Opinion
EP-22-CV-00145-KC-ATB
05-17-2023
CINDY ELIZONDO, 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 Cindy Elizondo, the claimant at the administrative level, appeals from the final decision of Defendant Acting Commissioner of the Social Security Administration (“Commissioner”) denying her claim for supplemental security income benefits under Title XVI of the Social Security Act, 42 U.S.C. § 1382, et seq. Pursuant to 28 U.S.C. § 636(c), Appendix C of this District's Local Rules, and the Honorable District Judge Kathleen Cardone'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-Regarding-Civil-Case-Assignments.pdf.
I. BACKGROUND
On March 11, 2020, Elizondo applied for supplemental security income benefits. At the time, she was forty-five years old. With one exception, Elizondo did not work at any job within fifteen years prior to her application: in 2007, she worked as a home provider for a home care agency for approximately a month. In June 2007, she stopped working to take care of her kids.Previously, between 2001 and 2004, she worked as a cashier, factory worker, and waitress.Elizondo has an 11th grade education.
Tr. of Admin. R. [hereinafter, cited as “Tr.”] at 193.
Id. at 204, 215, 228.
Id. at 227.
Id. at 215, 228.
Id. at 69.
Initially, Elizondo alleged disability beginning on October 7, 2019, but later amended her alleged disability onset date to March 11, 2020. Her claim was denied initially on April 17, 2020, and upon reconsideration on October 14, 2020. Thereafter, she requested a hearing by an administrative law judge (ALJ). On May 13, 2021, a telephonic hearing was held by ALJ Robert M. McPhail; at the hearing, Elizondo was represented by her attorney, and a vocational expert testified. On June 29, 2021, the ALJ denied her application in a written decision, finding that she was not disabled. On September 14, 2021, Elizondo appealed to the Social Security Appeals Council for review of the ALJ's decision. On March 1, 2022, the Appeals Council concluded that there existed no basis for changing the ALJ's decision. The ALJ's decision thus became the final decision of the Commissioner.
Id. at 66.
Id. at 122, 135.
Id. at 37.
Id. at 4.
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 27, 2022, Elizondo brought this action seeking judicial review of the Commissioner's final decision pursuant to 42 U.S.C. § 405(g). On November 28, 2022, Elizondo filed her opening brief requesting that the Commissioner's decision be vacated and her claim for disability benefits be remanded for further administrative proceedings. Pl.'s Br. at 12, ECF No. 15. On December 22, 2022, the Commissioner filed a response brief in support of his decision. Br. in Support of Comm'r's Decision [hereinafter, cited as “Def.'s Resp.”], ECF No. 19. Elizondo did not file a reply brief.
II. ALJ'S FINDINGS AND CONCLUSIONS
Eligibility for supplemental security income payments requires that the claimant be disabled. 42 U.S.C. § 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. § 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 [she] can still do despite . . . 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 Elizondo's claims for disability benefits pursuant to the abovementioned five-step sequential evaluation process. At step one, the ALJ found that Elizondo did not engage in substantial gainful activity since March 11, 2020 (her alleged disability onset date). Tr. at 29. At step two, the ALJ determined that Elizondo's anxiety disorder and bipolar disorder were sever impairments, but that her physical impairments including obesity, headaches, hyperlipidemia, blurred vision, tremor, insomnia, and constipation were non-severe. Id.
At step three, the ALJ found that Elizondo did not have an impairment or combination of impairments for presumptive disability. Id. at 29. Specifically, the ALJ found that the severity of Elizondo's mental impairments, considered singly and in combination, did not meet or medically equal the criteria of listings 12.04 (depressive, bipolar and related disorders) and 12.06 (anxiety and obsessive-compulsive disorders). Id.; see also 20 C.F.R. § 404, Subpt. P, App. 1, §§ 12.04, 12.06. In making that finding, the ALJ considered whether “Paragraph B” and “Paragraph C” criteria were satisfied but found that they were not. Tr. at 31.
The ALJ appeared to assume that Elizondo met “Paragraph A.”
