Linda Ramirez v. Carolyn Colvin, Acting Cmsnr , 606 F. App'x 775 ( 2015 )


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  •      Case: 14-20563      Document: 00513001033         Page: 1    Date Filed: 04/10/2015
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 14-20563                       United States Court of Appeals
    Fifth Circuit
    FILED
    LINDA RAMIREZ,                                                              April 10, 2015
    Lyle W. Cayce
    Plaintiff – Appellant,                                            Clerk
    v.
    CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL
    SECURITY,
    Defendant – Appellee.
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 4:13-CV-3607
    Before STEWART, Chief Judge, and KING and ELROD, Circuit Judges.
    PER CURIAM:*
    The Commissioner of Social Security (“Commissioner”) denied Linda
    Ramirez disability benefits under Title II of the Social Security Act (the “Act”),
    
    42 U.S.C. § 423
    , and Ramirez challenged the denial in district court. The
    district court affirmed the Commissioner’s denial, a decision that Ramirez
    appeals. We reverse the judgment of the district court and remand the case
    * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
    Case: 14-20563    Document: 00513001033     Page: 2   Date Filed: 04/10/2015
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    with instructions that it be remanded to the Commissioner for further
    proceedings consistent with this opinion.
    I.
    On May 17, 2011, Ramirez applied for disability insurance benefits and
    supplemental security income, alleging a disability onset date of April 15, 2011,
    due to degenerative joint disease, status post arthroscopy of the right knee with
    medial and lateral meniscectomy, chondroplasty of medial and lateral condyle,
    partial synorectomy, degenerative disc disease, diabetes mellitus, obesity,
    sleep apnea, asthma, and depression. Following the Commissioner’s initial
    denial of Ramirez’s claims, an administrative law judge (“ALJ”) held a hearing
    on June 29, 2012, at Ramirez’s request. ROA. 74–100. Ramirez appeared at
    the hearing and testified with the assistance of an attorney. Herman Litt, a
    vocational expert (“VE”), was also present and testified as an expert witness.
    On August 24, 2012, the ALJ rendered a decision unfavorable to
    Ramirez, finding that she was not disabled within the meaning of the Act and
    was not entitled to the requested benefits. The ALJ first found that Ramirez
    had not engaged in substantial gainful activity since April 15, 2011. Next, the
    ALJ determined that Ramirez suffered from the following severe impairments:
    degenerative joint disease, status post arthroscopy of the right knee with
    medial and lateral meniscectomy, chondroplasty of medial and lateral condyle,
    partial synorectomy, diabetes mellitus, and obesity. The ALJ found, however,
    that these impairments, either singly or in combination, were not severe
    enough to meet or medically equal one of the impairments listed in Appendix
    1, Subpart P, 
    20 C.F.R. § 404
    .
    The ALJ then determined that Ramirez retained the residual functional
    capacity (“RFC”) to perform sedentary work as defined by 
    20 C.F.R. §§ 404.1567
    (a) and 416.967(a) (able to lift up to ten pounds, sit, and occasionally
    walk and stand). The ALJ found that Ramirez could perform unskilled work
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    and could occasionally kneel, stoop, crouch, crawl, and climb stairs and ramps,
    but she could not climb ladders, ropes, or scaffolds. In making these findings,
    the ALJ stated that she gave “little weight” to the opinions of the two non-
    examining state agency medical consultants because “other medical opinions
    are more consistent with the record as a whole.” By contrast, the ALJ gave
    “some weight” to the opinions of Ramirez’s treating physicians because “the
    evidence shows the claimant is capable of sedentary work . . . and the opinions
    are mostly consistent with the evidence of record.” The ALJ further found that
    Ramirez’s “statements concerning the intensity, persistence and limiting
    effects of [her] symptoms are not credible to the extent they are inconsistent
    with” the ALJ’s RFC assessment, noting that at the hearing Ramirez testified
    she was able to “care for her children, prepare simple meals, drive, shop, watch
    television, read, and pay bills.”
