Garcia de Perales v. Berryhill

Filing 20

MEMORANDUM OPINION AND ORDER AFFIRMING the decision of the Commissioner of the Social Security Administration. Signed by Judge Andrew W. Austin. (lt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
MARTHA A. GARCIA DE PERALES

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V.
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NANCY A. BERRYHILL,
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ACTING COMMISSIONER OF THE
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SOCIAL SECURITY ADMINISTRATION. §

A-17-CV-539 AWA

MEMORANDUM OPINION AND ORDER
Before the Court are Plaintiff’s Brief in Support of Claim (Dkt. No. 18) and Defendant’s
Brief in Support of the Commissioner’s Decision (Dkt. No. 19). Also before the Court is the Social
Security record filed in this case (Cited as “Tr.”).
I. General Background
Plaintiff Martha A. Garcia De Perales (“Plaintiff”) was born on January 24, 1965, and was
51 years-old at the time of the ALJ’s decision in this case. On March 31, 2014, Plaintiff filed
applications for disability, disability insurance benefits, and supplemental security income alleging
disability beginning on January 14, 2015, due to knee pain, obesity and diabetes. After her
applications were denied initially, and then again on reconsideration, Plaintiff requested a hearing
before an administrative law judge (“ALJ”) which was held on February 3, 2016. After reviewing
the evidence and testimony, the ALJ issued his decision finding that Plaintiff was not disabled within
the meaning of the Social Security Act. On April 5, 2017, the Appeals Council denied Plaintiff’s
request to review the ALJ’s decision thereby making it the Commissioners’s final decision for
purposes of judicial review under 42 U.S.C. § 405(g).

On June 5, 2017, Plaintiff filed the instant lawsuit under 42 U.S.C. § 405(g) requesting that
the Court reverse the Commissioner’s decision in this case because the ALJ’s decision is not
supported by substantial evidence.
II. Legal Standards
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 disabled the 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.

Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994); see also 20 C.F.R. § 404.1520. A finding of
disability or no disability at any step “is conclusive and terminates the analysis.” Lovelace v. Bowen,
813 F.2d 55, 58 (5th Cir. 1987). The claimant has the burden of proof for the first four steps;
however, 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). If the
Commissioner “fulfills his burden of pointing out potential alternative employment, the burden then

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shifts back to the claimant to prove that he is unable to perform the alternate work.” Id. (internal
quotation marks omitted).
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 applied the correct 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) (internal quotation marks omitted). The Court considers “four elements of proof when
determining whether there is substantial evidence of 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, a reviewing court “may not reweigh the evidence, try the issues de novo, or substitute [its]
judgment for that of the [Commissioner].” Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994).
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.”); see also 42 U.S.C. § 405(g).
III. The ALJ’s Opinion
The ALJ employed the regulations’ five-step sequential evaluation process to determine
whether Plaintiff was disabled. 20 C.F.R. § 404.1520(a). See Tr. 20-29. At the first step, the ALJ
determined that Plaintiff met the insured status through December 31, 2019, and that she had not
engaged in substantial gainful activity since January 14, 2015. At the second step, the ALJ found
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that Plaintiff has severe bilateral knee osteoarthritis, bilateral knee degenerative joint disease,
diabetes and obesity. The ALJ also found that Plaintiff has fatty liver disease, cholelithiasis,
proteinuria and non-severe hypertension. At step three, the ALJ found that, considered separately
and in combination, Plaintiff’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 her impairments were
not presumptively disabling. After considering the entire record, the ALJ determined that Plaintiff
has the residual functional capacity (“RFC”) to perform medium work with the following limitations:
the claimant can stand and/or walk up to 4 hours in an 8-hour workday; the claimant
can sit for up to 6 hours in an 8-hour workday; the claimant can balance and stoop
on an unlimited basis; the claimant can occasionally climb, kneel, crouch and crawl;
and the claimant is unable to walk on uneven surfaces.
Tr. at p. 24. Based upon his RFC finding, the vocational expert testimony, and the other evidence
in the record, the ALJ determined at Step 4 that Plaintiff is capable of performing her past relevant
work as a seamstress or a sewing machine operator. Accordingly, the ALJ found that Plaintiff was
not disabled as defined in the Social Security Act.
IV. Analysis
Plaintiff argues that the ALJ’s finding that she has the RFC to perform medium work is not
supported by substantial evidence. Specifically, Plaintiff argues that in determining her RFC, the
ALJ failed to properly accommodate her impaired standing and walking limitations. Plaintiff argues
that she is unable to perform the standing and walking requirements of the full-range of medium
work.
A plaintiff’s RFC is “the most [he] can still do after considering the physical and mental
limitations that affect the ability to perform work-related tasks.” Ray v. Barnhart, 163 F. App’x 308,

