Montes v. Berryhill

Filing 17

MEMORANDUM OPINION AND ORDER. Signed by Judge Robert F. Castaneda. (dc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
ROSA MARIA MONTES,
Plaintiff,

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NO. EP-3-17-CV-00236-RFC

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NANCY A. BERRYHILL,
Acting Commissioner of Social

Security Administration,
Defendant.

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MEMORANDUM OPINION AND ORDER
This is a civil action seeking judicial review of an administrative decision. Jurisdiction is

predicated upon 42 U.S.C.

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405(g). Plaintiff appeals from the decision of the Commissioner of the

Social Security Administration ("Commissioner"), denying her claim 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 pursuant to 28 U.S.C.

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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 February 4, 2014, Plaintiff filed her application for DIB, alleging disability due to
impairments that became disabling on August 1, 2013.
later determined to be June 1, 2013. (R:94, 216)

(R:200)1

Plaintiff's alleged onset date was

The application was denied initially and on

reconsideration. (R: 121-146) Pursuant to Plaintiff's request, an Administrative Law Judge ("AU")

'Reference to documents filed in this case is designated by "(Doc. [docket entry
number(s)]: [page number(s)])". Reference to the record of administrative proceedings filed in
this case is designated by "(R: [page number(s)])".

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sicr cOURT
OSTCT OF TEXAS

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V.

2:

held a hearing to review Plaintiff's application de novo on March 23, 2016, at which both Plaintiff
and a vocational expert ("YE") testified. (R:9 1-120) The AU issued her decision on May 19, 2016,
denying benefits. (R:55-64) Plaintiff's request for review was denied by the Appeals Council on
July 7,2017. (R:1-5)

ISSUES

Plaintiff presents the following issues for review:
1.

Whether the AU erred in her evaluation of the treating physician's opinion.

2.

Whether the AU failed to develop the record.

3.

Whether the AU erred by failing to obtain a medical advisor's opinion
pursuant to SSR 83-20.

4.

Whether the AU erred by not relying on any physician's opinion in
arriving at her RFC determination.

5.

Whether the AU's finding that Plaintiff can perform other work existing in
significant numbers in the national economy is supported by substantial
evidence.

(Doc. 14:2-10)

DISCUSSION
A.

Standard ofReview
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 "conspicuous absence of credible choices" or "no

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 "must take into 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. Hayivood v. Sullivan, 888 F.2d 1463, 1466 (5th Cir. 1989). It 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 for the Commissioner, and not the courts, to resolve. Speilman
v.

B.

Shalala, 1 F.3d 357, 360 (5th Cir. 1993).

Evaluation Process
Disability is defined as the "inability to engage in substantial gainful activity by reason ofany

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 AU 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 B, Appendix

C]

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. A person's residual functional capacity

("RFC") is what she can still do despite her limitations or impairments. 20 C.F.R.

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404.1545(a);

SSR 96-8p.

An individual applying for benefits bears the initial burden of proving that she 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.

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(1987); Anderson v. Sullivan, 887 F.2d 630,

632 (5th Cir. 1989).
C.

The AU's Hearing Decision
First, the AU found that Plaintiff had not engaged in substantial gainful activity since her

alleged onset date of June 1, 2013, through her date last insured of June 30, 2013. (R: 57) At the

second step, the AU found that Plaintiff had the following severe impairments: degenerative disc
disease of the lumbar spine; breast cancer in remission; obesity; and depressive disorder. (Id.)

At step three, the AU found that Plaintiff did not have an impairment or combination of
impairments meeting or medically equaling one of the listed impairments. (R: 58)
Before moving on to step four, the AU concluded that, through the last dated insured,

Plaintiff had the RFC to perform a reduced amount of sedentary work, that she could lift and/or
carry 10 pounds occasionally and less than 10 pounds frequently, stand and/or walk 2 hours in an
8

hour day, sit for 6 hours in an

8

hour day, and occasionally push and pull and use foot controls.

