Rodriguez-Valentin v. Commissioner of Social Security
Filing
28
OPINION AND ORDER. Signed by US Magistrate Judge Bruce J. McGiverin on 6/29/2012. (jm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ANA S. RODRIGUEZ-VALENTIN,
Plaintiff,
v.
Civil No. 10-2234 (BJM)
MICHAEL J. ASTRUE, Commissioner of
the Social Security Administration,
Defendant.
OPINION AND ORDER
Plaintiff Ana S. Rodríguez-Valentín (“Rodríguez”) filed a complaint seeking judicial review
of the decision of the defendant, Michael J. Astrue, Commissioner of Social Security
(“Commissioner”), finding that Rodríguez is not entitled to disability benefits under the provisions
of the Social Security Act, 42 U.S.C § 423, as amended. (Docket No. 1). Rodríguez asks for
judgment to be reversed and an order awarding disability benefits be entered, or in the alternative
to remand the case to the Commissioner for further proceedings. Rodríguez filed a memorandum
of law in support of her position. (Docket No. 22). The Commissioner answered the complaint
(Docket No. 13) and filed a memorandum in support of his decision. (Docket No. 27). This case
is before me on consent of the parties. (Docket No. 6, 7). After careful review of the administrative
record and the briefs on file, the Commissioner’s decision is affirmed.
LEGAL STANDARD
The court’s review is limited to determining whether the Administrative Law Judge (“ALJ”)
employed the proper legal standards and focused facts upon the proper quantum of evidence.
Ana S. Rodríguez-Valentín v. Michael J. Astrue, Commissioner of Social Security
Civil No. 10-2234 (BJM)
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Manso-Pizarro v. Secretary of Health and Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). The ALJ’s
findings of fact are conclusive when supported by substantial evidence, 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); Ortiz v. Secretary of Health
and Human Servs., 955 F.2d 765, 769 (1st Cir. 1991); Da Rosa v. Secretary of Health and Human
Servs., 803 F.2d 24, 26 (1st Cir. 1986). 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 evidence.” Rodriguez Pagan v. Secretary of Health and Human Servs., 819 F.2d 1, 3 (1st
Cir. 1987). Written reports submitted by non-examining physicians who merely reviewed the
written medical evidence are not substantial evidence, although these may serve as supplementary
evidence for the ALJ to consider in conjunction with the examining physician’s reports. Irizarry Sanchez v. Comm’r of Soc. Sec., 253 F.Supp. 2d 216, 219 (D.P.R. 2003). The burden is on the
claimant to prove that she is disabled within the meaning of the Social Security Act. See Bowen v.
Yuckert, 482 U.S. 137, 146-147, n.5 (1987). A claimant is disabled under the Act if 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). Under the
statute, a claimant is unable to engage in any substantial gainful activity when she “is not only
unable to do [her] previous work but cannot, considering [her] age, education, and work experience,
engage in any other kind of substantial gainful work which exists in the national economy.”1 42
1
The phrase “work which exists in the national economy” means “work which exists in
significant numbers either in the region where such individual lives or in several regions of the country.”
42 U.S.C. § 423 (d)(2)(A).
Ana S. Rodríguez-Valentín v. Michael J. Astrue, Commissioner of Social Security
Civil No. 10-2234 (BJM)
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U.S.C. § 423(d)(2)(A). In determining whether a claimant is disabled, all of the evidence in the
record must be considered. 20 C.F.R. § 404.1520(a)(3).
A five-step sequential evaluation process must be applied to every case in making a final
determination as to whether a claimant is disabled. 20 C.F.R. § 404.1520; see also Bowen, 482 U.S.
at 140-42; Goodermote v. Secretary of Health and Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982).
In step one, the ALJ determines whether the claimant is engaged in “substantial gainful activity.”
If she is, disability benefits are denied. 20 C.F.R. § 404.1520(b). If she is not, the ALJ proceeds to
step two, through which it is determined whether the claimant has a medically severe impairment
or combination of impairments. 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. However, if the
impairment or combination of impairments is severe, the evaluation proceeds to the third step, in
which it is determined whether the claimant has an impairment equivalent to a specific list of
impairments contained in the regulations’ Appendix 1, which 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 the work she has performed in the past. If the
claimant is able to perform her previous work, 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
calls for a determination of whether the claimant is able to perform other work in the national
economy in view of her residual functional capacity (“RFC”), as well as age, education, and work
Ana S. Rodríguez-Valentín v. Michael J. Astrue, Commissioner of Social Security
Civil No. 10-2234 (BJM)
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experience.2 If the claimant cannot, then she is entitled to disability benefits. 20 C.F.R. §
404.1520(f).
