Summary
holding that an ALJ does not “reject” a medical opinion when it finds same partially persuasive and does not “play doctor” when finding a claimant to be less able than a physician recommended
Summary of this case from Hess v. KijakaziOpinion
22-CV-00111-DC-RCG
08-03-2023
BRANDI L. BEDNORZ, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
THE HONORABLE DAVID COUNTS, U.S. DISTRICT JUDGE
REPORT AND RECOMMENDATION OF THE U.S. MAGISTRATE JUDGE
RONALD C. GRIFFIN UNITED STATES MAGISTRATE JUDGE
BEFORE THE COURT is Plaintiff Brandi L. Bednorz's (“Plaintiff”) Complaint and Brief (Docs. 1, 15); Defendant Kilolo Kijakazi, Acting Commissioner of Social Security's (“Commissioner”) Answer (Doc. 8) and Responsive Brief (Doc. 17); and Plaintiff's Reply to Brief of Defendant (hereafter, “Reply Brief”) (Doc. 18). This matter is before the undersigned United States Magistrate Judge through a standing order of referral pursuant to 28 U.S.C. § 636 and Appendix C of the Local Court Rules for the Assignment of Duties to United States Magistrate Judges. After due consideration, the undersigned RECOMMENDS that the Commissioner's decision be AFFIRMED.
I. Background
Plaintiff asks the Court to reverse a decision made by an ALJ of the Social Security Administration (“SSA”), in which the ALJ found that Plaintiff does not possess a “disability” as defined by the Social Security Act (“Act”). (Doc. 1 at 1).
Plaintiff was born on August 12, 1979, was 39 years old at the time she filed an application for disability insurance benefits, and has a college education. (Docs. 9-2 at 19; 9-3 at 2). She was previously employed as a dental hygienist. (Doc. 9-2 at 56).
Plaintiff filed her disability claim on June 3, 2019, asserting the presence of a disability with an alleged onset date of June 30, 2014. (Doc. 9-2 at 56). Plaintiff alleged that she was afflicted with the following illnesses, injuries, or conditions: multiple sclerosis (“MS”), polycystic ovarian syndrome (“PCOS”), and endometriosis.
Prior to the instant claim, Plaintiff had previously filed a disability application. (Doc. 9-6 at 64). This was denied on December 13, 2017. (Id.). The initial application and subsequent decision are not under review at this time.
The SSA's Disability Determination Explanation concerning Plaintiff's application for disability insurance benefits notes that Plaintiff's claim of disability is in part due to “PCLS.” (Doc. 9-3 at 3). The term “PCLA” appears in Defendant's Responsive Brief. (Doc. 17 at 2). Neither “PCLA” nor “PCLS” appear to be recognized ailments on their own. Both parties refer, however, to “polycystic ovarian syndrome” in their briefs, and the ALJ recognized the ailment in her decision. (Docs. 15 at 8; 17 at 2; 9-2 at 20). Therefore, it is contextually inferred that “PCLS” and “PCLA” are typographical errors that actually refer to “PCOS.”
Plaintiff's application was initially denied on July 29, 2019, and denied again upon reconsideration on November 8, 2019. (Doc. 9-3 at 2, 18). On July 16, 2020, Plaintiff, her husband, and a vocational expert (“VE”) appeared before the ALJ via telephonic hearing. (Doc. 9-2 at 32). The ALJ issued a hearing decision on October 5, 2020, finding that Plaintiff was not under a disability within the meaning of the Act from June 30, 2014, through the date last insured, which was determined to be June 30, 2018. (Id. at 16). On March 23, 2022, the SSA's Appeals Council concluded that no basis existed for changing the ALJ's decision and declined to review it. (Doc. 9-2 at 2). Thus, the ALJ's decision became the final decision of the Commissioner. Kneeland v. Berryhill, 850 F.3d 749, 755 (5th Cir. 2017) (citation omitted).
There is no dispute that the ALJ correctly calculated Plaintiff's date last insured. See Franklin v. Berryhill, No. 1616026, 2017 WL 6733984, at *8 n.4 (E.D. La. Aug. 25, 2017). Nor does Plaintiff dispute the alleged onset date of June 30, 2018. See Jimenez v. Kijakazi, No. H-21-4252, 2023 WL 2089545, at *4 (S.D. Tex. Jan. 31, 2023).
Plaintiff thereafter filed her Complaint with this Court on May 6, 2022. (Doc. 1). Defendant filed an Answer on July 12, 2022. (Doc. 8). Plaintiff filed her Appeal from the Decision of the Acting Commissioner of Social Security (hereafter, “Appeal”) on August 23, 2022. (Doc. 15). Defendant filed a Responsive Brief on October 6, 2022, followed by Plaintiff filing her Reply Brief on October 21, 2022. (Docs. 17, 18). Accordingly, this matter is now ripe for disposition.
II. Legal Standard
A. Five-Step Evaluation Process
A “disability” in the context of the Act is defined, in cases not involving blindness, as an “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). In determining whether a claimant is disabled, an ALJ, acting on behalf of the Commissioner, applies a sequential five-step approach, considering whether:
(1) the claimant is currently engaged in substantial gainful activity;
(2) the claimant has a severe medically determinable physical or mental impairment that has lasted or is expected to last for a continuous period of at least 12 months, or combination of impairments that is severe and meets the duration requirement;
(3) the impairment meets the severity of an impairment enumerated in 20 C.F.R. Pt. 404, Subpt. P, App. 1;
(4) the claimant can perform [her] past relevant work given [her] residual functional capacity; and
(5) the claimant's residual functional capacity, age, education, and work experience prevents [her] from performing other work.Sherman v. Kijakazi, No. 1:22-CV-00775-RP-SH, 2023 WL 3727022, at *2 (W.D. Tex. Apr. 27, 2023) (citing 20 C.F.R. § 404.1520(a)(4)). Between steps three and four, the ALJ determines the claimant's “residual functional capacity” (“RFC”). 20 C.F.R. § 404.1520(a)(4). The RFC is “the most [the claimant] can still do” despite any physical or mental limitations caused by her “impairments and any related symptoms.” § 404.1545(a)(1). If a claimant's impairment does not meet or equal a listed impairment, the ALJ assesses the claimant's RFC “based on all the relevant medical and other evidence in [the] case record.” § 404.1520(e). Such medical evidence includes “the testimony of physicians and the claimant's medical records.” Webster v. Kijakazi, 19 F.4th 715, 718 (5th Cir. 2021). After determining the RFC, the ALJ proceeds to steps four and five.
