Valle v. Astrue

Filing 22

MEMORANDUM OPINION AND ORDER. It is therefore ORDERED that the decision of the Commissioner be, and it is hereby, affirmed.. Signed by Judge Miguel A. Torres. (lc3)

iN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXA
EL PASO DIVISION

31

MI

9:

59

UW

EDUARDO VALLE,

§
§

Plaintiff,

§
§

NO. EP-12-CV-492-MAT

§

V.

§

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

§
§
§

§

Defendant.

§

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 his claim for Disability Insurance Benefits ("DIB") under Title II ofthe 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

is
Western District of Texas. For the reasons set forth below, the Commissioner's decision

AFFIRMED.
I. PROCEDURAL HISTORY

On October 6, 2009, Plaintiff filed an application for DIB in which he alleged disability

sleep
beginning May 13, 2009 due to hepatitis C, diabetes, liver problems, high blood pressure, and

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

1

apnea. (R. 152, 199).2 Plaintiff was 61 years old at the time of filing. (R. 152). He has a high
school diploma, attended four or more years of college, and has previous work experience as an

account manager, administrative manager, finance manager, and controller. (R. 201, 204).

After his application was denied initially and upon reconsideration, Plaintiff requested a
hearing before an administrative law judge ("AU"). (R. 46-54, 56-60). On May 18, 2011, he
appeared with his attorney for a hearing. (R. 280-303). On July 1, 2011, the AU issued a written

decision denying benefits on the ground that Plaintiff is able to perform his past relevant work as an
account manager; therefore, he is not disabled. (R. 13-20). On October 16, 2012, the Appeals
Council denied Plaintiff's request for review, thereby making the

AU's decision the

Commissioner's final administrative decision. (R. 1-5).
II. IS SUE PRESENTED

Whether the AU' s failure to consider the severity and limiting effects of Plaintiff's chronic
fatigue syndrome warrants remand.
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

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

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

v.

Bowen,

848 F.2d 638, 640 (5th Cir. 1988).

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); Haywood 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. Speliman

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 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

3

impairments prevents the claimant from performing past relevant work; and, (5) whether the
impairment or combination of impairments 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 he 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 of the Social Security Act through December31, 2013. (R. 15). At step

one, the AU found Plaintiff has not engaged in substantial gainful activity since the alleged amended

onset date of January 1,2011. Id. At step two, the AU determined Plaintiffhas severe impairments
consisting of non-insulin dependent diabetes type II; osteoarthritis, unspecified; hypertension,

At the hearing, Plaintiff moved to amend the onset date to January 1, 2011. (R. 35-36).
When questioned by the AU at the hearing, Plaintiff admitted he stopped working on January 1,
2011 when the company closed down. (R. 32-3 3). Prior to the company closing, Plaintiff
worked 20 hours per week as a manager.
4

benign; and, chronic hepatitis C. 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. 16).

Before reaching step four, the AU assessed Plaintiffs residual functional capacity (" RFC")
and found he is able to perform light

work,4

except he can occasionally climb ladders, ropes, or

scaffolds; can occasionally balance, stoop, and crouch, and can frequently climb ramps and stairs,

kneel, and crawl. Id. In making this RFC assessment, the AU determined Plaintiffs allegations
regarding the intensity, persistence and limiting effects of his symptoms were not entirely credible.
(R. 17),

At step four, the AU found that all of Plaintiffs past relevant work as an account manager

was considered sedentary and skilled. (R. 19). The AU further found the physical and mental
demands of Plaintiffs past relevant work did not exceed his RFC. (R.19-20). Thus, the AU
concluded that Plaintiff is able to perform his past relevant work as an account manager as performed
by him and, therefore, is not disabled. Id.
D. Analysis of Plaintiffs Claim

Plaintiff contends the AU erred by failing to consider the nature, severity and limiting effects

of his chronic fatigue syndrome.

According to Plaintiff, this failure resulted in an RFC

determination that is not supported by substantial evidence and taints all remaining steps in the
sequential evaluation. Therefore, Plaintiff argues, remand is required.

"Light work is defined in the regulations as 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

RFC is defined as the most an individual can still do despite his limitations. 20 C.F.R.

§

404.1545; Social Security Ruling ("SSR") 96-8p5. 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 his physical and mental
limitations. 20 C.F.R.

§

404.1545. The AU must consider the limiting effects of Plaintiffs

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.
See Chambliss

v.

Massanari, 269 F.3d 520, 523 n.1 (5th Cir. 2001) (citing Johnson v. Bowen, 864

F.2d 340, 347 (5th Cir. 1988)). 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).

