Martinez v. Colvin
Filing
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MEMORANDUM OPINION AND ORDER. Signed by Judge Robert F. Castaneda. (bg2)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
ROSA MARTINEZ,
Plaintiff,
v.
CAROLYN W. COLVIN,1
Acting Commissioner of Social Security
Administration,
Defendant.
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CIVIL NO. 3-14-CV-310-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 her application for disability insurance benefits (“DIB”) under Title II
of the Social Security Act. For the reasons set forth below, this Court orders that the Commissioner’s
decision be AFFIRMED.
PROCEDURAL HISTORY
On August 24, 2011, Plaintiff filed an application for DIB, alleging a disability onset date of
August 5, 2011. (R:122) Her application was denied initially and on reconsideration. (R:66, 67)
Plaintiff filed a request for a hearing, which was conducted on March 20, 2013. (R:45-65, 80-81)
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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).
The Administrative Law Judge (“ALJ”) issued a decision on May 8, 2013, denying benefits. (R:3140) The Appeals Council denied review. (R:1-7)
ISSUES
Plaintiff presents the following issues for review:
1.
Whether the ALJ’s residual functional capacity finding (“RFC”) is supported by the
evidence.
2.
Whether the ALJ’s step five finding that Plaintiff can perform other work that exists
in significant numbers in the national economy is supported by substantial evidence.
3.
Whether the case should be remanded to the Commissioner for the purpose of
awarding benefits or for the purpose of further administrative proceedings.
Plaintiff contends that the ALJ’s final determination of non-disability is not supported by
substantial evidence. (Doc. 19:10) She contends that the ALJ should have applied the MedicalVocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2 (“grids”) rule applying to
sedentary work at step five of the sequential evaluation, i.e., Rule 201.17, which would have directed
a conclusion that Plaintiff is disabled. (Doc. 19:6) Consequently, Plaintiff seeks a reversal and
remand for an award of benefits or for further administrative proceedings. (Doc. 19:10) Defendant
contends that substantial evidence supports the ALJ’s findings and conclusions, that proper legal
standards were applied, and that a remand for an award of benefits or further administrative
proceedings is unwarranted. (Doc. 20:3-10)
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,
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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
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 the grids. Rivers v.
Schweiker, 684 F.2d 1144, 1155 (5th Cir. 1982). If the Commissioner adequately points to potential
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alternative employment, the burden then shifts back to the claimant to prove that she is unable to
perform the alternative work. Anderson v. Sullivan, 887 F.2d at 632.
In the present case, the ALJ found that Plaintiff had severe impairments of: diabetes mellitus;
rheumatoid arthritis; and, obesity. (R:34) The ALJ determined that none of Plaintiff’s impairments,
either alone or in combination, met or medically equaled the listed impairments. After considering
the entire record, he determined that Plaintiff had the residual functional capacity to perform light
work, except that she was limited to at least 2 hours of standing/walking in an 8 hour workday, with
the additional nonexertional limitations of only frequent pushing/pulling with the upper and lower
extremities either singularly or in tandem, occasional stooping, no climbing, balancing, kneeling,
crouching, or crawling, and avoidance of temperature extremes, dust, work hazards, and fumes,
odors, chemicals and gases. (R:35) Based on the foregoing, the ALJ found that Plaintiff could
perform a reduced range of light work. He determined that on the basis of the testimony of the VE,
and considering Plaintiff’s age, education, work experience, and residual functional capacity,
Plaintiff was capable of making a successful adjustment to other work that existed in significant
numbers in the national economy. (R:39) A finding of “not disabled” was therefore appropriate.
(R:39)
III. The ALJ’s Determination of Plaintiff’s Residual Functional Capacity
Plaintiff contends that substantial evidence does not support the ALJ’s determination that she
retains the capacity to perform a reduced range of light work. She argues that the record shows that
Plaintiff is unable to perform at least six hours of standing/walking and that the ALJ failed to fully
address Plaintiff’s standing and walking abilities. (Doc. 19:4) Hence, Plaintiff asserts that she was
prejudiced by the ALJ’s error.
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Residual functional capacity is the most an individual can still do despite her limitations. 20
C.F.R. § 404.1545; Soc. Sec. Ruling (“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 her physical and mental limitations. Martinez v. Chater, 64 F.3d 172, 176 (5th Cir. 1995).
The ALJ must consider the limiting effects of an individual’s impairments, even those that are nonsevere, 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 he 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 v. Chater, 64 F.3d 172, 174 (5th Cir. 1995). A review of the record
evidence indicates that there is substantial evidence to support the ALJ’s conclusion that Plaintiff
is not disabled.
