Valdez v. Colvin

Filing 21

Memorandum Opinion and Order Affirming the decision of the Commissioner. Signed by Judge Leon Schydlower. (gp)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
MIGUEL VALDEZ,
Plaintiff,

§

.

§

V.

n

§
§

CAROLYN W. COL YIN,1
Acting Commissioner of Social Security
Administration,
Defendant.

NO. EP-13-CV-0025-FM
(-LS by consent)

§

§
§
§

MEMORANDUM OPINION AND ORDER
This is a civil action seeking judicial review of an administrative decision. 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 referred to this Court for trial and entry of judgment

pursuant to 28 U.S.C.

§

636(c), and Rule CV-72 and Appendix C of the Local Court Rules for the

Western District of Texas.

Plaintiff appeals from the decision of the Commissioner of the Social Security
Administration (Commissioner) denying his applications for disability insurance benefits (DIB) and
for supplemental security income (SSI) under Titles II and XVI, respectively, of the Social Security
Act. For the reasons set forth below, this Court orders that the Commissioner's decision be

AFFIRMED.
BACKGROUND
Plaintiff was born February 8, 1963, completed a high school education, and can

'Carolyn W. Colvin became the Acting Commissioner of the Social Security Administration on
February 14, 2013. Pursuant to Fed. R. Civ. P. 25(d), she is substituted as the defendant in this suit. No
further action need be taken to continue this suit by reason of the last sentence of §2O5(g) of the Social
Security Act, 42 U.S.C.

§

405(g).

communicate in English. (R:13, 21, 22, 129)2 He has experience working in assembly. (R:13, 22,
119) Plaintiff discontinued working in June 2008 due to a rotator cuff injury in his right shoulder and

tendonitis in his right wrist. (R:23, 44, 45, 51, 52, 134, 136)

ISSUES
Plaintiff presents the following issues for review:
Whether the final decision of the Commissioner denying benefits is supported by
substantial evidence; and
1.

2. Whether the Commissioner applied an incorrect legal standard in determining that Plaintiff

was not disabled.
In particular, Plaintiff contends that the Administrative Law Judge's (AU) residual

functional capacity (RFC) determination is not supported by substantial evidence because the AU

failed to properly consider the limiting effects ofPlaintiffs shoulder impairment. Plaintiff contends

that the case should be reversed, or in the alternative, remanded for further administrative
proceedings.

PROCEDURAL HISTORY
In May2010, Plaintiff filed applications for DIB and S SI benefits, with an alleged onset date

of June 3, 2008. (R:9) A hearing was held on November 30, 2011. (R:9,21) The AU issued his
decision on December 30, 2011, finding Plaintiff not disabled, and denying benefits. (R:9-14) The
Appeals Council denied Plaintiffs request for review. (R: 1-5)

Plaintiff filed the instant cause on January 29, 2013. {ECF Nos.

1, 5]

Defendant filed an

answer and transcript of the administrative proceedings on April 23, 2013. [ECF Nos. 12, 14]

by
2Reference to the Administrative Record, contained in Docket Entry Number 14, is designated
and "R" followed by the page number(s).

Plaintiff filed a brief in support of his claims on June 4, 2013. [ECF No. 17] On June 28, 2013,
Defendant filed a brief in support of the Commissioner's decision denying benefits. [ECF No. 18]
On July 8, 2013, Plaintiff filed a reply brief. [ECF No. 19] This case was transferred to United States

Magistrate Judge Leon Schydlower on December 8, 2015. [ECF No. 20]

DISCUSSION
1.

Standard ofReview
This Court's review is limited to a determination of whether the Commissioner's decision

is supported by substantial evidence, and whether the Commissioner applied the proper legal

standards in evaluating the evidence. See 42 U.S.C. § 405(g); Masterson v. Barnhart, 309 F.3d 267,
272 (5th Cir. 2002). Substantial evidence "is more than a mere scintilla, and less than a

preponderance." Masterson, 309 F.3d at 272. The Commissioner's findings will be upheld if
supported by substantial evidence. Id. 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.

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

In applying the substantial evidence standard, the court may not reweigh the evidence, try the

issues de novo, or substitute its own judgment for the Commissioner's, even if it believes the
evidence weighs against the Commissioner's decision. Masterson, 309 F.3d at 272. Conflicts in the
evidence are for the Commissioner and not the courts to resolve. Id.; Speliman v. Shalala,
357, 360
2.

(51h

1

F.3d

Cir. 1993).

Evaluation Process
The AU 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 severe
3

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 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, 416.920.

The claimant bears the burden of proof at the first four steps of the analysis. Leggett

Chater, 67 F.3d 558, 564
not disabled. 20 C.F.R.

(Sth

§

v.

