SANTIAGO LUNA v. COMMISSIONER OF SOCIAL SECURITY

Filing 13

OPINION. Signed by Judge Kevin McNulty on 9/14/2017. (JB, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

ANGEL SANTIAGO LUNA,
Plaintiff,

Civ. No. 16-4392 (KM)

V.

OPINION
NANCY BERRYHILL, Acting
Commissioner of Social Security,

Defendant.

KEVIN MCNULTY, U.S.D.J.:

Angel Santiago Luna brings this action pursuant to 42 U.S.C.

§

405(g) to

review a final decision of the commissioner of Social Security (“Commissioner”)
denying his claims to Disability’ Insurance Benefits (“DIB”) under Title II of the
Social Security Act, 42 U.S.C.

§ 40 1—34. For the reasons set forth below, the

decision of the Administrative Law Judge (“AW”) is AFFIRMED.
I.

BACKGROUND

Mr. Santiago Luna seeks to reverse an AW’s finding that he was not
disabled from July 10, 2011, the alleged onset date, through February 11,
2015, the date of the AW’s decision. (1?. 22-31).’
Santiago Luna completed his application for DIB on January 9, 2013,
alleging that he has been disabled since a July 10, 2011 accident. (1?. 92, 104).
The specific disabilities alleged were plates and screws in his left tibia/knee,
.“ The Brief in
Pages of the administrative record (ECF no. 6) are cited as “R.
Support of Plaintiff (ECF no. 10) is cited as “P1. Br.” Defendant’s Brief Pursuant to Local Civil
12) is cited as “P1.
.“ Plaintiffs Reply Brief (ECF no.
Rule 9.1 (ECF no. 11) is cited as “Def. Br.
Reply

1

depression, and high blood pressure. (R. 92-102). Santiago Luna’s application
was denied on June 12, 2013 (R. 92), and upon reconsideration on October 15,
2013. (R. 103).
On December 5, 2014, Santiago Luna appeared with counsel, Agnes
Wladyka, at a hearing before AU John Qiannopoulos. (1?. 22-3 1, 38). Brian J.
Daly, a vocational expert, testified. (R. 59-65). On February 11, 2015, the AU
issued a decision finding Santiago Luna not disabled under the Act because he
was able to perform work existing in the national economy. (1?. 22-3 1). On May
23, 2016, the Appeals Council denied Santiago Luna’s request for review, (1?. 16), rendering the AU’s decision the final decision of the Commissioner.
Santiago Luna then appealed to this Court, challenging the AU’s
determination that he was not disabled from July 10, 2011 through February
11,2015.
II.

DISCUSSION

To qualify for Title II DIB benefits, a claimant must meet the insured
status requirements of 42 U.S.C.

§

423(c). To qualify under that statute, a

claimant must show that he is unable to engage in substantial gainful activity
by reason of any medically determinable physical or mental impairment that
can be expected to result in death or that has lasted (or can be expected to last)
for a continuous period of not less than twelve months. 42 U.S.C.

§

423(d)(1)(A), 1382c(a)(3)(A); see, e.g., Diaz a Comm’r of Soc. Sec., 577 F.3d

500, 503 (3d Cir. 2009).
A. The Five-Step Process and this Court’s Standard of Review

Under the authority of the Social Security Act, the Social Security
Administration has established a five-step evaluation process for determining
whether a claimant is entitled to benefits. 20 C.F.R.

§

404.1520, 416.920.

This Court’s review necessarily incorporates a determination of whether the
AU properly followed the five-step process prescribed by regulation. The steps
may be briefly summarized as follows:

2

Step 1: Determine whether the claimant has engaged in substantial
gainful activity since the onset date of the alleged disability. 20 C.F.R.

§ 404.1520(b), 416.920(b). If not, move to step two.
Step 2: Determine if the claimant’s alleged impairment, or
combination of impairments, is “severe.” Id.

§ 404.1520(c),

4 16.920(c). If the claimant has a severe impairment, move to step
three.
Step 3: Determine whether the impairment meets or equals the
criteria of any impairment found in the Listing of Impairments. 20
C.F.R. Pt. 404, subpt. P, app. 1, Pt. A. (Those Part A criteria are
purposely set at a high level, to identify clear cases of disability
without further analysis.) If so, the claimant is automatically eligible
to receive benefits; if not, move to step four. Id.

