Muniz-Hernandez

Filing 18

OPINION AND ORDER affirming decision of the Commissioner of Social Security. Signed by US Magistrate Judge Marcos E. Lopez on 6/15/11.(Lopez, Marcos)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MILAGROS DEL CARMEN MUÑIZHERNANDEZ,
Plaintiff,
v.

CIVIL NO.: 10-1569 (MEL)

MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

OPINION AND ORDER
I.

PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff Milagros del Carmen Muñiz-Hernandez (“plaintiff”or “claimant”) was born on July

26, 1961 (Tr. 27.) She has a high school education and past relevant work as an assembler where she
would sit for around 8 hours, use her hands for constant repetitive movements, handle and carry large
objects of approximately 20 pounds. (Tr. 27, 107.) Plaintiff had to use machines and job instructions
required dealing with detailed small parts, although they were repetitive. (Tr. 27, 107.) Plaintiff
alleges she suffers from back pain, cervico-lumbar pain, hand pain with numbness, leg pain, and
frequent headaches. (Tr. 20, 108-114.) Further, plaintiff alleges she suffers from depression, being
emotionally affected due to chronic lower back pain, insomnia, diminished memory, and
disorientation. (Tr. 20, 122-128.)
On June 14, 2004, plaintiff filed an administrative claim for a period of disability and
disability insurance benefits alleging disability since August 28, 2001. (Tr. 17.) The Commissioner
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denied her application both initially on January 27, 2005 (Tr. 35-37), and upon reconsideration on
October 27, 2005. (Tr. 40-42.) Thereafter, plaintiff filed a timely written request for an
administrative hearing dated November 16, 2005. (Tr. 46.) An Administrative Law Judge (“ALJ”),
issued a written decision dated May 30, 2008, finding the plaintiff not disabled during the alleged
period of disability. (Tr. 11-28.) On May 1, 2010, the Appeals Council denied the plaintiff’s request
for review; therefore the ALJ’s decision became the final decision of the Commissioner of Social
Security (“Commissioner” or “defendant”). (Tr. 7-9).
On June 22, 2010, plaintiff filed a complaint in this case seeking review of the ALJ’s
decision pursuant to 42 U.S.C. § 405(g) together with Title 5 U.S.C. 706, claiming the ALJ’s
decision was not based on substantial evidence. (Docket No. 1.) On December 8, 2010, defendant
filed both an answer and a certified transcript of the administrative record. (Docket Nos. 5; 6.) Both
parties have submitted supporting memoranda. (Docket Nos. 13; 17.)
II.

LEGAL ANALYSIS
A.

Legal Standard

Section 205(g) of the Social Security Act provides, inter alia, that “[t]he court shall have
the power 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 our without remanding the
cause for a rehearing”and that “[t]he findings of the Commissioner of Social Security as to any fact,
if supported by substantial evidence, shall be conclusive.” 42 U.S.C.
§ 405(g).

