Opinion
1:22-cv-01104-RP-DH
08-10-2023
KAMERON KELLEY, Plaintiff v. KILOLO KIJAKAZI, ACTING COMMISIONER OF SOCIAL SECUIRTY ADMINISTRATION Defendant
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
DUSTIN M. HOWELL UNITED STATES MAGISTRATE JUDGE.
TO: THE HONORABLE ROBERT PITMAN UNITED STATES DISTRICT JUDGE
Before the Court are Plaintiff's Opening Brief, Dkt. 16, Brief in Support for the Commissioners Decision, Dkt. 17, and Plaintiff's Reply, Dkt. 18. The undersigned submits this Report and Recommendation to the United States District Court pursuant to 28 U.S.C. § 636(b) and Rule 1(h) of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas. The undersigned recommends that the District Court affirm the decision of the Social Security Commissioner.
I. BACKGROUND
Plaintiff Kameron Kelley protectively filed an application for Supplemental Securities Income under Title XVI on November 21, 2019, alleging disability beginning on August 19, 2019. Dkt. 12-2 at 15. After administrative-level denials, Kelley and a vocational expert (“VE”) testified before an administrative law judge (“ALJ”) on January 24, 2022. Id. The ALJ issued an unfavorable decision, finding that Kelley “was not [] under a disability within the meaning of the Social Security Act.” Id. The Appeals Council denied review of the ALJ decision. Id. at 2. Having exhausted his administrative remedies, Kelley filed this civil action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
At step one of the disability analysis, the ALJ determined that Kelley had not engaged in substantial gainful activity since his alleged disability on August 19, 2019. Dkt. 12-2, at 17. At step two, the ALJ found that Kelley has severe impairments, including “psoriatic arthritis, borderline intellectual functioning, and specific learning disorder in reading, and a speech disorder.” Id. However, at step three, the ALJ found that Kelley does not have an impairment or combination of impairments that meets or medically equals the severity of a listed impairment, including listing 14.09 for inflammatory arthritis, and the mental impairments at listings 12.02 and 12.05. Id. at 18. Next, the ALJ found that Kelley has the Residual Functioning Capacity (“RFC”) to perform sedentary work given the responsiveness of Kelley's conditions to medication, his educational and medical history, and the extent of his domestic and recreational activities. Id. at 21-24. The ALJ's RFC determination is that:
[Kelley] is able to sustain work while lifting/carrying/push/pull 10 pounds occasionally and 10 pounds frequently. He is able to occasionally climb ramps/stairs, but is restricted from climbing ropes, ladders, and scaffolds. The claimant is able to occasionally balance, stoop, kneel, crouch, and crawl. He is able to frequently finger and handle. From a mental standpoint, [Kelley] is able to understand, remember, and carryout simple
instructions, make simple work-related decisions, attend and concentrate, accept instructions, and occasionally respond appropriately to changes in routine work setting.Id. at 20-21.
At step four, based on the testimony of the VE at the hearing before the ALJ, the ALJ found that Kelley is not able to perform any of his past relevant work in fastfood service. Id. at 24-25. At step five, relying on VE testimony, the ALJ found that Kelley could perform work as a document preparer, final assembler, and stuffer. Id. at 25-26. Accordingly, the ALJ found Kelley is not disabled. Id. at 26.
Kelley makes three arguments in support of his request for remand: (1) the ALJ's finding that Kelley can perform the jobs of document preparer, final assembler, and stuffer is not supported by substantial evidence because the ALJ relied on defective hypotheticals; (2) the ALJ's RFC determination is not supported by substantial evidence because the ALJ failed to incorporate limitations related to Kelley's mental functioning, including his specific learning disorder in reading and speech sound disorder; (3) the ALJ erred as a matter of law by failing to properly evaluate the supportability and consistency of the medical opinions and prior administrative medical findings in accordance with 20 C.F.R. § 416.920c. Dkt. 15, at 8, 13, 19.
