1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF PUERTO RICO
4 SANDRA SERRANO-RIVERA, 5 6 Plaintiff,
7 v. CIVIL NO. 23-1231 (HRV)
8 COMMISSIONER OF SOCIAL SECURITY, 9 Defendant. 10
12 OPINION AND ORDER 13 I. Introduction 14 Sandra Serrano-Rivera (“Plaintiff” and/or “Ms. Serrano-Rivera”) seeks review of 15 the final administrative decision of the Commissioner of Social Security (“the 16 17 Commissioner”) denying her claim for disability benefits under the Social Security Act 18 (“the Act”). (Docket No. 3). The Commissioner contends that the decision should be 19 affirmed because it was based on substantial evidence. (Docket No. 27). After careful 20 consideration of the record and for the reasons set forth below, I affirm the 21 Commissioner’s decision. 22 23 II. 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 3 statute provides that if supported by substantial evidence, the findings of the 4 Commissioner as 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 thus limited. I am tasked with determining 10 whether the ALJ employed the proper legal standards and focused facts upon the proper 11 quantum of evidence. See Ward v. Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000); 12 13 see also Manso-Pizarro v. Sec’y of Health and Human Servs., 76 F.3d 15, 16 (1st Cir. 14 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 upheld. See Biestek 21 v. Berryhill, 139 S. Ct. 1148, 1154, 203 L. Ed. 2d 504 (2019)(cleaned up). Substantial 22 evidence exists “if a reasonable mind, reviewing the evidence in the record, could accept 23 it as adequate to support [the] conclusion.” Irlanda-Ortiz v. Sec’y of Health & Human 24 Servs., 955 F.2d 765, 769 (1st Cir. 1991). The ALJ’s decision must be reversed, however, 25 26 if it was arrived at “by ignoring evidence, misapplying law, or judging matters entrusted 27 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 4 (1987). The Act defines disability in pertinent part as the inability “to engage in any 5 substantial gainful activity by reason of any medically determinable physical or mental 6 7 impairment which has lasted or can be expected to last for a continuous period of not 8 less than twelve months.” 42 U.S.C. §§ 423(d)(1)(a) and 1382c(a)(3)(A). The impairment 9 or impairments must be severe enough that “he [or she] is not only unable to do his [or 10 her] previous work but cannot . . . engage in any other kind of substantial gainful work 11 which exists [in significant numbers] in the national economy . . . .” Id., § 423(d)(2), § 12 13 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 at the first four steps of the process. 18 19 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). 25 26 Step three considers the medical severity of the plaintiff’s impairments. 20 C.F.R. 27 § 404.1520(a)(4)(iii). At this step, if plaintiff is determined to have an impairment that 28 3 1 meets or equals an impairment listed in 20 C.F.R. pt. 404, subpt. P., app. 1, and meets 2 the duration requirements, she is disabled. 20 C.F.R. § 404.1520(a)(4)(iii). On the other 3 hand, if the plaintiff is not determined to be disabled at this step, her residual functional 4 capacity (“RFC”) is assessed. 20 C.F.R. § 404.1520(a)(4), (e). Once the ALJ determines 5 the RFC, the inquiry proceeds to step four. Step four compares the plaintiff’s RFC to her 6 7 past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If the plaintiff can still do her past 8 relevant work, she is not disabled. Id. Finally, at step five, the plaintiff’s RFC is 9 considered alongside her “age, education, and work experience to see if [she] can make 10 an adjustment to other work.” 20 C.F.R. § 404.1520(a)(4)(v). If [she] can make an 11 adjustment to other work, she is not disabled; if she cannot, she is disabled. Id. At this 12 13 step, it is the Commissioner who has the burden “to come forward with evidence of 14 specific jobs in the national economy that the applicant can still perform.” Freeman v. 15 Barnhart, 274 F.3d at 608 (citing Arocho v. Sec’y of Health & Hman. Servs., 670 F.2d 16 374, 375 (1st Cir. 1982)). 