United States District Court, W.D. Texas, El Paso Division
MEMORANDUM OPINION AND ORDER
A. TORRES UNITED STATES MAGISTRATE JUDGE
a civil action seeking judicial review of an administrative
decision pursuant to 42 U.S.C. § 405(g). Plaintiff Cesar
Elizondo Moreno ("Moreno") appeals from the
decision of the Commissioner of the Social Security
Administration ("Commissioner") denying his claims
for Disability Insurance Benefits ("DIB") under
Title II of the Social Security Act. 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 of judgment. See 28 U.S.C. §
636(c); Local Court Rule CV-72. For the reasons set forth
below, the Commissioner's decision will be
REVERSED and the action
REMANDED for further administrative
worked as a warehouseman forklift operator at Rio Bravo
International for twenty-eight years. (R. 34). He was sixty-five
years old at the time of his hearing before the
Administrative Law Judge ("ALJ"). Id.
Moreno filed an application for DIB on September 18, 2012, in
which he alleged disability beginning September 14, 2012, due
to prostate cancer, arthritis, and memory loss. (R. 132-38,
161). After his application was denied initially and upon
reconsideration, Moreno requested a hearing. (R. 81-91). On
August 18, 2014, he appeared with his attorney for a hearing
before the ALJ. (R. 30-49). On August 29, 2014, the ALJ
issued a written decision denying benefits on the ground that
Moreno was capable of performing past relevant work. (R.
15-25). On December 15, 2015, the Appeals Council denied
Moreno's request for review, thereby making the ALJ's
decision the Commissioner's final administrative
decision. (R. 1-7). Moreno argues that the ALJ's residual
functional capacity ("RFC") determination is not
supported by substantial evidence.
Standard of Review
Court's review is limited to a determination of whether
the Commissioner's final decision is supported by
substantial evidence on the record as a whole and whether the
Commissioner applied the proper legal standards in evaluating
the evidence. Myers v. Apfel, 238 F.3d 617, 619 (5th
Cir. 2001) (quoting Greenspan v. Shalala, 38 F.3d
232, 236 (5th Cir. 1994)). Substantial evidence is more than
a scintilla, but less than a preponderance, and is such
relevant evidence as a reasonable mind might accept to
support a conclusion. Ripley v. Chater, 67 F.3d 552,
555 (5th Cir. 1995). A finding of "no substantial
evidence" will be made only where there is a
"conspicuous absence of credible choices" or
"no contrary medical evidence." Abshire v.
Bowen, 848 F.2d 638, 640 (5th Cir. 1988).
determining whether there is substantial evidence to support
the findings of the Commissioner, the Court must carefully
examine the entire record, but may not reweigh the evidence
or try the issues de novo. Newton v. Apfel, 209 F.3d
448, 452 (5th Cir. 2000). The Court may not substitute its
own judgment "even if the evidence preponderates against
the [Commissioner's] decision" because substantial
evidence is less than a preponderance. Harrell v.
Bowen, 862 F.2d 471, 475 (5th Cir. 1988). Conflicts in
the evidence are for the Commissioner and not the courts to
resolve. Spellman v. Shalala, 1 F.3d 357, 360 (5th
Cir. 1993). If the Commissioner applied the proper legal
standards and his findings are supported by substantial
evidence, they are conclusive and must be affirmed.
is Not Supported by Substantial Evidence
defined as the most an individual can still do despite his
limitations. 20 C.F.R. § 404.1545. The responsibility to
determine the claimant's RFC belongs to the ALJ.
Ripley, 67 F.3d at 557. In making this
determination, the ALJ must consider all the record evidence
and determine Plaintiffs abilities despite any physical and
mental limitations. 20 C.F.R. § 404.1545. The ALJ must
consider the limiting effects of Plaintiff s impairments,
even those .that are non-severe, and any related symptoms.
See 20 C.F.R. §§ 404.1545, 404.1529.
However, a claimant's own subjective complaints, without
supporting objective medical evidence, are insufficient to
establish disability. See 20 C.F.R. §§
404.1508, 404.1528, 404.1529. The ALJ is not required to
incorporate limitations in the RFC that she did not find to
be supported in the record. See Morris v. Bowen, 864
F.2d 333, 336 (5th Cir. 1988).
opinion of the treating physician who is familiar with the
claimant's impairments, treatments and responses, should
be accorded great weight in determining disability."
Newton, 209 F.3d at 455. "A treating
physician's opinion on the nature and severity of a
patient's impairment will be given controlling weight if
it is 'well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent
with ... other substantial evidence.'" Id.
(citation omitted). "The opinion of a specialist
generally is accorded greater weight than that of a
non-specialist." Id. (quoting Paul v.
Shalala, 29 F.3d 208, 211 (5th Cir. 1994)). "The
[opinion of a treating physician] may be assigned little or
no weight when good cause is shown. Good cause may permit an
ALJ to discount the weight of a treating physician relative
to other experts where the treating physician's evidence
is conclusory, is unsupported by medically acceptable
clinical, laboratory, or diagnostic techniques, or is
otherwise unsupported by the evidence." Id. at
455-56 (citation omitted).
reviewing the ALJ's opinion, the Court cannot accept
post-hoc justifications offered by the Commissioner because
"[t]he ALJ's decision must stand or fall with the
reasons set forth in the ALJ's decision, as adopted by
the Appeals Council." Gallegos v. Colvin, No.
EP-13-CV- 349-ATB, 2016 WL 705227, at *4 (W.D. Tex. Feb. 18,
2016) (citation omitted). When an opinion is unfavorable to a
claimant, Social Security regulations provide that:
the notice of the determination or decision must contain
specific reasons for the weight given to the treating
source's medical opinion, supported by the evidence
in the case record, and must be sufficiently specific to make
clear to any subsequent reviewers the weight the adjudicator
gave to the treating source's medical opinion and the
reasons for that weight.
96-2p, 1996 WL 374188, at *5 (emphasis added). Accordingly,
courts have remanded Social Security cases in which benefits
were denied and the ALJ failed to clearly articulate what
weight was given to a treating physician's opinion.
See Corpus v. Colvin, No. EP-14-CV-87- ATB, 2016 WL
1179221 (W.D. Tex. Mar. 24, 2016); Gallegos, ...