Soto-Cedeno v. Astrue

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 09-1291
MARCELINA SOTO-CEDEÑO,
Plaintiff, Appellant,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Stahl, Circuit Judges.
Pedro G. Cruz Sánchez on brief for appellant.
Matthew J. Del Mastro, Special Assistant U.S. Attorney and
Rosa Emilia Rodríguez-Vélez, United States Attorney, on brief for
appellee.
June 29, 2010
Per Curiam. Marcelina Soto-Cedeño (Soto) appeals from a
district court judgment upholding an administrative law judge (ALJ)
decision that denied her application for Social Security disability
benefits. We vacate the judgment in part and direct the district
court to remand to the ALJ for reconsideration of one issue.
I. Background
Soto applied for disability benefits, alleging a
disability onset date of May 19, 2001. She premised her claim of
disability on several conditions, including high blood pressure,
kidney disease, depression, and hand, back and hip pain. Her last
insured date was December 31, 2006.
On December 15, 2005, a disability hearing was held, at
which Soto and a vocational expert (VE) testified. In a decision
dated March 7, 2006, the ALJ denied disability benefits at step 5
of the sequential evaluation process. Relying on the VE's
testimony, he concluded that, despite her limitations, Soto could
perform three unskilled sedentary jobs--parking lot
attendant/cashier, fantasy jewelry production line worker, and
office photocopy worker. The Appeals Council denied review,
rendering the ALJ's decision the final agency decision.
Soto then sought judicial review. On January 23, 2009,
the district court issued a judgment affirming the agency's
decision. Soto appealed.
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On appeal, our review "is limited to determining whether
the ALJ deployed the proper legal standards and found facts upon
the proper quantum of evidence." Nguyen v. Chater, 172 F.3d 31, 35
(1st Cir. 1991) (per curiam) (citation omitted). An "ALJ's
findings of fact are conclusive when supported by substantial
evidence, . . . but are not conclusive when derived by ignoring
evidence, misapplying the law, or judging matters entrusted to
experts." Id. (citations omitted).
Soto raises two appellate claims, one of which is
meritorious.
II. Discussion
A. Treating Source Opinion
The ALJ rejected the opinion of Soto's treating
psychiatrist, Dr. Hector Rivera, that her depression had imposed
marked or extreme limitations on her ability to perform the mental
demands of work. Instead, he essentially accepted the assessments
by consulting examining psychiatrists that her depression had
imposed only mild or moderate limitations on her. The VE's
testimony indicated that if Soto had the marked limitations Dr.
Rivera perceived, she would have "difficulty" performing the jobs
he had identified on a sustained basis.
Soto contends that the ALJ did not give good reasons for
rejecting Dr. Rivera's medical opinion, citing 20 CFR §
404.1527(d)(2). That regulation states that the agency will give
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treating source opinions "on the nature and severity" of a
claimant's impairment "controlling weight" if they are "well-
supported by medically acceptable clinical and laboratory
diagnostic techniques" and "not inconsistent with the other
substantial evidence" in the case. It also provides that the
agency will "always give good reasons" for the weight it gives a
treating source opinion. Id.The ALJ rejected Dr. Rivera's opinion in part because no
supporting treatment notes were attached to his November 20, 2004
report and RFC assessment. He also thought that Dr. Rivera's
opinion as of December 2, 2005 was inconsistent with "the remaining
medical record" and with statements by Soto.
We agree with Soto that the absence of treatment notes
does not justify the rejection of Dr. Rivera's opinion. Dr.
Rivera's November 20, 2004 report explained the basis for his
opinion. In particular, the doctor described his observations of
Soto and the results of specific memory tests he had administered
to her at her most recent appointment on October 26, 2004. He used
the tests that were recommended on the agency report form he filled
out, and the consulting psychiatrists, whose opinions the ALJ
credited, had used similar tests, relying as well on their
observations of Soto.
Accordingly, the absence of treatment notes alone did not
show that Dr. Rivera's opinion was not "well-supported by medically
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acceptable clinical and laboratory diagnostic techniques" (if that
is what the ALJ meant to suggest). In any event, the parties agree
that medical sources are not required to attach their treatment
notes to their reports to the agency. And an agency regulation
indicates that if the ALJ deemed Dr. Rivera's report to be
"inadequate," he should obtain additional information "first" by
recontacting Dr. Rivera. 20 CFR § 404.1512(e)(1).
Nor do we think that Dr. Rivera's medical opinion as of
December 2, 2005 can reasonably be characterized as "inconsistent"
with the other medical evidence of record. The consulting
psychiatrists and Dr. Rivera evaluated Soto's condition as of
different time periods. One consultant examined Soto on March 20,
2003, the other on November 18, 2003, and their opinions obviously
related to her functioning at that time. In contrast, Dr. Rivera's
November 20, 2004 RFC assessment indicated that it was a "current
evaluation," and referred to his accompanying report, which had
recorded his observations and testing of Soto on October 26, 2004.
