Gonzalez v. Commissioner Of Social Security

Filing 13

MEMORANDUM OPINION granting 11 Cross MOTION for Summary Judgment (Signed by Magistrate Judge Nancy K Johnson) Parties notified.(sjones, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MARIA ISABEL GONZALEZ,
Plaintiff,
v.
NANCY A. BERRYHILL,1
ACTING COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION
Defendant.

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December 13, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. H-16-2378

MEMORANDUM OPINION
Pending before the court2 is Defendant’s Motion for Summary
Judgment (Doc. 11).

The court has considered the motion, the

administrative record, and the applicable law. For the reasons set
forth below, the court GRANTS Defendant’s motion for summary
judgment.
I.

Case Background

Plaintiff filed this action pursuant to 42 U.S.C. §§ 405(g)
and 1383(c)(3) for judicial review of an unfavorable decision by
the

Commissioner

of

the

Social

Security

Administration

(“Commissioner” or “Defendant”) regarding Plaintiff’s claims for
disability insurance benefits under Title II and for supplemental

1
Carolyn W. Colvin was the Commissioner of the Social Security
Administration at the time that Plaintiff filed this case but no longer holds
that position. Nancy A. Berryhill is Acting Commissioner of the Social Security
Administration and, as such, is automatically substituted as Defendant. See Fed.
R. Civ. P. 25(d).
2
The parties consented to proceed before the undersigned magistrate
judge for all proceedings, including trial and final judgment, pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. See Doc. 10, Ord. Dated
Feb. 14, 2017.

security income under Title XVI of the Social Security Act (“the
Act”).
A.

Medical History
Plaintiff was born on June 20, 1961, and was fifty-one years

old on the alleged disability onset date of July 20, 2012.3
Plaintiff attained a general educational degree and worked as a
senior data entry specialist at the University of Texas Health
Science Center until she left that job in 2012.4
Plaintiff was injured in a car accident on November 22, 2011,
and presented to the emergency room at Memorial Hermann where a
variety of tests were conducted.5

The computerized tomography

(“CT”) scan of Plaintiff’s brain was normal, and a CT scan of her
chest did not reveal any abnormalities.6

Another CT scan of her

abdomen

of

showed

a

“minimal”

collapse

her

lungs,

fatty

infiltration in her liver, but no injury to the liver, spleen,
gallbladder, pancreas, adrenals, kidneys, or bowel.7

A CT scan of

her cervical spine showed “[n]o acute abnormalities,” “[e]xtensive
degenerative

changes,”

and

a

“[s]mall

indeterminate

3

See Tr. of the Admin. Proceedings (“Tr.”) 54, 231.

4

See Tr. 52-54.

5

See Tr. 424-44.

6

See Tr. 506-08.

7

See Tr. 509.

2

thyroid

hypodensity.”8
Plaintiff saw Hina Pandya, M.D., (“Dr. Pandya”), on November
29, 2011, as a follow-up after the car accident, and complained of
continuing headaches, nausea, vomiting, pain, and vision issues.9
Plaintiff returned on December 9, 2011, complaining of increased
chronic pain.10

On December 14, 2011, Dr. Pandya recorded that

Plaintiff had back pain, a fatty liver, a thyroid cyst, and chronic
pain syndrome.11 Plaintiff reported that she had improved since the
car accident.12

Plaintiff underwent an MRI of her thyroid on

December 21, 2011, which showed that she had thyroid nodules, two
right-sided and one left-sided, which were probably “complicated
cysts.”13

In a follow-up examination on February 10, 2012, Dr.

Pandya noted that Plaintiff’s motor strength, gait, stance, and
deep tendon reflexes were normal.14

Plaintiff reported feelings of

drowsiness, decreased appetite, and nausea, and that she was “[n]ot
feeling better from [the] accident.”15

Plaintiff complained that

she was also experiencing pain in her jaw, shoulder, back, and leg,

8

Tr. 511.

