Opinion
EP-22-CV-00148-FM-ATB
07-25-2023
FERNANDO AREVALO, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
ANNE T. BERTON, UNITED STATES MAGISTRATE JUDGE
This is a civil action seeking judicial review of an administrative decision. Pursuant to 42 U.S.C. § 405(g), Plaintiff Fernando Arevalo, the claimant at the administrative level, appeals from the final decision of Defendant Acting Commissioner of the Social Security Administration (“Commissioner”) denying his claims for disability insurance benefits and supplemental security income benefits under Title II and Title XVI, respectively, of the Social Security Act, 42 U.S.C. § 401, et seq., and § 1382, et seq. Pursuant to 28 U.S.C. § 636(c), Appendix C of this District's Local Rules, and the Honorable Senior District Judge Frank Montalvo's standing order, the case was referred to the undersigned Magistrate Judge for a report and recommendation. For the reasons set forth below, the Court recommends that the Commissioner's decision be affirmed.
See https://www.txwd.uscourts.gov/wp-content/uploads/2022/12/Standing-Order-Referring-Social-Security-Cases-1.pdf.
I. BACKGROUND
On July 30, 2020, Arevalo applied for disability insurance and supplemental security income benefits, alleging that he became disabled as of July 30, 2020. At the time, he was fifty- five years old, was 5 feet and six inches tall, and weighed 280 pounds. Arevalo alleged disability due to obstructive sleep apnea syndrome; chronic non-alcoholic liver disease; type-2 diabetes mellitus; diabetic neuropathy; benign essential hypertension; knee surgery (ACL reconstruction); thoracic back pain; gastroesophageal reflux disease; plantar fascial fibromatosis; and incontinence. Previously, within 15 years before his alleged disability onset date, he worked as a manager at a financial services entity, a cashier at an entertainment center, and a sales representative at a telecommunication company store. He graduated from high school and attended one year of college.
Tr. of Admin. R. [hereinafter, cited as “Tr.”] at 92.
Id. at 108-09, 144-45.
Id. at 80-81, 83-84, 271.
Id. at 284.
His claims were denied initially on November 18, 2020, and upon reconsideration, on February 4, 2021. Thereafter, he requested a hearing by an administrative law judge (ALJ). On August 24, 2021, a telephonic hearing was held by ALJ Katherine Brown; at the hearing, Arevalo was represented by her attorney, and a vocational expert testified. On September 14, 2021, the ALJ denied his application in a written decision, finding that he was not disabled. On October 19, 2021, Arevalo appealed to the Social Security Appeals Council for review of the ALJ's decision. On March 25, 2022, the Appeals Council denied his request for review. The ALJ's decision thus became the final decision of the Commissioner.
Id. at 122, 135.
Id. at 59.
Id. at 7.
See Masterson v. Barnhart, 309 F.3d 267, 271 (5th Cir. 2002) (“The ALJ's decision thus became the Commissioner's final and official decision when the Appeals Council denied [the claimant's] request for review on the merits.”).
On April 28, 2022, Arevalo brought this action seeking judicial review of the Commissioner's final decision pursuant to 42 U.S.C. § 405(g). On September 9, 2022, he filed an opening brief requesting that the Commissioner's decision be vacated and his claims for disability benefits be remanded for further administrative proceedings. Pl.'s Br. at 2, 20, ECF No. 15. On October 3, 2022, the Commissioner filed a response brief. Br. in Support of Comm'r's Decision [hereinafter, cited as “Def.'s Resp.”], ECF No. 17. Arevalo filed a reply brief on October 12, 2022. Pl.'s Reply, ECF No. 18.
II. ALJ'S FINDINGS AND CONCLUSIONS
Eligibility for disability insurance benefits or supplemental security income payments requires that the claimant be disabled. 42 U.S.C. §§ 423(a)(1)(E), 1382(a). Disability is defined as an inability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months.” Id. §§ 423(d)(1)(A), 1382c(a)(3)(A). “A claimant has the burden of proving [s]he suffers from a disability.” Garcia v. Berryhill, 880 F.3d 700, 704 (5th Cir. 2018).
To determine disability, the Commissioner uses a sequential, five-step approach, which considers:
(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.Kneeland v. Berryhill, 850 F.3d 749, 753 (5th Cir. 2017) (cleaned up); see also 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). “The burden of proof is on the claimant at the first four steps,” Kneeland, 850 F.3d at 753, and if she gets past these steps, “the burden shifts to the Commissioner on the fifth step to prove the claimant's employability,” Keel v. Saul, 986 F.3d 551, 555 (5th Cir. 2021). A determination at any step that the claimant is disabled or is not disabled “ends the inquiry.” Id.
“‘The relevant law and regulations governing the determination of disability under a claim for disability insurance benefits are identical to those governing the determination under a claim for supplemental security income.'” Undheim v. Barnhart, 214 Fed.Appx. 448, 449 n.1 (5th Cir. 2007) (quoting Davis v. Heckler, 759 F.2d 432, 435 n. 1 (5th Cir. 1985)). Part 404 of 20 C.F.R. relates to disability insurance benefits, see 20 C.F.R. § 404.1, whereas Part 416 relates to supplemental security income, see 20 C.F.R. § 416.101. As relevant here, the regulations are not materially different, and therefore, hereinafter, the Court will refer only to the regulations under Part 404. See Sun v. Colvin, 793 F.3d 502, 506 n.1 (5th Cir. 2015).
