Casillas v. Colvin
Filing
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MEMORANDUM OPINION AND ORDER. Signed by Judge Robert F. Castaneda. (mc4)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
DAVID B. CASILLAS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the Social
Security Administration,
Defendant.
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NO. EP-3:15-CV-00012-RFC
MEMORANDUM OPINION AND ORDER
This is a civil action seeking judicial review of an administrative decision.
Plaintiff
appeals from the decision of the Commissioner of the Social Security Administration
(ACommissioner@), denying his claims for Disability Insurance Benefits (ADIB@) and
Supplemental Security Income (ASSI@) under Titles II and XVI of the Social Security Act, 42
U.S.C. '' 423(d), 1382c(a)(3). 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
Appendix C to the Local Court Rules of the Western District of Texas. For the reasons set forth
below, the Commissioner=s decision is affirmed.
PROCEDURAL HISTORY
On November 9, 2011, Plaintiff filed his applications for DIB and SSI. (R:131, 135)1
The applications were denied initially and on reconsideration.
1
(R:56-69)
Pursuant to
Reference to documents filed in this case is designated by A(Doc. [docket entry
number(s)]:[page number(s)])@. Reference to the record of administrative proceedings filed in this case is
designated by A(R:[page number(s)])@.
Plaintiff=s request, an Administrative Law Judge (AALJ@) held a hearing to review Plaintiff=s
application de novo on July 18, 2013, at which Plaintiff and a vocational expert (AVE@)
testified. (R:14-37, 79-87) The ALJ issued her decision on September 11, 2013, denying
benefits.
(R:42-55)
Plaintiff=s request for review was denied by the Appeals Council on
October 24, 2014. (R:8-13)
ISSUE
Plaintiff presents the following issue for review:
1.
Whether the ALJ erred in finding that Plaintiff=s cervical spine impairment
is not of listing level severity. (Doc.17:2)
DISCUSSION
A.
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.
See Martinez v.
Chater, 64 F.3d 172, 173 (5th Cir. 1995); Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir.
1994), cert. denied, 514 U.S. 1120 (1995). Substantial evidence is more than a scintilla, but can
be less than a preponderance, and is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.
Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995). A
finding of no substantial evidence will be made only where there is a Aconspicuous absence of
credible choices@ or Ano contrary medical evidence.@
Abshire v. Bowen, 848 F.2d 638, 640 (5th
Cir. 1988) (citing Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)).
In reviewing the
substantiality of the evidence, a court must consider the record as a whole and Amust take into
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account whatever in the record fairly detracts from its weight.@
Singletary v. Bowen, 798 F.2d
818, 823 (5th Cir. 1986).
If the Commissioner=s findings are supported by substantial evidence, they are conclusive
and must be affirmed.
Martinez, 64 F.3d at 173.
In applying the substantial evidence
standard, a court must carefully examine the entire record, but may not reweigh the evidence or
try the issues de novo.
Haywood v. Sullivan, 888 F.2d 1463, 1466 (5th Cir. 1989).
It may not
substitute its own judgment Aeven 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 v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993).
B.
Evaluation Process
Disability is defined as the Ainability 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. ' 423(d)(1)(A).
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
medically determinable impairment that is severe; (3) whether the claimant=s impairment(s) meet
or equal the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1
(“Listing”); (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. A person=s residual functional capacity (ARFC@) is what he can still do
despite his limitations or impairments.
20 C.F.R. ' 404.1545(a); Soc. Sec. Ruling (“SSR”)
96-8p.
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An individual applying for benefits bears the initial burden of proving that he is disabled
for purposes of the Act.
Selders v. Sullivan, 914 F.2d 614, 618 (5th Cir. 1990). The claimant
bears the burden of proof at the first four steps, and once met, the burden shifts to the
Commissioner to show that there is other substantial gainful employment available that the
claimant is capable of performing.
Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987); Anderson
v. Sullivan, 887 F.2d 630, 632 (5th Cir. 1989). The Commissioner may meet this burden by the
use of opinion testimony of VE(s) or by the use of administrative guidelines provided 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.
Anderson, 887 F.2d
at 632-33.
C.
The ALJ=s Hearing Decision
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity
since September 30, 2011. (R:44)
At step two, the ALJ found that Plaintiff had the following severe impairments:
degenerative disk disease of the cervical and lumbar spine; and, left ulnar neuropathy.
