Mendoza v. US Social Security Administration, Acting Commissioner

Filing 16

///ORDER denying 11 Claimant's Motion to Reverse Decision of Commissioner; and granting 14 Commissioner's Motion to Affirm. So Ordered by Judge Steven J. McAuliffe.(lat)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Jose Vargas Mendoza
v.

Case No. 13-cv-279-SM
Opinion No. 2014 DNH 172

Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration
O R D E R
Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), Jose Vargas
Mendoza moves to reverse the Commissioner’s decision denying his
application for social security disability insurance benefits and
supplemental security income benefits.
affirm the decision.

The Commissioner moves to

For the reasons discussed below, Mendoza’s

motion is denied, and the Commissioner’s motion is granted.1

Factual Background2
I.

Medical History
In 1996, diagnostic testing for back pain showed that

Mendoza had a large central disc herniation at L5-S1.

He sought

1

In the parties’ joint statement of material facts, the
claimant is referred to as “Mr. Mendoza,” “Mr. Vargas,” “Mr.
Vargas Mendoza,” and “Mr. Vargas-Mendoza.” At the hearing, the
claimant explained that “Vargas” is his father’s name and Mendoza
is his mother’s name and that he uses both names. To avoid
additional confusion and because the claimant is more often
referred to as “Mendoza”, the court will use the name “Mendoza”
when referring to him.
2

The factual background is summarized from the parties’
joint statement of material facts, which is document no. 15.

treatment for back pain and related headaches during the next
several years.

While lifting weights in 2007, Mendoza tore the left
pectoralis muscle.

On July 6, 2007, Dr. Bell, a surgeon at

Dartmouth-Hitchcock Medical Center, performed surgery to repair
the torn muscle.

Mendoza had follow up examinations with Dr.

Bell through January of 2008.

In March of 2008, Mendoza saw Dr.

Monawar because of back pain.

In April and May of 2008, Mendoza

had physical therapy for left pectoralis muscle weakness that was
recommended by his primary care physician, Dr. Jacinto P. Casio.

An MRI done in August of 2009 showed disc disease at L5-S1
with central disc extrusion.

Dr. Casio prescribed pain

medication for low back pain and also treated Mendoza for
hypertension and dyslipidemia (excess cholesterol).
continued to be treated by Dr. Casio through 2011.

Mendoza
Mendoza

underwent evaluative examinations and assessments in 2009 through
2011 for purposes of his application for benefits.

II.

Procedural History
Mendoza applied for social security benefits on May 21,

2007, alleging that he had been disabled since January 1, 2007,
due to a ruptured left pectoralis muscle and lumbar disc disease.

2

When his application was denied, Mendoza sought a hearing before
an Administrative Law Judge (“ALJ”).

The hearing was held on

March 11, 2010, and Mendoza, who was represented by counsel,
testified.

A vocational expert also testified.

The ALJ issued his decision on April 16, 2010.

The ALJ

found that Mendoza had “left upper extremity disorder” and
degenerative disc disease of the lumbar spine that were severe
impairments.

Admin. Rec. at 24.

The ALJ also found that despite

those impairments Mendoza was able to do light work except for
jobs that required reading and writing.

In addition, the ALJ

imposed work limitations for no overhead reaching with the left
arm, only occasional pushing and pulling and horizontal reaching
with the left arm, no climbing ladders or scaffolding, and only
unskilled work with routine and repetitive tasks.

Although he

found that Mendoza could not return to his former work as a
machine operator or a warehouse worker, the ALJ concluded, based
on the testimony of the vocational expert, that jobs existed in
significant numbers that Mendoza could do.

Therefore, the ALJ

determined that Mendoza was not disabled.

Mendoza sought review of that decision here, arguing that
the ALJ did not properly evaluate the medical opinions in the
record.

The court held that the ALJ did not adequately explain

3

his reasons for giving controlling weight to the opinion of the
state agency non-examining physician while giving little weight
to the opinions of Mendoza’s treating physicians.

The court also

noted that the state agency non-examining physician completed his
review of the record before certain test results and the opinions
of Mendoza’s general practitioner were added to the record.

As a

result, the decision of the Commissioner was vacated, and the
case was remanded for further proceedings.

See Mendoza v.

Astrue, Case No. 10-cv-157-SM (D.N.H. May 10, 2011).

On remand, the case was assigned to the same ALJ, and a
hearing was held on November 17, 2011.

