Corral Torres v. Colvin

Filing 26

MEMORANDUM OPINION AND ORDER. Signed by Judge Leon Schydlower. (scf)

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

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MARIA LUISA CORRAL TORRES,
Plaintiff,
v.

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NO. EP-14JCV-1313-

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CAROLYN W. COLVIN,
Acting Commissioner of Social Security
Administration,
Defendant.

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MEMORANDUM OPINION AND ORDER
Plaintiff brings this civil action seeking judicial review of an administrative 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. 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. 14] For the reasons set forth below, this Court orders that the
Commissioner's decision be AFFIRMED.
I. FACTS AND PROCEEDINGS'
In August 2011 Plaintiff filed an application for DIB benefits with an alleged onset date of

August 19, 2011, due to vision problems and pain in her hands and legs.2 (R:13, 106) After her
application was denied initially and on reconsideration, an Administrative Law Judge (AU) held a
Reference to the Administrative Record, contained in Docket Entry Number 15, is designated by
an "R" followed by the page number(s).
2

The application contained in the record is for supplemental security income under Title XVI of
the Social Security Act. (R:106) However, the other documentation and the AU's decision refer to
disability insurance benefits under Title II of the Act.
1

hearing in March 2013. (R:13, 32-52, 53, 54) The AU issued a decision on April 25, 2013,
concluding that Plaintiff was not disabled. (R:13-22) The Appeals Council denied review, making
the

AU's decision the final administrative decision of the Commissioner. (R:1-8) This appeal

followed, and a hearing on it was held on July 6, 2016. [ECF No. 25]

II. ISSUES
Plaintiff contends that the AU erred in failing to find that she had a severe visual
impairment and in failing to consider her visual problems in determining her residual functional
capacity (RFC). She asserts that the

AU's failure to properly consider the record resulted

in a

decision unsupported by substantial evidence. She contends that the case should be reversed, or in
the alternative, remanded for further administrative proceedings.

III. STANDARD OF REVIEW
Judicial 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
Commissioner applied the proper legal standard. See Perez v. Barnhart, 415 F.3d 457,461 (5th Cir.
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.

2

IV. EVALUATION PROCESS
A claimant bears the burden of proving disability, which is defined in cases other than

blindness, as any medically determinable physical or mental impairment lasting at least 12 months

that prevents the claimant from engaging in substantial gainful activity. See 42 U.S.C. § 423(d)(1);
20 C.F.R. § 404.1505(a); Masterson, 309 F.3d at 271.

The AU evaluates disability claims according to a sequential five-step process:
1.

Is the claimant engaged in substantial gainful activity?
A claimant who is working and engaging in substantial gainful activity will not be found

disabled regardless of the medical findings;
2. Does the claimant have a "severe" impairment?

A claimant who does not have a severe impairment or combination of impairments will not
be found disabled;
3.

Does the impairment meet or equal the severity of an Appendix 1 impairment?
A claimant who has an impairment or combination of impairments that meets or equals the
severity of an impairment listed in Appendix 1 of the regulations will be considered
disabled without consideration of vocational factors;

4. Is the claimant able to perform her past relevant work?
If a claimant is capable of performing work she has done in the past, a finding of "not

disabled" must be made; and
5.

Is the claimant able to perform other substantial gainful work in the economy?
If a claimant's impairment prevents her from doing any other substantial gainful activity,
taking into account age, education, past work experience, and residual functional capacity,
a finding of disabled will be made.

Boydv. Apfel, 239 F.3d 698, 704-05

(5t1

Cir. 2001); Wren

v.

Sullivan, 925 F.2d 123, 125 (5th Cir.

1991); see also 20 C.F.R. § 404.1520.

Before proceeding from step 3 to step 4, the Commissioner must assess the claimant's RFC

which is defined as the most the claimant can still do despite her physical and mental limitations.
See Perez, 415 F.3d at 46 1-62. The RFC is used at step 4 to determine

if the claimant can continue

to perform her past relevant work. Id. at 462. At step

5

the RFC is used to determine whether the

claimant is capable of performing any other work. Id.
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). If the claimant meets this burden, the burden then shifts to
the Commissioner at step

5

to show that there is other gainful employment available that the

claimant is capable of performing in spite of her existing impairments. Crowley v. Apfel, 197 F.3d.
194, 198 (5th Cir. 1999).

If the Commissioner meets this burden, the claimant must then prove that

she cannot perform the alternate 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

F.2d 162, 165

(5th1

v.

