Opinion
EP-22-CV-00133-FM-MAT
08-22-2023
AMY FULLER Plaintiff, v. KILOLO KIJAKAZI, in her official Capacity as Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
MIGUEL A. TORRES UNITED STATES MAGISTRATE JUDGE
Plaintiff Amy Fuller (“Plaintiff”) appeals from a decision of the Commissioner of the Social Security Administration denying her claim for disability insurance benefits (“DIB”) under Title II of the Social Security Act. For the following reasons, the Court recommends that the Commissioner's decision be REMANDED to the Social Security Administration (“SSA”).
I. BACKGROUND & PROCEDURAL HISTORY
Plaintiff is 49 years old and most recently worked as a management assistant at a hospital. (R. 245). On June 9, 2020, she filed an application with the SSA for DIB, alleging disability beginning on December 7, 2019. (R. 15, 72). She initially claimed disabilities in the form of migraines; chronic pain in her hips, neck, and back; arthritis in her middle and lower back; osteoarthritis in both hips; and post-traumatic stress disorder (“PTSD”). (R. 71). On August 3, 2020, Plaintiff's claim was denied, and again upon reconsideration on November 10, 2020. (ECF No. 25, p. 1) (citing R. 70, 84). Administrative Law Judge (“ALJ”) Gordon Momcilovic held a hearing on June 17, 2021, and later issued a decision denying Plaintiff's claim on August 13, 2021. (R. 15, 27). On August 28, 2021, Plaintiff requested review of the ALJ's decision. The SSA's Appeals Council denied her request on February 1, 2022 (R. 1-6), and the ALJ's decision became the final decision of the Commissioner at that time. Plaintiff now seeks judicial review of the decision.
II. DISCUSSION
A. Standard of Review
Judicial review of the Commissioner's decision is limited to a determination of whether (1) the Commissioner's final decision is supported by substantial evidence on the record and (2) the Commissioner applied the proper legal standards. See 42 U.S.C. § 405(g); Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014).
Generally, “[w]here . . . the Secretary has relied on erroneous legal standards in assessing the evidence, he must reconsider that denial.” Leidler v. Sullivan, 885 F.2d 291, 294 (5th Cir. 1989). However, even if the ALJ commits legal error, “remand is warranted only if the . . . error was harmful.” Miller v. Kijakazi, No. 22-60541, 2023 WL 234773, at *3 (5th Cir. Jan. 18, 2023) (per curiam) (unpublished) (citing Shineski v. Sanders, 556 U.S. 396, 407-08 (2009)); see also Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988) (“Procedural perfection in administrative proceedings is not required. This court will not vacate a judgment unless the substantial rights of a party have been affected.”). “Harmless error exists when it is inconceivable that a different administrative conclusion would have been reached even if the ALJ did not err.” Keel v. Saul, 986 F.3d 551, 556 (5th Cir. 2021). The burden is on the claimant to show prejudicial or harmful error. Jones v. Astrue, 691 F.3d 730, 734-35 (5th Cir. 2012).
B. Commissioner's Evaluation Process
In evaluating a disability claim, the Commissioner follows a five-step sequential process to determine whether: (1) the claimant is presently engaged in substantial gainful employment; (2) the claimant has a severe medically determinable physical or mental impairment; (3) the claimant's impairment meets or medically equals an impairment listed in the appendix to the regulations; (4) the impairment prevents the claimant from doing past relevant work; and (5) the impairment prevents the claimant from performing other substantial gainful activity. 20 C.F.R. § 404.1520(a)(4); Salmond v. Berryhill, 892 F.3d 812, 817 (5th Cir. 2018).
Between steps three and four, the ALJ determines the claimant's “residual functional capacity” (“RFC”). 20 C.F.R. § 404.1520(e). The RFC “is the most [the claimant] can still do despite [their] limitations.” Id. § 404.1545(a)(1). The ALJ then uses the claimant's RFC in making determinations at steps four and five. Id. § 404.1520(e).
