Baez v. Colvin
Filing
38
Memorandum Opinion and Order adopts 30 Findings and Recommendations, Order Returning Case to District Judge. The court ORDERS that Commissioner's decision that based on the application for supplemental security income filed on July 12, 2010, plaintiff is not disabled under section 1614(a) (3) (A) of the Act, be, and is hereby, affirmed. (Ordered by Judge John McBryde on 9/22/2015) (mem)
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IN THE UNITED STATES DISTRI T COURT
NORTHERN DISTRICT OF T XAS
FORT WORTH DIVISIO
ELVIA BAEZ,
SEP 2 2 2015
§
§
Plaintiff,
vs.
CAROLYN W. COLVIN, ACTING
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
CtERK, U.S. DISTRICT COL IU
§
By---::-----
§
§
§
§
Dr put~
NO. 4:14-CV-414-A
§
§
§
§
Defendant.
MEMORANDUM OPINION
and
ORDER
Before the court for decision is the complaint of plaintiff,
Elvia Baez, seeking judicial review of the final decision of
Carolyn W. Colvin, Acting Commissioner of Social Security
("Commissioner"), denying plaintiff's application for
supplemental security income benefits under Title XVI of the
Social Security Act
("Act").
The court has concluded that
Commissioner's decision should be affirmed.
I.
Background
The Administrative Law Judge ("ALJ") decided on March 20,
2014, that "[b]ased on the application for supplemental security
income filed on July 12, 2 010,
[plaintiff]
is not disabled under
section 1614 (a) (3) (A) of the Social Security Act."
R. at 24.
The Appeals Council denied plaintiff's request for review on
April 2, 2014, and the March 20, 2014 decision of the ALJ became
the final decision of Commissioner.
R. at 1.
Plaintiff instituted this action June 5, 2014, complaining
of Commissioner's decision.
The matter was referred to the
United States Magistrate Judge for proposed findings and
conclusions and a recommendation for disposition.
The magistrate
judge ordered that plaintiff's complaint be treated as an appeal
from Commissioner's decision, and fixed a timetable for the
filing of briefs.
Both sides timely filed briefs.
The
magistrate judge issued his proposed findings and conclusions and
his recommendation ("FC&R") that the decision of Commissioner be
reversed and remanded "for further administrative proceedings
consistent with" the proposed findings and conclusions expressed
in the FC&R.
Doc. 30 at 18. 1
Although neither party filed
objections, the court ordered Commissioner to file a response to
the FC&R.
Commissioner timely filed her response, to which
plaintiff filed a reply.
1
The "Doc._" references are to the numbers assigned to the referenced items on the civil
docket in this Case No. 4:14-CV-414-A.
2
II.
Positions Taken by the Parties in Their Pre-FC&R Briefs
A.
Plaintiff's Brief
Plaintiff defined in her brief the two basic issues to be
resolved as follows:
First Issue:
Plaintiff first complained that the ALJ erred
in failing to find that plaintiff's migraine headaches
constituted a severe impairment within the meaning of the Act,
and failed to take into account in the ALJ's residual functional
capacity ("RFC") rulings work-related limitations caused by that
impairment.
Doc. 27 at 2, 6.
Second Issue:
Plaintiff's other complaint was that the ALJ
failed to properly analyze the opinions of plaintiff's treating
physicians by considering factors the Fifth Circuit required in
Newton v. Apfel, 209 F. 3d 448, 455 (5th Cir. 2000), to be
considered.
B.
Id. at 2, 11.
Commissioner's Responsive Brief
Commissioner responded that the ALJ did not err in failing
to find that plaintiff's headaches constituted a severe
impairment and that the record before the ALJ did not establish
that the headaches caused any work-related limitations.
at 5-8.
Doc. 27
As to the second issue raised by plaintiff, Commissioner
responded that the ALJ properly weighed the opinions of
3
plaintiff's treating physicians.
Id. at 8-17.
Summed up,
Commissioner urged that substantial evidence in the record
supported the ALJ's decision, and that the ALJ applied proper
legal standards in reaching her decision, with the consequence
that Commissioner's decision must be affirmed.
III.
The FC&R, Commissioner's Response Thereto,
and Plaintiff's Reply
A.
The FC&R
The magistrate judge proposed in the FC&R that the court
find that the ALJ did not err in her analysis of plaintiff's
migraine headaches and that, therefore, information in the record
pertaining to those headaches does not provide basis for a
reversal and remand.
Doc. 30 at 5-8. As to the second issue
presented by plaintiff, the magistrate judge proposed in the FC&R
findings that:
(1) the ALJ did not err in failing to adopt the
conclusory opinion of Dr. Mark Friedman ("Dr. Friedman") that
plaintiff was "disabled" or "unable to work," id. at 15-16, and
(2) the ALJ did not err in assigning little weight to the opinion
of Dr. Joseph Curletta ("Dr. Curletta"), id. at 16.
