Talamantes v. Berryhill

Filing 21

MEMORANDUM OPINION AND ORDER. It is ordered that the decision of the Commissioner will be AFFIRMED. Signed by Judge Miguel A. Torres. (lc3)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
2819SEp3O

GONZALO TALAMANTES,

PH

j:

§
§

Plaintiff,

§
§

v.

§

NO. EP-18-CV-00140-MAT

§

ANDREW SAUL,1 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 Gonzalo Talamantes ("Plaintiff') appeals from the decision of the

Commissioner of the Social Security Administration ("Commissioner") denying his application
for a period of disability and disability insurance benefits ("DIB") under Title II of the Social
Security Act. (Pl.'s Compi., ECF No. 5, at 1). The parties consented to the transfer of the case to
this Court for determination and entry of judgment. See 28 U.S.C.

§

63 6(c); Local Court Rule CV-

72. For the reasons set forth below, the Commissioner's decision will be AFFIRMED.

L

PROCEDURAL HISTORY

Plaintiff was sixty-one years old at the time he last met the insured status requirements of
sections the Social Security Act. (R. 17, 367).2 The decision of the Administrative Law Judge

Andrew Saul is now the Commissioner of the Social Security Administration. Pursuant to Federal Rule of Civil
Procedure 25(d), Andrew Saul is now substituted for Acting Commissioner Nancy A. Benyhill as the defendant in
this case.
1

2

Reference to the record of administrative proceedings is designated by (R. [page number(s)]).
1

18

("AU") is dated January 23, 2017.

See

(R. 25). Plaintifrs past relevant work is that of a

construction worker, specifically "cement work." (R. 122, 128, 419). On July 29, 2013, Plaintiff
filed an application for a period of disability and DIB, in which he alleged disability beginning on

June 24, 2013, due to bad stomach problems, appendix, high blood pressure, and high cholesterol.
(R. 365-84, 418). After his application was denied initially and upon reconsideration, Plaintiff

requested a hearing by an AL (R. 144-51, 152-60, 197-98).
On December 18,2014, a hearing was conducted before the AL (R. 130-41). On February
20, 2015, the AU issued a written decision denying benefits at step five of the five-step sequential

evaluation process on the basis that Plaintiff was capable of making a successful adjustment to

other work that exists in significant numbers in the national economy, such as dishwasher. (R.

167-74). Plaintiff sought review of the AU' s decision by the Appeals Council who remanded the
case to the AU on July 2, 2016, because the AU' s decision did not include sufficient rationale for
the residual functional capacity ("RFC") assessment and the jobs identified by the vocational

expert, and relied on by the AU at step five, conflicted with the assessed RFC. (R. 180-82). The
Appeals Council directed the AU to: (1) obtain additional evidence, if warranted; (2) further
consider the RFC, evaluate treating and examining source opinions in accordance with the Social
Security Administration Regulations (the "Regulations") and Social Security Rulings, and provide

specific references to evidence of record to support RFC; and (3)

if warranted, obtain evidence

from a vocational expert to clarify the effect of the assessed limitations on the claimant's
occupational base. (R. 181).
On December 8, 2016, a second hearing was held before a different AU. (R. 114-29).

Thereafter, on January 23, 2017, the AU issued a written decision denying benefits at step two of

the five-step sequential evaluation process, concluding that Plaintiff did not have a severe

2

impairment or combination of impairments because Plaintiff's physical and mental impairments,
"considered singly and in combination, do not significantly limit [Plaintiff's] ability to perform
basic work activities." (R. 25). On March 8, 2018, the Appeals Council denied Plaintiff's request
for review, thereby making the

AU' s decision the Commissioner's final administrative decision.

(R. 1-6).

In this appeal, Plaintiff argues that the

AU's step-two finding is erroneous and warrants

remand. (Pl.'s Br., ECF No. 18, at 2).

II.

LAW AND ANALYSIS

A. STANDARD OF REVIEW

The 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. Myers
2001) (citing Greenspan

v.

v.

Apfel, 238 F.3d 617, 619 (5th Cir.

Shalala, 38 F.3d 232, 236 (5th Cir. 1994)) (internal quotation marks

omitted). Substantial evidence "meansand means only' such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion." Biestek

v.

Berryhill, 139 S. Ct. 1148,

1154, (2019) (quoting Consol. Edison Co. v. Nat'lLaborRelationsBd., 305 U.S. 197, 229 (1938)).