Heckler, 707

Cir. 1983). Rather, it is Plaintiff's burden to establish disability and to provide or

identify medical and other evidence of her impairments and how they affect her ability to work.
See 20 C.F.R. § 404.15 12(c). Her 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.
V. THE AU'S DECISION

After reviewing the record evidence, the AU made the following determinations:
1.

Plaintiff met the insured status requirements of the Social Security Act through June
30, 2014. (R:15)

2. Plaintiff had not engaged in substantial gainful activity since August 19, 2011, the

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alleged onset date. (R: 15)
3.

Plaintiff had a severe impairment of osteoarthritis, but did not have a severe visual
impairment. (R: 15)

4. Plaintiff did not have a visual impairment other than exotropia.3 (R: 16)
5.

Plaintiff did not have an impairment or combination of impairments that met or
medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1, specifically the impairments listed in sections 1.00 and 2.00.
(R:16)

6.

Plaintiff retained the functional capacity to perform a full range of light work as
defined in 20 C.F.R. § 404.1567(b). (R:16) See 20 C.F.R. § 404.1567(b).5

7.

Plaintiff was capable of performing her past work as a store attendant. (R:21)

Consequently, the AU concluded that Plaintiff was not disabled from her alleged onset

date through the date of the AU's decision. (R:21)

VI. DISCUSSION

Plaintiff contends that the AU erred in failing to find that she had a severe visual
impairment at step 2 of the sequential analysis, which in turn compromised subsequent steps of the

Exotropia refers to a permanent deviation of the visual axis of one eye away from that of the
other. See Dorland 's Illustrated Medical Dictionary, 634 (29th ed. 2000).
Section 2.00 of the Listing of Impairments discusses visual disorders and the criteria to establish
statutory blindness. Statutory blindness is defined as central visual acuity of 20/200 or less in the better eye
with the use of a correcting lens. 20 C.F.R. § 404.1581; 20 C.F.R. Part 404, Subpart P, App. 1, § 2.02. An
eye which has a visual field limitation such that the widest diameter of the visual field subtends an angle no
greater than 20 degrees is considered as having a central visual acuity of 20/200 or less. 20 C.F.R. §
404.1581; 20 C.F.R. Part 404, Subpart P, App. 1, § 2.03A. Additionally, blindness must meet the durational
requirement in 20 C.F.R. § 404.1509 of having lasted or being expected to last at least 12 months. See 20
C.F.R. § 404.1581. If a claimant is determined to be statutorily blind, eligibility for disability benefits is
evaluated pursuant to 20 C.F.R. § 404.1581 through 404.1587. See 20 C.F.R. § 404.1505(b).

"Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds. Even though the weight lifted may be very little, ajob is in this category
when it requires a good deal of walking or standing, or when it involves sitting most of the time with some
pushing and pulling of arm or leg controls." 20 C.F.R. § 404.1567(b).

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analysis. She further claims that the AU failed to consider her visual problems in determining her

RFC thereby resulting in a decision not supported by substantial evidence.
Under the Regulations, a severe impairment is "any impairment or combination of
impairments which significantly limits [a claimant's] physical or mental ability to do basic work

activities." 20 C.F.R.

§

404.1520(c).

"[Am

impairment can be considered as not severe only if it is

a slight abnormality [having] such minimal effect on the individual that it would not be expected to
interfere with the individual's ability to work, irrespective of age, education or work experience."
Stone

v.

Heckler,

752 F.2d 1099, 1101 (5th Cir. 1985) (internal quotations and citations omitted).

Here, the AU found that Plaintiff had a severe impairment of osteoarthritis but did not
have a severe visual impairment. (R: 15) In making her determination, the AU found that the
medical evidence pertaining to Plaintiff's vision suggested malingering from 2008 to 2012. (R: 15)
Further, the AU explained that the state agency medical consultants thoroughly reviewed the
record and found no medical evidence supporting a severe visual impairment. (R: 16) Finally, no
medical sources ever sought to determine whether Plaintiff's alleged vision deficits were as severe
as the visual acuity findings suggested. (R: 16)

Review of the medical evidence supports the

AU's conclusions and shows that despite

numerous examinations, the physicians were unable to medically explain the visual defects

Plaintiff alleged. For example, in October 2011 Dr. Augustine Elej e performed a consultative
evaluation of Plaintiff. (R:230-32) Plaintiff denied any associated signs or symptoms at that time
for her alleged vision problems, yet reported that her condition was worsening over time. (R:230)
Her corrected visual acuity was reported as 20/200 in each eye. (R:231) Dr. Eleje assessed her with

"loss of vision," but did not specify any degree of loss or associated functional limitations. The

AU gave this opinion great weight and found it to be supported by other objective evidence and by

