Franco II v. Colvin
MEMORANDUM OPINION AND ORDER. Signed by Judge Miguel A. Torres. (lc3)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
ROBERTO FRANCO II,
CAROLYN W. COLVIN,
ACTiNG COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION,
MEMORANDUM OPINION AND ORDER
This is a civil action seeking judicial review of an administrative decision. Plaintiff appeals
the decision of the Commissioner of the Social Security Administration (Commissioner)
his claims for disability insurance benefits ("DIB") and supplemental security income ("SSI")
Titles II and XVI, respectively, of the Social Security Act. Jurisdiction is predicated upon 42 U.S.C.
405(g). Both parties having consented to trial on the merits before a United States Magistrate
Judge, the case was transferred to this Court for trial and entry of judgment pursuant to 28 U.S.C.
63 6(c), and Rule CV-72 and Appendix C
of the Local Court Rules of the Western District of
Texas. For the reasons below, the Commissioner's decision is AFFIRMED.
I. PROCEDURAL HISTORY
On January 17, 2013, Plaintiff filed applications for DIB and SSI in which he alleged
disability since September 26, 2012 due to anxiety and a mood disorder. (R.179- 186, 209).1 After
his applications were denied initially and again upon reconsideration, Plaintiff requested a hearing.
(R. 106-1 13, 118-123, 126). On March 6, 2014, Plaintiff appeared with his attorney for a hearing
before an Administrative Law Judge ("AU"). (R. 25-53). His applications for benefits were denied
AU' s written decision issued on April 18, 2014.
Council affirmed the
(R. 11-20). On July 23, 2014, the Appeals
AU's decision to deny benefits, thereby making
it the final decision of the
Commissioner. (R. 1-5).
Plaintiff was born on January 17, 1989, making him 25 years old at the time of the AU's
decision. (R. 179). He has a high school diploma and has attended some college. (R. 209, 210).
He has past relevant work experience as a telemarketer, a fast food worker, and a check cashing
clerk. (R. 227). At the time of the hearing, Plaintiff reported he was enrolled in twelve credit hours
of college classes. (R. 30),
III. ISSUES PRESENTED
Plaintiff presents the following issues for review: (1) whether the AU erred in failing to find
Plaintiffs mental impairment meets the requirements of Listing 12.04; and, (2) whether the AU
committed reversible error by failing to consider whether the claimant was capable of maintaining
employment for a significant period of time.
Reference to the record of administrative proceedings is designated by "(R. [page
A. Standard of Review
This Court's review ofthe Commissioners decision is limited to a determination of whether
it is supported by substantial evidence on the record as a whole, and whether the proper legal
standards were applied in evaluating the evidence. Myers v. Apfel, 238 F.3d 617, 619 (5th Cir. 2001)
Shalala, 38 F.3d 232, 236 (5th Cir. 1994)). Substantial evidence is more than
a scintilla, but less than a preponderance, and is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. Ripley
Chater, 67 F.3d 552, 555 (5th Cir. 1995). A
finding of "no substantial evidence" will be made only where there is a "conspicuous absence of
credible choices" or "no contrary medical evidence." Abshire v. Bowen, 848 F.2d 638, 640 (5th Cir.
In determining whether there is substantial evidence to support the findings of the
Commissioner, the court must carefully examine the entire record, but may not reweigh the evidence
or try the issues de novo. Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000); Haywood v. Sullivan,
888 F.2d 1463, 1466 (5th Cir. 1989). The court may not substitute its own judgment "even if the
evidence preponderates against the [Commissioner's] decision" because substantial evidence is less
than a preponderance. Harrell
Bowen, 862 F.2d 471, 475 (5th Cir. 1988). Conflicts in the
evidence are for the Commissioner and not the courts to resolve. Speilman
360 (5th Cir. 1993). If the Commissioner's findings are supported by substantial evidence, they are
conclusive and must be affirmed. Id.
B. Evaluation Process and Burden
Disability is defined as the "inability to engage in substantial gainful activity by reason of any
medically determinable physical or mental impairment which.
has lasted or can be expected to
last for a continuous period of not less than 12 months." 42 U.S.C.
claims are evaluated according to a five-step sequential process: (1) whether the claimant is currently
engaged in substantial gainful activity; (2) whether the claimant has a severe medically determinable
physical or mental impairment or combination of impairments; (3) whether the claimant's
impairment or combination of impairments meets or equals the severity of an impairment listed in
20 C.F.R. Part 404, Subpart P, Appendix 1; (4) whether the impairment or combination of
impairments prevents the claimant from performing past relevant work; and, (5) whether the
impairment or combination of impairments prevents the claimant from doing any other work. 20
C.F.R. § 404.1520, 4 16.920. A finding that a claimant is disabled or not disabled at any point in
the process is conclusive and terminates the analysis. Greenspan, 38 F.3d at 236.