II. STANDARD OF REVIEW
The Social Security Act defines “disability” 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.” 42 U.S.C. § 423(d)(1)(A). To determine if a claimant is able to engage in “substantial gainful activity” (and therefore if she is disabled) the Social Security Commissioner uses a five-step analysis:
1. a claimant who is working, engaging in a substantial gainful activity, will not be found to be disabled no matter what the medical findings are;
2. a claimant will not be found to be disabled unless he has a “severe impairment”;
3. a claimant whose impairment meets or is equivalent to an impairment listed in Appendix 1 of the regulations will be considered disabled without the need to consider vocational factors;
4. a claimant who is capable of performing work that he has done in the past must be found “not disabled”; and
5. if the claimant is unable to perform his previous work as a result of his impairment, then factors such as his age, education, past work experience, and residual functional capacity must be considered to determine whether he can do other work.20 C.F.R. § 404.1520; Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994).
A finding of disability or no disability at any step is conclusive and terminates the analysis. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994). The claimant has the burden of proof for the first four steps; at step five, the burden initially shifts to the Commissioner to identify other work the applicant is capable of performing. Selders v. Sullivan, 914 F.2d 614, 618 (5th Cir. 1990). Then, if the Commissioner “fulfills his burden of pointing out potential alternative employment, the burden ... shifts back to the claimant to prove that he is unable to perform the alternate work.” Id. (citation omitted).
Congress has limited judicial review of the Commissioner's final decision under the Social Security Act to two inquiries: (1) whether substantial evidence supports the Commissioner's decision; and (2) whether the Commissioner correctly applied the relevant legal standards. 42 U.S.C. § 405(g); Kinash v. Callahan, 129 F.3d 736, 738 (5th Cir. 1997). Substantial evidence is more than a scintilla of evidence but less than a preponderance-in other words, “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995).
The Court considers four elements of proof when determining whether there is substantial evidence of a disability: (1) objective medical facts; (2) diagnoses and opinions of treating and examining physicians; (3) the claimant's subjective evidence of pain and disability; and (4) the claimant's age, education, and work history. Id. at 174. However, the reviewing court may not reweigh the evidence, try the issues de novo, or substitute its judgment for that of the Commissioner. Greenspan, 38 F.3d at 236. The Court may only scrutinize the record to determine whether it contains substantial evidence to support the Commissioner's decision. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995). If the Court finds substantial evidence to support the decision, the Court must uphold it. Selders, 914 F.2d at 617 (“If the ... findings are supported by substantial evidence, they are conclusive and must be affirmed.”); 42 U.S.C. § 405(g). A finding of no substantial evidence will only be made where there is a conspicuous absence of credible choices or no contrary medical evidence. Abshire v. Bowen, 848 F.2d 638, 640 (5th Cir. 1988).
III. ANALYSIS
A. Whether the ALJ relied on a defective hypothetical
Kelley argues that the ALJ's finding that he can perform jobs as document preparer, final assembler, and stuffer is not supported by substantial evidence because the ALJ relied upon a flawed hypothetical posed to the VE. Dkt. 15, at 12.
Bowling v. Shalala articulates the proper standard in the Fifth Circuit for determining whether a hypothetical question is defective and, if so, whether the defective hypothetical question constitutes reversible error:
Unless the hypothetical question posed to the vocational expert by the ALJ can be said to incorporate reasonably all disabilities of the claimant recognized by the ALJ, and the claimant or his representative is afforded the opportunity to correct deficiencies in the ALJ's question by mentioning or suggesting to the vocational expert any purported defects in the hypothetical questions (including additional disabilities recognized but omitted from the question), a determination of non-disability based on such a defective question cannot stand.36 F.3d at 436.
Only where the testimony by the VE is based on a correct account of a claimant's qualifications and restrictions may an ALJ properly rely on the VE's testimony and conclusion. Guillen v. Astrue, 584 F.Supp.2d 930 (W.D. Tex. 2008). Unless there is evidence in the record to adequately support the assumptions made by a VE, the opinion expressed by the VE is meaningless. Id. (citing Bowling, 36 F.3d at 436).