The burden of proving a disability rests with the claimant throughout the first four steps. Kneeland, 850 F.3d at 753. If the claimant meets her burden, at step five, the burden of proof shifts to the Commissioner “to establish the existence of other available substantial gainful employment that [the] claimant can perform.” Sherman, 2023 WL 3727022, at *2 (citing Kneeland, 850 F.3d at 753). If the Commissioner satisfies this burden, “the burden then shifts back to the claimant to prove that she is unable to perform the alternate work.” Morales v. Comm'r, No. EP-22-CV-00120-FM-RFC, 2022 WL 18912157, at *2 (W.D. Tex. Dec. 5, 2022) (alteration and quotation marks omitted) (citing Fraga v. Bowen, 810 F.2d 196, 1302) (5th Cir. 1987)).
B. Judicial Review of the ALJ's Decision
Federal courts review a denial of social security benefits by examining whether: (1) the decision is supported by “substantial evidence”; and (2) the ALJ “applied the proper legal standards.” Schofield v. Saul, 950 F.3d 315, 319 (5th Cir. 2020) (quotation marks omitted).
“Under the substantial-evidence standard, [] court[s] look[] to [the] existing administrative record and ask[] whether it contains ‘sufficient evidence' to support the agency's factual determinations.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (original alteration omitted). Substantial evidence does not imply a high threshold but does require “more than a mere scintilla.” Id. (citation omitted). Indeed, this standard is only met by “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (citation omitted). “A finding of no substantial evidence is appropriate only if no credible evidentiary choices or medical findings support the decision.” Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001) (citation and quotation marks omitted).
In determining whether substantial evidence did support the ALJ's decision, courts weigh “four elements of proof: (1) objective medical facts; (2) diagnoses and opinions of treating and examining physicians; (3) the claimant's subjective evidence of pain and disability; and (4) [her] age, education, and work history.” Probst v. Kijakazi, No. EP-22-CV-00286-RFC, 2023 WL 3237435, at *1 (W.D. Tex. May 3, 2023) (internal quotation marks omitted) (citing Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995)). Courts must not “reweigh the evidence or substitute [its] judgment for that of the [ALJ].” Wills v. Kijakazi, No. 22-20609, 2023 WL 4015174, at *2 (5th Cir. June 14, 2023) (citation omitted). “Conflicts of evidence are for the [ALJ], not the courts, to resolve.” Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005). Thus, courts “may only scrutinize the record to determine whether it contains substantial evidence to support the [ALJ's] decision.” Sherman, 2023 WL 3727022, at *3. If the ALJ's findings are supported by substantial evidence, they must be affirmed. See Garcia v. Berryhill, 880 F.3d 700, 702 (5th Cir. 2018).
III. Analysis
A. The ALJ's Findings
In this case, at step one, the ALJ found that Plaintiff “did not engage in substantial gainful activity during the period from her alleged onset date of June 30, 2014 through her date last insured of June 30, 2018.” (Doc. 9-2 at 18). At step two, the ALJ concluded that Plaintiff was afflicted with the following severe impairments: MS, endometriosis, PCOS, and JC positivity. Step three revealed that Plaintiff “did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” (Doc. 9-2 at 18).
“JC positivity” refers to positivity for John Cunningham's disease. (Doc. 15 at 6).
In determining Plaintiff's RFC, the ALJ concluded that, through the date last insured, Plaintiff
had the [RFC] to lift and carry a maximum of ten pounds occasionally. She could lift and carry less than ten pounds frequently. She could stand and walk up to two hours out of an eight-hour workday. She could sit for up to six hours out of an eight-hour workday. She required the use of a cane for ambulation. She could occasionally climb ramps and stairs. She could never climb ladders, ropes, or scaffolds. She could frequently stoop. She could occasionally balance, kneel, crouch, and crawl. She needed to avoid temperature extremes and extreme humidity. She could frequently reach, handle, finger, and feel with her bilateral upper extremities. She could occasionally push or pull with her bilateral lower extremities. She could occasionally use foot controls.(Id. at 18). Thus, the ALJ found that Plaintiff ”was not completely precluded from all work” and “was able to perform some types of sedentary work.” This was true notwithstanding Plaintiff's “statements concerning the intensity, persistence and limiting effects of [her] symptoms,” as the ALJ held they were “not entirely consistent with the medical evidence and the other evidence in the record.” (Id. at 19).
Turning to step four, the ALJ found that Plaintiff was “unable to perform any past relevant work.” At step five, the ALJ questioned the VE about available occupations in the national economy using Plaintiff's “age, education, work experience, and [RFC].” The VE informed the ALJ that there were jobs that existed in significant numbers in the national economy that Plaintiff could have performed. Based on this finding, the ALJ concluded that Plaintiff was “not disabled” from the period of June 30, 2014, through June 30, 2018, the date last insured. (Id. at 22, 23, 57-59).
B. Substantial Evidence
Plaintiff presents challenges concerning the ALJ's calculation of her RFC on three primary grounds. Plaintiff alleges that the ALJ erred by: (1) improperly disregarding available medical opinions and substituting her own medical judgment in determining her RFC; (2) erroneously relying upon the report of medical expert Dr. Lauren Frey to conclude that Plaintiff was capable of performing sedentary work; and (3) failing to consider all of Plaintiff's functional limitations. (Doc. 15 at 13). Because Plaintiff asserts errors concerning the calculation of her RFC, special guidelines apply.
1. Guidelines for Evaluating Medical Opinions
The ALJ determines a claimant's RFC by examining “all of the relevant medical and other evidence.” 20 C.F.R. § 404.1545(a)(3). In this examination, the ALJ considers the persuasiveness of “all medical opinions and prior administrative medical findings” against the backdrop of five specific factors: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and (5) other factors. Garcia v. Saul, No. SA-19-CV-01307-ESC, 2020 WL 7417380, at *4 (W.D. Tex. Dec. 18, 2020); 20 C.F.R. § 404.1520c(a)-(c). Of these factors, supportability and consistency are of utmost persuasive importance-an explanation is required only for these two factors when the ALJ articulates her conclusions. 20 C.F.R. § 404.1520c(b)(2); see Morales, 2022 WL 18912157, at *3.
“Supportability” refers to the proposition that, the “more relevant” evidence exists to support a medical opinion, the “more persuasive” the opinion will be. 20 C.F.R. § 404.1520c(c)(1). “Consistency,” on the other hand, refers to the proposition that, the “more consistent” a medical opinion or prior administrative medical findings is with the evidence from other medical and nonmedical sources, the “more persuasive” the opinion will be. Id. § 404.1520c(c)(2). Put differently, “supportability looks internally to the bases presented by the medical opinion itself while consistency is an external inquiry that juxtaposes a medical opinion to other evidence in the record, including opinions of other medical professionals.” Morales, 2022 WL 18912157, at *3 (citation and internal quotation marks omitted).