Next, the ALJ determined that Elizondo retained the RFC to perform a full range of work at all exertional levels but with certain non-exertional limitations. Id. at 31. The ALJ skipped step four, finding that Elizondo had no past relevant work. At step five, the ALJ found that, considering Elizondo's age, education, work experience, and RFC, jobs existed in significant numbers in the national economy that Elizondo could perform, including Construction Worker II (DOT # 869.687-026), Laundry Worker II (DOT # 361.685-018), and Equipment Cleaner (DOT # 599.684-010). Id. at 36-37. The ALJ concluded that Elizondo was not disabled since March 11, 2019 (her alleged disability onset date) through July 29, 2021 (the date of the ALJ's decision)-the relevant time period for her supplemental security income claim. Id. at 37.
See Hamilton-Provost v. Colvin, 605 Fed.Appx. 233, 237 n.5 (5th Cir. 2015) (“The relevant time period for the SSI [(supplemental security income)] claim is [the alleged disability onset date] through . . . []the date of the ALJ's decision[].”).
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
Elizondo assigns two errors to the ALJ's decision: (1) the RFC does not account for any limitations in her ability to “adapt or manage” herself in the workplace (a Paragraph B criterion); and (2) the ALJ's RFC assessment is internally inconsistent. Pl.'s Br. at 15. In addressing these issues, she advances multiple arguments, much of which turns on to what extent and in what ways the ALJ's evaluation of the Paragraph B criteria should have been incorporated in the RFC. Below, the Court addresses each argument in turn.
In evaluating the severity of a claimant's mental impairment at steps two and three of the sequential analysis, ALJs utilize the psychiatric-review technique (PRT) described in 20 C.F.R. § 404.1520a. The PRT requires the ALJs to rate the degree of functional limitations resulting from a mental impairment in four broad functional areas: (1) understand, remember, or apply information; (2) interact with others; (3) concentrate, persist, or maintain pace; and (4) adapt or manage oneself. § 404.1520a(c)(3); Buckwalter v. Acting Comm'r of Soc. Sec., 5 F.4th 1315, 1324-25 (11th Cir. 2021). These four functional areas correspond to the requirements of Paragraph B of the Agency's mental impairment listings; hence they are commonly known as the “Paragraph B” criteria. 20 C.F.R. § 404, Subpt. P, App. 1, § 12.00A(2)(b) (listing the same four areas of mental functioning). In evaluating each area, the regulations call for the use of a five-point scale: “[n]one, mild, moderate, marked, and extreme.” Id. § 404.1520a(c)(4). As relevant here, a “moderate” rating in an area means that the claimant's “functioning in this area independently, appropriately, effectively, and on a sustained basis is fair.” Id. § 404, Subpt. P, App. 1, § 12.00F(2)(c).
See also SSR 96-8p, 1996 WL 374184, at *4 (SSA July 2, 1996) (“The psychiatric review technique described in 20 CFR 404.1520a and 416.920a and summarized on the Psychiatric Review Technique Form (PRTF) requires adjudicators to assess an individual's limitations and restrictions from a mental impairment(s) in categories identified in the “paragraph B” . . . criteria of the adult mental disorders listings.”); Randall v. Astrue, 570 F.3d 651, 658 (5th Cir. 2009).
Effective January 17, 2017, the Social Security Administration promulgated a new set of the broad functional areas as provided in the current versions of § 404.1520a(c)(3) and Paragraph B criteria in 20 C.F.R. § 404, Subpart P, Appendix 1, § 12.00A(2)(b). See Rules & Regulations, Revised Medical Criteria for Evaluating Mental Disorders, 81 Fed.Reg. 66138, 2016 WL 5341732 (SSA Sept. 26, 2016). Under the prior versions of the regulation and Paragraph B, the broad functional areas were: (1) activities of daily living; (2) social functioning; (3) concentration, persistence, or pace; and (4) episodes of decompensation. E.g., 20 C.F.R. § 404.1520a(c)(3) (Nov. 11, 2010); id. § 404, Subpart P, App. 1, § 12.00C (Sept. 29, 2016). There is considerable overlap between the new and old broad functional areas. Gabriel C. v. Comm'r of Soc. Sec., No. 6:18-CV-671 (ATB), 2019 WL 4466983, at *7 & n.7 (N.D.N.Y. Sept. 18, 2019).
