Ramirez v. Colvin

Filing 22

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

LcD

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS1°

3!

f

9.

59

EL PASO DIVISION
(

U

APOLINAR RAMIREZ,

§
§

Plaintiff,

§
§

v.

NO. EP-1 3-CV-44-MAT

§
§

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

Administration ("Commissioner")
from the decision of the Commissioner of the Social Security
denying his claim for Disability Insurance Benefits ("DIB") under

Jurisdiction is predicated upon 42 U.S.C.

§

Title II of the Social Security Act.

405(g). Both parties having consented to trial on the

to this Court for trial and
merits before a United States Magistrate Judge, the case was transferred
entry ofjudgment pursuant to 28 U.S.C.

§ 63 6(c)

and Appendix C to the Local Court Rules of the

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

in which he alleged disability
On February 2, 2010, Plaintiff filed an application for DIB

1

left leg problems,
beginning August 21, 2009' due to back pain, seizures, gastritis, heart problems,

of filing. (R. 154). He has
and arthritis. (R. 154, 192193).2 Plaintiff was 53 years old at the time
handyman, a moving
a high school diploma. (R. 35, 193). He has previous work experience as a

a yard work contractor,
packer, a working supervisor, a security guard, a laborer doing yard work,

a construction worker, and a houseman. (R. 49, 194).
Plaintiff requested a
After his application was denied initially and upon reconsideration,
On October 18, 2011,
hearing before an administrative law judge ("AU"). (R. 56-59, 66-70).

2011, the AU issued a written
Plaintiff appeared for a hearing. (R. 31-52). On December 23,

decision denying benefits on the ground that Plaintiff is able to

perform his past relevant work as a

December 17, 2012, the Appeals
security guard, and therefore, is not disabled. (R. 16-26). On
making the
Council denied Plaintiffs request for review, thereby

AU's decision the

Commissioner's final administrative decision. (R. 1-3).
II. ISSUES PRESENTED

erred in finding Plaintiff's
Plaintiff presents two issues for review: (1) whether the AU
11.03
seizure disorder does not meet or equal Listing 11.02 and/or

;

and, (2) whether the

AU' s

by substantial evidence.
residual functional capacity ("RFC") assessment is supported
III. DISCUSSION

A. Standard of Review

the Commissioner's final
This Court's review is limited to a determination of whether
for DW which was
According to the transcript, Plaintiff filed a previous application
denied in October 2008. (R. 187-188).
designated by (R. [page
Reference to the record of administrative proceedings is
number(s)]).
2

2

and whether the
decision is supported by substantial evidence on the record as a whole
Myers v. Apfel, 238
Commissioner applied the proper legal standards in evaluating the evidence.
236 (5th Cir. 1994)).
F.3d 617, 619 (5th Cir. 2001) (citing Greenspan v. Shalala, 38 F.3d 232,
and is such relevant
Substantial evidence is more than a scintilla, but less than a preponderance,
v. Chater, 67 F.3d 552,
evidence as a reasonable mind might accept to support a conclusion. Ripley

will be made only where there is a
555 (5th Cir. 1995). A finding of "no substantial evidence"

evidence." Abshire v. Bowen,
"conspicuous absence of credible choices" or "no contrary medical
848 F.2d 638, 640 (5th Cir. 1988).

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

but may not reweigh the evidence
Commissioner, the court must carefully examine the entire record,
(5th Cir. 2000); Haywoodv. Sullivan,
or try the issues de novo. Newton v. Apfel, 209 F.3d 448,452
its own judgment "even if the
888 F.2d 1463, 1466 (5th Cir. 1989). The court may not substitute

because substantial evidence is less
evidence preponderates against the [Commissioner's] decision"
than a preponderance. Harrell

v.

the
Bowen, 862 F.2d 471, 475 (5th Cir. 1988). Conflicts in

evidence are for the Commissioner and not the courts to resolve.

Speilman

v.

Shalala, 1 F.3d 357,

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

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

of Proof

Disability is defined as the "inability to engage in substantial
medically determinable physical or mental impairment which.

