Pabon-Mercado v. Commissioner of Social Security
OPINION AND ORDER affirming the decision of the Commissioner of Social Security. Signed by US Magistrate Judge Marcos E. Lopez on 3/31/2021. (JZ)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
EDISBEL M. PABÓN MERCADO,
CIVIL NO.: 19-1843 (MEL)
COMMISSIONER OF SOCIAL SECURITY,
OPINION AND ORDER
Procedural and Factual Background
Pending before the court is Ms. Edisbel M. Pabón Mercado’s (“Plaintiff”) appeal from
the decision of the Commissioner of Social Security (“the Commissioner”) denying her
application for disability benefits under the Social Security Act. ECF No. 14. On December 9,
2015, Plaintiff filed an application for Social Security benefits alleging that she initially became
unable to work due to disability on December 4, 2014 (“the onset date”). Tr. 310.1 Prior to the
onset date, Plaintiff worked as a school bus driver. Tr. 320-21. Plaintiff met the insured status
requirements of the Social Security Act through June 30, 2019. Tr. 312. Plaintiff’s disability
claim was denied on March 7, 2016, and upon reconsideration. Tr. 310.
Thereafter, Plaintiff requested a hearing which was held on July 18, 2018, before
Administrative Law Judge Harold Glanville (“the ALJ”). Tr. 15-32, 310. On August 17, 2018,
the ALJ issued a written decision finding that Plaintiff was not disabled. Tr. 323. Thereafter,
Plaintiff requested review of the ALJ’s decision. The Appeals Council denied Plaintiff’s request
for review, rendering the ALJ’s decision the final decision of the Commissioner, subject to
“Tr.” refers to the transcript of the record of proceedings.
judicial review. Tr. 1-5. Plaintiff filed a complaint on September 8, 2019. ECF No. 1. Both
parties have filed supporting memoranda. ECF Nos. 14, 23.
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 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.” 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 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).
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 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
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 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 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 plaintiff is conclusively found
to be disabled. 20 C.F.R. § 404.1520(d). If not, then the ALJ at step four assesses whether
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 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
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
ALJ determines that there is work in the national economy that plaintiff can perform, then
disability benefits are denied. 20 C.F.R. § 404.1520(g).
C. The ALJ’s Decision
In the case at hand, the ALJ found that Plaintiff met the insured status requirements of the
Social Security Act through June 30, 2019. Tr. 312. Then, at step one of the sequential
evaluation process, the ALJ found that Plaintiff had not engaged in substantial gainful activity
during the relevant period. Id. At step two, the ALJ determined that Plaintiff had the following
severe impairments: lumbar degenerative disc disease, rheumatoid arthritis, enthesopathy of hip
region, osteoarthrosis, right knee arthritis, obesity, and a depressive disorder. Tr. 312. At step
three, the ALJ found that Plaintiff did not have an impairment or combination of impairments
that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. Tr. 313. Next, the ALJ determined that during the relevant period
[Plaintiff] has the residual functional capacity to perform light work as defined in
20 C.F.R. § 404.1567(b) except that she has to alternate positions between sitting
and standing at intervals of two hours during a daily eight-hour work routine. The
claimant can occasionally use ramps and stairs, but never climb ladders, ropes and
scaffolds. She can occasionally balance, stoop, kneel, crouch, and crawl. The
claimant can use her judgment to understand, remember and carry out short, simple,
and repetitive instructions and tasks; and can frequently respond appropriately to
supervision, coworkers, usual work situations, and changes in a routine work
setting; with only occasional interaction with the public.2
Tr. 316. At step four, the ALJ determined that through the date last insured, Plaintiff could not
perform her past relevant work as a school bus driver. Tr. 320, 321. At step five, the ALJ
presented Plaintiff’s RFC limitations, as well as her age, education, and work experience to a
vocational expert. Tr. 26-28, 321, 322. The vocational expert testified that a hypothetical
individual with a similar RFC would be able to perform the following representative
occupations: hand worker (print and publishing), gluer (any industry), and circuit breaker
assembler. Tr. 27. Because there was work in the national economy that Plaintiff could perform,
the ALJ concluded that she was not disabled. Tr. 322, 323.
The term “constantly” is defined as occurring two-thirds or more of the time, “frequently” is defined as anywhere
between one-third to two-thirds of the time, and “occasionally” is defined as very little up to one-third of the time.
