Rocha v. Colvin

Filing 21

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

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

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CIVIL NO. 3-14-CV-00151-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 May 18, 2011, Plaintiff filed an application for DIB, alleging a disability onset date of
October 1, 2009. (R:156) His application was denied initially and on reconsideration. (R:105,112)
Plaintiff filed a request for a hearing, which was conducted on March 21, 2012. (R:87-100) 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 27, 2012, denying benefits. (R:76-83)
Plaintiff requested that the Appeals Council review the ALJ’s decision. (R:69) In his appeal,
Plaintiff submitted various records. (R:20-66) The AC found that the records were not material
because they related to a period after the ALJ’s April 27, 2012, decision. (R:7,14) The AC denied
Plaintiff’s request for review on January 29, 2014, and April 16, 2014. (R:6, 13) Thus, the ALJ’s
April 27, 2012, decision stands as the Commissioner’s final decision subject to judicial review
pursuant to 42 U.S.C. § 405(g).
ISSUES
Plaintiff presents the following issues for review:
1.

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

2.

Whether the ALJ erred in her evaluation of the treating physician’s opinion.
(Doc. 18:5-6)

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., Rule 201.14, which would have directed a conclusion that Plaintiff
is disabled. (Doc. 18:6-7) Consequently, Plaintiff seeks a reversal and remand for an award of
benefits or for further administrative proceedings. (Doc.18:7) Conversely, 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. 19:4-8)

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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,
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
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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
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, 887
F.2d at 632.
In the present case, at step one, the ALJ found that Plaintiff had not engaged in substantial
gainful activity since his alleged disability onset date of October 1, 2009. (R:78) At step two, the
ALJ determined that Plaintiff had the following severe impairments: degenerative joint disease of
right knee; degenerative joint disease bilateral shoulder; tension headache; and, lumbosacral
spondylosis without myelopathy. (R:78) 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:79) Overall, the ALJ found that Plaintiff had the residual functional capacity
to perform light work that involved no more than occasional kneeling and crawling and that he
should avoid concentrated exposure to unprotected heights. (R:79) At step four, the ALJ found that
Plaintiff could perform his past relevant work as a construction foreman. (R:81) Next, the ALJ
found that Plaintiff had achieved at least a high school education and could communicate in English,
and because he was 52 years old on his alleged disability onset date, classified him as an individual
closely approaching advanced age. (R:81) At step five, the ALJ found that based on Plaintiff’s age,
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education, work experience, RFC finding and considering VE testimony, Plaintiff was capable of
making a successful adjustment to other work that existed in significant numbers in the national
economy. (R:81) 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:82-83)
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 a reduced level of light work. Specifically, he argues that the ALJ
failed to include all limitations relating to Plaintiff’s impairments. (Doc. 18:4) In this connection,
it is argued that the ALJ erroneously found that, despite his knee impairments, Plaintiff retained the
ability to perform a limited range of light work. Id. Plaintiff contends that Social Security Ruling
83-10 clarifies that the full range of light work requires standing or walking, off or on, for a total of
approximately 6 hours of an 8-hour workday. Id. Plaintiff urges that his testimony indicates that
he stopped working due to back and leg pain and that he has difficulty walking long distances and
standing due to constant knee pain. Id. Furthermore, the Medical Source Statement of Plaintiff’s
treating physician, Dr. Eric Sides, M.D., limited Plaintiff to less than the full range of sedentary
work, and limited him to two hours of standing and/or walking and a sit/stand option. (Doc. 18:5)
Plaintiff argues that his own testimony, coupled with the medical evidence of record, supports a
finding of disability. (Doc. 18:4-5) Plaintiff argues that if the ALJ had given Plaintiff’s treating
physician’s opinion the proper weight and properly accommodated all of Plaintiff’s limitations,
Plaintiff would have been found disabled pursuant to grid rule 201.l4, 20 C.F.R. 404, Subpt. P, App.
2. (Doc. 18:6-7) Plaintiff further argues that by using a faulty RFC finding, the Commissioner
tainted all the remaining steps in the sequential evaluation. (Doc. 18:7) Consequently, Plaintiff
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urges, the step four and alternative step five decisions are not supported by substantial evidence, and
remand is required. (Doc.18:6-7)
Residual functional capacity 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, 64 F.3d at 176. 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.
§§ 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, 64 F.3d at 174. 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
a reduced level of light work.

