Mercado-Hernandez v. Commissioner of Social Security

Filing 17

OPINION AND ORDER regarding 1 Social Security Complaint, affirming the decision of the Commissioner of Social Security. Signed by US Magistrate Judge Marcos E. Lopez on 3/28/2013. (GDR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

CARLOS MERCADO HERNÁNDEZ ,
Plaintiff,
v.

CIVIL NO. 11-1899 (MEL)

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

OPINION AND ORDER
I.

PROCEDURAL BACKGROUND
Carlos Mercado Hernández (“plaintiff” or “claimant”) was born in 1957, has completed

high school, and was employed as a janitor until March 15, 2005. (Tr. 67.) On December 7,
2005, plaintiff filed an application for Social Security Disability Insurance benefits, alleging
disability due to a major depressive disorder, disc protrusion at L4-5, disc bulge at L5-S1, and
diabetes mellitus. (Tr. 122.) The alleged onset date of the disability was March 15, 2005; the
end of the insurance period was December 31, 2010. (Tr. 18.) Plaintiff’s application was denied
initially as well as on reconsideration. (Tr. 30-35, 37-40.) After plaintiff’s timely request was
granted, a hearing took place before an Administrative Law Judge (“ALJ”) on June 18, 2009.
(Tr. 41-42, 294-307.) Plaintiff waived his right to appear. (Tr. 663-65.) On June 30, 2009, the
ALJ rendered a decision denying plaintiff’s claim. (Tr. 10-25.) The Appeals Council denied
plaintiff’s request for review on July 13, 2011; therefore, the ALJ’s decision became the final
decision of the Commissioner of Social Security (“Commissioner” or “defendant”). (Tr. 5-7.)

On September 13, 2011, plaintiff filed a complaint seeking review of the ALJ’s decision
pursuant to 42 U.S.C. § 405(g), alleging that the ALJ ignored substantial evidence and did not
use the correct legal standards in framing the hypothetical given to the vocational expert. Docket
No. 1, at 1. On February 21, 2012, defendant filed an answer to the complaint and a certified
transcript of the administrative record (D.E. 5; 6). Both parties have filed supporting memoranda
(D.E. 8; 16).
II.

LEGAL STANDARD
A.

Standard of Review

Once the Commissioner has rendered his final determination on an application for
disability benefits, a district court “shall have the power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or reversing [that decision], with or
without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). The court’s review is limited
to determining whether the ALJ employed the proper legal standards and whether his factual
findings were founded upon sufficient evidence. Specifically, the court “must examine the
record and uphold a final decision of the Commissioner denying benefits, unless the decision is
based on a 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)).
Additionally, “[t]he findings of the Commissioner … as to any fact, if supported by
substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). 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.”

2

Ginsburg v. Richardson, 436 F.2d 1146, 1148 (3d Cir. 1971) (quoting Laws v. Celebrezze, 368
F.2d 640, 642 (4th Cir. 1966)).
While the Commissioner’s fact findings are conclusive when they are supported by
substantial evidence, they 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); Irlanda Ortiz v. Sec’y of Health & Human Servs., 955 F.2d 765, 769 (1st
Cir. 1991) (per curiam)). Moreover, a determination of substantiality must be made based on the
record as a whole. See Irlanda Ortiz, 955 F.2d at 769 (citing Rodríguez v. Sec’y of Health &
Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)). However, “[i]t is the responsibility of the
[ALJ] to determine issues of credibility and to draw inferences from the record evidence.” Id.
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 evidence.”
Rodríguez Pagán v. Sec’y of Health & Human Servs., 819 F.2d 1, 3 (1st Cir. 1987) (per curiam).
B.

