Suares Carrasco v. Colvin

Filing 26

MEMORANDUM OPINION AND ORDER. Signed by Judge Miguel A. Torres. (lc3)

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

JUAN SUARES CARRASCO,

1'

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§

Plaintiff,

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v.

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NO. EP-14-CV-36-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

the decision ofthe Commissioner of the Social Security Administration ("Commissioner") denying
his claims for disability insurance benefits ("DIB") and supplemental security income ("S SI") under

Titles II and XVI, respectively, 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 ofjudgment pursuant to 28 U.S.C.
§ 63 6(c),

and Rule CV-72 and Appendix C of the Local Court Rules of the Western District of

Texas. For the reasons below, the Commissioner's decision is AFFIRMED.
I. PROCEDURAL HISTORY

On September 16, 2010, Plaintiff protectively filed applications for DIB and SSI in which
he alleged disability since July 25, 2010 due to head trauma, neurological disorder, anxiety, and

1

depression. (R. 11, 135-143, 174).' After his applications were denied initially and again upon

reconsideration, Plaintiff requested a hearing. (R. 74-79, 82-87, 90-94). On August 6, 2012,

Plaintiff appeared with his attorney for a hearing before an Administrative Law Judge ("AU"). (R.
45-67). His applications for benefits were denied by the

AU's written decision issued on October

19,2012. (R. 11-20). OnNovember 29,2013, the Appeals Council affirmed the AU's decision to
deny benefits, thereby making it the final decision of the Commissioner. (R. 1-6).

On January 28, 2014, Plaintiff submitted his complaint along with a motion to proceed in

forma pauperis. (ECF No.

1).2

On February 5, 2014, Plaintiff's motion to proceed informa

pauperis was granted, and his complaint was filed. (ECF Nos. 4 & 5). On April 10, 2014,
Defendant filed an answer and a certified copy of the transcript of the administrative proceedings.
(ECF Nos. 10 & 11). On April 15, 2014, the District Judge entered an order transferring the case
to the undersigned for all proceedings. (ECF No. 14). On July 16, 2014, Plaintiff filed his Brief in

Support of Claim. (ECF No. 21). On August 19, 2014, the Brief in Support of the Commissioner's

Decision was filed. (ECF No. 24).
II. BACKGROUND

Plaintiff was born on November 24, 1950, making him 61 years old at the time of the AU's
decision on October 19, 2012. (R. 20, 135). He is able to communicate in English and has a high
school education obtained by GED. (R. 49, 173, 175). He has past relevant work experience as a
front office manager, baggage checker, delivery driver, and food service manager. (R. 65). Plaintiff

'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

testified he can no longer work due to severe headaches, concentration problems, lack of
coordination, insomnia, blurry vision, dry throat, stomach ache, dizziness, fatigue, low energy,
rheumatoid arthritis in his ankles, knees, elbow, cervical spine, and fingers, chronic kidney disease,
numbness, tingling, cramping and pain, rated at a 10 on the pain scale, depression, and the need to
take three to four naps daily. (R. 54-59).
III. ISSUE PRESENTED

Plaintiff contends the AU's residual functional capacity3 determination is not supported by
substantial evidence.
IV. DISCUSSION
A. Standard of Review

This Court's review of the Commissioner's decision 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 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).
In determining whether there is substantial evidence to support the findings of the

Residual functional capacity ("RFC") is defined in the regulations as "the most you can
still do despite your limitations." 20 C.F.R. § 404.1567(d), 4 16.967(d).
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 Commissionerts findings are supported by substantial evidence, they are

conclusive and must be affirmed. Spellman v. Shalala,
B. Evaluation Process and Burden

1

F.3d at 360.

of Proof

Disability is defined as the "inability to engage in substantial gainful activity by reason ofany
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.

