Sanchez v. Berryhill
MEMORANDUM OPINION AND ORDER. Signed by Judge Robert F. Castaneda. (jg1)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
EFREN A. SANCHEZ,
NANCY A. BERRYHILL,
Acting Commissioner of the
Social Security Administration,
CIVIL ACTION NO.
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 Efren A. Sanchez (APlaintiff@) appeals from the decision of the
Commissioner of the Social Security Administration (ACommissioner@) denying his claim for
Disability Insurance Benefits (ADIB@) and Supplemental Security Income (“SSI”) under Titles II
and XVI 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 pursuant to 28 U.S.C. ' 636(c) and Local Court Rule CV-72. For the reasons set forth
below, the Commissioner=s decision will be AFFIRMED.
Plaintiff filed applications for DIB and SSI on February 5, 2013, alleging disability
beginning January 1, 2011, due to severe dry eye/retinal damage, urethritis, chronic fatigue and
joint pain, and depression and anxiety. (R:12, 239-55, 276). 1 After the agency denied his
applications initially and on reconsideration, Plaintiff requested a hearing before an
Administrative Law Judge (AALJ@), which took place on September 11, 2014. (R:67-131, 155).
Reference to the record of administrative proceedings is designated by (R:[page number(s)]).
to the pleadings is designated by (Doc.[docket number]:[page number(s)]).
A supplemental hearing was held on July 14, 2015. (R:37-66). The ALJ issued a decision on
December 9, 2015, finding Plaintiff not disabled; at step five, the ALJ found that there were jobs in
significant numbers in the national economy that Plaintiff could perform. (R:12-29). Plaintiff
appealed, and the Appeals Council denied the Request for Review and Appeal on March 13, 2017.
Plaintiff timely filed his complaint in this Court on May 12, 2017.
(Doc. 1, 2).
Plaintiff’s motion to reverse and remand, his brief, and his reply, and the Commissioner’s response
are before the Court.
(Docs. 14, 15, 17).
Plaintiff contends that the ALJ’s finding that he is not disabled is not supported by
substantial evidence and is not based on the application of proper legal standards.
14-1:6-9). Specifically, Plaintiff argues that the ALJ failed to properly: (1) consider Plaintiff’s
severe somatic symptom disorder under Listing 12.07; (2) weigh the opinion of Plaintiff’s treating
urologist, Dr. Spier, M.D.; and (3) account for and expand upon the Psychiatric Review Technique
Evaluation findings in formulating Plaintiff’s Residual Functional Capacity (“RFC”). (Docs.
14-1:6-9; 15:2). Plaintiff asks this Court to reverse and render a fully favorable decision or
reverse and remand for further proceedings. (Doc. 14-1:10).
Standard of Review
This Court’s review is limited to a determination of whether the Commissioner’s decision
is supported by substantial evidence, and whether the Commissioner applied the proper legal
standards in evaluating the evidence. See 42 U.S.C. § 405(g); Masterson v. Barnhart, 309 F.3d
267, 272 (5th Cir. 2002); Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995) (per curiam).
“Substantial evidence is such relevant evidence as a reasonable mind might accept to support a
conclusion. It is more than a mere scintilla, and less than a preponderance.” Newton v. Apfel,
209 F.3d 448, 452 (5th Cir. 2000), citing Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995)
(internal quotations omitted). In applying the substantial evidence standard, the court may not
“re-weigh the evidence, try the questions de novo, or substitute [its own] judgment for the
Commissioner’s, even if [it] believe[s] the evidence weighs against the Commissioner’s decision.”
Masterson, 309 F.3d at 272. “Conflicts in the evidence are for the Commissioner and not the
courts to resolve.” Newton, 209 F.3d at 452 (citations and internal alterations omitted).
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 severe medically determinable physical or mental impairment; (3) whether the claimant’s
impairment(s) meets or equals the severity of an impairment listed in 20 C.F.R. Part 404, Subpart
P, Appendix 1; (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. It is the ALJ’s responsibility to determine the claimant’s RFC, which is the most an
individual can still do despite his limitations, used in addressing steps four and five. 20 C.F.R. §
404.1545; Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184.
It is Plaintiff’s burden to establish disability, i.e., a physical or mental impairment lasting at
least 12 months that prevents him from engaging in substantial gainful activity, and to provide or
identify medical and other evidence of his impairments. See 42 U.S.C. § 423(d)(5); 20 C.F.R. §
404.1512(a). Once the claimant bears the burden of proof at the first four steps in the analysis, the
burden shifts to the Commissioner to show that there is other substantial gainful employment
available that the claimant is capable of performing. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir.