Before going from step three to step four, the Commissioner assesses the claimant's residual functional capacity (“RFC”). Kneeland, 850 F.3d at 754. “The claimant's RFC assessment is a determination of the most the claimant can still do despite his or her physical and mental limitations and is based on all relevant evidence in the claimant's record.” Id. (cleaned up); see also 20 C.F.R. §§ 404.1520(e), 404.1545(a)(1). “The RFC is used in both step four and step five to determine whether the claimant is able to do her past work or other available work.” Kneeland, 850 F.3d at 754.
Here, the ALJ evaluated Arevalo's claims for disability benefits pursuant to the abovementioned five-step sequential evaluation process. At step one, the ALJ found that Arevalo had not engaged in substantial gainful activity since July 30, 2020 (his alleged disability onset date). Tr. at 53. At step two, the ALJ determined that Arevalo's pes planus and plantar fasciitis fibromatosis, diabetes mellitus type two (diabetes), and obesity were severe impairments, but that his other impairments, including bilateral cubital tunnel syndrome, were non-severe. Id. at 53-54. At step three, the ALJ found that Arevalo did not have an impairment or combination of impairments for presumptive disability: specifically, his impairments, singularly or in combination, did not meet the required criteria for any of the impairments listed under Section 1.18 (abnormality of a major joint in any extremity) and Section 11.14 (peripheral neuropathy) of 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 54.
Next, the ALJ determined that Arevalo retained the RFC to perform a full range of “light work” but with certain non-exertional limitations. Id. at 55. At step four, she found that Arevalo can perform, and his RFC does not preclude the performance of work-related activities required by, his past relevant work as a retail manager, a cashier, and a sales representative, as they are generally performed in the national economy. Id. at 58-59. The ALJ concluded that Arevalo had not been disabled since July 30, 2020 (the alleged disability onset date) through September 14, 2021 (the date of the ALJ's decision). Id. at 59.
See Hamilton-Provost v. Colvin, 605 Fed.Appx. 233, 237 n.5 (5th Cir. 2015) (“For [a] Title II disability insurance claim, the relevant time period is . . . []the alleged disability onset date[] through . . . []the last date on which [the claimant] met the Act's insured requirement[]. The relevant time period for [a Title XVI] . . . [supplemental security income] claim is [the alleged disability onset date] through . . . []the date of the ALJ's decision[].”). Here, the ALJ found, for purposes of his Title II claim, that Arevalo met the Act's insured status requirements through December 31, 2025. Tr. at 53.
III. STANDARDS FOR JUDICIAL REVIEW
Judicial review, under §405(g), of the Commissioner's decision denying social security benefits is “highly deferential.” Garcia, 880 F.3d at 704. Courts review such a decision “only to ascertain whether (1) the final decision is supported by substantial evidence and (2) whether the Commissioner used the proper legal standards to evaluate the evidence.” Webster v. Kijakazi, 19 F.4th 715, 718 (5th Cir. 2021) (quotation marks and citation omitted). “Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Sun, 793 F.3d at 508.
In applying the “substantial evidence” standard, “the court scrutinizes the record to determine whether such evidence is present,” id., but it may not “try the issues de novo” or “reweigh the evidence,” Salmond v. Berryhill, 892 F.3d 812, 817 (5th Cir. 2018). “[N]or, in the event of evidentiary conflict or uncertainty,” may the court substitute its judgment for the Commissioner's, “even if [it] believe[s] the evidence weighs against the Commissioner's decision.” Garcia, 880 F.3d at 704. “Conflicts of evidence are for the Commissioner, not the courts, to resolve.” Sun, 793 F.3d at 508. “A finding of no substantial evidence is appropriate only if no credible evidentiary choices or medical findings support the decision.” Whitehead v. Colvin, 820 F.3d 776, 779 (5th Cir. 2016).
IV. DISCUSSION
Arevalo assigns multiple errors to the ALJ's decision regarding certain aspects of her evaluation and treatment of his obesity and cubital tunnel syndrome. Below, the Court addresses each in turn.
A. Obesity
“Obesity is a complex disorder characterized by an excessive amount of body fat.” SSR 19-2p, 2019 WL 2374244, at *2 (S.S.A. May 20, 2019). “[O]besity is no longer a standalone disabling impairment,” Stephens v. Berryhill, 888 F.3d 323, 328 (7th Cir. 2018), and the Administration's policy statements governing evaluation of obesity “do[] not mandate any additional restrictions or a finding of disability” on account of obesity, Johnson v. Comm'r, SSA, 764 Fed.Appx. 754, 758 (10th Cir. 2019) (discussing SSR 02-1p, the predecessor to SSR 19-2p). Nevertheless, “an ALJ must consider the claimant's obesity, in combination with other impairments, . . . when assessing [his] residual functional capacity,” Shilo v. Comm'r of Soc. Sec., 600 Fed.Appx. 956, 959 (6th Cir. 2015) (cleaned up), precisely because “[t]he combined effects of obesity with another impairment(s) may be greater than the effects of each of the impairments considered separately,” SSR 19-2p, 2019 WL 2374244, at *4. SSR 19-2p calls for “an individualized assessment of the effect of obesity on a person's functioning.” Id. (“We will not make general assumptions about the . . . functional effects of obesity combined with another impairment(s)....We evaluate each case based on the information in the case record.”).
See also Medrano v. Astrue, No. A-09-CA-584-SS, 2010 WL 2522202, at *6 (W.D. Tex. June 17, 2010) (“SSR 02-1p does not state obesity necessarily causes any additional function limitations; rather, it provides obesity can cause such limitations.” (citing SSR 02-1p, 2000 WL 628049, at *6 (S.S.A. Sept. 12, 2002))).
