Ramos-Troche v. Commissioner of Social Security

Filing 30

OPINION AND ORDER affirming the decision of the Commissioner of Social Security. Signed by US Magistrate Judge Giselle Lopez-Soler on 3/27/2024. (PGA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MARGARITA R.T.1,
Plaintiff,
Civil No. 23-1028 (GLS)
v.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

OPINION AND ORDER
Plaintiff seeks review of the Commissioner of the Social Security Administration’s denial
of her application for disability insurance benefits. Docket No. 2. Plaintiff sustains that the decision
should be reversed because it was not supported by substantial evidence and was based on incorrect
legal standards. Docket No. 24. The Commissioner opposed. Docket No. 29. The parties consented
to the entry of judgment by a United States Magistrate Judge under the provisions of 28 U.S.C. §
636(c). Docket No. 22. After careful consideration of the administrative record and the parties’
briefs, the Commissioner’s decision denying disability benefits is AFFIRMED.
I.

Procedural Background

Plaintiff worked as a cashier at a supermarket from 2003-2008 and as a sewing machine
operator (seamstress) at a factory in Puerto Rico from 2008-2017. Tr. 42, 411, 700, 788.2 Plaintiff
filed an application for disability insurance benefits claiming that, as of March 28, 2017, the
following conditions limited her ability to work: degenerative disc disease, herniated cervical
discs, fibromyalgia, arthritis, carpal tunnel syndrome, depression, anxiety, insomnia, nervousness,
headaches, thyroid, and lumbar spine issues. Tr. 390-391. The application was denied initially and
upon reconsideration. Tr. 390-400, 414-425. Plaintiff requested a hearing before an Administrative
Law Judge (“ALJ”) and, on March 10, 2021, a hearing was held via telephone before ALJ Peter
1

Plaintiff’s last name is omitted for privacy reasons.

2

“Tr.” refers to the transcript of the record of proceedings.

Lee. Tr. 52-76. Plaintiff testified with the assistance of an interpreter and was represented by a
non-attorney representative. Id. Vocational Expert Christine Spaulding also testified. Id. The ALJ
issued a decision finding that Plaintiff was not disabled, as defined in the Social Security Act, at
any time from the onset date of March 28, 2017, through December 31, 2021, the last date insured.
Tr. 43-44. Plaintiff asked the Appeals Council to review but the request was denied on December
6, 2022 (Tr. 1-8), rendering the Commissioner’s decision the final decision for review by this
Court. On January 23, 2023, Plaintiff initiated this action and both parties filed memoranda in
support of their positions. Docket Nos. 2, 24, 29.
II.
A.

Legal Framework

Disability Determination by the SSA: Five Step Process

To receive benefits under the Social Security Act, the ultimate question is whether plaintiff
is disabled within the meaning of 42 U.S.C. §423(d). Disability is defined as the inability 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. See id. The severity of the impairment must be
such that the claimant “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 work which exists in the
national economy.” 42 U.S.C. §423(d)(2)(A). The burden of proving disability rests on plaintiff.
42 U.S.C. § 423(d)(5)(A); Bowen v. Yuckert, 482 U.S. 137, 146 (1987).
The Commissioner engages in a five-step sequential evaluation to determine whether a
claimant is disabled. 20 C.F.R. §404.1520; Bowen, 482 U.S. at 140-42. At step one, the ALJ
determines whether the claimant is engaged in “substantial gainful activity” and, if so, the claimant
is not disabled. 20 C.F.R. §404.1520(b). If not engaged in substantial gainful activity, the
Commissioner must determine whether the claimant has a medically severe impairment or
combination of impairments that significantly limit claimant’s physical or mental ability to do
basic work activities. 20 C.F.R. §404.1520(c). The step two severity requirement imposes a de
minimis burden, which is designed to screen out groundless claims. McDonald v. Secretary, 795
F.2d 1118, 1123 (1st Cir. 1986). If the impairment or combination of impairments is severe, the
third step applies. The ALJ must determine whether the claimant’s severe impairments meet the
requirements of a “listed impairment”, which the Commissioner acknowledges are so severe as to
preclude substantial gainful activity. See 20 C.F.R. §404.1520(d); 20 C.F.R. Part 404, Subpart P,
2

