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Garcia v. Saul

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

September 12, 2019

ROGER GARCIA, JR., Plaintiff,
v.
ANDREW SAUL[1], COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

          AMENDED [2] MEMORANDUM AND ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          FRANCES H. STACY, UNITED STATES MAGISTRATE JUDGE

         Before the Court[3] in this social security appeal is Plaintiffs Motion for Summary Judgment (Document No. 7) and Defendant's Cross Motion for Summary Judgment (Document No. 9). After considering the cross motions for summary judgment, each side's Response to the other's Motion for Summary Judgment (Document Nos. 11 & 12), the administrative record, the written decision of the Administrative Law Judge dated April 24, 2017, and the applicable law, the Court ORDERS, for the reasons set forth below, that Plaintiffs Motion for Summary Judgment is GRANTED, Defendant's Motion for Summary Judgment is DENIED, and this matter is REMANDED to the Commissioner for further proceedings, including a determination of whether Plaintiff was ever, during the five year period under consideration, disabled.

         I. Introduction

         Plaintiff Roger Garcia, Jr. ("Garcia") brings this action pursuant to Section 205(g) of the Social Security Act ("Act"), 42 U.S.C. § 405(g), seeking judicial review of a adverse final decision of the Commissioner of the Social Security Administration ("Commissioner") denying his claim for disability insurance benefits. Garcia argues in this appeal that: (1) the ALJ erred in considering whether he is illiterate; (2) substantial evidence does not support the ALJ's determination that he does not meet or equal Listing 1.04; (3) substantial evidence does not support the ALJ's RFC determination; (4) the ALJ erred in failing to obtain an updated medical opinion; (5) the ALJ erred when he failed to make a determination about whether Garcia could maintain competitive employment; and (6) the ALJ erred in his consideration of, and his failing to develop the record about, Garcia's obesity. The Commissioner, in contrast, argues that there is substantial evidence in the record to support the ALJ's April 24, 2017, decision, that the decision comports with applicable law, and that the decision should be affirmed.

         II. Procedural History

         On September 16, 2014, Garcia applied for disability insurance benefits, claiming that he was unable to work since September 22, 2008, as a result of neck, back and shoulder impairments. The Social Security Administration denied his application at the initial and reconsideration stages. After that, Garcia requested a hearing before an ALJ. The Social Security Administration granted his request and an ALJ, Janice M. Bruning, held a hearing on January 25, 2017, at which Garcia's claims were considered de novo. (Tr. 29-56). On April 24, 2017, the ALJ issued his decision finding Garcia not disabled. (Tr. 12-22).

         Garcia sought review of the ALJ's adverse decision with the Appeals Council. The Appeals Council will grant a request to review an ALJ's decision if any of the following circumstances are present: (1) it appears that the ALJ abused his discretion; (2) the ALJ made an error of law in reaching his conclusion; (3) substantial evidence does not support the ALJ's actions, findings or conclusions; or (4) a broad policy issue may affect the public interest. 20 C.F.R. § 416.1470. On May 23, 2018, the Appeals Council found no basis for review (Tr. 1-4), and the ALJ's April 24, 2017, decision thus became final. Garcia seeks, with this proceeding filed pursuant to § 405g, judicial review of that final, adverse administrative decision.

         The parties have filed cross motions for summary judgment (Document Nos. 7 & 9), which have been fully briefed and are ripe for ruling. At issue in this appeal is the determination that Garcia was not disabled between September 22, 2008, Garcia's alleged onset date, and December 31, 2013, the date Garcia was last insured for purposes of disability insurance benefits.

         III. Standard for Review of Agency Decision

         The court's review of a denial of disability benefits is limited "to determining (1) whether substantial evidence supports the Commissioner's decision, and (2) whether the Commissioner's decision comports with relevant legal standards." Jones v. Apfel, 174 F.3d 692, 693 (5th Cir. 1999). Indeed, Title 42, Section 405(g) limitsjudicial review of the Commissioner's decision: "The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." The Act specifically grants the district court the power to enter judgment, upon the pleadings and transcript, "affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing" when not supported by substantial evidence. 42U.S.C.§ 405(g). While it is incumbent upon the court to examine the record in its entirety to decide whether the decision is supportable, Simmons v. Harris, 602 F.2d 123 3, 123 6 (5th Cir. 1979), the court may not "reweigh the evidence in the record nor try the issues de novo, nor substitute [its] judgment for that of the [Commissioner] even if the evidence preponderates against the [Commissioner's] decision." Johnson v. Bowen, 864 F.2d 340, 343 (5th Cir. 1988); Jones v. Apfel, 174 F.3d 692, 693 (5th Cir. 1999); Cook v. Heckler, 750 F.2d 391 (5th Cir. 1985). Conflicts in the evidence are for the Commissioner to resolve. Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992).

         The United States Supreme Court has defined "substantial evidence," as used in the Act, to be "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938). Substantial evidence is "more than a scintilla and less than a preponderance." Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993). The evidence must create more than "a suspicion of the existence of the fact to be established, but no 'substantial evidence' will be found only where there is a 'conspicuous absence of credible choices' or 'no contrary medical evidence.'" Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983).

         IV. Burden of Proof

         An individual claiming entitlement to disability insurance benefits under the Act has the burden of proving his disability. Johnson v. Bowen, 864 F.2d 340, 344 (5th Cir. 1988). The Act defines disability as the "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 12 months." 42 U.S.C. § 423(d)(1)(A). The impairment must be proven through medically accepted clinical and laboratory diagnostic techniques. 42 U.S.C. § 423(d)(3). The impairment must be so severe as to limit the claimant in the following manner:

he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied to work.

