Velasquez III v. Commissioner of Social Security

Filing 23

OPINION AND ORDER: The Commissioner's decision is affirmed. Signed by US Magistrate Judge Bruce J. McGiverin on 3/31/2022. (JM)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
FERNANDO VELÁSQUEZ III,
Petitioner,
v.

Civil No. 20-1354 (BJM)

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

OPINION AND ORDER
Fernando Velásquez III (“Velásquez”) seeks review of the Social Security Administration
Commissioner’s (“Commissioner’s”) finding that he is not entitled to disability benefits under the
Social Security Act (“Act”), 42 U.S.C. § 423. Velásquez contends that the Administrative Law
Judge (“ALJ”) erred at step five in finding that there were jobs in the national economy that he
could perform. ECF Nos. 1, 19. The Commissioner opposed. ECF Nos. 16, 20. This case is before
me on consent of the parties. ECF Nos. 5, 7-9. After careful review of the administrative record
and the briefs on file, and for the reasons set forth below, the Commissioner’s decision is
AFFIRMED.
STANDARD OF REVIEW
After reviewing the pleadings and record transcript, the court has “the power to enter a
judgment affirming, modifying, or reversing the decision of the Commissioner.” 20 U.S.C. §
405(g). The court’s review is limited to determining whether the Commissioner and his delegates
employed the proper legal standards and found facts upon the proper quantum of evidence. MansoPizarro v. Sec’y of Health & Hum. Services, 76 F.3d 15, 16 (1st Cir. 1996). The Commissioner’s
findings of fact are conclusive when supported by substantial evidence, 42 U.S.C.§ 405(g), but are
not conclusive when derived by ignoring evidence, misapplying the law, or judging matters
entrusted to experts. Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999); Ortiz v. Sec’y of Health &
Hum. Services, 955 F.2d 765, 769 (1st Cir. 1991). Substantial evidence means “‘more than a mere
scintilla.’ . . . It means—and means only—‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019)
(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)) (internal citation omitted).

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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 & Hum. Services, 819 F.2d 1, 3 (1st Cir. 1987).
A claimant is disabled under the 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). Under the statute, a claimant is unable to
engage in any substantial gainful activity when he “is not only unable to do his previous work but
cannot, considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). In
determining whether a claimant is disabled, all of the evidence in the record must be considered.
20 C.F.R. § 404.1520(a)(3).
The Commissioner employs a five-step evaluation process to decide whether a claimant is
disabled. 20 C.F.R. § 404.1520; see Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987); Goodermote
v. Sec’y of Health & Hum. Services, 690 F.2d 5, 6-7 (1st Cir. 1982). At step one, the Commissioner
determines whether the claimant is currently engaged in “substantial gainful activity.” If so, the
claimant is not disabled. 20 C.F.R. § 404.1520(b). At step two, the Commissioner determines
whether the claimant has a medically severe impairment or combination of impairments. 20 C.F.R.
§ 404.1520(c). If not, the disability claim is denied. At step three, the Commissioner must decide
whether the claimant’s impairment is equivalent to a specific list of impairments contained in
Appendix 1 of the regulations, impairments that the Commissioner acknowledges are so severe as
to preclude substantial gainful activity. 20 C.F.R. § 404.1520(d); 20 C.F.R. § 404, Subpt. P, App.
1. If the claimant’s impairment meets or equals one of the listed impairments, he is conclusively
presumed to be disabled. If not, the evaluation proceeds to step four, at which point the ALJ
assesses the claimant’s residual functional capacity (“RFC”) and determines whether the
claimant’s impairments prevent the claimant from doing the work he has performed in the past.
An individual’s RFC is his ability to do physical and mental work activities on a sustained
basis despite limitations from his impairments. 20 C.F.R. § 404.1520(e) and 404.1545(a)(1). If the
claimant can perform his previous work, he is not disabled. 20 C.F.R. § 404.1520(e). If he cannot
perform this work, the fifth and final step asks whether the claimant can perform other work

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available in the national economy in view of his RFC, as well as age, education, and work
experience. If the claimant cannot, then he is entitled to disability benefits. 20 C.F.R. § 404.1520(f).
At steps one through four, the claimant has the burden of proving he cannot return to his
former employment because of the alleged disability. Rodríguez v. Sec’y of Health & Hum.
Services, 944 F.2d 1, 5 (1st Cir. 1991). Once a claimant has done this, the Commissioner has the
burden under step five to prove the existence of other jobs in the national economy the claimant
can perform. Ortiz v. Sec’y of Health & Hum. Services, 890 F.2d 520, 524 (1st Cir. 1989).
Additionally, to be eligible for disability benefits, the claimant must demonstrate that his disability
existed prior to the expiration of his insured status, or his date last insured. Cruz Rivera v. Sec’y of
Health & Hum. Services, 818 F.2d 96, 97 (1st Cir. 1986).
BACKGROUND
The following is a summary of the treatment record, consultative opinions, and selfreported symptoms and limitations as contained in the transcript (“Tr.”) of the record of
proceedings.
Velásquez was born on September 23, 1968, has a GED, can communicate in English, and
last worked as a warehouse clerk and as a handyman until he stopped working on March 30, 2016
(alleged onset date) at age 47 due to a broken left ankle ligament, a left knee condition, depression,
and anxiety. Velásquez applied for disability benefits on October 4, 2016.1 He last met the insured
status requirement on March 31, 2017 (date last insured). Tr. 21, 40-41, 55, 60, 64, 100, 240-241,
273-276.
Medical Background
Dr. Norberto Báez-Ríos (orthopedic surgeon)
A note dated October 19, 2016, indicates that Velásquez, then forty-eight years old, had
severe left knee pain. Diagnoses included bursitis, effusion, degenerative joint disease,
chondromalacia of the patella, patella tenderness, and leg weakness and cramps due to a severe
lumbar condition. Dr. Báez noted that Velásquez needed a specialist for severe lumbar condition,
a left knee MRI, and physical therapy. Tr. 382.

