application for disability benefits with an alleged onset date of disability of April 30 , 20 15. Th e application was initially denied, as was the recon sideration . (Tr. pp. 69-72 an d 7375). Plaintiff th en requested an administrative hearing before an Adm inistrative Law J udge (“ALJ ”) wh ich was h eld on May 22, 20 18. Plain tiff was presen t with counsel and testified regarding her claim s. (Tr. pp. 43-68). Testim ony was also heard from a Vocation al Expert (“VE”) regarding th e kinds of jobs that Plaintiff could perform despite h er ailm ents. Id. The ALJ found that there was insufficien t in form ation abou t Plain tiff’s m ental condition and how it affected her oth er physical lim itation s. Thus, the ALJ arranged for Plaintiff to be seen by a consulting physician before ren derin g h er decision . 3 On Decem ber 5, 20 18, the ALJ issued an opinion finding Plain tiff was not disabled from th e onset date th rou gh h er last insured date. (Tr. pp. 24-35). As part of th e ALJ ’s fact-fin din g responsibilities, she m ade the following findings of fact in this case: 1. Plaintiff m et the insured status requirem ents of th e Social Security Act through Decem ber 31, 20 20 . 3 On J une 28 , 20 18 , consulting physician Dr. Pedro González Vega (“Dr. González”) evaluated Plaintiff. (Tr. pp. 217225). Case 3:19-cv-01625-CVR Document 23 Filed 02/10/21 Page 3 of 17 Luz Minerva Torres Roldán v. Andrew Saul Opinion and Order Civil No. 19-1625 (CVR) Page No. 3 2. Plaintiff did not engage in any substan tial gainful activity since the alleged onset date of April 30 , 20 15. 3. Through th e date last insured, Plaintiff had th e followin g severe im pairm ents: bilateral carpal tunnel syndrom e, disorders of th e spine an d obesity. 4. Plain tiff did not have an im pairm ent or com bination of im pairm en ts that m et or m edically equaled the severity of one of the listed im pairm en ts in 20 CFR part 40 4, Su bpart P, Appendix 1. 5. Plaintiff had the residual functional capacity (“RFC”) to perform light work as defined in 20 CFR 40 4.1567(b), except: she cou ld lift and/ or carry no m ore th an 20 pou n ds occasionally and 10 pounds frequently. In an eighthour workday, she could sit for six hours and stand or walk n o m ore th an fou r h ou rs each . Sh e could also push or pull as m u ch as sh e could lift or carry. She could frequently: reach overhead and in all others bilaterally; handle, finger and feel bilaterally; an d balance an d occasionally stoop, kn eel, crouch , crawl and clim b ram ps and stairs, bu t could never clim b ladders, ropes or scaffolds. She could tolerate occasion al exposure to working at unprotected heights or with m oving m echan ical parts. Lastly, she could only occasionally operate a m otor vehicle in th e work settin g. 6. Plaintiff was capable of perform ing past relevan t work as an accounts payable clerk, au ditor an d accountant. This work did n ot requ ire th e perform ance of work-related activities precluded by Plain tiff’s RFC. Case 3:19-cv-01625-CVR Document 23 Filed 02/10/21 Page 4 of 17 Luz Minerva Torres Roldán v. Andrew Saul Opinion and Order Civil No. 19-1625 (CVR) Page No. 4 8. Plaintiff was not under a disability, as defined in the Social Security Act, from April 30 , 20 15 th rough th e date of the decision. Th e Appeals Council subsequen tly denied Plaintiff’s requ est for review, thus m akin g th e ALJ ’s decision the final decision of the Com m ission er which is subject to review by this Court. (Tr. pp. 1-4). Plaintiff objects the ALJ ’s final decision denying h er disability ben efits allegin g on ly th at th e ALJ failed to properly evaluate her m ental condition when sh e found it was n ot severe in n ature. 4 The Com m issioner disagrees. 