Valdivia v. Commissioner SSA
MEMORANDUM OPINION AND ORDER. The Court finds that Defendant's Motion to Remand [Dkt. 12] is GRANTED, and that a final judgment will be entered ordering that Defendant Commissioner's October 22, 2013 unfavorable decision denying Plaintiff's claims for disability insurance benefits be REVERSED and REMANDED under the fourth sentence of 42 U.S.C. § 405(g) for further administrative proceedings. Signed by Magistrate Judge Christine A. Nowak on 11/2/2015. (kls, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARIA DEL CARMEN VALDIVIA,
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF THE SOCIAL
§ CIVIL ACTION NO. 4:14-CV-767-CAN
MEMORANDUM OPINION AND ORDER
Now before the Court is Defendant’s Motion to Remand [Dkt. 12]. Having considered
the Motion, Response, and all other relevant filings, the Court finds that Defendant’s Motion is
I. PROCEDURAL HISTORY OF THE CASE
On May 1, 2012, Plaintiff filed her application for disability benefits under Title II of the
Social Security Act (“Act”), alleging an onset of disability date of September 21, 2011 [TR at
11]. The claim was initially denied by notice on July 19, 2012, and again upon reconsideration
on October 19, 2012, after which Plaintiff timely requested a hearing before an administrative
law judge (“ALJ”). Id.
The ALJ conducted a hearing on September 4, 2013, and heard testimony from Plaintiff
and Donald Anderson, Ed.D., a vocational expert. Id. Plaintiff was represented by counsel at the
hearing. Id. On October 22, 2013, the ALJ issued his decision finding, at step five of the
prescribed sequential evaluation process, that Plaintiff was not disabled prior to
ORDER – Page 1
September 8, 2013; but was disabled beginning September 8, 2013, and continuing through the
date of the ALJ’s decision. Id. at 11-18.
On November 25, 2014, Plaintiff filed her Complaint in this Court, seeking judicial
review of the Commissioner’s final administrative decision pursuant to 42 U.S.C. § 405(g), as
well as a finding that: (1) the Commissioner’s decision is erroneous; and (2) Plaintiff is entitled
to benefits [Dkt. 1]. Plaintiff filed her Brief on May 4, 2015 [Dkt. 10]. On July 6, 2015, the
Commissioner filed its Motion to Remand and the Administrative Record was received from the
Social Security Administration [Dkt. 12; Dkt. 14]. Plaintiff filed her Response in Opposition to
Defendant’s Motion to Remand on July 10, 2015 [Dkt. 15].
STATEMENT OF RELEVANT FACTS
1. Age, Education, and Work Experience
Plaintiff was born on September 8, 1963, and was forty-nine (49) years old on the date of
the hearing before the ALJ [TR at 26]. Plaintiff completed the ninth grade, but discontinued her
education after her marriage. Id. Plaintiff has past relevant work experience as a housekeeper.
Id. at 117.
2. Relevant Medical Evidence
Plaintiff’s medical records reflect she suffers from status post-left knee replacement,
arthroplasty, diabetes mellitus, and essential hypertension [TR at 13-17]. Of particular import to
this opinion are the medical records and/or opinions of Dr. Michael Taba (“Dr. Taba”) and Dr.
Richard Brown (“Dr. Brown”), Plaintiff’s treating physicians. On August 13, 2012, Dr. Taba,
Plaintiff’s treating orthopedic surgeon, wrote a letter stating that Plaintiff was unable to work due
to scar tissue in her left knee, left hip, and left shoulder. Id. at 271. Dr. Taba noted that Plaintiff
underwent a total knee replacement on March 1, 2012, and that she was “permanently disabled.”
