Garcia v. Colvin
Filing
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MEMORANDUM OPINION AND ORDER. The Court hereby ORDERS that the decision of the Commissioner be AFFIRMED consistent with this opinion. Signed by Judge Leon Schydlower. (gp)
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
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MAHRA MAGDALENA GARCIA,
Plaintiff,
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V.
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CAROLYN W. COLYIN,
Acting Commissioner of Social Security
Administration,
Defendant.
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NO. EP-15.ICV-J2i6-fS
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 applications for
disability insurance benefits and supplemental security income under Title II and Title XVI,
respectively, of the Social Security Act. Jurisdiction is predicated upon 42 U.S.C. § 405(g). Upon
consent of the parties, the case was transferred to this Court pursuant to the provisions of 28 U.S.C.
§ 636(c) and Appendix C to the Local Court Rules for the Western District of Texas to conduct any
and all further proceedings in the cause including trial and entry ofjudgment. [ECF No. 20] For the
reasons set forth below, this Court orders that the Commissioner's decision be AFFIRMED.
I. FACTS AND PROCEEDINGS'
In April 2012 Plaintiff filed applications for disability insurance benefits and supplemental
security income with an alleged onset date of April 1, 2012, due to limitations caused by her
medical conditions.
(R: 13) After Plaintiff's applications were denied initially and on
reconsideration, Administrative Law Judge (AU) Ann Farris held a hearing in March 2014. The
AU issued a decision on May 5, 2014, concluding that Plaintiff was not disabled. (R:13-23) The
1
Reference to the Administrative Record, contained in Docket Entry Number 16, is designated by
an "R" followed by the page number(s).
Appeals Council denied review making the AU' s decision the final administrative decision of the
Commissioner. (R: 1-4) This appeal followed.
II. ISSUES
Plaintiff contends that the AU's residual functional capacity (RFC) determination is not
supported by substantial evidence. She claims that in making the RFC determination the AU
failed to properly consider all of Plaintiffs limitations, failed to give proper weight to a treating
physician's opinion, and failed to properly develop the record with a consultative examination or
request for clarification from the physician. For these reasons, Plaintiff 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: 1) whether the
decision is supported by substantial evidence on the record as a whole; and 2) whether the
Commissioner applied the proper legal standards. Perez
2005); Masterson
V.
Barnhart, 309 F.3d 267, 272
(5th
v.
Barnhart, 415 F.3d 457, 461
(5th1
Cir.
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.
IV. EVALUATION PROCESS
A claimant bears the burden of proving a disability, which is defined 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)(l), 1382c(a)(3)(A); 20
C.F.R. § 404.1505(a), 416.905(a); Masterson, 309 F.3d at 271.
The AU evaluates disability claims according to a sequential five-step process:
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;
1. Is
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.
(5th
Cir. 2001); Wren
Boydv. Apfel, 239 F.3d 698, 704-05
v.
(5th
Cir.
Sullivan, 925 F.2d 123, 125
1991); see also 20 C.F.R. § 404.1520, 416.920.
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.
(5th
Cir. 1995). If the claimant meets this burden, the burden then shifts to
Chater, 67 F.3d 558, 564
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
v.
Heckler, 707
(5th
Cir. 1983). Rather, it is Plaintiff's burden to establish disability and to provide or
F.2d 162, 165
identify medical and other evidence of her impairments and how they affect her ability to work.
See 20 C.F.R. §
404.1512(c), 416.912(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, 416.908, 416.928, 416.929.
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
December 31, 2016. (R:15)
2. Plaintiff had not engaged in substantial gainful activity since April 1, 2012, the alleged
onset date. (R:15)
3.
Plaintiff had severe impairments of: status-post craniotomy and radiation treatment for
a tumor at the skull base; mild residual hearing loss; diplopia when tired; Homer
Syndrome; diabetes insipidus; and alcohol abuse.2 (R: 15)
of impairments that met or
of one of the listed impairments in 20 C.F.R. Part 404,
medically equaled the severity
4. Plaintiff did not have an impairment or combination
Subpart P, Appendix
1. (R: 16)
5.