5 STAN D ARD To establish entitlem ent to disability benefits, th e burden is on the claim an t to prove disability with in th e m eanin g of the Social Security Act. See Bowen v. Yuckert, 48 2 U.S. 137, 146-47, 10 7 S.Ct. 2287, 2294 (1987). It is well settled law th at a claim an t is disabled u nder the Act if he/ she is unable “to engage in any substantial gainful activity by reason of an y m edically determ inable physical or m ental im pairm ent which can be expected to result in death or which has lasted or can be expected to last for a con tinuous period of not less than 12 m on ths.” 42 U.S.C. § 423(d)(1)(a). A claim ant is unable to en gage in any substantial gainfu l activity when the claim ant is not only unable to do 4 Plaintiff only challenged the ALJ ’s conclusion about her mental condition. As such, the Court does not disturb the ALJ ’s findings regarding her physical ailments. However, even if the Court were to find that Plaintiff’s mental condition was severe, she would still have to prove this condition by itself was sufficiently incapacitating to render her disabled without any consideration of her physical RFC. 5 The Court must mention some uncharacteristic mistakes found in the Commissioner’s brief which included the following, for example: erroneous page citations (p. 2, the hearing); stating that ALJ Anavitarte presided over the hearing when she only wrote the opinion (p. 2); referring to Plaintiff as “he” instead of “she” (pp. 1 and 5); and stating that the ALJ found Plaintiff could not return to her past work at step four when the opposite finding was in fact made (p. 5). This is uncommon for the Commissioner and the Court expects more attention to detail in the future. Case 3:19-cv-01625-CVR Document 23 Filed 02/10/21 Page 5 of 17 Luz Minerva Torres Roldán v. Andrew Saul Opinion and Order Civil No. 19-1625 (CVR) Page No. 5 his/ her previous work but, considering age, education, and work experien ce, can n ot en gage in an y oth er kin d of su bstan tial 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 wh eth er 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, a five-step sequ en tial evalu ation process must be applied in m aking a final determ ination . 20 C.F.R. § 40 4.1520 ; see Bowen , 482 U.S. at 140 -42; Gooderm ote v. Sec’y of Health & Hu m an Servs., 690 F.2d 5, 6-7 (1st Cir. 1982). At step one, the ALJ determ ines whether th e claim an t is en gaged in “substantial gainful activity.” If he/ sh e is, disability ben efits are den ied. § 40 4.1520 (b). If not, the decision-m aker proceeds to step two, where h e or sh e m u st determ ine whether the claim ant has a m edically severe im pairm en t or com bin ation of impairm en ts. See § 40 4.1520 (c). If th e claim an t does n ot h ave a severe im pairm ent or com bin ation of impairm ents, the disability claim is denied. If th e im pairm ent or com bin ation of im pairm ents is severe, th e evalu ation proceeds to the third step, in order to determ ine wh ether the im pairm en t or com bination of im pairm ents is equivalen t to one of a num ber of listed im pairm en ts that the Com m issioner acknowledges are so severe as to preclude substan tial gain ful activity. § 40 4.1520 (d); 20 C.F.R. pt. 40 4, Su bpt. P, App. 1. If the im pairm ent m eets or equals one of the listed im pairm ents, th e claim ant is conclusively presum ed to be disabled. If the im pairm ent is n ot on e th at is conclusively presum ed to be disablin g, th e evalu ation proceeds to the fourth step throu gh which the ALJ determ ines whether the im pairm en t Case 3:19-cv-01625-CVR Document 23 Filed 02/10/21 Page 6 of 17 Luz Minerva Torres Roldán v. Andrew Saul Opinion and Order Civil No. 19-1625 (CVR) Page No. 6 preven ts the claim ant from perform ing the work he/ she has perform ed in the past. If th e claim ant is able to perform his/ her previous work, he/ she is not disabled. § 40 4.1520 (e). Through each of these steps, the burden rem ains on the claim an t to establish and evidence h er disability. On ce the ALJ determ ines th at the claim ant cannot perform h is or h er form er kin