See Social Security Ruling (“SSR”) 83–10, 1983 WL 31251, at *6.
Plaintiff objects to the ALJ’s final decision denying disability benefits on four grounds.
First, Plaintiff alleges that the ALJ erred at step three by not finding that she satisfied the
requirements of Listings 1.04 and 14.09. ECF No. 14, at 16-20. Next, Plaintiff alleges that the
ALJ’s RFC determination is not supported by substantial evidence. Id. at 19-22. It is also
claimed by Plaintiff that the ALJ did not properly consider her complaints of pain. Id. at 19.
Lastly, Plaintiff contends that the ALJ’s step five determination is not supported by substantial
evidence. Id. at 9, 21-22.
A. The ALJ’s Step Three Determination
Plaintiff claims that the ALJ erred at step three of the sequential process by not finding
that she met the criteria of Listings 1.04 and 14.09. ECF No. 14, at 16-20. At step three, the
claimant bears the burden of proving that her impairment or combination of impairments meets
or equals a listing in 20 C.F.R. Part 404, Subpart P, Appendix 1. See 20 C.F.R. § 404.1520(d);
Dudley v. Sec'y of Health & Human Servs., 816 F.2d 792, 793 (1st Cir. 1987) (“[t]he burden to
demonstrate the existence of such a [listed] impairment rests with the claimant.”). To meet the
criteria of a listing, the claimant's impairment must satisfy all the duration and objective medical
requirements. See Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (“For a claimant to show that his
impairment matches a listing, it must meet all of the specified medical criteria. An impairment
that manifests only some of those criteria, no matter how severely, does not qualify.”); 20 C.F.R.
Plaintiff argues that the ALJ erred in not finding that she met the criteria of Listing
1.04(A) and 1.04(B) due to her musculoskeletal conditions. ECF No. 14, at 19. "Listing 1.04 is a
musculoskeletal system listing related to disorders of the spine." Kilton v. Astrue, Civ. No. 11-
292, 2012 WL 892924, at *2 (D. Me. Mar. 14, 2012). In order to satisfy Listing 1.04, a claimant
must demonstrate a disorder of the spine (such as herniated nucleus pulposus or degenerative
disc disease) which compromises the nerve root or spinal cord, with
(A) evidence of nerve root compression characterized by neuro-anatomic
distribution of pain, limitation of spinal motion, motor loss (atrophy with associated
muscle weakness or muscle weakness) accompanied by sensory or reflex loss and,
if there is involvement of the lower back, positive straight leg raising test (sitting
and supine); or
(B) spinal arachnoiditis, confirmed by an operative note or pathology report of
tissue biopsy, or by appropriate medically acceptable imaging, manifested by
severe burning or painful dysesthesia, resulting in the need for changes in position
or posture more than once every 2 hours; or
(C) lumbar spinal stenosis resulting in pseudoclaudication, established by findings
on appropriate medically acceptable imaging, manifested by chronic nonradicular
pain and weakness, and resulting in inability to ambulate effectively.
See MacNeil v. Astrue, 908 F. Supp. 2d 259, 264-65 (D. Mass. 2012) (citing 20 C.F.R. Pt. 404,
Subpt. P, App. 1, § 1.04).
In the case at hand, the ALJ noted that the record did not reveal evidence of nerve root
compression characterized by neuroanatomic distribution of pain and limitation of spinal motion.
Tr. 314. The ALJ also found that the record did not contain evidence of spinal arachnoiditis or
lumbar spinal stenosis resulting in an inability to ambulate effectively. Id. In February 2016,
consultant neurologist Dr. David Blas Boria (“Dr. Blas”) examined Plaintiff and found that she
could sit, stand, walk, and travel. Tr. 571-72. Dr. Blas opined that her gait was normal. Tr. 574.
Plaintiff has not cited to any record evidence indicating that she had nerve root compression,
spinal arachnoiditis, or lumbar spinal stenosis to the extent required by the medical criteria for
specified medical Listings 1.04(A), 1.04(B), or 1.04(C). Because Plaintiff has not discredited the
ALJ’s findings, there is no reason to overturn his determination that she did not satisfy the
requirements of Listing 1.04. See Arrington v. Colvin, 216 F. Supp. 3d 217, 235 (D. Mass.