App. 1. If the claimant has a “listed impairment” or an impairment equivalent in severity to a
“listed impairment”, the claimant is considered disabled. If the claimant’s impairment does not
meet the severity of a “listed impairment”, the ALJ must determine the claimant’s Residual
Function Capacity (“RFC”). 20 C.F.R. §404.1520(e). An individual’s RFC is his or her ability to
do physical and mental work activities on a sustained basis despite limitations due to impairments.
20 C.F.R. §404.1520(e); §404.1545(a)(1). At step four, the ALJ must determine, taking into
consideration the RFC, whether the claimant can perform past relevant work. 20 C.F.R.
§404.1520(f); §416.920(f). If not, then the fifth and final step applies.
At steps one through four, the claimant has the burden of proving he cannot return to his
former employment due to the alleged disability. Santiago v. Secretary, 944 F.2d 1, 5 (1st Cir.
1991). However, at step five, the Commissioner has the burden to prove the existence of other jobs
in the national economy that claimant can perform. 20 C.F.R. §404.1520(g); Ortiz v. Sec’y of
Health & Hum. Servs., 890 F.2d 520, 524 (1st Cir. 1989). If there are none, the claimant is entitled
to disability benefits. 20 C.F.R. §404.1520(f).
B.

Standard of Review

The Court may affirm, modify, reverse, or remand the decision of the Commissioner based
on the pleadings and transcript. 42 U.S.C. §405(g). The Court’s role is limited to deciding whether
the ALJ’s decision is supported by substantial evidence in the record and based on a correct legal
standard. See id.; Seavey v. Barnhart, 276 F.3d 1, 9 (1st Cir. 2001); Manso-Pizarro v. Secretary, 76
F.3d 15, 16 (1st Cir. 1996); Ortiz v. Secretary, 955 F.2d 765, 769 (1st Cir. 1991). The
Commissioner’s findings of fact are conclusive when supported by substantial evidence but not
when obtained by ignoring evidence, misapplying the law, or judging matters entrusted to experts.
Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999). “Substantial evidence” is more than a “mere
scintilla”; it is such relevant evidence that a reasonable mind might accept as adequate to support
a conclusion. Purdy v. Berryhill, 887 F.3d 7, 13 (1st Cir. 2018). Under the substantial evidence
standard, “a court looks to an existing administrative record and asks whether it contains ‘sufficient
evidence’ to support the agency’s factual determinations” and “the threshold for such evidentiary
sufficiency is not high”. Biestek v. Berryhill, ___ U.S. ___, 139 S. Ct. 1148, 1154 (2019).
A determination of substantiality must be based on the record. Ortiz, 955 F.2d at 769. It is
the Commissioner’s responsibility to weigh credibility and to draw inferences from the evidence.
Rodríguez v. Secretary, 647 F.2d 218, 222 (1st Cir. 1981). Courts will not second guess the
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Commissioner’s resolution of conflicting evidence. Irlanda Ortiz v. Secretary, 955 F.2d 765, 769
(1st Cir. 1991). The Commissioner’s findings must be upheld if a reasonable mind, viewing the
evidence in the record, could accept them as adequate to support his conclusion. Rodríguez, 647
F.2d at 222. And even if there is substantial evidence, which could arguably justify a different
conclusion, the Court must uphold the ALJ’s decision if supported by substantial evidence. 20
C.F.R. §404.1546(c); Rodríguez Pagán v. Sec’y of Health & Hum. Servs., 819 F.2d 1, 3 (1st
Cir.1987).
III.