17 III. Background and Procedural History 18 19 Ms. Serrano-Rivera applied for disability insurance benefits on April 23, 2019, 20 alleging that her disability began on December 18, 2019. See Transcript of Social Security 21 Proceedings (“Tr.”), Docket No. 13. (Tr. 22-23 and 676-682). The claim was initially 22 denied on July 19, 2019, and upon reconsideration on January 22, 2020. (Tr. 22-23 and 23 530-533). At Plaintiff’s request, a telephone hearing was held on January 12, 2021. On 24 25 26 27 28 4 1 April 19, 2021, a supplemental telephone hearing was held.1 Ms. Serrano-Rivera was 2 represented by Olga I. Ramos-Rodriguez2 at both hearings. (Tr. 22 and 41-84). Dr. Ariel 3 Cintron Antommarchi, an impartial vocational expert, testified at both hearings. (Tr. 22 4 and 61-84). The testimonies of impartial medical experts Dr. Gilberto Munoz and Dr. 5 Wildaliz Caro-Gonzalez, were presented during the April 19, 2021, supplemental hearing. 6 7 (Tr. 22 and 41-60). On November 4, 2021, the ALJ issued her written decision concluding 8 that Ms. Serrano-Rivera was not disabled. (Tr. 22-36). 9 First, the ALJ determined that Plaintiff did not engage in substantial gainful 10 activity during the period of her alleged onset date and through her date last insured. 11 (Step One). (Tr. 25). It was also determined that through the date last insured, Ms. 12 13 Serrano-Rivera had the following severe impairments: osteoarthritis, fibromyalgia, 14 rheumatoid arthritis, degenerative disc disease, bronchial asthma, systemic lupus 15 erythematosus, obesity, and depressive disorder. (Step Two). (Id.). 16 At step three of the sequential evaluation process, the ALJ concluded that Plaintiff 17 did not have an impairment or combination of impairments that met or medically 18 19 equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, 20 Appendix 1. (Id.). In reaching this conclusion, the ALJ considered the relevant listings 21 applicable to: disorders of the spine and other musculoskeletal disorders (1.15, 1.16 and 22 1.18); respiratory disorders and asthma (3.02 and 3.03); spinal cord disorders (11.08); 23
25 1 The hearing was held by telephone due to the extraordinary circumstances presented by the Coronavirus 26 Disease 2019 (COVID-19). Ms. Serrano-Rivera consented to both hearings being held by telephone. (See Tr. 22, 61-84, and 41-60). 27 2 Ms. Olga I. Ramos-Rodriguez is a non-attorney representative. (See Tr. 22). 28 5 1 peripheral neuropathy (11.14); systemic lupus erythematous (14.02); and inflammatory 2 arthritis (14.09). (Tr. 26-27). Ms. Serrano-Rivera did not meet the severity criteria for 3 any of these listings. Further, although there is no medical listing for it, the ALJ 4 considered Plaintiff’s obesity pursuant to guidelines in SSR 19-2p and found that the 5 functional effects of her obesity did not equal any medical listings. (Tr. 27). 6 7 Regarding the severity of Plaintiff’s mental impairments, the ALJ found that they 8 did not meet or medically equaled the criteria of listings 12.04 and 12.06. In arriving at 9 this conclusion, the ALJ considered whether the criteria in Paragraph B requiring that 10 the mental impairments result in one extreme limitation or two marked limitations in a 11 broad functioning area was satisfied. 3 (Id.). With respect to understanding, 12 13 remembering, or applying information, the ALJ found Plaintiff had a moderate 14 limitation. (Tr. 28). For example, Ms. Serrano-Rivera reported she needed reminders to 15 take care of her personal hygiene and take her medications. Also, following written and 16 spoken instructions was difficult for her. (Id.). In interacting with others, she had a mild 17 limitation. (Id.). Plaintiff reported that she was able to go shopping in stores. She also 18 19 spends time with others and goes regularly to church. Ms. Serrano-Rivera gets along 20 well with authority figures and has never been fired or laid off from a job because of 21 problems getting along with other people. (Id.). Nevertheless, she avoids people and 22 noise. (Id.) 23
25 3 An extreme limitation is the inability to function independently, appropriately, or effectively, and on a 26 sustained basis. (See Tr. 27). A marked limitation is a seriously limited ability to function independently, appropriately, or effectively, and on a sustained basis. (Id.). 27
