Licon Enriquez v. Berryhill, No. 3:2017cv00329 - Document 19 (W.D. Tex. 2018)
Court Description: MEMORANDUM OPINION AND ORDER. The Court hereby ORDERS that the decision of the Commissioner be AFFIRMED consistent with this opinion. Signed by Judge Robert F. Castaneda. (scf)
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LiconEnriquezv.Ber yhil Doc.19 H IN THE UNITED STATES DISTRICT COURT FORTHEWESTERNDISTRICTOFTEXAS EL PASO DIVISION EVA LICON ENRIQUEZ, § § Plaintiff, § § v. NO. EP-3-17-CV-00329-RFC § § Acting Commissioner of Social1 Security Administration, Defendant. § § § MEMORANDUM OPINION AND ORDER Jurisdiction is This is a civil action seeking judicial review of an administrative decision. predicated upon 42 U.S.C. § 405(g). 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 pursuant to 28 U.S.C. § ofjudgment 636(c), and Rule CV-72 and Appendix C to the Local Court Rules for the Western District of Texas. Plaintiff appeals from the decision of the Commissioner of the Social Security Administration ("Commissioner") denying her application for disability insurance benefits ("DIB") the under Title II of the Social Security Act. For the reasons set forth below, this Court orders that Commissioner's decision be AFFIRMED. PROCEDURAL HISTORY On May 15, 2014, Plaintiff filed an application for DIB, alleging a disability onset date of On March 6, 2018, the Government Accountability Office determined that Nancy Berryhill's of 1998. continued service as Acting Commissioner of Social Security violated the Federal Vacancies Reform Act Limit Imposed by the Federal Vacancies Reform Act See Government Accountability Office, Violation of the Time of 1998 (2016), https:!!www.gao.gov!products/D18772.Accordingly, this position is now vacant. Dockets.Justia.com denied initially and on reconsideration. (R: 51, November 16, 2013. (R: 120)2 Her application was conducted on August 11, 2016. (R:25-42) The 61) Plaintiff filed a request for a hearing, which was September 28, 2016, denying benefits. Administrative Law Judge ("AU") issued a decision on (R: 1-4) (R: 10-20) The Appeals Council ("AC") denied review. ISSUE Plaintiff presents the following issue for review: non-severe. Whether the AU erroneously found that Plaintiff's fibromyalgia was 1. (Doc. 17:2) is nonPlaintiffcontends that not only did the AU err in finding that Plaintiff's fibromyalgia Plaintiff seeks a reversal severe but also that such error is prejudicial. (Doc. 17:2-6) Consequently, and remand for an award of benefits or for further administrative proceedings. (Doc. 17:6) Defendant contends that if any error responds that the AU used the proper legal standards; alternatively, she took place, it is harmless, and that substantial evidence supports the AU's findings and conclusions. (Doc. 18:4-9) DISCUSSION L Standard of Review This Court's review is limited to a determination of whether the Commissioner's decision the proper legal is supported by substantial evidence, and whether the Commissioner applied 267, standards in evaluating the evidence. See 42 U.S.C. § 405(g); Masterson v. Barnhart, 309 F.3d "is 272 (5th Cir. 2002); Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995). Substantial evidence Reference to documents filed in this case is designated by "(Doc. [docket entry number(s):[page this case, (Doc. 13), is number(s)])". Reference to the transcript of the record of administrative proceedings filed in designated by "(R:[page number(s)]). 2 2 272. The a preponderance." Masterson, 309 F.3d at more than a mere scintilla, and less than evidence. Id. A finding of no findings will be upheld if supported by substantial Commissioner's or there is a conspicuous absence of credible choices substantial evidence will be made only where 848 F.2d 638, 640 (5th Cir. 1988). no contrary medical evidence. Abshire v. Bowen, In applying the substantial evidence standard, the court may not reweigh the evidence, try the the Commissioner's, even if it believes the issues de novo, or substitute its own judgment for Masterson, 309 F.3d at 272. Conflicts in the evidence weighs against the Commissioner's decision. to resolve. Id.; Speilman evidence are for the Commissioner and not the courts v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993). II. Evaluation Process five-step process: 1) whether The AU evaluates disability claims according to a sequential the claimant is currently engaged in substantial gainful activity; 2) whether the claimant has a severe whether the claimant's impairment(s) medically determinable physical or mental impairment; 3) meet or equal the severity of an impairment listed in 20 C.F.R. Part 404, Subpart B, Appendix 1; 4) past relevant work; and 5) whether whether the impairment prevents the claimant from performing work. 20 C.F.R. the impairment prevents the claimant from doing any other § 404.1520. The Leggett v. Chater, 67 F.3d claimant bears the burden of proof at the first four steps of the analysis. 