. .

gainful activity by reason of any

has lasted or can be expected to

42 U.S.C.
last for a continuous period of not less than 12 months."

claims are evaluated according to a five-step sequential
3

§

423(d)(l)(A). Disability

process: (1) whether the claimant is currently

determinable
engaged in substantial gainful activity; (2) whether the claimant has a severe medically

whether the claimant's
physical or mental impairment or combination of impairments; (3)

of an impairment listed in
impairment or combination of impairments meets or equals the severity
or combination of
20 C.F.R. Part 404, Subpart P, Appendix 1; (4) whether the impairment
work; and, (5) whether the
impairments prevents the claimant from performing past relevant

from doing any other work. 20
impairment or combination of impairments prevents the claimant
at any point in the process
C.F.R. § 404.1520. A finding that a claimant is disabled or not disabled

F.3d at 236.
is conclusive and terminates the analysis. Greenspan, 38

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

v.

is met, the burden shifts to
Chater, 67 F.3d 558, 565 (5th Cir. 1995). Once this burden

gainful employment available that the
the Commissioner to show that there is other substantial
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

684 F.2d 1144, 1155
of administrative guidelines in the form of regulations. Rivers v. Schweiker,
to potential alternative employment, the
(5th Cir. 1982). If the Commissioner adequately points
to perform the alternative work.
burden then shifts back to the claimant to prove that he is unable
Id.
C. The AU's Decision

matter that Plaintiff met the
In her written decision, the AU determined as a threshold
insured status requirements of the Social Security Act through

September 20,2012. (R. 18). At step

gainful activity since August 21, 2009,
one, the AU found Plaintiff had not engaged in substantial

the alleged onset

date.3

Id. At step two, the AU determined Plaintiff has severe impairments

lumbar spine. Id.
consisting of seizure disorder, hypertension, and degenerative disc disease of the
are non-severe.
The AU further determined Plaintiff's impairments of gastritis and anxiety disorder

or combination of
(R. 19). At step three, the AU determined Plaintiff does not have an impairment

Part 404, Subpart P,
impairments that meets or equals one of the listed impairments in 20 C.F.R.
Appendix

1. (R.

20).

he is able to perform
Before reaching step four, the AU assessed Plaintiff's RFC and found

climb stairs and/or
a wide range of light work4 with the following limitations. He can occasionally
ladders, ropes,
ramps, balance, stoop, crouch, kneel, and crawl; but should never climb

or scaffolds;

machinery, and open flames; and,
should avoid working around unprotected heights, hazardous
(R. 21). In making this RFC
should avoid concentrated exposure to extreme temperatures.

22, 24-25). The AU specifically
assessment, the AU determined Plaintiff was not credible. (R.

limiting effects ofhis symptoms
found Plaintiff's allegations regarding the intensity, persistence, and
were not entirely credible. (R. 22).

relevant work as a security
At step four, the AU found that Plaintiffwas to perform his past
is not disabled. Id.
guard. (R. 26). Thus, the AU concluded at step four that Plaintiff

and 2010, but the amount did
The AU noted the record reflected earnings during 2009
Plaintiff testified he did not currently
not rise to the level of substantial gainful activity. (R. 18).
work a few days earlier. (R. 18,
work, but then stated he had done some construction contracting
38).
20 pounds at a time with
Light work is defined in the regulations as lifting no more than
Even though the weight lifted
frequent lifting or carrying of objects weighing up to 10 pounds.
deal of walking or standing, or
may be very little, a job is in this category if it requires a good
pulling of arm or leg controls.
when it involves sitting most of the time with some pushing and
20 C.F.R. § 404.1567(b).

D. Analysis of Plaintiff's Claims
1.

AU Properly Found

Plaintiffs Seizure Disorder Did Not Meet the Listings

or equal the
Plaintiff contends the AU erred in finding his seizure disorder does not meet

severity of Listing 11.02 and/or 11.03. Plaintiff cites Audler

v.

Astrue, 501 F.3d 446, 448 (5th Cir.

discuss the evidence offered in
2007), for the proposition that the AU is required at step three to
support of a disability claim and explain why the claimant is not

found disabled at that step. Plaintiff

State agency physicians to find
contends the AU erred by relying only on the opinions of the

Plaintiff did not have an impairment or combination of impairments

that met or equaled the criteria

record shows he meets the criteria
of any listed impairment. Plaintiff further claims the evidence of

of Listings 11.02 and/or 11.03.
governing the third step of
In analyzing Plaintiffs claim, the Court looks to the regulations

whether the medical evidence meets
the sequential evaluation. At the third step, the AU determines
or equals the criteria of a listed impairment in Appendix

1

of the regulations. 20 C.F.R.

conditions and impairments
404.1520(d), 416.920(d). The Listing of Impairments describes

§

that are

in any gainful activity, not just
sufficiently severe to prevent an individual from engaging
or work experience. 20 C.F.R.
"substantial gainful activity," regardless of age, education
404.1525(a), 416.925(a); Sullivan

v.

