Terrazas v. Colvin

Filing 22

MEMORANDUM OPINION AND ORDER. IT IS ORDERED that the decision of the Commissioner will be AFFIRMED. Signed by Judge Miguel A. Torres. (scf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION

Iglfli
2017

JANIj

"'
ROBERTO TERRAZAS,

Ptl 2:

T1CT COURT

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Plaintiff,

DtPUTY

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v.

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NO. EP-13-CV-413-MAT

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CAROLYN W.COLVIN,
ACTING COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION,

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Defendant.

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MEMORANDUM OPINION AND ORDER
This is a civil action seeking judicial review of an administrative decision pursuant to 42

U.S.C.

§

405(g). Plaintiff Roberto Terrazas ("Terrazas") appeals from the decision of the

Commissioner of the Social Security Administration ("Commissioner") denying his claims for
Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Title II

and Title XVI of the Social Security Act, respectively. 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. 28 U.S.C.

§

636(c); Local Court Rule CV-72. For the reasons set forth below,

the Commissioner's decision will be AFFIRMED.
I.

PROCEDURAL HISTORY

Terrazas worked as a security guard from 1994 to 2003 and as a floor technician and janitor
from 2004 to 2009. (R. 30, 45).' He was fifty-three years old at the time of his hearing before the

Administrative Law Judge

("AL').

(R. 30). Terrazas filed applications for DIB and SSI in June

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

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2011 in which he alleged disability beginning August 2, 2009, due to a brain tumor, swelling of his

feet, and diabetes. (R. 132-45, 169). After his applications were denied initially and upon

reconsideration, Terrazas requested a hearing. (R. 59-64, 72-78). On September 4, 2012, he
appeared with his attorney for a hearing before the AL (R. 26-48). On October 24, 2012, the AU
issued a written decision denying benefits on the ground that Terrazas is able to perform work that

exists in significant numbers in the national economy. (R. 10-20). On November 4, 2013, the
Appeals Council denied Terrazas' request for review, thereby making the AU's decision the

Commissioner's final administrative decision. (R. 1-5).
Terrazas argues that: (1) the AU's residual functional capacity ("RFC") finding is not
supported by substantial evidence; and (2) the AU failed to explain a conflict between the

testimony of the vocational expert and the Dictionary of Occupational Titles.

II.

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) (quoting 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

evidence as a reasonable mind might accept to support a conclusion. Ripley v. Chater, 67 F.3 d 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
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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). 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. Speilman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993). If the Commissioner
applied the proper legal standards and his findings are supported by substantial evidence, they are
conclusive and must be affirmed. Id.
B. ANALYSIS OF TERRAZAS' CLAIMS
1.

RFC is Supported by Substantial Evidence

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

§

404.1545, 416.945. 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 any physical and mental limitations. 20 C.F.R.

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404.1545, 416.945. 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.

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404.1545, 416.945,

404.1529, 416.929. However, a claimant's own subjective complaints, without supporting

objective medical evidence, are insufficient to establish disability. See 20 C.F.R.
416.908, 404.1528, 416.928, 404.1529, 416.929. The AU

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404.1508,

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).

Terrazas argues that the "AU's finding that Plaintiff has the RFC to perform a limited

range of light work is inconsistent with the evidence of record and with the

AU's own

RFC

limitations restricting Plaintiff to walking two blocks and sitting for only 30 minutes at a time."
(ECF. No. 20, at 4). Based on a thorough review of medical records and Terrazas' testimony at the

hearing, the AU found that Terrazas had the RFC to perform light work with the following
limitations: (1) no lifting with the right dominant upper extremity above the shoulder level; (2) he
can only walk two blocks before having to stop; (3) he can sit for thirty minutes at a time and then

has to get up and stretch for a couple of minutes; (4) he must avoid exposure to loud noise; and (5)
he can only conduct routine, simple tasks. (R. 13).