1

The ALJ’s decision states that Velásquez filed for disability insurance benefits on September 9,
2016, (Tr. 21) but an application notice states that the application was completed on October 4, 2016. Tr.
240.

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Dr. Santiago Rivera-Ortega (general practitioner)
An SSA form contains Dr. Rivera’s contact information and a handwritten note that reads
“2014 – Present” but offers no treatment evidence. Tr. 360.
August to November 2016 progress notes indicate that Velásquez had lumbago and left
ankle degenerative joint disease and pain. Velásquez weighed between 185-200 pounds and his
body mass index (“BMI”) was between 29.9 and 31.3. The rest of the handwriting is illegible. Tr.
388-391.
Dr. Rivera submitted to the SSA, Office of Hearings and Appeals, a “Medical Source
Statement of Ability to Do Work-Related Activities (Physical),” dated January 9, 2017. Dr. Rivera
handwrote that Velásquez had a left ankle deformity but could ambulate with an assistive device
(cane). Dr. Rivera check-marked that Velásquez could occasionally and frequently lift and/or carry
less than ten pounds, stand and/or walk for less than two hours in an eight-hour workday and
medically required a hand-held assistive device to ambulate, sit for less than six hours and had to
periodically alternate sitting and standing to relieve pain and discomfort, and could do limited
pushing and/or pulling with his lower extremities. He could occasionally kneel and crouch, but
never climb ramps/stairs/ladders/ropes/scaffolds, balance, crawl, or stoop. Velásquez had no
manipulative limitations (he could unlimitedly reach in all directions, handle, finger, and feel) or
visual/communicative limitations (he could see, hear, and speak). He had no environmental
limitations. Tr. 384-387.
An August 24, 2017, left ankle MRI showed advanced degenerative changes of the ankle
joint in combination with osteoarthritis, arthropathy changes, and abnormal mechanics related to
lateral hindfoot impingement, likely due to a chronic ankle ligamentous injury.
In July 2018, Dr. Rivera diagnosed Velásquez with pain in the left knee, ankle and joints,
hypercholesterolemia, thoracic and low back pain, cervicalgia, left knee unilateral primary
osteoarthritis, and generalized anxiety disorder. Medications were prescribed (Relafen, Parafon
Forte DSC, Pepcid, Gabapentin, Anaprox, Atorvastatin Calcium). Tr. 91-92.
Progress notes from October 26, 2018, show that Velásquez was alert, oriented, active, and
showed no acute distress. He had a BMI of 30.34, blood pressure of 148/90, and a pain level of
three on a scale of ten. Velásquez had left knee and ankle pain with limited range of movement
(“ROM”) and used a cane for walking. Review of all physical systems was normal. Psychiatric
evaluation was normal. Dr. Rivera assessed derangement of posterior horn of medial meniscus due

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to an old tear or injury of the left knee, and pain in the left ankle and foot joints. Notes indicate
that an orthopedist recommended knee replacement surgery and that he still needed an evaluation
by an orthopedist for his left foot and ankle. Dr. Rivera prescribed medications and recommended
that Velásquez do diet and physical activity, avoid gaining weight or doing impacted exercises, use
an assistive device such as a cane, and take non-steroidal anti-inflammatory drugs. Tr. 88-91.
Dr. Rivera submitted another “Medical Source Statement of Ability to Do Work-Related
Activities (Physical),” dated November 6, 2018. Dr. Rivera handwrote that Velásquez had severe
left knee degenerative joint disease due to osteoarthritis. He could not flex his left knee due to
limited ROM and had to use a cane to keep balance and avoid injury of his left knee and ankle and
a knee brace to support the knee joint. Dr. Rivera check-marked that Velásquez could occasionally
lift and/or carry less than ten pounds (did not check-mark any of the options for frequent
lifting/carrying), stand and/or walk for less than two hours in an eight-hour workday and medically
required a hand-held assistive device to ambulate, sit for less than six hours and had to periodically
alternate sitting and standing to relieve pain and discomfort, and do limited pushing and/or pulling
with

his

lower

extremities.