§ 404.1520(d),

416.920(d).
Step 4: Determine whether, despite any severe impairment, the
claimant retains the Residual Functional Capacity (“RFC”) to perform
past relevant work. Id.

§ 404.1520(e)—(f), 416.920(e)—(f). If not, move

to step five.
Step 5: At this point, the burden shifts to the Commissioner to
demonstrate that the claimant, considering his age, education, work
experience, and RFC, is capable of performing jobs that exist in
significant numbers in the national economy. 20 C.F.R.

§ 404.1520(g), 416.920(g); see Poulos v. Comm’r of Soc. Sec., 474
F.3d 88, 91-92 (3d Cir. 2007). If so, benefits will be denied; if not, they
will be awarded.
As to all legal issues, this Court conducts a plenary review. See
Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). As to
factual findings, this Court adheres to the AW’s findings, as long as they are
supported by substantial evidence. Jones u. Bamhart, 364 F.3d 501, 503 (3d
Cir. 2004) (citing 42 U.S.C.

§ 405(g)). Where facts are disputed, this Court will
3

“determine whether the administrative record contains substantial evidence
supporting the findings.” Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000).
“Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Zimsak v. Colvin, 777 F.3d 607,
610 (3d Cir. 2014) (internal quotation marks and citation omitted). Substantial
evidence “is more than a mere scintilla but may be somewhat less than a
preponderance of the evidence.” Id. (internal quotation marks and citation
omitted).
[I]n evaluating whether substantial evidence supports the ALT’s
leniency should be shown in establishing the
findings
the Secretary’s responsibility to
claimant’s disability, and
rebut it should be strictly construed. Due regard for the
beneficent purposes of the legislation requires that a more
tolerant standard be used in this administrative proceeding
than is applicable in a typical suit in a court of record where the
adversary system prevails.
...

...

Reefer u. Bamhart, 326 F.3d 376, 379 (3d Cir. 2003) (internal quotation marks
and citations omitted). When there is substantial evidence to support the AU’s
factual findings, however, this Court must abide by them. See Jones, 364 F.3d
at 503 (citing 42 U.S.C.

§

405(g)); Zimsak, 777 F.3d at 610-11 (“[W]e are

mindful that we must not substitute our own judgment for that of the fact
finder.”).
This Court may, under 42 U.S.C.

§

405(g), affirm, modify, or reverse the

Commissioner’s decision, or it may remand the matter to the Commissioner for
a rehearing. Podedworny v. Harris, 745 F.2d 210, 221 (3d Cir. 1984); Bordes v.
Comm’rof Soc. Sec., 235 F. App’x 853, 865-66 (3d Cir. 2007).
Remand is proper if the record is incomplete, or if there is a lack of
substantial evidence to support a definitive finding on one or more steps of the
five-step inquiry. See Podedworny, 745 F.2d at 22 1-22. Remand is also proper
if the AU’s decision lacks adequate reasoning or support for its conclusions, or
if it contains illogical or contradictory findings. See Burnett u. Comm’rof Soc.
Sec., 220 F.3d 112, 119-20 (3d Cir. 2000). It is also proper to remand where
4

the AW’s findings are not the product of a complete review which “explicitly
weigh[s] all relevant, probative and available evidence” in the record. Adomo u.
Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation marks omitted).
B. The AU’s Decision

AW Qiannopoulos (the “AW”) properly followed the five-step process in
determining that Santiago Luna was not disabled for the period of July 10,
2011 through February 11, 2015. His findings may be summarized as follows:
Step 1: At step one, the AW determined that Santiago Luna had not
engaged in substantial gainful activity in the relevant period. (R. 24).
Step 2: At step two, the AW found that Santiago Luna had the following
severe impairments: “fracture of the lower leg; herniated disk of the lumbar
spine; and high blood pressure.” (R. 24).
Step 3: At step three, the AW determined that, through February 11,