The claimant bears the burden of proof on the first four steps of the sequential analysis.
Leggett v. Chater, 67 F.3d 558, 565 (5th Cir. 1995). Once this burden is met, the burden shifts to
the Commissioner to show that there is other substantial gainful employment available that the
claimant is capable of performing. Anderson
Sullivan, 887 F.2d 630, 632 (5th Cir. 1989). The
Commissioner may meet this burden by the use of opinion testimony of vocational experts or by use
of administrative guidelines in the form of regulations. Rivers v. Schweiker, 684 F.2d 1144, 1155
(5th Cir. 1982). If the Commissioner adequately points to potential alternative employment, the
burden then shifts back to the claimant to prove that he is unable to perform the alternative work.
C. The AU's Decision
In his written decision, the AU determined as a threshold matter that Plaintiff met the
insured status requirements of the Social Security Act through June 30, 2014. (R. 13). The AU
found Plaintiff had not engaged in substantial gainful activity since September 26, 2012, the alleged
onset date. Id. At the next step, the AU determined Plaintiff has severe impairments consisting of
anxiety and depression. Id.
At step three, the AU determined Plaintiff does not have an impairment or combination of
impairments that meets or equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
(R. 14). The AU specifically cited to Listings 12.04 (Affective Disorders) and 12.06
(Anxiety Related Disorders). Id. Before reaching step four, the AU found Plaintiff retains the
residual functional capacity ("RFC ") to perform a full range of work at all exertional levels, but is
limited to unskilled one or two step tasks with short, simple instructions, performed in a work
environment that is free of fast paced production requirements, involving only simple, work-related
decisions and with few if any workplace changes. Further, Plaintiff is limited to work that requires
no interaction with the public and only occasional interaction with co-workers. (R. 15).
At step four, the AU found that Plaintiffis unable to perform his past relevant work. (R. 18).
At step five, based on the testimony of a vocational expert (yE), the AU found Plaintiff retains the
RFC to perform other work that exists in significant numbers in the national and regional economy,
such as garment sorter, plastic press molder, and wire worker stripper. (R. 19). Therefore, the AU
determined at step five that Plaintiff was not disabled. (R. 20).
of Plaintiff's Claims
Properly Found Plaintiff's Affective Disorder Did Not Meet Listing 12.04
Plaintiff claims the AU erred at step three when he found Plaintiffs mental impairment did
not meet the criteria of Listing 12.04 (Affective Disorders). Specifically, Plaintiff argues the
evidence shows he suffers from bipolar syndrome that satisfies the criteria of 12.04(A)(3). He next
argues that the criteria of paragraph C was met, and Plaintiff should have been found disabled at step
In analyzing Plaintiff's claim, the Court looks to the regulations governing the third step of
the sequential evaluation. At the third step, the AU determines whether the medical evidence meets
or equals the criteria of a listed impairment in Appendix
of the regulations. 20 C.F.R.
404.1520(d), 4 16.920(d). The Listing of Impairments in Appendix
describes conditions and
impairments that are sufficiently severe to prevent an individual from engaging in any gainful
activity, not just "substantial gainful activity," regardless of age, education or work experience. 20
404.1525(a), 416.925(a); Sullivan v. Zebley, 493 U.S. 521, 532 (1990). Thus, Plaintiff is
automatically entitled to benefits if his impairment meets or equals the criteria of one of the listed
impairments in Appendix
to Subpart P of Part 404. 20 C.F.R. §S 404.1520(d), 4 16.920(d).
Because the Listings were designed to operate as a presumption of disability that makes further
inquiry unnecessary, the medical criteria of the Listings are more restrictive than the statutory
disability standard. Zebley, 493 U.S. at 532.
The burden of proof rests with Plaintiff to provide and identify medical signs and laboratory
findings that support all criteria of a listed impairment. Id. at 530; Selders v. Sullivan, 914 F.2d 614,
619 (5th Cir. 1990). The criteria in the Listings are "demanding and stringent." Falco
27 F.3d 160,162 (5th Cir. 1994). A mere diagnosis of a condition will not suffice. "For a claimant
to show that his impairment matches a listing, it must meet all of the specified criteria. An
impairment that manifests only some of those criteria, no matter how severely, does not qualify."
Zebley, 493 U.S. at 530.