Plaintifis ability to engage in daily activities. (R: 18)
In January 2012 Dr. Jorge Liamas-Soforo performed a consultative ophthalmological

examination of Plaintiff. (R:238-41) Plaintiff reported having had exotropia since childhood and
having surgery at approximately age 20 for the condition. (R:238) Plaintiff indicated having blurry

vision in both eyes and no movement in the right eye. (R:238) Visual acuity testing revealed

Plaintiff's best corrected vision for distance was 20/400 in the left eye and counting fingers in the
right eye. (R:23 8) Despite these findings, the physician reported that the pathology results and
funduscopic findings for both eyes were normal. Dr. Liamas-Soforo diagnosed Plaintiff with
exotropia in the right eye and visual field defect in both eyes, and concluded that her prognosis was
good. (R:239) As noted by the AU, however, Dr. Liamas-Soforo had no medical explanation for

any of the alleged visual field defects. (R:239)

A state agency medical consultant reviewed the medical records and determined that

Plaintiff's alleged visual limitations were not fully supported by the record. (R:249) The medical
consultant concluded that Plaintiff could perform work with small objects and was able to avoid
ordinary workplace hazards. (R:249) The AU concurred in the medical consultant's assessment of

Plaintiff's alleged visual impairment. (R: 18)
Dr. Marcos Calderon performed a second consultative ophthalmological examination in

May 2012. (R:252-53) Plaintiff reported a history of vision problems since having pneumonia as a
child. Visual acuity test results showed Plaintiff's best corrected distance vision was light

perception with the right eye and counting fingers at

3

feet with the left eye. (R:252) Further

examination showed Plaintiff had exotropia in the right eye. (R:252) However, the pathology and

7

funduscopic findings were essentially normal for both eyes. (R:252) Dr. Calderon reported that he
did not have a medical diagnosis that would explain Plaintiff's vision problems because the

remainder of the examination was essentially normal except for the exotropia. (R:252) He stated

that based on the level of visual acuity assessed, Plaintiff would be considered dysfunctional, but
that he had doubts and disbelief about the visual acuity test results. (R:253) He recommended
reevaluation or searching for prior medical records. (R:253) The AU found this opinion to be
consistent with and supported by other objective evidence in the record and attributed the opinion
great weight (R:19)

Plaintiff also underwent a Visual Evoked Response (VER) study in May 2012. (R:255)
Although the results were indicative of marked disturbances, many of the abnormal findings were

thought to be caused by Plaintiff's excessive blinking during the test procedure. Therefore, due to
the indeterminate findings it was recommended that the test be repeated, but this was never done.
(R:255)
On May 23, 2012, Dr. Steven Crouse performed a consultative neurological examination to
assess Plaintiff's vision problems. (R:257-58) Plaintiff reported being able to see only "blurred

light" and indicated that her right eye was worse than her left eye. (R:257) However, she also

reported being able to read with her left eye but stated that she tired easily and got headaches.
(R:257) Plaintiff related that she worked in fabric warehouses in activities that required primarily

touch. (R:257)
Dr. Crouse observed that upon examination, Plaintiff indicated that she could not move her

eyes to either side and would not do so voluntarily. (R:258) Dr. Crouse further reported that he

could not perform the visual field testing because Plaintiff stated that she could not see his hands

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well. (R:258) Plaintiff could count fingers but could not see at the 20/800 distance. (R:258) Dr.

Crouse' s impression was that Plaintiff had a lifelong visual problem but that he could not
determine the exact severity of her condition. (R:258) Dr. Crouse suspected

augmentation6

on the

examination, which made it difficult for him to ascertain the true extent of Plaintiff's vision
problems. (R:258) Nonetheless, he concluded that her vision problems were enough to disable her
from any job requiring "decent vision." (R:258) The AU did not give much weight to Dr. Crouse's
opinion, however, because it was based primarily on Plaintiff's subjective complaints and was

inconsistent with other evidence of Plaintiff's daily activities. (R: 19-20)
A state agency medical consultant reviewed the evidence at the time of reconsideration and

concluded that the VER test results were indeterminate because of Plaintiff's excessive blinking.
(R:271) The medical consultant further concluded that the medical evidence did not support

Plaintiff's alleged visual impairment. (R:27 1) The AU agreed with the consultant's findings.
The AU

discussed additional medical evidence from Dr. Marc Eliman, an

ophthalmologist, indicating that Plaintiff had visual difficulty in 2008. (R:20) The records showed
visual acuity test results of 20/200 in both eyes. (R:284) Dr. Ellman stated in his treatment notes
dated December 9, 2008, that another ophthalmologist who examined Plaintiff in October 2008

noted possible malingering. (R:284)
Despite Plaintiff's allegations of vision problems, the AU found that Plaintiff's own
description of daily living activities reflected that she could see well enough to engage in normal
daily activities and routine tasks. (R: 16) Plaintiff stated in a function report that she read the

newspaper, went shopping, counted out change, prepared simple meals, used a checkbook,

6

2000).

