Not for Publication in West's Federal Reporter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, 

, 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, 

, 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.




                                 -8-
     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, 

, 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.




                                     -9-
     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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