The explanation for persuasiveness given by the ALJ “must enable the court to undertake a meaningful review of whether his finding with regard to the particular medical opinion was supported by substantial evidence” and “must not require the [C]ourt to merely speculate about the reasons behind the ALJ's persuasiveness finding or lack thereof.” Chavarria v. Kijakazi, No. EP-22-CV-00407-KC-RFC, 2023 WL 3984857, at *3 (W.D. Tex. June 13, 2023) (original alterations, citation, and internal quotation marks omitted). In other words, “there must be a discernable ‘logic bridge' between the evidence and the ALJ's persuasiveness finding.” Id. (internal quotation marks omitted). If the ALJ fails to address or mention a medical opinion in the record without explanation, she commits legal error. Sherman, 2023 WL 3737022, at *4. The ALJ's opinion is, however, required only to explain how medical opinions from a single source are considered together in one analysis-individual explanations for each medical opinion are not mandatory. 20 C.F.R. § 404.1520c(b). No articulation is necessary for nonmedical opinions. § 404.1520c(d).
As of March 27, 2017, a date which precedes the hearings at issue in this case, an ALJ is no longer required to consider a treating physician's medical opinion to be controlling. See Winston v. Berryhill, 755 Fed.Appx. 395, 402 n.4 (5th Cir. 2018) (per curiam). Instead, the aforementioned factors are to be used to allocate non-controlling weight to a given opinion. See 20 C.F.R. § 404.1520c(a).
The parties agree as to this general legal foundation. (See Docs. 17 at 6; 18 at 3-4).
With these principles in mind, the undersigned turns to Plaintiff's arguments.
2. Improper Substitution of the ALJ's Medical Judgment
Plaintiff first argues that the ALJ erroneously substituted her own medical judgment for that of medical expert witness Dr. Frey, as well as that of Texas State agency medical consultants (“SAMCs”), in reaching the sedentary work RFC. (Doc. 15 at 8-10). Plaintiff's pleadings refine this argument to challenge the ALJ's analysis of “raw medical data in contravention of all physician assessments, or without a physician assessment.” (Id. at 10). Defendant claims that Plaintiff's argument “overlooks that the ALJ properly followed the revised regulations regarding how the adjudicator considers medical opinions.” (Doc. 17 at 5-6). In other words, Defendant maintains that the ALJ is not to give specific evidentiary or controlling weight to any medical opinions, and that Plaintiff's cited case law interprets prior SSA regulations standing for the contrary. Given the post-2017 regulations' focus on the consistency and supportability of a medical opinion in the RFC analysis, Defendant requests that the Court defer to the amended regulations. (Id. at 6, 7).
As a preliminary matter, Plaintiff concedes that the ALJ was not required to adopt all of Dr. Frey's observed limitations. (Doc. 18 at 7). Nevertheless, Plaintiff's briefings are devoid of any discussion of the post-2017 “supportability” and “consistency” factors. Thus, beyond her sole concession, to the extent that Plaintiff disputes whether the ALJ can find a medical opinion to merely be persuasive instead of controlling, even if it is the only one available to the ALJ, the undersigned must dispose of this argument. As noted above, since 2017, the ALJ is not required to hold as controlling any medical opinion before her. This does not change in the face of a single opinion. Because the hearing and decision in question took place after the amendments were finalized, the undersigned will evaluate Plaintiff's claims under the revised standard.
Defendant appears to suggest that the Appeal be denied simply because the cases to which Plaintiff cites in her Appeal utilize the pre-2017 regulations. (See Doc. 17 at 6 (contending that the standards used in the outdated cases are “not germane to her claim,” so Plaintiff “failed to identify an error . . . that requires remand”)). In the interest of thoroughness, however, the undersigned will evaluate the Appeal using the framework of the revised regulations.
Turning to the substantive argument, the undersigned holds that the ALJ did not substitute her own medical judgment in determining Plaintiff's RFC. In this instance, the Court can only upend the ALJ's decision if the ALJ applied the incorrect legal standard in evaluating the evidence, or if the record lacks substantial evidence to support the ALJ's decision. Plaintiff does not argue that the ALJ applied the incorrect legal standard. Rather, Plaintiff claims that the ALJ improperly rejected certain opinions and failed to give the proper weight to them.
Two sets of opinions on Plaintiff's medical status were considered by the ALJ: (1) evaluations by the SAMCs; and (2) the solicited medical opinion of Dr. Frey. (Docs. 15 at 8-9; 9-2 at 21-22). The SAMCs concluded that Plaintiff's conditions limited her ability to work to only light work, with some environmental restrictions. (Doc. 9-3 at 13, 28). Dr. Frey, in responding to an interrogatory posed by the ALJ, similarly so concluded.
Under the revised standard, an ALJ is “free to adopt in part or reject in full any opinion [she] finds not to be supported by or consistent with the medical evidence.” Lopez v. Kijakazi, No. SA-21-CV-00930-ESC, 2022 WL 4355142, at *4 (W.D. Tex. Sept. 20, 2022) (citing Fontenot v. Colvin, 661 Fed.Appx. 274, 277 (5th Cir. 2016)). However, the ALJ “may not substitute his or her lay opinion for the uncontroverted medical opinions of the only physicians of record on the effects of the claimant's impairments.” Lopez v. Saul, No. SA-19-CV-01088-ESC, 2020 WL 4934462, at *4 (W.D. Tex. Aug. 22, 2020). Where the ALJ “rejects the only medical opinions of record, interprets the raw medical data, and imposes a different RFC, the ALJ has committed reversible error.” Beachum v. Berryhill, No. 1:17-CV-00095-AWA, 2018 WL 4560214, at *4 (W.D. Tex. Sept. 21, 2018) (citation omitted). But at the same time, an ALJ refusing to give an opinion controlling weight does not mean that she is substituting her own expertise. See Bushey v. Comm'r, No. 17-CV-450S, 2019 WL 1424547, at *4 (W.D.N.Y. Mar. 29, 2019) (citation and alterations omitted).
