Hidalgo-Rosa v. Commissioner of Social Security

Filing 19

OPINION AND ORDER. This case is REMANDED to the Commissioner for further findings and proceedings consistent with this opinion. Signed by Judge Salvador E. Casellas on 8/28/2014.(AVB)

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

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CARMEN HIDALGO-ROSA,
Plaintiff,
v.

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Civil No. 13-1373 (SEC)

CAROLYN W. COLVIN, COMMISSIONER
OF SOCIAL SECURITY,
Defendant.

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OPINION AND ORDER

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Carmen Hidalgo-Rosa (Hidalgo) brought this action under § 205(g) of the Social

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Security Act, 42 U.S.C. § 405(g), seeking review of the Commissioner of the Social Security

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Administration’s denial of her application for disability insurance benefits. Docket # 1. She then

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filed a memorandum supporting her request, Docket # 14, and the Commissioner opposed,

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Docket # 18. After reviewing the filings and the applicable law, the Commissioner’s decision

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denying disability benefits is vacated, and this case is REMANDED for further proceedings.

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Factual and Procedural Background

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On June 24, 2010, Hidalgo filed an application for disability insurance benefits alleging

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a disability onset date of August 1, 2008. Administrative Transcript (Tr.) 436-38. Hidalgo, who

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at that time was in her late thirties, claimed to be disabled from full-time employment because

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of depression, body pain caused by osteoarthritis, sickle cell disease, ulcers, and epigastric pain.

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The application for disability benefits was denied initially and again upon reconsideration. Tr.

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334-37, 362-63. She then sought a hearing before an administrative law judge (ALJ).

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Duly represented by counsel, Hidalgo appeared at the hearing, which was held on May

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1, 2012, and testified that she had to stop working because of sharp and pervasive “joint pain

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and a severe stomach problem.” Tr. 31. She explained that in 2007 she was “fired” from her last
job as a sewing machine operator “due to absences — absences due to medical reasons,” Tr.

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33, highlighting that “[t]he condition of . . . [her] hands,” Tr. 34, contributed to her poor
performance. When asked by the ALJ about whether she had had a “work-related injury” that
caused these problems, Hidalgo riposted that she could not reckon how she “acquired all of
these conditions,” Tr. 37, but speculated that they could be related to her former job at “TJ
Maxx,” which required her to “lift a lot of weight and everything . . . [and she] had to use a
machine all the time with . . . [her] hands.” Tr. 38. She also testified that she could no longer
“do any of the household chores,” Tr. 32; that she does not even drive, Tr. 36; and that her pain
medication provides only “little relief.” Tr. 32.
The ALJ’s decision concluded, at step four of the sequential evaluation process, that
Hidalgo was not disabled. Tr. 21. In reaching that decision, the ALJ considered Hidalgo’s age,
her 9th grade education, and residual functional capacity (RFC). Tr. 18- 21. (The RFC “is the
most . . . [Hidalgo] can still do despite . . . [her] limitations.” 20 C.F.R. § 404.1545(a).) The ALJ
also considered Hidalgo’s medical records, including those from her treating doctors: Michael
Babilonia (rheumatologist), and Jorge Negrón Baez (physician); and he reviewed Hidalgo’s
medical records from the consulting sources, to wit: Dr. Félix Rivera (gastroenterologist), and
Hidalgo’s progress notes at the Administración de Servicios de Salud Mental y Contra la
Adicción (ASSMCA), where she received psychiatric treatment. At the hearing, the ALJ
summoned Dr. German Malaret, “an internist and impartial medical expert,” Tr. 19, whose
opinion was afforded “great weight.” Id. The ALJ also heard testimony from a vocational expert
(VE), who testified that Hidalgo could perform past relevant work as a data entry clerk, sewing
machine operator, and receptionist. Tr. 60.
The following excerpts from the ALJ’s decision illustrate his methodology and findings:
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The claimant last met the insured status requirements of the
Social Security Act through December 31, 2011.

2.

The claimant did not engage in substantial gainful activity
during the period from her alleged onset date of August 1, 2008
through her date last insured of December 31, 2011.

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CIVIL NO. 13-1373 (SEC)

3.

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Through the date last insured, the claimant did not have an
impairment or combination of impairments that met or medically
equaled the severity of the listed impairments . . . .

