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Moreno v. Berryhill

United States District Court, W.D. Texas, El Paso Division

March 30, 2017

CESAR ELIZONDO MORENO Plaintiff
v.
NANCY A. BERRYHILL, [1] ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION Defendant

          MEMORANDUM OPINION AND ORDER

          MIGUEL A. TORRES UNITED STATES MAGISTRATE JUDGE

         This is 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 proceedings.

         I.PROCEDURAL HISTORY

         Moreno worked as a warehouseman forklift operator at Rio Bravo International for twenty-eight years. (R. 34).[2] 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.

         II. DISCUSSION

         A. Standard of Review

         This 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).

         In 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. Id.

         B. RFC is Not Supported by Substantial Evidence

         RFC is 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).

         "The 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).

         In 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.

         SSR 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, ...


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