Disability Under the Social Security Act

To establish entitlement to disability benefits, the claimant bears the burden of proving
that he or she is disabled within the meaning of the Social Security Act. See Bowen v. Yuckert,
482 U.S. 137, 146 n.5, 146-47 (1987). An individual 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).
Claims for disability benefits are evaluated according a five-step sequential process. 20
C.F.R. § 404.1520; Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003); Cleveland v. Policy Mgmt.
3

Sys. Corp., 526 U.S. 795, 804 (1999); Yuckert, 482 U.S. at 140-42. If it is determined that the
claimant is not disabled at any step in the evaluation process, then the analysis will not proceed
to the next step. At step one, it is determined whether the claimant is working and thus engaged
in “substantial gainful activity.” 20 C.F.R. § 404.1520(a)(4)(i). If so, then disability benefits are
denied. 20 C.F.R. § 404.1520(b). Step two requires the ALJ to determine whether the claimant
has “a severe medically determinable physical or mental impairment” or severe combination of
impairments. 20 C.F.R. § 404.1520(a)(4)(ii). If he does, then the ALJ determines at step three
whether the claimant’s impairment or impairments are equivalent to one of the impairments
listed in 20 C.F.R. part 404, subpart P, appendix 1. 20 C.F.R. § 404.1520(a)(4)(iii). If so, then
the claimant is conclusively found to be disabled. 20 C.F.R. § 404.1520(d). If not, then the ALJ
at step four assesses whether the claimant’s impairment or impairments prevent her from doing
the type of work he or she has done in the past. 20 C.F.R. § 404.1520(a)(4)(iv). If the ALJ
concludes that the claimant’s impairment or impairments do prevent her from performing her
past relevant work, the analysis then proceeds to step five. At this final step, the ALJ evaluates
whether the claimant’s residual functional capacity (“RFC”),1 combined with her age, education,
and work experience, allows her to perform any other work that is available in the national
economy. 20 C.F.R. § 404.1520(a)(4)(v). If the ALJ determines that there is work in the
national economy that the claimant can perform, then disability benefits are denied. 20 C.F.R. §
404.1520(g).
Under steps one through four, the plaintiff has the burden of proving that he cannot return
to his former job because of his impairment or combination of impairments. Ortiz v. Sec’y of
Health & Human Servs., 890 F.2d 520, 524 (1st Cir. 1989) (per curiam). Once he has carried

1

An individual’s residual functional capacity is the most that he or she can do in a work setting despite the
limitations imposed by her mental and physical impairments. 20 C.F.R. § 404.1545(a)(1).

4

that burden, the Commissioner then has the burden under step five “to prove the existence of
other jobs in the national economy that the plaintiff can perform.” Id.
III.

THE MEDICAL EVIDENCE CONTAINED IN THE RECORD
A.

Physical Evidence

On a referral from Dr. Scott Stoll, a treating physician, plaintiff had a magnetic resonance
imaging (MRI) study on March 16, 2005. (Tr. 154.) It showed degenerative disc disease
between L4 and S1, central disc protrusion and mild to moderate central spinal stenosis at L4-L5,
and a mild broad based disc bulge at L5-S1. Id. On March 18, 2005, Dr. Stoll diagnosed lower
back pain and bulges at L4-L5 and L5-S1. (Tr. 153.)
On February 23, 2006, plaintiff was evaluated by Dr. Samuel Méndez, a consulting
neurologist. He reported that plaintiff complained of lower back pain since 2000 and had quit
working in 2005 after physical therapy and medications did not provide relief. The examination
revealed plaintiff had limited muscle strength in the psoas (4/5) and some range of motion
restriction in the knees, hips, and lumbar spine. (Tr. 172-73, 176-78, 179-80.) Otherwise, he had
a 5/5 motor strength, adequate muscle bulk, negative straight leg raising, and normal reflexes and
sensory functions. Id. The radiological examinations of the lumbar spine revealed minimal loss
of the normal spine curvature suggesting muscular spasm, otherwise unremarkable examination.
(Tr. 175.)
On April 20, 2006, Dr. María Guzmán treated plaintiff for back pain. The physical
examination showed normal findings. (Tr. 194.) The next day, Dr. Guzmán reviewed the results
of the laboratory workup and ran neurological and extremity examinations, all of which showed
normal findings. Dr. Guzmán diagnosed diabetes mellitus, lumbalgia, and an unspecified mental
condition. (Tr. 189-92.)

5

On June 9, 2006, Dr. Osvaldo Rivera, a state agency physician, reviewed the medical
evidence and completed a Physical Residual Functional Capacity Assessment.

