Romero v. Colvin
Filing
25
MEMORANDUM OPINION AND ORDER. Signed by Judge Leon Schydlower. (mg2)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
I
2016
FELIPE GUADALUPE ROMERO,
Plaintiff,
§
§
§
§
§
§
JUN -S
D
PH
I:
13
§
v.
L E
CAROLYN W. COL YIN,
Acting Commissioner of Social Security
Administration,
Defendant.
§
"
L)STRiCTFTt
NO. EP-14-CV-O292-LS
eTTT
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). Pursuant to 28
u.s.c.
§ 636(c) and Appendix C to the Local
Court Rules for the Western District of Texas, the case was transferred to a United States
Magistrate Judge to conduct any and all further proceedings in the cause including trial and entry
of judgment. [ECF No. 17]
Plaintiff appeals from the decision of the commissioner of the Social Security
Administration (commissioner) denying his applications for disability insurance benefits ("DIB")
and for supplemental security income ("SSI") under Titles II and XVI, respectively, of the Social
Security Act. For the reasons set forth below, this Court orders that the Commissioner's decision
be AFFIRMED.
I. BACKGROUND
Plaintiff was born in December 1962, completed a
10th
grade education, and is able to
communicate in English. (R: 18, 31, 149)' He has experience working as a kitchen helper and short
Reference to the Administrative Record, contained in Docket Entry Number 15, is designated by
an "R" followed by the page number(s).
1
-.
order cook. (R:51, 155) Plaintiff discontinued working in November 2011, due to limitations
caused by his medical conditions. (R: 11, 37, 150)
II. ISSUES
Plaintiff presents the following issues for review:
Whether the final decision of the Commissioner denying benefits is supported by
substantial evidence; and
1.
2. Whether the Commissioner applied an incorrect legal standard in determining that
Plaintiff was not disabled.
Plaintiff contends that the Administrative Law Judge ("AU") failed to accommodate
Plaintiff's cervical spine and left shoulder impairments in determining his residual functional
capacity ("RFC"). He argues that by failing to properly consider these impairments in determining
his RFC, the AU failed to meet her burden at step
Consequently, Plaintiff asserts that the
AU'S decision
5
of the sequential disability analysis.
is not supported by substantial evidence
and results from legal error. He urges that the case be reversed, or in the alternative, remanded for
further administrative proceedings.
III. PROCEDURAL HISTORY
In December 2011, Plaintiff filed applications for disability insurance benefits and
supplemental security income with an alleged onset date of November 20, 2011. (R:9, 117, 122)
His applications were denied initially and on reconsideration. (R:9, 56-59) Upon Plaintiffs written
request for a hearing, an administrative hearing was held on January 9, 2013. (R: 9, 27-55, 77-79)
Administrative Law Judge ("AU") Michelle Lindsay issued a decision on April 11, 2013, finding
Plaintiff not disabled and denying benefits. (R:9-20) The Appeals Council denied Plaintiffs
request for review on June 9, 2014. (R:1-4)
2
Plaintiff filed the instant cause on July 31, 2014. [ECF No.
1]
The Court granted his motion
to proceed in forma pauperis, and ordered the complaint filed. [ECF Nos. 4, 5] Defendant filed an
answer and transcript of the administrative proceedings on October 16, 2014. [ECF Nos. 13, 15]
Plaintiff filed a brief in support of his claims on January 14, 2015. [ECF No. 21] On February 13,
2015, Defendant filed a brief in support of the Commissioner's decision denying benefits. [ECF
No. 22] On December 8, 2015, the case was transferred to United States Magistrate Judge Leon
Schydlower. [ECF No. 23]
IV. DISCUSSION
A. STANDARD OF REVIEW
The court's review of the Commissioner's decision is limited to two inquiries: whether the
decision is supported by substantial evidence on the record as a whole; and whether the
(5th
Cir.
Commissioner applied the proper legal standard. See Perez v. Barnhart, 415 F.3d 457, 461
2005); Masterson
v.
Barnhart, 309 F.3d 267, 272
(5th
Cir. 2002). 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.
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. Id. Conflicts in the evidence are for the
Commissioner and not for the courts to resolve. Perez, 415 F.3d at 461.
B. EVALUATION PROCESS
A claimant bears the burden of proving disability, which is defined as any medically
determinable physical or mental impairment lasting at least 12 months that prevents the claimant
3
from engaging in substantial gainful activity. See 42 U.S.C. § 423(d)(1), 1382c(a)(3)(A); 20
c.F.R. § 404.1505(a), 416.905(a); Masterson, 309 F.3d at 271. The AU 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 meets or equals the severity of an
impairment listed in 20 c.F.R. Part 404, Subpart P, 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, 416.920.