The claimant has the burden, under steps one through four, of proving that she cannot return
to her former employment because of the alleged disability. Santiago v. Sec’y of Health and Human
Servs., 944 F.2d 1, 5 (1st Cir. 1991). Once a claimant has demonstrated a severe impairment that
prohibits return to her 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. Ortiz v.
Sec’y of Health and Human Servs., 890 F.2d 520, 524 (1st Cir. 1989).
FACTUAL AND PROCEDURAL BACKGROUND
Rodríguez was born on January 11, 1957. (Transcript [“Tr.”] 153, 156, 158, 198, 218). She
has an eighth grade education (Tr. 30, 168) and has worked as a manufacturing line inspector, a
machine operator, a cashier, and as an assembler before allegedly becoming unable to work. (Tr.
163, 171-172, 182, 187, 499, 508). Rodríguez claims to have been disabled since April 28, 2007
due to a major depressive disorder. (Tr. 14, 153, 156, 158, 162).
Rodríguez received treatment from March 15, 2006 to April 26, 2007 at Lowell General
Hospital in Lowell, Massachusetts, for left wrist pain with ganglio cyst, diabetes mellitus (not
controlled), high blood pressure, left TMJ crepitus with pain, anemia, and dyslipidemia. X-rays
taken of the left wrist were normal. She was treated with pharmacotherapy. (Tr. 167, 228-245).
In Puerto Rico, Dr. Elsie E. Negrón-Rivera treated the claimant for left wrist inflammation
with pharmacotherapy from August 4, 2007 to May 1, 2008. (Tr. 165, 246-249). Rodríguez
2
An individual’s residual functional capacity is her ability to do physical and mental work
activities on a sustained basis despite limitations from her impairments. 20 C.F.R. § 404.1520(e) and
404.1545(a)(1).
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received treatment at the Metropolitan Hospital, San Germán, from August 23 to October 2, 2007.
(Tr. 166). An x-ray taken on September 28, 2007 revealed that the claimant suffers from
cardiomegaly. (Tr. 258). Rodríguez successfully underwent ambulatory surgery for left wrist
Dequervain's Syndrome on October 2, 2007. (Tr. 166, 250-253). Dr. Ramón A. Dávila treated her
for diabetes, high blood pressure, and anemia with pharmacotherapy from September 14 to October
10, 2007. (Tr. 164-165). Dr. Rossvelt Rijo-Báez treated the claimant for diabetes, high blood
pressure, high cholesterol, anemia, and carpal tunnel syndrome with pharmacotherapy from July 1
to October 23, 2008. (Tr. 165, 168, 310-335).
Rodríguez received psychiatric treatment at the Escuela de Medicina de Ponce, División de
Salud Conductual, Centro de Salud Conductual del Oeste (“CSCO”) from July 14, 2007 to January
29, 2008. (Tr. 165-166). Rodríguez’s symptoms included anhedonia, depressed mood, lack of
energy, crying spells, diminished attention and concentration, and isolation. At CSCO, Dr. Ronald
Malavé diagnosed Rodríguez with a major depressive disorder, recurrent and severe, and generalized
anxiety disorder. She received pharmacotherapy and psychotherapy. (Tr. 150, 264-265). Rodríguez
was then treated there by Dr. Ana Lozada. On October 16, 2007, Dr. Lozada diagnosed Rodríguez
with a major depressive disorder, recurrent and severe, with psychotic features and unresolved
bereavement. Her symptoms then included auditive hallucinations, retarded motor activity,
depressed mood, and diminished concentration. (Tr. 150, 262-263, 266-271). Dr. Lozada reported
on November 29, 2007 that the psychotic manifestations were under control, that the claimant was
well groomed, cooperative, calm with appropriate affect and normal speech. Rodríguez’s thought
process was intact and she had no cognitive difficulties. (Tr. 266).
Rodríguez began seeing another psychiatrist, Dr. Jorge Luis Valentín. In an evaluation
signed January 12, 2008, Dr. Valentín found that the claimant was depressed, oriented in time and
Ana S. Rodríguez-Valentín v. Michael J. Astrue, Commissioner of Social Security
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space, with logical thought process. He found her to have poor attention and concentration, and poor
judgment and introspection. Dr. Valentín diagnosed her with major depressive disorder, recurrent
and severe, with psychotic features, and treated her with pharmacotherapy and psychotherapy for
insomnia, depression, and anxiety. Dr. Valentín treated her until November 10, 2008. (Tr. 150, 165,
272-276).
