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Lerma v. Berryhill

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

June 12, 2017

AURORA LERMA, Plaintiff,



         On July 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.


         On 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).

         On 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).

         Following 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 fact, disabled:

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 416.920(b).
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 416.920(f).
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).

         It must 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)).

         Based 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.[1] (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.[2] (Tr. at 11). He also found that Plaintiff's medically determinable hepatic lobe[3] mass, gallstones, and hyperlipidemia[4] 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 periods.

(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).

         On 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.

         Standard of Review

         Federal 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 Cir. 2000)).


         Before 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).

         Medical Facts, Opinions, and Diagnoses

         The 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[5] of Lerma's abdomen, which revealed hepatosplenomegaly[6]and hepatic steatosis.[7] (Tr. at 342). He found an irregular hypoechoic area in the left lobe of the liver, a hydropic[8] gall bladder, with a small amount of sludge, and a hemangioma[9] 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).

         On July 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.).

         On 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[10] 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[11] 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).

         On 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, [12] 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).

         On 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).

         One 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.).

         On 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[13] 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 ...

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