UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Jose Vargas Mendoza

v. Case No. 13-cv-279-SM Opinion No.

Carolyn W. Colvin, Acting Commissioner, Social Security Administration

O R D E R

Pursuant to

(g) and 1383(c)(3), Jose Vargas

Mendoza moves to reverse the Commissioner’s decision denying his

application for social security disability insurance benefits and

supplemental security income benefits. The Commissioner moves to

affirm the decision. For the reasons discussed below, Mendoza’s

motion is denied, and the Commissioner’s motion is granted.1

Factual Background2

I. Medical History

In 1996, diagnostic testing for back pain showed that

Mendoza had a large central disc herniation at L5-S1. He sought

1 In the parties’ joint statement of material facts, the claimant is referred to as “Mr. Mendoza,” “Mr. Vargas,” “Mr. Vargas Mendoza,” and “Mr. Vargas-Mendoza.” At the hearing, the claimant explained that “Vargas” is his father’s name and Mendoza is his mother’s name and that he uses both names. To avoid additional confusion and because the claimant is more often referred to as “Mendoza”, the court will use the name “Mendoza” when referring to him. 2 The factual background is summarized from the parties’ joint statement of material facts, which is document no. 15. treatment for back pain and related headaches during the next

several years.

While lifting weights in 2007, Mendoza tore the left

pectoralis muscle. On July 6, 2007, Dr. Bell, a surgeon at

Dartmouth-Hitchcock Medical Center, performed surgery to repair

the torn muscle. Mendoza had follow up examinations with Dr.

Bell through January of 2008. In March of 2008, Mendoza saw Dr.

Monawar because of back pain. In April and May of 2008, Mendoza

had physical therapy for left pectoralis muscle weakness that was

recommended by his primary care physician, Dr. Jacinto P. Casio.

An MRI done in August of 2009 showed disc disease at L5-S1

with central disc extrusion. Dr. Casio prescribed pain

medication for low back pain and also treated Mendoza for

hypertension and dyslipidemia (excess cholesterol). Mendoza

continued to be treated by Dr. Casio through 2011. Mendoza

underwent evaluative examinations and assessments in 2009 through

2011 for purposes of his application for benefits.

II. Procedural History

Mendoza applied for social security benefits on May 21,

2007, alleging that he had been disabled since January 1, 2007,

due to a ruptured left pectoralis muscle and lumbar disc disease.

2 When his application was denied, Mendoza sought a hearing before

an Administrative Law Judge (“ALJ”). The hearing was held on

March 11, 2010, and Mendoza, who was represented by counsel,

testified. A vocational expert also testified.

The ALJ issued his decision on April 16, 2010. The ALJ

found that Mendoza had “left upper extremity disorder” and

degenerative disc disease of the lumbar spine that were severe

impairments. Admin. Rec. at 24. The ALJ also found that despite

those impairments Mendoza was able to do light work except for

jobs that required reading and writing. In addition, the ALJ

imposed work limitations for no overhead reaching with the left

arm, only occasional pushing and pulling and horizontal reaching

with the left arm, no climbing ladders or scaffolding, and only

unskilled work with routine and repetitive tasks. Although he

found that Mendoza could not return to his former work as a

machine operator or a warehouse worker, the ALJ concluded, based

on the testimony of the vocational expert, that jobs existed in

significant numbers that Mendoza could do. Therefore, the ALJ

determined that Mendoza was not disabled.

Mendoza sought review of that decision here, arguing that

the ALJ did not properly evaluate the medical opinions in the

record. The court held that the ALJ did not adequately explain

3 his reasons for giving controlling weight to the opinion of the

state agency non-examining physician while giving little weight

to the opinions of Mendoza’s treating physicians. The court also

noted that the state agency non-examining physician completed his

review of the record before certain test results and the opinions

of Mendoza’s general practitioner were added to the record. As a

result, the decision of the Commissioner was vacated, and the

case was remanded for further proceedings. See Mendoza v.

Astrue, Case No. 10-cv-157-SM (D.N.H. May 10, 2011).

On remand, the case was assigned to the same ALJ, and a

hearing was held on November 17, 2011. Mendoza, who was again

represented by counsel, was present and testified. Donald

Goldman, M.D., an orthopedic surgeon, testified telephonically as

an independent medical expert. A vocational expert testified in

person.