On October 29, 2008, Rodríguez applied for a period of disability and disability insurance
benefits. (Tr. 12, 45, 153-155). She acquired sufficient quarters of coverage to remain insured
through December 31, 2012. (Tr. 12, 156-157). The Social Security Administration (“SSA”) Field
Office prepared a Disability Report on November 5, 2008, and recommended capability
development based on the mental condition alleged. (Tr. 158-160). Rodríguez prepared a Disability
Report, informing that the following conditions limited her ability to work: major depressive
disorder, recurrent, severe, generalized anxiety disorder, personality disorder NOS, diabetes
mellitus, hypertension, anemia by Hx, left wrist release, left TMJ crepitus with pain, and
dyslipidemia. (Tr. 161-170). Rodríguez claimed that she hears voices, sees shadows, cannot sleep,
is always depressed and anxious, suffers from suicidal ideation, is apathetic, has nightmares, and
feels like she is being watched and touched. She also claimed to suffer from pain and lack of
strength in her hands, headaches, swelling in her legs, and that she can barely walk or spend time
in the same position. She alleged that she became unable to work and stopped working on April 28,
2007 because of her conditions. (Tr. 162). Rodríguez also prepared a Function Report on
November 24, 2008, in which she reported being angry at life, having no will power or interest in
doing things, having suicidal thoughts, wanting to be left alone, only wanting to sleep, hearing
voices and laughter, having bad dreams, having body aches, and needing help with personal care and
with taking her medicines. (Tr. 189-196, 514-523).
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On December 1, 2008, Dr. Valentín submitted to the SSA a mental RFC assessment
indicating that Rodríguez was extremely limited in all the items included under the four categories
of the Summary Conclusions Section of the form: Understanding and Memory, Sustained
Concentration and Persistence, Social Interaction, and Adaptation. He assessed that the claimant
has deteriorating major depression with psychotic features, poor response to medications, and a poor
prognosis. (Tr. 277-281).
Rodríguez underwent a consultative examination by Dr. Fernando Torres Santiago, internist,
on January 9, 2009. Dr. Torres reported that the claimant suffered from arterial hypertension,
diabetes mellitus type 2, menopause, anxiety, and a depressive disorder. Although Dr. Torres found
Rodríguez to be alert, well oriented, and cooperative, he remarked that she was unable to perform
regular work, and that a psychiatric evaluation was recommended. (Tr. 151, 287-298).
On February 19, 2009, the claimant underwent a consultative evaluation with Dr. Alberto
Rodríguez, psychiatrist. Dr. Rodríguez informed that the claimant was depressive, with restricted
affect, and diminished attention and concentration. Dr. Rodríguez also found that the claimant’s
thought process was slow, logical, coherent, and relevant, with adequate memory and no
disturbances in perception at the time of the interview. (Tr. 151, 301-309).
On March 4, 2009, the case was referred to Dr. Carmen Piñeiro, non-examining psychiatrist,
for a mental RFC assessment. (Tr. 337). On March 12, 2009, Dr. Piñeiro assessed in one sentence
that the evidence sustained a severe mental condition. No analysis or findings were included in this
assessment. (Tr. 336). The case was referred again to Dr. Piñeiro for a re-assessment of the severity
of the alleged conditions. (Tr. 339). Dr. Piñeiro replied on March 27, 2009 that the previous
assessment remains valid because both the treating sources and the consultative expert described the
claimant’s condition as severe. (Tr. 338).
Ana S. Rodríguez-Valentín v. Michael J. Astrue, Commissioner of Social Security
Civil No. 10-2234 (BJM)
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On March 31, 2009, the case was referred to Dr. Orlando Reboredo, non-examining
psychiatrist, for another mental RFC assessment. (Tr. 360). In a very thorough case analysis, Dr.
Reboredo assessed on April 24, 2009 that although the symptoms alleged are credible, the claimant
does not appear to be so overwhelmed that she could not perform any work activity because she can
learn, understand, remember, or execute at least simple instructions. It was Dr. Reboredo’s opinion
that Rodríguez can sustain pace and attention, and persist at work activities during a regular workday
or workweek, without frequent psychologically-based disturbances or interruptions; that she can
perform work activities without special help, supervision, or considerations, and that she can interact
with the public, coworkers, and supervisors, and adjust to changes in work routines and
environments. (Tr. 340-341, 358).
