Opinion
EP-22-CV-00357-FM-ATB
08-22-2023
EDUARDO H. RODRIGUEZ, 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 Eduardo Rodriguez, the claimant at the administrative level, appeals from the final decision of Defendant Acting Commissioner of the Social Security Administration (“Commissioner”) denying his claims for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under Title II and Title XVI, respectively, of the Social Security Act, 42 U.S.C. § 401, et seq., and § 1382, et seq. Pursuant to 28 U.S.C. § 636(c), Appendix C of this District's Local Rules, and the Honorable Senior District Judge Frank Montalvo'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-Referring-Social-Security-Cases-1.pdf.
I. BACKGROUND
On August 26 and 27, 2020, Rodriguez applied for SSI and DIB, respectively, alleging that he became disabled as of July 31, 2017, due to congestive heart failure, coronary artery disease, high blood pressure, herniated discs, and diabetes. He was forty-seven years old when he applied for benefits. He has a degree from a trade college. Previously, he worked as, inter alia, a data entry clerk, a technical help desk clerk, a customer service representative, and a fast food restaurant manager.
Tr. of Admin. R. [hereinafter, cited as “Tr.”] at 71, 142, 237, 245, 282.
Id. at 238.
Id. at 39, 283.
Id. at 273, 288.
After his claims were denied initially and upon reconsideration, Rodriguez requested a hearing by an administrative law judge (ALJ). On January 26, 2022, ALJ Kevin Fallis held a hearing, where Rodriguez, represented by his attorney, and a vocational expert testified. On February 9, 2022, ALJ Fallis issued his written decision in which he denied Rodriguez's application finding that he was not disabled. On August 15, 2022, the Appeals Council denied Rodriguez's request for review of the ALJ's decision; the ALJ's decision thus became the final decision of the Commissioner.
Id. at 102-04, 161-62.
Id. at 34, 38, 61.
Id. at 26.
Id. at 1.
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 October 8, 2022, Rodriguez brought this action seeking judicial review of the Commissioner's final decision. On January 31, 2023, he filed an opening brief requesting that the Commissioner's decision be reversed and his claims for disability benefits be remanded for further administrative proceedings. Pl.'s Br. at 3-4, 9, 15, ECF No. 12. On March 21, 2023, the Commissioner filed a response brief. Br. in Support of Comm'r's Decision [hereinafter, cited as “Def.'s Resp.”], ECF No. 16. Rodriguez filed a reply brief on March 26, 2023. Pl.'s Reply Br., ECF No. 17.
II. ALJ'S FINDINGS AND CONCLUSIONS
Eligibility for disability insurance benefits or supplemental security income payments requires that the claimant be disabled. 42 U.S.C. §§ 423(a)(1)(E), 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. §§ 423(d)(1)(A), 1382c(a)(3)(A). “A claimant has the burden of proving 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 he 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, for ease of reference, this opinion cites 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 the claimant can still do despite his or 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 h[is] past work or other available work.” Kneeland, 850 F.3d at 754.
Here, ALJ Fallis evaluated Rodriguez's disability claims pursuant to the abovementioned sequential evaluation process. At step one, the ALJ found that Rodriguez had not engaged in substantial gainful activity since July 31, 2017 (his alleged disability onset date). Tr. at 15. At step two, the ALJ found that Rodriguez had the following severe impairments: degenerative disc disease of the lumbar and thoracic spine, hypertension, coronary artery disease, congestive heart failure, cerebrovascular accident, diabetes mellitus, and obesity. Id. at 15-16. At step three, the ALJ found that Rodriguez did not have an impairment or combination of impairments for presumptive disability: specifically, Rodriguez did not meet or equal any of the medical listings, including Listings 1.15 (disorders of the skeletal spine resulting in compromise of a nerve root(s)), 1.16 (lumbar spinal stenosis resulting in compromise of the cauda equina), 4.02 (chronic heart failure) and 4.02 (peripheral arterial disease) of 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 16-17.
Next, the ALJ found that Rodriguez retained the RFC to perform “sedentary work” but with certain non-exertional limitations. Id. at 17. At step four, he found that Rodriguez could perform, and his RFC does not preclude the performance of work-related activities required by, his past relevant work as a data entry clerk (DOT No. 203.582-054), a customer service representative (DOT No. 239.362-014), and user support analyst/desk representative (DOT No. 032.262-010) as they are generally performed in the national economy. Id. at 25. The ALJ concluded that Rodriguez had not been disabled since July 31, 2017 (the alleged disability onset date) through February 9, 2022 (the date of the ALJ's decision). Id. at 16.
