United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR SUMMARY
MILLOY UNITED STATES MAGISTRATE JUDGE.
12, 2016, the parties consented to proceed before a United
States magistrate judge for all purposes, including the entry
of a final judgment under 28 U.S.C. § 636(c). (Docket
Entry #9). The case was then transferred to this court.
Cross-motions for summary judgment have been filed by
Plaintiff Aurora Lerma (“Plaintiff, ”
“Lerma”), and by Defendant Nancy A. Berryhill
(“Defendant, ” “Commissioner”), in
her capacity as Acting Commissioner of the Social Security
Administration (“SSA”). (Plaintiff's Motion
for Summary Judgment, Docket Entry #13; Plaintiff's Brief
in Support of Motion for Summary Judgment
[“Plaintiff's Motion”], Docket Entry #14;
Defendant's Motion for Summary Judgment, Memorandum in
Support of Defendant's Cross Motion for Summary Judgment
[“Defendant's Motion”], Docket Entry #12).
Defendant has responded. (Defendant's Response in
Opposition to Plaintiff's Motion for Summary Judgment
[“Defendant's Response”], Docket Entry #15).
After considering the pleadings, the evidence submitted, and
the applicable law, it is ORDERED that Defendant's motion
is GRANTED, and that Plaintiff's motion is DENIED.
February 1, 2013, Plaintiff Aurora Lerma filed an application
for Social Security Disability Insurance Benefits
(“DIB”) under Title II of the Social Security Act
(“the Act”). (Administrative Transcript
[“Tr.”] at 202-09). On February 18, 2013, she
filed an application for Supplemental Security Income
(“SSI”) benefits, under Title XVI of the Act.
(Tr. at 210-15). Lerma claimed that she had been unable to
work since January 1, 2007, due to high blood pressure, high
cholesterol, diabetes, anxiety, depression, and insomnia.
(Tr. at 202, 229). On July 17, 2012, the Commissioner denied
her applications for benefits. (Tr. at 8, 46-47, 103-10).
Plaintiff petitioned for a reconsideration of that decision,
but her applications were again denied, on November 5, 2013.
(Tr. at 97-98, 111-15, 123-28).
November 20, 2013, Lerma successfully requested a hearing
before an administrative law judge [“ALJ”]. (Tr.
at 116-20). That hearing, before ALJ Thomas Norman, took
place on September 23, 2014. (Tr. at 25-45). Plaintiff
appeared with her attorney, Patricia Olivares [“Ms.
Olivares”], and she testified in her own behalf. (Tr.
27-40). The ALJ also heard testimony from Mr. Herman Litt,
[“Mr. Litt”], a vocational expert witness, and
Dr. Nancy Tarrand [“Dr. Tarrand”], a medical
expert. (Tr. at 40-44).
the hearing, the ALJ engaged in the following five-step,
sequential analysis to determine whether Plaintiff was
capable of performing substantial gainful activity or was, in
1. An individual who is working or engaging in substantial
gainful activity will not be found disabled regardless of the
medical findings. 20 C.F.R. §§ 404.1520(b) and
2. An individual who does not have a “severe
impairment” will not be found to be disabled. 20 C.F.R.
§§ 404.1520(c) and 416.920(c).
3. An individual who “meets or equals a listed
impairment in Appendix 1” of the regulations will not
be considered disabled without consideration of vocational
factors. 20 C.F.R. §§ 404.1520(d) and 416.920(d).
4. If an individual is capable of performing the work she has
done in the past, a finding of “not disabled”
must be made. 20 C.F.R. §§ 404.1520(f) and
5. If an individual's impairment precludes performance of
her past work, then other factors, including age, education,
past work experience, and residual functional capacity must
be considered to determine if any work can be performed. 20
C.F.R. §§ 404.1520(g) and 416.920(g).
Newton v. Apfel, 209 F.3d 448, 453 (5th
Cir. 2000); Martinez v. Chater, 64 F.3d 172, 173-74
(5th Cir. 1995); Muse v. Sullivan, 925
F.2d 785, 789 (5th Cir. 1991); Wren v.
Sullivan, 925 F.2d 123, 125 (5th Cir. 1991);
Harrell v. Bowen, 862 F.2d 471, 475 (5th
Cir. 1988). It is well-settled that, under this analysis,
Lerma has the burden to prove any disability that is relevant
to the first four steps. Wren, 925 F.2d at 125. If
she is successful, the burden then shifts to the
Commissioner, at step five, to show that she is able to
perform other work that exists in the national economy.