See also Goins v. Colvin, 764 F.3d 677, 681 (7th Cir. 2014) (“Like most obese people, the plaintiff can walk. Her obesity is not disabling in itself. But it is an added handicap for someone who has degenerative disc disease.”); Martinez v. Astrue, 630 F.3d 693, 698 (7th Cir. 2011) (“It is one thing to have a bad knee; it is another thing to have a bad knee supporting a body mass index in excess of 40.”); SSR 19-2p, 2019 WL 2374244, at *4 (“[S]omeone who has obesity and arthritis affecting a weightbearing joint may have more pain and functional limitations than the person would have due to the arthritis alone.”).
Here, the ALJ determined that Arevalo had the RFC to perform “light work” except that “he is limited to occasional climbing of ramps or stairs; never climbing ladders, ropes, scaffolds; and occasional crouching or crawling.” Tr. at 55. Before making that determination, the ALJ noted that Arevalo's body mass index (BMI) was as high as 47.46, found that he had “clinically morbid obesity,” and evaluated his obesity as well as his other impairments, including pes planus and plantar fasciitis fibromatosis of the bilateral feet, and diabetes with peripheral neuropathy. Id. at 56-57. The ALJ wrote that she “considered the cumulative effects of diabetes and obesity on the claimant's residual functional capacity in accordance with SSRs 14-2p and 19-2p.” Id. at 54.
The ALJ also evaluated the findings made by E. Ipakchi, MD, a state agency medical consultant, and found them to be “partially persuasive.” Tr. at 57-58. Dr. Ipakchi found that Arevalo had the RFC to perform “medium work” with certain exertional and non-exertional limitations. Id. at 137-40. As relevant here, Dr. Ipakchi found that Arevalo is limited to “frequent” balancing, stooping, and kneeling, “occasional” crouching and crawling, and never climbing ladders, ropes, or scaffolds. Id. at 138. The ALJ disagreed with Dr. Ipakchi's finding as to balancing, stooping, and kneeling. She stated that “the consultant provided minimal explanation or discussion to support the assessed postural . . . limitations.” Id. at 58. “Moreover,” she added, “while the evidence shows intact gait and no loss of motion, a BMI of over 45 is consistent with occasional climbing of ramps or stairs and occasional crouching and crawling; however, it is inconsistent [with] limitations to stooping, kneeling, or balancing.” Id. (emphasis added) (citing Tr. 560, 568, 594, 615, 625, 657, 687, 691, 696, 712, 724, 760, 765, 815).
“Postural limitations” refers to functional limitations in such physical activities as climbing, balancing, stooping, kneeling, crouching, and crawling. SSR 96-9p, 1996 WL 374185, at *7 (S.S.A. July 2, 1996); SSR 96-8p, 1996 WL 374184, at *6 (S.S.A. July 2, 1996).
In her written decision, the ALJ cited to the exhibits proffered at the hearing as follows: “(Exhibits 10F, pp. 5, 13, 18, 39; 11F, pp. 6, 15; 12F, p. 13; 13F, pp. 16, 20, 25, 41, 53; 14F, pp. 7, 12; 15F, p. 44).” Here, the Court cites to the page numbers of the administrative record corresponding to the page numbers of the cited exhibits.
Arevalo takes issue with the ALJ's assessment that a BMI of over 45 “is inconsistent [with] limitations to stooping, kneeling, or balancing.” He argues that the assessment is not supported by the records cited by the ALJ, and by extension, that the ALJ's RFC formulation, which did not include any limitation to stooping, kneeling, or balancing, is not supported by substantial evidence. Pl.'s Br. at 18, 21. This is because, as Arevalo's premise goes, none of the records cited by the ALJ “relate to the Plaintiff's obesity, nor do they relate to the Plaintiff's limitations with stooping, kneeling, or balancing.” Id. at 18. The Court disagrees.
The Court understands the ALJ to mean that despite that Arevalo has a BMI of over 45, the assessed limitations to stooping, kneeling, or balancing are not supported by evidence-but not to mean that a BMI over 45 is per se inconsistent with such limitations. Cf. SSR 19-2p, 2019 WL 2374244, *4 (“No specific weight or BMI establishes obesity as a ‘severe' or ‘not severe' impairment....We do an individualized assessment of the effect of obesity on a person's functioning when deciding whether the impairment is severe.” (emphasis added)).
“Stooping, kneeling, crouching, and crawling are progressively more strenuous forms of bending parts of the body.” SSR 85-15, 1985 WL 56857, at *7 (S.S.A. 1985). “Stooping is a type of bending in which a person bends his or her body downward and forward by bending the spine at the waist,” and “[f]lexibility of the knees as well as the torso is important for this activity.” SSR 83-10, 1983 WL 31251, at *6 (S.S.A. 1983). “Kneeling,” on the other hand, is a type of bending in which a person “bend[s] the legs at the knees to come to rest on one or both knees”; kneeling “is a relatively rare activity even in arduous work.” SSR 85-15, 1985 WL 56857, at *7.
So, medical records regarding the conditions of a claimant's weight-bearing joints and the range of motion of his skeletal spine and extremities are relevant to the evaluation of any postural abilities, including the abilities to balance, stoop, and kneel. See SSR 19-2p, 2019 WL 2374244, at *4 (“Obesity increases stress on weight-bearing joints and may contribute to limitation of the range of motion of the skeletal spine and extremities.”). More generally, in assessing how the claimant's obesity may impact his functional abilities, medical records regarding the claimant's ability to ambulate, see Shilo, 600 Fed.Appx. at 962 (“Shilo's ability to ambulate also should have been considered in the context of Shilo's body mass index . . . -a disturbing 53.7.”), and regarding the claimant's conditions relating to any “musculoskeletal, respiratory, cardiovascular, and endocrine disorders” are relevant. SSR 19-2p, 2019 WL 2374244, at *3 (“Obesity is often associated with [such] disorders.”); see also Winston v. Berryhill, 755 Fed.Appx. 395, 401 (5th Cir. 2018) (observing that in assessing the impact of obesity on the claimant's functioning, the ALJ considered, among others, muscle strength, musculoskeletal tenderness, dizziness, ability to walk with or without assistive device).
