Rebolloso v. Berryhill

Filing 18

ORDER AFFIRMING the Commissioner's decision. Signed by Judge Mark Lane. (lt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
HERIBERTA REBOLLOSO
Plaintiff,
V.
NANCY A. BERRYHILL,
Acting Commissioner of the Social
Security Administration,
Defendant.

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A-17-CV-294-ML

ORDER
This is an action for judicial review, pursuant to 42 U.S.C. § 405(g), of the final decision
of the Acting Commissioner of the Social Security Administration, Nancy A. Berryhill, in her
official capacity (“the Commissioner”), denying disability benefits to Plaintiff Heriberta
Rebolloso (“Rebolloso”). Before the court are Plaintiff’s Complaint (Dkt. #3), filed April 7,
2017; the Commissioner’s Answer (Dkt. #11), filed June 13, 2017; Plaintiff’s Brief in Support of
Claim (Dkt. #15), filed September 11, 2017; Defendant’s Brief in Support of the Commissioner’s
Decision (Dkt. #16), filed November 9, 2017; and the Record of the Social Security
administrative hearing in this matter (Dkt. #13), cited as TR [page number].
This case was referred to the Magistrate Judge by United States District Judge Lee
Yeakel pursuant to 28 U.S.C. § 636(b). Both parties have waived the right to proceed before a
District Judge and have consented, pursuant to 28 U.S.C. § 636(c), to have all proceedings in the
case, including the entry of final judgment, conducted by the Magistrate Judge. See Dkt. #17.
Having considered the briefing, the record below, and the case file as a whole, the Magistrate
Court now enters the following Opinion and Order.

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I.

PROCEDURAL HISTORY
On November 22, 2013, Rebolloso filed an application for benefits, alleging disability

beginning August 1, 2008. TR 204; 234. She last met insured status requirements on March 31,
2010. TR 250. She was fifty-years old at the date she last met insured status requirements. TR
204. Her claim was initially denied and again denied upon reconsideration on April 23, 2014. TR
37. She requested a hearing, which was conducted by video before Administrative Law Judge
("ALJ”) Doug Gabbard, II on October 6, 2015. TR 37. Rebolloso, her counsel, and an impartial
vocation expert (“VE”) appeared. TR 37. A Spanish interpreter was also present at the hearing.
Id. The ALJ issued an unfavorable decision on November 5, 2015. TR 31.
Rebolloso appealed. The Appeals Council denied her request for review of the ALJ’s
decision on February 3, 2017, thereby making the ALJ’s decision the Commissioner’s final
administrative decision. TR 1. Rebolloso filed this action seeking judicial review of the ALJ’s
decision on April 6, 2017. Dkt. #1.
II.

ISSUE PRESENTED
Whether the ALJ’s step-two finding is erroneous and warrants remand.

III.
A.

DISCUSSION
Standard of Review

Judicial review of the ALJ’s decision is limited. Specifically, the district court reviews:
(1) whether the ALJ’s decision was supported by substantial evidence; and (2) if so, whether the
ALJ made any errors of law in evaluating the evidence. Copeland v. Colvin, 771 F.3d 920, 923
(5th Cir. 2014) (citing Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005)).
Substantial evidence is more than a scintilla, but less than a preponderance, and is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Myers
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v. Apfel, 238 F.3d 617, 619 (5th Cir. 2001) (citing Greenspan v. Shalala, 38 F.3d 232, 236 (5th
Cir. 1994)). It is the role of the Commissioner, and not the courts, to resolve conflicts in the
evidence. Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999). As a result, the court “cannot
reweigh the evidence, but 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). The court may not substitute its own judgment “even if the evidence
preponderates against the [Commissioner’s] decision” because substantial evidence is less than a
preponderance.

Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988).

A finding of “no

substantial evidence” will be made only where there is a “conspicuous absence of credible
choices” or “no contrary medical evidence.” Abshire v. Bowen, 848 F.2d 638, 640 (5th Cir.
1988) (citing Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)). If the Commissioner
applied the proper legal standards and her findings are supported by substantial evidence, they
are conclusive and must be affirmed. Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993).
B.

Evaluation Process and Burden of Proof

Disability is defined as the “inability to engage in substantial gainful activity by reasons
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).
Disability claims are evaluated according to a five-step sequential process: (1) whether the
claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a
severe medically determinable physical or mental impairment or combination of impairments;
(3) whether the claimant’s impairment or combination of impairments meets or equals the
severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) whether the
impairment or combination of impairments prevents the claimant from performing past relevant

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work; and (5) whether the impairment or combination of impairments prevents the claimant from
doing any other work. 20 C.F.R. § 416.920. A finding that a claimant is disabled or not disabled
at any point in the process is conclusive and terminates the analysis. Greenspan, 38 F.3d at 236.
The claimant bears the burden of proof on the first four steps of the sequential analysis.
Leggett, 67 F.3d at 565. Once this burden is met, the burden shifts to the Commissioner to show
that there is other substantial gainful employment available that the claimant is capable of
performing. Anderson v. Sullivan, 887 F.2d 630, 632 (5th Cir. 1989). The Commissioner may
meet this burden by the use of opinion testimony of vocational experts or by use of
administrative guidelines in the form of regulations. Rivers v. Schweiker, 684 F.2d 1144, 1155
(5th Cir. 1982). If the Commissioner adequately points to potential alternative employment, the
burden then shifts back to the claimant to prove that he is unable to perform the alternative work.
Id.
C.

