Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 11-1618
ELSIE POLANCO-QUINONES,
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. Gustavo A. Gelpí, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Howard, Circuit Judges.
Salvador Medina De La Cruz on brief for appellant.
Sean Dalton Santen, Special Assistant U.S. Attorney, and Rosa
Emilia Rodriguez-Velez, United States Attorney, on brief for
appellee.
May 1, 2012
Per Curiam. Claimant Elsie Polanco-Quinones appeals from the
denial of Social Security disability benefits. In relevant part,
claimant alleged disability on the basis of a depressive disorder,
and while the administrative law judge (ALJ) agreed that claimant’s
depression was severe, he concluded that this impairment would not
prevent her from performing her past, unskilled work. In so
concluding, the ALJ decided not to give controlling weight to the
opinion of claimant’s treating psychiatrist that claimant
essentially was disabled. Because the ALJ failed to give
sufficient reasons for this decision, a remand is required.
I. Treating Physician Opinion
Claimant’s treating psychiatrist, Dr. Maria de los Angeles
Pujols, submitted five reports covering the period from roughly
October 2003 to May 2008. In brief, these reports rated claimant
as either extremely or markedly limited in her residual functional
capacity (RFC) to engage in the basic mental demands of unskilled
work: “the abilities (on a sustained basis) to understand, carry
out, and remember simple instructions; to respond appropriately to
supervision, coworkers, and usual work situations; and to deal with
changes in a routine work setting.” See Social Security Ruling
85-15, 1985 WL 56857, at *4. Dr. Pujols also (1) consistently
rated claimant’s ability to maintain concentration and attention
for extended periods as extremely limited, (2) consistently
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observed that claimant exhibited psychomotor retardation, and (3)
found various problems with claimant’s memory.
The ALJ rejected these ratings and instead found that, since
claimant had only mild to moderate restrictions in her ability to
maintain concentration, persistence, and pace, she was precluded
only from dealing with work situations involving complex
instructions and intense pressure. At the hearing, a vocational
expert (VE) testified that, with such abilities, claimant could
perform her past job as a wire worker, and this is the evidence
upon which the ALJ relied in concluding that claimant was not
disabled.
Claimant argues that the ALJ did not give good reasons for
essentially rejecting Dr. Pujols’ opinions. Under the relevant
regulation, a treating source's opinion on the question of the
severity of an impairment will be given controlling weight so long
as it "is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence in [the] record.” 20 C.F.R. §
404.1527(d)(2). Section 404.1527(d)(2) also provides that an ALJ
must give “good reasons” for the weight accorded to a treating
source's opinion.
Here, the initial difficulty is that the ALJ gave absolutely
no reasons for his conclusion that Dr. Pujols’ opinions were not
well-supported. The Commissioner ignores this omission and,
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instead, offers reasons why this conclusion is correct – i.e.,
these opinions (1) do not reflect the use of medically acceptable
diagnostic techniques, (2) lack contemporaneous objective findings,
and (3) fail to present a longitudinal record of claimant's
treatment. However, since we are not usually permitted to affirm
agency action on grounds other than those advanced by the agency,
we assume that the Commissioner is invoking the exception for
situations where it is clear what the agency’s decision must be.
See MaineGeneral Med. Ctr. v. Shalala, 205 F.3d 493, 501 (1st Cir.
2000). The question, then, is whether, for the reasons given by
the Commissioner, the ALJ’s conclusion that Dr. Pujols reports were
not well-supported is mandated by the record evidence.
Beginning with Dr. Pujols’s diagnostic techniques, she used
essentially the same tests as the two consulting psychiatrists who
had examined claimant. In particular, Dr. Pujols tested claimant's
memory and concentration by having her (1) subtract in series of
three and seven, (2) recite in reverse order the days of the week
and months of the year, (3) repeat words, and (4) recall events and
topics of conversation. The consultative examiners used virtually
identical tests, having claimant (1) repeat a series of four
numbers, (2) perform simple addition and subtraction, and (3)
recite the months of the year backwards. Since the Commissioner
fails to give any reasons why these tests do not qualify as
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“medically acceptable,” and we can see none, it is clear that Dr.
Pujols’ reports were not defective in this respect.
The Commissioner also is wrong that Dr. Pujols’ reports lacked
“objective” findings. Under the regulations, such findings, or
“medical signs,” see 20 C.F.R. § 404.1512(b)(1), are defined, in
relevant part, as “psychological abnormalities which can be
observed” and which “can be medically described and evaluated.”
Id. § 404.1528(b). Such abnormalities, in turn, include
"abnormalities of behavior, mood, thought, memory, orientation,
development, or perception." Id.
Here, Dr. Pujols completed two Social Security Administration
forms that asked her to identify claimant's "signs and symptoms."
Among the signs that Dr. Pujols checked as applying to claimant
were (1) decreased energy, (2) generalized anxiety, (3) persistent
disturbances of mood or affect, (4) difficulty thinking or
concentrating, (5) motor tension, (6) memory impairment, (7) blunt,
flat, or inappropriate affect, and (8) disorientation as to time.
Dr. Pujols also completed other forms and provided similar
information concerning claimant's psychological abnormalities.
This leaves the Commissioner’s arguments that Dr. Pujols’
opinions were defective because her findings were not
“contemporaneous” and because the opinions failed to present a
“longitudinal record” of her treatment of claimant. Taking the
latter contention first, it is meritless. Dr. Pujols filed five
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reports which covered over four years of claimant’s treatment, and
the Commissioner offers no reasons why such an amount of time is
insufficient.