Dr. Rivera

indicated that plaintiff could occasionally lift and carry twenty pounds and frequently handle ten
pounds. (Tr. 199.) He also noted plaintiff could stand, walk, and sit for about six hours in an
eight-hour workday and occasionally climb, balance, stoop, kneel, crouch, and crawl. (Tr. 200.)
Dr. Rivera’s findings were later confirmed by Dr. Ramón Ruiz, a second consulting physician
who also reviewed the evidence in the record. (Tr. 269-70.)
On August 17, 2006, Dr. Madeline Asencio, a treating physician, diagnosed degenerative
disc disease at L4-S1, and central disc protrusion with mild stenosis at L4-L5. (Tr. 228). Dr.
Asencio determined that plaintiff could sit and stand or walk less than two hours in an eight-hour
day, would need to alternate between sitting and walking, would require unscheduled breaks all
the time, and would need to use a cane or other assistive device. (Tr. 230-31.) Plaintiff could
occasionally crouch, squat or climb stairs, but rarely lift less than ten pounds and never twist,
stoop or climb ladders. (Tr. 231.) She further assessed that plaintiff could reach with his arms
and handle objects for less than ten minutes, and use his fingers for fine manipulations for up to
thirty minutes. (Tr. 231.) Based on these determinations, Dr. Asencio opined that plaintiff had
been unable to work for the past four years. Id. On January 28, 2007, Dr. Asencio completed a
questionnaire describing plaintiff’s impairments. (Tr. 228-32.)
At the request of the Commissioner, Dr. Antonio Aponte García performed an internal
medicine examination on December 4, 2007. (Tr. 233-43.) Plaintiff complained of chronic
lower back pain lasting three years and described that heavy lifting and prolonged sitting or
walking caused persistent pain. (Tr. 233-34.)

He was taking Glipizide, Lexapro, Lunesta,

Seroquel, Celebrex, and Flexeril at the time. His diabetes was under control. Id. On physical

6

examination, Dr. Aponte García noted that plaintiff had mild tenderness and slight range of
motion restriction of the lumbar spine, but no motor or sensory deficit, full lower extremity
strength, and no limitations in hand function. (Tr. 235, 237-41.) Dr. Aponte García diagnosed
type II diabetes mellitus, depressive disorder, chronic lower back pain, discogenic disease at L5S1, and thoracolumbar spondylosis. (Tr. 235.)
B.

Psychiatric Evidence

Dr. José J. Zamora Álvarez, who was plaintiff’s treating psychiatrist since April 14, 2005,
diagnosed recurring major depression with anxiety and polysubstance dependence in long-term
remission. (Tr. 170.) On October 16 and 19, 2005, Dr. Zamora completed a psychiatric medical
report and mental impairment form. (Tr. 155-70.) He noted plaintiff was anxious, sad, and
irritable. (Tr. 166.) His current complaints included crying bouts, agoraphobia, insomnia, poor
impulse control, problems with attention, memory, and concentration, and feelings of sadness,
anxiety, apprehension, and worthlessness. (Tr. 155, 166-67.) He denied having any suicidal
thoughts or ideas and had no hallucinations or deliria. (Tr. 168.) Plaintiff’s treatment consisted
of support therapy and medication including Lexapro and Seroquel. (Tr. 170.) Dr. Zamora
assessed plaintiff’s Global Assessment of Functioning (GAF) at 41-50,2 concluded that
plaintiff’s prognosis was poor, and determined that he was unable to handle funds. Id.
On March 23, 2006, Dr. Alberto Rodríguez-Robles, a consulting psychiatrist, evaluated
plaintiff and diagnosed recurrent, severe major depressive disorder without psychotic features.

2

GAF “is a subjective determination based on a scale of 100 to 1 of ‘the clinician’s judgment of the individual’s
overall level of functioning.’” American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders
32 (4th ed. 2000) [hereinafter DSM–IV], quoted in Langley v. Barnhart, 373 F.3d 1116, 1122 n.3 (10th Cir. 2004).
It “considers psychological, social, and occupational functioning on a hypothetical continuum of mental healthillness.” DSM–IV at 34 (brackets omitted), quoted in Echandy-Caraballo v. Astrue, 2008 WL 910059 at *4 n.7
(D.R.I. Mar. 31, 2008). “A GAF score of 41-50 indicates ‘serious symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting) [or] any serious impairment in social, occupational, or school functioning
(e.g., no friends, unable to keep a job).’” Colón v. Barnhart, 424 F. Supp. 2d 805, 809 n.3 (E.D. Pa. 2006) (quoting
DSM–IV, at 34).