28 6 1 As to concentrating, persisting, or maintaining pace, Plaintiff was found to also 2 have a moderate limitation. (Id.). And as for adapting or managing oneself, her limitation 3 was characterized as a mild. (Id.). In this area, Ms. Serrano-Rivera reported that she had 4 difficulties taking care of her personal hygiene due to physical impairments and struggles 5 with handling stress and changes in routine. (Id.). 6 7 All evidence considered, the ALJ concluded that Plaintiffs’ mental impairments 8 did not cause at least two “marked” limitations or one “extreme” limitation. Thus, the 9 criteria of “paragraph B” was not satisfied.4 (Id.). The ALJ also considered whether 10 “paragraph C” criteria was satisfied and found the evidence failed to establish the 11 relevant criteria.5 12 13 The ALJ concluded that Ms. Serrano-Rivera had the RFC 14 to perform sedentary work as defined in 20 CFR 404.1567(a) except that she could occasionally lift and/or carry 10 pounds. 15 She can frequently lift and/or carry less than 10 pounds. She 16 can sit 6 hours. She can stand and/or walk 2 hours. She can push and/or pull as much as she can lift and carry. She can 17 frequently handle, finger, and feel with the bilateral hands. She can occasionally climb ramps and stairs. She can never 18 climb ladders, ropes, or scaffolds. She can occasionally 19 balance, stoop, kneel, crouch, and crawl. She can never be exposed to unprotected heights, moving mechanical parts, or 20 operating a motor vehicle. She can occasionally be exposed to
22 4 The limitations identified in the “paragraph B” criteria are not a residual functional capacity assessment 23 but are used to rate the severity of mental impairments at steps 2 and 3 of the sequential evaluation process. (See Tr. 28). 24
5 Under the “paragraph C” criteria, the claimant must establish that she has a serious and persistent mental 25 disorder of two or more years with evidence of both medical treatment, mental health therapy, psychosocial support, or a highly structured setting that is ongoing and that diminishes the symptoms and 26 signs of a mental disorder, and a minimal capacity to adapt to changes to their environment or to demands that are not already part of their daily life. (Id.). 27
28 7 1 extreme cold and vibration. She is limited to working in a moderate noise environment, such as office noise. She is able 2 to perform simple, routine, and repetitive tasks. She is able to 3 perform simple work-related decisions. She is able to make simple work-related decisions. 4 (Tr. 29). In so finding, the ALJ took into consideration all symptoms and the extent to 5 which these symptoms can reasonably be accepted as being consistent with the objective 6 7 medical evidence and other evidence, as required by 20 CFR 404.1529 and SSR 16-3p, 8 as well as medical opinions and prior administrative medical findings, in accordance 9 with 20 CFR 404.1520c. (Id.). While her medically determinable impairments could 10 reasonably be expected to cause the alleged symptoms, the ALJ found that Plaintiff’s 11 statements concerning the intensity, persistence, and limiting effects of those symptoms 12 13 were not entirely consistent with the evidence. (Id. at 30). The ALJ weighed the evidence 14 and explained in detail her reasoning regarding the disconnect between said objective 15 medical evidence and the statements of Ms. Serrano-Rivera regarding the intensity and 16 limiting effects of her symptoms. (Tr. 29-34). 17 The ALJ then concluded that Ms. Serrano-Rivera was unable to perform her past 18 19 relevant work as quality control technician and general clerk. (Step Four) (Tr. 34). 20 However, considering her age, education, work experience and RFC, the ALJ held there 21 were jobs that existed significant numbers in the national economy that Plaintiff can 22 perform, such as hand suture winder, addresser, and surveillance-system monitor, which 23 are described as sedentary and unskilled. (Tr. 34-35). Hence the finding that Plaintiff 24 was not under a disability as defined by the Act from the alleged onset date through the 25 26 date last insured. (Step Five) (Tr. 36). 27 28 8 1 Still within the administrative proceedings, Ms. Serrano-Rivera requested review 2 of the ALJ’s unfavorable decision. Relief was denied by the Appeals Council on March 3 14, 2023 (Tr. 1-9; 673-675) at which time the Commissioner’s decision became final. On 4 May 10, 2023, Plaintiff filed her social security complaint. (Docket No. 3). The parties 5 have submitted their respective briefs. (Docket Nos. 19 and 27). 