Plaintiff retained the residual functional capacity to perform sedentary work with
additional postural and environmental limitations. (R: 17) See 20 C.F.R. §
404.1567(a), 416.967(a).3
6.
Plaintiff was not capable of performing her past work as a cashier, a sales clerk, a
security guard, or a stock clerk. (R:22)
7.
Considering Plaintiff's age, education, work experience, and RFC, jobs existed in
significant numbers in the national economy that Plaintiff could perform, such as an
egg processor, a cuff holder, and a bench hand. (R:22, 23)
Consequently, the AU concluded that Plaintiff was not disabled from her alleged onset
date through the date of the AU's decision. (R:23)
VI. DISCUSSION
Plaintiff asserts that the AU erred in determining her residual functional capacity by
failing to properly accommodate her limitations. She further argues that in determining her RFC
the AU failed to properly consider the opinions of Dr. David Grosshans, a treating physician. The
A craniotomy refers to any operation on or incision into the cranium. See Dorland 's Illustrated
Medical Dictionary, 416 (29th ed. 2000). Diplopia is the perception of two images of a single object, and is
also called double vision. Id. at 508. Homer's Syndrome is caused by a disruption of the nerve pathway
from the brain to one side of the face resulting in a drooping eyelid, a constricted pupil, and little or no
sweating on the affected side of the face. Id. at 1757. Diabetes insipidus is a disorder characterized by
excessive urination causing dehydration and intense thirst and may result from damage to the pituitary
gland. Id. at 489.
2
"Sedentary work involves 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(a), 4 16.967(a). "Occasionally" means occurring from very little to up to one-third of
the time, which for sedentary work should generally total no more than about 2 hours of standing or walking
and approximately 6 hours of sitting in an 8-hour workday. Social Security Ruling 83-10.
5
Defendant responds that the AU
properly considered the limiting effects of Plaintiffs
impairments and that substantial evidence supports the decision of the AU.
Residual functional capacity is the most an individual can still do despite her limitations.
20 C.F.R. § 404.1545, 416.945. The responsibility to determine a claimant's RFC belongs to the
AU. 20 C.F.R. § 404.1546, 416.946; Ripley v. Chater, 67 F.3d 552, 557 (5 Cir. 1995). The AU
must consider a claimant's abilities despite her physical and mental limitations based on the
relevant evidence in the record. Perez, 415 F.3d at 461-62. The AU must consider the limiting
effects of an individual's impairments, even those that are non-severe, and any related symptoms.
See 20 C.F.R. §
404.1529, 404.1545, 416.929, 416.945. The relative weight to be given the
(5th
Cir.
evidence is within the AU's discretion. Chambliss v. Massanari, 269 F.3d 520, 523 n. 1
2001).
Plaintiff underwent surgery in April 2012 for a brain tumor at the base of the skull. (R:220)
She subsequently underwent proton radiation treatment near the pituitary area from June 2012 to
August 2012. (R:220, 454) On August 3, 2012, Dr. David Grosshans, a radiation oncologist at MD
Anderson Cancer Center, prepared a statement indicating that Plaintiff was treated with radiation
therapy there at the Center. (R:390) He opined that she had significant vision impairment which
may impair her ability to read informational signs or symbols and that such impairment may be
permanent unless the condition drastically improved. (R:390) On February 12, 2013, Dr
Grosshans prepared a statement indicating that Plaintiff had cancer of the skull base with vision
impairment, hearing impairment, and neurological conditions due to the tumor and treatments she
had received. (R:394) He stated that her impairments were most likely permanent. (R:394)
Review of the record shows that the AU's RFC determination is supported by substantial
evidence. First, evidence relating to Plaintiffs vision shows that Dr. Jade Schiffman conducted a
neuro-opthalmalogy exam in June 2012 and found her to have normal visual acuity and full visual
fields in both eyes. (R:340-44) Examination did reveal the presence of right cranial nerve-6 palsy
and right cranial nerve-5
paresis.4
(R:344) Plaintiffs eye conditions were managed with prism
glasses and eye drop solutions. (R:344, 432) Upon examination in February 2013 Dr. Grosshans
reported that Plaintiffs "eye tracks better today than when I last saw her" and that she "was doing
very well clinically." (R:408) Dr. Paul Gidley also examined Plaintiff in February 2013 and noted
that her extraocular motion was intact with no visible nystagmus. (R:406) Plaintiff reported being
more diligent with use of the eye drops for treatment of her dry eye condition. (R:408) In July 2013
Plaintiff reported only "occasional double vision, which is improving." (R:456) In February 2014
Dr. Dan Gombos examined Plaintiff and assessed her visual acuity and visual fields as normal in
both eyes. (R:430, 431) Dr. Andrew Whyte also examined Plaintiff at that time and noted that she
continued to use the prism glasses as needed and continued treatment with the eye drop solution.