The relevant disability period for a DIB claim is the disability onset date through the last date on which the claimant met the Act's insured requirement, i.e., the “date last insured,” whereas the relevant disability period for an SSI claim is the disability onset date through the date of the ALJ's decision. Hamilton-Provost v. Colvin, 605 Fed.Appx. 233, 237 n.5 (5th Cir. 2015). Here, for purposes of the DIB claim, the ALJ found that Rodriguez's date last insured was September 30, 2018. Tr. at 15.
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
On appeal, Rodriguez presents four issues for the Court. Pl.'s Br. at 3-4. He presents a structural constitutional challenge to the appointments of the ALJ and Appeals Council members who denied his disability application. He assigns three errors to ALJ Fallis's decision finding him not disabled: that the ALJ erred because he found that Rodriguez's “diabetic neuropathy” is not a medically determinable impairment, he rejected every single medical opinion on record and relied instead on his lay intuition to assess the RFC, and the three occupations the ALJ adopted as past relevant work are not past relevant work. Below, the Court addresses each in turn.
A. The Appointments of the Agency Adjudicators
Rodriguez argues that remand is required because the ALJ and Appeals Council members who denied his disability application had no legal authority to adjudicate his claims. Pl.'s Br. at 4, 13. He explains that when Nancy Berryhill purportedly appointed them in 2018, she was not Acting Commissioner of the Administration under the Federal Vacancies Reform Act (“FVRA”), 5 U.S.C. §§ 3345-3349, and as such, the ALJ and Appeals Council members were not properly appointed under the FVRA and the Appointments Clause of the U.S. Constitution. Id. at 13-14. Rodriguez asks the Court to remand the case to a new properly appointed ALJ for a de novo hearing and decision. Id. at 14.
Under the Appointments Clause, only the President, “Courts of Law,” or “Heads of Departments” may appoint “Officers of the United States.” U.S. Const., Art. II, § 2, cl. 2; Carr v. Saul, 141 S.Ct. 1352, 1357 (2021). On June 21, 2018, the Supreme Court determined that the ALJs of the Securities and Exchange Commission (“SEC”) were “Officers” rather than mere employees, and consequently, the appointment of SEC ALJs by SEC staff violated the Constitution. Lucia v. SEC, 138 S.Ct. 2044, 2047, 2052-53, 2055 (2018). Prior to Lucia, the Social Security Administration's (“SSA”) “ALJs had been selected by lower level staff rather than appointed by the head of the agency.” Carr, 141 S.Ct. at 1657. In response to Lucia, on July 16, 2018, Berryhill, then the purported Acting Commissioner of the SSA, ratified the appointments of all SSA ALJs and Appeals Council judges, including those who denied Rodriguez's disability application, and approved those appointments as her own. SSR 19-1p, 2019 WL 1324866, at *2 (SSA Mar. 15, 2019); Pl.'s Br. at 13-14. The crux of the issue Rodriguez presents is whether Berryhill was properly serving as Acting Commissioner under the FVRA when she ratified the appointments of the ALJs and the Appeal Council judges.
The FVRA governs the conditions under which acting officers may “temporarily carry out the duties of a vacant PAS office”-that is, an office “requiring Presidential appointment and Senate confirmation” pursuant to the Appointment Clause. NLRB v. SW Gen. Inc., 580 U.S. 288, 292-93 (2017). The SSA is headed by the Commissioner of Social Security, which is a PAS office. 42 U.S.C. §§ 901, 902(a)(1). Section 3345 of the FVRA dictates who may serve as an acting officer, and such an acting officer serves “temporarily in an acting capacity subject to the time limitations of section 3346.” 5 U.S.C. § 3345(a)(1)-(3). In turn, § 3346(a) provides, in relevant part, that an acting officer may serve “(1) for no longer than 210 days beginning on the date the vacancy occurs; or (2) . . . once a first or second nomination for the office is submitted to the Senate, from the date of such nomination for the period that the nomination is pending in the Senate.” Id. § 3346(a)(1)-(2) (emphasis added). Subsection 3346(a)(1)'s 210-day period is extended to 300 days when the vacancy occurs at the beginning of a presidential transition. Id. § 3349a(b).