The claimant bears the burden of proof at the first four steps of the analysis. Leggett
v.
(5th
Cir. 1995). If the claimant can perform his past relevant work, he is
Chater, 67 F.3d 558, 564
not disabled. 20 C.F.R. § 404.1520, 416.920. However, if the claimant has shown he cannot
perform his previous work, the burden shifts to the Commissioner to show that there is other work
(5th
Cir. 1999). If the
available that the claimant can perform. Crowley v. Apfel, 197 F.3d. 194, 198
Commissioner establishes other gainful employment, the burden shifts back to the claimant to
prove he is unable to perform the alternative work. Id.
The five-step inquiry terminates if the Commissioner finds at any step that the claimant is
or is not disabled. Leggett, 67 F.3d at 564. "The Commissioner's decision is granted great
deference and will not be disturbed unless the reviewing court cannot find substantial evidence in
the record to support the Commissioner's decision or finds that the Commissioner made an error of
law." Id.
The mere presence of an impairment is not disabling per
Se.
See Hames
v.
Heckler, 707
(Sth
Cir. 1983). Rather, it is Plaintiff's burden to establish disability and to provide or
F.2d 162, 165
identify medical and other evidence of his impairments and how they affect his ability to work.
See
20 C.F.R. § 404.1512(c), 416.912(c). His own subjective complaints, without objective medical
evidence of record, are insufficient to establish disability.
See
20 C.F.R. § 404.1508, 404.1528,
404.1529, 416.908, 416.928, 416.929.
C. THE AU'S DECISION
In the present case, the AU found that Plaintiff had not engaged in substantial gainful
(R: 11) At step 2 of the analysis, the
activity since November 20, 2011, the alleged onset
date.2
AU determined that Plaintiff had severe impairments
of degenerative disc disease of the cervical
spine, mild facet artbropathy of the lumbar spine, osteoarthritis of the left shoulder with rotator
cuff tendinosis and full thickness tear of the supraspinatus, a mood disorder, borderline intellectual
functioning, a history of alcohol dependence, and a history of cannabis dependence. (R:11) At step
3, however, the AU determined that Plaintiff did not have an impairment that met or medically
equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix
1.
(R:11)
The AU next determined that Plaintiff retained the functional capacity to perform a limited
range of light work as defined in 20 C.F.R. § 404.1567(b) and 416.967(b), with the following
restrictions: he could lift and/or carry and push and/or pull 20 pounds occasionally and 10 pounds
frequently; he could sit for a total of 6 hours in an 8-hour workday; he could stand and/or walk for
a total of 6 hours in an 8-hour workday; he could never climb ladders, ropes, or scaffolds; he could
occasionally crawl; he could understand, remember, and carry out simple instructions; he could
2
Plaintiff was found to meet the insured status requirements of the Social Security Act through
September30, 2016. (R:ll)
maintain attention and concentration to perform simple tasks for two hours at a time without
requiring redirection to task; and he required work involving no more than occasional changes in
the routine work setting. (R:13) See 20 C.F.R. § 404.1567(b),
416.967(b).3
At step 4 of the analysis, the AU found that Plaintiff could not perform his past relevant
work of kitchen helper or short order cook because the job requirements exceeded the limitations
of his RFC. (R: 18) Based on Plaintiff's age, education, work experience, and RFC, and relying on
vocational expert ("yE") testimony, the AU found that other jobs existed in significant numbers
in the national economy which Plaintiff could perform, specifically an assembly worker, a cannery
worker, and a washer/waxer of agricultural products.4 (R: 18, 19) The AU concluded that Plaintiff
was not disabled from his alleged onset date through the date of the AU's decision. (R:20)
D. SUBSTANTIAL EVIDENCE SUPPORTS THE
AU'S RFC DETERMINATION
Plaintiff contends that the AU' s RFC determination is not supported by substantial
evidence because she failed to accommodate Plaintiff's cervical spine impairment and left
shoulder impairment. He alleges that these impairments significantly limit his ability to reach and
handle objects and that the AU ignored objective evidence of such impairments. Plaintiff argues
that by failing to accommodate these impairments in the RFC, the AU failed to meet her burden at
step 5 of the analysis and that her disability decision is not supported by substantial evidence.
An individual's RFC is the most the individual can still do despite his limitations. 20
C.F.R. § 404.1545, 416.945. The responsibility to determine a claimant's RFC belongs to the
AL
Ripley
v.
Chater, 67 F.3d 552, 557 (5 Cir. 1995). In making this determination, the AU
"Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds." 20 C.F.R. § 404.1567(b), 4 16.967(b).