Mendoza, who was again

represented by counsel, was present and testified.

Donald

Goldman, M.D., an orthopedic surgeon, testified telephonically as
an independent medical expert.

A vocational expert testified in

person.

The ALJ issued his decision on January 20, 2012, in which he
again concluded that Mendoza was not disabled.

In this decision,

the ALJ found that Mendoza’s severe impairments were degenerative
disc disease of the lumbar spine and ruptured left pectoralis
muscle.

The ALJ reviewed the medical evidence and found that

Mendoza’s allegations as to the severity of his limitations were
not supported by the record.

Based on his review of the record,

4

the ALJ concluded that Mendoza had the residual functional
capacity “to perform a range of light-sedentary work as defined
in 20 C.F.R. 404.1567(a) and 416.967(a) except he can lift up to
20 pounds occasionally and 10 pounds frequently, but he can sit
for 8 hours, stand and walk for 1 hour each in an eight hour work
day.”

Admin. Rec. at 501.

The ALJ also found some limitations

in Mendoza’s ability to reach with his left arm and in doing
postural activities.

In making the residual functional capacity assessment, the
ALJ gave great weight to Dr. Goldman’s opinion that Mendoza had
no restrictions on his ability to walk, stand, and sit.

The ALJ

gave moderate weight to the medical opinions of a consultative
examining physician, Dr. Ralph Wolf, and two state agency medical
consultants, Dr. Hugh Fairley and Dr. Robert F. Draper, who each
found that Mendoza had residual functional capacity for work with
some limitations.

The ALJ gave some weight to the opinion of an

occupational therapist, John Moran, who evaluated Mendoza and
found he had a residual functional capacity to do light work but
only on a part-time basis.

The ALJ gave little weight to the

opinion of Mendoza’s treating physician, Dr. Casio, that Mendoza
was unable to work, and little weight to similar opinions by
treating physicians, Dr. Bell and Dr. Monawar.

5

The ALJ found that Mendoza could not do his past relevant
work because those jobs required exertional levels beyond
Mendoza’s capacity.

Although Mendoza’s counsel argued that

Mendoza had limited ability to communicate, read, and write in
English because he had grown up and gone to school in Mexico, the
ALJ noted Mendoza’s proficiency in English at the hearing and
that Mendoza had obtained a general equivalency degree.

Based on

the vocational expert’s testimony, the ALJ found that Mendoza
could do jobs such as an addresser, loader of semi-conductor
dies, and surveillance system monitor.

For that reason, the ALJ

found that Mendoza was not disabled.

Standard of Review
Pursuant to § 405(g), the court is empowered “to enter, upon
the pleadings and transcript of the record, a judgment affirming,
modifying, or reversing the decision of the Commissioner of
Social Security, with or without remanding the cause for
rehearing.”

In reviewing a social security decision, the court

“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. 1999);

accord Seavey v. Barnhart, 276 F.3d 1, 9 (1st Cir. 2001).
Factual findings and credibility determinations made by the
Commissioner are conclusive if supported by substantial evidence.

6

§ 405(g); Irlanda Ortiz v. Sec’y of Health & Human Servs., 955
F.2d 765, 769 (1st Cir. 1991).
than a scintilla.

“Substantial evidence is more

It means such relevant evidence as a

reasonable mind might accept as adequate to support a
conclusion.”

Astralis Condo. Ass’n v. Sec’y Dep’t of Housing &

Urban Dev., 620 F.3d 62, 66 (1st Cir. 2010).

Disability, for purposes of social security benefits, is
“the inability to do any substantial gainful activity by reason
of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.”

20 C.F.R. § 404.1505(a).3

The ALJ follows a five-step

sequential analysis for determining whether a claimant is
disabled.

20 C.F.R. § 404.1520.

The claimant bears the burden,

through the first four steps, of proving that his impairments
preclude him from working.
608 (1st Cir. 2001).

Freeman v. Barnhart, 274 F.3d 606,

At the fifth step, the Commissioner

determines whether other work that the claimant can do, despite
his impairments, exists in significant numbers in the national

3

The Social Security Administration promulgated
regulations governing eligibility for disability insurance
benefits at Part 404 and eligibility for supplemental security
income at Part 416. Because the regulations are substantially
the same, the court will cite only to the disability insurance
benefits regulations, Part 404. See McDonald v. Sec’y of Health
& Human Servs., 795 F.2d 1118, 1120 n.1 (1st Cir. 1986).
7

economy and must produce substantial evidence to support that
finding.