The Court observes that the ALJ cited the same set of records in support of her earlier discussion of Arevalo's obesity: “Moreover, the evidence shows ‘good exercise tolerance,' and physical examinations show no significant complications arising from body habitus, with generally unremarkable respiratory, gastrointestinal, cardiovascular, dermatological, and musculoskeletal findings.” Tr. at 57 (citing the same exhibits). One of the records cited by the ALJ contains Arevalo's BMI on October 12, 2020. Id. at 594 (BMI of 47.1). The ALJ cited a record that contains the result of an examination performed during Arevalo's November 12, 2020 visit with a podiatrist; it shows that he had normal gait and ambulated with no assistive device. Id. at 657. The same record shows, under a review of symptoms section, that Arevalo had no muscle or joint pain and no dizziness or lightheadedness. Id. Another cited record, dated September 15, 2020, shows that his musculoskeletal system had normal range of motion and normal strength. Id. at 560. Yet another cited record, dated September 8, 2020, shows that Arevalo's musculoskeletal conditions of his spine and extremities were normal. Id. at 624. The ALJ cited a record dated June 23, 2021, that shows that upon examination, a physician found that Arevalo's right upper extremities had full range of motion and no obvious musculoskeletal deformities, and that his back/spine was nontender to palpation. Id. at 687.
The Court has meticulously reviewed each record that the ALJ cited and finds, contrary to Arevalo's argument, that they relate to Arevalo's abilities to balance, stoop, and kneel, and more generally, the impact his obesity may or may not have on such abilities. The Court also observes that elsewhere in her written decision, the ALJ found that physical examinations have shown “no swelling or joint deformity.” Tr. at 56. And although the medical records indicate that in 1999, Arevalo had a reconstructive knee (right) surgery, id. at 293, 608, cited in id. 54 (ALJ's decision), the ALJ found that within the relevant period, the evidence shows no objective findings associated with knee impairments, id. at 54. The Court finds that the explanation provided by the ALJ in rejecting the state agency medical consultant's assessment of limitations as to Arevalo's balancing, stooping, and kneeling functionalities is well supported; it comports with the social security regulations because the ALJ articulated generally how persuasive she found the assessment. See 20 C.F.R. § 404.1520c(b) (“We will articulate in our . . . decision how persuasive we find . . . all of the prior administrative medical findings in your case record.”).
Next, Arevalo points out that a medical record dated March 5, 2021, shows that “loss of balance” was observed, arguing that he suffered from balance issues, presumably to suggest that the ALJ's RFC formulation's failure to include a balancing limitation is not supported by the medical record. Pl.'s Reply at 4 (citing Tr. at 794). Because Arevalo makes this argument for the first time in his reply brief, the Commissioner did not have an opportunity to respond. However, the Court's review of the medical records from the relevant period reveals evidence that cuts against the above-mentioned evidence of balance issues: a medical record dated November 12, 2020, shows that Arevalo denied “falls, headaches, poor balance, [and] vertigo,” Tr. at 613; see also id. at 694 (denying falls during a doctor's visit on May 14, 2021); in another record dated September 15, 2020, which the ALJ cited in her decision, id. at 57 (citing 10F, p. 5), Arevalo's neurologic symptoms were noted as “no dizziness,” id. at 560; see also id. at Tr. 657 (similar neurologic symptoms), cited in Tr. at 57 (ALJ's decision) (citing 12F, p. 12). So, Arevalo's argument regarding balance issues invites the Court to reweigh evidence, which it may not do. See Muse v. Sullivan, 925 F.2d 785, 790 (5th Cir. 1991) (“The ALJ as factfinder has the sole responsibility for weighing the evidence.”); see also Sun, 793 F.3d at 508 (“Conflicts of evidence are for the Commissioner, not the courts, to resolve.”).
Finally, the Court observes that Arevalo did not allege, initially or upon reconsideration, that he was disabled due to his obesity. Tr. at 128. At the hearing before the ALJ, where he was represented by counsel, he did not mention his obesity or weight-much less testify on what impact, if any, his obesity or weight has on his ability to work. In his briefs, Arevalo also does not cite to any physician-imposed limitations resulting from his obesity. And the record does not suggest that any of Arevalo's physicians discussed his obesity in any detail. As the ALJ noted: “The evidence shows body mass index (BMI) as high as 47.46 which is clinically morbid obesity; however, it shows no bariatric recommendations[;] [i]nstead, . . . the claimant's providers recommended exercise and dietary management.” Id. at 57 (internal citations omitted).
