Almeyda v. Commissioner of Social Security
Filing
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OPINION AND ORDER affirming the decision of the Commissioner of Social Security. Signed by US Magistrate Judge Marcos E. Lopez on 8/9/19. (YI)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
FERNANDO ALMEYDA,
Plaintiff,
v.
CIVIL NO.: 17-1773 (MEL)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
OPINION AND ORDER
Pending before the court is Fernando Almeyda’s (“Plaintiff”) appeal from the decision of
the Commissioner of Social Security (“the Commissioner”) denying his application for disability
benefits. Plaintiff—who applied for disability alleging disorders of the back, chronic sinusitis,
status post rhinitis, sleep apnea, major depression, anxiety disorders, and asymptomatic human
immunodeficiency virus (HIV)—challenges the administrative law judge’s decision with regard
to steps four and five of the sequential process.
I.
PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff filed an application for Social Security benefits alleging that on March 15, 2016
(“the onset date”), he became unable to work due to disability. Tr. 395. 1 Plaintiff will meet the
insured status requirements of the Social Security Act through December 31, 2020. Tr. 26. Prior
to becoming unable to work, Plaintiff was a veterans claim representative. Tr. 29. The claim was
denied on June 25, 2016, and upon reconsideration on September 1, 2016. Tr. 257, 262.
Thereafter, Plaintiff requested a hearing, which was held on January 18, 2017 before
Administrative Law Judge Maria Teresa Mandry (hereafter “the ALJ”). Tr. 40. On February 9,
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“Tr.” refers to the transcript of the record of proceedings.
2017, the ALJ issued a written decision finding that Plaintiff was “not under a disability, as defined
in the Social Security Act, from March 15, 2016, through the date of this decision.” Tr. 21–35.
Thereafter, Plaintiff requested review of the ALJ’s decision. Tr. 17. Plaintiff’s request for review
was denied by the Appeals Council, rendering the ALJ’s decision the final decision of the
Commissioner of Social Security, subject to judicial review. Tr. 1–7. Plaintiff filed a complaint
on June 8, 2017. ECF No. 1. Both parties have filed supporting memoranda. ECF Nos. 19; 20.
II.
LEGAL STANDARD
A. Standard of Review
Once the Commissioner has rendered a final determination on an application for disability
benefits, a district court “shall have 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 her 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.” Ginsburg
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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 findings of fact 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); 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 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, a plaintiff bears the burden of proving that
he 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 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).
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Claims for disability benefits are evaluated according to 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.
Sys. Corp., 526 U.S. 795, 804 (1999); Yuckert, 482 U.S. at 140–42. If it is determined that the
plaintiff is not disabled at any step in the evaluation process, then the analysis will not proceed to
the next step. 20 C.F.R. § 404.1520(a)(4). At step one, it is determined whether the plaintiff is
working and thus engaged in “substantial gainful activity.” 20 C.F.R. § 404.1520(a)(4)(i). If he
is, then disability benefits are denied. 20 C.F.R. § 404.1520(b). Step two requires the ALJ to
determine whether the plaintiff 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 plaintiff’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 plaintiff is conclusively found to be disabled. 20
C.F.R. § 404.1520(d). If not, then the ALJ at step four assesses whether the plaintiff’s impairment
or impairments prevent him from doing the type of work he has done in the past. 20 C.F.R. §
404.1520(a)(4)(iv). In assessing an individual’s impairments, the ALJ considers all of the relevant
evidence in the case record to determine the most the individual can do in a work setting despite
the limitations imposed by his mental and physical impairments. 20 C.F.R. § 404.1545(a)(1). This
finding is known as the individual’s residual functional capacity (“RFC”). Id. If the ALJ
concludes that the plaintiff’s impairment or impairments do prevent him from performing his past
relevant work, the analysis proceeds to step five. At this final step, the ALJ evaluates whether the
plaintiff’s RFC, combined with his age, education, and work experience, allows him to perform
any other work that is available in the national economy. 20 C.F.R. § 404.1520(a)(4)(v). If the
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ALJ determines that there is work in the national economy that the plaintiff can perform, then
disability benefits are denied. 20 C.F.R. § 404.1520(g).
III.
THE ALJ’S DETERMINATION
In the case at hand, the ALJ found in step one of the sequential process that Plaintiff had
not engaged in substantial gainful activity since the alleged onset date of March 15, 2016. Tr. 26.
At step two, the inquiry as to severe impairments resulted in the ALJ determining that Plaintiff had
the following severe impairments: disorders of the back, chronic sinusitis, status post rhinitis, sleep
apnea, major depression, and anxiety disorders. Id. (citations omitted). At step three, the ALJ
found that Plaintiff did not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1. Tr. 27. Next, the ALJ determined that Plaintiff had
the residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) except that he can carry, lift, push and pull 20 pounds occasionally and
frequently 10. He can sit, stand or walk for six hours each in an eight-hour day.