d of work, in th e fifth and final step of the process, th e burden shifts to the Com m ission er, an d dem ands a determ ination of whether claim ant is able to perform oth er work in th e n ation al econom y in view of the residual functional capacity, as well as age, education , an d work experien ce. The claim an t would be entitled to disability ben efits on ly if he/ sh e is n ot able to perform any other work whatsoever. § 40 4.1520 (f). In the case at bar, the ALJ determ ined at step two th at Plain tiff h ad several severe physical im pairm ents, bu t n o m ental im pairm ent, and at step th ree, th at those im pairm ents were not equivalent to any listed im pairm ent. The ALJ then found at step fou r th at Plain tiff could perform at least one of her previous jobs as an accounts payable clerk, auditor and/ or an accountant, and concluded Plaintiff was n ot disabled. LEGAL AN ALYSIS Th e Court is authorized under 42 U.S.C. § 40 5(g) to review the pleadings subm itted by th e parties and the adm inistrative record and enter a judgm en t either affirm ing, m odifyin g, or reversin g th e fin al decision of the Com m ission er. Th at review is lim ited, h owever, “to determ ining whether the [ALJ ] used the proper legal standards and foun d facts [based] upon the proper quan tum of eviden ce.” Ward v. Com m ’r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 20 0 0 ). Th e Court m ust defer to the ALJ ’s fin din gs of fact, as lon g Case 3:19-cv-01625-CVR Document 23 Filed 02/10/21 Page 7 of 17 Luz Minerva Torres Roldán v. Andrew Saul Opinion and Order Civil No. 19-1625 (CVR) Page No. 7 as th ose findings are supported by substantial eviden ce. Id. Substantial evidence exists “if a reasonable m ind, reviewing the evidence in the record as a whole, could accept it as adequ ate to support his con clu sion.” Irlanda Ortíz v. Sec’y of Health & Hum an Servs., 955 F.2d 765, 769 (1st Cir. 1991) (quoting Rodríguez v. Sec’y of Health & Hu m an Servs., 647 F.2d 218, 222 (1st Cir. 1981). In other words, in order to succeed, a claim an t would h ave to establish that n o other reasonable fact finder would exam ine the eviden ce an d con clu de as th e ALJ did. If the findings and conclusions are reached by “ign orin g eviden ce, m isapplying the law, or judging m atters entrusted to experts,” however, th en th ey are not con clusive and must be reversed. Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999). It is important to n ote that “the drawing of perm issible inferen ce from eviden tiary facts are the prim e responsibility of the Com m issioner, and the resolution of con flicts in th e eviden ce and the determ ination of the ultim ate question of disability is for h im , n ot for th e doctors or for th e courts.” Purdy v. Berryhill, 887 F.3d 7, 13 (1st Cir. 20 18), Ngu yen , 172 F.3d at 31. Thus, th is Court will set aside a denial of ben efits on ly if it is n ot su pported by substantial evidence or if it is based on a legal error. Seavey v. Barn h art, 276 F.3d 1, 9 (1st Cir. 20 0 1); Rodríguez, 647 F.2d at 222. Plaintiff only challenges the ALJ ’s conclusions abou t her m en tal ailm en t argu in g th e ALJ erred at step two when sh e found her m ental condition was not severe. Plain tiff argues th at the ALJ failed to consider certain eviden ce and, thus, the conclusion about h er m en tal con dition was n ot based on substantial evidence. Case 3:19-cv-01625-CVR Document 23 Filed 02/10/21 Page 8 of 17 Luz Minerva Torres Roldán v. Andrew Saul Opinion and Order Civil No. 19-1625 (CVR) Page No. 8 The Com m ission er con ten ds Plaintiff was unable to show that h er m en tal con dition had m ore than a m inim al effect on her ability to work, wh ich in tu rn resulted in n o m ore th an “m ild” lim itation in any of the functional areas of th e paragraph B criteria at step two. He further avers th at her condition did n ot last for a con tinuous period of at least 