Workman v. Colvin

Filing 20

MEMORANDUM OPINION AND ORDER. Signed by Judge Robert F. Castaneda. (mg2)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
ANTHONY WORKMAN,
Plaintiff,
v.
CAROLYN W. COLVIN,1
Acting Commissioner of Social Security
Administration,
Defendant.

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CIVIL NO. 3-13-CV-00146-RFC

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 Rule CV-72 and Appendix C to 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 application for disability insurance benefits (“DIB”)
under Title II of the Social Security Act (“Act”). For the reasons set forth below, this Court orders
that the Commissioner’s decision be AFFIRMED.
PROCEDURAL HISTORY
On February 11, 2011, Plaintiff filed an application for DIB, alleging a disability onset date
of May 15, 2010. (R:116) His application was denied initially and on reconsideration. (R:60, 65)
Plaintiff filed a request for a hearing, which was conducted on January 18, 2012. (R:33-55) The

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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 §205(g) of the Social
Security Act, 42 U.S.C. § 405(g).

Administrative Law Judge (“ALJ”) issued a decision on April 17, 2012, denying benefits. (R:12-18)
The Appeals Council (“AC”) denied review. (R:1-5)
ISSUES
Plaintiff presents the following issue for review:
1.

Whether the ALJ’s residual functional capacity (“RFC”) finding is supported by
substantial evidence. (Doc. 18:2)2

Plaintiff also contends that the ALJ should have applied the Medical-Vocational Guidelines,
20 CFR Part 404, Subpart P, Appendix 2 (“grids”) rules applying to sedentary work at step five of
the sequential evaluation, i.e., Rules 201.06 and 201.14, which would have directed a conclusion that
Plaintiff is disabled. (Doc. 18:6) Consequently, Plaintiff seeks a reversal and remand for an award
of benefits or for further administrative proceedings. Id., at 7. Defendant contends that substantial
evidence supports the ALJ’s findings and conclusions, that the proper legal standards were utilized,
and that a remand for an award of benefits or further administrative proceedings is unwarranted.
(Doc. 19)
DISCUSSION
I. Standard of Review
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,
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Although Plaintiff raised the one issue, in light of the arguments made in Plaintiff’s
brief, the Commissioner breaks down Plaintiff’s issue into two separate issues: (1) whether
substantial evidence supports the ALJ’s RFC assessment; and (2) whether substantial evidence
supports the ALJ’s step five finding that Plaintiff could perform other work. (Doc. 19:2) Since
it is true that Plaintiff addressed both issues throughout his brief, the Court will address each
issue separately.
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272 (5th Cir. 2002); Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995). 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. Bowen, 848 F.2d 638, 640 (5th Cir. 1988).
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.; Spellman v. Shalala, 1 F.3d
357, 360 (5th Cir. 1993).
II. Evaluation Process
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
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. The
claimant bears the burden of proof at the first four steps of the analysis. Leggett v. Chater, 67 F.3d
558, 564 (5th Cir. 1995). Once this burden is met, the burden shifts to the Commissioner to show
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 (“VE”) or by the use of administrative
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guidelines provided 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. Anderson v.
Sullivan, 887 F.2d at 632.
In the present case, at step one, the ALJ found that Plaintiff had not engaged in substantial
gainful activity from his alleged disability onset date of May 15, 2010, through his date last insured
of September 30, 2010. (R:14) At step two, the ALJ determined that Plaintiff had a severe
impairment of hepatitis B with generalized pain, but found that his syncope was not a severe
impairment under the Act. (R:14-15) At step three, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that met or medically equaled the severity of one of the
listed impairments. (R:15) Overall, the ALJ found that Plaintiff had the residual functional capacity
to perform medium work except that he should never climb ropes and scaffolds; he should avoid
concentrated exposure to moving machinery; he should avoid moderate exposure to unprotected
heights; and, he should avoid driving. (R:15) At step four, the ALJ found that Plaintiff could not
perform his past relevant work. (R:17) The ALJ found that Plaintiff had achieved at least a high
school education and could communicate in English, and because he was 54 years old on his date
last insured, classified him as an individual closely approaching advanced age. (R:17) At step five,
considering Plaintiff’s age, education, work experience, and RFC, and considering VE testimony,
the ALJ found that Plaintiff could perform other jobs that existed in significant numbers in the
national economy. (R:17) Thus, the ALJ determined that Plaintiff was not disabled for purposes
of the Act, and was not entitled to receive DIB during the relevant period. (R:18) On March 4,

