Garcia v. Kijakazi
| Decision Date | 10 May 2022 |
| Docket Number | Civ. 7:21-cv-00158 |
| Parties | JOSE P. GARCIA, Plaintiff, v. KILOLO KIJAKAZI,[1] ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. |
| Court | U.S. District Court — Southern District of Texas |
REPORT & RECOMMENDATION
Plaintiff Jose Garcia, proceeding through Plaintiffs Counsel,[2] initiated this action by filing a Complaint for Review of a Denial of Social Security Disability Insurance benefits and Supplemental Security Income benefits pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3).[3] (Dkt. Nos. 1 at 1, 1-1.) This case was referred to the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636(b).
On January 10,2022, Plaintiff filed an opposed motion for summary judgment (“Plaintiffs Motion for Summary Judgment”) (Dkt. No. 16) and memorandum in support of said motion (Dkt. No. 17). On February 9, 2022, Defendant filed a cross-motion for summary judgment (“Defendant's Cross-Motion for Summary Judgment”) (Dkt. No. 18) and Defendant's Response in Opposition to Plaintiffs Motion for Summary Judgment (Dkt. No. 18-1). On February 23, 2022, Plaintiff filed a reply to Defendant's cross-motion for summary judgment. (Dkt. No 19.) After review of said filings, this case is ripe for disposition on the record.
Plaintiff claims the Commissioner of the Social Security Administration (SSA) (the “Commissioner”) improperly decided he is not disabled under the Social Security Administration's definition. (Dkt. No. 1 at 2, ¶ 10.) In particular, Plaintiff argues the Administrative Law Judge's (ALJ) mental residual functional capacity (RFC) determination is not supported by substantial evidence as the ALJ did not appropriately consider Dr. Bernardo Flores's opinion. (Dkt. No. 16 at 1.) As will be discussed below Plaintiff's claim should be dismissed as review of the record of the Social Security Administration proceedings establishes that substantial evidence supports the ALJ's mental residual functional capacity finding and the ALJ adequately explained why Dr. Flores's report was not persuasive in this determination.
After a careful review of the record and relevant law, the undersigned recommends Defendant's Cross-Motion for Summary Judgment (Dkt. No. 18) be GRANTED and Plaintiff's Motion for Summary Judgment (Dkt. No. 16) be DENIED. It is further recommended that Plaintiff's Complaint (Dkt. No. 1) be DISMISSED with prejudice, and the case be closed.
Plaintiff is a 5 6-year-old male who previously worked as a truck driver and in the construction industry. (Dkt. No. 10-4 at 10, 18-19.) On July 2, 2018, Plaintiff sought a claim for disability due to various health issues. Id. at 8. In the initial review process, Plaintiff's medically determinable impairments were classified as Obesity and Depressive, Bipolar and Related Disorders. (Dkt. No. 10-5 at 7 (Exhibit 1A).) Plaintiff claimed he has been unable to work since February 10, 2016, when he was 49 years old. (Dkt. No. 10-3 at 26.) The initial claim, as well as reconsideration of said claim, was denied. (Dkt. No. 10-6 at 2 (Exhibit No. 1B), 16 (Exhibit No. 6B).)[4] Subsequently, Plaintiff sought a hearing before an ALJ. Id. at 24 (Exhibit No. 8B).
On June 22, 2020, the ALJ held a hearing with Plaintiff.[5] (Dkt. No. 10-4 at 2-42.) First, Plaintiff testified that he has not had a driver's license since 2016, so his wife drives him around. Id. at 15-16. Plaintiff testified that he uses marijuana twice a week. Id. at 16. Plaintiff stated he used to be a tractor trailer driver for various companies from 2014 to 2016, however, he also collected income in cash as a construction framer from 2012 to 2016. Id. at 18-19. These jobs were sporadic. Id. at 20. Plaintiff testified that since his thyroid was removed, he becomes “cramped up”, particularly in the heat when he is attempting to do yardwork. Id. at 21-22. Plaintiff states he does not sleep well due to his frequent urination, he has difficulty putting on his pants and socks because he has difficulty bending his legs and left knee, he has difficulty walking two blocks, he can sit comfortably for 45 minutes, and he avoids getting on his knees, but can get down to the ground and get back up (with some difficulty). (Dkt. No. 10-4 at 26-27.) Plaintiff also explained he had been experiencing depression since his surgery.[6] Id. at 28. According to Plaintiff, he was on the verge of committing suicide due to not being able to work or help his wife pay their bills. Id. Plaintiff also discussed that he has crying spells. Id. at 28-29. Apparently, while working, Plaintiff did not have emotional issues. Id. at 29. Also, Plaintiff has had-blood in his urine for years. Id. at 29-30.