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(Tr. 188.) Dr. Rodriguez noted plaintiff was fully oriented, had adequate memory, and average
insight and judgment. (Tr. 187.) However, his attention and concentration were diminished, his
affect was constricted, and he had a depressed mood and psychomotor retardation.

Id.

Dr. Rodríguez concluded his prognosis was poor and he lacked the capacity to handle funds.
(Tr. 188.)
At the request of the Commissioner, on June 16, 2006, Jeannette Maldonado, Psy.D.,
reviewed the medical evidence and completed a Mental Residual Functional Capacity
Assessment and a Psychiatric Review Technique form. (Tr. 206-24.) She indicated that plaintiff
had moderate restriction in activities of daily living and could not perform complex tasks. (Tr.
209, 221.) However, plaintiff could complete simple tasks, sustain concentration for two-hour
periods, tolerate routine supervision, make work-related decisions, and interact with peers. (Tr.
209.)
In 2007, Dr. Zamora submitted a Psychiatric Medical Report dated November 20, 2007,
confirming his previous findings in 2005. He also completed a Mental Residual Functional
Capacity Assessment in which he indicated plaintiff was seriously limited, but not precluded
from, interacting appropriately with the general public and had an extreme restriction of daily
living activities, as well as extreme deficiencies in concentration and maintaining social
functioning. (Tr. 244-48.)
On January 16, 2008, Dr. Armando I. Caro, a consulting psychiatrist, performed an
evaluation and diagnosed depressive disorder and a moderate pain disorder associated to primary
medical condition. He calculated a GAF of 60.3 (Tr. 272.) He noted plaintiff had an irritable

3

A GAF between 51 and 60 “indicates the individual has ‘[m]oderate symptoms . . . or moderate difficulty in social,
occupational, or school functioning ….’” Pate-Fires v. Astrue, 564 F.3d 935, 938 (8th Cir. 2009) (quoting DSM–IV,
at 32).“A GAF of 61 to 70 reflects mild symptoms such as depressed mood, or some difficulty in social,

8

affect, impaired concentration and short-term memory. Id. Dr. Caro assessed a poor prognosis
and reduced capacity for social interaction, but concluded that claimant was able to handle funds.
(Tr. 272.)
Also at the request of the Commissioner, Dr. Luis Umpierre reviewed the medical
evidence and affirmed it documented only a moderate condition. (Tr. 283-84.) On November
18, 2008 plaintiff submitted treatment notes from Dr. Ana Lozada De Suárez in which she
diagnosed schizoaffective disorder and recommended maintaining the same medications, since
he had responded well and reported no undesirable side effects. (Tr. 290.)
IV.

LEGAL ANALYSIS
A.

Failure to Give Controlling Weight to Plaintiff’s Treating Sources

Plaintiff argues that the ALJ erred in disregarding the treating psychiatrist’s and treating
physician’s (Dr. Zamora and Dr. Asencio, respectively) medical findings and did not provide
adequate reasons for doing so. Docket No. 16, at 30. In a Social Security disability case, an ALJ
should generally give more weight to a treating physician’s opinions, because such doctors “are
likely to be the medical professionals most able to provide a detailed, longitudinal picture of
[claimant’s] medical impairment(s).” 20 C.F.R. § 404.1527(d)(2).

An ALJ, however, may

disregard them with a showing of good cause: “(1) that they are brief and conclusory, (2) not
supported by medically acceptable clinical laboratory diagnostic techniques, or (3) are otherwise
unsupported by the record.” Carrasco v. Comm’r of Soc. Sec., 528 F.Supp.2d 17, 25 (D.P.R.
2007). An ALJ should “‘always give good reasons’ for the weight [he] gives a treating source
opinion.”