Under these circumstances, the ALJ did not err by not incorporating in Arevalo's RFC any limitation to balancing, stooping, or kneeling on account of his obesity. See Martinez v. Kijakazi, No. 3:20-CV-3282-BH, 2022 WL 4590577, at *13 (N.D. Tex. Sept. 29, 2022) (finding no error where plaintiff's counsel did not examine him or the vocational expert about any exertional limitations caused by his obesity, at no point in his initial application, upon reconsideration, or in his testimony did the plaintiff make any allegation about how his weight had affected his ability to walk, climb, lift, or sleep, and he failed to cite to any evidence in the record showing that his obesity exacerbated his other medical impairments, or that his physicians opined that his obesity imposed additional functional limitations); Hasch v. Saul, No. 1:19CV150-PPS, 2020 WL 614644, at *3 (N.D. Ind. Feb. 10, 2020) (rejecting claimant's argument that the ALJ's RFC did not adequately take her obesity into account, where the medical record relevant to the impact of her obesity on postural limitations was limited and the ALJ took into account her obesity); cf. also Stepp v. Colvin, 795 F.3d 711, 720 (7th Cir. 2015) (holding that any error on the part of the ALJ in neglecting to discuss claimant's obesity was harmless where the claimant did not explain how her obesity hampers her ability to work and the record did not suggest that her treating physicians discussed her weight in any detail).
In sum, the Court finds no error on the part of the ALJ in her evaluation of the state agency medical consultant's findings of limitations as to Arevalo's balancing, stooping, and kneeling activities and her assessment of Arevalo's RFC by not incorporating any limitation as to these activities on account of his obesity.
B. Cubital Tunnel Syndrome
Arevalo argues that the ALJ erred in finding, at step two, that his cubital tunnel syndrome was non-severe. Pl.'s Br. at 10-11. At step two, an ALJ determines whether claimant has a “medically determinable impairment” which meets the “duration requirement” and is severe. 20 C.F.R. § 404.1520(a)(4)(ii). A medically determinable impairment must be established through “objective medical evidence” from an acceptable medical source. § 404.1521; see also id. (“We will not use your statement of symptoms, a diagnosis, or a medical opinion to establish the existence of an impairment(s).”); Ivy v. Sullivan, 898 F.2d 1045, 1048-49 (5th Cir. 1990) (“Medically acceptable evidence includes observations made by a physician during physical examination and . . . laboratory findings or tests results.”). The regulations set out the duration requirement: “Unless your impairment is expected to result in death, it must have lasted or must be expected to last for a continuous period of at least 12 months.” § 404.1509; see also 42 U.S.C. § 423(d)(1)(A).
Specifically, in finding that Arevalo's cubital tunnel syndrome was non-severe, the ALJ reasoned: “The record also shows bilateral cubital tunnel syndrome/ulnar nerve entrapment; however, the evidence does not show that this impairment lasted for twelve months or that the claimant's provider expected it to last for twelve months, since the claimant had surgery to release the entrapped nerve.” Tr. at 54 (citing Tr. at 816, 861, 873). The record reflects that on July 2, 2021 (approximately 8 weeks before the administrative hearing and 11 weeks before the ALJ issued her decision), Arevalo underwent a cubital tunnel release/ulnar nerve decompensation surgery; it was indicated for pain and numbness in the ring and small fingers on his right hand. Id. at 815.
Arevalo argues that contrary to the ALJ's finding, his cubital tunnel syndrome lasted for over 12 months. Pl.'s Br. at 10. He points out that medical records indicate that the date of onset for his cubital tunnel syndrome was as far back as July 18, 2016, id. (citing Tr. 655, 661), and that the records “are replete with references that the date of onset for this condition was February 22, 2018,” id. at 10-11 (citing Tr. 784, 786, 788-790, 792, 799, 801, 837, 840, 841-842, 844-845, 850-851, 853-854, 856-859, 861-863, 866-867, 869-870, 872). He adds that in assuming, based on the fact of his surgery alone, that there was sufficient post-surgical medical improvement to the point of his cubital tunnel syndrome being non-severe, the ALJ was “playing doctor.” Id. at 13, 15. He points out that there are no medical records, and thus no medical proof, regarding the post-surgical condition of his cubital tunnel syndrome. Id. at 13.
The medical records Arevalo cites in support of his assertion that the onset date of his cubital tunnel syndrome was February 22, 2018, are progress notes from the occupational therapy he received at an outpatient clinic from February 22 to June 22, 2021. Tr. at 844. An assessment note dated February 22, 2021 (the date of his first therapy session), lists “February 22, 2018,” as the onset date, but it also shows that on that day of his therapy, Arevalo reported that he had been experiencing tingling and numbness in his bilateral upper extremities “for [the] past 3 years.” Id. at 801. This onset date was then repeated in each of the subsequent progress notes that Arevalo cites. Similarly, the two records Arevalo cites in support of his assertion that the onset date of his cubital tunnel syndrome was July 18, 2016, are dated June 19 and July 10, 2020 (long after the stated onset date). Under a section entitled, “reviewed problem,” each record lists “Lesion of ulnar nerve - Onset: 07/18/2016 - Cubital tunnel syndrome, bilateral”; however, neither record suggests that the onset date was ascertained based on any objective medical evidence. Id. at 655, 661. The ALJ could therefore have reasonably concluded that these onset dates (July 18, 2016, and February 22, 2018) were based solely on Arevalo's subjective reports.
Cf. Beach v. Saul, 846 Fed.Appx. 434, 435 (9th Cir. 2021) (“Beach's own statements are insufficient to establish an [medically determinable impairment]. Nor is a doctor's note that Beach ‘possibly' had Lyme disease based on her self-report sufficient evidence that she had that condition.” (internal citations omitted) (citing, among others, 20 C.F.R. § 404.1521)); Anteau v. Comm'r of Soc. Sec., 708 Fed.Appx. 611, 613 (11th Cir. 2017) (“The only acceptable medical source that diagnosed Anteau with Asperger's disorder was Dr. Gerald Hodan. However, Dr. Hodan's opinion was based on Anteau's subjective claims rather than objective evidence, and the ALJ did not err in determining Dr. Hodan's opinion was not entitled to great weight.”); Ukolov v. Barnhart, 420 F.3d 1002, 1005-06 (9th Cir. 2005) (“Dr. Nilaver reported Ukolov's subjective complaints, ....These portions of the records do not support a finding of impairment because they are based solely on Ukolov's own ‘perception or description' of his problems.”).