Plaintiff’s first major contention is that the ALJ erred in determining the RFC in this case,
and that substantial evidence does not support the RFC conclusion. Specifically, the argument is that
the ALJ failed to fully address Plaintiff’s standing and walking abilities, and failed to include all
limitations relating to Plaintiff’s impairments in his RFC determination. (Doc. 19:4) Plaintiff argues
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that the ALJ found that Plaintiff can do no more than six hours of standing/walking in an eight-hour
workday, and that the record evidence shows that Plaintiff is more limited. (Doc. 19:3-6) Plaintiff
argues that apart from an opinion of a non-examining physician that Plaintiff can perform medium
work, no evidence supports the ALJ’s RFC conclusion. (Doc.19:5)
A review of the record shows that Plaintiff’s RFC argument lacks merit. First of all, the ALJ
did not find as part of his RFC determination that Plaintiff had the ability to stand and/or walk for
up to six hours in an eight-hour workday. As the Defendant argues, Plaintiff’s interpretation is
flawed. (Doc. 20:4) The ALJ’s use of the language “no more than six hours of standing/walking in
an eight-hour workday” was clearly a reference to the general definition of the full range of light
work prefatory to the ALJ’s RFC determination. The actual RFC determination by the ALJ was that
Plaintiff had the RFC to perform light work, “generally defined” as work requiring lifting/carrying
no more than 10 pounds frequently and 20 pounds occasionally, and no more than 6 hours of
standing/walking in an 8 hour workday, except the claimant is limited to at least 2 hours of
standing/walking in an 8 hour workday, with the additional nonexertional limitations of only frequent
pushing/pulling with the upper and lower extremities either singularly or in tandem, occasional
stooping, no climbing, balancing, kneeling, crouching, or crawling, and avoidance of temperature
extremes, dust, work hazards, and fumes, odors, chemicals and gases. (R:35, 63); 20 C.F.R. §
404.1567(b).
A review of the record demonstrates that substantial evidence supports the ALJ’s RFC
determination. A Medical Source Statement (“MSS”) by Plaintiff’s Treating Physician, Dr. Chester
McDonald fully supports it. (R:288-291) In fact, the ALJ incorporated into his RFC determination
the limitations set forth in Dr. McDonald’s conclusions in his MSS and also adopted the rest of Dr.
McDonald’s conclusions. (R:38)
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The ALJ considered the rest of the medical evidence as well in arriving at his RFC
determination. For example, the non-examining state physicians both concluded that Plaintiff was
capable of performing a medium level of work. (R:267-274, 282) The ALJ considered this evidence
fully, but rejected it in part, finding that Plaintiff was more limited than was determined by both
physicians. (R:38) This decision to partly reject the opinions of the state physicians was arrived at
after consideration of all the evidence, medical and otherwise. Id.
In furtherance of making his RFC determination, the ALJ assessed Plaintiff’s credibility and
subjective complaints of pain and limitation. It was within his broad discretion to weigh the
evidence and make credibility choices. See Newton v. Apfel, 209 F.3d 448, 459 (5th Cir. 2000). The
ALJ considered the medical evidence as well as Plaintiff’s testimony. The latter included a litany
of complaints urged by Plaintiff. (R:35-37) On the other hand, Plaintiff’s disability report reveals
that a face to face interview was conducted, and that during that interview no deficits with Plaintiff’s
reading, understanding, concentrating, talking, answering, sitting, standing, walking, using hands,
and writing were noted. (R:150) Based upon his review of the entire evidence, the ALJ determined
that Plaintiff’s medically determinable impairments could be expected to cause some of her alleged
symptoms but that her statements concerning the intensity, persistence, and limiting effects of the
symptoms were not credible to the extent they were inconsistent with his RFC assessment. (R:37)
Such a decision was within the ALJ’s discretion and is supported by the evidence.
At the fifth step, 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 can perform. (R:39) Specifically, the VE testified that an individual
with Plaintiff’s age, education, work experience, and RFC would be able to perform the requirements
of representative occupations such as Inspector/Tester (DOT No. 726.684-050); Assembler (DOT
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No. 713.687-018); Production Worker (DOT No. 685.687-014); Hand Laborer (DOT No. 529.687138); and, Hand Packer (DOT No. 559.687-014). (R:39, 64) The ALJ found, pursuant to SSR 004p, that the VE’s testimony was consistent with the information contained in the Dictionary of
Occupational Titles. (R:39)
Plaintiff makes numerous arguments attacking the ALJ’s step five determination. She
contends that the ALJ’s finding that Plaintiff can perform other work that exists in significant
numbers in the national economy is not supported by substantial evidence. (Doc.19:6) She urges
that for VE testimony to provide substantial evidence for an ALJ’s step 5 finding, the testimony must
be based on a hypothetical question that includes all limitations supported by the record. (Doc.