It is more than a scintilla, but less than a preponderance. Ripley v. Chater, 67 F.3d 552, 555 (5th
Cir. 1995) (quoting Speliman v. Shalala,

1

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

Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)) (internal quotation marks omitted).
In determining whether there is substantial evidence to support the findings of the

Commissioner, the Court may not reweigh the evidence or try the issues de novo. Newton v. Apfel,

3

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." Harrell v. Bowen, 862 F.2d 471,
475 (5th Cir. 1988) (citation omitted). "Conflicts in evidence are for the [Commissioner] and not

the courts to resolve." Spellman,

1

F.3d at 360 (quoting Selders v. Sullivan, 914 F.2d 614, 617 (5th

Cir. 1990)) (internal quotation marks omitted).

If the Commissioner's findings are supported by

substantial evidence, "they are conclusive and must be affirmed." Id. However, "{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." Newton, 209 F.3d at 455.
B. FIVE-STEP SEQUENTIAL EVALUATION PROCESS

Under the Social Security Act, "disability" means, in relevant part, the "inability to engage
in any substantial gainful activity by reason of any medically determinable physical or mental

impairment which can be expected to result in death or 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). This means

that:

An individual shall be determined to be under a disability only if his
physical or mental impairment or impairments are of such severity
that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national
economy.
Id. at

§

423(d)(2)(A).
The Regulations prescribe a "five-step sequential evaluation process" to determine whether

a claimant is disabled. 20 C.F.R.

§

404.1520(a)(1). If, at any step of the process, the AU finds that

the claimant is either disabled or not disabled, the AU will make his determination as to disability
and will not continue with a consideration of the remaining steps. Id. at

4

§

404.1 520(a)(4).

At the first step, the AU determines whether the claimant is engaged in substantial gainful
activity. Id. at

§

404.1 520(a)(4)(i). If so, the AU will find the claimant is not disabled and will not

continue to step two. Id.
At the second step, the AU considers the medical severity of the claimant's impairment(s).
Id. at

§

404.1 520(a)(4)(ii). An impairment or combination of impairments is severe within the

meaning of the regulations if it "significantly limits" an individual's "ability to perform basic work
activities." Id. at

§

404.1520(c). "{A]n impairment can be considered as not severe only if it is a

slight abnormality which has such a minimal effect on the individual that it would not be expected
to interfere with the individual's ability to work, irrespective of age, education or work

experience." SSR 85-28, at *3 (citing Stone v.

Heckler,

752 F.2d 1099 (5th Cir. 1985)).

If the AU

determines that the claimant does not have a severe medically determinable physical or mental
impairment or combination of impairments that meet the duration requirement, then the AU will
find that the claimant is not disabled and will not continue to step three. 20 C.F.R.
§

404.1 520(a)(4)(ii).

At the third step, the AU

also considers the medical severity of the claimant's

impairment(s), specifically whether the impairment(s) meets the duration requirement and "meets
or equals one of [the] listings in appendix

1

of this subpart.. . ." Id. at § 404.1520(a)(4)(iii). If so,

the claimant will be found to be disabled, and the AU will not continue to step four. Id.
Before proceeding to the fourth step, the AU will make a finding as to the claimant's RFC,
"based on all the relevant medical and other evidence" in the administrative record. Id. at
§

404.1520(e). A claimant's RFC is the most he can still do despite his physical and mental

limitations that affect what he can do in a work setting. Id. at § 404.1545(a)(1). When assessing

5

the RFC, the AU will consider all of a claimant's medically determinable impairments, not just
ones that the AU determines are severe. Id. at

§

404.1 545(a)(2).

At step four of the five-step sequential evaluation process, the AU considers the RFC

assessment and the claimant's past relevant work. Id. at

§

404.1 520(a)(4)(iv). If the AU

determines that, considering the RFC, the claimant can still do his past relevant work, then the AU
will find that the claimant is not disabled and will not continue to step five. Id. Finally, at step five,
the AU considers the claimant's RFC, age, education, and work experience to determine whether

the claimant can adjust to other work. Id. at § 404.1 520(a)(4)(v). If the AU finds that the claimant
cannot, then the AU will find that the claimant is disabled. Id.
C.