Plaintiff also argues that the ALJ erred in not finding that she met the requirements of
Listing 14.09 which relates to inflammatory arthritis. ECF No. 14, at 17-18; 20 C.F.R. Pt. 404,
Subpt. P, App. 1, § 14.09. Plaintiff particularly argues that she meets the criteria of Listings
14.09(A)(1) and 14.09(D). Id. at 18. In order to satisfy the requirements of Listing 14.09(A)(1),
the claimant must set forth medical evidence that shows she “suffers from persistent
inflammation of, or persistent deformity of, one or more peripheral weight bearing joints
resulting in the inability to ambulate effectively.” Somogyi v. Berryhill, Civ. No. 16-8819, 2018
WL 1135423, at *5 (C.D. Cal. Feb. 27, 2018); 20 C.F.R. Pt. 404, Subpt. P, App. 1, §14.09(A)(1).
“Inability to ambulate effectively means an extreme limitation of the ability to walk.”3 Colón v.
Comm’r of Soc. Sec., Civ. No. 19-1014, 2020 WL 5774939, at *10 (D.P.R. Sept. 28, 2019)
(citing 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.00(B)(2)(b)).
The ALJ found that Plaintiff did not satisfy the requirements of Listing 14.09(A)(1)
because the record evidence did not reveal an inability to ambulate effectively. Tr. 314. The ALJ
noted that in February 2016, Dr. Blas opined that her gait was normal. Tr. 314, 571, 574.
Plaintiff argues that Dr. Blas’s opinion is flawed because he only examined her once. ECF No.
14, at 18. However, the mere fact that she was examined one time by Dr. Blas does not suffice as
a valid reason for rejecting his opinion. See Scott v. Beryyhill, Civ. No. 17-5349, 2017 WL
5496170, at *4 (W.D. Wash. Oct. 30, 2017) (explaining that just because a state agency
“[E]xamples of ineffective ambulation include, but are not limited to, the inability to walk without the use of a
walker, two crutches or two canes, the inability to walk a block at a reasonable pace on rough or uneven surfaces,
the inability to use standard public transportation, the inability to carry out routine ambulatory activities, such as
shopping and banking, and the inability to climb a few steps at a reasonable pace with the use of a single hand rail.”
20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.00(B)(2)(b).
consultant “examined plaintiff on one occasion would not, standing alone, suffice as an
additional specific and legitimate reason for rejecting the opinion.”); Massaglia v. Saul, 805 Fed.
App’x. 406, 409-10 (7th Cir. 2020) (“[o]pinions of state agency consultants may constitute
substantial evidence on the issue of whether a claimant’s impairments meet a presumptive
disability listing.”). Plaintiff does not present any record evidence indicating that she had an
inability to ambulate effectively. Thus, Plaintiff has not carried her burden of demonstrating that
she satisfied all the medical criteria of Listing 14.09(A)(1). See Sullivan, 493 U.S. at 530.
In order to satisfy Listing 14.09(D), a claimant must demonstrate “[r]epeated
manifestations of inflammatory arthritis, with at least two of the constitutional symptoms or
signs (severe fatigue, fever, malaise, or involuntary weight loss) and one of the following at the
marked level:” (1) limitation of activities of daily living, (2) limitation in maintaining social
functioning, or (3) limitation in completing tasks in a timely manner due to deficiencies in
concentration, persistence, or pace. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 14.09(D). While the
ALJ did not discuss Listing 14.09(D), Plaintiff has not cited to record evidence showing that she
suffers from two of the constitutional symptoms or the required marked limitation. Therefore,
Plaintiff has not carried her burden of citing to evidence in the record indicating that she satisfies
the requirements of Listing 14.09(D). See Sullivan, 493 U.S. at 530.
Plaintiff also claims that the ALJ failed to account for the effects of her obesity at step
three. ECF No. 14, at 13-15. “Obesity is not a listed impairment in Appendix 1.” Rios v. Colvin,
Civ. No. 15-30190, 2016 WL 7468802, at *11 (D. Mass. Dec. 28, 2016) (citing SSR 02-1p, 2002
WL 34686281, at *1). However, “the SSA provides guidance that ‘the combined effects of
obesity with other impairments can be greater than the effects of each of the impairments
considered separately.’” Healy v. Colvin, Civ. No. 12-30205, 2014 WL 1271698, at *11
(D. Mass. Mar. 27, 2014) (quoting SSR 02-1p, 2002 WL 34686281, at *1). “In order for the ALJ
to conclude that the combined effects of a claimant's obesity with his other impairments is
greater, evidence in the medical record must support such a conclusion.” Durant-Irizarry v.