(R:44)
At step three, the ALJ found that Plaintiff did not have an impairment or combination of
impairments meeting or medically equaling one of the listed impairments.
(R:45)
She
compared Plaintiff=s back problems to the severity criteria in Listing 1.04, describing
presumptively disabling spinal disorders.
(R:45) The ALJ found that the medical evidence
did not establish the requisite evidence of nerve root compression, spinal arachnoiditis or lumbar
spinal stenosis as required under said Listing.
Id.
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Furthermore, she found no evidence that
Plaintiff=s back disorder had resulted in an inability to ambulate effectively, as defined in Listing
1.00(B)(2)(b). (R:45)
Before arriving at step four, the ALJ found that Plaintiff had the RFC to perform light
work except that he was limited to occasional kneeling, crouching and crawling.
(R:45) He
was also limited to frequent handling and fingering with the left upper extremity and should
avoid exposure to extreme humidity.
(R:45)
At step four, the ALJ found that Plaintiff was capable of performing his past relevant
work as a presser. (R:48)
Alternatively, at step five, considering Plaintiff=s age, education,
work experience, and RFC, as well as VE testimony, the ALJ found that there are jobs that exist
in significant numbers in the national economy that Plaintiff can perform.
(R:48-49)
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 a
cleaner, housekeeper and a scaling machine operator.
(R:35, 49)
The ALJ concluded that Plaintiff had not been under a disability, as defined in the Social
Security Act, since his alleged onset date of September 30, 2011, through the date of the ALJ=s
decision. (R:49)
D.
Analysis: The ALJ=s finding that Plaintiff did not meet or equal the requirements
of Listing 1.04 of the Regulations is not the result of legal error and is supported by
substantial evidence.
Plaintiff claims that the ALJ failed to correctly evaluate whether Plaintiff=s impairment(s)
meet or equal Listing 1.04. (Doc. 17:3-7)
In essence, he contends that the ALJ committed
legal error by failing to discuss the evidence offered in support of Plaintiff=s claim for disability
and explain why she found Plaintiff not disabled, as required by Audler v. Astrue, 501 F.3d 446,
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448 (5th Cir. 2007). (Id.) Plaintiff also argues that the evidence in the record indicates that
Plaintiff=s impairment(s) did meet or equal all the criteria in Listing 1.04.
(Doc. 17:4, 7)
In Audler, the Fifth Circuit found the ALJ=s summary conclusionCthat the medical
evidence indicated that Plaintiff=s impairments, while severe, were not severe enough to meet or
medically equal any of the impairments listed in Appendix 1, Subpart PCto be beyond
meaningful judicial review because the ALJ offered nothing to support her conclusion at step
three. Audler, 501 F.3d at 448. The Fifth Circuit, however, made clear than an exhaustive
point-by-point discussion is not required.
Id.
Further, any error in providing a conclusion
beyond judicial review is subject to harmless error analysis.
Id. The Court found the error
harmful in Audler because a diagnostic checklist indicated that Audler met the criteria of a listing
and there was no medical evidence to contradict such findings.
Id., at 449.
This case is unlike Audler, where the ALJ did not identify the listed impairment for
which Audler=s symptoms failed to qualify and failed to provide any explanation as to how she
reached the conclusion that Audler=s symptoms were insufficient to meet any listed impairment.
Here, the ALJ not only identified Listing 1.04, but also noted the specific impairment(s) under
consideration, pointed out that the medical evidence was relatively weak, and identified the
criteria that was not met.
(R:46)
The ALJ also discussed the evidence in other sections of her
decision. (R:46-48) Finally, the ALJ noted that the state agency physicians both opined that
Plaintiff could perform a full level of light work.
(R:47) Though these opinions were not
fully adopted, they nevertheless support the ALJ=s finding that Plaintiff=s impairment(s) did not
meet or equal listing-level severity. The Court does not find the ALJ=s conclusion to be beyond
judicial review.
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Of critical significance to her decision is the ALJ=s finding that there was no evidence
that Plaintiff=s back disorder had resulted in an inability to ambulate effectively, as defined in
Listing 1.00(B)(2)(b).
same conclusion.