Discussion

At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity
since March 28, 2017, the alleged onset of disability. Tr. 36. At step two, the ALJ determined that
Plaintiff had severe impairments pursuant to 20 C.F.R. §404.1520(c): degenerative disc disease
with radiculopathy, fibromyalgia, and migraine headaches. Tr. 36. The ALJ further found that
Plaintiff had impairments that were not severe as these did not cause, individually or in
combination with other impairments, more than minimal work-related difficulties for a continuous
period of at least 12 months. Tr. 36. The non-severe impairments were Plaintiff’s gastroesophageal
reflux disease (GERD), hypothyroidism, hyperlipidemia, and chest pain and palpitations. Id.
The ALJ further found that Plaintiff’s depression and anxiety were non-severe under 20
C.F.R. § 404.1520a(d)(1), after considering four broad areas of mental functioning, known as the
“paragraph B criteria”: (1) understanding, remembering, or applying information; (2) interacting
with others; (3) concentrating, persisting, or maintaining pace; and (4) adapting or managing
themselves (Tr. 36-38). See 20 C.F.R. Pt. 404, Subpart P, Appendix 1. The ALJ found that Plaintiff
had a mild limitation in understanding, remembering, or applying information. The ALJ noted that
Plaintiff’s mental examinations revealed that her cognitive functioning was intact, that she had
average intellectual functioning and normal memory. Tr. 37. Additionally, the ALJ found that
there was no objective medical finding of serious neurological loss and that Plaintiff described
having modest immediate recall difficulties. Id. The ALJ found that Plaintiff’s ability to interact
with others was mildly limited because there was no evidence of serious paranoia or agoraphobia
despite Plaintiff’s report of having difficulties socializing. Tr. 37. The evidence did not reveal that
Plaintiff had serious deficits in communication and behavior and, according to the treatment notes,
paranoia or personal conflict was denied. Id. The ALJ also found that Plaintiff had mild limitations
in concentrating, persisting, or maintaining pace because there was evidence of a very mild
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cognitive impairment. Tr. 37. Plaintiff was also found to have linear and coherent thinking with
fair judgment and insight. Id. As to Plaintiff’s ability to adapt or manage herself, the ALJ
concluded that the record did not contain evidence of decompensation or other substantial reaction
to stressful circumstances. The ALJ noted that Plaintiff had never received inpatient psychiatric
treatment and that her mental health treatment was limited to counseling and medication
management. The ALJ also noted that Plaintiff participated in a wide range of activities of daily
living and performed independent care activities. Tr. 37. At step two of the sequential analysis, the
ALJ thus found that Plaintiff’s mental impairments caused no more than mild limitations in the
four functional areas (her ability to perform basic mental work activities) and was non-severe. Tr.
36. See 20 C.F.R. § 404.1520a(d)(1); Robles v. Comm’r of Soc. Sec., 2021 WL 3553788, at *3
(D.P.R. Aug. 11, 2021). At the conclusion of the step two analysis, the ALJ stated that the RFC
analysis to follow at step three “reflect[ed] the degree of limitation the undersigned has found in
the “paragraph B” mental function analysis.” Tr. 38.
At the third step of the sequential analysis, the ALJ concluded that Plaintiff did not
have an impairment or combination of impairments that met the severity of a “listed impairment”
in 20 C.F.R. Part 404, Subpart P. App. 1 and proceeded to determine Plaintiff’s RFC. Tr. 39-42.
The ALJ stated that, in formulating the RFC, he had to consider all impairments, including those
that were non-severe (Tr. 36), and that his findings at step two regarding Plaintiff’s mental
functioning were considered. The ALJ concluded that Plaintiff had the RFC to perform light
work, as defined in 20 C.F.R. 404.1567(b) except that “she can never climb ropes, ladders, and
scaffolds and cannot work with exposure to unprotected heights or hazardous machinery. She
can occasionally climb stairs and ramps; never crawl; and occasionally kneel, stoop, and crouch.
She can frequently balance. The claimant must be able to wear shaded or tinted lenses during
work hours.” Tr. 39. The ALJ deemed that Plaintiff was able to perform her past relevant work
as a sewing machine operator, as defined in the Dictionary of Occupational Titles. Tr. 42.
Consequently, the ALJ determined that Plaintiff was not disabled within the meaning of the
Social Security Act. Tr. 43-44.
A.