The RFC regulations require ALJs to consider, in determining a claimant's mental RFC, limitations in her mental abilities such as the abilities to: “understand[], remember[], and carry[] out instructions, and . . . respond[] appropriately to supervision, co-workers, and work pressures in a work setting.” Id. § 404.1545(c); see also SSR 96-8p, 1996 WL 374184, at *6. While these mental functions considerably “overlap” with the broad functions enumerated in Paragraph B, Vanwinkle v. Astrue, No. 11-CV-1403, 2013 WL 139382, at *12 (C.D. Ill. Jan. 10, 2013); see also Rules & Regulations, Revised Medical Criteria for Evaluating Mental Disorders, 81 Fed.Reg. at 66145 (“[T]he content of the B4 criterion is not new or different from what adjudicators are already accustomed to evaluating and documenting. Our adjudicators already consider a person's ability to respond appropriately to work pressures when they . . . determine the person's residual functional capacity for work activity” (citing 20 C.F.R. § 404.1545(c)), the Agency ruling SSR 96-8p cautions that the PRT findings in the Paragraph B functional areas “are not an RFC assessment,” SSR 96-8p, 1996 WL 374184, at *4.
And courts have held that while the Paragraph B findings are “important” and “relevant” to an ALJ's RFC determination, they do “not necessarily translate to the language used at steps four and five” and “do not require the use of any particular language” in the RFC formulation. Hess v. Comm'r Soc. Sec., 931 F.3d 198, 209 (3d Cir. 2019); see also Hines-Sharp v. Comm'r of Soc. Sec., 511 Fed.Appx. 913, 916 (11th Cir. 2013) (The ALJ need not “intone the magic words concentration, persistence, and pace [in RFC or hypothetical question to a vocational expert] if the ALJ finds based on the PRT that a claimant has limitations in that broad functional area.”); Blackmon v. Comm'r of Soc. Sec., No. CV 20-376-SDD-EWD, 2023 WL 2418361, at *5 & n.44 (M.D. La. Feb. 10, 2023) (“While the ALJ must consider a [claimant's] paragraph B functional limitations when determining the mental RFC, ‘he is not required to incorporate them into his RFC assessment word-for-word.'” (quoting Berry v. Astrue, No. 11-2817, 2013 WL 524331, at *22 (N.D. Tex. Jan. 25, 2013))), report & recommendation adopted, 2023 WL 2416371 (M.D. La. Mar. 8, 2023)); Ernest. A. J. v. Saul, No. 1:18-CV-00194-BU, 2020 WL 6877706, at *16 (N.D. Tex. Oct. 19, 2020) (“‘[T]he regulations do not specifically require the ALJ to find that the limitations found in evaluating the mental impairment must be word-for-word incorporated into the RFC determination.'” (cleaned up) (quoting Patterson v. Astrue, No. 1:08-CV-109-C, 2009 WL 3110205, at *5 (N.D. Tex. Sept. 29, 2009))), report & recommendation adopted, 2020 WL 6873609 (N.D. Tex. Nov. 23, 2020).
Here, at step three, the ALJ evaluated Elizondo's abilities in the Paragraph B functional areas and found that she has moderate limitations in each of the areas. Tr. at 29-31. The ALJ then found that Elizondo had mental RFC as follows: She “can understand, remember, and carryout detailed noncomplex instructions, make associated decisions and concentrate, interact appropriately with others and adequately respond to changes. She can have occasional contact with the public and co-workers, in jobs that do not have a production rate pace such as on an assembly line.” Id. at 31. His RFC assessment, the ALJ wrote, reflects the degree of limitation he found in the Paragraph B mental function analysis. Id.
Turning to Elizondo's specific arguments, she points out that in his Paragraph B analysis, the ALJ noted that she reported a history of anger outbursts, panic attacks and a hospitalization and found that she has a moderate limitation in adapting or managing herself. Pl.'s Br. 11 (citing Tr. at 30). She asserts that “the ALJ did not then proceed to explain . . . why no RFC limitations were needed to account for Plaintiff's anger outbursts or panic attacks.” Id. (emphasis added). In other words, she asserts, the ALJ did not include any limitation in her RFC to account for her anger outbursts or panic attacks. As discussed below, this assertion is incorrect.