Plaintiffbears the burden to establish disability by providing or identifying medical and other
evidence of his impairments. See 42 U.S.C.

§

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

§

404.15 12(c); Cook

v.

Heckler, 750 F.2d 391, 393 (5th Cir. 1985). There is no burden on the Commissioner to prove the

absence of a claimant's alleged impairment. See Wren

v.

Sullivan, 925 F.2d 123, 128 (5th Cir.

1991). It is clear that the claimant "must prove the existence of an impairment." Randallv. Astrue,
570 F.3d 651, 657-58 (5th Cir. 2009).

A medically determinable impairment must be established by acceptable medical sources.
20 C.F.R.

§

404.1513(a). Plaintiffs own subjective complaints, without supporting objective

medical evidence, are insufficient to establish disability. See 20 C.F.R.

§

404.1508, 404.1528,

SSR 96-8p, Titles IIandXVI: Assessing Residual Functional Capacity in Initial Claims,
1996 WL 374184 (July 2, 1996).

404.1529. Additionally, symptoms such as fatigue and weakness will not be found to affect a

claimant's ability to do basic work activities unless medical signs or laboratory findings show that
a medically determinable impairment is present. 20 C.F.R.

§

404.1529(b).

Broadly speaking, chronic fatigue syndrome ("CFS") is characterized by persistent fatigue,
unexplained by association with another disorder, and causing substantial reduction in functioning.
See Mettlen

v.

Comm'r of Soc. Sec. Admin., 2003 WL 1889011, at *5 (N.D. Tex. 2003) (citing

DORLAND'S ILLUS. MEDICAL DICTIONARY,

29111

ed.). The agency has addressed the criteria for

establishing CFS as a medically determinable impairment in SSR

99-2p6

which has a three-fold

purpose: (1) to define CFS in accordance with the definition established by the Center for Disease
Control and Prevention ("CDC"); (2) to establish requirements by which CFS can be found to be a

medically determinable impairment that can be the basis for disability; and, (3) to guide adjudicators
*
in evaluating claims involving CFS. See Mettlen, 2003 WL 1889011, at 5.

As outlined in the Ruling, under the CDC definition, the hallmark of CFS is the presence of

clinically evaluated, persistent or relapsing chronic fatigue that is of new or definite onset (i.e., has
not been lifelong), cannot be explained by another physical or mental disorder, is not the result of
ongoing exertion, is not substantially alleviated by rest, and results in substantial reduction in

previous levels of occupational, educational, social, or personal activities. Additionally the current
CDC definition of CFS requires the concurrence of 4 or more of the following symptoms, all of

which must have persisted or recurred during 6 or more consecutive months of illness and must not
have pre-dated the fatigue:

6SSR 99-2p, Titles II and XVI: Evaluating Cases Involving Chronic Fatigue Syndrome
(CFS), 1999 WL 271569 (Apr. 30, 1999).
7

Self-reported impairment in short-term memory or concentration severe enough to
cause substantial reduction in previous levels of occupational, educational, social, or
personal activities;
Sore throat;
Tender cervical or axillary lymph nodes;
Muscle pain;
Multi-joint pain without joint swelling or redness;
Headaches of a new type, pattern, or severity;
Unrefreshing sleep; and
Postexertional malaise lasting more than 24 hours.
Within these parameters, an individual with CFS can also exhibit a wide range of other
manifestations, such as muscle weakness, swollen underarm (axillary) glands, sleep disturbances,
visual difficulties (trouble focusing or severe photosensitivity), orthostatic intolerance (e.g.,
lightheadedness or increased fatigue with prolonged standing), other neurocognitive problems (e.g.,
difficulty comprehending and processing information,), fainting, dizziness, and mental problems
(e.g., depression, irritability, anxiety).

SSR 99-2p, 1999 WL 27159, at *l..2.

Under the CDC definition, the diagnosis of CFS can be made on an individual's reported
symptoms alone once the possible causes for the symptoms have been ruled out. SSR 99-2p, 1999
WL 27159, at *2. Under the Social Security Act, however, an individual's reported symptoms alone
are insufficient to establish the existence of a medically determinable impairment of CFS. Id.;
Mettlen,

2003 WL 1889011, at *6.

Before the existence of a medically determinable impairment

of CFS may be established, the claimant must show one or more medical signs, clinically
documented over a period of at least 6 consecutive months, such as:

Palpably swollen or tender lymph nodes on physical examination;
Nonexudative pharyngitis;
Persistent, reproducible muscle tenderness on repeated examinations, including the
presences of positive tender points; or,
Any other medical signs that are consistent with medically acceptable clinical
practice and are consistent with the other evidence in the case record.
SSR 99-2p, 1999 WL 27159, at *3