Myers v. Apfel, 238 F.3d 617, 619 (5th
Cir. 2001); Wren, 925 F.2d at 125. “A finding
that a claimant is disabled or is not disabled at any point
in the five-step review is conclusive and terminates the
analysis.” Lovelace v. Bowen, 813
F.2d 55, 58 (5th Cir. 1987).
be emphasized that the mere presence of an impairment does
not necessarily establish a disability. Anthony v.
Sullivan, 954 F.2d 289, 293 (5th Cir. 1992)
(quoting Milam v. Bowen, 782 F.2d 1284, 1286
(5th Cir. 1986)). An individual claiming SSI
benefits under the Act has the burden to prove that she
suffers from a disability. Johnson v. Bowen, 864
F.2d 340, 343 (5th Cir. 1988); Cook v.
Heckler, 750 F.2d 391, 393 (5th Cir. 1985).
Under the Act, a claimant is deemed disabled only if she
demonstrates an “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.”
Selders v. Sullivan, 914 F.2d 614, 618
(5th Cir. 1990) (citing 42 U.S.C. §
423(d)(1)(A)). Substantial gainful activity is defined as
“work activity involving significant physical or mental
abilities for pay or profit.” Newton, 209 F.3d
at 452. A physical or mental impairment is “an
impairment that results from anatomical, physiological or
psychological abnormalities which are demonstrable by
medically acceptable clinical and laboratory diagnostic
techniques.” Hames v. Heckler, 707 F.2d 162,
165 (5thCir. 1983) (citing 42 U.S.C. §
423(d)(3)). Further, the impairment must be so severe as to
limit the claimant so that “she is not only unable to
do her previous work but cannot, considering her age,
education, and work experience, engage in any kind of
substantial gainful work which exists in the national
economy.” Greenspan, 38 F.3d at 236 (citing 42
U.S.C. § 423(d)(2)(A)).
on these principles, as well as his review of the evidence
presented at the hearing, the ALJ determined that Plaintiff
has not “engaged in substantial gainful activity”
since January 1, 2007. (Tr. at 10). The ALJ further concluded
that Lerma suffers from degenerative joint disease in her
right knee, major depressive disorder, post-traumatic stress
disorder, diabetes, hypertension, and morbid obesity.
(Id.). Although he determined that these impairments
are severe, he concluded, ultimately, that Plaintiff's
impairments do not meet, or equal in severity, the medical
criteria for any disabling impairment in the applicable SSA
regulations. (Tr. at 11). He also found that
Plaintiff's medically determinable hepatic
mass, gallstones, and hyperlipidemia are not severe impairments,
because the medical records showed that neither the liver
mass, nor the gallstones, affected her ability to work.
(Id.). The ALJ then assessed Lerma's residual
functional capacity (“RFC”), and found that:
The claimant has the [RFC] to perform light work[, ] as
defined in 20 CFR [§§] 404.1567(b) and 416.967(b)[,
] [with an ability to] lift and carry 20 pounds occasionally
and 10 pounds frequently[, ] sit for about six hours out of
an eight-hour workday[, ] and stand and walk for six hours
out of an eight-hour workday[, ] except she cannot climb
ladders[, ] ropes[, ] or scaffolds. She can occasionally
climb ramps and stairs[, as well as] kneel and crawl. [She]
can understand, remember, and carry out simple instructions;
make simple work-related decisions; and respond appropriately
to supervis[ors], co-workers, [the] public and [typical] work
situations. She is able to handle changes in [her] work
routine  and [maintain] concentrat[ion] for extended
(Tr. at 13). Based on the medical records, and the testimony
from Mr. Litt and Dr. Tarrand, the ALJ determined that Lerma
is capable of performing her past relevant work as a sales
attendant. (Tr. at 16). For that reason, the ALJ concluded
that Plaintiff is “not  under a ‘disability,
' as defined in the Act, ” and he denied her
applications for benefits. (Tr. at 17).
January 8, 2015, Plaintiff requested an Appeals Council
review of the ALJ's decision. (Tr. at 22). SSA
regulations provide that the Appeals Council will grant a
request for a review if any of the following circumstances is
present: “(1) there is an apparent abuse of discretion
by the ALJ; (2) an error of law has been made; (3) the
ALJ's action, findings, or conclusions are not supported
by substantial evidence; or (4) there is a broad policy issue
which may affect the public interest.” 20 C.F.R.
