1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF PUERTO RICO
4 ELVIRA GARCED-URBINA,
5 Plaintiff,
6 CIVIL NO. 24-1484 (HRV) v. 7
8 FRANK BISIGNANO, Commissioner of Social Security, 9 10 Defendant.
12 OPINION AND ORDER 13 Elvira Garced-Urbina (hereinafter “Ms. Garced” or “Plaintiff”), seeks review of the 14 final administrative decision of the Commissioner of Social Security (“the 15 16 Commissioner”) denying her claim for disability benefits under the Social Security Act 17 (“the Act”). She requests that the Commissioner’s decision be reversed and that the case 18 be remanded for further administrative proceedings. The Commissioner opposes, 19 arguing that the decision should be affirmed because it is based on substantial evidence. 20 After careful consideration of the record, and for the reasons outlined below, the 21 22 Commissioner’s decision is AFFIRMED. 23 I. LEGAL FRAMEWORK 24 A. Standard of Review 25 Pursuant to 42 U.S.C. § 405(g), any individual may obtain review of a final 26 decision of the Commissioner. Under said statutory provision, the Court is empowered 27 28 1 1 “to enter, upon the pleadings and transcript of the record, a judgment affirming, 2 modifying, or reversing the decision of the Commissioner….” Id. In addition, the statute 3 provides that if supported by substantial evidence, the findings of the Commissioner as 4 to any fact, shall be conclusive. Id. 5 A reviewing Court must uphold the decision of the Commissioner as long as the 6 7 Administrative Law Judge (“ALJ”) applied the correct legal principles, and the 8 determination is supported by substantial evidence. Seavey v. Barnhart, 276 F.3d 1, 9 9 (1st Cir. 2001). The scope of my review is, therefore, limited. I am tasked with 10 determining whether the ALJ employed the proper legal standards and focused facts 11 upon the proper quantum of evidence. See Ward v. Comm’r of Soc. Sec., 211 F.3d 652, 12 13 655 (1st Cir. 2000); see also Manso-Pizarro v. Sec’y of Health and Human Servs., 76 14 F.3d 15, 16 (1st Cir. 1996). 15 To meet the evidentiary benchmark, more than a scintilla of evidence is required. 16 Purdy v. Berryhill, 887 F.3d 7, 13 (1st Cir. 2018). But the threshold for evidentiary 17 sufficiency is not particularly high; if after looking at the existing administrative record, 18 19 the reviewing court is persuaded that it contains sufficient evidence to support the 20 Commissioner’s factual determinations, the decision is bound to be affirmed. See Biestek 21 v. Berryhill, 587 U.S. 97, 102-03, 139 S. Ct. 1148, 203 L. Ed. 2d 504 (2019) (cleaned up). 22 Substantial evidence exists “if a reasonable mind, reviewing the evidence in the record, 23 could accept it as adequate to support [the] conclusion.” Irlanda-Ortiz v. Sec’y of Health 24 & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991). The ALJ’s decision must be reversed, 25 26 however, if it was arrived at “by ignoring evidence, misapplying law, or judging matters 27 entrusted to experts.” Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999). 28 2 1 B. The Five-Step Sequential Evaluation Process 2 To be eligible for social security benefits, a claimant must demonstrate that he or 3 she is “disabled” within the meaning of the Act. Bowen v. Yuckert, 482 U.S. 137, 146, 107 4 S. Ct. 2287, 96 L. Ed. 2d 119 (1987). The Act defines disability in pertinent part as the 5 inability “to engage in any substantial gainful activity by reason of any medically 6 7 determinable physical or mental impairment which has lasted or can be expected to last 8 for a continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(a), § 9 1382c(a)(3)(A). The impairment or impairments must be severe enough that “he [or she] 10 is not only unable to do his [or her] previous work but cannot . . . engage in any other 11 kind of substantial gainful work which exists [in significant numbers] in the national 12 13 economy….” Id., § 423(d)(2), § 1382c(a)(3)(B); see also 20 C.F.R. § 404.1520(a)(1). 14 The Commissioner follows a five-step evaluation process to determine disability. 15 See Mills v. Apfel, 244 F.3d 1, 2 (1st Cir. 2001); 20 C.F.R. § 404.1520(a). These steps must 16 be followed in order, and if a person is determined not to be disabled at any step, the 17 inquiry stops. Id. The Plaintiff has the burden of proof with respect to the first four steps 18 19 of the process. Freeman v. Barnhart, 274 F.3d 606, 608 (1st Cir. 2001). 