THE AU'S WRITTEN DECISION

In his written decision, the AU analyzed Plaintifrs application for disability using the

five-step sequential evaluation process set forth in the Regulations. (R. 17-25). Before beginning
the evaluation process, the AU found that Plaintiff "last met the insured status requirements of the
Social Security Act on September 30, 2016." (R. 19). At step one of the five-step sequential
evaluation process, the AU found that Plaintiff had not engaged in substantial gainful activity
during the period between his alleged onset date of disability of June 24, 2013, through his date
last insured, September 30, 2016. (R. 19). Proceeding to step two, the AU found that Plaintiff had

the following medically determinable impairments: status-post laparoscopic cholecystectomy,
hypertension, ventral hernia, alcoholic cirrhosis, rheumatoid arthritis, goiter, and anxiety. (R. 19).
But, the AU found that these medically determinable impairments were not severe impairments,

singly and in combination, because these impairments "do not significantly limit the claimant's

ability to perform basic work activities." (R. 25). Accordingly, the AU determined that Plaintiff

was not under a disability between the alleged onset date and the date last insured and, therefore,

did not proceed to step three, four, or five. (R. 25).
D.

WHETHER THE AU's STEP-Two FuNDING Is ERRONEOUS AND WARRANTS REMAND

Plaintiff raises four arguments that he contends demonstrate that the AU's step-two
finding is erroneous. The Court will address them each in turn.
First, Plaintiff asserts that the record contains evidence of multiple impairments present for

more than twelve months causing significant symptoms. (Pl.'s Br., ECF No. 18, at 4). In support,

Plaintiff provides a lengthy listing of symptoms, diagnoses, and surgeries, with a single string
citation. Id. In response, the Commissioner argues that the existence of impairments is not the
focus of the step-two determination, and "[t]he AU properly focused on determining the extent of

Plaintiff's functional limitations," citing specific instances of such in the record and the AU's
decision. (Comm'r's Br., ECF No. 19, at 3-6).

Beyond providing a listing of symptoms, diagnoses, and medical procedures, Plaintiff has
provided no specific argument that this information was not properly considered by the AU.
However, the AU discussed these symptoms, diagnoses, and medical procedures in his written

decision and explained with citations to the record why he found each medically determinable
impairment to be non-severe. See (R. 2 1-23) (specifically explaining determinations as to
cholecystectomy and ventral hernia, alcoholic cirrhosis, rheumatoid arthritis, goiter, hypertension,
and anxiety). "The mere presence of some impairment is not disabling per se." Hames

v.

Heckler,

707 F.2d 162, 165 (5th Cir. 1983). Plaintiff has not provided more specific arguments as to how

the AU erred in his consideration of these symptoms, diagnoses, and medical procedures. The
Court cannot reweigh the evidence. See Newton, 209 F.3d at 452. Having reviewed the AU's

7

discussion of the medical evidence, the Court finds substantial evidence exists to support his
conclusions as to the severity of each medically determinable impairment.

Plaintiff's second argument of error is that the AU erroneously gave little weight to the
opinions of his treating physician, Dr. Pablo Federico Castro, while giving "great weight" to the
opinions of "one-time examining source Dr. Eleje and non-examining state agency physicians."

(Pl.'s Br., ECF No. 18, at 4-6). The Commissioner argues that the AU properly considered the
2013 opinions of Dr. Castro and sufficiently explained his reasons for giving them little weight.

(Comm'r's Br., ECF No. 19, at 6-9).
When determining disability, the AU will consider medical opinions from acceptable
medical sources, including treating physicians, together with the rest of the relevant evidence in

the record. 20 C.F.R. § 404. 1527(a)(b). A treating source's medical opinion on the issue(s) of the

nature and severity of a claimant's impairment(s) will be given controlling weight if the AU finds
that it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence in [the] case record." Id. at
§

404.1527(c)(2).
When a treating source's medical opinion is not given controlling weight, the ALl applies

the factors listed in paragraphs (c)(2)(i)(ii) and (c)(3)(c)(6) of § 404.1527 in determining what

weight to give the opinions and provides "good reasons" for the weight given. Id. at
§

404.1 527(c)(2). "[A]bsent 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.

§

404.1 527(d)(2)."3 Newton, 209 F.3d at 453 (emphasis in original).

The criteria that the Fifth Circuit references at subsection (d)(2) in Newton are currently located at subsection
and (c)(3)(c)(6) of § 404.1527. Compare 20 C.F.R. § 404.1527 (effective to July 31,

(c)(2)(i)(ii)

These factors include the length, frequency, nature, and extent of the treatment relationship, the
supportability of the opinion, the consistency of the opinion with the record as a whole,
specialization of the physician, and other factors, such as the medical source's understanding of

disability programs and evidentiary requirements and the extent to which the medical source is
familiar with the other information in the claimant's case record. Id. at

§

404.1527(c).

