Ramirez v. Berryhill
Filing
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MEMORANDUM OPINION AND ORDER. Signed by Judge Robert F. Castaneda. (mc4)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
ROSA I. RAMIREZ,
Plaintiff
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-vsNANCY A. BERRYHILL, ACTING
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION; 1
Defendant
EP-17-CV-00391-RFC
MEMORANDUM OPINION AND ORDER
This is a civil action seeking judicial review of an administrative decision. Jurisdiction is
predicated upon 42 U.S.C. § 405(g). Plaintiff appeals from the decision of the Commissioner of
the Social Security Administration (“Commissioner”) denying Plaintiff’s claims for disability
insurance benefits (“DIB”) under Title II of the Social Security Act. Both parties consented to
trial on the merits before a United States Magistrate Judge, and the case was transferred to this
Court for trial and entry of judgment pursuant to 28 U.S.C. § 636(c) and Appendix C to the
Local Court Rules for the Western District of Texas. For the reasons set forth below, this Court
orders that the Commissioner’s decision be AFFIRMED.
I.
PROCEDURAL HISTORY
Plaintiff first filed a Title II application alleging disability from October 9, 2011. (R:82).
Plaintiff’s first claim was denied on April 2, 2012, denied upon reconsideration on June 14,
2012, and denied by the Administrative Law Judge (“ALJ”) on August 28, 2013. (R:82–90). The
On March 6, 2018, the Government Accountability Office determined that Nancy Berryhill’s
continued service as Acting Commissioner of Social Security violated the Federal Vacancies
Reform Act of 1998. GOVERNMENT ACCOUNTABILITY OFFICE, Violation of the Time Limit
Imposed by the Federal Vacancies Reform Act of 1998—Commissioner, Social Security
Administration (2018), https://www.gao.gov/assets/700/690502.pdf. Accordingly, this position is
now vacant.
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Appeals Council denied Plaintiff’s request for review on February 24, 2014, and she did not
appeal the Council’s decision. (R:95–97). Thus, the ALJ’s decision became final on August 28,
2013.
In the current case, Plaintiff filed a second application for DIB on March 4, 2014, with an
alleged onset date of March 16, 2012. (R: 42, 205–06). Plaintiff’s claim was denied on June 27,
2014, and upon reconsideration on October 1, 2014. (R:129, 134). A video hearing was held
before the ALJ on August 25, 2016, and the ALJ issued an unfavorable decision on September 7,
2016. (R: 51, 57–75). Because Plaintiff’s first application for DIB was denied on August 28,
2013, the alleged onset date of her current disability claim will be August 29, 2013. (R:42, 90;
ECF. No. 21:1).
II.
ISSUE
Plaintiff presents the following issues for review:
1. Whether the ALJ erred in his evaluation of Plaintiff’s treating physicians and
nurse;
2. Whether the ALJ erred in his evaluation of Plaintiff’s obesity; and
3. Whether the ALJ erred in his evaluation of Plaintiff’s subjective complaints of
pain.
(ECF. No 21).
III.
a.
DISCUSSION
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. See Martinez v.
Chater, 64 F.3d 172, 173 (5th Cir. 1995); Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir.
1994). Substantial evidence is more than a scintilla, but less than a preponderance, and is such
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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) (quoting Parsons v.
Heckler, 739 F.2d 1334, 1339) (8th Cir. 1984)).
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. Haywood 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. Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993).
b.
ALJ’s Hearing Decision
At the first step, the ALJ found that Plaintiff has not engaged in substantial gainful
activity since March 16, 2012. (R:44). At the second step, the ALJ found that Plaintiff had the
following severe impairments: diabetes mellitus II, osteoarthritis, osteoporosis, and hypertension.
(Id.). Further, Plaintiff had the following non-severe impairments: shoulder pain, high
cholesterol, dizziness, and gastroesophageal reflux disease. (R:45). At the third step, the ALJ
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found that Plaintiff did not have an impairment or combination of impairments meeting or
medically equaling one of the listed impairments. (Id.).
Before the fourth step, the ALJ found that Plaintiff had the residual functional capacity
(“RFC”) to perform medium work. (R:46). Plaintiff can occasionally climb ramps and stairs but
cannot climb ladders, scaffolds and ropes. (Id.). Plaintiff can perform frequent balancing,
stooping, kneeling, crouching, and crawling. (Id.). Finally, Plaintiff should avoid unprotected
heights and dangerous moving machinery, but Plaintiff has the ability to avoid normal workplace
hazards such as boxes on the floor. (Id.).