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312 n.6 (5th Cir. 2006) (citing 20 C.F.R. § 416.945(a)(1)). “The ALJ is responsible for determining
an applicant’s residual functional capacity.” Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995).
As noted above, the ALJ concluded that Plaintiff had the RFC to perform medium work with
certain restrictions. Medium work as defined by the regulations as work that “involves lifting no
more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds”
20 C.F.R. § 404.1567(c). Additionally, “[a] full range of medium work requires standing or walking,
off and on, for a total of approximately 6 hours in an 8-hour workday in order to meet the
requirements of frequent lifting or carrying objects up to 25 pounds.” SSR 83-10. “If someone can
do medium work, we determine that he or she can also do sedentary and light work.” 20 C.F.R.
§ 404.1567. Despite Plaintiff’s protestations to the contrary, the ALJ did not conclude that Plaintiff
could stand and/or walk for six hours in an eight hour workday; rather, the ALJ limited Plaintiff to
work that would only require her to stand and/or walk up to four hours out of an eight hour work day.
Thus, the ALJ did acknowledge and include her standing and walking limitations in his RFC
determination. The Plaintiff’s claim that she cannot perform the full range of medium work was not
disputed by the ALJ.
In addition, the ALJ did not actually conclude that Plaintiff could perform medium work in
this case. At step five, the ALJ found that Plaintiff had the RFC to perform her past relevant work
as a seamstress or a sewing machine operator, both of which are classified as light, unskilled work
under the Dictionary of Occupational Titles. Thus, Plaintiff’s focus on medium work seems
irrelevant to the ALJ’s ultimate finding in this case. Regardless, the ALJ’s finding that Plaintiff had
the RFC to perform her past relevant light work as a seamstress and sewing machine operator is
supported by substantial evidence.

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In assessing Plaintiff’s RFC, the ALJ relied on the testimony of the vocational expert. It is
well settled that a vocational expert’s testimony, based on a properly phrased hypothetical question,
constitutes substantial evidence. Bowling v. Shalala, 36 F.3d 431, 436 (5th Cir. 1994). In this case,
the vocational expert testified that Plaintiff’s past relevant work as a seamstress and sewing machine
operator would be classified as light work. Tr. 48-50. The vocational expert further testified that
a hypothetical person with the same age, education and work experience as Plaintiff who was limited
to standing and/or walking for four hours and sitting for six hours in an eight hour day and no
walking on uneven surfaces could perform the jobs of seamstress and sewing machine operator. Tr.
at p. 50. Accordingly, the vocational expert’s testimony supports the ALJ’s determination in this
case that Plaintiff can perform the jobs of seamstress and sewing machine operator. See Carey v.
Apfel, 230 F.3d 131, 147 (5th Cir. 2000) (“The ALJ expressly relied upon the vocational expert’s
clarifying testimony for her ruling that Carey, with his particular impairments, could perform certain
sedentary or light jobs that are available in significant numbers in the national economy. There is,
therefore, no legal error in the ALJ’s ruling.”); Griffin v. Colvin, 2016 WL 6476994, at *5 (S.D. Tex.
Oct. 31, 2016) (“The VE’s ‘clear and unchallenged testimony’ that Griffin could perform his past
relevant work as generally performed is adequate, in the context of this record as a whole, to support
the ALJ’s determination at Step 4.”).
Other medical evidence in the record also supports the ALJ’s decision that Plaintiff has the
RFC to perform the jobs of seamstress and sewing machine operator. For example, the state agency
medical consultant, Dr. Kim Rowlands, M.D., opined that Plaintiff’s alleged physical limitations due
to leg and knee pain were “not fully supported by medical and other evidence.” Tr. at. p. 57. Dr.
Rowlands opined that Plaintiff could stand or walk for four hours out of an eight hour work day and

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sit for six hours out of an eight hour work day. In addition, on November 3, 2014, another
consultative physician, Dr. Amita Hedge, M.D., also determined that Plaintiff could stand for four
hours and sit for six hours out of an eight hour work day and that Plaintiff’s “limitations are not fully
supported by the medical and other evidence.” Tr. p. 77-79. Accordingly, this evidence supports the
ALJ’s findings in this case. “State agency medical or psychological consultants . . . are considered
experts in the Social Security disability program and their opinions may be entitled to great weight
if they are supported by the evidence.” Hardin v. Astrue, 2011 WL 1630902, at *7 (N.D. Tex. Mar.
31, 2011). The Court finds that the above-evidence constitutes substantial evidence to support the
ALJ’s findings in this case. See Chaparro v. Bowen, 815 F.2d 1008, 1010 (5th Cir. 1987) (finding
that consulting physician’s report “constitutes substantial evidence to support the Secretary’s
decision that [claimant] could return to his previous employment as a truck driver.”).
The only evidence in the record (other than her own subjective testimony) that Plaintiff relies
on to contradict the above evidence is the opinion of Dr. Maria Arizmendez, M.D., a consulting
physician who opined that “claimant has limited tolerance for prolonged standing and walking” and
“is able to participate in sedentary work.” Tr. at p. 358. The Court does not believe that this
evidence overwhelmingly supports a finding that Plaintiff is disabled. “Rather, the evidence presents
conflicting testimony and reports that must be evaluated by their credibility. The Secretary, not the
courts, has the duty to weigh the evidence, resolve material conflicts in the evidence, and decide the
case.” Chaparro, 815 F.2d at1011. The Court finds that the ALJ properly evaluated and weighed
the evidence in this case and determined that Plaintiff was not disabled. The Court cannot “reweigh
the evidence or substitute our judgment” for that of the ALJ. See Whitehead v. Colvin, 820 F.3d

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776, 782 (5th Cir. 2016). Based upon the foregoing, the Court finds that Plaintiff has failed to meet
her burden to establish that the ALJ’s decision was not supported by substantial evidence.
IV. Conclusion
In summary, the Court finds that the ALJ applied the proper legal standards to Plaintiff’s
case, and that his findings are supported by substantial evidence in the record. The decision of the
Commissioner of the Social Security Administration is therefore AFFIRMED.
SIGNED this 12th day of September, 2018.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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