§§

404.1520,

4 16.920. 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

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 he is unable to perform the alternative work.
Id.
C. The

AU's Decision
In her written decision, the AU determined as a threshold matter that Plaintiff met the

insured status requirements of the Social Security Act through December 31, 2015. (R. 13). The
AU found Plaintiff had not engaged in substantial gainful activity since July 25, 2010, the alleged

onset date. Id. At the next step, the AU determined Plaintiff has severe impairments consisting of
mild degenerative changes of the cervical spine, anxiety, and depression. Id. The AU further
determined Plaintiff's impairments of cellulitis of the face, right shoulder pain, arthritis of the hands,
and chronic kidney disease are non-severe impairments. (R. 13-14).

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.

(R. 14-15). Before reaching step four, the AU found Plaintiff retains the residual

functional capacity ("RFC") to perform medium work5, except he is limited to simple, routine,
Residual functional capacity is defined in the regulations as "the most you can still do
despite your limitations." 20 C.F.R. § 404.1545(a), 416.945(a).
5Medium work involves lifting more than 50 pounds at a time with frequent lifting or
canying of objects weighing 25 pounds or more. If someone can do medium work, he can also
do sedentary and light work. 20 C.F.R. § 404.1567(c), 416.967(c).

repetitive work tasks, i.e., unskilled work with no more than an SVP of 2.6 (R. 16-18). Based on

Plaintiff's RFC, the AU found he is not able to perform any of his past relevant work which was
semi-skilled7

or

skilled.8

(R. 18-19).

At step five, relying on the Medical-Vocational Guidelines as a framework for decision
making, the AU determined there are other jobs that Plaintiff can perform. (R. 19-20). Therefore,

the AU determined Plaintiff was not disabled. (R. 20).
D. Analysis

of Plaintiff's Claim

Plaintiffcontends the AU' s RFC finding for a wide range ofmedium work limited to simple,
repetitive work tasks consistent with unskilled work with an SVP of no more than 2 is not supported
by substantial evidence because the AU failed to properly accommodate all limitations relating to

6

SVP is an abbreviation for specific vocation preparation. It is defined as "the amount of
lapsed time required by a typical worker to learn the techniques, acquire the information, and
develop the facility needed for average performance in a specific job-worker situation." U.S.
Dep't of Labor, Dictionary of Occupational Titles (DOT), App. C. 11(4th ed. 1991). The DOT
lists an SVP time for each occupation. An SVP of 2 corresponds to unskilled work under the
skill level definitions in 20 C.F.R. § 404.1568 and 416.968, and typically has a learning period
of "[a]nything beyond short demonstration up to and including 1 month." Id.

Semi-skilled work needs some skills but does not require doing the more complex work
duties. Such jobs may require alertness and close attention to watching machine processes; or
inspecting, testing, or otherwise looking for irregularities; or tending or guarding equipment,
property, materials, or persons against loss, damage, or injury; or other types of activities which
are similarly less complex than skilled work, but more complex than unskilled work. A job may
be classified as semi-skilled where coordination and dexterity are necessary, as when hands or
feet must be moved quickly to do repetitive tasks. 20 C.F.R. § 404.1568(b), 416.968(b).

Skilled work requires qualifications in which a person uses judgment to determine the
machine and manual operations to be performed in order to obtain the proper form, quality, or
quantity of material to be produced. Such work may require laying out work, estimating quality,
determining the suitability and needed quantities of materials, making precise measurements,
reading blueprints or other specifications, or making necessary computations or mechanical
adjustments to control or regulate the work. Other skilled jobs may require dealing with people,
facts, or figures, or abstract ideas at a high level of complexity. 20 C.F.R. § 404.1568(c),
4 16.968(c).

