Loya Jr. v. Colvin
MEMORANDUM OPINION AND ORDER. Signed by Judge Norbert J. Garney. (mc4)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
CAROLYN W. COL YIN,
Acting Commissioner of Social Security
(-NJG by consent)
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 referred to this Court for trial and entry ofjudgment
pursuant to 28
636(c), and Rule cV-72 and Appendix C of 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 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
Plaintiff was born July 11, 1983, and completed a high school education and an Associate's
Degree. (R:4, 44)1 He has experience working as a manager and customer service, with a financial
institution or loan company. (R:43) Plaintiff discontinued working in June 2012, due to restless leg
'Reference to the Administrative Record, contained in Docket Entry Number 16, is designated by
and "R" followed by the page number(s).
syndrome and HIV. (R:4-5, 106-107)
On January 14, 2013, Plaintiff filed applications for DIB and SSI benefits, with an alleged
onset date of June 1, 2012. (R:35) The claims were denied initially and on reconsideration. A
hearing was held on December 3, 2013. (R:3-20) The Administrative Law Judge (AU) issued her
decision on January 29, 2014, finding Plaintiff not disabled, and denying benefits. (R:35-45) The
Appeals Council denied Plaintiffs request for review. (R:26-30)
In her decision, the AU found that Plaintiff had not engaged in substantial gainful activity
since the onset date of June 1, 2012, and that he met the insured status requirements through
September 30, 2016. (R:37) She determined that Plaintiff had severe impairments of mild
degenerative disc disease, restless leg syndrome and HIV, and non-severe impairments of GERD and
depression. (R:38) However, She found that none of the impairments alone or in combination met
or equaled the listing of impairments in 20 C.F.R. Part 404, Subpart P, Appendix
determining the severity of Plaintiffs mental impairment, she found that Plaintiff had no limitations
in daily living activities, social functioning, and concentration, persistence, or pace, and no episodes
of decompensation of extended duration. (R:39)
After review of the evidence of record, the AU determined that Plaintiff retained the
functional capacity to perform a limited range of sedentary work.2 (R:40) Based upon vocational
expert testimony, the AU found that Plaintiff could perform his past relevant work. (R:43)
2Sedentary work is defined as work involving "lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary
job is defined as one which involves sitting, a certain amount of walking and standing is often necessary
in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other
sedentary criteria are met." 20 C.F.R. § 404.1567, 4 16.967
Considering Plaintiff's age, education, work experience, and RFC, along with the vocational expert
testimony, the AU further determined that otherjobs existed in significant numbers in the national
economy that Plaintiff could perform. Accordingly, she determined that Plaintiff had not been under
a disability from the alleged onset date through the date of the decision. (R:45)
Plaintiff filed the instant suit on August 20,2014. [ECF No.
Defendant filed an answer
in response on November 3, 2014. [ECF No. 13] Plaintiff filed a brief in support of his claim on
February 5, 2015. [ECF No. 21] On March 9, 2015, Defendant filed a brief in support of the
Commissioner's decision denying Plaintiff's applications. [ECF No. 22]
Plaintiff presents the following issues for review:
1. Whether the final decision of the Commissioner denying benefits is supported by
substantial evidence; and
2. Whether the Commissioner applied an incorrect legal standard in determining that Plaintiff
was not disabled.
In particular, Plaintiff contends that the AU erred in failing to find Plaintiff's mental
impairments severe, and in failing to properly accommodate Plaintiff's mental limitations in her RFC
finding. He further argues that the AU failed to give proper weight to the medical source opinion
of treating physician, Dr. Ogechika Alozie. Consequently, Plaintiff maintains that the AU's
disability determination is not supported by substantial evidence and results from legal error. He
requests that the case be reversed, or in the alternative, remanded for further administrative
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.
Barnhart, 309 F.3d 267,
Cir. 1995). Substantial evidence "is
272 (5th Cir. 2002); Martinez v. Chater, 64 F.3d 172, 173
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
Bowen, 848 F.2d 638, 640 (Sth 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.; Speilman
357, 360 (5th Cir. 1993).
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(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.
The claimant bears the burden of proof at the first four steps of the analysis. Leggett
Chater, 67 F.3d 558, 564
not disabled. 20 C.F.R.
Cir. 1995). If the claimant can perform his past relevant work, he is
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
available that the claimant can perform. Crowley v. Apfel, 197 F.3d. 194, 198
Cir. 1999). If the
Commissioner establishes other potential employment, the burden shifts back to the claimant to
prove he is unable to perform the alternative work. Id. A finding that a claimant is disabled or not
disabled at any point in the process is conclusive and terminates the Commissioner's analysis.