He

could

occasionally

crawl

but

never

climb

ramps/stairs/ladders/ropes/scaffolds, balance, kneel, crouch, or stoop. Velásquez had no
manipulative limitations (he could unlimitedly reach in all directions, handle, finger, and feel) or
visual/communicative limitations (he could see, hear, and speak). He did not have environmental
limitations but for temperature extremes because he could not tolerate working in a cold
environment because it worsened his left knee and ankle pain. He could maintain attention and
concentration on work tasks. Tr. 421-425.
Progress notes from April 12, 2019, indicate that Velásquez reported a lot of pain in his left
knee and ankle with ROM limitations and pain to palpation. Left knee and foot extension was
limited. Review of all systems was normal. He had a “smooth gait and upright posture.” He was
oriented, alert, active, with no acute distress. Judgment and insight were normal. His recent and
remote memory were intact. His mood and affect were appropriate. Same diagnoses and
prescriptions as in 2018 remained. Tr. 94-99.
Procedural History
Along with his application for disability benefits (Tr. 240-241), Velásquez filed a series of
disability reports at the initial and reconsideration/appeals levels. Velásquez claimed that he could
no longer work because of a broken left ankle ligament, a left knee condition, depression, and

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anxiety. He did not claim in these reports changes or worsening of his conditions or daily activities.
Tr. 273-279, 312-318, 334-340.
In a face-to-face interview with Velásquez on October 21, 2016, Velásquez complained of
severe left knee and ankle problems. The interviewer observed that Velásquez used a cane, had
difficulty standing and walking, and seemed to have a severe limp, but noted that Velásquez was
“exessively [sic] dramatic about his condition.” Velásquez was also observed driving himself to
the appointment, getting out of his vehicle without problem, walking straight and without a cane
until he approached the office. Tr. 271. The case was referred to the disability investigations unit
for “[s]uspected exaggerated and dramatic behavior during in office interview.” Officers went to
his house and video-recorded the visit. Velásquez was observed bending over, without any apparent
difficulty, to put on his sneakers. He exited the house balcony and walked towards the front gate
without the use of a cane or visible brace but did limp and was observed putting all his weight on
one leg. He was cooperative, able to concentrate and adequately answer questions. Tr. 393-398.
In function reports Velásquez filed at the initial and reconsideration levels, he claimed that
he felt pain in his left ankle, left knee, and lumbar region, which caused inability to walk, stand,
or sit comfortably for more than thirty minutes. Tr. 280, 324. His daily activities included caring
for his personal needs, taking care of his dog, sitting on the porch a few minutes at a time, laying
down often, and going to medical appointments. The pain impedes him from sleeping through the
night, and he had problems getting dressed, washing his back, and sitting on and getting up from
the toilet. Tr. 281, 325. The pain also impeded him from doing chores. Tr. 282, 326. He drove and
could go out alone. He could go shopping and manage funds. Tr. 283, 327. Velásquez claimed that
his conditions affected his ability to lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs,
concentrate, and get along with others. He could walk for twenty to thirty minutes before needing
to stop and rest for five to ten minutes. He could follow written and spoken instructions and pay
attention for twenty to thirty minutes before pain interrupted his concentration. He claimed not
being able to finish what he started. Tr. 285, 329. He claimed not being able to engage in his
hobbies (gardening, snorkeling, watching movies) because of their physical nature. Although
irritable, he could spend time with others (visits, talking on the phone, sitting on the porch) and
went to church twice a week. Tr. 284, 328-329. He got along well with authority figures but got
frustrated by miscommunications. A disagreement at a former job with Human Resources led to a
verbal argument and his firing. He did not handle stress well. He also used a cane, brace, and

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glasses. Tr. 286, 330. He took medications for inflammation and cholesterol, which did not cause
side effects. Tr. 287.
A consultative evaluation was performed by Dr. Rafael Sanz-Sein (physical medicine and
rehabilitation) on February 13, 2017. Dr. Sanz diagnosed left ankle sprain with a possible ligament
tear, left knee osteoarthritis, and lumbar strain. Upon examination, Velásquez was alert and
oriented, and he would answer questions in a coherent and cooperative manner. He weighed 203
pounds and measured 5’6”. Dr. Sanz noted that Velásquez used a cane on the right hand and a
brace over the left knee. Dr. Sanz found left ankle edema and mild deformity. There was tenderness
to palpation over the lumbar paraspinal muscles, left knee medial epicondyle, left ankle medial
and lateral malleolus, and dorsal foot area. He had full muscle strength in the neck, shoulder, elbow,
wrist, hands, hip, and right knee and ankle areas. In the left knee and ankle muscle strength was
four out of five with pain. ROM was normal, except for limited back and left knee flexion and left
ankle flexion/extension. Hand function was normal. Tr. 399-404. A left knee x-ray showed lateral
subluxation of the tibia with narrowing of the medial knee joint compartment related to
osteoarthritis changes and undersurface patellar spurs. Tr. 406. A left ankle x-ray showed rotation
and medial subluxation of the mortise joint with associated small calcifications at the medial aspect
of the ankle joint that may be correlated with avulsion injuries. Advanced osteoarthritis of the
mortise joint was noted. Orthopedic evaluation was advised. Tr. 407. A lumbosacral spine x-ray
showed grade-II anterolisthesis of L5 on S1, bilateral narrowing of the neural foramina.
Spondylosis was suggested. There was also mild levorotoscoliosis of the lumbar spine and
straightening of the normal lumbar lordosis that could be correlated to a muscle spasm. Tr. 408.
As to functional capacity, Dr. Sanz assessed that Velásquez could walk, stand, and sit. His
gait was antalgic, protecting the left ankle and knee. Velásquez could walk without the cane. The
use of an assistive device was for safety purposes due to left knee and ankle pain. He could stand
on toes and heels but had difficulty walking that way due to the left ankle pain. Dr. Sanz noted that
Velásquez was able to get on and off from the exam table by himself. He could also use both hands
to grip, grasp, pinch, finger tap, oppose fingers, button a shirt, and pick up a coin. Tr. 400-402.
Dr. Sanz’s report additionally contains the following information related to treatment
history and activities of daily living. Velásquez reported having twisted his left ankle in 2011 and
gradually felt worse. In April 2016, his low back and left knee also got worse. Dr. Báez, orthopedic
surgeon, recommended knee arthroplasty/replacement. Velásquez had not had physical therapy or