At the fourth step, the ALJ found Plaintiff capable of performing past relevant work as a
home health aide. (R:50). Thus, the ALJ concluded that Plaintiff has not been under a disability,
as defined in the Social Security Act, from August 29, 2013, through the date of the ALJ’s
decision. (Id.).
c.
The ALJ Gave Plaintiff’s Treating Physicians and Nurse the Proper Weight
Plaintiff contends that the ALJ failed to give the medical opinions of Plaintiff’s treating
physicians and nurse practitioner the proper weight. (ECF. No. 21:4–7). Specifically, the ALJ
erred by failing to discuss the factors required by 20 C.F.R. § 404.1527(c)(2) when he rejected
the medical opinions of Dr. Fernando Aviles, Dr. Augustine O. Eleje, Dr. Oneyma E. Amakiri,
and Nurse Hazel Padilla. (ECF. No. 21:4–5). Had the ALJ given these opinions the proper
weight, the ALJ would have found Plaintiff’s RFC to be far more restrictive. (Id.).
i. Dr. Eleje’s Opinion and Dr. Aviles’s Opinion
Dr. Eleje’s opinion and Dr. Aviles’s opinion were both fully addressed in Plaintiff’s prior
case on August 28, 2013. (R:88–89). Dr. Eleje’s opinion was given in February 2012 and Dr.
Aviles’s opinion was given in May 2013. (R:501–04, 514–16). The ALJ explicitly declined to
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reopen Plaintiff’s prior decision, and any evidence from the previous period is relevant only in a
historical context. (R:42).Thus, the ALJ did not err by failing to discuss the medical opinions of
Dr. Eleje and Dr. Aviles. See Brown v. Astrue, 344 F. App’x 16, 20 n.3 (5th Cir. 2009) (“If a
claimant fails to timely appeal the denial of a disability claim, the claim becomes final and res
judicata bars the claimant from seeking disability for that same period in a subsequently filed
application.”); 20 C.F.R. § 404.957 (c)(1).
ii. Dr. Amakiri’s Opinion.
Substantial evidence supports the ALJ’s opinion regarding Dr. Amakiri. Plaintiff visited
Dr. Amakiri on May 19, 2014. (R:551). During this visit, Dr. Amakiri concluded that Plaintiff
had “limitations with handling objects, carrying, lifting, moving about and standing.” (R:554).
Plaintiff required the assistance of a walker and possessed an unsteady gait. (Id.). However, due
to contradicting medical evidence, the ALJ only gave Dr. Amakiri’s opinion only some weight.
(R: 49–50).
A treating physician’s opinion regarding the nature and severity of a patient’s condition
should be accorded controlling weight in determining disability if it is: (1) well-supported by
medically acceptable clinical and laboratory diagnostic techniques; and (2) not inconsistent with
other substantial evidence. Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000). The ALJ may
assign little or no weight to the opinion of any physician for good cause. Id. at 455–56. 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, 466 (5th Cir. 2005) (emphasis omitted).
Absent reliable medical evidence from a treating or examining physician controverting
Plaintiff’s treating physician, an ALJ may reject the opinion of a treating physician only if the
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ALJ performs a detailed analysis of the treating physician’s views under the applicable federal
regulation. Newton, 209 F.3d at 453. Specifically, the regulation requires consideration of:
1.
2.
3.
4.
5.
6.
Length of the treatment relationship and the frequency of examination;
Nature and extent of the treatment relationship;
Supportability;
Consistency;
Specialization; and
Other factors that tend to support or contradict the opinion.
20 C.F.R. § 404.1527(c)(2). Where such evidence does exist in the record, however,
consideration of the six factors is not necessary. See Bullock v. Astrue, 277 F.App’x. 325, 329
(5th Cir. 2007) (per curiam) (indicating that consideration of the six factors is only necessary
absent controverting reliable medical evidence from a treating or examining physician); see also
Qualls v. Astrue, 339 F.App’x. 461, 466–67 (5th Cir. 2009) (“The Newton court limited its
holding to cases where the ALJ rejects the sole relevant medical opinion before it.”).
In the present case, medical evidence from another treating or examining physician
supports the ALJ’s decision, and thus, the ALJ was not required to undergo the six-factor
analysis under 20 C.F.R. § 404.1527(c)(2). First, Plaintiff visited Dr. Paisith Piriyawat on May
20, 2014, for a neurological evaluation. (869–70). In this visit, Dr. Piriyawat noted that
Plaintiff’s gait was antalgic due to pain in her right hip and knee, but outside of those factors,
Plaintiff’s gait was normal with no weakness, ataxia, or festination. (R:870). Plaintiff was able to
walk, and her upper and lower extremities were normal bilaterally. (R:870).