(R:45)
The Court, having reviewed the entire record, comes to the
Rather than refer to any evidence which might contradict the ALJ=s
conclusion, Plaintiff argues that Listing 1.04(A) does not require an inability to ambulate for an
individual to meet or equal the listing requirements.
(Doc.17:4) Unfortunately for Plaintiff,
such is not the case.
An individual can establish per se disability if he can show his impairment(s) meet or
equal any listing for an impairment contained in the Listing of Impairments, 20 C.F.R. Part 404.
Subpart P, Appendix 1. Sullivan v. Zebley, 493 U.S. 521, 532 (1990). This includes any
relevant criteria in the introduction for the listing for the relevant body system.
20 C.F.R. '
404.1525(c)(3). Regardless of the specific musculoskeletal system impairment, the claimant
must demonstrate a loss of function as defined in the introduction to the listing as the inability to
either ambulate or to perform fine and gross movements effectively on a sustained basis for any
reason, including pain associated with the underlying musculoskeletal impairment.
20 C.F.R.
Part 404, Subpart P, Appendix 1, ' 1.00(B)(2); see also Audler, 501 F. 3d at 449. To ambulate
effectively, one Amust be capable of sustaining a reasonable walking pace over a sufficient
distance to be able to carry out activities of daily living.@
20 C.F.R. Part 404, Subpart P,
Appendix 1, ' 1.00(B)(2)(b)(2). An example of ineffective ambulation includes an inability to
walk a block at a reasonable pace on rough or uneven surfaces.
Id.
As the ALJ determined, and as the record shows, Plaintiff failed to produce evidence to
meet the relevant criteria in the introduction for Listing 1.04 that relate to ambulation.
Furthermore, the ALJ concluded that Plaintiff=s credibility was seriously lacking, and provided
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ample reasons to justify this conclusion, i.e., he had claimed that he had been laid off from his
past work due to a change in management, rather than due to his impairments; and, he collected
unemployment benefits in 2012, which required him to continue to seek work.
(R:47) The
Court finds that the ALJ was justified in arriving at this credibility determination.
Finally, Plaintiff argues that the record evidence indicates that Plaintiff=s impairment(s)
meet the criteria in Listing 1.04A. (Doc. 20:5-7) The Court, however, reviews only whether
there is substantial evidence to support the ALJ=s determination that Plaintiff=s impairment did
not meet or equal a listing impairment.
See Greenspan v. Shalala, 38 F.3d at 232, 236 (5th Cir.
1994).
Listing 1.04, entitled ADisorders of the spine@, includes disorders such as spinal stenosis
and degenerative disc disease.
20 C.F.R. Part 404, Subpart P, App. 1, ' 1.04. To meet the
listing, there must be (A) evidence of nerve root compression, or (B) spinal arachnoiditis, or (C)
lumbar spinal stenosis. Id. The associated criteria of each subsection must also be satisfied.
Id.
Regarding the associated criteria for Listing 1.04 impairments under subsections (A)
through (C), the ALJ did not address what records might support which criteria, or why she
found each individual record failed to support such criteria. The ALJ=s explanation, however,
when read together with the rest of her decision, is clear: it was not necessary to address these
associated criteria in detail inasmuch as Plaintiff failed to meet the relevant criteria in the
introduction for Listing 1.04.
The ALJ=s finding that no objective medical evidence in the
record established an impairment as severe as described in Listing 1.04, in conjunction with the
ALJ=s credibility finding, provides substantial evidence in support of the ALJ=s step three
determination.
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Alternatively, even if the ALJ erred by not addressing how the medical evidence
corresponded to the associated criteria, the Court finds this error to be harmless, because the
record does not support the conclusion that Plaintiff=s impairment meets or equals any of the
listed impairments.
See Audler, 501 F.3d at 448.
AProcedural perfection in administrative
proceedings is not required. This 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). This 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.2d 333, 335 (5th Cir. 1988).
CONCLUSION
The Court concludes that the ALJ=s findings are not the result of legal error and are
supported by substantial evidence.
Plaintiff raises no other issues.
The Commissioner=s
decision is, therefore, AFFIRMED.
SIGNED this 3rd day of June, 2016.
ROBERT F. CASTANEDA
UNITED STATES MAGISTRATE JUDGE
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