Augmentation means "an adding on." Dorland's Illustrated Medical Dictionary, 173

(29th1

ed.

handled a savings account, and paid bills. (R: 142, 143, 144) Plaintiff advised her podiatrist in
February 2012 that she walked daily for exercise. (R:273-74) Both Dr. Eleje and Dr. Calderon
noted that Plaintiff walked without assistance. (R:23 1, 252) The AU also considered the fact that

Plaintiff was able to engage in the duties of her job in 2008 despite reported vision at that time of
20/200. (R: 16) After considering the objective and subjective evidence of record the AU

determined that Plaintiff did not have a visual impairment except for exotropia. (R: 16)
Accordingly, the Court finds that substantial evidence supports the

AU's finding that Plaintiff did

not have a severe visual impairment.

Plaintiff claims in a cursory manner that her visual impairment meets or equals the listing

of impairments because the evidence shows her visual acuity is 20/200 or less. However, the AU
found Plaintiff's visual acuity findings inconsistent with the physicians' pathology findings and

with Plaintiff's reported activities of daily living. Consequently, given the dearth of support for
these alleged visual acuity findings, Plaintiff fails to any show error in the

AU's step 3

finding.

Plaintiff further asserts that the AU should have included visual limitations in the RFC
determination. RFC is the most an individual can still do despite her limitations. 20 C.F.R. §
404.1545. The responsibility to determine the Plaintiffs RFC belongs to the AL Ripley v. Chater,
67 F.3d 552, 557 (5th Cir. 1995). In making this determination, the AU must consider all the

record evidence and determine the Plaintiffs abilities despite her physical and mental limitations.

Perez, 415 F.3d at 46 1-62. The AU must consider the limiting effects of an individual's medically
determinable impairments, even those that are non-severe, and any related symptoms. See 20
C.F.R. § 404.1529, 404.1545. The relative weight to be given the evidence is within the AU's

discretion. Chambliss

v.

Massanari, 269 F.3d 520, 523

10

(5th

Cir. 2001).

In assessing Plaintiff's RFC, the AU stated that she considered the entire record. (R: 16) As

demonstrated in her thorough discussion of the record evidence, the AU based her RFC
determination on the limitations she found supported by the evidence. The AU determined that

Plaintiff did not have a visual impairment other than exotropia. Based on the record evidence, this
determination is supported by substantial evidence. Moreover, Plaintiff does not challenge the

AU's findings regarding her osteoarthritis. Consequently, the AU's RFC determination was
properly based upon the medically determinable impairments and related signs and symptoms
supported by the record. Plaintiff has not presented any evidence showing how her alleged visual

impairment impacted her ability to work in a manner not accounted for in the

AU's RFC

determination. The Court concludes that the AU' s RFC determination that Plaintiff can perform a
full range of light work is supported by substantial evidence.
The AU then proceeded to step 4 of the analysis and determined that Plaintiff could
perform her past relevant work as a sales attendant. Other than a conclusory allegation that the
finding was based upon an inaccurate RFC, Plaintiff fails to show that she cannot perform her past

work and thus fails to meet her burden at this step. The AU elicited vocational expert ("yE")
testimony that established that an individual with Plaintiff's RFC could perform her past relevant
work as a sales attendant. Plaintiff's counsel had an opportunity to question the VE on any alleged
visual limitations but did not do so. Therefore, the Court finds that substantial evidence supports
the AU's finding regarding past relevant work.
In sum, despite Plaintiff's reported loss of vision the Court finds that substantial evidence
supports that AU's disability determination, based upon the objective medical evidence which did
not establish a medical basis for the vision loss, reports of malingering and augmentation, and

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Plaintiff's reported activities. Further, Plaintiff fails to demonstrate that she was prejudiced by any
failure by the AU to properly consider her alleged visual impairment. Because substantial

evidence supports the AU's findings, any error relating to the AU's consideration of the evidence
would be harmless.

See Mays

v.

Bowen, 837

F.2d 1362, 1364 (5th Cir. 1988); Morris v. Bowen, 864

F.2d 333 335 (5th Cir. 1988). Consequently, Plaintiff's contentions are without merit.

VII. 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 July 26, 2016.

V/
LEON SCHYDLOWER
UNITED STATES MAGISTRATE JUDGE

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