Plaintiff’s Allegations of Error

Plaintiff moves to reverse the Commissioner’s decision on the following grounds: (1) the
ALJ was not qualified to assess an RFC based on raw medical data, (2) the ALJ erred by not

5

including Plaintiff’s mental limitations in his RFC finding, and (3) the ALJ failed to properly
assess the medical opinion evidence. Docket No. 24. The Court finds no error.
1.

Physical RFC Assessment

Plaintiff contends that the ALJ erred because he considered medical evidence from
Riverside Medical Group (Tr. 1247-1422) on Plaintiff’s spinal pain and surgery without obtaining
an assessment of such evidence from medical experts.3 Docket No. 24 at pp. 17-19. The
Commissioner counters that the ALJ could interpret such evidence and formulate an RFC. Docket
No. 29 at 8-10.
Generally, the ALJ is a lay person who is unqualified to interpret “raw technical medical
data.” Berrios v. Sec’y of Health & Hum. Servs., 796 F.2d 574, 576 (1st Cir. 1986). As such, the
ALJ should not formulate an RFC based on a bare medical record. Gordils v. Sec’y of Health &
Hum. Servs., 921 F.2d 327, 329 (1st Cir. 1990). The ALJ must also avoid substituting
uncontroverted medical opinion for his own impressions and needs a medical expert to “translate
medical evidence into functional terms.” Segundo-Méndez v. Comm’r of Soc. Sec., 2023 WL
6356644, at *10 (D.P.R. Sept. 29, 2023). But an ALJ may render a common-sense judgment
regarding an individual’s capacities, so long as he “does not overstep the bounds of a lay person’s
competence and render a medical judgment.” Gordils, 921 F.2d at 329. Such judgments are
possible “where evidence shows a ‘relatively mild physical impairment posing, to the layperson’s
eye, no significant restrictions.” Giandomenico v. U.S. Soc. Sec. Admin., Acting Comm’r, 2017
WL 5484657, at *4 (D.N.H. Nov. 15, 2017) (quoting Roberts v. Barnhart, 67 Fed. Appx. 621, 62223 (1st Cir. 2003)). The ALJ here did consider the DDS’s limitations assessment and the evidence
in the record, including the subsequently received medical evidence, and applied common sense
to determine Plaintiff’s physical RFC. Gordils, 921 F.2d at 329.
The ALJ began by acknowledging Plaintiff’s testimony at the hearing. Tr. 40. Claimant
testified as to the constant pain in her lower back which is aggravated by prolonged standing or
walking. Id. She stated that she can stay in one position for ten minutes at a time and can walk just
one block. Plaintiff testified that despite receiving injections and physical therapy to relieve her
pain, her symptoms remained the same. Id. And that she uses a walker for assistance and had

The Disability Determination Service (“DDS”) issued an administrative finding regarding Plaintiff’s
physical functional limitations, which the ALJ discussed in his decision. But that analysis of the DDS was conducted
without the benefit of the medical evidence of the Riverside Medical Group. Tr. 41, 427-438.
3

