Sarmiento v. Colvin
MEMORANDUM OPINION AND ORDER Affirming Decision of Commissioner of Social Security. Signed by Judge Leon Schydlower. (LS)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
RAFAELA Z. SARMIENTO,
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security
(-LS by Consent)
Plaintiff Rafaela Z. Sarmiento appeals the denial of her Social Security disability benefits
claim under 42 U.S.C. § 405(g). The parties consent to my determination under 28 U.S.C. § 636(c)
and Appendix C to the Local Court Rules for the Western District of Texas. I AFFIRM the
Commissioner’s decision denying benefits.
Facts and Proceedings
Sarmiento applied for disability insurance benefits in February 2013 alleging disability
beginning on July 23, 2011.2 After the Commissioner denied her initial application and request for
reconsideration, an Administrative Law Judge (ALJ) held a hearing in November 2014.3 The ALJ
heard testimony from Sarmiento, who was represented by counsel, and from a vocational expert.
In an opinion dated March 27, 2015, the ALJ determined that Sarmiento was not disabled within
the meaning of the Social Security Act.4 The Appeals Council denied her request for review,
making the decision of the ALJ the final decision of the Commissioner.5
On appeal, Sarmiento argues that the ALJ erred in not finding Sarmiento’s affective mood
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted as the defendant in this case.
R:57-73, 97, 110.
disorder severe enough to meet or equal one of the impairments listed in the appendix to the
regulations.6 She also argues that the ALJ erred in determining her residual functional capacity
(what she can still do workwise) because the ALJ failed to accommodate her alleged standing and
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 v. Barnhart, 415 F.3d 457, 461 (5th Cir.
2005); Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002). Substantial evidence Ais 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 evaluating a disability claim, the Commissioner follows a five-step sequential process to
determine whether: (1) the claimant is presently working; (2) the claimant has a severe medically
determinable physical or mental impairment; (3) the claimant's impairment meets or equals an
impairment listed in the appendix to the regulations; (4) the impairment prevents the claimant from
doing past work; and (5) the claimant can perform other work. 20 C.F.R. § 404.1520(a)(4); Boyd v.
Apfel, 239 F.3d 698, 704-05 (5th Cir. 2001).
Courts utilize four elements of proof to determine whether there is substantial evidence of
disability: (1) objective medical facts; (2) diagnoses and opinions of treating and examining
physicians; (3) the claimant's subjective evidence of pain and disability; and (4) the claimant’s age,
ECF No. 19 at 3-5.
ECF No. 19 at 5-9.
education, and work history. Perez, 415 F.3d at 462. A court cannot, however, reweigh the
evidence or try the issues de novo. Cook v. Heckler, 750 F.2d 391, 392 (5th Cir. 1985). The
Commissioner, not the courts, must resolve conflicts in the evidence. See Patton v. Schweiker, 697
F.2d 590, 592 (5th Cir. 1983).
The ALJ’s Findings
At steps one and two, the ALJ determined that Sarmiento had not worked since October
20098 and had severe impairments of diabetes mellitus, hypertension, degenerative disc disease,
obesity, and affective mood disorder.9 At step three, she determined none of these impairments
met or equaled an impairment listed in the appendix to the regulations.10
At the next step, the ALJ found that Sarmiento had the residual functional capacity (RFC)
to perform “medium work,” with some limits on the complexity of the work to be performed.11
The ALJ relied on vocational expert testimony to determine that Sarmiento could perform her past
work as an assembly solderer, which was light and unskilled work.12 The ALJ concluded that
Sarmiento was not disabled and not entitled to disability insurance benefits.13
Sarmiento argues that the ALJ erred in failing to find that Sarmiento’s affective mood
disorder was severe enough to meet or equal one of the impairments listed in the appendix to the
R:30. Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying
of objects weighing up to 25 pounds. 20 C.F.R. § 404.1567(c). If someone can do medium work, he or she
can also do sedentary and light work. Id.
regulations.14 If the ALJ had so found, Sarmiento would be deemed “disabled.” 20 C.F.R. §
404.1520(a)(4)(iii), (d). At issue is whether Sarmiento’s mood disorder results in at least two of the
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintain concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration.
20 C.F.R. Pt. 404, Subpt. P, App.1, Listing 12.04(B).15
Sarmiento argues that the ALJ erred in finding only “mild,” not “marked,” restrictions in
her daily living activities and social functioning. 16 Review of the record, however, does not
support Sarmiento’s contention. “Activities of daily living” include cleaning, shopping, cooking,
taking public transportation, paying bills, maintaining a residence, attending to grooming and
hygiene needs, using telephone directories, and going to the post office. 20 C.F.R. Pt. 404, Subpt.
P, App.1, Listing 12.00(C)(1). A “marked” degree of limitation means serious interference with
one’s “ability to function independently, appropriately, effectively, and on a sustained basis.” Id.
at Listing 12.00(C).