In this case, Plaintiff's primary premise is incorrect: the ALJ did not “reject” either the SAMC evaluations or Dr. Frey's medical opinion. Instead, the ALJ estimated both to be partially persuasive and afforded them little weight where medical evidence in the record indicated to the contrary. This could hardly constitute a “rejection” of the opinions. Rodriguez v. Comm'r, No. 4:23-cv-175-BP, 2023 WL 4207451, at *5 (N.D. Tex. June 27, 2023) (distinguishing “rejected” from “partially persuasive” opinion). Plaintiff concedes this in her conclusion. (Doc. 15 at 15 (“The ALJ relied upon an opinion by [Dr. Frey] ....”)). Further, the ALJ, in articulating the RFC, discussed Dr. Frey's opinion and the SAMC findings. While the ALJ did not find either to be “fully persuasive,” the undersigned recalls that the ALJ is admonished to not hold an individual medical opinion to be determinative of a claimant's RFC. Indeed, the ALJ considered the evaluations and opinion and ultimately found that it “reasonably support[ed] a finding that [Plaintiff] was capable of [some] sedentary work.” (Doc. 9-2 at 21, 22). Whether these conclusions as to the medical significance of the findings and opinion were supported by substantial evidence is a question addressed below. At the very least, it cannot be said that the ALJ “rejected” either the findings or the opinion. See Rodriguez, 2023 WL 4207451, at *5.
i. Consistency
The ALJ examined the consistency of the evaluations and medical opinion with the other evidence in the medical record. Specifically, the ALJ examined and discussed conflicts between the record and the evaluations and opinion. First, the ALJ concluded that the SAMCs' evaluations were “not persuasive.” The ALJ found that the evaluations were only partially persuasive because they “were made without the benefit of additional evidence available at the hearing.” The ALJ noted various hospital visits which indicated that she had “frequent weakness in her lower extremities and was often fatigued” and which the evaluations purportedly had not considered. (Docs. 9-2 at 21; 9-11 at 33, 66). Thus, the available medical record evidence allowed the ALJ to conclude that the true extent of Plaintiff's condition was greater than the SAMC findings implied. (Doc. 9-2 at 21 (observing that the full record shows that “[t]he extent of these symptoms more reasonably supports a finding that she was capable of less than the full range of sedentary, not light, work”)). Plaintiff would not be capable of performing light work as the evaluations suggested, the ALJ concluded, but instead only sedentary work. De Leon v. Berryhill, No. EP-18-CV-00185-RFC, 2019 WL 404176, at *7 (W.D. Tex. Jan. 31, 2019) (citing 20 C.F.R. §§ 404.1567, 416.967).
Second, as to Dr. Frey's opinion, the ALJ concluded that it was not “fully persuasive.” (Doc. 9-2 at 21). Though the ALJ ultimately concluded that her opinion was mostly consistent with the record, she discounted it in part because the opinion that Plaintiff did not need a cane to ambulate did not comport with other evidence in the record. (Id. at 21; Doc. 9-26 at 23). In particular, the ALJ cited exhibits containing medical center visits where Plaintiff discussed leg weakness and occasional falls. (Docs. 9-2 at 21; 9-12 at 64; 9-13 at 104). This, the ALJ concluded, meant that Plaintiff indeed required a cane to ambulate. As to the remainder of Dr. Frey's opinion, the ALJ noted that the other stated limitations “are largely consistent with the evidence.” (Doc. 9-2 at 21). This evidence included additional clinic and hospital visits which showed that Plaintiff's condition improved with treatment, purportedly in line with Dr. Frey's conclusions. (Id. at 21-22; Docs. 9-11 at 7; 9-12 at 65).
Thus, where there were conflicts and consistencies between the medical record and the medical opinions and evaluations, the ALJ pointed to such. These references to the medical records sometimes appear throughout the ALJ's decision. (See, e.g., Doc. 9-2 at 20, 21). Nevertheless, the undersigned considers these discussions in tandem with the persuasiveness analysis of the available medical findings and opinions, to the extent they are relevant, despite their appearance in sections of the opinion other than the evaluation and opinion discussions. See Shelby v. Comm'r, No. 9:21-CV-00038-TH, 2022 WL 18356684, at *7 (E.D. Tex. Dec. 15, 2022).
A “medical opinion” is a statement illustrating the “functional limits a claimant may have from an impairment.” Bahamon v. Comm'r, No. 4:20-CV-00056-SDJ-CAN, 2022 WL 7455302, at *16 (E.D. Tex. July 1, 2022) (citing 20 C.F.R. § 404.1513(a)(2)). The SAMC evaluations included assessments of Plaintiff's physical RFC. (See Doc. 9-3 at 12-14, 27-30). Therefore, the SAMC evaluations could theoretically constitute medical opinions. This distinction is of negligible importance in this case.
Plaintiff appears to hinge most of her Appeal on the fact that the ALJ concluded that she possessed additional limitations-notably that of a cane-beyond those of the provided findings and opinions. A finding of an additional limitation, even that of a cane, on its own produces no error. See Myers v. Saul, No. SA-20-CV-00445-XR, 2021 WL 4025993, at *8-9 (W.D. Tex. Sept. 3, 2021); Behrens v. Comm'r, No. 4:21-CV-00144-SDJ-CAN, 2022 WL 7353121, at *8, *11 (E.D. Tex. July 4, 2022) (affirming ALJ decision that accommodated “additional limitations” beyond SAMC evaluations based on evidence in the record); Todd C. v. Saul, No. 4:19-CV-1811, 2021 WL 2651166, at *10 (S.D. Tex. June 28, 2021); see also Martel-Rivera v. Comm'r, No. 19-1545 (BJM), 2021 WL 4342859, at *11-12 (D.P.R. Sept. 23, 2021) (affirming ALJ decision where the “ALJ recognized that [the claimant] had more limitations than assessed by the consultative and non-examining consultants in 2014 and accommodated these additional limitations in the RFC finding”). Although the use of a cane is a single additional limitation which the ALJ found classified Plaintiff as capable of only sedentary work instead of light work, it is not the province of the Court to assign weight to certain medical conditions or requirements. Wilkerson v. Kijakazi, No. 4:21-cv-273-ALM-KPJ, 2022 WL 4351960, at *5 (E.D. Tex. Sept. 2, 2022). It is also generally understood that an individual who can perform “light work” can also perform most if not all “sedentary work.” See 20 C.F.R. §§ 404.1567, 416.967; Behrens, 2022 WL 7353121, at *8. Even so, the ALJ decided that Plaintiff's additional limitations meant that the “full range of sedentary work” might not be available. (Doc. 9-2 at 23). Plaintiff does not dispute the bases for the SAMCs' findings or Dr. Frey's “light work” opinion or that a different RFC than “light work” was appropriate. Plaintiff further does not discuss how her apparently suggested RFC of “light work with no cane necessary and very limited standing and walking capacity” and corresponding hypothetical would have been more appropriate to pose to the VE than the “sedentary work requiring a cane with less limited standing and walking capacity” RFC the ALJ actually reached and posed, as she appears to imply. (See id. at 21). To the extent Plaintiff is arguing that the ALJ nevertheless erred by relying on either the SAMC findings or Dr. Frey's opinion, this argument is addressed below. Thus, the conclusion that the additional limitation only allowed her to perform less work than the inconsistent evaluations and opinions suggested-i.e., sedentary as opposed to light work-is not itself a reversible error. See Steven K. v. Kijakazi, No. 3:20-cv-01655-G-BT, 2022 WL 1056920, at *13 (N.D. Tex. Jan. 19, 2022).