Last, the Commissioner does not explain what he means by
“contemporaneous,” and he cites no support for his position that
such is required before a treating source’s opinion may be found to
be well-supported. In the case at hand, Dr. Pujols completed one
of her reports two days after her session with claimant and
completed three other reports within four weeks of the most recent
sessions. Given Dr. Pujols’ long relationship with claimant, along
with the Commissioner’s failure to explain why a four-week delay in
filling out reports in such a situation renders them unreliable,
his argument in this regard fails. Based on all of the above,
then, the record simply does not mandate the conclusion that Dr.
Pujols’ reports were not “well-supported.”
Turning to the issue of the reports' inconsistency with other
"substantial evidence" in the record, the ALJ, aside from the
reports of Dr. Pujols, reviewed only a report from Dr. Pablo O.
Perez Torrado, one of the consulting psychiatrists who had examined
claimant. We therefore assume that Dr. Perez’s opinion constitutes
the inconsistent evidence. In this regard, the ALJ noted that Dr.
Perez had found that claimant (1) was coherent, logical, and
relevant, (2) presented no thought disorders, (3) was oriented in
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place and person, (4) could identify what she had done in her prior
job, and (5) had intact judgment.
There are two reasons why reliance on Dr. Perez’s opinion was
misplaced. First, Dr. Pujols made findings similar to those cited
above when she described claimant as (1) coherent and rational, (2)
oriented most of the time, and (3) usually having intact judgment.
Second, the ALJ omitted the parts of Dr. Perez’s report that found
deficits in claimant's functioning, and, again, these deficits are
like the ones described by Dr. Pujols. In particular, both doctors
viewed claimant as having problems with her memory, and Dr. Perez
described claimant’s capacity for maintaining concentration and
attention as “diminished” – i.e., claimant could not perform simple
addition or subtraction. Given that these findings do not
contradict Dr. Pujols’ opinion that claimant was extremely limited
in this regard, Dr. Perez’s report cannot form the basis for the
ALJ’s conclusion that the opinions of Dr. Pujols were inconsistent
with other substantial evidence in the record.
Perhaps realizing this, the Commissioner contends that the
ALJ, in fact, had determined that the inconsistent evidence was
comprised of the RFC assessment of a non-examining, state agency
psychologist, Dr. Luis F. Umpierre Vela. The ALJ, however, never
mentioned such assessment anywhere in his decision, despite the
requirement that he do so. See 20 C.F.R. § 404.1527(f)(2)(ii)
(“[u]nless a treating source's opinion is given controlling weight,
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the [ALJ] must explain in the decision the weight given to the
opinions of a State agency medical or psychological consultant”).
So as to avoid confusion on remand, we nonetheless will treat the
ALJ’s reliance on this opinion as implicit in his decision.
Here, since the VE testified that claimant could perform her
past job if one accepted Dr. Umpierre’s RFC assessment, we will
assume, without deciding, that the required inconsistency exists.
The question, then, is whether this opinion constitutes
“substantial” inconsistent evidence, and the answer depends on “the
degree to which [it] provide[s] supporting explanations.” Id. §
404.1527(d)(3). Unfortunately for the Commissioner, Dr. Umpierre’s
explanation is far from adequate.
In this regard, Dr. Umpierre made only three findings relative
to claimant’s ability to engage in the mental demands of work: (1)
she was depressive; (2) she exhibited psychomotor retardation; and
(3) she had diminished concentration and memory. Of course, since
these findings represent deficiencies in claimant's functioning,
they say nothing about what she can do. And, although a second
nonexamining psychologist, Dr. Orlando E. Reboredo, affirmed Dr.
Umpierre’s RFC assessment, Dr. Reboredo’s comments add nothing.
Thus, since Dr. Umpierre’s findings, by themselves, are inadequate
to support his RFC assessment, more in the way of explanation was
required.
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This is especially true in light of the finding that claimant
exhibited psychomotor retardation, an observation that Dr. Pujols
consistently made and that Dr. Alberto Rodriguez Robles, the other
examining psychiatrist, also noted. The term “psychomotor” refers
to voluntary muscle movements, and “psychomotor retardation” is
defined as “[a]n overall slowing of movement, speech, and mental
processes.” 5 J.E. Schmidt, M.D., Attorney’s Dictionary of
Medicine, at P-520.1 to P-520.2 (2011). We think that a slowing of
mental and physical abilities, along with diminished concentration
and memory, may represent significant limitations, and, as the VE
testified, most jobs have production quotas, a requirement a person
with such limits could have trouble meeting.
In conclusion, then, Dr. Umpierre’s opinion cannot be
considered to be "substantial" evidence inconsistent with the
opinions of Dr. Pujols. See Berrios Lopez v. Secretary of Health
and Human Services, 951 F.2d 427, 431 (1st Cir. 1991) (per curiam)
(where reports from nonexamining sources "contain little more than
brief conclusory statements or the mere checking of boxes denoting
levels of residual functional capacity, [such reports] are entitled
to relatively little weight"). As a result, the ALJ failed to give
supportable reasons for not according controlling weight to Dr.
Pujols’ opinions, and this ends the matter.
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We therefore vacate the district court's judgment and direct
that court to remand the matter for further proceedings consistent
with this opinion. No costs are awarded.
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