The ALJ issued his decision on January 20, 2012, in which he

again concluded that Mendoza was not disabled. In this decision,

the ALJ found that Mendoza’s severe impairments were degenerative

disc disease of the lumbar spine and ruptured left pectoralis

muscle. The ALJ reviewed the medical evidence and found that

Mendoza’s allegations as to the severity of his limitations were

not supported by the record. Based on his review of the record,

4 the ALJ concluded that Mendoza had the residual functional

capacity “to perform a range of light-sedentary work as defined

in 20 C.F.R. 404.1567(a) and 416.967(a) except he can lift up to

20 pounds occasionally and 10 pounds frequently, but he can sit

for 8 hours, stand and walk for 1 hour each in an eight hour work

day.” Admin. Rec. at 501. The ALJ also found some limitations

in Mendoza’s ability to reach with his left arm and in doing

postural activities.

In making the residual functional capacity assessment, the

ALJ gave great weight to Dr. Goldman’s opinion that Mendoza had

no restrictions on his ability to walk, stand, and sit. The ALJ

gave moderate weight to the medical opinions of a consultative

examining physician, Dr. Ralph Wolf, and two state agency medical

consultants, Dr. Hugh Fairley and Dr. Robert F. Draper, who each

found that Mendoza had residual functional capacity for work with

some limitations. The ALJ gave some weight to the opinion of an

occupational therapist, John Moran, who evaluated Mendoza and

found he had a residual functional capacity to do light work but

only on a part-time basis. The ALJ gave little weight to the

opinion of Mendoza’s treating physician, Dr. Casio, that Mendoza

was unable to work, and little weight to similar opinions by

treating physicians, Dr. Bell and Dr. Monawar.

5 The ALJ found that Mendoza could not do his past relevant

work because those jobs required exertional levels beyond

Mendoza’s capacity. Although Mendoza’s counsel argued that

Mendoza had limited ability to communicate, read, and write in

English because he had grown up and gone to school in Mexico, the

ALJ noted Mendoza’s proficiency in English at the hearing and

that Mendoza had obtained a general equivalency degree. Based on

the vocational expert’s testimony, the ALJ found that Mendoza

could do jobs such as an addresser, loader of semi-conductor

dies, and surveillance system monitor. For that reason, the ALJ

found that Mendoza was not disabled.

Standard of Review

Pursuant to § 405(g), the court is empowered “to enter, upon

the pleadings and transcript of the record, a judgment affirming,

modifying, or reversing the decision of the Commissioner of

Social Security, with or without remanding the cause for

rehearing.” In reviewing a social security decision, the court

“is limited to determining whether the ALJ deployed the proper

legal standards and found facts upon the proper quantum of

evidence.” Nguyen v. Chater,

(1st Cir. 1999);

accord Seavey v. Barnhart,

(1st Cir. 2001).

Factual findings and credibility determinations made by the

Commissioner are conclusive if supported by substantial evidence.

6 § 405(g); Irlanda Ortiz v. Sec’y of Health & Human Servs.,

(1st Cir. 1991). “Substantial evidence is more

than a scintilla. It means such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion.” Astralis Condo. Ass’n v. Sec’y Dep’t of Housing &

Urban Dev.,

(1st Cir. 2010).

Disability, for purposes of social security benefits, is

“the inability to do 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.”

(a).3 The ALJ follows a five-step

sequential analysis for determining whether a claimant is

disabled.

. The claimant bears the burden,

through the first four steps, of proving that his impairments

preclude him from working. Freeman v. Barnhart,

(1st Cir. 2001). At the fifth step, the Commissioner

determines whether other work that the claimant can do, despite

his impairments, exists in significant numbers in the national

3 The Social Security Administration promulgated regulations governing eligibility for disability insurance benefits at Part 404 and eligibility for supplemental security income at Part 416. Because the regulations are substantially the same, the court will cite only to the disability insurance benefits regulations, Part 404. See McDonald v. Sec’y of Health & Human Servs.,

, 1120 n.1 (1st Cir. 1986).

7 economy and must produce substantial evidence to support that

finding. Seavey,

.