In this case, the VE was presented with three hypotheticals. In the first hypothetical, the ALJ asked the VE to:
[A]ssume a hypothetical individual of [Kelley]'s age and education, with the past job [as a fast-food worker]. Further assume that the hypothetical individual is limited to the sedentary exertional level. The hypothetical individual can never climb ladders, ropes, and scaffolds, and occasionally climb ramps and stairs, occasionally balance, stoop, kneel, crouch, and crawl. The hypothetical individual can frequently finger and handle. The hypothetical individual can understand, remember, and carry out simple instructions, make simple work-related decisions, attend and concentrate, accept instructions, and respond appropriately to changes in a routine work setting. ... [c]ould this hypothetical individual perform any other work, and if so, could you give me examples with numbers of jobs for each?Dkt. 12-2, at 54-55 (emphasis added). The VE responded that “[s]uch a hypothetical person could perform jobs” as a document preparer, a final assembler, and a stuffer. Id. at 55.
In the next hypothetical, hypothetical two, the ALJ asked the VE to:
[A]ssume a hypothetical individual of [Kelley]'s age, and education, and with the past jobs you described. Further assume that the hypothetical individual. . . has the same restrictions as Hypothetical #1, with the following two changes. The hypothetical individual can occasionally finger and handle, and the hypothetical individual can occasionally respond appropriately to changes in a routine work setting. Would that hypothetical individual be able to perform . any . work?Id. at 55-56 (emphasis added). The VE responded “no ... work” would be available within the “framework of that hypothetical.” Id. at 56.
In the third hypothetical, Kelley's attorney posed the following:
[i]f we were to go back to the original hypothetical question, and I were to leave everything the same, but I were to add that one modification, that the person would be limited to
no greater than occasional changes in the routine work setting, could they perform those three jobs you've identified as document preparer, final assembler, and stuffer?Id. at 56-57 (emphasis added). The VE responded “[y]es. In my opinion that would not affect their ability to perform those three jobs. Id. at 57.
Based on the VE's answers to each of these hypothetical Kelley argues that the ALJ's RFC finding that Kelley is able to “occasionally respond appropriately to changes in routine work setting” should have resulted in a determination consistent with hypothetical two, that no work would be available to Kelley. Dkt. 15, at 11. Kelley argues that the ALJs finding as to Kelley's job capacity “is in direct contradiction to the VE's testimony.” Id.
While courts have found that a hypothetical question is defective where the RFC finding is inconsistent with the VE testimony in that the RFC references a different hypothetical than was posed to the VE, that is not what has occurred here. See, e.g., Hunt v. Saul, No. CV 20-348-JWD-EWD, 2021 WL 3361689, at *7 (M.D. La. July 16, 2021), report and recommendation adopted, No. CV 20-348-JWD-EWD, 2021 WL 3356323 (M.D. La. Aug. 2, 2021) (reversing and remanding due to a defective hypothetical question because the ALJ asked the VE about frequently handling and fingering with the right upper extremity yet adopted an RFC including frequent handling and fingering bilaterally).
Kelley's position rests on the argument that the “placement of the word ‘occasional'” creates “different scenarios which certainly accounts for the VE's differing answers” as to which jobs may be available for a person in each of the hypothetical questions. Id. at 11. However, the record of the hearing directly contradicts this argument. First, Kelley's lawyer, in posing the third hypothetical asked the VE to assume all the same characteristics posed in the first hypothetical “but ... add that one modification, that the person be limited to no greater than the occasional changes in the routine work setting.” Dkt. 12-2, at 56-57. It's clear Kelley's lawyer was referring to the same modification posed by the ALJ in hypothetical two concerning the hypothetical individual's ability to “occasionally respond appropriately to changes in a routine work setting.” Id. at 55-56.
Second, the semantics of the “occasionally respond” versus “occasional changes” phrasing is not what accounts for the VE's differing answers with respect to each of the three hypothetical questions. Kelley's attorney elicited as much from the VE. After posing hypothetical three (under which three jobs would be available), Kelley's attorney asked: “Okay. So then is it the occasional fingering and handling that eliminates those positions [in hypothetical two]?” Dkt. 12-2, at 57. The VE responded: “Exactly. Yes, sir.” Id. Essentially, the change in the hypothetical from “frequently finger and handle” in hypotheticals one and three to “occasionally finger and handle” in hypothetical two accounts for the availability of three jobs in hypotheticals one and three, and no jobs in hypothetical two. The hypothetical individual's ability to “occasionally respond” to routine changes or respond to “occasional changes” in routine was not dispositive of the VE's testimony as to job availability.