9

See Tr. 744.

10

See Tr. 742.

11

See Tr. 549.

12

See Tr. 548.

13

Tr. 530.

14

See Tr. 523.

15

Tr. 732.

3

but was going to physical therapy three times per week.16

On March

9, 2012, her motor strength, gait, and stance were normal.17
An MRI of Plaintiff’s lumbar spine dated January 28, 2012,
showed

a

posterior

bulging

disc

at

L5-S1

and

hypertrophy

(enlargement) of the facet joints.18
On February 1, 2012, Plaintiff presented to the Memorial
Hermann liver clinic where it was reported by Jen-Jung Pan, M.D.,
(“Dr. Pan”) that Plaintiff’s liver disease had stabilized since
2009, and that she “did not have jaundice swelling, increased
abdominal girth, vomiting blood, or confusion.”19

Dr. Pan also

noted that Plaintiff’s fibromyalgia began after her car accident.20
On July 18, 2012, a liver ultrasound revealed a normal liver.21
Plaintiff returned to the liver clinic on August 15, 2012, where it
was noted that she had experienced hepatitis due to taking a
fibromyalgia medication and had discontinued the medication.22
Plaintiff attended the Richmond Bone and Joint Clinic on May
8, 2012, where she was diagnosed with lumbar facet syndrome without

16

See id.

17

See Tr. 729.

18

See Tr. 513.

19

Tr. 653.

20

See id.

21

See Tr. 656-57.

22

See Tr. 658.

4

myelopathy.23
degenerative

It was also noted that she had fibromyalgia and
disease.24

disc

Her

reflexes

were

“intact

and

symmetrical” and her motor functions were normal.25
Plaintiff first saw Tareq AbouKhamis, M.D., (“Dr. AbouKhamis”)
for her fibromyalgia on February 27, 2012.

Dr. AbouKhamis noted

that Plaintiff had degenerative joint disease and commented that xrays showed “early arthritic changes” in her hand joints, but no
degenerative changes in her knee joints.26

On March 12, 2012, Dr.

AbouKhamis reported that there was “[n]o evidence of inflammatory
arthritis” but that Plaintiff “likely has fibromyalgia,” and that
she was experiencing body aches, fatigue, and difficulty sleeping.27
On June 4, 2012, Plaintiff reported that she was feeling “more
functional”

but

was

depressed,

had

experiencing increased hair shedding.28

blurry

vision,

and

was

Plaintiff’s overall pain

improved by June 27, 2012, but she still complained of some pain.29
On August 1, 2012, Dr. AbouKhamis noted that Plaintiff’s joint
issues and tenderness had increased, and opined that it was

23

See Tr. 616-17.

24

See id.

25

Tr. 613.

26

See Tr. 695, 697.

27

Tr. 692-93.

28

Tr. 684-85.

29

See Tr. 680.

5

possible that she was “evolving into inflammatory arthritis.”30
noted

also

depression.31

that

Plaintiff

suffered

from

fibromyalgia

He
and

On July 25, 2012, Plaintiff reported that she was

“experiencing increased widespread pain [and] fatigue.”32 Plaintiff
returned on August 1, 2012, where she complained of pain in her
hand, shoulder, and lower back, and numbness in her right leg.33
On September 15, 2012, Plaintiff felt “a little better” because she
was no longer working.34
Plaintiff experienced pain in her right foot on September 20,
2012; an x-ray revealed that she had a fracture with swelling in
the tissue.35
On April 25, 2013, Plaintiff presented with swelling and a
shooting pain from her groin to her heel, and complained also of
neck and thumb pain.36

Plaintiff reported that she attended

physical therapy for her back and shoulder three times a week and
engaged in exercise through daily, two-mile walks and completing
household chores.37

Plaintiff also reported worsening depression

30

See Tr. 673.

31

See Tr. 672-73.

32

Tr. 676.

33

See Tr. 672.

34

See Tr. 668.

