Pedroza v. Astrue

Filing 26

MEMORANDUM OPINION AND ORDER. Signed by Judge Miguel A. Torres. (mn)

iN THE UNITED STATES DISTRICT COURT

/1

FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
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FRANCISCA PEDROZA,

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Plaintiff,

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NO. EP-12-CV-l63-MA

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§

CAROLYN W. COLVIN,
ACTING COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION',

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Defendant.

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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") under Title II of the Social Security Act.

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 ofjudgment 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.

'Carolyn W. Colvin became Acting Commissioner of the Social Security Administration
on February 14, 2013. Pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure and the
last sentence of 42 U.S.C. § 405(g), she is substituted as the Defendant herein.
1

I. PROCEDURAL HISTORY

On January 16, 2009, Plaintiff filed an application for DIB in which she alleged disability
beginning March 3, 2005, due to "[d]iabetes, hypertension, high cholesterol, and gastrointestinal
problems." (R. 1 34)2 After her application was denied initially, and upon reconsideration, Plaintiff
requested a hearing. (R. 24-25, 6 1-64, 70-72). On April 27, 2009, she appeared with her attorney
for a video teleconference hearing before an administrative lawjudge ("AU"). (R. 28-57). Plaintiff

testified with the aid of a Spanish language interpreter, and the AU called a vocational expert to
testify. (R. 30, 48-55, 97-98).

On December 15,2010, the AU issued a written decision denying benefits on the ground that

Plaintiff is able to perform her past relevant work as a screen printer and a garment sorter. (R. 1219). On March 6, 2012, the Appeals Council denied Plaintiff' s request for review, thereby making

the

AU's decision the Commissioner's final administrative decision.

(R. 1-4). Plaintiff appeals

from the Commissioner's final decision denying benefits.
II. IS SUES PRESENTED
1. Whether the

AU' s residual functional capacity ("RFC") finding is supported by substantial

evidence.
2. Whether the AU erred in finding Plaintiff can perform her past relevant work ("PRW")

as a screen printer and a garment sorter.

Plaintiff contends the AU's RFC determination is not supported by substantial evidence
because the AU failed to include limitations relating to Plaintiff's right shoulder pain, urinary

Reference to the record of administrative proceedings is designated by (R. [page
number(s)].
2

incontinence, stomach problems, and fatigue. Plaintiff also contends the VE's testimony does not
provide substantial evidence for the

AU's decision that Plaintiff can perform her PRW because the

hypothetical question posed to the VE does not incorporate all of Plaintiff's impairments and the

VE's testimony conflicts with the Dictionary of Occupational Titles ("DOT"). Consequently,
Plaintiff seeks a reversal and remand for an award of benefits, or alternatively, for additional
administrative proceedings.
Defendant responds that the AU properly assessed Plaintiff's RFC by including all
limitations supported by the record. Defendant further responds that Plaintiff's argument that the

yE' s testimony was inconsistent with the DOT lacks merit, and the testimony constitutes substantial
evidence because the

AU's hypothetical question to the YE properly included all the limitations

supported by the record.
III. 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. Myers v. Apfel, 238

F.3d 617, 619 (5th Cir. 2001) (citing Greenspan

v.

Shalala, 38 F.3d 232, 236 (5th Cir. 1994)).

Substantial evidence is more than a scintilla, but less than a preponderance, and is such relevant

evidence as a reasonable mind might accept 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
848 F.2d 638, 640 (5th Cir. 1988).

3

v.

Bowen,

In determining whether there is substantial evidence to support the findings of the

Commissioner, the court must carefully examine the entire record, but may not reweigh the evidence
or try the issues de novo. Newton

v. Apfel,

209 F.3d 448, 452 (5th Cir. 2000); Hayvvood v. Sullivan,

888 F.2d 1463, 1466 (5th Cir. 1989). 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). Conflicts in the

evidence are for the Commissioner and not the courts to resolve. Speilman v. Shalala,

1

F.3d 357,

360 (5th Cir. 1993). If the Commissioner applied the proper legal standards and her findings are

supported by substantial evidence, they are conclusive and must be affirmed. Id.
B. Evaluation Process and Burden of Proof

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). 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; (3) whether the claimant's impairment(s) meet or equal the severity

of an impairment listed in 20 C.F.R. Part 404, Subpart P, 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 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 v. Chater, 67 F.3d 558, 565 (5th Cir. 1995). 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 she is unable to perform the alternative work.
Id.
C. The