In order for Plaintiffs bipolar syndrome to be found disabling at step three pursuant to
Listing 12.04(A)(3), he must establish:
A. Medically documented persistence, either continuous or intermittent, of.
3. Bipolar syndrome with a history of episodic periods manifested by the full
symptomatic picture of both manic and depressive syndromes (and currently
characterized by either or both syndromes)
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration;
C. Medically documented history of a chronic affective disorder of at least 2 years'
duration that has caused more than a minimal limitation of ability to do basic work
activities, with symptoms or signs currently attenuated by medication or psychosocial
support, and one of the following:
1. Repeated episodes of decompensation, each of extended duration; or
2. A residual disease process that has resulted in such marginal adjustment that even
a minimal increase in mental demands or change in the environment would be
predicted to cause the individual to decompensate; or
3. Current history of 1 or more years' inability to function outside a highly supportive
living arrangement, with an indication of continued need for such an arrangement.
20 C.F.R. Pt. 404, Subpt. P, App. 1,
Plaintiff does not challenge the AU' s determination that the paragraph B criteria were not
Rather, Plaintiff argues his impairment meets the paragraph C criteria because he has
experienced multiple episodes of decompensation. Plaintiffs argument, however, neglects to
address the fact that in order to satisfy the paragraph C criteria, the repeated episodes of
decompensation must meet the strict definition in the Listing. The Listing provides:
The term repeated episodes of decompensation, each of extended duration in these
listings means three episodes within 1 year, or an average of once every 4 months,
each lasting for at least 2 weeks. If you have experienced more frequent episodes of
shorter duration or less frequent episodes of longer duration, we must use judgment
to determine if the duration and functional effects of the episodes are of equal
severity and may be used to substitute for the listed finding in a determination of
20 C.F.R. Pt. 404, Subpt. P, App. 1,
The AU correctly stated the definition of repeated episodes of decompensation in his
opinion. (R. 14). He also acknowledged that the record shows Plaintiff has required inpatient
The record shows Plaintiff was admitted for inpatient mental health
care as follows: December 28, 2012 to January 7,2013 (11 days); May 24, 2013 to June 3,2013 (11
days); and, August 26, 2013 to September 6, 2013 (12 days). (R. 307-313, 359-360, 431, 440-441).
In other words, although Plaintiff experienced three episodes of decompensation within one year,
none of the episodes lasted for at least two weeks. 20 C.F.R. Pt. 404, Subpt. P, App. 1,
12.00(C)(4). Nor has Plaintiff experienced "more frequent episodes of shorter duration or less
frequent episodes of longer duration" that would merit additional consideration under the Listing.
As stated earlier, "[flora claimant to show that his impairment matches a listing, it must meet
all of the specified criteria. An impairment that manifests only some of those criteria, no matter how
severely, does not qualify."
493 U.S. at 530. Accordingly, Plaintiff has not carried his step
three burden to show his mental impairment was of listing-level severity. Id.; Selders, 914 F.2d at
619. The AU correctly determined at step three that Plaintiffi s mental impairments do not meet or
equal a listed impairment, and then properly proceeded to the remaining steps in the sequential
evaluation. There is no error shown on this ground.
The AU incorrectly stated that Plaintiff was discharged after only a few days. (R. 16).
Nonetheless, this misstatement is not prejudicial since the duration of Plaintiff's hospitalizations,
although longer than a few days, were not "for at least 2 weeks" as required by the regulatory
definition at 20 C.F.R. Pt. 404, Subpt. P, App. 1, § l2.00(C)(4).
2. No Separate Finding Regarding Ability to Maintain Employment Required
Plaintiff contends the AU committed reversible legal error by failing to make a separate
finding regarding his ability to maintain employment as required by Singletary
Bowen, 798 F.2d
818 (5th Cir. 1986). Plaintiff concedes that such a finding is not required in every case. Frankv.
Barnhart, 326 F.3d 618, 619 (5th Cir. 2003). He argues, however, that such a finding is required
in his case because the medical evidence shows he experiences intermittent periods of incapacity due
to his severe impairment of bipolar disorder which causes him to experience intermittent mood
fluctuations. To show his symptoms "wax and wane," Plaintiff relies on recent low GAF scores4, his
testimony that he had difficulty maintaining employment, and on his report to the consultative
examining psychiatrist that he had trouble at work concentrating and remembering what to do and
would leave work due to panic attacks. (R. 3 1-34, 391-392, 405-415).
As acknowledged by Plaintiff, there is no medical opinion in the record regarding the extent
to which his mental condition would impede his ability to maintain employment. The AU discussed
the findings of consultative psychological examiner Randall Rattan, Ph. D. who found that although
Plaintiff had an anxious and agitated mood with pressured speech, he was alert, oriented, and
In Singletary, the Court held that substantial evidence did not support a finding that the
claimant "could maintain employment" because his "personal history indicated that he was never
able to hold ajob for long periods of time" due to mental problems. Id. at 822-23.