35

See Tr. 698.

36

See Tr. 722.

37

See id.

6

and anxiety, and fibromyalgia flare-ups, which she stated were
preventing her from returning to work.38
On May 21, 2013, Plaintiff underwent a consultative physical
examination, conducted by Hanna J. Abu-Nassar, M.D. (“Dr. AbuNassar”).39

Dr.

Abu-Nassar

discussed

Plaintiff’s

history

of

fibromyalgia, arthritis, back problems, depression, anxiety, carpal
tunnel syndrome, degenerative joint disease, and hepatitis C.40 Dr.
Abu-Nassar reported that Plaintiff could: walk for five blocks,
stand for one hour, sit for thirty minutes, lift two pounds with
each hand overhead, bend, squat, and climb one flight of stairs.41
Plaintiff’s gait, straight leg raising test, and sensation to touch
were

normal.42

Her

deep

tendon

reflexes

were

one

plus.43

Plaintiff’s thyroid was not enlarged, and she had “mild tenderness”
in her back, neck, and buttocks.44
lumbar

spine

was

The accompanying x-ray of her

“unremarkable.”45

Overall,

Dr.

Abu-Nassar

concluded that Plaintiff had a “history of fibromyalgia [and]
suspect[ed] degenerative arthritis of the hands,” but it was

38

See Tr. 725.

39

See Tr. 749-53.

40

See Tr. 749-50.

41

See Tr. 750.

42

See Tr. 752.

43

See id.

44

Id.

45

Tr. 756.

7

doubtful that she had arthritis in her knees or neck.46

Dr. Abu-

Nassar also found that Plaintiff had cervicalgia and “possible
spondyloarthrosis”

in

her

lumbar

spine,

but

no

lumbar

radiculopathy.47
Plaintiff visited Barbra Martinez, Psy.D. (“Dr. Martinez”), on
May 23, 2013 for a consultative psychological examination.48
Plaintiff explained her history of anxiety, stemming from when she
was a child, and reported her symptoms, including “headaches,
nausea

and

history

of

vomiting,

shaking,

excessive

worrying,

difficulty sustaining concentration and attention, difficulty being
in crowds, increased heart palpitations, muscle tension, chest
pains,

difficulty

breathing,

restlessness.”49

and

Plaintiff

reported having difficulty completing tasks in a timely manner,
lived

with

her

relationships,

aunt,
and

managed

took

care

her
of

own

finances,

herself,

had

including

social

bathing,

cooking, and cleaning.50
During the examination, Plaintiff was “very pleasant and
cooperative,” had “adequate hygiene and grooming,” maintained eye
contact, established a rapport, but was “easily tearful . . . and

46

Tr. 752.

47

Id.

48

See Tr. 762-66.

49

Tr. 763.

50

See Tr. 764.

8

could

become

mildly

distracted.”51

Dr.

Martinez

assessed

Plaintiff’s concentration and attention as “fair overall” and she
had some memory issues, especially with her recent and working
memory functions.52
Dr.

Martinez

assigned

Plaintiff

a

Global

Assessment

of

Functioning (“GAF”) Score of 49, and diagnosed her with generalized
anxiety disorder, major depressive disorder, and pain disorder.53
Dr. Martinez noted that Plaintiff’s condition could improve with
proper medical treatment and therapy.54
On December 4, 2013, Robert Zicterman, D.C., (“Dr. Zicterman”)
filled out a physician’s statement.55

Dr. Zicterman indicated that

Plaintiff could not sit, stand, walk, climb stairs or ladders,
kneel or squat, bend or stoop, push or pull, type, or lift or carry
for more than thirty minutes.56

Dr. Zicterman also stated that

Plaintiff was limited to lifting or carrying objects five pounds or
less for six to eight hours per day at most.57
Plaintiff sought treatment from Ye B. Du, M.D., (“Dr. Du”), a
psychiatrist, on October 10, 2014, and Dr. Du diagnosed Plaintiff
51

Id.