Plaintiff has not otherwise highlighted a discrepancy between the ALJ's decision and any piece of medical evidence in the record, even going so far as to admit that “the record shows that [] Plaintiff had frequent weakness in her lower extremities and was often fatigued.” (Doc. 15 at 12); see also Behrens, 2022 WL 7353121, at *11. Given the ALJ's thorough discussion of Plaintiff's medical record and Plaintiff's failure to point to any incongruity in the ALJ's decision, the undersigned is able to meaningfully review the ALJ's explanation regarding the instances of inconsistency and finds that it is supported by substantial evidence. Because the ALJ sufficiently explains the connection between her consistency determination as to Dr. Frey's opinion and the SAMCs' evaluations, the assessment satisfies this element of the requirements of the revised regulations.
ii. Supportability
As to the ALJ's supportability explanation, the ALJ discussed the support for the SAMC evaluations and Dr. Frey's opinion. The ALJ remarked that the SAMC evaluations were “well supported.” (Doc. 9-2 at 21). While the ALJ did not expressly notate each part of the record which supported the SAMC evaluations, a brief look at the ALJ's decision reveals that the ALJ did in fact consider many if not all of the opinions on which the SAMC evaluations were based. (Compare, e.g., Doc. 9-3 at 7-9, 13-14, 29-30 (medical appearances considered by SAMC) with 9-2 at 20-21 (medical appearances considered by ALJ)). Accordingly, the ALJ thoroughly considered the support behind the SAMC findings. (Doc. 9-2 at 21).
The record on which Dr. Frey relied was from 2019, beyond the relevant period of June 2014 to June 2018. (Id. at 21; Doc. 9-26 at 23). The ALJ explained that Plaintiff's medical condition in 2019 was “generally similar” to her condition during the relevant period. (Doc. 9-2 at 21). Despite this, the ALJ recognized that the metachronistic bases for Dr. Frey's opinion were “not as persuasive as medical records from within the period.” (Id. at 21). The ALJ here additionally summarized Dr. Frey's opinion, and with one slight misstatement, described Dr. Frey's suggested limitations. Elsewhere throughout her decision, the ALJ detailed Plaintiff's reported symptoms, covering at least thirteen different medical appearances from July 2014 through October 2017. (Doc. 9-2 at 20-21).
The potential effect of this misstatement, which is apparently a scrivener's error, is discussed below.
It is not uncommon for an ALJ to properly find a remote-in-time medical opinion unpersuasive and consequently assesses a more restrictive RFC. Stewart v. Comm'r, No. 9:21-CV-104-MAC, 2023 WL 2607406, at *4 (E.D. Tex. Feb. 27, 2023); Armstrong v. Saul, No. 3:19-CV-00137, 2020 WL 410197, at *5 (S.D. Tex. Jan. 21, 2020); Kenneth M. v. Kijakazi, No. 4:20-CV-01227, 2021 WL 3931057, at *7 (S.D. Tex. Sept. 2, 2021). While Dr. Frey's opinion did not directly concern the relevant period, the ALJ still found that the opinion was still partially persuasive since Plaintiff's contemporary condition was “generally similar” to the one opined upon. Elsewhere in the ALJ's decision, she summarized medical records indicating symptoms which intermittently affected Plaintiff's living and working condition. (Doc. 9-2 at 19, 20, 21 (intermittent weakness in her legs and subsequent falling, joint pain, etc.)). The ALJ therefore did not err in concluding that Dr. Frey's opinion could not be relied upon as an edict. See Armstrong, 2020 WL 410197, at *5 (finding no error where ALJ concluded that an opinion “was too remote to accurately reflect the current state of [the claimant's] limitations”).
Plaintiff furthermore does not explain what limitations or symptoms she had that did not support the SAMC evaluations or Dr. Frey's opinion, or whether the ALJ failed to discuss any particular type of medical evidence beyond the blanket statement that she “rejected” the available opinions. Given the ALJ's extensive discussion of Plaintiff's medical record and its application to the SAMC evaluations and Dr. Frey's opinion, the undersigned is able to meaningfully review the ALJ's explanation regarding the instances of supportability. Because the ALJ's explanation sufficiently addressed the supportability factor, it is supported by substantial evidence.
iii. Other Arguments & Observations
Plaintiff references a plethora of cases purportedly buttressing her claim. The cases to which Plaintiff cites not only apply a pre-2017 standard, but also involve many more factors boding against the ALJ's decision than are present here. For example, the ALJ did not refuse to “credit[ ] ascertainable portions of [the] opinion[].” (Doc. 15 at 11 (quoting Lasher v. Berryhill, No. A-17-CV-464 AWA, 2018 WL 4560215, at *3 (W.D. Tex. Sept. 21, 2018))). Additionally, the ALJ, by finding Plaintiff to be less able than the physicians recommended, has not reached a decision “in contradiction” of an available medical assessment. Nor is Plaintiff alleged to have possessed mental afflictions, or that the ALJ based the RFC upon them. (See Doc. 18 at 6 (citing case discussing the effects of mental impairments on a claimant's RFC)). Plaintiff's cited authorities, therefore, are inapplicable.
In the alternative, the undersigned considers the situation in which the ALJ indeed did reject all available medical opinions. Where there is no medical statement in the record, a court must focus on whether substantial evidence “in the existing record” supports the ALJ's decision. Allen v. Kijakazi, No. 21-30771, 2022 WL 7265517, at *3 (5th Cir. Oct. 12, 2022) (per curiam). Accordingly, a court in that circumstance could determine a claimant's RFC without a medical opinion if substantial evidence would support the determination. Plaintiff only challenges some findings in the RFC which she believes are unsupported by evidence in the record: Plaintiff can “frequently reach, handle, finger, and feel”; and that she “can sustain activity at a sedentary exertional level on a regular and continuing basis.” (Doc. 18 at 3).