The

AU's determination that Terrazas had the RFC to perform a limited range of light

work is harmonious with his RFC limitations and the definition of light

work.2

As beendant

points out, the AU did not restrict the number of hours per day that Terrazas can spend standing or
walking, or the amount of weight that can be lifted, carried, pushed or pulled, and the limitations

the AU did find regarding those actions are congruent with the light work requirements. (R. 13);
see

20 C.F.R.

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404.1567, 416.967. Also, Terrazas' limited use of his right dominant upper

extremity is not inconsistent with the AU's RFC determination. See SSR 83-12, 1983 WL 31253,
at *4 (1983) ("Experience with persons who have lost the use of an upper extremity has shown that

their potential occupational base is between the occupational bases for [sedentary wcftkl

and

[light

work.]"). Thus, the Court finds that the AU's determination that Terrazas had the RFC to perform
"Light work involves 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, ajob is in this category when 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. To be considered capable of performing a full or wide range of light work, you must have the ability to do
substantially all of these activities." 20 C.F.R. § 404.1567(b), 416.967(b).
'Frequent means occurring from one-third to two thirds of the time Since frequent lifting or carrying
requires being on one's feet up to two-thirds of a workday, the full range of light work requires standing or va1king, off
and on, for a total of approximately 6 hours of an 8-hour workday. Sitting may occur intermittently during the

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remaining time." SSR 83-10, at *6 (1983).

a limited range of light work is consistent with the AU's own RFC limitations.

Moreover, Terrazas has failed to show that the AU neglected to properly evaluate his

impairments in determining his RFC. Simple recitations of Terrazas' testimony and citations to
self-reports concerning conditions adequately addressed in the

AU's written opinion

are

insufficient to prove that the AU erred in his RFC determination. Similarly, as Defendant notes,
the medical history cited by Terrazas, which the AU addressed in detail in his written opinion,
does not contain medical opinion evidence that contradicts the

AU's findings. The testimony,

self-reports, and medical history provided by Terrazas appear to be little more than an invitation
for the Court to reweigh the evidence, which it is not permitted to do. Thus, the Court finds that
there is substantial evidence in the record supporting the AU' s RFC determination.
2. The ALl Properly Relied on the VE's Testimony

Terrazas argues the AU committed reversible error by failing to explain a conflict between
the testimony of the vocational expert ("yE") and the occupational definitions set out in the
Dictionary of Occupational Titles ("DOT") as required by Social Security Ruling 00-4p. However,
the Fifth Circuit has acknowledged that the DOT is not comprehensive and that "DOT job

descriptions should not be given a role that is exclusive of more specific vocational expert

testimony with respect to the effect of an individual claimant's limitations." Carey v. Apfel, 230
F.3d 131, 145 (5th Cir. 2000). When there is an implied or indirect conflict between the expert's

testimony and the DOT, the AU may rely on the VE's testimony if the record provides an
adequate basis for doing so. Id. at 146.
Terrazas appears to be asserting there was an implied or indirect conflict because he has
failed to identify any actual contradictions between the VE's testimony and the DOT. Instead he

merely states that the jobs identified "exceed[] the exertional limits Plaintiff is capable of

performing" and that "the DOT does not address sit/stand options." (ECF No. 20, at 7). The AU
accurately described Terrazas' limitations when posing hypotheticals to the YE (R. 45-46), and as

discussed above the record as a whole supports the limitations articulated by the AU.
Furthermore, the Court notes that Terrazas' attorney did not raise these alleged conflicts in a
meaningful way during the hearing.3 (R. 47); see

Carey,

230 F.3d at 146-47 ("[C]laimants should

not be permitted to scan the record for implied or unexplained conflicts between the specific

testimony of an expert witness and the voluminous provisions of the DOT, and then present that

conflict as reversible error, when the conflict was not deemed sufficient to merit adversarial

development in the administrative hearing."). Thus, the Court finds the AU did not err in relying
on the VE's testimony.

III.

CONCLUSION

IT IS ORDERED that the decision of the Commissioner will be AFFIRMED
SIGNED and ENTERED this

//

day of January, 2017.

MIGUE A. TORRES
UNITED STATES MAGISTRATE JUDGE

Terrazas' attorney asked whether the jobs identified would still be applicable if Terrazas was "off task 20 percent of
the day" to which the VE replied no. (R. 47).

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