Ramos v. Astrue
MEMORANDUM OPINION AND ORDER. Signed by Judge Robert F. Castaneda. (da, )
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
MICHAEL J. ASTRUE,
Commissioner of the Social
MEMORANDUM OPINION AND ORDER
This is a civil action seeking judicial review of an administrative decision. Plaintiff appeals
from the decision of the Commissioner of the Social Security Administration (Commissioner),
denying her claim for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI)
under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 423(d), 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, the Commissioner’s decision is affirmed.
On September 7, 2007, Plaintiff filed her applications for DIB and SSI, alleging disability
due to impairments that became disabling on July 21, 2007. (R:108, 115)1 The applications were
denied initially and on reconsideration. (R:70-75, 79-85) Pursuant to Plaintiff’s request, an
Reference to documents filed in this case is designated by “(Doc. [docket entry
number(s)]:[page number(s)])”. Reference to the record of administrative proceedings filed in
this case is designated by “(R:[page number(s)])”.
Administrative Law Judge (ALJ) held a hearing to review Plaintiff’s applications de novo on June
22, 2009, at which Plaintiff, a medical expert, and a vocational expert (VE) testified; Plaintiff was
represented by an attorney and testified with the aid of an interpreter. (R:39-63, 88-107) The ALJ
issued a decision on October 26, 2009, denying benefits on the basis that Plaintiff could perform
other work. (R:12-30) Plaintiff’s request for review was denied by the Appeals Council on January
10, 2011. (R:6-10) Plaintiff’s request for an extension of time to file a civil action was granted on
March 25, 2011. (R:1-3)
On April 26, 2011, Plaintiff submitted her complaint along with a motion to proceed in forma
pauperis. (Doc. 1) The motion was granted and her complaint was filed. (Docs. 4-5) The
Commissioner filed an answer on July 26, 2011, and a certified copy of the transcript of the
administrative proceedings was received on the same date.2 (Docs. 13, 15) On August 27, 2011,
Plaintiff’s brief was filed. (Doc. 20) On September 22, 2011, the Commissioner filed his brief in
support of the decision to deny benefits. (Doc. 21) On October 3, 2011, Plaintiff filed a Reply brief.
Plaintiff’s sole claim is that the ALJ’s assessment of Plaintiff’s Residual Functioning
Capacity (RFC) is not supported by substantial evidence. (Doc. 20:2)
Both parties having filed notices of consent to proceed before a Magistrate Judge, this
cause was reassigned to this Court on July 26, 2011, by order of District Court Judge Philip R.
Martinez. (Docs. 3, 14, 16)
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 (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, a 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, a
court must carefully examine the entire record, but may not reweigh 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).
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. Plaintiff’s 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 (1987); Anderson v. Sullivan, 887 F.2d 630,
632 (5th Cir. 1989).
The ALJ’s Hearing Decision
Relevant to Plaintiff’s claim, the ALJ found that Plaintiff had severe impairments including
degenerative disc disease, bulging disc with nerve root compression at L5-S1, hypertension, diabetes
mellitus, basal joint arthritis, and obesity. (R:21) After finding that Plaintiff did not have an
impairment or combination of impairments meeting or medically equaling one of the listed
impairments, the ALJ found that:
[Plaintiff] has the residual functional capacity to perform light work as defined in 20
CFR 404.1567(b) and 416.967(b) except she can lift or carry 20 pounds occasionally
and 10 pounds frequently; she can stand or walk for 6 hours in an 8 hour day; she can
sit for 6 hours in an 8 hour day; she may never climb ropes, ladders, or scaffolds; she
may never kneel, crouch, or crawl; and she communicates only in Spanish.
Specifically, the ALJ found that Plaintiff’s impairments could reasonably be expected to
cause the symptoms Plaintiff alleged, but that Plaintiff’s statements concerning the intensity,
persistence, and limiting effects of such symptoms were not credible to the extent they conflict with
the RFC assessed. (R:22)
The ALJ noted that the letter from Rebecca Oliver, a registered nurse, dated August 24, 2007,
stating that claimant suffered from severe back pain severely impairing her ability to work and
perform activities of daily living, was not written for the purpose of medical diagnosis or treatment
and was not supported by any specific limitations or diagnosis. (R:23-24)
The ALJ then noted the consultative physical examination on December 12, 2007, with Dr.
Jaime Midez, at which Plaintiff reported constant pain and muscle spasms throughout her spine,
revealed no stiffness or difficulty walking to the examination table, a normal gait, and no muscle
spasm or other physical abnormalities. (R:24)
The ALJ noted the RFC assessment submitted by a non-examining state agency doctor on
January 16, 2008, concluding that Plaintiff was capable of a full range of medium work. (R:24)
The ALJ then summarized the opinion of the medical expert who testified at Plaintiff’s
The ALJ stated that the ALJ’s RFC assessment was supported by the treating medical
evidence and the opinion of the medical expert. (R:24)
Having found that Plaintiff is unable to perform her past relevant work, (R:24) at the fifth
step, based on vocational expert testimony, the ALJ found that, considering Plaintiff’s age as a
younger individual, her education as functionally illiterate and unable to communicate in English,
her work experience, and her RFC, there are jobs that exist in significant numbers in the national
economy that Plaintiff can perform. (R:24-25) Therefore, the ALJ concluded that Plaintiff had not
been under a disability, as defined in the Social Security Act, from July 21, 2007, through the date
of the ALJ’s decision. (R:25)
Analysis: The ALJ’s RFC assessment is supported by substantial evidence
Plaintiff contends that the ALJ’s RFC assessment is not supported by substantial evidence.