Soto-Cedeño v. Astrue, 380 F. App’x 1, 3 (1st Cir. 2010) (quoting 20 C.F.R.

§ 404.1527(c)(2)).
occupational, or school functioning.” Lisi v. Astrue, Civ. No. 11-30163 (DPW), 2012 WL 1853589, at *5 (D. Mass.
May 18, 2012) (citing DSM–IV, at 32).

9

In this case, however, the ALJ extensively explained his reasons for disregarding or
giving less probative value to the treating physicians’ findings. The ALJ first pointed out the
absence of progress notes from Dr. Zamora’s treatment. (Tr. 19.) Dr. Zamora only provided two
psychiatric medical reports, a checklist of signs and symptoms with spaces for diagnosis,
description of treatment and prognosis, and spaces to mark mental ability to perform workrelated activities dated October 16, 2005, and a mental residual functional capacity assessment
form from December 5, 2007. (Tr. 19-20; see Tr. 155-70, 244-68.) The lack of progress notes
“deprived the [ALJ] from analyzing the pattern of said treatment and its effect on the claimant’s
daily living and capacity to perform work-related activities at different treatment interviews.”
(Tr. 20.)

Therefore, the analysis was limited to Dr. Zamora’s reports, the consultative

examinations and the analysis from the Disability Determination Program’s psychologists. Id.
The ALJ next examined Dr. Zamora’s psychiatric reports. Dr. Zamora determined that
plaintiff had recurring major depression with anxiety and polysubstance dependence in total
remission, with a GAF between 41 and 50. (Tr. 268; see also Tr. 20). However, Dr. Zamora did
not provide an explanation for the basis of this conclusion, nor did he indicate the findings on
which he based his GAF. Upon further examination, the ALJ noted that the text of the report
dated October 19, 2005, is exactly the same as the November 15, 2007 report and that the
information in the checklists suggested the reports were “ad verbatim copies of each other.” Id.;
(compare Tr. 264-68 with Tr. 259-63.)

Furthermore, the claimant’s signs and symptoms

remained the same over the entire period of time encompassing the four psychiatric medical
documents (two years), thus leading to the conclusion that the reports do not demonstrate a
process of independent analysis regarding the claimant’s status. (Tr. 20.) When comparing

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Dr. Zamora’s assessment with the consultant psychiatrists’ reports,4 the ALJ noted the latter
reports indicated that claimant was coherent, logical, and well-oriented. (Tr. 20, 187-88, 272.)
Although Dr. Caro and Dr. Rodríguez determined that plaintiff’s concentration was impaired or
diminished, plaintiff was able to complete at least one of the concentration-related tests. (Tr.
187, 272.) Moreover, the ALJ noted that said consulting psychiatrists did not conclude that
plaintiff’s concentration was “significantly impaired.” (Tr. 20.) Plaintiff had fair or adequate
judgment, adequate memory, and no suicidal ideas or delusions.

(Tr. 20, 187-88, 272.)

Accordingly, the ALJ’s determinations regarding Dr. Zamora’s findings are sufficiently
supported by the medical record.
The ALJ noted that Dr. Asencio described that plaintiff was limited in sitting or standing
for long periods of time. (Tr. 19, 232.) Dr. Asencio also stated that plaintiff was incapable of
standing or walking for more than two hours, handling objects for more than ten minutes, and
using his fingers for fine manipulation for more than thirty minutes in a workday. (Tr. 230-31.)
He could rarely lift less than ten pounds and never twist, stoop or climb stairs. (Tr. 231.) Based
on these determinations, Dr. Asencio concluded that plaintiff was limited to an extremely narrow
range of sedentary work and had been disabled since 2003. (Tr. 19, 231.)
A finding provided by the claimant’s treating physician that the claimant is “disabled”
does not mean that the Commissioner will determine that the claimant is “disabled” under the
meaning provided by the Social Security Act. 20 C.F.R. § 404.1527. This determination is
exclusively reserved for the Commissioner. Id. The weight given to a physician’s statement
depends on the extent to which it is supported by specific and complete clinical findings, and is

4

Claimant underwent consultative psychiatric evaluations by Dr. Alberto Rodríguez-Robles and Dr. Armando I.
Caro on March 13, 2006, and January 16, 2008, respectively. (Tr. 19.)