1995); Anderson v. Sullivan, 887 F.2d 630, 632 (5th Cir. 1989). 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.
Plaintiff claims that the ALJ failed to properly address Plaintiff’s somatic symptom
disorder in his decision.
Plaintiff contends that his history of chronic
urethritis, for which he has sought medical attention from multiple physicians who have not been
able to determine the source of his symptoms, meets the criteria under paragraph A of Listing
12.07 for somatic symptom disorders. (Id.). In his Reply, Plaintiff also maintains that he met the
criteria under Listing 12.07’s paragraph B. (Doc. 17:2-3).
At step three, the ALJ explicitly considered Plaintiff’s somatic symptom disorder, which
the ALJ had listed amongst Plaintiff’s severe impairments at step two. (R:16-17). To meet
Listing 12.07, a claimant must satisfy both the paragraph A and paragraph B criteria. 20 C.F.R.
Pt. 404, Subpt. P, App. 1, Listing 12.07 (effective Aug. 12, 2015 to May 23, 2016). The ALJ
explicitly considered only the paragraph B criteria and found that Plaintiff did not satisfy the
requirements of that paragraph. (R:16-17). To satisfy paragraph B, Plaintiff must have marked
limitations from two among the four areas of mental functioning listed therein. Listing 12.07(B).
The ALJ determined that Plaintiff did not have marked limitations in any of the four areas.
Plaintiff argues that he has marked restrictions in of activities of daily living, where the
ALJ found only mild restrictions, and marked difficulties in maintaining concentration,
persistence, and pace, where the ALJ found only moderate difficulties. (Doc. 17:2-3; R:17).
Plaintiff cites to evidence explicitly considered by the ALJ in considering and weighing all of the
evidence. (Doc. 17:2-3; R:16-17, 23). Unfortunately for Plaintiff, the question is not whether
there is substantial evidence to support a favorable determination of disability, but whether there is
substantial evidence to support the Commissioner’s determination.
The ALJ found that Plaintiff is independent in dressing, bathing, feeding, sweeping,
mopping, doing laundry, washing dishes, shopping, cooking, and driving. (R:17, 658). The ALJ
also noted that the allegations of limitation in Plaintiff’s ability to perform his daily activities is
primarily due to his physical symptoms, not his mental health; except that he stopped brushing his
teeth because he is too depressed to care. (Id.). Additionally, the ALJ found that Plaintiff had
moderate limitations in the area of concentration, persistence, and pace, noting that Plaintiff had
demonstrated adequate remote recall, sequencing and mental control, and concentration. (Id.)
The Court finds that there is substantial evidence in the record to support the ALJ’s
determination that Plaintiff had only mild and moderate limitations and therefore did not satisfy
the requisite criteria of Listing 12.07. As such, Plaintiff is not entitled to relief on this claim.
Weighing Dr. Spier’s Medical Opinion
The ALJ considered the medical source statement from Plaintiff’s treating urologist, Dr.
Jeffrey Spier, M.D, and he gave it little weight. (R:23-24). The ALJ considered and gave partial
weight to the opinion of the consultative examiner. (R:22). Plaintiff claims that the ALJ erred
by failing to give Dr. Spier’s opinion controlling or proper weight. (Doc. 14-1:8-9).
In considering medical opinion evidence, the ALJ should generally give greater weight to a
treating physician’s opinion. 20 C.F.R. § 404.1527(c)(2) (effective Aug. 24, 2012 to March 26,
2017). To give the treating source’s opinion controlling weight, the ALJ must find that the
opinion on the issues of the nature and severity of the impairment is (1) well-supported by
medically acceptable clinical and laboratory diagnostic techniques, and (2) not inconsistent with
the other substantial evidence in the record. Id. However, if the ALJ finds the treating sources’
opinions are not deserving of controlling weight, the relative weight of the sources’ opinions are
assessed through the application of several factors: (1) length and frequency of treatment, (2)
nature and extent of treating relationship; (3) degree to which opinion is supported by relevant
evidence; (4) consistency between the opinion and the record as a whole; (5) whether the physician
is a specialist in the relevant area; and (6) other factors. 20 C.F.R. ' 404.1527(c).
The ALJ considered the requisite factors in weighing Dr. Spier’s medical source opinion.
The ALJ acknowledged that Dr. Spier, a urologist, had been treating Plaintiff for four years,
detailing numerous visits and the treatment provided, but found Dr. Spier’s opinions internally
inconsistent and unsupported by his treatment notes. (R:23-24). First, the ALJ found that the
physical limitations Dr. Spier opined conflict with his statement that Plaintiff has no physical
limitations. (R:24, 806-812). The question to which Dr. Spier responded that Plaintiff had “no
physical limitations” was asking him to “describe any other limitations (such as limitations using
hands, arms, fingers, psychological limitations, limited vision, difficulty hearing,…) … .”
