Opinion
SA-23-CV-00299-XR
02-01-2024
JACK B CUNNINGHAM, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT & RECOMMENDATION
ELIZABETH S. ("BETSY") CHESTNEY UNITED STATES MAGISTRATE JUDGE
To the Honorable United States District Judge Xavier Rodriguez:
This Report and Recommendation concerns Mr. Jack Cunningham's request for review of the administrative denial of his applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (SSI) under Titles II and XVI of the Social Security Act (“the Act”), respectively. 42 U.S.C. §§ 405(g), 1383(c)(3). The undersigned held a hearing on the issues raised in this appeal on September 29, 2023, at which counsel for both parties appeared. After considering Mr. Cunningham's Original Brief [#11], Defendant's Brief in Support of the Commissioner's Decision [#12], Mr. Cunningham's Reply Brief [#13], the transcript (“Tr.”) of the Social Security Administration (“SSA”) proceedings [#6], the other pleadings on file, the applicable case authority and relevant statutory and regulatory provisions, the arguments of counsel at the hearing, and the entire record in this matter, the undersigned concludes that the Commissioner did not commit any reversible error in the underlying administrative proceedings and that substantial evidence supports the Commissioner's decision denying DIB and SSI. It is therefore recommended that the Commissioner's decision that Mr. Cunningham is not disabled be AFFIRMED.
I. Jurisdiction
This Court has jurisdiction to review a decision of the Social Security Administration pursuant to 42 U.S.C. § 405(g). The undersigned has authority to enter this recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
II. Legal Standard
In determining if a claimant is disabled, the Commissioner uses a sequential, five-step approach, which considers whether: (1) the claimant engaged in substantial gainful activity during the relevant period, (2) the claimant had a medically determinable impairment during the relevant period that is severe, (3) the impairment meets the severity of an impairment enumerated in the relevant regulations, (4) the impairment prevented the claimant from performing past relevant work during the relevant period, and (5) the impairment prevented him from doing any relevant work during the relevant period. Garcia v. Berryhill, 880 F.3d 700, 704 (5th Cir. 2018). If the claimant gets past the first four stages, then the burden shifts to the Commissioner on the fifth step to prove the claimant's employability. Id. A finding that a claimant is not disabled at any point in the five-step review is conclusive and terminates the analysis. Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987); see also 20 C.F.R. § 404.1520(a)(4).
In reviewing the denial of benefits, the Court is limited to a determination of whether the Commissioner, through the administrative law judge's (“ALJ's”) decision, applied the proper legal standards and whether the Commissioner's decision is supported by substantial evidence. Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995) (per curiam); 42 U.S.C. §§ 405(g), 1383(c)(3). “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.” Villa v. Sullivan, 895 F.2d 1019, 1021-22 (5th Cir. 1990) (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)). The Court may not reweigh the evidence or substitute its judgment for that of the Commissioner. Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000). Conflicts in the evidence and credibility assessments are for the Commissioner, not the court, to resolve. Id. While substantial deference is afforded the Commissioner's factual findings, the Commissioner's legal conclusions, and claims of procedural error, are reviewed de novo. See Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994).
In this case, because the Appeals Council declined to review the ALJ's decision, the decision of the ALJ constitutes the final decision of the Commissioner, and the ALJ's factual findings and legal conclusions are imputed to the Commissioner. (Tr. 1-7); see Higginbotham v. Barnhart, 405 F.3d 332, 336 (5th Cir. 2005); Harris v. Apfel, 209 F.3d 413, 414 (5th Cir. 2000).
III. Factual Background
Mr. Cunningham filed his application for DIB on December 28, 2020. (Tr. 31, 216.) Mr. Cunningham also filed an application for SSI on December 15, 2020. (Tr. 31, 198.) In both applications, the alleged onset date of disability was June 1, 2019. (Tr. 379, 381.) At the alleged disability onset date, Mr. Cunningham was 43 years old. (Tr. 197, 215, 379.) Mr. Cunningham is married and has three children. (Tr. 379, 380.) Mr. Cunningham's application alleges that he is disabled due to the following conditions: herniated L5, sprained hip, and severe chronic pain. (Tr. 38, 379, 381, 416.) Notably, he did not allege intellectual disability in his application. (Tr. 198, 216, 416.) His claims for disability and supplemental security income were initially denied on March 19, 2021. (Tr. 197-214, 215-232, 233-34.) They were denied again upon reconsideration on November 16, 2021. (Tr. 235-36, 237-46, 247-256.)