Seavey, 276 F.3d at 5.

Discussion
In support of his motion to reverse the Acting
Commissioner’s decision, Mendoza contends that the ALJ did not
weigh the medical opinion evidence properly, particularly the
opinions of Dr. Goldman and Dr. Casio.

Mendoza also contends

that the ALJ failed to properly consider his language limitations
and did not identify enough jobs to meet the significant numbers
requirement at Step Five.

The Acting Commissioner moves to

affirm.

I.

Medical Opinions
The social security regulations provide the structure for

determining what weight is given to medical opinions.
§ 1527.

20 C.F.R.

As directed by the regulations, the ALJ attributes

weight to a medical opinion based on a variety of factors
including the nature of the relationship between the medical
source and the applicant, the extent to which the opinion
includes supporting information, the consistency of the opinion
with the record as a whole, the specialization of the source, the
source’s understanding of the administrative process, and the
source’s familiarity with the applicant’s record.

8

§ 404.1527(d);

see also Policy Interpretation Ruling Titles II and XVI:

Giving

Controlling Weight to Treating Source Medical Opinions, SSR 962p, 1996 WL 374188 (July 2, 1996).

A treating medical source is

the applicant’s own physician, psychiatrist, psychologist, or
other acceptable medical source.

20 C.F.R. § 404.1502.

A

treating source’s opinion will be given controlling weight if it
is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence in [the] case record.”

§ 404.1527(d).

If the ALJ decides not to give controlling weight to a treating
source’s opinion, the decision must provide specific reasons to
support the weight given.

A.

SSR 96-2p.

Dr. Goldman

Dr. Goldman, an orthopedic surgeon, testified at the hearing
as a medical expert but did not treat or examine Mendoza.

During

his testimony, Dr. Goldman stated that there was no objective
evidence in the record to support Mendoza’s complaints of
disabling pain in his back or the limitations ascribed by some of
the other medical sources.

In Dr. Goldman’s opinion, Mendoza had

no limitations in his ability to stand, walk, or sit, but was
restricted from climbing ladders and scaffolding.4

4

Mendoza contends that Dr. Goldman erred in failing to
consider his hypertension and other physical issues. As Dr.
Goldman explained, he is an orthopedic surgeon and did not
9

The ALJ gave “great weight” to Dr. Goldman’s opinion.

In

support, the ALJ stated that Dr. Goldman had reviewed the entire
record and had heard Mendoza’s testimony at the hearing.

The ALJ

noted that Dr. Goldman was questioned by Mendoza’s counsel and
had explained the significance of a lack of objective findings
and clinical examination results to support the limitations
Mendoza claimed.

The ALJ also noted that Dr. Goldman

acknowledged some limitations caused by the injury to Mendoza’s
pectoralis muscle but that the injury did not preclude all
functioning.

The ALJ found that Dr. Goldman’s opinion was well

supported by the record.

Mendoza contends that Dr. Goldman’s opinion should not have
been given great weight for a variety of reasons.

Mendoza,

however, does not contend that Dr. Goldman misread the record and
overlooked objective findings and clinical examination results
that support Mendoza’s claims.5

At the hearing, counsel for

Mendoza acknowledged in response to a question from Dr. Goldman
that Dr. Wolf’s consultative examination was the only record

consider other issues that were not within his area of expertise.
5

Although Mendoza criticizes Dr. Goldman for failing to
mention records generated by Dr. Wang at Pain Solutions, Dr. Wang
provides no objective findings that support Mendoza’s claims.
Dr. Wang found good range of motion, pain free, in Mendoza’s hips
and legs, and no difficulty with walking. Dr. Wang also noted
that straight leg testing was negative.
10

evidence of an examination of Mendoza’s back for function.

While

Dr. Goldman’s “vehement” disagreement with Dr. Wolf’s opinions
seems a bit overstated, Dr. Goldman was correct that Dr. Wolf’s
examination notes show normal ranges of motion in Mendoza’s left
arm and both legs and hips and negative results on straight-leg
tests.

To the extent that Mendoza challenges the ALJ’s reliance on
Dr. Goldman’s opinion because the ALJ might have requested a
consultative examination or might have submitted written
interrogatories to Dr. Goldman, Mendoza has not shown that
failure to employ those options warrants reversal of the ALJ’s
decision.