12 m on th s as required under 20 C.F.R. §§ 416.90 5(a), 416.920 (c) and Social Secu rity Regu lation 85-28. As such , there was substantial eviden ce in the record to uphold the ALJ ’s conclusion th at Plaintiff’s m ental con dition was not severe. Plaintiff’s covered period ran from the alleged onset date of April 30 , 20 15 th rou gh Decem ber 31, 20 20 . Therefore, Plaintiff had to establish that she becam e disabled between th ose two dates. Plain tiff’s m en tal con dition developed after she had already applied for benefits and there was little record eviden ce, besides her few visits to h er treatin g psychiatrist and one brief hospitalization , to buttress her allegation s of an in capacitating m en tal condition . For this reason , during the hearing the ALJ ordered an evalu ation of Plaintiff by consulting physician Dr. González which occu rred on J une 20 18. Th erefore, the totality of th e relevant evidence available for the ALJ to determ ine the degree of Plaintiff’s m ental im pairm ent was Plaintiff’s record with treatin g ph ysician Dr. Edelm iro Rodríguez (“Dr. Rodríguez”), her adm ission record at Hospital San J u an Capestran o and th e exam ination report tendered by Dr. González. In evaluating a Plaintiff’s m edically determ inable m en tal im pairm en t at step two an d su bsequen t RFC, the ALJ m ust evaluate Plaintiff’s degree of fun ction al lim itation by lookin g at four functional areas, the so called “paragraph B” criteria. 20 C.F.R. § 40 4.150 20 a(b)(2) and §40 4.1520 a(c)(3); 20 C.F.R. Pt. 40 4, Subpt. P, App. 1, § 12.0 0 . Case 3:19-cv-01625-CVR Document 23 Filed 02/10/21 Page 9 of 17 Luz Minerva Torres Roldán v. Andrew Saul Opinion and Order Civil No. 19-1625 (CVR) Page No. 9 Th ese are: 1) understanding, rem em bering or applying inform ation ; 2) in teractin g with oth ers; 3) con cen tration , persisten ce and m aintaining pace; and 4) adapting or m anaging on eself. If th e degree of lim itation in each of th e first three areas is deem ed m ild an d th ere are no episodes of decompen sation in the fourth area, the ALJ will con clude that th e claim ant’s m en tal im pairm en t is not severe. See 20 C.F.R. § 40 4.1520 a(d)(1). In the instan t case, the ALJ determ ined at step two that Plain tiff’s m en tal im pairm ent was not severe because she found Plaintiff had mild lim itations in each of th e first three areas an d on ly on e episode of decom pensation in May 20 18 which lasted less th an on e (1) week. These findings are buttressed by the record. Periodic visits to treating psychiatrist Dr. Rodríguez durin g 20 18 foun d Plain tiff cooperative, with appropriate h ygiene, with coheren t and spontaneous speech, with coh eren t and logical th ought processes, orien ted in tim e, place and person, with good recen t an d rem ote m em ory, and good judgm ent and insight. (Tr. pp. 654-659). An appoin tm en t with Dr. Rodríguez on April 20 18 (pre-hospitalization) found an essen tially n orm al exam . Plaintiff was sad, but had coherent and spontaneous speech, was orien ted in th ree spheres, and had good short, recent and past m em ory, alth ou gh she was som ewh at forgetful. (Tr. p. 658). Plaintiff’s stay at San J uan Capestrano on May 20 18 was brief. She was admitted with depression, harm fu l ideas and low self-esteem . (Tr. pp. 20 9-216). She was released six (6) days later, after which she was im m ediately seen by Dr. Rodrígu ez. At th at tim e, Plaintiff stated she was “feeling better from depression and felt m ore m otivated” and was foun d to be coherent and relevant. (Tr. p. 655). Aside from a Case 3:19-cv-01625-CVR Document 23 Filed 02/10/21 Page 10 of 17 Luz Minerva Torres Roldán v. Andrew Saul Opinion and Order Civil No. 19-1625 (CVR) Page No. 10 depressed m ood and sad affect, Plaintiff’s subsequen t m ental status exam in ations durin g th is period (which were im m ediately post-hospitalization) were un rem