The Regional Commissioner denied her application initially on April 27, 2009. (Tr. 12, 45,
50-53, 197). A Disability Report on Appeal was prepared on June 5, 2009. Claimant did not report
new illnesses, injuries, or conditions acquired since the November 5, 2008 Disability Report that she
last filed. (Tr. 201-208). Rodríguez prepared another Function Report on July 7, 2009. In addition
to the information that she had previously provided, she added that she was prescribed wrist braces
for sleeping and that, besides suicidal ideas, she also had homicidal ideas. (Tr. 209-216). On
August 13, 2009, the case was referred to Dr. Luis Umpierre, non-examining psychiatrist, for a
mental RFC assessment. (Tr. 380). Dr. Umpierre stated that the analysis of the evidence supported
a moderate condition and adopted Dr. Reboredo’s mental RFC assessment. (Tr. 379). The Regional
Commissioner denied Rodríguez’s application upon reconsideration on August 19, 2009. (Tr. 12,
46, 56-58, 217).
Meanwhile, Rodríguez received additional psychiatric treatment at the Administración de
Servicios de Salud Mental y Contra la Adicción (“ASSMCA”) from May 2, 2009 to June 6, 2010.
Ana S. Rodríguez-Valentín v. Michael J. Astrue, Commissioner of Social Security
Civil No. 10-2234 (BJM)
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She was treated there by various psychiatrists. (Tr. 449-470). On May 2, 2009, Rodríguez’s affect
was found to be stable and appropriate. She was oriented with adequate attention, normal thought
contents, disorganized thought process, appropriate behavior and insight, intact judgment, and with
a low risk estimate. (Tr. 367-373)
On September 22, 2009, Rodríguez requested a hearing by an ALJ. (Tr. 12, 59-60). The
claimant filed a Disability Report on Appeal dated November 24, 2009, claiming that, as of May 28,
2009, her conditions worsened and that she developed asthma. (Tr. 221-227). On June 7, 2010, Dr.
Maritza Ortiz (ASSMCA) submitted a mental RFC assessment indicating that Rodríguez was
extremely limited in all four of the previously mentioned categories. Dr. Ortiz assessed that the
claimant has severe depressive symptoms with psychosis, has had poor response to treatment, and
has a poor prognosis. Dr. Ortiz opined that even with treatment her condition has been deteriorating.
(Tr. 481-497).
The hearing was held on June 14, 2010. (Tr. 84, 91, 99). A vocation expert (“VE”), Marieva
Puig, testified by telephone. (Tr. 12, 29, 99). The ALJ issued a written decision on August 13,
2010, finding that Rodríguez had a major depressive disorder, but was not disabled under Sections
216(i) and 223(d) of the Social Security Act and could return to her past work as a cashier and
assembler. (Tr. 6-26). Rodríguez requested review of the ALJ’s decision. (Tr. 4). On October 30,
2010, the Appeals Council denied her request. (Tr. 1-3). Rodríguez appealed the ALJ’s decision
as the Commissioner’s final decision.
DISCUSSION
The analysis in this case centers on the ALJ’s determination at step four in the sequential
evaluation process contained in 20 CFR § 404.1520. At the fourth step, the Commissioner must
make a finding about the claimant’s RFC based on all the relevant medical and other evidence in the
Ana S. Rodríguez-Valentín v. Michael J. Astrue, Commissioner of Social Security
Civil No. 10-2234 (BJM)
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case record. 20 C.F.R. §§ 404.1520(e), 416.920(e). The Commissioner must then compare the RFC
assessment with the physical and mental demands of past relevant work and determine if the
claimant can still do that kind of work. 20 C.F.R. §§ 404.1560(b). If the claimant can do past
relevant work, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). The
claimant has the initial burden of proving inability to return to past relevant work because of her
impairment. Manso-Pizarro, 76 F.3d at 17. On review, this court must determine whether the ALJ’s
decision at step four was supported by substantial evidence.
Rodríguez claims that the ALJ did not comply with the correct legal standard. Rodríguez
specifically claims that the ALJ’s finding as to her RFC to perform past relevant work as a cashier
and assembler are not supported by the medical evidence or by the VE’s testimony. (Docket No.
