Ramirez v. Colvin

Filing 27

MEMORANDUM DECISION and ORDER Affirming Decision of the Commisioner. Signed by Magistrate Judge Brooke C. Wells on 02/05/2014. (tls)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
CARLOS R. RAMIREZ,
Plaintiff,

MEMORANDUM DECISION AND
ORDER AFFIRMING DECISION OF
THE COMMISSIONER

v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

Case No. 2:13-cv-240 BCW
Magistrate Judge Brooke C. Wells

This matter is before the Court on Plaintiff Carlos Ramirez’s appeal from the final
decision of the Commissioner of Social Security finding him not disabled pursuant to an
Administrative Law Judge’s January 24, 2012 decision. The ALJ’s decision was made final by
the Appeals Council denying Mr. Ramirez further review. 1

After careful consideration of the

record, relevant law, and the parties’ memoranda, the Court has determined that oral argument is
unnecessary and decides this case based upon the record before it. 2 For the reasons set forth
below, the Court affirms the decision of the Commissioner.

1

Because the Appeals Council denied review, the ALJ’s decision is the Commissioner’s final decision for purposes
of this appeal. See Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003).

2

See Scheduling Order, docket no. 17 (noting that [o]ral argument will not be heard unless requested at the time of
[the] filing first briefs by either party and upon good cause shown”).

BACKGROUND 3
A. Procedural History
In October 2008, Plaintiff Carlos Ramirez applied for disability benefits under Titles II
and XVI of the Social Security Act (Act) alleging disability beginning March 15, 2007. 4
Plaintiff’s claim was denied initially on February 23, 2009, and upon reconsideration. 5 Plaintiff
made a request for an administrative hearing which was held on July 16, 2010. 6 On September
22, 2010, the ALJ issued a decision finding Plaintiff not disabled within the meaning of the Act. 7
Plaintiff appealed and the Appeals Council remanded the case back to the ALJ for a second
administrative hearing. The Appeals Council specifically directed the ALJ to 1) give further
consideration to the Claimant’s maximum residual functional capacity during the entire period at
issue in this case; and 2) to obtain supplemental evidence form a vocational expert to help
determine the effect of the Claimant’s limitations on the available occupational base. 8
The ALJ held a new hearing on January 3, 2012. 9 Following the hearing the ALJ issued
a partially favorable decision on January 24, 2012, finding Mr. Ramirez disabled beginning on
June 25, 2010, but not prior to that date. 10 Mr. Ramirez earned enough Social Security credits to
be eligible for disability benefits if he was found disabled on or prior to March 31, 2010, which

3

The parties fully set forth the medical history in their respective memoranda. The Court finds it unnecessary to
repeat that record in detail here. Instead, the Court notes those items that are pertinent to its decision.

4

Tr. 260-266, 267-273. Tr. refers to the official transcript of the proceedings in this matter.

5

Tr. 98-99, 102-103.

6

Tr. 72-97.

7

Tr. 104-24.

8

Tr. 13.

9

Tr. 35-71.

10

Tr. 9-34.

2

is Plaintiff’s last insured date. Thus, the ALJ’s decision was partially favorable finding Plaintiff
disabled and eligible for Title XVI Supplemental Security Income but not disabled under Title II
of the Act because Plaintiff became disabled after his Social Security credits expired. 11
Plaintiff filed an appeal of the ALJ’s partially favorable decision and the Appeals Council
denied Plaintiff’s request for review 12 making the ALJ’s second decision the Commissioner’s
final decision for purposes of judicial review. 13 This appeal followed.
Plaintiff alleges disability beginning on March 15, 2007 due to debilitating back pain and
a seizure disorder. 14 Mr. Ramirez graduated from high school and has worked as a coal miner
and maintenance worker. 15 Plaintiff was 47 years old on the date the ALJ found him disabled.
B. Medical History
From 2006 to 2009 Plaintiff visited various medical practitioners and doctors
complaining of back pain, difficulty sleeping and problems with his legs arising from back
pain. 16 These visits included multiple trips to see Dr. David Petron, an orthopedist, in 2006 and
2007 prior to Plaintiff’s alleged disability date. Although Plaintiff complained of pain at these
visits, each time Dr. Petron found Plaintiff to be within the normal range of testing. 17
On March 22, 2007—shortly after Plaintiff’s alleged onset date—Mr. Ramirez returned

11

Tr. 9-34.

12

Tr. 1-6.

13

20 C.F.R. §§ 404.981, 416.1481, 422.210(a).

14

Tr. 267, 356.

15

Tr. 357.

16

See op. p. 2-5.

17

Tr. 19-20.