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After careful consideration of the entire record, I find that,
through the date last insured, the claimant had the . . . [RFC] to
perform light work . . . except for the following limitations: lift
and carry 20 pounds occasionally and 10 pounds frequently, sit
for 6 hours in a 8 hour day, stand and walk for 6 hours in a 8
hour day, never climb ladders or scaffolds, occasionally kneel,
crouch, and crawl, and is limited to occasionally reaching above
her head with both arms.

6.

Through the date last insured, the claimant was capable of
performing past relevant work as a data entry clerk, sewing
machine operator, and receptionist.

7.

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The claimant was not under a disability . . . at any time from
August 1, 2008, the alleged onset date, through December 31,
2011, the last insured.

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Through the date last insured, the claimant had the following
severe impairments: osteoarthritis, sickle cell disease, and
gastrointestinal disorders.

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Tr. 15-17 (internal citations and typeface omitted).

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Dissatisfied with that determination, Hidalgo appealed, but the Appeals Council denied her

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request for review, Tr. 1-3, rendering the ALJ’s decision the final decision of the Commissioner

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and, therefore, subject to judicial review. This appeal ensued. Docket # 1.

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In this venue, Hidalgo musters three developed assignments of error.1 She argues, first,

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that the hypotheticals posed to the VE never reflected all of her limitations, because the ALJ’s

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RFC determination was inconsistent with the medical evidence—particularly with Dr. Malaret’s

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Insofar as Hidalgo impugns the ALJ’s determination that her mental impairments were not
severe, see Docket # 14, pp. 4-5, that undeveloped argument—which contains not a single legal
authority—was presented in a wholly perfunctory fashion. So it is waived. See United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990) (reiterating that “issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed waived”); see also FigueroaPerea v. Comm’r of Soc. Sec., 78 F. App’x 134, 135 (1st Cir. 2003) (per curiam) (applying waiver in
the social-security context). In all events, and for substantially the same reasons advanced by the
Commissioner, see Docket # 18, pp. 6-7, the ALJ’s decision on this front is supported by substantial
evidence.

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CIVIL NO. 13-1373 (SEC)

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opinion (the testifying medical advisor whose opinion was afforded great weight by the ALJ)
that rendered Hidalgo unable to perform repetitive hand movements. Docket # 14, p. 5. Hidalgo
contends, second, that the ALJ’s step-four findings violated the requirements of Social Security
Ruling 82-62. Id., pp. 6-7. And she posits, third, that the prevalence of inaudible parts in the
evidentiary hearing transcript bars a meaningful appellate review of the ALJ’s decision. Id., p.
8.
The Commissioner opposed the first two assignments of error, but mounted no defense
of the third. See generally Docket # 18. The Court addresses these matters sequentially.
Standard of Review
The scope of appellate review is “limited to determining whether the ALJ deployed the
proper legal standards and found facts upon the proper quantum of evidence.” Nguyen v. Chater,
172 F.3d 31, 35 (1st Cir.1999) (per curiam). To that end, § 405(g) provides that the
Commissioner’s factual findings, “if supported by substantial evidence, shall be conclusive,” 42
U.S.C. § 405(g), and in Richardson v. Perales, 402 U.S. 389 (1971), the Supreme Court defined
“substantial evidence” as “more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Id. at 401; Irlanda Ortiz v.
Secretary of H.H.S., 955 F.2d 765, 769 (1st Cir. 1991) (per curiam). So, even if the record could
justify a different conclusion, the Commissioner’s findings must be affirmed if supported by
substantial evidence. Evangelista v. Secretary of H.H.S., 826 F.2d 136, 144 (1st Cir. 1987). This
is not to say, of course, that this deferential standard of judicial review amounts to rubber
stamping the Commissioner’s decision. For the ALJ’s factual findings are not conclusive “when
derived by ignoring evidence, misapplying the law, or judging matters entrusted to experts.”
Nguyen, 172 F.3d at 35 (citations omitted). But absent a legal or factual error in the evaluation
of a claim, the Commissioner’s denial of disability benefits stands. Seavey v. Barnhart, 276 F.3d
1, 15 (1st Cir. 2001).