She further found that Plaintiff was able to occasionally climb ramps/stairs, never climb ladders,

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ropes or scaffolds, occasionally bend, crawl, kneel, stoop , and balance on uneven surfaces. Plaintiff
was precluded from exposure to unprotected heights, hazardous materials, moving machinery,
vibration, exposure to extremes of heat and cold, open bodies of water and open flames, and

commercial driving. Finally, Plaintiff was able to understand, carry out, and remember simple

instructions and was limited to simple workplace judgments. (R:59)

At step four, the AU found that Plaintiff was unable to perform any past relevant work.
(R:62)

At the fifth step, considering Plaintiff's age, education, work experience, and RFC, as well
as VE testimony, the AU found that there are jobs that exist in significant numbers in the national

economy that Plaintiff can perform. (R:63) Specifically, the AU found that Plaintiff could perform

the requirements of representative occupations such as that of a lens inserter, a stop attacher, and a
polisher of eyeglass frames. (R:63)
The AU concluded that Plaintiff had not been under a disability, as defined in the Social
Security Act, from June 1, 2013, the alleged onset date, through June 30, 2013, the date last insured.

(Id.)
1).

Analysis
1.

The AU did not err in her evaluation of the treating physician's opinion.

Plaintiffs major issue is that the AU failed to give the medical opinions of Plaintiffs
treating physician, Dr. Ghiselli, the proper weight. (Doc. 14:3-8) On January 13, 2014, Dr. Ghiselli
provided a medical source statement ("MSS") wherein he opined that Plaintiffwas more limited than
determined by the AL (R:361-364) Specifically, he declared that Plaintiff can occasionally lift

and/or carry less than 10 pounds and frequently lift and/or carry less than 10 pounds and that she

could stand and/or walk less than two hours in an 8-hour workday. (R:361) He asserted that Plaintiff

could sit less than 6 hours in an 8-hour workday and that her ability to push or pull was limited.
(R:362) He failed to indicate whether this limited ability to push or pull affected her upper or lower

extremities. (Id.) He felt that her ability to reach in all directions, handle, finger, and feel were
limited to doing so occasionally, and that Plaintiff could frequently climb, balance, kneel, crouch,
crawl, and stoop. (R:362) Finally, he asserted that Plaintiffs abilities to see and hear were limited.
(R:363) Furthermore, on April 4, 2015, Dr. Ghiselli provided a letter that states that:
This letter is to inform you that Mrs. Rosa Montes DOB July 31, 1964, SS#450-437448 has been under my care Since 2013 and I have been treating her for multiple
complications. She suffers from Lumbar Spondylosis (847.2), Radiculopathy
(722.10) and a Left Rotator Cuff tear (840.4) and cervical pain (723.1). Mrs. Montes
also suffers from Chronic Pain (338.4) and Severe Depression (300.4). Due to her
condition Mrs. Montes can't stand or sit for a long period of time, she has to use a
walking cane to sustain her balance. Please take this letter into consideration that my
patient has a disability and physical restrictions that affect her daily living.
(R:428)

While a treating physician's opinion generally deserves considerable weight, the AU is free
to assign little or no weight to the opinion of any physician for good cause. Newton v. Apfel, 209

F.3d 448,455-56 (5th Cir. 2000). Good cause exists where statements are brief and conclusory, not
supported by medically acceptable clinical laboratory diagnostic techniques, or otherwise

unsupported by the evidence. Perez v. Barnhart, 415 F.3d 457, 465-66 (5th Cir. 2005). Otherwise,
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 views under the criteria set forth in 20 C.F.R. § 404.1527(d)(2).
Additionally, if the AU determines that the treating physician's records are
inconclusive or otherwise inadequate to receive controlling weight, absent other
medical opinion evidence based on personal examination or treatment of the

claimant, the AU must seek clarification or additional evidence from the treating
physician in accordance with 20 C.F.R. § 404.15 12(e).
Newton v. Apfel, 209 F.3d at 453.

The AU gave little weight to the opinions reflected in Dr. Ghisselli's MSS and April 4,
2015 letter. Among other reasons for her conclusion, the AU determined that these opinions did

not appear to address the relevant time period before the date last insured, and all the limitations,
including those on seeing and hearing, were not supported by Plaintiff's treatment notes. (R:61-62)
A review of the record shows that substantial evidence supports the

AU's determination.