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“In Social Security cases, the [c]ourt must examine the record and uphold any final decision
of the Commissioner denying benefits, unless the decision is based on faulty legal thesis or factual
error.” López-Vargas v. Comm'r of Soc. Sec., 518 F. Supp. 2d 333, 335 (D.P.R. 2007) (citing
Manso-Pizarro v. Sec'y of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996) (per curiam)). The
Commissioner's "findings of fact are conclusive when supported by substantial evidence in the
record, 42 U.S.C. § 405(g), but are not conclusive when derived by ignoring evidence, misapplying
the law, or judging matters entrusted to experts.” Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999)
(per curiam) (citing Da Rosa v. Sec'y of Health & Human Servs., 803 F.2d 24, 26 (1st Cir. 1986) (per
curiam); Ortíz v. Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (per curiam)).
Substantial evidence is "such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). The standard
requires "'more than a mere scintilla of evidence but may be somewhat less than a preponderance'
of the evidence." Hernández-Guzman v. Astrue, 2009 U.S. Dist. LEXIS 99213, at *5 (D.P.R. Oct.
23, 2009) (quoting Ginsburg v. Richardson, 436 F.2d 1146, 1148 (3d Cir. 1971), cert. denied, 402
U.S. 976). Moreover, a determination of substantiality must be made based on the record as a whole.
See Ortíz, 955 F.2d at 769. However, "[i]t is the responsibility of the [ALJ] to determine issues of
credibility and to draw inferences from the record evidence." Ortíz, 955 F.2d at 769 (citing
Quiñones v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)). "The resolution
of conflicts in the evidence and the determination of the ultimate question of disability is for the
ALJ, not for the doctors or for the reviewing [c]ourts." López-Vargas, 518 F. Supp. 2d at 335 (citing
Perales, 402 U.S. at 399). Therefore, the court "must affirm the [Commissioner's] resolution, even
if the record arguably could justify a different conclusion, so long as it is supported by substantial
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evidence.” Quiñones Pagan v. Sec'y of Health & Human Servs., 819 F.2d 1, 3 (1st Cir. 1987) (per
curiam).
To establish entitlement to disability benefits, the claimant bears the burden of proving that
he or she is disabled with the meaning of the Social Security Act. See Bowen v. Yuckert, 482 U.S.
137, 146n.5, 146-47 (1987). It is well settled that a claimant is deemed to be disabled under the
Social Security Act if he or 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). Furthermore, Section 223(d) of the Social Security Act provides, in its
pertinent part, that:
(2)(A) an individual shall be determined to be under a disability only if his physical
or mental impairment or impairments are 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, regardless of whether such work exists in the immediate area in
which he lives, or whether a specific job vacancy exists for him, or whether he would
be hired if he applied for work.
3) ... [A] “physical or mental impairment” is an impairment that results from
anatomical, physiological, or psychological abnormalities which are demonstrable
by medically acceptable clinical and laboratory diagnostic techniques....
(5)(A) An individual shall not be considered to be under a disability unless he
furnishes such medical and other evidence of the existence thereof as the
Commissioner of Social Security may require...
42 U.S.C. § 423. In determining whether a claimant is disabled, all of the evidence in the
record will be considered. 20 C.F.R. § 404.1520(a)(3) (2008).

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Claims for disability benefits are evaluated according to the five-step sequential evaluation
process prescribed by Social Security regulations. 20 C.F.R. § 404.1520; Barnhart v. Thomas, 540
U.S. 20, 24-25 (2003); Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 804 (1999); Yuckert,
482 U.S. at 140-42.
Through step one, the ALJ determines whether the claimant is engaged in
"substantial gainful activity." If he/she is, disability benefits are denied. 20 C.F.R.
§ 404.1520(b). If he/she is not, the decision-maker proceeds to step two, through
which it is determined whether the claimant has a medically severe impairment or
combination of impairments. See 20 C.F.R. § 404.1520( c). If the claimant does not
have a severe impairment or combination of impairments, the disability claim is
denied. If the impairment or combination of impairments is severe, the evaluation
proceeds to the third step, in order to determine whether the impairment or
combination of impairments is equivalent to one of a number of listed impairments
that the Commissioner acknowledges are so severe as to preclude substantial gainful
activity. 20 C.F.R. § 404.1520(d); 20 C.F.R. pt. 404, subpt. P, app. 1. If the
impairment meets or equals one of the listed impairments, the claimant is
conclusively presumed to be disabled. If the impairment is not one that is
conclusively presumed to be disabling, the evaluation proceeds to the fourth step,
through which the ALJ determines whether the impairment prevents the claimant
from performing work he/she has performed in the past. If the claimant is able to
perform his/her previous work, ... he/she is not disabled. 20 C.F.R. § 404.1520(e).
If it is determined that the claimant cannot perform this work, then the fifth and final
step of the process demands a determination on whether the claimant is able to
perform other work in the national economy in view of the residual functional
capacity, as well as age, education, and work experience. The claimant would be
entitled to disability benefits only if he/she is not able to perform other work. 20
C.F.R. § 404.1520(f).
Sosa v. Comm'r of Soc. Sec., 550 F. Supp. 2d 279, 284 (D.P.R. 2008).
"The claimant has the burden, under steps one through four, of proving that he cannot return
to his former employment because of the alleged disability. Once a claimant has demonstrated a
severe impairment that prohibits return to his previous employment, the Commissioner has the
burden, under step five, to prove the existence of other jobs in the national economy that the claimant
can perform." Berríos Velez v. Barnhart, 402 F. Supp. 2d 386, 390 (D.P.R. 2005) (citing Santiago

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v. Sec'y of Health & Human Servs., 944 F.2d 1, 5 (1st Cir. 1991) (per curiam); Ortíz v. Sec'y of
Health & Human Servs., 890 F.2d 520, 524 (1st Cir. 1989) (per curiam)).
B.

