United States District Court, W.D. Texas, El Paso Division
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
Gonzalo Talamantes ("Plaintiff) appeals from the
decision of the Commissioner of the Social Security
Administration ("Commissioner") denying his
application for a period of disability and disability
insurance benefits ("DIB") under Title II of the
Social Security Act. (Pl's Compl., ECF No. 5, 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 sixty-one years old at the time he last met the insured
status requirements of sections the Social Security Act. (R.
17, 367). The decision of the Administrative Law
Judge ("ALJ") is dated January 23, 2017.
See (R. 25). Plaintiffs past relevant work is that
of a construction worker, specifically "cement
work." (R. 122, 128, 419). On July 29, 2013, Plaintiff
filed an application for a period of disability and DIB, in
which he alleged disability beginning on June 24, 2013, due
to bad stomach problems, appendix, high blood pressure, and
high cholesterol. (R. 365-84, 418). After his application was
denied initially and upon reconsideration, Plaintiff
requested a hearing by an ALJ. (R. 144-51, 152-60, 197-98).
December 18, 2014, a hearing was conducted before the ALJ.
(R. 13 0-41). On February 20, 2015, the ALJ issued a written
decision denying benefits at step five of the five-step
sequential evaluation process on the basis that Plaintiff was
capable of making a successful adjustment to other work that
exists in significant numbers in the national economy, such
as dishwasher. (R. 167-74). Plaintiff sought review of the
ALJ's decision by the Appeals Council who remanded the
case to the ALJ on July 2, 2016, because the ALJ's
decision did not include sufficient rationale for the
residual functional capacity ("RFC") assessment and
the jobs identified by the vocational expert, and relied on
by the ALJ at step five, conflicted with the assessed RFC.
(R. 180-82). The Appeals Council directed the ALJ to: (1)
obtain additional evidence, if warranted; (2) further
consider the RFC, evaluate treating and examining source
opinions in accordance with the Social Security
Administration Regulations (the "Regulations") and
Social Security Rulings, and provide specific references to
evidence of record to support RFC; and (3) if warranted,
obtain evidence from a vocational expert to clarify the
effect of the assessed limitations on the claimant's
occupational base. (R. 181).
December 8, 2016, a second hearing was held before a
different ALJ. (R. 114-29). Thereafter, on January 23, 2017,
the ALJ issued a written decision denying benefits at step
two of the five-step sequential evaluation process,
concluding that Plaintiff did not have a severe impairment or
combination of impairments because Plaintiffs physical and
mental impairments, "considered singly and in
combination, do not significantly limit [Plaintiffs] ability
to perform basic work activities." (R. 25). On March 8,
2018, the Appeals Council denied Plaintiffs request for
review, thereby making the ALJ's decision the
Commissioner's final administrative decision. (R. 1-6).
appeal, Plaintiff argues that the ALJ's step-two finding
is erroneous and warrants remand. (Pl's Br., ECF No. 18,
LAW AND ANALYSIS
Standard of Review The 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'l 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 ...