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consistent with other evidence as to the severity and probable duration of the impairment. 20
C.F.R. § 404.1526.
The ALJ first pointed out that Dr. Asencio’s reported clinical signs and laboratory
findings failed to reveal significant pathology. (Tr. 19.) The ALJ also noted that Dr. Asencio
did not provide any progress notes from plaintiff’s treatment. Id. Although Dr. Asencio’s
diagnosis regarding claimant’s disc protrusion, mild central stenosis at the L4-L5 level, and mild
disc bulge at the L5-S1 level is compatible with the findings from the remaining treating and
consultative sources,5 (Tr. 228), the latter failed to reveal persistent lumbar tenderness, spinal
deviations or significant limitations in the range of motion of the lumbosacral spine, (Tr. 19).
The physical examinations did not show significant or persistent sensory deficits, muscular
weakness, motor atrophy, or reflex abnormalities. (Tr. 19, 154.) Claimant’s motor strength was
excellent, ranging at a level of 5/5, except for the psoas, which ranged at a 4/5 level. (Tr. 172.)
For said reasons, the ALJ determined that Dr. Asencio’s conclusion of disability was
unsupported, since it was inconsistent with the findings from other treating and consultative
sources.
Considering the nature and frequency of the prescribed treatment, upon examining
Dr. Asencio’s report, the ALJ found it demonstrates that plaintiff has the physical residual
functional capacity to perform light work activity, contrary to Dr. Asencio’s indication that
claimant was restricted to an extremely narrow range of sedentary work.6 (Tr. 19.) Said
conclusion is consistent with the state agency internist’s residual functional capacity assessment.
5

This includes (1) Dr. Stoll’s medical records (Tr. 153-54.); (2) Dr. Méndez’s neurological consultative examination
(Tr. 171-80.); (3) Dr. María Guzman’s progress notes (Tr. 189-94.); (4) Dr. Caro’s psychiatric evaluation (Tr. 27177.)
6
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing
up to 10 pounds.” 20 C.F.R. § 404.1567(b). A job involving light work “requires a good deal of walking or
standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls.” Id. In
contrast, “[s]edentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying
articles like docket files, ledgers, and small tools.” 20 C.F.R. § 404.1567(a).

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(Tr. 199.) In sum, there is substantial evidence in the record supporting the ALJ’s determination
to not give controlling weight to Dr. Zamora’s and Dr. Asencio’s opinions.
B.

Failure to Apply the Correct Legal Standards in Framing the Hypothetical
posed to the Vocational Expert

Plaintiff next argues the hypothetical posed to the Vocational Expert did not accurately
reflect all his limitations. Docket No. 16, at 2. Plaintiff claims the hypothetical did not include
plaintiff’s mental impairments as described by his treating psychiatrist, Dr. Zamora, or the
physical limitations assessed by Dr. Asencio. Id at 15-16.
A vocational expert’s opinion stating that a Social Security claimant can perform certain
jobs qualifies as substantial evidence at the fifth step of the analysis. Espada–Rosado v. Comm’r
of Soc. Sec., 25 Fed.Appx. 5, 6 (1st Cir. 2001) (per curiam).