The Supreme Court explained the purpose of the FVRA as follows:
Given th[e] provision [of the Appointment Clause], the responsibilities of an office requiring Presidential appointment and Senate confirmation-known as a “PAS” office- may go unperformed if a vacancy arises and the President and Senate cannot promptly agree on a replacement. Congress has long accounted for this reality by authorizing the President to direct certain officials to temporarily carry out the duties of a vacant PAS office in an acting capacity, without Senate confirmation. The [FVRA] is the latest version of that authorization.NLRB, 580 U.S. 288, 292-93.
Section 3345 provides that in the event of a vacancy, the “functions and duties of the office” may temporarily be performed by (1) the “first assistant to the office,” or, if the President “direct[s],” (2) another principal officer of the United States, or (3) another officer or employee of the agency, subject to additional conditions. 5 U.S.C. § 3345(a)(1)-(3).
On January 20, 2017, when President Trump took office, the position of the Commissioner (as well as that of the Deputy Commissioner) of the SSA became vacant. On January 21, 2017, Berryhill, who up to then served as the SSA's Deputy Commissioner for Operations, assumed the role of Acting Commissioner pursuant to a memorandum order that President Obama had issued in accordance with the FVRA in late 2016 establishing an order of succession for the SSA. By March 2018, no nomination for the Commissioner's office had yet been submitted, so, the Government Accountability Office (“GAO”) reported that Berryhill could not legally serve as Acting Commissioner, pursuant to §§ 3346(a)(1) and 3349a(b) of the FVRA, after November 16, 2017-i.e., 300 days after the Commissioner office became vacant. Following the GAO report, Berryhill stepped down as Acting Commissioner and returned to her role as Deputy Commissioner for Operations.
The facts regarding Berryhill's service in the Acting Commissioner's role as they are relevant to the FVRA are discussed in multiple judicial opinions. Because the parties' briefs here do not include citations to certain events and their dates, the Court draws some of the relevant facts from those opinions and other sources in order to provide a proper context for the issue presented here.
U.S. Gov't Accountability Office, Violation of the Time Limit Imposed by the Federal Vacancies Reform Act of 1998-Commissioner, Social Security Administration (Mar. 6, 2018), https://www.gao.gov/assets/b-329853.pdf (last visited Aug. 21, 2023).
Barack Obama, Providing an Order of Succession Within the Social Security Administration, 81 Fed.Reg. 96337, 2016 WL 7487744 (White House, Dec. 23, 2016).
Stephanie A., v. Kijakazi, No. 3:22-CV-00414-DJN, 2023 WL 5124692, at *10 (E.D. Va. July 24, 2023); Miller v. Comm'r of Soc. Sec., No. 4:21-CV-01007-O-BP, 2023 WL 3814551 at *3 & n.7 (N.D. Tex. June 5, 2023) (citing Extension of Expiration Dates for Two Body System Listings, 83 Fed.Reg. 13862, 2018 WL 1565569 (SSA Apr. 2, 2018)).
On April 17, 2018, President Trump nominated Andrew Saul to serve as Commissioner.After President Trump's nomination, Berryhill resumed her service as Acting Commissioner because the SSA interpreted that her resumed service was permitted by § 3346(a)(2) of the FVRA; she served in that role until Saul was sworn in on June 17, 2019. It was during this second term of Berryhill's service as Acting Commissioner that the Supreme Court issued Lucia and in response, on July 16, 2018, Berryhill ratified the appointments of all SSA ALJs and Appeals Council judges.
Stephanie A., 2023 WL 5124692, at *10; Def.'s Resp. at 3.
Joseph F. v. Comm'r of Soc. Sec., No. 22-12593, 2023 WL 3853682, at *2 (E.D. Mich. June 6, 2023); Miller, 2023 WL 3814551, at *4; Def.'s Resp. at 3.
With this canvas of the relevant facts, the Court returns to Rodriguez's arguments. He takes the position that consistent with the FVRA and the Appointment Clause, Berryhill could not continue to serve as Acting Commissioner beyond the time limitation set forth in § 3346(a)(1), that is, beyond November 16, 2017. Pl.'s Br. at 13. Therefore, Berryhill's subsequent ratification of the appointments, he argues, had no legal validity. Id. Rodriguez however overlooks § 3346(a)(2) of the FVRA.
