Archuleta v. Astrue

Filing 30

MEMORANDUM OPINION AND ORDER. Signed by Judge Robert F. Castaneda. (mc4, )

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION

MICHAEL ARCHULETA o/b/o,
RITA ARCHULETA, deceased,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of the Social
Security Administration,
Defendant.

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NO. EP-10-CV-00194-RFC
(by consent)

MEMORANDUM OPINION AND ORDER
This is a civil action seeking judicial review of an administrative decision. On behalf of Rita
Archuleta, deceased (Plaintiff), Michael Archuleta appeals from the decision of the Commissioner
of the Social Security Administration (Commissioner), denying her claim for disability insurance
benefits and supplemental security income under Titles II and XVI of the Social Security Act, 42
U.S.C. §§ 416(i), 423, 1382c(a)(3). Jurisdiction is predicated upon 42 U.S.C. § 405(g). Both parties
having consented to trial on the merits before a United States Magistrate Judge; the case was
transferred to this Court for trial and entry of judgment pursuant to 28 U.S.C. § 636(c) and Appendix
C to the Local Court Rules of the Western District of Texas. For the reasons set forth below, this
Court orders that the Commissioner’s decision be AFFIRMED.
PROCEDURAL HISTORY
On November 28, 2006, Plaintiff filed her applications for benefits alleging disability due
to impairments that became disabling on April 1, 2006. (R:100, 108) 1 The applications were denied
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Reference to documents filed in this case is designated by “(Doc. [docket entry
number(s)]:[page number(s)])”. Reference to the transcript of the record of administrative

initially and on reconsideration. (R:45-58) Pursuant to Plaintiff’s request, an Administrative Law
Judge (ALJ) held a hearing to review her applications de novo on September 24, 2008, at which both
Plaintiff and a vocational expert testified. (R:18-44) The ALJ issued her decision on December 29,
2008, denying benefits at step four of the sequential evaluation process. (R:9-17) Plaintiff’s request
for review was denied by the Appeals Council on February 24, 2010. (R:3-7) Plaintiff died on
March 26, 2010. (Doc. 24:2, Exh. A)
On May 25, 2010, Plaintiff’s complaint was submitted. (Doc. 1) The Commissioner filed
an answer on September 2, 2010, and a certified copy of the transcript of the administrative
proceedings was received on September 3, 2010. (Docs. 11, 13) On December 8, 2010, Plaintiff’s
brief was filed. (Doc. 24) On January 5, 2011, the Commissioner filed his brief in support of the
decision to deny benefits. (Doc. 25)2
ISSUE
Plaintiff claims that the ALJ’s finding that Plaintiff can perform her past relevant work is the
result of legal error and not supported by substantial evidence. (Doc. 24).

proceedings filed in this case is designated by “(R:[page number(s)])”.
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This cause was initially referred by United States District Court Judge Kathleen Cardone
to then Magistrate Judge Michael S. McDonald, and then transferred and reassigned to then
Magistrate Judge Margaret F. Leachman. (Docs. 7, 15) It was then reassigned to Magistrate
Judge Norbert J. Garney. (Doc. 18) Finally, it was reassigned to this Court on April 4, 2011.
(Doc. 26) The parties were ordered to file a new notice of consent or non-consent to Magistrate
Judge jurisdiction on April 7, 2011, and both parties entered notices consenting to this Court
deciding the appeal. (Docs. 27-29)
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DISCUSSION
A.

Standard of Review
This Court's review is limited to a determination of whether the Commissioner’s final

decision is supported by substantial evidence on the record as a whole and whether the
Commissioner applied the proper legal standards in evaluating the evidence. See Martinez v. Chater,
64 F.3d 172, 173 (5th Cir. 1995); Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994), cert.
denied, 514 U.S. 1120, 115 S.Ct. 1984 (1995). Substantial evidence is more than a scintilla, but can
be less than a preponderance, and is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995). 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)). In reviewing the substantiality of the
evidence, the Court must consider the record as a whole and “must take into account whatever in the
record fairly detracts from its weight.” Singletary v. Bowen, 798 F.2d 818, 823 (5th Cir. 1986).
If the Commissioner’s findings are supported by substantial evidence, they are conclusive
and must be affirmed. Martinez, 64 F.3d at 173. In applying the substantial-evidence standard, the
Court must carefully examine the entire record, but may not re-weigh the evidence or try the issues
de novo. Haywood v. Sullivan, 888 F.2d 1463, 1466 (5th Cir. 1989). It 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). Conflicts in the evidence are for the Commissioner, and not the courts, to resolve. Spellman
v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993).
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B.