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2013, the Appeals Council denied review. (R:1-5) Therefore, the ALJ’s decision serves as the
Commissioner’s final decision for purposes of judicial review pursuant to 42 U.S.C. § 405(g).
III. The ALJ’s Determination of Plaintiff’s Residual Functional Capacity
Plaintiff contends that substantial evidence does not support the ALJ’s determination that he
retains the capacity to perform medium work. Specifically, he argues that his impairments prevent
him from being able to perform the lifting and standing and/or walking requirements of medium
work. (Doc.18:4) Medium work as defined in 20 C.F.R. § 404.1567(c) includes the ability to lift
no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25
pounds and the ability to stand and walk 6 hours out of an 8-hour workday with intermittent sitting
during the remaining time. See SSR 83-10, 1983 WL 31251 at *6 (describing the exertional
requirements of medium work). Medium work typically requires frequent bending, stooping, and
crouching. Id. Plaintiff argues that his own testimony, coupled with the medical evidence of record,
supports his contention. (Doc.18:4-7) Plaintiff further argues that by using a faulty RFC finding to
make a decision at step five, the Commissioner failed to meet the burden of proof at step five of the
sequential evaluation. (Doc.18:6). Consequently, Plaintiff urges, the step five decision is not
supported by substantial evidence, and remand is required. (Doc.18:6-7)
RFC is the most an individual can still do despite his limitations. 20 C.F.R. § 404.1545; SSR
96-8p. The responsibility to determine the Plaintiff’s RFC belongs to the ALJ. Ripley v. Chater,
67 F.3d 552, 557 (5th Cir. 1995). In making this determination, the ALJ must consider all the record
evidence and determine the Plaintiff’s abilities despite his physical and mental limitations. Martinez
v. Chater, 64 F.3d 172, 176 (5th Cir. 1995). The ALJ 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.
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§§ 404.1529, 404.1545; SSR 96-8p. 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 in the record. See Morris
v. Bowen, 864 F.2d 333, 336 (5th Cir. 1988).
ANALYSIS
In reviewing a decision that a claimant is not disabled, the court’s function is to ascertain
whether the record as a whole contains substantial evidence to support the Commissioner’s final
decision. The court weighs four elements to determine whether there is substantial evidence of
disability: (1) objective medical facts; (2) diagnoses and opinions of treating and examining
physicians; (3) subjective evidence of pain and disability; and (4) the claimant’s age, education and
work history. See Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995). A review of the record
evidence indicates that there is substantial evidence to support the ALJ’s conclusion that Plaintiff
retained the capacity to perform medium work.
A consultative physical examination of Plaintiff was performed on March 12, 2012 by Dr.
Augustine O. Eleje. (R:254-256) He concluded that Plaintiff had no limitations with sitting,
standing, moving about, handling objects, carrying, hearing, and speaking. (R:256) Dr. Eleje
concluded that Plaintiff had some limitations with lifting, but made no specific reference to such
limitation in the body of his report of March 12, 2012. (R:256). In a Medical Source Statement
dated March 15, 2012, Dr. Eleje indicated that Plaintiff could lift and carry from 51 to 100 pounds
occasionally, and all lesser amounts, continuously. (R:247) Dr. Eleje discounted Plaintiff’s
allegations of pain inasmuch as the alleged pain did not correspond to findings on examination–he
concluded that Plaintiff obviously exaggerated his symptoms. (R:255) Dr. Eleje concluded that
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Plaintiff could hop, squat, pick up a pen, and button his clothes. (R:256) Dr. Eleje’s objective
examination findings and opinion are consistent with the ALJ’s determination that Plaintiff could
perform medium work. (R:15-16, 247, 255-256)
Six months earlier, in September 8, 2011, Plaintiff was examined at the University Medical
Center. Examination notes indicate that Plaintiff had normal coordination, muscle strength, range
of motion, and motor and sensory testing results. (R:224) In the same vein, R. Vela, in a Disability
Report dated February 11, 2011, observed that Plaintiff had no difficulties with sitting, standing, and
walking. (R:139-140) Because substantial evidence supports the ALJ’s RFC determination in this
case, the Court finds no reason to reverse the case on this ground.
The medical opinion of treating physician Dr. Luis Ruben Quiroga, which was not supported
by accompanying records or objective diagnostic tests, was given little weight by the ALJ. (R:15)