Further, the vocational expert, Harris N. Rowzie,[7] testified that considering Plaintiffs age, education, work experience, and residual functional capacity, Plaintiff “would be able to perform the requirements of representative occupations such as Copy Machine Operator ([listing] 207.685-014) Light, SVP 2, with 18,000 jobs available and Ironer ([listing] 590.685-042) Light, SVP 2, with 252,000 jobs available in the national economy.”[8] (Dkt. No. 10-3 at 24, 35; Dkt. No. 10-4 at 34.) The ALJ noted that the vocational expert's testimony was based on his professional education, experience, and training and was “otherwise consistent and according to the Dictionary of Occupational Titles.” (Dkt. No. 10-3 at 36.)
Based on the opinion and testimony of the vocational expert, the ALJ concluded Plaintiff is “capable of making a successful adjustment to other work that exists in significant numbers in the national economy” and is, accordingly, not disabled. Id.
On May 28, 2020, the ALJ determined Plaintiff was not disabled.[9] (Dkt. No. 10-3 at 36.) The ALJ followed the five-step sequential evaluation process.[10] First, the ALJ found Plaintiff had not engaged in substantial gainful activity since February 10, 2016, the alleged date of the onset of Plaintiff s injuries that prevented him from working.[11] Id. Second, the ALJ found Plaintiff s severe impairments were degenerative joint disease, obesity, unspecified depressive disorder, generalized anxiety disorder, and severe cannabis use disorder. Id. at 26-27. Third, the ALJ found Plaintiffs impairment failed to meet or equal a listed impairment for presumptive disability under the regulations. Id. at 27-29. Prior to the last two steps, the ALJ found Plaintiffs RFC included the ability to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b)[12], . but with the following exceptions:
[T]he claimant is limited to frequent balancing and stooping, but only occasional kneeling, crouching, crawling, climbing ramps/stairs and ladders, ropes, or scaffolds, and must also avoid working in extreme heat. In addition, the claimant can understand, carry out and remember more than simple but less than complex instructions, make decisions, can perform job tasks independently [and] appropriately and at a consistent pace in goal-oriented work in which job tasks do not have to be completed within a strict time deadline, can interact occasionally with the public, supervisors and co-workers, and respond appropriately to routine changes in [a] work setting[.]
Id. at 29. Then, at the fourth step, the ALJ found Plaintiff could not perform his past relevant work as a tractor trailer driver. (Dkt. No. 10-3 at 34-35.) Fifth, “[c]onsidering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform.” Id. at 35. Consequently, the ALJ found Plaintiff is not under a “disability” as defined by the Social Security Act. Id. at 36.
The ALJ's decision became the Commissioner's final decision when the Appeals Council denied Plaintiffs request for review on February 18,2021. See Dkt. No. 10-3 at 2; Sims v. Apfel, 530 U.S. 103, 107 (2000) (“[When Appeals] Council denies the request for review, the ALJ's opinion becomes the final decision.”) Plaintiff then filed this action pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3). (Dkt. No. 1.)
On August 20, 2021, Defendant filed an answer to Plaintiff's Complaint. (Dkt. No. 9.)
On January 10,2022, Plaintiff filed Plaintiff's Motion for Summary Judgment (“Plaintiff's MSJ”) (Dkt. No. 16) and Plaintiff's Memorandum of Law (Dkt. No. 17), arguing the ALJ's mental RFC determination is not supported by substantial evidence as the ALJ failed to properly evaluate the opinion of consultative examiner Bernardo Flores, Psy.D. (“Dr. Flores”), and “relied on a selective reading of the evidence to support his conclusion.” (Dkt. No. 17 at 14.) On February 9, 2022, Defendant filed Defendant's Motion for Summary Judgment (Dkt. No. 18) and Defendant's Response in Opposition to Plaintiff's MSJ (Dkt. No. 18-1). Defendant argues the ALJ's evaluation of Dr. Flores's opinion was proper and substantial evidence supports the ALJ's conclusions. (Dkt. No. 18-1 at 2, 10.) Plaintiff then filed a reply on February 23, 2022, again arguing the ALJ's mental RFC determination is not supported by substantial evidence as he failed to properly evaluate the opinion of consultative examiner Dr. Flores. (Dkt. No. 19 at 1.)
Plaintiff prays the Court find that (1) Plaintiff is entitled to Social Security Disability Insurance benefits and Supplemental Security Income benefits under the provisions of the Social Security Act; or (2) remand the case for a further hearing (3) award attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 2412,[13] on the grounds that the Commissioner's action in this case was not substantially...
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