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Salazar v. Colvin

United States District Court, S.D. Texas, Galveston Division

March 6, 2017

ALMA ELIA SALAZAR, Plaintiff
v.
CAROLYN W. COLVIN, COMMISSIONER OF THE SOCIAL SECURITY ADMIN., Defendant.

REPORT AND RECOMMENDATION

          JOHN R. FROESCHNER UNITED STATES MAGISTRATE JUDGE.

         Before the Court, upon referral from the District Court Judge, is a Motion for Summary Judgment filed by Defendant Carolyn W. Colvin, the Commissioner of the Social Security Administration. (Dkt. No. 12). The Motion pertains to Alma Elia Salazar's appeal of the denial of her applications for Social Security benefits. Plaintiff Alma Elia Salazar filed a response in opposition to the Motion (Dkt. No. 18), to which Defendant replied. (Dkt. No. 21). Having considered the Motion, along with the response and reply, the administrative record[1] and applicable law, the Court RECOMMENDS, for the reasons discussed herein, that the Defendant Commissioner's Motion be GRANTED, that the Commissioner's decision be upheld, and that Plaintiffs action be DISMISSED.

         I. INTRODUCTION

         Plaintiff Alma Elia Salazar (Salazar) brings this action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of an adverse final decision of the Commissioner of the Social Security Administration (Commissioner) denying her applications for disability benefits (DIB) and supplemental security income benefits (SSI). Salazar, without delineating her arguments, challenges the unfavorable decision. The Commissioner maintains that there is substantial evidence in the record to support the ALJ's decision and that the ALJ properly applied the relevant law.

         II. PROCEDURAL HISTORY

         On February 12, 2014, Plaintiff Alma Elia Salazar (Salazar), who was approximately 43 years old, filed applications with the Social Security Administration (SSA), seeking disability insurance benefits (DIB) and supplemental security income (SSI). (Transcript (Tr.) 173-179; 180-185). In her application, Salazar alleged that her disability began on December 31, 2009, due to cirrhosis of the liver, schizoaffective disorder, fibromyalgia, and arthritis. (Tr. 173, 180, 199). Salazar's applications were denied initially and on reconsideration. (Tr. 109-116; 119-124). She appealed the denial and requested a hearing before an Administrative Law Judge (ALJ) to review the decision. (Tr. 102-103).

         On September 26, 2015, a hearing was held before ALJ Susan J. Soddy in Houston, Texas. (Tr. 35-60). During the hearing, the ALJ heard testimony from Salazar, who was represented by counsel, and from a vocational expert (VE). (Tr. 35). Thereafter, on December 14, 2015, the ALJ issued a decision in which she concluded that Salazar was not disabled within the meaning of the SSA from December 31, 2009, through the date of the decision. (Tr. 30).

         Salazar appealed the ALJ's decision to the Appeals Council of the SSA's Office of Hearings and Appeals, however, in a letter dated January 19, 2016, the Appeals Council notified Salazar that it declined to review the ALJ's determination. (Tr. 1-4). This rendered the ALJ's opinion the final decision of the Commissioner. See Sims v. Apfel, 530 U.S. 103, 107 (2000).

         Salazar, appearing pro se, filed a timely appeal of the ALJ's decision. 42 U.S.C. §405(g). The Commissioner filed a motion for summary judgment (Dkt. No. 12). The appeal is now ripe for consideration.

         III. STANDARD FOR REVIEW OF AGENCY DECISION

         Judicial review of administrative decisions by the Commissioner are limited.[2] A federal court reviews the Commissioner's denial of benefits only to ascertain whether (1) the final decision is supported by substantial evidence and (2) the Commissioner used the proper legal standards to evaluate the evidence. Brown v. Apfel, 192 F.3d 472, 473 (5th Cir. 1999); see also, Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995) (a court is tasked with "scrutiniz[ing] the record to determine whether it contains substantial evidence to support the Commissioner's decision"). Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). Substantial evidence is "more than a scintilla and less than a preponderance." Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995). When reviewing an administrative decision, the court is not permitted to re-weigh the evidence, try the issues de novo or substitute its judgment for the Commissioner's, even if the evidence weighs against the Commissioner's decision. Johnson, 864 F.2d at 343-44. Instead, conflicts in the evidence are for the Commissioner, not the court, to resolve. Brown, 192 F.3d at 496.

         IV. BURDEN OF PROOF

         An individual claiming entitlement to DIB and/or SSI under the Act has the burden of proving her disability.[3] Johnson v. Bowen, 864 F.2d 340, 344 (5th Cir. 1988). The Act defines disability as 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 twelve months." 42 U.S.C. § 423(d)(1)(A) (2000). The impairment must be proven through medically accepted clinical and laboratory diagnostic techniques. 42 U.S.C. § 423(d)(3) (2000). The impairment must be so severe as to limit the claimant in the following manner:

[s]he is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [s]he lives, or whether a specific job vacancy exists for [her], or whether [s]he would be hired if [s]he applied for work.

42 U.S.C. § 423(d)(2)(A) (2000). The mere presence of an impairment is not enough to establish that one is suffering from a disability. Rather, a claimant is disabled only if she is "incapable of engaging in any substantial gainful activity." Anthony v. Sullivan, 954 F.2d 289, 293 (5th Cir. 1992)(quoting Milan v. Bowen, 782 F.2d 1284 (5th Cir. 1986)).

