Garcia v. Colvin

Filing 21

MEMORANDUM OPINION AND ORDER. Signed by Judge Robert F. Castaneda. (mc6)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
MARIA ALICIA GARCIA,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the Social
Security Administration,
Defendant.

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NO. EP-13-CV-75-RFC
(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 transferred to this Court for trial and entry of judgment
pursuant to 28 U.S.C. § 636(c) and Appendix C to the Local Court Rules of the Western District of
Texas.
Plaintiff appeals from the decision of the Commissioner of the Social Security
Administration (Commissioner), denying her claims for disability insurance benefits under Title II
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 on June 23, 1948, and was age sixty-three at the time of the administrative
decision in this case. (R:127)1 She has past relevant work experience as a secretary. (R:154) She
has only a sixth grade education, which she received in Mexico. (R:25)
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Reference to documents filed in this case is designated by “(Doc. [docket entry
number(s)]:[page number(s)])”. Reference to the transcript of the record of administrative
proceedings filed in this case, (Doc. 12), is designated by “(R:[page number(s)])”.

PROCEDURAL HISTORY
On October 30, 2009, Plaintiff filed an application for disability insurance benefits, alleging
impairments that became disabling on October 26, 2009. (R:127-134) The application was denied
initially and on reconsideration. (R:41-42, 51-54) Plaintiff filed a request for a hearing, which was
conducted on January 25, 2012. (R:21-40) Plaintiff testified at the hearing. (R:26-37) A vocational
expert was present and testified. (R:37-39) The Administrative law Judge (“ALJ”) issued her
decision on February 10, 2012, denying benefits. (R:10-16) Plaintiff’s request for review was
denied by the Appeals Council on January 17, 2013. (R:1-4)
On March 14, 2013, Plaintiff initiated this action for judicial review by filing her complaint.
(Doc. 1) Plaintiff’s motion to proceed in forma pauperis was granted and the complaint filed. (Doc.
5) The Commissioner filed an answer and a certified copy of the transcript of the administrative
proceeding on May 20, 2013. (Docs. 10, 12) On June 20, 2013, Plaintiff filed her brief in support
of her complaint. (Doc. 16) On July 22, 2013, the Commissioner filed her brief in support of the
decision to deny benefits. (Doc. 20)
ISSUES
Plaintiff claims that the record does not contain substantial evidence to support the ALJ’s
finding that Plaintiff is not disabled and that the ALJ’s decision is the result of legal error. (Doc. 16:
2, 5) Plaintiff argues that the ALJ erroneously excluded limitations from Plaintiff’s obesity in her
RFC finding, (Id. at 3), and that the ALJ erroneously concluded that she could perform all the
requisites of sedentary work. (Id. at 4) She also argues that legal error resulted from the failure to
move to step 5 of the sequential evaluation, where the grid rules would have resulted in a finding of
disability. (Id. at 5)
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Plaintiff requests that the ALJ’s decision be reversed and the cause remanded for an award
of benefits or, in the alternative, additional administrative proceedings. (Id. at 5)
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. See Martinez v. Chater,
64 F.3d 172, 173 (5th Cir. 1995); Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994), cert.
denied, 514 U.S. 1120, 115 S.Ct. 1984 (1995). Substantial evidence is more than a scintilla, but can
be less than a preponderance, and is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995). A finding of
no substantial evidence will be made only where there is a “conspicuous absence of credible choices”
or “no contrary medical evidence.” Abshire v. Bowen, 848 F.2d 638, 640 (5th Cir. 1988) (citing
Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)). In reviewing the substantiality of the
evidence, the Court must consider the record as a whole and “must take into account whatever in the
record fairly detracts from its weight.” Singletary v. Bowen, 798 F.2d 818, 823 (5th Cir. 1986).
If the Commissioner’s findings are supported by substantial evidence, they are conclusive
and must be affirmed. Martinez, 64 F.3d at 173. In applying the substantial-evidence standard, the
court must carefully examine the entire record, but may not re-weigh the evidence or try the issues
de novo. Haywood v. Sullivan, 888 F.2d 1463, 1466 (5th Cir. 1989). It may not substitute its own
judgment “even if the evidence preponderates against the [Commissioner’s] decision,” because
substantial evidence is less than a preponderance. Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir.
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1988). Conflicts in the evidence are for the Commissioner, and not the courts, to resolve. Spellman
v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993).
B.

