HERNANDEZ-FLORES v. COMMISSIONER OF SOCIAL SECURITY

Filing 19

OPINION. Signed by Judge Esther Salas on 7/1/15. (DD, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

:
YUDELKA E. HERNANDEZ-FLORES, :
:
Plaintiff,
:
:
v.
:
:
COMMISSIONER OF
:
SOCIAL SECURITY,
:
:
Defendant.
:
:

Civil Action No. 13-4738
OPINION

SALAS, DISTRICT JUDGE
I.

INTRODUCTION
Yudelka E. Hernandez-Flores (“Plaintiff”) appeals the final determination of the

Commissioner of the Social Security Administration (“Commissioner”) denying her Disability
Insurance Benefits (“DIB”) and Supplemental Security Income benefits (“SSI”) under Titles II and
XVI of the Social Security Act (“SSA”), respectively. This Court has jurisdiction to hear this
matter pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). This motion has been decided upon the
written submissions of the parties pursuant to Federal Rule of Civil Procedure 78. Because
substantial evidence supports the Commissioner’s decision, the decision of the Commissioner is
affirmed.
II. PROCEDURAL BACKGROUND
Plaintiff applied for DIB on December 20, 2010 and SSI on January 6, 2011, alleging
disability due to depression since September 27, 2010. (Tr. 41, 138-46, 155). Her applications
were denied initially and on reconsideration; thereafter, Plaintiff requested a hearing before an
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administrative law judge (“ALJ”). (Tr. 77, 85, 88, 90-91). Plaintiff appeared before ALJ Richard
West on May 4, 2012. (Tr. 18).
On May 15, 2012, the ALJ issued a decision finding Plaintiff not disabled under the Act.
(Tr. 18-24). At step one of the sequential evaluation, the ALJ found that Plaintiff had not
performed substantial gainful activity since September 27, 2010, her alleged onset date. (Tr. 20).
At step two, the ALJ determined that Plaintiff’s depression was a severe impairment. (Tr. 20). At
step three, the ALJ found that Plaintiff’s impairments neither met nor medically equaled one of
the impairments listed in Appendix 1 of 20 C.F.R. Part 404, Subpart P. (Tr. 20-21). Specifically,
the ALJ considered Plaintiff’s depression under § 12.04. (Tr. 20-21). At step four, the ALJ
determined that Plaintiff retained the residual functional capacity (“RFC”) to perform the full range
of work across all exertional levels. (Tr. 21). Additionally, the ALJ found that Plaintiff could
understand, remember, and carry out simple instructions; respond appropriately to supervision,
coworkers, and unusual work situations; and deal with changes in a routine work setting. (Tr. 21).
At step four, the ALJ found that Plaintiff could not perform her past relevant work. (Tr. 23).
Lastly, at step five the ALJ determined that Plaintiff could perform other work existing in
significant numbers in the national economy given her RFC and vocational factors of age,
education, and work experience. (Tr. 24). Relying on Medical-Vocational Guideline 204.00, set
forth at 20 C.F.R. Part 404, Subpart P, Appendix 2, the ALJ concluded that Plaintiff was not
disabled from her alleged onset date through May 5, 2012, the date of his decision. (Tr. 24).
Plaintiff’s requested review by the Appeals Council was denied on June 25, 2013, thus
rendering the ALJ’s decision the final decision of the Commissioner. (Tr. 1-3, 10). On August 7,
2013, Plaintiff commenced the instant action. (D.E. No. 1). On March 24, 2015, Plaintiff filed a