Leggett, 67 F.3d at 564.
Medical Evidence of Record
Medical evidence of record shows that Plaintiff was treated for asymptomatic HIV infection
in 2011 and 2012 at the La Fe Care Center, having been diagnosed in 2010. (R:408-34) Plaintiff
reported no pain symptoms or fatigue. (R:411-12, 432,434) He denied any depression and declined
Plaintiff was seen by Dr. Ogechika Alozie on February 26, 2013, for an HIV evaluation.
(R:3 15-21, 374-80) He was assessed with HIV, GERD, and Restless Leg Syndrome. He complained
of fatigue, but denied any problems since his last visit. His non-compliance with medications since
his last visit was also noted. Dr. Alozie found no cognitive problems, and found him to be alert,
oriented, and normal in mood and affect, with a normal attention span and concentration. Plaintiff
denied any back pain, depression, anxiety, memory loss or suicidal ideation. Physical examination
showed that he had good motor and sensory functions.
On March 8,2013, Dr. Alozie completed a Medical Report on Adult with Allegation of HIV.
(R:322-23) He found that manifestations of the HJV were restless leg syndrome and marked
limitations in Plaintiff's daily living activities, social functioning, and concentration, persistence, and
On May 28, 2013, Plaintiff was again see by Dr. Alozie, and denied any problems since his
last visit. (R:358-61) Dr. Alozie found no evidence of cognitive problems, and noted that his anxiety
and stress were much improved. Plaintiff was alert and cooperative, with normal mood and affect,
and normal attention and concentration. Physical examination showed normal gait and good motor
and sensory functions. Plaintiff reported that his fatigue had improved and rarely occurred.
Plaintiff was also examined by Dr. Albert Cuetter on May 22, 2013. (R:370-73) The
treatment notes indicate a depressed mood, anxiety, dizziness, back pain, and numbness or tingling.
Plaintiff reported pain of four on a scale of one to ten. However, Plaintiff appeared alert and
oriented, with a normal gait, no motor deficits, and a normal cerebeller test. His general physical
examination was normal. Treatment notes by Dr. Cuetter on May 24, 2013, indicated that Plaintiff
reported having no pain at that time.
On July 24, 2013, Plaintiff was seen by Dr. Cuetter, for his HIV and restless leg syndrome.
(R:338-40) Plaintiff reported no pain on that date, and no side effects from his HIV medication.
Physical examination showed Plaintiff to have a normal gait, and normal coordination, sensation,
and muscle tone. Results of an EMG test showed no evidence of neuropathy. Results of MRI
examinations of Plaintiffs spine showed mild degenerative changes in the lumbar and thoracic
regions, and moderate spinal cord stenosis and mild dorsal displacement of the cervical cord.
On November 14, 2013, Dr. Alozie completed a Medical Source Statement of Ability to Do
Work-Related Activities (Physical). (R: 400-403) He determined that Plaintiff was limited to lifting
or carrying let than ten pounds occasionally, and walking or standing at least two hours in an 8-hour
workday. Plaintiff's ability to sit was limited by pain in his legs and back, and required periodically
alternating sitting and standing to relieve pain or discomfort. Dr. Alozie also attributed postural
limiations, in that Plaintiff could never climb, kneel, or crouch, and only occasionally balance, crawl,
or stoop. Dr. Alozie further found several environmental limitations, such as humidity, hazards, and
Finally, Dr. Alozie wrote a letter, dated February 12, 2014, on Plaintiff's behalf. (R:461) He
indicated that Plaintiff was under his care for his chronic medical condition of HIV. He further stated
that Plaintiff's medical conditions included GERD, and restless leg syndrome, and that his
medications caused side effects of anorexia, fatigue, fever, night sweats, rash, body fat changes,
SOB, cough, nausea, vomiting, diarrhea, weight loss, sore throat, dysphagia, swollen glands, change
in vision, headaches, numbness, muscle weakness, and dysuria. He opined that Plaintiff was unable
to sit, stand, or be out in the sun for an extended period of time.
In a Function Report, dated May 24, 2013, Plaintiff related having problems with
concentration, completing tasks, memory, and depression. (R:23 1-3 8) He also had extreme pain in
his legs, and side effects from his medications. His activities included going shopping, using public
transportation, attending church, and paying bills. He denied using a cane for walking.