§

Zebley, 493 U.S. 521, 532 (1990). Plaintiff is automatically

equals the criteria of one of the listed
entitled to benefits if his impairment meets or medically

impairments in Appendix

1

to Subpart P of Part 404. 20 C.F.R.

§

404.1520(d), 416.920(d).

of disability that makes further
Because the Listings were designed to operate as a presumption
are more restrictive than the statutory
inquiry unnecessary, the medical criteria of the Listings
Iii

disability standard. Sullivan, 493 U.S. at 532.
and laboratory
The burden of proof rests with Plaintiff to provide and identify medical signs
at 530; Selders v. Sullivan,
findings that support all criteria of a listed impairment. Zebley, 493 U.S.

and stringent." Falco
914 F.2d 614, 619 (5th Cir. 1990). The listings criteria are "demanding

v.

will not suffice. "For
Shalala, 27 F.3d 160, 162 (5th Cir. 1994). A mere diagnosis of a condition

meet all of the specified criteria.
a claimant to show that his impairment matches a listing, it must
An impairment that manifests only some ofthose criteria, no

matter how severely, does not qualify."

Zebley, 493 U.S. at 530.
11.02 or 11.03 or any other
In reaching her decision, the AU did not mention Listings

error. InAudler, the Fifth Circuit
specific Listings. This omission alone, however, is not reversible

found the

that claimant's
AU's summary conclusionthat the medical evidence indicated

or medically equal any of the
impairments, while severe, were not severe enough to meet

meaningful judicial review because
impairments listed in Appendix 1, Subpart Pto be beyond

the

three. Audler, 501 F. 3d at 448. The appellate
AU offered nothing to support her conclusion at step

discussion is not required.
court made clear, however, that an exhaustive point by point

Id. Further,

is subject to a harmless error analysis. Id.
any error in the sufficiency of the discussion at step three

The

Audler

a diagnostic checklist
court found the error was not harmless in that case because

indicated the claimant met the criteria of a listing, and there

was no medical evidence to the contrary.

Id.

The Listings provide that the degree of impairment in epilepsy,

regardless of the etiology, is

and sequelae of seizures. 20 C.F.R., Pt. 404,
determined according to the type, frequency, duration

description of a typical seizure
Subpt. P, App. 1, § 11.00 (A). At least one detailed
7

is required. Id.

frequency of
Testimony of persons other than the claimant is essential for description of type and

listings can be applied
seizures if professional observation is not available. Id. The criteria of these

antiepileptic
only if the impairment persists despite the fact the claimant is following prescribed
treatment ordinarily can
treatment. Id. Whether the claimant is adhering to prescribed antiepileptic
currently providing
be determined from objective clinical findings in the report of the doctor
also indicate whether the
treatment for epilepsy. id. Serum blood levels of antiepileptic drugs may
medication is being taken by the claimant. Id.
was required to establish
To be found disabled under the provisions of Listing 11.02, Plaintiff

the presence of:
by
Epilepsy--convulsive epilepsy (grand mal or psychomotor), documented
phenomena;
detailed description ofa typical seizure pattern, including all associated
of at least 3 months of
occurring more frequently than once a month in spite
prescribed treatment. With:
seizures) or
A. Daytime episodes (loss of consciousness and convulsive
significantly with
B. Nocturnal episodes manifesting residuals which interfere
activity during the day.
20 C.F.R., Pt. 404, Subpt. P, App. 1, § 11.02.

Plaintiff was required to
To be found disabled under the provisions of Listing 11.03,
establish the presence of:

or focal),
Epilepsy--nonconvulsive epilepsy (petit mal, psychomotor,
including all
documented by detailed description of a typical seizure pattern,
in spite of at
associated phenomena; occurring more frequently than once weekly
awareness or loss of
least 3 months ofprescribed treatment. With alteration of
behavior or
consciousness and transient postical manifestations of unconventional
significant interference with activity during the day.
20 C.F.R., Pt. 404, Subpt. P, App. 1, § 11.03.