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brief pursuant to Local Civil Rule 9.1, (D.E. No. 14), and the Commissioner filed a brief on June
5, 2015, (D.E. No. 17). The matter is now ripe for adjudication.
III. LEGAL STANDARD
A. Standard for Awarding Benefits
Pursuant to the SSA, to receive SSI, a plaintiff must show that she is disabled by
demonstrating that she is unable to “engage in 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.” 42
U.S.C. § 423(d)(1)(A). Thus, the plaintiff’s physical or mental impairments must be “of such
severity that he is not only unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful work which exists
in the national economy.” Id. at § 423(d)(2)(A). Impairments that affect a plaintiff’s “ability to
meet the strength demands of jobs” with respect to “sitting, standing, walking, lifting, carrying,
pushing, and pulling” are considered exertional limitations. 20 C.F.R. § 404.1569a; see also Sykes
v. Apfel, 228 F.3d 259, 263 (3d Cir. 2000). All other impairments are considered non-exertional.
Sykes, 228 F.3d at 263. Decisions regarding disability are made individually based on evidence
produced at a hearing. Id. at 262 (citing Heckler v. Campbell, 461 U.S. 458, 467 (1983)). Congress
has defined a physical or mental impairment as “an impairment that results from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. §§ 423(d)(3).
The SSA proscribes a five-step sequential evaluation to determine whether a plaintiff is
disabled. 20 C.F.R. § 416.920. The evaluation will continue through each step unless it can be
determined at any point that the plaintiff is, or is not disabled. 20 C .F.R. § 416.920(a)(4). The

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claimant bears the burden of proof for the first four steps of the analysis. Poulous v. Comm’r of
Soc. Sec., 474 F.3d 88, 92 (3d Cir. 2007). The burden shifts to the Commissioner for the fifth step.
Id. (citing Sykes v. Apfel, 228 F.3d 259, 263 (3d Cir. 2000)); see also Jones v. Barnhart, 364 F.3d
501, 503 (3d Cir. 2004) (noting that “the burden of production shifts to the Commissioner” at the
fifth step) (internal quotation marks omitted)).
At step one, the plaintiff’s work activity is assessed, and she must demonstrate that she is
not engaging in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(i). A plaintiff is engaging
in substantial gainful activity if she is doing significant physical or mental activities usually done
for pay or profit. Id. at § 416.972. If the plaintiff is engaged in substantial gainful activity, she
will be found not disabled and the analysis will stop, regardless of the plaintiff’s medical condition,
age, education, or work experience. Id. at § 416.920(b). If the plaintiff is not engaging in
substantial gainful activity, the analysis proceeds to the second step. At step two, the plaintiff must
show that she has a medically determinable “severe” impairment or a combination of impairments
that is “severe.” Id. at § 416.920(a)(4)(ii). An impairment is severe when it significantly limits a
plaintiff’s physical or mental ability to perform basic work activities. Id. at § 416.920(c). It is not
severe when medical evidence shows only a slight abnormality or minimal effect on an
individual’s ability to work. See Leonardo v. Comm’r of Soc. Sec., No. 10-1498, 2010 WL
4747173, at *4 (D.N.J. Nov. 16, 2010) (citation omitted). If a plaintiff does not have a medically
determinable severe impairment, she is not disabled. 20 C.F.R. §§ 416.920(a)(4)(ii), (c). If the
plaintiff has a severe impairment, the analysis proceeds to the third step.
At step three, the ALJ must determine, based on the medical evidence, whether the
plaintiff’s impairment matches or is equivalent to a listed impairment found in the Social Security
Regulations’ “Listings of Impairments” found in 20 C.F.R. § 404, Subpart P, Appendix 1. 20

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C.F.R. § 416.920(a)(4)(iii). If the impairments are the same or equivalent to those listed, the
plaintiff is per se disabled. 20 C.F.R. § 416.920(d); Burnett v. Comm’r of Soc. Sec., 220 F.3d 112,
119 (3d Cir. 2000). At this point, the ALJ must set forth the reasons for his findings. Burnett, 220
F.3d at 119. The Third Circuit requires the ALJ to identify the relevant listings and explain his
reasoning using the evidence. Id. Simple conclusory remarks will not be sufficient and will leave
the ALJ’s decision “beyond meaningful judicial review.” Id.
When the plaintiff does not suffer from a listed impairment or an equivalent, the analysis
proceeds to step four. At step four, the ALJ must determine whether the plaintiff’s RFC enables
her to perform her past relevant work. 20 C.F.R. § 416.920(a)(4)(iv). This step involves three
sub-steps: (1) the ALJ must make specific findings of facts as to the plaintiff’s RFC; (2) the ALJ
must make findings regarding the physical and mental demands of the plaintiff’s past relevant
work; and (3) the ALJ must compare the RFC to the past relevant work to determine whether the
plaintiff has the capability to perform the past relevant work. Burnett, 220 F.3d at 120. The SSA
classifies RFC and past work by physical exertion requirements ranging from “sedentary” to “very
heavy” work. See id.; 20 C.F.R. § 404.1567. If the plaintiff can perform her past work, the ALJ
will find that she is not disabled. 20 C.F.R. § 416.920(f). If the plaintiff lacks the RFC to perform
any work she has done in the past, the analysis proceeds to the fifth and last step.
At step five, the Commissioner must show that, based on the plaintiff’s RFC and other
vocational factors, there is a significant amount of other work in the national economy that the
plaintiff can perform. 20 C.F.R. § 416.920(a)(4)(v). During this final step, the burden lies with
the government to show that the plaintiff is not disabled by demonstrating that there is other
substantial, gainful work that the plaintiff could perform, given her age, education, work
experience and RFC. See Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir. 2005); Sykes, 228

