Fabela v. Colvin

Filing 32

MEMORANDUM DECISION and ORDER Affirming Decision of Commissioner. Signed by Magistrate Judge Brooke C. Wells on 02/19/2015. (tls)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL
DIVISION
MARY F. FABELA,

MEMORANDUM DECISION AND ORDER
AFFIRMING DECISION OF
COMMISSIONER

Plaintiff,
v.

Case No. 2:14-cv-205
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.

Magistrate Judge Brooke Wells

All parties in this case have consented to having United States Magistrate Judge Brooke
C. Wells conduct all proceedings in this case, including entry of final judgment, with appeal to
the United States Court of Appeals for the Tenth Circuit.1
Plaintiff Mary F. Fabela (“Plaintiff”) seeks judicial review of the determination of the
Commissioner of the Social Security Administration that denied her application for Social
Security Disability Benefits and . On February 18, 2015, the Court held oral argument on the
administrative record. Plaintiff was represented by Mr. Richard A. Williams and Defendant
Carolyn W. Colvin (“Defendant”) was represented by Ms. Christina J. Valerio, Special Assistant
U.S. Attorney admitted pro hac vice. For the reasons set forth below and as stated on the record
at the conclusion of the oral argument, the Court AFFIRMS the decision of Commissioner.
PROCEDURAL HISTORY
On December 7, 2010, Plaintiff filed applications for period of disability, disability
insurance benefits and supplemental security income. Plaintiff’s main complaint that she
believes qualifies her for disability benefits is a seizure disorder.
1

Docket no 14.

On December 27, 2012, the ALJ issued his written decision denying Plaintiff benefits.
On February 10, 2014, the Appeals Council denied Plaintiff’s claim.2 Thus, the ALJ’s decision
became the final decision of the Commissioner of Social Security (“Defendant”) and this appeal
followed.3
A. The ALJ’s Decision
The ALJ found at Step One that Plaintiff has not engaged in substantial gainful activity
since November 22, 2008—the alleged onset date. At Step Two, the ALJ found Plaintiff had
two severe impairments: seizure disorder and obesity. However, the ALJ did not find Plaintiff’s
condition met or medically equaled any of the Listings. In his discussion of the Listings, the
ALJ looked specifically at Listings 11.00-11.03 “Epilepsy.” The ALJ found Plaintiff did not
meet a Listing primarily because there was no objective evidence Plaintiff suffered from
seizures. Specifically, the ALJ reasoned “[w]hile Dr. Constantino asserted and the claimant
testified that she had both convulsive and “confusional” seizures, she could never give an
objective description of the seizures because there is no evidence of a single seizure being
witnessed.”4 Further,
[i]n her opinion of January 26, 2011, Dr. Constantino listed a VEP test as
objective evidence of the claimant’s seizure disorder. A VEP or visual evoked
potential test is for diagnosing MS and testing the vision of those who cannot read
eye charts. It was most likely administered to the claimant well prior to the
alleged onset date when she had left-eye deviance and there was medical concern
of M.S. The VEP test is medically insufficient to prove the existence, let alone
the type or frequency of seizures. As the claimant has failed to establish
objectively the type and frequency of seizures, I cannot find that she met or
equaled listing 11.02 or 11.03.5
Next, the ALJ found Plaintiff had the following RFC:

2

Tr. at 1.
Id.
4
Tr. at 25.
5
Id.
3

2

…the claimant has the residual functional capacity to perform sedentary
work…excepted limited to unskilled work, with no climbing or descending
full flights of stairs (but a few steps up or down not precluded), with no
working around dangerous unprotected heights, machinery, or chemicals, and
with access to a nearby restroom for quick access and the option to take the
maximum number of restroom breaks allowed (i.e in addition to the standard
breaks and lunch, 1-2 additional breaks in the a.m. and 1-2 additional
restroom breaks in the p.m. of about five minutes each). The claimant is
capable of no more than low-stress-level work (i.e. no working with the
general public and with only occasional contact with supervisors and coworkers, but still having the ability to respond appropriately to supervision,
co-workers and usual, routine work situations). She is capable of no more than
low-concentration-level work (i.e. the ability to be alert, attentive to and
adequately perform only unskilled work tasks). She is capable of no more
than low-memory work (i.e. the ability to understand, remember and carry out
only “simple” work instructions and to remember and use good judgment in
making only simple work-related decisions). Note: the limitations regarding
stress, concentration and memory relate to the symptoms claimant alleges
from her “seizures.”6
At Step Four, the ALJ found Plaintiff to be unable to perform any past relevant work7;
however, at Step Five, the ALJ found Plaintiff could perform the jobs of Cutter and Paster,
Touch-up Screener, and Final Assembler.8 Thus, Plaintiff was found not to be under a disability
consistent with the Social Security Act.9
FINDINGS10
Based upon review of the administrative record, arguments made by counsel in their
briefs and during oral argument, and relevant case law, this Court concludes that the ALJ's
decision is supported by substantial evidence. There is sufficient evidence in the record to
support the ALJ's determinations that claimant's allegations were not credible and that her
treating physicians' opinions were not entitled to controlling weight. Likewise, the ALJ's Step