    Based upon her RFC assessment, the ALJ concluded that Ramirez was
    unable to perform any of her past relevant work. Relying upon her RFC
    assessment and the vocational expert’s testimony, and considering Ramirez’s
    age, educational background, and work experience, the ALJ determined that
    Ramirez could perform other available work as an optical goods worker, a
    jewelry preparer, and a sorter. Therefore, the ALJ found that Ramirez was not
    disabled and was not entitled to the benefits that she had requested.
    After the Appeals Council denied Ramirez’s request for review, she filed
    her complaint in the district court, seeking review of the final administrative
    decision pursuant to 
    42 U.S.C. § 405
    (g). The parties filed cross motions for
    summary judgment. The district court granted the Commissioner’s motion and
    denied Ramirez’s motion, entering judgment against Ramirez and declaring
    that she take nothing. Ramirez timely noticed this appeal.
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    II.
    We review de novo the district court’s grant of summary judgment,
    applying the same standard that the district court applied.         Spellman v.
    Shalala, 
    1 F.3d 357
    , 360 (5th Cir. 1993). Our review of the Commissioner’s
    decision, like the district court’s review, is limited under 
    42 U.S.C. § 405
    (g) to
    two inquiries: (1) whether substantial evidence of record supports the decision;
    and (2) whether the decision comports with proper legal standards. Greenspan
    v. Shalala, 
    38 F.3d 232
    , 236 (5th Cir. 1994). “Substantial evidence is that
    which is relevant and sufficient for a reasonable mind to accept as adequate to
    support a conclusion; it must be more than a scintilla, but it need not be a
    preponderance.” Anthony v. Sullivan, 
    954 F.2d 289
    , 295 (5th Cir. 1992). It is
    the role of the Commissioner, and not the courts, to resolve conflicts in the
    evidence. Brown v. Apfel, 
    192 F.3d 492
    , 496 (5th Cir. 1999). As a result, this
    court “cannot reweigh the evidence, but may only scrutinize the record to
    determine whether it contains substantial evidence to support the
    Commissioner’s decision.” Leggett v. Chater, 
    67 F.3d 558
    , 564 (5th Cir. 1995).
    A finding of no substantial evidence is warranted only “where there is a
    conspicuous absence of credible choices or no contrary medical evidence.”
    Johnson v. Bowen, 
    864 F.2d 340
    , 343–44 (5th Cir. 1988) (internal quotation
    marks and citation omitted).
    III.
    A claimant is “disabled” as defined in the Social Security Act if she is
    unable “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 Commissioner uses
    a sequential, five-step approach to determine whether a claimant is so
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    disabled. 1 The burden of proof is on the claimant at the first four steps.
    Leggett, 
    67 F.3d at 564
    . The burden of proof shifts to the Commissioner at the
    fifth step to establish the existence of other available substantial gainful
    employment that a claimant can perform. Fraga v. Bowen, 
    810 F.2d 1296
    ,
    1301–02 (5th Cir. 1987). If the Commissioner identifies such employment, the
    burden shifts back to the claimant to prove that she could not perform the
    alternative work identified. 
    Id. at 1302
    . Throughout the process, the ultimate
    burden of establishing disability remains with the claimant. Hames v. Heckler,
    
    707 F.2d 162
    , 165 (5th Cir. 1983).
    Under regulations promulgated by the Commissioner, a claimant is able
    to perform sedentary work—the classification assigned to the least physically
    demanding form of employment—if she can sit and lift up to ten pounds at a
    time, although occasional walking and standing may be required. 
    20 C.F.R. §§ 404.1567
    (a) and 416.967(a). Social Security Ruling 83–10 elaborates on this
    definition of “sedentary work,” providing that “standing or walking should
    generally total no more than about 2 hours of an 8–hour workday, and sitting
    should generally total approximately 6 hours of an 8–hour workday.” SSR 83–
    10; see also 
    20 C.F.R. § 402.35
    (b)(2) (with exceptions not applicable in this case,
    Social Security Rulings “are binding on all components of the Social Security
    Administration”); Myers v. Apfel, 
    238 F.3d 617
    , 620 (5th Cir. 2001) (“The Social
    Security Administration’s rulings are not binding on this court, but they may
    be consulted when the statute at issue provides little guidance. The Fifth
    1The steps include: (1) whether the claimant is presently performing substantial
    gainful activity; (2) whether the claimant has a severe impairment; (3) whether the
    impairment meets or equals a listed impairment; (4) whether the impairment prevents the
    claimant from doing past relevant work; and (5) whether the impairment prevents the
    claimant from performing any other substantial gainful activity. 