To the extent this has not already been addressed above, the undersigned holds that these two refuges are insufficient to sustain her claim. Even if it is assumed that the ALJ “rejected” parts of Dr. Frey's opinion, that does not preclude the ALJ from considering some of its conclusions. See Cuellar v. Saul, No. 5:18-CV-175, 2020 WL 13413198, at *5-6 (S.D. Tex. June 2, 2020). While it is true that the ALJ did not explicitly state the source of her “frequently reach, handle, finger, and feel” limitation, a closer inspection of Dr. Frey's opinion gives insight. Dr. Frey's opinion, which the ALJ considered in-depth in calculating the RFC, in part discusses Plaintiff's frequent or better ability to reach, handle, finger, and feel with each hand. In some places, Plaintiff possessed the ability to “continuously” do such tasks. (See Doc. 9-26 at 24).
The ALJ is not required to delineate specifically each and every piece of evidence supporting each limitation considered in the RFC. Boller v. Comm'r, No. 4:21-CV-01001-SDJ-CAN, 2022 WL 18586837, at *10 (E.D. Tex. Dec. 12, 2022). Therefore, the mere omission of citations to the specific responses in the medical opinion solicited by the ALJ and which exists in the medical record is insufficient to demonstrate a lack of substantial evidence. This is especially true considering the fact that the ALJ clearly and at many points throughout her decision discussed Dr. Frey's findings and the medical records upon which they were based. Because evidence supporting the ALJ's decision exists in an opinion which was thoroughly discussed in the record, and because the relevant portion of the opinion could reasonably lead to the conclusion the ALJ reached, Plaintiff's argument cannot succeed.
It is the duty of the ALJ to resolve conflicts in the evidence. It is not the province of the Court to reweigh the medical evidence or “substitute its judgment for that of the [ALJ].” Behrens, 2022 WL 7353121, at *5. Rather, the Court only “scrutinize[s] the record to determine if [substantial] evidence exists” to support the ALJ's decision. McCullough v. Berryhill, No. SA-18-CV-00128-ESC, 2019 WL 1431124, at *3 (W.D. Tex. Mar. 29, 2019) (citing Haywood v. Sullivan, 888 F.2d 1463, 1466 (5th Cir. 1989)). The undersigned, having done so here, must conclude that the ALJ duly resolved conflicts in the evidence. The ALJ's decision should not be reversed on this ground.
3. Erroneous Reliance Upon Dr. Frey's Opinion
Plaintiff's second argument is rather perplexing. Plaintiff initially states that the ALJ “rejected the opinion of Dr. [] Frey”-an argument the undersigned disagrees with-apparently for having encompassed a period beyond the relevant period of June 2014 to June 2018. Not one page later, Plaintiff exclaims that Dr. Frey's opinion “is insufficient to support the ALJ's conclusion that [she] could have performed sedentary work.” (Doc. 15 at 12, 13). The logical conflict between the two positions is obvious: the ALJ could not have both rejected and relied upon Dr. Frey's opinion. Thus, it is difficult to determine whether Plaintiff is challenging an allegedly improper rejection of Dr. Frey's opinion, or instead an improper reliance on said opinion. If Plaintiff is challenging the former, the undersigned has rejected the underlying premise above. The undersigned turns to the latter potential challenge.
Assuming the ALJ did not in fact reject Dr. Frey's opinion, Plaintiff supposes that Dr. Frey's opinion only concerned a single examination from October 2019, beyond the relevant timeframe ending in 2018, and that therefore, the ALJ's RFC calculation based upon this opinion was erroneous. Specifically, Plaintiff appears to complain that Dr. Frey, whose opinion was solicited by an interrogatory concerning Plaintiff's SSA claims, “was never advised that the period under consideration ended June 30, 2018.” Thus, Plaintiff states, Dr. Frey referred in major part “to the most recent neurological examination as the basis for her opinion.” (Id. at 12).
Defendant contends that, contrary to Plaintiff's belief, the ALJ indeed did note that Dr. Frey's “opinion of limitations began in April 2019 . . ., [which] was beyond the relevant period” ending in June 2018. Although this fact, Defendant maintains, minimized the value of Dr. Frey's opinion, the ALJ nevertheless still discussed the persuasiveness of said opinion. Defendant avers that Dr. Frey was able to consider more than just one examination from 2019 in producing her opinion. (Doc. 17 at 13).
Plaintiff is partially correct in some respects. Plaintiff appears to attribute the mis-dated opinion of Dr. Frey to the ALJ's failure to specify the timeframe end date of June 2018. While it is true that the ALJ requested Dr. Frey's opinion concerning Plaintiff's physical ailments spanning from June 30, 2014, “through present,” which by the release date of Dr. Frey's opinion was mid-2020, the ALJ still did not find Dr. Frey's opinion controlling. (Docs. 9-25 at 74; 9-26 at 27). In fact, the ALJ cited many other portions of Plaintiff's June 2018 and prior medical records in gauging the appropriate value to attribute to Dr. Frey's opinion. (Doc. 9-2 at 21-22). That a metachronistic opinion was in a longitudinal analysis found to only be partially persuasive is a proper result in determining a claimant's RFC. See, e.g., Solnick v. Comm'r, No. 1:18cv388-LG-RHW, 2020 WL 1034625, at *4 (S.D.Miss. Feb. 14, 2020).
Defendant is, however, correct in more important respects. Plaintiff claims that Dr. Frey only opined on a single examination. (Doc. 15 at 13). Dr. Frey's opinion states that the limitations she detected were first discovered in April 2019. (Doc. 9-26 at 27). The ALJ's decision expressly discusses the unseasonable quality of the opinion and notes that it falls outside of the relevant timeframe of June 2014 to June 2018. (Doc. 9-2 at 21). As noted above, the ALJ still considered it, however, concluding that the opinion “is not as persuasive as medical records from [] within the period.” (Id.). Contrasting Dr. Frey's opinion with the evidence in the record, the ALJ further found an inconsistency, but ultimately concluded that the “other opined limitations are largely consistent with the evidence.” (Id. at 21-22).