But, in something of a sua sponte action by the magistrate
judge, he proposed a conclusion that "[b]ecause the ALJ rejected
all medical opinions in the record that might explain the effects
4
of [plaintiff's] physical impairment on his [sic] ability to
perform work, there is no medical evidence supporting the ALJ's
RFC determination" with the consequence that "substantial
evidence does not support the ALJ's RFC determination, and remand
is required."
Id. at 17-18.
A related conclusion the magistrate
judge proposed was that once the ALJ chose not to give
significant weight to the opinions of Drs. Friedman and Curletta,
and bearing in mind that the only remaining evidence appeared to
be general treatment notes that set forth routine examination
observations,
"it became incumbent upon the ALJ to obtain an
expert medical opinion about the types of work activities that
Plaintiff could perform given [his] impairments."
Id. at 17
(quoting from Shugart v. Astrue, No. 3:12-CV-1705-BK, 2013 WL
991252 at *5
(N.D. Tex. Mar. 13, 2013).
Based on those proposed
conclusions, the magistrate judge recommended that
"Commissioner's decision be reversed and remanded for further
administrative proceedings consistent with [the magistrate
judge's] proposed findings of fact and conclusions of law."
Id.
at 18.
B.
Commissioner's Response to the FC&R
Commissioner agreed with the magistrate judge's proposed
findings and conclusions on the two issues raised by plaintiff-that the ALJ did not err in her analysis of plaintiff's migraine
5
headaches or in assigning little weight to the opinions of Drs.
Friedman and Curletta.
Doc. 32 at 1.
However, Commissioner
strongly disagreed with the magistrate judge's proposal that
Commissioner's decision be reversed and the matter remanded for
further administrative proceedings.
Id. at 2-4.
Commissioner
summarized in her response the evidence before the ALJ that was
sufficient to support the ALJ's RFC finding,
id. at 3-4, and
supported the ALJ's decision by noting that "the absence of a
medical source statement or opinion detailing an individual's
abilities does not, in itself, make the record incomplete, as the
relevant inquiry focuses upon whether the decision of the ALJ is
supported by substantial evidence in the existing record." Id. at
2 (citing Ripley v. Chater, 67 F.3d 552, 557 (5th Cir.
1995)) (internal quotation marks omitted).
C.
Plaintiff's Reply
Plaintiff did not take issue with the magistrate judge's
rejection of her contention that the ALJ failed to properly
consider her complaints of migraine headaches or her contentions
that the ALJ failed to properly analyze the opinions of Drs.
Friedman and Curletta.
She limited her reply to arguments in
support of the magistrate judge's proposed conclusion that the
ALJ should obtain an expert medical opinion with respect to
plaintiff's work-related limitations and the magistrate judge's
6
recommendation that there be a reversal and remand for that
purpose.
IV.
Analysis
A.
Basic Principles
A guiding principle is that judicial review of a decision of
Commissioner of nondisability is limited to two inquiries:
(1)
whether Commissioner's decision is supported by substantial
evidence on the record as a whole and (2) whether Commissioner
applied the proper legal standards.
F.2d 289, 292
See Anthony v. Sullivan, 954
(5th Cir. 1992). Substantial evidence is more than
a scintilla but less than a preponderance; it is "such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion."
Ripley, 67 F.3d at 555; Greenspan v. Shalala, 38
F.3d 232, 236 (5th Cir. 1994).
There will not be a finding of
"no substantial evidence" unless "there is a conspicuous absence
of credible choices."
Cir. 1988)
Harrell v. Brown, 862 F.2d 471, 475 (5th
(per curiam).
The determination of whether there is substantial evidence
to support the fact findings of Commissioner does not involve
reweighing the evidence, or trying the issues de novo.
67 F.3d at 555.
Ripley,
The court cannot substitute its own judgment for
that of Commissioner.
Neal v. Bowen, 829 F.2d 528, 530 (5th Cir.
7
1987)
(per curiam); Chaparro v. Bowen, 815 F.2d 1008, 1010 (5th
Cir. 1987)
Cir. 1986).
(per curiam); Milam v. Bowen, 782 F.2d 1284, 1286 (5th
Commissioner, not the court, has the duty to weigh
the evidence, resolve material conflicts in the evidence, and
make credibility choices.
(5th Cir. 1991)
(5th Cir. 1985).
Carrier v. Sullivan, 944 F.2d 243, 247
(per curiam); Carry v. Heckler, 750 F.2d 479, 482
The court's role is to "scrutinize the record
in its entirety to determine whether substantial evidence
supports" Commissioner's findings.
105, 109 (5th Cir. 1992)
992
(5th Cir. 1983)
Randall v. Sullivan, 956 F.2d
(citing Ransom v. Heckler, 715 F.2d 989,
(per curiam).