“[A]n individual claiming disability insurance benefits under the Social Security Act has the burden of proving her disability.” Hames v. Heckler, 707 F.2d 162, 165 (5th Cir. 1983). Thus, the claimant carries the burden of proof through the first four steps. Anderson v. Sullivan, 887 F.2d 630, 632 (5th Cir. 1989). “However, if after proceeding through the first four . . . steps, the claimant shows that he is unable to return to his past work, then the burden shifts to the Commissioner to meet the fifth and final step.” Guillen v. Astrue, 584 F.Supp.2d 930, 934 (W.D. Tex. 2008) (citing Anderson, 887 F.2d at 632).
C. The ALJ's Findings
In this case, at step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since December 7, 2019, her alleged disability onset date. (R. 17). At step two, the ALJ found that Plaintiff had individually severe impairments of seizures and chronic migraines. (Id.). He also found that Plaintiff's impairments of lumbar spine degenerative disc disease and bilateral hip/trochanteric bursitis were severe, but only in combination with one another. (Id.). He decided that Plaintiff's obesity, right heel spur, PTSD, major depressive disorder, panic disorder, and generalized anxiety disorder were not severe. (R. 18-19). At step three, the ALJ concluded 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 C.F.R. Part 404, Subpart P, Appendix 1. (R. 19).
For Plaintiff's RFC, the ALJ found that she had:
the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except the claimant can perform no climbing ladders, ropes, or scaffolds; frequent ramps/stairs, balancing, stooping, crouching, crawling, and kneeling; no work at unprotected heights, around dangerous moving machinery, open flame; no commercial driving; requires no more than moderate-level noise exposure (such as one encounters in offices, stores, restaurants, regular traffic, etc.); no more than occasional exposure to bright lights (normal artificial light usually encountered in offices, stores, and other establishment is acceptable).(R. 20-21). The ALJ's RFC assessment also concluded that “the record documented no evidence that the claimant has any work-related psychiatric limitations.” (R. 25).
At the fourth step, the ALJ concluded that Plaintiff could “perform past relevant work as a medical secretary/payroll clerk, school secretary/payroll clerk, and administrative assistant/payroll clerk, as they are generally and actually performed” and that, for this reason, she was not disabled under the Social Security Act from December 7, 2019 (her alleged disability onset date), through August 13, 2021 (the date of the ALJ's decision). (R. 27).
D. Analysis
Plaintiff argues that the ALJ's decision is based on legal error, in part, because he did not discuss the medical opinions of Dr. Michael Hand, Plaintiff's treating psychologist, in assessing her RFC. (ECF No. 25, p. 17-18).Because the Court recommends that the case be remanded on this ground, it will limit its discussion to this issue.
While Plaintiff also argues that the ALJ should have considered and addressed Dr. Hand's opinions at step two (ECF No. 25, p. 12-13), “[t]he Fifth Circuit has stated that a failure to make a severity finding at step two is not reversible error when an ALJ continues with the sequential evaluation process ....” Estrada v. Comm'r of the SSA, No. SA-18-CV-00002-DAE, 2019 WL 453619, at *6 (W.D. Tex. Feb. 5, 2019) (citing Herrera v. Comm'r of Soc. Sec., 406 Fed.Appx. 899, 903 (5th Cir. 2010)); see also Adams v. Bowen, 833 F.2d 509, 512 (5th Cir. 1987) (declining to remand for an alleged error at step two because the ALJ proceeded to step four and, therefore, “[the] case did not depend upon a conclusion of the ‘non-severity' of [the claimant's] condition.”). Accordingly, because the ALJ decided this case at step four, the Court will only consider whether he erred by failing to consider Dr. Hand's opinions in formulating Plaintiff's RFC.