where seizures are not under
According to Social Security Ruling ("SSR") 87-6, situations

prescribed treatment, rather
good control are usually due to the individual's noncompliance with the
to be occurring at a
than the ineffectiveness of the treatment itself. When seizures are alleged
disabling frequency, the following are essential to a sound determination:

contain adequate

(1) An ongoing relationship with a treatment source. The file must
response
information about the history of the treatment regimen and the claimant's
cannot be
to it. In the absence of an ongoing treatment relationship, the impairment
found to meet or equal the listings for epilepsy.
of the treating
(2) There must be a satisfactory description by the treating physician
and frequency of
regimen and response, in addition to corroboration of the nature
seizures, to permit an informed judgment on impairment severity.
levels is required before a
(3) In every instance, the record of anticonvulsant blood
claim can be allowed.
in the Evaluation of Epilepsy,
SSR 87-6, Titles IJandXVI: The Role ofPrescribed Treatment

1987

WL 109184 (Jan. 1, 1987).

and/or 11.03, Plaintiff relies on his
In support of his claim that he meets Listings 11.02
activity, as well as objective
testimony and reports regarding seizure frequency and seizure
evidence ofdiagnoses of seizure disorder and prescribed

medical

anti-epileptic medication. (R. 41, 192,228,

816, 833). Plaintiff also points to evidence that
263, 285, 287, 364, 373, 449, 456, 473, 744, 812,

2009, January through March 2010,
shows he experienced seizures during October and November

and February 2011; his
June, July, September, and October2010, and, January

seizures became more

was increased. (R. 293, 357, 389, 408, 430,
frequent; and, his dosage of anti-epileptic medication
Finally, he relies on a form completed by
431, 451, 456, 485, 565, 582, 812, 830, 832, 833, 836).

has intractable epilepsy and should not
his neurologist, Dr. Steven Glusman, that states Plaintiff
drive. (R. 839).

to Plaintiffs seizure disorder and
In this case, the AU discussed the evidence related
provided specific reasons to support her determination
9

that this impairment was not of listing-level

27, 2009
severity. As noted by the AU, Plaintiff presented to the emergency room on September
weeks),
with his first report of seizure episodes (one that morning and one within the two previous
data, however,
with no prior history. (R. 22,312-313). The neurological examination and diagnostic

performed
were normal, as was the CT scan of his brain. (R. 22, 312-313, 324). An examination
normal. (R. 22, 314the following day by neurologist Steven Glusman, M.D. was also relatively

was unremarkable, and
316). Additionally, an MRI of his brain performed on September 28, 2009
was normal. (R. 22, 325-326,
an electroencephalogram ("EEG") performed on September 30, 2009
23, 2009 was
332-333). An electrophysiological study performed on October

normal. (R. 22, 284-

287).

dizziness, syncope5, and seizure
On January 13, 2010, Plaintiff complained of recurrent
activities, but he also reported that he was not taking any anticonvulsant

medication. (R. 431). On

event monitor to further evaluate
January 15, 2010, Plaintiff underwent a procedure to implant an
cause of his reported syncope and
his condition, in particular, to rule out cardiac arrhythmias as the
seizure activities. (R. 291-295).

room for a suspected
On June 3, 2010, Plaintiff was taken by ambulance to the emergency
diagnostic testing, including a CT scan
seizure that was witnessed by his wife. (R. 22, 582). Again,

of Plaintiff's brain, was essentially unremarkable. (R. 22, 565-595).

An EEG performed on July 27,

2010 showed no focal slowing, amplitude suppression, or paroxysmal

activity suggestive of seizures.

(R. 23, 488).

were becoming more
Although on October 18, 2010, Plaintiff reported his seizures

frequent,

due to generalized
Syncope is defined as a temporary suspension of consciousness
DICTIONARY 1747 (29th ed.
cerebral ischemia; a faint or swoon. DORLAND'S ILLUS. MEDICAL
2000).
ID]

to a neurologist
the implantable event monitor showed no arrthymias. (R. 23, 812). He was referred

up visit on February
for evaluation and advised to return in 3 months. (R. 23, 812). At the follow

of weakness, but
23, 2011, Plaintiff reported no new symptoms since his last visit. He complained
no seizure activity. (R. 23, 811).

four times a week,
On March 1, 2011, however, Plaintiff reported he was having seizures
study was performed on
with the last seizure occurring on February 27, 2011. (R. 833). An EEG

period. (R. 83 5-836). While
March 4, 2011, during which Plaintiff was monitored over a 24-hour
for seizures and possible multiple
the study suggested Plaintiff may have an increased tendency
seizures occur during the study.
seizure foci, Dr. Glusman saw no actual clinical or electrographic
(R. 22, 836).

of typical seizure that
Both Listing 11.02 and 11.03 require at least one detailed description
control, injuries associated with
includes the presence or absence of aura, tongue bites, sphincter
P, App. 1,
seizure and postictal phenomena. 20 C.F.R. Pt. 404, Subpt.