In addition, although Mendoza argues that Dr. Goldman

should have submitted a written report expressing his opinion
before the hearing, Mendoza provides no authority suggesting that
such a report was required.

The opinion of a non-examining medical expert may provide
substantial evidence to support the ALJ’s findings when the
opinion is properly supported by adequate explanations.
§ 404.1527(c)(3); Berrios Lopez v. Sec’y of Health & Human
Servs., 951 F.2d 427, 431 (1st Cir. 1991).

Dr. Goldman explained

that his opinion was based on the lack of objective findings in
the record supporting Mendoza’s complaints, specifically that the

11

record did not show atrophy in his legs, a gait abnormality,
positive results on straight leg testing, parathesias or
weakness, or supporting test results.

Instead, Dr. Goldman

explained, the record contained opinions about limitations based
on Mendoza’s subjective complaints of pain without any test
results to support the opinions.

Dr. Goldman noted that the

evaluation done by the occupational therapist was more than two
years old and that the medical records produced since did not
show supporting objective evidence of limitations.

Dr. Goldman

disagreed with the opinions of Mendoza’s primary care doctor, Dr.
Casio, because he was not a surgeon, and he disagreed with the
opinion of the consulting orthopedist, Dr. Wolf, because he did
not reference medical evidence to support the limitations he
found.

Although Dr. Goldman’s manner in giving testimony may have
been unconventional, he provided explanations for his opinions
based on the record.

He asked questions during his testimony to

satisfy himself that he had seen all of the medical record and
that there were no other test results or records to support the
limitations Mendoza claimed.

He did not diagnose Mendoza’s back

issue because he did not find medical support for the pain
Mendoza claimed.

As such, Dr. Goldman’s opinion was properly

12

supported and entitled to the weight the ALJ chose to ascribe to
it.

B.

Dr. Casio

Dr. Casio gave opinions about Mendoza’s impairments and
limitations based on his treating relationship with Mendoza, as
his primary care physician.

In 2008, Dr. Casio wrote that his

office was following Mendoza and that Mendoza’s chronic low back
pain made it difficult for him to work.

Between 2009 and 2011,

Dr. Casio wrote several “To Whom It May Concern” letters saying
that Mendoza was being followed by his office and was unable to
work because of significant low back pain due to lumbar disc
disease.

In May of 2010, Dr. Casio completed a medical source
statement in which he noted that Mendoza was limited to lifting
and carrying no more than ten pounds occasionally, could walk or
stand for less than two hours in an eight-hour day, and was
limited in his ability to push and pull.

Dr. Casio also

indicated that Mendoza would need unscheduled breaks, was not
capable of sustaining gainful employment, and would be absent
three or more times per month.

In a “To Whom It May Concern”

note written on the same day, Dr. Casio stated that Mendoza had
intractable low back pain and chronic pain due to the pectoralis

13

muscle rupture, that he was deconditioned, and that he was being
followed for hypertension and dyslipidemia.

The ALJ acknowledged Dr. Casio’s notes and his opinions as
provided in the medical source statement, but gave those opinions
little weight.

The ALJ explained that although Dr. Casio’s

treatment notes document Mendoza’s subjective complaints about
his back pain, Dr. Casio did not perform musculoskeletal
examinations to evaluate his subjective complaints.

As a result,

Dr. Casio’s treatment notes included little or no objective or
clinical testing results to support his opinion.

Mendoza argues that the ALJ overemphasized the need for
clinical or objective evidence to support his impairments and
instead should have credited Dr. Casio’s opinion that was based
on Mendoza’s subjective complaints.
on SSR 96-7p, “Titles II and XVI:
Disability Claims:

In support, Mendoza relies

Evaluation of Symptoms in

Assessing the Credibility of an Individual’s

Statements,” 1996 WL 374186, which explains that while symptoms
cannot be measured objectively, the effects of symptoms can be
clinically observed through examination and objective results.
Dr. Casio did not clinically observe the claimed effects of
Mendoza’s symptoms.

As such, SSR 96-7p does not support

Mendoza’s claim of error.

14

Therefore, the ALJ properly explained the weight he
attributed to Dr. Casio’s opinion.

C.

Other Opinions

Mendoza contends that the ALJ ascribed the greatest weight
to the least credible sources and should have given greater
weight to the treating source opinions.
“Titles II and XVI:

Relying on SSR 96-8p,

Assessing Residual Functional Capacity in

Initial Claims,” 1996 WL 374184, at *5, Mendoza argues that the
ALJ should have given more weight to other opinions “because
subjective descriptions may indicate more severe limitations or
restrictions than can be shown by objective medical evidence
alone.”