Evaluation Process
Disability is defined as the “inability to engage in substantial gainful activity by reason of any

medically determinable physical or mental impairment which. . . has lasted or can be expected to last
for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The ALJ evaluates
disability claims according to a sequential five-step process: 1) whether the claimant is currently
engaged in substantial gainful activity; 2) whether the claimant has a severe 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. A person’s residual functional capacity (“RFC”) is what she can still do despite
her limitations or impairments. 20 C.F.R. § 404.1545(a); SSR 96-8p.
An individual applying for benefits bears the initial burden of proving that she is disabled for
purposes of the Act. Selders v. Sullivan, 914 F.2d 614, 618 (5th Cir. 1990). The claimant bears the
burden of proof on the first four steps, and once met, the burden shifts to the Commissioner to show
that there is other substantial gainful employment available that the claimant is capable of
performing. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5, 107 S.Ct. 2287, 2294 n. 5 (1987); Anderson
v. Sullivan, 887 F.2d 630, 632 (5th Cir. 1989).

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C.

The ALJ’s Decision
First, the ALJ found that the Plaintiff had not engaged in substantial gainful activity since

the alleged onset date of October 26, 2009. (R:12) Plaintiff met the insured status requirements of
the Social Security Act through March 31, 2014. (Id.)
In the second step, the ALJ found that Plaintiff had the following severe impairments:
diabetes mellitus, and morbid obesity. (R:12) The ALJ found that Plaintiff had non-severe
impairments of hypertension and chronic obstructive pulmonary disease (COPD). (Id.)
At the third step, the ALJ found that Plaintiff “does not have an impairment or combination
of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1 [].” (R:12-13)
Next, the ALJ determined that Plaintiff retained the RFC to perform sedentary work as
defined in 20 CFR 404.1567(a), except she must avoid hazardous conditions. (R:13) She can
occasionally lift and carry 20 pounds, and 10 pounds frequently. (Id.) She can stand, walk for up
to 2 hours in an 8-hour workday, and can sit for 6 hours in an 8-hour workday. (Id.) At step four,
the ALJ found that Plaintiff was able to perform her past relevant work as a secretary. (R:16)
Consequently, the ALJ concluded that Plaintiff was not disabled within the meaning of the
Social Security Act, and was not entitled to disability insurance benefits. (R:16)
Finally, the ALJ stated in her decision that she carefully considered the entire record and all
of the evidence. (R:13-16) Throughout her decision, the ALJ cited to the pertinent administrative
regulations and policy statements. (R:10-16)

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D.

The Parties’ Positions
In the Disability Report, Plaintiff indicated that her ability to work was limited by diabetes,