§

11.00(A). In this case, no

provided corroboration of the nature
medical provider ever witnessed any of Plaintiff's seizures or
does not contain the required detailed
and frequency of Plaintiffs seizures, and the record
description of Plaintiff's typical

seizure.6

Plaintiff relies on his own statements that he had seizures

to corroborate his allegations of the
up to four times per week. The record contains no evidence
nature and frequency of seizures. Additionally, there is not

adequate evidence regarding his treatment

required evidence of his serum drug levels.
regimen and response. The record does not contain the
any laboratory report that confirms
As noted by the AU, the record does not appear to contain

June 3, 2010, there is no
Although Plaintiffs wife allegedly witnessed a seizure on
activity.
detailed report in the record regarding the details of the seizure
6

11

(R.
Plaintiff was receiving any therapeutic value from his prescribed anticonvulsant medication.

of at least
23). Thus, Plaintiff can not show he suffered seizures at the required frequency in spite
3

months of prescribed treatment in order to satisfy either of the relevant Listings.
In conclusion, the medical evidence supports the

AU' s finding that Plaintiff's diagnosed

11.02 or 11.03.
seizure disorder does not meet all of the demanding and stringent criteria of Listings

criteria, no matter how
Zebley, 493 U.S. at 530 ("An impairment that manifests only some of those

the AU's failure at step
severely, does not qualify."). Accordingly, there is no prejudice shown from
ground.
three to identify the listings considered. The Court finds no error on this
2. RFC Assessment is Supported by Substantial Evidence

evidence
Plaintiff contends the AU's assessment of his RFC is not supported by substantial

his obesity in accordance with
because the AU did not mention or consider the limiting effects of
the requirements of SSR

02-lp.7

For the reasons below, the Court finds this argument is without

merit.

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

§

RFC belongs to the AU.
404.1545; SSR 96-8p8. The responsibility to determine the claimant's

must consider all the record evidence
Ripley, 67 F.3d at 557. In making this determination, the AU
and determine Plaintiff's abilities despite his physical and mental

limitations. 20 C.F.R. § 404.1545.

even those that are nonThe AU must consider the limiting effects of Plaintiff's impairments,
severe, and any related symptoms. See 20 C.F.R.

§

404.1529, 404.1545; SSR 96-8p. The relative

34686281 (Sept. 12,
SSR O2-lp, Titles IIandXVI: Evaluation ofObesity, 2002 WL

2002).
in Initial Claims,
SSR 96-8p, Titles IIandXVI: Assessing Residual Functional Capacity
1996 WL 374184 (July 2, 1996).
8

12

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
in the
AU is not required to incorporate limitations in the RFC that she did not find to be supported
record. See Morris

v.

Bowen, 864 F.2d 333, 336 (5th Cir. 1988).

Social Security Ruling 02-ip provides guidance for evaluating obesity in disability claims.

obesity be
Although there is no longer a specific listing for obesity9, SSR O2-lp directs that
(2)
considered in determining whether: (1) the individual has a medically determinable impairment;

or equals the
the individual's impairment(s) is severe; (3) the individual's impairment(s) meet s

prevents
requirements of a listed impairment in the Listings; and, (4) the individual's impairment(s)

*3 The ruling reminds ALJs that obesity
him from doing past relevant work and other work. Id. at
(particularly
can cause limitation of function, and its combined effects with other impairments

expected without
musculoskeletal, respiratory and cardiovascular) may be greater than might be
about the severity or
obesity. Id. at *5..6. It also states that assumptions are not to be made

may or may not increase
functional effects of obesity combined with other impairments, as obesity
*6. Each case is to be evaluated
the severity or functional limitations of the other impairment. Id. at

based on the information in the case record. Id.

error made
Plaintiff is correct that the AU did not cite or discuss S SR 02-1 p. Any procedural

when a reviewing court
in the consideration of Plaintiff's obesity, however, requires remand only
1362, 1364 (5th Cir. 1988).
concludes that the error is not harmless. See Mays v.Bowen, 837 F.2d

the Listing of
On October 25, 1999, obesity (formerly listed at 9.09) was deleted from
represent a degree of
Impairments because it was determined that the criteria in the listing did not
any gainful activity. SSR
functional limitation that would prevent an individual from engaging in
O2-Olp, 2002 WL 34686281, at *1.
13

not vacate a
"Procedural perfection in administrative proceedings is not required. This court will
prejudice,
judgment unless the substantial rights of a party have been affected." Id. "To establish

have altered the
a claimant must show that he 'could and would have adduced evidence that might

result.' " Brock

v.