See U.S. Dep't of Labor, Dictionary of Occupational Titles § 529.685-25 8 (Washer/Waxer of
Agricultural Products), 529.686-0 14 (Cannery Worker), 706.684-022 (Assembly Worker).
must consider all the record evidence and determine the claimant's abilities despite his physical
and mental limitations. Perez, 415 F.3d at 461-62. The AU 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, 416.929, 416.945. The relative weight to be given the evidence is within
the AU's discretion.
Chambliss
v.
Massanari,
(5th
Cir. 2001).
269 F.3d 520, 523 n.1
Review of the record demonstrates that substantial evidence supports the AU' s RFC
determination. A consultative examination was conducted on January 23, 2012, by Dr. Augustine
0. Eleje. (R:206-08) During the musculoskeletal evaluation, Plaintiff exhibited a full range of
motion, symmetric strength, normal muscle tone, no atrophy, and no abnormal movements.
(R:207) He also had full range of motion of his extremities. He had a normal gait and was
ambulatory without assistance. He was able to hop, squat, pick up a pen, and button his clothes. A
cervical spine x-ray showed discogenic degenerative changes at the C5-C6 level. (R:205) Dr. Eleje
assessed Plaintiff with cervical spondylosis and concluded that Plaintiff had limitations with
lifting and carrying but no limitations with sitting, standing, handling objects, moving about,
hearing, or speaking. (R:208) The physician noted that Plaintiffs alleged pain did not correspond
to the findings on examination. (R:207) The AU gave considerable weight to Dr. Eleje's opinion,
finding that it was consistent with the evidence as a whole.
A Physical Residual Functional Capacity assessment was completed by state agency
medical consultant Dr. Roberta Herman on January 30, 2012. (R:213-20) Upon review of the
medical records, Dr. Herman determined that Plaintiff could lift or carry up to 50 pounds
occasionally and 25 pounds frequently, could sit, stand, and walk a total of about 6 hours in an
8-hour workday, and could push or pull up to the same weight he could lift and carry. (R:2l4) She
7
found no other limitations. Dr. Herman concluded that the medical evidence of record did not fully
support Plaintiff's alleged limitations. (R:220)
Treatment records during the relevant time period from Plaintiff's treating physician, Dr.
Jose A. Barahona, show essentially normal examinations with tenderness in Plaintiff's extremities
and in his back. (R:275, 277, 281, 284, 358) Records from March 2012 through February 2013
reflect that Plaintiff's neck was reported as normal throughout. (R:275, 277, 281, 284, 358) The
treatment notes further reflect that Plaintiff reported pain level ratings of zero or "no pain" on two
of the four visits and ratings of 3 and 4 on a scale of 0 to 10, with 10 being the worst, on the other
two visits. (R:275, 277, 281, 358) Plaintiff indicated "no pain" at the most recent of the visits in
February 2013. (R:358)
Dr. Barahona completed a medical source statement on May 29, 2012. (R:272-74) He
diagnosed Plaintiff with cervicalgia (neck pain) and neuropathy.5 He concluded that Plaintiff was
able to sit, stand, walk, and/or perform keyboarding a total of two hours in an 8-hour workday. He
further determined that Plaintiff could lift or carry objects weighing no more than 10 pounds for
more than 10 minutes per day. However, the severity of these alleged limitations is inconsistent
with and unsupported by Dr. Barahona's own treatment records and the record as a whole. Thus,
the AU properly gave Dr. Barahona's opinion little weight, finding it inconsistent with the record
and not supported by objective findings.
In a Pain Management Initial Evaluation Assessment dated July 17, 2012, the examining
physician at the Texas Tech University Health Sciences Center diagnosed Plaintiff with chronic
Neuropathy indicates a functional disturbance or pathological change in the peripheral nervous
(29th
ed., 2000).
system. See Dorland 's Illustrated Medical Dictionary, 1212
pain syndrome, brachial
radiculitis,6
and left shoulder pain, albeit without a rotator cuff tear.
(R:3 31-34) Plaintiff complained of neck and left shoulder pain and exhibited a limited range of
motion in his left shoulder. (R:331, 333)
Diagnostic evidence includes a radiology report dated February 16, 2012, indicating that
Plaintiff's left shoulder had degenerative changes in the acromio clavicular joint. (R:291)
However, the glenohumeral joint was normal and no soft tissue abnormalities were present. An
August 6, 2012, MRI report of the left shoulder revealed rotator cuff tendinosis with a
full-thickness tear. (R:3 15-16) Diagnostic test results pertaining to Plaintiff's cervical spine
include an x-ray report dated January 25, 2012, showing no significant acute bone abnormalities,
but showing advanced degenerative changes at the C5-C6 intervertebral disc. (R:330) An MRI
examination of the cervical spine dated August 4, 2012, revealed multifactorial degenerative
changes and retrolisthesis7 at the C5-C6 level and mild to moderate degenerative disc changes at
the other levels. (R:314-15) A CT examination report of the cervical spine dated December 23,
2012, showed moderate to severe degenerative changes of the cervical spine with mild
retrolisthesis of C5 on C6. (R:303) The report further indicated that there were no acute
abnormalities of the cervical spine. (R:303)
In considering the evidence, the AU concluded that the record as a whole did not support
the severity of Plaintiff's alleged limitations and that Plaintiff had exaggerated his symptoms and
functional limitations. Notably, the AU considered Dr. Elej e' s report stating that Plaintiff arrived
Radiculitus is the inflammation of the root of the spinal nerve, especially that portion of the root
which lies between the spinal cord and the intervertebral canal. See Dorland 's Illustrated Medical
Dictionary, at 1511. Brachial means pertaining to the arm. See id. at 236.