ALJ’s Findings

After consideration of the evidence on record, the ALJ made the following findings:
1. “The claimant last met the insured status requirements of the Social Security Act on
December 31, 2006.” (Tr. 19.)
2. “The claimant did not engage in substantial gainful activity during the period from her
alleged onset date of August 28, 2001 through her date last insured of December 31, 2006 (20 C.F.R
§ 404.1520(b) and 404.1571 et seq.).” (Tr. 19.)
3. “Through the date last insured, the claimant had the following severe impairments: disc
herniation of the lumbar sine (L4-L5 with disc dessication of L5-S1), lumbosacral strain, cervicodorsolumbar myositis, and depression (20 C.F.R § 404.1520(c)).” (Tr. 19.)
4. “Through the date last insured, the claimant did not have an impairment or combination
of impairments that met or medically equaled one of the listed impairments in 20 C.F.R § Part 404,
Subpart P, Appendix 1 (20 C.F.R § 404.1520(d), 404.1525 and 404.1526).” (Tr. 20.)
5. “Through the date last insured, the claimant had the residual functional capacity to perform
light work as defined in 20 C.F.R § 404.1567(b) except that the claimant needed to avoid vibration.
Furthermore, due to severe depression, she was prevented from understanding, remembering, and
carrying out detailed instructions/tasks, but she retained the ability for understanding, remembering,
and carrying out routine, repetitive, short, simple instructions/tasks. She also retained the ability for
making judgments in simple work-related situations; responding (relating) appropriately to
supervision, co-workers, as well as to changes in usual work situations, and maintaining adequate

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attention/concentration spans for at least 2-hour intervals throughout a work day or work week.” (Tr.
23.)
6. “Through the date last insured, the claimant was unable to perform past relevant work (20
C.F.R § 404.1565).” (Tr. 27.)
7. “The claimant was born on July 26, 1961 and was 45 years old, which is defined as a
younger individual age 18-49, on the date last insured (20 C.F.R § 404.1563).” (Tr. 27.)
8. “The claimant has at least a high school education and is not able to communicate in
English (20 C.F.R § 404.1564).” (Tr. 27.)
9. “Transferability of job skills is not material to the determination of disability because using
the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled,”
whether or not the claimant has transferable job skills (See SSR 82-41 and 20 C.F.R Part 404,
Subpart P, Appendix 2).” (Tr. 27.)
10. “Through the date last insured, considering the claimant’s age, education, work
experience, and residual functional capacity, there were jobs that existed in significant numbers in
the national economy that the claimant could have performed (20 C.F.R § 404.1560( c) and
404.1566).” (Tr. 27-28.)
11. “The claimant was not under a disability as defined in the Social Security Act, at any time
from August 28, 2001, the alleged onset date, through December 31, 2006, the date last insured (20
C.F.R § 404.1520(g)).” (Tr. 28.)
C.

The Medical Evidence Contained in the Record

The certified administrative record contains, inter alia, the following medical evidence
regarding the plaintiff’s physical conditions:

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In August 2001, the claimant sought treatment under the auspices of the State Insurance Fund
(SIF) for complaints of lower back pain and sleeping problems. (Tr. 241.) She was diagnosed and
treated for cervico-dorsolumbar myositis and sprain. (Tr. 237-238.) On February 8, 2002 an MRI of
the claimant’s lower extremities showed L4-L5 small central subligamentous disc herniation with
disc dessication of L5-S1. (Tr. 228.) A physical examination by a neurosurgeon from SIF determined
she had limitations of movement of the cervical spine and lumbosacral spine. (Tr. 228.)
On November 4, 2004, Dr. Iris Acevedo-Marty, consulting neurologist, evaluated the
claimant. (Tr. 242.) The claimant complained of back pain, cervico-lumbar pain, hand pain with
numbness, leg pain, and frequent headaches. (Tr. 242.) The physical examination revealed
limitations of movement effecting the claimant’s shoulders, lumbar spine and hips, with tenderness
to palpation of the entire spine.1 (Tr. 244-250.)
In January 2005, Dr. José Pesquera García, a physician from the Disability Determination
Service, completed a physical residual functional capacity (“RFC”) assessment for the claimant. (Tr.
372-380.) He concluded the plaintiff could occasionally lift/carry 20 pounds, frequently lift/carry
10 pounds, stand or walk for about 6 hours in an 8-hour work day and had unlimited ability to
push/pull weights listed above. (Tr. 374.) He also concluded plaintiff could occasionally climb,
stoop, and crouch, and should avoid concentrated exposure to vibrations. (Tr. 375, 377.)
On April 28, 2005, Dr. Jesús Maldonado-Hernández, a physiatrist, evaluated the claimant.
(Tr. 285.) He referred to laboratory studies (i.e. EMG-NCV studies) showing finding of lumbar disc
herniation and bilateral carpal tunnel syndrome. (Tr. 288, 290.) Nerve conduction study of lower
extremities revealed cervical and dorsal HNP L4-L5, and axonal neuropathy of right posterior tribal
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Dr. Acevado-Marty’s reports also indicate that plaintiff was reliable, kind, and cooperative, and that she
was able to take off her sandals without help, sat at the examination table without help, and was alert, active, and
oriented. (Tr. 242-243.)