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surgeries. Velásquez claimed not being able to return to work since August 2016 due to aches and
pains. He could independently do activities of daily living such as use the toilet, feed, shower, get
dressed, but needed assistance sometimes with lower body dressing. He also drove himself to the
appointment. Tr. 399.
Consultative expert (“CE”) Dr. Beatriz Trujillo-Miranda, psychiatrist, evaluated Velásquez
on February 21, 2017, and diagnosed major depression, recurrent, moderate. “The claimant
presents an affected prognosis, as he presents episodes of anxiety, sadness, irritability, concern,
mood swings, and behavioral changes.” He was able to manage his goods and money. Tr. 78, 84.
As to Velásquez’s past medical history, he claimed suffering from pain in his ankles, knees, back,
and neck; was under treatment of a primary care physician (Dr. Santiago) and took muscle
relaxants but did not remember the names of the medications; and was not under psychiatric
treatment at the time and had no history of psychiatric hospitalizations. Velásquez reported feeling
nervous and depressed, and having issues with insomnia, tiredness, irritability, mood swings, and
problems concentrating, remembering, and handling pressure and stress. He spent his day at home
resting and watching television. He had limited social contact. His wife took care of the household
chores, cooked for him, and made sure he took his medications and went to his medical
appointments. Tr. 78-80.
Upon evaluation, Dr. Trujillo noted that Velásquez was forty-eight years old, 5’6” tall, and
weighed 200 pounds. Velásquez looked sad, anxious, and anguished. His psychomotor activity
seemed decreased, and his affect was labile. His personal appearance was clean and simple, he
was cooperative, his verbal expression was clear, and he was logical, coherent, and relevant in his
responses. During the tests for concentration and attention, Velásquez looked attentive, but he was
not able to complete subtraction in series. During the evaluation for cognitive functions, he was
oriented in person, time, and place. During the memory tests (immediate, short-term, recent, and
long-term), he showed a decreased level of concentration and attention. His long-term memory
looked diminished. His judgment was good and his insight was adequate. Tr. 81-82. His general
knowledge was adequate for his level of education. He was able to perform simple math
calculations. He was able to complete the test of opposite words but not of interpreting sayings.
Tr. 82.
Dr. Florentino Figueroa assessed on March 6, 2017, that Velásquez had a medically
determinable impairment of significant structural damages on the left ankle as evidenced by the x-

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rays requested by SSA. The x-rays did not support Velásquez’s allegation of a ligament condition.
The record also contained evidence of left knee osteoarthritis and lumbar spine degenerative
changes and spondylolisthesis. And although the consultative evaluation recommended the use of
a cane, there was evidence that he was able to walk without it, such as the video of Velásquez
talking with an investigator. The impairments did not meet or equal an applicable listing, and Dr.
Figueroa assessed the following RFC. Velásquez could occasionally (cumulatively 1/3 or less of
an eight-hour workday) lift and/or carry (including upward pulling) twenty pounds and ten pounds
frequently, stand and/or walk for four hours and required a cane for uneven terrains, sit for about
six hours, and limited pushing and/or pulling with his lower left extremity. Velásquez also had
postural limitations. He could occasionally climb ramps/stairs/ladders/ropes/scaffolds, balance,
stoop (bend at the waist), kneel, crouch, or crawl. He had no manipulative, visual, communicative,
or environmental limitations. Tr. 110, 113-115.
Dr. Hugo Román-Rivera assessed on March 7, 2017, that Velásquez had a mild depressive
disorder which did not meet the diagnostic criteria of Listing 12.04. His limitations to understand,
remember, or apply information; interact with others; concentrate, persist, or maintain pace; and
adapt or manage himself were mild. Dr. Román further found that there was no evidence of mental
health treatment and the evidence reviewed supported a not-severe rating because the primary
functional limitations were physical. Tr. 111.
The claim was denied on March 9, 2017, with a finding that the evidence on record
supported a finding that his conditions affected his ability to perform some work-related duties but
did not preclude him from performing other jobs. Tr. 60, 118, 144-145. BMI at the time was 29.4.
Tr. 100. Dysfunction of major joints and back disorders (discogenic and degenerative) were found
to be severe impairments, while depression was a non-severe impairment. Tr. 110. The Disability
Determination Explanation indicates that Velásquez was found to have the RFC to perform
sedentary work and was not limited to unskilled work because of his impairments and could
perform jobs available in significant numbers in the national economy, such as doing surveillance
through closed circuit television monitors, registration clerk, and telecommunicator. Tr. 116.
Velásquez requested reconsideration. Tr. 148-149.
On May 16, 2017, Dr. Janice Calderón, psychologist, reviewed the record and affirmed the
initial assessment as written, finding no new evidence or worsening of symptoms. Tr. 126. Dr.
Calderón assessed that while his functions reports described lack of concentration and being less