2015, Santiago Luna did not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed
impairments in 20 C.F.R. Pt. 404, subpt. P., app. 1 (1?. 25).
Step 4: At step four, “[a]fter careful consideration of the entire record,”

the AW found that Santiago Luna had the following residual functional
capacity (RFC):
to perform the full range of sedentary work as defined in 20 CFR
404.1567(b), with the following additional limitations: the claimant
is able to walk up to 1 hour; must be able to sit and stand at the
claimant’s discretion; cannot use the left foot or leg for foot
controls; can never climb ramps or stairs; never ladders or
scaffolds; never balance; must avoid all exposure to humidity or
wetness; cannot work outdoors; can only occasionally stoop; never
kneel, crouch or crawl; never work at unprotected heights; only
occasionally be exposed to moving mechanical parts; occasionally
operate an automobile; and have no exposure to vibrations.
(R. 26).

5

The AW found that Santiago Luna’s past work delivering outdoors,
loading and unloading, and working as a construction laborer exceeded his
current residual functional capacity. (1?. 29).
Step 5: At step five, the AW considered Santiago Luna’s age, education,
work experience, and RFC, as well as the Medical-Vocational Guidelines, and
determined that Santiago Luna is able to perform other jobs existing in
significant numbers in the national economy. (1?. 29-30). Relying on the
testimony of a vocational expert (“VE”), Brian Daly, the AJ3 identified several
representative unskilled jobs that Santiago Luna could perform despite his
limitations: (1) surveillance system monitor (Director of Occupational Titles
(“DOT”) # 379.367-010); order clerk (DOT # 249.362-062); and address clerk
(DOT # 209.587-010). (R. 30). According to the VE, more than 390,000 such
jobs exist nationally. (R. 30). Moreover, the AW noted that Santiago Luna could
still work as a surveillance system monitor even if he had to be off task for 10%
of the workday, could only perform simple routine tasks, was limited to simple
work-related decisions, and was limited to only occasional interaction with the
public. (R. 30).
Accordingly, the AW concluded that Santiago Luna was not under a
disability, as defined in the Social Security Act, from July 10, 2011 through
February 11, 2015. (R. 30).
C. Analysis of Santiago Luna’s Appeal
Santiago Luna challenges AW Giannopoulos’s determination that he was
not disabled during the relevant period. He claims that the AW committed
errors at steps two, three, four, and five. At step two, Santiago Luna argues,
the AW lacked substantial evidence to support the decision that his depression
was not severe. (P1. Br. 13-15). He asserts that the ALT was in error by stating
that no medically acceptable source diagnosed him with depression; and that
the AW should have ordered a psychiatric examination to fully develop the
record. (P1. Br. 12-13).

6

At step three, Santiago Luna argues, the AW did not properly determine
that his conditions are not equivalent to any impairment found in the Listing of
Impairments. (P1. Br. 20-27). At step four, Santiago Luna argues, the AW erred
by not fully crediting his subjective complaints when determining his RFC. (P1.
Br. 11-12, 17-19).
Finally, Santiago Luna argues that the AW erred at step five. He claims
that the AW failed to construct hypotheticals that “accurately portray the
claimant’s individual and mental limitations” and thus found him able to
perform work outside the AW’s RFC determination. (P1. Br. 27).
Santiago Luna requests that this Court reverse the AU’s decision or
remand the decision to the Commissioner for a new hearing and decision. (P1.
Reply 6). Addressing each of Santiago Luna’s arguments in turn, I find that the
AU’s findings do not contain any errors of law or procedure, and that his
findings are supported by substantial evidence.
1. The AU’s Step Two Evaluation
Santiago Luna argues AU Giannopoulos erred in step two by not
including depression among Santiago Luna’s “severe” impairments. (P1. Br. 1112). The AU found that Santiago Luna’s severe impairments included “fracture
of the lower leg; herniated disk of the lumbar spine; and high blood pressure.”
(1?. 24). However, the AU did not find Santiago Luna’s depression to be
“severe.” (1?. 24). Santiago Luna makes three arguments at step two: (1) the AW
had a duty to order a psychiatric evaluation if the record was unclear; (2) the
AW erred in finding that no acceptable medical sources diagnosed him with
depression; and (3) the AU should have determined that his depression was a
severe impairment. (P1. Br. 11-13).
(1) First, Santiago Luna argues that the AU should have ordered a
psychiatric evaluation to fully complete the record. (P1. Br. 13). It is true that
“Social Security proceedings are inquisitorial rather than adversarial” and “it is
the AU’s duty to investigate the facts and develop the arguments bath for and
against granting benefits.” Sirn v. Apfel, 530 U.S. 103, 110-11(2000) (citing
7