20 Step one considers work activity, that is, whether the Plaintiff is currently “doing 21 substantial gainful activity.” 20 C.F.R. § 404.1520(a)(4)(i). If the person is, then she is 22 not disabled under the Act. Id. Step two asks whether Plaintiff has a physical or mental 23 impairment, or a combination of impairments, that is severe and meets the Act’s 24 duration requirement. 20 C.F.R. § 404.1520(a)(4)(ii). Step three considers the medical 25 26 severity of the Plaintiff’s impairments. 20 C.F.R. § 404.1520(a)(4)(iii). At this step, if 27 Plaintiff is determined to have an impairment that meets or equals an impairment listed 28 3 1 in 20 C.F.R. pt. 404, Subpt. P., app. 1, and meets the duration requirements, she is 2 disabled. 20 C.F.R. § 404.1520(a)(4)(iii). On the other hand, if the Plaintiff is not found 3 to be disabled at this step, her Residual Functional Capacity (“RFC”) is assessed. 20 C.F.R. 4 § 404.1520(a)(4), (e). Once the ALJ determines the RFC of the claimant, the inquiry 5 proceeds to step four. Step four compares the Plaintiff’s RFC to her past relevant work. 6 7 20 C.F.R. § 404.1520(a)(4)(iv). If the Plaintiff can still do her past relevant work, she is 8 not disabled. Id. Finally, at step five, the Plaintiff’s RFC is considered alongside her “age, 9 education, and work experience to see if [she] can make an adjustment to other work.” 10 20 C.F.R. § 404.1520(a)(4)(v). If she can make an adjustment to other work, she is not 11 disabled; if she cannot, she is disabled. Id. At this step, it is the Commissioner who has 12 13 the burden “to come forward with evidence of specific jobs in the national economy that 14 the applicant can still perform.” Freeman v. Barnhart, 274 F.3d at 608 (citing Arocho v. 15 Sec’y of Health & Human. Servs., 670 F.2d 374, 375 (1st Cir. 1982)). 16 II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 17 Ms. Garced originally applied for disability insurance benefits on February 6, 2019, 18 19 alleging her disability began on November 28, 2017. See Transcript of Social Security 20 Proceedings (“Tr.”), Docket 15. (Tr. 1075-81). The claim was initially denied on April 23, 21 2019, and on reconsideration on June 27, 2019. (Tr. 724-46). 22 On February 19, 2020, a hearing was held presided by ALJ Dory Sutker. Shortly 23 thereafter, on March 4, 2020, the ALJ notified an unfavorable decision. (Tr. 748-59). 24 The Appeals Council remanded on February 8, 2021, with instruction to the ALJ to 25 26 address three issues. (Tr. 767-68). Following the remand order, the ALJ held telephone 27 hearings over the course of three separate dates in August 2021, June 2022, and January 28 4 1 2023.1 Ms. Garced was represented by non-attorney representative Andew S. Youngman, 2 and by attorneys Sara Rusell, Peter Natale and Jessica Spencer. Vocational experts 3 (“VE”) Karyl Kuutlia, Cathleen Spencer, and Kathleen Doehla testified at the hearings. I 4 briefly summarize below the ALJ’s written decision issued on May 3, 2023. (Tr. 77-92). 5 The ALJ determined at Step One of the five-step sequential process that Ms. 6 7 Garced did not engage in substantial gainful activity since the alleged onset date, that is, 8 November 28, 2017. (Tr. 82). At Step Two, the ALJ found that Plaintiff had the following 9 severe impairments: Depressive Disorder, Anxiety Disorder, and bilateral flexor 10 tenosynovitis and trigger thumbs. (Tr. 83). 11 Analyzing Step Three, the ALJ concluded that Ms. Garced did not have an 12 13 impairment or combination of impairments that met or medically equals the severity of 14 one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.). The 15 ALJ first found that the record did not establish that Plaintiff’s thumb impairments met 16 or medically equaled listing 1.18. (Tr. 84). Ms. Garced did report bilateral pain, stiffness 17 and swelling, as well as difficulty grasping objects and opening jars. (Id.). And while X- 18 19 rays showed no arthritis, examinations do show that she likely suffers from trigger 20 thumbs, mild synovitis, and decreased grip strength. (Id.). However, the record did not 21 establish that Ms. Garced cannot perform fine and gross movements with both upper 22 extremities. (Id.). Additionally, she reported being able to bathe and use the toilet on her 23 own, feed herself, make simple meals, sweep, read and write. (Id.). 