As pointed out in the Commissioner's brief, Plaintiff does not acknowledge either the CDC

diagnostic criteria or SSR 99-2p and does not attempt to link any evidence of record to either ofthese
authorities. In support of his contention that the AU committed reversible error by failing to
consider the nature, severity and limiting effects of his chronic fatigue syndrome, Plaintiff cites to

subjective evidence including his testimony at the administrative hearing and his self-reported
symptoms of fatigue. (R. 33, 35-36,199-200, 221, 224-225). He also cites to a portion of the

medical summary prepared by a treating physician practicing in Ciudad Juarez, Chihuahua, Mexico.
(R. 3 18-19). A review

of the cited evidence, however, shows Plaintiff has not met his burden of

presenting evidence that CFS constituted a medically determinable impairment during the time
period at issue.

Plaintiff testified he stopped working "[f]irst of all" because the company closed, and
secondly, because he began having health problems three years earlier that caused him to work only

part time. (R. 33). When asked what those health problems were, Plaintiff identified them as
diabetes, high blood pressure, hepatitis, and foot and back pain. (R. 34-3 5). When asked by the
AU how often he has to lie down due to chronic fatigue, Plaintiff explained

"[tjhat condition

is

really caused by all the other ones, and it can come at any time causing me to have to sit down for
a little while or lay down for a little while. I feel like I have lost all my strength." (R. 35) (emphasis

added). Although Plaintiff indicated he began to work part time due to health problems, he also

testified, "... [T]he company noticed it really wasn't necessary to have a person for the full-time
position. That's why they agreed to have me as a part-time employee." (R. 33, 36).
In an undated Disability Report, Plaintiff listed the conditions that limit his ability to work
as hepatitis C, diabetes, liver problems, hypertension, and sleep apnea. (R. 199). Plaintiff did not

list chronic fatigue syndrome as one of his conditions. He reported his conditions limit his ability
to work because he gets very fatigued; he can't sit or stand for long periods; he can't walk up stairs,

or carry/lift anything heavy; he has nausea due to medications; and his back, kidneys, and legs hurt.
(R. 200).

In a Function Report dated November 18, 2009, Plaintiff reported his legs hurt when he

walks, and he feels tired and fatigued, and his impairments affect his ability to lift, stand, walk7, sit,
kneel, climb stairs, and complete tasks. (R. 221, 224). Plaintiff also reported he never took naps in

the past, but now his fatigue causes him to "sleep spontaneously" at any time of the day, depending
on how he spent the

night.8

(R. 225).

As for objective medical evidence, Plaintiff also cites to a portion of the medical summary
prepared by Dr. Mario Legarreta Martinez, a physician practicing in Ciudad Juarez, Chihuahua,

Mexico. (R. 318-19). As discussed by the AU, the medical summary by Dr. Martinez (translated
from Spanish to English) indicates that at Plaintiff's first visit on February 22, 2010, the diagnoses
were chronic fatigue syndrome, andropause, diabetes mellitus type 2, and chronic gastritis.9 (R. 18,
316). The physical examination revealed a tumor at the nape of the neck1° and a slightly enlarged

The Court notes that in the same report, however, Plaintiff stated he goes to the park
daily to walk for one hour. (R. 222).
The Court notes that when asked in the same report how his impairments affect his
sleep, Plaintiff stated, "It has produced me so much stress that I wake up constantly." (R. 221).
8

Neither chronic hepatitis C nor hypertension are included in the diagnoses section of
the report for that date. The notes dated June 6, 2010, state that "{njo abnormal hepatic activity is
documented that would indicate hepatic cirrhosis." (R. 317).
The report indicates the tumor, a fatty fibroma, was removed on July 10, 2010 without
any complications. (R. 317).
10

10

prostate. Laboratory studies were recommended to evaluate Plaintiff's subjective complaints of

hypostenia (lack of strength), hypodynamia (lack of power), loss of libido, myalgias (muscle pain)
in arms and legs, difficulty in concentration for the past six months, and dyspepsia disorders. (R.
316).

Although the report indicates "the studies that were done are attached," there are no

attachments to the summary. (R. 31 8).

Notes from the follow up visit on February 27, 2010 indicate the laboratory results showed
elevated hematocrit. "[T]he rest is normal." (R. 316). Plaintiff's thyroid was within nonnal limits.
Glucose, cholesterol and triglycerides were high. (R. 317). A low cholesterol diet and exercise were

recommended. Id. The notes indicate Plaintiff stated he doesn't exercise because he tires. Id.