558, 564 (5th Cir. 1995). of inflammatory In the present case, the AU found that Plaintiff had severe impairments arthritis, spine disorder status post fusion, chondromalacia and degenerativejoint disease of the right fibromyalgia, essential knee, and diabetes mellitus. (R: 12) He then found that Plaintiffs obesity, (Id.) The AU next hypertension, hypothyroidism and anxiety were non-severe impairments. 3 or in combination, met or medically determined that none of Plaintiffs impairments, either alone the entire record, he determined that equaled the listed impairments. (R:14) After considering sedentary work with some Plaintiff retained the residual functional capacity ("RFC") to perform total of 2 hours each activity out limitations. (R: 15) Plaintiff can stand and walk alternatively for a of 8 hours per day with sitting occurring intermittently throughout the remaining 6 hours of the day, pull and reach with upper and with postural limitations in that Plaintiff can frequently push and can occasionally extremities, can never ascend and/or descend ropes/ladders/scaffolds or stairs, holding and stoop, kneel, crouch, crawl and balance, and can frequently use the hands for grasping, perform her past turning objects. (Id.) The AU determined that Plaintiff retained the capacity to that relevant work as a 911 operator, a sedentary semi-skilled job. (R: 18) Consequently, he found Plaintiff was not disabled through the date of the decision. (R: 19) III. The AU's Determination of Plaintiff's Residual Functional Capacity Residual functional capacity is the most an individual can still do despite her limitations. 20 C.F.R. § 404.1545; SSR 96-8p. The responsibility to determine the Plaintiffs RFC belongs to the AU. Ripley v, Chater, 67 F.3d 552, 557(5th Cir. 1995). In making this determination, the AU must and consider all the record evidence and determine the Plaintiffs abilities despite her physical mentallimitations. The AU must consider the limiting effects of an individual's impairments, even those that are non-severe, and any related symptoms. See 20 C.F.R. § § 404.1529,404.1545; SSR Sp. The relative weight to be given the evidence is within the 96- AU's discretion. Chambliss v. Massanari, 269 F.3d 520, 523 (5th Cir. 2001). The AU is not required to incorporate limitations in the RFC that he did not find to be supported in the record. See Morris (5th Cir. 1988). ru v. Bowen, 864 F.2d 333, 336 provide or identify medical and other burden to establish disability and to It is Plaintiff's 12(c). A medically U.S.C. § 423(d)(5); 20 c.F.R. § 404.15 evidence of her impairments. See 42 C.F.R. § by acceptable medical sources. 20 determinable impairment must be established objective medical evidence of record, Plaintiff's own subjective complaints, without 404.1513(a). 404.1528, 404.1529 See 20 C.F.R. § 404.1508, are insufficient to establish disability. IV. Analysis the AU erroneously found Plaintiff's fibromyalgia The major issue on appeal is whether fibromyalgia can be diagnosed as SSR l2-2p describes two ways by which non-severe. (Doc.17:2) must show the relevant part of the first test, a claimant a medically determinable impairment. Under examination. SSR l2-2p 11 of 18 positive tender points on a history of widespread pain and at least explicitly meet this test. (R: 14) The AU did not The AU found that Plaintiff did not (II)(A)(2). show a history of widespread pain and repeated the second test, wherein a claimant must consider l2-2p (II)((B). Plaintiff argue that this of six or more fibromyalgia symptoms. SSR manifestations l2-2p does not (Doc. 17:4) This Court disagrees. SSR non-consideration was reversible error. to discuss AU did not commit reversible error by failing require consideration of both tests, and the *5 Admin., 2018 WL 297588 at 12-2P (II); Mayeux v. Comm 