Richardson v. Perales, 402 U.S. 389, 400-01 (1971)). (P1. Br. 13). However,
“[t]he claimant first must bear the burden of showing

...

at step two that he has

a medically severe impairment or combination of impairments

....“

Bowen zc

Yuckert, 482 U.S. 137, 146 n.5 (1987). The AU is not the claimant’s adversary,
but the claimant still bears the burden of proof at step two. Id. There was no
gap in the record that required the ALT to order an additional evaluation.
(2) Second, the ALT noted that Santiago Luna was diagnosed with
depression by a nurse practitioner, which the AU did not regard as an
acceptable medical source. (R. 26, 28 1-83). An ALT generally gives controlling
weight to medical opinions from “acceptable medical sources” such as licensed
physicians or psychologists, but has no duty to accept the diagnosis of a nurse
practitioner. 20 C.F.R.

§ 404.15 13(a), (d); 551?

06-O3p,

2006 WL 2329939, at *2

(S.S.A. Aug. 9, 2006). Santiago Luna notes that Dr. Jafari, his primary care
physician, treated him for depression. (P1. Reply 3). But, as the AU noted, Dr.
Jafari never diagnosed Santiago Luna with depression, and even if he had, this
would have been a diagnosis outside of his area of expertise. (1?. 26).
(3) It is, however, immaterial whether the ALT gave enough weight to a
nurse practitioner’s diagnosis of depression or a physician’s treatment of
symptoms of depression. Even assuming the validity of such a diagnosis, the
AU’s decision to not consider Santiago Luna’s depression “severe” is supported
by substantial evidence in the record. The nurse practitioner’s examinations
indicate that Santiago Luna was alert and fully oriented; they do not suggest
that his depression would prevent him from working. (R. 282-83, 285, 287,
295). There still is no evidence indicating that Santiago Luna’s mental health
would impact his ability to perform work beyond the limitations described in
the RFC.
In so concluding, the AU properly considered the medical evidence to
determine if Santiago Luna’s depression was “severe.” He evaluated four broad
functional areas in the disability regulations for evaluating mental disorders
and in section 12.OOC of the Listing of Impairments (20 C.F.R. pt. 404, subpt.
8

P, app. 1): daily living; social functioning; concentration, persistence, or pace;
and decompensation. (R. 25). The AM was able to conclude, based on the
evidence presented, that Santiago Luna’s mental health caused no more than a
“mild” limitation. (R. 25).
Ultimately, the AM’s decision that Santiago Luna’s depression did not
meet the step two severity test was supported by substantial evidence.
Additionally, the AM continued to consider any effects of Santiago Luna’s
depression, in combination with other impairments, throughout the
subsequent steps. (1?. 24-25).
2. The AU’s Step Three Evaluation
At step three, the AM determined that, through February 11, 2015,
Santiago Luna did not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20
C.F.R. pt. 404, subpt. P., app. 1, Pt. A. (R. 25). As noted previously, those Part
A criteria are purposely set at a high level to identify clear cases of disability
without further analysis.
Santiago Luna argues that the AM erred by not finding that he met the
criteria under a Listing. (P1. Br. 15-17). The AM considered Listings 1.04 and
1.06. (R. 25-26). The claimant bears the burden of proving that his
impairments, whether individually or collectively, equal or meet those listed in
Appendix 1. Santiago Luna has not met this burden.
Listing 1.04 and Listing 1.06 were both rejected because the AM found
that Santiago Luna had not lost the ability to ambulate effectively. (R. 25-26).
An inability to ambulate effectively is defined generally in 1.00(B)(2)(b) as
“having insufficient lower extremity functioning (see l.OOJ) to permit
independent ambulation without the use of hand-held assistive device(s) that
limits the functioning of both upper extremities.” 20 C.F.R. pt. 404, subpt. P.
app. 1

§ 1.00(B)(2)(b). This section also lists examples of activities, including

shopping, that would tend to establish whether a person is able to ambulate
effectively. Id.
9