The ALJ held a hearing on July 29, 2022, and issued an unfavorable decision on September 26, 2022. (Tr. 28-51, 139-170.) At step one, the ALJ found that Mr. Cunningham meets the insured status requirements of the SSA through December 31, 2020, and has not engaged in substantial gainful activity since June 1, 2019, the alleged onset date. (Tr. 34.) At step two, the ALJ found that Mr. Cunningham has the following severe impairments: lumbar radiculopathy, radiculitis, obesity, and adjustment disorder with mixed and depressed mood. (Tr. 34.) The ALJ found Mr. Cunningham's alleged intellectual disability was not a medically determinable impairment. (Tr. 35.) At step three, the ALJ found that Mr. Cunningham does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1, so as to be presumptively disabled. (Tr. 35-38.)
The ALJ determined that Mr. Cunningham has the residual functional capacity (“RFC”) to perform light work, as defined in 20 C.F.R. 404.1567(b) and 416.967(b), except Mr. Cunningham could:
occasionally balance, stoop, kneel, and crouch, but should never crawl; could occasionally climb ramps or stairs, but should never climb ladders, ropes, or scaffolds; should avoid exposure to hazards such as moving machinery or unprotected heights; should have no exposure to vibrations; could understand, remember, and carry out simple instructions and tasks; and the claimant could use judgment to make simple work-related decisions.(Tr. 38-43.)
At step four, the ALJ determined that Mr. Cunningham is unable to perform his past relevant work as a maintenance repairer. (Tr. 43.) At step five, the ALJ found that, considering Mr. Cunningham's age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that the Mr. Cunningham can perform, such as price tagger, photocopy machine operator, and office cleaner. (Tr. 44-45.) The ALJ therefore found Mr. Cunningham not disabled. (Tr. 45.) The Appeals Council denied the request for review on January 12, 2023. (Tr. 1-7.)
IV. Analysis
Mr. Cunningham raises three points of error in this appeal. Mr. Cunningham argues that the ALJ's decision is not supported by substantial evidence because: (1) the ALJ failed to consider Mr. Cunningham's intellectual disability in determining Mr. Cunningham's RFC; (2) the ALJ improperly interposed her own medical judgment for all of Mr. Cunningham's treating physicians; and (3) the ALJ's RFC determination is inconsistent with the record because a functional capacity evaluation found that Mr. Cunningham has the maximum ability to perform at no more than the sedentary exertional level. None of these arguments has merit.
The ALJ's failure to consider Mr. Cunningham's alleged intellectual disability in determining Mr. Cunningham's RFC is not reversible error because even if ALJ should have concluded that it was a medically determinable impairment, that error is harmless because the ALJ continued to the next steps. Additionally, the ALJ did not improperly interpose her own medical judgment; she properly applied the governing rules to the evidence and articulated why she did not assign weight to certain medical source statement opinions, explaining where they were not supported or consistent. Finally, the functional capacity evaluation Mr. Cunningham highlights contains conclusions about Mr. Cunningham's functional ability that are reserved for the Commissioner, and the ALJ was not required to provide an analysis of that type of evaluation.
A. The ALJ did not err by failing to consider intellectual disability in the RFC, and if she did err, it was harmless.
Mr. Cunningham contends that the ALJ erred in failing to consider Mr. Cunningham's intellectual disability in determining his residual functional capacity. But the ALJ was not required to consider the alleged intellectual disability in the RFC, as she concluded it was not a medically determinable impairment. (Tr. 35.) And even if the ALJ erred in not deeming Mr. Cunningham to have the medically determinable impairment of intellectual disability, any such error was harmless.
Not a medically determinable impairment.
