Garcia v. Colvin

Filing 23

MEMORANDUM OPINION AND ORDER. (Ordered by Magistrate Judge David L. Horan on 2/17/2017) (mcrd)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ANDREA GINERA GARCIA,

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§
Plaintiff,
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§
V.
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NANCY A. BERRYHILL,
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Acting Commissioner of Social Security, §
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Defendant.
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No. 3:16-cv-716-BN

MEMORANDUM OPINION AND ORDER
Plaintiff Andrea Ginera Garcia , appearing pro se, seeks judicial review of a final
adverse decision of the Commissioner of Social Security pursuant to 42 U.S.C. § 405(g).
For the reasons explained below, the hearing decision is affirmed.
Background
Plaintiff alleges that she is disabled as a result of osteoarthritis, diabetes,
sciatica, disturbance of skin sensation, calcium deposits in her hips, bulging hip discs,
and bulging neck discs. See Administrative Record [Dkt. No. 14 (“Tr.”)] at 33, 49, 194204, 234, 248, 292. After her applications for disability insurance benefits and
supplemental security income (“SSI”) benefits were denied initially, the Appeals
Council remanded for further proceedings. See id. at 95-103, 107-110. On
reconsideration, Plaintiff requested a hearing before an administrative law judge
(“ALJ”). That hearing was held on March 4, 2014. See id. at 70-90. At the time of the
hearing, Plaintiff was 41 years old. See id. at 39. She is a high school graduate and has
past work experience in seasonal retail sales and hotel management and as a metal

test reporter but no relevant past work. See id. at 39, 51, 62. Plaintiff has not engaged
in substantial gainful activity since January 1, 2011. See id. at 39.
The ALJ found that Plaintiff was not disabled and therefore not entitled to
disability or SSI benefits. Although the medical evidence established that Plaintiff
suffered from obesity and osteoarthritis, the ALJ concluded that the severity of that
those impairments did not meet or equal any impairment listed in the social security
regulations. The ALJ further determined that Plaintiff had the residual functional
capacity to perform a limited range light work and that she had no past relevant work.
Relying on a vocational expert’s testimony, the ALJ found that Plaintiff was capable
of working as a file clerk and checker/cashier – jobs that exist in significant numbers
in the national economy.
Plaintiff appealed that decision to the Appeals Council. The Council affirmed.
Plaintiff then filed this action in federal district court. Plaintiff appears to argue
that substantial evidence does not support the ALJ’s determination that Plaintiff has
not been under a disability, as defined by the Social Security Act.
The Court determines that the hearing decision must be affirmed in all respects.
Legal Standards
Judicial review in social security cases is limited to determining whether the
Commissioner’s decision is supported by substantial evidence on the record as a whole
and whether Commissioner applied the proper legal standards to evaluate the
evidence. See 42 U.S.C. § 405(g); Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014);
Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995). Substantial evidence is “more than
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a mere scintilla. It means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971);
accord Copeland, 771 F.3d at 923. The Commissioner, rather than the courts, must
resolve conflicts in the evidence, including weighing conflicting testimony and
determining witnesses’ credibility, and the Court does not try the issues de novo. See
Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995); Greenspan v. Shalala, 38 F.3d
232, 237 (5th Cir. 1994). This Court may not reweigh the evidence or substitute its
judgment for the Commissioner’s but must scrutinize the entire record to ascertain
whether substantial evidence supports the hearing decision. See Copeland, 771 F.3d
at 923; Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988). The Court “may affirm
only on the grounds that the Commissioner stated for [the] decision.” Copeland, 771
F.3d at 923.
“In order to qualify for disability insurance benefits or [supplemental security
income], a claimant must suffer from a disability.” Id. (citing 42 U.S.C. § 423(d)(1)(A)).