Treatment notes indicate that Santiago Luna sometimes walked without
a limp. (R. 304). His surgeon recommended that he needed only a knee brace to
walk, and treatment notes dating from 2014 state that he did not need a cane
to walk. (1?. 267, 321). Santiago Luna also admitted that he retained the ability
to go shopping, further supporting the ALT’s decision he does not meet the
Listing’s threshold. (R. 203).
Even if Santiago Luna could not ambulate effectively, he would still fail to
meet the other requirements of Listing 1.04. Listing 1.04 requires a disorder of
the spine “resulting in compromise of nerve root” or the spinal cord, as well as
the criteria listed in either 1.04A, 1.043, or l.04C. 20 C.F.R. pt. 404, subpt. P.
app. 1

§

1.04. Santiago Luna does not meet the Listing l.04A requirement of

“motor loss (atrophy with associated muscle weakness or muscle weakness)
accompanied by sensory or reflex loss,” even when considering his
chiropractor’s evaluation of his cervical spine. (R. 25, 303-06). Rather, several
treatment notes indicate his lower extremity strength was found to be full or
near full. (R. 266, 271, 316). Listing 1.043 requires spinal arachnoiditis. 20
C.F.R. Pt. 404, subpt. P. app. 1

§

1.04. Santiago Luna has not been diagnosed

with spinal arachnoiditis. (R. 25). Listing 1.04C requires “[l]umbar spinal
stenosis resulting in pseudoclaudication,” fri., which likewise is not established
in the record. (R. 25).
While Santiago Luna sometimes uses a cane, there is substantial
evidence to support the ALT’s determination that Santiago Luna has not lost
the ability to ambulate effectively and does not satisfy other requirements of
Listing 1.04. Therefore, the ALT did not err at step three.
3. The AU’s Step Four Evaluation

At stage four, the ALT determined that Santiago Luna did not retain the
residual functional capacity (“RFC”) to perform past relevant work. (R. 26). The
ALT found that Santiago Luna currently had the RFC to perform a range of
sedentary work with several limitations. (R. 26). See section II.B, supra, for a
full quotation of the ALT’s RFC determination.
10

RFC is an assessment of the most a claimant can do despite his

impairments. 20 C.F.R. § 404.1545. To determine a claimant’s RFC, an ALT
must engage in a two-step process: first, consider all of a claimant’s symptoms
that can reasonably be accepted as consistent with the objective medical
evidence, and second, determine how those symptoms affect the claimant’s
ability to work. 20 C.F.R.

§

404.1529. Santiago Luna argues that the ALT

improperly dismissed his subjective complaints and otherwise ignored
evidence. (P1. Br. 20-27).
It is true that the ALT must consider all relevant evidence, including
subjective complaints, in determining the RFC. Fargnoli
34, 41 (3d Cir. 2001) (citing 20 C.F.R.

§

i’.

MassanaH, 247 F.3d

404.1545(a)). However, the plaintiff

retains the burden of supporting his alleged RFC limitations. Bowen u. Yucked,
482 U.S. 137, 146 (1987); see also 20 C.F.R.

§

404.1545(a) (“In general, you

[the plaintiff] are responsible for providing the evidence we will use to make a
finding about your residual functional capacity.”).
In terms of the RFC, Santiago Luna argues that (a) the ALT did not
properly discuss the medical record and (b) did not properly credit Santiago
Luna’s subjective complaints. Upon review of the record, however, I find that
substantial evidence supports the ALT’s RFC decision.
a) The AU’s Analysis of the Medical Record
First, the ALT properly synthesized and evaluated the medical record
when determining Santiago Luna’s RFC. Santiago Luna argues that the ALT
ignored evidence that he needed assistance walking and thus came to an
incorrect conclusion regarding his ability to ambulate effectively. (P1. Br. 1516). However, the ALT properly synthesized Santiago Luna’s medical history,
including subjective reports of pain and difficulties, and incorporated these
limitations into Santiago Luna’s RFC. (R. 26-29). Moreover, there is substantial
evidence to show that Santiago Luna can perform sedentary work. In fact,
Santiago Luna’s surgeon found that he could perform light work and the State