'r ofthe Soc. Sec. the second test. SSR (M.D. La. Jan. 4, 2018)(slip copy). without Further, Plaintiff's argument is moot. The AU, discussing the second test, found that and this impairment was nonfibromyalgia was a medically determinable impairment, Plaintiff's that that the AU may have implicitly determined severe. (R:12) The Commissioner conceded impairment through the second test. (Doe. Plaintiff's fibromyalgia was a medically determinable focus on to discuss the second test, and this Court will 18:5) Thus, the AU did not err by failing whether the AU erred by finding Plaintiffs fibromyalgia non-severe. The AU committed harmless error. Because this case does not turn upon a step two determination and severe impairments were determined to exist, and because all impairments were considered in the AU's formulation of Plaintiffs RFC, even if the AU erred in his finding that fibromyalgia was non-severe at step two, such error is harmless. See Gibbons v. Colvin, 2013 WL 1293902, at *16 (N.D. Texas. Mar. 30, 2013) (Ramirez, J.) (holding that error under Stone Heckler, 752 F.2d 1099 (5th Cir. 1985), potentially causing AU v. not to recognize certain impairments as severe at step two, was harmless because the AU considered the impairments in the RFC); Herrera v. Comm 'r, 406 Fed. Appx. 899, 903 (5th Cir. 2010) (per curiam) (holding that the AU' s failure to assess the severity of a claimant's impairments at step two is not a basis for remand where the AU proceeds beyond step two and determines that a claimant, despite severe impairments, retained the RFC to do other work). In essence, this is not a case where the AU failed to consider the impairments at all. In March 2014, Dr. Rogelio Gonzales encouraged Plaintiff to exercise. (R:302) Both state agency non-examining physicians, Dr. Patty Rowley and Dr. Kim Rowlands, recognized Plaintiffs fibromyalgia, but opined that she could perform medium work. (R:46-48, 56-59) On July 28, 2014, Dr. Hunko concluded that Plaintiff could ambulate without any assistive device, that she could sit and stand without difficulty, that she had good range of motion and mobility, and that she could grasp for items and button her clothes. (R:332) Finally, in May 2016, Dr. Benjamin Gonzalez observed that Plaintiffhad a normal gait and recommended that she continue to exercise. (R:4 10-11) The AU properly weighed and considered all medical opinions before arriving at his final disability decision. The Court finds that the medical evidence supports the AU's RFC determination. The AU considered Plaintiffs fibromyalgia when determining her RFC, and evaluated her stress, joint pain, and fatigue. (R: 16) He took into account limitations caused by Plaintiff's fibromylgia by limiting her to a reduce range of sedentary work. (R: 15) The AU also considered Plaintiffs daily activities in assessing her RFC. He considered that Plaintiff drove a vehicle, exercised, dressed herself, cooked, washed dishes, dusted, shopped for groceries, went to church, and visited her father on weekends. (R:29-36) The AU can consider daily activities when deciding a claimant's disability status. See Leggett v. Chater, 67 F.3d 558, 565 n. 12 (5th Cir. 1995) This further supports the AU's determination of non-disability. The Court notes that other than with respect to the answers to the hypothetical question posed by Plaintiff to the vocational expert ("yE") in this case, Plaintiff does not argue specifically what other limitations should have been found in her RFC. (R:41) The Court finds that Plaintiff has not shown that any of her impairments, including fibromyalgia, resulted in functional limitations beyond those accounted for in the AU's RFC finding. Furthermore, she does not contend that her fibromyalgia equals any Listing by itself or in combination with other impairments. The lack of functional limitations created by Plaintiffs fibromyalgia, other than further supports the AU's decision. See Vaughan v. those accounted for by the AU, Shalala, 58 F.3d 129, 131 (5th Cir. 1995). In the Fifth Circuit, harmless error exists when it is inconceivable that a different determination would have been reached absent the error. Frank v. Barnhart, 326 F.3d 618, 622 (5th Cir. 2003). Here, despite the AU's step two error, it is inconceivable that he would have assessed a different RFC had the error not taken place due to the abundance of evidence which supports the RFC conclusion. Hence, the Court determines that the AU's error is harmless and is not the basis for reversal. 