Kelley does not contest the ALJ's finding that he is “able to frequently finger and handle” nor that the ability to “frequently finger and handle” corresponds, per the VE, with the ability to perform the jobs of document preparer, a final assembler, and a stuffer. Dkt. 12-2, at 21. The ALJ's assessment did not, as Kelley argues, “materially veer[] from the hypothetical posed to the VE.” Dkt. 15, at 12l. Therefore, the ALJ did not rely on a defective hypothetical such that her finding as to Kelley's ability to perform the three jobs proposed by the VE was unsupported by substantial evidence.
The District Court should deny Kelley's request for remand on the basis of a defective hypothetical.
B. Whether the ALJ accounted for Kelley's limitations
At step two of the disability analysis the ALJ found Kelley's borderline intellectual functioning, specific learning disorder in reading, and speech sound disorder to be severe medically determinable impairments. Dkt. 12-12, at 17. Kelley argues that the ALJ failed to account for these conditions as part of the RFC determination that, “[f]rom a mental standpoint, [Kelley] is able to understand, remember, and carryout simple instructions, make simple work-related decisions, attend and concentrate, [and] accept instructions.” Dkts. 15, at 16; 12-2, at 20-21. Kelley argues that the limitations in the RFC do not encompass his impairments or limitations since there are no specific limitations in reading instructions in the RFC. Dkt. 15, at 15-16. Kelley concludes that in failing to include limitations that correspond to his specific impairments and by not addressing the omission, the ALJ “has failed to build an accurate and logical bridge between the evidence and her [RFC] conclusion.” Id. at 19. According to Kelley, without such an explanation, “it is impossible for the Court to determine whether the ALJ's finding is supported by substantial evidence.” Id.
The RFC is defined as the most an individual can do on a sustained basis after considering the effects of physical and or mental limitations that affect the ability to perform work-related tasks. See 20 CFR § 416.945(a). The RFC assessment is an administrative finding of fact, and the ALJ, not a medical source, is responsible for this assessment. See 20 CFR § 416.945(c); see also Taylor v. Astrue, 706 F.3d 600, 60203 (5th Cir. 2012). As an administrative factfinder, the ALJ is entitled to significant deference in deciding the appropriate weight to accord the various pieces of evidence in the record, including the credibility of the medical experts and the weight to be accorded their opinions. See Scott v Heckler, 770 F.2d 482, 495 (5th Cir. 1985).
An ALJ has an obligation to demonstrate that she clearly considered all the severe impairments when assessing the RFC. Shipley v. Sec. of Health & Human Servs., 812 F.2d 934, 935 (5th Cir. 1987) (per curium). Further, the ALJ must “incorporate limitations into the RFC assessment that were most supported by the record.” Connor v. Saul, No 4:18-CV-657, 2020 WL4734995, at *8 (S.D. Tex. Aug. 15, 2020) (citing Muse v. Sullivan, 925 F.2d 785, 790 (5th Cir. 1991)).
As to Kelley's argument concerning the relationship between the ALJ's severe impairment finding at step two and the RFC determination, a finding of a severe impairment at step two does not mandate a finding of a specific limitation in the RFC. Shipley v. Sec. of Health & Human Servs., 812 F.2d 934, 935 (5th Cir. 1987) (per curiam); Walker v. Colvin, No. 3:14- CV-1498-L, 2015 WL 5836263, at *15 (N.D. Tex. Sept. 30, 2015) (“[S]everal Texas federal courts have found that an ALJ does not err solely by finding an impairment severe at step two and failing to attribute any limitation to that impairment in his RFC assessment.”).