Cir. 1995). If the claimant can perform his past relevant work, he is

404.1520, 416.920. However, if the claimant has shown he cannot

perform his previous work, the burden shifts to the Commissioner to show that there is other work
(5th
Cir. 1999). If the
available that the claimant can perform. Crowley v. Apfel, 197 F.3d. 194, 198

Commissioner establishes other potential employment, the burden shifts back to the claimant to
prove he is unable to perform the alternative work. Id. A finding that a claimant is disabled or not

disabled at any point in the process is conclusive and terminates the Commissioner's analysis.
Leggett, 67 F.3d at 564. The Commissioner's decision is granted great deference and will not be

disturbed unless the reviewing court cannot find substantial evidence in the record to support the

Commissioner's decision or finds that the Commissioner made an error of law. Id.
3.

TheALJ's Residual Functional Capacity Determination is Supported by Substantial Evidence
Plaintiff asserts that the AU erred in determining his residual functioning capacity by failing

to properly consider the evidence of limitations relating to his shoulder impairment. He argues that

the AU was "picking and choosing" only the evidence that supported his decision. The Defendant
responds that substantial evidence supports the decision of the AU, and that the AU appropriately
discounted Plaintiff's subjective statements.

Residual functional capacity ("RFC") is the most an individual can still do despite his

limitations. 20 C.F.R.

§

404.1545, 416.945. The responsibility to determine the Plaintiff's RFC

(5th Cir. 1995). In making this determination,
belongs to the AU. Ripley v. Chater, 67 F.3d 552, 557

the AU must consider all the record evidence and determine the Plaintiffs abilities despite his
physical and mental limitations. Perez
20 C.F.R.

§§

v.

Barnhart, 415 F.3d 457, 46 1-62 (5t1 Cir. 2005); see also

404.1545(a), 416.945(a). The AU must consider the limiting effects of an individual's

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

§

404.1529,

404.1545, 416.929, and 416.945. The relative weight to be given the evidence is within the AU's
discretion. Chambliss

v.

Massanari, 269 F.3d 520, 523

(5th

Cir. 2001).

The mere presence of an impairment is not disabling per Se. See Names v. Heckler, 707 F.2d
162, 165 (sth Cir. 1983). Rather, it is Plaintiffs burden to establish disability and to provide or

identify medical and other evidence of his impairments. See 42 U.S.C.

§

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

§sS

404.1512(c), 416.912(c). His own subjective complaints, without objective medical evidence of
record, are insufficient to establish disability. See 20 c.F.R.

§

404.1508, 404.1528, 404.1529,

416.908, 416.928, 416.929. Further, impairments that are remedied or controlled by medication or

treatment are not disabling. Lovelace

v.

In the present case, the AU

Bowen, 813 F.2d 55, 59 (5" cir. 1987).

found that the Plaintiff had severe impairments of

hyperlipidemia, hypertension, diabetes type II, and shoulder joint pain, but that none of his

impairments met or equaled the listing of impairments in 20 C.F.R. Part 404, Subpart P, Appendix
1.

(R: 11) The AU determined that Plaintiff retained the capacity to perform a range of sedentary

work as defined in 20 c.F.R.

§

404.1567(a), and

416.967(a).3

(R:12) Because Plaintiffs past

3Sedentary work is defined as work involving "lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary
job is defined as one which involves sitting, a certain amount of walking and standing is often necessary
5

relevant work in assembly is characterized as heavy work, the AU found that such work exceeded

Plaintiff's residual functional capacity of sedentary work. Therefore, Plaintiff could not perform his
past relevant work. However, considering Plaintiff's age, education, work experience, and residual
functional capacity, the AU found that under the Medical-Vocational Guidelines, jobs existed in
significant numbers in the national economy that Plaintiff could perform. (R: 14) Thus, he determined
that a finding of not disabled was warranted under Rule 201.21 of the Medical-Vocational

Guidelines.

Plaintiff complains that the AU failed to fuiiy appreciate the limiting effects ofhis shoulder
impairment in determining his RFC. Defendant responds that the

AU's RFC determination

adequately accommodates Plaintiffs shoulder limitations, and that Plaintiffs alleged limitations are

based on his subjective complaints rather than objective medical evidence.
Medical notations from April 2008 to February 2009 reflect that Plaintiff was seen by Dr.
Everett Campbell for treatment of his right shoulder. In April 2008, Dr. Campbell assessed him with
a rotator cuff tear of the right shoulder and prescribed anti-inflammatory medication. (R:223) In
August 2008, Dr. Campbell noted that Plaintiff was having increased pain in his right shoulder, and
recommended that he see Dr. Refaeian for therapy. (R:221) On December 29, 2008, Dr. Campbell
noted that Plaintiff had right shoulder surgery in 2006, and that he was being followed by Dr.