In April 2013, Sarmiento explained to licensed psychologist Dr. Peter Fernandez that she
could bathe, dress, and feed herself independently, and Dr. Fernandez noted that Sarmiento was
neatly groomed for the consultation.17 She reported that she could sweep, mop, and wash dishes
ECF No. 19, at 3-5.
This is the regulation that was in effect when the ALJ issued her decision.
ECF No. 19, at 3-5.
and clothes.18 She reported to Dr. Fernandez that she relied on her daughter for help paying bills,
cooking, and driving.19 In March 2013 Sarmiento reported that she could prepare simple meals,
make beds, and clean the kitchen.20 She also reported that she dressed, bathed, and attended to her
personal care, albeit more slowly than she used to.21
“Social functioning” under the regulations means one’s “capacity to interact
independently, appropriately, effectively, and on a sustained basis with other individuals.” Id. at
Listing 12.00(C)(2). It refers to the ability to get along with others such as family members,
friends, neighbors, grocery clerks, landlords, or bus drivers. Id. Examples of impaired social
functioning include a history of altercations, evictions, firings, fear of strangers, avoidance of
interpersonal relationships, and social isolation. Id. Sarmiento reported that she shops weekly,22
lives with her family,23 and gets along with authority figures such as bosses.24 She was able to
converse and interact with the physicians during her examinations.
It is the claimant’s burden to establish that an impairment meets or equals one of the listed
impairments in the appendix to the regulations. Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991).
The diagnosis of an impairment alone is not sufficient to establish listing-level severity. 20 C.F.R.
§ 404.1525(d). Contrary to her assertions, the record reflects no “marked” limitations with respect
to Sarmiento’s activities of daily living or social functioning. Substantial evidence supports the
ALJ’s findings in this regard, as well her determination that Sarmiento’s affective mood disorder
was not severe enough to meet or equal one of the impairments listed in the appendix to the
Residual Functional Capacity (“RFC”)
Sarmiento also contends that the ALJ’s RFC determination is not supported by substantial
evidence because the ALJ failed to incorporate Sarmiento’s alleged standing and walking
limitations. Sarmiento argues that she cannot perform the six hours of standing and walking
required for medium or light work because of her back pain and obesity.
RFC is the most an individual can still do despite her limitations. 20 C.F.R. § 404.1545.
The responsibility to determine a claimant=s RFC belongs to the ALJ. 20 C.F.R. § 404.1546; Ripley
v. Chater, 67 F.3d 552, 557 (5th Cir. 1995). The ALJ 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 ALJ must also 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. An RFC
finding is used to determine if the claimant can still do her past work. Perez, 415 F.3d at 462. If
unable, the RFC is then used to determine whether she can do other jobs in the national economy.
The full range of both medium and light work requires standing and walking, off and on,
for a total of approximately 6 hours in an 8-hour workday. Social Security Ruling (“SSR”) 83-10.
Sarmiento argues that she cannot stand or walk as required for medium or light work. She testified
at the hearing that she could stand for about 15 minutes and could walk approximately two
blocks.25 The objective medical evidence, however, does not support these alleged limitations.
In January 2010, Dr. Dean Smith observed decreased cervical and lumbar range of motion
and diagnosed Sarmiento with degenerative disc disease.26 Spinal x-rays taken at that time were
consistent with muscle spasms, showed mild degenerative changes, but were otherwise normal.27
In March 2012, Sarmiento complained to Dr. Miguel Villagra of back pain.28 Six months later,
however, she denied back pain, muscle weakness, and difficulty walking.29 Six months after that,
in March 2013, she denied difficulty “standing.”30
In May 2013, Sarmiento complained of chronic headaches and back pain on her left side.31
Medical records generated five months later do not reflect headaches or back pain. 32 Indeed,
Sarmiento reported “feeling good.”33 By November 2013, Sarmiento denied any musculoskeletal
problems.34 Finally, Sarmiento was repeatedly told by her doctors to lose weight to improve her
health but failed to do so.35
Sarmiento has not demonstrated that her impairments prevented her from performing the
standing or walking requirements of medium or light work. She also failed to show that her obesity
caused additional limitations beyond those the ALJ assessed. Finally, the vocational expert
testified that Sarmiento could perform her past relevant work, which was at the light exertional
level and within her RFC. The ALJ was entitled to rely upon the vocational expert testimony. See
Carey v. Apfel, 230 F.3d 131, 146 (5th Cir. 2000). Accordingly, substantial evidence supports the
ALJ’s findings regarding Sarmiento’s RFC.
R:569, 582, 584, 599, 609.
The decision of the Commissioner is AFFIRMED.
SIGNED and ENTERED on June 7, 2017.
UNITED STATES MAGISTRATE JUDGE
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