Dr. Frey's opinion indeed discusses in large part Plaintiff's then-most recent exam from October 2019. This, as Defendant points out, is indicated by Dr. Frey's citation in many areas to Exhibit 20F from the record. (See, e.g., Doc. 9-26 at 24). These citations, along with the ALJ's instruction to examine all of the medical record, lead the undersigned to conclude that Dr. Frey examined, at the very least, the preceding nineteen “F” exhibits. (Id. at 21 (requesting that Dr. Frey examine the “exhibits selected for inclusion in the record of this case”)). These preceding exhibits include Plaintiff's treatment and hospital records from 2014 through 2018, as well as from outside of that range. (See Doc. 9-1 at 3-4 (index of exhibits)). Dr. Frey stated on her interrogatory response that she had “reviewed the evidence” that the ALJ furnished to her. (Doc. 9-26 at 29). Elsewhere, Dr. Frey cited to both Exhibit 20F as well as Exhibit 16F, which are hospital records dated from mid-2014 to mid-2019, in opining that Plaintiff's MS might be established by the evidence. (See Docs. 9-21; 9-26 at 29). The undersigned therefore reasonably infers that Dr. Frey examined medical evidence from not only October 2019, but also evidence from treatments and hospital visits from within the relevant 2014-2018 timeframe. There is, accordingly, no error on this ground.
Lastly, to the extent Plaintiff attempts to blame the ALJ for Dr. Frey's metachronism, the undersigned cannot accept this argument. The interrogatory provided to Dr. Frey informed her of an onset date of June 30, 2014, and requested Dr. Frey to consider Plaintiff's conditions through the “present” date. (Doc. 9-25 at 74). Though it may have been wise for the ALJ to utilize the date last insured as the last terminus for the interrogatory, Dr. Frey was informed elsewhere of the onset date and could have provided a more holistic opinion. (Doc. 9-26 at 21-27 (instructions requiring identification of “particular medical or clinical findings” not limited to any number of findings)). Dr. Frey may have misunderstood the relevant timeframe solicited by the ALJ's interrogatory. But even though the ALJ has a general duty to “develop the facts fully and fairly relating to an applicant's claim for disability benefits,” the ALJ's solicitation of medical opinions is entirely discretionary. Webster v. Kijakazi, 19 F.4th 715, 720 (5th Cir. 2021); See Massengill v. Kijakazi, No. 4:21-cv-278-SDJ-KPJ, 2022 WL 19517053, at *4 (E.D. Tex. Sept. 6, 2022). Plaintiff offers no authority that would tend to show a discretionary-but-incorrect solicitation must be succeeded by a mandatory-and-correct solicitation. See Massengill, 2022 WL 19517053, at *4 (discussing ALJ discretion in obtaining updated medical opinions).
Alternatively, where the record is “replete with medical documents that spanned years,” error will be scarcely found. Webster, 19 F.4th at 720 (quotation marks omitted) (citing Hardman v. Colvin, 820 F.3d 142, 148 (5th Cir. 2016)). The ALJ here considered and discussed several years' worth of Plaintiff's medical records, from 2014 through 2017, from hospital visits to clinic examinations. (Doc. 9-2 at 20-21). The record is certainly replete with Plaintiff's medical records during the relevant period. The fact that the ALJ may have solicited an opinion incorrectly and declined to rely on it as a result does not mean that the RFC is inherently flawed. Plaintiff has otherwise not shown that the ALJ lacked sufficient evidence upon which she could make an informed decision. McKinley v. Kijakazi, No. 5-20-CV-00703-FB-RBF, 2021 WL 3486346, at *3 (W.D. Tex. Aug. 9, 2021). Likewise, Plaintiff does not cite to any authority which would show that the solicitation of a medical opinion with a potentially ambiguous timeframe requires remand.
The ALJ also considered various aspects of Dr. Frey's opinion. That she did not find it wholly persuasive is not inherently an improper conclusion. Plaintiff does not cite to any authority standing for the proposition that any weight, even if minimal, given to a medical opinion that encapsulates a period outside the relevant timeframe is inordinate weight. See Steven C. v. Kijakazi, No. 4:21-cv-1066, 2022 WL 4490174, at *1 n.4 (S.D. Tex. Sept. 27, 2022) (considering evidence outside the relevant time period “to the extent it demonstrates whether Plaintiff was under a disability during the relevant time frame”). Additionally, it is not clear that ALJ is required to seek out a revised medical opinion if a solicited opinion addresses the incorrect timeframe. Plaintiff's argument on this ground is meritless.
Plaintiff has not met her burden of proving that the ALJ erroneously relied on Dr. Frey's opinion. Therefore, the ALJ's decision should not be reversed on this ground.
4. Failure to Consider Plaintiff's Functional Limitations
Plaintiff's last argument concerns the ALJ's purported failure to consider certain components of Dr. Frey's opinion that indicate Plaintiff's limitations on single-session standing and walking. Specifically, Plaintiff asserts that the ALJ failed to explain the effect of Dr. Frey's “additional limitation of standing no more than 30 minutes at a time and walking no more than 15 minutes at a time.” This failure “to consider the full extent of [Plaintiff's] functional limitations [as] reported by Dr. Frey,” Plaintiff contends, casts a deficiency cloud over the RFC determination. (Doc. 15 at 14).
Defendant recites again the fact that the ALJ did indeed consider Dr. Frey's opinion. Moreover, Defendant states, the ALJ “was not required to adopt every limitation” proposed by Dr. Frey. Lastly, Defendant exclaims that Plaintiff fails to cite to any record supporting her claim that “she could only walk for 15 minutes . . . and stand for only 30 minutes” in a single session. (Doc. 17 at 14).
The undersigned is of the opinion that the ALJ did not substantially err in considering Plaintiff's functional limitations. Plaintiff notes correctly in a footnote that Dr. Frey opined that Plaintiff could lift up to 20 pounds occasionally. (Doc. 9-26 at 22 n.3). The ALJ, however, stated in her decision that Dr. Frey opined that Plaintiff could “lift . . . up to ten pounds occasionally.” (Doc. 9-2 at 21). This technically is an error. As will be discussed below, however, this error is harmless.
Plaintiff's other arguments are equally as inauspicious. Plaintiff's main qualm is that the ALJ, in reaching the sedentary work RFC, erroneously omitted certain proposed limitations. The ALJ did find that Plaintiff was able to “stand and walk [for] up to two hours” and “sit [for up to] eight hours per workday.” (Id.). As discussed above in the context of Plaintiff's other argument, Dr. Frey's opinion concerns in major part her 2019 examination, which took place beyond the undisputed relevant period. Plaintiff does not point to any medical records other than Dr. Frey's opinion which would support a finding that, during the relevant period, she possessed these additional standing and walking limitations. Plaintiff has not met her burden in this regard.
