Ramos v. Colvin
MEMORANDUM OPINION AND ORDER. It is ordered that the decision of the Commissioner will be affirmed.. Signed by Judge Miguel A. Torres. (lc3)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
OCT23 PM 1:
NANCY A. BERRYHILL,'
ACTING COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION §
MEMORANDUM OPINION AND ORDER
This is a civil action seeking judicial review of an administrative decision pursuant to 42
405(g). Plaintiff Luciana Ramos ("Ramos") appeals from the decision of the
Commissioner of the Social Security Administration ("Commissioner") denying her claims for
Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("the Act") and
Supplemental Security Income ("SSI") under Title XVI of the Act. The parties consented to the
transfer of the case to this Court for determination and entry of judgment.
636(c); Local Court Rule CV-72. For the reasons set forth below, the Commissioner's decision
will be AFFIRMED.
Nancy A. Benyhill is now the Acting Commissioner of the Social Security Administration. Pursuant to Federal
Rule of Civil Procedure 25(d), Nancy A. Berryhill is substituted for Acting Commissioner Carolyn W. Colvin as the
defendant in this case.
Ramos worked as a part-time cook's assistant for one year ending in October 2012, prior
to which she worked at two Golden Corral restaurants for roughly seven years. (R. 7374)2 She
was forty-nine years old at the time
of her hearing before the Administrative Law Judge ("AU")
in 2013. (R. 72). Ramos filed applications for SSI on March 8, 2010, and for DIB on March 12,
2010, in which she alleged disability beginning October 26, 2009, due to back problems,
shoulder problems, problems with her waist, high blood pressure, cholesterol, and diabetes. (R.
285-92, 314). After her applications were denied initially and upon reconsideration, Ramos
requested a hearing. (R. 145-158). On July 6, 2011, she appeared with her attorney for a
videoconference hearing before an AL
(R. 43-68). During the hearing, the AU overruled an
objection regarding the denial of a request for an in-person hearing. (R. 46-48). The Appeals
Council remanded the matter because of the denial of the request for an in-person hearing. (R.
136-140). On March 25, 2013, an in-person hearing was conducted pursuant to the Appeals
Council remand. (R. 69-89). On June 14, 2013, the AU issued a written decision denying
benefits on the grounds that Ramos was capable of performing past relevant work as a cook's
assistant and, in the alternative, other work that exists in significant numbers in the national
economy. (R. 23-37). On September 5, 2014, the Appeals Council denied Ramos' request for
review, thereby making the AU's decision the Commissioner's fmal administrative decision. (R.
3-9). Ramos argues that: (1) the AU erred in fmding that Ramos' back impairments are not
listing-level severity; and (2) the AU's residual functional capacity ("RFC") determination is not
supported by substantial evidence. (ECF No. 19, at 2-3).
Reference to the record of administrative proceedings is designated by (R [page number(s)]).
STANDARD OF REVIEW
This Court's review is limited to a determination of whether the Commissioner's final
decision is supported by substantial evidence on the record as a whole and whether the
Commissioner applied the proper legal standards in evaluating the evidence. Myers
F.3d 617, 619 (5th Cir. 2001) (quoting Greenspan
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 to support a conclusion. Ripley
552, 555 (5th Cir. 1995).
Chater, 67 F.3d
A fmding 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 (5th Cir. 1988).
In determining whether there is substantial evidence to support the fmdings of the
Commissioner, the Court must carefully examine the entire record, but may not reweigh the
evidence or try the issues de novo. Newton
Apfel, 209 F.3d 448, 452 (5th Cir. 2000). 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 v.
Bowen, 862 F.2d 471, 475 (5th Cir. 1988). Conflicts in the evidence are for the Commissioner
and not the courts to resolve. Spellman
F.3d 357, 360 (5th Cir. 1993). If the
Commissioner applied the proper legal standards and her fmdings are supported by substantial
evidence, they are conclusive and must be affirmed. Id.
Disability is defined as the "inability to engage in any 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.
423(d)(1)(A). Disability 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. 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.
Chater, 67 F.3d 558, 564 (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
1155 (5th Cir. 1982).
Schweiker, 684 F.2d 1144,
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
Harris, 631 F.2d 1244, 1246 (5th Cir. 1980) (citations omitted).
B. SmP THREE LIsTING, DISORDER OF THE SPINE 1 .04A
Ramos argues that the AU erred in fmding her back impairment is not of listing-level
severity. At step three of the sequential evaluation, the burden rests with the claimant to prove
that her impairment meets or medically equals an impairment enumerated in one of the listings.
See Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991). To show that a back impairment
qualifies under Listing
.04A, the claimant must demonstrate:
Evidence of nerve root compression characterized by neuro-anatomic distribution
of pain, limitation of motion of the spine, motor loss (atrophy with associated
muscle weakness or muscle weakness) accompanied by sensory or reflex loss and,
if there is involvement of the lower back, positive straight-leg raising test (sitting
Pt. 404, Subpt. P, App'x 1,
1.04A. An AU is required to discuss the evidence
offered in support of a claimant's claim of disability and if no disability is found at the third step
to explain the reasons why, though an exhaustive point-by-point discussion is not always
will only be
Astrue, 501 F.3d 446, 448 (5th Cir. 2007) (citing 42 U.S.C.
administrative proceedings, procedural perfection is not
vacated if the substantial rights of a party have been affected. Mays
Bowen, 837 F.2d 1362,
1364 (5th Cir. 1988) (citations omitted).
Ramos has failed to meet her burden of providing evidence of motor loss accompanied by
sensory or reflex loss. Early in her argument, Ramos asserts that she meets or equals all criteria
.04A and cites over fifty pages of the record in support. (ECF No. 19, at 5). No
analysis of the medical records is presented at this stage, and certain medical records are never
discussed at all. Moreover, some of the medical records cited weigh against Ramos satisfying the
.04A requirements. For example, one medical report from October 31, 2009, states
that Ramos "[d]enies arthritis
of back, limitation of activity, limitation of movement, pain
." (R. 427). Another medical report from July 17, 2012, asserts that Ramos
"complains of low back pain, but denies thoracic back pain, hip pain, SI joint pain, fever, flank
pain, numbness, weakness, loss of sensation, decreased mobility.
." (R. 585). Absent analysis
and explanation by Ramos' attorney, it is unclear how such records demonstrate that Ramos
suffered motor loss accompanied by sensory or reflex loss.
Later, when specifically addressing the motor loss accompanied by sensory or reflex loss
criterion, Ramos argues this requirement was met because she "testified that she cannot stand or
walk long periods of time and experiences numbness to [her] arms, legs and hands." (ECF No.
19, at 6). The only evidence offered in support are subjective assessments made by Ramos
during the hearing. (R. 56, 58-59, 82). Such subjective self-assessments are by themselves
20 C.F.R. Pt. 404, Subpt. P, App'x I,
§ I .00D
("These physical findings must be
determined on the basis of objective observation during the examination and not simply a report
of the individual's allegation; e.g., 'He says his leg is weak, numb.");
see also Selders
914 F.2d 614, 619 (5th Cir. 1990) ("The claimant must provide medical findings that
support each of the criteria for the equivalent impairment determination.") (citations omitted).
On the other hand, the AU's finding that Ramos has not sufficiently demonstrated motor
loss accompanied by sensory or reflex loss is supported by the medical reports of examining
physicians. On May 7, 2010, examining physician Onyema F. Amakiri, D.O., reported that
Ramos' "[m]usculoskeletal exam reveals full range of motion, syimnetric strength, and normal
muscle tone without any atrophy or abnormal movements." (R. 454). A July 17, 2012, medical
examination by Danelia Castellon, M.D., revealed that Ramos demonstrated "normal sensation,
reflexes, coordination, muscle strength and tone." (R. 587).
Additionally, Ramos argues that the AU ened by not discussing a lumbar spine MRI
when analyzing the applicability of Listing
.04A to her back impairment. Although the AU
did not discuss the lumbar spine MRI at step three, it was addressed later on in her opinion in the
context of determining Ramos' RFC. (R. 30). Thus, any limitations found in the lumbar spine
MRI were ultimately discussed and considered by the AU, which is sufficient as procedural
perfection is not a requirement.
837 F.2d at 1364. Furthermore, the lumbar spine MRI
of itself does not prove that Ramos suffered motor loss accompanied by sensory or reflex
loss. (R. 493);
404.1525(d), 416.925(d) ("Your impairment(s) cannot meet
the criteria of a listing based only on a diagnosis."). Accordingly, the Court finds that the
determination that Ramos' spinal disorder did not satisfy the requirements of Listing
supported by substantial evidence.
C. RFC SUPPORTED BY SUBSTANTIAL EVIDENCE
The AU found that Ramos has the RFC to perform medium work as defined in 20 C.F.R.
404.1567(c) and 416.967(c)
except that she is: (1) limited to work involving detailed but not
complex tasks; (2) is able to maintain concentration, persistence, or pace for two hours at one
time; and (3) is illiterate in the English language and communicates only in Spanish. (R. 28).
"Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects
weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also do sedentary
and light work." 20 C.F.R § 404.1567(c), 416.967(c) (emphasis added).