    20 C.F.R. §§ 404.1520
    (a)(4),
    416.920(a)(4).
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    Circuit has frequently relied upon the rulings in evaluating ALJ’s decisions.”
    (internal citations omitted)). 2
    Even so, Social Security Ruling 96–9p clarifies that the inability to
    exactly fulfill these requirements does not automatically result in a
    determination that the claimant is disabled—it merely means that the
    claimant is unable to perform the full range of sedentary occupations. SSR 96–
    9p. Only when the claimant’s ability to perform “the full range of sedentary
    work is significantly eroded” will a finding of disabled usually apply, as certain
    sedentary jobs may have less demanding requirements than others.                             
    Id.
    (emphasis added). For example, if an individual is able to stand and walk for
    a total of only a few minutes per workday, her occupational base will be
    significantly eroded and a disability finding will likely be appropriate. 
    Id.
    Conversely, a claimant may not be disabled if she is able to stand and walk for
    slightly less than two hours per workday.                
    Id.
        Likewise, the fact that a
    claimant must periodically alternate between sitting and standing or walking
    will not automatically require a disability finding, especially where the need
    can be accommodated by scheduled breaks and a lunch period. 
    Id.
    IV.
    Ramirez asserts two points of error in the district court’s determination
    that substantial evidence supports the final administrative decision that she
    was not disabled within the meaning of the Act. Ramirez argues that the ALJ
    failed to properly assess her credibility.                Ramirez also argues that in
    determining her RFC, the ALJ either failed to give sufficient weight to the
    opinions of her treating physicians or misunderstood the definition of
    sedentary work. We address these arguments in turn.
    2 The parties do not contest in this appeal the validity of any particular Social Security
    Ruling, and for purposes of this appeal, we assume without deciding that the Rulings cited
    in this opinion represent proper interpretations of the Social Security Act.
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    A.
    Ramirez contends that the ALJ erred when she discounted Ramirez’s
    “statements concerning the intensity, persistence and limiting effects of [her]
    symptoms.” In choosing not to credit these subjective complaints, the ALJ
    catalogued medical evidence and portions of Ramirez’s testimony that
    suggested her symptoms were not as severe as she had asserted. The ALJ
    noted that after her initial knee injury, Ramirez did not seek treatment and
    her symptoms improved. In February 2011, x-rays of Ramirez’s knees were
    “unremarkable,” although an MRI two months later showed a ligament tear.
    In September 2011, Ramirez underwent knee surgery to repair the ligament
    tear, and her symptoms improved; according to post-operative treatment notes,
    Ramirez “only had minimal swelling, improved range of motion, no crepitus or
    grinding, no significant pain, and she was doing much better.” In June 2011,
    Ramirez’s diabetes was improving, and by January 2012, her “diabetic control
    [was] much better.” The ALJ observed that at the hearing, Ramirez testified
    she stopped taking medication for her diabetes in May 2012, and her treating
    physician said she had a fair to good prognosis. Finally, the ALJ noted that
    Ramirez testified at the hearing that she could care for her children, cook
    simple meals, drive, and shop, among other activities.
    Ramirez argues that the ALJ discounted her subjective complaints solely
    based on her activities of daily living and that this was insufficient. This
    argument begins with a flawed premise. As we have described above, in
    making her credibility determination, the ALJ did not simply rely on Ramirez’s
    activities of daily living—she also relied extensively on Ramirez’s medical
    records, which generally reflected improvement of her symptoms over time.
    We accord “great deference” to an ALJ’s assessment of a claimant’s credibility.