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to Dr. Petron complaining of back pain. On that date Dr. Petron’s tests were negative. 18 In May
2008, Plaintiff visited Dr. Petron again and told him that although he was experiencing pain and
had not been able to work, he still felt “as if he is able to work.” 19
In mid-September 2008 Dr. Petron reviewed a recent MRI that showed degenerative disc
disease with some neuroforaminal narrowing in Plaintiff’s lower back. Shortly thereafter
Plaintiff consulted with another orthopedist, Dr. Alpesh Patel, who noted almost full strength in
Plaintiff’s legs and other tests near normal limits. 20 In October 2008 Dr. Petron advised that
Plaintiff undergo a functional capacity test.
The following month in November 2008 Plaintiff underwent a Functional Capacity
Evaluation (FCE) with a physical therapist Sarah Marchant. At the FCE Mr. Ramirez reported
that he was working occasionally and was active for about “six hours per day.” 21 Testing results
from the FCE indicated that Plaintiff met the medium level physical demand characteristics for
work. 22
Plaintiff underwent another FCE with Dr. Bruce Newton on September 29, 2009. The
testing results from this FCE were largely normal and Dr. Newton concluded that surgery was
not advisable. 23 Dr. Newton confirmed the previous 5% whole person impairment assigned in
1995 but found no basis to change that assessment.
Approximately six months before this FCE, in mid-February 2009, Dr. David Peterson a
18

Tr. 20.

19

Tr. 464.

20

Tr. 458-59.

21

Tr. 522.

22

Tr. 527.

23

Tr. 22-23.

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state agency physician, reviewed Mr. Ramirez’s medical file. Dr. Peterson opined that Plaintiff
had capabilities that allowed him to work. 24
In July 2009 Plaintiff returned to Dr. Patel. Dr. Patel noted that injections had not
improved Plaintiff’s pain, but he once again did not recommend surgery. 25 Instead, near the end
of August 2009 Dr. Patel recommended that Plaintiff visit a pain specialist for further treatment
options. 26 Dr. Patel’s notes from the visit state that Mr. Ramirez understood his
recommendation. 27 Approximately a year later Plaintiff consulted with pain management
specialist Dr. Scott Junkins on June 25, 2010. Dr. Junkins sent Plaintiff to physical therapy and
performed injections. 28
C. ALJ’s Decision
In considering Mr. Ramirez’s claims the ALJ followed the five-step sequential process
for evaluating disability claims as set forth in the regulations. 29 At step one, the ALJ found that
Plaintiff had not engaged in substantial gainful activity since his alleged onset date of March 15,
2007. 30 At steps two and three, the ALJ found that Plaintiff had the severe impairments of
degenerative disc disease of the lumbar spine and a seizure disorder. None of these impairments,
however, met or equaled a listing. 31 Next, the ALJ assessed Plaintiff’s residual functional

24

Tr. 482-88.

25

Tr. 509-512.

26

Tr. 509.

27

Tr. 509.

28

Tr. 560, 566-71.

29

20 C.F.R. § 404.1520. Tr. 15-28.

30

Tr. 15.

31

Tr. 16-17. See 20 C.F.R. pt. 404, subpt. P, app. 1 (the Listings).

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capacity (RFC) by evaluating the evidence in the record. 32 The ALJ then found that prior to June
25, 2010, Plaintiff had the RFC to perform a range of sedentary to light unskilled work as
defined in 20 C.F.R. §§ 404.1567(a) and (b) with certain restrictions. These restrictions included
inter alia, lifting/carrying 10 pounds occasionally and three to five pounds frequently; sitting for
six hours per eight hour day, and no more than 15 to 20 minutes at a time; standing or walking
for six hours per eight hour day, and no more than 15 to 20 minutes at a time; stopping on no
more than an “occasional” basis; and no work at more than a low stress level, which means a low
production level with less than occasional working with the general public. 33
The ALJ next found that Plaintiff’s allegations concerning the intensity, persistence, and
limiting effects of his symptoms were not entirely credible. 34 At step four, the ALJ found that
Mr. Ramirez was unable to perform any past relevant work such as a minor and farrier. 35 Then
at step five, based upon the testimony of the Vocational Expert and Plaintiff’s RFC, the ALJ
found that prior to June 25, 2010, there were jobs that Plaintiff could have performed. These
included a leaf tier, office helper, airline security representative, and fingerprint clerk. 36 Thus
from Plaintiff’s alleged onset date, March 15, 2007 to June 24, 2010, Plaintiff was not disabled.
Finally, the ALJ conducted a separate step five analysis of Plaintiff for June 25, 2010 and
onward. 37 For this time frame the ALJ found that Plaintiff’s impairments resulted in a reduced

32

Tr. 17.

33

Tr. 17-28.

34

Tr. 18-23.

35

Tr. 26.

36

Tr. 27.

37

Tr. 28.