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F.3d at 263. If the Commissioner cannot show that there are other jobs for the plaintiff in the
national economy, then the plaintiff is disabled. 20 C.F.R. § 416.920(g)(1).
B. Standard of Review
This Court has jurisdiction to review the Commissioner’s decision under 42 U.S.C. §§
405(g) and 1383(c)(3). The Court must affirm the Commissioner’s decision if it is “supported by
substantial evidence.” 42 U.S.C. §§ 405(g) and 1383(c)(3); Stunkard v. Sec’y of Health & Human
Servs., 841 F.2d 57, 59 (3d Cir. 1988); Doak v. Heckler, 790 F.2d 26, 28 (3d Cir. 1986). Substantial
evidence is more than a “mere scintilla” of evidence and “means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402
U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
The Court is bound by the ALJ’s findings that are supported by substantial evidence “even
if [it] would have decided the factual inquiry differently.” Hartranft v. Apfel, 181 F.3d 358, 360
(3d Cir. 1999). Thus, this Court is limited in its review in that it cannot “weigh the evidence or
substitute its conclusions for those of the fact-finder.” Williams v. Sullivan, 970 F.2d 1178, 1182
(3d Cir. 1992) (internal citation omitted).
IV. DISCUSSION
Plaintiff argues that the ALJ’s analysis at step four with respect to Plaintiff’s RFC is not
supported by substantial evidence. (Pl. Br. at 9-17). For the reasons below, the Court finds that
substantial evidence supports the ALJ’s conclusion and affirms the ALJ’s decision.
It is the Plaintiff’s burden to demonstrate that she has a medically determinable impairment
that limits her exertion, which prevents her from working at her normal occupation.

See

Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir. 1979). In determining the RFC, the ALJ
must make a decision based on all of the relevant evidence, including a claimant’s medical record,

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statements by physicians, and a claimant’s description of her limitations.

20 C.F.R. §

416.945(a)(3).
However, when a claimant’s statements about her symptoms suggest a greater restriction
of function than can be demonstrated by objective evidence alone, the Commissioner considers
the following factors: (1) the claimant’s daily activities; (2) the nature, location, onset, duration,
frequency, radiation and intensity of pain; (3) factors precipitating and aggravating the symptoms;
(4) the type, dosage, effectiveness, and adverse side-effects of medication; (5) any other treatment
or relief of pain; and (6) any other measures used to relieve pain or other symptoms. 20 C.F.R. §§
404.1529(c), 416.929(c); Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999). A reviewing court
must uphold the Commissioner’s decision to discount a claimant’s complaints of pain and other
subjective complaints if the finding is supported by substantial evidence. See Burns v. Barnhart,
312 F.3d 113, 129 (3d Cir. 2002).
Additionally, the medical opinion of a treating source is entitled to “controlling weight”
only if it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques”
and is not inconsistent with other substantial evidence contained in the record. 20 C.F.R. §
416.927(c)(2). Furthermore, an ALJ may discount aspects of a medical opinion that are based on
the claimant’s subjective symptoms, even where the claimant has alleged a psychological
impairment. See Morris v. Barnhart, 78 F. App’x 820, 824-25 (3d Cir. 2003).
Here, the ALJ ultimately concluded that Plaintiff has the residual functional capacity to
“perform a full range of work at all exertional levels but with the following nonexertional
limitations: the claimant can understand, carry out and remember simple instructions; can respond
appropriately to supervision, coworkers and usual work situations; and can deal with changes in a
routine work setting.” (Tr. 21). In reaching this conclusion, the ALJ stated that he considered “all