    Newton v. Apfel, 
    209 F.3d 448
    , 459 (5th Cir. 2000). The ALJ “is entitled to
    determine the credibility of medical experts as well as lay witnesses and weigh
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    their opinions accordingly.” Scott v. Heckler, 
    770 F.2d 482
    , 485 (5th Cir. 1985).
    As we have often noted, it is the role of the Commissioner, and not the courts,
    to resolve conflicts in the evidence. See, e.g., Brown, 
    192 F.3d at 496
    . This
    court “cannot reweigh the evidence, but may only scrutinize the record to
    determine whether it contains substantial evidence to support the
    Commissioner’s decision.” Leggett, 
    67 F.3d at 564
    . A finding of no substantial
    evidence is warranted only “where there is a conspicuous absence of credible
    choices or no contrary medical evidence.”        Johnson, 
    864 F.2d at
    343–44
    (internal quotation marks and citation omitted).
    Here, the ALJ carefully weighed Ramirez’s subjective complaints against
    contrary medical evidence and Ramirez’s testimony regarding her daily
    activities. Therefore, in choosing to discount Ramirez’s subjective complaints,
    the ALJ applied correct legal standards and made a permissible choice based
    on substantial evidence.
    B.
    Ramirez also argues that in making her RFC determination, the ALJ
    either failed to give sufficient weight to the opinions of her treating physicians
    or misunderstood the definition of sedentary work. We agree. It is well-settled
    that although the “opinions, diagnoses, and medical evidence of a treating
    physician who is familiar with the claimant’s injuries, treatments, and
    responses should be accorded considerable weight in determining disability,”
    such evidence is not conclusive; rather, the ALJ bears “the sole responsibility
    for determining the claimant’s disability status.” Greenspan, 
    38 F.3d at 237
    (internal quotation marks and citations omitted). As this court has explained:
    [W]hen good cause is shown, less weight, little weight, or even no
    weight may be given to the physician’s testimony. The good cause
    exceptions we have recognized include disregarding statements
    that are brief and conclusory, not supported by medically
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    acceptable clinical laboratory diagnostic techniques, or otherwise
    unsupported by the evidence. Scott [v. Heckler, 
    770 F.2d 482
    , 485
    (5th Cir. 1985)]. In sum, the ALJ “is entitled to determine the
    credibility of medical experts as well as lay witnesses and weigh
    their opinions accordingly.” Id.; see also 
    20 C.F.R. § 404.1527
    (c)(2)
    (“If any of the evidence in your case record, including any medical
    opinion(s), is inconsistent with other evidence or is internally
    inconsistent, we will weigh all the other evidence and see whether
    we can decide whether you are disabled based on the evidence we
    have.”).
    Greenspan, 
    38 F.3d at 237
    ; see also 
    20 C.F.R. § 404.1527
    (d) (stating that in
    weighing medical opinions, the ALJ should consider the examining
    relationship, the treatment relationship, supportability, consistency with the
    record, and specialization).
    As noted above, Social Security Rulings provide that as the term is used
    in 
    20 C.F.R. §§ 404.1567
    (a) and 416.967(a), “sedentary work” generally
    requires about six hours of sitting and no more than about two hours of
    standing or walking per workday. SSR 83–10; SSR 96–9p. The ALJ found that
    Ramirez has the RFC to perform sedentary work as defined in 
    20 C.F.R. §§ 404.1567
    (a) and 416.967(a), and she did not find that Ramirez’s ability to
    perform the full range of sedentary work was eroded. In making this RFC
    finding, the ALJ stated that she gave “some weight” to the opinions of
    Ramirez’s treating physicians. However, none of Ramirez’s treating physicians
    ever opined that Ramirez could sit for six hours per workday. On December
    30, 2011, and again on April 12, 2012, Dr. David Navid—Ramirez’s orthopedic
    surgeon—opined that Ramirez could sit for a maximum of four hours per
    workday but could not stand or walk at all. Dr. Navid also opined that Ramirez
    could lift and carry weight for two hours per workday. In May 2012, two other
    treating physicians offered opinions on Ramirez’s medical conditions and
    ability to work. Dr. Pamela Nguyen, Ramirez’s family practitioner, opined that
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    Ramirez could sit for only two hours and stand or walk for only one hour per
    eight-hour workday and she would require unscheduled breaks, but Ramirez
    could occasionally lift and carry up to ten pounds. Dr. Nguyen expected that
    Ramirez’s impairments would last for at least twelve months; however, she
    also opined that Ramirez could perform full-time jobs that required her to keep
    her neck in a constant position. Dr. Nguyen also opined that Ramirez could
    frequently lift—and occasionally carry—up to five pounds.            Dr. Jeffrey
    Bowman, Ramirez’s podiatrist, opined that Ramirez could sit for only four
    hours per workday but could also walk for four hours, although she could not
    stand still or lift any weight.