The ALJ was not required to consider Mr. Cunningham's alleged intellectual disability in the RFC because, at step two, the ALJ had determined the intellectual disability was not a medically determinable impairment. (Tr. 35.) If an impairment has not been established as a medically determinable impairment, an ALJ is not required to consider it in determining the RFC. 42 U.S.C. § 423(d)(1)(A) (defining “disability” to mean “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment”) (emphasis added); Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994) (citing the same); 20 C.F.R. §§ 404.1521, 416.921; SSR 96-8p (“The RFC assessment considers only functional limitations and restrictions that result from an individual's medically determinable impairment or combination of impairments, including the impact of any related symptoms.”).
Harmless error.
Further, even if the ALJ did err in failing to find that Mr. Cunningham had a medically determinable impairment of intellectual disability, any error was harmless. Not all errors warrant remand. Frank v. Barnhart, 326 F.3d 618, 622 (5th Cir. 2003) (per curiam); see Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988) (“This court will not vacate a judgment unless the substantial rights of a party have been affected.”). An error is harmless where it is “inconceivable” that a different administrative conclusion would have been reached absent the error. Frank v. Barnhart, 326 F.3d at 622.
Importantly, the ALJ did not stop at step two, but rather found other medically determinable impairments (including mental impairments) and proceeded through a full step-five analysis. The ALJ undertook a Paragraph B analysis in analyzing Mr. Cunningham's medically determinable mental impairments of adjustment disorder with mixed and depressed mood. (Tr. 34, 36-38.) Based on the limitations the ALJ found in undertaking that analysis, the ALJ limited the Mr. Cunningham's residual functional capacity to “understand[ing], remember[ing], and carry[ing] out simple instructions and tasks,” and using judgment to make “simple work-related decisions.” (Tr. 38.) In other words, the ALJ incorporated significant limitations into the RFC consistent with lower intellectual ability. Thus, any error was harmless. See Wetzel v. Berryhill, No. 17-cv-364, 2018 WL 4664139, at *8-9 (W.D. Tex. Sept. 28, 2018) (finding failure to categorize an impairment as medically determinable harmless error because the plaintiff had not shown that potential impairment, even if determined to be severe, would not have been subsumed into existent RFC analysis).
Notably, in a prior administrative decision finding the plaintiff not disabled, an ALJ who at step two found Plaintiff to have a severe impairment of intellectual disability assessed limitations in the RFC consistent with the limitations here. Cmr Br., at 7-8; (Tr. 38, 174-77, 180) (limiting the plaintiff in the prior administrative decision to “simple tasks” and noting in that RFC that “he would remain attentive and responsive in a work setting, and could carry out normal work assignments satisfactorily”).
It should also be noted, as the state medical consultant noted, that Mr. Cunningham did not include intellectual disability on his application. In addition, as the ALJ noted, Mr. Cunningham worked in a skilled job until he was injured. (Tr. 34-35, 417.) If Mr. Cunningham was able to perform skilled work for nineteen years, the ALJ could reasonably conclude that any mental impairments, including any alleged intellectual disability, from which Mr. Cunningham suffers did not require more significant mental restrictions that the ALJ ultimately imposed. (Tr. 417, 424.)
B. The ALJ properly weighed the treating physician's medical source statements and was not required to wholly adopt those opinions.
Contrary to Plaintiff's arguments, the ALJ evaluated the medical opinions in accordance with the requirements of the current rules. The relative weight to be given to the evidence contained in the record is within the ALJ's discretion. Chambliss v. Massanari, 269 F.3d 520, 523 & n.1 (5th Cir. 2001) (per curiam). The question for the reviewing court is not whether another ALJ might have reached a different conclusion based on the evidence in the administrative record, but whether there is substantial evidence to support the conclusion the ALJ did reach. See Newton, 209 F.3d at 452. “A finding of no substantial evidence is appropriate only if no credible evidentiary choices or medical findings support the decision.” Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000).