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symptoms and the extent to which these symptoms can reasonably be accepted as consistent with
the objective medical evidence” in accordance with 20 CFR § 404.1529 and 416.929, and SSRs
96-4p and 96-7p. (Id.). The ALJ also considered opinion evidence in accordance with the
requirements of 20 CFR § 404.1527 and 416.927 and SSRs 96-2p, 96-5p, 96-6p, and 06-3p. (Id.).
There is substantial evidence in the record to support the ALJ’s findings, and the ALJ did
not err in discounting the testimony of Plaintiff and certain medical evidence.
First, the ALJ reasonably found that Plaintiff’s testimony did not support a finding of total
disability. The record shows that plaintiff engages in a “wide range” of activities of daily living,
including caring for her two children and taking them to and from school, performing house chores
such as cleaning, cooking and preparing meals daily, and shopping 2 to 3 times per week. (See Tr.
22, 181-87, 192-99). Thus, substantial evidence supports the ALJ conclusion that Plaintiff’s
“moderate level of depressive symptoms . . . do not prevent [her] from performing simple,
unskilled work,” 1 and that “routine and conservative . . . treatment and medications have been
helping.” (Tr. 22).
Second, the ALJ discussed the medical evidence and found in part that it was not entitled
to full weight. In particular, the ALJ gave less weight to the opinions of Dr. Sanchez and Dr. Rosa.
On March 20, 2013, Dr. Sanchez completed a mental residual functional capacity
questionnaire. (See Tr. 229-33). Dr. Sanchez indicated that Plaintiff was seriously limited, but
not precluded, from maintaining attention for two hour segments; maintaining regular attendance
and being punctual within customary, usually strict tolerances; sustaining an ordinary routine

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This is true even though the Commissioner acknowledges that the ALJ incorrectly stated that Plaintiff was able to
communicate in English, when in fact Plaintiff required an interpreter. Such error is harmless because “ability to
communicate in English has the least significance” with respect to work functions at the unskilled level. 20 C.F.R.
Part 404, Subpart P, App. 2 § 201.00(h)(4)(i).

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without special supervision; working in coordination with or proximity to others without being
unduly distracted; completing a normal workday and workweek without interruptions from
psychologically based symptoms; performing at a consistent pace without an unreasonable number
and length of rest periods; accepting instructions and responding appropriately to criticism from
supervisors; responding appropriately to changes in a routine work setting; dealing with normal
work stress; being aware of normal hazards and taking appropriate precautions; interacting with
the general public; adhering to basic standards of neatness and cleanliness; and traveling in
unfamiliar places. (Tr. 231-32). Dr. Sanchez also reported that Plaintiff had a limited but
satisfactory ability to maintain socially appropriate behavior; use public transportation;
understand, remember, and carry out very short and simple instructions; and ask simple questions
or request assistance. (Tr. 231-32). The doctor also stated that Plaintiff was unable to meet
competitive standards regarding her ability to understand, remember, and carry out detailed
instructions; set realistic goals or make plans independently of others; and deal with stress of semiskilled or skilled work. (Tr. 232). The doctor stated that Plaintiff was socially withdrawn, became
agoraphobic around people, neglected her activities of daily living, and would be absent from work
more than four days per month. (Tr. 232-33).
The ALJ noted that “Dr. Sanchez’s opinion is conclusory, lacks specificity, and is heavily
based on the claimant’s self reporting of symptoms.” (Tr. at 22). The ALJ further remarked that
Dr. Sanchez’s “opinion is inconsistent with the nature of treatment provided as well as with the
credible findings of the consultative psychiatric examination,” and that “Dr. Sanchez offers no
rationale for his conclusion of more than four work absences per month.” (Id.).
Similarly, Dr. Eddie Rosa, Plaintiff’s primary physician, provided opinions dated January
and June 2011, indicating that Plaintiff had numerous physical limitations. (Tr. 218-24). For