22; p. 2, 20-24). Rodríguez also claims that the ALJ’s finding does not comply with the
requirements of the Social Security Ruling (“SSR”) 82-62, 1982 SSR LEXIS 27, because the ALJ
failed to make a finding of fact as to the physical or mental demands of past relevant work with
which to compare her RFC to in order to determine if she can meet such demands. (Docket No. 22;
p. 2, 10-20).
SSR 82-62 explains the procedures for determining a disability claimant’s capacity to do past
relevant work as set forth in the regulations. SSR 82-62, 1982 SSR LEXIS 27 at *1. SSR 82-62
states that, in finding that an individual has the capacity to perform a past relevant job, the
determination or decision must contain specific findings of fact as to: (1) the individual’s physical
and mental RFC, (2) the physical and mental demands of the past job/occupation, and (3) whether
the individual’s RFC would permit a return to his or her past job or occupation. SSR 82-62, 1982
SSR LEXIS 27 at *10. I examine the ALJ’s findings as to each of these matters in turn.
Ana S. Rodríguez-Valentín v. Michael J. Astrue, Commissioner of Social Security
Civil No. 10-2234 (BJM)
I.
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Physical and Mental RFC
With respect to the first element of SSR 82-62, the ALJ found that Rodríguez had the RFC
to perform a full range of work at all exertional levels but with the following non-exertional
limitations: she is precluded from engaging in detailed and complex tasks. (Tr. 17). That is, that
Rodríguez retained the capacity to engage in unskilled work. Rodríguez does not contest the
physical RFC finding, but argues that the ALJ’s mental RFC finding is not supported by the medical
record. Rodríguez alleges that her non-exertional limitations impede her from returning to past
relevant work and have compromised her ability to perform at all exertional levels. (Tr. 20-22).
The ALJ found that Rodríguez has a severe impairment, a major depressive disorder, and has
received treatment for her mental condition. (Tr. 14). The ALJ found that the claimant retains the
capacity to perform simple, repetitive tasks on a sustained basis. Id. The ALJ also found that the
record reveals that the claimant’s mental condition has caused more than minimal limitations in her
ability to perform basic work activities, but that her symptoms have remained under control with the
prescribed treatment, that Rodríguez can learn, understand, remember, and execute simple
instructions; sustain pace and attention; persist at work activities during a regular workday or
workweek without special help or supervision; adjust to changes in work routines and environments;
and interact with the public, coworkers and supervisors. (Tr. 15).
It is the Commissioner’s responsibility to determine issues of credibility, draw inferences
from the record evidence, and resolve conflicts in the evidence. Ortiz, 955 F.2d at 769 (citation
omitted); Evangelista v. Sec’y of Health & Human Servs., 826 F.2d 136, 141 (1st Cir. 1987)
(citations omitted). In this case, the ALJ stated that the claimant’s self-reported conditions and
symptoms, the medical records of treating physicians, and opinion evidence were considered. (Tr.
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17). The ALJ gave no credibility to the claimant’s statements concerning the intensity, persistence,
and limiting effects of the alleged symptoms because they were inconsistent with the RFC
assessment. (Tr. 19). The ALJ found that Rodríguez received treatment for her physical conditions,
and showed poor compliance with the prescribed treatments and with the physicians’ orders. (Tr.
17). The ALJ found that the CSCO record showed that the claimant responded to psychiatric
treatment. (Tr. 18). The ALJ also found that the severe limitations reported by Dr. Valentín,
treating psychiatrist, were not supported by his clinical findings and that they were inconsistent with
the findings of Dr. Torres, consultative internist, who, while interviewing Rodríguez for a physical
(not mental) assessment, found her to be alert, well oriented, and cooperative. (Tr. 18). The ALJ
also found that the assessment by Dr. Ortiz (ASSMCA) as to the severity of Rodríguez’s mental
condition was inconsistent with the clinical findings by other treating psychiatrists at ASSMCA.