A disabled worker is entitled to monthly social security benefits if certain conditions
are met. See 42 U.S.C. § 423(a). The Act defines “disability” as the inability to engage
in substantial gainful activity by reason of any medically determinable physical or
mental impairment that can be expected to result in death or last for a continued
period of 12 months. See id. § 423(d)(1)(A); see also Copeland, 771 F.3d at 923; Cook v.
Heckler, 750 F.2d 391, 393 (5th Cir. 1985).
“In evaluating a disability claim, the Commissioner conducts a five-step
sequential analysis to determine whether (1) the claimant is presently working; (2) the
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claimant has a severe impairment; (3) the impairment meets or equals an impairment
listed in appendix 1 of the social security regulations; (4) the impairment prevents the
claimant from doing past relevant work; and (5) the impairment prevents the claimant
from doing any other substantial gainful activity.” Audler v. Astrue, 501 F.3d 446, 44748 (5th Cir. 2007).
The claimant bears the initial burden of establishing a disability through the
first four steps of the analysis; on the fifth, the burden shifts to the Commissioner to
show that there is other substantial work in the national economy that the claimant
can perform. See Copeland, 771 F.3d at 923; Audler, 501 F.3d at 448. A finding that the
claimant is disabled or not disabled at any point in the five-step review is conclusive
and terminates the analysis. See Copeland, 771 F.3d at 923; Lovelace v. Bowen, 813
F.2d 55, 58 (5th Cir. 1987).
In reviewing the propriety of a decision that a claimant is not disabled, the
Court’s function is to ascertain whether the record as a whole contains substantial
evidence to support the Commissioner’s final decision. The Court weighs four elements
to determine whether there is substantial evidence of disability: (1) objective medical
facts; (2) diagnoses and opinions of treating and examining physicians; (3) subjective
evidence of pain and disability; and (4) the claimant’s age, education, and work history.
See Martinez, 64 F.3d at 174.
The ALJ has a duty to fully and fairly develop the facts relating to a claim for
disability benefits. See Ripley, 67 F.3d at 557. If the ALJ does not satisfy this duty, the
resulting decision is not substantially justified. See id. However, the Court does not
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hold the ALJ to procedural perfection and will reverse the ALJ’s decision as not
supported by substantial evidence where the claimant shows that the ALJ failed to
fulfill the duty to adequately develop the record only if that failure prejudiced Plaintiff,
see Jones v. Astrue, 691 F.3d 730, 733 (5th Cir. 2012) – that is, only if Plaintiff’s
substantial rights have been affected, see Audler, 501 F.3d at 448. “Prejudice can be
established by showing that additional evidence would have been produced if the ALJ
had fully developed the record, and that the additional evidence might have led to a
different decision.” Ripley, 67 F.3d at 557 n.22. Put another way, Plaintiff “must show
that he could and would have adduced evidence that might have altered the result.”
Brock v. Chater, 84 F.3d 726, 728-29 (5th Cir. 1996).
That Plaintiff is pro se in her appeal of the ALJ's decision imposes an additional
layer of consideration for the Court. As other courts have recognized, a lay plaintiff is
unfamiliar with legal terms of art such as “substantial evidence” and lacks expertise
in the rules governing Social Security regulations. See Washington v. Barnhart, 413 F.
Supp. 2d 784, 791 (E.D. Tex.2006). Moreover, no statute, regulation, or court decision
prescribes a precise analytical model for pro se actions seeking judicial review of
adverse administrative decisions by the Commissioner. See Elam v. Barnhart, 386 F.
Supp. 2d 746, 752 (E.D. Tex.2005). More often than not, pro se litigants in Section
405(g) appeals invite the Court to re-weigh the evidence and come to a different
conclusion than did the Commissioner, which the Court may not do. See Washington,
413 F. Supp. 2d at 791. Necessarily, the level of scrutiny rests in each reviewing court's
sound discretion. See Elam, 386 F. Supp. 2d at 753. But several universal principles
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factor logically into that equation. Courts must construe pro se pleadings and
arguments liberally in light of a party's lay status but must maintain their role as
neutral and unbiased arbiters. That is, courts are not bound to “scour the record for
every conceivable error,” but fundamental fairness and interests of justice require that
courts not disregard obvious errors, especially when a lay litigant's ignorance may
cause legal errors to go unrecognized. See id.