1. The ALJ Erred by Failing to Address the Medical Opinions of Dr. Michael Hand in his RFC Assessment.
An ALJ's determination or decision must “articulate . . . how persuasive [they] find all of the medical opinions . . . in [the claimant's] case record.” 20 C.F.R. § 404.1520c(b) (emphasis added). While “the regulations no longer require ALJs to ‘defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative finding(s),' the ALJ must consider all ‘medical opinions' for their ‘persuasiveness' using the factors outlined in the rule.” Sherman v. Kijakazi, No. 1:22-CV-00775-RP-SH, 2023 WL 3727022, at *4 (W.D. Tex. Apr. 27, 2023) (quoting 20 C.F.R. § 404.1520c(a)), report and recommendation adopted, 2023 WL 3725179 (May 30, 2023).
Plaintiff argues that the ALJ erred by not “discuss[ing] or evaluat[ing] the medical opinion from Dr. Hand” in his decision. (ECF No. 25, p. 17-18). At various points throughout her opening brief, Plaintiff points to specific statements from Dr. Hand that she deems to be medical opinions and argues that the ALJ erred by not mentioning or addressing them in his decision. (See, e.g., id. at 12). The Commissioner does not contest Plaintiff's characterization of these statements as medical opinions under § 404.1520c(b).However, the ALJ provided a possible explanation for his omission of the opinions from his decision when he stated that he “did not address evidence that is inherently neither valuable nor persuasive in accordance with 20 CFR 404.1520b(c)” (R. 26), a regulation that exempts ALJs from providing analysis on certain types of evidence, including statements on issues that are deemed to be reserved to the Commissioner. 20 CFR § 404.1520b(c). The Commissioner does argue in support of the ALJ's omission of Dr. Hand's opinions, but only on the grounds that his “notes predate Plaintiff's alleged onset date of December 7, 2019.” (ECF No. 26, p. 6). The Court will consider each of these issues in turn.
For claims filed on or after March 27, 2017, the regulations define a “medical opinion” as:
[A] statement from a medical source about what you can still do despite your impairment(s) and whether you have one or more impairment-related limitations or restrictions in the following abilities: (i) Your ability to perform physical demands of work activities, such as sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions (including manipulative or postural functions, such as reaching, handling, stooping, or crouching); (ii) Your ability to perform mental demands of work activities, such as understanding; remembering; maintaining concentration, persistence, or pace; carrying out instructions; or responding appropriately to supervision, coworkers, or work pressures in a work setting; (iii) Your ability to perform other demands of work, such as seeing, hearing, or using other senses; and (iv) Your ability to adapt to environmental conditions, such as temperature extremes or fumes.20 C.F.R. § 404.1513(a)(2).
a) Whether Dr. Hand's Statements Pertain to Issues that are “Reserved” to the Commissioner
On January 18, 2017, the SSA revised the rules governing the evaluation of medical evidence for claims filed after March 27, 2017. Revisions to Rules Regarding Evaluation of Medical Evidence, 82 Fed.Reg. 5844 (Jan. 18, 2017). Among the changes made was the addition of a provision excusing ALJs from articulating their consideration of “[s]tatements on issues reserved to the Commissioner.” See Martinez v. Kijakazi, No. 3:22-CV-00135-KC-ATB, 2023 WL 2885402, at *6 (W.D. Tex. Apr. 5, 2023) (citing 20 C.F.R. § 404.1520b(c)). These statements, which amount to legal conclusions rather than acceptable forms of medical evidence, include, in relevant part: “Statements that you are or are not disabled, blind, able to work, or able to perform regular or continuing work.” 20 C.F.R. § 404.1520b(c)(3)(i).
“Determining whether a statement is on an issue reserved to the Commissioner involves a consideration about the context in which the source makes the statement.” Program Operations Manual System (POMS) DI § 24503.040(C) (SSA, Mar. 24, 2017); see also Revisions to Rules
“The POMS is a set of policies issued by the Administration to be used in processing claims.” Jaramillo v. Colvin, 576 Fed.Appx. 870, 875 n.3 (10th Cir. 2014) (internal quotes omitted).