6

RFC that would preclude him from performing past or other work in the national economy. 38
The ALJ then found that based on the evidence in the record Plaintiff became disabled on June
25, 2010. Because Plaintiff was not under a disability by his last insured date, March 31, 2010,
the ALJ denied Mr. Rairez disability benefits but did award him Supplementary Security Income
under Title XVI of the Act.
STANDARD OF REVIEW
The Court reviews the Commissioner’s decision to determine whether substantial
evidence in the record as a whole supports the ALJ’s factual findings and whether the correct
legal standards were applied. 39 “Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” 40
Additionally, the ALJ is required to consider all of the evidence; however, the ALJ is not
required to discuss all evidence. 41 In reviewing the ALJ’s decision the Court should evaluate the
record as a whole, including that evidence before the ALJ that detracts from the weight of the
ALJ’s decision. 42 The Court, however, may neither “reweigh the evidence [n]or substitute [its]
judgment for the [ALJ’s].” 43 Where the evidence as a whole can support either the agency’s
decision or an award of benefits, the agency’s decision must be affirmed. 44 Further, the Court
“may not ‘displace the agenc[y’s] choice between two fairly conflicting views, even though the

38

Tr. 28.

39

See Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).

40

Id. (citation omitted).

41

Zoltanski v. FAA, 372 F.3d 1195, 1200 (10th Cir. 2000).

42

Shepherd v. Apfel, 184 F.3d 1196, 1199 (10th Cir. 1999).

43

Lax, 489 F.3d at 1084 (citation omitted).

44

See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990).

7

Court would justifiably have made a different choice had the matter been before it de novo.’” 45
DISCUSSION
This case presents somewhat of an unusual factual situation. The ALJ did find that
Plaintiff was disabled starting June 25, 2010. Plaintiff, however, alleges disability starting
March 15, 2007 and is only covered under the Social Security disability program through his last
insurability date, March 31, 2010. Thus, to be awarded additional benefits Plaintiff must
establish that prior to March 31, 2010 he was disabled pursuant to Social Security regulations.
Plaintiff argues the ALJ’s finding that he was disabled starting June 25, 2010, but not
prior to that date, is not supported by substantial evidence. Plaintiff further argues that the ALJ’s
citation to his failure to make an appointment with Dr. Junkins at the pain clinic is incorrect
because Plaintiff reported to a physician’s assistant in April 2010 that he was unaware of that
recommendation. Further, Plaintiff promptly scheduled his first visit with the pain clinic shortly
thereafter. Finally, Plaintiff argues that the reasons giving in support of the ALJ’s decision by
the Commissioner are post-hoc rationalizations. The Court is not persuaded by these arguments.
First, as set forth above and as laid out in more detail in the ALJ’s decision, there is
substantial medical evidence to support the ALJ’s decision. For example, in 2007 and 2008
multiple doctor visits resulted in normal results. In addition, Plaintiff himself stated multiple
times after his alleged disability date that he was either working or capable of work with the last
assertion being made in November 2008 during a FCE. In February 2009 a state agency
physician also opined that Mr. Ramirez was capable of work. Finally, on September 29, 2009,
Mr. Ramirez underwent another FCE with Dr. Newton. The results from this test were once
45

Lax, 489 F.3d at 1084 (quoting Zoltanski, 372 F.3d at 1200).

8

again fairly normal and he found no basis to change the prior 5% whole person impairment
assigned in 1995. 46
Second, in August 2009 Dr. Patel explicitly stated in his visit notes that Plaintiff “has
verbalized understanding as to the contents of this note.” 47 This included the recommendation to
visit with a doctor at the pain clinic. The note was made contemporaneously to Plaintiff’s visit
with Dr. Patel. Plaintiff contests this note by pointing to other contradictory evidence in the
record. The Court, however, declines Plaintiff’s invitation to reweigh this evidence because it is
not the province of this Court to do so. 48
Finally, the Court finds the Commissioner’s arguments are not post-hoc rationalizations
as asserted by Plaintiff. Rather, they are properly made in response to Plaintiff’s arguments and
are supported in the record.

46

Tr. 22-23.

47

Tr. 509.

48

Lax, 489 F.3d at 1084 (citation omitted); cf Marbury v. Madison, 5 U.S. 137, 170, 1803 WL 893, 21
(U.S.Dist.Col.,1803) (“The province of the court is, solely, to decide on the rights of individuals, not to enquire how
the executive, or executive officers, perform duties in which they have discretion. Questions, in their nature
political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.”).

9

CONCLUSION
For the reasons set forth above, the Court finds that the ALJ’s decision is supported by
substantial evidence. The decision of the Commissioner is AFFIRMED and the Clerk of the
Court is directed to close this case.

Dated this 5th day of February, 2014.

BY THE COURT:

Brooke C. Wells
United States Magistrate Judge

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