Dr. Ghiselli's own treatment notes, dated January 15, 2014, indicate that there is no real

history of any serious injury. (R:90) Dr. Ghiselli fails to discuss or cite to any treatment records from

the relevant time period to support his contentions. See 20 C.F.R. Section 404.1 527(d)(3)
(supportability is a factor to consider when weighing a treating source's opinion). This Court

reviewed the entire record and was unable to find any medically acceptable clinical laboratory
diagnostic techniques or observations contained in the medical records that would support Dr.

Ghiselli' s limitations. In fact, no limitations are referred to in any treatment note written by Dr.
Ghiselli. Thus, substantial evidence supports the

AU's finding.

Moreover, the AU properly found that Dr. Ghiselli's opinions did not address the relevant
time period before the date last insured. (R:6 1, 62) His MSS and letter were written well after June

of 2013. Neither document refers to the relevant time period. Counsel for Plaintiff conceded at the
hearing before the AU that the record was complete so there would appear to be no other evidence
which refutes the AU's finding. (R:119) A claimant who becomes disabled after the expiration of

her insured status is not entitled to benefits under Title II of the Act. Oldham v. Schweiker, 600 F.2d

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1078, 1080 (5th Cir. 1981). This also constitutes good cause for giving little weight to Dr. Ghiselli's

January 2014 and April 2015 opinions..
Dr. Villareal saw Plaintiff several times between January and September

of 2013. As a

result of said examinations, Dr. Villareal concluded that Plaintiff' spain was improved by TENS unit

and medication. (R:324, 328, 332, 336, 340) Throughout this period, Plaintiff was functional, was
able to go out without assistance, and could engage in limited exercise. (R:324-343) This medical

opinion evidence controverts the opinions expressed by Dr. Ghiselli. The Court rules that such

constitutes reliable medical evidence from an examining physician, and consideration of the six
factors referred to in Newton and set out in 20 C.F.R.
Bullockv. Astrue, 277

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404.1 527(d)(2)) was not necessary.

See

F. App'x 325, 329(5th Cir. 2007) (per curiam) (not published)(consideration

of six factors only necessary absent controverting reliable evidence from a treating or examining
physician) It is sufficient that the AU provided "good reasons" for the weight given to Dr. Ghiselli' s
opinions.
The record contains other evidence which contradicts Dr. Ghiselli' s opinions. In a Function

Report dated March 7, 2014, Plaintiff admitted that she could feed pets, prepare meals, clean
laundry, water the grass, dust most of the day, and shop for groceries. (R:250-252) Plaintiff's

disability report on February 4, 2014, reveals that a face to face interview was conducted, and that
during the interview no deficits with Plaintiff's hearing, seeing, sitting, standing, and walking were
noted. (R:217) This also constitutes substantial evidence supporting the
Dr. Ghiselli's opinions inasmuch as it does not support his conclusions.

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AU's findings regarding

In summary, the AU acted within her discretion when deciding to afford Plaintiff's treating

physician little weight. The reasons she provided are in line with the factors the AU is charged with
considering and provide good cause for her decision.
In a related context, Plaintiff argues that the AU erred because she did not re-contact Dr.
Ghiselli for clarification or supplementation. (Doc.14:8) When existing medical evidence is
inadequate to make an informed disability determination, the AU has a duty to develop the record
by re-contacting the claimant's medical sources, inter alia. Nevertheless, the relevant regulations

at the time of the AU's decision provided the AU with discretion in reaching this matter. 20 C.F.R.
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404.1520(b) (2012). The AU evidently resolved that re-contact was unnecessary because the

entire record was adequate to determine whether or not Plaintiff was disabled. The Court holds that
the AU acted within her discretion, and that her decision is supported by substantial evidence.
Further, even where the AU fails to fully and fairly develop the record, the error will not constitute

grounds for remand unless the claimant is able to demonstrate that prejudice resulted, i.e., that had

the AU done her duty, evidence could and would have been adduced that might have altered the
result. Kane v. Heckler, 731 F.2d 1216, 1220 (5th Cir. 1984). Mere speculation is insufficient to
make the requisite showing of prejudice. See Newton

v.

Apfel, 209 F.3d 448, 458 (5th Cir. 2000).