Regarding Evaluation of Medical Evidence, 82 Fed.Reg. at 5851 (“[A]djudicators should consider the context of a source's use of a term in our laws and regulations to determine if it qualifies as a statement on an issue reserved to the Commissioner or another kind of evidence, such as a medical opinion.”); Martinez, 2023 WL 2885402, at *6 (evaluating a medical source's statement in the context of other statements made in the same document in determining whether the statement concerned an issue reserved to the Commissioner).
Dr. Hand treated Plaintiff beginning in March 2016 for PTSD, anxiety, and depression (R. 314). She attended thirty-six individual psychotherapy sessions with him between 2016 and 2018. (R. 351). Plaintiff points to certain statements of Dr. Hand that she argues should have been addressed in the ALJ's decision:
Dr. Hand indicated in a January 28, 2019 letter that “it has been clear to me for some time that her many physical and emotional challenges make functioning in any likely work setting highly problematic.” . . . Dr. Hand indicated Plaintiff's medication “seemed to provide some benefit, [but] they also included side effects (sedation, weight gain, mental confusion, etc.)[.]” Dr. Hand opined that Plaintiff could not continue her current job because “[i]t is further apparent that this position would require consistent attendance, sustained ability to focus and concentrate, to remain sedentary and work on the computer for consistent periods of work.” Dr. Hand further opined “that any further continuation in such a job, or any similar job, will not only endanger her own physical well-being, but will likely make her condition worse.”(ECF No. 25, p. 12) (citations omitted).
Closer examination of these statements and the context in which they were made shows that some are of the type that are reserved to the Commissioner, while others are not. Dr. Hand made the first statement in a January 28, 2019, letter responding to a request for a report on Plaintiff's condition that would be submitted as part of her DIB claim. (R. 366). Most of the letter addresses the time it would take to complete the report and his request for compensation for completing it. (Id.). Dr. Hand then concludes the letter by stating: “I might say that I completely agree with Mrs. Fuller's application for disability as it has been clear to me for some time that her many physical and emotional challenges make functioning in any likely work setting highly problematic and, frankly, not in her or any employer's best interests.” (Id.).
As stated, among the issues reserved for the Commissioner are “[s]tatements that you are or are not . . . able to work[] or able to perform regular or continuing work.” 20 C.F.R. § 404.1520b(c)(3)(i). When evaluating whether a statement falls in one of the § 404.1520b(c)(3) categories, it is important to keep in mind the definitions of permissible forms of evidence in § 404.1513(a). As relevant here, the latter section defines a “medical opinion” as being “a statement from a medical source about what you can still do despite your impairment(s) and whether you have one or more impairment-related limitations or restrictions in [certain] abilities.” Id. § 404.1513(a)(2). The regulation then lists specific physical and mental abilities relating to “work” and “work activities” that may be limited by an impairment. See id. Under applicable canons of construction, statements on issues reserved for the commissioner under § 404.1520b(c)(3)(i) should not be construed to include statements that are otherwise “medical opinions” under § 404.1513(a)(2). See Hart v. McLucas, 535 F.2d 516, 519 (9th Cir. 1976) (“[I]n the construction of administrative regulations . . . it is presumed that every phrase serves a legitimate purpose and, therefore, constructions which render regulatory provisions superfluous are to be avoided.” (citing Jay v. Boyd, 351 U.S. 345, 360-61 (1956)); see also Rucker v. Wabash R.R, 418 F.2d 146, 149 (7th Cir. 1969) (“Administrative regulations, like statutes, must be construed by courts, and the same rules of interpretation are applicable in both cases.”); TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“[I]t is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.”). Thus, the two provisions, read together, should be interpreted as follows: general conclusions that answer the ultimate questions left to the Commissioner as to whether one is disabled or able to work are not evidence that need to be discussed in the ALJ's decision, while statements about how specific impairments affect work-related abilities, which inform the Commissioner's ultimate legal conclusions, must be addressed.