high blood pressure, and breathing problems. (R:153) She claims the ALJ failed to include all
limitations of Plaintiff’s impairments when determining Plaintiff’s RFC. (Doc. 16:3) Specifically,
she argues that the ALJ excluded limitations resulting from Plaintiff’s obesity. (Doc. 16:3) On the
basis of her testimony that she can only sit for thirty minutes to an hour at a time and that she has
difficulty sitting and cannot be in one position for long periods of time, she argues that she is unable
to perform the sitting requirements of sedentary work. (Doc 16:4) Plaintiff takes issue with the fact
that the ALJ determined that she can occasionally lift and carry twenty pounds. (Id.) Sedentary
work, she points out, involves work where can lift no more than 10 pounds at a time. (Id.) Finally,
Plaintiff argues that because she cannot perform all of the requirements of sedentary work, she
should have been found unable to perform her past relevant work and the ALJ should have
proceeded to step five of the sequential evaluation. (Doc. 16:5) At that point, she concludes, the
ALJ would have considered the Medical Vocation Guideline (grid) rules applying to sedentary work,
specifically rule 201.02, which would direct a conclusion that Plaintiff was disabled. (Id.) In sum,
Plaintiff contends that because the burden of proof never shifted, the ALJ committed an error of law
at that point. (Id.)
The Commissioner contends that the ALJ’s decision is not the result of legal error and is
substantially supported by the evidence. (Doc. 20:4) She argues that Plaintiff’s arguments regarding
failure to consider obesity have no merit because in fact such consideration took place. (Doc. 20:5)
The Commissioner also argues the totality of evidence in the file-- to include the consultative
examination report by Dr. Augustine O. Eleje, M.D., the opinions of the state agency medical
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experts, Plaintiff’s lack of associated symptoms, and Plaintiff’s non-compliance with her prescribed
medical treatment–all clearly show that substantial evidence supports the ALJ’s RFC determination
and demonstrate that there is no error of law. (Doc. 20:5-9)
E.

The ALJ’s RFC Determination is Supported by Substantial Evidence
An individual’s RFC is the most that individual can do despite her limitations. 20 C.F.R. §