In assessing Elizondo's RFC, the ALJ considered her testimony about her anger issues and various medical records which contain her reports of anger issues and panic attacks: throughout his written decision, the ALJ referenced her anger issues at least ten times and panicattack issues at least four times. Tr. at 29, 30, 32-35. Indeed, Elizondo acknowledges that the ALJ's “decision, to its credit, does contain a reasonable exploration of the medical evidence of record and provides some evaluation of Plaintiff's activities and how they may relate to her ability to work.” Pl.'s Br. at 11.
The ALJ's review of the mental RFC assessed by a state agency medical consultant, Sheri L Tomak, Psy.D., suggests that in limiting Elizondo to “occasional contact with the public and co-workers,” the ALJ accounted for her anger issues. The consultant assessed her mental RFC as follows: Despite Elizondo's medically determinable impairment related symptoms, she is “able to understand, remember and carry out detailed (noncomplex) instructions, make associated decisions and concentrate for extended periods, interact appropriately with others and respond to changes adequately.” Tr. at 119. The ALJ found the consultant's assessment “partially persuasive,” but concluded that “[t]he overall objective evidence shows that the claimant is slightly more limited than” the consultant's assessment because, inter alia, “she reports anger outbursts.” Id. at 35. The ALJ, therefore, included, among others, “limitations on social interaction.” Id.
Moreover, at the hearing, after posing an initial hypothetical question, which faithfully incorporated the ALJ's RFC formulation, the ALJ posed a follow-up hypothetical to the vocational expert as follows:
Q Okay. And then one last hypothetical. I want to go back to the first hypothetical, . . . and add to that[,] that occasionally[,] and again, occasionally as defined by the DOT[,] and consistently such a person would not respond appropriately to the public, coworkers or supervisors. Now, I'm trying to cover those anger issues with that last limitation ....[W]ith these limitations, could such a person still perform the three jobs you identified in response to the first hypothetical?
A No, Your Honor.Id. at 92 (emphasis added). This colloquy between the ALJ and the vocational expert further suggests that in incorporating in the RFC the limitation that “[s]he can have occasional contact with the public and co-workers,” the ALJ accounted for Elizondo's anger outbursts. The Court therefore finds that Elizondo's argument-that the ALJ did not include any limitation in her RFC to account for her anger outbursts or panic attacks-is meritless.
Relatedly, Elizondo argues that the RFC does not provide any accommodation for her limitations in the Paragraph B functional area of adapting and managing herself-specifically, any accommodation for her difficulty with regulating her emotions and controlling her behavior. Pl.'s Br. at 10. She does not say exactly what symptoms of her impairments relate to such difficulty, but her brief as a whole suggests that she is referring to her anger issues; as just discussed above, the ALJ accounted for her anger issues in the RFC by, among others, limiting her to occasional contact with co-workers and the public. To expand, Elizondo parses the ALJ's RFC formulation to point out how certain portions of it relate to the other three Paragraph B functional areas and argues that nothing in the RFC formulation relates to the area of adapting and managing oneself. See id. For example, she posits that the RFC's statement that “[s]he can have occasional contact with the public and co-workers” relates to the area of interacting with others. Id. Thus, she posits that this statement does not account for her limitation in adapting and managing herself.
The unstated premise underlying Elizondo's argument is that a statement of limitation in the RFC can account for a claimant's mental limitations in only one Paragraph B functional area, but not in another. She cites no authority or provides no legal basis for that premise. Cf., e.g., Rules & Regulations, Revised Medical Criteria for Evaluating Mental Disorders, 81 Fed.Reg. at 66144 (“We agree that there is ‘overlap' between the abilities to understand, remember, or apply information, and to concentrate, persist, or maintain pace-given the need to pay attention when using both abilities.”).