Dr. Quiroga’s Medical Source Statement, which is dated January 3, 2012, is a mere checklist and
is bereft of any supporting evidence. (R:229-232) Plaintiff’s counsel, Mr. Hector Reyes, himself
referred to the medical evidence as “skimpy, at best” at the hearing before the ALJ, at a time when
this Medical Source Statement had already been admitted into evidence. (R:36) The ALJ was
justified in giving the treating physician’s opinion little weight in this case because the opinion was
an RFC checklist and the statements therein were brief and conclusory and not supported by
medically acceptable clinical laboratory diagnostic techniques or any evidence other the Plaintiff’s
subjective complaints. See McCoy v. Schweiker, 683 F.2d 1138, 1147 n.8 (8th Cir. 1982) (en banc)
(“as a general rule little weight is afforded to RFC checklists”). An ALJ is not required to defer to
medical opinions that are brief and conclusory, and not supported by medically acceptable clinical
laboratory diagnostic techniques or that are otherwise unsupported by the evidence. See Leggett v.
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Chater, 67 F.3d 558, 566 (5th Cir. 1995). The Court finds that the ALJ’s determination is supported
by the record.
The Court is mindful of the fact that the ALJ failed to incorporate all of Dr. Eleje’s proposed
limitations into her RFC, specifically his Medical Source Statement checkmark conclusions that
Plaintiff could sit for 6 hours, stand for 4 hours, and walk for 2 hours in an 8-hour workday;
occasionally push and pull; and frequently reach. (R:248-249). It is within the ALJ’s discretion to
resolve conflicting evidence, including conflicting medical evidence. See Jones v. Heckler, 702 F.2d
616, 621 (5th Cir. 1983). The Court reemphasizes that Dr. Eleje expressly stated that Plaintiff had
“no limitations” regarding sitting, standing, carrying, moving about and handling objects and that
he could hop, squat, pick up a pen, and button his clothes. (R:256) To whatever degree the isolated
evidence highlighted by Plaintiff might detract from the weight of the rest of the evidence in the
record, it falls short of that required to establish a no-substantial-evidence claim. Plaintiff’s
evidence fails to preponderate against the ALJ’s determination, much less establish a “conspicuous
absence of credible choices” or “contrary medical evidence.” See Abshire v. Bowen, 848 F.2d 638,
640 (5th Cir. 1988). The ALJ dutifully performed her task of resolving conflicts in the medical
evidence, and substantial evidence supports her RFC determination. See Masterson v. Barnhart, 309
F.3d 267, 272 (5th Cir. 2002).
As part of making her determination, the ALJ assessed Plaintiff’s credibility and subjective
complaints of pain and limitation. It was within her broad discretion to weigh the evidence and
make credibility choices. See Newton v. Apfel, 209 F.3d 448, 459 (5th Cir. 2000). The ALJ
considered Plaintiff’s testimony as well as the medical evidence. On the one hand, she considered
a litany of complaints urged by Plaintiff. (R:40-47) On the other hand, the record evidence shows
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that Plaintiff could perform the requirements of medium work. (R:15) Based upon her review of
the entire evidence, the ALJ determined that Plaintiff’s medically determinable impairments could
be expected to cause some of his alleged symptoms but that his statements concerning 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:16) Such a decision was within the ALJ’s
discretion and is supported by the evidence.
At the fifth step, considering Plaintiff’s age, education, work experience, and RFC, as well
as the VE’s testimony, the ALJ found that there are jobs that exist in significant numbers in the
national economy that Plaintiff can perform. (R:17-18) Specifically, the VE testified that an
individual with Plaintiff’s age, education, work experience, and RFC would be able to perform the
requirements of a cleaner, dish washer, and hand packager. (R:17-18, 52); see Dictionary of
Occupational Titles (“DOT”) Occupational Codes 323.687-010; 318.687-010; 920.587-018. The
ALJ found that pursuant to SSR 00-4p, the VE’s testimony was consistent with the information
contained in the DOT. (R:18) It is clear that the hypothetical question posed to the VE incorporated
reasonably all disabilities of the claimant recognized by the ALJ, and that Plaintiff and his counsel
were afforded the opportunity to correct deficiencies in the ALJ’s question by cross-examination;
in fact, the hypothetical question posed by the ALJ to the vocational expert was not seriously
challenged at all by Plaintiff at the hearing. See Bowling v. Shalala, 36 F.3d 431, 435-436 (5th Cir.
1994). The Court finds that the ALJ’s fifth step determination is supported by substantial evidence