It is important for ALJs to keep in mind the distinction between statements reserved for the commissioner and medical opinions when determining whether to address statements from medical sources in their decisions. A medical source may, in the course of expressing an opinion on what a claimant can or cannot do at work, make a statement that amounts to a general conclusion about the claimant's disability status or their ability to work. This does not mean that every statement made in the same document or by the same source, including evidence whose consideration otherwise must be articulated under the regulations, may be ignored by the ALJ in their decision. Indeed, the POMS's section on statements reserved for the commissioner supports this careful approach to evaluating record evidence. See POMS DI § 24503.040(E)(2) (“Do not consider an entire document to be a statement on an issue to the Commissioner simply because the document contains a statement on an issue that is reserved to the Commissioner.”); Revisions to Rules Regarding Evaluation of Medical Evidence, 82 Fed.Reg. at 5851 (same). When presented with multiple statements from a single medical source, like Dr. Hand, the ALJ must parse out which statements can be considered, and which cannot. A blanket rejection of every statement because only some of them pertain to issues reserved for the Commissioners is error. For these reasons, the ALJ also erred if he chose to omit all of Dr. Hand's opinions from his decision simply because individual statements within his treatment notes and reports pertained to issues reserved for the Commissioner. See id.
Here, Dr. Hand's January 28, 2019, letter alludes only generally to Plaintiff's “many physical and emotional challenges” and does not mention specific impairments or the effect that they have on her ability to work. (R. 366). Moreover, considering the context of the statement, see POMS DI § 24503.040(C); Revisions to Rules Regarding Evaluation of Medical Evidence, 82 Fed.Reg. at 5851, the fact that it is an expression of support for Plaintiff's DIB claim suggests that it is exactly the type of statement that an ALJ need not consider under § 404.1520b(c)(3)(i), which leaves to the Commissioner the ultimate determination regarding the success of a disability claim. Accordingly, the ALJ did not err by choosing not to address this statement in his decision.
However, other statements made by Dr. Hand stand on different ground. Plaintiff also argues that the ALJ should have articulated his consideration of Dr. Hand's discussion, in a “Psychological Assessment/Treatment Report” dated April 19, 2019, of the effect that her medication side effects had on her ability to work:
Mrs. Fuller was [on] Duloxetine[,] zolpidem, Cymbalta, and amitriptyline. While each of these meds [sic] seemed to provide some benefit, they also included side effects (sedation, weight gain, mental confusion, etc.) which also made/make it difficult to perform the usual and customary activities of daily life as well as efficient performance at work.(R. 352). Later in his report, Dr. Hand continues:
Mrs. Fuller is on a medication regimen . . . which impact[s] her with side-effects of overwhelming sleepiness, low energy, impaired concentration and memory, agitation, mood and behavior volatility, physical weakness, dizziness, dry mouth, nausea, diarrhea, blurred vision .... Therefore, it [is] my professional opinion that, with or without the medications, Ms. Fuller is no longer able to do these work duties, or any similar work duties, with such responsibilities.(R. 353). The final reference to Plaintiff's work responsibilities incorporates Dr. Hand's description, earlier in the report, of her duties and responsibilities as a “Management Assistant”: “this position would require consistent attendance, sustained ability to focus and concentrate, to remain sedentary and work on the computer for consistent periods . . ., etc.” (Id.). Accordingly, read together, Dr. Hand's statements regarding Plaintiff's medication side effects mention specific “impairment-related limitations or restrictions” and pertain to her “ability to perform mental demands of work activities,” including “maintaining concentration.” 20 C.F.R. § 404.1513(a)(2)(ii). It is not a mere general conclusion that Plaintiff is disabled or unable to work. Moreover, the statements are part of a larger discussion of Plaintiff's prognosis that includes information about her treatment history and symptoms, further supporting the conclusion that it is a medical opinion. See Martinez, 2023 WL 2885402, at *6 (holding that a medical source's statement was not on an issue reserved for the Commissioner because other parts of the note that contained the statement showed that it was a “diagnostic statement,” and not a statement “for purposes of disability determination.” (quoting Giles v. Astrue, 433 Fed.Appx. 241, 245-46 (5th Cir. 2011)). The ALJ erred in failing to articulate his consideration of Dr. Hand's statements regarding Plaintiff's medication side effects and their impact on her work-related abilities.