Discussion

In support of his motion to reverse the Acting

Commissioner’s decision, Mendoza contends that the ALJ did not

weigh the medical opinion evidence properly, particularly the

opinions of Dr. Goldman and Dr. Casio. Mendoza also contends

that the ALJ failed to properly consider his language limitations

and did not identify enough jobs to meet the significant numbers

requirement at Step Five. The Acting Commissioner moves to

affirm.

I. Medical Opinions

The social security regulations provide the structure for

determining what weight is given to medical opinions.

. As directed by the regulations, the ALJ attributes

weight to a medical opinion based on a variety of factors

including the nature of the relationship between the medical

source and the applicant, the extent to which the opinion

includes supporting information, the consistency of the opinion

with the record as a whole, the specialization of the source, the

source’s understanding of the administrative process, and the

source’s familiarity with the applicant’s record. § 404.1527(d);

8 see also Policy Interpretation Ruling Titles II and XVI: Giving

Controlling Weight to Treating Source Medical Opinions, SSR 96-

2p,

(July 2, 1996). A treating medical source is

the applicant’s own physician, psychiatrist, psychologist, or

other acceptable medical source.

. A

treating source’s opinion will be given controlling weight if it

is “well-supported by medically acceptable clinical and

laboratory diagnostic techniques and is not inconsistent with the

other substantial evidence in [the] case record.” § 404.1527(d).

If the ALJ decides not to give controlling weight to a treating

source’s opinion, the decision must provide specific reasons to

support the weight given. SSR 96-2p.

A. Dr. Goldman

Dr. Goldman, an orthopedic surgeon, testified at the hearing

as a medical expert but did not treat or examine Mendoza. During

his testimony, Dr. Goldman stated that there was no objective

evidence in the record to support Mendoza’s complaints of

disabling pain in his back or the limitations ascribed by some of

the other medical sources. In Dr. Goldman’s opinion, Mendoza had

no limitations in his ability to stand, walk, or sit, but was

restricted from climbing ladders and scaffolding.4

4 Mendoza contends that Dr. Goldman erred in failing to consider his hypertension and other physical issues. As Dr. Goldman explained, he is an orthopedic surgeon and did not

9 The ALJ gave “great weight” to Dr. Goldman’s opinion. In

support, the ALJ stated that Dr. Goldman had reviewed the entire

record and had heard Mendoza’s testimony at the hearing. The ALJ

noted that Dr. Goldman was questioned by Mendoza’s counsel and

had explained the significance of a lack of objective findings

and clinical examination results to support the limitations

Mendoza claimed. The ALJ also noted that Dr. Goldman

acknowledged some limitations caused by the injury to Mendoza’s

pectoralis muscle but that the injury did not preclude all

functioning. The ALJ found that Dr. Goldman’s opinion was well

supported by the record.

Mendoza contends that Dr. Goldman’s opinion should not have

been given great weight for a variety of reasons. Mendoza,

however, does not contend that Dr. Goldman misread the record and

overlooked objective findings and clinical examination results

that support Mendoza’s claims.5 At the hearing, counsel for

Mendoza acknowledged in response to a question from Dr. Goldman

that Dr. Wolf’s consultative examination was the only record

consider other issues that were not within his area of expertise. 5 Although Mendoza criticizes Dr. Goldman for failing to mention records generated by Dr. Wang at Pain Solutions, Dr. Wang provides no objective findings that support Mendoza’s claims. Dr. Wang found good range of motion, pain free, in Mendoza’s hips and legs, and no difficulty with walking. Dr. Wang also noted that straight leg testing was negative.

10 evidence of an examination of Mendoza’s back for function. While

Dr. Goldman’s “vehement” disagreement with Dr. Wolf’s opinions

seems a bit overstated, Dr. Goldman was correct that Dr. Wolf’s

examination notes show normal ranges of motion in Mendoza’s left

arm and both legs and hips and negative results on straight-leg

tests.

To the extent that Mendoza challenges the ALJ’s reliance on

Dr. Goldman’s opinion because the ALJ might have requested a

consultative examination or might have submitted written

interrogatories to Dr. Goldman, Mendoza has not shown that

failure to employ those options warrants reversal of the ALJ’s

decision. In addition, although Mendoza argues that Dr. Goldman

should have submitted a written report expressing his opinion

before the hearing, Mendoza provides no authority suggesting that

such a report was required.

