Olivarez v. Colvin

Filing 19

MEMORANDUM OPINION AND ORDER. Signed by Judge Andrew W. Austin. (jf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JAMES OLIVAREZ
V.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION

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A-16-CV-122-AWA

MEMORANDUM OPINION AND ORDER
Before the Court are Plaintiff’s Brief in Support of Claim (Dkt. No. 15), and Defendant’s
Brief in Support of the Commissioner’s Decision (Dkt. No. 16). Also before the Court is the Social
Security record filed in this case (Cited as “Tr.”).
I. GENERAL BACKGROUND
On October 3, 2013, Plaintiff James Olivarez filed his application for disability insurance
benefits and Supplemental Security Income (SSI) alleging he became unable to work on August 22,
2013, due to depression, lower back pain, and rheumatoid arthritis. After the Agency denied his
application initially and again on reconsideration, Olivarez requested an administrative hearing.
Olivarez’s past relevant work included working as a parts clerk. Olivarez and his attorney, Gabriel
Reyes, attended the administrative hearing before Administrative Law Judge (“ALJ”) James
Lineham on July 9, 2015. Olivarez testified that he did not graduate from high school or receive
a GED. On July 31, 2015, the ALJ issued a decision finding that Olivarez was not disabled under
the Act. The Appeals Council denied Olivarez’s request for review on December 9, 2015. Olivarez
has exhausted his administrative remedies and now seeks judicial review of the administrative
proceedings under 42 U.S.C. § 405(g).

II. STANDARD OF REVIEW
The Social Security Act defines “disability” as an “inability 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 12 months.” 42 U.S.C.
§ 423(d)(1)(A). To determine if a claimant is able to engage in “substantial gainful activity” (and
therefore if he is disabled) the Social Security Commissioner uses a five-step analysis:
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 he has a “severe impairment”;

3.

a claimant whose impairment meets or is equivalent to an impairment listed in
Appendix 1 of the regulations will be considered disabled without the need to
consider vocational factors;

4.

a claimant who is capable of performing work that he has 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 his impairment,
then factors such as his age, education, past work experience, and residual functional
capacity must be considered to determine whether he can do other work.

20 C.F.R. § 404.1520; Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994). A finding of disability
or no disability at any step is conclusive and terminates the analysis. Greenspan v. Shalala, 38 F.3d
232, 236 (5th Cir. 1994). The claimant has the burden of proof for the first four steps; at step five,
the burden initially shifts to the Commissioner to identify other work the applicant is capable of
performing. Selders v. Sullivan, 914 F.2d 614, 618 (5th Cir. 1990). Then, if the Commissioner
“fulfills [his] burden of pointing out potential alternative employment, the burden . . . shifts back to
the claimant to prove that he is unable to perform the alternate work.” Id. (citation omitted).

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Judicial review of the Commissioner’s final decision under the Social Security Act, 42
U.S.C. § 405(g), is limited to two inquiries: (1) whether substantial evidence supports the
Commissioner’s decision; and (2) whether the Commissioner correctly applied the relevant legal
standards. Kinash v. Callahan, 129 F.3d 736, 738 (5th Cir. 1997). Substantial evidence is more than
a scintilla of evidence but less than a preponderance—in other words, “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Martinez v. Chater, 64 F.3d
172, 173 (5th Cir. 1995). The Court considers four elements of proof when determining whether
there is substantial evidence of a disability: (1) objective medical facts; (2) diagnoses and opinions
of treating and examining physicians; (3) the claimant’s subjective evidence of pain and disability;
and (4) the claimant’s age, education, and work history. Id. at 174. However, the reviewing court
may not reweigh the evidence, try the issues de novo, or substitute its judgment for that of the
Commissioner. Greenspan, 38 F.3d at 236. The Court may only scrutinize the record to determine
whether it contains substantial evidence to support the Commissioner’s decision. Leggett v. Chater,
67 F.3d 558, 564 (5th Cir. 1995). If the Court finds substantial evidence to support the decision, the
Court must uphold the decision. See Selders, 914 F.2d at 617 (“If the . . . findings are supported by
substantial evidence, they are conclusive and must be affirmed.”); 42 U.S.C. § 405(g).
III. THE ALJ’s OPINION
The ALJ employed the regulations’ five-step sequential evaluation process to determine
whether Olivarez was disabled. 20 C.F.R. § 404.1520(a); see Tr. 14-26. At step one, the ALJ
determined that Olivarez had not engaged in substantial gainful activity since the application date
of August 22, 2013. At step two, the ALJ found that Olivarez suffers from severe impairments of
degenerative disc disease of the lumbar spine, degenerative joint disease right knee, rheumatoid