42 U.S.C. § 423(d)(2)(A). The mere presence of an impairment is not enough to establish that one is suffering from a disability. Rather, a claimant is disabled only if he is "incapable of engaging in any substantial gainful activity." Anthony v. Sullivan, 954 F.2d 289, 293 (5th Cir. 1992) (quoting Milam v. Bowen, 782 F.2d 1284, 1286 (5th Cir. 1986)).

         The Commissioner applies a five-step sequential process to decide disability status:

1. If the claimant is presently working, a finding of "not disabled" must be made;
2. If the claimant does not have a "severe impairment" or combination of impairments, he will not be found disabled;
3. If the claimant has an impairment that meets or equals an impairment listed in Appendix 1 of the Regulations, disability is presumed and benefits are awarded;
4. If the claimant is capable of performing past relevant work, a finding of "not disabled" must be made; and
5. If the claimant's impairment prevents him from doing any other substantial gainful activity, taking into consideration his age, education, past work experience and residual functional capacity, he will be found disabled.

Anthony, 954 F.2d at 293; see also Leggett v. Chater, 67 F.3d 558, 563 n.2 (5th Cir. 1995); Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991). Under this framework, the claimant bears the burden of proof on the first four steps of the analysis to establish that a disability exists. If successful, the burden shifts to the Commissioner, at step five, to show that the claimant can perform other work. McQueen v. Apfel, 168 F.3d 152, 154 (5th Cir. 1999). Once the Commissioner shows that other jobs are available, the burden shifts, again, to the claimant to rebut this finding. Selders v. Sullivan, 914 F.2d 614, 618 (5th Cir. 1990). If, at any step in the process, the Commissioner determines that the claimant is or is not disabled, the evaluation ends. Leggett, 67 F.3d at 563.

         Here, the ALJ found at step one that Garcia had not engaged in substantial gainful activity since September 22, 2008, his alleged onset date. At step two, the ALJ determined that Garcia had the following severe impairments: a spinal disorder, a left shoulder disorder, and obesity. At step three, the ALJ determined that Garcia did not have an impairment or a combination of impairments that met or equaled a listed impairment, including Listings 1.02, 1.04, 11.14 and 14.09. Prior to consideration of steps four and five, the ALJ determined that Garcia had the "residual functional capacity to perform light work... except [he cannot] climb ladders, ropes or scaffolds, and he [can] no more than occasionally climb ramps and stairs, balance, stoop, crouch, kneel, crawl, bend, or twist [ ] and [can] reach overhead no more than occasionally with his left upper extremity and use his left hand no more than frequently to handle, finger or feel [ ] [and] should avoid concentrated exposure to extreme cold." (Tr. 17). Using that residual functional capacity assessment, the ALJ concluded, at step four, that Garcia could not perform his past relevant work as a sewer tapper. At step five, using that same residual functional capacity assessment, and relying on the testimony of a vocational expert, the ALJ concluded that there were jobs in significant numbers in the regional and national economy that Garcia could perform, including production assembler, housekeeping cleaner, and cafeteria attendant, and that he was therefore, through December 31, 2013, the date he was last insured for disability insurance purposes, not disabled.

         In this appeal, Garcia maintains that the ALJ erred in his consideration and development of the record as to his illiteracy and his obesity, erred in failing to obtain an updated expert medical opinion, and erred in failing to make a determination that Garcia could maintain employment. Garcia also maintains that substantial evidence does not support the ALJ's finding at step three that he did not meet Listing 1.04, and that substantial evidence does not support the ALJ's RFC determination.

         V. Discussion

         The objective medical evidence shows Garcia's spinal disorder and his left shoulder disorder have their genesis in a work-related accident that occurred on September 22, 2008, when a load of dirt was dumped on him. That accident led to three different surgeries over a period of four years: one on Garcia's cervical spine on March 5, 2009; one on Garcia's left shoulder on January 9, 2010; and one on Garcia's lumbar spine on March 8, 2012. Two of those surgeries - those on Garcia's cervical and lumbar spine - were performed by Dr. Michael Malek, a neurosurgeon, and the other - on Garcia's left shoulder - was performed by Dr. Ellis Nam. Dr. Malek's course of treatment of Garcia, over a four year period of time, is summarized by Dr. Malek in the latest of his progress notes, dated August 12, 2013, as follows;

The patient's condition is stable, however his pain persists and requires intermittent medication. He did have a cervical fusion and has done relatively well, however he continues to have multiple other problems with disc herniation at the L5-S1 and L4-5 level. The patient had the L5-S1 fusion and had shoulder surgery as well. The only occupation he ever had was construction. Given his educational level, his age, his skill set as well as the current employment market, I do not believe there is any chance whatsoever of Mr. Garcia being employable. His restrictions with respect to the neck, back and the shoulder make any return to work extremely difficult. The only thing that helps him from the low back standpoint is sitting, however sitting he cannot do because of problems with his neck and not being able to operate his arm and lift his arm. Therefore, the patient, in my opinion, given the combination of conditions, is restricted from any employment.
Diagnosis:
1. S/P work injury 9/22/08
2. Left cervical radiculopathy clinically in both upper and lower cervical distribution
3. MRI scan of the cervical spine done 12/23/08 showing evidence of central disc protrusion at C3-4, left paramedian disc protrusion indenting the thecal sac with moderate spinal stenosis at C4-5, diffuse disc bulge at C5-6, by report, films not available
4. Partial response to physical therapy
5. Limited response to activity restriction
6. No known drug allergies
7. S/P cervical ESI [epidural steroid injections] 1/9/09 with good, but ...

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