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nerve. (Tr. 292.) Dr. Maldonado estimated disability in amounts of 5% and 10% for the different
conditions affecting the claimant. (Tr. 292.)
On September 24, 2005, Michael Babilonia, a rheumatologist, examined the claimant. (Tr.
361.) The claimant complained of lower back pain (non-radiating), moderate pain of the left ankle
and of the toes of her left foot. (Tr. 362.) The physical examination showed restriction in terms of
movement of cervical and lumbar spine, and left ankle articulation and foot; the movement angle of
all other articulations appeared to be normal. (Tr. 363.) Dr. Babilonia, however, classified plaintiff’s
motor strength as excellent and reported no deficit in sensory modalities. (Tr. 363.) He also noted
that plaintiff used no cane or crutches to walk and has no limp. (Tr. 363.)
With respect to plaintiff’s mental conditions, the certified administrative record contains,
inter alia, the following medical evidence:
Plaintiff was treated by Dr. Ingrid Alicea-Berríos from July 2003 through at least November
2007 for an emotional condition consisting of anxiety, nervousness, major depression, disorientation,
and loss of memory due to chronic lower back pain and the medications taken for pain. (Tr. 293-336,
425-448.) References were made to the claimant needing help with daily living, her task persistence
being affected, and her poor stress tolerance. (Tr. 304, 306, 308.) She also calculated claimant’s
global assessment of functioning (GAF) at 45%. (Tr. 308, 310.)2 Dr. Alicea-Berríos, however, never
recommended that plaintiff be hospitalized or placed in a sheltered living environment. (Tr. 22.) She
also repeatedly indicated that plaintiff was oriented, with intact intellect and control of impulses, and
that her medication did not produce negative side-effects. (Tr. 300, 312-334.)
2

The GAF considers the psychological, social, and occupational functioning on a hypothetical continuum of
mental health illness. A rating of 44-50 denotes serious symptoms (ex: suicidal ideation) or any serious impairment
in social, occupational, or school functioning (ex: no friends, unable to keep a job). Diagnostic Statistical Manual of
Mental Disorders (“DSM-IV”) p. 32, 4 Edition, 2000.

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In addition, plaintiff’s mental health was also evaluated by the state agency consultants who
had previously reviewed her claim regarding plaintiff’s mental status.3 (Tr. 22, 337-356.) On
November 22, 2004, Dr. Carmen N. Piñeiro a clinical psychologist with the State Agency, evaluated
plaintiff’s functional limitations under Section 12.04 Affective Disorders, stating that plaintiff had
moderate restrictions of activities of daily living, moderate difficulty in maintaining social
functioning, moderate difficulties in maintaining concentration, persistence, or pace, and no episodes
of decompensation. (Tr. 349.) Further, in her Mental RFC Assessment, Dr. Piñeiro noted that while
plaintiff suffered from physical conditions, she was logic, coherent, and oriented. (Tr. 355.) She
further noted that plaintiff was able to understand, remember, and carry out short and simple
instructions, and she was able to ask questions, request assistance, and respond to changes in a
routine work setting.4 (Tr. 355.)
D.