5. Administrative Hearing
At the administrative hearing in December 2013, Plaintiff testified that he could not work
due to his restless leg syndrome, HIV, and back pain. (R:4-5) He further testified that for the past
eight months he had been using a cane for walking, prescribed by a neurologist. (R:6) Plaintiff
related that he received a referral for a psychologist from Dr. Alozie, but was waiting for a follow-up
visit. (R:8) He testified that he experienced depression and anxiety as side effects of his medications.
A vocational expert testified at the administrative hearing, as to Plaintiff's past relevant work.
He described his past work as: a sales representative, communications equipment, DOT 271.257-
010, light exertional level, and SVP level 6, skilled; restaurant manager, DOT 187.167-106, light
exertional level, and SVP level 7, skilled; manager, financial institution or loan company, DOT
186.167-086, sedentary exertional level, and SVP level 8, skilled; and waiter, DOT 311.477-030,
light work, and SVP level 3,
When given a hypothetical about whether an individual could perform Plaintiff's past work,
if able to perform light work, and allowed to shift positions from sitting and standing, with some
postural and environmental limitations, but without any non-exertional mental limitations, the
vocational expert testified that such individual could perform the loan company work at both the
light and sedentary levels. (R: 17-18) When asked whether work existed for such a person, at the
sedentary, unskilled level, the vocational expert related that the person could performjobs as: a final
assembler, DOT 713.687-018, sedentary level, SVP 2, unskilled; cuff folder, DOT 685.687-014,
sedentary level, SVP 2, unskilled; and egg processor, DOT 559.687-034, sedentary level, SVP 2,
3SVP is defined as "the amount of lapsed time required by a typical worker to learn the
techniques, acquire the information, and develop the facility needed for average performance in a
specific job-worker situation." Dictionary of Occupational Titles, Fourth ed., Revised 1991, Appendix C.
The level of time for SVP 2 is "anything beyond short demonstration up to and including 1 month," while
SVP 3 is over 1 month up to and including 3 months. Id. The level of time for SVP 6 is over 1 year up to
and including 2 years, while SVP 7 is over 2 years up to and including 4 years, and SVP 8 over 4 years
up to and including 10 years. Id.
(R: 18-19) Finally,
if such an individual had to take unscheduled breaks over twenty
percent ofthe work day, due to medical conditions, that such requirement would not be tolerated for
employment. (R: 19) Plaintiff's attorney inquired whether a person unable to maintain concentration,
persistence, or pace for up to two hours at a time would be deemed unsuitable for employment, the
vocational expert answered in the affirmative. (R: 19-20)
The AU's Consideration of Plaintiff's Mental Impairment
Plaintiff asserts that the AU erred in finding his mental impairment to be non-severe. He
argues that his mental impairments, including pain and fatigue, can affect his concentration,
persistence, or pace. Also, he complains that the AU erred by failing to account for his mental
impairments in the RFC determination.
The mere presence of an impairment is not disabling per se. See Hames v. Heckler, 707 F.2d
162, 165 (5th Cir. 1983). Rather, it is the Plaintiff's burden to establish disability and to provide or
identify medical and other evidence of his impairments. See 42 U.S.C.
423(d)(5); 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. Further, impairments that are remedied or controlled by medication or
treatment are not disabling. Lovelace
Bowen, 813 F.2d 55, 59 (5l cir. 1987).
At Step Two of the sequential analysis process, the AU must determine the severity of an
impairment, irrespective of the claimant's age, education, or work experience. 20 C.F.R.
404.1520, 416. 920. The Fifth Circuit has held that an impairment is considered as not severe "only
4Unskilled work is work requiring little or no judgment to do simple duties that can be learned on
the job in a short period of time. 20 C.F.R. § 404.1568, 4 16.968.
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
752 F.2d 1099, 1101
In determining the severity of a mental impairment at steps two and three of the sequential
analysis, the regulations require a special technique be used in the process. 20 C.F.R.
404.1520a(a), 416.920a(a). The AU must rate the degree of functional limitations that result from
the mental impairment in four broad areas known as the "Paragraph B" criteria: activities of daily
living; social functioning; concentration, persistence, or pace; and episodes of decompensation. 20
404.1520a(b) , 404.1520a(c), 416.920a(b), 416.920a( c); Pt. 404, Subpt. P, App.
12.00. The first three areas are rated on a five point scale: none, mild, moderate, marked, and
extreme. The fourth area is rated on a four-point scale ranging from "none" to "four or more"
episodes. 20 C.F.R.