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social, Velásquez’s primary limitations were physical due to chronic pain. The evidence supported
a finding of a non-severe mild depressive disorder. Tr. 128-129.
On May 26, 2017, Dr. Magda Rodríguez affirmed Dr. Figueroa’s RFC assessment as
written. Tr. 127, 130-132.
On May 26, 2017, the claim was denied on reconsideration, affirming the initial denial of
benefits as written. Tr. 64, 126, 128, 133, 135, 148-149.
Velásquez requested a hearing before an ALJ (Tr. 156), and informed that his conditions
had not changed since his March 2017 disability report. Tr. 335.
A hearing was held before ALJ Judith Torres-De Jesus on May 8, 2019. Velásquez testified
that he hurt his ankle at home and didn’t tend to it because he did not have medical insurance. He
got his ankle checked when his knee started hurting as well. In March 2016 he could no longer
work because he was unable to walk, stand, or sit for long period of time. Velásquez testified that
he could sit comfortably between ten to fifteen minutes and had to leave his left leg extended or
elevated, as instructed by a doctor. After that, he would start fidgeting or had to get up. He could
stand for five to ten minutes, tops fifteen minutes. He could walk half-a-block or 200 feet. Since
2016, he used an ankle brace, a knee brace, and a cane, as prescribed by a doctor. When walking,
he could not bend his knee because he felt pain or sliding. His ankle locked at times to the point
where he could not put pressure on his foot. Velásquez further testified that knee surgery was being
considered by his doctors, but not ankle surgery because the damage is beyond repair. He took
medications for inflammation, nerve pain, sleeping, and cholesterol. Some of the side effects
included stomach issues and an ulcer, drowsiness, and fogginess. His wife would help him up from
bed and to the bathroom because he could not put his foot down. She also helped him get dressed
and makes him breakfast. He would sit, lie down, and walk around the house during the day. He
could not help with house chores or yard work or taking care of their two dogs. He drove short
distances, but the sitting position caused his ankle to lock up and he would have to pull over. He
would go to church twice a week and would be able to stand at will to stretch his leg. He socialized
in person with family and friends, and through social media on his phone or tablet. His wife did
the shopping and paid the bills. As to an emotional condition, Velásquez testified being reluctant
to seek help but noticed that he was not as pleasant to be around as before. Tr. 40-53.
Dr. Luis Canepa, psychiatrist and medical expert (“ME”), testified that Velásquez was
diagnosed by the CE with moderate major depressive disorder, recurrent, but since Velásquez was

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not in treatment, the condition was not severe. Dr. Canepa further testified that, with treatment,
there was a high possibility of improvement. Dr. Canepa considered Listing 12.04 and testified
that Velásquez was mildly limited as to B criteria. Tr. 54-55.
Dr. Marieva Puig, vocational expert (“VE”), testified that Velásquez worked as a handyman
or “construction repairer,” and warehouse clerk, both of medium exertional level. The VE asked if
a person with Velásquez’s same age, education, work history, and the following limitations could
work: lift, carry, push, pull twenty pounds occasionally and ten pounds frequently; sit for six hours
in an eight-hour workday; stand and walk for four hours; climb ramps and stairs occasionally;
never climb ladders, ropes, and scaffolds; balance frequently; stoop and kneel occasionally; never
crouch or crawl; never work at unprotected heights; and occasionally work with moving
mechanical parts and operating a motor vehicle. The VE answered that such a person could not
because the prior occupations had a much higher exertional level, but that he could do less than a
full range of light occupations. The VE mentioned unskilled sedentary jobs such as envelope
addresser (DOT code 209.587-010, with 95,000 positions available nationwide and 815 positions
available in Puerto Rico), charge account clerk ( DOT code 205.367-014, with 130,000 positions
available nationwide and 610 in Puerto Rico), and weight tester (DOT code 539.485-010, with
86,000 positions available nationwide and 500 in Puerto Rico). Tr. 55-56.
The ALJ added to the hypothetical the use of a cane for uneven terrain outdoors. The VE
answered that the sedentary occupations mentioned applied. Counsel for Velásquez asked if the
VE’s testimony stilled applied if the claimant had to also use a cane on even terrain. The VE
answered that if he had to use the cane all the time, the cane would then be considered a hand-held
assistive device, eroding the occupational base of sedentary occupations. Tr. 56-57.
Counsel also asked for testimony regarding having to have the leg lifted at all times. The
VE answered that such a person would need a protected or sheltered work environment that
allowed changes in position and would not be able to perform the jobs mentioned. Tr. 57-58.
Counsel asked if a person that could only stand or walk for less than two hours and sit for
less than six hours could do the jobs mentioned. The VE testified that he would not because, being
considered less than the full range of sedentary jobs, there were no jobs in the economy. Tr. 58.
On June 4, 2019, the ALJ found that Velásquez was not disabled under sections 216(i) and
223(d) of the Act. Tr. 21-31. The ALJ sequentially found that Velásquez:

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(1) had not engaged in substantial gainful activity since his alleged onset date of March 30,
2016, through his date last insured of March 31, 2017 (Tr. 23);
(2) had severe impairments: broken left ankle ligament, left knee degenerative joint
disease, and lumbar spondylosis (Tr. 23);
(3) did not have an impairment or combination of impairments that met or medically
equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526), particularly listings 1.02 and 1.04 (Tr. 25);
(4) could not perform past relevant work because he retained the RFC to perform light
work as defined in 20 C.F.R. 404.1567(b) with the following additional limitations: lift, carry,
push, and pull twenty pounds occasionally and ten pounds frequently; sit for six hours and stand
or walk for four hours in an eight-hour workday; occasionally climb ramps and stairs, stoop, and
kneel; frequently balance; never climb ladders, ropes, or scaffolds; never crouch or crawl; never
work at unprotected heights; and occasionally work exposed to moving mechanical parts and
operating a motor vehicle. He should use a cane for outdoors, uneven terrain (Tr. 26); and
(5) through the date last insured and considering Velásquez’s age, education, work
experience, and RFC, there were jobs that existed in significant numbers in the national economy
that Velásquez could perform. Tr. 29.
The ALJ found that the mental impairments of depression and anxiety did not cause more
than minimal limitation in Velásquez’s ability to perform basic mental work activities and were
therefore non-severe. Tr. 23.
On May 30, 2020, the Appeals Council denied Velásquez’s request for review of the ALJ’s
decision, rendering the ALJ’s decision the final decision of the Commissioner. Tr. 1-4, 237-238.
The present complaint followed. ECF No. 1.
DISCUSSION
This court must determine whether there is substantial evidence to support the ALJ’s
determination at step five that Velásquez had the RFC to perform other work in the national
economy. Velásquez argues that the ALJ failed in not having a medical advisor present at the
hearing to testify about his physical conditions and need for a cane, erred in relying on the VE’s
testimony, made lay person medical conclusions, formulated the RFC on her own, and made an
RFC finding that was not supported by substantial evidence. Velásquez also questions what
constitutes significant numbers in the national economy.

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In reviewing the record for substantial evidence that supports or not the ALJ’s sequential
evaluation findings, I am mindful that the claimant is responsible for providing the evidence of an
impairment and its severity; the ALJ is responsible for resolving any evidentiary conflicts and
determining the claimant’s RFC. 20 C.F.R. § 404.1545(a)(3); see also Tremblay v. Sec’y of Health
& Human Servs., 676 F.2d 11, 12 (1st Cir. 1982) (citing Richardson v. Perales, 402 U.S. 389
(1971)). A medically determinable impairment or combination of impairments “must result from
anatomical, physiological, or psychological abnormalities that can be shown by medically
acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R. § 404.1521. It “must be
established by objective medical evidence from an acceptable medical source,” and cannot be
based on a claimant’s “statement of symptoms, a diagnosis, or a medical opinion.” Id. “Objective
medical evidence means signs, laboratory findings, or both.” 20 C.F.R. § 404.1502(f). “Signs
means one or more anatomical, physiological, or psychological abnormalities that can be observed,
apart from [symptoms].” 20 C.F.R. § 404.1502(g). “Laboratory findings means one or more
anatomical, physiological, or psychological phenomena that can be shown by the use of medically
acceptable laboratory diagnostic techniques.” 20 C.F.R. § 404.1502(c). “Diagnostic techniques
include chemical tests (such as blood tests), electrophysiological studies (such as
electrocardiograms and electroencephalograms), medical imaging (such as X–rays), and
psychological tests.” Id.
In this case, there was no ME at the hearing to testify about Velázquez’s physical
conditions. The ALJ did use a ME at the hearing for Velásquez’s mental conditions. I understand
the value of having a medical expert testify at the hearing for Velásquez’s mental conditions,
considering there is no evidence on record of treatment for his depression and anxiety other than
observations by doctors treating his physical conditions and a consultative evaluation by a
psychiatrist hired by the agency. It touches on the need to resolve any potential evidentiary conflict
because the Commissioner “retains a certain obligation to develop an adequate record from which
a reasonable conclusion can be drawn.” Carrillo Marín v. Sec. of Health and Human Services, 758
F.2d 14, 17 (1st Cir. 1985). Plus, Social Security Administration, Hearings, Appeals, and Litigation
Law Manual (HALLEX) § I-2-5-34(A) specifies when the ALJ must obtain a ME opinion (not
discretionary) and when the ALJ may obtain a ME opinion (discretionary). HALLEX § I-2-534(A)(1) specifies that the ALJ must obtain a ME opinion, either in testimony at a hearing or in
responses to written interrogatories, when considering finding if a claimant’s impairment(s)