The ALJ’s Application of the Five Step Process

The ALJ is required to complete a five-step sequential process in order to determine whether
or not an individual qualifies to receive Social Security Disability Benefits. Sosa v. Comm’r of Soc.
Sec., 550 F. Supp. 2d at 284. In cases where this determination is appealed, it is the court’s role to
examine the record and determine whether the is substantial medical evidence that supports the
conclusion reached by the ALJ. Rodriguez Pagan v. Sec’y of Health & Hum. Servs., 819 F.2d 1, 3
(D. P.R. 1987).

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Dr. Carmen N. Piñeiro, state clinical psychologist, evaluated plaintiff’s 12.04 affective disorder and
completed plaintiff’s mental RFC on November 22, 2004. Dr. Luis F. Umpierre Vela, state clinical psychologist
followed up with plaintiff and confirmed Dr. Piñeiro’s findings on September 6, 2005. (Tr. 337-356.)
4

The RFC assessment by Dr. Piñeiro was also confirmed by Dr. Umpierre Vela on September 6, 2005. (Tr.
337-356.) Dr. Umpierre Vela also noted that plaintiff’s mental condition showed no sign of worsening. (Tr. 337.)

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In the case presently before the court, the ALJ determined that the plaintiff satisfied the first
step by proving that she “did not engage in substantial gainful activity during the period from her
alleged onset date of August 28, 2001 through her date last insured of December 31, 2006 (20 C.F.R
§ 404.1520(b) and 404.1571 et seq.). (Tr. 19.) Plaintiff’s showing of severe medical impairments
satisfied the requirements of the second step under 20 C.F.R § 404.1520( c). (Tr. 19.) However, at
step three the ALJ determined that “the claimant did not have an impairment or combination of
impairments that met or medically equaled one of the listed impairments in 20 C.F.R Part 404,
Subpart P, Appendix 1 (20 C.F.R § 404.1520(d)).” (Tr. 20.) Thus, the ALJ’s analysis continued to
step four, where he determined that “the claimant had the residual functional capacity to perform
light work as defined in 20 C.F.R § 404.1567(b) except that the plaintiff needed to avoid vibration.”
(Tr. 23.) The ALJ also stated that because of the claimant’s severe depression, “she was prevented
from understanding, remembering, and carrying out detailed instructions and tasks.” (Tr. 23.)
Because the plaintiff’s past relevant work including sitting as an assembler for long hours using
vibrating machinery, the ALJ concluded that “the claimant was unable to perform past relevant work
(20 C.F.R § 404.1565).”(Tr. 27.)
The fifth step in the sequential process requires the Commissioner to show that the claimant
“is able to perform other work in the national economy in view of [her] residual functional capacity
as well as [her] age, education, and work experience.” Sosa v. Comm’r of Soc. Sec., 550 F. Supp.
2d at 284. If the Commissioner meets that burden, claimant is not disabled. Ortíz, 890 F.2d at 524.
In the instant case, the ALJ applied the Medical Vocation Guidelines (“the Grid”) corresponding to
the plaintiff’s age, education, experience, and the RFC finding in step four, resulting in a finding of

11

“‘not disabled,’ as to whether or not the claimant has transferable job skills (See SSR 82-41 and 20
C.F.R Part 404, Subpart P, Appendix 2).” (Tr. 27.)
E.

Plaintiff’s objections to the ALJ’s findings on the grounds that the
Commissioner’s decision is not supported by substantial evidence taking the
record as a whole, and that the correct legal standards were not applied.

The plaintiff does not appear to challenge the ALJ’s findings at steps one, two, or three.
However, plaintiff disagrees with the ALJ’s RFC determination at step four and the subsequent
finding under step five that “there were jobs that existed in significant numbers in the national
economy that the claimant could have performed.”(Tr. 27-28.) Thus, the court will first consider
whether there was substantial evidence to support the mental RFC determination and then whether
the ALJ appropriately determined, using the correct legal standards, that the plaintiff could have
performed a significant number of jobs in the national economy.
1.