24 25 26 27 1 With the consent of Plaintiff, these hearings were held over the telephone due to the extraordinary circumstance presented by the Coronavirus Disease 2019 (COVID-19) Pandemic. 28 5 1 With respect to Ms. Garced’s mental impairments, the ALJ determined that she 2 did not meet or medically equal the criteria in listings 12.04 and 12.06. (Id.). In so finding, 3 the ALJ considered if Paragraph B criteria was satisfied. To satisfy “Paragraph B” criteria, 4 the mental impairment must result in one extreme limitation 2 or two marked 5 limitations3 in a broad area of functioning. (Id.). The ALJ assessed moderate limitations 6 7 in all relevant areas. (Tr. 84-85). 8 First, as to understanding, remembering, or applying information, Plaintiff 9 testified that she has poor memory and concentration, and reported trouble 10 remembering instructions. However, the ALJ noted that mental status showed 11 inconsistent findings regarding memory deficits. (Tr. 84). 12 13 Second, with respect to the area of interacting with others, Ms. Garced testified 14 that she stays in her room, keeps to herself, and complained of situational anxiety and 15 difficulties making decisions. Nonetheless, the ALJ underscored that Plaintiff denied 16 having problems getting along with family, friends, neighbors, and authority figures. 17 (Id.). During evaluations, she presented a calm and cooperative demeanor, normal 18 19 speech and interacted well with others. (Id). 20 Third, as to Ms. Garced’s ability to concentrate, persist, or maintain pace, the ALJ 21 also found she had moderate limitations. She testified that she has limited attention and 22 concentration. (Id.). In her function report, Plaintiff estimated that she can only pay 23
25 2 An extreme limitation is the inability to function independently, appropriately, or effectively, and on a 26 sustained basis. 20 C.F.R. pt. 404, subpt. P. app 1.
27 3 A marked limitation is a seriously limited ability to function independently, appropriately, or effectively, and on a sustained basis. Id. 28 6 1 attention for 15-20 minutes. (Id.). And mental status examinations showed limited 2 concentration at times. (Id). 3 Lastly, in the area of adapting or managing oneself, only a moderate limitation 4 was assessed because the symptoms of Ms. Garced’s reported poor stress tolerance, 5 difficulty adjusting to changes, and dealing with situational stressors, appear to improve 6 7 with medication. (Id). The record showed no evidence of difficulties identifying normal 8 hazards and taking appropriate precautions and there were no deficits noted by health 9 providers regarding grooming and hygiene. (Tr. 84-85). 10 Based on the above-outlined findings, the ALJ concluded that Plaintiff’s mental 11 impairments did not cause at least two marked limitations or one extreme limitation, 12 13 and, thus, Paragraph B criteria was not satisfied. (Id.). The ALJ likewise considered if 14 Paragraph C criteria was satisfied, but the evidence fell short of establishing said criteria. 15 (Tr. 85). 16 Next, and prior to moving to Step Four of the sequential process, the ALJ 17 concluded that Plaintiff had an RFC 18 19 to perform a full range of work at all exertional levels but with the following nonexertional limitations: The claimant cannot 20 not [sic] climb ladders, ropes, or scaffolds, and could rarely crawl (meaning one or two times per day). She can never 21 perform forceful gripping, such as that required to use garden shears or pliers. She can never be exposed to unprotected 22 heights and needs an environment that does not require 23 driving while on the job. She can understand, remember, and carry out instructions to perform simple tasks. The claimant 24 can maintain concentration, persistence, and pace for those tasks for two-hour blocks of time throughout the workday, 25 consistent with regularly scheduled breaks and lunch. Within 26 such a setting, she can engage and respond appropriately to supervisors and coworkers. She can tolerate incidental 27 contact with the public (meaning that dealing with the public 28 7 1 cannot be a part of job duties, but she can tolerate brief encounters). She can use judgment in making work-related 2 decision and can deal with routine changes. 