United States District Court, S.D. Texas, Galveston Division
REPORT AND RECOMMENDATION
R. FROESCHNER UNITED STATES MAGISTRATE JUDGE.
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 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.
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
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.
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).
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).
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.
STANDARD FOR REVIEW OF AGENCY DECISION
review of administrative decisions by the Commissioner are
limited. 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.
BURDEN OF PROOF
individual claiming entitlement to DIB and/or SSI under the
Act has the burden of proving her disability. 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)).
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
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).
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).
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).
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).
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).
Objective Medical Evidence
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.
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.
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).
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