52

See Tr. 764-65.

53

See Tr. 765.

54

See Tr. 766.

55

See Tr. 767.

56

See id.

57

See id.

9

as

suffering

from

posttraumatic

disorder.58

depressive
experiencing

visual

She

and

stress

noted

auditory

that

disorder

and

Plaintiff

hallucinations,

major

reported

feelings

of

paranoia, panic attacks with related physical symptoms, and pain.59
B.

Application to SSA
Plaintiff applied for disability insurance benefits on October

1, 2012, and supplemental security income on October 1, 2012,
claiming

a

disability

onset

date

of

July

20,

2012.60

In

a

disability report dated March 26, 2013, Plaintiff claimed that
fibromyalgia, multiple joint arthritis, diverticulitis, bulging
disc injury, hepatitis C, and throat cyst limited her ability to
work, and that she stopped working due to these conditions.61

On

September 3, 2013, Plaintiff reported that her daily activities
included cooking, washing dishes, walking, driving, shopping,
watching television, socializing with her aunt, and talking on the
phone.62

Plaintiff stated that she regularly went to the park for

walks and to the grocery store.63
C.

Hearing

58

See Tr. 816.

59

See Tr. 814-16.

60

See Tr. 23, 231-34.

61

See Tr. 256-57.

62

See Tr. 298-300.

63

See Tr. 300.

10

At the hearing, Plaintiff and a vocational expert, Byron J.
Pettingill (“VE” or “Pettingill”), testified.64

Plaintiff was

represented by an attorney.65
Plaintiff explained that she had been suffering with mental
issues since she was a child, and that they became worse after her
husband’s assaultive behavior.66
mental

health,

Plaintiff

In terms of treatment for her

testified

that

she

attended

monthly

sessions with her psychiatrist and also saw a counselor.67

Her

depression resulted in the following symptoms: difficulty sleeping,
low appetite, low energy, inability to focus, hallucinations and
voices in her head, and low self-esteem.68

Plaintiff’s anxiety and

PTSD stemmed from her relationship with her former husband, who
assaulted Plaintiff, after which she shot him.69

When Plaintiff’s

stress levels were high, it caused her to throw up, but she
testified that she had not provided this information to her doctors
as of the date of the hearing.70
Plaintiff testified that she was estranged from her three

64

See Tr. 39-70.

65

See Tr. 39.

66

See Tr. 46-47.

67

See Tr. 47.

68

See Tr. 47-48.

69

See Tr. 49.

70

See Tr. 49-50.

11

children.71

Because of her health conditions, Plaintiff no longer

participated in her former hobbies of photography, spending time
outside, camping, gardening, riding bikes, and going to the beach.72
Plaintiff testified that she lived with her aunt and was not able
to complete household chores regularly.73

Additionally, Plaintiff

gave away her dog due to her inability to care for it.74

Plaintiff

would lay down during the day and elevate her legs to relieve her
pain.75

In terms of social and other activities outside the home,

Plaintiff testified that she did not date, read books, vote, spend
time with friends, attend church, or go to restaurants or movies.76
Plaintiff’s last position was working as a senior support
specialist for the University of Texas Health Science Center from
1999 to 2003, and again from 2008 to 2012.77

In the last six months

of her position, she worked forty hours per week doing data entry.78
After Plaintiff was in a car accident in November 2011, she had
difficulty working and, as a result, she and her employer reached

71

See Tr. 49.

72

See id.

73

See Tr. 50.

74

See Tr. 52.

75

See Tr. 50-51.

76

See Tr. 51-52.

77

See Tr. 52-53, 61-63.

78

See Tr. 53.

