Herrera Rios v. Colvin

Filing 24

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

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

L15

Q'2

L4:

EL PASO DIVISION

ROSA A. HERRERA RIOS,

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Plaintiff,

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v.

NO. EP-13-CV-414-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. Plaintiff appeals

from the decision of the Commissioner of the Social Security Administration (Commissioner)
denying her claim for Supplemental Security Income ("SSI") under Title XVI of the Social Security
Act. 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.

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636(c) and Appendix C to the Local Court Rules of the

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

I. PROCEDURAL HISTORY

On September 29, 2010, Plaintiff filed an application for SSI in which she alleged disability

beginning September

1,

2010, due to severe high blood pressure and pain in both knees. (R. 15,

1

53

190).1

After her application was denied initially, and upon reconsideration, Plaintiff requested a

hearing. (R. 15, 46-49, 58-60, 8). On July 2, 2012, she appeared with her attorney for a video

teleconference hearing before an administrative law judge ("AU"). (R. 27-37). Plaintiff testified
with the aid of a Spanish language interpreter, and the AU called a vocational expert to testify. (R.
27, 35-36). On September 26, 2012, the AU issued a written decision denying benefits on the

ground that Plaintiff is able to perform her past relevant work as a home attendant. (R. 15-20). On

November 4, 2013, the Appeals Council denied Plaintiffs request for review, thereby making the

AU's decision the Commissioner's final administrative decision.

(R. 1-5).

On December 27, 2013, Plaintiff submitted her complaint along with a motion to proceed

informa pauperis. (ECF No.

1).2

On January 2, 2014, Plaintiffs motion to proceed informa

pauperis was granted, and her complaint was filed. (ECF Nos.

5

& 6). On March 6, 2014, the

Commissioner filed an answer and a certified copy of the transcript of the administrative

proceedings. (ECF Nos. 14 & 16). Both parties having consented, the case was reassigned to the
docket of the undersigned on March 10, 2014. (ECF No. 19).
On May 12, 2014, Plaintiff filed her brief in support of reversing and remanding the

Commissioner's decision. (ECF No. 22). On May 29, 2014, the Commissioner filed her brief in
support of the decision to deny benefits. (ECF No. 23).
II. BACKGROU'Th

Plaintiff was born on May 31, 1948, making her 64 years old at the time of the AU's

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

Reference to documents filed in this case is designated by (ECF No(s). [document entry
number(s)].
2

2

decision on September 26, 2012. (R. 20, 125). She attended school through the ninth grade in
Mexico and is unable to read, write or speak English. (R. 189, 190). She has past relevant work

experience as a home health care attendant. (R. 18, 29, 182). She has not worked since her alleged

onset date of February 28, 2010. (R. 14, 29). Plaintiff testified she is prevented from working due
to knee problems, back problems, and arthritis. (R. 30-31).
III. ISSUE PRESENTED

Plaintiff contends the AU's residual functional capacity ("RFC")3 finding is not supported
by substantial evidence.
IV. DISCUSSION

A. Standard of Review

This Court's review of the Commissioner's final decision to deny benefits is limited to a

determination of whether it is supported by substantial evidence on the record as a whole and
whether the proper legal standards were applied in evaluating the evidence. Myers v. Apfel, 238 F.3d

617,619(5th Cir. 2001) (citing 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.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).
In determining whether there is substantial evidence to support the findings of the

3Residual functional capacity is defined in the regulations as "the most you can still do
despite your limitations." 20 C.F.R. § 4 16.945(a).
3

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); Haywood v. Sullivan,
888 F.2d 1463, 1466 (5th Cir. 1989). 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 her findings are

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

of Proof

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). Disability

claims are evaluated according to a five-step sequential process: (1) whether the claimant is currently
engaged in substantial gainful activity; (2) whether the claimant has a medically determinable
physical or mental impairment(s) that is severe; (3) whether the claimant's impairment(s) meet or

equal the severity of an impairment(s) listed in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4)

whether the impairment(s) prevents the claimant from performing past relevant work; and, (5)
whether the impairment(s) prevents the claimant from doing any other work. 20 C.F.R.

§

416.920.

A finding that a claimant is disabled or not disabled at any point in the process is conclusive and

terminates the analysis. Greenspan, 38 F.3d at 236.
The claimant bears the burden of proof on the first four steps of the sequential analysis.

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

4

the Commissioner to show that 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 or by use

of administrative guidelines 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 she is unable to perform the alternative work.
Id.
C. The

AU's Decision
In her written decision, the AU determined at step one that Plaintiff had not engaged in

substantial gainful activity since the application date of September 29, 2010. (R. 17). At step two,
the AU determined Plaintiff has severe impairments consisting of arthritis and hypertension. Id.
At step three, the AU determined Plaintiff does not have an impairment or combination of

impairments that meets or equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. Id.
Before reaching step four, the AU assessed Plaintiffs RFC and found she is able to perform

medium work,4 except that she can climb, balance, kneel, and crawl only occasionally. (R. 18). In
making this finding, the AU determined Plaintiffs allegations regarding the intensity, persistence
and limiting effects of her symptoms were not credible to the extent that they are inconsistent with
the

AU's RFC assessment.

Id. Based on the VE's testimony, the AU found at step four, that

Plaintiff is able to perform her past relevant work as a home attendant, and is, therefore, not disabled.
Medium work involves lifting no more than 50 pounds at a time with frequent lifting or
canying of objects weighing up to 25 pounds. If someone can do medium work, she can also do
sedentary and light work. 20 C.F.R. § 4 16.967(c).
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(R. 19-20).
D. Analysis of Plaintiffs Claim

Plaintiff contends the AU' s RFC finding that Plaintiff can perform a limited range of
medium work is not supported by substantial evidence. In support of her position, Plaintiff relies
on subjective evidence consisting of her testimony at the hearing that she can walk no more than one
block, stand for 30 minutes, sit for 30 minutes, and lift no more thanlO pounds, and her complaints

of knee pain affecting her ability to stand, walk, sit, kneel, squat, and climb stairs. (R. 34-35, 178,
180, 190, 197, 205, 210, 215, 218). Additionally, Plaintiff relies on the

AU's failure to include an

accommodation in the RFC for Plaintiffs need to use a cane when walking and standing. (R. 1819). Plaintiff also relies on objective medical evidence consisting

of the November 2010 report of

the consultative examiner, a November 2010 x-ray of her knees, and treating source assessments of
osteoarthritis in her knees dated June 2011, August 2011, January 2012, and June 2012. (R. 245247, 270, 275, 285, 289).

A review of the

AU's written opinion shows she properly considered

all of the evidence

cited by Plaintiff. The AU discussed the November 23, 2010, findings of consultative physical
examiner, Dr. Nilesh Mehta. (R. 18-19,245-246). The AU noted Dr. Mehta found normal strength

in all of Plaintiffs extremities, with no sensory loss. Plaintiffs reflexes were normal (2+) in her
knees. Her knees exhibited some fluid, medial tenderness and crepitus, and knee movement was

restricted by pain. Dr. Mehta noted Plaintiff has osteoarthritis in both knees, worse on the right, and
very well controlled hypertension. (R. 246). Dr. Mehta also noted the x-rays taken of Plaintiffs

right knee on November 23, 2010, showed only probable chondromalacia

patella5

and minimal

degenerative changes within the medial compartment. (R. 246, 247). The assessment was lower

joint pain and benign hypertension. (R. 245).
Additionally, the AU explained she gave weight to the opinions of two state agency medical

consultants (SAMC5) who reviewed Plaintiff's medical records in January and March 2011 and
concluded Plaintiff could perform medium work with occasional balancing, stooping, kneeling, and
crawling. (R. 19, 252-259, 268). Both SAMCs also found Plaintiff's allegations were not fully

supported by the evidence. (R. 259, 268).