Chater, 84 F.3d 726, 728 (5th Cir. 1996) (quoting Kane

v.

Heckler, 731 F.2d

1216, 1220 (5th Cir. 1984)).

Plaintiff does not explain how his obesity results in functional limitations that would

prevent

Plaintiff relies on his
him from performing his past relevant work as a security guard. Rather,
as well as diagnoses of
subjective complaints of fatigue, sleep problems, depression and anxiety,

spinal stenosis. Plaintiff also
insomnia, anxiety, chronic lower back pain, arthralgia, and lumbar
knee problems, swelling in his
cites to his allegations and reports of experiencing pain in his back,
legs, and breathing problems.

He does not, however, cite to any evidence that any of these

argument is couched in
conditions are related to or made worse by his obesity. Rather, Plaintiff's
work. As stated in SSR 02-ip,
terms of how obesity might affect an individual's ability to
effects of obesity combined with
assumptions are not to be made about the severity or functional
or functional limitations of the
other impairments, as obesity may or may not increase the severity
*5..6 (emphases added).
other impairment. SSR O2-lp, 2002 WL 34686281, at

found him to be less than
As for Plaintiffs reliance on his subjective complaints, the AU

in his testimony. The AU
credible. In reaching this conclusion, she noted many inconsistencies
was unsupported by the record and
noted his testimony about his alleged mental limitations

Plaintiff stated he gets frequent
exaggerated his symptoms. (R. 25). She also noted that although
headaches, has cirrhosis, and his doctor recommended a CPAP

machine for shortness of breath, the

these conditions. Id. She also noted
record contained no evidence that he had sought treatment for
14

the hearing had to be temporarily stopped because Plaintiff stated his pacemaker was shocking

him,

or simply a
but the record was not clear whether Plaintiff actually had a pacemaker, as he claimed,

with his claim of
heart monitor. Id. The AU observed Plaintiffs daily activities were inconsistent
looking for work as
disability. Id. Finally, the AU opined that Plaintiffs activities of driving and
per month. (R. 24).
a roofer are wholly inconsistent with his allegations of experiencing 20 seizures
is entitled
Assessment of credibility is the province of the AU, and her credibility determination

to great deference.

Greenspan, 38

F.3d at 237; Newton, 209 F.3d at 459.

disability based on back
As acknowledged by the AU, the record shows Plaintiff applied for
arthritis. (R. 22, 154, 192pain, seizure disorder, gastritis, heart problems, left leg problems, and
193). He did not allege any functional limitations based on obesity.

At the hearing before the AU,

He testified the problems
Plaintiff testified he is 5 feet 8 inches tall and weighs 230 pounds. (R. 38).
cirrhosis, unspecified
that prevent him from working include seizure disorder, gastritis, headaches,

back pain.10 (R. 40-44). He did
heart problems, spinal stenosis, knee pain, fatigue, depression, and

Plaintiff does not cite to any
not testify to any limitations specifically related to his obesity.
physician-imposed limitations that were not considered by the AU.

In fact, the AU noted that "[nb

25). To the contrary, the record
doctor has placed any limitations on his functional abilities." (R.

2010 by Dr. Shanker Sundrani. (R.
shows an exercise program was prescribed for him on June 30,
451).
The record does not support Plaintiffs contention that the AU

improperly assessed his RFC.

record that Plaintiff had
As stated earlier, the AU noted there was no evidence in the
been treated for all of these alleged conditions. (R. 25).
°

15

record." (R. 21).
The AU assessed Plaintiff's RFC "[a]fter careful consideration of the entire
limitations in his
Simply stated, the evidence cited by Plaintiff does not support the need for further

of SSR 02-1 p
RFC than those assessed by the AU. Thus, there is no indication that a discussion
Brock, 84 F.3d at 728
"could and would have adduced evidence that might have altered the result."

(citing Kane, 731 F.2d at 1220).
at 523. It is the task of
It is the task of the AU to weigh the evidence. Chambliss, 269 F.3d
as a whole to support the AU's
this Court to determine if there is substantial evidence in the record

evidence supports the
decision. Id. (citing Greenspan, 38 F.3d at 240). As substantial
decision, it must be affirmed. Speilman,

1

AU's

F.3d at 360.

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.

LL.TORRES

UNITED STATES MAGISTRATE JUDGE

16