The Fifth Circuit has not had an occasion to decide the issue presented here. The Fourth and Eighth Circuits have. Rush v. Kijakazi, 65 F.4th 114 (4th Cir. 2023); Dahle v. Kijakazi, 62 F.4th 424 (8th Cir. 2023). These courts have interpreted the FVRA to say that § 3346(a)(1) and § 3346(a)(2) are, by their plain text, disjunctive and independent, and therefore, § 3346(a)(2) provides an independent period of time for an individual to serve as an acting officer. Rush, 65 F.4th at 117; Dahle, 62 F.4th at 427 (“The use of ‘or' as a connector between subsections 1 and 2 requires the subsections be given distinct, independent, meanings.”). Thus, “[a]n acting officer may serve while a nomination is pending in accordance with § 3346(a)(2) regardless of whether her service under § 3346(a)(1) expired before the nomination was submitted.” Rush, 65 F.4th at 124; see also Dahle, 62 F.4th at 427 (“[T]he FVRA authorizes an individual who has ceased serving under § 3346(a)(1) to begin serving again under § 3346(a)(2) once a nomination is sent to the Senate.”). The Fourth and Eighth Circuits have concluded that Berryhill was properly serving as the SSA's Acting Commissioner when she ratified the appointments of the SSA ALJs in July 2018. Rush, 65 F.4th at 124; Dahle, 62 F.4th at 429.
Moreover, “numerous [lower courts] . . . have found that Berryhill was properly serving as Acting Commissioner and thus, had properly appointed the Social Security ALJs and Appeals Council members in question.” Carmona ex. rel. F.I.C v. Kijakazi, No. CV 22-275-GBW-CJB, 2023 WL 4762926, at *17 (D. Del. July 26, 2023) (collecting illustrative cases); see also Def.'s Resp. at 6 & n.6 (collecting numerous lower court opinions where the courts have agreed that § 3346(a)(2) enabled Berryhill to resume her role as Acting Commissioner as of the date on which Andrew Saul was nominated for Commissioner in April 2018).
In view of Rush and Dahle, and the great weight of lower court decisions, the Court likewise holds that Berryhill was properly serving as the SSA's Acting Commissioner when she ratified the appointments of the SSA ALJs and Appeals Council judges in July 2018. Consequently, it rejects Rodriguez's argument that remand is required because the ALJ and Appeals Council members who denied his application were not properly appointed.
B. The ALJ's Finding of Neuropathy as Not Being a Medically Determinable Impairment
Rodriguez argues that the ALJ committed reversible error in finding that “diabetic neuropathy” is not a medically determinable impairment. Pl.'s Br. at 9 (citing Tr. at 16). He adds that the ALJ could have found that “diabetic neuropathy” is a non-severe medically determinable impairment, but instead, he found that it is not a medically determinable impairment. Id. This, Rodriguez emphasizes, is not a distinction without a difference because “[d]oing so allowed the ALJ to completely ignore any limitations related to diabetic neuropathy” in assessing the RFC. Pl.'s Reply Br. at 3 (citing, among others, 20 C.F.R. § 404.1545(a)(2) (“We will consider all of your medically determinable impairments of which we are aware, including your medically determinable impairments that are not ‘severe[]' . . . when we assess your residual functional capacity.”)); Pl.'s Br. at 9 (citing same).
At step two, an ALJ determines whether claimant has a “medically determinable physical or mental impairment” that meets the duration requirement and is severe. 20 C.F.R. § 404.1520(a)(4)(ii). The ALJ found several severe, medically determinable impairments, including “diabetes mellitus.” Tr. at 15-16. However, he found that “neuropathy is not a medically determinable impairment.” Id. at 16. He explained that “there were no medical signs or laboratory findings to substantiate the existence of a medically determinable impairment for neuropathy,” and specifically, that “[t]he record does not include abnormal exams or positive EMG/nerve conduction study testing.” Id. In support of his argument that the ALJ erred, Rodriguez points out that on March 15, 2017, Eshamumerene Esin, M.D., examined Mr. Rodriguez, diagnosed him with “type 2 diabetes mellitus with diabetic neuropathy,” and prescribed gabapentin for burning of the feet associated with “diabetic neuropathy.” Pl.'s Br. at 9 (citing Tr. at 444-45, 448).