Plaintiff's severe and non-severe impairments. In support, Plaintiff relies on subjective evidence
consisting of his testimony at the hearing that he has severe headaches, forgets things, has insomnia
and sleep problems, cannot stand for very long, has rheumatoid arthritis affecting his ankles, knees,

elbow, cervical spine, and fingers, can walk for no more than 15 to 20 minutes, sit for no more than
30 to 40 minutes, and has difficulty lifting things that weigh more than 10 pounds. (R. 54-5 5, 57-

58). Plaintiff also relies on his reports of pain to the back of his head, his neck, hands, fingers, and
legs, and his complaints of stress and anxiety and his reports of difficulty lifting, squatting, bending,

standing, reaching, walking, sitting, kneeling, talking, hearing, climbing stairs, remembering,

concentrating, completing tasks, understanding, following instructions, and using his hands. (R.
(R. 185, 187, 196, 200, 207, 213, 218). Additionally, Plaintiff relies on objective medical evidence

consisting of radiological findings from a computerized tomography ("CT") scan of his cervical
spine on July 25, 2010, a CT scan of his upper extremity on July 28, 2010, x-rays of his hands and

knees on July 11, 2011, and physical examinations in January, April, May, and December of 2102.
(R. 287, 290, 585-586, 66 1-662, 695, 705-706, 717-718, 729-730).

In essence, Plaintiff argues the cited subjective complaints of pain and limitations, coupled

with the radiological and laboratory findings, and the findings on physical examination, support a
conclusion that his functional abilities are significantly more limited than found by the AU in her
RFC assessment. Plaintiff posits that had the AU properly accommodated his conditions, she likely

would have found him able to perform light or sedentary work, and a finding that he could perform
light unskilled work would have directed a conclusion that he was disabled under Rule 202.06 of the

Medical-Vocational Guidelines ("the Grids"), codified at 20 C.F.R. 404, Subpt. P, App. 2. After
reviewing the record, the Court finds the

AU's assessment of Plaintiff's RFC

7

is supported by

substantial evidence, and there is no error shown on this ground.
Although Plaintiff testified he has extreme functional limitations and experiences constant

pain at 10, on a pain scale of
complaints.

See Houston

v.

1

to 10, the objective findings do not corroborate his subjective

Sullivan,

895 F.2d 1012, 1016 (5th Cir. 1989) (claimant's subjective

complaints must be corroborated, at least in part, by objective evidence). X-rays of Plaintiffs
lumbar spine performed on April 4, 2012 were entirely normal with normal alignment and normal
vertebral body height. (R. 17, 696-697). The CT scans of Plaintiffs cervical spine performed on
July 25, 2010 and October 22, 2010, both showed only mild degenerative changes, but no central
canal stenosis or nerve root compression. (R. 17, 287, 544). Likewise, a CT scan of Plaintiff s neck

performed on August 17, 2011, showed only mild degenerative changes. (R. 576-577).
The CT scan of Plaintiffs right upper extremity performed on July 28, 2010, showed mild
degenerative changes. (R. 290). X-rays of Plaintiffs hands taken on July 11, 2011, show the bony
structures have normal mineralization. (R. 585). The only finding was a "slight fusiform soft tissue

swelling" on one of the joints of the right middle finger and a "tiny smooth calcification" over the
ulnar aspect of the outer joint space. Id. The x-rays of Plaintiffs knees taken on July 11, 2011,
showed "very slight joint space narrowing" of the medial compartments, most likely representing

"minimal osteoarthritis."9 (R. 585-586). These medical findings do not coincide with his subjective
complaints.
As for Plaintiffs complaint that there are objective findings to support a diagnosis of

Osteoarthritis is a noninflammatory degenerative joint disease seen mainly in older
persons. D0RLAND'S ILLUS. MEDICAL DICTIONARY 1286 (29th ed. 2000).

rheumatoid arthritis ("RA")'°, including his elevated RA factor on October 9, 2010, July 8, 2011,
and April 4,2012, (R. 407, 591, 701), it appears his treating doctors ruled this out. Plaintiff was seen
at a rheumatology clinic for evaluation in January 2012.