The ALJ's RFC assessment that “[f]rom a mental standpoint, [Kelley] is able to understand, remember, and carryout simple instructions, make simple work-related decisions, attend and concentrate, and carryout simple instructions” is based on Kelley's medical, educational, and work history as well as a statement from his mother describing his home life and duties. Dkt. 12-2, at 21-23. The ALJ also relied on a psychological consultative examination conducted by Dr. Corinne Alvarez-Sanders, finding that Kelley's “mental status examination was quite unremarkable.” Dkt. 12-2, a 22.
Dr. Alvarez-Sanders found Kelley “responsive and cooperative” and his responses “organized and goal directed.” Id. at 21. During the examination Kelley was also able to “perform ... tasks without difficulty ... and follow simple three-step oral directions.” Id. at 22-23. Based on Kelley's performance on the Weschler Adult Intelligence Scale-IV, Dr. Alvarez-Sanders “diagnosed [Kelley] with borderline intellectual functioning [and] specific learning disorder with impairment in reading, [and] speech sound disorder.” Id. at 23. Dr. Alvarez-Sanders's assessment of Kelley's reading skills was also based on his performance on the Wide Range Achievement Test-5. Dkt. 12-7, at 170. Specifically, Dr. Alvarez-Sanders found Kelley's reading skills were at a third-grade level and that he qualified for a diagnosis of “Specific Learning Disorder with Impairment in reading.” Id. The ALJ concluded “Dr. Alvarez-Sanders' opinion is generally persuasive and has been accounted for in the RFC assessment with the limitation of simple work with an ability to occasionally respond to routine workplace changes.” Id.
The ALJ also considered the opinions of Susan South, Psy. D., and George Carrion, M.D., finding them “generally persuasive as [they are] consistent with and supported by the overall medical evidence of record.” Dkt. 12-2, at 24. As relevant here, Dr. South noted “articulation errors, slurring of some words, and a halting rate of speech”; however, Kelley's “speech was comprehensible and he was able to verbally express himself and had a broad range of vocabulary.” Dkt. 12-3, at 20.
After reviewing the bases for the ALJ's RFC determination, the undersigned finds that the ALJ considered Kelley's borderline intellectual functioning and specific learning disorder in reading and speech sound disorder given that the ALJ considered reports from Dr. Alvarez-Sanders and Dr. South that addressed these conditions. The ALJ, therefore, did not fail to account for these impairments as part of her RFC determination.
C. ALJ's persuasiveness findings
Kelley next argues that the ALJ failed to properly evaluate the supportability and consistency factors with respect to the medical opinion of Dr. Alvarez-Sanders and prior administrative medical findings (PAMFs) of Drs. Carrion and South. Dkt. 15, at 27. As a result, Kelley contends, the ALJ's persuasiveness findings “are not supported by substantial evidence.” Id. at 27.
20 C.F.R. § 404.1520c governs RFC determinations for all claims filed on or after March 27, 2017. The rule addresses how the Commissioner is to consider and evaluate medical opinions and prior administrative medical filings in evaluating a claimant's RFC and eliminated the longstanding “treating-physician rule,” which required the ALJ to give a treating physician's opinion “controlling weight” in the absence of certain other specific findings. See 20 C.F.R. § 404.1527(c)(2) (describing the former “treating physician” rule). The rule states that the Commissioner is no longer required to defer or give any specific evidentiary weight, including controlling weight, to any medical opinion or prior administrative medical finding. Id. at § 404.1520c(a).
Instead, the Commissioner is to consider all medical opinions and prior administrative medical findings using the same specific factors outlined in the rule, the most important of which are supportability and consistency. Id. at § 404.1520c(b)(2). The other factors are treatment relationship with the claimant, specialization, and other factors, such as familiarity with other evidence in the claim. Id., § 404.1520c(c). As relevant here, the Commissioner 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., § 404.1520c(b)(2).
Kelley argues that the ALJ's statement that Dr. Alvarez-Sanders's opinion as to Kelley's functional abilities is “generally persuasive” and the ALJ's notation that Dr. Alvarez-Sanders's opinion had “been accounted for in the RFC limitation” is insufficient under the rule. Dkts. 15, at 23; 12-2, at 23. Kelley states that “on the face of the [ALJ's] decision it is impossible to determine whether the ALJ considered Dr. Alvarez-Sanders's opinion to be supported by or consistent with the evidence.” Dkt. 15, at 23.