6 7 IV. Analysis 8 Ms. Serrano-Rivera moves the Court to reverse the Commissioner’s decision on 9 the following grounds: (1) whether the RFC determination was based on substantial 10 evidence in the record as a whole; (2) whether the ALJ erred by failing to assess other 11 medically diagnosed and treated conditions such as panic disorder and lupus; (3) 12 13 whether it was error not to include environmental limitations in the RFC with respect to 14 Plaintiff’s severe bronchial asthma; and (4) whether it was reversible error that the ALJ’s 15 RFC findings included a limitation regarding epilepsy after previously stating that said 16 condition was a “non-medically determinable impairment.” (Docket No. 19). I will 17 address each issue in the same order they are presented. 18 19 Substantial Evidence - The Record as a Whole 20 Plaintiff claims that the ALJ did not base her RFC determination on substantial 21 evidence in the record as a whole because she did not take into consideration, evaluate 22 and/or discuss, findings and progress notes of her treating psychiatrist—Dr. Gerardo 23 Tejedor Gonzalez. Ms. Serrano-Rivera also argues that the ALJ failed to explain in her 24 written decision why she omitted a discussion of Dr. Tejedor-Gonzalez’ findings. (Docket 25 26 No. 19 at 11). Further, Plaintiff contends that the ALJ failed to mention the major 27 28 9 1 depressive and panic disorders and that the ALJ was required to reconcile any 2 contradictory statement from medical opinions she found persuasive. (Id. at 11-12). 3 The Commissioner ripostes with respect to Dr. Tejedor-Gonzalez’ treatment 4 records, that failure to enunciate does not mean failure to consider. Also, that the 5 treatment notes of Dr. Tejedor-Gonzalez are listed in the compilation of exhibits at the 6 7 end of the ALJ’s decision thus creating a presumption that said evidence was in fact 8 considered. The Commissioner further claims that any discrepancies between the 9 diagnosis of major depressive disorder and other evidence in the record is “slight and 10 irrelevant.” (Docket No. 27 at 7). Ultimately, says the Commissioner, the ALJ found 11 Plaintiff’s major depressive disorder to be a severe impairment and Ms. Serrano-Rivera 12 13 has not established that said condition added more limitations than those already 14 assessed by the ALJ in her RFC. 15 With respect to the first part of this argument, I do agree that one would have 16 expected to see a more detailed discussion of Dr. Tejedor-Gonzalez’s progress notes. I 17 disagree, however, with the notion that failure to include a more thorough outlining of 18 19 the notes warrants reversal. As Plaintiff herself acknowledges, there is no requirement 20 that an ALJ discuss every bit of evidence in the record when penning her decision. See 21 Conrad v. Kijakazi, 666 F. Supp. 3d 161, 176 (D. Mass. 2003) (citing Miller v. Astrue, 22 2011 WL 2462473, at *11 (D. Mass. June 16, 2011)). There is a presumption that the ALJ 23 has considered all the evidence before her. (Id.). 24 Here, not only did Ms. Serrano-Rivera testify during the hearing that she was 25 26 treated by Dr. Tejedor-Gonzalez, but also, the progress notes are part of the exhibits the 27 ALJ included along with her decision. (Tr. 40). The notes mention anxiety and mood 28 10 1 disorder under the “current diagnoses” section. The symptoms described in the notes 2 are certainly consistent with depression. (Tr. 447-454, 919-947, 1061-1068). In the end, 3 even assuming that the notes of Dr. Tejedor-Gonzalez were completely ignored by the 4 ALJ, there was a determination that Plaintiff’s depressive disorder was a severe 5 impairment. And Plaintiff has not presented any persuasive argument that any such 6 7 failure to properly consider the notes impacted the RFC determination or would have 8 resulted in a more limiting RFC. See Freeman, 274 F.3d at 608 (Plaintiff bears the 9 burden of production and persuasion as to her limitations); see also Bard v. SSA Comm’r, 10 763 F. Supp. 2d 270, 276 (D. Me. 2010)(“[T]he claimant bears the burden of proving the 11 limitations that factor into the Commissioner’s residual functional capacity finding.”). 12 13 I also agree with the Commissioner that any inconsistencies between the evidence 14 in the record as to major depression and the consultative examiner’s (“CE”) use of a 15 diagnostic code reflecting “mild” depression, is of no moment. Dr. Wildaliz Caro- 16 Gonzalez (impartial medical expert) testified that there were inconsistencies between 17 hospitalization6 diagnoses and CE Dr. Jose A. Correa-Falcon’s opinion. She specifically 18 19 noted that records of the two hospitalizations reflected diagnoses of severe recurrent 20 mayor depression, but the CE diagnosis was “mild” recurrent mayor depression and 21 panic disorder. (Tr. 54). 