The area of mental functioning “adapt or mange oneself” “refers to the abilities to regulate emotions, control behavior, and maintain well-being in a work setting.” 20 C.F.R. § 404, Subpt. P, App. 1, § 12.00E(4). Examples include: “Responding to demands; adapting to changes; managing your psychologically based symptoms.” Id. And the area of mental functioning “interact with others” “refers to the abilities to relate to and work with supervisors, co-workers, and the public.” Id. § 404, Subpt. P, App. 1, § 12.00E(2). Examples include: “cooperating with others; . . . handling conflicts with others; . . . responding to requests, suggestions, criticism, correction, and challenges; and keeping social interactions free of excessive irritability, sensitivity, argumentativeness, or suspiciousness.” Id. These examples suggest that there is an overlap between these two functional areas. Indeed, in concluding that Elizondo had moderate limitations in the functional areas of interacting with others and adapting or managing oneself, the ALJ addressed the evidence of Elizondo's anger issues in his discussion of her mental abilities in both areas. Tr. at 30 (“The claimant reports significant anger outbursts that include throwing objects, punching walls and screaming which are triggered by anxiety.” (noting in assessing the “interact with others” functionality)); Id. (“The claimant reports a history of anger outbursts, panic attacks and previous hospitalization.” (noting in assessing the “adapt or manage oneself” functionality)).
Moreover, courts have found that mental RFCs similar to the one assessed by the ALJ here adequately incorporated moderate limitations in the functional area of adapting or managing oneself. E.g., Hyder v. Saul, No. 4:19-CV-00976-O-BP, 2020 WL 5511314, at *4 (N.D. Tex. Sept. 14, 2020) (finding mental RFC limiting claimant to “simple tasks with social restrictions” took into account the claimant's moderate limitations in adapting and managing herself); Holly M. v. Comm'r of Soc. Sec., No. 20-CV-6863-MWP, 2022 WL 2160236, at *6 (W.D.N.Y. June 15, 2022) (finding mental RFC providing that claimant “can understand, retain, and follow simple instructions, and sustain sufficient attention to perform simple, repetitive, and routine tasks . . .; accompanied by occasional interactions with coworkers, supervisors and the public” and that she “has the sufficient capability to respond appropriately to usual work situations and deal with changes in a routine work setting” accommodated her “moderate limitation in the broad category of regulating emotions, controlling behavior, and maintaining well-being”);
Bethany A. v. Comm'r of Soc. Sec., No. 1:20-CV-1267 (WBC), 2022 WL 170405, at *5 (W.D.N.Y. Jan. 18, 2022) (finding ALJ's mental RFC limiting claimant “to simple, routine, repetitive tasks with additional social limitations” is consistent with consultative examiner's opinion that she has moderate limitations in her ability to “regulate emotions, control behavior, and maintain well-being”); see also Meza v. Kijakazi, No. 4:21-CV-01536, 2022 WL 3927825, at *2-*3 (S.D. Tex. Aug. 30, 2022) (finding ALJ's mental RFC limiting claimant to “only occasional contact with supervisors, co-workers, and the general public” was proper, where the claimant had anger-management issues and mild to moderate limitations in interacting with others and adapting or managing himself), report & recommendation adopted, 2022 WL 4349317 (S.D. Tex. Sept. 16, 2022); Horton v. Berryhill, No. CV H-18-3341, 2020 WL 1321820, at *2-*4 (S.D. Tex. Feb. 27, 2020) (finding ALJ's mental RFC limiting claimant to “understanding, remembering, and carrying out tasks requiring no more than 1-2-3 step instructions, free of any fast paced production requirements, and involving only simple work-related decisions, occasional decision-making and changes in the workplace, and occasional interaction with supervisors, coworkers, and the general public (contact with others is incidental to work performed” was supported by substantial evidence, where the claimant had “problems controlling her anger” and had moderate limitations in interacting with others and in adapting or managing oneself), report & recommendation adopted, 2020 WL 1321817 (S.D. Tex. Mar. 19, 2020); Neidig v. Saul, No. CV H-18-839, 2019 WL 4261813, at *1, *10, *16 (S.D. Tex. Aug. 21, 2019) (finding ALJ's mental RFC assessment that claimant “can understand, remember and carry out tasks requiring no more than 1-2-3 step instructions, free of any fast-paced production requirements, involving only simple work-related decisions and, occasional decision making, changes in the work setting and interaction (contact is incidental to work performed) with supervisors, coworkers, and the public” was supported by substantial evidence, where medical evidence revealed that the claimant had “continuing issues of nightmares, irritability, [and] anger” and the ALJ found he had moderate limitations in interacting with others and in adapting or managing oneself). The Court therefore is not persuaded that the RFC assessed by the ALJ here does not provide any accommodation for her limitations in adapting and managing herself.