On the other hand, a note from an “ortho office visit” on May 28, 2021, with John Dunn, M.D. (who later performed the surgery), indicates that “right cubital tunnel syndrome” was confirmed on an electromyography (EMG) test. Tr. at 692. The same note, under the “impression” section, states “right cubital tunnel syndrome.” Id. at 691. And at the hearing before the ALJ, Arevalo's counsel represented, in no uncertain terms, that “the cubital tunnel syndrome was first diagnosed . . . [on] May 28th of 2021,” referring to the ortho visit note. Id. at 71 (emphasis added) (referring to Ex. 13F, pp. 18-21, i.e., Tr. at 689-92). The ALJ therefore could have reasonably concluded that the onset date of his cubital tunnel syndrome was May 28, 2021, and not, as Arevalo claims, July 18, 2016, or February 22, 2018. See Hollis v. Bowen, 837 F.2d 1378, 1385 (5th Cir. 1988) (The ALJ is “not require[d] [to] . . . give subjective evidence precedence over medical evidence.”).
As to how long, after its onset, Arevalo's cubital tunnel syndrome lasted, or was expected to last, Arevalo “bears the burden of production and persuasion” at step two. Kerins v. Comm'r of Soc. Sec. Admin., 174 Fed.Appx. 100, 103 (3d Cir. 2006) (citing Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987)); see also Kneeland, 850 F.3d at 753 (“The burden of proof is on the claimant at the first four steps.”). Dr. Dunn's post-operative note dated July 2, 2021, which the ALJ cited in her decision, instructed Arevalo to “follow up with Dr. Dunn in clinic at . . . 2 week[s] from postoperative date,” Tr. at 818; yet, the record evidence before the ALJ did not include any note of that follow-up visit (if it took place)-as Arevalo concedes, there are no medical records regarding the post-surgical condition of his cubital tunnel syndrome. Arevalo's failure to produce such records may not be pinned on the ALJ.
That post-operative note also states that “all sites of compression were thoroughly released,” and that “[w]e brought the elbow through range of motion[,] and there was no evidence of ulnar nerve subluxation.” Tr. at 817. Absent evidence to the contrary, the ALJ could have reasonably relied on Dr. Dunn's statement to conclude that the surgery was successful, and that Arevalo's cubital tunnel syndrome was thereby cured. Moreover, the record reflects that on appeal from the ALJ's decision, Arevalo submitted to the Appeals Council a medical source statement dated September 29, 2021 (two weeks after the ALJ issued her written decision). Id. at 8, 345. In it, Divyank Patel, M.D., who treated Arevalo during the relevant disability period, e.g., id. at 612, 621, rated both Arevalo's right hand (on which he had the surgery) and his left hand as having the same level of functionality in that he can, with each hand, “frequently” reach, handle, finger, feel, and push/pull, id. at 43. Dr. Patel's opinion bolsters the ALJ's implicit conclusion that Arevalo's cubital tunnel syndrome was cured.
“[T]he Commissioner's final decision necessarily includes an Appeals Council's denial of a claimant's request for review. It follows that the record before the Appeals Council constitutes part of the record upon which the final decision is based.” Higginbotham v. Barnhart, 405 F.3d 332, 337 (5th Cir. 2005). Therefore, “[a]though the ALJ did not have [the medical source statement] when [s]he denied [Arevalo's] claim[s], [it] constitute[s] part of the record upon which the Commissioner's final decision was based.” Cf. Sun, 793 F.3d at 508 n.4.
The Court expresses no opinion on whether the medical source statement passes muster under 20 C.F.R. § 404.1520b, which requires ALJs to evaluate, inter alia, the supportability of a medical opinion. For example, in the statement, Dr. Patel does not identify any medical or clinical findings that support his opinions or otherwise explain the bases of his opinions.
Consequently, the Court finds that the ALJ did not err in finding that “the evidence does not show that this impairment lasted for twelve months or that the claimant's provider expected [his cubital tunnel syndrome] to last for twelve months, since the claimant had surgery to release the entrapped nerve,” and therefore, that the condition was non-severe. Tr. at 54.
Next, and relatedly, Arevalo argues that the ALJ's step-two determination of non-severity prejudiced him, and in any event, the ALJ erred, because she failed to account for any “manipulative limitations” in the RFC on account of his cubital tunnel syndrome. Pl.'s Br. at 11. He speculates that the ALJ failed to do so “solely” because she found that the condition did not meet the 12-month durational requirement. Id. at 12, 17.
Manipulative limitations are functional limitations in manipulative activities such as reaching (extending the hands and arms in any direction), handling (seizing, holding, grasping, turning or otherwise working primarily with the whole hand or hands), fingering (picking, pinching, or otherwise working primarily with the fingers) and feeling. SSR 85-15, 1985 WL 56857, at *7; Jackson v. Astrue, No. 07-1384-MLB, 2009 WL 248491, at *4 (D. Kan. Feb. 3, 2009); St. James v. Comm'r of Soc. Sec., No. 13-10574, 2014 WL 1305032, at *4 (E.D. Mich. Feb. 4, 2014), report & recommendation adopted, No. 13-10574, 2014 WL 12600974 (E.D. Mich. Mar. 31, 2014); see also SSR 96-8p, 1996 WL 374184, at *6 (referencing “manipulative (e.g., reaching, handling)”); but see Maxwell v. Comm'r of Soc. Sec., 778 Fed.Appx. 800, 801-03 (11th Cir. 2019) (suggesting that “reaching” may be a different type of activity than a “manipulative” activity).