Under the rule that governs the RFC determinations, the ALJ is to consider all medical opinions and prior administrative medical findings using specific factors outlined in the rule, the most important of which are “supportability” and “consistency.” 20 C.F.R. § 404.1520c(b)(2). Other factors include the medical provider's treatment relationship with the claimant, the provider's specialization, and his or her familiarity with other evidence used to support the claim. Id. at § 404.1520c(c). The ALJ must articulate how persuasive she finds each of the opinions in the record and explain her conclusions with regard to the supportability and consistency factors. Id. at § 404.1520c(b)(2). The ALJ may articulate the consideration of the other factors, but is not required to do so, unless the ALJ finds that “two or more medical opinions or prior administrative medical findings about the same issue are both equally well-supported . . . and consistent with the record . . . but are not exactly the same.” Id. at § 404.1520c(b)(3). This exception is not at issue here.
As required by the rule, the ALJ in this case discussed the supportability and consistency factors. (Tr. 42-43.) The ALJ considered the medical source statements and found them to be not sufficiently supported by the evidence in the record and also inconsistent with other evidence. (Tr. 42.)
The ALJ made specific findings regarding the supportability of the conclusions of Dr. Beltran, Dr. Owusu, and Dr. Kempf. The ALJ stated that she found Dr. Beltran's opinion that the claimant could sit, stand, and/or walk for no more than 30 minutes unsupported because the claimant also indicated that “treatment, exercise, rest, and medication alleviated his pain.” (Tr. 42.) The ALJ further stated that she found Dr. Owusu's opinion that the claimant could sit, stand, and/or walk for only an hour or less and that he required two canes for walking not supported because there was no mention of an assistive device in the treatment records. (Tr. 42.) Finally, the ALJ explained that she found Dr. Kempf's opinion that the claimant could sit, stand, and/or walk for less than one hour as well as upper extremity movement restrictions not supported because there was no mention of an assistive device in the treatment records. (Tr. 43.)
With regards to consistency, the ALJ explained that she found all three opinions inconsistent with a January 2021 MRI which found that the Mr. Cunningham's lumbar spine showed “only mild broad disc bulge at ¶ 4-L5 with a left paracentral component causing only mild left neural foraminal narrowing and early left subarticular recess narrowing.” (Tr. 42, 692.) Moreover, the ALJ found the opinions of state medical consultants, Dr. Ligon and Dr. Le, persuasive. The ALJ noted those doctors had examined the entire record and provided an opinion-namely, that the claimant could work at the light exertional level-which was consistent with the evidence as a whole, and in particular, the 2021 MRI. (Tr. 42.)
Just because an ALJ rejects a medical opinion of record does not mean that she is improperly substituting her lay opinion for that of medical professionals. “[T]he determination of residual functional capacity is the sole responsibility of the ALJ.” Taylor v. Astrue, 706 F.3d 600, 602-03 (5th Cir. 2012). What Mr. Cunningham “characterizes as the ALJ substituting [her] opinion is actually the ALJ properly interpreting the medical evidence to determine his capacity for work.” Id. at 603. This is not a case where the ALJ failed to articulate a reason for her rejection of a medical opinion, failed to build a “logical bridge” between the evidence and her conclusion, or in which the Commissioner is attempting to advance a post-hoc rationalization for the ALJ's decision. See Price v. Astrue, 401 Fed. App'x 985, 986 (5th Cir. 2010) (per curiam). Here, the ALJ discussed the supportability and consistency factors, and concluded that the opinions of Dr. Beltran, Dr. Owusu, and Dr. Kempf were not supported and consistent with the record as a whole, but that the opinions of Dr. Ligon and Dr. Le were.
Finally, insofar as Mr. Cunningham is arguing that the ALJ was required to wholly adopt a medical opinion in the record in fashioning the RFC, this is wrong. Again, the ALJ bears the responsibility to evaluate the medical opinions of record for supportability and consistency, to consider all of the evidence in the record, and to determine the claimant's RFC. The ALJ acted within her discretion to evaluate the evidence and conclude that Dr. Beltran, Dr. Owusu, and Dr. Kempf's opinions were not supported by examination findings and not consistent with other evidence in the record, such as the 2021 MRI. The record as a whole provides substantial evidence for this conclusion.