AU's Decision
In his written decision, the AU determined as a threshold matter that Plaintiff met the

insured status requirements ofthe Social Security Act through December 31, 2010. (R. 14). At step
one, the AU found Plaintiff has not engaged in substantial gainful activity since February 28, 2008.
Id. At step two, the AU determined Plaintiff has severe impairments consisting of gastritis and

abdominal pain, shoulder and hand pain, and obesity. (R. 14-15). At step three, the AU determined

Plaintiff does not have an impairment or combination of impairments that meets or equals one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 15).
Before reaching step four, the AU assessed Plaintiffs RFC and found she is able to perform

light work,4 except that she cannot climb ladders, ropes, or scaffolds, and is limited to occasional

At the administrative hearing, the onset date was amended to February 28, 2008. (R. 12,
33).

Light work involves lifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a
job is in this category if it requires a good deal of walking or standing, or when it involves sitting
most of the time with some pushing and pulling of arm or leg controls. 20 C.F.R. § 404.1567(b).
5

overhead reaching with her left arm. (R. 15). In making this finding, the AU determined Plaintiff's

allegations regarding the intensity, persistence and limiting effects of her symptoms were not
credible to the extent that they are inconsistent with the AU' s RFC assessment. (R. 17). Based on

the

yE' s testimony, the

AU found at step four, that Plaintiff is able to perform her past relevant

work as a screen printer and as a garment sorter, and is, therefore, not disabled. (R. 18).
D. Analysis of Plaintiff's Claims
1.

Substantial Evidence Supports AU's Determination of Plaintiff's RFC

Plaintiff contends that substantial evidence does not support the AU's finding that she
retains the RFC to perform a limited range of light work because the AU failed to include

limitations relating to Plaintiff's right shoulder pain, urinary incontinence, stomach problems, and
fatigue.
RFC is defined as the most an individual can still do despite her limitations. 20 C.F.R.

§

404.1545; SSR 96-8p. The responsibility to determine the claimant's RFC belongs to the AU.
Ripley, 67 F.3d at 557. In making this determination, the AU must consider all the record evidence

and determine Plaintiff's abilities despite her physical and mental limitations. Martinez v. Chater,
64 F.3d 172, 176 (5th Cir. 1995). The AU must consider the limiting effects of Plaintiff's

impairments, even those that are non-severe, and any related symptoms. See 20 C.F.R.

§ § 404.1529,

404.1545; SSR 96-8p. The relative weight to be given to the evidence is within the AU's discretion.
Chambliss v. Massanari, 269 F.3d 520, 523 (5th Cir. 2001). The AU is not required to incorporate

limitations in the RFC that he did not find to be supported in the record. See Morris v. Bowen, 864
F.2d 333, 336 (5th Cir. 1988).

Plaintiff bears the burden to establish disability and to provide or identify medical and other

evidence of her impairments.

See

42 U.S.C.

§

423(d)(5); 20 C.F.R.

§

404.1512(c). A medically

determinable impairment must be established by acceptable medical sources.

20 C.F.R.

§

404.1513(a). Plaintifr s own subjective complaints, without supporting objective medical evidence,
are insufficient to establish disability.

See

20 C.F.R.

§

404.1508, 404.1528, 404.1529.

In her brief, Plaintiff first complains the AU's decision does not explain why he limited her
to occasional overhead reaching with her left arm when her medical records show she complained

of pain to her right arm. (P1's Brief, ECF No. 22 at 4). Plaintiff did not testify that she had any pain
or limitation in her right arm. In fact, she appeared at the hearing wearing a bandage on her left
wrist. (R. 38). When her counsel questioned her about it, Plaintiff explained that she has left arm

pain that radiates down to her wrist when lifting objects to shoulder height or overhead. (R. 38-39).

Plaintiff attributed her left arm pain and "problems with the hands" to a lipoma5 on the left side of
her neck. (R. 38, 43-44). When asked by her attorney if the pain was also in her right arm, Plaintiff
said, "No." (R. 38). Furthermore, PlaintilTs counsel questioned the VE about the effect of

limitations in reaching and handling with her left upper extremity. (R. 53-54).
In support of her claim that the AU erred by failing to include limitations due to right

shoulder pain, Plaintiff cites to one objective medical record dated March 7, 2006, two years prior
to her amended alleged onset date of February 28,2008, when she complained of right shoulder pain

"off and on" that was not due to trauma, but was "mostly positional." (R. 261). She was treated
with ibuprofen. Id. In his opinion, the AU correctly noted this single complaint and further noted

Plaintiff's subsequent medical records did not show any further problems in this area. (R. 16-17).