arkable. After the ALJ ’s referral, on J une 28 , 20 18 , Plaintiff was evaluated by consulting psychiatrist Dr. González. (Tr. p. 682). Dr. González noted that Plain tiff was clean an d appropriately dressed an d was cooperative, coheren t and had norm al speech. (Tr. p. 686). Sh e den ied hallucinations, delusions or paranoia, and was orien ted in tim e, place, person an d circumstance. (Id.). Her m ood was euthym ic; her affect was appropriate an d con sisten t with said m ood; she had good eye contact; and her thought processes were relevan t, logical, and coheren t, as was h er psychom otor activity. (Id). Dr. González determ ined that Plaintiff’s depression was in partial rem ission and assign ed h er a global assessm en t of functioning (GAF) score of 70 . 6 (Tr. p. 689). Dr. Gon zález found th at Plaintiff was able to perform basic daily activities like preparin g food, perform self-hygiene functions and take m edications on her own, but had som e difficu lty due to her physical condition s. (Tr. p. 690 ). He noted that Plain tiff struggled on tasks th at dem an ded m oderate to high m em ory levels, concentration and ph ysical activity, an d th at her depressive sym ptom s appeared to be related to her physical conditions an d lim itation s and th e loss of h er job. (Id.). Dr. González gave Plain tiff a fair prognosis an d foun d she was able to handle funds. As is widely known, state agency consultan ts 6 The Global Assessment of Functioning (GAF) is a numeric scale (0 through 10 0 ) used by mental health clinicians and physicians to rate subjectively the social, occupational, and psychological functioning of adults, e.g., how well or adaptively one is meeting various problems-in-living. The score is often given as a range. Although Dr. González gave a GAF rating in his evaluation in this case, since 20 13 the GAF is no longer used in the DSM-5. A GAF score of 61-70 shows some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. These mild symptoms do not preclude a claimant from performing all gainful activity. Case 3:19-cv-01625-CVR Document 23 Filed 02/10/21 Page 11 of 17 Luz Minerva Torres Roldán v. Andrew Saul Opinion and Order Civil No. 19-1625 (CVR) Page No. 11 are h igh ly qu alified m edical personnel wh o are experts in the evaluation of the m edical issu es involved in disability claim s and whose conclusions are to be afforded great weigh t if th ey are supported by other eviden ce in the record, as was the case here. 20 C.F.R. § 40 4.1527(e)(2)(i). Taken togeth er, this record provides substantial support for the ALJ ’s conclu sion th at Plain tiff’s paragraph B lim itations at step two were no m ore th an m ild. As a resu lt of th is, she concluded that Plaintiff’s m ental im pairm ents were not severe. In support of Plaintiff’s argum ent that her m en tal lim itation s were severe, she avers th at certain opin ion eviden ce was not considered. For instance, she proffers th at th e ALJ did n ot assess Dr Rodríguez’ opinion that she had m em ory problem s. Plain tiff also posits th at Dr. Rodríguez’s diagnosis of “m ajor depressive disorder, single episode, severe, with out psychotic featu res”, is also “a form of opinion .” However, she cites no caselaw for this proposition . As an initial m atter, th e Cou rt m ust m ention th at it h as been well established th at an ALJ n eed not m en tion every piece of evidence in an adm inistrative record. Rodrígu ez v. Sec’y of HHS, 1990 WL 152336, at *1 (1st Cir. Sept. 11, 1990 ) (u npu blish ed). ALJ ’s are ch arged with reviewing th e eviden tiary record, weighing the persu asive value of th e various elem ents, and reaching reasonable determ inations based upon substan tial un derlyin g evidence usin g the fram ework of the five-step process. See Seavey, 276 F.3d at 5. Not every single piece of evidence must be m en tioned by th e ALJ in h er an alysis. As correctly argued by the Com m issioner, Dr. Rodrígu ez