(R:811) (emphasis added). Thus, such response did not, as the ALJ found, conflict with Dr.
Spier’s previous limitations.
The ALJ, however, also found no credible support in Dr. Spier’s treatment records or in the
record as a whole for the limitations opined by Dr. Spier regarding the length of time Plaintiff
could sit (1 hour at a time), stand (one hour at a time), or sit/stand/walk (2 hours total in an 8-hour
day), for limitations regarding Plaintiff’s ability to lift and carry, or for Plaintiff’s needing ready
access to the bathroom for ten minutes every hour. (R:23-24). The ALJ found that Dr. Spier’s
opinion was contradicted by the findings of consultative examiner Emilio Gonzalez-Ayala, M.D.,
that Plaintiff could sit (up to 8 hours), stand (up to four hours), walk (up to three hours), and move
without difficulty and lift and carry without problems. (R: 22, 654). The ALJ noted that Dr.
Spier did conclude that Plaintiff is limited only by his urinary symptoms. (R:24).
As to his frequent need for access to the restroom, most of Dr. Spier’s earlier records
consistently reflect that Plaintiff reported needing to urinate once every 2-4 hours, and needing to
urinate more frequently than every two hours less than twenty-percent of the time. (R:481, 485,
490, 494, 498, 503). However, at least four later records also reflect that Plaintiff reported
needing to urinate 16 times during the day and 3-4 times at night, or about once every hour during
the day. (R:509, 514, 525, 815-17). The most recent record, from May 19, 2015, indicating that
Plaintiff needed to urinate 16 times during the day, was corrected on July 9, 2015, to indicate that
Plaintiff needed to urinate more than once every two hours. (R:814-17). The consultative
examiner did not opine with what frequency Plaintiff would need to access the restroom or for
what duration, but did note that Plaintiff alleged a need to urinate between 25-30 times a day.
(R:650). Despite feeling the need to urinate with such frequency, however, Dr. Spier’s records
also reflect that Plaintiff “never finds it difficult to postpone urination.” (R:494). Nor is there
any indication in the record that Plaintiff experienced incontinence. The Court notes that Plaintiff
did request a restroom break during his hearing with the ALJ and the ALJ was in a position to
observe the length of break taken and Plaintiff’s demeanor both before and after the break.
The ALJ also found that Dr. Spier’s opinion that Plaintiff experienced no positive response
to medications was not supported by Dr. Spier’s treatment notes showing improvement with
medications. (R:24, 498, 808). Records reflected that Plaintiff had experienced relief in his
urinary symptoms with medication, but that he chose to discontinue taking the medication due to a
side effect of dry eyes. (R: 498). He took another medication for two months and reported
feeling improvement, and later started a different medication with little improvement noted after
just one week. (R:525). The ALJ also noted several instances of noncompliance with, or
rejection of, prescribed treatment. (R:24). A medical condition that can reasonably be remedied
by medical treatment is not disabling within the meaning of the Social Security Act. Lovelace v.
Bowen, 813 F.2d 55 (5th Cir. 1987).
Plaintiff quotes HALLEX II-4-1-2, arguing that an ALJ may not substitute his lay opinion
for that of a treating physician:
All things being equal, when a treating source has seen a claimant long enough to
have obtained a detailed longitudinal picture of the claimant’s impairment(s), we
will always give greater weight to the treating source opinion than to the opinions
of non-treating sources even if the other opinions are also reasonable or even if the
treating source’s opinion is inconsistent with other substantial evidence of record.
(Doc. 14-1:8-9, quoting HALLEX II-4-1-2 (2008), 1996 WL 1586732 at *11).
In this case, the ALJ assigned little weight to Dr. Spier’s opinion, only partial weight to the
consultative examiner’s opinion, and little weight to the state agency physicians’ opinion. (R:22,
24). There is no reason for the Court to conclude that the ALJ failed to give Dr. Spier’s opinion
more weight than if it were from a non-treating source. See HALLEX II-4-1-2, 1996 WL
1586732 at *11. Nor were “all things [were] equal” between the opinions of Dr. Spier and the
consultative examiner where Dr. Spier’s opinion was unsupported by his own treatment records.
Plaintiff has not established that the ALJ’s determination to give Dr. Spier’s opinion little
weight was the result of legal error, and the determination is supported by substantial evidence.
Plaintiff is not entitled to relief on this claim.