6

trouble performing daily activities, such as dressing and shopping. Id. The ALJ noted that,
although Plaintiff’s impairments could reasonably be expected to cause the alleged symptoms, the
intensity, persistence, and limiting effects of the symptoms were inconsistent with evidence in the
record. Tr. 40.
The ALJ discussed examinations, procedures, and diagnoses from the alleged onset date
through Plaintiff’s last insured date. From February 2017 until 2018, Plaintiff visited Dr. Héctor
Pérez-Feliciano, a general practitioner. Tr. 40, 839-908. Plaintiff complained of upper back
spasms, back pain, joint pain, and headaches. Tr. 41, 879, 791-99, 863-64, 869-871, 881-83, 898.
However, her physical examinations were normal with musculoskeletal findings limited to back
spasms. Plaintiff was deemed to have normal gait, station, and extremity function. Tr. 878, 882.
Plaintiff also described a wide range of activities of daily living. Tr. 865, 869-70, 880, 883, 889,
892. The ALJ additionally noted that Plaintiff had visited a pain management physician in mid2018 who evaluated Plaintiff’s pain and treated it with injections. Tr. 40, 830-38.
In his RFC explanation, the ALJ noted that Plaintiff had an examination with Dr. Betty
Vekhnis, an SSA consultative examiner, on August 19, 2019. Tr. 41, 982-987. Plaintiff reported
symptoms of back and neck pain, and poor sleep. Tr. 982. Her cervical spine showed no vertebral
tenderness, no abnormal tilt, and her range was full. Tr. 983. Her lumbar spine showed no vertebral
tenderness, no spams, and she could flex to 60 degrees. Id. Her gait was normal, and she did not
use an assistive device for walking. Id. The ALJ noted that Dr. Vekhnis’ findings supported an
RFC for light work with moderate postural limitations to account for the reduced spinal mobility.
Tr. 41. The ALJ further discussed medical evidence from late 2019 and 2020 that accounted for
Plaintiff’s back and neck pain. However, Plaintiff physical examinations showed intact strength,
mobility, and non-focal neurological findings. Tr. 41, 1007-1011, 1037-38, 1040, 1043, 1055,
1086. The ALJ next discussed the DDS’s physical functional limitation assessment. Although the
DDS’s findings indicated that Plaintiff could perform the full range of medium work, which was
somewhat supported by the physical examination findings in the record, the ALJ noted that the
DDS did not consider the subsequently received medical evidence of Plaintiff’s treatment at
Riverside Medical Group, which described spinal degeneration and surgery to ease the pain. Tr.
41, 422-424, 435-37,1247-1422. The ALJ thus deemed DDS’s assessment unpersuasive.
Plaintiff started visiting Riverside Medical Group on June 4, 2019, with complaints of neck
and back pain. Tr. 1255. Physical therapy was recommended. Plaintiff reported that, after several
7

weeks of physical therapy, she noticed no difference in her back and neck pain. Tr. 1263.
Throughout 2019, Plaintiff reported constant back and neck pain. Tr. 1265-66, 1277, 1294-98. An
MRI was performed on October 25, 2019, which showed that Plaintiff had significant degenerative
disc disease at levels L3-L4 and L4-L5 with broad disc herniation. Tr. 1277. The ALJ noted that
despite her impairments and symptoms, Plaintiff was able to make an extended trip to Puerto Rico
in late 2019 after an epidural steroid injection, and that she reported relief despite some residual
pain. Tr. 41, 1273-1277, 1294-1298. Plaintiff continued experimenting pain during 2020. Tr. 1312,
1316-22, 1335-38, 1341-46. On November 12, 2020, Plaintiff’s doctor suggested surgery. Tr.
1378-83. In February 2021, Dr. Milad Alam performed a spinal fusion on Plaintiff to help with her
pain. Tr. 1408-1420. Post-surgery notes describe significant improvement in lower extremity
radicular symptoms. Tr. 1408, 1412-13, 1415. Plaintiff’s gait was adequate, and she had full
strength and sensation in her extremities. Tr. 1412, 1419. Progress notes show that “[p]atient is
doing well overall and pain is overall well-controlled.” Tr. 1408.
The ALJ acknowledged Plaintiff’s surgery and reviewed treatment notes from her recovery
process, along with evidence dating back to her alleged onset date. The ALJ concluded that
“[Plaintiff’s] effective improvement of pain symptoms and her intact physical functioning support
a conclusion that [Plaintiff] remains able to perform a reduced range of light work.” Tr. 41. While
the evidence prior to surgery and post-surgery was not considered by the DDS and no medical
expert assessed a physical RFC accounting for the subsequently received medical evidence, the
evidence in the record supports the ALJ’s assessment of Plaintiff’s RFC. Marino v. U.S. Soc. Sec.
Admin., 2018 WL 4489291, at *6 (D.N.H. Sept. 19, 2018) (“The ALJ did not improperly rely on
raw medical data in reaching his conclusion, but instead focused on treatment notes interpreting
raw diagnostic results and symptom comparisons across the record.”) (Emphasis added). See also
Davis v. Colvin, 2015 WL 3937423, at *2, n.2 (D. Me. June 25, 2015) (“To the extent that the
[claimant] means to contend that a formal physical RFC completed by a medical source must be
in the record in order for an [ALJ] to assign a physical RFC to a claimant, [plaintiff] is incorrect.”).
Plaintiff suggests that the medical notes from Riverside Medical Group were too complex
to be assessed by a non-medical expert. Docket No. 24 at p. 18. However, such notes mention
terms that, as the Commissioner correctly points out, are within the understanding of a lay person’s