         The law requires the Commissioner to determine whether the claimant has a disability. See Heckler v. Campbell, 461 U.S. 458 (1983). The Commissioner utilizes a five-step sequential evaluation analysis to aid in determining whether a claimant is disabled. Villa v. Sullivan, 895 F.2d 1019, 1022 (5th Cir. 1990). The five steps are as follows:

1. If the claimant is presently working, a finding of "not disabled" must be made;
2. If the claimant does not have a "severe" impairment or combination of impairments, [s]he will not be found disabled;
3. If the claimant has an impairment that meets or equals an impairment listed in Appendix 1 of the Regulations, disability is presumed and benefits are awarded;
4. If the claimant is capable of performing past relevant work, a finding of "not disabled" must be made; and
5. If the claimant's impairment prevents him from doing any other substantial gainful activity, taking into consideration [her] age, education, past work experience, and residual functional capacity, [s]he will be found disabled.

Anthony, 954 F.2d at 293; see also Leggett, 67 F.3d at 563 n.2; Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991).[4]

         The claimant bears the burden of proof at the first four steps of the sequential analysis. Leggett, 67 F.3d at 564. Once the claimant has shown that she is unable to perform her previous work, the burden shifts to the Commissioner to show that there is other substantial gainful employment available that the claimant is not only physically able to perform, but also, taking into account her exertional and nonexertional limitations, able to maintain for a significant period of time. Watson v. Barnhart, 288 F.3d 212, 217 (5lh Cir.2002). If the Commissioner adequately points to potential alternative employment, the burden shifts back to the claimant to prove that he or she is unable to perform the alternative work. Anderson v. Sullivan, 887 F.2d 630, 632-33 (5th Cir. 1989).

         In the instant case, the ALJ proceeded through all five steps of the sequential process. The ALT found at step one that Salazar had not engaged in substantial gainful activity since December 31, 2009, the alleged onset date. At step two, the ALJ found that Salazar's obesity, fibromyalgia, chronic pain syndrome, cirrhosis of the liver and schizoaffective disorder were all severe impairments. At step three, the ALJ concluded that Salazar did not have an impairment or combination of impairments that met or medically equaled a listed impairment, including Listings 1.02, 5.05, 11.04, and 12.04. The ALJ then, prior to consideration of step four, determined that Salazar had the residual functional capacity (RFC) to perform light work which was limited by the following: no climbing of ropes, ladders, or scaffolds; and only simple, routine tasks that do not require more than occasional interaction with the public. (Tr. 16-28). At step four, the ALJ determined that Salazar was unable to perform any past relevant work. At step five, considering Salazar's age, education, work experience, RFC, and the testimony of a vocation expert (VE), the ALJ concluded that Salazar could perform jobs such as an office helper, a housekeeping cleaner or a mail clerk, and that she was, therefore, not disabled as defined in the Social Security Act, from December 31, 2009, through the date of the ALJ's decision. (Tr. 10-30).

         V. DISCUSSION

         The Court reviews this pro se appeal to determine whether the Commissioner's decision adheres to the protocol established by the SSA, the Commissioner's own regulations and internal policies articulated in Social Security Rulings, and whether the Commissioner's critical fact findings were made in compliance with applicable law. See Elam v. Barnhart, 386 F.Supp.2d 746, 752-53 (E.D.Tex. 2005) (setting forth an analytical framework for judicial review of prose actions challenging an administrative determination that is aimed at striking "a fair balance" between the parties).

         In determining whether substantial evidence supports the ALJ's decision, the court weighs four factors: (1) the objective medical facts; (2) the diagnosis and expert opinions of treating, examining and consultative physicians on subsidiary questions of fact; (3) subjective evidence of pain as testified to by the plaintiff and corroborated by family and neighbors; and (4) the plaintiffs educational background, work history, and present age. Wren, 925 F.2d at 126. Any conflicts in the evidence are to be resolved by the ALT and not the Court. See Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000) (citing Brown, 192 F.3d at 496).

         A. Objective Medical Evidence

         The Court begins its inquiry by considering the objective medical evidence. Salazar's medical records, which were considered by the Commissioner and are part of the administrative record, show that she has been seen and treated for chronic pain syndrome, fibromyalgia, cirrhosis of the liver, schizoaffective disorder and obesity.

         The medical records show that in early December of 2012, Salazar was seen in the emergency room (ER) at UTMB due to complaints of left flank pain and nausea. (Tr. 270-273). Upon examination, the doctor noted that Salazar was in mild distress accompanied by some tenderness in her left flank and lab work revealed elevated liver enzymes. (Tr. 272, 421; 388- 389). Salazar was discharged from the ER the same day with a diagnosis of renal colic, renal lithisis and transaminitis and she was instructed to follow-up with her doctor. (Tr. 273).

         Approximately six months later, Salazar saw her primary care doctor. During the May 6, 2013 visit, she complained of chronic back and generalized body pain, but was not taking any medication to alleviate the pain. (Tr. 277-279). The doctor noted that Salazar had an antalgic gait, tenderness in her lumbar region and all extremities, as well as a painful range of motion (ROM) in all her joints. (Tr. 278). Imaging of Salazar's lumbar spine was largely unremarkable (Tr. 386-387) and lab work showed elevated liver enzymes. (Tr. 280-282). Salazar was assessed as having chronic pain syndrome and she was prescribed Zoloft for her depressed mood. (Tr. 282).

         During a follow-up visit with her primary care doctor on June 12, 2013, Salazar complained that the Zoloft was not helping, that she was experiencing insomnia, low energy, poor appetite, difficulty concentrating, and "fleeting thoughts of being better off dead." (Tr. 287-289). A physical examination revealed that Salazar had normal ROM, no spasms, no joint effusions and no swelling or deformities. The doctor performed a mental examination and found Salazar possessed normal judgment, cognition and memory; she was not delusional; her speech was delayed, but it was not rapid, pressured or tangential; she was not anxious, but exhibited a depressed mood and was slow and withdrawn; her affect was not labile; and, while she expressed suicidal ideation (SI), she had no plan. (Tr. 289). Salazar was assessed as having chronic pain syndrome, for which she was given an injection ...


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