Plaintiff’s Objection to the ALJ’s Mental RFC Determination

Plaintiff argues that the ALJ improperly afforded less than controlling weight to the treating
psychiatrist Dr. Alicea-Berríos’ opinion, while affording greater weight to the state agency
physicians. (Docket No. 13, pp. 17- 21.) More specifically, plaintiff argues that the ALJ should have
credited Dr. Alicea-Berríos’ report that plaintiff had a GAF of 45 and she was disabled from work.
(Tr. 308, 310.) Dr. Alicea-Berríos also found that the plaintiff had major depression and was
disorientated at times, in addition to suffering some memory loss. (Tr. 300, 304, 312-336.)
As an initial matter, conclusions as to whether a claimant is “disabled”and related legal
conclusions are administrative decisions that are to be made by the Commissioner, not by medical
personnel. 20 C.F.R. § 404.1527(e); see Rivera v. Comm’r of Soc. Sec., 2010 U.S. Dist. LEXIS
1493, at *14-*16 (D.P.R. Jan. 8, 2010) (“while [his physician] believed that [c]laimant was disabled

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and unable to work, disability under the Act is a legal determination that is reserved to the ALJ, and
medical experts are not qualified to render this ultimate legal conclusion.”) (citing Frank v. Banhart,
326 F.3d 618, 620 (5th Cir. 2003) (internal citation omitted)). Therefore, the ALJ’s decision not to
give any special significance to Dr. Alicea-Berríos’opinion that the plaintiff is disabled is not
necessarily legally improper. (Tr. 22.); see 20 C.F.R. § 404.1527(e).
Generally, an ALJ should give more weight to a treating physician’s opinion in making
disability determinations. 20 C.F.R. § 404.1527(d)(2). However, the ALJ will only give more weight
to the opinion of the treating physician “if well-supported... and not inconsistent with other
substantial evidence in the record.” Berríos-Velez, 402 F. Supp. 2d at 391 (citing 20 C.F.R. §
404.1527(d)(2)). Therefore, “when a treating doctor’s opinion is inconsistent with other substantial
evidence in the record, the requirement of ‘controlling weight’ no longer applies.” Id. (citations
omitted).
As the ALJ observed, Dr. Alicea-Berríos’ opinion was neither consistent with the record, nor
well supported. (Tr. 21-22.) For example, Dr. Alicea-Berríos indicated in her assessment that
plaintiff’s memory was slowed due to her medication, and yet in her treatment notes she repeatedly
reflects that plaintiff had no side effects from medication. (Tr. 300, 306, 312, 316-334, 428-448.)
Additionally, Dr. Alicea-Berríos indicated that plaintiff became irritated and frustrated easily.
However, she repeatedly indicated the plaintiff had shown no signs of aggression or violent behavior.
(Tr. 300, 306, 312, 316-334, 428-448.) The ALJ further observed that Dr. Alicea-Berríos noted the
plaintiff had significant limitations, yet she never recommended the plaintiff be hospitalized or
placed in a sheltered living environment. (Tr. 22.) The ALJ stated that Dr. Alicea-Berríos’
opinion/conclusion is inconsistent with the objective medical evidence and the rest of the substantial

13

evidence because throughout the duration of the claim, Dr. Alicea-Berríos noted that the claimant
always remained logical, coherent, and alert. (Tr. 22.) Additionally, the ALJ objected to the doctor’s
use of pre-printed forms without stating bases for her conclusions and opinions.5 (Tr. 22.) The ALJ
properly observed that Dr. Alicea-Berríos’ opinion was not entitled to controlling weight because
it was not consistent with her own notes or the objective evidence. See Arruda v. Barnhart, 314 F.
Supp. 2d 52 (D. Mass. 2004) (noting an ALJ may downplay the weight afforded a treating
physician’s assessment when it is internally inconsistent or inconsistent with other evidence).
Moreover, state agency medical consultants reviewed the records and concluded that plaintiff
retained the capacity to understand, remember, and carry out short and simple instructions; she could
maintain attention for at least two hours; she was able to ask questions and retain assistance; and she
was able to respond to changes in a routine work setting. (Tr. 355.) Dr. Umpierre Vela confirmed
the previous state agency evaluations, and he further stated plaintiff’s condition had not worsened.
(Tr. 337-356.) As a result, the ALJ gave specific reasons as to why less weight should be afforded
to Dr. Alicea-Berríos’ opinion, and greater weight to the state agency psychologist’s findings, and
therefore his allocation of weight is supported by substantial evidence. Cf. Nobrega v. Barnhart , No.
05-30204-KPN, available at 2006 WL 2358886, at *7 (D. Mass. 2006) (citing Lizotte v. Sec’y of
Health & Human Servs., 654 F. 2d 127, 128 (1 st Cir. 1981)) (finding that where the ALJ noted that
claimant’s treating physician’s diagnosis was based on subjective complaints, with little supporting
objective evidence, and where at times internally contradictory, the resolution of conflicting opinions
between the treating physician and consulting physician should be carried out by the ALJ).