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arthritis, obesity, and depressive disorder, recurrent, moderate. At step three, the ALJ found that,
considered separately and in combination, Olivarez’s impairments did not meet or medically equal
the severity criteria for any of the impairments listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1, and thus
his impairments were not presumptively disabling. Before proceeding to step four, the ALJ
determined that Olivarez had the residual functional capacity (“RFC”) to:
perform medium work as defined in 20 C.F.R. § 404.14567(c) and 416.967(b)
except with non-exertional limitations in that the claimant would be limited to work
with the ability to understand, remember and carry out detailed but not complex
written or oral instructions; and set realistic goals and plans independently of others.
Tr. at 21. In making this RFC determination, the ALJ concluded that Olivarez’s statements
concerning the intensity, persistence, and limiting effects of his symptoms were not fully credible.
Tr. at 22. At step four, the ALJ determined that Olivarez was unable to perform his past relevant
work. In light of his impairments listed above, the ALJ found that Olivarez had the RFC to perform
work as a dining room attendant, dry cleaner helper, and hospital cleaner, which exist in significant
numbers in the national economy. Accordingly, the ALJ found that Olivarez was not disabled as
defined in the Social Security Act.
IV. ANALYSIS
Olivarez solely argues that the ALJ’s credibility finding was not supported by substantial
evidence. As part of this argument, Olivarez contends that (1) the ALJ erred by considering
Olivarez’s receipt of unemployment benefits; and (2) the ALJ erred in weighing Olivarez’s daily
activities.
When assessing the credibility of an individual’s statements, the ALJ is required to consider:
1.

the individual’s daily activities;

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2.

the location, duration, frequency, and intensity of the individual’s pain or other
symptoms;

3.

factors that precipitate and aggravate the symptoms;

4.

the type, dosage, effectiveness, and side effects of any medication the individual
takes or has taken to alleviate pain or other symptoms;

5.

treatment, other than medication, the individual receives or has received for relief of
pain or other symptoms;

6.

any measures other than treatment the individual uses or has used to relieve pain or
other symptoms; and

7.

any factors concerning the individual’s functional limitations and restrictions due to
pain or other symptoms.

See SSR 96-7p, 1996 WL 374186, at *3 (July 2, 1996); see also Salgado v. Astrue, 271 F. App’x
456, 462 (5th Cir. 2008). In considering these factors, “[t]he ALJ is not required to mechanically
follow every guiding regulatory factor in articulating reasons for denying claims or weighing
credibility.” Giles v. Astrue, 433 F. App’x 241, 249 n.30 (5th Cir. 2011); see also Pineda v. Astrue,
289 F. App’x 710, 714 (5th Cir. 2008) (per curiam).
A.

The ALJ did not err in considering Olivarez’s receipt of unemployment benefits
Olivarez first argues that the ALJ erred in considering Olivarez’s receipt of unemployment

benefits. While the receipt of unemployment benefits does not by itself preclude a finding of
disability, it “is one factor that can be considered.” Jamison v. Colvin, No. 6:15-CV-166, 2015 WL
5822592, at *5 (W.D. Tex. Oct. 5, 2015); see also Wills v. Colvin, No. 1:14-CV-504, 2016 WL
792693, at *3 (quoting Chief ALJ Memorandum, No, 10-1528, Aug. 9, 2010 for the proposition that
an “application for unemployment benefits is evidence that the ALJ must consider together with all
of the medical and other evidence”). Here, the ALJ listed this as one factor among many that he
considered. The ALJ noted that the claimant did not quit work due to disability. Tr. 23. Instead,
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Olivarez reported to Dr. Ahr that his job ended when the store closed down. Tr. 259. He also
reported that “[h]e has put in applications ‘everywhere’ but ‘nobody is hiring,’” and that “[h]e spends
the day on the internet looking for work.” Id. A claimant’s “efforts to obtain employment and
receipt of unemployment benefits are not improper factors to be considered.” Jamison, 2015 WL
5822592, at *5. Therefore, the ALJ did not err by considering Olivarez’s receipt of unemployment
benefits.
B.

The ALJ properly weighed Olivarez’s daily activities
Olivarez next argues that the ALJ relied too heavily on Olivarez’s “minimal” daily activities

in finding that his symptoms were not credible. Dkt. No. 17 at 4. He contends that “the ALJ only
considered parts of the record and not the record as a whole.” Id. However, “[i]t must be
remembered that ‘[t]he evaluation of a claimant’s subjective symptoms is a task particularly within
the province of the ALJ who has had an opportunity to observe whether the person seems to be
disabled.’” Harrell v. Bowen, 862 F.2d 471, 480 (5th Cir. 1988) (quoting Loya v. Heckler, 707 F.2d
211, 215 (5th Cir. 1983)). Further, inconsistencies between a claimant’s testimony about his
limitations and his daily activities are “quite relevant in evaluating his credibility.” Reyes v. Sullivan,
915 F.2d 151, 155 (5th Cir. 1990). Here, the ALJ noted that “the inconsistencies suggest that the
information provided by the claimant generally may not be entirely reliable,” and accordingly found
that Olivarez’s reported symptoms were “out of proportion with the objective medical findings.”
Tr. 23-24. Substantial evidence supports the credibility finding of the ALJ.
First, the ALJ noted multiple inconsistencies with Olivarez’s testimony. Olivarez testified
first that he has significant pain in his knees and back which makes it difficult to stand. Tr. 38.
Olivarez also stated that he is short of breath, has a hard time breathing, and can only walk for a