§§ 404.970 and 416.1470. On March 10, 2016, the
Appeals Council denied her request for review, concluding
that no reason for review existed under the regulations. (Tr.
at 1-4).With that ruling, the ALJ's findings became
final. See 20 C.F.R. §§ 404.984(b)(2) and
416.1484(b)(2). On May 3, 2016, Plaintiff filed this lawsuit,
pursuant to section 205(g) of the Act (codified as amended at
42 U.S.C. § 405(g)), to challenge that decision. (Docket
Entry #1). Subsequently, the parties filed cross-motions for
summary judgment. Having considered the pleadings, the
evidence submitted, and the applicable law, it is ordered
that Defendant's motion is granted, and that
Plaintiff's motion is denied.
courts review the Commissioner's denial of disability
benefits only to ascertain whether the final decision is
supported by substantial evidence and whether the proper
legal standards were applied. See Randall v. Astrue,
570 F.3d 651, 655 (5th Cir. 2009);
Newton, 209 F.3d at 452 (citing Brown v.
Apfel, 192 F.3d 492, 496 (5th Cir. 1999)).
“If the Commissioner's findings are supported by
substantial evidence, they must be affirmed.”
Id. “‘Substantial evidence is more than
a scintilla, less than a preponderance, and is such that a
reasonable mind might accept it as adequate to support a
conclusion.'” Randall, 570 F.3d at 662
(quoting Randall v. Sullivan, 956 F.2d 105, 109
(5th Cir. 1992)); accord Ripley v.
Chater, 67 F.3d 552, 555 (5th Cir. 1995). On
review, the court does not “reweigh the evidence, but .
. . only scrutinize[s] the record to determine whether it
contains substantial evidence to support the
Commissioner's decision.” Leggett v.
Chater, 67 F.3d 558, 564 (5th Cir. 1995);
see Randall, 570 F.3d at 662; Carey v.
Apfel, 230 F.3d 131, 146 (5th Cir. 2000). In
making this determination, the court must weigh the following
four factors: the objective medical facts; the diagnoses and
opinions from treating physicians on subsidiary questions of
fact; Plaintiff's own testimony about her pain; and
Plaintiff's educational background, work history, and
present age. See Wren, 925 F.2d at 126. If there are
no credible evidentiary choices or medical findings that
support the Commissioner's decision, then a finding of no
substantial evidence is proper. See Boyd v. Apfel,
239 F.3d 698, 704 (5th Cir. 2001) (quoting
Harris v. Apfel, 209 F.3d 413, 417 (5th
this court, Plaintiff challenges the Commissioner's
finding that she is not disabled under the Act. In support of
her argument, she claims that the ALJ erred at step four of
his analysis. Lerma complains, specifically, that the ALJ
failed to make findings of fact regarding the physical and
mental demands of her past work as a sales attendant.
(Plaintiff's Motion at 5-6). She also alleges that the
ALJ failed to ask the vocational expert witness if his
testimony was consistent with the Dictionary of Occupational
Titles [“DOT”]. (Id. at 7-8). Next,
Plaintiff contends that she cannot perform her past work, as
it is generally performed, because she cannot meet the
standing, walking, or mental requirements of a “sales
attendant, ” as the position is described in the DOT.
(Id. at 8-10). Finally, Plaintiff claims that the
ALJ failed to consider a letter from her part-time employer,
which states that she is able to work only because of an
accommodation. (Id. at 11-12). Defendant, however,
maintains that the ALJ properly considered all of the
available evidence, and followed the applicable law, in
determining that Lerma is not disabled under the Act, and
that she is not entitled to an award of Social Security
Income benefits. (Defendant's Motion at 5-8, 9-11).
Facts, Opinions, and Diagnoses
earliest medical records show that Plaintiff was treated at
Harris Health System's Martin Luther King Jr. Health
Center [“MLK Center”] between July 6, 2010, and
March 13, 2013. (Tr. at 257-345). On July 6, 2010, Plaintiff
complained that she had been suffering from depression,
following the deaths of several family members. (Tr. at 341).
She reported symptoms including fatigue and insomnia, but she
denied having any suicidal or homicidal ideation.
(Id.). She also reported that she had been diagnosed
as suffering from diabetes. The physician reviewed a
computerized tomography [“CT”] scan of Lerma's
abdomen, which revealed hepatosplenomegalyand hepatic
steatosis. (Tr. at 342). He found an irregular
hypoechoic area in the left lobe of the liver, a
hydropic gall bladder, with a small amount of
sludge, and a hemangioma on the liver. (Tr. at 345). The scan
was otherwise unremarkable. (Tr. at 344-45). The physician
recommended that Plaintiff begin behavioral therapy to treat
her depression, undergo additional testing of her liver mass,
and consult a gastrointerologist. (Tr. at 342).