The opinion of a non-examining medical expert may provide

substantial evidence to support the ALJ’s findings when the

opinion is properly supported by adequate explanations.

§ 404.1527(c)(3); Berrios Lopez v. Sec’y of Health & Human

Servs.,

(1st Cir. 1991). Dr. Goldman explained

that his opinion was based on the lack of objective findings in

the record supporting Mendoza’s complaints, specifically that the

11 record did not show atrophy in his legs, a gait abnormality,

positive results on straight leg testing, parathesias or

weakness, or supporting test results. Instead, Dr. Goldman

explained, the record contained opinions about limitations based

on Mendoza’s subjective complaints of pain without any test

results to support the opinions. Dr. Goldman noted that the

evaluation done by the occupational therapist was more than two

years old and that the medical records produced since did not

show supporting objective evidence of limitations. Dr. Goldman

disagreed with the opinions of Mendoza’s primary care doctor, Dr.

Casio, because he was not a surgeon, and he disagreed with the

opinion of the consulting orthopedist, Dr. Wolf, because he did

not reference medical evidence to support the limitations he

found.

Although Dr. Goldman’s manner in giving testimony may have

been unconventional, he provided explanations for his opinions

based on the record. He asked questions during his testimony to

satisfy himself that he had seen all of the medical record and

that there were no other test results or records to support the

limitations Mendoza claimed. He did not diagnose Mendoza’s back

issue because he did not find medical support for the pain

Mendoza claimed. As such, Dr. Goldman’s opinion was properly

12 supported and entitled to the weight the ALJ chose to ascribe to

it.

B. Dr. Casio

Dr. Casio gave opinions about Mendoza’s impairments and

limitations based on his treating relationship with Mendoza, as

his primary care physician. In 2008, Dr. Casio wrote that his

office was following Mendoza and that Mendoza’s chronic low back

pain made it difficult for him to work. Between 2009 and 2011,

Dr. Casio wrote several “To Whom It May Concern” letters saying

that Mendoza was being followed by his office and was unable to

work because of significant low back pain due to lumbar disc

disease.

In May of 2010, Dr. Casio completed a medical source

statement in which he noted that Mendoza was limited to lifting

and carrying no more than ten pounds occasionally, could walk or

stand for less than two hours in an eight-hour day, and was

limited in his ability to push and pull. Dr. Casio also

indicated that Mendoza would need unscheduled breaks, was not

capable of sustaining gainful employment, and would be absent

three or more times per month. In a “To Whom It May Concern”

note written on the same day, Dr. Casio stated that Mendoza had

intractable low back pain and chronic pain due to the pectoralis

13 muscle rupture, that he was deconditioned, and that he was being

followed for hypertension and dyslipidemia.

The ALJ acknowledged Dr. Casio’s notes and his opinions as

provided in the medical source statement, but gave those opinions

little weight. The ALJ explained that although Dr. Casio’s

treatment notes document Mendoza’s subjective complaints about

his back pain, Dr. Casio did not perform musculoskeletal

examinations to evaluate his subjective complaints. As a result,

Dr. Casio’s treatment notes included little or no objective or

clinical testing results to support his opinion.

Mendoza argues that the ALJ overemphasized the need for

clinical or objective evidence to support his impairments and

instead should have credited Dr. Casio’s opinion that was based

on Mendoza’s subjective complaints. In support, Mendoza relies

on SSR 96-7p, “Titles II and XVI: Evaluation of Symptoms in

Disability Claims: Assessing the Credibility of an Individual’s

Statements,”

, which explains that while symptoms

cannot be measured objectively, the effects of symptoms can be

clinically observed through examination and objective results.

Dr. Casio did not clinically observe the claimed effects of

Mendoza’s symptoms. As such, SSR 96-7p does not support

Mendoza’s claim of error.

14 Therefore, the ALJ properly explained the weight he

attributed to Dr. Casio’s opinion.