did not provide an opinion statem en t because the only evidence in the record are his treatm en t n otes. Case 3:19-cv-01625-CVR Document 23 Filed 02/10/21 Page 12 of 17 Luz Minerva Torres Roldán v. Andrew Saul Opinion and Order Civil No. 19-1625 (CVR) Page No. 12 Wh ile Plaintiff argues th ese notes of the sessions are evidence of his “opinion”7, these are m erely n otes of h is findin gs durin g the visits Plaintiff m ade to his office and do not con stitu te an opinion pursuant to Social Security Regulations. On th e con trary, opinions are statem ents about what a claim ant can still do despite his or her existin g im pairm en ts an d are su pported by fu nction by function assessm ent. See 20 C.F.R. §§ 40 4.1513(b)(6), 416.913(b)(6). A diagn osis alon e is sim ply a snapshot in tim e of a Plain tiff’s con dition on th at day, and by itself, it does not help an ALJ understand or reach any conclusions abou t a Plaintiff’s ultim ate capabilities and lim itations. Furtherm ore, and as previou sly stated, a review of those notes reflects only mild deficits in m ental functionin g. Plain tiff was sad du rin g th ese sessions, yet was consistently found cooperative, coheren t, logical, orien ted in three spheres, and with good judgm ent and insight. (Tr. pp. 692 and 70 270 3). In the sam e vein, Plaintiff argues that th e diagnosis of a “severe m ajor depression , sin gle episode” at th e tim e sh e was hospitalized in May 20 18 is consisten t with Dr. Rodríguez’ opinion, and that the ALJ failed to consider this “opinion.” On ce again , Plain tiff fails to cite any caselaw to stand for the proposition that a diagn osis, standing alon e, is an opin ion. The record indicates th at Plaintiff was adm itted to San J uan Capestrano Hospital because of su icidal ideas due to depression attributed to financial difficulties an d sadness because siblin gs were dealing with cancer. (Tr. pp. 644-652). Although Plain tiff’s affect was m arked as “sad/ depressed”, upon being exam ined by Dr. Rodrígu ez, im m ediately 7 Docket No. 20 , pp. 8 -9. Case 3:19-cv-01625-CVR Document 23 Filed 02/10/21 Page 13 of 17 Luz Minerva Torres Roldán v. Andrew Saul Opinion and Order Civil No. 19-1625 (CVR) Page No. 13 after h er discharge she exhibited good m em ory, insight, and judgm en t without signs of perceptu al disturbances, phobias, delusions, or paranoia. (Tr. pp. 654-655). The ALJ n oted th at the hospitalization was one-tim e incident of short duration, which was fu rth er buttressed by the fact th at there are no other hospitalizations in the record. It is im portant to note that Plaintiff’s disch arge from Hospital San J uan Capestran o occurred on May 16, 20 18. She was seen th e very next day by Dr. Rodrígu ez, wh o stated in th e record for th at visit th at both Plaintiff and h er sister reported th at Plain tiff was feeling less depressed and felt m ore m otivated. A few days th ereafter, on May 22, 20 18 , the hearing before th e ALJ took place. And fin ally, Dr. González’ exam in ation occurred just a few weeks afterwards, at th e en d of J une 20 18, where he opin ed th at Plaintiff h ad already retu rned to norm al m ental functioning and n oted th at she had th e ability to h andle funds. (Tr. p. 689). Therefore, it seem s th at the assertion th at the h ospitalization was a on e-tim e, isolated even t is accurate, as th ere is n o fu rth er record eviden ce of any hospitalization or other exacerbating even t. Plaintiff also takes issu e with what she avers is conflictin g evidence, where she in dicates the following: “[i]t is ou r understanding that both Dr. González Vargas (sic) an d Dr. Rodríguez opined th at the Plaintiff’s m ental im pairm ent h ad m ore th an a m in im al effect on h er ability to work; or in th e altern ative, th e statem en t th at were given great weigh t by the ALJ ‘apparently struggles on tasks that dem ands m oderate to high levels of m em ory, an d