15, 2010, Lerma returned to the MLK Center for a diabetes
assessment. (Tr. at 336-38). Her physician prescribed
Metformin to control her glucose levels. (Tr. at 336-38). On
July 26, 2010, she reported that her symptoms had not changed
since the last visit. (Tr. at 333). Plaintiff stated that she
had not yet sought treatment from a gastrointerologist or a
psychologist. (Tr. at 334). She was encouraged to see those
physicians, as well as a podiatrist and an opthamologist, and
to return in three months. (Tr. at 334, 335). On September 3,
2010, Lerma stated that her blood sugar had been as high as
200 milligrams per deciliter of blood [“mg/dl”].
(Tr. at 436). However, she added that her blood sugar had
been as low as150 mg/dl. (Id.). Plaintiff also said
that she had stepped on a nail in February, and had received
a tetanus shot. (Id.).
September 14, 2010, Lerma received additional treatment at
the MLK Center. (Tr. at 324-27). She stated that she was
post-menopausal, but reported occasional vaginal spotting.
(Tr. at 325). She also complained of back pain, which she
attributed to the size of her breasts. She was counseled to
lose weight, or to undergo a breast reduction surgery.
(Id.). Her physician ordered an abdominal and pelvic
ultrasound to further evaluate her vaginal bleeding. (Tr. at
327). Those images, dated November 3, 2010, revealed a small
hiatal hernia in the lower thorax, and mild diffuse
hepatic steatosis. (Tr. at 321). The liver mass had not
changed since the scan taken on July 10, 2010.
(Id.). The images also showed a right inguinal
hernia in the gatrointestinal tract, and an
enlarged, multifibrous uterus. Plaintiff's spleen,
pancreas, adrenal glands, kidney, bones, and soft tissues
were unremarkable. (Id.). A CT scan and MRI of those
areas returned identical results. (Tr. at 317-18, 320).
February 1, 2011, Plaintiff had another appointment at the
MLK Center. (Tr. at 414-16). Lerma said that she had been
monitoring her cholesterol, but that she needed a
nutritionist's assistance. (Tr. at 415). She stated that
she had “been doing well” with her diabetes, and
that she had sought treatment from an opthalmologist.
However, she had not yet consulted a podiatrist.
(Id.). Plaintiff reported a persistent cough, but
she denied any headache, chest pain, dyspnea,  abdominal
pain, dizziness, nausea, or vomiting. The physician referred
Lerma to a nutritionist, and instructed her to follow-up in
three months (Tr. at 415-16).
March 18, 2011, Plaintiff presented to the MLK Center for a
psychiatric consultation. (Tr. at 411). She complained of
depression, beginning in 2007, with the death of her son, as
well as a recent onset of anxiety and insomnia. (Tr. at 411,
412). Lerma was diagnosed as suffering from depression and
anxiety. The physician prescribed Ambien, to treat her
insomnia, and referred her to a psychiatrist for further
assessment of her depression. (Id.). He also
instructed her to return in two months, if her symptoms
persisted or worsened. (Tr. at 413).
year later, on March 23, 2012, Lerma returned to the MLK
Center, with complaints of pain and swelling in a tooth in
her lower right jaw. (Tr. at 404). She said that she had not
experienced any headache, or difficulty in breathing or
swallowing. Her physician prescribed Amoxicillin to treat the
infection in her tooth, and he instructed her to see a
dentist. (Tr. at 405). He also ordered a metabolic blood
panel, which showed that her blood glucose and urea nitrogen
levels were elevated. (Tr. at 402). On May 30, 2012,
Plaintiff received follow-up treatment for her diabetes. (Tr.
at 394-96). She reported a history of depression, diabetes,
hyperlipidemia, and hypertension. (Tr. at 395). She denied
experiencing any burning, numbness, pins and needles,
tingling, weakness or cramping in her feet. (Id.).
The physician found no abnormalities of Lerma's feet.
(Tr. at 396). He instructed her to inspect her feet every
evening, and to return in one year. (Id.).
August 30, 2012, Plaintiff returned to the MLK Center for lab
testing to monitor her diabetes, an abdominal MRI, and to
discuss her stress level. (Tr. at 390-92). She said that her
average blood sugar was about 120 mg/dl. (Tr. at 390). She
also stated that she had been having trouble sleeping, and
that she became depressed after her mother's death
earlier that month. (Id.). Lerma told her physician
that she is 75% compliant with her medication and diet, and
that she regularly monitors her glucose level. The physician
noted that her A1C level at that visit fell within the
targeted range. However, Lerma's blood pressure and
cholesterol levels were elevated, and she displayed a blunted
affect, and cried during the examination. (Id.). The
physician instructed Lerma to modify her diet by limiting her