United States District Court, W.D. Texas, El Paso Division
BENJAMIN R. MARQUEZ RODRIGUEZ Plaintiff,
ANDREW SAUL,  COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.
MEMORANDUM OPINION AND ORDER
A. TORRES, UNITED STATES MAGISTRATE JUDGE
a civil action seeking judicial review of an administrative
decision pursuant to 42 U.S.C. § 405(g). Plaintiff
Benjamin R. Marquez Rodriguez ("Plaintiff) appeals from
the decision of the Commissioner of the Social Security
Administration ("Commissioner") denying his
applications for a period of disability and disability
insurance benefits ("DIB") under Title II of the
Social Security Act (the "Act") and supplemental
security income ("SSI") under Title XVI of the Act.
(Pl's Compl., ECF No. 4, at 1). The parties consented to
the transfer of the case to this Court for determination 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
was fifty years old at the time of the decision of the
Administrative Law Judge ("ALT'), dated August 1,
2017. See (R. 38, 308). His past relevant work
includes working as a forklift operator and as a truck
driver. (R. 36, 358). On November 14, 2013, Plaintiff filed
applications for a period of disability and DIB and SSI, in
which he alleged disability beginning on August 15, 2013, due
to "lumbar problems/right shoulder tendon." (R.
308-16, 317-20, 368). After his applications were denied
initially and upon reconsideration, Plaintiff requested a
hearing by an ALJ. (R. 149, 161, 168-69).
September 17, 2015, a hearing was conducted before the ALJ.
(R. 63-77). On November 2, 2015, the ALJ issued a written
decision denying benefits at step five of the five-step
evaluation process on the basis that Plaintiff was not
disabled because he was "capable of making a successful
adjustment to other work that exists in significant numbers
in the national economy, " such as "bakery worker,
conveyor line." (R. 123-31). Plaintiff sought review of
the ALJ's decision by the Appeals Council who remanded
the case to the ALJ, on December 22, 2016, because
"[t]he decision does not contain an evaluation of
treating source opinions" that are inconsistent with the
residual functional capacity for light work as determined by
the ALJ. (R. 139). The Appeals Council directed the ALJ to:
Give consideration to the treating source opinion pursuant to
the provisions of 20 CFR 404.1527 and 416.927 and Social
Security Rulings 96-2p and 96-5p, and explain the weight
given to such opinion evidence. As appropriate, the
Administrative Law Judge may request the treating source to
provide additional evidence and/or further clarification of
the opinion (20 CFR 404.1520b and 416.920).
20, 2017, a second hearing was held before the ALJ. (R.
45-62). Thereafter, on August 1, 2017, the ALJ issued his
written decision finding at step five of the five-step
evaluation process that Plaintiff was "not
disabled" prior to March 31, 2017, but became
"disabled" beginning on March 31, 2017, when
Plaintiffs age category changed. (R. 37-38). On January 26,
2018, the Appeals Council denied Plaintiffs request for
review, thereby making the ALJ's decision the
Commissioner's final administrative decision. (R. 1-8).
appeal, Plaintiff argues: (1) that the ALJ failed to give
proper weight to examining source opinion and failed to
follow the Appeals Council's Remand Order and (2) that
the ALJ's residual functional capacity finding is not
supported by substantial evidence. (Pl's Br., ECF No. 18,
LAW AND ANALYSIS
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.
Myers v. Apfel, 238 F.3d 617, 619 (5th Cir. 2001)
(citing Greenspan v. Shalala, 38 F.3d 232, 236 (5th
Cir. 1994)) (internal quotation marks omitted). Substantial
evidence "means-and means only-'such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.'" Biestek v.
Berryhill, 139 S.Ct. 1148, 1154, (2019) (quoting
Consol. Edison Co. v. Nat 7 Labor Relations
Bd., 305 U.S. 197, 229 (1938)). It is more than a
scintilla, but less than a preponderance. Ripley v.
Chater, 67 F.3d 552, 555 (5th Cir. 1995) (quoting
Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir.
1993)). 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) (quoting Hames v. Heckler, 707 F.2d
162, 164 (5th Cir. 1983)) (internal quotation marks omitted).
determining whether there is substantial evidence to support
the findings of the Commissioner, the Court 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." Harrell v. Bowen, 862 F.2d 471, 475
(5th Cir. 1988) (citation omitted). "Conflicts in
evidence are for the [Commissioner] and not the courts to
resolve." Spellman, 1 F.3d at 360 (quoting
Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir.
1990)) (internal quotation marks omitted). If the
Commissioner's findings are supported by substantial
evidence, "they are conclusive and must be
affirmed." Id. However, "[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."
Newton, 209 F.3d at 455.
Five-Step Sequential Evaluation Process
the Social Security Act, "disability" means, in
relevant part, 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). This
An individual shall be determined to be under a disability
only if his physical or mental impairment or impairments are
of such severity that 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 ...