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Applicable Law and Analysis
I. Step Four
At step four, a claimant will be found not disabled if she retains the RFC to perform “the
actual functional demands and job duties of a particular past relevant job.” Santiago v. Secretary
of Health and Human Services, 944 F.2d 1, 5 (1st Cir.1991) (per curiam) (internal quotation
marks and citations omitted). A claimant is deemed capable of performing her past relevant work
if her RFC allows her to do the job “[e]ither as the claimant actually performed it or as generally
performed in the national economy.” 20 C.F.R. § 404.1560(b)(2); see Gray v. Heckler, 760 F.2d
369, 372 (1st Cir.1985) (per curiam). Of particular relevance to this case, Social Security Ruling
82-62 provides that step four in turn involves three phases: (1) “[a] finding of fact as to the
individual’s RFC”; (2) “[a] finding of fact as to the physical and mental demands of the past
job/occupation”; and (3) “[a] finding of fact that the individual’s RFC would permit a return to
his or her past job.” 1982 WL 31386, *4 (S.S.A 1982); accord Burnett v. Comm’r of Soc. Sec.
Admin., 220 F.3d 112, 120 (3d Cir. 2000). Hidalgo, as the claimant, bears the initial burden to
“lay the foundation as to what activities her former work entailed, [and to] . . . point out (unless
obvious)—so as to put in issue—how her functional incapacity renders her unable to perform
her former usual work.” Roberts v. Barnhart, 67 F. App’x 621, 623 (1st Cir. 2003) (per curiam)
(alterations and ellipsis in original) (quoting Santiago, 944 F.2d at 5). But once a claimant meets
this initial burden, as Hidalgo did here,2 “the ALJ must compare the physical and mental

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It suffices to say that Hidalgo testified at the hearing that, as a result of her conditions, she
could not perform her prior job as a sewing machine operator, explaining that the problems she had with
her hands rendered her unable to perform this job. Tr. 31-37; see also Tr. 111-115 (same about her other
jobs). And the diagnosis of osteoarthritis, “which is an injury of the joints,” Huffman v. Union Pac.
R.R., 675 F.3d 412, 433 (5th Cir. 2012), cert. denied, 133 S. Ct. 840 (2013), provides a medical basis
for her complaints, as one of the symptoms of this condition is joint pain. So contrary to the
Commissioner’s unpersuasive contention, see Docket # 18, p. 11, Hidalgo shouldered this initial burden
of showing how her “functional incapacity renders her unable to perform her former usual work.”
Santiago, 944 F.2d at 5; cf. Roberts, 67 F. App’x at 622.

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CIVIL NO. 13-1373 (SEC)
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demands of that past work with current functional capability.” Manso-Pizarro v. Sec’y of Health

& Human Servs., 76 F.3d 15, 17 (1st Cir. 1996) (per curiam) (citations omitted).
A. The RFC Determination
The RFC, being the threshold determination in the first phase of step four, see 20 C.F.R.
§§ 404.1520(f), 404.1560(b), the analysis starts here. Of course, the ALJ is responsible for
deciding a claimant’s RFC. § 404.1546(c). But in reaching that determination, the ALJ must
consider all relevant medical evidence, including any statements about what the claimant can still
do provided by any medical sources, § 404.1545(a)(3), and “[s]ince bare medical findings are
unintelligible to a lay person in terms of residual functional capacity, the ALJ is not qualified to
assess claimant’s residual functional capacity based on the bare medical record.” Berrios Lopez
v. Sec’y of Health & Human Servs., 951 F.2d 427, 430 (1st Cir. 1991) (per curiam). As detailed
above, the ALJ determined that Hidalgo had the RFC to perform
light work . . . except for the following limitations: lift and carry 20 pounds
occasionally and 10 pounds frequently, sit for 6 hours in a 8 hour day, stand and
walk for 6 hours in a 8 hour day, never climb ladders or scaffolds, occasionally
kneel, crouch, and crawl, and is limited to occasionally reaching above her head
with both arms.
Tr. 17. (“Light work involves lifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds . . . .” § 404.1567(b).) The ALJ then found that her
past relevant work as “data entry clerk, sewing machine operator, and receptionist” consisted of
“light” work. Tr. 21. Ultimately, the ALJ concluded, Hidalgo had the RFC to perform these three
jobs. Id.
As said, Hidalgo contends that this RFC is unsupported by substantial evidence, because
the ALJ impermissibly rejected Dr. Malaret’s opinion about Hidalgo’s limitations on repetitive
hand movements. Docket # 14, p. 7. The Commissioner demurs, arguing that such a limitation
“should [not] have been included in the RFC . . . because it was contradicted by medical
evidence.” Docket # 18, p. 10. Although Dr. Malaret’s opinion “was afforded great weight,” the