1.

Other Medical Opinions

Mendoza disagrees with the weight ascribed to other nontreating sources, Dr. Draper and Dr. Fairley.

The ALJ gave each

opinion moderate weight and explained that their opinions were
consistent with the record evidence that “showed largely normal
examinations.”

Because those opinions were not from treating

sources, the ALJ gave them only moderate weight.

As such, the

ALJ properly explained the basis for his assessment of those
decisions.

15

Mendoza notes that the ALJ did not address Dr. Wang’s
“impressions” of Mendoza based on a single examination conducted
for purposes of providing pain management care.
identify a medical opinion that the ALJ ignored.

Mendoza does not
Further, as

discussed above, Dr. Wang’s treatment notes do not provide
support for disabling impairments.

Dr. Wolf, who did a consultative examination, provided an
opinion that Mendoza could work at a sedentary exertional
capacity with certain other restrictions.

The ALJ gave Dr.

Wolf’s opinion moderate weight because it was consistent with
other treatment notes and functional capacity evaluations.
Mendoza does not explain why that assessment was erroneous.

The ALJ explained that he gave the opinions of Dr. Bell and
Dr. Monawar, both treating physicians who gave opinions that
Mendoza was unable to work in 2007 and 2008, little weight.

The

ALJ explained that Dr. Bell did not provide an analysis of
Mendoza’s functional abilities and limitations, that his opinion
was inconsistent with Dr. Bell’s evaluation of Mendoza, and that
the opinion that Mendoza could not work addressed an issue that
is reserved for the Commissioner to decide.

Similarly, the ALJ

explained that Dr. Monawar’s opinion was expressed on a health
certificate that Mendoza was disabled and could not work as of

16

April of 2008 and that the opinion was not consistent with Dr.
Monawar’s evaluation of Mendoza, was based on a short treating
relationship, and addressed an issue which is reserved for the
Commissioner.

The ALJ, therefore, adequately explained his

reasons for giving little weight to those opinions.

2.

Occupational Therapist Evaluation

John Moran did a functional capacity evaluation of Mendoza.
Moran found that Mendoza could work at the light exertional
level, avoiding overhead lifting with the left shoulder, but only
on a part-time basis.

The ALJ gave Moran’s opinion some weight

but stated that it was unclear why Moran limited Mendoza to parttime work when Mendoza was able to complete the three-hour test,
although some activities were interrupted by elevated blood
pressure.

The ALJ noted that Mendoza’s elevated blood pressure

had not been treated at the time of the evaluation and that the
issue was addressed in the restrictions in the residual
functional capacity.

Mendoza argues that Moran’s opinion is the best source of
his ability to do work activities.

He contends that the ALJ did

not adequately explain the weight ascribed to the opinion and

17

ignored Moran’s restrictions that would allow Mendoza to “self
pace” and change position at work.6

Only acceptable medical sources can give medical opinions,
can be considered treating sources, and can establish the
existence of a medically determinable impairment.

§§ 404.1502,

404.1513(a), & 404.15276(a)(2); see also SSR 06-3p, 2006 WL
2329939, at *2 (Aug. 9, 2006)7; Taylor v. Astrue, 899 F. Supp. 2d
83, 88 (D. Mass. 2012).

Other care providers “may provide

insight into the severity of the impairment and how it affects
the individual’s ability to function.”

SSR 06-3p, 2006 WL

2329939, at *2; accord Young v. Colvin, 2014 WL 711012, at *6
(D.N.H. Feb. 25, 2014); Noonan v. Astrue, 2012 WL 5905000, at *8
(D.N.H. Nov. 26, 2012).

“As the Commissioner’s own Social

Security Ruling explains, ‘[t]he evaluation of an opinion from a
medical source who is not an “acceptable medical source” depends
on the particular facts in each case.

Each case must be

adjudicated on its own merits based on a consideration of the
probative value of the opinions and a weighing of all the

6

Moran’s limitation for change of position related to his
opinion that, in the future, Mendoza may be able to do full time
work at the medium exertional level.
7

SSR 06-3p is titled Titles II and XVI:II and XVI:
Considering Opinions and Other Evidence from Sources Who Are Not
“Acceptable Medical Sources” in Disability Claims; Considering
Decisions on Disability by Other Governmental and Nongovernmental
Agencies.”
18

evidence in that particular case.’”