12

a mutual decision that she would quit working.79

Plaintiff had

worked since she was eighteen years old.80
Plaintiff took several medications for depression and anxiety,
and utilized a transcutaneous electrical nerve stimulation (“TENS”)
unit twice a week for pain.81

Additional treatment for pain

included

her

steroid

injections

in

back.82

Plaintiff’s

decreased her abilities to remember and concentrate.83

pain

In terms of

physical activity, Plaintiff stated that she could lift less than
five pounds and could sit for twenty to twenty-five minutes before
she needed to move due to spasms in her back, neck, and shoulders.84
At the conclusion of Plaintiff’s testimony, the VE discussed
Plaintiff’s past work history and the capability of an individual
with Plaintiff’s RFC to perform those or other jobs.85

Pettingill

stated that Plaintiff’s past relevant work met the Dictionary of
Occupational Titles (“DOT”) definition of a laboratory clerk, which
the VE considered a light position, and data entry clerk, which the
VE considered a sedentary position.86

79

See id.

80

See id.

81

See Tr. 54-55.

82

See Tr. 56-57.

83

See Tr. 55.

84

See Tr. 55-56.

85

See Tr. 60-69.

86

See Tr. 64-65.

13

The ALJ presented the following hypothetical individual:
Let us then, consider an individual of the same age,
education, and work experience as the claimant. Said
individual would be limited to light work.
Further
limited to only simple, routine, repetitive tasks; not
performed at any fast-paced production environment;
involving only simple work-related decisions; and then,
generally relatively few work-place changes; further
limit to only occasional interaction with supervisors,
coworkers, and the general public.87
The VE testified that such an individual could not perform
Plaintiff’s past relevant work because her past work was semiskilled and “would involve more than simple, routine, repetitive
functions.”88

However, the VE found that Plaintiff could perform

positions such as office helper, clothing sorter, and laundry
folder.89
The ALJ then asked about what employers expect as normal
attendance, to which the VE stated that
As far [sic] absences, your honor, most employers would
consider a [sic] two or more absences from work per month
on a consistent basis.
They would consider that in
excess of what their attendance policy would find
acceptable. Routine rest periods, most employers will
grant mid morning, and mid afternoon break of about
fifteen minutes.
And then, a lunch break, of thirty
minutes to as much as an hour. And time on task, most
employers expect their employees to be on task at least
at a minimally satisfactorily performance level, eightyfive to ninety percent of the time.90

87

Tr. 65.

88

Id.

89

See Tr. 66.

90

Id.

14

The ALJ asked if an employee needed more absences than that, would
that need take a person out of competitive employment; the VE
answered affirmatively.91
Plaintiff’s attorney presented several follow-up questions for
the VE.92

First, he asked if an individual could only lift and

carry five pounds, would she be able to perform the identified
positions, to which the VE answered no.93

Additionally, the

attorney asked if an individual had to lie down for an unscheduled
hour during the work day, would that exceed the breaks discussed
previously, and the VE responded affirmatively.94
D.

Commissioner’s Decision
On January 16, 2015, the ALJ issued a partially unfavorable

decision.95

The ALJ found that Plaintiff met the requirements of

insured status through December 31, 2017, and that Plaintiff had
not engaged in substantial gainful activity since July 20, 2012,
the

alleged

onset

date.96

The

ALJ

recognized

the

following

impairments as severe: “fibromyalgia, cervical degenerative joint
disease, hepatitis C with liver cirrhosis, lumbar degenerative disc

91

See id.

92

See Tr. 68-69.

93

See Tr. 68.

94

See Tr. 68-69.

95

See Tr. 23-33.

96

See Tr. 25.