In order to be considered

substantial evidence, the opinion of the vocational expert must be in response to a hypothetical
that accurately describes the claimant's limitations. Arocho v. Sec’y of Health & Human Servs.,
670 F.2d 374, 375 (1st Cir. 1982). A proper hypothetical question is one that reasonably
incorporates the disabilities recognized by the ALJ. Bowling v. Shalala, 36 F.3d 431, 436
(5th Cir. 1994) (per curiam).
During the administrative hearing, the ALJ presented the following hypotheticals to the
vocational expert:
[C]onsider a person with the same work experience, age and academic
vocational profile as that of the claimant’s, also a person whose maximum
physical exertion capacity is light, whose maximum mental exertion is to perform
simple and repetitive tasks, who is not able to have any contact with the public
and who may have as maximum the occasional contact with coworkers and
supervisors.
…
[C]onsider a person with the same work experience, age, and vocational
academic profile as that of the claimant’s; in addition, a person whose physical
exertion capacity is sedentary, whose maximum mental capacity is simple,
repetitive tasks and who may not have any contact with the public and who may
have a maximum of occasional interaction with coworkers and supervisors.
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(Tr. 298-300 (emphasis added).) Based on these hypotheticals, the vocational expert opined that
plaintiff could not perform his past work but was able to perform jobs related to finishing line
assembly such as packing, assembling, and inspection. (Tr. 300.) In terms of the physical
demand, the vocational expert pointed out that there is flexibility for both job markets, light and
sedentary. Id.7
It is well within the ALJ’s authority to weigh the evidence, determine the credibility of
plaintiff's subjective complaints, and to use only credible evidence in posing a hypothetical
question to a vocational expert. Arocho, 670 F.2d at 375. Here, the ALJ concluded that the
medical evidence did support plaintiff’s allegation in terms of the medical impairments and the
symptoms alleged. (Tr. 23.) However, the ALJ did not find medical evidence suggesting the
disabling frequency and intensity claimed by plaintiff. Id. The nature of claimant’s medical
treatment, his response to said treatment, the lack of adverse side effects, and the absence of
persistently disabling musculoskeletal, endocrinological and mental pathology contradict
plaintiff’s statements concerning the intensity, persistence and limiting effects of his symptoms.
Id. Considering that the opinions offered by plaintiff’s treating physicians, Dr. Zamora and
Dr. Asencio, were not supported by their own medical findings, nor by the rest of the evidence
on the record,8 the ALJ gave them less probative value.9 Accordingly, the hypothetical presented

7

When cross-examined by plaintiff’s counsel, the vocational expert clarified that his opinion regarding the
availability of jobs on the sedentary level falls prior to January 2007, when plaintiff turned 50 years of age. (Tr. 30102.) However, this issue has not been brought to the attention of the Court, therefore no expression is necessary.
8
Among other findings, see for example: (1) Dr. Stoll’s diagnosis of mild to moderate central spinal stenosis
(Tr. 153-54.); (2) Dr. Méndez’s finding of minimal loss of the normal spine curvature and otherwise unremarkable
examination (Tr. 171-80.); (3) Dr. Guzman’s review of the laboratory reports and neurological examination, both
revealing normal findings (Tr. 189-94.); (4) Dr. Rivera’s indication that plaintiff could stand, walk, and sit for about
six hours in an eight-hour workday and occasionally climb, balance, stoop, kneel, crouch, and crawl (Tr. 200.);
(5) Dr. Ruiz’s confirmation of Dr. Rivera’s findings (Tr. 269-70.); (6) Dr. Aponte’s physical examination revealing
plaintiff had mild tenderness and slight range of motion restriction on the lumbar spine, but had full lower extremity
strength and showed no motor or sensory deficit, or limitations in hand function (Tr. 235, 37-41.); (7)

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to the vocational expert addressed those circumstances which the ALJ found credible and were
supported by medical evidence. Id.
V.

CONCLUSION
Based on the foregoing analysis, the Court concludes that the Commissioner’s decision

was based on substantial evidence. Therefore, the Commissioner’s decision is AFFIRMED.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 28th day of March, 2013.
s/Marcos E. López
U.S. Magistrate Judge

Dr. Rodríguez’s indication that plaintiff was fully oriented, had adequate memory, and average insight and judgment
(Tr. 187.); (8) Dr. Maldonado’s findings, which revealed that claimant had a moderate restriction in performing
activities of daily living, but could complete simple tasks, sustain concentration for two-hour periods, tolerate
routine supervision, make work-related decisions, and interact with peers (Tr. 209.); (9) Dr. Zamora’s indication that
plaintiff was not precluded from adequately interacting with the public (Tr. 244-48.); and (10) Dr. Caro’s opinion
that plaintiff had a moderate pain disorder (Tr. 272.).
9
Dr. Asencio and Dr. Zamora concluded that the claimant’s capacity to perform sustained work activity on a regular
basis is markedly restricted as a result of his impairments. (Tr. 23.)

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