To strike a fair balance, the Court follows other courts before it in deciding to
engage in more than a superficial review of the Commissioner's decision. See id. But,
since the Court is not an advocate, it has no duty to plumb the depths of every facet of
the administrative process. In the instant case, the Court elects to examine the
decision to the same extent as the Court believes that an experienced lawyer would
when advising a potential client regarding the advisability of pursuing an action for
judicial review. “This approach assumes that the practitioner is experienced in the
subject matter, and willing, but not compelled, to represent the plaintiff. It further
assumes that the practitioner's first exposure to the case is after the Commissioner's
decision has become final.” Id. In following this approach, the Court will engage in
three critical inquiries:
1. Does the Commissioner's decision generally reflect the protocol established
in the Social Security Act, the Commissioner's own regulations, and internal policies
articulated in Social Security Rulings?
2. Were the Commissioner's critical fact findings made in compliance with
applicable law?
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3. Does substantial evidence support those critical findings?
Washington, 413 F. Supp. 2d at 792.
Analysis
Plaintiff filed her application for disability and SSI benefits on May 2, 2011,
alleging an onset date of January 1, 2011. See Tr. at 33, 194-204, 234, 248, 292. After
an administrative hearing, see id. at 46-69, the ALJ issued an unfavorable decision on
June 25, 2012, finding that Plaintiff did not have a severe impairment, see id. at 95103. The Appeals Council remanded for further proceedings on August 29,2013. See id.
at 107-110.
On remand, the Appeals Council ordered the ALJ to provide additional rationale
for the severity assessment of the combined effects of multiple impairments; give
further consideration to the non-treating source opinions from the State Agency and
explain the weight given to those opinions; further evaluate Plaintiff’s subjective
complaints; give consideration to Plaintiff’s residual functional capacity (“RFC”),
including an assessment of the effects of obesity; and, if warranted, obtain evidence
from a vocational expert (“VE”) to clarify the effect of the assessed limitations on
Plaintiff’s occupational base. See id. at 108-09.
On reconsideration, and after another administrative hearing, see id. at 70-90,
the ALJ issued an unfavorable decision on May 23, 2014, and the Appeals Council
denied Plaintiff’s request for review on July 10, 2015.
The Court construes Plaintiff’s appeal as a challenge to the sufficiency of the
evidence to support the ALJ’s finding that she is not disabled. In light of Plaintiff’s pro
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se status and lack of extensive briefing, the Court examined the evidence submitted
by Plaintiff and the ALJ’s decision as experienced counsel would in order to determine
whether the finding of no disability was supported by substantial evidence or was
erroneous in any manner.
The ALJ Properly Applied the Law and Facts.
The Court first reviews this pro se appeal to determine whether the
Commissioner’s decision generally reflects the protocol established in the Social
Security Act, the Commissioner’s own regulations, and internal policies articulated in
Social Security Rulings, and whether the Commissioner’s critical fact findings were
made in compliance with applicable law. See Thomas v. Colvin, No. 3:12-cv-4415-P-BN,
2013 WL 6869652, at *4 (N.D. Tex. Dec. 30, 2013).
The record reflects that the ALJ conducted an extensive review of the law and
facts applicable to Plaintiff’s disability claim during the five-step sequential evaluation
process. See Tr. at 33-40. The ALJ found that Plaintiff meets the insured status
requirements of the Social Security Act through September 30, 2013 and has not
engaged in substantial gainful activity since January 1,2011. See id. at 35. The ALJ
then found that Plaintiff suffered from one or more serious impairments and that
Plaintiff combination of impairments was severe under the correct standard, see Stone
v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985), citing from the medical evidence
presented in the record, see Tr. at 34-36. In finding that Plaintiff’s impairments are not
severe enough to meet the criteria of a listing under Step 3 of the sequential
evaluation, the ALJ supported his determination with a discussion of the relevant
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evidence. See Audler, 501 F.3d at 448-49. That is, he explained that the medical
opinions and other evidence of record did not establish that Plaintiff’s symptoms were
sufficiently severe to meet or medically equal one of the impairments listed in the
Social Security regulations. See Tr. at 36. An ALJ’s findings “regarding the debilitating
effect of the subjective complains are entitled to considerable judicial deference.”