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medically equals a listing. ME Dr. Canepa testified Velásquez’s mental condition was not severe
and, after considering Listing 12.04, opined that Velásquez was mildly limited as to B criteria. This
testimony was relevant to the ALJ’s step two and three findings regarding Velásquez’s mental
conditions. The use of a ME at the hearing to testify about Velásquez’s mental conditions was
proper.
However, the ALJ was not obliged to use a ME to testify about Velásquez’s physical
conditions. HALLEX § I-2-5-34(A)(2) states that a ME opinion may be obtained to supplement
the record throughout the sequential evaluation process in determining, for example, the severity
of an impairment, to determine whether a claimant’s impairments meet a listing, to clarify clinical
or laboratory findings, to offer an opinion about functional limitations and abilities as per the
record. The record contains Dr. Figueroa’s and Dr. Román’s assessments that Velásquez did not
meet or equal Listing 12.04. The record also contains evidence of Velásquez’s knee and ankle
impairments and the use of a cane, and assessments regarding their impact on his RFC for the
ALJ’s consideration (to be discussed next). Thus, “[t]he ALJ neither overlooked any expert opinion
concerning the matter nor was obliged as a matter of law to call an expert.” Davis B. v. Berryhill,
No. 1:18-cv-00009-LEW, 2019 U.S. Dist. LEXIS 20806, at *6 (D. Me. Feb. 8, 2019) (quoting
HALLEX § I-2-5-34(A)(2); DuBois v. Berryhill, No. 1”17-cv-00076-JDL, 2017 U.S. Dist. LEXIS
198784, at *3 (D. Me. Dec. 3, 2017) (rec. dec., aff’d Feb. 28, 2018)).
As to the ALJ’s RFC finding, the ALJ may rely on a VE’s testimony. The ALJ is required
to express a claimant’s impairments in terms of work-related functions or mental activities, and a
VE’s testimony is relevant to the inquiry insofar as the hypothetical questions posed by the ALJ to
the VE accurately reflect the claimant’s functional work capacity. Arocho v. Sec’y of Health and
Human Services, 670 F.2d 374, 375 (1st Cir. 1982). In other words, a VE’s testimony must be
predicated on a supportable RFC assessment. See 20 C.F.R. § 404.1520(g)(1). Because “a
claimant’s RFC is a medical question, an ALJ’s assessment of it must be supported by some
medical evidence of the claimant’s ability to function in the workplace.” Id. Also, when
determining which work-related limitations to include in the hypothetical question, the ALJ must:
(1) weigh the credibility of a claimant’s subjective complaints, and (2) determine what weight to
assign the medical opinions and assessment of record. See 20 C.F.R. §§ 404.1527, 404.1529. And,
an RFC assessment is “ultimately an administrative determination reserved to the Commissioner.”
Cox v. Astrue, 495 F.3d 614, 619 (8th Cir. 2007) (citing 20 C.F.R. §§ 416.927(e)(2), 416.946). So,

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Velásquez’s argument that the ALJ formulated an RFC assessment on her own as to the use of a
cane (ECF No. 19 at p. 5) fails because the ALJ and only the ALJ is directed and required to do so
by regulation. Also, Velásquez’s assertion that the ALJ’s hypothetical questions were unspecific
and suggestive (ECF No. 19 at p. 6) fails because they include the limitations set forth by the ALJ
in the RFC of less than a full range of light work. But, it is this court’s duty to determine whether
there is substantial evidence to support the ALJ’s RFC assessment and step five finding.
The record, which is short and clear as to Velásquez’s complaints, diagnosed physical
conditions, treatments, and medical assessments, supports this RFC finding portion. The ALJ noted
that all evidence after the date last insured of March 31, 2017, was irrelevant because Velásquez
had to show he was disabled before then. Tr. 27. The ALJ, and I, note that the bulk of the record
evidence pertains to a period outside the date for disability purposes. Tr. 28. But even that evidence
supports the ALJ’s RFC finding.
Velázquez reported to Dr. Sanz having twisted his left ankle in 2011, but there is no medical
evidence of treatment on the record until 2016, although there’s a note that states that treatment
with Dr. Rivera started in 2014. Velásquez suffered from untreated continuous severe left ankle
and knee pain until he eventually sought treatment. Dr. Rivera started treating Velázquez’s pain
with medications in 2016. In October 2016, Dr. Báez, orthopedic surgeon, diagnosed a series of
conditions (bursitis, effusion, degenerative joint disease, chondromalacia of the patella, patella
tenderness, and leg weakness and cramps due to a severe lumbar condition) and opined that
Velásquez needed to see a specialist for a severe lumbar condition and needed an MRI and physical
therapy for his left knee. There is no evidence in the record that those things happened. Orthopedic
evaluation was again advised by Dr. Sanz, consultative expert, in February 2017. 2017 x-rays and
MRIs of the left ankle, left knee, and lumbosacral spine showed their progressive deterioration but
not to the point of disability.
The ALJ found that Velásquez could do light work with some postural limitations, and
should use a cane for outdoors, uneven terrain. “Light work involves lifting no more than 20
pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though
the weight lifted may be very little, a job is in this category when it 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.” 20 C.F.R. § 404.1567(b). Individuals capable of performing light work can also
perform sedentary work, “unless there are additional limiting factors such as loss of fine dexterity