He can frequently climb ramps and stairs, stoop, and balance and occasionally
kneel, crouch, and crawl. He can never climb ladders or scaffolds. He has no
manipulative limitations. He should avoid unprotected heights, moving machinery
(cutting parts), and is able to drive occasionally. He must avoid extremes of
temperature, toxic vapors or other pulmonary irritants. Mentally, he is limited to
recall, understand and carry out simple and short instructions, and adapt to simple
changes. He can concentrate for extended periods at simple tasks and can interact
frequently with supervisors, but occasionally with coworkers and the public. He is
able to make simple work decisions.
Tr. 29. At step four, the ALJ determined that through the date last insured, Plaintiff could not
perform any past relevant work. Tr. 33–34. At step five, the ALJ presented Plaintiff’s RFC
limitations, as well as his age, education, and work experience, to a vocational expert. The
vocational expert testified, taking all of these factors into account, that an individual would be able
to perform the requirements of the following representative occupations: office helper, mail sorter,
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and shipping and receiving weigher. Tr. 35. Because there is work in the national economy that
Plaintiff can perform, the ALJ concluded that he is not disabled. Id.
IV.
ANALYSIS
Plaintiff challenges the ALJ’s decision with regard to steps four and five of the sequential
process. First, Plaintiff argues that the ALJ dismissed or minimized his pain in relation to
sacroiliitis. ECF. No. 19, at 11. Second, Plaintiff argues that the ALJ did not fully develop the
record regarding his pain. Id. at 14. Third, Plaintiff argues that the ALJ erred by not recognizing
that he is limited to sedentary work and consequently not applying Rule 201.06 of the Medical
Vocational Guidelines. Id. at 17–18.
1. Plaintiff’s claim that the ALJ erred in minimizing his pain in relation to
sacroiliitis.
Plaintiff contends that the ALJ improperly dismissed or minimized the pain and limitations
associated with sacroiliitis by accepting the testimony of Dr. Francisco Joglar, the medical expert.
Dr. Joglar stated that Plaintiff was receiving “the same conservative management that he ha[d]
been receiving.” ECF No. 19, at 11. Plaintiff argues that the ALJ should have considered that
Plaintiff was receiving “conservative treatment” not because his sacroiliitis was a minimal medical
condition, but because he had a “chronic immunologic condition” for which he could not receive
other treatments due to secondary effects. Tr. 1112–13. Plaintiff adds that sacroiliitis is a very
painful condition that limits his ability to walk and stand for too long, and that such limitations
were not presented to the vocational expert.
Plaintiff’s argument that the ALJ’s reliance on Dr. Joglar’s testimony was erroneous is
unpersuasive. The fact that Plaintiff was receiving “conservative treatment” was not the only
evidence that Dr. Joglar cited to in support of his opinion. The ALJ stated, and the record
demonstrates, that Dr. Joglar considered all medical evidence on record, including Plaintiff’s
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subjective complaints regarding sacroiliitis. Id. Indeed, Dr. Joglar specifically pointed to the
November 7, 2016 assessment of Dr. Josue G. Rivera Morales, the treating physician, in which he
noted a positive response from Plaintiff’s physical therapies and prescribed further therapies and
“TENS” training. Tr. 1112. Therefore, the ALJ’s reliance on Dr. Joglar’s testimony is supported
by substantial evidence.
Further, Plaintiff’s contention that the vocational expert should have considered his
inability to walk or stand for too long is unsubstantiated. To support his claim, Plaintiff twice cites
to information obtained through an online search. ECF. No. 19, at 12, n. 8, 14, n. 9. However, the
scope of this appeal is limited to information in the record. Plaintiff fails to point to any record
evidence suggesting that he is unable to walk or stand for the period of time stated in Dr. Joglar’s
RFC determination. Indeed, in his assessment, Dr. Rivera Morales did not describe any significant
impairment of Plaintiff’s ability to walk or stand. Tr. 1112–13. Dr. Rivera Morales gave a detailed
description of the specific precautions to be taken by Plaintiff: “avoid heavy lifting; avoid back
flexion during the mornings; avoid back flexion combined with rotation; exercise as tolerated.”
None of these precautions connotes an inability to walk, stand, or sit. Id. Therefore, the ALJ did
not abuse her discretion in her proposed hypothetical to the vocational expert. Vélez-Pantoja v.
Astrue, 786 F. Supp. 2d 464, 469 (D.P.R. 2010) (“It is well within the 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.”).