15

disease,
traumatic

arthritis,
stress

generalized

disorder”

but

anxiety
noted

disorder,

that

her

and

carpal

posttunnel

syndrome and chronic diverticulosis were not severe impairments.97
Plaintiff’s severe impairments, individually or collectively,
did not meet or medically equal disorders described in the listings
of the regulations98 (the “Listings”), according to the ALJ.99

The

ALJ found that Plaintiff had “the following degree of limitation in
the broad areas of functioning set out in the [Listings for mental
disorders] . . . mild restriction in activities of daily living,
mild difficulties in maintaining social functioning, moderate
difficulties in maintaining concentration, persistence or pace, and
no episodes of decompensation, each of extended duration.”100

In

particular, the ALJ found that Plaintiff’s mental impairments did
not meet the criteria prescribed in paragraph “C.”101
In

determining

Plaintiff’s

RFC

to

perform

work-related

activities, the ALJ discussed Plaintiff’s alleged symptoms and her
medical treatment and stated that he followed the regulatory
requirements as to both.102

When considering Plaintiff’s symptoms,

97

Id.

98

20 C.F.R. Pt. 404, Subpt. P., App. 1.

99

See Tr. 26.

100

Id.

101

See id.

102

See Tr. 26-31.

16

the ALJ first evaluated whether a medically determinable impairment
could reasonably be expected to produce the alleged symptoms.103
Second, he evaluated the “intensity, persistence, and limiting
effects of [Plaintiff’s] symptoms to determine the extent to which
they limit[ed] [Plaintiff’s] ability to do basic work activities,”
making a credibility finding for those symptoms that were not
substantiated by objective medical evidence.104
The ALJ discussed Plaintiff’s medical treatment, including
records from: an emergency room visit after her car accident on
November 22, 2011, and related CT scans and x-rays; an x-ray of
Plaintiff’s thyroid on December 21, 2011; Dr. Pandya’s examination
on December 14, 2011; an MRI of Plaintiff’s lumbar spine; medical
records from the Richmond Bone and Joint Clinic; a visit to Dr. Pan
on August 15, 2012; visits to the UT Physicians Clinic; x-rays of
Plaintiff’s

hands

consultative

and

internal

knees;

x-rays

medicine

of

Plaintiff’

examination;

a

foot;

her

consultative

psychological examination; a visit to Dr. Du; and a physician
statement from Dr. Zicterman.105
The

ALJ

explained

that

he

accorded

the

opinion

of

Dr.

Zicterman little weight because it was not supported by the medical

103

See Tr. 27.

104

Id.

105

See Tr. 28-30.

17

evidence

and

was

not

consistent

with

the

overall

record.106

Specifically, the ALJ stated that Dr. Abu-Nassar’s evaluation
revealed that Plaintiff’s limitations were not as extreme as Dr.
Zicterman

opined.107

Additionally,

Dr.

Zicterman,

as

a

chiropractor, was not considered an acceptable medical source under
Social Security Ruling (“SSR”) 06-03p.108
The ALJ engaged in a thorough account of Plaintiff’s testimony
regarding the symptoms that she experienced as a result of her
impairments.109

Specifically,

the

ALJ

discussed

the

symptoms

associated with Plaintiff’s fibromyalgia, pain, depression, and
anxiety.110
He concluded: “After careful consideration of the evidence,
the undersigned finds that the claimant’s medically determinable
impairments could reasonably be expected to cause the alleged
symptoms;

however,

the

claimant’s

statements

concerning

the

intensity, persistence and limiting effects of these symptoms are
not entirely credible prior to October 14, 2014, for the reasons
explained in this decision.”111

106

See Tr. 30.

107

See Tr. 30-31.

108

See Tr. 30.

109

See Tr. 27.

110

See id.

111

Id.

18

The ALJ found Plaintiff capable of performing light work prior
to October 14, 2014, because she could lift and carry twenty pounds
occasionally and ten pounds frequently, stand and walk for six
hours in an eight-hour work day, and sit for a minimum of six hours
in an eight-hour work day.112

The ALJ included the following

limitations in Plaintiff’s RFC: (1) simple, routine, and repetitive
tasks

not

performed

in

a

fast-paced

production

environment

involving only simple, work-related decisions; (2) relatively few
workplace changes; and (3) occasional interaction with supervisors,
coworkers,

and

the

general

public.113

This

RFC

finding

was

decreased as of October 14, 2014, as the ALJ found that Plaintiff’s
allegations

about

her

symptoms

beginning

on

that

date

were

credible.114 The ALJ considered the examination conducted by Dr. Du
on October 10, 2014, which diagnosed Plaintiff with post traumatic
stress

disorder

and

major

depressive

disorder

coupled

with

psychotic tendencies.115
The ALJ found that Plaintiff was not able to perform any of
her past relevant work as a laboratory clerk or data entry clerk,
as the requirements of these positions were greater than her RFC.116

112

See Tr. 26.