Plaintiff claims that the RFC, limiting Plaintiff to “unskilled work with no interaction with
the public, only occasional interaction with coworkers, and occasional supervision” is deficient as
a matter of law because it is not a function-by-function assessment of work-related capacities
affected by his moderate limitation in concentration, persistence, or pace, which the ALJ
recognized at step three. (Doc. 14-1:7; R:17-18).
Although the definition in the regulations for unskilled work does not detail the basic
mental demands for such work, such demands are detailed in various social security rulings. See
20 C.F.R. § 404.1568(a). SSR 85-15 states that “[t]he basic mental demands of competitive,
remunerative, unskilled work include the abilities (on a sustained basis) to understand, carry out,
and remember simple instructions; to respond appropriately to supervision, coworkers, and usual
work situations; and to deal with changes in a routine work setting.” SSR 85-15, 1985 WL 56857
at *4; see also SSR 96-8p, 1996 WL 374184 (similar), SSR 96-9p, 1996 WL 374185, at *9
(similar). Unskilled work is consistent with the ability to follow one to three step instructions,
classified at level of SVP 1 and 2. Sasich v. Colvin, No. 15-461-JWD-RLB, 2016 WL 7826808 at
*5 n.2 (M.D. La. Nov. 14, 2016). This Court has previously found that an RFC for “simple,
routine, and repetitive tasks” fairly incorporated a moderate limitation in concentration,
persistence, or pace. See Muniz v. Colvin, No. EP:13-CV-161-RFC, 2015 WL 5062303 (W.D.
Tex. Oct. 22, 2015); see also Cornejo v. Colvin, No. EP:11-CV-470-RFC, 2013 WL 2539710
(W.D. Tex. June 7, 2013) (ALJ’s RFC finding that a claimant can perform simple, routine, one to
two step unskilled work instructions may reasonably incorporate moderate limitations in
maintaining concentration, persistence, or pace), finding persuasive Bordelon v. Astrue, 281 Fed.
Appx. 418, 422-423 (5th Cir. 2008) (per curiam) (unpublished) (rejecting other circuit’s reasoning
regarding what is required to reasonably incorporate a finding of moderate difficulties in
maintaining concentration, persistence, and pace, into an RFC).
The ALJ discussed the evidence of Plaintiff’s mental impairments. The ALJ noted that
his mental status examination was essentially normal, including logical thoughts, good
concentration, and intact memory. (R:24-25). Plaintiff had earned his GED and bachelor’s
degree in psychology after the alleged onset date. (Id.). Plaintiff’s cognitive examination results
were within normal limits, including adequate remote recall, mental calculation, verbal recitation,
and concentration. (Id.). Further, Dr. Peter Fernandez, Ph.D., a psychological consultative
examiner, provided a statement of Plaintiff’s ability to do work-related mental activities,
indicating that Plaintiff had no limitation in understanding and remembering, carrying out simple
instructions, and exercising judgment to make simple work-related decisions. (R:25, 661-62).
Dr. Fernandez also opined that Plaintiff was moderately to markedly restricted in appropriately
interacting with the public, supervisors, co-workers, and changes in a routine work setting. (Id.).
Thus, the ALJ’s determination that Plaintiff was able to perform unskilled work involving no
interaction with the public, only occasional interaction with coworkers, and occasional supervision
adequately addresses the ALJ’s finding at step three that Plaintiff had a moderate limitation in
concentration, persistence, and pace, and is substantially supported by the ALJ’s detailed
discussion and the evidence in the record.
Moreover, the ALJ also noted that Plaintiff had reported improvement in his mental health
symptoms with both therapy and medication in 2013, but then failed to attend a support group to
which he was referred and refused to take medication to assist with his anxiety. (R:24). Even
with gaps in his seeking or obtaining mental health services, mental status examinations when he
did seek such services in 2014 and again in 2015 were essentially normal and within normal limits.
(R:24-25). Infrequent treatment, failure to seek regular care, and evidence that condition can be
controlled with treatment, all weigh against finding a condition disabling. See Villa v. Sullivan,
895 F.2d 1019, 1024 (5th Cir. 1990) (failure to seek treatment is an indication of nondisability).
To the extent, if any, the ALJ erred by stating Plaintiff’s RFC in terms of a limited range of
unskilled work rather than stating that Plaintiff had the ability to understand, remember, and carry
out simple instructions and make simple work-related decisions requiring exercising judgment,
limited to the amount of interaction required regarding various types of people, the Court finds
such error to be harmless. Plaintiff is not entitled to relief on this claim.
Based on the foregoing, the Court hereby ORDERS that the decision of the Commissioner
be AFFIRMED consistent with this opinion.
SIGNED and ENTERED on October 26, 2017.
ROBERT F. CASTANEDA
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?