(R:432-34) Plaintiff reported that she generally did not experience double vision until the end of
the day or when extremely tired. (R:432-34)
With respect to Plaintiffs hearing impairment, the evidence shows that in June 2012 James
Hall conducted a consultative audiology evaluation of Plaintiff. Although he assessed various
levels of hearing loss, he opined that she would be expected to experience at least minimal
difficulty with normal conversation when in a noisy listening environment. (R:338) Mr. Hall
recommended that she avoid noise exposure and use ear protection. (R:338, 339) Upon
examination in February 2013 Mr. Hall determined that Plaintiff experienced some improvement
Cranial nerve palsy refers to facial paralysis while paresis refers to partial paralysis or weakness.
(29th
ed. 2000).
See Dorland's Illustrated Medical Dictionary, 1307, 1324
"
7
in her hearing loss. He noted that her hearing was improving and stable and would be monitored
conservatively. (R:403) He opined that she would be expected to experience no more than minimal
difficulty in hearing and understanding normal conversational speech in most listening
environments. (R:399) Plaintiff was examined by Dr. Gidley in February 2013, who determined
that her hearing had improved and was stable. (R:406-07) He indicated that she would be
monitored conservatively. (R:407)
Also, evidence regarding Plaintiff' s neurological conditions shows that post-surgery she
exhibited an unassisted gait, intact speech and memory, and normal motor strength in her upper
and lower extremities. (R:276, 279) In May 2012 Dr. Grosshans reported that she had full motor
strength in both her upper and lower extremities. (R:351) Dr. Susan McGovern examined Plaintiff
in July 2012 and found that she had normal strength (5/5) in her upper and lower extremities.
(R:322) In February 2013 Dr. Grosshans reported that she ambulated without difficulty and that
she had full strength in her upper and lower extremities. (R:408) He further reported MRI results
showing Plaintiff's lesion to be smaller compared to the pre-radiotherapy scan. (R:408) Dr.
Grosshans reported at that time that Plaintiff was "doing very well clinically." (R:408) An MRI of
Plaintiff's face and skull in July 2013 revealed her condition as stable with no evidence of
progression. (R:422) Moreover, upon examination of Plaintiff in February 2014, Dr. Maria
Cabanillas found no evidence of anterior pituitary deficiencies and determined that her right
cranial nerve-6 palsy and nerve-S paresis were stable. (R:437)
Thus, the evidence shows that the AU adequately accommodated Plaintiff's functional
limitations by restricting her to sedentary work with additional postural and environmental
limitations. The AU accounted for Plaintiff's hearing by restricting her to working in no more
than moderate noise level. Also, in response to Plaintiff's testimony that exposure to cold air
caused her to experience facial stiffness, the AU incorporated into the RFC determination a
restriction precluding exposure to extreme cold. (R:42-43) Plaintiff fails to show, and the evidence
does not reflect, that any physicians imposed functional limitations beyond those recognized by
the AU in her RFC determination. Consequently, the Court finds that substantial evidence
supports the AU's RFC decision.