In that report, Dr. Rivera also noted that Soto's condition had
deteriorated progressively. In his December 2, 2005 report, Dr.
Rivera used present tense verb forms in describing Soto's
limitations and again noted her "sustained deterioration." There
is no conflicting medical evidence or opinion in the record for the
time period encompassed by Dr. Rivera's reports.
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To sum the above up, while the consulting psychiatrists'
reports may well be substantial evidence that supports the ALJ's
determination that Soto was not disabled in 2003, they do not
conflict with, or undermine, Dr. Rivera's opinion relative to later
time periods.
We also find no inconsistency between Dr. Rivera's
assessment and statements by Soto. Contrary to what the ALJ
apparently concluded, Soto reported only that her family doctor and
nephrologist had advised her against taking prescription pain
medications because they could worsen her kidney condition. She
did not say that Dr. Rivera or her other doctors had advised her
not to take her prescription psychiatric medications. And, on
December 10, 2003, Soto told a consulting examining physician that
she got "poor relief" from her psychiatric medications, which is
consistent with Dr. Rivera's report that she had not responded to
treatment with drugs.
Soto's description of her daily activities did not
undermine Dr. Rivera's assessment either. Just as in March 2003,
Soto stated at the hearing in December 2005 that she watched TV.
Her ability to watch TV does not show her ability to perform the
mental tasks necessary for work. Moreover, Soto's statement in
March 2003 that her husband would not let her cook because she left
the stove on is consistent with Dr. Rivera's comments on her memory
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deficits, inattentiveness, and inability to concentrate on tasks at
hand due to her depression.
Soto's remaining statements from March 2003 were outdated
by the time the ALJ rendered his decision. On November 18, 2003,
Soto had told a consulting examining psychologist that she did not
help with household duties, engage in social activities, or visit
with others, and Dr. Rivera gave similar reports for subsequent
years. He said that Soto's pain kept her from performing household
tasks, that she got confused and could not develop a work plan, and
that she rejected visitors and conversations.
In short, the ALJ did not give supportable reasons for
rejecting Dr. Rivera's opinion as to Soto's ability to function in
the workplace for the time frame the doctor had evaluated. We
therefore vacate the district court's judgment insofar as it upheld
this portion of the ALJ's decision, and we direct the court to
remand to the ALJ for further proceedings consistent with our
opinion. See Johnson v. Astrue, 597 F.3d 409, 411 (1st Cir. 2010)
(per curiam) (remanding under similar circumstances).
B. Physical Impairments
Soto's second appellate claim is that the ALJ ignored
evidence about her various physical limitations and substituted his
judgment for that of medical professionals. After careful review
of the record and the ALJ's decision, however, we conclude that the
substantial evidence of record supported most of the ALJ's
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conclusions. We are somewhat troubled by the ALJ's treatment of
Soto's left-wrist condition and her claims of hand pain. But the
only argument that Soto presents on that score is unpersuasive.
Soto argues that, due to her hand impairments, she lacks
bilateral manual dexterity. She seems to maintain that her
limitation so eroded the range of unskilled sedentary work she
could perform that she should have been found to be disabled. She
cites Heggarty v. Sullivan, 947 F.2d 990 (1st Cir. 1991), a case
involving a claimant with a significant limitation in bilateral
manual dexterity, in which the ALJ had relied on the Grids as a
framework for finding the claimant not to be disabled. We vacated
the district court's judgment, directing the court to remand to the
ALJ for further proceedings because the ALJ had not consulted a
vocational expert before denying disability benefits. Id. at 996.
Here, however, the ALJ did consult a VE, a fact that Soto
does not discuss. Furthermore, the government argues that the
ALJ's hypothetical to the VE adequately accounted for Soto's
hand/wrist condition, and that the VE's testimony therefore
supported the denial of benefits. Soto has not filed a reply brief
responding to that argument. If there was error in how the ALJ
proceeded, then, she has waived the defect. Poupore v. Astrue, 566
F.3d 303, 306 (2d Cir. 2009) (courts may deem unraised claims of
error to be waived); Wall v. Astrue, 561 F.3d 1048, 1065 (10th Cir.
2009) (courts may treat inadequately developed claims of error as
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waived); cf. Mills v. Apfel, 244 F.3d 1, 8 (1st Cir. 2001)
(objections not presented to the ALJ are waived).
Finally, we note that Soto has given this court a
disability decision, in which a different ALJ found her to be
disabled based on her depression and bilateral manual dexterity.
We decline to consider that decision, which was based on a
different record and on a much later onset date of disability.
We vacate the district court's judgment in part and
direct the court to remand to the ALJ for further proceedings
consistent with this opinion. Otherwise, the judgment of the
district court is affirmed.
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