Specifically, Arevalo points to his August 24, 2021 hearing testimony that he still had difficulties with his hands, for example, in holding a phone, grasping a pen, opening jars, and that just a few days before the hearing, he dropped two glasses, breaking them. Tr. at 11 (citing Tr. at 73-74). This testimony generally relates to his abilities around the time of the hearing.Dr. Dunn's postoperative note instructed Arevalo to “be partial weightbearing, no more than 5 pounds to facilitate soft tissue rest and healing about the incisional site.” Id. at 817. So, at the time of his testimony, which was only seven weeks after his surgery, Arevalo was perhaps still recovering, to some extent, from the surgery and as such, his testimony may not accurately reflect the functional abilities of his hands during the relevant disability period. And at the hearing, the ALJ recognized as much: “so let's dial it back a little bit before [the surgery] because I imagine you're still probably in some sort of a recovery phase.” Id. at 76-77.
At the hearing, Arevalo and his counsel had the following colloquy:
Q Okay, and what do you believe is the heaviest amount weight you're able to lift comfortably right now?
A Five pounds.
Q Okay, and what's preventing you from being able to lift more than five pounds?
A The pain in my shoulder and the weakness in my arms. ...
Q Okay....Are you switching your hands with the phone?
A Yes[.] . . .
Q Okay. Do you have any difficultly like, writing with a pen or a pencil?
A I do. I have trouble grasping the pen when I want to write. Every now and then, my fingers will cramp up, and I've got to extend them again to release to be able to write again, and then I'll be able to write for a little bit. Then, it cramps up again. ...
Q Do you ever have any difficulty dropping things?
A I have....[A]fter a couple of minutes or something, I have [to] put the glass down or something because . . . it'll [be] out of my hand. I just recently broke two glasses the same day, a couple of days ago.Tr. at 73-75 (emphasis added).
In any event, in her written decision, in assessing Arevalo's RFC, the ALJ recounted Arevalo's testimony. Tr. 56 (“At the hearing, he testified that he experiences pain and swelling to the lower extremities, difficulty lifting and handling, and difficulty completing activities of daily living.” (emphasis added)). The ALJ thus considered the functional abilities of his hands in assessing his RFC. Ultimately, however, the ALJ concluded that Arevalo's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record. Id. at 56; see also Acosta v. Astrue, 865 F.Supp.2d 767, 790 (W.D. Tex. 2012) (“RFC determinations are inherently intertwined with matters of credibility, and the ALJ's credibility determinations are generally entitled to great deference.”). At a minimum, the ALJ's consideration of the functional abilities of Arevalo's hands dispenses with his argument that the ALJ did not include any manipulative limitation in the RFC-solely because she found, at step two, that his cubital tunnel syndrome did not meet the 12-month durational requirement.
See also id. at 56 (“The medical evidence of record shows effective treatment, conservative recommendations, no significant side effects, no end-organ damage, intact ambulation, and intact motor function, which is inconsistent with the allegations of disabling severity.” (ALJ's decision) (citing various medical records)).
Belatedly, and once again, for the first time in his reply brief, Arevalo points out that his grip strength was only 30 pounds in his right hand and 50 pounds on his left hand. Pl.'s Reply 1 (citing Tr. at 795). He cites to the progress report from the first of thirty-three occupational therapy sessions he attended between February 22 and June 22, 2021. The reports from these sessions show that Arevalo's grip strength on his right hand fluctuated during that period: For example, on the 26th session on May 25, 2021, his grip strength on his right hand was 64 pounds “closely meeting his [long term goal of 65 pounds].” Tr. at 852. In part because of that, Dr.
Dunn recommended the cubital tunnel release/ulnar nerve decompensation surgery. And as previously mentioned, Dr. Dunn's postoperative note indicates that the surgery was successful. See Lovelace v. Bowen, 813 F.2d 55, 59 (5th Cir. 1987) (“A medical condition that can reasonably be remedied either by surgery, treatment, or medication is not disabling.”). In addition, the state agency medical consultant's findings, which the ALJ found were partially persuasive, provide further support that any difficulties Arevalo had was not disabling: Specifically, the consultant found that Arevalo had no manipulative limitations. Tr. at 139.
Tr. at 688 (“No relief with conservative treatment, patient indicated for cubital tunnel release[.] Plan to proceed with cubital tunnel release on 2 July 2021 with Dr. Dunn[.]”); id. at 817 (“The patient had trialed nonoperative management to include nighttime bracing, NSAIDs and occupational therapy, none of these measures provided any notable relief to the patient's symptoms of which were becoming functionally limiting.” (stating under the “indication for procedure” section of Dr. Dunn's note)).
See Rodriguez v. Comm'r of Soc. Sec., No. 4:23-CV-175-BP, 2023 WL 4207451, at *5 (N.D. Tex. June 27, 2023) (“Here, the ALJ did not completely reject Dr. Murphy's opinion, but instead found it ‘partially persuasive' given the other evidence of record. Assigning less persuasive merit to particular areas of a specific evidentiary source is a far cry from rejecting that source in its entirety.” (cleaned up)).
Moreover, even if the ALJ erred, such errors were harmless. An error is harmless and therefore, remand is unnecessary “unless the substantial rights of a party have been affected” by the error. Rollins v. Astrue, 464 Fed.Appx. 353, 358 (5th Cir. 2012) (citing Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988)). “Where the resulting disability determination remains unchanged, even if some of the reasoning underlying that decision is erroneous, no substantial rights have been affected.” Qualls v. Astrue, 339 Fed.Appx. 461, 464 (5th Cir. 2009) (citing Mays, 837 F.2d at 1364); see also Keel, 986 F.3d at 556 (“Harmless error exists when it is inconceivable that a different administrative conclusion would have been reached even if the ALJ did not err.”).