3 (Id.). In reaching this conclusion, the ALJ indicated that she considered all of Plaintiffs’ 4 symptoms to the extent they are consistent with the objective medical evidence as 5 required by 20 C.F.R. § 404.1529 and Social Security Ruling (“SSR”) 16-3p, as well as 6 7 medical opinions and prior administrative medical findings as mandated by 20 C.F.R. § 8 404.1520c. (Id). 9 In following the required two-step process (first determining if the physical or 10 mental impairments could reasonably be expected to produce the pain and/or symptoms 11 alleged, and, second, evaluating the intensity, persistence, and limiting effects of said 12 13 symptoms to determine the extent to which they limit Plaintiff’s work-related activities), 14 the ALJ concluded after a thorough and detailed explanation (Tr. 86-89), that Ms. 15 Garced’s medically determinable impairments could reasonably be expected to cause the 16 alleged symptoms. However, her testimony regarding the intensity, persistence and 17 limiting effects of such symptoms was not fully credited because it was not entirely 18 19 consistent with the evidence in the record. (Tr. 86). Thus, the objective medical evidence 20 and medical opinions that form part of the record, the ALJ found, did not call for a more 21 restrictive RFC. (Tr. 89). 22 The ALJ did find that Ms. Garced was unable to perform any past relevant work 23 (Step Four), but considering her age, education, work experience, and RFC, there were 24 jobs existing in significant numbers in the national economy that she could perform 25 26 (Step Five) such as Transportation Cleaner, Hand Packager and Laundry Aid. (Tr. 91). 27 Accordingly, the ALJ held that Ms. Garced was not disabled under the Act. (Tr. 92). 28 8 1 On June 30, 2023, Plaintiff sought review of the ALJ’s decision before the Appeals 2 Council. On August 28, 2024, the Appeals Council denied her request for review. (Tr. 1- 3 7). On that date, the ALJ’s decision became the Commissioner’s final decision. 4 On October 18, 2024, Plaintiff filed her social security complaint before this Court. 5 (Docket No. 1). Upon consent provided by the parties (Docket Nos. 8, 11) on October 24, 6 7 2024, this case was formally referred to the undersigned magistrate judge for all further 8 proceedings including the entry of judgment. (Docket No. 13). Subsequently, on 9 December 17, 2024, the social security transcript was filed on the docket. (Docket No. 10 15). Plaintiff’s social security brief was filed on January 15, 2025. (Docket No. 16), and 11 the Commissioner’s on March 14, 2025. (Docket No. 21). Ms. Garced filed a reply to the 12 13 Commissioner’s response on March 28, 2025. (Docket No. 22). 14 III. DISCUSSION 15 Ms. Garced raises two claims of error in her quest to obtain reversal of the ALJ’s 16 decision. First, that the ALJ failed to comply with the Appeals Council’s remand order. 17 And second, that the ALJ erred by rendering an RFC containing vague, non-vocationally 18 19 relevant terms. As to the first issue, Plaintiff generally contends that the ALJ failed to 20 heed the instructions in the remand order regarding the finding that she had moderate 21 limitations in concentration, persistence and maintaining pace. According to Ms. Garced, 22 the ALJ repeated the error that caused the Appeals Council to remand in the first place 23 by again finding moderate limitations in this area of functioning “but no corresponding 24 limitations reflected in the RFC.” (Docket No. 15 at 15). In her second claim of error, Ms. 25 26 Garced takes exception with the inclusion of the non-exertional limitation of forceful 27 gripping. She insists that the term is vague because the term “gripping” is not defined in 28 9 1 the Selected Characteristics of Occupations Manual (“SCO”) nor is it included in the 2 definitions for handling and fingering. The error is not harmless, Plaintiff maintains, 3 because the jobs identified by the VE that the ALJ found she could perform, require 4 frequent to constant handling, and/or occasional to constant fingering. Ms. Garced 5 argues that if she is restricted in her ability to forcefully grip, by extension she is also 6 7 limited in her ability to handle. 