19:7); Bowling v. Shalala, 36 F.3d 431, 436 (5th Cir. 1994). Plaintiff contends that the ALJ failed
to mention anything about “no more than 6 hours of standing/walking in an 8 hour workday” in his
hypothetical question, thus making the question an incomplete one. (Doc. 19:7) Essentially, the ALJ
cannot rely on VE testimony in response to a hypothetical question that is inconsistent with the RFC
finding. Id.
Plaintiff points out that the ALJ erred in failing to define Plaintiff’s education level for the
VE. (Doc. 19:8; R:63) The ALJ’s decision, wherein he found that Plaintiff has a limited education
and is able to communicate in English (R:38) is contradicted by the evidence of record. (Doc. 19:9;
R:152, 154) It is unclear from the testimony whether the VE considered Plaintiff’s illiteracy and
inability to communicate in English when she opined regarding Plaintiff’s ability to perform other
work that exists in significant numbers in the national economy. (Doc. 19:9) Plaintiff contends that
if she is illiterate and unable to communicate in English, she would not be able to perform the jobs
identified by the VE. (R:19:9) The DOT explains that these jobs, although unskilled, require the
ability to write and speak simple sentences, and read approximately 2,500 two-to-three syllable
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words, and there is no evidence that Plaintiff can perform these job requirements. (Doc. 19:9)
Plaintiff argues that in order for the Commissioner to meet her burden of proof, the case must be
remanded to allow the ALJ to make specific findings regarding Plaintiff’s literacy and her ability to
communicate in English, and to obtain VE testimony that responds to a hypothetical question that
includes all of Plaintiff’s limitations. (Doc. 19:9)
Finally, Plaintiff argues that the ALJ should have relied on the VE’s testimony and found that
Plaintiff had the RFC for sedentary work only, inasmuch as all of the positions identified by the ALJ
as jobs that Plaintiff could perform are categorized as sedentary ones. (Doc.19:7) Specifically,
Plaintiff argues that grid rule 201.17 should have been applied to find Plaintiff disabled. (Doc.19:6)
A review of the entire record demonstrates that Plaintiff’s arguments are unavailing,
inasmuch as substantial evidence supports the ALJ’s fifth-step conclusion, and any error which does
exist is not reversible. Plaintiff’s argument regarding the insufficiency of the hypothetical question
propounded by the ALJ to the VE lacks merit. An ALJ need only incorporate into his hypothetical
question those limitations supported by the evidence and recognized by the ALJ. Masterson v.
Barnhart, 309 F.3d 267, 273-74 (5th Cir. 2002). The ALJ did not find that Plaintiff could stand
and/or walk for six hours of an 8-hour workday; hence, he was not required to incorporate such a
limitation into the hypothetical question. The ALJ’s hypothetical question was consistent with the
RFC finding, and reflected a limitation of two hours of standing and/or walking. (R:35,63) Since
the hypothetical question posed to the VE incorporated reasonably all limitations of Plaintiff
recognized by the ALJ, and Plaintiff and her counsel were afforded the opportunity to correct
deficiencies in the ALJ’s question by cross-examination, the Court finds no error. See Bowling v.
Shalala, 36 F.3d 431, 436 (5th Cir. 1994). The Court finds that the ALJ’s fifth step determination
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is supported by substantial evidence and that the ALJ properly considered the four elements in
arriving at this determination. See Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995).
Plaintiff’s reversible-error arguments regarding the ALJ’s failure to define Plaintiff’s
education level for the VE, the ALJ’s finding that Plaintiff has a limited education and is able to
communicate in English, and failure to find Plaintiff illiterate are similarly without merit. The
evidence shows that Plaintiff has a 7th grade education from Juarez, Mexico. (R:52) The record
contains no evidence that Plaintiff is unable to read or write a language other than English. To the
contrary, the evidence shows that she does have that capability. (R:150, 173, 178) However, there
is evidence that Plaintiff is unable to read, write, or speak in English. (R:47, 152) Illiteracy in the
regulations has been interpreted to refer specifically to illiteracy in English. See Acquiescence
Ruling (“AR”) 86-3(5) at *2 (1986) (“Illiteracy is subsumed under inability to communicate in
English.”); Social Security Ruling (“SSR”) 03-3P. However, courts have rejected the notion that a
claimant is per se disabled if illiterate or unable to communicate in English. See Landeros v. Astrue,
No. 11-7156-JPR, 2012 WL 2700384 at *5 (C.D. Cal. July 6, 2012) (collecting cases) (noting that
every job listed in the DOT requires at least level-one language skills and to find every illiterate or
non-English-speaking plaintiff per se disabled regardless of their work history is both illogical and
in direct contradiction to Social Security regulations).