7 Plaintiff also argues that a finding of disability is appropriate if an individual cannot perform full-time competitive employment because she is not able to perform basic work-related activities on a sustained basis. (Doc.17:5) She contends that the evidence of record as a whole supports the conclusion that her impairments and symptoms restrict her to less than sedentary workshe is unable to perform sustained work on a regular and continuing basis. (Id.) She appears to argue that the AU erred in failing to determine whether Plaintiff was capable not only of obtaining employment, but also maintaining it. See Watson v. Barnhart, 288 F.3d 212, 218 (5th Cir. 2002). The Court rejects these arguments for the following reasons. Ordinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis, and the RFC assessment must include a discussion of the individual's abilities on that basis. A "regular and continuing basis" means 8 hours a day, for 5 days a week, or an equivalent work schedule. SSR 96-8p. The Fifth Circuit has made it clear that an affirmative finding that an individual can maintain employment is necessary only when an individual's ailment waxes and wanes in its manifestation of disabling symptoms. See Frank v. Barnhart, 326 F.3d 618, 619 (5th Cir. 2003). In other words, the AU is not obligated to make separate findings on "obtaining" and "maintaining" a job in every case, particularly in cases in which the claimant does not suggest that there is any difference between the issue of her ability to work and her ability to sustain work. Id. at 621. The AU is required to assess the claimant's ability to maintain employment only when the claimant's intermittently recurring symptoms are of sufficient frequency or severity to prevent the claimant from holding ajob for a significant period of time. Id. at 619; Dunbar v. Barnhart, 330 F.3d 670, 671 (5th Cir. 2003). In Frank, the Court provided the example of a claimant alleging that her degenerative disc disease prevented her from maintaining employment because every number of weeks she lost movement in her legssuch would be relevant to the disability determination. Id. at 619. In the instant case, Plaintiff's ability to maintain sustained employment was not questioned during the administrative process. The necessary predicate required by the Fifth Circuit to necessitate a separate finding regarding the ability to sustain employment has not been established by Plaintiff. Rather, this is a standard case where the issue of whether the claimant can maintain employment for a significant period of time is subsumed in the analysis regarding the claimant's ability to obtain employment. Frank v. Barnhart, 326 F.3d 618, 619 (5th Cir. 2003) The AU's failure to make a separate finding does not constitute reversible error. Finally, Plaintiff points out that the VE testified that if a hypothetical individual took up to three unscheduled breaks ranging from twenty to twenty-five minutes she would not be able to maintain competitive employment. She argues that because the AU did not accommodate this limitation in his RFC finding, which would have resulted in a finding of disability, the AU committed reversible error. (Doc. 17:6) Nevertheless, the AU is not bound by VE testimony which is based on evidentiary assumptions ultimately rejected by the AU. See Owens v. Heckler, 770 F.2d 1276, 1282 (5th Cir. 1985). Because the AU did not find these functional limitations due to fibromyalgia or otherwise, and this finding is supported by substantial evidence, as discussed earlier, the Court finds that this argument also lacks merit. A review of the entire record and objective medical evidence supports the AU's findings and RFC determination and demonstrates that any error was harmless. Plaintiff's subjective complaints are insufficient to support her claim for disability. Consequently, the Court finds that substantial evidence supports the AU's RFC determination and ultimate disability decision. CONCLUSION Based on the foregoing, the Court hereby ORDERS that the decision of the Commissioner be AFFIRMED consistent with this opinion. SIGNED and ENTERED on May , 2018. ROBERT F. CASTANEDA United States Magistrate Judge 10
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