Taylor, 899 F. Supp. 2d at

88 (quoting SSR-06-3p at *5).

The ALJ correctly noted that Moran did not explain why he
limited Mendoza to part-time work.

It appears from Moran’s

report that the limitation may have been based on Mendoza’s poor
conditioning, which led to elevated heart rate and blood pressure
during certain activities.
January of 2009.

Moran’s evaluation was done in

Subsequent medical sources have not limited

Mendoza to part-time work.

Therefore, the ALJ properly

considered Moran’s evaluation results and was not required to
give them more weight than was ascribed.

Mendoza has not shown any reversible error based on the
ALJ’s evaluation of the medical opinion evidence.

II.

Residual Functional Capacity
The ALJ found that Mendoza had “the residual functional

capacity to perform a range of light-sedentary work as defined in
20 CFR 404.1567(a) and 416.967(a) [sic] except he can lift up to
20 pounds occasionally and 10 pounds frequently, but he can sit
for 8 hours, stand and walk for 1 hour each in an 8 hour
workday.”

Admin. Rec. at 501.

The ALJ found that Mendoza could

“frequently reach, handle, finger, feel, push, and pull with the

19

right dominant hand.”

Id.

Mendoza was limited with his left arm

and hand “to occasional reaching overhead, reaching in other
directions, and pushing and pulling.”

Id.

He was able to do all

postural activities occasionally but had to avoid unprotected
heights, work with vibrating machines, and extreme temperatures.

A.

Capacity

Mendoza contends that the ALJ’s residual functional capacity
assessment is misleading because of the limitation to “lightsedentary work.”

He argues that as described by the ALJ his

exertional capacity was less than sedentary because of limited
lifting, no carrying, and other restrictions.

Mendoza

misinterprets the ALJ assessment.

The ALJ cited § 404.1567(a) and § 416.967(a), which define
sedentary work for purposes of Title II and Title XVI,
respectively.

“Sedentary work involves lifting no more than 10

pounds at a time and occasionally lifting or carrying articles
like docket files, ledgers, and small tools.”

§ 404.1567(a).

The ALJ modified that assessment to allow lifting up to 20 pounds
occasionally and 10 pounds frequently, which corresponds to the
definition of light work at § 404.1567(b) and § 416.967(b).
Therefore, the ALJ assessed a capacity for sedentary work with a

20

capacity for lifting and carrying at the light work level.

The

assessment is properly explained and is not misleading.

B.

Language

Mendoza contends that the ALJ erred in failing to impose a
limitation in the residual functional capacity on his ability to
communicate in English, specifically to read and write in
English.

Mendoza argues that the ALJ imposed that limitation in

his prior decision, issued on April 16, 2010, and did not
adequately explain why the limitation was omitted from the
decision under review here.

The ALJ’s prior decision denying Mendoza’s application for
benefits for the same period of disability was vacated by the
Appeals Council and does not have preclusive effect.

See Izzo v.

Comm’r of Social Sec., 186 Fed. Appx. 280, 287 (3d Cir. 2006);
Kerney v. Colvin, ___ F. Supp. 2d ___, 2014 WL 1091968, at *6
(S.D. Ohio Mar. 18, 2014); cf. Drummond v. Comm’r of Social Sec.,
126 F.3d 837, 843 (6th Cir. 1997) (burden on Commissioner to show
changed circumstances for a second application to avoid
preclusive effect of a prior final decision awarding benefits).
Therefore, the ALJ’s previous residual functional capacity
assessment has no effect on the decision under review.

21

In the current decision, the ALJ noted that counsel for
Mendoza represented that Mendoza does not read and write well in
English and that she filed a brief on the issue after the second
hearing.

In the brief, the ALJ recounted, counsel represented

that Mendoza attended school in Mexico, that his primary language
is Spanish, and that his English vocabulary is somewhat limited.
Counsel also said that Mendoza had attained a general equivalency
degree.

The ALJ found that Mendoza’s general equivalency degree was
“highly reflective of his abilities with the English language.”
The ALJ also noted that although an interpreter was available at
the hearing, Mendoza had not needed that assistance and that
Mendoza demonstrated no limitations in his ability to communicate
in English during the hearing.

The ALJ noted that counsel had

not provided any evidence, other than Mendoza’s testimony, that
he had difficulty in reading and writing in English.