113

See id.

114

See Tr. 31.

115

See id.

116

See id.

19

The ALJ stated that Plaintiff was approaching advanced age with a
high school education and the ability to communicate in English.117
Considering Plaintiff’s age, education, work experience, and RFC,
the ALJ concluded that Plaintiff could perform other jobs in the
national

economy,

including

positions

clothing sorter, and laundry folder.118

such

as

office

helper,

The ALJ concluded that

Plaintiff was not disabled until October 14, 2014, but became
disabled on that date and continued to be disabled through the date
of the decision.119
Plaintiff appealed the ALJ’s decision, and, on June 24, 2016,
the Appeals Council denied Plaintiff’s request for review, thereby
transforming the ALJ’s decision into the final decision of the
Commissioner.120
Plaintiff,

After receiving the Appeal’s Council’s denial,

proceeding

pro

se,

sought

judicial

review

of

the

decision by the court.121
II.

Standard of Review and Applicable Law

The court’s review of a final decision by the Commissioner
denying disability benefits is limited to the determination of
whether: (1) the ALJ applied proper legal standards in evaluating

117

See id.

118

See Tr. 32.

119

See Tr. 33.

120

See Tr. 1-7.

121

See Doc. 1, Pl.’s Compl.

20

the record; and (2) substantial evidence in the record supports the
decision.
A.

Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002).

Legal Standard
In order to obtain disability benefits, a claimant bears the

ultimate burden of proving she is disabled within the meaning of
the Act.

Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991).

Under the applicable legal standard, a claimant is disabled if he
is unable “to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment. . .
which has lasted or can be expected to last for a continuous period
of not less than twelve months.”

42 U.S.C. § 423(d)(1)(a); see

also Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994).

The

existence of such a disabling impairment must be demonstrated by
“medically acceptable clinical and laboratory diagnostic” findings.
42 U.S.C. § 423(d)(3), (d)(5)(A); see also Jones v. Heckler, 702
F.2d 616, 620 (5th Cir. 1983).
To determine whether a claimant is capable of performing any
“substantial

gainful

activity,”

the

regulations

provide

that

disability claims should be evaluated according to the following
sequential five-step process:
(1) a claimant who is working, engaging in a substantial
gainful activity, will not be found to be disabled no
matter what the medical findings are; (2) a claimant will
not be found to be disabled unless [s]he has a “severe
impairment;” (3) a claimant whose impairment meets or is
equivalent to [a Listing] will be considered disabled
without the need to consider vocational factors; (4) a
claimant who is capable of performing work that [s]he has
21

done in the past must be found “not disabled;” and (5) if
the claimant is unable to perform his previous work as a
result of [her] impairment, then factors such as [her]
age, education, past work experience, and [RFC] must be
considered to determine whether [s]he can do other work.
Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994); see also 20
C.F.R. § 416.920.

The analysis stops at any point in the process

upon a finding that the claimant is disabled or not disabled.
Greenspan, 38 F.3d at 236.
B.

Substantial Evidence
The widely accepted definition of “substantial evidence” is

“that quantum of relevant evidence that a reasonable mind might
accept as adequate to support a conclusion.” Carey v. Apfel, 230
F.3d 131, 135 (5th Cir. 2000).

It is “something more than a

scintilla but less than a preponderance.”

Id.

The Commissioner

has the responsibility of deciding any conflict in the evidence.
Id.