8

competence.4 See e.g., Rudd v. Comm’r of Soc. Sec., 531 F.App’x 719, 725-727 (6th Cir. 2013)
(the ALJ did not improperly interpret raw data where x-ray images had been interpreted by a
radiologist who used relatable terms such as “no significant deformity, “only discrete arthritic
changes,” and “good alignment”). The ALJ here did not overstep the bounds of a lay person’s
competence and applied his common sense to determine the RFC.5
2.

Analysis of Mild Mental Functional Limitations in the RFC

Plaintiff next argues that the ALJ erred by failing to account for the impact of her mild
mental limitations in the RFC analysis. Docket No. 24 at pp. 19-20. The Commissioner contends
that, if an ALJ finds a limitation to be minimal, it is not erroneous to omit the limitation from the
RFC assessment. Docket No. 29 at pp. 13-15. The ALJ was not obliged to include minimal mental
deficiencies in the RFC determination.
“The RFC assessment comes into play at step four, where the ALJ determines whether,
despite her limitations, the claimant retains capacity to perform his past relevant work.” D.C. v.
Comm’r of Soc. Sec., 2021 WL 1851830 (D. N.J., May 10, 2021); 20 C.F.R. § 404.1545(a)(5)(i).
A claimant retains the capacity to perform her past relevant work when she can perform the
functional demands and duties of the job as actually performed or as generally required by
employers throughout the national economy. See SSR 82-61, 1982 WL 31387 at *2; RamosRodríguez v. Comm'r of Soc. Sec., 2012 WL 2120027, at *5 (D.P.R.). In making this
determination, the ALJ must consider all the evidence in the record, including claimant's
symptoms, laboratory findings, daily activities, medical sources statements, and medical
history. See 20 C.F.R. § 404.1545(a)(1); SSR 96-8P. The RFC determination is a “function-by-

Medical notes from Riverside Medical Group refer to terms such as “review of systems:
musculoskeletal: positive for back pain and neck pain” (Tr. 1257); “degenerative discs disease cervical and lumbar
spine” (Tr. 1257); “limited range of motion in both the neck and lower back” (Tr. 1264); “Neurologic exam reveals
no deficits in the arms or the legs. Strengthen sensation appear to be intact. Reflexes appear to be intact.” (Tr. 1264);
“Cervical spine range of motion: full” (Tr. 1276); “Lumbar spine range of motion: limited to secondary pain.” (Tr.
1276); “5/5 strength” in upper and lower extremities (Tr. 1269-70, 1276-77, 1368); “Able to perform tandem walking”
(Tr. 1368); “Rapid grip and release: within normal” (Tr. 1368); and “Patient is doing well overall and pain is overall
well-controlled” and “The patient reports significant improvement in her bilateral lower extremity radicular symptoms
since undergoing her [surgery]” (Tr. 1408).
4

5
As an additional ground for a remand, Plaintiff has suggested— but failed to develop— an argument
to the effect that the evidence from Riverside Medical Group (Tr. 1247-1422) was “not examined by any medical
professional.” However, such an argument is deemed waived. Citizens Awareness Network, Inc. v. U.S. Nuclear
Regulations Comm’n, 59 F.3d 284, 293-94 (1st Cir. 1995) (issues averted in a perfunctorily manner are waived). In
any event, as discussed supra, the ALJ could consider the evidence and make common-sense judgments.