Thus, even if the ALJ erred at step two by finding that Arevalo's cubital tunnel syndrome was non-severe (because it did not meet the durational requirement), the error was harmless because the ALJ found, at step two, that other impairments were severe; considered, as discussed above, in assessing the RFC, Arevalo's difficulties with his hands; and ultimately found him not disabled at step four. See Adams v. Bowen, 833 F.2d 509, 512 (5th Cir. 1987) (holding ALJ's failure to make a severity finding at step two was not a basis for remand where the ALJ proceeded to later steps of the analysis); Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016) (“[T]he failure to find a particular impairment severe at step two is not reversible error when the ALJ finds that at least one other impairment is severe” and therefore, “proceed[s] to the next step.”); Knight v. Kijakazi, No. 22-60539, 2023 WL 234769, at *2 (5th Cir. Jan. 18, 2023) (unpublished) (rejecting argument that ALJ erred at step two by not listing claimant's tinnitus as a severe impairment and holding the error was harmless because the ALJ found, at step two, other impairments were severe and considered tinnitus in evaluating the claimant's RFC).
Likewise, even if the ALJ erred in not incorporating any manipulative limitation in the RFC, such error too was harmless. In the above-mentioned medical source statement that Arevalo submitted to the Appeals Council, Dr. Patel opined that Arevalo can sort, handle, and use paper or files and that he can “frequently” reach, handle, finger and feel. Tr. at 43, 46. It may be recalled that in concluding, at step four, that Arevalo is not disabled, the ALJ found that he can perform, and his RFC does not preclude the performance of work-related activities required by, his past relevant work as a retail manager, a cashier, and a sales representative, as they are generally performed in the national economy. Id. at 58-59. And, at the hearing before the ALJ, the vocational expert testified that if a hypothetical individual with the RFC as assessed by the ALJ was further limited to “occasional” reaching, handling, and fingering, that would “eliminate the sales representative and the cashier [jobs] but not the retail manager” job. Id. at 88. Since an “occasional” functional limitation is more restrictive than a “frequent” limitation,even accepting Dr. Patel's opinion as to Arevalo's manipulative limitations (which is the most favorable medical opinion on this issue in the record for Arevalo) and incorporating those limitations into the RFC formulated by the ALJ, Arevalo could still perform one of his three past relevant jobs-namely, the job of a retail manager.
“Frequent” is defined as up to two-thirds of the workday, whereas “occasional” is defined as one-third or less of the workday. Johnson v. Berryhill, No. 16-CV-2615 BTM(JMA), 2017 WL 3478762, at *4 (S.D. Cal. Aug. 14, 2017); see also SSR 83-10, 1983 WL 31251, at *5-*6 (explaining that “occasional” means “up to one-third of the time” and “frequent” means “one-third to two-thirds of the time”).
And that means that the ALJ's step four finding-that Arevalo is not disabled because he can perform his past relevant work-would still stand, even accepting Dr. Patel's opinion as to his manipulative limitations. Cf. Lind v. Astrue, 370 Fed.Appx. 814, 817 (9th Cir. 2010) (“[T]he ability to perform one of [claimant's] past jobs is sufficient to meet the [substantial gainful activity] standard” for past relevant work at step four.); Wells v. Colvin, 727 F.3d 1061, 1074 (10th Cir. 2013) (“E]ven if [claimant] could only perform the job of bookkeeper,” which was one of four jobs that ALJ found constituted past relevant work, “that job is sufficient to support the ALJ's step-four determination.”). Therefore, any error on the part of the ALJ in not incorporating any manipulative limitation in the RFC was harmless. Cf. Ferris v. Massanari, 253 F.3d 700, 2001 WL 498466, at *1 (5th Cir. 2001) (unpublished table decision) (“With respect to the impairment of his hand, even if the ALJ erred in rejecting Ferris's complaints regarding his hand, . . . any such error was harmless. The jobs cited by the ALJ do not require significant use of the dominant hand beyond occasional writing. Any error did not affect Ferris's substantial rights.”).
Finally, for much of the same reasons discussed above, the Court rejects Arevalo's further argument that the ALJ erred by failing to fully develop the record by obtaining additional medical records or ordering a consultative examination. Pl.'s Br. at 12-16; see also Graves v. Colvin, 837 F.3d 589, 592-93 (5th Cir. 2016) (“[T]his Court will not reverse the decision of an
ALJ for failure to fully and fairly develop the record unless the claimant shows that he or she was prejudiced by the ALJ's failure.”).
V. CONCLUSION
For the foregoing reasons, IT IS RECOMMENDED that the Commissioner's decision be AFFIRMED.
SO ORDERED.
NOTICE
FAILURE TO FILE WRITTEN OBJECTIONS TO THE PROPOSED FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS CONTAINED IN THE FOREGOING REPORT, WITHIN FOURTEEN DAYS OF SERVICE OF SAME, MAY BAR DE NOVO DETERMINATION BY THE DISTRICT JUDGE OF AN ISSUE COVERED HEREIN AND SHALL BAR APPELLATE REVIEW, EXCEPT UPON GROUNDS OF PLAIN ERROR, OF ANY UNOBJECTED-TO PROPOSED FACTUAL FINDINGS AND LEGAL CONCLUSIONS AS MAY BE ACCEPTED OR ADOPTED BY THE DISTRICT COURT.