A lipoma is a benign, soft, rubbery encapsulated tumor of adipose tissue, usually
composed of mature fat cells. D0RLAND's ILLUS. MEDICAL DICTIONARY 1016 (29th ed. 2000).
7

Importantly, the Function Report dated April 9, 2009 which Plaintiff cites in her brief indicates she

reported her ability to reach or use her hands is not affected by her impairments. (P1's Brief, ECF
No. 22 at 4, citing R. 191). The record does not support any limitations related to right shoulder

pain.
In support of her claim that the AU erred by failing to include limitations requiring frequent

use of the restroom6 due to stomach problems and urinary incontinence, Plaintiff cites to medical

records from January and February 2009 that show she was diagnosed with moderate chronic active

gastritis, severe gastric stasis, poor gastric emptying, gastroparesis, and GERD. (R. 326, 345, 435).
The AU discussed Plaintiffs epigastric abdominal pain and the findings of a small hiatal hernia,

moderate inflammation without obstruction, gastric stasis and poor gastric emptying. (R. 16). As
noted by the AU, however, Plaintiff was treated successfully with Nexium, and the following month
she reported that she was doing "great." (R. 16, 365). Plaintiff was advised to continue with

Nexium. Id. Additionally, when questioned by the AU at the hearing, Plaintifftestified that she still
takes Nexium, and it helps her reflux and stomach problems. (R. 44-45). There is no evidence that

the AU erred by failing to include limitations related to Plaintiffs stomach problems.
As for Plaintiffs claims of urinary incontinence, she cites to records that show she was

diagnosed with urinary tract infections in November 2006 and May 2007. (R. 253,251). The notes
state Plaintiff reported urinary frequency, urgency, and painful urination, but did not report urinary

incontinence. Id. Finally, both of these episodes occurred prior to the amended alleged onset date,
and Plaintiff points to no records indicating any residual problems. Plaintiff was treated on both

occasions with a short course of antibiotics. Id. There is no error shown in failing to include

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Plaintiff testified she needs to use the restroom three or four times a day. (R. 34, 39).

limitations related to Plaintiff's alleged urinary incontinence.
Finally, Plaintiff complains the AU failed to include a limitation based on her fatigue. In
support, Plaintiff cites to her testimony that she is unable to work because she tires easily, and her

doctor-prescribed sleep medication makes her

ill.7

(R. 35, 42). She also relies on the following

symptoms self-reported on several agency forms: insomnia, fatigue, and difficulty sleeping. (R. 134,
155, 187). Additionally, she cites to a medical report from a routine check up on September 21,

2009 that shows her main complaint on that visit was fatigue.8 (R. 383). The notes state," [S]ome

nights she sleeps poorly." Id. Merely sleeping poorly on some nights does not establish an
impairment.
2. Substantial Evidence Supports

AU's Step Four Decison

At step four, the AU determined, based on the testimony of the yE, that Plaintiff was not

disabled because she retained the RFC to perform her PRW as a screen printer and as a garment
sorter. (R. 18). Plaintiff argues the

AU's decision because:

yE' s testimony does not provide substantial evidence for the

(1) the hypothetical question posed to the VE does not incorporate

Plaintiff's limitation in reaching in all directions, and (2) the VE's testimony in identifying jobs

Plaintiff can perform conflicts with the Dictionary of Occupational Titles ("DOT").
In order to constitute substantial evidence for the

AU's decision, the yE' s testimony must

be based on a hypothetical question that includes all limitations supported by the record.

Bowling

When asked by her attorney to explain what she means by "ill," Plaintiff stated the sleep
medication causes her to feel "very sensitive" and "want to cry a lot." (R. 42). Plaintiff stated her
doctor explained this was "because of the diabetes." Id.
In addition to this record, Plaintiff's Brief also cites to notes from a follow up visit on
November 29, 2004. (P1's Brief, ECF No. 22 at 5, citing R. 273, 383). The Court, however,
could find no record of a complaint of fatigue at the November 2004 visit. (R. 272-275).
8

v.

Shalala, 36 F.3d 431, 436 (5th Cir. 1994). On cross-examination, Plaintiffs counsel asked the

VE to assume an additional limitation of occasional reaching in all directions with her left arm. (R.
53). The YE responded that such a limitation would eliminate the ability to perform the PRW. Id.