Finally, Plaintiff argues that the ALJ should have addressed Dr. Hand's statements, in the same psychological assessment, that Plaintiff was “no longer able to perform her job as a Management Assistant for the U.S. Department of the Army.” (R. 353). After listing the abovementioned abilities relevant to the position, the report continues:
It is my opinion, based on this understanding of the duties and responsibilities of her work position, that the current and chronic symptoms of her [PTSD], depression, anxiety, insomnia, and frequent and migraine headaches are presently in such a severe, precarious state, that any further continuation in such a job, or any similar job, will not only endanger her own physical well-being, but will likely make her condition worse.(R. 353). In a vacuum, Dr. Hand's statement that Plaintiff was “no longer able to perform her job” (R. 353) would likely qualify as a statement reserved for the Commissioner. However, read in context, see POMS DI § 24503.040(C); Revisions to Rules Regarding Evaluation of Medical Evidence, 82 Fed.Reg. at 5851, the statement is part of a larger analysis that incorporates Dr. Hand's comments that Plaintiff's mental conditions and symptoms would affect her well-being if she continued in her job. Therefore, the statement constitutes an opinion that Plaintiff cannot perform the “mental demands of work activities” due to her mental conditions. 20 C.F.R. § 404.1513(a)(2)(ii). Thus, the ALJ erred by not articulating his consideration of Dr. Hand's opinion that Plaintiff's mental conditions prevented her from performing the work-related abilities mentioned in Dr. Hand's report.
Furthermore, the fact that Dr. Hand's medical opinions are inconsistent with the ALJ's conclusions in his RFC assessment makes it even more important that they be discussed in the ALJ's decision. According to the regulations: “If any of the evidence in [a claimant's] case record, including any medical opinion(s), is inconsistent, [the ALJ] will weigh the relevant evidence and see whether [they] can determine whether you are disabled based on the evidence [they] have.” Id. § 404.1520b. Citing this provision, the Fifth Circuit in Kneeland v. Berryhill held that “[m]edical opinions, especially conflicting medical opinions, must be considered.” 850 F.3d 749, 759 (5th Cir. 2017) (emphasis added); see also Sherman, 2023 WL 3727022, at *4 (applying Kneeland's holding to a case governed by the 2017 amended rules). Dr. Hand's opinions are clearly inconsistent with the ALJ's conclusion in his RFC assessment that “the record documented no evidence that the claimant has any work-related psychiatric limitations” (R. 25), making it especially important that the ALJ addresses them.
Accordingly, by not “articulating” the persuasiveness of Dr. Hand's opinions regarding the effect that Plaintiff's medication side effects and mental conditions had on her ability to work in his RFC assessment, the ALJ committed legal error. See Kneeland, 850 F.3d at 761 (holding that an ALJ's failure to discuss the opinion of the claimant's treating physician in his decision meant that the decision did not “comport with proper legal standards.”); see also Webster v. Kijakazi, 19 F.4th 715, 718 (5th Cir. 2021) (“An ALJ usually cannot reject a medical opinion without some explanation.”).
b) Whether Dr. Hand's Statements Were Irrelevant Because They Were Made Before Plaintiff's Alleged Disability Onset Date
As stated, the Commissioner's sole argument in response to Plaintiff's position regarding Dr. Hand's opinions is that they are contained in “notes from March 2016 through October 2018” which “predate Plaintiff's alleged onset date of December 7, 2019.” (ECF No. 26, p. 6).