The Act defines “disability” as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A) (emphasis added); see also 20 C.F.R. § 404.1509 (“Unless your impairment is expected to result in death, it must have lasted or must be expected to last for a continuous period of at least 12 months. We call this the duration requirement.”).
As mentioned, the ALJ found that Rodriguez's “diabetes mellitus” is a severe, medically determinable impairment, but found that “neuropathy is not a medically determinable impairment.” Tr. at 15-16. In assigning error to the ALJ, Rodriguez conflates the ALJ's mention of “neuropathy” with “diabetic neuropathy,” i.e., neuropathy due to his diabetes mellitus. However, the ALJ's decision, read as a whole, convinces the Court that his step two mention of “neuropathy” is distinct from Rodriguez's diabetic neuropathy, which is subsumed in the ALJ's mention of “diabetes mellitus.”
In the March 15, 2017 treatment note, under the heading “Assessment/Plan,” Dr. Esin noted two assessments: (1) “Type 2 diabetes mellitus with diabetic polyneuropathy” and (2) “Neuropathy.” Tr. at 444-45. Subsequent medical records mention “Peripheral sensory neuropathy due to type 2 diabetes mellitus” and “Peripheral neuritis,” often denoting the onset date of each as March 15, 2017. E.g., id. at 414 (record dated Apr. 24, 2019); id. at 636 (record dated Oct. 7, 2020).
Further, in assessing the RFC, the ALJ expressly considered Dr. Esin's March 15, 2017 treatment note, among other medical evidence, in support of his prefatory statement that “[t]he record reveals a history of symptoms attributed to,” among other impairments, “diabetes mellitus.” Tr. at 19. Specifically, he wrote:
Clinic visit summary from UMC Neighborhood Health Center - George Dieter Clinic dated March 15, 2017 documents a visit for type 2 diabetes mellitus with diabetic polyneuropathy. The claimant['s] neuropathy was noted to be improving. He was given a trial of Gabapentin and was to follow-up as needed.Id. at 20 (citing Tr. at 444-49, 679-84). The note indicates that during that visit, Rodriguez complained of burning sensation in his feet, id. at 445, and at the hearing, he testified that he gets burning in his feet from his diabetes, id. at 60. Further, the ALJ expressly considered Rodriguez's testimony that “he experiences edema so that his skin begins to burn, and his feet hurt,” and that “the swelling is on both sides and extends all the way from his hips to his toes.” Id. at 19.
See also National Institute of Diabetes & Digestive and Kidney Diseases, What Is Diabetic Neuropathy?, https://www.niddk.nih.gov/health-information/diabetes/overview/preventing-problems/nerve-damage-diabetic-neuropathies/what-is-diabetic-neuropathy (listing, inter alia, burning sensation in lower legs as symptoms of diabetic neuropathy) (last visited Aug. 21, 2023).
At the administrative hearing, Rodriguez testified: “When I sit for a long period of time . . . I get up [sic] anemia [sic], which is you know, like your body retains water and your lower limbs swell up to the point where my skin burns, and my feet hurt because they're so swollen.” Tr. at 48.
All these suggest that the ALJ's mention of “diabetes mellitus” subsumes Rodriguez's neuropathy due to his diabetes mellitus as a component thereof. Therefore, the Court is not persuaded by Rodriguez's argument that the ALJ erred because he found that his “diabetes neuropathy” is not a medically determinable impairment. See Anderson v. Colvin, 514 Fed.Appx. 756, 761 (10th Cir. 2013) (rejecting argument that the ALJ erred in concluding that Alzheimer's disease was not a medically determinable impairment, reasoning that the ALJ found that the cognitive disorder was a severe, medically determinable impairment and that “the failure to label [the claimant's] cognitive impairment as Alzheimer's is harmless error because the focus of the analysis is on the functional limitations caused by the impairment, not on the label attached to the impairment”).
See also Knight v. Kijakazi, No. 22-60539, 2023 WL 234769, at *2 (5th Cir. Jan. 18, 2023) (unpublished) (rejecting argument that ALJ erred at step two by not listing claimant's tinnitus as a severe impairment, observing that the ALJ found that the claimant's “hearing loss” was a severe impairment and stating that “[a]lthough [the claimant's] tinnitus was not categorized as a severe impairment, the ALJ did recognize it as a component of her hearing loss, and addressed it in evaluating her RFC”).