11

agency physician found that he could perform a range of sedentary work. (R.
29).
Santiago Luna also claims that the AM’s finding that he could walk for
an hour contradicts the findings of the reviewing physicians. (P1. Br. 22). The
AM had substantial evidence to support this determination. Dr. Shaninian and
Dr. Rizwan both found that Santiago Luna could stand or walk (with normal
breaks) for a total of 4 hours during the workday. (R. 98, 110). Dr. Eyassu
found that Santiago Luna had a “[mioderate limitation on prolonged walking
and prolonged stair climbing.” (R. 272). Furthermore, the RFC incorporates the
limitation that Santiago Luna should be able to sit or stand at his discretion;
that would prevent him from having to stand or walk for prolonged periods. (I?.
26).
Additionally, Santiago Luna asserts that the AM should have added
limitations to the RFC based on his cervical neck pain, as diagnosed by his
chiropractor. (P1. Br. 24-25). As discussed above, a diagnosis from a “non
acceptable medical source,” such as a chiropractor, does not establish the
existence of a medically determinable impairment. 20 C.F.R. § 404.1513(a), (d);
SSR 06-03p, 2006 WL 2329939, at *2 (S.S.A. Aug. 9, 2006). Additionally, the
chiropractor’s record does not indicate that Santiago Luna’s cervical-spinerelated symptoms require additional limitations beyond those stated in the
RFC. (1?. 303-11). The AM was entitled to give more weight to the other medical
evidence.
b) The AU’s Credibility Determination
Second, Santiago Luna argues that the AM erred by not fully crediting
his subjective complaints. (P1. Br. 11-12, 17-19). An AM may reject or only
partially credit subjective complaints if they are not credible in light of the
other evidence of record. Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 433
(3d Cir. 1q99). Nonetheless, the ALl’s credibility determination “must contain
specific reasons for the finding of credibility, supported by the evidence in the
case record.” SSR 95—7p; see also 20 C.F.R.
12

§

404.1529(b), 4 16.929(b). In this

case, the AU did what was required by articulating specific reasons for his
credibility findings that were supported by the evidence in the record.
SSR 9S—7p provides that “Pin determining the credibility of the
individual’s statements, the adjudicator must consider the entire case record.”
Id. The regulation then prescribes a two-step process for evaluating a
claimant’s statements about his own physical or mental impairments. Such
statements, by themselves, are insufficient to establish the existence of an
impairment or disability. Titles H & XVI: Evaluation of Symptoms in Disability
Claims: Assessing the Credibility of an Individual’s Statements, SSR 96—7P
(S.S.A. July 2, 1996). Instead, the AU must first “consider whether there is an
underlying medically determinable physical or mental impairment(s)—i.e., an
impairment(s) that can be shown by medically acceptable clinical and
laboratory diagnostic techniques—that could reasonably be expected to
produce the individual’s pain or other symptoms.” Id. Second, “once an
underlying physical or mental impairment(s) that could reasonably be expected
to produce the individual’s pain or other symptoms has been shown, the
adjudicator must evaluate the intensity, persistence, and limiting effects of the
individual’s symptoms to determine the extent to which the symptoms limit the
individual’s ability to do basic work activities.” Id.
At the first step of the credibility-determination process, the AU first
determined that the claimant’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms. (R. 26). At the second
step of this process, the AU found that “the claimant’s statements concerning
the intensity, persistence and limiting effects of these symptoms are not
entirely credible

....“

(1?. 26). “While the record established that the plaintiff has

some level of pain and therefore some limitations, it does not establish that his
impairments are completely disabling.” (It 29).
For instance, Santiago Luna testified before the AU that he does little
else but watch television. (R. 29). However, in his function report dated
January 16, 2013, he indicated that he reads, visits his family, attends church,
13