Counsel then asked the YE to disregard the reaching limitation and to assume a limitation of

occasional handling with the left hand. (R. 53-54). The YE responded that it might still be possible
to perform the PRW with such a limitation, but it would be difficult. (R. 54). As specifically noted

in his opinion, the AU found the medical evidence did not support a finding for ".

. .

a limitation

in claimant's ability to reach in all directions or to finger, as suggested by claimant's counsel's

hypotheticals." (R. 18). Therefore, the hypothetical question posed to the YE was not faulty for

failing to incorporate such limitations. Owens v. Heckler, 770 F.2d 1276, 1282(5th Cir. 1985) (AU
is not bound by YE testimony based on evidentiary assumptions that the AU ultimately rejects).

There is no error shown on this ground.
Finally, Plaintiff contends the VE's testimony does not constitute substantial evidence

because the DOT listings for screen printer, DOT 979.694-030 and garment sorter, DOT 223.687014, show that these jobs require frequent reaching. According to Plaintiff, because this frequent

reaching requirement does not distinguish between reaching forward and reaching overhead, and
does not distinguish between reaching with both arms and reaching with one arm, the reaching

requirements of Plaintiffs PRW as a screen printer and garment sorter exceed her current RFC
limitations.
The Fifth Circuit has noted that the DOT is not comprehensive in that it cannot and does not

purport to include each and every specific skill qualification for aparticularjob. Carey v. Apfel, 230

F.3d 131, 145 (5th Cir. 2000). Further, DOT job descriptions should not be given a role that is
10

exclusive of more specific vocational expert testimony with respect to the effect of an individual

claimant's limitations on his or her ability to perform a particular job. Id. at 145.
In Carey, the Fifth Circuit addressed an alleged conflict between a YE's specific testimony

that the claimant, an amputee, could perform the jobs of cashier and ticket seller with one hand, and
the DOT job descriptions stating that the jobs required the ability to finger and handle things. Id.,
at 145-47. Noting the yE' s specific testimony that the claimant could perform the jobs with the use

of only one arm and hand, the Court was not persuaded that the facts of the case involved any actual
conflict between the YE's testimony and the DOTjob descriptions. Id., at 147. The Court held that,
to the extent there is any implied or indirect conflict between the VE's testimony and the DOT, the
AU may rely upon the VE's testimony provided the record provides an adequate basis for doing so.

Id., at 146-47.
In the present case, the AU asked the VE to keep his testimony consistent with the DOT and

to advise the AU if any of his testimony was inconsistent with the DOT. (R. 49). The VE testified

in response to a hypothetical, based on the limitations set forth by the AU in his RFC finding, that
such an individual could perform Plaintiff's PRW of screen printer and garment sorter. (R. 51-52).
The AU specifically stated the hypothetical person would be limited in the ability to reach overhead

with her non-dominant left arm to an occasional basis only. (R. 51). The VE testified that the

overhead reaching limitation normally would not affect the ability to perform the jobs of screen
printer and garment sorter. (R. 51-52).
On cross-examination, Plaintiffs counsel asked the VE whether an additional limitation of

occasional reaching in all directions with her left arm would eliminate the ability to perform the
PRW. (R. 53). The VE responded that it would. Id. This issue was explored further by the AU

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on reexamination of the yE. The VE testified that Plaintiff's PRW required frequent reaching in
front. (R. 54-55). The AU specifically asked if the limitation to occasional overhead reaching

would preclude the PRW, and the VE responded that it would not. (R. 55).
Despite Plaintiff's argument to the contrary, the Court finds no direct conflict between the

DOT and the YE's testimony. Although the DOT listings for screen printer and garment sorter
require frequent reaching, there is no indication this would involve overhead reaching with the left
arm on more than an occasional basis. The VE testified that the frequent reaching that was required

would be in the front, not overhead. (R. 54-55). According to the yE, overhead reaching would not
normally be required to perform the PRW. (R. 51). The record provides an adequate basis for the
AU to rely on the VE's testimony. There is no error on this ground.

The testimony of the VE provides substantial evidence for the

AU' s determination that

Plaintiff is not disabled because she can perform her past relevant work. As substantial evidence
supports the

AU's decision, it must be affirmed.

Speilman,

1

F.3d at 360.

CONCLUSION
It is therefore ORDERED that the decision of the Commissioner be, and it is hereby,

SIGNED and ENTERED this 30th day of June, 2015.

MIGUEL A. TORRES
UNITED STATES MAGISTRATE JUDGE

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