(Doc. 20) Specifically, Plaintiff contends that the ALJ failed to include a sit/stand option relating
to Plaintiff’s severe degenerative disc disease and bulging disc with nerve impingement either in
Plaintiff’s RFC or in the hypothetical to the vocational expert. (Doc. 20:4) The ALJ did, however,
present the vocational expert with a hypothetical in response to which the expert addressed a
sit/stand option. (R:61) Thus, the only issue is whether the ALJ’s decision to not include a sit/stand
option requirement in Plaintiff’s RFC is supported by substantial evidence.
In support of her claim, Plaintiff cites to several medical records from 2000, 2004, and 2007
indicating Plaintiff had disc problems in her lumbar and thoracic segments. (Doc. 20:4-5) None of
these records, however, reflect an objective clinical observation that Plaintiff had difficulty standing,
sitting, or walking for any period of time. Plaintiff also cites her own testimony that she cannot stand
for long periods of time and can only stand/sit for about fifteen minutes at a time. (Doc. 20:5) The
ALJ, however, found Plaintiff’s statements regarding her functional limitations not credible to the
extent they conflicted with the RFC assessed. (R:22) Credibility determinations are generally
entitled to great deference. Newton v. Apfel, 209 F.3d 448, 459 (5th Cir. 2000). In this case, both
the ALJ’s credibility determination and the ALJ’s RFC determination are supported by substantial
Although Plaintiff reported constant pain and muscle spasms throughout her spine, Dr.
Midez’s consultative examination in December 2007 found no impairments for activities of daily
living. (R:332-333) Dr. Midez found that x-ray showed osteoarthritic changes with osteophyte seen
at L1-L2 and L2-L3, that Plaintiff had the ability to bend forward 70 degrees, no tenderness to
palpation of the lumbar sacral area, no muscle spasm, normal gait, no active inflammatory changes
in the joints, no deformities, no muscle atrophy, all joints with normal range of motion, and ability
to walk on toes/heels. (Id.) Plaintiff has cited to no medical records later than December 2007 to
support a finding of a need for a sit/stand option. (Doc. 20)
On January 16, 2008, agency medical consultant Dr. Ligon Laurence, having reviewed the
evidence in the record, assessed Plaintiff as able to lift/carry 50 pounds occasionally and 25 pounds
frequently, stand/walk and sit about 6 hours in an 8-hour workday, and push/pull as limited by
lift/carry, with no postural, manipulative, visual, communicative, or environmental limitations. (R:
Though not relied on by the ALJ or either party, the Court also takes note of the following
records. September 2008 medical records show Plaintiff reported her back pain was about the same
as it had been in the past. (R:428) In October 2008, Plaintiff’s record of patient encounter does not
mention back pain. (R:426-427) In May of 2009, Plaintiff’s record of patient encounter indicates
that, while Plaintiff complained of back pain without cause, stiffness, and limitation of movement,
she denied any limitations of activity caused by her back pain. (R:407-408)
At the hearing, the ALJ asked the medical expert, who had reviewed the record, what
functional limitations she would anticipate Plaintiff may have due to her impairments. (R:44-45)
The medical expert stated she would limit Plaintiff to light work, no ropes, scaffolds, ladders,
crawling, crouching, or kneeling, and occasional stooping. (R:45)
Plaintiff was represented by an attorney at the hearing. (R:18, 46) Plaintiff’s attorney was
given an opportunity to question the medical expert and did not ask any questions, including any
questions about a limitation in duration of sitting/standing or walking or the need for a sit/stand
option. (R:46) The burden was on Plaintiff to provide evidence to the ALJ to establish her
disability, particularly evidence of her functional limitations so that the ALJ could assess Plaintiff’s
RFC. Bowen v. Yuckert, 482 U.S. at 146 n.5; Selders v. Sullivan, 914 F.2d at 618. Plaintiff chose
to rely solely on her own testimony. The ALJ found such testimony not credible. (R:22) That
determination is supported by substantial evidence and is entitled to deference. See Newton v. Apfel,
209 F.3d at 459.
The ALJ’s determination that Plaintiff did not require a sit/stand option finds substantial
support in the record. Plaintiff is not entitled to relief based on this claim.
The Court concludes that the ALJ’s findings are supported by substantial evidence. The
Commissioner’s decision is, therefore, AFFIRMED.
SIGNED and ENTERED on August 13, 2012.
ROBERT F. CASTANEDA
UNITED STATES MAGISTRATE JUDGE
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