C. The ALJ was not required to explicitly analyze the functional capacity evaluation.
Mr. Cunningham argues that remand is required because the ALJ failed to properly consider findings of a functional capacity evaluation in determining that Mr. Cunningham can perform light work. Mr. Cunningham argues furthermore that the ALJ was required to demonstrate not only that Mr. Cunningham could obtain work, but that he could maintain it. Pl. Br., at 11-12.
“Worker's Clinic Functional Strength, Movement and Industrial Tests.” (Tr. 695.)
The ALJ was not required to analyze this evaluation in explicit terms. According to the relevant regulations, “[s]tatements about what your residual functional capacity is using [the Social Security Administration's] programmatic terms about the functional exertional levels” are “neither valuable nor persuasive,” and thus that no analysis of such evidence is provided. 20 § C.F.R. 404.1520b(c)(3)(v); 20 C.F.R. § 416.920b(c)(3)(vi); see Miller v. Kijakazi, No. 22-60541, 2023 WL 234773, at *2-3 (5th Cir. Jan. 18, 2023) (per curiam) (citing to 20 C.F.R. § 404.1520b(c) and noting that an ALJ is “specifically relieved from providing any analysis about how such evidence was considered”). Here, the portion of the evaluation to which the Mr. Cunningham points is that which found that the Mr. Cunningham retained the “functional ability to perform only sedentary work.” Pl. Br., at 11; (Tr. 695.) Such a determination is reserved to the Commissioner, and thus, the ALJ was not required to provide an analysis of this evaluation.
Mr. Cunningham also cites Watson v. Barnhart, 288 F.3d 212 (5th Cir. 2002), for the proposition that an ALJ is required to determine not only whether a claimant may obtain employment, but whether they can maintain it. Pl. Br., at 12. However, the Fifth Circuit has stated that “nothing in Watson suggests that the ALJ must make a specific finding regarding the claimant's ability to maintain employment in every case." Frank v. Barnhart, 326 F.3d at 619. Rather, “Watson requires a situation in which, by its nature, the claimant's physical ailment waxes and wanes in its manifestation of disabling symptoms.” Id. The court added that “[u]sually, the issue of whether the claimant can maintain employment for a significant period of time will be subsumed in the analysis regarding the claimant's ability to obtain employment.” Id. Additionally, "[t]estimony of a [Vocational Expert] is generally viewed as substantial evidence upon which an ALJ may rely." Traywick v. Comm'r of Soc. Sec., 1:08cv62-SAA, 2009 WL 2181468, at *4 (N.D. Miss. July 22, 2009) (citing Vaugn v. Shalala, 58 F.3d 129 (5th Cir. 1995)).
Here, Mr. Cunningham has not provided evidence that his impairments wax and wane such that a finding on the ability to maintain employment would be required. Additionally, the ALJ inquired as to various hypotheticals with varying degrees of limitation with the Vocational Expert (“VE”). (Tr. 163-66.) The ALJ asked about both light and sedentary exertional levels, as well as a variety of potential limitations. (Tr. 163-66.) Mr. Cunningham's attorney representative additionally had the opportunity to, and did, examine the VE. (Tr. 167-69.) The VE testified that at the light and sedentary levels, there were jobs available in the national economy which Mr. Cunningham could perform based on hypotheticals posed by the ALJ. The ALJ's examination reflects that she weighed the evidence rather than making a cursory assessment.
Finally, as stated above, it is in the province of the ALJ to weigh the evidence. The Court may not reweigh the evidence or substitute its judgment for that of the ALJ. Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000). Conflicts in the evidence and credibility assessments are for the ALJ, not the court, to resolve. Id.
V. Conclusion
Based on the foregoing, the undersigned concludes that the that the ALJ did not commit any reversible legal error in the underlying administrative proceedings and the ALJ's decision that Mr. Cunningham could perform light work is supported by substantial evidence in the record. Accordingly, the undersigned recommends that the ALJ's decision finding Mr. Cunningham not disabled be AFFIRMED.
VI. Instructions for Service and Notice of Right to Object/Appeal.
The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested. Written objections to this report and recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The party shall file the objections with the clerk of the court and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusive or general objections. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions and recommendations contained in this report and recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).