United States District Court, W.D. Texas, El Paso Division
CARLOS M. ACEVEDO, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
F. CASTANEDA UNITED STATES MAGISTRATE JUDGE
a civil action seeking judicial review of an administrative
decision. Jurisdiction is predicated upon 42 U.S.C. §
405(g). Plaintiff 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 and supplemental security income
("SSI") under Title XVI 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 pursuant to 28
U.S.C. § 636(c) and Appendix C to the Local Court Rules
of the Western District of Texas. For the reasons set forth
below, the Commissioner's decision is
August 22, 2013, Plaintiff filed his application for DIB.
(R.190) He also filed an application for SSI on October 20,
2015. (R:41) In both applications, Plaintiff alleged
disability beginning on August 22, 2013.
(Id.) The applications were denied initially and
on reconsideration. (R:41) Pursuant to Plaintiffs request, an
Administrative Law Judge ("ALJ") held a hearing to
review Plaintiffs applications de novo on June 9,
2015, at which both Plaintiff and a vocational expert
("VE") testified. (R:58-80) The ALJ issued her
decision on December 16, 2015, denying benefits. (R:41-53)
Plaintiffs request for review was denied by the Appeals
Council on June 2, 2017. (R: 1-5)
presents the following issue for review:
Whether the ALJ erred in her evaluation of the treating
physician's opinion. (Doc. 22:2-7)
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. See Martinez v. Chater, 64 F.3d 172,
173 (5th Cir. 1995); Greenspan v. Shalala, 38 F.3d
232, 236 (5th Cir. 1994), cert. denied, 514 U.S.
1120 (1995). Substantial evidence is more than a scintilla,
but can be less than a preponderance, and is such relevant
evidence as a reasonable mind might accept as adequate 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) (citing Hames v. Heckler, 707 F.2d
162, 164 (5th Cir. 1983). In reviewing the substantiality of
the evidence, a court must consider the record as a whole and
"must take into account whatever in the record fairly
detracts from its weight." Singletary v. Bowen,
798 F.2d 818, 823 (5th Cir. 1986).
Commissioner's findings are supported by substantial
evidence, they are conclusive and must be affirmed.
Martinez, 64 F.3d at 173. In applying the
substantial evidence standard, a court must carefully examine
the entire record, but may not reweigh the evidence or try
the issues de novo. Haywood v. Sullivan, 888 F.2d
1463, 1466 (5th Cir. 1989). It 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
is defined as the "inability to engage in substantial
gainful activity by reason of any medically determinable
physical or mental impairment which has lasted or can be
expected to last for a continuous period of not less than 12
months." 42 U.S.C. § 423(d)(1)(A). The ALJ
evaluates disability claims according to a sequential
five-step process: 1) whether the claimant is currently
engaged in substantial gainful activity; 2) whether the
claimant has a medically determinable impairment that is
severe; 3) whether the claimant's impairment(s) meet or
equal the severity of an impairment listed in 20 C.F.R. Part
404, Subpart B, Appendix 1; 4) whether the impairment
prevents the claimant from performing past relevant work; and
5) whether the impairment prevents the claimant from doing
any other work. 20 C.F.R. §404.1520. A person's
residual functional capacity ("RFC") is what he can
still do despite his limitations or impairments. 20 C.F.R.
§ 404.1545(a); SSR96-8p.
individual applying for benefits bears the initial burden of
proving that he is disabled for purposes of the Act.
Selders v. Sullivan,914 F.2d 614, 618 (5th Cir.
1990). The claimant bears the burden of proof at the first
four steps, and once met, the burden shifts to the
Commissioner to show that there is other substantial gainful
employment available that the claimant is capable of