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A consultative physical examination of Plaintiff was performed on June 20, 2011, by Dr.
Augustine O. Eleje, M.D. (R:251-253) Dr. Eleje noted that Plaintiff had knee surgery in 2003, but,
otherwise, his treatment for this condition consisted of over the counter medications. (R:251-252)
Although x-rays showed some degenerative joint disease in the right knee and bilateral shoulders,
Plaintiff’s gait and station revealed normal arm swing and walking. (R:252-253) Dr. Eleje
concluded that Plaintiff had no limitations with sitting, standing, moving about, handling objects,
hearing, and speaking. (R:253) Dr. Eleje opined that Plaintiff had some limitations with lifting and
carrying. Id. Dr. Eleje discounted Plaintiff’s allegations of pain inasmuch as the alleged pain did
not correspond to findings on examination. (R:252) Dr. Eleje concluded that Plaintiff was unable
to hop on the right leg or squat fully, but that he could pick up a pen and button his clothes. (R:253)
The Court finds that Dr. Eleje’s objective examination findings and opinion are consistent with the
ALJ’s determination that Plaintiff could perform a reduced level of light work. (R:79, 253)
Thereafter, on July 18, 2011, DDS Physician Patty Rowley, M.D., completed a Physical
Residual Functional Capacity Assessment form based on her review of the record. (R:254-261) She
opined that Plaintiff could occasionally lift and/or carry 50 pounds, and could frequently lift and/or
carry 25 pounds. (R:255) She further concluded that Plaintiff could stand and/or walk for about six
hours in an eight-hour workday, and could sit for about six hours in an eight-hour workday. (R:255)
Subsequently, on August 30, 2011, DDS Physician Roberta Herman, M.D., reviewed the record and
agreed with Dr. Rowley’s assessment. (R:262) The Court finds that this evidence also supports the
ALJ’s RFC determination in this case.
The Court rejects the Government’s contention that the medical evidence demonstrates that
Dr. Sides, is not a treating physician inasmuch as his relationship with Plaintiff was not based on
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medical need for treatment or evaluation, but solely on a Plaintiff’s need to obtain a report in support
of his claim for disability.

(Doc. 19:6-8); 20 C.F.R. § 404.1502.

The record evidence

overwhelmingly refutes this contention. Plaintiff testified at the hearing before the ALJ that Dr.
Sides had treated him since 2000. (R:92) A Texas Workers’ Compensation Work Status Report
dated July 12, 2004, indicates that Dr. Sides was Plaintiff’s treating physician then. (R:174) A
medical record from another physician, Dr. Barbara Reeves, M.D., dated January 11, 2012, indicates
Plaintiff was being seen by Dr. Sides. (R:267) It is abundantly clear that Dr. Sides was in fact
treating Plaintiff and was not solely consulted by Plaintiff because of a need to obtain a report to
support his disability claim.
Plaintiff appears to contend that the ALJ erred by failing to discuss the six factors required
by 20 C.F.R. §§ 404.1527(d),416.927(d) in setting forth her reasoning for rejecting Dr. Sides’
opinion. (Doc.18:5-6) Plaintiff points to parts of the medical records contained in the administrative
record that substantiate Dr. Sides’ opinion.
A treating physician’s opinion regarding the nature and severity of a patient’s condition
should be accorded great weight in determining disability and will normally be given controlling
weight if it is (1) well-supported by medically acceptable clinical and laboratory diagnostic
techniques, and (2) not inconsistent with other substantial evidence. Newton v. Apfel, 209 F.3d 448,
455 (5th Cir. 2000). The ALJ may, however, give less weight, little weight, or no weight, to the
medical opinion of a treating physician when good cause is shown. Greenspan v. Shalala, 38 F.3d
232, 237 (5th Cir. 1994). Good cause may be established when a treating physician’s statements are
conclusory, unsupported, or otherwise incredible. Id. An ALJ should provide “good reasons” for
the weight given to a treating physician’s opinion. 20 C.F.R. § 404.1527(c)(2).
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The Fifth Circuit concluded that, “absent reliable medical evidence from a treating or
examining physician controverting the claimant’s treating specialist, an ALJ my reject the opinion
of the treating physician only if the ALJ performs a detailed analysis of the treating physician’s views
under the criteria set forth in 20 C.F.R. § 404.1527(d)(2).” Newton, 209 F.3d at 453. Specifically,
the regulation requires consideration of: 1) the physician’s length of treatment of the claimant; 2)
the physician’s frequency of examination; 3) the nature and extent of the treatment relationship; 4)
the support of the physician’s opinion afforded by the medical evidence of record; 5) the consistency
of the opinion with the record as a whole; and 6) the specialization of the treating physician. 20
C.F.R. § 404.1527(d)(2)-(6). Where such evidence does exist in the record, however, consideration
of the six factors is not necessary. See Bullock v. Astrue, 277 Fed. Appx. 325, 329 (5th Cir. 2007)
(per curiam) (not published) (consideration of six factors only necessary absent controverting
reliable medical evidence from a treating or examining physician).
In this case, the administrative record included reliable medical evidence from an examining
physician and non-examining physicians controverting Plaintiff’s treating physician’s opinion. Thus,
the ALJ was not required to perform a detailed analysis of the treating physician’s views under the
criteria set forth in 20 C.F.R. § 404.1527(d)(2). It is sufficient that the ALJ provided “good reasons”
for the weight given to Dr. Sides’ opinion. The ALJ, therefore, did not err, and Plaintiff is not
entitled to relief based on the ALJ’s failure to address the factors set forth in section 404.1527(d).
The medical opinion of treating physician Dr. Sides, which was not supported by
accompanying records or objective diagnostic tests, was given no weight by the ALJ. (R:80) The
ALJ concluded that Dr. Sides’ opinion, which limited Plaintiff to less than sedentary work, was not
supported by any records or notes from Dr. Sides and was inconsistent with the medical evidence of
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record. Id. The ALJ determined that the record reflected little to no actual treatment for the alleged
impairments. Id. This medical treatment was not consistent with what one would expect if Plaintiff
were truly disabled. Id. In so concluding, the ALJ provided good reasons for her failure to give Dr.
Sides’ opinion any weight.
Dr. Sides’ Medical Source Statement, which is dated February 27, 2012, is devoid of any
supporting evidence. (R:268-271) The ALJ was further justified in giving the treating physician’s
opinion no weight in this case because the opinion was an RFC checklist and the information therein
was brief and conclusory and not supported by medically acceptable clinical laboratory diagnostic
techniques or any evidence other than the Plaintiff’s subjective complaints. See Gilliam v. Califano,
620 F.2d 691, 693 (8th Cir. 1980) (RFC checklists “entitled to little weight in the evaluation of
disability”). As stated earlier, 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
are otherwise unsupported by the evidence. See Leggett, 67 F.3d at 565-66. Thus, the Court finds
that the ALJ’s determination is supported by the record.
The Court is mindful of the fact that there is record evidence which supports Plaintiff’s claim
for disability. The field office disability report completed face-to-face with Plaintiff on May 18, 2011,
indicates that Plaintiff was observed having difficulty sitting, standing and walking, and that it
appeared that he was having a hard time finding a comfortable position. (R:193) Plaintiff supplied
numerous medical records from San Vicente Clinic. (R:20-67) Yet, it is clear that such records do
not have a bearing on the ALJ’s April 27, 2012 decision inasmuch as those records all relate to 2013
and 2014 and are outside the relevant time period. The entries by Dr. Barbara Reeves refer to bilateral
knee pain and some limited range of motion but are devoid of substantiation by way of clinical or
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laboratory findings. (R:265); see Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1983) (statement must
be supported by clinical or laboratory findings). It is within the ALJ’s discretion to resolve the issue
of conflicting evidence. See Jones v. Heckler, 702 F.2d 616, 621 (5th Cir. 1983). 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–no substantial evidence will be found
only where there is a “conspicuous absence of credible choices” or “no contrary medical evidence.”
See Abshire, 848 F.2d at 640. The ALJ dutifully performed her task of resolving conflicts in the
medical evidence, and substantial evidence supports her RFC determination. See Masterson, 309
F.3d at 272.
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, 209 F.3d at 459. 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:91-96) On the other hand, some record evidence shows that Plaintiff could perform the
requirements of medium work. (R:80) 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 entirely credible. Id. After taking into account the medical
evidence, and factoring in Plaintiff’s testimony, the ALJ concluded that Plaintiff could perform a
limited range of light work. Id. This led to the ALJ’s step four conclusion that Plaintiff could
perform his past relevant work as a construction foreman. (R:81) This conclusion was supported by
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the VE’s testimony at the hearing. (R:97) Such a decision was within the ALJ’s discretion and is
supported by the evidence.
As an alternative step five conclusion, 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 could perform. (R:82) The VE testified
that an individual with Plaintiff’s age, education, work experience, and RFC would be able to perform
the job requirements of an assembler, a cashier, and a video rental clerk. Id.; see Dictionary of
Occupational Titles (“DOT”) §§ 706.684-022; 211.462-010; 299.677-010. The ALJ found that
pursuant to SSR 00-4p, the VE’s testimony was consistent with the information contained in the
DOT. (R:82) 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. See Bowling v.
Shalala, 36 F.3d 431, 435-436 (5th Cir. 1994).

The Court finds that the ALJ’s fifth step

determination is also supported by substantial evidence and that the ALJ properly considered the four
elements in arriving at this determination. See Martinez, 64 F.3d at 174.
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 a reduced level of light 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
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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 rule 201.14 and found Plaintiff
disabled. (Doc. 18:6-7) Grid rule 201.14 directs a finding of disabled for an individual closely
approaching advanced age with an RFC for sedentary work, inter alia. Here, the ALJ found that
Plaintiff retained the RFC for a reduced level of light work. Hence, the ALJ’s findings of fact do not
coincide with the corresponding criteria of grid rule 201.14; thus, the rule does not apply, and does
not direct a conclusion of disabled or not disabled. Plaintiff is not entitled to relief on this basis.
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, 1049 (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 June 16, 2015.

_____________________________________
ROBERT F. CASTANEDA
UNITED STATES MAGISTRATE JUDGE

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