Kelley concedes that “a thorough review of the record shows that Dr. Alvarez-Sanders' opinion is both supported by and consistent with the evidence.” Id. Kelly argues “it stands to reason that her opinion should have been embraced by the ALJ” and that even though the “ALJ did indicate that she incorporated Dr. Alvarez-Sanders' opinion into the RFC ... the ALJ did not fully incorporate all of [Kelley]'s opined limitations,” specifically, his borderline intellectual functioning and specific learning disorder in reading and speech sound disorder. Id. at 25. The undersigned has already determined that the ALJ accounted for Dr. Alvarez-Sanders's opinions as to these conditions in making an RFC determination. See supra Part II.B. Thus, Kelley's argument with respect to Dr. Alvarez-Sanders's opinion here is without merit.
Kelley next argues that the ALJ's finding that “the opinions of Drs. Carrion and South are generally persuasive as [they are] consistent with and supported by overall medical evidence of record” is also insufficient under the new rules regarding the ALJ's duty to explain his conclusions in terms of supportability and consistency. Dkts. 15, at 25; 12-2, at 24. Kelley notes that the PAMFs of Dr. Carrion and Dr. South are “similar in many ways to the RFC” as each reflects his standing and walking limitations as well as his ability to “attend, concentrate and accept instructions.” Dkts. 15, at 26; 12-2, at 20; 12-3, at 22-23, 27. Kelley concludes that therefore, “it is clear that ... the PAMFs form the basis for the RFC.” Dkt. 15, at 26. Therefore, “a lack of explanation as to the consistency and supportability [factors] ... affects [Kelley]'s substantial rights . [because] had these limitations not been included in the RFC, the outcome could have differed.” Id. at 26.
While the ALJ must articulate how persuasive she finds the opinions in the record and explain her conclusions with regard to the supportability and consistency factors under § 404.1520c(b)(2), in the instances in which the ALJ is found to have erred on the basis of insufficient explanation, the ALJ rejected the medical opinion. See Kneeland v. Berryhill, 850 F.3d 749, 759 (5th Cir. 2017) (“Given that Dr. Bernauer's opinion is a medical opinion, the ALJ legally erred by rejecting it without explanation, which resulted in an RFC not based on substantial evidence.”); Probst v. Kijakazi, No. EP-22-CV-00286-RFC, 2023 WL 3237435, at *4 (W.D. Tex. May 3, 2023) (finding the ALJ erred by failing to sufficiently articulate the supportability and consistency factors of a medical opinion where the ALJ found the opinion was unpersuasive and failed to account for conflicting opinions); Ramirez v. Saul, No. SA-20-CV-00457-ESC, 2021 WL 2269473, at *6 (W.D. Tex. June 3, 2021) (stating that “[a]lthough the ALJ is not required to articulate how he or she considered each and every medical opinion contained in a medical source statement from a given medical provider [. . .] the ALJ must still provide some explanation for his reasons for rejecting a medical opinion of record”); Jackson v. Colvin, 240 F.Supp.3d 593, 602-03 (E.D. Tex. 2017) (analyzing ALJ's consideration of a medical opinion where the ALJ rejected the opinion of the plaintiff's treating physician).
Remand for lack of substantial evidence is appropriate where a spare articulation of the supportability and consistency factors makes it impossible for the court to determine whether the ALJ's finding is supported by substantial evidence or is unable to reconcile conflicting findings. See Reese v. Saul, No. 4:19-CV-2787, 2020 WL 6804513, at *7 (S.D. Tex. Nov. 3, 2020) (vacating decision for lack of substantial evidence where ALJ provided no explanation for discrepancy between the claimant's need of a cane to ambulate and the ability to walk or stand for two hours, as the “Court cannot speculate as to how these findings should be reconciled”); Harmon v. U.S. Comm'r, No. 6:14-cv-02660, 2015 WL 9226138, at *7 (W.D. La. Nov. 17, 2015) (concluding reversal and remand was required where ALJ failed to explain basis of decision, making it impossible for the court to determine whether the ALJ provided the correct legal standard or whether the finding was supported by substantial evidence).