Moreover, even assuming that the ALJ erred in finding that “diabetic neuropathy” was not a medically determinable impairment, such error was harmless because the ALJ found, at step two, that at least one other impairment is a severe, medically determinable impairment; considered, in assessing the RFC, Rodriguez's diabetic neuropathy; and ultimately found, at step four, that Rodriguez is not disabled. Cf., e.g., Adams v. Bowen, 833 F.2d 509, 512 (5th Cir. 1987) (holding ALJ's failure to find an impairment severe at step two was not a basis for remand where the ALJ proceeded past step two and found at step four that the claimant's “impairment did not disable her from performing her past sedentary work”); Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016) (“[T]he failure to find a particular impairment severe at step two is not reversible error when the ALJ finds that at least one other impairment is severe” and therefore, “proceed[s] to the next step.”).
In a brief sentence, the Commissioner raises this argument, Def.'s Resp. at 22, but Rodriguez does not address it in his reply brief.
Although Rodriguez contends that the alleged error “allowed [the ALJ] to completely ignore any limitations related to diabetic neuropathy,” Pl.'s Reply Br. at 3, neither in his opening brief, nor in his reply brief, does Rodriguez identify any additional limitations the ALJ should have included in the RFC on account of his diabetic neuropathy-separate from the limitations the ALJ included on account of various impairments, including diabetes mellitus. See Def.'s Resp. at 22 (“Plaintiff's cites no relevant evidence suggesting any functional consequences of diabetic neuropathy that the ALJ's highly-restrictive limited sedentary RFC did not fully accommodate.”). Indeed, Rodriguez maintains that the question before the Court is not that there were or were not any “significant limitations arising from Mr. Rodriguez's MDI [(i.e., medically determinable impairment)] of diabetic neuropathy.” Pl.'s Reply Br. 2.
Finally, the ALJ did not err in finding that “neuropathy”-separate from diabetic neuropathy-is not a medically determinable impairment. A “physical or mental impairment” is one that “results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. §§ 423(d)(3) (emphasis added). Therefore, “a physical or mental impairment must be established by objective medical evidence from an acceptable medical source.” 20 C.F.R. § 404.1521. “Objective medical evidence is medical signs, laboratory findings, or both.” Id. § 404.1513(a)(1); see also id. § 404.1502(g) (“Signs means one or more anatomical, physiological, or psychological abnormalities that can be observed, apart from your statements (symptoms). Signs must be shown by medically acceptable clinical diagnostic techniques.”); Ivy v. Sullivan, 898 F.2d 1045, 1048-49 (5th Cir. 1990) (“Medically acceptable evidence includes observations made by a physician during physical examination and is not limited to the narrow strictures of laboratory findings or tests results.”). The agency adjudicators “will not use [a claimant's] statement of symptoms, a diagnosis, or a medical opinion to establish the existence of an impairment(s).” Id. § 404.1521; see also SSR 96-4p, 1996 WL 374187, at *1 (SSA July 2, 1996) (“[U]nder no circumstances may the existence of an impairment be established on the basis of symptoms alone.”).
Rodriguez does not argue this point, but the Court addresses it for the sake of completeness.
Social Security Ruling 96-4p explains the distinction between symptoms and signs: “symptoms . . . are an individual's own perception or description of the impact of his or her physical or mental impairment(s).... However, when any of these manifestations is an anatomical, physiological, or psychological abnormality that can be shown by medically acceptable clinical diagnostic techniques, it represents a medical sign rather than a symptom.” SSR 96-4p, 1996 WL 374187, at *1 n. 2. The ruling then reemphasizes the importance of objective medical evidence to a determination of disability:
[R]egardless of how many symptoms an individual alleges, or how genuine the individual's complaints may appear to be, the existence of a medically determinable physical or mental impairment cannot be established in the absence of objective medical abnormalities; i.e., medical signs and laboratory findings ....In claims in which there are no medical signs or laboratory findings to substantiate the existence of a medically determinable physical or mental impairment, the individual must be found not disabled at step 2 of the sequential evaluation process.Id. at *1-*2.