Haywood v. Sullivan, 888 F.2d 1463, 1470 (5th Cir. 1989).
The ALJ found that Plaintiff had no past relevant work. See Tr. at 39. Therefore,
the ALJ consulted a VE to determine whether Plaintiff had the residual functional
capacity to perform other work that exists in significant numbers in the regional or
national economy. The VE testified that an individual with Plaintiff’s age, education,
work experience, and residual functional capacity would be able to perform the
requirements of representative occupations such as a file clerk and checker/cashier. See
id. at 85-86. Based on the VE’s testimony, the ALJ determined that Plaintiff is capable
of making a successful adjustment to other work that exists in significant numbers in
the national economy. See id. at 40.
The Court has reviewed the ALJ’s decision and the medical records submitted.
Based on this review, the Court concludes that the Commissioner’s decision generally
reflects the protocol established in the Social Security Act, the Commissioner’s own
regulations, and internal policies articulated in Social Security Rulings and that the
Commissioner’s critical fact findings were made in compliance with applicable law. See
Thomas, 2013 WL 6869652, at *4.
Substantial Evidence Supports the ALJ’s Finding of No Disability.
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The Court’s final inquiry is whether substantial evidence supports the ALJ’s
findings.
The ALJ first reviewed all of the records and determined that the medical
opinions and other evidence did not support a finding that Plaintiff’s impairments meet
or equal any impairment in the Social Security regulations and that she has the
residual functioning capacity to perform the jobs of file clerk and checker/cashier. See
Tr. at 40. Concluding that the ALJ’s findings were not supported by substantial
evidence would only be appropriate if no credible evidentiary choices or medical
findings supported his decision. See Simeon ex rel. D.M.B. v. Astrue, No. A-09-CA-756LY, 2010 WL 2160834, at *4 (W.D. Tex. May 25, 2010) (citing Johnson v. Bowen, 864
F.2d 340, 343-44 (5th Cir. 1988)).
“The ALJ as factfinder has the sole responsibility for weighing the evidence and
may choose whichever physician’s diagnosis is most supported by the record.” Muse v.
Sullivan, 925 F.2d 785, 790 (5th Cir. 1991). The opinion of a treating source is
generally entitled to controlling weight so long as it is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the claimant’s] case record.” Spellman v. Shalala,
1 F.3d 357, 364 (5th Cir. 1993); 20 C.F.R. § 404.1527(d)(2). A treating source is a
claimant’s “physician, psychologist, or other acceptable medical source” who provides
or has provided a claimant with medical treatment or evaluation and who has or has
had an ongoing treatment relationship with the claimant. 20 C.F.R. § 404.1502. A
treating source opinion cannot be rejected absent good cause for reasons clearly
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articulated in the hearing decision. See Myers v. Apfel, 238 F.3d 617, 621 (5th Cir.
2001).
In this case, there was no treating physician’s opinion concerning whether
Plaintiff’s medical conditions limited or impaired her ability to engage in work related
activities. Other than medical consultants, the only doctors mentioned in the
administrative record are those who treated Plaintiff for obesity, osteoarthritis,
leukocytosis, shoulder pain, diabetes mellitus, and fibromyalgia. See id. at 35-36. But
the evidence does not include any indication that anyone other than the medical
consultants rendered an opinion that could be construed as commenting on Plaintiff’s
ability to work. They simply diagnosed her medical conditions and discharged her with
instructions regarding treatment and follow-up care. Accordingly, the ALJ did not err
because there was no treating or examining source’s opinion to consider, much less to
reject. See Walker v. Astrue, No. 7:11-cv-131-O-BN, 2013 WL 796770, at *7 (N.D. Tex.
