Moreno v. Colvin

Filing 21

MEMORANDUM OPINION AND ORDER. IT IS ORDERED that the Commissioner's decision will be REVERSED and the action REMANDED for further administrative proceedings consistent with this opinion. Signed by Judge Miguel A. Torres. (gp)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION

CESAR ELIZONDO MORENO

2011flAR3Q

S

§
§

Plaintiff

P11 14: 145

TRCT COURT
TEXAS

ICT OF

1PUTy

§
§

v.

§

NO. EP-16-CV-47-MAT

NANCY A. BERRYHILL,'
§
ACTING COMMISSIONER OF THE
§
SOCIAL SECURITY ADMINISTRATION §
§

Defendant

§

MEMORANDUM OPINION AND ORDER
This is a civil action seeking judicial review of an administrative decision pursuant to 42

U.S.C.

§

405(g). Plaintiff Cesar Elizondo Moreno ("Moreno") appeals from the decision of the

Commissioner of the Social Security Administration ("Commissioner") denying his claims for

Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. 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.

See

28 U.S.C.

§

636(c); Local Court

Rule CV-72. For the reasons set forth below, the Commissioner's decision will be REVERSED
and the action REMANDED for further administrative proceedings.

'Nancy A. Berryhill is now the Acting Commissioner of the Social Security Administration. Pursuant to Federal
Rule of Civil Procedure 2 5(d), Nancy A. Berryhill is substituted for Acting Commissioner Carolyn W. Colvin as the
defendant in this case.
1

PROCEDURAL HISTORY

I.

Moreno worked as a warehouseman forklift operator at Rio Bravo Internacional for

34)2 He was sixty-five years old at the time of his hearing before the
twenty-eight years. (R.
Administrative Law Judge ("AU"). Id. Moreno filed an application for DIB on September 18,
2012, in which he alleged disability beginning September 14, 2012, due to prostate cancer,
arthritis, and memory loss. (R. 132-38, 161). After his application was denied initially and upon

reconsideration, Moreno requested a hearing. (R. 8 1-91). On August 18, 2014, he appeared with
his attorney for a hearing before the AL

(R.

3 0-49).

On August 29, 2014, the AU issued a

written decision denying benefits on the ground that Moreno was capable of performing past
relevant work. (R. 15-25). On December 15, 2015, the Appeals Council denied Moreno's request
for review, thereby making the AU' s decision the Commissioner's final administrative decision.
(R. 1-7). Moreno argues that the

AU's residual functional capacity ("RFC") determination is not

supported by substantial evidence.

II.

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. Myers

F.3d 617, 619 (5th Cir. 2001) (quoting Greenspan

v.

v.

Apfel, 238

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

2

Reference to the record of administrative proceedings is designated by (R. [page number(s)]).

evidence as a reasonable mind might accept 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 "conspicuous absence of credible choices" or "no contrary medical evidence." Abshire

v.

Bowen, 848 F.2d 638, 640 (5th Cir. 1988).

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). 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 forthe Commissioner

and not the courts to resolve. Speilman

v.

Shalala,

1

F.3d 357, 360 (5th Cir. 1993). If the

Commissioner applied the proper legal standards and his fmdings are supported by substantial
evidence, they are conclusive and must be affirmed. Id.
B. RFC

IS

NOT SUPPORTED BY SUBSTANTIAL EVIDENCE

RFC is defined as the most an individual can still do despite his limitations. 20 C.F.R.

§

404.1545. The responsibility to determine the claimant's RFC belongs to the AU. Ripley, 67
F.3d at 557. In making this determination, the AU must consider all the record evidence and
determine Plaintiff's abilities despite any physical and mental limitations. 20 C.F.R.

§

404.1545.

The AU must consider the limiting effects of Plaintiff's impairments, even those That are nonsevere, and any related symptoms. See 20 C.F.R.

§

404.1545, 404.1529. However, a claimant's

own subjective complaints, without supporting objective medical evidence, are insufficient to
establish disability. See 20 C.F.R.

§

404.1508, 404.1528, 404.1529. The AU is not required to

3

incorporate limitations in the RFC that she did not find to be supported in the record. See Morris
v.

Bowen, 864 F.2d 333, 336 (5th Cir. 1988).

