RIVERA v. COMMISSIONER OF SOCIAL SECURITY

329 F.Supp.2d 211 (2004) | Cited 0 times | D. Puerto Rico | July 21, 2004

MEMORANDUM OPINION AND ORDER

Upon careful review and consideration of the parties' memoranda(Docket Nos. 11 and 14), as well as the administrative record,the undersigned concludes that this case must be REMANDED to theCommissioner of Social Security for further proceedingsconsistent with the instructions that follow.

The ALJ below concluded that plaintiff had the residualfunctional capacity to lift and carry a maximum of 20 pounds, and10 pounds frequently, and otherwise function normally inactivities not requiring the performance of complex tasks (Tr. 22¶ 6, 23 ¶ 1, 24 ¶ 7).1 Accordingly, the ALJ determinedthat plaintiff's past relevant work as an electronics inspectordid not require the performance of work-related activitiesprecluded by her residual functional capacity (Tr. 24 ¶ 8).

In the adult disability report submitted by plaintiff to theSocial Security Administration for purposes of the her presentclaim, dated 5/20/99, plaintiff, however, indicates that as anelectronics inspector she lifted and carried items weighing up to60 pounds, and frequently lifted items weighing 25 pounds (Tr. 63(Spanish original), 73 (English translation)). There is noevidence in the administrative record suggesting that thisinformation is not accurate. Likewise, the Commissioner in hermemorandum does not contest said evidence. A Social Security claimant has the burden of making somereasonable threshold showing that she cannot return to her formeremployment because of her alleged disability. Santiago v.S.H.H.S., 944 F.2d 1, 5 (1st Cir. 1991); Pitchard v.Schweiker, 692 F.2d 198, 201 (1st Cir. 1982); GonzálezPérez v. Secretary of Health, Education and Welfare,525 F.2d 886, 887 (1st Cir. 1982). To do so, the claimant mustinitially produce relevant evidence of the physical and mentaldemands of her prior work. Santiago, supra; Pitchard,supra at n. 2. Such evidence may be testimonial or take theform of historical or subjective statements made in theclaimant's disability application. Santiago, supra. Oncealerted by the record to the presence of such evidence, the ALJmust develop the record further if he is to conclude that suchevidence does not accurately reflect the demands of plaintiff'sprior work. See Santiago, supra at 5-6.

In the case at bar, there is a significant discrepancy betweenthe plaintiff's description of the physical demands of her priorwork and the ALJ's determination as to what physical demandsplaintiff's work actually entailed. However, the ALJ failed tofurther develop the record to support his differing conclusion.Accordingly, the Commissioner's decision at this time isunsupported by substantial evidence of record, and, thus, thiscase must be remanded so that the record be fully developed as tothis matter. Once the ALJ does this, he shall carry out thesequential evaluation process to an end.

SO ORDERED.

1. The plaintiff does not contest this functional capacityfinding in her memorandum. Interestingly, the functional capacityassessment contained in the administrative record indicates thatplaintiff can occasionally lift up to 50 pounds, and canfrequently carry up to 25 pounds (Tr. 18 ¶¶ 1 and 2).

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