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Commissioner’s thesis runs, “the ALJ determined that Dr. Babilonia’s . . . opinion was entitled

to controlling weight and it correctly assessed that Plaintiff had no limitations in hand
movements.” Id., pp 10-11.
The Court agrees with Hidalgo that substantial evidence does not support the ALJ’s
implicit determination that Hidalgo’s hands remained intact. Although the Commissioner is
right, see Docket #18, p. 11, that a “conflict between the personal physician and the medical
advisor was for the . . . [ALJ] to resolve,” Tremblay v. Sec’y of Health & Human Servs., 676
F.2d 11, 12 (1st Cir. 1982) (per curiam) (citation omitted), the problem here is that the ALJ’s
decision simply ignored Dr. Malaret’s testimony about Hidalgo’s apparent hand limitations. But
the ALJ had to “evaluate the record fairly,” Golembiewski v. Barnhart, 322 F.3d 912, 917 (7th
Cir. 2003) (per curiam), so he could “not ignore an entire line of evidence that is contrary to the
ruling . . . .” Id. (citation omitted); accord, e.g., Alcantara v. Astrue, 257 F. App’x 333, 334 (1st
Cir. 2007) (per curiam) (holding that ALJ “could not simply ignore Serabian’s opinion,” but,
rather, was required to weigh all of the evidence” (citing 20 C.F.R. §§ 416.920(a)(3), 416.920a
(a) & (c); 416.927(c))); Brunel v. Comm’r, Soc. Sec. Admin., 248 F.3d 1126, 2000 WL
1815946, *2 (1st Cir. 2000) (per curiam) (unpublished) (“The ALJ’s failure to explain why he
discredited this evidence was a serious error.”). It bears emphasis that the ALJ opted to summon
Dr. Malaret to testify at the evidentiary hearing; and Dr. Malaret interpreted the raw medical data
contained in the record—most notably Babilonia’s medical records.3 And yet, barring Hidalgo’s
limitations on repetitive hand movements and joint pain, the other limitations mentioned by Dr.

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Compare Rodríguez v. Sec’y of Health & Human Servs., 893 F.2d 401, 403 (1st Cir. 1989)
(per curiam) (approving use of “testimony of the non-examining medical advisor . . . not to assess
claimant’s medical condition, but to assess claimant’s residual functional capacity based on evaluations
of claimant’s medical condition submitted by examining physicians”); with Tr. 19 (“Dr. Malaret is a
specialist who had the opportunity to examine all the record evidence and his opinion is consistent with
the substantial evidence contained in the medical record.”); and Tr. 44 (construing and discussing Dr.
Babilonia’s medical findings).

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Malaret were incorporated into the ALJ’s RFC determination, compare Tr. 17; with Tr. 41-42;