22 As to this issue, it should be noted first that an ALJ is not “required to reconcile 23 explicitly every conflicting shred of medical testimony” as long as the conflicting evidence 24 25 26 27 6 Ms. Serrano-Rivera was hospitalized at San Juan Capestrano from April 3 to 8, 2019, and at Mercy Hospital of Buffalo, New York, from August 28 to September 2, 2020. 28 11 1 does not affect the RFC assessment. Dioguardi v. Comm’r of Soc. Sec., 445 F. Supp. 2d 2 288, 297 (W.D.N.Y. 2006). Second, the RFC assessment was ultimately constructed 3 based on a finding that the depressive disorder was a severe impairment and the ALJ 4 carefully explained her reasoning as to the limitations such impairment imposed on 5 Plaintiff. To the extent there was error, and I am not finding there was, it was harmless. 6 7 See Dube v. Kijakazi, No. 23-1068, 2024 WL 372841, 2024 U.S. App. LEXIS 2448, at *2 8 (1st Cir. Jan. 16, 2024)(Appellant failed to show how she might have been prejudiced by 9 the ALJ’s finding of some impairments to be “severe” while consultants found the same 10 impairments to be “non-severe.”). 11 Panic Disorder and Lupus 12 13 Next, Plaintiff argues that in assessing her RFC, the ALJ did not considered her 14 panic disorder and lupus conditions. (Docket No. 19 at 14). This claim of error is easily 15 disposed of. For starters, as to panic disorder, there is only a passing reference about the 16 condition in the CE’s report. Specifically, Dr. Correa-Falcon indicated in his brief report 17 that Plaintiff “shows history [sic] . . . consistent with . . . Panic Disorder. (Tr. 917). The 18 19 rule is that a medically determinable impairment “must be established by objective 20 medical evidence from an acceptable medical source.” 20 C.F.R. § 404.1521. Other than 21 the CE’s terse assertion, the record is devoid of any objective medical evidence to justify 22 a finding that panic disorder is a medically determinable impairment suffered by the 23 Plaintiff. See Nicole C. v. O’Malley, No. 23-cv-415-NT, 2024 U.S. Dist. LEXIS at *11 (D. 24 Me. July 1, 2024)(ADHD references in the record were fairly characterized as Plaintiff’s 25 26 report of symptoms rather than the result of objective medical evidence.). After all, the 27 ALJ received the testimony of impartial medical expert Dr. Caro-Gonzalez that the “panic 28 12 1 diagnosis is inconsistent with the medical evidence as well.” (Tr. at 55). The Plaintiff has 2 not directed me to any specific medical evidence contained in the record, and I have 3 found none, that would substantiate a finding that panic disorder was a medically 4 determinable impairment. It cannot be error, let alone reversible error, for an ALJ not 5 to factor in a condition in her analysis when there is a complete dearth of objective 6 7 medical evidence of its existence. See Picard v. McMahon, 472 F. Supp. 2d 95, 101 (D. 8 Mass. 2007)(upholding hearing officer’s finding of non-severe mental impairment due 9 to the lack of objective medical evidence in the record.). 10 As to the lupus condition, Plaintiff boldly claims that “[t]he ALJ never mentioned 11 the medically determinable condition[] of . . . lupus in her RFC assessment.” (Docket No. 12 13 19 at 15). This is simply incorrect. In explaining her reasoning for her construction of 14 the RFC in this case, the ALJ specifically mentioned SLE. (Tr. 31). Moreover, the record 15 shows that Dr. Caro-Gonzalez testified about the existence of the condition from 16 Plaintiffs’ medical history. (Tr. 50). And in her written decision, the ALJ listed the 17 systemic lupus erythematosus as one of Plaintiff’s severe impairments. (Tr. 25). She 18 19 concluded, however, that Plaintiff did not meet the criteria of Listing 14.02. (Tr. 26). 20 Thus, the impairment did not meet or equaled the severity of impairments listed in the 21 regulations, a finding that has not been challenged by Ms. Serrano-Rivera. 