The ALJ’s Decision

In a written decision issued November 2, 2015, the ALJ determined as a threshold matter
that Rebolloso last met the insured status requirements of the Social Security Act on March 31,
2010. TR 39. The ALJ then engaged in the standard five-step sequential process, finding at step
one that Rebolloso had not engaged in substantial gainful activity during the period from her
alleged onset date of August 1, 2008 through her last date insured of March 31, 2010. TR 39. At
step two, the ALJ found that through the last date insured, Rebolloso had the following
medically determinable impairments: mild degenerative disc disease of the lumbar spine;
osteoporosis; pain and swelling of the arm, should, and hand; mild varicosities of the left leg;
chronic pain; headaches; and dizziness. TR 39. The ALJ found that the alleged anterior humeral
head glide syndrome, depression, and anxiety were not established as a medically determinable

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impairment during the relevant period. TR 39-40. Nevertheless, the ALJ concluded that none of
the impairments (or a combination thereof) was severe because none significantly limited
Rebolloso’s ability to perform basic work-related activities for 12 consecutive months. As a part
of that discussion, the ALJ determined that while her medically determinable impairments could
have been reasonably expected to produce the alleged symptoms, Rebolloso’s statements
concerning the intensity, persistence, and limiting effects of her symptoms were not entirely
credible. TR 41. The ALJ found that Rebolloso had several allegations regarding impairments
that were mild in nature or did not last twelve months in duration, though the ALJ noted that they
may have worsened or been treated after the relevant period. TR 41. But during the relevant
period, the ALJ concluded, citing Rebolloso’s testimony and the medical record, the impairments
were not severe, because Rebolloso was able to care for her children and home, engaged in
activities, and received almost minimal treatment for her conditions. TR 41. Thus, the ALJ
determined Rebolloso did not have an impairment or combination of impairments that met or
medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. TR 40. Accordingly, the ALJ concluded that Rebolloso was not disabled at the
relevant time period. TR 43-44.
D.

Analysis of Rebolloso’s Claim

Rebolloso argues that the ALJ’s failure to apply the severity standard outlined in Stone v.
Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985) mandates remand because the ALJ used an
incorrect severity standard and prematurely ended the sequential evaluation process. See Dkt.
#15 at 6. The Commissioner responds that the ALJ properly denied benefits. Although the ALJ
did not cite to Stone specifically, the Commissioner argues that the ALJ nevertheless applied the
proper standard, citing Taylor v. Astrue, 706 F.3d 600, 603 (5th Cir. 2012)(ALJ’s failure to

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articulate the proper legal standard was harmless). Moreover, the Commissioner argues, there is
no evidence in the record that Rebolloso’s impairments were severe enough at the relevant time
period to prevent her from gaining substantial gainful employment. Dkt. #16 at 4. As a result, the
Commissioner argues, any error by the ALJ in articulating or applying the proper standard is
harmless because substantial evidence supports the ALJ’s finding and remand is not required.
“[A]n impairment can be considered as not severe only if it is a slight abnormality
[having] such minimal effect on the individual that it would not be expected to interfere with the
individual’s ability to work, irrespective of age, education or work experience.”

Stone v.

Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985). As Rebolloso notes, the court must look beyond
the use of magic words to determine whether the ALJ used the correct standard of severity: a
failure to specifically cite to Stone does not alone create grounds for remand. See Dkt. #15 at 5;
Hampton v. Bowen, 785 F.2d 1308, 1311 (5th Cir. 1986).
Here, the ALJ considered all symptoms and the extent to which the symptoms could be
reasonably accepted as consistent with the objective medical evidence and other evidence, in
accordance with 20 CFR 404.1529, SSRs 96-4p and 96-7p. The ALJ also considered the opinion
evidence in accordance with 20 CFR 404.1527 and SSRs 96-2p, 96-5p, 96-6p, and 06-3p. TR 41.
A review of the record shows that Rebolloso alleged that she was disabled because of her back
and hip pain, though this pain did not produce functional limitations. TR 324. When she
complained of low back pain to her physicians in August and September 2008, her physicians
did not note abnormal findings on examination. TR 417-18; 420. Nearly a year elapsed before
she next sought treatment for lower back pain and that July 2009 examination revealed no
abnormal findings. TR 438. In August 2009, she again sought treatment for lower back pain,
representing to her physician that she had been told she needed surgery. TR 440. The evidence