ORDER – Page 2
Id. On July 17, 2013, Dr. Taba further assessed the severity of Plaintiff’s impairments and
functional limitations, opining that Plaintiff suffered from pain, weakness, swelling, and
instability, which would interfere with Plaintiff’s attention and concentration needed to perform
even simple work tasks. Id. at 464. As a result, Dr. Taba predicted that Plaintiff would be “offtask” at least fifteen percent (15%) of the work day. Id. Dr. Taba also noted that Plaintiff would
be unable to perform routine, repetitive tasks at a consistent pace, detailed or complicated tasks,
or fast-paced tasks. Id. Dr. Taba found that Plaintiff would require unscheduled hourly breaks
throughout the day for longer than ten (10) minutes, and that Plaintiff would be absent from
work approximately two (2) days per month due to her impairments. Id. at 465. Dr. Taba found
that Plaintiff could rarely lift ten (10) pounds and occasionally lift less than ten (10) pounds. Id.
On August 5, 2013, Dr. Brown submitted a medical source statement indicating that his
treatment of Plaintiff began in March of 2012, and that Plaintiff suffered from
osteoarthritis/degenerative joint disease in the left knee, which caused pain, gait impairment, and
reduced range of motion. Id. at 523. Like Dr. Taba, Dr. Brown also opined that Plaintiff’s pain
and other symptoms would interfere with Plaintiff’s attention and concentration needed to
perform even simple work tasks, such that Plaintiff would be “off-task” at least fifteen percent
(15%) of the work day. Id. Dr. Brown found that Plaintiff would require more than hourly
unscheduled breaks for ten (10) minutes, and would likely miss approximately three (3) days of
work per month due to her impairments, symptoms, or treatments. Id. Dr. Brown noted that
Plaintiff required the use of a cane when standing or walking, and that Plaintiff could sit for
twenty (20) minutes at a time and stand for ten (10) minutes at a time before she needed to
change positions. Id. at 525. In Dr. Brown’s opinion, Plaintiff could stand and/or walk for
two (2) hours or less during the workday and would need a job that allowed her to shift positions.
ORDER – Page 3
Id. Dr. Brown did not believe that Plaintiff could work full-time on a sustained basis due to pain
and weakness. Id.
FINDINGS OF THE ALJ
1. Sequential Evaluation Process
Pursuant to the statutory provisions governing disability determinations, the
Commissioner has promulgated regulations that establish a five-step process to determine
whether a claimant suffers from a disability. 20 C.F.R. § 416.920(a)(4). First, a claimant who is
engaged in substantial gainful employment at the time of her disability claim is not disabled.
20 C.F.R. § 416.920(b). Second, the claimant is not disabled if her alleged impairment is not
severe, without consideration of her residual functional capacity, age, education, or work
experience. 20 C.F.R. § 416.920(c). Third, if the alleged impairment is severe, the claimant is
considered disabled if her impairment corresponds to a listed impairment in 20 C.F.R., Part 404,
Subpart P, Appendix 1. 20 C.F.R. § 416.920(d). Fourth, a claimant with a severe impairment
that does not correspond to a listed impairment is not considered to be disabled if she has the
residual functional capacity to perform her past work.1 20 C.F.R. § 404.920(f). Finally, a
claimant who cannot return to her past work is not disabled if she has the residual functional
capacity to engage in work available in the national economy. 20 C.F.R. § 404.1520(g). Under
the first four steps of the analysis, the burden lies with the claimant to prove disability and at the
last step the burden shifts to the Commissioner. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir.
1995). If at any step the Commissioner finds that the claimant is or is not disabled, the inquiry
Before evaluating step four of the sequential evaluation analysis, the ALJ must determine the claimant’s residual
functional capacity, which is her ability to do physical and mental work activities on a sustained basis despite
limitations from her impairment. See 20 CFR 404.1520(e).
ORDER – Page 4
2. ALJ’s Disability Determination
After hearing testimony and conducting a review of the facts of Plaintiff’s case, the ALJ
made the following sequential evaluation. At step one, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since the alleged onset date, September 22, 2011
[TR at 13]. At step two, the ALJ determined that Plaintiff had the following severe impairmets:
status post-left knee replacement, arthroplasty; diabetes mellitus; and essential hypertension. Id.
At step three, the ALJ determined that Plaintiff did not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed impairments.