8 The Commissioner responds, as to the first claim, that Plaintiff’s argument 9 misinterprets the Appeals Council’s instructions on remand. According to the 10 Commissioner, the ALJ clearly complied with the instruction that further consideration 11 be given to the matter of Ms. Garced’s ability to understand, carry out, and remember 12 13 instructions; use judgment in making work-related decisions; respond appropriately to 14 supervision, co-workers, and work situations; and deal with changes in a routine work 15 setting. In other words, the Appeals Council left undisturbed the findings regarding 16 concentration, persisting, and maintaining pace. The Commissioner faults Plaintiff for 17 focusing only on one aspect of the RFC assessment in the most recent decision but failing 18 19 to acknowledge the rest of the formulation that directly addressed the issues flagged by 20 the Appeals Council in the remand order. As to the second claim, the Commissioner avers 21 that the Court should reject the argument challenging the forceful gripping non- 22 exertional limitation because the ALJ’s finding was legally sound, supported by 23 substantial evidence, and Plaintiff cannot show prejudice. In fact, says the Commissioner, 24 the ALJ gave Ms. Garced the benefit of the doubt and imposed a more restrictive 25 26 limitation than that supported by the medical evidence. It does not appear that the VE 27 had difficulty understanding the term “forceful gripping” in identifying occupations that 28 10 1 Plaintiff could perform. And the term should not be used interchangeably with a 2 limitation of “frequent to constant handling.” 3 In reply, Ms. Garced insists that while neither the Dictionary of Occupational 4 Titles (“DOT”) nor the SCO define the term “gripping”, case law equates it with “grasping.” 5 Grasping, in turn, is included under the definition of “handling.” Based on this, the 6 7 argument goes, both terms—gripping and grasping—should be used interchangeably and 8 any limitation in forceful gripping similarly impacts the ability of a claimant to “handle.” 9 Following this logic, Ms. Garced contends that if she is restricted to no forceful gripping, 10 she can never handle. Thus, the Step Five conclusions of the ALJ are subject to reversal 11 for she cannot perform the demands of the identified jobs. 12 13 A. Appeals Council’s Remand Order 14 The Social Security regulations require an ALJ to take any action on remand that 15 is ordered by the Appeals Council. See 20 C.F.R. § 404.977.4 Federal courts have the 16 authority to evaluate an ALJ’s compliance with an Appeals Council’s remand order. 17 Noreja v. Comm’r., SSA, 952 F.3d 1172, 1177 (10th Cir. 2020). Indeed, “[w]hen the 18 19 Appeals Council remands a case with instructions, those instructions become legal 20 requirements with which the ALJ is bound to comply.” Id. at 1179. Consequently, judicial 21 review under 42 U.S.C. § 405(g), which as noted above involves, in part, a determination 22 whether the Commissioner applied correct legal standards, certainly encompasses 23 24
26 4 “The administrative law judge shall take any action that is ordered by the Appeals Council and may take 27 any additional action that is not inconsistent with the Appeals Council’s remand order.” 20 C.F.R. § 404.977(b). 28 11 1 deciding a challenge to the ALJ’s adherence to the Appeals Council remand order. See 2 Ellis v. Colvin, 29 F. Supp. 3d 288, 300 (W.D.N.Y. 2014) (holding that an ALJ’s failure 3 to follow directions from the Appeals Council is legal error even where the Appeals 4 Council affirms the ALJ’s subsequent decision.). Nevertheless, for reversal and remand 5 to be warranted in cases where the ALJ did not take the action ordered by the Appeals 6 7 Council, the claimant must still show that the error resulted in prejudice. Stevenson v. 8 Saul, No. 19-cv-11202-DJC, 2020 U.S. Dist. LEXIS 180353, at * 26 (D. Mass. Sept. 30, 9 2020) (citing Shinseki v. Sanders, 556 U.S. 396, 409, 129 S. Ct. 1696, 173 L. Ed. 2d 532 10 (2009)). 11 In her original decision, the ALJ found in relevant part as follows: 12 13 With regard to concentrating, persisting or maintaining pace, the claimant has a moderate limitation. In March 2018, Dr. 14 Rodriguez observed that the claimant presented with good attention and concentration. In February 2019, he also 15 observed that attention and concentration were intact. This 16 was again observed in March 2019. However, in July 2019, he asserted that she has moderately impaired attention and 17 concentration.