The AU found Plaintiff's medically determinable impairment of depression to be non-severe,
causing no limitations in any of the first three functional areas and no episodes of decompensation
of extended duration in the fourth area. (R:39) In her decision, the AU acknowledged that the
limitations identified in Paragraph B are not an RFC assessment, but are used to rate the severity of
mental impairments at steps 2 and
1996 WL 374184 at
of the sequential evaluation process. (R: 17) See SSR 96-8p,
*4 The mental RFC assessment used at steps 4 and 5 require a more detailed
assessment by itemizing functions within the broad categories. Id. The AU must consider the extent
of limitations to work-related mental functions; including understanding, remembering, and carrying
out instructions; using judgment in making work-related decisions; responding appropriately to
supervision, co-workers, and work situations; and dealing with changes in a routine work setting.
6. Consequently, the AU stated that her RFC determination reflected the degree
limitation she found in this mental function analysis.
Review of the medical evidence shows that although Plaintiff reported having problems with
concentration, memory, and completing tasks, there is no objective medical evidence to support such
limitations. In February 2013, Plaintiff denied any cognitive problems, depression, anxiety, or
memory loss. Dr. Alozie found him to be alert, cooperative, with normal mood, and normal attention
span and concentration. Similarly, in May 2103, treatment records from Dr. Alozie show normal
attention span and concentration, and normal mood and affect, with no evidence of cognitive
problems. The notes reflect that Plaintiff's fatigue had improved and rarely occurred and that his
anxiety and stress showed improvement. Consequently, the Medical Report on Adult with Allegation
of HIV, by Dr. Alozie in March2013, finding Plaintiff with marked limitations in the four functional
areas is not consistent with his treatment notes.
Additionally, although medical notations from Dr. Cuetter in May 2013 reported Plaintiff
having a depressed mood, anxiety and dizziness, they also showed him as being alert and oriented
with a normal physical examination. Subsequent treatment notes in May and July 2013 showed
Plaintiff reported no pain and no side effects from his HIV medication. Thus, his argument that his
depression, including pain and fatigue, interferes with his ability to work is not supported by the
medical evidence of record. Further, Dr. Alozie's Medical Source Statement from November 2013,
finding Plaintiff limited to less than sedentary work, due to his HIV, restless leg syndrome, and back
pain does not reference any mental impairment. Moreover, Dr. Alozie' s letter of care, dated February
12, 2014, does not indicate treatment
of any mental impairment.
Thus, the AU considered the evidence of record, and properly determined that Plaintiff's
depression was not a severe impairment. Aside from Plaintiffs subjective complaints, there is a lack
of objective evidence to support Plaintiffs complaints.
Even if the AU erred in failing to assess Plaintiffs depression as severe at step two, such
error is not grounds for reversal or remand where the AU proceeds to the remaining steps and
substantial evidence supports the AU's finding of non-severity. See Taylor v. Astrue, 706 F.3d 600,
603 (Sth Cir. 2012) (any error by the AU in not following the procedures set out in Stone is harmless
where substantial evidence supports the AU's decision); Herrera
Astrue, 406 Fed. Appx. 899,
903 (5th Cir. 2010) (step two error did not warrant remand where AU proceeded to further steps of
the analysis). In this case, the AU proceeded to the remaining steps of the sequential analysis and
still found Plaintiff not disabled. The AU found that Plaintiff retained the capacity to perform his
past relevant work, and proceeded to further find that other work existed which Plaintiff could
perform. Such other work included sedentary unskilled work, which would accommodate limitations
in concentration, persistence, or pace.
Unskilled work is defined as work requiring little or no judgment to do simple tasks that can
be learned in a short time, and corresponds to a Specific Vocational Preparation (SVP) of 1 -2. 20
404.1568, 416.968; SSA Program Operations Manual System (POMS) DI 25015.030.
Generally, unskilled work includes the ability to understand, carry out, and remember simple
instructions, make simple work-related decisions, respond appropriately to supervision, co-workers,
and work situations, and deal with changes in a routine work setting. SSR 96-9p, 1996 WL 374185
at *9; POMS DI 25020.010.
Each of the occupational titles described by the vocational expert as other work the Plaintiff
could perform carried an SVP of 2. Thus, even if the AU erred in failing to properly consider
Plaintiff's mental impairment and possible limitations in concentration, persistence, or pace, the
alternative unskilled work described by the vocational expert would accommodate such limitations.
Further, Plaintiff contends that the AU failed to accommodate his mental limitations in the
RFC determination. However, the AU is not required to incorporate limitations in the RFC that she
did not find to be supported by the record. See Morris v. Bowen, 864 F.2d 333, 336 (5th Cir. 1988).