Here, Dr. Esin's treatment note does not mention any laboratory findings or tests results that substantiate his assessment of “neuropathy.” The “Physical Exam” section of the note does not list any observation made by Dr. Esin that supports his assessment of “neuropathy.” On the contrary, it says that the neurological examination exhibited that Rodriguez had normal balance and gait. Tr. at 448; cf. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 11.14 (The agency's listing for peripheral neuropathy requires “[d]isorganization of motor function in two extremities . . ., resulting in an extreme limitation . . . in the ability to . . . balance while standing or walking.”). Elsewhere in the note, it is stated that “[t]his 46 year old male presents for diabetes and burning senstation [sic] of feet,” and that Rodriguez complained of “burning semsation [sic] of his feet b/l [(i.e., bilateral)]” and that it is “occasionally associated with tingling.” Id. at 445. The ALJ could therefore have reasonably concluded that Dr. Esin's assessment of “neuropathy” was not based on any observations the doctor made during physical examination, much less any laboratory findings or tests, but instead was based on Rodriguez's subjective reports.
Consequently, the ALJ did not err in finding that “neuropathy” (as separate from diabetic neuropathy) is not a medically determinable impairment. See Davis v. Berryhill, 743 Fed.Appx. 846, 849 (9th Cir. 2018) (holding that ALJ did not err at step two by not finding that peripheral neuropathy constituted a medically determinable impairment because the claimant's treating physician's diagnosis of peripheral neuropathy was not supported by objective medical evidence from the physician or from elsewhere in the record but was based upon the claimant's subjective reports); Beach v. Saul, 846 Fed.Appx. 434, 435 (9th Cir. 2021) (“Beach's own statements are insufficient to establish a[] [medically determinable impairment]. Nor is a doctor's note that Beach ‘possibly' had Lyme disease based on her self-report sufficient evidence that she had that condition.” (internal citations omitted) (citing, among others, 20 C.F.R. § 404.1521)); Ukolov v. Barnhart, 420 F.3d 1002, 1005-06 (9th Cir. 2005) (“Dr. Nilaver reported Ukolov's subjective complaints ....These portions of the records do not support a finding of impairment because they are based solely on Ukolov's own ‘perception or description' of his problems.”).
C. The ALJ's Alleged “Rejections” of the Medical Source Opinions and Reliance on Lay Reading of the Medical Evidence
Rodriguez argues that the ALJ rejected every single medical opinion of record and relied instead upon his lay intuition as to the functional limitations caused by a complex combination of severe cardiac impairments. Pl.'s Br. at 4. This error, he argues, warrants remand. Id. at 8; Reply Br. at 1. Before addressing this argument, the Court addresses a subsidiary argument whether the ALJ erred by not providing sufficient explanations of how persuasive he found the medical opinions to be pursuant to 20 C.F.R. § 404.1520c(b)-because the subsidiary argument serves as a premise behind Rodriguez's overall argument and further because the Commissioner disputes it.
1. The ALJ's Explanations of His Persuasiveness Findings
ALJs are required to “articulate in [his] . . . decision how persuasive [he] find[s] all of the medical opinions and all of the prior administrative medical findings in [the claimant's] case record.” 20 C.F.R. § 404.1520c(b). Section 404.1520c sets forth several factors for determining the persuasiveness of medical opinions and prior administrative medical findings. Id. §§ 404.1520c(c)(1)-(5). “[T]he most important factors” are “supportability” and “consistency.” Id. § 404.1520c(b)(2). “Supportability means the extent to which a medical source supports the medical opinion by explaining the ‘relevant objective medical evidence,'” whereas “[c]onsistency means the extent to which a medical opinion is ‘consistent with the evidence from other medical sources and nonmedical sources'” in the record. Woods v. Kijakazi, 32 F.4th 785, 791-92 (9th Cir. 2022) (cleaned up) (quoting 20 C.F.R. §§ 404.1520c(c)(1)-(2)). The ALJ must “explain how [he] considered the supportability and consistency factors for a medical source's medical opinions or prior administrative findings” in his written decision. 20 C.F.R. § 404.1520c(b)(2).
See Bakke v. Kijakazi, 62 F.4th 1061, 1068, 1069 & n.4 (7th Cir. 2023) (reviewing whether ALJ examined medical opinions “for consistency with the record and internal supportability” and articulated each of his consistency and supportability analyses in his written decision).