18 (Tr. 755) (record citations omitted). The Appeals Council remanded after finding, inter 19 alia, that further consideration of this issue was needed. The order specifically noted: 20 The hearing decision found that the claimant possessed 21 moderate difficulties with regard to concentrating, persisting, or maintaining pace, and noted that the claimant had 22 moderately impaired attention and concentration (Decision, 23 Page 5). While the assessed residual functional capacity limits the claimant to tasks that are typically learned in less than 30 24 days (Decision, Finding 5), it does not address the claimant’s ability to understand, carry out, and 25 remember instructions; use judgment in making 26 work-related decisions; respond appropriately to supervision, co-workers, and work situations; and 27 28 12 1 deal with changes in a routine work setting (Social Security Ruling 85- 16 and 96-8p). 2 3 (Tr. 767) (emphasis added). In view of such conclusion, the ALJ was ordered to “[g]ive 4 further consideration to the maximum residual functional capacity and provide 5 appropriate rationale with specific references to evidence of record in support of the 6 assessed limitations (20 CFR 404.1545 and Social Security Ruling 85-16 and 96- 8p).” 7 (Tr. 768). 8 To determine if there was any non-compliance by the ALJ with the Appeals 9 10 Council mandate, I compare the remand order with the subsequent decision issued. In 11 the new decision, the one currently under review, it is clear that the ALJ discussed and 12 made specific findings regarding the issue that the Appeals Council instructed her to 13 consider further. Specifically, the ALJ conducted a detailed analysis of the evidence in 14 the record as follows: 15 16 In understanding, remembering, or applying information, the claimant had a moderate limitation. The claimant testified 17 that she has poor memory and concentration, and in her function report, she stated that she has trouble remembering 18 instructions (Ex. 4E). The claimant complained of memory 19 problems at times, but mental status examinations showed inconsistent findings for memory deficits. Sometimes the 20 claimant exhibited mild short-term or long-term memory deficits (e.g., Ex. 16F/28; 26F/9), but many other times the 21 claimant exhibited intact memory and thought process (e.g., Ex. 1F/5; 26F/2-4, 12; 30F/25; 31F/34). 22
23 In interacting with others, the claimant had a moderate limitation. The claimant testified that she often stays in her 24 room and keeps to herself. She still talks with her daughter and grandchildren (Ex. 4E; Hearing Testimony). The claimant 25 denied having problems getting along with family, friends, 26 neighbors, or authority figures (Ex. 4E). Providers noted that the claimant was often calm, and cooperative, with normal 27 speech, and she interacted well during evaluations (e.g., Ex. 28 13 1 1F/5; 26F/2-4, 12; 30F/25; 31F/34). The claimant complained of situational anxiety and difficulty making 2 decisions (e.g., Ex. 26F/11). 3 With regard to concentrating, persisting or maintaining pace, 4 the claimant had a moderate limitation. The claimant testified that she has limited attention and concentration, and in her 5 function report, she estimated that she could only pay attention for 15-20 minutes (Ex. 4E). Mental status 6 examinations showed that the claimant had limited 7 concentration at times (e.g., Ex. 11F/21; 26F/2-4, 8).
8 As for adapting or managing oneself, the claimant had experienced a moderate limitation. The claimant reported 9 that she has poor stress tolerance and difficulty adjusting to 10 changes (Ex. 4E; Hearing Testimony). Providers noted the claimant’s difficulty with certain situational stressors, but the 11 claimant reported improved symptoms with medications (e.g., Ex. 26F/7; 31F/16). There is no evidence that she has trouble 12 being aware of normal hazards or intaking appropriate 13 precautions. Providers did not observe significant deficits to grooming or hygiene. 14 (Tr. 84-85). Then, in the RFC, I can readily see the limitations that flow from the ALJ’s 15 16 consideration of the evidence outlined above, namely, that Plaintiff “can understand, 17 remember, and carry out instructions to perform simple tasks . . . [;] can maintain 18 concentration, persistence, and pace for those tasks for two-hour blocks of time 19 throughout the workday, consistent with regularly scheduled breaks and lunch . . . [;] 20 can engage and respond appropriately to supervisors and coworkers . . . [;] can tolerate 21 incidental contact with the public (meaning that dealing with the public cannot be a part 22 23 of job duties, but she can tolerate brief encounters) . . . [; and] can use judgment in 24 making work-related decision and can deal with routine changes.” (Tr. 85). 