9

function assessment based upon all of the relevant evidence of an individual’s ability to do workrelated activities despite the limitations caused by his or her impairment.” See 20 C.F.R. §
404.1545(a).
The RFC determination primarily focuses on an “assessment of an individual’s ability to
do sustained work-related physical and mental activities in a work setting on a regular and
continuing basis. See SSR 96-8P: “Titles II & XVI: Assessing Residual Functional Capacity in
Initial Claims” (S.S.A. July 2, 1996). Thus, it is essential for the ALJ to evaluate the effect that
any mental impairment may have on work-related activities, such as understanding, carrying out
and remembering instructions, using judgment in making work-related decisions, responding
appropriately to supervision, co-workers, and work situations, and dealing with changes in a
routine work setting. Id. However, the ALJ is only required to consider evidence that is credible.
And if the ALJ “concludes that a claimant’s deficiency is ‘so minimal or negligible that ... it would
not limit her ability’ to perform required work tasks, the ALJ may exclude that deficiency or
limitation from the RFC without error.” See D.C. v. Comm’r of Soc. Sec., 2021 WL 1851830, at
*5 (citing Ramírez v. Barnhart, 372 F.3d 546, 555 (3rd Cir. 2004)); Lee v. Commissioner, 248
Fed. Appx. 458, 462 (3rd Cir. 2007) (“there was no need to include a mental impairment in the
hypothetical as the determination that her condition was not severe was supported by substantial
evidence”)).
The ALJ did consider Plaintiff’s mental impairments when formulating his RFC. Tr. 3738. At step two of the sequential analysis, the ALJ concluded that the Plaintiff’s medically
determinable impairments of depression and anxiety did not cause more that minimal limitations
in her ability to perform basic mental work activities and were non-severe. Tr. 36. In reaching a
determination that Plaintiff has mild mental limitations (paragraph B criteria), the ALJ considered
the evidence in the record. Tr. 36. The ALJ explained that the RFC determination reflected the
degree of limitation he found in the paragraph B mental function analysis. Tr. 37-38. “This
discussion and incorporation by reference [of the paragraph B criteria] is sufficient to satisfy the
requirement that the ALJ consider all of Plaintiff’s impairments in formulating the RFC.” D.C. v.
Comm’r of Soc. Sec., 2021 WL 1851830, at *5. See also Muñoz v. Comm’r of Soc. Sec., 2024
WL 1172666, at *9 (D.P.R. Mar. 19, 2024); Robles v. Comm’r of Soc. Sec., 2021 WL 3553788,
at *4; Makowski v. Comm’r of Soc. Sec., 2017 WL 3151243, at *7 (D.N.J. July 24, 2017). “This
is especially true when […] the mental impairment found at step two was not severe but mild.”
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Robles, 2021 WL 3553788, at *4 (internal citations omitted). See also D.C. v. Comm’r of Soc.
Sec., 2021 WL 1851830, at *6; Chandler v. Berryhill, 2018 WL 3575258, at *3, *6 (E.D. pa. July
24, 2018). This was the case here. The ALJ’s evaluation of the paragraph B criteria (which resulted
in a finding that the mental impairment was not severe) and his incorporation of that analysis to
the formulation of the RFC was sufficient.
3.