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Defendant concedes that Dr. Alicea-Berríos did write out answers to the pre-printed forms, but observes
that her notes were inconsistent with the rest of the evidence which suggested that plaintiff was not disabled.

14

Further, an ALJ is not required to adopt a particular opinion. Rather, “[t]he basic idea which
the claimant hawks- the notion that there must always be some super-evaluator, a single physician
who gives the factfinder an overview of the entire case- is unsupported by the statutory scheme, or
by the caselaw, or by common sense...” Evangelista v. Sec’y of Health & Humand Servs., 826 F. 2d
136, 144 (1 st Cir. 1987). As a result, it is clear the ALJ did not improperly give more weight to the
state consulting psychologist than to the treating physician, and he provided specific reasons for
doing so. Therefore, the decision should be found to have been based on substantial evidence.
2.

Plaintiff’s objection to the ALJ’s use of the Medical Vocational Guidelines to
show other available work

Plaintiff next contends that the ALJ improperly relied on the Grids in making his decision
at step 5 that plaintiff was not disabled. (Docket No. 13 p. 20.) Typically, the Grids are used when
a plaintiff has solely exertional limitations to direct a finding of disabled or not disabled. See 20
C.F.R. § Pt. 404, subpt. P, App. 2. However, the Grids are also applicable when a claimant has nonexertional limitations, provided those limitations do not significantly erode the exertional base. SSR
85-15, Capability to Do Other Work- the Medical Vocational Rules as a Framework for Evaluating
Solely Nonexertional Impairments, 1985 WL 56857, at *1 (November 30, 1984). The Grids also
contemplate unskilled work. Id. at *4. Unskilled work requires the ability to understand, carry out,
and remember simple instructions; to respond appropriately to usual work situations; and, to deal
with changes to a routine work setting. Id. The ALJ properly relied on the state consultant
psychologists’ findings that plaintiff could understand, remember, and carry out short and simple
instructions, maintain attention and concentration for two hour periods, and respond to change in a
routine work environment. (Tr. 355.) Therefore, substantial evidence supports the ALJ’s RFC

15

determination. (Tr. 27.) Those findings in turn reflect that the claimant was capable of unskilled
work; therefore the ALJ properly relied on the Grids. (Tr. 27-28.)
Further, plaintiff claims that when the Grid is used as a framework in determining disability,
and the reduction of the occupational base is more than marginal, the testimony of a vocational
expert is required. 20 C.F.R. Part 404, Subpart P, App. 2. See Burgos López v. Sec’y of Health &
Human Servs., 747 F.2d 37, 42 (1 st Cir. 1984). (Docket No. 13 p. 7.) Plaintiff argues that the
opinion of a disability examiner is an inadequate substitute for the live testimony of a vocational
expert, which plaintiff claims would otherwise be available for cross examination as part of a full
and fair hearing. (Docket No. 13 p. 7.)
An ALJ may still rely on the Grid in some cases involving non-exertional impairments, and
the First Circuit has held that, so long as the non-exertional limitation is “justifiably found to be
substantially consistent with the performance of the full range of unskilled work, the Grid retains its
relevance and the need for vocational testimony is obviated.” See Hannan v. Astrue, 2009 WL
2853578 at *7 (D. Mass. 2009) (citing Ortiz, 890 F.2d at 524, 526). When the only mental limitation
found is the non-exertional limitation to simple, routine mental tasks, there is not more than a
marginal effect on the occupational base as a matter of law. See Todd v. Astrue, 2009 WL 3148726
at *2 (D. Me. 2009) (report and recommendation adopted by Todd v. Astrue, 2009 WL 3418633 (D.
Me. 2009)). Accordingly, a restriction on the plaintiff to simple routine tasks in the work place
would not be incompatible with a resort to the Grid in place of a vocational expert for a plaintiff who
is limited to unskilled work. Id.

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3.

Plaintiff’s objection to the examples of jobs provided by the Disability
Determination Services and the types of jobs which the plaintiff could perform
in accordance to the residual mental capacity accepted by the ALJ.