    The Commissioner observes that none of Ramirez’s treating physicians
    opined that she was disabled. This fact may indeed inform an ALJ’s decision.
    See Vaughan v. Shalala, 
    58 F.3d 129
    , 131 (5th Cir. 1995); Harper v. Sullivan,
    
    887 F.2d 92
    , 97 (5th Cir. 1989). In this case, however, the treating physicians’
    unanimous agreement that Ramirez cannot sit for six hours per workday is
    inconsistent with the ALJ’s finding that Ramirez has the RFC to perform the
    full range of sedentary work.
    The Commissioner also notes that Drs. Navid and Bowman concluded
    Ramirez’s impairments would not last longer than six months and would
    improve with treatment, and even Dr. Nguyen concluded Ramirez’s prognosis
    was fair to good and her conditions would improve once she lost weight.
    However, Ramirez has alleged a disability onset date of April 15, 2011, and
    none of Ramirez’s treating physicians opined that by April 15, 2012, she was
    or would be able to sit for six hours per workday. Therefore, unless the ALJ
    were to find that Ramirez’s severe impairments began after April 15, 2011 or
    otherwise lasted or would last for less than twelve months—a finding that she
    did not make—the opinions of Ramirez’s treating physicians could not support
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    the ALJ’s RFC determination. As of May 2012, Ramirez’s treating physicians
    had agreed that she lacked the ability to sit for six hours per workday.
    Thus, to support her finding that Ramirez had the RFC to perform the
    full range of sedentary work, the ALJ would have to disregard some of the
    opinions of Ramirez’s treating physicians, not simply accord them less than
    controlling weight. The ALJ did not state that she disregarded the opinions of
    Ramirez’s treating physicians, much less show good cause for doing so.
    Therefore, the ALJ’s decision does not comport with proper legal standards.
    We are not prepared to say whether the ALJ erred in her ultimate conclusion
    that Ramirez is not disabled. Even if Ramirez is unable to sit for six hours
    each workday, perhaps she still has the RFC to perform a significant subset of
    sedentary work that can accommodate her impairments. That is not for us to
    determine, at least not today.    Rather, on remand, the ALJ should state
    whether she in fact gives any weight to the opinions of Ramirez’s treating
    physicians regarding Ramirez’s capacity to sit for prolonged durations, where
    all concluded that she could not sit for six hours per workday. If the ALJ gives
    weight to their opinions on this issue and finds that Ramirez lacks the ability
    to sit for six hours per workday, she should consider whether Ramirez is
    nonetheless able to engage in any substantial gainful activity. If, on the other
    hand, the ALJ does not credit the opinions of Ramirez’s treating physicians on
    this issue and finds that Ramirez has the RFC to perform the full range of
    sedentary work as defined by 
    20 C.F.R. §§ 404.1567
    (a) and 416.967(a), she
    should explain her reasons for disregarding the opinions of the treating
    physicians.
    V.
    Because the final administrative decision to deny Ramirez’s application
    for supplemental security income benefits does not comport with proper legal
    standards, we REVERSE the judgment of the district court and remand the
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    case with instructions that it be remanded to the Commissioner for further
    proceedings consistent with this opinion.
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