Further, Plaintiff visited Dr. Jose Gonzalez on May 18, 2016, and May 26, 2016. (R:566–
76). In both visits, Dr. Gonzalez found Plaintiff’s extremities and gait to be normal. (R:566–76).
Dr. Gonzalez even recommended aerobic exercise for 30 minutes a day, at least three times a
week. (R:571). Evidence from Dr. Piriyawat and Dr. Gonzalez supports the ALJ’s decision, and
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the ALJ did not err by failing to evaluate Dr. Amakiri’s opinion under 20 C.F.R. §
404.1527(c)(2).
iii. Nurse Padilla’s Medical Source Statement
Nurse Padilla completed a medical source statement (“MSS”) on December 18, 2014.
(R:558–61). In the MSS, Nurse Padilla indicated that Plaintiff could lift/carry less than 10
pounds; could stand/walk less than 2 hours in an 8-hour workday; limited in both upper and
lower extremities for pushing and pulling; and could occasionally reach, handle, finger, and feel.
(R:558–61). The ALJ gave her opinion little weight. (R:50).
As an initial matter, unlike Dr. Amakiri’s opinion, Nurse Padilla’s medical source
statement qualifies as “other source” opinion, and evidence from “other sources” may be used to
show the severity of an impairment and how it affects the individual's ability to function. 20
C.F.R. §§ 404.1527(f); 404.1513(a)(2); 416.913(a)(2); see Thibodeaux v. Astrue, 324 F.App’x.
440, 445 (5th Cir. 2009) (“Only ‘acceptable medical sources’ can establish the existence of a
medically determinable impairment, give medical opinions, and be considered treating sources
whose medical opinions may be entitled to controlling weight.”). Further, for “other source”
opinions, the ALJ is not required to consider every weight determining factor; however, the ALJ
should examine factors applicable to the particular circumstances. See SSR 06–03p, at *5; 20
C.F.R. § 404.1527(f); see also Adkins v. Berryhill, No. 3:16-CV-000459-RFC, 2017 WL
1185235, at *7–8 (W.D. Tex. Mar. 29, 2017) (holding hearing officer's consideration of two
factors was sufficient).
In this case, the ALJ did not disregard Nurse Padilla’s opinion. To the contrary, the ALJ
considered her opinion and gave it little weight because of the same contradicting medical
evidence mentioned above. (R:50). Thus, substantial evidence supports the ALJ's findings.
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d.
The ALJ Committed Harmless Error in Considering Plaintiff’s Obesity
Next, Plaintiff argues that her obesity “should have been considered in combination with
other impairments in making Plaintiff’s RFC determination.” (ECF. No. 21:7). Specifically, the
combination of “Plaintiff’s severe impairments and obesity has a considerable effect on
Plaintiff’s functional abilities to stand and walk.” (ECF. No. 21:8).
Obesity should be considered in making Plaintiff’s RFC determination and in Plaintiff’s
ability to perform work activities. Hobbs v. Astrue, 627 F. Supp.2d 719, 727 (W.D. La. June 10,
2009). While obesity is not a listed impairment, it can cause significant limitations and can
reduce an individual’s ability to work in combination with other ailments. Beck v. Barnhard, 205
F.App’x 207, 211 (5th Cir. 2006) (citing SSR 02–1p).
In this case, the ALJ erred by not discussing Plaintiff’s obesity in combinations with
Plaintiff’s other ailments; however, the error was harmless.2 In determining Plaintiff’s RFC, the
ALJ did evaluate Plaintiff’s diabetes mellitus II, osteoarthritis, osteoporosis, hypertension, and
high cholesterol. (R: 44–50). While the ALJ did not explicitly discuss obesity, the ALJ
considered the impact of Plaintiff’s obesity when he evaluated the severity of Plaintiff’s other
ailments, all of which are caused or aggravated by Plaintiff’s obesity. See Hobbs, 627 F. Supp.2d
at 727 (indicating that the ALJ committed harmless err by failing to explicitly discuss the impact
of obesity); see also Chapa v. Astrue, No. C–12–009, 2012 WL 4797117, at *15 (S.D.Tex. 2012)
(“Because the ALJ's RFC assessment contemplated all the evidence regarding plaintiff's health,
and that evidence necessarily reflected the impact of his weight, the decision was supported by
substantial evidence notwithstanding his failure to explicitly discuss plaintiff's obesity.”).