Evaluation Process
Disability is defined as the “inability to engage in 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). The ALJ evaluates
disability claims according to a sequential five-step process: 1) whether the claimant is currently
engaged in substantial gainful activity; 2) whether the claimant has a medically determinable
impairment that is severe; 3) whether the claimant’s impairment(s) meet or equal the severity of an
impairment listed in 20 C.F.R. Part 404, Subpart B, Appendix 1; 4) whether the impairment prevents
the claimant from performing past relevant work; and 5) whether the impairment prevents the
claimant from doing any other work. 20 C.F.R. § 404.1520. A person’s residual functional capacity
(“RFC”) is what she can still do despite her limitations or impairments. 20 C.F.R. § 404.1545(a);
SSR 96-8p.
An individual applying for benefits bears the initial burden of proving that she is disabled for
purposes of the Act. Selders v. Sullivan, 914 F.2d 614, 618 (5th Cir. 1990). The claimant bears the
burden of proof on the first four steps, and once met, the burden shifts to the Commissioner to show
that there is other substantial gainful employment available that the claimant is capable of
performing. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5, 107 S.Ct. 2287, 2294 n. 5 (1987); Anderson
v. Sullivan, 887 F.2d 630, 632 (5th Cir. 1989).
C.

The ALJ’s Decision
First, the ALJ found that Plaintiff met the insured status requirements through September

30, 2009. (R:14) Next, she found that Plaintiff had not engaged in substantial gainful activity since
the alleged onset date of April 1, 2006. (Id.) At the second step, the ALJ found that Plaintiff had
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severe impairments of “obesity, Degenerative Disc Disease of the lumbar spine, scoliosis of the
spine, and occult spina bifida.” (Id.) The ALJ determined that Plaintiff’s alleged depression was
not a medically determinable impairment because she had not seen a physician nor sought or
received any treatment for it. (Id.)
At step three, the ALJ found that Plaintiff did not have an impairment or combination of
impairments meeting or medically equaling one of the listed impairments. (R:15)
The ALJ found that Plaintiff had the RFC to perform light work. (R:15-16) She could: lift
and carry no more than twenty (20) pounds occasionally and no more than ten (10) pounds
frequently; sit and stand and/or walk for no more than six hours, with normal breaks, out of an 8hour work day; could push and pull with both upper and lower extremities in a manner consistent
with the strength limitations just stated; can never climb ropes, ladders, and scaffolds or balance; and
can occasionally climb ramps and stairs, stoop, kneel, crouch, and crawl. (R:15)
Based on the RFC assessed and on the testimony of the vocational expert, the ALJ found at
step four that Plaintiff was capable of performing her past relevant work as a retail sales clerk as it
is generally performed. (R:16-17) The ALJ concluded that Plaintiff had not been under a disability
as defined in the Social Security Act from April 1, 2006, to the date of the ALJ’s decision. (R:17)
D.

Analysis
Plaintiff claims that the testimony provided by the vocational expert does not provide

substantial support for the ALJ’s step-four determination because the hypothetical question posed
to the expert did not contain all of the limitations stated in the RFC assessed by the ALJ. (Doc. 24:35) The Commissioner counters that any discrepancy between the ALJ’s RFC assessment and his
hypothetical question was harmless. (Doc. 25:5-6)
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An ALJ must compare a plaintiff’s RFC with the physical and mental demands of the prior
relevant work to find that the plaintiff is not disabled at step four. Latham v. Shalala, 36 F.3d 482,
484 (5th Cir. 1994). For a vocational expert’s testimony to provide substantial evidence to support
the ALJ’s disability determination, the expert’s testimony must respond to a hypothetical question
including all limitations supported by the record. See Bowling v. Shalala, 36 F.3d 431, 436 (5th Cir.
1994) (addressing a step-five denial). Reliance on an expert’s response to an erroneous hypothetical
question, however, is subject to harmless-error analysis; the court will not reverse an ALJ’s decision
for lack of substantial evidence where the plaintiff makes no showing of prejudice resulting from the
deficiencies alleged. Brock v. Chater, 84 F.3d 726, 729 (5th Cir. 1996).
In relevant part, the ALJ determined that Plaintiff could never climb ropes, ladders, and
scaffolds, could climb ramps and stairs occasionally, and could never balance. (R:15) However, the
hypothetical question presented to the vocational expert asked whether a person who can perform
the lifting, carrying, walking and standing requirements of light work, limited by the ability to
occasionally climb ropes, ladders, ramps and stairs, and occasionally balance, stoop, kneel, crouch
and crawl could perform Plaintiff’s past relevant work. (R:38-40)
The vocational expert testified that a person with such limitations could perform Plaintiff’s
prior relevant work as a retail sales clerk at the nursery, classified in the Dictionary of Occupational
Titles (“DOT”) as light work with an Specific Vocational Preparation (“SVP”) of 4, making it
semiskilled. (R:36-37) Although the expert did not state the DOT number of such position, the
Commissioner cites to DOT 272.357-022 titled salesperson, horticultural and nursery products, and
Plaintiff has not contested this identification. (Doc. 25:3) The DOT indicates that this position, as