(Tr. 20). The ALJ gave little weight to the assessment prepared by Dr. Rodríguez, consultative
psychiatrist, finding that his assessment that Rodríguez was unable to handle funds was inconsistent
with some of his own clinical findings. (Tr. 20). It was within the ALJ’s discretion to credit the
more positive reports of claimant’s mental condition. See 20 C.F.R. § 404.1527(d)(2)-(5); RomanRoman v. Comm’r of Soc. Sec., 114 F. App’x 410, 411-12 (1st Cir. 2004), citing Rodríguez-Pagan,
819 F.2d at 2-3.
On balance, I find that the evidence on record supports the ALJ’s mental RFC determination
that Rodríguez can perform unskilled work. Unskilled work is that which needs little or no
judgment to do simple duties that can be learned on the job in a short period of time, and may or may
not require considerable strength. 20 C.F.R. § 404.1568(a). The record shows that the treating and
consultative physicians found that Rodríguez was depressed and had poor attention and
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Civil No. 10-2234 (BJM)
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concentration, but was oriented, cooperative, with intact thought process, appropriate affect, and
with no cognitive difficulties. As to judgment, one treating doctor assessed that she had poor
judgment (Tr. 272-276) while another assessed that she had intact judgment (Tr. 367-373), but this
discrepancy does not affect the RFC finding as to claimant’s capability of performing unskilled
work. In short, the ALJ’s determination is supported by substantial evidence.
II.
Physical and Mental Demands of Past Relevant Occupations
Rodríguez next argues that the ALJ failed in making a finding of fact as to the physical or
mental demands of the claimant’s past relevant work and, therefore, the ALJ’s determination that
she could perform past relevant work did not comply with SSR 82-62. (Docket No. 22, p. 14-15).
SSR 82-62 states that the decision as to whether the claimant retains the functional capacity to
perform past work which has current relevance must be developed and explained fully in the
disability decision. SSR 82-62, 1982 SSR LEXIS 27 at *6-7. “Information concerning job titles,
dates work was performed, rate of compensation, tools and machines used, knowledge required, the
extent of supervision and independent judgment required, and a description of tasks and
responsibilities will permit a judgment as to the skill level and the current relevance of the
individual’s work experience. In addition, for a claim involving a mental/emotional impairment,
care must be taken to obtain a precise description of the particular job duties which are likely to
produce tension and anxiety, e.g., speed, precision, complexity of tasks, independent judgments,
working with other people, etc., in order to determine if the claimant’s mental impairment is
compatible with the performance of such work.” SSR 82-62, 1982 SSR LEXIS 27 at *8-9. The
claimant is the primary source for vocational documentation, and statements by the claimant
regarding past work are generally sufficient for determining the skill level, exertional demands, and
nonexertional demands of such work. SSR 82-62, 1982 SSR LEXIS 27 at *6-7.
Ana S. Rodríguez-Valentín v. Michael J. Astrue, Commissioner of Social Security
Civil No. 10-2234 (BJM)
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Rodríguez argues that the ALJ made no specific findings as to the physical or mental
demands of her past relevant work. (Docket No. 22, p. 15). The Commissioner argues that the
ALJ’s finding is supported by the claimant’s description of past work and by the VE’s testimony.
(Docket No. 27, p. 8).
Rodríguez informed to the SSA that in her job as an assembler, she worked for eight hours
a day assembling the motor for ATM machines. She put together and welded ATM machine parts,
attached cables and inspected the machines, and packed the ATM motors in plastic and placed them
in boxes. In performing her job, she used machines, tools, or equipment; sat and/or stooped for eight
hours a day; reached, handled, grabbed, or grasped big and small objects for four hours a day; lifted
and carried up to fifty pounds per day; and frequently lifted ten pounds. She did not need technical
knowledge or skills, did not supervise people, and was not a lead worker. (Tr. 163-164, 172).
Rodríguez also informed that, as a cashier, she worked for four hours a day, and stood most
of the time charging or packing merchandise for customers. She walked around the store
distributing or rearranging merchandise left by customers at the register, used machines, tools, or
equipment, and prepared reports. She stood and handled large objects for three hours a day. She
walked, stooped, or handled small objects for an hour a day, lifted and carried up to fifty pounds per
day, and frequently lifted ten pounds. She did not need technical knowledge or skills, did not
supervise other people, and was not a lead worker. (Tr. 173-174).