"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, a job 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. To be considered capable of performing a full or wide range of light work, you must have the
ability to do substantially all of these activities." 20 C.F.R § 404.1567(b), 4 16.967(b).
"Frequent' means occurring from one-third to two-thirds of the time. Since frequent lifting or carrying
requires being on one's feet up to two-thirds of a workday, the full range of light work requires standing or
walking, off and on, for a total of approximately 6 hours of an 8-hour workday. Sitting may occur
intermittently during the remaining time." SSR 83-10, at *6 (1983) (emphasis added).
Ramos argues that the
AU's RFC finding failed to accommodate her standing and
walking limitations, specifically in regard to the six-hour standing/walking requirements of light
work. In support of her argument, Ramos cites to several diagnoses and radiological results
indicating that she suffers from a back impairment. However, none of these results explicitly
establish any specific limitations regarding her ability to stand and/or walk for six hours in an
eight-hour work day. See Hames
Heckler, 707 F.2d 162, 165-66 (5th Cir. 1983) ("The mere
presence of some impairment is not disabling per
Plaintiff must show that she was so
functionally impaired by her back trouble that she was precluded from engaging in any
substantial gainful activity.
It should also be noted that individuals capable of performing
even light or sedentary work, despite back trouble, are not disabled under the Act.") (internal
citations omitted). A December 15, 2010, examination report does note that she had an abnormal
gait. (R. 487). However, details as to any limitations related to the abnormality are not discussed.
The December 14, 2011, physician statement from Sergio Alvarado, M.D., is similarly
unhelpful. Although the statement indicates that Ramos' "disability is permanent," it does not
mention specific limitations that relate to her ability to stand or walk, and in fact contains scant
information other than a primary "disabling" diagnosis of "severe back pain" and a secondary
"disabling" diagnosis of "bilateral shoulder pain." (R. 556). See Frank
Barnhart, 326 F.3d
618, 620 (5th Cir. 2003) (treating doctors opinions that a claimant is "disabled" or "unable to
work" are not medical opinions and entail no special significance in the AU's determination).
AU's RFC detenmnation
is supported by objective medical evidence in the record.
Dr. Amakiri's examining consultation on May 7, 2010, revealed a:
full range of motion, symmetric strength, and normal muscle tone without any
atrophy or abnormal movements. Lumbar ROM shows 90 degrees flexion without
pain, 45 degrees extension without pain, 45 degrees L Side bend without pain, 35
degrees R Side bend without pain, 60 degrees L Rotation without pain, 60 degrees
R Rotation without pain. Movement is normal, can hop without difficulty and can
squat without difficulty. Muscle strength is 5/5 for all groups tested. Muscle tone
is normal. Muscle volume is normal. ROM is within normal limits. . . . Gait and
station examination reveals midposition without abnormalities, moving normally,
normal arm swing, with normal heel-toe and tandem walking, patient moves
around the room easily, normal heel walking, normal tip-toe- walking and normal
(R. 454). This evaluation is bolstered by a June 8, 2010, RFC assessment completed by state
agency non-examining physician Roberta Herman, M.D., who concluded that Ramos can stand
and/or walk for about 6 hours in an 8-hour workday, and otherwise supported an RFC fmding of
medium work. (R. 458). Dr. Herman's assessment was affirmed by Jeanine Kwun, M.D., on
August 3, 2010. (R. 472). A May 25, 2012, medical report by Sergio Alvarado, M.D., states that
Ramos' gait was "wnl" (within normal limits). (R. 595). These medical reports greatly outweigh
the objective medical evidence offered by Ramos.
Ramos also offers her own subjective testimony that she is unable to stand and/or walk
for six hours in an eight-hour work day. It is well established that the
determinations regarding a claimant's subjective complaints are entitled to deference. Brown
372 F. Supp. 2d 957, 972 (S.D. Tex. 2005) (collecting cases). The AU determined
that Ramos' subjective complaints as to her limitations were not credible inasmuch as they
conflicted with the RFC fmding. (R. 29). The AU offered several bases for fmding the claimant
not entirely credible, including: (1) the claimant's complaints at the hearing far exceeded
objective medical fmdings and often the complaints she made to her health care providers; and
(2) the claimant's lack of candor regarding her post-onset work activity. (R. 34). Ramos has not
offered rebuttals to the
AU's concerns underlying the credibility finding, nor has
objective medical evidence that adequately supports her subjective claims. Accordingly, the
Court finds that the AU's RFC determination is supported by substantial evidence.
IT IS ORDERED that the decision of the Commissioner will be AFFIRMED
SIGNED and ENTERED this
ay of October, 2017.
MIGUEL . TORRES
UNITED STATES MAGISTRATE JUDGE
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