and this might explain why the ALJ afforded only “great weight” to Dr. Malaret’s opinion. Cf.
Torres v. Sec’y of Health & Human Servs., 870 F.2d 742, 744 (1st Cir. 1989) (per curiam)
(noting that ALJ may afford greater weight to the opinion of a nonexamining expert who, like
Dr. Malaret, testified at hearing and was cross-examined).
The Commissioner resists this conclusion, positing that Dr. Malaret’s opinion on this
point “should [not] have been included in the RFC . . . because it was contradicted by medical
evidence.” Docket # 18, p. 10. But that portion of the Commissioner’s brief violates the Chenery
doctrine, see SEC v. Chenery Corp., 318 U.S. 80, 63 (1943); Hughes v. Astrue, 705 F.3d 276,
279 (7th Cir. 2013) (Posner, J.), because the ALJ neither stated nor implied that rationale in his
decision; quite simply, he identified not a single reason to discard Dr. Malaret’s conflicting
opinion on that point, although the ALJ made clear that Dr. Malaret’s “opinion is consistent with
the substantial evidence contained in the medical record.” Tr. 19.
In all events, the Commissioner’s asseveration is, for the reasons just given, dubious. And
the ALJ’s almost single-minded reliance on “objective medical evidence,” such as “X-rays,” Tr.
19, buttresses this skepticism. This is because “radiography is ordinarily of less value than
clinical findings in the diagnosis of osteoarthritis,” Venable v. Astrue, No. 07-0061, 2008 WL
2950993, *6 (W.D. Va.), R&R adopted, 2008 WL 3887647 (W.D. Va. Aug. 21, 2008), not least
because “[d]iagnosis [of osteoarthritis] is usually based on symptoms and signs . . . .” Carbone
v. Sullivan, 960 F.2d 143 (1st Cir. 1992) (first alteration in original) (quoting Merck Manual
1260 (15th ed. 1987)); see also Johnson v. Astrue, 597 F.3d 409, 413 (1st Cir. 2009) (per curiam)
(holding, in a similar context (fibromyalgia), that subjective pain testimony cannot be rejected
on the sole ground that it is not fully corroborated by objective medical evidence); Tompkins v.
Colvin, No. 13-73, 2014 WL 294474, *5 (D.Me. Jan. 27, 2014) (“unlike in Johnson, the
administrative law judge’s reasons for rejecting the [treating physicians’] RFC opinion were

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premised on specific findings rather than a misunderstanding of the nature of fibromyalgia.”).

And it appears from Dr. Malaret’s testimony, see Tr. 43, that he understood the nature of
osteoarthritis. (As discussed below, that portion of his testimony is, alas, admittedly unclear,
given the multiple inaudible portions.)
Be that as it may, other probative evidence in the record, Hidalgo persuasively maintains,
casts serious doubt on the correctness of the ALJ’s unexplained refusal to credit his medical
advisor’s supportable interpretation—which entailed, of course, reviewing some of Dr.
Babilonia’s unintelligible records, see Tr. 621—of Hidalgo’s medical records. Cf. Freeman v.
Barnhart, 274 F.3d 606, 609 (1st Cir. 2001) (holding that “the ALJ’s decision was in error
because it was not supported by substantial evidence—specifically, because the vocational
expert’s testimony appears to contradict pertinent findings by the ALJ”). For one thing, even Dr.
Babilonia, the ALJ acknowledged, diagnosed Hidalgo with osteoarthritis and “joints pain,” Tr.
18, for which he presumably prescribed “Oxycodone.” Tr. 484; Dr. Babilonia also opined that
Hidalgo’s “[m]usculoskeletal” was not “normal.” Tr. 621. And a bone scan “show[ed] mild
increased radiotracer uptake in several interphalangeal and carpal joints of both hands . . .
suggestive of inflammatory process of joints,” Tr. 616, which is telling, because osteoarthritis
is “a synonym for degenerative arthritis.” Lockamy v. Shinseki, No. 09-3227, 2010 WL
5141223, * 1 n. 1 (Vet. App. Dec. 13, 2010) (unpublished mem.) (emphasis added) (quoting
Steadman’s Medical Dictionary 149 (27th ed. 2000)). For another, Dr. Negrón, Hidalgo’s
primary physician—whose opinion was admittedly afforded “little weight” by the
ALJ—diagnosed Hidalgo with “[s]evere osteoarthritis,” Tr. 225, noting that she could rarely lift
less than 10 pounds, Tr. 714; he further opined that Hidalgo could use her hands for less than
10 minutes. Tr. 715. And the record, to be sure, is rife with other conflicting (albeit subjective)
evidence. E.g., Tr. 41 (Dr. Malaret’s testimony that Hidalgo “has pain in her muscles and in
multiple joints”);Tr. 481 (Hidalgo’s statement that she cannot “perform repetitive movements);
Tr. 493 (Hidalgo’s statement about her being unable to “squeeze or grab things”). The point, in