6

Tr. at 25.
Tr. at 31.
8
Tr. at 32.
9
Id.
10
The Court finds the parties have adequately set forth Plaintiff’s medical history in their respective briefs.
Therefore, the Court finds it unnecessary to repeat that record here.
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3

Five findings and Listings determination was supported by substantial evidence. Accordingly,
the ALJ's determination is affirmed.
However, the Court makes the following specific findings with regard to each issue
raised by Plaintiff in her appeal:
A. The ALJ properly rejected the opinions of the claimant’s treating physician, Dr.
Constantino.
Although the ALJ did not specifically engage in the two-step analysis set forth in recent
10th Circuit case law,11 the Court finds any error in this regard to be harmless because the ALJ’s
opinion clearly demonstrates that controlling weight was not afforded to Dr. Constantino’s
opinion and her opinion was given little weight for reasons that are supported by substantial
evidence in the record.12 Namely, Dr. Constantino’s opinion was internally inconsistent, relied
heavily upon Plaintiff’s subjective complaints, lacked objective medical evidence to support her
findings and improperly opined as to issues reserved to the Commissioner. In addition, the
ALJ’s reasoning with regard to Dr. Constantino’s reliance on the VEP test is supported by
substantial evidence. The Court agrees with the ALJ that “the VEP test is medically insufficient
to prove the existence, let alone the type or frequency of the Plaintiff’s seizures.”13 Thus, the
ALJ made clear how much weight Dr. Constantino’s opinion was being given and provided good
reasons sufficiently tied to the factors for the weight he assigned.
Further, the Court finds the ALJ did not err by not calling a medical expert because the
record did not contain any ambiguity that reached a level where the ALJ could not make a
reasoned decision.

11

See Krauser v. Astrue, 638 F.3d 1324 (10th Cir. 2011); Chrismon v. Colvin, 531 Fed App’x 893 (10th Cir. 2013).
See Tarpley v. Colvin, No. 14-1110 (10th Cir. Feb. 4, 2015)(unpublished).
13
Tr. at 25.
12

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B. The ALJ did not err in rejecting Plaintiff’s subjective complaints.
As Defendant points out, the ALJ provided valid reasons to find Plaintiff not to be
credible. Namely, claimant’s testimony about her condition conflicts with laboratory findings
and objective findings. As the ALJ noted, Plaintiff had a two year gap in treatment in the United
States and was not compliant with her medication regime. The Court finds Plaintiff’s arguments
with regard to inability to be pay for treatment to be unpersuasive and unsupported by the record.
C. The ALJ did not err in finding Plaintiff did not meet a Listing.
In his opinion, the ALJ found claimant failed to establish objectively the type and frequency
of seizures in order to meet Listings 11.02 or 11.03. The Court finds no error in the ALJ’s listing
analysis. Specifically, the Court agrees with the arguments made Defendant at oral argument
that Plaintiff does not meet the Listings for three reasons: (1) there is no medical documentation
of any seizures. The EEGs performed in the United States were all normal; (2) there is no blood
serum test results that demonstrate Plaintiff was on an anti-seizure medication regime for at least
three months and (3) it is not clear that Plaintiff’s testimony relating to her seizure patterns that
her seizures meet what is required by the listings. Therefore, the Court finds substantial
evidence supports the ALJ’s findings that Plaintiff did not meet Listings
D. The ALJ did not err in his Step Five Analysis.
As to the last issue raised by Plaintiff, the Court finds the VE properly based her
determination on her experience and the Plaintiff has failed to carry her burden in demonstrating
which social security regulation or policy was not followed.

In addition, The ALJ’s

hypothetical in this case contained the limitations ultimately included in the RFC assessment and
the VE’s testimony constituted substantial support for the ALJ’s conclusion that the Plaintiff was
not disabled.

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CONCLUSION & ORDER
Therefore, for the foregoing reasons, the Court finds is not persuaded by Plaintiff’s
arguments and remand for further proceedings are not warranted. The ALJ’s opinion is
supported by substantial evidence. Therefore, IT IS HEREBY ORDERED that the
Commissioner’s decision is AFFIRMED.
DATED this 19 February 2015.

Brooke C. Wells
United States Magistrate Judge

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