404.1545. The responsibility to determine a claimant’s RFC belongs to the ALJ. Ripley, 67 F.3d
at 557. In making her determination, the ALJ must consider the evidence of record and evaluate the
claimant’s abilities despite existing physical and mental limitations. See Martinez, 64 F.3d at 176.
The ALJ must consider the limiting effects of an individual’s impairments, even those that are nonsevere, and any related symptoms. See 20 C.F.R. §§ 404.1529, 404.1545. The relative weight to be
given the evidence is within the ALJ’s discretion. Chambliss v. Massanari, 269 F.3d 520, 523 (5th
Cir. 2001). The ALJ is not required to incorporate limitations in the RFC that she did not find to be
supported by the record. See Morris v. Bowen, 864 F.2d 333, 336 (5th Cir. 1988).
The evidence of record abundantly supports the ALJ’s determination in this case. In a faceto-face interview conducted on 10/30/2009, K. Padilla observed that the Plaintiff had no difficulties
with walking, sitting, and standing. (R:150) In his consultative examination (CE), Dr. Eleje
concluded that Plaintiff had no limitations with sitting and handling objects and that she can hop and
squat. (R:301-302) Dr. Frederick Cremona, M.D., the state agency medical expert, opined that
Plaintiff could sit for 6 hours in an 8-hour workday. (R:304)
Plaintiff testified under oath before the ALJ that she could pick up about 20 pounds. (R:35)
Similarly, Dr. Cremona opined that Plaintiff could occasionally lift and/or carry 20 pounds. (R:304)
As the Commissioner has pointed out, Plaintiff seems to argue that because 20 C.F.R. § 404.1567(a)
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describes sedentary work as having the ability to lift no more than 10 pounds, the ALJ erred by
describing Plaintiff’s RFC as sedentary but finding that she had the ability to occasionally lift and
carry 20 pounds and frequently lift and carry 10 pounds. (Doc 20:9) However, Plaintiff fails to point
out any harm or prejudice from this discrepancy. Hence, error, if such exists, is harmless.
Procedural perfection in administrative hearings is not required. Only where substantial rights of
a party have been affected will there be a reversal. Mays v. Bowen, 837 F.2d 1362 (5th Cir. 1988).
This Court will remand for further proceedings only where procedural imperfection casts doubt on
the existence of substantial evidence to support the ALJ’s decision of non-disability. See Morris,
864 F.2d at 335.
The ALJ addressed Plaintiff’s severe impairment of diabetes mellitus. (R:12-15) Medical
records from Providence Memorial Hospital indicate that her blood sugar issues respond well to
medical management. (R:246) In fact, she was stabilized by the time she was released from the
hospital. (Id.) The ALJ reasonably concluded that this condition was improving. (R:12-15)
Impairments that are remedied or controlled by medication or treatment are not disabling. Lovelace
v. Brown, 813 F.2d 55, 59 (5th Cir. 1987).
Although Plaintiff argues that the ALJ erroneously excluded limitations resulting from her
obesity in her RFC finding, the record shows the opposite to be true. The ALJ found that Plaintiff
was 5 feet one inch tall and that she weighed 270 pounds. (R:13) That put her body mass index at
51, which put her in a weight classification of obese class III and body mass index prime of 2.36.
(Id.) The ALJ determined that Plaintiff’s impairments, considered singly and in combination, did
not limit Plaintiff’s ability to perform basic work activities. (R:15) The final conclusion was that
while Plaintiff’s symptoms were exacerbated by her obesity, it was not to a level that a finding of
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disabled was justified. (R:13) Thus, it is clear that such limitations were considered by the ALJ in
arriving at the RFC finding.
The ALJ found Plaintiff’s impairments of hypertension and chronic obstructive pulmonary
disease to be non-severe in nature. (R:12) She reasoned that the evidence demonstrated that these
conditions were improving because of medication, and Plaintiff failed to show any functional
limitations caused by them. (Id.) Dr. Eleje’s consultative examination report of January 10, 2010
bears out the ALJ’s conclusions. (R:299) See Lovelace, 813 F.2d at 59.
In addition, the ALJ properly considered that the Plaintiff has consistently been noncompliant with respect to her medications and her diet. (R:14-16) She failed to comply with her
diabetic requirements as noted by Providence Memorial Hospital records in August, 2008. (R:226)
A month earlier, records from the same hospital indicate she had not been using her insulin for 4
days. (R:246) Medical records from San Vicente Clinic on December 28, 2009 indicate that she had
not used her diabetes medicine for 3 weeks. (R:285) She did indicate that she had lost her health
insurance and was unable to obtain medications. (Id.)
The record is replete with other instances of non-compliance with respect to both medication
and diet. For example, she told the ALJ that she did not follow a diabetic diet because she hated
vegetables. (R:28) Consultative examination notes from July 28, 2008 indicate that she failed to
comply with her dietary and exercise regimen. (R:251)
The import of this consistent behavior stems from the fact that failure to follow prescribed
treatment is an indication of non-disability. See Villa v. Sullivan, 895 F.2d 1019, 1024 (5th Cir.
1990). Plaintiff provided no good reasons for her failure to follow her prescribed regimen regarding
diet, exercise, and medication. Although she indicated that she had lost her health insurance,
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Plaintiff at no time indicated that she could find no way to obtain treatment or medication. See
Lovelace, 813 F.2d at 59. Thus, the ALJ was justified in her finding of non-disability on this ground
also.
In arriving at her decision, the ALJ assessed Plaintiff’s credibility and subjective claims
regarding pain and symptoms. It was within her broad discretion to weigh the evidence and make
credibility determinations. See Newton v. Apfel, 209 F.3d 448, 459 (5th Cir. 2000). After evaluating
the evidence along with Plaintiff’s testimony at the hearing, she concluded that Plaintiff’s medically
determinable impairments could be expected to cause some of her alleged symptoms, but that her
statements regarding the intensity, persistence, and limiting effects of the symptoms were not
credible to the extent they were inconsistent with the ALJ’s RFC assessment. (R:15)
Plaintiff is not entitled to relief based on the claims raised.
CONCLUSION
The Court concludes that any deviation from the relevant legal standards was harmless and
the ALJ’s decision is supported by substantial evidence. Based on the foregoing, it is hereby
ORDERED that the Commissioner’s determination be AFFIRMED.
SIGNED and ENTERED on February 26, 2014.

_____________________________________
ROBERT F. CASTANEDA
UNITED STATES MAGISTRATE JUDGE

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