In support of his motion to reverse, Mendoza argues that
although he can communicate verbally in English, “he has a heavy
accent, he cannot verbally communicate grammatically well, and
his English vocabulary is limited.”

Further, Mendoza contends,

“verbal communication in English was not the concern as much as
English reading and writing.”

Mendoza cites his adult function

22

report, which he completed in September of 2007, to show his
inability to read and write in English.

The adult function report does not include questions, test
results, or other direct information about Mendoza’s ability to
read and write in English.

Mendoza argues that his spelling

errors in his answers show his language limitations, as the ALJ
noted in his previous decision.

Although he made some spelling

errors, it is not clear whether those mistakes were due to haste
and a lack of proof reading or language limitations.

Mendoza has

not shown that the ALJ erred in failing to include a language
limitation in the residual functional capacity assessment.

C.

Other Limitations

To the extent Mendoza argues that the ALJ’s residual
functional capacity is wrong because he did not consider
limitations caused by high blood pressure, heart disease,
headaches, or impaired renal functions, he has not shown
functional restrictions imposed by those conditions.

Further,

the ALJ noted that Mendoza’s blood pressure was untreated during
the functional capacity evaluation done by John Moran and that
the issue was considered in the residual functional capacity
assessment by limiting activities that caused pain.

23

Therefore,

Mendoza has not shown reversible error based on a failure to
consider all of his impairments and limitations.

III.

Jobs
Based on the vocational expert’s hearing testimony, the ALJ

found that Mendoza could do unskilled sedentary work and that
representative jobs included addresser, loader of semiconductor
dies, and surveillance system monitor.

Mendoza contends that

because of his limited ability to read and write in English, he
could not do the jobs the vocational expert identified.

As

discussed above, Mendoza has not shown that the ALJ erred in
failing to include a language limitation in the residual
functional capacity.

Without a language limitation, the

vocational expert testified that Mendoza could do all three jobs.

The vocational expert also testified that even with the
language limitations Mendoza described at the hearing he could
still do the addresser and loader jobs but that he did not know
whether he could do the surveillance monitor job.

Mendoza argues

that addresser and loader occupations do not provide enough jobs
to meet the requirement of a significant number of jobs in the
regional or national economies.

24

The significant number requirement is satisfied by jobs in
either the regional or the national economy.

42 U.S.C.

§ 423(d)(2)(A); see also Beltran v. Astrue, 700 F.3d 386, 389
(9th Cir. 2012); Seavey, 276 F.3d at 5; Lawler v. Astrue, 2011 WL
1485280, at *5 (D. Md. Apr. 19, 2011).

The vocational expert

testified that there are about 100 addresser jobs in New
Hampshire and 20,000 addresser jobs in the national economy and
less than 100 loader jobs in New Hampshire and about 700 in the
national economy.

Together, therefore, there are 20,700 jobs in

the national economy.

Although Mendoza states that 20,700 “is

hardly a significant number,” he offers no authority or developed
argument to show that 20,700 jobs nationally is insufficient to
meet the requirement at Step Five.

See, e.g., Gutierrez v.

Comm’r of Social Sec., 740 F.3d 519, 528 (9th Cir. 2014) (holding
that 25,000 jobs in national economy was significant and citing
cases); Johnson v. Chater, 108 F.3d 178, 180 (8th Cir. 1997) (200
jobs regionally and 10,000 jobs nationally sufficient); see also
Beltran, 700 F.3d at 390-91 (discussing factors needed to
determine a “significant number”); Yelovich v. Colvin, 532 Fed.
Appx. 700, 702 (9th Cir. 2013) (no bright line rule for
determining “significant number”); Taylor v. Astrue, 494 Fed.
Appx. 895, 898 (10th Cir. 2012) (same).

25

Therefore, Mendoza has not shown that the ALJ erred in
finding Mendoza not disabled based on the vocational expert’s
testimony about the jobs he could do.

Because substantial evidence supports the ALJ’s findings,
the decision must be affirmed.

Conclusion
For the foregoing reasons, the claimant’s motion to reverse
the decision of the Commissioner (document no. 11) is denied.
The Commissioner’s motion to affirm (document no. 14) is granted.
The clerk of court shall enter judgment in accordance with this
order and close the case.

SO ORDERED.

____________________________
Steven J. McAuliffe
United States District Judge
August 19, 2014
cc:

Janine Gawryl, Esq.
T. David Plourde, AUSA

26