At step four of the sequential evaluation process, a claimant will be found not disabled when
she retains the RFC to perform the actual functional demands and job duties of a particular past
relevant job. The claimant has the initial burden of showing that she can no longer perform past
work because of her impairment. Not only must the claimant lay the foundation as to what activities
Ana S. Rodríguez-Valentín v. Michael J. Astrue, Commissioner of Social Security
Civil No. 10-2234 (BJM)
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her former work entailed, but she must point out how her functional incapacity renders her unable
to perform her former usual work. The ALJ may credit a claimant’s own description of her former
job duties and functional limitations but has some burden to develop the record. Santiago, 944 F.2d
at 5-6 (internal quotation marks and citations omitted). With regard to claimant’s initial burden,
the kind of foundation that the claimant initially must lay requires no more than putting into issue
functional loss that precludes performance of pertinent prior work activities. Once this threshold
is crossed, the ALJ has the obligation to measure the requirements of former work against the
claimant’s capabilities. Id., at 6-7. Rodríguez reported that her major depressive disorder and other
physical ailments limited her ability to work because she was always depressed and anxious, hears
voices, feels like she is being watched and touched, has suicidal ideas, is apathetic to everything,
got frequent headaches, and could barely walk or spend much time in the same position. (Tr. 162).
I find that, at minimum, Rodríguez put into issue mental functional loss that precludes performance
of pertinent prior work activities; the ALJ thus had the obligation to measure the requirements of
former work against Rodríguez’s mental capabilities.
I further find that the ALJ’s analysis of the demands of claimant’s prior work is undeveloped
under SSR 82-62. In this case, the ALJ stated that Rodríguez’s RFC was compared with the
physical and mental demands of this work, and found that she is capable of performing past relevant
work as a cashier and an assembler. The ALJ stated that these jobs require unskilled mental
functions, that these functions are not precluded by the claimant’s RFC, and that the VE testified that
the claimant retained the capacity to engage in unskilled type of work. (Tr. 20). However, the
ALJ’s decision lacks discussion of the evidence related to the physical and mental demands of
Rodríguez’s past relevant work mentioned, and of the reasons that led the ALJ to conclude that
Ana S. Rodríguez-Valentín v. Michael J. Astrue, Commissioner of Social Security
Civil No. 10-2234 (BJM)
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Rodríguez’s RFC allowed her to return to past relevant work. See Winfrey v. Chater, 92 F.3d 1017,
1025 (10th Cir. 1996) (holding that “[r]equiring the ALJ to make specific findings on the record at
each phase of the step four analysis provides for meaningful judicial review. When, as here, the ALJ
makes findings only about the claimant’s limitations, and the remainder of the step four assessment
takes place in the VE’s head, we are left with nothing to review.”)
However, although the ALJ failed to make the second finding required by SSR 82-62, the
error in this case is harmless. “[A]n ALJ’s error is harmless where it is ‘inconsequential to the
ultimate nondisability determination.’” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)
(citations omitted). Cause for remand exists when an ALJ’s administrative failure to comply with
a SSR causes prejudice. Delgado v. Barnhart, 305 F.Supp. 2d 704, 709 (S.D. Tex. 2004) citing Hall
v. Schweiker, 660 F.2d 116, 119 (5th Cir. 1981) (per curiam) (reversing and remanding because
prejudice resulted from the ALJ’s failure to comply with an SSR). The mental RFC limitations
found by the ALJ are not inconsistent with performance of Rodríguez’s past work as assembler and
cashier as described by claimant herself, and are not inconsistent either with the VE’s description
of the claimant’s vocational profile, as discussed below. I find that the ALJ’s determination would
have been the same even if the decision contained a more detailed finding of facts as to past relevant
work, and no prejudice was caused to the claimant because of the ALJ’s error. The ALJ’s error is
therefore harmless, and remanding the case for further elaboration of the second part of the ruling
would serve no additional purpose.
III.
VE’s Comparison of RFC with Demands of Past Employment
Rodríguez also argues that the ALJ’s finding as to her RFC to perform past relevant work
as a cashier and assembler is not supported by the VE’s testimony as to the mental demands of her
Ana S. Rodríguez-Valentín v. Michael J. Astrue, Commissioner of Social Security
Civil No. 10-2234 (BJM)
Page 17
past relevant work. (Docket No. 22, p.23). At the hearing, the ALJ first asked the VE to establish
the vocational aspects of the jobs that Rodríguez had worked in. The VE testified that the claimant
was fifty-three years old at the time the hearing was held, that she was beginning to get old, that she
had a limited education, and that her previous jobs have been either mentally unskilled or semiskilled with a Specific Vocational Preparation (“SVP”) of between two and four and mostly of light
difficulty (except one that was considered of medium effort). The VE also testified as to the
physical and mental demands of Rodríguez’s past jobs; that they required that the worker stand
and/or walk for prolonged periods of time; that the worker have the ability to grab, pull, lift, and
load; and have mental and emotional stability to interact with the public and supervisors, and to
focus and concentrate for extended periods of time. The VE testified that this was the claimant’s
vocational profile. (Tr. 30-31).