If the findings of fact contained in the Commissioner’s

decision are supported by substantial record evidence, they are
conclusive, and this court must affirm.

42 U.S.C. § 405(g);

Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990).
Only if no credible evidentiary choices of medical findings
exist to support the Commissioner’s decision should the court
overturn it.
1988).

Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir.

In applying this standard, the court is to review the

entire record, but the court may not reweigh the evidence, decide
the issues de novo, or substitute the court’s judgment for the

22

Commissioner’s judgment.
Cir. 1999).

Brown v. Apfel, 192 F.3d 492, 496 (5th

In other words, the court is to defer to the decision

of the Commissioner as much as is possible without making its
review meaningless.

Id.
III. Analysis

Defendant
Commissioner’s

moved

for

decision

substantial evidence.

summary
was

judgment,

legally

sound

arguing
and

that

supported

the
by

Plaintiff did not file a response to this

motion or a motion for summary judgment.

The court has reviewed

the ALJ’s decision and agrees that it was supported by substantial
evidence and did not contain legal error.
Although Plaintiff did not file a motion for summary judgment,
she attached to her complaint medical records that she asserted
were not considered by the ALJ.

Plaintiff argued in her complaint

that these records demonstrated that she was disabled before
October 14, 2014.
The court may remand a case to the Commissioner for further
action if there is a showing that new evidence not in the record
“is material and that there is good cause for the failure to
incorporate such evidence in the record in a prior proceeding.” 42
U.S.C. § 405(g).

“For new evidence to be material, there must

exist the ‘reasonable possibility that it would have changed the
outcome of the [Commissioner’s] determination’” had the evidence
been presented.

Latham v. Shalala, 36 F.3d 482, 483 (5th Cir.

23

1994)(quoting Chaney v. Schweiker, 659 F.2d 676, 679 (5th Cir.
1981)). Material evidence relates to the period for which benefits
were denied, not to later-acquired disabilities or to a posthearing

deterioration

of

Plaintiff’s

condition.

Johnson

v.

Heckler, 767 F.2d 180, 183 (5th Cir. 1985).
Here, Plaintiff alleged in her complaint that Defendant had
“[n]ot

received

supporting

evidence

from

[her]

lawyer.”122

Specifically, she points to medical records from: June 4, 2012,
supporting the diagnosis of fibromyalgia; July 9, 2012, showing a
bulging disc at L5-S1; an MRI taken on January 28, 2012; and July
24, 2003, reflecting her colectomy with colostomy.

However, the

medical records from June 4, 2012, and the January 28, 2012 MRI
were both included in the original administrative record, and
therefore they are not new records.

The records from the 2003

colectomy were not included but, as they were from 2003, they are
not material to the pertinent time period in this case, and the
colectomy was mentioned in some of her other records included in
the administrative record.
As to the medical records from July 9, 2012, these were not
included in the administrative transcript in this case.

Plaintiff

claims that they show that she had a “L5-S1 posterior bulging disc
with hypertrophic changes in facet joints.”123

122

Doc. 1, Pl.’s Compl. p. 3.

123

Doc. 1, Pl.’s Compl. p. 6.

24

However, this

finding would not change the outcome in this case, as the MRI from
January 28, 2012, which was included in the administrative record,
already provided this information to the Commissioner.

Looking

over the July 9, 2012 record, it discusses Plaintiff’s pain, which
Javier Canon, M.D., (“Dr. Canon”) says “improved by 95%” after she
received an injection.124

Additionally, her motor function and

sensation to touch were normal, and her reflexes were “intact and
symmetrical.”125

Therefore, while this evidence was new, it is not

material to the case because it does not provide any medical
evidence that would have changed the outcome.
IV.

Conclusion

Based on the foregoing, the court GRANTS Defendant’s motion
for summary judgment.
SIGNED in Houston, Texas, this 13th day of December, 2017.

______________________________
U.S. MAGISTRATE JUDGE

124

Id. p. 16.

125

Id. p. 18.

25