Refaeian to determine his work status. (R:21 8) On February 23, 2009, Dr. Campbell wrote that

Plaintiff received therapy from Dr. Refaeian as needed, and took anti-inflammatorymedication. Dr.
Campbell assessed him as having satisfactory range of motion of his right shoulder, adding that he

in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other
sedentary criteria are met." 20 C.F.R. § 404.1567(a), 416.967(a).

could put his arm over his head. (R:2 17)
Medical notations from May 13, 2010, reflect that Plaintiff exhibited right shoulder pain.

showed
(R:226) On May 14, 2010, Plaintiff underwent an MRI examination. (R:229) Results
evidence ofsubacromial decompression with minimal subacromial bursitis and lendinopathy

without

tenosynovitis.
full thickness tear of the rotator cuff. The results further indicated minimal bicipital
by Dr.
A consultative physical examination of Plaintiff was performed on July 14, 2010,

things,
Onyema Amakiri. (R:274-77) Plaintiff reported pain in his right shoulder, worsened by lifting

on a scale
but felt improvement with nonsteroidal anti-inflammatory drugs. He rated his pain an 8

the
of 1 to 10, with 10 being the worst. Physical examination revealed limited range of motion of

strength, and
right shoulder, with full range of motion of the musculoskeletal system, symmetric
station, and
normal muscle tone. He was ambulatory without assistance, with normal gait and
was 5/5 for
abnormal arm swing. Plaintiff's hand strength was 5/5 bilaterally, and muscle strength

had limitation with
all groups tested. Dr. Amakiri assessed him with shoulder pain and found that he
handling objects, carrying, lifting, and moving about, but had no limitations with respect

to speaking,

hearing, standing, or sitting.

A Residual Functional Capacity Assessment was completed on September 8, 2010, by Dr.

Plaintiff
Jimmy Breazeale. (R:295-302) Upon reviewing the medical records, he determined that
frequently,
retained the capacity to lift or carry fifty pounds occasionally and twenty-five pounds
With
could stand or walk six hours in an 8-hour day, sit for six hours, and push or pull unlimitedly.
respect to any postural limitations, he found that Plaintiff could "frequently" climb ramps

and stairs,

Breazeale found
balance, stoop, kneel, crouch, and crawl. Indeed, the only postural limitation Dr.
ramps, ropes, and
was that Plaintiff could only "occasionally," as opposed to "frequently," climb
7

scaffolds.

Progress notes dated September 16, 2010, indicate no musculo skeletal symptoms, no
arthralgias, no soft tissue swelling, and no neurological symptoms. (R:307-308) In October 2010,

Plaintiff was referred for occupational therapy for his complaints of right shoulder pain. (R:327)
Progress notes dated March 17, 2011, indicate that he was seen for complaints of mild joint pains
and feet swelling, with no mention or assessment of shoulder pain. (R:345-46) On July 18, 2011,

while being seen for removal of stitches from a leg injury, he was found to have no musculoskeletal
symptoms, no arthralgias, no soft tissue swelling, with no mention or assessment of right shoulder
injury or pain. (R:389-90)

At the administrative hearing on November 30, 2011, Plaintiff testified that he was wearing

a sling on his right arm due to constant pain associated with his right rotator cuff injury. (R:22, 25,
29) He further testified that he needed another shoulder surgery and that he was unable to use his

right arm due to the constant shoulder pain. (R:24-27) Plaintiff's pleadings, however, do not cite to
medical evidence in the record reflecting the need for further shoulder surgery.

Plaintiffs testimony and reported limitations are inconsistent with and not supported by the
objective medical evidence of record. At the hearing in November 2011, while he reported constant
shoulder pain and an inability to use his arm, the most recent medical records from July 2011

indicated no such limitations. Further, his shoulder pain was treated with anti-inflammatory
medications, which Plaintiff acknowledged provided relief.
It is apparent from the AU's decision that he considered the entire record and evaluated the
evidence. In determining the severity of impairments, the AU expressly stated he considered all of

Plaintiffs impairments under the standard set forth in
8

Stone

v.

Heckler,

752 F.2d 1099

(5th

Cir.

1985). He also considered any functional limitations attributed to Plaintiff's conditions by the

physicians, and incorporated such limitations into his RFC determination. In fact, by finding that

Plaintiff could do sedentary work, he incorporated limitations consistent with Dr. Amakiri' s findings
and more than found by Dr. Breazeale. The evidence fails to show that the limiting effects of

Plaintiff's impairments are greater than those assessed by the AU in his RFC determination.
In making his determinations, the AU

complaints of pain. It was within the
credibility determinations.

assessed Plaintiff's credibility and subjective

AU's broad discretion to weigh the evidence and make

See Newton

v.

Apfel,

209 F.3d 448, 459

(Sth

Cir. 2000). The AU

considered the medical evidence as well as Plaintiff's testimony. Based upon his review of the

evidence, the AU determined that Plaintiff was not as limited as he claimed. Such decision was
within the

AU's discretion and is supported by the evidence.

Accordingly, based upon a review of the record evidence, the Court finds that the AU' s RFC

determination comports with relevant legal standards and is supported by substantial evidence.
Therefore, Plaintiff's assertions of error are without merit.

CONCLUSION
Based on the foregoing, the Court hereby ORDERS that the decision of the Commissioner
be AFFIRMED consistent with this opinion.

SIGNED and ENTERED on January

?/

,

2016.

LEON SCHYDLOWER
United States Magistrate Judge