concentration’ , is a lim itation that the ALJ should h ave con sider as lim itin g effects in her RFC.” (Docket No. 20 , p. 12). Case 3:19-cv-01625-CVR Document 23 Filed 02/10/21 Page 14 of 17 Luz Minerva Torres Roldán v. Andrew Saul Opinion and Order Civil No. 19-1625 (CVR) Page No. 14 As previously stated, however, Dr. Rodríguez did not ren der an opinion , bu t rath er m erely evaluated Plaintiff’s condition at every visit, which, besides sadness, reveals unrem arkable results. While it is true that Dr. González stated th at Plain tiff had som e m em ory an d con cen tration issu es, th at statem ent was not m ade in a vacuum . He also foun d Plain tiff with adequate m ental status, with adequate social judgm en t, atten tion an d con cen tration levels, an d further m en tioned that “m ost intellectual abilities and m em ory seem ed adequate to sligh tly dim inished.” (Tr. p. 689). Therefore, th e fact that Plain tiff su ffered from m em ory an d con centration issues, alone, is insu fficien t to establish disability to such an exten t that it would ren der h er incapable of perform in g any gain fu l activity, particularly when th e rem ainder of her record reveals no serious or m arked m en tal episodes. Moreover, it has long been h eld that th e task of resolvin g factu al conflicts an d reachin g a con clu sion from that evidence is one that is reserved strictly for th e Com m issioner. See Purdy, 887 F.3d at 13 (resolution of conflicts in th e eviden ce an d credibility and the determ ination of th e ultim ate question of disability is reserved for Com m ission er); and Doucet v. Astrue, No. 12-2123, 20 13 WL 12126354, at *1 (1st Cir. May 24, 20 13) (“Weighing the eviden ce was th e ALJ ’s prerogative.”). Th e ALJ , as the prim ary factfinder, sim ply evaluated all th e evidence, scant as it was, an d reached a conclusion as to that evidence. Th e ALJ looked at the largely un rem arkable exam ination notes from Dr. Rodríguez, Dr. González’ opinion, and the un rebu tted evidence of Plaintiff’s m ental episode, which was a single in ciden t th at did n ot Case 3:19-cv-01625-CVR Document 23 Filed 02/10/21 Page 15 of 17 Luz Minerva Torres Roldán v. Andrew Saul Opinion and Order Civil No. 19-1625 (CVR) Page No. 15 last twelve (12) m onths, and con cluded th at Plaintiff’s m ental con dition was not severe. This conclusion is plainly bu ttressed by the record eviden ce. In addition, because the ALJ ’s evaluation of this claim proceeded past step two and con sidered th e effects of all of Plaintiff’s im pairm ents th rough the rem ain der of th e sequ en tial evaluation process, any error at step two in determ ining the severity of her m en tal im pairm ent was harm less and had no effect. See Irizarry-Martín ez v. Com m ’r of Soc. Sec., Civ. No. 15-20 0 6 (BJ M), 20 17 WL 870 18, at *5 (D.P.R. J an . 10 , 20 17) (“[A]n y error the ALJ com m itted by overlooking Irizarry’s shoulder con dition in step two was h arm less and does not constitute reversible error.”); Coe v. Colvin, Civ No. 15-30 0 37 (MGM), 20 16 WL 3350 995, at *5 (D. Mass. J une 15, 20 16) (errors com m itted in step two are harm less when the ALJ considers the im pairm en t through the requ ired evaluation process to determ ine the RFC); Pérez v. Astrue, Civ. No. 11– 30 0 7 (KPN), 20 11 WL 6132547, at *4 (D. Mass. Dec. 7, 20 11) (if the ALJ considers all the severe and n on-severe sym ptom s wh en assessin g th e RFC, any error com m itted in step two was h arm less). As a final m atter, Plaintiff m akes one last argum ent in passin g, allegin g a hypoth etical th at h as n o basis in reality. She states th at “[i]f the ALJ h ad foun d th at the Plain tiff was lim ited by h er m ental condition to perform u n skilled jobs; at step 4 the Plain tiff could n ot have perform ed (sic) her past relevant job as an Accounts Payable clerk, Au ditor, an d Accountant, as th e m ental capacities are SVP 5, SVP 7, an