Id. at 14. At step four, the ALJ found that Plaintiff had the residual functional capacity to
perform the full range of sedentary work as defined in 20 C.F.R. § 404.1567(a), and that since
September 22, 2011, Plaintiff has been unable to perform her past relevant work. Id. at 15-16.
The ALJ noted that prior to the established disability onset date, Plaintiff was a “younger
individual age 45-49,” but on September 8, 2013, the claimant’s age category change to an
“individual closely approaching advanced age.” Id. at 16. The ALJ then concluded at step five
that prior to September 8, 2013, there were jobs that existed in significant numbers in the
national economy that Plaintiff could have performed. Id. at 16-17. However, the ALJ also
found that, beginning on September 8, 2013 - the date Plaintiff’s age category changed - no jobs
existed in significant numbers in the national economy that Plaintiff could perform. Id. at 17.
Accordingly, the ALJ found Plaintiff was not disabled prior to September 8, 2013, but became
disabled on September 8, 2013, and continued to be disabled through the date of the ALJ’s
ORDER – Page 5
STANDARD OF REVIEW
In an appeal under § 405(g), this Court must review the Commissioner’s decision to
determine whether there is substantial evidence in the record to support the Commissioner’s
factual findings and whether the Commissioner applied the proper legal standards in evaluating
the evidence. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994); 42 U.S.C. § 405(g).
Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion. Cook v. Heckler, 750 F.2d 391, 392 (5th Cir. 1985); Jones v. Heckler, 702
F. 2d 616, 620 (5th Cir. 1983). This Court cannot reweigh the evidence or substitute its
judgment for that of the Commissioner. Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1995).
Additionally, any conflicts in the evidence, including the medical evidence, are resolved by the
ALJ, not the reviewing court. Carry v. Heckler, 750 F.2d 479, 484 (5th Cir. 1985).
The legal standard for determining disability under Titles II and XVI of the Act is
whether the claimant is unable to perform substantial gainful activity for at least twelve months
because of a medically determinable impairment. 42 U.S.C. §§ 423(d), 1382c(a)(3)(A); see also
Cook, 750 F.2d at 393. “Substantial gainful activity” is determined by a five-step sequential
evaluation process, as described below. 20 C.F.R. § 404.1520(a)(4).
The Commissioner moves the Court to remand this action under sentence four of
42 U.S.C. § 405(g) for further development of the record and a new administrative decision so
that the ALJ can resolve certain alleged factual conflicts in the ALJ’s decision [Dkt. 12 at 1-2].
More specifically, the Commissioner contends that remand is required because of two conflicting
factual determinations: (1) the ALJ found that Plaintiff had the residual functional capacity to
perform the full range of sedentary work [TR at 15-16]; and (2) the ALJ found that the opinions
ORDER – Page 6
of Plaintiff’s treating physicians, Drs. Taba and Brown, were entitled to controlling weight [TR
at 16]. The Commissioner asserts that these findings conflict because Drs. Taba and Brown
included functional limitations in their opinions that essentially established Plaintiff could not
perform the full range of sedentary work [Dkt. 12 at 2].
Plaintiff contends that remand is not appropriate because the evidence in the record is
sufficient for the Court to reverse the Commissioner’s decision and remand such decision for
payment of benefits prior to September 8, 2013 [Dkt. 15 at 2]. More specifically, Plaintiff agrees
that the ALJ’s factual determinations gave controlling weight to the opinions of her treating
physicians, which limited her to “less than sedentary exertional activity level.” Id. (citing TR at
14, 16). Plaintiff argues, however, that the ALJ’s finding that Plaintiff was limited to sedentary
work was merely an oversight on the part of the ALJ, “considering that in the body of the finding
[the] ALJ explained his reasoning and why he gave controlling weight to the opinions that
Plaintiff was limited to less than sedentary work” [Dkt. 15 at 3]. Plaintiff urges the Court to
direct the Commissioner to award benefits without further development or rehearing because the
uncontroverted evidence clearly establishes that she is entitled to relief and/or that additional
fact-finding will serve no useful purpose. Id.