Comm’r of Soc. Sec., Civ. No. 14-1444, 2015 WL 8514587, at *4 (D.P.R. Dec. 11, 2015).
Therefore, at step three, the ALJ should “find that a listing is met if there is an impairment that,
in combination with obesity, meets the requirements of a listing.”4 SSR 02-1p, 2002 WL
34686281, at *5.
In the case at hand, the ALJ determined at step two that Plaintiff’s obesity constituted a
severe impairment. Tr. 312. At step three, the ALJ concluded that Plaintiff’s obesity, when
considered in combination with her other impairments, did not meet or medically equal any
listing. Tr. 314. The ALJ noted that there “is no apparent clinical evidence in the record that
directly attributes [Plaintiff’s] obesity to a specific medically determined condition or that her
obesity affects a weight-bearing joint.” Id. Furthermore, Plaintiff has not “offered any objective
medical evidence in the record to show that her obesity, singularly or in combination with her
other impairments, met or medically equaled a listed impairment.” Stockdale v. Comm’r of Soc.
Sec., Civ. No. 16-2304, 2017 WL 3017217, at *11 (N.D. Ohio June 19, 2017). Thus, the ALJ
properly considered Plaintiff’s obesity at step three of the analysis.
B. The ALJ’s RFC Determination
Plaintiff argues that ALJ’s RFC determination is not supported by substantial evidence.
ECF No. 14, at 19-22. The ALJ is responsible for determining a claimant’s RFC based on all the
relevant evidence, including a claimant’s medical record, the medical opinions, and a claimant’s
SSR 02-1p also provides that the ALJ “will not make assumptions about the severity or functional effects of
obesity combined with other impairments. Obesity in combination with another impairment may or may not increase
the severity or functional limitations of the other impairment. We will evaluate each case based on the information
in the case record.” 2002 WL 34686281, at *6.
descriptions of his limitations. 20 C.F.R. §§ 404.1545, 404.1546. A claimant’s RFC is the most
he can do despite limitations from his impairments. Id. The claimant, however, has the burden of
providing evidence to establish how his impairments limit his RFC. 42 U.S.C. § 423(d)(5)(A);
Freeman v. Barnhart, 274 F.3d 606, 608 (1st Cir. 2001).
1. The ALJ’s Mental RFC Determination
The ALJ thoroughly considered the medical evidence and opinions of record regarding
Plaintiff’s mental impairments in determining her mental RFC. In May 2015, Plaintiff presented
to the APS Clinics where treating psychiatrist Dr. Roberto Gutiérrez Morales (“Dr. Gutiérrez”)
diagnosed her with major depressive affective disorder. Tr. 99-101, 556-58. However,
Dr. Gutiérrez opined that Plaintiff was oriented in all spheres and displayed logical, relevant, and
coherent thought process. Id. Dr. Gutiérrez also opined that Plaintiff had adequate concentration,
fair judgment, and decreased insight. Id. The ALJ noted that Plaintiff visited the APS Clinics in
August 2015 and was prescribed Risperdal for reported auditory and visual hallucinations by
treating general practitioner Dr. Hans Rivera Colón (“Dr. Rivera”). Tr. 95-96, 318, 552-54. On
September 10, 2015, treating internist Dr. Franklin Plúguez Feliciano (“Dr. Plúguez”) diagnosed
Plaintiff with depression and anxiety. Tr. 532. On September 21, 2015, Dr. Gutiérrez found that
Plaintiff did not have auditory or visual hallucinations and discontinued Risperdal. Tr. 89-92.
In December 2015, treating general practitioner Dr. Gretchen Enriquez Figueroa
(“Dr. Enriquez”) from the APS Clinics examined Plaintiff and found that she displayed
appropriate affect, logical thought process, with no hallucinations or delusions. Tr. 80. Plaintiff
was also found to be oriented in all spheres, with intact memory, adequate concentration, good
judgment, and adequate insight. Tr. 81. Subsequent progress notes from Dr. Enriquez revealed
similar findings.5 Tr. 104-06, 109-11.