d SVP 8 , respectively (Tr. 34). Given th at in 20 18 the Plaintiff, wh o had a cervical su rgery, was 58 years old, m ust likely would have grid out (sic) at step 5 of the sequen tial evalu ation . Given the claim ant’s age, education, work experien ce and the fact th at the ALJ found that Case 3:19-cv-01625-CVR Document 23 Filed 02/10/21 Page 16 of 17 Luz Minerva Torres Roldán v. Andrew Saul Opinion and Order Civil No. 19-1625 (CVR) Page No. 16 sh e is un able to perform an y past work, a legal determ ination of disable (sic) could have been reach based on th e Grids (Appendix 2 to Subpart P of 20 CFR 40 4).” As on previous occasions, the Court finds this argum ent waived, sim ply because Plain tiff h as not provided a sufficien tly developed argum en t th at th e Cou rt can analyze. Un ited States v. Zan n in o, 8 95 F.2d 1, 17 (1st Cir. 1990 ) (“issu es adverted to in a perfu nctory m anner, unaccompan ied by som e effort at developed argum en tation , are deem ed waived”). Besides the fact th at it stem s from an incorrect prem ise, th at th e ALJ foun d Plain tiff was unable to perform her previou s jobs, a hypoth etical with out an y developed argum en tation is n ot enough for the Court to consider. 8 For the reasons above explained, the Court concludes that the ALJ properly evalu ated all record and su bjective evidence and correctly concluded at step two that Plain tiff’s m en tal im pairm en t was not severe, and said determ ination was supported by su bstan tial evidence in the record as a whole. As is well known, although the record m ay support m ore than one con clusion , th is Court m ust uphold the Com m issioner “if a reasonable m ind, reviewing the evidence in th e record as a whole, could accept it as adequate to support his conclusion.” Ortíz, 955 F.2d at 769 (quoting Rodrígu ez, 647 F.2d at 222); see also Richardson v. Perales, 40 2 U.S. 38 9, 40 1, 91 S.Ct. 1420 , 1427 (1971). At this junctu re, however, the issue boils down to wh eth er a reasonable factfin der cou ld have weighed the eviden ce in the sam e way as the ALJ did, and wheth er substantial eviden ce supports that conclu sion. Evan gelista v. Sec’y 8 While Plaintiff also proffers that a disability determination might have been reached via the grids, she again provides no analysis or support for this two-sentence conclusion. Specifically, how her physical condition (which Plaintiff failed to contest here anyway) and surgery would have rendered the grids applicable to this particular case. Case 3:19-cv-01625-CVR Document 23 Filed 02/10/21 Page 17 of 17 Luz Minerva Torres Roldán v. Andrew Saul Opinion and Order Civil No. 19-1625 (CVR) Page No. 17 of Health an d Hum an Servs., 826 F.2d 136, 144 (1st Cir. 1987). Where th e facts perm it diverse in feren ces, the Court will affirm the Com m issioner’s holdin g even if it m ight have reach ed a differen t result, as long as that result is supported by substantial eviden ce. Rodrígu ez Pagán v. Sec’y of Health an d Hum an Servs., 8 19 F.2d 1, 3 (1st Cir. 1987); Lizotte v. Sec’y of Health & Hum an Servs., 654 F.2d 127, 128 (1st Cir. 1981). Taken together, the record in this case provides am ple support for the ALJ ’s con clu sion at step two th at Plaintiff’s m ental condition was n ot severe and th at it did not prevent h er from perform ing her last occupation as an accounts payable clerk, au ditor an d/ or accountant. In view of the above, th e Court fin ds n o error with the Com m issioner’s con clusion that Plaintiff was n ot disabled and finds it is supported by su bstan tial evidence in the record as a whole. CON CLU SION In view of the foregoing, th e Com m issioner’s decision is AFFIRMED. J udgm ent shall be entered accordingly. IT IS SO ORDERED. In San J uan, Puerto Rico, on this 10 th day of February 20 21. S/ CAMILLE L. VELEZ-RIVE CAMILLE L. VELEZ RIVE UNITED STATES MAGISTRATE J UDGE
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