C. Other Opinions

Mendoza contends that the ALJ ascribed the greatest weight

to the least credible sources and should have given greater

weight to the treating source opinions. Relying on SSR 96-8p,

“Titles II and XVI: Assessing Residual Functional Capacity in

Initial Claims,”

, at *5, Mendoza argues that the

ALJ should have given more weight to other opinions “because

subjective descriptions may indicate more severe limitations or

restrictions than can be shown by objective medical evidence

alone.”

1. Other Medical Opinions

Mendoza disagrees with the weight ascribed to other non-

treating sources, Dr. Draper and Dr. Fairley. The ALJ gave each

opinion moderate weight and explained that their opinions were

consistent with the record evidence that “showed largely normal

examinations.” Because those opinions were not from treating

sources, the ALJ gave them only moderate weight. As such, the

ALJ properly explained the basis for his assessment of those

decisions.

15 Mendoza notes that the ALJ did not address Dr. Wang’s

“impressions” of Mendoza based on a single examination conducted

for purposes of providing pain management care. Mendoza does not

identify a medical opinion that the ALJ ignored. Further, as

discussed above, Dr. Wang’s treatment notes do not provide

support for disabling impairments.

Dr. Wolf, who did a consultative examination, provided an

opinion that Mendoza could work at a sedentary exertional

capacity with certain other restrictions. The ALJ gave Dr.

Wolf’s opinion moderate weight because it was consistent with

other treatment notes and functional capacity evaluations.

Mendoza does not explain why that assessment was erroneous.

The ALJ explained that he gave the opinions of Dr. Bell and

Dr. Monawar, both treating physicians who gave opinions that

Mendoza was unable to work in 2007 and 2008, little weight. The

ALJ explained that Dr. Bell did not provide an analysis of

Mendoza’s functional abilities and limitations, that his opinion

was inconsistent with Dr. Bell’s evaluation of Mendoza, and that

the opinion that Mendoza could not work addressed an issue that

is reserved for the Commissioner to decide. Similarly, the ALJ

explained that Dr. Monawar’s opinion was expressed on a health

certificate that Mendoza was disabled and could not work as of

16 April of 2008 and that the opinion was not consistent with Dr.

Monawar’s evaluation of Mendoza, was based on a short treating

relationship, and addressed an issue which is reserved for the

Commissioner. The ALJ, therefore, adequately explained his

reasons for giving little weight to those opinions.

2. Occupational Therapist Evaluation

John Moran did a functional capacity evaluation of Mendoza.

Moran found that Mendoza could work at the light exertional

level, avoiding overhead lifting with the left shoulder, but only

on a part-time basis. The ALJ gave Moran’s opinion some weight

but stated that it was unclear why Moran limited Mendoza to part-

time work when Mendoza was able to complete the three-hour test,

although some activities were interrupted by elevated blood

pressure. The ALJ noted that Mendoza’s elevated blood pressure

had not been treated at the time of the evaluation and that the

issue was addressed in the restrictions in the residual

functional capacity.

Mendoza argues that Moran’s opinion is the best source of

his ability to do work activities. He contends that the ALJ did

not adequately explain the weight ascribed to the opinion and

17 ignored Moran’s restrictions that would allow Mendoza to “self

pace” and change position at work.6

Only acceptable medical sources can give medical opinions,

can be considered treating sources, and can establish the

existence of a medically determinable impairment. §§ 404.1502,

404.1513(a), & 404.15276(a)(2); see also SSR 06-3p,

, at *2 (Aug. 9, 2006)7; Taylor v. Astrue,

(D. Mass. 2012). Other care providers “may provide

insight into the severity of the impairment and how it affects

the individual’s ability to function.” SSR 06-3p,

, at *2; accord Young v. Colvin,

, at *6

(D.N.H. Feb. 25, 2014); Noonan v. Astrue,

, at *8

(D.N.H. Nov. 26, 2012). “As the Commissioner’s own Social

Security Ruling explains, ‘[t]he evaluation of an opinion from a

medical source who is not an “acceptable medical source” depends

on the particular facts in each case. Each case must be

adjudicated on its own merits based on a consideration of the

probative value of the opinions and a weighing of all the

6 Moran’s limitation for change of position related to his opinion that, in the future, Mendoza may be able to do full time work at the medium exertional level. 7 SSR 06-3p is titled Titles II and XVI:II and XVI: Considering Opinions and Other Evidence from Sources Who Are Not “Acceptable Medical Sources” in Disability Claims; Considering Decisions on Disability by Other Governmental and Nongovernmental Agencies.”