Medical Evidence Assessment

At the hearing, Plaintiff’s representative informed the ALJ that she needed time to submit
additional evidence. The ALJ informed Plaintiff’s representative that the record would stay open
for 30 days after the hearing. Tr. 60. The ALJ also informed Plaintiff’s representative that there
were some exhibits (2F, 5F, 11F, and 16F pages 27-30, 32-33) that were in Spanish and the ALJ
inquired as to whether those would be translated. Tr. 60. Plaintiff’s representative asked for time
to consider the issue and the ALJ agreed, informing that she should inform whether translations
would be submitted and whether the documents were essential to the case. Tr. 60. On April 16,
2021, Plaintiff’s representative informed the ALJ that the not-for-profit agency which represented
Plaintiff did not have funds for translations. But that only exhibits 2F and 5F were essential to
Plaintiff’s disability claim. Tr. 788-90. Both exhibits were translated and considered by the ALJ.
Tr. 34. The exhibits were considered in the ALJ’s assessment of the paragraph B criteria and the
RFC determination. Tr. 37, 40.
Plaintiff argues that the ALJ failed by not requesting an official translation of the
documents. Docket No. 24 at pp. 22-23. Plaintiff sustains that the translation of the exhibits should
have been done consistent with the SSA Hearings, Appeals, and Litigation Manual (“HALLEX”),
specifically HALLEX I-2-5-76, and the SSA Program Operations Manual System (“POMS”), DI
23045.001. Id. at pp. 21-22. Although the First Circuit has not addressed whether HALLEX has
binding force over an ALJ, “[it] is an open question in this circuit whether an ALJ’s failure to
comply with HALLEX can ever constitute reversible error.” Rosario-Torres v. Comm’r of Soc.
Sec., 2022 WL 4091889, at *4 (D.P.R. Sept. 6, 2022) (citing Coppola v. Colvin, 2014 WL 677138,
at *6 (D.N.H. Feb. 21, 2014)) (emphasis in original). See also Green v. Astrue, 2013 WL 636962,
at *10, n.5 (D. Mass. Feb. 20, 2013) (HALLEX lacks the force of law and is not enforceable) (ref.
Bordes v. Comm’r of Soc. Sec., 235 Fed. Appx. 853, 859 (3d Cir. 2007)); Moore v. Apfel, 216
F.3d 864, 868 (9th Cir. 2000) (neither HALLEX nor POMS impose judicially enforceable duties).
Similarly, the First Circuit has questioned whether the POMS has a binding effect on the agency’s
11

decision-making process. Rose v. Shalala, 34 F.3d 13, 17, n.2 (1st Cir. 1994); Avery v. Sec’y of
Health & Hum. Servs., 797 F.2d 861, 863 (1st Cir. 1986); Bitsacos v. Barnhart, 353 F.Supp.2d
161, 168-69 (D. Mass. Jan. 21, 2005). And even courts that have found that failure to comply with
HALLEX can constitute reversible error have required claimants to demonstrate prejudice.
Rosario-Torres, 2022 WL 4091889, at *4. Plaintiff has not made such a showing. Neither has
Plaintiff explained how a remand would lead to a different result or that the translations were
somewhat faulty or incorrect. The ALJ’s non-compliance with HALLEX or POMS does not
warrant remand. Shinseki v. Sanders, 556 U.S. 396, 409-410 (2009) (“the burden of showing that
an error is harmful falls upon the party attacking the agency’s determination”); Gill v. Colvin,
2014 WL 12906901, at *4 (1st Cir. Apr. 9, 2014) (unpublished) (remand not necessary where it
would not lead to different result); Ward v. Comm’r of Soc. Sec., 211 F.3d 652, 656 (1st Cir. 2000)
(“While an error of law by the ALJ may necessitate a remand, a remand is not essential if it will
amount to no more than an empty exercise.”).
IV.

Conclusion

The ALJ evaluated the record as a whole and his decision is supported by substantial
evidence in the administrative record using correct legal standards. After thoroughly and carefully
reviewing the record, and there being no good cause to reverse or remand, the final decision of the
Commissioner is AFFIRMED, and this action is dismissed.
Judgment is to be entered accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 27th day of March 2024.

s/Giselle López-Soler
GISELLE LÓPEZ-SOLER
United States Magistrate Judge

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