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does not support that she had been told she needed surgery. At this August 2009 examination, the
physician made notes that the spine was positive for posterior tenderness and a straight leg
raising test showed pain in the right and left legs, but noted normal flexion, extension, lateral
flexion, rotation, and that Rebolloso was able to bear weight on each leg and walk on her toes
and heels without difficulty. TR 441. A follow-up x-ray showed mild degenerative changes. TR
498. When she presented with chest pain at a September 2009 office visit, she stated that
naproxen prescribed to her for muscular pain relieved the pain with “good response.” TR 443. At
an October 2009 follow-up appointment for her back pain, she presented with mild tenderness in
her back but negative straight leg raise testing and no neurological deficits. She was prescribed a
Lidoderm patch and ordered to continue using naproxen. TR 449. A September 2010 x-ray (six
months after her last-insured date) showed no changes from the August 2009 x-ray. TR 493-494.
Other symptoms during the relevant period described by Rebolloso and considered by the
ALJ included chest pain, headaches, acid reflux, and upper and lower extremity swelling. See TR
432-36, 443, 451-453, 461, 464-66. These symptoms were well managed during the relevant
period with conservative measures like Tylenol (musculoskeletal chest pain, swelling), Midrin
(headaches described as migraines), naproxen and Epsom salts (pain, swelling), modified diet
and PPIs (acid reflux), and diuretics (swelling). TR 42-43. Rebolloso also alleged that she was
diagnosed with osteoporosis, but the ALJ found that the medical records, including a May 2014
bone and mineral density scan (well after the last-insured date) established Rebolloso did not
have osteoporosis. TR 41-42, 55, 1325.
The ALJ also considered the medical opinion evidence, which provides substantial
support for the step-two determination. The State agency medical consultant at the initial level
concluded that there were insufficient medical records to establish physical impairments before

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the date last insured. At the reconsideration level, the medical consult came to the same
conclusion. TR 43. In a physical residual function capacity assessment by James Wright, M.D.,
Rebolloso was found not to have functional limitations other than a restriction to lifting fifty
pounds and Dr. Wright opined that the evidence did not fully support Rebolloso’s alleged
limitations. TR 43. The ALJ accorded this opinion some weight, noting that the medical record
showed some impairments but not sufficient evidence that the impairments limited her physical
functions at the relevant period. TR 43.
Further, as the Commissioner argues, Rebolloso’s testimony about her daily activities
also supports the ALJ’s step-two determination. For example, she reported that during the
relevant period, she cared for her children, cooked their meals, washed dishes, and shopped
outside the home for groceries and household supplies. TR. 53, 264-65. She attended her
children’s sporting events and school activities. TR 43. After the relevant time period, she
returned to the part-time work she had previously performed in a school cafeteria. TR. 53-54.
She also testified that she could lift between thirty and forty pounds during this time period. TR
62.
Finally, Rebolloso argues that the ALJ’s failure to adopt her subjective reports violates
the mandates of SSR 16-3p. SSR 16-3p replaced SSR 96-7p, which required “whenever the
individual’s statements about the intensity, persistence, or functionally limiting effects of pain or
other symptoms are not substantiated by objective medical evidence, the adjudicator must make
a finding on the credibility of the individual’s statements based on a consideration of the entire
case record.” SRR 96-7p. SSR 16-3p eliminates the use of “credibility” in evaluating symptoms
and clarifies that “[i]n considering the intensity, persistence, and limiting effects of an
individual's symptoms, we examine the entire case record, including the objective medical

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evidence; an individual's statements about the intensity, persistence, and limiting effects of
symptoms; statements and other information provided by medical sources and other persons; and
any other relevant evidence in the individual's case record.” SSR 16-3p. Nevertheless, SSR 163p was not applicable at the time of the ALJ’s decision (November 5, 2015). Moreover, even
under SSR 16-3p, the adjudicator “may or may not find an individual’s symptoms and related
limitations consistent with the evidence in his or her record.” SSR 16-3p. In this case, the ALJ
noted that some of Rebolloso’s complaints, such as osteoporosis, were contradicted by the record
evidence. Further, the ALJ noted that while some of her conditions may have worsened or been
treated more recently, Rebolloso’s statements about the intensity, persistence, and limiting effect
of her symptoms at the relevant time were not supported by the medical record and her own
testimony that she was able to care of her children in her home, engaged in activities, and
received minimal treatment for her conditions which were generally well managed. TR 42. The
ALJ did not err by not applying SSR 16-3p, and review of the medical record and the ALJ’s
opinion leads the court to conclude that the ALJ would have reached the same result even if SSR
16-3p had been applied.

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IV.

CONCLUSION

The task of weighing evidence is the province of the ALJ. See Chambliss v. Massanari,
269 F.3d 520, 523 (5th Cir. 2001). The task of the court is merely to determine if there is
substantial evidence in the record as a whole which supports the ALJ’s decision. Id. (citing
Greenspan, 38 F.3d at 240). As substantial evidence supports the ALJ’s decision in this case, it
must be affirmed. Any error committed by the ALJ in not specifically articulating the Stone
standard was harmless. Therefore, it is ORDERED that the Commissioner’s decision in the
above-styled cause is AFFIRMED in all aspects.

SIGNED September 17, 2018
_______________________________

MARK LANE
UNITED STATES MAGISTRATE JUDGE

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