"The opinion of the treating physician who is familiar with the claimant's impairments,
treatments and responses, should be accorded great weight in determining disability." Newton,
209 F.3d at 455. "A treating physician's opinion on the nature and severity

of a patient's

impairment will be given controlling weight if it is 'well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with ... other substantial

evidence." Id. (citation omitted). "The opinion of a specialist generally is accorded greater
weight than that of a non-specialist." Id. (quoting Paul
1994)). "The [opinion

v.

Shalala, 29 F.3d 208, 211 (5th Cir.

of a treating physician] may be assigned little or no weight when good

cause is shown. 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 455-56 (citation omitted).
In reviewing the

AU' s opinion, the Court cannot accept post-hoc justifications offered

by the Commissioner because "[t]he AU's decision must stand or fall with the reasons set forth
in the

AU's decision,

as adopted by the Appeals Council." Gallegos

v.

Colvin, No. EP-13-CV-

349-ATB, 2016 WL 705227, at *4 (W.D. Tex. Feb. 18, 2016) (citation omitted). When an
opinion is unfavorable to a claimant, Social Security regulations provide that:

the notice of the determination or decision must contain specific reasons for the
weight given to the treating source 's medical opinion, supported by the evidence
in the case record, and must be sufficiently specific to make clear to any
subsequent reviewers the weight the adjudicator gave to the treating source's
medical opinion and the reasons for that weight.

4

SSR 96-2p, 1996 WL 374188, at *5 (emphasis added). Accordingly, courts have remanded
Social Security cases in which benefits were denied and the AU failed to clearly articulate what

weight was given to a treating physician's opinion. See Corpus

v.

Colvin, No. EP-14-CV-87-

ATB, 2016 WL 1179221 (W.D. Tex. Mar. 24, 2016); Gallegos, 2016 WL 705227; Staley

v.

Astrue, No. 4:12-CV-00l84, 2013 WL 2950057 (E.D. Tex. June 13, 2013).
The AU found that Moreno's knee impairments and osteoarthritis were severe, but

nonetheless determined that Moreno had the RFC to perform less than the full range of medium
work.3

(R. 17, 20). In regard to Moreno's knee impairments, the AU wrote:

The claimant sought orthopedic treatment for bilateral knee pain on January 17,
2012. He was examined by Michael Fallon, M.D., who noted that the claimant
had "mild" deformity of The knees. Dr. Fallon reviewed x-rays which revealed
significant osteoarthritis of both knees. He gave the claimant a steroid injection.
On February 28, 2012, Dr. Fallon diagnosed the claimant with bilateral knee
medial meniscus tears and chondromalacia confirmed by an MRI study completed
a few days before.4 The plan was for the claimant to undergo preoperative testing
and upon review of the tests, schedule him for surgical repair. As of March 2,
2012, treatment notes show that surgery had not yet been scheduled. At the
hearing, the claimant confirmed he still has not had this surgery due to his large
hospital bill for his cancer treatment. I must note that this treatment record is the
Specifically, the AU determined that: (1) he can lift and/or carry fifty pounds occasionally and twenty-five pounds
frequently; (2) he can stand and/or walk for six hours out of an eight-hour workday with regular breaks; (3) he can
sit for six hours out of an eight-hour workday with regular breaks; (4) he can push and/or pull fifty pounds
occasionally and twenty-five pounds frequently; (5) he may occasionally climb ramps and stairs, but never climb
ladders, ropes, or scaffolds; (6) he can occasionally stoop, kneel, and crouch, but never crawl; (7) he is fully capable
of learning, remembering, and performing simple, routine, and repetitive work tasks involving simple work
instructions, which are performed in a routine work environment with few work place changes; (8) he can interact
appropriately with supervisors, coworkers, and the public; and (9) he can maintain concentration, persistence and
pace for two to three hours at a time with normal breaks. (R. 20-2 1).
4An Mifi taken on February 21, 2012, indicated that Moreno suffered from:
1.
Complex medial meniscus tear with extrusion at the medial meniscus body, grade-3 chondrosis in
the medial compartment and early medial joint line osteoarthritis.
2.
Grade-4 patellofemoral chondrosis with full-thickness cartilage loss at the lateral patellar facet and
subchondral cyst formation.
Mild insertional quadriceps tendinosis.
3.
4.
Small-to-moderate-sized left knee effusion. (R 324).

