Perez v. Colvin

• Decision Date: 03 March 2015
• Docket Number: CIVIL ACTION NO. 4:14-CV-039-O
• Parties: SANJUANA PEREZ, PLAINTIFF, v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.
• Court: U.S. District Court — Northern District of Texas

SANJUANA PEREZ, PLAINTIFF, v. CAROLYN W. COLVIN,ACTING COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

CIVIL ACTION NO. 4:14-CV-039-O

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION

March 3, 2015

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER

This case was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b). The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:

FINDINGS AND CONCLUSIONS

I. STATEMENT OF THE CASE

Plaintiff Sanjuana Perez ("Perez") filed this action pursuant to Sections 405(g) and 1383(c)(3) of Title 42 of the United States Code for judicial review of a final decision of the Commissioner of Social Security denying her claims for a period of disability and disability insurance benefits under Title II and for supplemental security income ("SSI") under Title XVI of the Social Security Act ("SSA"). In January 2011, Perez protectively applied for disability insurance benefits ("DIB") and SSI, alleging that her disability began on January 11, 2011. (Tr. 8, 175-89.) After her applications for benefits were denied initially and on reconsideration, Perez requested a hearing before an administrative law judge ("ALJ"). (Tr. 8, 96-103, 107-13.) The ALJ held hearings on June 21, 2012 and August 22, 2012, and issued an unfavorabledecision on December 18, 2012. (Tr. 5-19, 34-91.) On November 29, 2013, the Appeals Council denied Perez's request for review, leaving the ALJ's decision as the final decision of the Commissioner in her case. (Tr. 1-4.) Perez subsequently filed this civil action seeking review of the ALJ's decision.

II. STANDARD OF REVIEW

Disability insurance is governed by Title II, 42 U.S.C. § 404 et seq., and SSI benefits are governed by Title XVI, 42 U.S.C. § 1381 et seq., of the SSA. In addition, numerous regulatory provisions govern disability insurance and SSI benefits. See 20 C.F.R. Pt. 404 (disability insurance); 20 C.F.R. Pt. 416 (SSI). Although technically governed by different statutes and regulations, "[t]he law and regulations governing the determination of disability are the same for both disability insurance benefits and SSI." Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994).

The SSA defines a disability as a medically determinable physical or mental impairment lasting at least twelve months that prevents the claimant from engaging in substantial gainful activity. 42 U.S.C. §§ 423(d), 1382c(a)(3)(A); McQueen v. Apfel, 168 F.3d 152, 154 (5th Cir. 1999). To determine whether a claimant is disabled, and thus entitled to benefits, a five-step analysis is employed. 20 C.F.R. §§ 404.1520, 416.920 (2009). First, the claimant must not be presently working at any substantial gainful activity. Substantial gainful activity is defined as work activity involving the use of significant physical or mental activities for pay or profit. 20 C.F.R. §§ 404.1527, 416.972. Second, the claimant must have an impairment or combination of impairments that is severe. 20 C.F.R. §§ 404.1520(c), 416.920(c); Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985), cited in Loza v. Apfel, 219 F.3d 378, 392 (5th Cir. 2000). Third, disability will be found if the impairment or combination of impairments meets or equals animpairment contained in the Listing of Impairments ("Listing"), 20 C.F.R. Pt. 404, Subpt. P, App. 1. 20 C.F.R. §§ 404.1520(d), 416.920(d). Fourth, if disability cannot be found on the basis of the claimant's medical status alone, the impairment or impairments must prevent the claimant from returning to her past relevant work. Id. §§ 404.1520(e), 416.920(e). And fifth, the impairment must prevent the claimant from doing any work, considering the claimant's residual functional capacity, age, education, and past work experience. Id. §§ 404.1520(f), 416.920(f); Crowley v. Apfel, 197 F.3d 194, 197-98 (5th Cir. 1999). At steps one through four, the burden of proof rests upon the claimant to show she is disabled. Crowley, 197 F.3d at 198. If the claimant satisfies this responsibility, the burden shifts to the Commissioner to show that there is other gainful employment the claimant is capable of performing in spite of her existing impairments. Id.

Before moving from the third to the fourth step of the inquiry, the Commissioner assesses the claimant's residual functional capacity ("RFC") to determine the most the claimant can still do notwithstanding her physical and mental limitations. 20 C.F.R. § 416.920(a)(4). The claimant's RFC is used at both the fourth and fifth steps of the sequential analysis. Id. § 416.920(a)(4). At step four, the claimant's RFC is used to determine if the claimant can still do her past relevant work. Id. § 416.920(e). At step five, the claimant's RFC is used to determine whether the claimant can adjust to other types of work. Id. § 416.920(e). At steps one through four, the burden of proof rests upon the claimant to show that she is disabled. Crowley, 197 F.3d at 198. If the claimant satisfies this responsibility, the burden shifts to the Commissioner to show that there is other gainful employment the claimant is capable of performing in spite of her existing impairments. Id.