Here, the ALJ found “that the opinions of Drs. Carrion and South are generally persuasive as [they are] consistent with and supported by overall medical evidence of record.” Dkt. 12-2, at 24. The ALJ acknowledged that she “must evaluate the persuasiveness of the medical opinions and prior administrative findings in the record.” Id. To that end, she described the findings of Dr. Carrion and Dr. South and included their reports, which contain notes on prior presentments for treatment and evaluation of Kelley's conditions, as exhibits to her decision. Dkt. 12-3, at 13-18, 20, 24. Based on this, there is substantial evidence in the record supporting the ALJ's persuasiveness finding and corresponding RFC and disability determination.
Even if the ALJ's explanation of her consideration of the opinions of Drs. Carrion and South was insufficient, the question remains whether the error is harmless. See White v. Kijakazi, No. 22-60541, 2023 WL 234773, at *3-4 (5th Cir. Jan. 18, 2023) (per curiam) (applying harmless error standard where ALJ provided insufficient explanation of her consideration of medical opinions). When the ALJ proceeds past step two and commits error, “remand is warranted only if the ALJ's error was harmful.” Miller v. Kijakazi, No. 22-60541, 2023 WL 234773, at *3 (5th Cir. Jan. 18, 2023) (citing Shineski v. Sanders, 556 U.S. 396, 407-08 (2009)); see Keel v. Saul, 986 F.3d 551, 556 (5th Cir. 2021) (discussing automatic reversal versus harmless error analysis). It is the plaintiff's burden to show prejudice or harm from the error. Jones v. Astrue, 691 F.3d 730, 734-35 (5th Cir. 2012).
The Fifth Circuit recently specified that, to show prejudice from an ALJ's failure to comply with 20 C.F.R. § 404.1520c articulation requirements, the plaintiff must “show that if the ALJ had given further explanation [of the medical opinions at issue], then she would have adopted them.” Miller, 2023 WL 234773, at *4. Otherwise, the plaintiff would “essentially [be] asking [the court] to reweigh the evidence to show that she was prejudiced by the ALJ's failure to explain, which [the court] cannot do.” Id. (citing Garcia v. Berryhill, 880 F.3d 700, 704 (5th Cir. 2018)). Miller is a specific application of the broader principle that harmless error “exists when it is inconceivable that a different administrative conclusion would have been reached even if the ALJ did not err.” Keel, 986 F.3d at 556.
Kelley argues that the PAMFs of Dr. Carrion and Dr. South are “similar in many ways to the RFC” as each reflects his standing and walking limitations as well as his ability to “attend, concentrate and accept instructions” and that, thus, “it is clear ... the PAMFs form the basis of the RFC.” Dkts. 15, at 26; 12-2, at 20; 12-3, at 22-23, 27. Kelley states that the ALJ's lack of explanation as to the consistency and supportability factors, therefore, affects a substantial right because, had the limitations described by Dr. Carrion and Dr. South not been included in the RFC, the outcome “could have differed.” Dkt. 15, at 27.
These arguments fail to show that, had the ALJ sufficiently explained the persuasiveness of the PAMFs the outcome would have been different. Had the ALJ more robustly explained the supportability and consistency factors as part of her persuasiveness finding, she would have merely further bolstered her positive consideration of the PAMFs and the inclusion of limitations discussed in the PAMFs in her RFC finding. Therefore, the outcome would have been the same. Kelley has not met his burden of showing that the ALJ erred, and that the error was prejudicial or harmful.
Based on the foregoing discussion, the undersigned recommends that the District Court affirm the Commissioner's decision.
IV. RECOMMENDATION
In accordance with the foregoing discussion, the undersigned RECOMMENDS that the District Court AFFIRM the decision of the Social Security Commissioner. It is FURTHER ORDERED that this cause of action is REMOVED from the docket of the undersigned.
V. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987). A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).