18 evidence in that particular case.’” Taylor,

(quoting SSR-06-3p at *5).

The ALJ correctly noted that Moran did not explain why he

limited Mendoza to part-time work. It appears from Moran’s

report that the limitation may have been based on Mendoza’s poor

conditioning, which led to elevated heart rate and blood pressure

during certain activities. Moran’s evaluation was done in

January of 2009. Subsequent medical sources have not limited

Mendoza to part-time work. Therefore, the ALJ properly

considered Moran’s evaluation results and was not required to

give them more weight than was ascribed.

Mendoza has not shown any reversible error based on the

ALJ’s evaluation of the medical opinion evidence.

II. Residual Functional Capacity

The ALJ found that Mendoza had “the residual functional

capacity to perform a range of light-sedentary work as defined in

20 CFR 404.1567(a) and 416.967(a) [sic] except he can lift up to

20 pounds occasionally and 10 pounds frequently, but he can sit

for 8 hours, stand and walk for 1 hour each in an 8 hour

workday.” Admin. Rec. at 501. The ALJ found that Mendoza could

“frequently reach, handle, finger, feel, push, and pull with the

19 right dominant hand.”

Mendoza was limited with his left arm

and hand “to occasional reaching overhead, reaching in other

directions, and pushing and pulling.”

He was able to do all

postural activities occasionally but had to avoid unprotected

heights, work with vibrating machines, and extreme temperatures.

A. Capacity

Mendoza contends that the ALJ’s residual functional capacity

assessment is misleading because of the limitation to “light-

sedentary work.” He argues that as described by the ALJ his

exertional capacity was less than sedentary because of limited

lifting, no carrying, and other restrictions. Mendoza

misinterprets the ALJ assessment.

The ALJ cited § 404.1567(a) and § 416.967(a), which define

sedentary work for purposes of Title II and Title XVI,

respectively. “Sedentary work involves lifting no more than 10

pounds at a time and occasionally lifting or carrying articles

like docket files, ledgers, and small tools.” § 404.1567(a).

The ALJ modified that assessment to allow lifting up to 20 pounds

occasionally and 10 pounds frequently, which corresponds to the

definition of light work at § 404.1567(b) and § 416.967(b).

Therefore, the ALJ assessed a capacity for sedentary work with a

20 capacity for lifting and carrying at the light work level. The

assessment is properly explained and is not misleading.

B. Language

Mendoza contends that the ALJ erred in failing to impose a

limitation in the residual functional capacity on his ability to

communicate in English, specifically to read and write in

English. Mendoza argues that the ALJ imposed that limitation in

his prior decision, issued on April 16, 2010, and did not

adequately explain why the limitation was omitted from the

decision under review here.

The ALJ’s prior decision denying Mendoza’s application for

benefits for the same period of disability was vacated by the

Appeals Council and does not have preclusive effect. See Izzo v.

Comm’r of Social Sec.,

(3d Cir. 2006);

Kerney v. Colvin, ___ F. Supp. 2d ___,

(S.D. Ohio Mar. 18, 2014); cf. Drummond v. Comm’r of Social Sec.,

(6th Cir. 1997) (burden on Commissioner to show

changed circumstances for a second application to avoid

preclusive effect of a prior final decision awarding benefits).

Therefore, the ALJ’s previous residual functional capacity

assessment has no effect on the decision under review.

21 In the current decision, the ALJ noted that counsel for

Mendoza represented that Mendoza does not read and write well in

English and that she filed a brief on the issue after the second

hearing. In the brief, the ALJ recounted, counsel represented

that Mendoza attended school in Mexico, that his primary language

is Spanish, and that his English vocabulary is somewhat limited.

Counsel also said that Mendoza had attained a general equivalency

degree.

The ALJ found that Mendoza’s general equivalency degree was

“highly reflective of his abilities with the English language.”