A denial of disability benefits is reviewed only to determine whether the Commissioner applied the correct legal standards and whether the decision is supported by substantial evidence in the record as a whole. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995); Hollis v. Bowen, 837 F.2d 1378, 1382 (5th Cir. 1988). Substantial evidence is such relevant evidence as a responsible mind might accept to support a conclusion. Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001). It is more than a mere scintilla, but less than a preponderance. Id. A finding of no substantial evidence is appropriate only if no credible evidentiary choices or medical findings support the decision. Id. This Court may neither reweigh the evidence in the record nor substitute its judgment for the Commissioner's, but will carefully scrutinize the record to determine if the evidence is present. Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000); Hollis, 837 F.2d at 1383.

III. ISSUES

In her brief, Perez presents the following issue: whether the ALJ fully considered Perez's severe impairment of depressive disorder in the ALJ's residual functional capacity ("RFC") determination. (Plaintiff's Brief ("Pl.'s Br.") at 1, 3-12.)

IV. ALJ DECISION

In his December 18, 2012 decision, the ALJ found that Perez had not engaged in any substantial gainful activity since January 11, 2011, the alleged onset date of Perez's disability. (Tr. 10.) The ALJ further found that Perez suffered from the following severe combination of impairments: "[o]besity, hypertension, lumbar degenerative disease, sleep apnea, hypothyroidism, mild right knee degenerative joint disease, polysubstance abuse (in remission), status-post a left hip fracture, mild diastolic dysfunction, major depressive disorder, a history of systemic lupus erythematosus, a history of recurrent urinary tract infections, a history ofgastroesophageal reflux disease, and a history of asthma." (Tr. 11 (emphasis omitted).) Next, the ALJ held that none of Perez's impairments, or combination of impairments, met or equaled the severity of any impairment in the Listing. (Tr. 11.) As to Perez's RFC, the ALJ stated:

The claimant retains the [RFC], over a sustained period of time, to lift, carry, push, and pull 20 pounds occasionally and 10 pounds frequently; sit throughout an 8-hour workday; stand or walk (individually or in combination) 2 to 4 hours in an 8-hour workday, but she must use a cane when walking; and otherwise perform the full range of light work, except: she cannot climb ladders, scaffolds, or ropes; she cannot crouch or crawl; and she can only occasionally climb ramps or stairs, balance, stoop, or kneel.

(Tr. 11 (emphasis omitted).)

The ALJ opined, based on this RFC assessment, that Perez was not able to perform her past relevant work. (Tr. 17.) The ALJ found, however, that Perez was able to perform a number of jobs that existed in significant numbers in the national economy during the period at issue. (Tr. 18-19.) Thus, the ALJ concluded that Perez was not disabled. (Tr. 19.)

V. DISCUSSION

Perez argues that the ALJ failed to fully consider Perez's severe impairment of depressive disorder in his residual functional capacity ("RFC") determination. (Pl.'s Br. at 6-12.) To begin with, Perez argues that the ALJ's determination that Perez's mental impairment is not severe is not supported by substantial evidence. (Pl.'s Br. at 6.) Specifically, Perez claims that the ALJ's findings that Perez has no more than mild limitations in activities of daily living, social functioning, and concentration, persistence, or pace, and that Perez has had no episodes of decompensation, are not consistent with the evidence in the record, including the following: (1) Perez's testimony and (2) a November 15, 2011 mental status examination performed by Holly Olivier, D.O. ("Dr. Olivier"), at the John Peter Smith Health Network Behavioral Health Clinicin Fort Worth, Texas (Tr. 1009). (Pl.'s Br. at 6-8.) Based on Dr. Olivier's November 15, 2011 mental status examination, Plaintiff states:

Thus, there is a medical opinion from an examining physician[, Dr. Olivier,] that the Plaintiff has a mental impairment which imposes serious limitations in her ability to function socially, or occupationally. The State Agency medical consultants did not have access to this information in assessing the Plaintiff's residual functional capacity. The ALJ, as a layman, is not in a position to evaluate this evidence and to reach a medical conclusion which rejects the opinion of the examining psychiatrist, without any contrary medical evidence or opinion regarding the claimant's mental impairments. . . .

The ALJ could have requested that a medical expert

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