22 It should be noted that in addition to mentioning the SLE diagnosis as part of the 23 RFC assessment, the ALJ specifically discussed the progress notes from Urban Family 24 Practice (Exhibit B16F - Tr. 455-468) where the lupus diagnosis is reflected. In outlining 25 26 her reasoning for the RFC ultimately determined, the ALJ referenced the most relevant 27 of Plaintiff’s symptoms such as joint pain and swelling, and other physical limitations 28 13 1 consistent with the lupus diagnosis and the other severe and non-severe impairments, 2 noting where appropriate, what evidence and opinions she found to be more or less 3 persuasive. (Tr. 29-34). Nothing more was required of the ALJ. See Tellier v. US SSA, 4 Case No. 17-cv-184-PB, 2018 DHN 143, 2018 U.S. Dist. LEXIS 114012, at *8-9 (D.N.H. 5 Jul. 10, 2018)(by concluding that SLE was a severe impairment and discussing joint pain 6 7 as a symptom of the condition, the ALJ acted appropriately in her RFC assessment.) 8 Furthermore, as stated before, the Plaintiff bears the burden of coming forward 9 with evidence to establish how her impairments impact her RFC. Here, she has failed to 10 point to evidence in the record that any shortcoming of the ALJ in adequately 11 considering and weighing her lupus condition resulted in a flawed RFC. See Torres v. 12 13 Comm’r of Soc. Sec., Civil No. 22-1481 (MEL), 2024 WL 1886455, 2024 U.S. Dist. LEXIS 14 81463, at *11 (D.P.R. Apr. 30, 2024)(“While the ALJ did not explicitly discuss 15 fibromyalgia in the RFC assessment, the ALJ did consider Plaintiff’s fibromyalgia-like 16 symptoms . . . .”). 17 Environmental Limitations - Asthma 18 19 Ms. Serrano-Rivera contends that the ALJ’s failure to include environmental 20 limitations for her severe bronchial asthma as part of her RFC determination was error 21 because “an individual with severe asthma . . . would have environmental limitations and 22 restrictions such as the need to avoid dust, fumes, gases, extremes of temperature, and 23 other respiratory irritants.” (Docket No. 19 at 16). However, the Plaintiff does not cite 24 any authority or regulation for this assertion, nor develops the argument further. She 25 26 likewise does not direct the Court to evidence in the record to support her contention. 27 28 14 1 It is correct that the ALJ found that Plaintiff’s bronchial asthma condition was a 2 severe impairment. (Tr. 25). Nevertheless, the record shows that on July 1, 2019, Ms. 3 Serrano-Rivera submitted to a rheumatological consultative examination with Dr. Carlos 4 A. Pantojas where she reported a history of bronchial asthma but denied respiratory 5 symptoms such as sputum, cough, wheezing, and shortness of breath. (Tr. 1046-1053). 6 7 At that time, the physical examination revealed good breath sounds and clear lungs on 8 auscultation. (Id.). Likewise, the Urban Family Practice notes for the physical 9 examination of December 10, 2020, revealed no respiratory symptoms. (Tr. 462). Lastly, 10 during the testimony of Dr. Gilberto Munoz, an impartial medical expert, the ALJ asked 11 about environmental limitations. Only occasional exposure to extreme cold and 12 13 vibration were noted. While Plaintiff has a history of bronchial asthma, a severe 14 impairment, the evidence on record shows that such condition was stable during the 15 relevant period under consideration. Therefore, the ALJ was not legally required to craft 16 a more restrictive RFC with respect to environmental limitations in the absence of 17 medical evidence supporting the need for said limitations. See Stanley v. Comm’r of Soc. 18 19 Sec., No. 15-cv-02403-MO, 2017 U.S. Dist. LEXIS 44444, at *15-16 (D. Or. Mar. 23, 20 2017)(ALJ’s failure to include environmental limitations in formulating RFC was 21 affirmed as supported by the evidence in the record where respiratory condition was 22 stable and under control.). 23 Limitation Regarding Epilepsy in the RFC 24 As to this claim of error, Plaintiff alleges that in determining her RFC, the ALJ 25 26 failed to explain why she included a limitation regarding epilepsy when previously 27 stating this was a non-medically determinable impairment. (Docket No. 19 at 17). Indeed, 28 15 1 in her written decision, the ALJ concluded that epilepsy was a non-medically 2 determinable impairment because the record was devoid of evidence treatment for that 3 diagnosis after the alleged onset date. (Tr. 25). Plaintiff testified she suffers from epilepsy 4 but that she could not recall the last time she had an epileptic seizure. (Tr. 47). She stated 5 that she “get[s] them in absentia”; she only feels something in her mouth and then goes 6 7 blank. (Id.) However, she told the ALJ that she has not felt that for a long time. (Id.) 8 Also, during the rheumatological consultative examination, Plaintiff denied seizures. (Tr. 9 1047). The ALJ thus concluded that “in the absence of clinical findings or medical 10 observations validating symptoms, this physical impairment cannot be medically 11 determined.” (Tr. 25). 