De La Rosa v. Colvin

Filing 18

ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: 16 Memorandum and Recommendations. The decision of the ALJ is AFFIRMED and this action is DISMISSED WITH PREJUDICE. (Signed by Judge Nelva Gonzales Ramos) Parties notified.(lcayce, 2)

United States District Court
Southern District of Texas

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
ARMANDO DE LA ROSA,
Plaintiff,
VS.
CAROLYN W. COLVIN,
Defendant.

ENTERED
March 09, 2016
David J. Bradley, Clerk

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§ CIVIL ACTION NO. 2:14-CV-485
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ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
Pending before the Court is Plaintiff’s Complaint (D.E. 1), seeking relief from the
negative disability determination of Acting Commissioner of Social Security, Carolyn W.
Colvin. On February 16, 2016, United States Magistrate Judge Jason B. Libby issued his
Memorandum and Recommendation (M&R, D.E. 16), recommending that Plaintiff’s
request for relief be denied and that the Administrative Law Judge’s (ALJ’s) decision be
affirmed. Plaintiff filed his objections (D.E. 17) on March 2, 2016.
First, Plaintiff objects to the entirety of the Magistrate Judge’s effort,
incorporating by reference Plaintiff’s original briefing. Such an objection does not meet
the specificity requirements of 28 U.S.C. § 636, by which Plaintiff must point out the
precise error apparent in the M&R. Instead, it complains only of error in the analysis of
the ALJ, with the effect of eliminating the judicial efficiency of the referral to the
Magistrate Judge. Because the first objection is directed to the wrong decision and is not
specific, it is OVERRULED.
Second, Plaintiff objects to the M&R’s analysis distinguishing the holding of
Bridges v. Commissioner, 278 F. Supp. 2d 797 (N.D. Tex. 2003). Plaintiff argues that—

just like the medical expert in Bridges—the medical expert here failed to mention several
severe impairments and their accompanying limitations, making his opinion insufficient
evidence upon which to rely in denying Plaintiff’s disability.

Plaintiff fails to

acknowledge the limits of the holding in Bridges and fails to credit the medical expert’s
actual consideration of all of the records and his testimony being subject to crossexamination.
The reversal and remand in Bridges was not required because the medical expert’s
testimony was necessarily insufficient. The result was dictated by the fact that the ALJ’s
decision expressly relied on both the medical expert’s opinion and non-existent evidence.
Once the non-existent evidence was taken out of the equation, it was not clear to the
reviewing court whether the ALJ considered—or would have considered—the medical
expert’s allegedly incomplete opinion, alone, to be sufficient to deny disability. In other
words, the court was unwilling to affirm a decision on a factual basis that the ALJ, in the
first instance, might not have considered sufficient.

This appropriately reflects

substantial deference to the ALJ’s analysis of the case, as reflected in the applicable
standard of review.
Here, there is no issue of the medical expert or ALJ relying upon non-existent
evidence. The only question is whether the medical expert’s opinion was a reliable basis
for a negative disability determination because he reviewed certain medical records only
immediately prior to his testimony and because evidence of certain ongoing complaints
was not recited as contributing to the medical expert’s conclusion. As the Magistrate
Judge observed, the particular complaints set out in the late-reviewed records did not
reflect inherently disabling impairments.

And while Plaintiff argues that even non-

disabling impairments can have an impact on residual functional capacity (RFC), the
medical expert did review the records at issue and was subject to cross-examination on
them—a factual context not present in Bridges.
The Magistrate Judge was correct to distinguish this case from Bridges. Plaintiff’s
medical history was fully reviewed and the medical expert’s opinion has not been
demonstrated to require reversal. Plaintiff’s second objection is OVERRULED.
Third, Plaintiff objects to the M&R’s conclusion that the ALJ’s decision is
supported by substantial evidence. More specifically, he claims that the medical expert’s
failure to consider Plaintiff’s non-disabling symptoms as still having an impact on his
RFC is contrary to the law, citing 20 C.F.R. 404.1529, 404.1545, 416.929, 416.945;
Assessing Residual Functional Capacity in Initial Claims, SSR 96-8P (S.S.A. July 2,
1996). But there is a difference between the law including non-disabling symptoms in
RFC and a factual conclusion that particular symptoms actually impact RFC.
Plaintiff’s objection fails to recognize that the medical expert had all of Plaintiff’s
records, reviewed them prior to his testimony, and was subject to cross-examination on
them. The medical expert and the ALJ had the opportunity to evaluate whether nondisabling conditions contributed to Plaintiff’s RFC. Plaintiff has not demonstrated that
their adverse fact determinations constitute reversible error. Plaintiff’s third objection is
OVERRULED.
Fourth, Plaintiff objects to the Magistrate Judge’s finding that Plaintiff does not
have chronic pain that is “constant, unremitting, and wholly unresponsive to therapeutic
treatment.” He claims that the Magistrate Judge overlooked evidence of his constant
complaints of disabling pain in the medical records. Plaintiff’s subjective complaints of

pain are one factor to be considered. The decision also considers whether the complaints
are consistent—both over time and with objective scientific evidence that can corroborate
the complaints—and whether therapeutic treatment can offset the complaints.

The

medical records show variations in Plaintiff’s complaints and therapies that Plaintiff has
not consistently complied with. The ALJ and this Court need not take the complaints at
face value or in isolation. Plaintiff has not demonstrated that Plaintiff’s complaints of
chronic pain are sufficient to reverse the ALJ decision and his objection is
OVERRULED.
Having reviewed the findings of fact, conclusions of law, and recommendations
set forth in the Magistrate Judge’s Memorandum and Recommendation, as well as
Plaintiff’s Objections, and all other relevant documents in the record, and having made a
de novo disposition of the portions of the Magistrate Judge’s Memorandum and
Recommendation

to

which

objections

were

specifically

directed,

the

Court

OVERRULES Plaintiff’s objections and ADOPTS as its own the findings and
conclusions of the Magistrate Judge.

Accordingly, the decision of the ALJ is

AFFIRMED and this action is DISMISSED WITH PREJUDICE.
ORDERED this 9th day of March, 2016.
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NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE