Balandran v. Colvin
MEMORANDUM OPINION AND ORDER. Signed by Judge Miguel A. Torres. (mc4)
iN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION,
MEMORANDUM OPINION AND ORDER
This is a civil action seeking judicial review of an administrative decision. Plaintiff appeals
the decision of the 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.
636(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 April 1, 2011, Plaintiff, age 64 with previous work experience as a carpenter, protectively
filed applications for DIB and SSI in which he alleged disability since January
2009 due to back
problems, "arms and legs,"and high cholesterol. (R. 146-158, 160, 161).! After his applications
were denied initially and again upon reconsideration, Plaintiffrequested a hearing. (R. 57-62,68-71,
72-73, 77-78). On October 12, 2012, Plaintiff appeared with his attorney for a hearing before an
Administrative Law Judge ("AL'). (R. 29-46). His applications for benefits were denied by the
AU's written decision issued on November 28, 2012. (R. 17-22). On February 26, 2014, the
Appeals Council affirmed the
AU's decision to deny benefits, thereby making it the final decision
of the Commissioner. (R. 1-5).
II. ISSUE PRESENTED
Plaintiff contends the AU's residual functional capacity2 determination is not supported by
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.3 d 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
'Reference to the record of administrative proceedings is designated by "(R. [page
Residual functional capacity ("RFC") is defined in the regulations as "the most you can
still do despite your limitations." 20 C.F.R. § 404.1545, 416.965; SSR 96-8p, 1996 WL 374184
(July 2, 1996).
credible choices" or "no contrary medical evidence." Abshire v. Bowen, 848 F.2d 638, 640 (5th Cir.
In determining whether there is substantial evidence to support the findings of the
Commissioner, the court must carefully examine the entire record, but may not reweigh the evidence
or try the issues de novo. Newton
209 F.3d 448,452 (5th Cir. 2000); Haywoodv. Sullivan,
888 F.2d 1463, 1466 (5th Cir. 1989). The court may not substitute its own judgment "even
evidence preponderates against the [Commissioner's] decision" because substantial evidence is less
than a preponderance. Harrell
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,
360(5th Cir. 1993). If the Commissioner's findings are supported by substantial evidence, they are
conclusive and must be affirmed. Id.
B. Evaluation Process and Burden
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.
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 severe medically determinable
physical or mental impairment or combination of impairments; (3) whether the claimant's
impairment or combination of impairments meets or equals the severity of an impairment(s) listed
in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) whether the impairment or combination of
impairments prevents the claimant from performing past relevant work; and, (5) whether the
impairment or combination of impairments prevents the claimant from doing any other work. 20
404.1520, 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
the Commissioner to show that there is other substantial gainful employment available that the
claimant is capable of performing. Anderson
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.
In her written decision, the AU determined as a threshold matter that Plaintiff met the
insured status requirements of the Social Security Act through March 31, 2012. (R. 19). The AU
found Plaintiff had not engaged in substantial gainful activity since January 1, 2009, the alleged
onset date. Id. At the next step, the AU determined Plaintiff has severe impairments consisting of
mild C5-6 disc degeneration, hyperlipidemia (controlled), erectile dysfunction, gastroesophageal
reflux disease, and arthritis. Id. The AU further determined Plaintifrs impairments of depression
and thrombocytopenia are non-severe impairments. 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,
1. (R. 19-20).
Before reaching step four, the AU found Plaintiff retains the RFC to
perform the full range of medium work.3 (R. 20-2 1). Based on Plaintiff's RFC, the AU found he
is able to perform his past relevant work as a carpenter. (R. 22). Therefore, the AU determined
Plaintiff was not disabled. Id.
of Plaintiff's Claim
Plaintiff contends the AU's RFC finding for the full range of medium work is not supported
by substantial evidence because the AU failed to properly consider or include additional limitations
based on Plaintiff's pain. Plaintiff argues his subjective complaints of pain and limitations, coupled
with radiological findings, treatment records, and the consultative examiner's assessment, support
a conclusion that his functional abilities are significantly more limited than found by the AU in her
RFC assessment. Plaintiff further posits that had the AU properly accommodated his conditions,
she likely would have found him able to perform a limited range of light or sedentary work which
would have directed a conclusion that he was disabled under the Medical-Vocational Guidelines
codified at 20 C.F.R. Part 404, Subpart P, Appendix 2.
RFC is defined as the most an individual can still do despite his limitations. 20 C.F.R.
404.1545(a); 416.945(a); SSR 96-8p, 1996 WL 374184 (July 2, 1996). The responsibility to
determine the claimant's RFC belongs to the AU.
67 F.3d at 557.
In making this
determination, the AU must consider all the record evidence and determine Plaintiff's abilities
despite his physical and mental limitations. 20 C.F.R.
404.1545, 416.945. The AU must
consider the limiting effects of Plaintiff's impairments, even those that are non-severe, and any
20 C.F.R. § 404.1545, 416.945, 404.1529, 416.929; SSR 96-8p. The
Medium work involves lifting more than 50 pounds at a time with frequent lifting or
carrying 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).
relative weight to be given to the evidence is within the
Massanari, 269 F.3d 520, 523 n.1 (5th Cir. 2001) (citing Johnson v. Bowen, 864 F.2d 340, 347 (5th
Cir. 1988). The AU 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).
In support of his position, Plaintiff cites to treatment notes which he contends show that he
received treatment for osteoarthritis4 on multiple occasions from 2008 through 201 2. A review of
the cited records show Plaintiff's history and assessment of osteoarthritis ("OA") was noted by the
treatment provider, typically by checking a box on a pre-printed form. Plaintiff does not cite to any
particular treatment for OA that he received during this period, and the records do not indicate
Plaintiff was being treated for this condition with medication, pain relievers, or physical therapy.
Importantly, Plaintiff does not point to any limitations due to OA that were imposed by any treating
Plaintiff also relies on a January 2010 x-ray that showed
and spondylosis7 of the
thoracic spine, and a May 2011 x-ray that showed C5-C6 disc degeneration and a small inferior
degenerative spur. (R. 301,498). The record shows Plaintiff underwent chest x-rays on January 20,
Osteoarthritis is a noninflammatory degenerative joint disease seen mainly in older
persons. DORLAND'S ILLUS. MEDICAL DICTIONARY 1286 (29th ed. 2000).
Without further elaboration, Plaintiff cites to 35 pages of the administrative record:
221, 223, 229, 233, 235, 236, 239, 245, 246, 247, 250, 251, 255, 256, 257, 258, 260, 261, 325,
328, 331, 422, 423, 430, 531, 532, 550, 564, 565, 658, 662, 665, 666, 669, 670.
Scoliosis is an appreciable lateral deviation in the normally straight vertical line of the
spine. D0RLAND'S ILLUS. MEDICAL DICTIONARY 1612 (29th ed. 2000).
Spondylosis is a general term for degenerative spinal changes due to osteoarthritis.
(29th ed. 2000).
DORLAND'S ILLUS. MEDICAL DICTIONARY 1684
2010 related to a diagnosis of polycythemia.8 (R. 301). The report of results shows the x-rays
revealed normal cardiac size and configuration without evidence of left heart failure and clear lungs
without infiltrates, pleural effusion, or pneumothorax. Id.
The report noted "[s]coliosis and
spondylosis thoracic spine." Id. The impression was no cardiac abnormalities. Id.
On May 25, 2011, Plaintiff underwent x-rays of his cervical spine ordered by Mauricio
Jimenez, M.D., the consultative examiner, to evaluate Plaintiff's complaints of back pain. (R. 498).
The report indicates no fracture or subluxation was seen. Id. The vertebral bodies were of normal
height, and the soft tissues were normal. Id. A small anterior/inferior spur was seen at C6, and a
small anterior longitudinal ligament calcification was seen at C5-C6. Id. Mild narrowing of the C5C6 intervertebral disc space was noted. Id. The conclusion was mild C5-C6 disc degeneration and
a small C6 anterior inferior degenerative spur. Id.
Plaintiff further relies on the May 24, 2011 assessment of the consultative examiner of
chronic upper back pain, cervical back pain, thoracic back pain, bilateral arm pain at the elbow level,
and bilateral knee pain. (R. 502). Although the impression was of pain in the stated areas, Dr.
Jimenez' consultative evaluation of Plaintiffs allegations of disability due to back pain, arm pain,
and leg problems revealed no major functional limitations. (R. 500-502). Upon examination,
Plaintiff had no edema, atrophy, or deformities in his legs. (R. 501). His deep tendon reflexes and
gait were normal. Id. He was able to squat, heel walk and tiptoe walk normally. Id. His grip was
normal in both hands. Id. He was able to reach and pick up. Id. Extension and flexion of both
wrists showed no abnormalities.
Examination of the elbows revealed no atrophies or
Polycythemia is an increase in the total red cell mass of the blood. DORLAND'S ILLUS.
MEDICAL DICTIONARY 1429 (29th ed. 2000).
deformities. (R. 502). Forward flexion of the spine was beyond 80 degrees. Extension and lateral
movements of the spine were normal. There was no atrophy, no deformity, and no major limitation
of movement in the cervical spine. Id. Normal range of motion of the shoulders was noted. Id.
The knees were without crepitus or deformity. Id. The range of motion in both knees was 140
degrees, with pain on stretching of the ligaments. Id. In sum, Dr. Jimenez' medical findings do not
coincide with Plaintiff's subjective complaints of extreme functional limitations due to pain.
The AU discussed in detail Plaintiff's "completely normal" physical examination by Chinwe
Nduka, M.D. on September 14,2012. (R. 20-2 1, 690-692). Dr. Nduka's notes indicate Plaintiff was
a new patient who was seeking a new primary care physician. (R. 690). As noted by the AU, Dr.
Nduka reported Plaintiff appeared well, was well nourished, and in no apparent distress. (R. 21,
691). Plaintiff reported no musculoskeletal problems. (R. 690).
Upon examination, Plaintiff's neck, back, and extremities were normal. Indeed, as to
Plaintiff's musculoskeletal presentation, Dr. Nduka reported,"[n]o misalignment, asymmetry,
crepitation, defects, tenderness, masses, effusion, decreased range of motion, instability, atrophy or
abnormal strength or tone in the head, neck, spine, ribs, pelvis, or extremities." (R. 691). Plaintiff
was diagnosed with external hemorrhoids, controlled hyperlipidemia, and right ear wax. Id. Clearly,
Dr. Nduka's treatment notes support the
AU's observation that "the only indication of possible
mechanical issues is the mild C5-C6 disc degeneration." (R. 21).
Finally, Plaintiff also relies on subjective evidence consisting of his testimony at the hearing
that he is in constant pain, can only walk a block, cannot stand for more than a half an hour, and
cannot lift anything heavy, (R. 35-38); his reports of severe pain to his legs, neck, and arms; his
inability to perform everyday tasks; his inability to lift heavy items or to stand or stay in one position
for a long period of time; and, his inability to walk for more than a block before needing to rest. (R.
169, 174). Although Plaintiff testified he has extreme functional limitations and experiences
constant pain in his body at a level 10, on a pain scale of 1 to 10, the objective findings do not
corroborate his subjective complaints. See Houston v. Sullivan, 895 F.2d 1012, 1016(5th Cir. 1989)
(claimant's subjective complaints must be corroborated, at least in part, by objective evidence). As
noted by the AU, Plaintiff takes only over the counter medications (Tylenol and BenGay) for pain
relief, and there is no indication Plaintiff was ever prescribed any medications for pain control.
Despite his claims of disabling pain, Plaintiff testified he had not seen a doctor about the pain in his
back, legs, and hands. (R. 38). It is well-established that the AU is not precluded from relying upon
lack of treatment as an indication of non-disability. Villa v. Sullivan, 895 F.2d 1019, 1024(5th Cir.
The AU reviewed the medical evidence and considered Plaintiff's subjective complaints of
pain. She gave substantial weight to the RFC assessment by Randal Reid, M.D., a state agency
(R. 21, 513-520). On August 4, 2011, Dr. Reid determined Plaintiff retained
the RFC for a full range of medium work. In support of his conclusions, he cited to, inter alia, the
findings at the consultative examination by Dr. Jimenez on May 24, 2011. Dr. Reid did not find
Plaintiff to be wholly credible as his alleged limitations were not fully supported by the evidence of
record. (R. 520). The AU concurred with this credibility assessment. (R. 21). The AU properly
found Dr. Reid's RFC
to be entirely consistent with the evidence and the testimony
State agency medical consultants are experts in disability evaluations, and, while not
binding, the AU must consider their opinions. 20 C.F.R. § 404.1527(e)(2)(i), 416.927(e)(2)(i).
Significantly, Dr. Reid's findings were affirmed on September 23, 2011 by James
Wright, M.D. (R. 544).
adduced at the hearing. Id.
It is the task
of the AU to weigh the evidence. Chambliss, 269 F.3d at 523 n.1. 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 ofrecord
that, while Plaintiff's medically determinable impairments reasonably could be expected to cause
the alleged symptoms, his complaints were not entirely credible. (R. 21). 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
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 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 medical records, the opinion of the state agency medical consultant, and the testimony of the VE
provide substantial evidence for the AU' s determination that Plaintiff is not disabled because he can
perform his past relevant work as a carpenter. As substantial evidence supports the AU's decision,
it must be affirmed. Speliman,
F.3d at 360.
It is therefore ORDERED that the decision
of the Commissioner be, and it is hereby,
SIGNED and ENTERED this
day of September, 2015.
MIGUEL A. TO
UNITED STATES MAGISTRATE JUDGE
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