The ALJ also noted that although an interpreter was available at

the hearing, Mendoza had not needed that assistance and that

Mendoza demonstrated no limitations in his ability to communicate

in English during the hearing. The ALJ noted that counsel had

not provided any evidence, other than Mendoza’s testimony, that

he had difficulty in reading and writing in English.

In support of his motion to reverse, Mendoza argues that

although he can communicate verbally in English, “he has a heavy

accent, he cannot verbally communicate grammatically well, and

his English vocabulary is limited.” Further, Mendoza contends,

“verbal communication in English was not the concern as much as

English reading and writing.” Mendoza cites his adult function

22 report, which he completed in September of 2007, to show his

inability to read and write in English.

The adult function report does not include questions, test

results, or other direct information about Mendoza’s ability to

read and write in English. Mendoza argues that his spelling

errors in his answers show his language limitations, as the ALJ

noted in his previous decision. Although he made some spelling

errors, it is not clear whether those mistakes were due to haste

and a lack of proof reading or language limitations. Mendoza has

not shown that the ALJ erred in failing to include a language

limitation in the residual functional capacity assessment.

C. Other Limitations

To the extent Mendoza argues that the ALJ’s residual

functional capacity is wrong because he did not consider

limitations caused by high blood pressure, heart disease,

headaches, or impaired renal functions, he has not shown

functional restrictions imposed by those conditions. Further,

the ALJ noted that Mendoza’s blood pressure was untreated during

the functional capacity evaluation done by John Moran and that

the issue was considered in the residual functional capacity

assessment by limiting activities that caused pain. Therefore,

23 Mendoza has not shown reversible error based on a failure to

consider all of his impairments and limitations.

III. Jobs

Based on the vocational expert’s hearing testimony, the ALJ

found that Mendoza could do unskilled sedentary work and that

representative jobs included addresser, loader of semiconductor

dies, and surveillance system monitor. Mendoza contends that

because of his limited ability to read and write in English, he

could not do the jobs the vocational expert identified. As

discussed above, Mendoza has not shown that the ALJ erred in

failing to include a language limitation in the residual

functional capacity. Without a language limitation, the

vocational expert testified that Mendoza could do all three jobs.

The vocational expert also testified that even with the

language limitations Mendoza described at the hearing he could

still do the addresser and loader jobs but that he did not know

whether he could do the surveillance monitor job. Mendoza argues

that addresser and loader occupations do not provide enough jobs

to meet the requirement of a significant number of jobs in the

regional or national economies.

24 The significant number requirement is satisfied by jobs in

either the regional or the national economy.

(d)(2)(A); see also Beltran v. Astrue,

(9th Cir. 2012); Seavey,

; Lawler v. Astrue,

, at *5 (D. Md. Apr. 19, 2011). The vocational expert

testified that there are about 100 addresser jobs in New

Hampshire and 20,000 addresser jobs in the national economy and

less than 100 loader jobs in New Hampshire and about 700 in the

national economy. Together, therefore, there are 20,700 jobs in

the national economy. Although Mendoza states that 20,700 “is

hardly a significant number,” he offers no authority or developed

argument to show that 20,700 jobs nationally is insufficient to

meet the requirement at Step Five. See, e.g., Gutierrez v.

Comm’r of Social Sec.,

(9th Cir. 2014) (holding

that 25,000 jobs in national economy was significant and citing

cases); Johnson v. Chater,

(8th Cir. 1997) (200

jobs regionally and 10,000 jobs nationally sufficient); see also

Beltran,

(discussing factors needed to

determine a “significant number”); Yelovich v. Colvin,

(9th Cir. 2013) (no bright line rule for

determining “significant number”); Taylor v. Astrue,

(10th Cir. 2012) (same).

25 Therefore, Mendoza has not shown that the ALJ erred in

finding Mendoza not disabled based on the vocational expert’s

testimony about the jobs he could do.

Because substantial evidence supports the ALJ’s findings,

the decision must be affirmed.

Conclusion

For the foregoing reasons, the claimant’s motion to reverse

the decision of the Commissioner (document no. 11) is denied.

The Commissioner’s motion to affirm (document no. 14) is granted.

The clerk of court shall enter judgment in accordance with this

order and close the case.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

August 19, 2014

cc: Janine Gawryl, Esq. T. David Plourde, AUSA

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