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or inability to sit for long periods of time.” Id. The ALJ found that Velásquez could sit for six hours
and stand or walk for four hours in an eight-hour workday. Dr. Rivera, treating physician, assessed
a less than sedentary RFC.2 The severity of Velásquez’s conditions as assessed by Dr. Rivera is not
supported by this record because there are no evaluation notes or exam findings. However, Dr.
Rivera’s finding that Velásquez had severe left knee degenerative joint disease due to osteoarthritis,
that he could not flex his left knee due to limited ROM, had to use a cane to keep balance and
avoid injury of his left knee and ankle and a knee brace to support the knee joint, and that all other
systems were normal goes in line with the consultative expert evidence. Dr. Sanz evaluated
Velásquez in February 2017 and found left ankle edema and mild deformity. In his review of all
systems, Dr. Sanz found that Velásquez had full strength and ROM, except for limited back and
left knee flexion and left ankle flexion/extension. Dr. Sanz assessed that Velásquez could walk,
stand, and sit. His gait was antalgic, protecting the left ankle and knee, and that he could walk
without a cane. The cane was required for safety purposes due to left knee and ankle pain, which
supports the ALJ’s finding that Velásquez needed to use one on uneven terrain. He could also use
both hands. Dr. Figueroa and Dr. Rodríguez, the state agency medical consultants, assessed a light
RFC. Dr. Figueroa assessed that Velásquez required a cane for uneven terrains, as there was agency
staff and investigator testimony and video evidence that Velásquez could walk straight and without
a cane while on even ground. The Disability Determination Explanation includes an RFC finding
for sedentary work. While the RFC determination pertains to the ALJ, the ALJ considered the
assessments in the decision. Velásquez also self-reported, and was observed, being able to walk
without a cane but limping when he didn’t use it. The VE testified that with the ALJ’s hypothetical
questions, which reflects the ALJ’s RFC assessment, a person like Velásquez would be able to
perform less than a full range of light occupations, such as unskilled sedentary jobs. I conclude
that the ALJ’s RFC determination is supported by substantial evidence.
Velásquez’s claim that the ALJ made improper medical conclusions is without merit as
well. The ALJ is a lay person who is generally unqualified to interpret “raw, technical medical
data.” Berríos v. Sec’y of Health & Human Servs., 796 F.2d 574, 576 (1st Cir. 1986). She may not
substitute her “own impression of an individual’s health for uncontroverted medical opinion.”
2

Sedentary work is defined as work that requires lifting no more than ten pounds at a time, sitting
for at least six hours out of an eight-hour workday, occasional walking and standing for no more than about
two hours a day, and good use of the hands and fingers for repetitive hand-finger actions. 20 C.F.R. §
404.1567(a); SSR 83-10.

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However, an ALJ may render a common-sense judgment regarding an individual’s capacities, so
long as she “does not overstep the bounds of a lay person’s competence and render a medical
judgment.” Gordils v. Sec’y of Health & Human Servs., 921 F.2d 327, 329 (1st Cir. 1990). Here,
the ALJ considered the treatment evidence and evidence by the State Agency medical consultants
or psychological consultants, who “are highly qualified medical sources who are also experts in
the evaluation of medical issues in disability claims under the Act” (SSR 17-2p). Along with other
evidence in the record, the ALJ made her RFC determination.
Lastly, Velásquez questions the meaning of significant numbers in the national economy.
ECF No. 19 at p. 8. The Commissioner considers “that work exists in the national economy when
it exists in significant numbers either in the region where you live or in several other regions of
the country” regardless of whether “(1) work exists in the immediate area in which you live; (2)
[a] specific job vacancy exists for you; or (3) [y]ou would be hired if you applied for work.” 20
C.F.R. § 404.1566(a). As already discussed, a RFC of light work with the additional limitations
determined by the ALJ was appropriate, and the VE testified that there existed jobs in the national
economy that Velásquez could perform. And, “[t]he judicial officer determines what constitutes a
significant number of jobs.” Curtis v. Sullivan, 808 F. Supp. 917, 926 (D.N.H. 1992) (citing
Martínez v. Heckler, 807 F.2d 771, 775 (9th Cir. 1986)). See Vining v. Astrue, 720 F. Supp. 2d 126,
136-138 (D. Me. 2010) (quoting Hall v. Bowen, 837 F.2d 272, 275 (6th Cir. 1988) (“‘[W]hen there
is testimony that a significant number of jobs exists for which a claimant is qualified, it is
immaterial that this number is a small percentage of the total number of jobs in a given area.’”)
Ultimately, it is the Commissioner’s responsibility to determine issues of credibility, draw
inferences from the record evidence, and resolve conflicts in the evidence (see Ortiz, 955 F.2d at
769 (citing Rodríguez, 647 F.2d at 222); Evangelista v. Sec’y of Health & Human Servs., 826 F.2d
136, 141 (1st Cir. 1987)). After thoroughly and carefully reviewing the record, I find that there is
substantial evidence to support the ALJ’s findings in this case.
CONCLUSION
For the foregoing reasons, the Commissioner’s decision is AFFIRMED.

Velásquez III v. Commissioner of Social Security, Civil No. 20-1354 (BJM)

IT IS SO ORDERED.
In San Juan, Puerto Rico, this 31st day of March, 2022.
s/Bruce J. McGiverin
BRUCE J. MCGIVERIN
United States Magistrate Judge

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