Feb. 4, 2013), rec. adopted, 2013 WL 818779 (N.D. Tex. Mar. 5, 2013); see also
Gonzales-Sargent v. Barnhart, No. SA-06-CA-355-XR, 2007 WL 1752057, at *8 (W.D.
Tex. June 15, 2007) (“Since there was no rejection of a treating physician’s opinion, the
ALJ was required to explain in her decision the weight given to the opinions of the
state agency medical consultants and the medical expert.”).
The ALJ is not bound by the state agency physician’s opinions, but he may not
ignore them and must explain in his decision the weight given to those opinions. See
SSR 96-6p, 1996 WL 374180, at *2 (S.S.A. July 2, 1996); Helbing v. Astrue, No. 4:11-cv704-Y, 2012 WL 6719469, at *12 (N.D. Tex. Oct. 29, 2012), rec. adopted, 2012 WL
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6709666 (N.D. Tex. Dec. 27, 2012). Here, the ALJ gave the state agency physician’s
opinion significant weight. See Tr. at 38. The ALJ explained that the non-examining
consultant, John Pataki, M.D., assigned a functional ability to perform light exertional
activities. Dr. Pataki found that Plaintiff should be limited to lifting twenty pounds
occasionally, ten pounds frequently, standing, walking or sitting for six hours in an
eight-hour work day; that she should never climb ladders, ropes, or scaffolds; and that
she could occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl.
See id. at 38; see also 87-95.
The ALJ incorporated Dr. Pataki’s findings into the RFC. See id. at 36-37. The
ALJ also limited Plaintiff to occasional use of the right upper extremity for overhead
reaching and to no exposure to hazards, open flames, or extremes of fumes, odors,
gases, or poor ventilation. See id. at 37. And the ALJ stated that he considered the
effects of Plaintiff’s obesity under Social Security Rulings 02-1p and 96-8p and included
those effects in his determination of Plaintiff’s RFC, finding it reasonable to conclude
that the ability to perform exertional activity at the medium level, or greater, could be
compromised by Plaintiff’s obesity. See id. at 38-39.
The ALJ found that the medical evidence did not support Plaintiff’s assertion
that she was restricted to sitting on the couch or lying in bed. See id. at 38. According
to the ALJ, medical records showed that Plaintiff had no gait problems and
consistently had normal ranges of motion. See id. at 38, 495, 554, 567. Diagnostic tests
were also normal. Plaintiff had an unremarkable right shoulder film, unremarkable

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x-rays of the right upper extremity, and other normal x-rays. See id. at 38, 500, 503-04,
567-68, 570).
The ALJ also found that Plaintiff has more ability for self-care than she claims.
She lives with two of her children, both of whom work full-time, and she is alone most
of the day and must take care of herself. See id. at 38, 73-74, 78-79.
Subjective complaints must be corroborated, at least in part, by objective
evidence, see Houston v. Sullivan, 895 F.2d 1012, 1016 (5th Cir. 1989), but that
evidence was lacking here. Plaintiff also claimed to be in constant pain. The mere
existence of pain is not an automatic ground for obtaining disability benefits, see Owens
v. Heckler, 770 F.2d 1276, 1281 (5th Cir. 1985), and Plaintiff has not provided medical
evidence to show that her pain is disabling.
A thorough review of the record confirms that substantial evidence supported
the ALJ’s findings. Although the record contains medical evidence to establish the
impairments suffered by Plaintiff, it does not reflect that Plaintiff has the exertional,
postural, or manipulative limitations that would prevent her from performing work
that exists in significant numbers in the national economy.
Conclusion
The hearing decision is affirmed in all respects.
SO ORDERED.
DATED: February 17, 2017
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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