In a medical source statement dated November 22, 2013, Plaintiff's treating physician, Dr.
Castro, opined that Plaintiff could lift less than 10 pounds occasionally and frequently, could stand

and/or walk at least 2 hours in an 8-hour workday, could sit less than about 6 hours in an 8-hour
workday, and had limitations pushing and/or pulling in his lower extremities due to anemia,

hepatic cirrhosis, and lumbago with sciatica. (R. 520-21). Dr. Castro also opined that Plaintiff
could only occasionally climb ramps/stairs/ladder/rope/scaffold, balance, kneel, crouch, crawl, or
stoop. (R. 521). Furthermore, Dr. Castro opined that Plaintiff had manipulative limitations of

reaching and fingering frequently and handling and feeling occasionally due to swelling and
articular pain. (R. 522). Finally, Dr. Castro opined that Plaintiff had environmental limitations to
vibration, humidity/wetness, hazards, fumes, odors, chemicals, and gases due to chronic
conjunctive and perennial allergic rhinitis. (R. 523). The AU found these opinions inconsistent
with the record specifically noting the inconsistencies between Dr. Castro's opinions and Dr.

Eleje's opinions, Dr. Castro's own treatment notes, and the treatment notes of 2016. (R. 23).
The AU was not required to include a detailed analysis of the factors set forth in 20 C.F.R.
§

404.1527(c) when giving Dr. Castro's opinions little weight because the record contained the

opinions of Dr. Eleje who had examined Plaintiff and opined that Plaintiff did not have any
limitations.

Newton,

2006) with 20 C.F.R.
Mar. 27, 2017).

§

209 F.3d at 453; (R. 23, 500).

404.1527 (effective Aug. 24, 2012 to Mar. 26, 2017) and 20 C.F.R.

§

404.1527 (effective

Furthermore, the

AU' s decision reflects his consideration of the § 404.1527(c) factors. In

the discussion of the medical record evidence, the AU addressed the Plaintiff's treatment and
diagnoses as reflected in Dr. Castro's notes for visits from January to July 2014, and further noted

that "[t]he record indicates no evidence of treatment for over two years." (R. 2 1-23);
§

see

20 C.F.R.

404.1 527(c)(2)(i)(ii) (length, nature, and extent of treatment relationship and frequency of

examination). The AU also noted that "[t]he evidence of record does not support the medical

conditions Dr. Castro cited" in his opinions, which the AU had described in his prior discussion

of the medical evidence from Dr. Castro, and specifically noted that "Dr. Castro's own treatment
notes do not support his assessment." (R. 2 1-23);

see

20 C.F.R. §

404.1527(c)(3) (supportability).

Similarly, the AU found that Dr. Castro's opinions were not supported by the findings of Dr.
Elej e' s consultative examination as well as then-recent treatment notes from 2016 showing normal

physical examinations, all of which the AU discussed in his written decision. (R. 2 1-23); see 20
C.F.R.

§

404.1527(c)(4) (consistency)

Finally, although not specifically mentioned by the AU, there does not appear to be any
evidence that Dr. Castro was a specialist, which might warrant greater weight given to his opinion,

nor has Plaintiff identified any other factors that might have weighed in favor of providing Dr.

Castro's opinions greater weight. See 20 C.F.R. § 404.1527(c)(5)(c)((6) (specialization and other
factors). Accordingly, the Court finds that the AU properly considered the opinions of Dr. Castro
and gave good reasons in his written decision for the weight the AU afforded those opinions, in

accordance with 20 C.F.R.

§

404.1527(c).

Plaintiff's third assignment of error is that the AU did not properly develop the record
because he did not request further clarification despite incomplete notes and observations from Dr.
Castro and from Centro de Salud Familiar La Fe. (P1.'s Br., ECF No. 18, at 6-7). In support,

10

Plaintiff refers the Court generally to the medical records from Dr. Castro, asserting that they
"appear incomplete." Id. at 6. Plaintiff refers in a similar, general manner to the medical records

from Centro de Salud Familiar La Fe, claiming they are incomplete "and just note objective
findings based on 'visual overview' or at other times objective findings are not noted at all." Id. at

6-7. The Commissioner asserts that the AU was not required to further develop the record by
requesting clarification from Plaintiff s physicians because there was a sufficient record before the
AU to make a disability determination. (Comm'r's Br., ECF No. 19, at 9-10).