12 13 It is not entirely clear, but to the extent that the Plaintiff is challenging the Step 14 Two finding that epilepsy was a non-medically determinable impairment, such challenge 15 fails. The medical evidence is insufficient to demonstrate that during the relevant period, 16 she was under a formal diagnosis of epilepsy or that there were documented episodes of 17 said condition. The Commissioner correctly points out that medical records from 18 19 treating physicians do not show that she was being treated for epileptic seizures. Only 20 Plaintiff’s testimony at the hearing was to the effect that “the psychiatrist is treating me 21 and the rheumatologist.” (Tr. 73). Without providing a timeframe or context, Plaintiff 22 further testified that she was prescribed Lyrica, but seemed confused about who was the 23 Doctor that prescribed said medication or when it was discontinued because it “can be 24 counterproductive” given the other medication that she was taking. (Tr. 74). Regardless, 25 26 a diagnosis and evidence of treatment are alone insufficient to establish a severe 27 impairment at step two. See, e.g., Mateo-Rivera v. Comm’r of Soc. Sec., No. 19-1301 28 16 1 (MEL), 2020 WL 7786920, 2020 U.S. Dist. LEXIS 245224, at *17-18 (D.P.R. Dec. 30, 2 2020)(citations omitted). 3 Plaintiff also questions the logic of including an epilepsy-related noise limitation 4 in the RFC when the ALJ concluded such impairment was not medically determinable. 5 The problem is that she reads too much into the fact that impartial medical expert Dr. 6 7 Gilberto Muñoz recommended limitations regarding noise and strobe lights. It is true 8 that Dr. Muñoz referred to Plaintiff’s “history of epilepsy” in making such 9 recommendation. (Tr. 51). But the Commissioner is correct that, ultimately, the noise 10 restriction was related to Plaintiff’s complain that she could not stand noise due to her 11 pain and mental conditions as testified by her (Tr. 28-30, 82)7, and not necessarily 12 13 connected to her history of epilepsy. What is more, during the testimony of the VE, the 14 ALJ made sure that the jobs identified at Step Five required only a moderate level of 15 noise (Tr. 57-59), thus addressing the noise limitation that can be said to derive from 16 Plaintiff’s severe and non-severe impairments. In view of the foregoing, I find that 17 Plaintiff has not been prejudiced by any inconsistency with respect to findings related to 18 19 epilepsy or the noise-related limitations included the in the RFC determination. Perez v. 20 Astrue, No. 11-30074-KPN, 2011 WL 6132547, 2011 U.S. Dist. LEXIS 142092, at *9-10 21
23 7 Plaintiff testified:
24 Actually, I can't stand noises. I can’t stand being with people. I can’t stand it. I feel like running away. I feel like hitting people. I can’t stand that. I can’t stand noises or 25 someone repeating things to me. I can’t stand pain. I can’t stand any of that. I can’t listen to any noise because I feel like running away. For someone to repeat things to 26 me, I can’t do that.
27 (Tr. 82).
28 17 1 (D Mass. Dec. 7, 2011)(failure to properly analyze a condition at step two was harmless 2 where ALJ considered all impairments both severe and non-severe and there was no 3 indication that the ALJ failed to consider the cumulative effects of said impairments.); 4 see also Irizarry-Martinez v. Comm’r of Soc. Security, No. 15-2006 (BJM), 2017 WL 5 87018, 2017 U.S. Dist. LEXIS 4187, at *26 (D.P.R. Jan. 10, 2017)(quoting Molina v. 6 7 Astrue, 674 F.3d 1104, 115 (9th Cir. 2021)(“[A]n ALJ’s error is harmless where it is 8 inconsequential to the ultimate nondisability determination.”). 9 V. Conclusion 10 In view of all of the above, the Commissioner’s decision is AFFIRMED. 11 IT IS SO ORDERED. 12 13 In San Juan, Puerto Rico this 10th day of July 2024. 14 S/Héctor L. Ramos-Vega HÉCTOR L. RAMOS-VEGA 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 18