and shops in stores. (1?. 29). He also reported that he can pay attention for long
periods of time and can follow written and spoken instructions “very well.” (I?.
29, 203-05). Doctors have stated that Santiago Luna has “intact motor strength
in the bilateral and lower extremities,” that he is able to walk at times without
assistance, and does not always have an antalgic gait. (1?. 29). One doctor
reported that Santiago Luna could perform light duty in December 2012, more
than a year after he claimed he was completely disabled. (R. 29, 265). Two
other doctors reported that Santiago Luna could perform a range of sedentary
work. (R. 98-100, 110-12).
Altogether, there was sufficient evidence for the AM to determine that
Santiago Luna’s subjective testimony is only partially credible. “Despite the
evidence demonstrating that the claimant has suffered from a medically
determinable ‘severe’ impairment, the evidence also establishes that the
claimant retains the capacity to function adequately to perform many basic
activities associated with work.” (R. 29). Santiago Luna’s RFC incorporates the
limitations suggested by the medical evidence and gives further restrictions
based on Santiago Luna’s subjective testimony. (R. 29). What is required
overall is that the AM give the claimant’s testimony “serious consideration,”
state his reasons for discounting it, and make “specific findings.” Rowan z,’.
Bamhart, 67 F. App5c 725, 72 (3d Cir. 2003). Where that has been done, a
reviewing court will defer to the AM’s credibility determination. In this case,
the AM appropriately evaluated Santiago Luna’s credibility given the record.
4. The AU’s Step Five Evaluation
At step five, the AM considered Santiago Luna’s age, education, work
experience, and RFC, as well as the Medical-Vocational Guidelines, and
determined that Santiago Luna is able to perform other jobs existing in
significant numbers in the national economy. (1?. 29-30). The AM relied on the
testimony of a vocational expert (“VE”) to identify representative unskilled jobs
that Santiago Luna could perform despite his limitations. (1?. 30).

14

Santiago Luna argues that the AW and VE incorrectly determined that
he could perform jobs in the national economy. This challenge, in many ways,
duplicates his challenge to the RPC. The underlying argument is that the ALPs
ultimate finding rests on an RFC that overstated his abilities. The ALPs
determination of Santiago Luna’s RFC, however, was supported by substantial
evidence, as established in section II.C.3, supra.
Santiago Luna states that the AW failed to construct hypotheticals that
accurately portrayed his limitations, which led the VE and AW to list jobs that
conflicted with Santiago Luna’s RFC. It is true that a hypothetical question
posed to a VE must reflect all of claimant’s specific limitations that are
supported by substantial evidence. See, e.g., Bums a Bamhart, 312 F.3d 113,
123 (3d Cir. 2002) (“Where there exists in the record undisputed evidence of
specific impairments not included in a hypothetical question to a vocational
expert, the expert’s response is not considered substantial evidence.”). That
does not mean, however, that the VE must be asked to opine on all limitations

alleged by a claimant. See Rutherford v. Barhnart, 399 F.3d 546, 554 (3d Cir.
2005) (“We do not require an AU] to submit to the vocational expert every
hypotheticals posed must
impairment alleged by a claimant. Instead
...

accurately portray the claimant’s impairments and that the expert must be
given an opportunity to evaluate those impairments as contained in the
record.... [Tjhe AU] must accurately convey to the vocational expert all of
claimant’s credibly established limitations.” (internal quotation marks and
citations omitted)).
At the hearing, the AU asked the VE to consider a hypothetical
individual with Santiago Luna’s age, education, vocation and RFC. (1?. 61). The
AU] stated Santiago Luna’s RFC, including all credibly established limitations.
(R. 6 1-62). Thus, the AJF accurately portrayed Santiago Luna’s credibly
established limitations to the VE in the hypotheticals.
As a further argument, Santiago Luna claims that he “is limited to simple
tasks [and thusj cannot, in fact, perform these jobs according to the DOT”
15

because the job of surveillance system monitor requires a reasoning level of 3.
(P1. Br. 25-27). However, Santiago Luna’s RFC does not state that he is limited
to performing simple and routine tasks. (It 26). Moreover, Santiago Luna selfreported that he can pay attention for long periods, finish what he starts, and
follow written and spoken instructions “venj well.” (R. 205). This particular
argument appears to be another attack on the RFC, which, for the reasons
stated above, is supported by substantial evidence.
III.

CONCLUSION

For the foregoing reasons, Mr. Santiago Luna has failed to demonstrate
that the AU’s decision was not supported by substantial evidence. Under the
applicable standard of review, that is sufficient to require that I uphold the
AU’s denial of Santiago Luna’s claims for DIB, which is therefore AFFIRMED.
An appropriate order accompanies this Opinion.

Dated: September 14, 2017

MCNULTY
United States District

16