The AU owes a duty to a claimant to develop the record fully and fairly to ensure that his
decision is an informed decision based on sufficient facts. Sun v. Colvin, 793 F.3d 502, 509 (5th
Cir. 2015) (citing Ware v. Schweiker, 651 F.2d 408, 414 (5th Cir. 1981); James v. Bowen, 793

F.2d 702, 704 (5th Cir. 1986)); see also 20 CFR

§

404.15 12(b)(l), (b)(2) ("[B]efore we make a

determination that you are not disabled, we will develop your complete medical history.

. .

and

may ask you to attend a consultative examination at government expense."). For example, "[i]f 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)." Jones

v.

Astrue, 691 F.3d 730,

734 (5th Cir. 2012) (quoting Newton, 209 F.3d at 453) (emphasis in original).

Here, Dr. Castro was not the only examining physician; the medical record also includes
Dr. Eleje's opinions based on personal examination of Plaintiff (R. 498-500). Furthermore, Dr.

Eleje's examination was a consultative examination provided at government expense. (R. 497).
Moreover, Plaintiff has not indicated what specifically he believes is incomplete about the records
and how contacting the medical sources might provide clarification. The AU discussed in detail

11

the medical evidence from several medical sources including the treatment notes of Dr. Castro,

without indication that such evidence was inconclusive or inadequate to make a determination as
to the severity of Plaintiffs medically determinable impairments. See (R. 21-23).

Plaintiff was also given the opportunity to provide additional evidence, and did so, after
the case. was initially remanded from the Appeals Council.

See

(R. 118, 180-82). At the second

hearing the AU asked Plaintiff's attorney if there were "any additional medical reports or other
documents that need to be submitted in order to complete this record." (R. 118). Plaintiff's attorney
responded that there was no additional documentation. (R. 118).
For all of these reasons, the Court finds that the AU did not err by not requesting further
clarification from Dr. Castro or from Centro de Salud Familiar La Fe.

Plaintiffs final claim of error is that the AU "erroneously relie[d] on the listing level
severity requirements to make [the] finding" that Plaintiffs mental impairments were non-severe,
and, therefore, the AU failed to apply the proper legal standard for step-two. (P1.' s Br., ECF No.
18, at 7). The Commissioner did not address this argument.

In setting forth his analysis of Plaintiffs mental impairment, the AU referred to the "four

broad functional areas, set out in the disability regulations for evaluating mental disorders and in
section 12.00C of the Listing of Impairments (20 CFR., Part 404, Subpart P, Appendix 1)." (R.
24). The regulation effective at the time of the AU' s decision states that mental impairments are
to be evaluated under the "special technique" described in the Regulation, which includes

assessing a claimant's functional abilities in the areas of "understand, remember, or apply
information; interact with others; concentrate, persist, or maintain pace; and adapt or manage
oneself," and refers to 12.00C through 12.00H of the Listing of Impairments for more information

about these factors. 20 C.F.R.

§

404.1520a (eff. Jan. 17, 2017 to Mar. 26, 2017). Plaintiff has cited

12

no authority for his contention that it was error to apply the special technique at step two, nor has

the Court found any. Rather,

§

404.1 520a(d) provides that the special technique will be used to

determine the severity of a claimant's mental impairments. 20 C.F.R.
Furthermore, Plaintiff has not raised any specific argument as to the

§

404.1520a(d).

AU' s assessment of the

evidence related to this analysis. Accordingly, the Court finds that the AU did not err in this
respect.
Finally, Plaintiff argues that had the AU not erred, he likely would have continued past
step two. (Pl.'s Br., ECF No. 18, at 7). Further, according to Plaintiff, if Dr. Castro's opinions were

given greater weight Plaintiff would have been restricted to sedentary exertional level and found
to be disabled at step five of the sequential evaluation process. Id. Accordingly, Plaintiff contends

that he was prejudiced by the AU's errors. Id. "The party seeking to overturn the Commissioner's

decision has the burden to show that prejudice resulted from an error." Jones, 691 F.3d at 734-35.
The Court has already determined that the AU did not err in his step-two determination. However,
even had the AU erred, Plaintiff has not provided more than mere speculation that such error

prejudiced him. This is insufficient to meet his burden to show that prejudice resulted from an
error.

See

e.g., id.

at 735 ("A mere allegation that additional beneficial evidence might have been

gathered had the error not occurred is insufficient to meet this burden.")

III.

CONCLUSION

Accordingly,

IT IS ORDERED that the decision of the Commissioner will be AFFIRMED.
SIGNED and ENTERED this

day of September, 2019.

MIGUEL A. TORRES
UNITED STATES MAGISTRATE JUDGE
13