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example, Dr. Rosa indicated that Plaintiff could lift and carry less than ten pounds, stand/walk for
up to two hours per day, and had limited ability to push/pull and use foot controls. (Tr. 219).
The ALJ found that “the general medical report by treating physician Eddie Rosa, M.D.,
indicating a less than sedentary residual functional capacity is unsupported by the medical record,
especially since there is no objective medical evidence of a physical impairment warranting
exertional limitations.” (Tr. 22-23). The ALJ concluded that “Dr. Rosa is not a specialist, his
opinion is conclusory and lacks specificity, it is inconsistent with the statements of the claimant as
well as her activities of daily living, it is inconsistent with the nature of the treatment provided,
and is not supported by the treatment record.” (Tr. 23).
In addition to Plaintiff’s own testimony, the other medical evidence further does not
support a finding of severe limitations. For example, on February 23, 2011, Plaintiff was evaluated
by Dr. Iofin. (See Tr. 213-17). Dr. Iofin indicated that Plaintiff was fully oriented with reasonable
eye contact and without delusions or paranoia, and that she was not agitated, disruptive, violent,
suicidal, or homicidal, and did not appear to be psychotic. (Id. at 215). Dr. Iofin further noted,
among other things, that Plaintiff’s thought process was logical without blocking or derailment;
her speech was goal oriented and not rambling; and she understood and answered questions with
any significant amount of disruption. (Id. at 215-16). Dr. Iofin ultimately indicated that Plaintiff
had only mild symptoms or difficulties. (See Tr. 216). Other treatment notes are similar to those
of Dr. Iofin’s in that they do not support a finding of severe limitations. (See Tr. 240-44, 252-59
(treatment notes from the University of Medicine and Dentistry of New Jersey); Tr. 204-11
(treatment notes of Ariaceliz Ortiz and Joan E. Schaper)).
Accordingly, because the medical opinions are conclusory and not entirely supported by
other evidence in the record, the ALJ was not incorrect in affording them less weight. Instead, the

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ALJ properly considered the entirety of the medical evidence and the Plaintiff’s own testimony in
reaching his RFC conclusion.
Plaintiff also contends that the ALJ should have undertaken a function-by-function analysis
of Plaintiff’s abilities to perform certain physical demands of work activities, such as sitting,
standing, walking, lifting, carrying, pushing, pulling, etc. (Pl. Br. at 14-15). However, because
Plaintiff did not allege specific limitations, the ALJ was not required to undertake a function-byfunction analysis. See Bencivengo v. Comm’r, 251 F.3d 153 (Table), 00-1995, slip op. at 4 (3d.
Cir. Dec. 19, 2000) (noting, in unpublished opinion, that while a function-by-function analysis is
desirable, it is not required when specific limitations are not alleged). In Bencivengo, the Third
Circuit noted that there is no requirement under SSR 96-8p “to make specific, written findings on
dozens of individual work function categories” and that instead it is only necessary to “articulate
how the evidence in the record supports the RFC determination, discuss the claimant’s ability to
perform sustained work-related activities, and explain the resolution of any inconsistencies in the
record.” Id. at 4-5. Thus, the Court finds no error in this regard.
In sum, substantial evidence supports the ALJ’s finding that Plaintiff was capable of
performing work across all exertional levels.
Finally, Plaintiff additionally argues that the ALJ should have utilized vocational expert
(VE) testimony at step five to determine the types of work Plaintiff could perform. (Pl. Br. at 15).
However, when a claimant is limited to unskilled work at all exertional levels, as here, the
Commissioner may rely on an SSR (i.e., the Grids) instead of a VE when there is a “fit between
the facts of a given case and the way in which an SSR dictates that an individual’s non-exertional
limitations impact upon her occupational base.” Guerrero v. Comm’r of Soc. Sec., 249 F. App’x
289, 293 (3d Cir. 2007) (citation omitted). Here, the ALJ found that Plaintiff’s nonexertional

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limitations did not significantly compromise her occupational base for unskilled work at all
exertional levels and applied the framework found in Grid Rule 204.00 in determining that Plaintiff
was not disabled. In short, the ALJ found a “fit” between the facts of Plaintiff’s case and the Grid
Rule and therefore the Court finds no error at step five.
V. CONCLUSION
For the foregoing reasons, the decision of the ALJ is affirmed. An appropriate order
accompanies this opinion.

s/ Esther Salas_______
Esther Salas, U.S.D.J.

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