The Court finds that the ALJ did err in concluding that Plaintiff is able to communicate in
English and in failing to find that Plaintiff was illiterate in English. However, these errors are both
harmless and non-reversible for the following reasons. Further, to the extent the ALJ erred in failing
to set forth such findings in the hypothetical question to the VE, such error is also harmless and not
grounds for reversal for the reasons that follow.
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Procedural perfection in administrative proceedings is not required. The Court will not
vacate a judgment unless the substantial rights of a party have been affected. The major policy
underlying the harmless error rule is to preserve judgments and avoid waste of time. Mays v. Bowen,
837 F.2d 1362, 1364 (5th Cir. 1988). The court will remand for further proceedings only where the
procedural imperfection casts doubt on the existence of substantial evidence to support the ALJ’s
decision of non-disability. See Morris v. Bowen, 864 F.3d 333, 335 (5th Cir. 1988).
The record before the VE reflected that Plaintiff could not communicate in English, as she
appeared at the hearing with an interpreter, and had been educated through only the seventh grade
in Juarez, Mexico. (R:52) Although such was not specifically set forth in the hypothetical question
provided to the VE, there is no reason to believe that the VE did not evaluate Plaintiff as illiterate
in English and unable to communicate in English. Further, each of the jobs identified by the VE and
relied on by the ALJ at step five of the sequential evaluation process requires level-1 language skills.
See DOT Nos. 726.684-050; 713-687-018; 685.687-14; 529.687-138; and 559.687-014. The
position Plaintiff had actually performed successfully for three years prior to the hearing, that of a
caretaker, has a level-2 language skill requirement. DOT 354.377-014. The VE was also aware of
other jobs Plaintiff had held in the United States as a presser, labeler, and pattern cutter, which were
light, unskilled with an SVP of 2, each of which requires at minimum a level-1 language skill
requirement. (R:63) Thus, Plaintiff had amply demonstrated that her inability to communicate in
English posed no obstacle to her performance of an occupation that required a higher level of
language competency than the jobs the VE identified.
The hypothetical question to the VE properly asks her to take into account not only Plaintiff’s
educational background but also her work history. (R:63) The VE also provided the number of
positions available for each job not only nationally, but locally state-wide, where Plaintiff had
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worked and had not found her inability to communicate in English to be a hindrance. Thus, it is clear
that the ALJ’s error is harmless, and is not grounds for reversal.
Alternatively, Plaintiff should not be allowed to scan the record for implied or unexplained
conflicts between the precise testimony of the VE and the voluminous provisions of the DOT and
then present that conflict as reversible error, when the conflict was not deemed sufficient to merit
adversarial development in the hearing before the ALJ. Carey v. Apfel, 230 F.3d 131, 146-147 (5th
Cir. 2000) Plaintiff’s counsel had a full opportunity to cross-examine the VE on the effects of
Plaintiff’s limitations on her ability to perform the jobs identified by the VE in the areas of
educational level and literacy or lack thereof. (R:64) Instead, the testimony remained unchallenged.
In so doing, Plaintiff failed to pursue the nature and extent of any purported conflict between the
VE’s testimony and the DOT job requirements at that time. The principle enunciated in Carey
controls in this case and bars Plaintiff from obtaining the relief she seeks.
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, which includes lifting and carrying 20
pounds occasionally. (R:35) Consequently, she has an exertional capacity that is greater than that
required for sedentary purposes. 20 C.F.R. § 404.1567(a). That the VE only identified sedentary
occupations is not inconsistent with the ALJ’s finding that Plaintiff could perform a limited range
of light work, as an individual who can perform light work can also perform sedentary work. See
20 C.F.R. § 404.1567(b). The grids may be relied on only if their evidentiary underpinnings coincide
exactly with the evidence of disability appearing on the record. See Lawler v. Heckler, 761 F.2d 195,
197 (5th Cir. 1985). Thus, it is clear that the ALJ was fully justified in declining to resolve the issue
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of disability by relying on grid rule 201.7 or otherwise find that Plaintiff had the RFC for sedentary
work only.
Finally, because Plaintiff has failed to show that she 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 September 9, 2015.
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ROBERT F. CASTANEDA
UNITED STATES MAGISTRATE JUDGE
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