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block, stand for 30-45 minutes, and sit for 30-60 minutes. Tr. 40. This testimony was then
supported by Olivarez’s statements that he does not cook, clean, or take care of his disabled wife.
Tr. 42-43. However, these statements are in contrast to previous statements made by Olivarez. In
his reports to the consultative examining psychologist, Dr. Ahr, Olivarez stated that he can cook,
wash dishes, do laundry, bathe, dress, shave, and shop for groceries. Tr. 259. Similarly, in his
function report filled out on October 18, 2013, Olivarez reports that though he has pain in his knees
and back, he is able to cook, wash dishes, and take care of his disabled wife. Tr. 181. Olivarez also
reports going outside two to three times a day and shopping for groceries once a month for two to
three hours. Tr. 183.1 Thus, Olivarez’s statements as to his daily activities and limitations are
contradictory.
Moreover, Olivarez’s statements are in contrast to the medical record. At the examination
performed by state examining physician, Dr. Rajeev Gupta, Olivarez did not report any difficulty
walking, general weakness or joint stiffness, limitations in joint movement, or use of assisted
devices, such as a cane. Tr. 245. Dr. Gupta did note that Olivarez complained of lower back pain
and pain in his right knee, but found no evidence of clubbing, cyanosis, or edema. Tr. 246.
Additionally, Olivarez was able to perform the full range of motion, was able to sit, stand, and squat,
and had normal gait and tandem. Id. Dr. Gupta found no evidence of muscle weakness, and no
respiratory or cardiovascular issues. Id. Additionally, when Olivarez had an ECG in 2015, it came
back within normal limits. Tr. 271-72.

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In a separate function report filed December 24, 2013, some of these statements change once
again. Olivarez reports that he does not take care of his wife (Tr. 211), goes outside for only a few
minutes a day (Tr. 213), and shops once a week for an hour (Tr. 213). However, he still states that
he cooks and washes dishes. Tr. 211-12.
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Olivarez also contended that his “hands don’t want to work,” and that he was diagnosed with
rheumatoid arthritis in 1998. Tr. 38-39. At the hearing, he testified that he had difficulty gripping
things, and that he could not perform housework because of this. Tr. 43, 45-46. However, as noted
above, Olivarez reported on multiple occasions that he cooks and washes dishes and that he is able
to dress, shave, and bathe. Tr. 181, 259. Olivarez also reported that he spends time on the computer
on social media sites and playing PC games. Tr. 44, 184. Additionally, Dr. Gupta’s examination
found that Olivarez had no evidence of clubbing, cyanosis, edema, or weakness in his grip. Tr. 246.
The ALJ further relied on the state agency physicians, both of whom found that Olivarez could
perform the full range of medium work. Tr. 23.
Moreover, the ALJ noted that Olivarez has not sought treatment by a rheumatologist or
orthopedist. Tr. 23. Instead, Olivarez reports sometimes wearing an over-the counter brace,
occasionally using a cane, and taking ibuprofen for the pain. Tr. 38-39, 186. While Olivarez
testified that he is unable to afford medical treatment, the ALJ found no records of Olivarez being
denied treatment. Tr. 23. Also, the ALJ noted that Olivarez was able to afford his smoking habit
of a half-pack of cigarettes a day. Id. Thus, the ALJ considered Olivarez’s lack of treatment as
another factor supporting his credibility determination.
Lastly, Olivarez relies on a letter from Dr. Juan A. Davila to support his contentions. The
letter does provide some support for Olivarez’s alleged symptoms. Tr. 273. However, the letter was
dated September 22, 2015, which is two months after the ALJ issued his opinion. Also, the letter
provides only conclusory statements that Olivarez suffers from certain impairments. Id. There is
no record of any examination performed by Dr. Davila at all, much less one that supports his

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statements in the letter. Therefore, the letter does not overcome the evidence in the record
supporting the ALJ’s credibility determination.
VI. CONCLUSION
Based upon the foregoing, the Court finds that substantial evidence in the record supports
the ALJ’s credibility finding in this case and that the ALJ correctly applied the legal standards. It
is important to remember that the task of weighing the evidence is the province of the ALJ, whereas
the task of the Court is merely to determine if there is substantial evidence in the record as a whole
to support the ALJ’s decision. Chambliss, 269 F.3d at 523. Because substantial evidence in the
record supports the ALJ’s credibility determination in this case, the decision of the Commissioner
of the Social Security Administration is AFFIRMED.
SIGNED this 9th day of January, 2017.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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