The first question posed to the VE was whether a person with the following mental
limitations could perform the jobs that Rodríguez has performed: no physical limitations; can learn,
understand, remember, or execute at least simple instructions; can sustain pace and attention, and
persist at work activities during a regular work day or week without frequent psychologically-based
disturbances or interruptions; can perform work activities without special help, supervision, or
consideration; can interact with the public, coworkers, and supervisors; and can adjust to changes
in work routines and environments. The VE testified that this description fits assembler and teller
jobs because these jobs require that the person follow simple instructions. (Tr. 31-32).
The ALJ then asked the VE if a person who cannot complete simple tasks could return to
those jobs or another job. The VE testified that such a person would not be able to execute the
assembler job nor the teller job nor any job that exists in the national economy because an unskilled
job requires that the person can do simple and routine tasks. (Tr. 32-33).
Ana S. Rodríguez-Valentín v. Michael J. Astrue, Commissioner of Social Security
Civil No. 10-2234 (BJM)
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Counsel for the claimant asked the VE if a person with Rodríguez’s vocational profile, who
can only pay attention and/or concentrate for up to two hours in a normal work day, who can meet
the established goals of production for two hours, and who has to take a scheduled break every two
hours3 because of her emotional condition, could perform the jobs mentioned or any other job that
exists in the national economy. The VE testified that this person would not be able to perform those
jobs. (Tr. 33-34). Counsel then asked if a person who cannot always arrive punctually to work
because of her condition, can only accept work-related instructions or criticisms, and can only work
in coordination with others for two hours during a normal work day, could do any type of job that
exists in the national economy. The VE testified that a person’s productivity is affected by
punctuality and the ability to follow instructions. (Tr. 35-36). Counsel then asked the VE if
claimant, who is in her fifties, with a limited education, who has worked in unskilled or semiskilled
jobs, and can only lift ten pounds occasionally and less than ten pounds frequently, could perform
the sedentary jobs that she used to perform. The VE answered that she would not be able to do those
jobs because they have physical demands. (Tr. 36-37).
A proper hypothetical question is one that “incorporates reasonably all disabilities of the
claimant recognized by the ALJ, which “accurately reflects all of [the claimant’s] impairments and
the degree of their severity.” Bowling v. Shalala, 36 F.3d 431 (5th Cir.1994). The ALJ may rely on
the VE’s testimony to find that the claimant is able to perform past work only so long as the VE’s
testimony is in response to an accurate hypothetical. Felisky v. Bowen, 35 F.3d 1027, 1036 (6th Cir.
1994). A VE’s testimony cannot constitute substantial evidence to support an ALJ’s determination
as to a claimant’s disability status unless it accurately reflects all of the claimant’s limitations.
3
It is not clear from the record if counsel asked the VE to consider that the person needed a break
every two hours or a two hour break. (Tr. 34).
Ana S. Rodríguez-Valentín v. Michael J. Astrue, Commissioner of Social Security
Civil No. 10-2234 (BJM)
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Cooper v. Sullivan, 880 F.2d 1152, 1158 (9th Cir.1989); Varney v. of Sec’y Health and Human
Services, 846 F.2d 581, 585 (9th Cir. 1988). However, it is well within an ALJ’s authority to weigh
the evidence, to determine the credibility of the plaintiff’s subjective complaints, and to use only
credible evidence in posing a hypothetical question to a vocational expert. See Arocho v. Sec’y of
Health and Human Services, 670 F.2d 374, 375 (1st Cir. 1982) (ALJ must decide what testimony
will be credited when forming the hypothetical questions).
Having already found that the medical evidence supports the ALJ’s RFC determination, I
find that the questions posed by the ALJ to the VE accurately reflect Rodríguez’s impairments and
degree of severity. Also, the VE considered Rodríguez’s physical and mental demands of past
relevant work when testifying that she could perform unskilled work. I therefore conclude that the
VE’s testimony provides substantial support for the ALJ’s conclusion that the claimant can perform
her previous jobs.
CONCLUSION
For the foregoing reasons, the Commissioner’s decision is affirmed. Judgment shall be
entered accordingly.
IT IS SO ORDERED.
At San Juan, Puerto Rico, on this 29th day of June, 2012.
s/Bruce J. McGiverin
BRUCE J. McGIVERIN
United States Magistrate Judge
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