Plaintiff also complains that the AU' s RFC failed to include an accommodation for her need
to use a cane while walking and standing. Plaintiff appeared at the July 2, 2012 hearing with a cane

and testified that it had been prescribed. (R. 18-19). As the AU noted in her opinion, however,
there were no corresponding imposed restrictions or cane prescription from the treating doctor in the

record. (R. 19). Plaintiff correctly states a prescription for her cane was submitted after the hearing.
The prescription, however, was signed by Brenda Silva, P.A., and dated September 11,2012, which
was more than two months after the administrative hearing. (R. 291-292). Plaintiff has not directed

the Court to any evidence suggesting she was prescribed a cane on or before the date of her
testimony at the hearing. In fact, in other reports to the agency, she stated she did not use a cane and
denied one had been prescribed. (R. 179-180,211). The AU properly considered the inconsistency

between Plaintiff's testimony and the evidence of record in assessing Plaintiff's credibility.
Additionally, the AU considered Plaintiff's medical records from San Vicente Clinic,

Chondromalacia patella is defined as pain and crepitus over the anterior aspect of the
knee, particularly in flexion, with softening of the cartilage on the articular surface of the patella,
and in later stages, effusion. DORLAND'S ILLUS. MEDICAL DICTIONARY 344 (29th ed. 2000).
7

including the cited notes from June 2011, August 2011, January, 2012, and August 2012. (R. 19,
269-289). The AU noted these records indicated Plaintiff received routine medical care from
Brenda Silva, P.A. (physician assistant), and reflect that P.A. Silva diagnosed Plaintiff with severe

osteoarthritis in both knees. (R. 19). The AU gave P.A. Silva's diagnosis of severe bilateral knee
osteoarthritis little weight for two reasons: it was not from an acceptable medical source as defined
in the regulations6, and it was not supported by the record. Id. Specifically, the AU noted the x-rays

taken of Plaintiff's right knee on November 23, 2010, showed no more than probable

chondromalacia patella and minimal degenerative changes within the medial compartment. (R. 19,
251). The Court notes an x-ray report by Fleramb Singh, M.D., dated June 20, 2011, of two views

of Plaintiff's knees indicates no abnormalities. The impression is of normal knees. (R. 280).
The AU considered Plaintiff's subjective complaints of constant pain and significant
functional limitations. (R. 18-19). The AU determined, based on consideration of the entire case

record, that Plaintiff's impairments could reasonably be expected to produce some of the alleged
symptoms, but her allegations regarding the intensity, persistence, and limiting effects of his
symptoms were not fully credible. (R. 19). In reaching this conclusion, the AU noted a number

inconsistencies in the record, including: minimal findings at the consultative examination, a
conservative treatment history, lack of physician imposed restrictions, and no evidence of a

prescribed cane. Id. Accordingly, the AU determined Plaintiff's alleged impairment symptoms and
limitations were not consistent with the medical and other evidence of record. Id. This is precisely

the kind of determination the AU is best positioned to make.

Falco v. Shala, 27

F.3d 160, 164 (5th

See 20 C.F.R. § 404.1513(a) (acceptable medical sources who can provide evidence to
establish impairments include licensed medical or osteopathic physicians, and certain licensed or
certified psychologists, optometrists, podiatrists, and speech pathologists).
6

[]
[4]

Cir. 1994). Accordingly, it is entitled to great deference by this Court. Greenspan, 38 F.3d at 237.

The AU considered all of the evidence in the record, both subjective and objective in
assessing Plaintiffs RFC. It is the task of the AU to weigh the evidence. Chambliss v. Massanari,
269 F.3d 520, 523 (5th Cir. 2001). The task of this Court is to determine

if there is substantial

evidence in the record as a whole which supports the AU's decision. Id., citing Greenspan, 38 F.3d
at 240. The opinions of the state agency medical consultants, the consultative examiner, and the VE

provide substantial evidence for the

AU's determination that Plaintiff is not disabled because she

can perform her past relevant work. As substantial evidence supports the AU's decision, it must
be affirmed. Speilman,

1

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

('iay of March, 2015.

MIGUEL A. ORRES
UNITED STATES MAGISTRATE JUDGE