In the instant case, Plaintiff has neither argued nor presented evidence to demonstrate what

additional information would have been revealed had the AU obtained additional medical evidence,

nor shown how such evidence would have affected the ultimate disability determination. Again,
counsel for Plaintiff agreed that the record was complete. (R: 119) She has failed to demonstrate that
she was prejudiced by the

AU's failure to further develop the record; thus, she is not entitled to

relief on this claim. See Carey v. Apfel, 230 F.3d 131, 142 (5th Cir. 2000).

2.

Other issues.

Although Plaintiff states that she is presenting one issue in her brief, the one relating to the
treating physician, she raises several other arguments/issues which will now be addressed. (Doc. 14:2,
3) First, Plaintiff argues that the AU also failed to develop the record by failing to obtain a medical

advisor's opinion with regard to the onset date. (Doc.14:8) She contends that SSR 83-20 provides
that when the evidence is ambiguous regarding the possibility that Plaintiff became disabled prior
to the expiration of the date last insured, a retroactive inference is necessary and the AU is obligated

to call upon the assistance of a medical advisor to insure that the determination of the onset date is
based on a legitimate medical basis. (Id.); Speilman v. Shalala,

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F.3d 357, 36 1-62 (5th Cir. 1993).

Plaintiffs contention lacks merit. To begin with, there is no ambiguity regarding the medical
evidence that relates to the onset date. Plaintiff concurred with the June 1, 2013 onset date

throughout the hearing. (R:94) All ofPlaintiffs presentation was geared to meeting that date. No
argument was made regarding any ofthe medical evidence being ambiguous. Once again, Plaintiff's
counsel agreed at the hearing that the record was complete. (R: 119) Hence, regardless of whether
or not Plaintiff's conditions were considered to be progressive impairments, the lack of ambiguity

regarding both the medical evidence and the onset date is clear, and Plaintiff is not entitled to relief
on this issue. Spellman,

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F.3d at 363.

Next, Plaintiff argues that the AU did not rely on any physician opinions in arriving at her
RFC finding. (Doc.14:4) The Court finds that such is not the case. The AU considered several
physician opinions in arriving at her RFC conclusion, to include those of Dr. Ghisell, Dr. Villareal,

and the state agency physicians. (R:6 1-62) Only after considering all the evidence of record did she
arrive at the decision to limit Plaintiff to sedentary work with some limitations. (R:62) She properly
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interpreted the medical evidence to determine Plaintiffs capacity for work. See Fontenot v. Colvin,
661 F.App'x 274,277 (5th Cir. 2016). The Court finds that substantial evidence supports the AU's

RFC assessment even without a medical opinion precisely addressing or corresponding to Plaintiffs
RFC. See Gutierrez v. Banhart, No. 04-11025, 2005 WL 1994289 at *7 (5th Cir. Aug. 19, 2005).
Thus, the Court finds that no reversible error exists with respect to this issue.

Finally, Plaintiff contends that the Commissioner has failed to meet her burden of proof at
step five of the sequential evaluation process, and that her decision is not supported by substantial

evidence. Unfortunately for Plaintiff, such is not the case. The YE testified in response to a
hypothetical question that a person with Plaintiffs vocational profile and RFC could perform the
sedentary, unskilledj obs of lens inserter, stop attacher, and eyeglass frame polisher. (R: 117) AYE's

testimony, based on a properly phrased hypothetical question, constitutes substantial evidence.
Bowling v. Shalala, 36 F.3d 431,436(5th Cir. 1994). Plaintiff was afforded an opportunity to crossexamine to correct deficiencies in the AU's question by mentioning or suggesting to the YE any

purported defects in the hypothetical questions. Boyd v. Apfel, 239 F.3d 698,706-07(5th Cir. 2001).
She opted not to. (R: 115) Hence, the Court finds no error regarding this issue.

CONCLUSION
The Court concludes that the AU's findings are supported by substantial evidence and are
free of legal error. Thus, the Court HEREBY ORDERS that the decision of the Commissioner be

AFFIRMED consistent with this opinion.
SIGNED and ENTERED on January 22, 2018.

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/kf/'tA
ROBERT F. ASTANEDA
UNITED STATES MAGISTRATE JUDGE

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