Nonetheless, any error in this regard would be harmless, because the
AU's finding that other work
existed, that being unskilled sedentary work, adequately accommodated the mental limitations
claimed by Plaintiff. See Norwood v. Astrue, No. 3:12CV66 HTW-LRA, 2013 WL 959937 (S.D.
Miss. Feb. 22, 2013) (where AU found Plaintiffs depression non-severe, vocational expert's
identification of unskilled work Plaintiff could still perform adequately incorporated mental
limitations in RFC) (recommendation adopted, 2013 WL 959895 (Mar. 12, 2013)).Thus, the AU
properly considered the evidence regarding Plaintiffs mental limitations using correct legal
standards, such that her determinations are supported by substantial evidence. Plaintiffs contention
is without merit.
Consideration of Treating Physician Medical Source Opinions
Plaintiff contends that the AU erred in attributing little weight to the medical source opinions
of treating physician, Dr. Alozie, limiting Plaintiff to less than sedentary work and attributing him
with marked limitations in daily living activities, social functioning, and concentration, persistence,
and pace. (R: 322-23, 400-03) He further argues that the AU should have obtained additional
evidence or sought clarification, if Dr. Alozie's opinions were insufficient.5
5Plaintiff relies upon 20 C.F.R. § 404.15 12(e) (eff. Aug. 1,2006, to Jun. 12, 2011) for this
argument. However, as noted by the Commissioner, that regulation has been repealed. See77 FR 10655,
10656, eff. Mar. 26, 2012; Proge v. Commissioner of Social Sec., 2014 WL 4639462 at *3 n. 11 (N.D.
Generally, more weight will be given to the opinion of a source who has examined the
claimant than to the opinion of a non-examining source. 20 C .F.R. § § 404.1527, 416.927. A treating
source's opinion ordinarily will be given controlling weight, unless it is not well-supported by
medically acceptable clinical and laboratory diagnostic techniques or is inconsistent with the other
substantial evidence in the case. Id. If the opinion is not given controlling weight, the AU will
consider and weigh certain facts pertaining to the treating relationship, the supportability of the
opinion, the consistency of the opinion with the record as a whole, and other factors tending to either
support or contradict the opinion. Id.
In this case, Dr. Alozie completed a Medical Report on Adult with Allegations of Human
Innumodeficiency Virus (HIV) Infection on March 8, 2013, indicating that Plaintiff had marked
limitations in daily living activities, social functioning, and concentration, persistence, and pace.
However, as noted by the AU, Dr. Alozie failed to provide any explanations as to why he found
Plaintiff to have marked limitations. The record fails to support this degree of limitation. In fact,
his own treatment notes from February and May 2013 indicate that Plaintiff had normal attention
span and concentration. Further, the treating relationship was of minimal length, as the medical
record reflects that Plaintiff was initially evaluated by Dr. Alozie on February 26,2013. Because this
opinion was inconsistent with other medical evidence, the AU could properly attribute less weight
Miss. Sept. 16, 2014). Similar regulations now appear at 20 C.F.R. § 404.1520b, 416.920b (eff. Mar. 26,
2012), but no longer make recontacting a requirement. Under the revised regulations, the AU may
recontact the medical source if the AU has insufficient evidence to determine whether the claimant is
disabled. Under either the prior or present regulation, the AU is not required to order more evidence
where the record is sufficient to establish whether the claimant is disabled. See Lee v. Co/yin, 2015 WL
3604133 (M.D. La. Jun. 5,2015); see also Jones v. Astrue, 691 F.3d 730, 733 (5th Cir. 2012).
Dr. Alozie also completed a Medical Source Statement of Ability to Do Work-Related
Activities (Physical) on November 14, 2013, finding Plaintiff could lift or carry less than ten pounds
occasionally, stand or walk at least two hours in an 8-hour work day, and would need to alternate
sitting and standing. In her RFC determination, the AU accounted for a restricted level of sedentary
work, requiring the ability to alternate sitting and standing, due to Plaintiff's reported pain, fatigue,
and evidence of his mild degenerative disc disease. The AU further considered the treatment notes
of Dr. Cuetter, from July 2013, indicating normal gait, coordination, sensation, and muscle tone.
Thus, contrary to Plaintiff's assertions, the AU properly considered and weighed Dr. Alozie's
opinions, and found them unsupported and inconsistent with the other medical evidence of record.
Plaintiff's argument is without merit.
The Court concludes that the
is supported by substantial evidence, and
comports with relevant legal standards. Based on the foregoing, the Court hereby ORDERS that the
decision of the Commissioner be AFFIRMED.
SIGNED and ENTERED on September _______, 2015.
United States Magistrate Judge
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