2. Plaintiff’s claim that the ALJ failed to fully develop the record.
Plaintiff contends that the ALJ had a duty to develop the record in relation to the alleged
sacroiliitis and its effect on his ability to work. However, Plaintiff fails to show how the ALJ did
not fulfill this duty. In her decision, the ALJ stated:
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After careful consideration of the evidence, I find that the claimant’s medically
determinable impairments could reasonably be expected to produce the above alleged
symptoms; however, the claimant’s statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely consistent with the medical evidence
and other evidence in the record for the reasons explained in this decision. Accordingly,
these statements have been found to affect the claimant’s ability to work only to the extent
they can be reasonably accepted as consistent with the objective medical and other
evidence.
Tr. 30. This indicates that the ALJ took note of Plaintiff’s different alleged impairments, including
those associated with sacroiliitis, but that her determination as to their intensity, persistence, and
effects would be limited to those consistent with the record. Such an approach is not unfair or
prejudicial. See Faria v. Comm’r of Soc. Sec., 187 F.3d 621 (1st Cir. 1998) (citing Shannon v.
Chater, 54 F.3d 484, 488 (8th Cir. 1995) (“Reversal due to [an ALJ’s alleged] failure to develop
the record is only warranted where such failure is unfair or prejudicial.”). Moreover, the ALJ
explicitly relied on the opinion of Dr. Joglar to ensure a fully developed record, as he had evaluated
all of Plaintiff’s conditions and provided a detailed opinion.
It should also be noted that at the hearing on January 18, 2017, Plaintiff’s counsel neither
expressed concern about Plaintiff’s impairments due to sacroiliitis nor questioned Dr. Joglar about
his conclusion in relation to this condition. Tr. 58–59. On the contrary, Plaintiff’s counsel focused
on the effects of Plaintiff’s sleep apnea, which suggests that the alleged limitations due to
sacroiliitis were not as important as he claims. Id. When a claimant is represented, as in this case,
the ALJ should “be entitled to rely on claimant’s counsel to structure and present the claimant’s
case in a way that [his] claims are adequately explored.” Faria v. Comm’r of Soc. Sec., 187 F.3d
621 (1st Cir. 1998) (citing Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir. 1997); Sears v.
Bowen, 840 F.2d 394, 402 (7th Cir. 1988)). Therefore, the ALJ properly developed the record in
the case at bar.
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3. Plaintiff’s claim that the ALJ erred in not applying Rule 201.06.
Plaintiff contends that he is limited to sedentary work and that the ALJ erred in not applying
Rule 201.06 of the Medical Vocational Guidelines under 20 C.F.R. § 404 Subpart P., Appendix 2,
Regulation No. 4. Plaintiff’s assertion that he is limited to sedentary work conflicts with the rest
of the evidence in the record and is unpersuasive. Sedentary work
represents a significantly restricted range of work, and individuals with a maximum
sustained work capability limited to sedentary work have very serious functional
limitations. Therefore, as with any case, a finding that an individual is limited to less than
the full range of sedentary work will be based on careful consideration of the evidence of
the individual’s medical impairment(s) and the limitations and restrictions attributable to
it. Such evidence must support the finding that the individual’s residual functional capacity
is limited to less than the full range of sedentary work.
20 C.F.R. § Pt. 404, Subpt. P, App. 2. There was a sufficient basis for the ALJ’s decision to rely
on Dr. Joglar’s opinion that Plaintiff was capable of performing light work. First, as the ALJ
pointed out in her opinion, “on April 12, 2016, at the State Insurance Fund (SIF), the physical
examination was unremarkable and he referred feeling well.” Further, “at Grupo Fisiátrico y
Terapia Física, from May 23, 2016 through June 21, 2016, the claimant was found with limited
lumbar flexion, but normal muscle strength, normal balance and normal gait.” Tr. 30. Second, as
already stated, Dr. Rivera Morales’s notes from his evaluation on November 7, 2016 show only a
small range of limitations on Plaintiff’s functionality. Tr. 1112–13. Third, the ALJ considered
the assessment of Dr. Lourdes Marrero, a state agency medical consultant, who also stated “that
the claimant can perform light work exertion.” Tr. 32. Therefore, Plaintiff’s contention that he is
limited to sedentary work is without merit.
V. CONCLUSION
Based on the foregoing analysis, the court concludes that the decision of the Commissioner
was based on substantial evidence. Therefore, the Commissioner’s decision is AFFIRMED.
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IT IS SO ORDERED.
In San Juan, Puerto Rico, this 9th day of August, 2019.
s/Marcos E. López
U.S. Magistrate Judge
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