5

most recent orthopedic treatment note available for my review. It appears that the
claimant's knee problems were not as bothersome as he alleges since there has
been no follow-up orthopedic treatment. (R. 22).
Also considered were the opinions

of the State agency medical consultants, Betty Santiago,

M.D., and Scott Spoor, M.D., who both found that that Moreno had the RFC to perform medium

exertional level work. (R. 24). The AU concluded that:
As discussed above, the record contains records from his treating physicians;
however, I find no evidence to suggest that any of the claimant's treating
physicians were of the opinion that the claimant was not able to perform work as
defmed in the residual functional capacity determined in this decision. Further,
the state agency physicians also concluded that the claimant would perform
medium, unskilled work, as discussed below. (R. 23).
The AU failed to explain the weight given to Dr. Fallon's opinions about the condition

of Moreno's knees. This omission is of particular significance because Dr. Fallon is an
orthopedic surgeon, and thus a specialist in knee impairments. As a treating physician and
specialist whose opinions were supported by an MRI, the AU should have given Dr. Fallon's

opinions controlling weight absent inconsistent substantial evidence or good cause. Because the
AU failed to discuss the weight given to Dr. Fallon's opinions, the Court is unable to determine

whether the AU followed the appropriate legal standards. Thus, remand is required to allow the
AU to amend his decision.

Moreover, the Court finds the

AU's assertion that the opinions of the treating physicians

revealed no evidence that Moreno was not able to perform work as defined in his RFC

determination to be of limited value. A review of Dr. Fallon's records reveals that he did not
opine on what limitations Moreno's knee impairments would impose. Upon remand, the AU is
free to request such information from Dr. Fallon and/or order consultative examinations if he

r;i

believes such information is necessary to fully develop the record. See Wren

v.

Sullivan, 925

F.2d 123, 128 (5th Cir. 1991) ("A consultative examination may be necessary to develop a full
and fair record. However, the decision to require such an examination is within the discretion

of

the AU.") (citations omitted).
The Court further fmds that the AU ened in considering Moreno's failure to undergo the

knee surgery as evidence of nondisability. The Fifth Circuit has explained that when a claimant
cannot afford a prescribed treatment or medicine, and can find no way to obtain it, a condition

that is disabling in fact continues to be disabling in law. Lovelace v. Bowen, 813 F.2d 55, 59 (5th
Cir. 1987). During the hearing, the AU asked Moreno why he had yet to undergo the knee

surgery, and Moreno testified that he was unable to afford the knee surgery because of debt

related to his cancer treatment. (R. 41). Instead of further inquiring about Moreno '5 claim or

requesting that Moreno provide evidence of his inability to pay, the AU replied "Sure" and
moved on to the next subject. Moreno's claim that he was unable to pay is entirely plausible and
was supported by medical records showing he was treated for cancer, which neither party
disputes. It was improper for the AU to seemingly accept Moreno 's claim at face value during

the hearing, as evidenced by the lack of inquiry or request for proof, only to ultimately cite
Moreno 's failure to undergo the surgery as evidence of nondisability in his decision. The issue

merited further inquiry.
There is, however, no merit to Moreno's assertion that the AU failed to consider his
severe obesity in combination with his other impairments. In discussing Moreno's obesity, the
AU stated:

The undersigned has considered its effect upon the claimant and how it

7

contributes to the severity of the claimant's symptoms. (SSR 02-ip). However,
there is no evidence here that the claimant's obesity has significantly interfered
with the claimant's ability to work and activities of daily living. Although the
claimant may experience some difficulty after prolonged strenuous activity, there
is no evidence or allegation that the claimant's obesity precludes the performance
of all work activities. (R. 23).
Moreno fails to provide any actual evidence that his obesity did in fact cause additional
impairments or limitations.

See Beggs

v.

Colvin,

No. 4:14-CV-129-O, 2015 WL 5542540, at *6

(Aug. 31, 2015) (affirming denial of benefits when plaintiff failed to point to a place in the

record showing how her obesity affected her functioning). Instead, he merely cites sources
explaining that obese individuals have a "high risk of developing obesity related impairments,"
and that "the combined effects of obesity with other impairments may be greater than might be

expected without obesity." (ECF No. 18, at 6). This argument is wholly unsupported.
The Court declines to address any other arguments in the briefs as this opinion provides a

sufficient framework for the AU to appropriately revise his decision.

III.

CONCLUSION

IT IS ORDERED that the Commissioner's decision will be REVERSED and the action
REMANDED for further administrative proceedings consistent with this opinion.
day of March, 2017.

SIGNED and ENTERED this

M4T"

TORRES
UNITED STATES MAGISTRATE JUDGE

8