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short, is that the foregoing shows that the ALJ’s unexplained omission of that (conflicting and

probative) part of Dr. Malaret’s opinion deprived Hidalgo of a meaningful appellate review. See,
e.g., Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir.1999) (“When a conflict in evidence exists,
the ALJ may choose whom to credit but ‘cannot reject evidence for no reason or the wrong
reason.’ The ALJ must consider all the evidence and give some reason for discounting the
evidence she rejects.” (internal citation omitted)); Clifton v. Chater, 79 F.3d 1007, 1010 (10th
Cir.1996) (holding that “[t]he record must demonstrate that the ALJ . . . “discuss[ed] probative
evidence he reject[ed]”); Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir.1987) (noting that ALJ
must state with particularity the weight given different medical opinions and the reasons for
doing so);1982 WL 31386, *4 (disability decision must give a “clear picture of the case,” follow
an “orderly pattern,” and show how the “specific evidence leads to a conclusion”). Indeed, one
would expect that, having afforded “great weight” to that opinion, and given the conflicting
evidence just discussed, the ALJ would have at least attempted to justify his jettisoning of Dr.
Malaret’s opinion that Hidalgo’s hands were plainly not intact.
If more were needed, judicial review of the ALJ’s decision, Hidalgo correctly maintains
(and the Commissioner does not dispute), has been hampered by the inordinate amount of
inaudible testimony in the hearing transcript. Suffice it to say that the 16-page transcript of Dr.
Malaret’s testimony—including portions of Dr. Malaret’s crucial testimony about Hidalgo’s
physical limitations, see Tr. 41-43—contains at least 52 inaudible portions. Tr. 39-55. Similar
flaws afflict the transcript of the VE, see Tr. 56-72, whose testimony appears to have been
entirely relied upon by the ALJ in concluding that Hidalgo could return to her past work. This
is beyond the pale. And a remand is warranted, because the missing portions of the transcript,
coupled with the shortcomings elucidated above, prevent a meaningful judicial review of the
ALJ’s decision. See generally, e.g., Vega-Velez v. Comm’r of Soc. Sec., No. 09-1815, 2009 WL
5947263, *1 (D.P.R. Dec. 28, 2009);Cooper v. Astrue, No. 10-871, 2011 WL 2748642, *3 (W.D.

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Okla.), R&R adopted, 2011 WL 2728772 (W.D. Okla. July 13, 2011); Koning v. Bowen, 675

F. Supp. 452, 457 (N.D. Ind. 1987); Marshall v. Schweiker, 688 F.2d 55, 56 (8th Cir. 1982) (per
curiam).
Substantial evidence, then, supports neither the ALJ’s unexplained jettisoning of Dr.
Malaret’s opinion about Hidalgo’s apparent hand limitations, nor the ALJ’s implicit
determination that Hidalgo’s hands remained intact. And although substantial evidence may
support an eventual conclusion that, notwithstanding Dr. Malaret’s opinion on Hidalgo’s hand
limitations, Hidalgo is nonetheless not disabled, this court is “not in a position to draw factual
conclusions on behalf of the ALJ.” Drapeau v. Massanari, 255 F.3d 1211, 1214 (10th Cir. 2001)
(citation and internal quotation marks omitted); accord Sarchet v. Chater, 78 F.3d 305, 307 (7th
Cir.1996) (“we cannot uphold a decision by an administrative agency . . . if, while there is
enough evidence in the record to support the decision, the reasons given by the trier of fact do
not build an accurate and logical bridge between the evidence and the result.”). The need for
“sufficient reasoning” retains considerable bite where, as here, “the ALJ has concluded that
plaintiff has the capacity to perform work in an occupation that requires extensive use of one’s
hands.” Spicer v. Barnhart, 64 F. App’x 173, 178 (10th Cir. 2003) (per curiam).4
The upshot is that the ALJ’s comparison of the demands of Hidalgo’s past work with her
physical functional capacity, “being based on an invalid RFC assessment, is not supported by
substantial evidence.” Roberts, 67 F. App’x at 623. Remand for further factual development is
therefore necessary. Cf. Ward v. Comm’r of Soc. Sec., 211 F.3d 652, 656 (1st Cir. 2000)
(holding that “remand is not essential if it will amount to no more than an empty exercise”).
4

See Chaney v. Colvin, No. 12-1233, 2013 WL 6050153, *5 (W.D. Okla. Nov. 15, 2013) (noting
that “the work of a data entry clerk requires frequent handling”); Siqueiros v. Colvin, No. 12-1790,
2013 WL 6732885, *2 (C.D. Cal. Dec. 19, 2013) (“the DOT provides that the sewing machine operator
job requires frequent handling[.]” (citation omitted)); DICOT 237.367-038, 1991 WL 672192,*2
(providing that the “receptionist” job requires frequent handling and reaching); see also Young-Moore
v. Colvin, No. 12-195, 2014 WL 939457, *18 (N.D. Ind. Mar. 11, 2014) (finding “data entry clerk job
requires constant fingering” (citation omitted)).