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it is generally performed in the national economy, does not require climbing, crouching, crawling,
or balancing. DOT 272.357-022.
Social Security Ruling 96-9P explains that in the United States Department of Labor’s
Selected Characteristics of Occupations (“SCO”) Defined in the DOT, “‘balancing’ means
maintaining body equilibrium to prevent falling when walking, standing, crouching, or running on
narrow, slippery, or erratically moving surfaces.” SSR 96-9P at 7. The Ruling continues:
If an individual is limited in balancing only on narrow, slippery, or erratically moving
surfaces, this would not by itself, result in a significant erosion of the unskilled,
sedentary occupational base. However, if an individual is limited in balancing even
when standing or walking on level terrain, there may be a significant erosion of the
unskilled sedentary occupational base. It is important to state in the RFC assessment
what is meant by limited balancing in order to determine the remaining occupational
base. Consultation with a vocational resource may be appropriate in some cases.
Id. Rulings 85-15 and 96-9P indicate vocational expert testimony may be necessary where Plaintiff
is found to retain the ability to perform the standing and walking requirements of light work but
found to have limited balancing. SSR 85-15, 96-9P.
Plaintiff argues that the ALJ’s finding that Plaintiff could never balance, and not that she
could perform only limited balancing, indicates that Plaintiff is unable to balance even on level
terrain that is not narrow, slippery, or erratically moving, such that expert testimony regarding such
limitation was necessary in order for there to be substantial evidence supporting a step-four
determination. (Doc. 24:5) The ALJ’s finding that Plaintiff can stand and walk for up to six hours
in an eight hour day with normal breaks and can occasionally climb ramps and stairs and stoop,
kneel, and crouch, all of which require maintaining body equilibrium while doing so, however,
undermines Plaintiff’s interpretation of the ALJ’s balancing limitation. (R:15; Doc. 24:4); SSR 8515 (“Usual every day activities, both at home and at work, include ascending or descending ramps
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or a few stairs and maintaining body equilibrium while doing so.”) Nothing in the record supports
including an inability to balance on level terrain that is not narrow, slippery, or erratically moving.
Plaintiff has not alleged that her prior relevant work as actually performed required walking,
standing, crouching, or running on narrow, slippery, or erratically moving surfaces. Further,
Plaintiff’s prior relevant work as generally performed in the national economy does not require any
walking, standing, crouching, or running on narrow, slippery, or erratically moving surfaces. DOT
272.357-022 (balancing not present). Plaintiff has failed to demonstrate any harm resulting from
the discrepancies between the ALJ’s RFC assessment and the hypothetical question posed to the
vocational expert.
Additionally, viewing the record as a whole, the ALJ’s determination is supported by
substantial evidence. After a consultative examination, Dr. Jose Barahona, M.D., reported that
Plaintiff “was able to squat, bend, and walk on heels and toes without difficulty.” (R:16, 191)
Having reviewed Plaintiff’s records, Frederick Cremona, M.D., found that Plaintiff could never
climb ladders/ropes/scaffolds, could occasionally climb ramps/stairs and stoop and crouch, and could
frequently balance, kneel, and crawl. (R:199, 204) Plaintiff reported that her daily activities
included helping her aunt cook and clean. (R:16, 128) Finally, Plaintiff stated that she had stopped
working, not due to her alleged impairments, but because she was laid off. (R:16; 121)
Plaintiff has failed to demonstrate reversible error and the ALJ’s determination is supported
by substantial evidence. Neither reversal nor remand is warranted. Plaintiff’s claim fails.

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CONCLUSION
The Court concludes that any discrepancies between the ALJ’s RFC and the hypothetical
question posed to the vocational expert was harmless and the ALJ’s decision is supported by
substantial evidence. Based on the foregoing, it is hereby ORDERED that the Commissioner’s
determination be AFFIRMED.
SIGNED and ENTERED on August 22, 2011.

_____________________________________
ROBERT F. CASTANEDA
UNITED STATES MAGISTRATE JUDGE

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