Next, Elizondo advances three arguments of the form that the ALJ's decision is internally inconsistent. See Khan v. Saul, 855 Fed.Appx. 343, 352 (9th Cir. 2021) (Collins, J. dissenting) (The “highly deferential standard of review . . . is applied against a backdrop of administrative-law principles that require the ALJ to provide an explanation that is internally consistent ....”); Price v. Astrue, 401 Fed.Appx. 985, 986 (5th Cir. 2010) (“The ALJ . . . must build an accurate and logical bridge between the evidence and the final determination.”); Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014) (“The ALJ's depiction of the claimant's disability must be accurate, [and] detailed ....” (internal quotes omitted)); Sneed v. Astrue, No. CIV.A. 1:08-CV-00942, 2009 WL 3448854, at *5 (W.D. La. Oct. 26, 2009) (reversing ALJ's decision of non-disability in part “[b]ecause the decision is internally inconsistent”).
First, Elizondo argues that the ALJ's RFC determination is internally inconsistent because it provides that Elizondo “would have no problems interacting appropriate[ly] with others, yet could only interact with co-workers and the public occasionally.” Pl.'s Br. at 14. Elizondo misreads the RFC. The ALJ determined that she can “interact appropriately with others” but subject to the limitation that she has “occasional contact with the public and coworkers.” Tr. at 31; see also Sandoval v. Berryhill, No. CIV 17-0641 JHR, 2018 WL 3429920, at *7 (D.N.M. July 16, 2018) (“The term ‘occasionally,' when used in a[n] RFC, ‘means that the activity or condition occurs at least once up to one-third of an 8-hour workday.'” (quoting POMS DI 25001.001)). The Court finds no inconsistency in this regard.
Second, Elizondo argues that the ALJ's findings are internally inconsistent because earlier at step three, the ALJ found that she has moderate limitations in her ability to interact with others, but in determining her RFC, the ALJ found that she can “interact appropriately with others.” Pl.'s Br. at 13 (citing Tr. at 31). Plaintiff omits the RFC's statement of quantitative limitation regarding interactions that “[s]he can have occasional contact with the public and coworkers.” Tr. at 31. “While the regulations do not define a precise relationship between the [P]aragraph B mental functional limitations and the RFC, the occasional limitations ascribed to [a] plaintiff [in the RFC] ordinarily would correspond with a finding of moderate-rather than marked-limitations” in a Paragraph B finding. Vargas v. Kijakazi, No. 2:20-CV-01570-JDP (SS), 2023 WL 2655811, at *3 & n.4 (E.D. Cal. Mar. 27, 2023) (collecting illustrative cases); see also Meza, 2022 WL 3927825, at *2-*3, supra; Horton, 2020 WL 1321820, at *2-*4, supra; Neidig, 2019 WL 4261813, at *16, supra. The Court sees no inconsistency between the ALJ's Paragraph B finding in the functional area of interacting with others and his RFC finding.
Finally, pointing out that the ALJ found, in his RFC assessment, that she can have occasional contact with co-workers and the public, Elizondo faults the ALJ for not placing any such durational limitation on her interaction with supervisors. Pl.' Br. at 14. She argues that her interaction with supervisors would be a more significant stressor than interacting with coworkers and that limiting the duration of contact with co-workers and the public does not address her propensity for violent outbursts. Id. She points to the vocational expert's testimony. Id.
As mentioned above, in response to the ALJ's follow-up hypothetical question, the vocational expert testified that a hypothetical person with Elizondo's RFC could not perform any of the three jobs he testified to earlier-i.e., Construction Worker II (DOT # 869.687-026), Laundry Worker II (DOT # 361.685-018), and Equipment Cleaner (DOT # 599.684-010)-if the person had a further limitation that she would not respond appropriately to the public, coworkers or supervisors. Tr. at 92. That the ALJ found, in his RFC assessment, that Elizondo can “interact appropriately with others” and “can have occasional contact with the public and coworkers,” id. at 31, and found that she can perform those jobs with her RFC, Id. at 36, suggests that the ALJ implicitly found that she is not durationally limited in her mental ability to interact with supervisors.