Even if she had pointed to such records, Plaintiff's assertions wholly misconstrue the rules for determining a claimant's RFC. Since the 2017 amendments, the ALJ is not required to consider and accept every limitation suggested by every medical opinion. Watts v. Kijakazi, No. 21-2044, 2022 WL 18109797, at *6 (E.D. La. Nov. 18, 2022). The ALJ, therefore, is permitted to decline to accept a given limitation if it falls outside of the relevant timeframe or is otherwise inconsistent with the medical evidence. See Kenneth M. v. Kijakazi, No. 4:20-CV-01227, 2021 WL 3931057, at *6 (S.D. Tex. Sept. 2, 2021). The ALJ here did just that: she found that Dr. Frey's 2019 medical records-based opinion was not fully persuasive. In limiting the opinion's persuasiveness due to its untimely character, the ALJ fulfilled her duty of explaining only the medical opinion as a whole, and not every minute limitation or opinion. See Boller, 2022 WL 18586837, at *10; see also Paul B. v. Kijakazi, No. 6:20-cv-00078, 2022 WL 989242, at *4 (W.D. Va. Mar. 31, 2022) (“[T]he ALJ is permitted . . . to pass judgment on the persuasiveness of a medical opinion as a whole-he or she need not address each and every medical conclusion contained in a physician's multi-part finding.”). Therefore, the ALJ was within her discretion to decline to adopt Dr. Frey's standing and walking limitations. Plaintiff's last argument fails accordingly.
All of Plaintiff's arguments are without merit. The undersigned concludes that the challenged decisions of the ALJ are supported by substantial evidence. Accordingly, the undersigned RECOMMENDS that the decision of the Commissioner be AFFIRMED.
C. Harmless Error
Because the undersigned has concluded that Plaintiff has not demonstrated that the ALJ rejected any medical opinion, that the challenged portions of the ALJ's decision were not supported by substantial evidence, or that the ALJ committed reversible error, the Court's inquiry should terminate in favor of Defendant. However, in the event the Court finds that the ALJ erred, the undersigned will address whether any alleged error was harmful. See Audler v. Astrue, 501 F.3d 446, 448 (5th Cir. 2007).
When the ALJ proceeds past step two, such as to the RFC determination between steps three and four, and commits error, “remand is warranted only if the ALJ's error was harmful.” Miller v. Kijakazi, No. 22-60541, 2023 WL 234773, at *3 (5th Cir. Jan. 18, 2023) (per curiam). Harmful error exists in the persuasiveness context where further explanation by the ALJ in considering then-rejected or -discounted medical opinions would have led the ALJ to adopt the offered recommendations. See id. at *4. In other words, an error is harmless “when it is inconceivable that a different administrative conclusion would have been reached even if the ALJ did not err.” Chavarria v. Kijakazi, No. EP-22-CV-00407-KC-RFC, 2023 WL 3984857, at *6 (W.D. Tex. June 13, 2023) (citing Keel v. Saul, 986 F.3d 551, 556 (5th Cir. 2021)). The claimant possesses the burden to demonstrate prejudice or harm resulting from any error. Jones v. Astrue, 691 F.3d 730, 734-35 (5th Cir. 2012).
The undersigned identifies three potential sources of ALJ error as asserted by Plaintiff: (1) the finding that Plaintiff possessed an additional limitation, the use of a cane, which led to the conclusion that she can only perform sedentary work; (2) the “rejection” of Dr. Frey's medical opinion; and (3) the failure to consider Plaintiff's standing and walking limitations as referenced by Dr. Frey. (Doc. 18 at 8). Defendant claims that Plaintiff has not demonstrated that any error is harmful because the ALJ eventually concluded that Plaintiff required additional limitations beyond those suggested by the SAMCs and Dr. Frey. (Doc. 17 at 11-15).
The undersigned agrees with Defendant. It is undisputed that the ALJ found that Plaintiff required the use of a cane. Even if the Court finds that the ALJ “rejected” Dr. Frey's opinion and should have considered Plaintiff's standing and walking limitations, the ALJ still concluded that Plaintiff could only perform sedentary work, unlike the light work suggested by the SAMCs and Dr. Frey. Plaintiff does not contend that the recommendations of the SAMCs and Dr. Frey would have indicated she would be qualified for more limited sedentary work or a disability. In fact, the SAMCs themselves concluded that Plaintiff was “not disabled.” (Docs. 9-2 at 15; 9-3 at 30). As already discussed throughout this Report and Recommendation, it is difficult to discern how a finding that Plaintiff was able to, essentially, perform fewer tasks than was suggested in the available medical findings and opinions would be prejudicial. See Myers v. Saul, No. SA-20-CV-00445-XR, 2021 WL 4025993, at *8 (W.D. Tex. Sept. 3, 2021); Harkins v. Comm'r, No. 6:05cv136, 2008 WL 2387755, at *5-6 (E.D. Tex. June 9, 2008) (finding no harm where plaintiff did not meet burden of demonstrating that more restrictive RFC was erroneous); see also Symphonie A. v. Kijakazi, No. 21-CV-75F, 2023 WL 235503, at *5 (W.D.N.Y. Jan. 18, 2023) (finding harmless error where “the ALJ's finding is more restrictive than the medical record supports”); James H. v. Kijakazi, No. BPG-20-3098, 2022 WL 1714849, at *2 (D. Md. Mar. 16, 2022) (“There is no possibility of prejudice because plaintiff did not, and cannot, demonstrate how this RFC, which was more restrictive than [the medical expert's] opined limitations, caused him harm.”). Plaintiff, other than stating that the VE gave a response to a deficient RFC-based question which therefore did not definitively establish the existence of alternative work, does not indicate that the sedentary jobs suggested by the VE cannot be performed by her but that other positions can. (Doc. 15 at 15). Plaintiff's briefings are also devoid of assertions that no positions at all would exist when considering the walking and standing limitations. Plaintiff therefore makes no convincing prejudice argument.
The VE suggested that Plaintiff could perform the requirements of such occupations as document scanner, table worker, and telephone solicitor. (Doc. 9-2 at 23, 57).
Plaintiff has not met her burden of demonstrating prejudice or harm from any supposed ALJ error. Accordingly, the undersigned concludes that reversal is not warranted.
IV. Recommendation
For the reasons stated above, the undersigned RECOMMENDS that the decision of the Commissioner be AFFIRMED.
Instructions for Service and Right to Appeal/Object
In the event that a party has not been served by the Clerk with this Report and Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return receipt requested. Pursuant to 28 U.S.C. § 636(b), any party who desires to object to this report must serve and file written objections within fourteen (14) days after being served with a copy unless the time period is modified by the District Judge. A party filing objections must specifically identify those findings, conclusions, or recommendations to which objections are being made; the District Judge need not consider frivolous, conclusive, or general objections. Such party shall file the objections with the Clerk of the Court and serve the objections on the U.S. Magistrate Judge and on all other parties. A party's failure to file such objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the District Judge. Additionally, a party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report within fourteen (14) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Judge. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).