25 Based on the above, I must reject the claim that the ALJ repeated the error with 26 respect to the matter of concentration, persistence and pace because that was not the 27 28 14 1 basis for the remand. Moreover, even though it was not the issue to be addressed on 2 remand, to the extent Ms. Garced continues to be of the view that the finding of moderate 3 limitation in concentrating, persisting and maintaining pace should have resulted in a 4 more restrictive RFC, I find that her argument is without merit under the substantial 5 evidence standard. She asserts categorically that “[a] limitation to unskilled work does 6 7 not account for the Plaintiff’s moderate limitations in the area of concentration, 8 persistence, and pace.” (Docket No. 16 at 13). I disagree. 9 The applicable regulations define unskilled work as “work which needs little or no 10 judgment to do simple duties that can be learned on the job in a short period of time.” 11 20 C.F.R. § 404.1568(a). It includes jobs that a person can learn to do in 30 days and 12 13 where little specific vocational preparation and judgment are needed. Id. Further, 14 unskilled work generally requires only the following mental activities: (1) 15 “[u]nderstanding, remembering, and carrying out simple instructions”; (2) “[m]aking 16 judgments that are commensurate with the functions of unskilled work—i.e., simple 17 work-related decisions”; (3) “[r]esponding appropriately to supervision, co-workers and 18 19 usual work situations”; and (4) “[d]ealing with changes in a routine work setting.” SSR 20 96-9p, 1996 SSR LEXIS 6 at *26, 1996 WL 374185, at *9 (July 2, 1996). And case law 21 holds that “[a] finding of moderate limitations in maintaining concentration, persistence, 22 or pace, does not necessarily preclude the performance of unskilled work.” Perry v. 23 Astrue, No. 11-40215-TSH, 2014 U.S. Dist. LEXIS 139575, at * 15 (D. Mass. Sept. 30, 24 2014); see also Vigil v. Colvin, 805 F.3d 1199, 1204 (10th Cir. 2015) (concluding that 25 26 limiting plaintiff to a Specific Vocational Preparation (SVP) of only one or two adequately 27 took into account his moderate limitation in concentration, persistence and pace). 28 15 1 Plaintiff also perfunctorily advances an argument that there was no mention of 2 Plaintiff’s moderate limitation in concentration, persistence, and pace during the ALJ’s 3 hypotheticals to the VE. Even if the claim had been fully developed, it would not change 4 the outcome. The ALJ told the VE to assume, among other things, that Ms. Garced could 5 “maintain concentration, persistence, and pace for two-hour blocks of time throughout 6 7 the workday, consistent with regularly scheduled breaks and lunch.” (Tr. 119). Based in 8 part on said limitation, the VE identified jobs existing in the national economy in 9 significant numbers that were categorized SVP one or two, which, as noted, correspond 10 to unskilled work.5 Thus, it appears that the ALJ explicitly accounted for the moderate 11 difficulties of the Plaintiff with respect to concentration, persistence and pace when 12 13 posing the hypothetical. See De Jesus-Rodriguez v. Comm’r of Soc. Sec., No. 19-cv-1308 14 (BJM), 2022 WL 4494135, 2022 U.S. Dist. LEXIS 179228, at *27-31 (D.P.R. Sep. 28, 15 2022). I must, therefore, reject this claim of error. 16 B. Challenge to the ALJ’s RFC Determination – Forceful Gripping 17 Notwithstanding the fact that the ALJ did not seem inclined to find that Plaintiff’s 18 19 hand impairments imposed any limitations on her ability to do work-related activities, 20 she decided to give Plaintiff the benefit of the doubt based on her testimony. The medical 21 22
24 5 See Social Security Ruling ("SSR") 00-4p, 2000 SSR LEXIS 8, 2000 WL 1898704, at *3 (Dec. 4, 2000) 25 (“Using the skill level definitions in 20 C.F.R. 404.1568 and 416.968, unskilled work corresponds to an SVP of 1-2.”). 26