According to the summary, on June 6, 2010, Plaintiff requested Dr. Martinez perform an
evaluation for work disability. As quoted by the AU in his opinion, Dr. Martinez opined that

Plaintiff has no movement limitations, and no limitations in walking or in manipulating objects with
his hands. (R. 18, 317). Dr. Martinez further opined that Plaintiff's symptoms of hypostenia (lack

of strength), hypodynamia (lack of power), chronic tiredness, myalgias (muscle pain), and loss of
mental concentration "could be related to chronic fatigue syndrome, that being a subjective symptom
is difficult to demonstrate through clinical tests. It would be necessary to do profound studies to

determine this syndrome and if disabling. The chronic fatigue syndrome could cause disability to
work because it affects mental concentration in addition to the fatigue the patient displays." Id.
(emphases added). Isolated statements, such as the mention by Dr. Martinez of CFS as a possible

impairment, are insufficient to establish the presence of an impairment, particularly when the
claimant did not allege the impairment as a basis for disability. See Jones v. Bowen, 829 F.2d 524,
526 (5th Cir. 1987); see also Pierre

v.

Sullivan, 884 F.2d 799, 802-03 (5th Cir. 1989) (isolated

11

comments insufficient to raise a suspicion of an impairment).
The record does not contain a diagnostic finding of CFS that is supported "by medically

acceptable clinical and laboratory diagnostic techniques" as required by 42 U.S.C.

§

423(d)(3). In

fact, although CFS was listed by Dr. Martinez as one of Plaintiff s diagnoses, Dr. Martinez's medical

summary makes clear that it has not been confirmed with the proper testing that Plaintiff has CFS.
At most, Dr. Martinez opines that Plaintiff could have CFS. Importantly, Plaintiff did not list CFS
as one ofhis impairments when he applied for DIB. Additionally, at the hearing, Plaintiffs counsel

asked the AU to consider an RFC for sedentary work due to Plaintiffs " back problems, Diabetes,

high blood pressure, fatigue

he has Hepatitis C

from that chronic

from that Hepatitis C

medication, and he has the CPAP machine for sleep apnea." (R. 32). Counsel did not include CFS
when he summarized Plaintiffs conditions, and it appears counsel attributed Plaintiffs fatigue to

hepatitis C medication. Additionally, Plaintiff testified his alleged CFS is caused by all of his other
conditions. (R. 35). As noted in the CDC criteria for CFS, a proper diagnosis of CFS would have
to exclude both hepatitis and sleep apnea as a source of Plaintiff s complaints of fatigue. SSR 99-2p,
1999 WL 271569, at *1.2.

The AU found Plaintiff was not fully credible. (R. 19). He noted the following. Plaintiff
stopped working on May 13, 2009, the alleged onset date, due to a company layoff rather than due
to allegedly disabling symptoms. (R. 19, 200). The AU further noted that the evidence revealed

Plaintiff began to work part time for the same employer on November 23, 2009 and continued to
work there until January 1, 2011, his amended onset date. (R. 19). Plaintiff testified at the hearing
that he worked part time because the company did not think the position needed a full time
employee. (R. 19, 36). Further, Plaintiff testified he stopped working in January 2011 because the

12

company closed down. (R. 19, 33). The AU stated it was reasonable to infer that Plaintiff could
have continued working if the company had not closed down since he was performing his job
adequately at the time of the closure. (R. 19). Assessment of credibility is the province of the AU,
and his credibility determination is entitled to great deference. Greenspan, 38 F.3d at 237; Newton,
209 F.3d at 459.

Plaintiff's own subjective complaints, without supporting objective medical evidence, are
insufficientto establish disability. See 20 C.F.R.

§

404.1508, 404.1528,404.1529. The objective

medical evidence does not support Plaintiff's contention that the AU improperly assessed his RFC.
See Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992) (subjective complaints unsubstantiated
by medical findings need not be credited over conflicting medical evidence). Simply stated, the

evidence cited by Plaintiff does not establish the existence of CFS as a medically determinable

impairment. Moreover, the cited evidence does not support the need for further limitations in his
RFC than those assessed by the AU.
The task of weighing the evidence is the province of the AL

Chambliss, 269 F.3d at 523.

The task of the Court is merely to determine if there is substantial evidence in the record as a whole

which supports the AU's decision. Id. (citing Greenspan, 38 F.3d at 240). As substantial evidence

supports the

AU's decision, it must be affirmed.

13

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

AFFIRMED.
SIGNED and ENTERED this

day of March, 2016.

A. TORRES

UNITED STATES MAGISTRATE JUDGE

14