(R. 704). Following examination and

review of the x-rays of Plaintiff's hands and knees, Dr. Michael and Dr. Castro both agreed no
erosive changes were seen, and the pain in Plaintiff's joints appeared to be caused by osteoarthritis.
Id. On April 19, 2012, he was seen at the clinic for a follow up appointment "on rheumatoid

arthritis" at which it again was opined that his diffuse joint pain is probably due to osteoarthritis.
(R. 695). Notes dated July 9, 2012, state Plaintiff was "instructed to stop taking NSAIDs1'

(ibuprofen, celebrex, naproxen)" and discharged from the rheumatology clinic to follow up with his

primary care provider. (R. 709). His treatment records assess polyarthritis and osteoarthritis,
without specifying rheumatoid arthritis. (R. 694, 709, 718, 726). Even assuming arguendo that

Plaintiff has RA, the mere presence of a diagnosable condition does not establish the presence of
functional limitations or disability. See Hames v. Heckler, 707 F.2d 162, 165 (5th Cir. 1983).
In addition to the findings on the rheumatology consultation, Plaintiff also relies on findings

of severe osteoarthritis and the assessment of cervical spondylosis12 by his primary care provider in
January, May, and December of2012. (R. 661-662, 717-718, 729-730). The notes also reflect that

when seen on these visitS, Plaintiff was noted to be in no apparent distress, his extremities appeared

normal, and a walking program was recommended. As stated by the AU, despite the diagnosis of
°

Rheumatoid arthritis is a chronic systemic disease primarily of the joints, marked by
inflammatory changes, muscle atrophy, and rarefaction of the bones. DORLAND'S ILLUS.
MEDICAL DICTIONARY 151(29th ed. 2000).
N SAID is a common abbreviation for nonsteroidal anti-iflammatory drugs.

Spondylosis is a general term for degenerative spinal changes due to osteoarthritis.
DORLAND'S ILLUS. MEDICAL DICTIONARY 1684 (29th ed. 2000).
12

osteoai-thritis, there are no doctor-imposed limitations in the record regarding Plaintiff's ability to
sit, stand, walk, lift and carry. Finally, the AU noted that, in addition to the lack of objective

findings, there was evidence of symptom magnification by Plaintiff as observed at the consultative

mental examination on January 20, 2011. (R. 17, 453-456). In determining Plaintiff's RFC, The
AU accommodated the mental and physical limitations that were supported by the

It is the task of the AU to weigh the evidence. Chambliss

v.

record.'3

Massanari, 269 F.3d 520, 523

(5th Cir. 2001). The AU carefully considered all of Plaintiff's subjective complaints regarding the

intensity, persistence, and limiting effects of his symptoms. She determined based on the medical

and other evidence of record that, while Plaintiff's medically determinable impairments reasonably
could be expected to cause the alleged symptoms, his complaints were not entirely credible. (R. 1618). The

AU' s determination that the medical evidence

is more persuasive than the claimant's

testimony is precisely the kind of determination the AU is best positioned to make. Falco v

Shalala, 27 F.3d 160, 164(5th Cir. 1994). Moreover, credibility determinations are entitled to great
deference. Newton, 209 F.3d at 448. There is no prejudicial error shown in the

AU's analysis of

Plaintiff's mental and physical RFC.
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. Chambliss, 269 F.3d at 523, citing Greenspan, 38 F.3d at 240.
The opinions of the state agency medical consultants, the consultative examiners, and the VE provide

The AU also gave weight to the state agency medical consultants ("SAMCs") who
reviewed the medical evidence and found that Plaintiff retained the mental RFC to understand,
remember, and carry out detailed instructions, get along with coworkers, and adjust appropriately
to changes in the work setting. (R. 473, 475). On reconsideration review, the SAMC opined
Plaintiff was engaging in symptom exaggeration, e.g., reporting his wife feeds him, takes him
one hour to make a simple sandwich, and he can walk a distance of only 2 feet. (R. 477).
13

10

substantial evidence for the AU's determination that Plaintiff is not disabled because he can perform

other 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

ay of March, 2015.

UNITED STATES MAGISTRATE JUDGE

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