28 16 1 evidence, however, was not necessarily consistent with her subjective complains.6 (Tr. 2 86-87). Regardless, I find no merit in Ms. Garced’s conclusory assertion that a limitation 3 on forceful gripping as determined by the ALJ, means that she can never handle so that 4 it was error for the ALJ to adopt the VE’s recommendation of jobs she can perform. For 5 starters, Plaintiff did not cite any authority in support of such proposition. See King v. 6 7 Astrue, No. 10-cv-235-DBH, 2011 WL 1158247, 2011 U.S. Dist. LEXIS 32712, at *7 (D. 8 Me. Mar. 25, 2011) (noting that claimant did not cite any authority defining inability to 9 grip forcefully in a manner that is inconsistent with the concept of handling). On the 10 other hand, the case law cited by the Commissioner, as well as case law that my research 11 uncovered, makes such argument unavailing in any event. 12 13 The act of gripping/grasping should not be conflated with handling and these 14 terms should not be used interchangeably. Cartagena v. Colvin, No. 14-0884-DFM, 15 2014 WL 4978511, 2014 U.S. Dist. LEXIS 142255, at *7 (C.D. Cal. Oct. 6, 2014) (quoting 16 Czajka v. Astrue, No. 09-0194, 2010 U.S. Dist. LEXIS 85131, 2010 WL 3293350, at *4, 17 (C.D. Cal. Aug. 18, 2010)) (“The act of grasping requires a firm hold or grip. Handling 18 19 can mean simply touching or using the hands. It is improper to conflate the two terms.”). 20
22 6 The ALJ specifically found: 23
As discussed above, the claimant has required little treatment for her 24 hands after receiving a few injections in 2019. Follow-up evaluations showed improved grip strength overall, and she did not complain of 25 ongoing symptoms to other providers. Treatment notes do not reference complaints consistent with the claimant’s allegations at the hearing. The 26 record supports some limitations related to her hands, but not to the extent alleged. 27 (Tr. 87). 28 17 1 Moreover, even if gripping or grasping was a subset of handling activities—as suggested 2 by Ms. Garced—the restriction imposed by the ALJ was about forceful gripping which 3 is a matter of degree. Thus, “the inability to forcefully perform a subset of handling 4 activities does not eliminate all handling activities.” Elizabeth K. v. Comm’r of Soc. Sec., 5 No. 19-cv-1671-FPG, 2021 WL 1175848, 2021 U.S. Dist. LEXIS 59839, at *16 (W.D.N.Y. 6 7 Mar. 29, 2021) (emphasis in original). 8 What’s more, the ALJ provided an example of the restriction imposed. She said 9 that Ms. Garced could not “perform forceful gripping, such as that required to use garden 10 shears or pliers.” (Tr. 85). The example illustrates the level and degree of the 11 manipulative limitation. Hence, I would be hard-pressed to find vagueness or ambiguity. 12 13 The case of Agustine v. Astrue, No. 11 Civ. 3886 (BMC), 2012 WL 2700507, 2012 U.S. 14 Dist. LEXIS 93961, at *31-32 (E.D.N.Y. July 5, 2012) is instructive of the point: 15 [a]lthough ‘handling’ and ‘grasping’ are similar words, the 16 word ‘grasping’ implies a degree of force that does not attach to the word ‘handling.’ Moreover, the words ‘forceful’ and 17 ‘repetitive’ modify ‘grasping,’ and an individual may easily be capable of ‘frequent handling’ even if she is restricted from 18 ‘repetitive forceful grasping.’ 19 Here, even assuming arguendo that gripping is synonymous with handling, the ALJ’s 20 RFC assessment can only be read as restricting Ms. Garced’s ability to handle forcefully. 21 In sum, the record shows that the ALJ formulated a more restrictive RFC than 22 23 perhaps was justified in light of the medical evidence. In so doing, it gave Ms. Garced 24 the benefit of the doubt and imposed the limitation of no forceful gripping. As explained, 25 gripping is not a vague concept and cannot be conflated with handling. But even if both 26 terms could be used interchangeably, the modifier “forcefully” adds a matter of degree 27 28 18 1 that clearly distinguishes between both terms. As such, it does not follow that a claimant 2 with limitations on forceful gripping can never handle as Plaintiff would have the Court 3 find. Accordingly, because there was no error in the formulation of the RFC, the Step Five 4 finding with respect to occupations identified was not tainted and reversal is not 5 warranted. See Equihua v. Astrue, No. EDCV 10-0122-JEM, 2011 WL 321993, 2011 U.S. 6 7 Dist. LEXIS 8526, at *16-17 (C.D. Cal. Jan. 28, 2011). 8 IV. CONCLUSION 9 In light of the foregoing, I find that the decision of the ALJ is supported by 10 substantial evidence and free of legal error. Therefore, the decision of the Commissioner 11 is hereby AFFIRMED. 12 13 IT IS SO ORDERED. 14 In San Juan, Puerto Rico this 28th day of August 2025. 15 S/Héctor L. Ramos-Vega 16 HÉCTOR L. RAMOS-VEGA UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 19