If supported by substantial
evidence, Commissioner's findings are deemed conclusive, and the
court must accept them.
390, 91
s.
See Richardson v. Perales, 402 U.S. 389,
Ct. 1420, 1422 (1971).
"The role of the courts in
this quintessentially administrative process is extremely narrow
and the Commissioner's decision is entitled to great deference."
Leggett v. Chater, 67 F. 3d 558, 564
(5th Cir. 1995); Lewis v.
Weinberger, 515 F.2d 584, 586 (5th Cir. 1975).
B.
The Decision of Commissioner Is to Be Affirmed
The recommendation of reversal and remand by the magistrate
judge seems to have been predicated on a belief by the magistrate
judge that "the ALJ rejected all medical opinions in the record
that might explain the effects of [plaintiff's] physical
8
impairments on his [sic] ability to work," with the result that
"there is no medical evidence supporting the ALJ's RFC
determination."
Doc. 10 at 17-18.
The court does not read the
decision of the ALJ so narrowly.
As a starter, the ALJ said that her decision followed a
"careful consideration of all the evidence."
R. at 13.
The
ALJ's decision makes clear that she did not reject all medical
opinions in the record that might explain the effects of
plaintiff's physical impairments on her ability to perform work.
Rather, the ALJ, upon consideration of the complete record, gave
"some weight" to the opinions of Dr. Michael Wilmink, and some,
but "little" weight to the opinions of the State agency medical
consultants, Dr. Friedman, and Dr. Curletta.
R. at 21-22.
Far
from rejecting all relevant medical opinions, the ALJ immediately
following her discussion of the medical opinions, as well as
other relevant evidence, made the following RFC findings:
In sum, the claimant is limited to a range of
light work due to her degenerative disc disease and
arthritis. However, the claimant can only use her
upper extremities frequently for fine and gross
manipulation, feeling, and reaching in all directions
including overhead due to her bilateral shoulder
arthritis.
The limitation is also consistent with the
claimant's testimony.
In addition, the claimant must
avoid concentrated exposure to hazards like unprotected
heights and moving machinery and can only balance
frequently due to her vertigo. Finally, the claimant
is limited to unskilled, rote, routine work due to her
9
pain medical side effects, and other symptoms and
limitations.
R. at 22.
A fair reading of the ALJ's decision is that "the ALJ
[was] properly interpreting the medical evidence to determine
[plaintiff's] capacity for work.n
600, 603
(5th Cir. 2012).
Taylor v. Astrue, 706 F.3d
Those findings were made by the ALJ
"[a]fter careful consideration of the entire record.n
, 4.
R. at 17,
In making her RFC finding, the ALJ "considered all symptoms
and the extent to which these symptoms can reasonably be accepted
as consistent with the objective medical evidence and other
evidence based on the requirements of 20 CFR 416.929 and SSRs 664p and 96-7p.n
She "also considered opinion evidence in
accordance with the requirements of 20 CFR 416.927 and SSRs 962p, 96-Sp, 96-6p, and 06-3p.n
Id.
The ALJ's consideration of
plaintiff's testimony was detailed, R. at 18, and she gave full
consideration to plaintiff's alleged disability as plaintiff
reported it in her Disability Report, both initially and as
updated by plaintiff.
Id.
With respect to record evidence of
plaintiff's capabilities and limitations, the ALJ could not have
been more comprehensive in her analysis of the relevant evidence.
R. at 19-21.
After a thorough review of the ALJ's decision, the court has
concluded that it is supported by substantial evidence on the
10
record as a whole, and that the proper legal standards were
applied.
The court declines to re-weigh the evidence, or to
substitute the court,s judgment for that of Commissioner, acting
through the ALJ.
Commissioner, acting through the ALJ, appears
to have properly performed her duty to weigh the evidence,
resolve material conflicts in the evidence, and make credibility
choices.
The court concludes that there is substantial evidence
in the record supporting the findings of Commissioner {through
the ALJ), with the result that the court must, and does, accept
them.
Therefore, the court concludes that Commissioner,s RFC
determination is supported by substantial evidence.
The issue the court has dealt with so far under this heading
is one that actually is beyond the scope of the two basic issues
to be resolved, as plaintiff defined them in her brief.
supra at 3.
See
Inasmuch as plaintiff appears to have abandoned her
complaints as she defined them by the two basic issues she
presented to be resolved in her appeal, supra at 3, the court
does not consider that there is a need to discuss those issues,
but, instead, adopts the findings and conclusions of the
magistrate judge related thereto.
Doc. 30 at 5-16 {through the
second complete sentence on page 16) .
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v.
Order
For the reasons given above,
The court ORDERS that Commissioner's decision that based on
the application for supplemental security income filed on
July 12, 2010, plaintiff is not disabled under section
1614(a) (3) (A) of the Act, be, and is hereby, affirmed.
SIGNED September 22, 2015.
District
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