Finally, plaintiff claims that once it was accepted by the ALJ that the plaintiff could not
perform her past relevant work, the restrictions for performing simple work, as was the finding of
the ALJ, did not match any of the three examples of alternate jobs given by the ALJ. (Docket No.
13 p. 9.) Plaintiff claims the jobs provided by the Disability Determination Services were in great
contrast to what the Dictionary of Occupation Titles (DOT) states as skills required for those jobs
and the types of jobs which the plaintiff could perform in accordance to the residual mental capacity
accepted by the ALJ. (Docket No. 13 p. 9.) Further, plaintiff claims that the ALJ improperly stated
in his opinion that these jobs existed in significant numbers, but without giving evidence of the
numbers of each type of job in the region. (Docket No. 13 p. 8.)
Plaintiff’s suggestion that the number of jobs must be considered in the context of the
geographical area at issue, or in light of the population of the region, is not what is required in an
ALJ’s showing of a significant number of jobs in the economy. Barker v. Sec. of Health & Human
Serv., 882 F.2d 1474, 1479 (9th Cir. 1989); see also Martinez v. Heckler, 807 F.2d 771, 775 (9th Cir.
1986). The language of the regulations does not speak in terms of whether there is a significant ratio
of jobs in the economy but speaks in terms of whether the ALJ provided a significant number of jobs
that the plaintiff can perform. Graves v. Secretary, 473 F.2d 807, 809 (6 th Cir. 1973). “[W]hen there
is testimony that a significant number of jobs exists... it is immaterial that this number is a small
percentage of total number of jobs in a given area.” Hall v. Bowen, 837 F.2d 272, 275 (6th Cir.
1988). The ALJ specified three jobs suggested by the DDS examiner – order caller, routing clerk,
and office helper (Tr. 28) – all of which are consistent with an RFC for unskilled work where all

17

reflect a Specific Vocational Preparation (SVP) level of 2 and Reasoning Development Level of 2.
See Dictionary of Occupational Titles, 209.667-014, 222.687-022, 239.561-010; see Pepin v. Astrue,
No. 09-464-P-S, 2010 WL 3361841, at *5 (D. Me. 2010). (recommended decision affirmed) (finding
a reasoning development level of 2 is not inconsistent with unskilled work).
Plaintiff also argues that the jobs recommended by the Disability Determination Services,
such as the office helper (Tr. 28), require vocabulary and reading rates much higher than the routine,
short, simple work that the ALJ assessed that the plaintiff could perform. (Docker No. 13 p. 10.)
However, these are not part of the requirements in the determination of whether said jobs are
unskilled.6 The jobs suggested by the DDS are consistent with a level two definition of work which
“only requires a person to ‘[a]pply commonsense understanding to carry out detailed but uninvolved
written or oral instructions[; d]eal with problems involving a few concrete variables in or from
standardized situations.’” Money v. Barnhart, 91 Fed. Appx. 210, 215 (3d Cir. 2004). Work in any
of the three jobs suggested by the DDS, all of which require a reasoning level of 2, would not
contradict the requirement that her work be simple, routine and repetitive. Id. Therefore, the ALJ
determined, considering the plaintiff’s age, education, work experience, and RFC, that there were
jobs that exist in significant numbers in the national economy that the claimant could have
performed. (20 C.F.R. § 404.1560(c) and 404.1566.) (Tr. 28.)

Thus, the ALJ’s ultimate

determination should be found to have been based on substantial evidence in the record.

6

As a general rule, the mental capabilities required to perform unskilled work are (i) “[u]nderstanding,
remembering, and carrying out simple instructions[,]” (ii) “[m]aking judgments that are commensurate with the
functions of unskilled work- i.e., simple work-related decisions[,]” (iii) “[r]esponding appropriately to supervision,
co-workers and usual work situations,”and (iv) “[d]ealing with changed in a routine work setting.” Todd v. Astrue,
2009 W L 3148726 at *2 (D. Me. 2009) (report and recommendation citing Social Security Ruling 96-9p, reprinted
in West’s Social Security Reporting Service Rulings (Supp. 2009), at 160-61) adopted by Todd v. Astrue, 2009 W L
3418633 (D. Me. 2009).

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III.

CONCLUSION
For the reasons explained above, it is hereby concluded that the ALJ’s decision is supported

by substantial evidence in the record. Therefore the decision of the Social Security Commissioner
is AFFIRMED.
In San Juan, Puerto Rico, this 15th day of June, 2011.
s/Marcos E. López
United States Magistrate Judge

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