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and that the ALJ properly considered the four elements in arriving at this determination. See
Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995).3
Likewise, there is no error in the ALJ’s failure to apply the sedentary grid rules. Sedentary
work involves lifting no more than 10 pounds at a time, but the ALJ found, and the record supports,
that Plaintiff could perform medium work.

As the Fifth Circuit has held repeatedly, the

Commissioner may rely on the grids to establish that work exists for a claimant only if the
guidelines’ evidentiary underpinnings coincide exactly with the evidence of disability appearing in
the record. See, e.g., Lawler v. Heckler 761 F.2d 195, 197 (5th Cir. 1985). Where any one of the
findings of fact does not coincide with the corresponding criterion of a grid rule, the rule does not
apply in that particular case, and accordingly does not direct a conclusion of disabled or not disabled.
Plaintiff argues that the ALJ should have applied sedentary grid rules 201.06 or 201.14 and found
Plaintiff disabled. (Doc. 18:6) Grid rule 201.06 directs a finding of disabled for an individual of
advanced age with an RFC for sedentary work. Here, the ALJ found that Plaintiff retained the RFC
for medium work, and because he was 54 years old on his date last insured, correctly classified him
as an individual close approaching advanced age. (R:15, 17) Grid rule 201.14 directs a finding of
disabled for an individual with an RFC for sedentary work, inter alia. Hence, the ALJ’s findings
of fact do not coincide with the corresponding criteria of either grid rule; thus, the grid rules do not
direct a conclusion of disabled or not disabled. Plaintiff is not entitled to relief on this claim.

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The ALJ concluded that a finding of “not disabled” was appropriate under the framework
of Section 204.00 in the Medical-Vocation Guidelines. (R:18) It is apparent to the Court that the
ALJ meant to refer to Section 203.00, inasmuch as her conclusions were all based on medium
work.
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Finally, because Plaintiff has failed to show that he is disabled as a matter of law, there is no
reason to remand this case to the Commissioner for the purpose of awarding benefits. See Ivy v.
Sullivan, 898 F.2d 1045, 1054 (5th Cir. 1990) (uncontroverted showing of disability). Neither is
there a need to remand for further administrative proceedings.
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 May 26, 2015.

_____________________________________
ROBERT F. CASTANEDA
UNITED STATES MAGISTRATE JUDGE

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