In January 2016, consultant psychiatrist Dr. Jorge L. Suria Colón (“Dr. Suria”) examined
Plaintiff and diagnosed her with major depressive disorder. Tr. 565. Dr. Suria opined that
Plaintiff was somewhat evasive and disheveled but noted that there were no signs of
hallucinations or delusions. Tr. 564. Dr. Suria also opined that Plaintiff was well oriented,
displayed adequate recent and remote memory, and showed sustained attention and normal
insight. Tr. 564-65. Dr. Suria assigned a global assessment of functioning (“GAF”) score of 55.6
Tr. 565. In June 2016, Dr. Gutiérrez noted that Plaintiff had appropriate hygiene and clothing
and was calm, cooperative, and friendly during the interview. Tr. 229. Dr. Gutiérrez also noted
that Plaintiff did not suffer from hallucinations or delusions and opined that her thought process
was logical, coherent, and relevant. Tr. 229. Dr. Gutiérrez also opined that Plaintiff had intact
memory, good judgment, and adequate concentration and insight. Tr. 230. Subsequent progress
notes from the APS Clinics revealed similar findings.7 Tr. 178-82, 185-89, 192-94, 197-98, 20105, 208-12, 222-26.
In February 2016, state agency consultant psychologist Dr. Hugo Román Rivera
(“Dr. Román”) reviewed the record and opined that Plaintiff presented mild restrictions in
activities of daily living, moderate difficulties in maintaining social functioning, and moderate
These progress notes refer to Dr. Enriquez’s treatment of Plaintiff in February and March 2016.
“GAF is a scale from 0 to 100 used by mental health clinicians and physicians to subjectively rate the social,
occupational, and psychological functioning of adults. A GAF score ranging from 41 to 50 indicates ‘serious
symptoms’ or any ‘serious impairment in social occupational, or school functioning.’ A GAF score between 51 and
60 indicates ‘moderate symptoms’ or ‘moderate difficulty in social occupational, or school functioning.’” Sánchez
Rosa v. Comm’r of Soc. Sec., Civ. No. 18-1506, 2019 WL 3202683, at *3 n.2 (D.P.R. July 16, 2019) (citing Am.
Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. text rev. 2000) (DSM–IV–
These progress notes refer to Plaintiff’s treatment at the APS Clinics in September 2016, December 2016, February
2017, May 2017, August 2017, November 2017, and December 2017.
difficulties in maintaining concentration, persistence, or pace. Tr. 273. In July 2016, state agency
consultant psychologist Dr. Jesús Soto (“Dr. Soto”) reviewed the record on reconsideration and
concurred with Dr. Román’s opinion. Tr. 292-93.
Plaintiff argues that the medical evidence shows that her mental condition worsened.
ECF No. 14, at 20. Plaintiff, however, does not cite to any record evidence indicating that her
mental condition worsened. Instead, the evidence in the record reflects that her mental condition
remained stable. In January 2018, Dr. Enriquez opined that Plaintiff was oriented in all spheres
and had intact memory, adequate concentration, and good judgment. Tr. 261. In April 2018,
Dr. Rivera found that Plaintiff displayed appropriate affect and did not suffer from hallucinations
or delusions. Dr. Rivera opined that Plaintiff maintained logical thought process and displayed
intact memory, adequate insight and concentration, and good judgment. Tr. 252-54.
Plaintiff also argues that the ALJ’s mental RFC determination is deficient because it did
not include specific findings regarding her ability to cope with different work environments and
accept supervision. ECF No. 14, at 20. Plaintiff’s argument is untenable as the ALJ specifically
considered her functioning in these areas in determining her mental RFC. The ALJ considered
Plaintiff’s ability to cope with the demands of different work environments by reasonably
limiting her RFC to a job which involved only simple instructions and tasks. Tr. 316. Moreover,
the ALJ considered Plaintiff’s ability to accept supervision by finding that she could only
frequently respond to supervision and coworkers. Id. The ALJ appropriately considered the
medical evidence and opinions of record in determining Plaintiff’s RFC regarding her mental
limitations. His mental RFC determination is supported by substantial evidence. See Evangelista
v. Sec’y of Health & Human Servs., 826 F.2d 136, 144 (1st Cir. 1987) (“We must affirm the
Secretary's [determination], even if the record arguably could justify a different conclusion, so
long as it is supported by substantial evidence.”).