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Plaintiff’s BMI fluctuated between 30.54 and 35.4. (R: 451, 456, 554, 469, 575, 580, 618, 772,
778, 784). Under National Institute of Health’s Clinical Guidelines, Plaintiff’s obesity ranged
from Level I, 30.0–34.9, to level II, 35.0–39.9. SSR 02–1p.
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e.
The ALJ Did Not Fail to Accommodate for Plaintiff’s Pain
Finally, Plaintiff argues that the ALJ failed to accommodate for Plaintiff’s pain in
formulating Plaintiff’s RFC. (ECF. No. 21: 8–9). Specifically, the ALJ failed to articulate
reasons for rejecting Plaintiff’s complaint of pain. (ECF. No. 21:8).
The fact that Plaintiff has some pain or discomfort will not render her disabled. Villalba
v. Berryhill, No. 17–2114, 2018 WL 3212450, at *14 (S.D. Tex. June 29, 2018); 42 U.S.C. § 423.
First, there must be objective medical evidence showing the existence of a physical or mental
impairment which could reasonably be expected to cause pain. 42 U.S.C. § 423 (5)(A). Further,
pain constitutes a disabling condition only when it is “constant, unremitting, and wholly
unresponsive to therapeutic treatment.” Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir.
2001). Finally, an ALJ’s credibility findings on a claimant’s subjective complaints of the pain are
entitled to considerable deference. Villalba v. Berryhill, No. 17–2114, 2018 WL 3212450, at *14
(S.D. Tex. June 29, 2018).
In the present case, the ALJ properly considered Plaintiff’s pain in formulating Plaintiff
RFC. First, at step two, the ALJ found Plaintiff’s shoulder pain to be non-severe. (R:45). Further,
in formulating Plaintiff’s RFC, the ALJ considered: Plaintiff’s finger, joint, back, and leg pains;
Plaintiff’s restrictions regarding walking, sitting, kneeling, hearing, climbing, and using her
hands; and Plaintiff’s testimony that she could only lift three or four pounds. (R:47). Based on
these findings, the ALJ found that Plaintiff’s impairments could reasonably be expected to cause
the alleged pain; however, the ALJ questioned the intensity, persistency, and the limiting effects.
(Id.). For example, the ALJ questioned the intensity of Plaintiff’s pain from her osteoarthritis and
osteoporosis because Plaintiff had no complaints of pain, was exercising, and the physical
examinations failed to show any deficits during visits through May 2013. (R:47).
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Moreover, in forming Plaintiff’s RFC, the ALJ considered Plaintiff’s visit to Dr.
Piriyawat and Dr. Gonzalez. (R:47–48). As mentioned earlier, during these visits, Plaintiff did
not show any signs of serious pain. During Plaintiff’s visit with Dr. Piriyawat, Dr. Piriyawat
recorded that Plaintiff had an antalgic gait due to pain in her right hip and knee, but Plaintiff’s
gait was normal with no weakness, ataxia, or festination. (R:870). Further, Dr. Piriyawat noted
that Plaintiff was able to walk, and she had no weaknesses in her extremities. (R:870). During
Plaintiff’s visits with Dr. Gonzalez, Dr. Gonzalez found Plaintiff’s extremities and gait to be
normal and even recommended exercise. (R:566–76).
Finally, the ALJ rejected Plaintiff’s complaint of pain because her daily activities were
inconsistent with her alleged levels of pain. See Reyes v. Sullivan, 915 F.2d 151, 154 (5th Cir.
1990) (“[T]he inconsistencies between Reyes’ testimony about his limitations and his daily
activities were quite relevant in evaluating his credibility.”). In this case, Plaintiff’s daily
activities included: shopping, driving, handling money, watching television or listening to the
radio, interacting and visiting with friends and family, and attending church when possible.
(R:49, 59–75). Thus, based on the evidence, the ALJ did not fail to consider Plaintiff’s pain in
formulating Plaintiff’s RFC, and his opinion is supported by substantial evidence.
IV.
CONCLUSION
The Court concludes that the ALJ’s findings are supported by substantial evidence. The
ALJ properly considered the opinions of Plaintiff’s treating physician and nurse, committed
harmless error regarding Plaintiff’s obesity, and properly considered Plaintiff’s complaints of
pain. Thus, the Court HEREBY ORDERS that the decision of the Commissioner be
AFFIRMED.
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SIGNED this 25th day of July, 2018.
ROBERT F. CASTANEDA
UNITED STATES MAGISTRATE JUDGE
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