Sentence four of 42 U.S.C. § 405(g) authorizes a district court “to enter… a judgment
affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or
without remanding the cause for rehearing.” 42 U.S.C. § 405(g); Shalala v. Schaefer, 509 U.S.
292, 296-97 (1993). Where the apparent purpose of a remand is to bring about further factfinding and evaluation of existing facts, the remand is a fourth sentence remand. Buckner v.
Apfel, 213 F.3d 1006, 1010 (8th Cir. 2000). Courts direct the Commissioner to award benefits
without further development or rehearing rarely, and only when uncontroverted evidence clearly
ORDER – Page 7
establishes that claimants are entitled to relief, or when additional fact-finding will serve no
useful purpose. See, e.g., Salazar v. Barnhart, 468 F.3d 615, 626 (10th Cir. 2006) (remand
awarding benefits is appropriate when “given the available evidence, remand for additional factfinding would [not] serve [any] useful purpose but would merely delay the receipt of benefits”);
McQueen v. Apfel, 168 F.3d 152, 156 (5th Cir. 1999); Campbell v. Shalala, 988 F.2d 741, 744
(7th Cir. 1993) (holding that an award of benefits is appropriate only when all factual issues have
been resolved and “the record can yield but one supportable conclusion”).
The Court agrees with the Commissioner that the ALJ’s decision contains two conflicting
findings, which fact prohibits this Court from rendering judgment and awarding benefits in favor
of Plaintiff at this juncture. An award of benefits would require the Court to make a de novo
determination regarding conflicting evidence: whether the ALJ intended to give controlling
weight to the medical opinions of Drs. Taba and Brown – that Plaintiff was limited to less than
sedentary work – or whether the ALJ intended to conclude that Plaintiff’s residual functional
capacity was limited to sedentary work [TR at 15]. Such a de novo review is not appropriate.
See Bowling, 36 F.3d at 434.
The ALJ described the opinions of Drs. Taba and Brown as “well-supported by medical
documentation as well as trained observations” and found their opinions “consistent with the
other evidence in the record.” Id. at 16. The ALJ finds that these opinions are entitled to
controlling weight. Id. However, Plaintiff’s treating physicians’ opinions place exertional
limitations on Plaintiff that prevent her from sustaining work at even a sedentary level (a fact
which is noted by the ALJ in his decision). Id. at 14, 16. After making these factual findings,
the ALJ inconsistently concludes that Plaintiff is capable of performing work at a sedentary
level. Id. at 15-16. These two findings conflict, and the Commissioner’s decision should be
ORDER – Page 8
remanded to resolve this factual incompatibility. Plaintiff’s argument that this inconsistency is
merely an oversight may very well be; but regardless, the findings of the ALJ are unclear from
the record. The Court cannot overlook this “oversight” and render a judgment in Plaintiff’s favor
without improperly reweighing the evidence and substituting its judgment for that of the
Commissioner. Bowling, 36 F.3d at 434. Accordingly, the Court finds that the decision of the
Commissioner should be remanded to reconcile these inconsistencies.
Because the factual findings of the ALJ are inconsistent and these conflicting
determinations cannot be resolved by the Court at this juncture, the Court finds that Defendant’s
Motion to Remand [Dkt. 12] is GRANTED, and that a final judgment will be entered ordering
that Defendant Commissioner’s October 22, 2013 unfavorable decision denying Plaintiff’s
claims for disability insurance benefits be REVERSED and REMANDED under the fourth
sentence of 42 U.S.C. § 405(g) for further administrative proceedings.
It is further ORDERED that the Commissioner conduct a new hearing before an ALJ on
Plaintiff’s application for disability within sixty (60) days of the date of this order.
ORDER – Page 9
It is further ORDERED that at step four of the sequential evaluation, an ALJ shall
conduct further review of the administrative record and fully develop the factual findings
regarding the weight to be given to the opinions of Plaintiff’s treating physicians and Plaintiff’s
resulting residual functional capacity.
SIGNED this 2nd day of November, 2015.
Christine A. Nowak
UNITED STATES MAGISTRATE JUDGE
ORDER – Page 10
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