2. The ALJ’s Physical RFC Determination
Plaintiff also alleges that the ALJ’s physical RFC determination is not supported by
substantial evidence. ECF No. 14, at 9, 15, 16-20. However, the ALJ reasonably considered the
medical evidence in the record to find that Plaintiff could perform a range of light work. The
ALJ noted that Plaintiff reported intense back pain that radiates to her knees, ankles, and hips
and inflammation in her wrists and fingers. Tr. 316, 449. In December 2014, examining
radiologist Dr. Rafael Grovas Porrata (“Dr. Grovas”) opined that a radiologic study of Plaintiff’s
pelvis and hips showed narrowing at the superior aspect of both hip joints with early
enthesiopathic changes at the pelvis, minimal sclerosis of the sacroiliac joints likely degenerative
in nature, and mild bony osteopenia. Tr. 672.
On January 9, 2015, Plaintiff received emergency room treatment due to pain in her
extremities. Tr. 58. That same day, examining radiologist Dr. Ana Lozada Suárez (“Dr. Lozada”)
opined that radiologic studies of the lumbar spine revealed central disc herniation at the L5-S1
level. Tr. 508. However, Dr. Lozada opined that no fractures or dislocations were seen,
intervertebral spaces were intact, and sacroiliac joints were within normal limits. Id. In February
2015, treating physiatrist Dr. Arturo López Rivera (“Dr. López”) examined Plaintiff and
diagnosed her with degeneration of lumbosacral intervertebral disc, lumbago, enthesopathy of
hip region, rheumatoid arthritis, and osteoarthrosis of the leg. Tr. 521. Dr. López found that
Plaintiff had tenderness in the lumbosacral paravertebral muscles and muscle spasms at the
lumbar area. Id. Dr. López also found that Plaintiff had restricted range of motion in the lumbar
spine, normal range of motion in the lower extremities, and full range of motion in the knees but
with pain at the end of the range. Id. The ALJ noted that Dr. López prescribed Ultram for pain
relief. Tr. 317, 522.
In April 2015, Dr. Plúguez treated Plaintiff for back pain. Tr. 76. An MRI of the lumbar
spine conducted in November 2015 showed facet arthrosis, facet joint synovitis, and
degenerative disc disease. Tr. 661. In February 2016, Dr. Blas examined Plaintiff and noted that
she complained of low back pain and had generalized joint pain and tenderness to palpation over
all joints, cervical, thoracic, and lumbar paraspinal muscles. Tr. 571, 572. Dr. Blas diagnosed
Plaintiff with osteoarthritis, obesity, and chronic cervical, thoracic, and lumbar musculoskeletal
pain. Tr. 572. However, Dr. Blas opined that Plaintiff could sit, stand, walk, travel, and handle
and lift common objects. Tr. 572. It was also opined by Dr. Blas that Plaintiff had 4/5 muscular
strength in both hands and that she could grip, grasp, pinch, finger tap, pick up a coin, and write.
Tr. 573. Dr. Blas assessed Plaintiff with a normal gait. Tr. 574.
The ALJ noted in his decision that Plaintiff received conservative treatment for her pain
consisting of medications. Tr. 318. The ALJ also noted that the record evidence did not reflect
treatment for pain involving physical therapy, injections, nerve blocks, or any evaluation by a
neurosurgeon. Id. Plaintiff has not cited to any record evidence discrediting the ALJ’s findings
that there was no evidence in the record of physical therapy, injections, nerve blocks, or an
evaluation by a neurosurgeon.
In March 2016, state agency consultant internist Dr. Ulises Meléndez (“Dr. Meléndez”)
reviewed the record evidence and opined that Plaintiff could stand and/or walk for six hours in
an eight-hour workday and sit for six hours in an eight-hour work day. Tr. 275. Dr. Meléndez
found that Plaintiff could occasionally carry and/or lift twenty pounds and frequently carry
and/or lift ten pounds. Id. Dr. Meléndez also found that Plaintiff could frequently climb ramps
and stairs, balance, kneel, and crawl. Tr. 275. It was also opined by Dr. Meléndez that Plaintiff
could occasionally crouch, stoop, climb ladders, ropes, and scaffolds. Tr. 275, 276. In July 2016,
state agency consultant internist Dr. Pedro Nieves (“Dr. Nieves”) reviewed the record upon
reconsideration and concurred with Dr. Meléndez’s opinion. Tr. 294-96. The ALJ assigned
partial weight to the opinions of Dr. Meléndez and Dr. Nieves. Tr. 320. The ALJ found that
Plaintiff was more limited in her ability to sit and stand in light of her testimony that staying in
the same position for prolonged periods exacerbated her pain. Tr. 21-23, 320. The ALJ also
noted that the record reflected greater musculoskeletal conditions that would justify greater
restrictions on Plaintiff’s postural capacities. Tr. 320.
