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concluding that where "medical diagnoses of plaintiff's treating sources [were] not clearly inconsistent with the RFC assessment prepared by a non-treating mental expert, . . . the lack of a RFC assessment from an examining medical expert [did] not render the ALJ's decision one unsupported by substantial evidence"
Summary of this case from Hill v. ColvinOpinion
Civil No. 04-2309 (DRD/GAG).
September 6, 2005
MEMORANDUM OPINION AND ORDER
Upon review of the administrative record in this case, as well as the parties' memoranda (Docket Nos. 10 and 14), the Court concludes that the Commissioner's decision denying plaintiff disability benefits is supported by substantial evidence of record, hence is hereby AFFIRMED.
Plaintiff's argument on appeal is that the Commissioner failed to request and consider a residual functional capacity (RFC) assessment prepared by an examining physician. Rather, he relied on that submitted by a non-examining physician.
This Court in the past has remanded to the Commissioner cases wherein the administrative law judge (ALJ) based his RFC assessment on that prepared by a non-examining physician. See Rivera Ocasio v. Commissioner of Social Security, 213 F. Supp 2d 81 (D.P.R. 2002); Vigo Ramos v. Commissioner of Social Security, 241 F. Supp. 2d 139 (D.P.R. 2003); Morales Colón v. Commissioner of Social Security, 245 F. Supp. 2d 395 (D.P.R. 2003). In all of these cases, the Court's determination to remand was based on the fact that medical reports and opinions of the treating physicians in the record were in stark disaccord with the RFC assessments prepared by non-examining physicians. Under such scenario, the ALJ's decision to grant controlling weight to (and thus, adopt) the RFC assessment of the non-treating physician was not supported by substantial evidence of record.
In the present case, contrariwise, the medical reports and diagnoses of plaintiff's treating sources are not clearly inconsistent with the RFC assessment prepared by the non-treating mental expert. Nor, are these clearly inconsistent with the RFC determination made by the medical expert who testified at the plaintiff's disability hearing. Under this scenario, the lack of a RFC assessment from an examining medical expert does not render the ALJ's decision one unsupported by substantial evidence of record. See Vega Morales v. Commissioner of Social Security, ___ F. Supp. 2d ___, 2005 WL 1870014 (D.P.R. 2005) (citing Berríos López v. Secretary of Health and Human Services, 951 F. 2d 427 (1st Cir. 1991)); Delgado Quiles v. Commissioner of Social Security, ___ F. Supp. ___ 2d, 2005 WL 1870017 (D.P.R. 2005) (citing Berríos López).
Notwithstanding, the Commissioner is again reminded that the use of RFC assessments from non-treating sources as an alternative is highly discouraged. See Delgado Quiles, supra at * 3-4 (quoting Quintana v. Commissioner of Social Security, 294 F. Supp.2d 146 (D.P.R. 2003), aff'd 110 Fed. Appx. 142 (1st Cir. 2004); see also Heggarty v. Sullivan, 947 F. 2d 990 (1st Cir. 1991) (case remanded where record contained RFC assessments from non-examining practitioners, but no medical evidence to support the RFC findings).
AFFIRMED.
SO ORDERED.