Substantial evidence supports including a durational limitation for interactions with coworkers but not including such a limitation for interactions with supervisors. In his written decision, the ALJ discussed various medical treatment records which contain her subjective complaints, as well as denial, of anger issues generally. Id. at 32-35; see also id. at 306, 1015, 1024, 1082, 1093, 1107. At the hearing, she testified that before she started taking medications, she “had a lot of anger issues,” and a couple of her family members would not deal with her. Id. at 76. She testified that, years ago, when she visited a grocery store, a man (a stranger) called her a “little witch,” and she exploded because she had her kid-daughter with her. Id. at 84-85, 87. On another occasion, one year before her testimony, she had an anger outburst at a supermarket when a store security guard (a stranger) suspected her of stealing merchandise. Id. at 88. In a paper submission at the administrative level, she recounted that many years ago when she worked at a gas station (her employment history shows that she worked as a cashier at a gas station in 2004), she was fired because of problems getting along with a lady (potentially a coworker or customer) who used to bully her and make fun of her. Id. at 215, 244 (responding to the question “Have you ever been fired or laid off from a job because of problems getting along with other people?”). Further, in the same submission, in response to the question “How well do you get along with authority figures? (For example, police, bosses, landlords or teachers.),” she stated that she “tend[s] to stay away from those situations”; she provided no further information. Id. at 244. Based on this evidence, the ALJ could reasonably have concluded that Elizondo is durationally limited in interactions with coworkers and the public, but not in interactions with supervisors. Cf. Bros. v. Comm'r of Soc. Sec., 648 Fed.Appx. 938, 939 (11th Cir. 2016) (holding ALJ “was not required to refer to supervisors when the residual functional capacity assessment . . . included a restriction on [plaintiff's] social interaction in the workplace,” where the ALJ found that the plaintiff can “work only where no production rate or pace is required, can perform only simple routine tasks, and can work where only occasional interaction with the public and coworkers is required” (brackets omitted)).
This submission is a standard-form functional report, in which she responded to a list of questions. She submitted the report around the time she initiated her claim for disability benefits. The ALJ's written decision does not mention this report. The ALJ's written decision though indicates that he reviewed her work history report, another standard-form report that she submitted around the same time. Tr. at 29 (citing Ex. 1E). It therefore can be reasonably inferred that the ALJ also reviewed the functional report. Cf. Castillo v. Barnhart, 151 Fed.Appx. 334, 335 (5th Cir. 2005) (“That the ALJ did not specifically cite each and every piece of medical evidence considered does not establish an actual failure to consider the evidence.”); Rottmann v. Comm'r of Soc. Sec., 817 Fed.Appx. 192, 195-96 (6th Cir. 2020) (“An ALJ can consider all the evidence without directly addressing in his written decision every piece of evidence submitted by a party.” (internal quotes omitted)).
Moreover, despite the superficial appeal of her argument that interactions with supervisors could be a more significant stressor than interactions with co-workers, Elizondo does not direct the Court's attention to any evidence, medical or otherwise, that her anger issues impact her ability to interact with authority figures-separate from her anger issues generally. See Woods v. Kijakazi, 32 F.4th 785, 794 (9th Cir. 2022) (rejecting argument that ALJ failed to include any mental limitations in the RFC, stating that plaintiff “does not identify any particular evidence that the ALJ failed to consider or explain why the record does not support the ALJ's findings regarding her mental functioning”); cf. Verbois v. Berryhill, No. CV 18-629-RLB, 2019 WL 3936444, at *6 (M.D. La. Aug. 20, 2019) (finding that “[t]he evidence of [p]laintiff's difficulties . . . with authority figures was accounted for in the ALJ's RFC assessment, where he was limited to work that is essentially isolated, with no interaction with the general public and co-workers and only occasional interaction with supervisors” (emphasis added)). Elizondo “had a duty to prove a more restrictive RFC, and failed to do so.” Smith v. Berryhill, 740 Fed.Appx. 721, 726 (2d Cir. 2018); see also Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010) (“The claimant has the burden to prove his residual functional capacity.”); Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995) (“The burden of proof lies with the claimant to prove disability under the first four parts of the inquiry.”). The Court therefore finds no error in this regard.
V. CONCLUSION
For the foregoing reasons, IT IS RECOMMENDED that the Commissioner's decision be AFFIRMED.
So ORDERED and SIGNED.
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.