In April 2016, Dr. Plúguez noted that Plaintiff complained of strong pain and edema was
present in the extremities. Tr. 113, 589. In July 2016, Dr. Lozada opined that x-rays of the right
knee showed osteoarthritis with predominant involvement of the patellofemoral space. Tr. 684.
The ALJ accommodated Plaintiff’s complaints of pain when in the same position for prolonged
periods by including a limitation in her RFC that she needed to alternate positions between
sitting and standing at intervals of two hours during an eight-hour workday. Tr. 316.
Plaintiff contends that the ALJ did not consider her obesity in the RFC determination and
failed to evaluate the effects of her obesity in combination with other impairments. ECF No. 14,
at 13-15. Plaintiff’s argument cannot prosper as the ALJ specifically considered her obesity in
the RFC analysis. In his decision, the ALJ noted that Plaintiff reported that she was 4’11” tall
and weighed 270 pounds when she filed her claim for disability benefits. Tr. 318, 433. The ALJ
also noted that Plaintiff was assessed with body mass indexes (“BMI”) ranging from 50.49 to
50.5. Tr. 510, 521. The National Institutes of Health classify a BMI of 30.0 or above as obesity.
Tr. 318; SSR 02-1p, 2002 WL 34686281, at *2. Thus, the ALJ properly found that Plaintiff was
classified as obese because she presented BMIs over 30.0. Tr. 318. The ALJ noted that Plaintiff
attributed her obesity to prescription medication. Tr. 21, 22, 316, 317.
In his decision, the ALJ noted that “[o]besity may have an adverse impact upon coexisting impairments. In addition, obesity may limit an individual’s ability to sustain activity on
a regular and continuing basis during an eight-hour day, five-day week or equivalent schedule.”
Tr. 318. The ALJ proceeded to explain that he had taken these considerations into account in
reaching Plaintiff’s RFC and noted that “no treating or examining medical source has
specifically attributed additional or cumulative limitations to [Plaintiff’s] obesity.” Tr. 318.
Plaintiff has not identified “any evidence that her obesity imposed greater functional limitations
than those found by the ALJ.” Arseneau v. Berryhill, Civ. No. 17-398, 2018 WL 3854795, at *5
(D.N.H. Aug. 14, 2018). The ALJ properly considered Plaintiff’s obesity and his physical RFC
determination is supported by substantial evidence. See Durant-Irizarry v. Comm’r of Soc. Sec.,
Civ. No. 14-1444, 2015 WL 8514587, at *4 (D.P.R. Dec. 11, 2015).
C. Plaintiff’s Allegations of Pain
Plaintiff also claims that the ALJ failed to consider her complaints of pain. ECF No. 14,
at 19. In evaluating a claimant’s subjective complaints of pain, the ALJ must consider the Avery
factors. See Vargas-López v. Comm’r of Soc. Sec., 510 F. Supp. 2d 174, 180 (D.P.R. 2007). The
Avery factors include:
(1) The nature, location, onset, duration, frequency, radiation, and intensity of any
pain; (2) Precipitating and aggravating factors (e.g., movement, activity,
environmental conditions); (3) Type, dosage, effectiveness, and adverse sideeffects of any pain medication; (4) Treatment, other than medication, for relief of
pain; (5) Functional restrictions; and (6) The claimant’s daily activities.
Avery v. Sec'y of Health and Human Servs., 797 F.2d 19, 28 (1st Cir. 1986). The ALJ, however,
“need not slavishly discuss all factors relevant to analysis of a claimant's credibility and
complaints of pain in order to make a supportable credibility finding.” Amaral v. Comm’r of
Soc. Sec., 797 F. Supp. 2d 154, 162 (D. Mass. 2010) (citations omitted).
In the instant case, “[a]lthough the ALJ did not mechanically enumerate each factor, his
opinion and the transcript of the hearing show a full consideration of the factors.” González v.