As a factual matter, the Court notes that the opinions of Dr. Hand that Plaintiff argues should have been included in the ALJ's decision are not contained in Dr. Hand's “psychotherapy notes” (R. 302-13, 319-49, 355-65), which range from March 2016 through August 2018, but are contained in a “Psychological Assessment/Treatment Report” dated April 19, 2019. (R. 351-53).
But the fact that this report predates Plaintiff's alleged disability onset date by about seven-and-a-half months does not mean that it is exempted from the regulations' articulation requirements for medical opinions, as “[t]he regulations do not provide any exception to [the articulation] requirement for opinions that pre-date a claimant's onset date.” Davidson v. Colvin, 164 F.Supp.3d 926, 941 (N.D. Tex. 2015) (citing 20 C.F.R. § 404.1527(c)(2)); see also Sherman, 2023 WL 3727022, at *6 (finding that the ALJ was required to consider medical opinions that predated the claimant's onset date in a case governed by the 2017 revised rules (citing Davidson, 164 F.Supp. at 941)); cf. Ivy v. Sullivan, 898 F.2d 1045, 1049 (5th Cir. 1990) (“[N]on[-]contemporaneous medical records are relevant to the determination of whether onset occurred on the date alleged by the claimant.”). While the Fifth Circuit has not considered this issue, other circuits have held that “an ALJ may not ignore medical opinions simply because they pre-date the onset of disability or post-date the last insured date, since that evidence can be relevant to a claim of disability.” Davidson, 164 F.Supp. at 941-42 (collecting decisions from the First, Sixth, Seventh, Eighth, and Tenth Circuits). Given the weight of the authority on this matter and the Commissioner's failure to put forth any argument as to why this Court should not follow it, the Court declines to read an exemption into the regulations' articulation requirements for medical opinions that pre-date a claimant's onset date. Accordingly, the ALJ erred in failing to articulate his consideration of Dr. Hand's medical opinions even though they were recorded prior to Plaintiff's onset date.
While Davidson cited an older version of the articulation regulation, the current version also does not contain an exemption for medical opinions that pre-date a claimant's onset date. See 20 C.F.R. § 404.1520c.
2. Harmless Error
Having found that the ALJ erred by not considering Dr. Hand's medical opinions, the Court must determine whether this error was harmless. Sherman, 2023 WL 3727022, at *7 (citing Audler v. Astrue, 501 F.3d 446, 448 (5th Cir. 2007)). The Fifth Circuit has made clear that an ALJ's failure to articulate their consideration of a medical opinion in an RFC assessment is harmful error. See Kneeland, 850 F.3d at 761-62; Sherman, 2023 WL 3727022, at *7 (quoting id.). This is because “such an error makes it impossible to know whether the ALJ properly considered and weighed an opinion, which directly affects the RFC determination.” Kneeland, 850 F.3d at 762. If the ALJ had given “some weight” to Dr. Hand's conclusion that Plaintiff's mental conditions and medication side effects affected the abilities necessary to do her job, his RFC - which concluded that “the record documented no evidence that the claimant has any work-related psychiatric limitations” (R. 25) - “would surely have been different.” Kneeland, 850 F.3d at 762. “Of course it is possible the ALJ considered and rejected [Dr. Hand's] opinion, but without any explanation, we have no way of knowing.” Id.; see also Sherman, 2023 WL 3727022, at *7 (holding that an ALJ's failure to discuss the medical opinions of the claimant's psychologist in his decision was harmful error (quoting Kneeland, 850 F.3d at 762)). Accordingly, the ALJ's error was harmful and requires remand.
III. CONCLUSION
For these reasons, the Court RECOMMENDS that the District Court REVERSE the ALJ's decision, ENTER judgment on behalf of Plaintiff, and REMAND this case to the Social Security Commissioner under sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this opinion.
SIGNED and ENTERED this 22nd day of August, 2023.