The Global Assessment of Functioning Scale is used by mental health clinicians and
physicians to rate an individual's overall level of psychological, social, and occupational
functioning on a scale of 0 to 100. American Psychiatric Association, DIAGNOSTIC AND
STATISTICAL MANUAL OF MENTAL DISORDERS 32-34 (4th ed. 2000). The GAF scale does not
have a direct correlation to the severity of listed mental impairments. See Hill v. Astrue, 2009
WL 2901530, at *7(s.D. Tex. Sept. 1, 2009) (noting the GAF scale, while potentially relevant,
does not directly correlate to an individual's ability or inability to work). The Commissioner has
specifically declined to endorse the GAF scale for use in the disability programs. See Revised
Medical Criteria for Evaluating Mental Disorders and Traumatic Brain Injury, 65 Fed. Reg.
50,746, 50,764-65, 2000 WL 1173632 (Aug. 21, 2000).
cooperative with thought processes that were generally logical, sequential, and coherent. (R. 16-17,
341-345). The AU also discussed the findings of consultative psychological examiner James W.
Schutte, Ph. D. who opined Plaintiff's ability to reason seemed mildly impaired due to a mood
disorder, and his ability to make occupational, personal, and social adjustments seemed moderately
impaired due to a mood disorder and anxiety. (R. 17, 393-394). The AU also discussed the
treatment notes and Medical Source Statement provided by treating psychiatrist Dr. Vanderpool.
(R. 17-18). He determined the Medical Source Statement should not be given controlling weight
as it was internally contradictory, did not contain medical/clinical findings to support the assessment,
and was contrary to the findings of the consultative examiners. (R. 17, 403-404).
The AU noted that the treatment records indicated Plaintiff's symptoms have remained
stable on medication. (R. 17-18). He correctly observed that two consultative psychiatric examiners
who performed thorough mental examinations on Plaintiff found no significant functional
restrictions. (R. 18). The AU noted that the treatment records from Plaintiff's primary mental
health care providers show that his "overall mental health has remained stable" and controlled with
medication from January 2013 through February 2014, with occasional exacerbations of symptoms.
(R. 16-18, 336-339, 378-389, 405-416). Further, it appears that during the relevant time period
Plaintiff's symptom exacerbations were related, at least in part, to medication non-compliance and
substance abuse. At the hearing, Plaintiff testified his use of illicit substances was "a last resort"
during a time when he was not getting proper treatment. (R. 42). He stated he feels things would
have gone differently for him if he had received the proper treatment earlier. (R. 43). Significantly,
Plaintiff testified he believed if he was rehired now at certain of his old jobs he would be able to
perform the work. (R. 42).
Although the AU did not discuss Plaintiff's OAF scores, this alone is not error as the AU
is not required to discuss every piece of evidence considered. The AU discussed in detail Plaintiffs
mental health medical records, including hospitalizations, follow up treatment, the results of two
consultative psychiatric examinations, the opinions of the state agency medical consultants, and the
Medical Source Statement provided by treating psychiatrist, Dr. Vanderpool. The AU concluded
the medical records as a whole indicate Plaintiffs symptoms are well controlled when he takes his
medication as prescribed. (R. 18).
There is nothing in the opinion that indicates the AU failed to address the mental health
evidence in the context of Plaintiffs ability to work on a regular and continuing
testified his biggest problem was "functioning in public.
being around people." (R. 43). The AU
found this testimony to be credible and accounted for Plaintiff's limitations by limiting him to
unskilled one or two step tasks with short, simple instructions, performed in a work environment that
is free of fast paced production requirements, involving only simple, work-related decisions and with
few if any workplace changes. Further, the AU limited Plaintiff to work that requires no interaction
with the public and only occasional interaction with co-workers. (R. 15). Plaintiff has not shown
hi condition waxes and wanes with a frequency or intensity not taken into account when the AU
assessed the RFC.
It is the task of the AU to weigh the evidence. Chambliss
Massanari, 269 F.3d 520, 523
(5th Cir. 2001). It is the task of this Court to determine if there is substantial evidence in the record
as a whole to support the
Id. (citing Greenspan, 38 F.3d at 240). As substantial
In the Applicable Law section of his opinion, the AU stated that an individual's RFC is
"his ability to do physical and mental work activities on a sustained basis despite limitations
from his impairments." (emphasis added) (R. 12).
evidence supports the AU's decision, it must be affirmed.
F.3d at 360.
It is therefore ORDERED that the decision of the Commissioner be, and it is hereby,
SIGNED and ENTERED this
of March, 2016.
MIGUEL A. TORRES
UNITED STATES MAGISTRATE JUDGE
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