Comm’r of Soc. Sec., Civ. No. 14-1669, 2016 WL 1171511, at *3 (D.P.R. Mar. 24, 2016); see
Mercado v. Comm’r of Soc. Sec., 767 F. Supp. 2d 278, 285 (D.P.R. 2010) (“Generally, a failure
to address all of the Avery factors in the rationale of the final decision is cured if the factors are
discussed or considered at the administrative hearing.”). Regarding the first factor, nature and
location of alleged pain, Plaintiff testified that she has pain in her whole body and particularly in
her low back and neck. Tr. 19, 22. The ALJ noted that in January 2015, Plaintiff received
emergency room treatment due to pain in the extremities. Tr. 58, 317. It was also noted by the
ALJ that Dr. Plúguez treated Plaintiff for back pain in April 2015. Tr. 76, 317. In February 2016,
Dr. Blas examined Plaintiff and he diagnosed her with cervical, thoracic, and lumbar
musculoskeletal pain. Tr. 317, 572.
With regard to the second factor, precipitating and aggravating factors, Plaintiff testified
that she cannot sit or stand for too long and she has to frequently alternate positions due to pain.
Tr. 21-23. The ALJ considered the third factor concerning Plaintiff’s pain medication as
Dr. López prescribed Ultram for pain relief. Tr. 317, 522. Plaintiff testified at the hearing that the
pain medication helps very little. Tr. 19, 20.
Regarding the fourth factor, treatment other than medication, the ALJ noted in his
decision that Plaintiff’s treatment for pain was conservative as there was no record evidence of
physical therapy, injections, nerve blocks, or any evaluation by a neurosurgeon. Tr. 318. The
ALJ also considered the fifth factor, functional limitations, as Plaintiff testified that she can stand
for less than five minutes at a time and can only walk for twenty minutes. Tr. 22. Plaintiff also
testified that she can only sit for twenty minutes without alternating position. Tr. 22, 23.
However, the ALJ noted that Dr. Blass assessed Plaintiff with a normal gait and opined that she
can sit, walk, and travel. Tr. 317, 572.
Regarding the sixth factor, activities of daily living, Plaintiff testified that she cannot
cook and that her husband and son do basic house cleaning and shopping. Tr. 21, 23. Plaintiff
reported to Dr. Blas that she spends the day lying around the house or watching the TV. Tr. 563.
Plaintiff also reported that she is able to take care of her personal grooming and that she manages
her own medications. Tr. 563. Thus, contrary to Plaintiff’s argument, the ALJ considered
Plaintiff’s complaints of pain and the Avery factors in both the hearing and the decision. See
Mercado, 767 F. Supp. 2d at 285.
D. The ALJ’s Step Five Determination
Lastly, Plaintiff alleges that the ALJ erred at step five in the sequential process by finding
that there was work that she could perform existing in significant numbers in the national
economy. ECF No. 14, at 9. At step five, the ALJ evaluates whether a claimant’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). Plaintiff claims that the ALJ
provided a misleading hypothetical to the vocational expert (“VE”). ECF No. 14, at 9. As stated
earlier, substantial evidence supports the ALJ’s RFC determination and Plaintiff cannot rehash
her RFC argument at this final step.8 See Gallant v. Berryhill, Civ. No. 16-308, 2017 WL
2731303, at *7 (D. Me. June 25, 2017). The ALJ provided an accurate hypothetical to the VE,
Plaintiff also argues, without more, that the ALJ did not consider her obesity at step five. ECF No. 14, at 13.
However, the ALJ adequately considered her obesity in the RFC determination and provided the well-supported
hypothetical to the VE. See Burch v. Barnhat, 400 F.3d 676, 684 (9th Cir. 2005).
and thus, the step five determination is supported by substantial evidence. Tr. 25-28. See BerríosLópez v. Sec’y of Health and Human Servs., 951 F.2d 427, 429 (1st Cir. 1991) (“The ALJ was
entitled to credit the vocational expert's testimony as long as there was substantial evidence in
the record to support the description of claimant's impairments given in the ALJ’s hypothetical to
the vocational expert.”).
Based on the foregoing analysis, the court concludes that the decision of the Commissioner
that Plaintiff was not entitled to disability benefits was supported by substantial evidence.
Therefore, the Commissioner’s decision is hereby AFFIRMED.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 31st day of March, 2021.
s/Marcos E. López
U.S. Magistrate Judge
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