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B. The Past Relevant Work Determination
Because the Court remands for further development of the record, it need not reach
Hidalgo’s remaining appellate contention that the ALJ improperly determined the “physical and
mental demands of jobs a claimant has performed in the past . . . .” S.S.R. 82-62, 1982 WL
31386, *4; accord Manso-Pizarro, 76 F.3d at 19 n. 6; Watkins v. Barnhart, 350 F.3d 1297, 1299
(10th Cir. 2003) (“We will not reach the remaining issues raised by appellant because they may
be affected by the ALJ’s treatment of this case on remand.”). Withal, the Court adds a coda.
Here, it is far from clear whether, contrary to the ALJ’s determination, Hidalgo’s
RFC—particularly her limitations on “occasionally reaching above her head with both arms,”
Tr. 17 (emphasis added)—would preclude performance of her past relevant work. See Lamb v.
Colvin, No. 13-0137, 2014 WL 3894919, *7 (E.D. Cal. Aug. 4, 2014) (finding that the
“secretary” job requires “either frequent or occasional omni-directional reaching according to
the DOT”); Carroll v. Colvin, No. 12-1181, 2013 WL 1935250, *1 (C.D. Cal. May 8, 2013)
(noting that the Commissioner “conced[ed] that the . . . sewing machine operator [job] would
require frequent reaching[,] and that the VE was mistaken when testifying that plaintiff could
engage in these work activities”); DICOT 203.582-054, 1991 WL 671700 (providing that the
“data entry clerk” job requires frequent handling and reaching). Worse, neither the VE’s
testimony nor the ALJ’s decision discussed how Hidalgo actually performed her past relevant
work. In this context, this court has criticized the practice of relying entirely on a VE’s factual
findings to determine the physical and mental demands of a claimant’s past work and whether
her RFC would permit a return to that work. Alicea-Roman v. Comm’r of Soc. Sec., No.
10-1707, 2011 WL 5325659, *6 (D.P.R. Nov. 3, 2011) (Casellas, J.) (citing Winfrey v. Chater,
92 F.3d 1017, 1025 (10th Cir.1996)); accord Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir.
2001) (“Because the ALJ made very few findings and relied largely on the conclusions of the
vocational expert, it is difficult for this Court to review his decision.”). It thus remains an open

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question whether the ALJ appropriately compared the physical and mental demands of Hidalgo’s

past work with her RFC, as specifically required by Social Security 82-62. See, e.g., RamosAlbelo v. Secretary of Health & Human Services, No. 92-1650, 1992 WL 340884, *4 (1st Cir.
Nov. 23, 1992) (per curiam) (unpublished) (remarking that ALJ “has a responsibility to make
‘every effort’ to secure evidence and develop the record regarding a claimant’s ability to do past
work” (citation omitted); Corcoran v. Astrue, No. 09-3230, 2011 WL 2023292, *8 (D. Mass.
Apr. 25, 2011); Ruiz-González v. Astrue, No. 09-1841, 2011 WL 381734, *10 (D.P.R. Feb. 5,
2011); Mercado v. Comm’r of Soc. Sec., 767 F. Supp. 2d 278, 286 (D.P.R. 2010); Curtis v.
Sullivan, 808 F. Supp. 917, 923 (D.N.H. 1992); May v. Bowen, 663 F. Supp. 388, 394 (D. Me.
1987) (Cyr, C.J.)
Conclusion
For the reasons stated, the Court REMANDS this case to the Commissioner for further
findings and proceedings consistent with this opinion. On remand, the Commissioner must
recalculate Hidalgo’s RFC based on the record as a whole, but with special emphasis on
reconciling the contradictory medical evidence about her alleged manipulative limitations and
their impact (if any) on her occupational base.
IT IS SO ORDERED
In San Juan, Puerto Rico, this 28th day of August, 2014.
s/ Salvador E. Casellas
SALVADOR E. CASELLAS
U.S. Senior District Judge