6
Retrolisthesis, or retrospondylolisthesis, is the posterior displacement of one vertebral body on
the subjacent body. See Dorland 's Illustrated Medical Dictionary, at 1568, 1569.
at his examination with "practically every major joint in his body wrapped." Dr. Eleje further
stated, however, that Plaintiff was carrying "a large and obviously heavy back pack to the
appointment." (R:207) Dr. Eleje observed that Plaintiff was ambulatory without assistance and
had a normal gait. He also found that Plaintiff had a full range of motion in his extremities and had
intrinsic hand strength of 5/5. (R:207, 208)
In a consultative psychological examination report dated January 31, 2012, James Schutte
Ph.D. stated that Plaintiff arrived at the office appointment wearing a back brace, right and left
wrist braces, and a leg brace. (R:223) However, he observed Plaintiff to ambulate without
difficulty at the office and stated that Plaintiff reported walking to the appointment. (R:223, 225)
Further, Plaintiff reported to Dr. Schutte that he could drive, take a bus, shop, handle money, and
attend to his personal needs. (R:225)
The AU noted that Plaintiff appeared at the hearing wearing braces on his wrists, elbows,
knees, and ankles. (R:17, 4 1-42) The AU noted that Plaintiff was also wearing a back brace and
walking with a cane, but concluded that there was no evidence to indicate that any of the devices
were medically necessary. (R: 17)
After reviewing the record and making credibility determinations, the AU determined that
a limited range of light work sufficiently accommodated Plaintiffs shoulder and cervical spine
impairments. A factfinder' s evaluation of the credibility of subjective complaints is entitled to
judicial deference if supported by substantial evidence.
(5th
Cir. 1990). Here, the
See Villa v.
Sullivan, 895 F.2d 1019, 1024
AU's credibility determinations are supported by the objective medical
evidence, the numerous inconsistencies in Plaintiffs subjective complaints, and the record as a
whole. The Court therefore finds that substantial evidence supports the AU's RFC determination.
10
Plaintiff next asserts that the AU' s step
5
determination that Plaintiff could perform other
work is not supported by substantial evidence because of an allegedly faulty RFC finding.
However, the Court has concluded that the RFC determination is properly supported by the record.
The AU submitted a hypothetical question to the VE incorporating those limitations recognized
by the AU in her RFC determination. (R:51-52) See Bowling v.
Shalala,
(5th
Cir.
36 F.3d 431, 436
1994) (hypotheticals to the VE must reasonably incorporate all disabilities recognized by the AU
in the RFC assessment and claimant must be given an opportunity to correct any deficiencies
before the AU can rely upon VE testimony). In response, the VE testified that Plaintiff could not
perform his past relevant work, but that other work existed which Plaintiff could perform.
(R: 52-53)
The AU presented a second hypothetical question to the VE and included additional
limitations to lifting no more than
8
pounds occasionally and performing only occasional forward
and overhead reaching. (R:53-54) The VE testified that work would not be available in significant
numbers. (R:54) However, the AU did not rely upon the VE's testimony concerning the second
hypothetical because she found that the evidence, including Plaintiff's demeanor at the hearing,
did not support a limitation to occasional reaching overhead or forward. (R: 19) See
Villa,
895 F.2d
at 1024 (AU could consider claimant's hearing demeanor as one of several factors in making
credibility determinations). Plaintiff's counsel had the opportunity to cross-examine the yE, but
declined to do so. Therefore, the VE's testimony that other work existed provides substantial
evidence for the
AU' s step 5 determination. The burden then became Plaintiff's to show that he
could not perform the alternative work, which he failed to do. Consequently, his contention is
without merit.
11
V. CONCLUSION
Accordingly, based upon a review of the evidence, the Court finds that the AU's decision
comports with relevant legal standards and is supported by substantial evidence. Therefore,
Plaintiffs assertions of error are without merit. 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
(
,
2016.
LEON SCHYDLOWER
UNITED STATES MAGISTRATE JUDGE
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