Plaintiff also contends that in determining her RFC, the AU failed to properly weigh Dr.
Grosshans' opinions from August 2012 and February 2013. Ordinarily the opinions of a treating
physician who is familiar with the claimant's conditions should be accorded great weight in
determining disability. Newton
v.
Apfel, 209 F.3d 448, 455
(5th
Cir. 2000) (citation omitted). If a
treating physician's opinion on the nature and severity of an impairment is well supported by
objective medical evidence and not inconsistent with other substantial evidence, it will be given
controlling weight. 20 C.F.R. § 404.1527(c)(2), 416.927(c)(2). The AU is free to reject the
opinion of any physician when the evidence supports a contrary conclusion. Newton, 209 F.3d at
455. Good cause may permit an AU to discount the weight of a treating physician relative to other
experts where the treating physician's evidence is conclusory, is unsupported by medically
acceptable clinical, laboratory, or diagnostic techniques, or is otherwise unsupported by the
evidence. Id. at 456. Absent reliable medical evidence from a treating or examining physician
controverting the claimant's treating specialist, an AU may reject the opinion of the treating
physician only if the AU performs a detailed analysis of the treating physician's view under the
criteria set forth in 20 C.F.R.
§
404.1527, 416.927. See id. at 453.
Here, the AU considered Dr. Grosshans' opinions but noted their inconsistencies with the
physician's own treatment records and with Plaintiff's reported improvements. The AU noted that
contrary to the physician's statements, Plaintiff reported improvement in her vision and Dr.
Grosshans reported her to be "doing very well clinically." (R:20, 21) Moreover, the opinions are
controverted by other opinions from examining physicians at the MD Anderson Cancer Center.
Dr. Gombos assessed Plaintiff with normal visual acuity, and Dr. Gidley found Plaintiff's hearing
had improved and was stable. As shown above, the evidence demonstrates that Plaintiff's
condition continued to improve or remained stable. Aside from stating that Plaintiff had
impairments that were most likely permanent, Dr. Grosshans' opinions do not indicate any
functional limitations. Thus, in addition to being unsupported and contrary to other evidence, Dr.
Grosshans' statements are conclusory and not entitled to controlling weight. See Leggett, 67 F.3d
at 566 (good cause for abandoning the treating physician rule includes disregarding statements that
are brief and conclusory and unsupported by the evidence).
Plaintiff further argues that the AU should have requested clarification from Dr.
Grosshans or requested a consultative examination to further develop the record. However,
recontacting a physician is only required when the AU cannot reach a conclusion about the
claimant's disability. See 20 C.F.R.
§
404.l520b, 416.920b. Similarly, a consultative
examination will not be required unless the AU is unable to reach a disability determination on the
available evidence. See 20 C.F.R.
526
(5t1
§
404.1519a, 416.919a; see also Jones v. Bowen, 829 F.2d 524,
Cir. 1987) (a consultative examination at government expense is not required unless
necessary to enable the AU to make a disability decision). In her decision, the AU thoroughly
examined the evidence and was able to make her determinations based upon such evidence. The
Court has already found that substantial evidence supports the
10
AU's RFC determination. Thus,
Plaintiff fails to show error on the part of the AU.
Even assuming the AU erred in failing to properly consider the evidence or to develop the
record, Plaintiff fails to demonstrate any harm from the alleged errors. She has not shown how the
record was inadequate for the AU to make her determinations. Moreover, substantial evidence
supports the
AU's RFC and disability determinations. Thus, Plaintiff fails
prejudice from the
F.2d 1362, 1364
to demonstrate any
AU's consideration of the evidence or her decisions. See Mays
(5th
v.
Bowen, 837
Cir. 1988) (the court will not vacate ajudgment unless the substantial rights
of a party have been affected).
VII. CONCLUSION
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 21, 2016.
LEON SCHYDLOWER
UNITED STATES MAGISTRATE JUDGE
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