Specifically, Rodriguez points out the record before the ALJ contained four medical source opinions as to his functional limitations. Pl.'s Br. at 4. He argues that the ALJ “rejected” all four opinions with no explanation, no analysis, and no citation to contradictory evidence. Id. at 3, 5. He adds that in so “rejecting,” the ALJ used the exact same vague and conclusory language; did not provide any explanation for which limitations in the opinions he was rejecting; and did not describe any of the treatment records, exams, objective testing, or other opinion evidence that allegedly contradicted the opinions. Id. at 4-5, 8. The Commissioner counters that the ALJ's evaluation of the medical opinions fully comports with the relevant regulations. Def.'s Resp. at 15.
The four medical sources at issue are: (1) Majd Michael, MD, a consultative examiner, who examined Rodriguez at the request of the Administration, (2) Ali Nasur, M.D., a cardiologist who has treated Rodriguez as early as May 2017; (3) Charles Murphy, M.D., state agency medical consultant (SAMC); and (4) Nancy Armstrong, M.D., a second SAMC. Dr. Michael provided a medical report based on his consultative examination, and the report, toward its end, includes his opinions about Rodriguez's functional limitations. Tr. at 750-55. Dr. Nasur provided a medical assessment of ability to do work-related physical activities, which includes his opinions on various functional limitations that are commonly considered in formulating an RFC. Id. at 501-02. And each SAMC provided an RFC assessment, which, like Dr Nasur's medical assessment, included his/her opinions on various RFC limitations. Id. at 95-97, 114-17.
The ALJ found that Dr. Nasur's and Dr. Michael's opinions were “not persuasive” and that the SAMCs' findings were “partially persuasive.” Tr. at 24-25. Before addressing the persuasiveness of their opinions and findings, the ALJ, in assessing the RFC, discussed at length Dr. Michael's medical report, Tr. at 22-23, and Dr. Nasur's medical assessment, id. at 20-21. Further, the ALJ discussed, but to a lesser extent, the SAMCs' RFC assessments. id. at 24. These discussions demonstrate that the ALJ considered their medical opinions in assessing Rodriguez's RFC. Therefore, Rodriguez's argument boils down to this: the ALJ did not provide sufficient explanation of his consideration of the opinions as required under § 404.1520c(b).The Court agrees.
See Pl.'s Br. at 4 (citing 20 C.F.R. § 404.1520c(b)); Id. at 5 (“The ALJ's failure to provide any meaningful analysis or citation to evidence to support his rejection of every single medical opinion of record requires remand for further articulation.”); Id. at 8 (“As previously explained, the ALJ did not articulate the basis for this finding or cite any evidence whatsoever as support for his position.”).
In finding Dr. Nasur's opinions unpersuasive, the ALJ explained only that “the claimant's treatment records, exams, objective testing, and other opinion evidence supports finding that the claimant is both more limited and not as limited as indicated by Dr. Nasur,” citing to the two-page medical assessment prepared by Dr. Nasur. Tr. at 24 (citing Exhibit 4F/17-18, that is, Tr. at 20-21). The ALJ repeated the same explanation for finding Dr. Michael's report unpersuasive, citing to the page of the report that contains his opinions on Rodriguez's functional limitations, though he additionally explained that the report “was based on only a one-time single examination.” Id. (citing Exhibit 8F, that is, Tr. at 755). The ALJ provided no discussion of the supportability and consistency of these two physicians' opinions.
The Court therefore concludes that the ALJ did not provide an adequate explanation of his consideration of Dr. Nasur's and Dr. Michael's opinions as required under § 404.1520c(b). See Miller v. Kijakazi, No. 22-60541, 2023 WL 234773, at *3 n.2, *4 (5th Cir. Jan. 18, 2023) (unpublished) (stating that the ALJ did not provide sufficient explanation of her consideration of the medical opinions because her simple statement that “the physical examination findings do not support a more limiting residual functional capacity than what is shown in the findings herein[] (See 1-17F)” provided no explanation of the supportability and consistency of the opinions); Bradley v. Kijakazi, No. 3:22CV277-RP, 2023 WL 4278793, at *3 (N.D. Miss. June 29, 2023) (stating that “cookie-cutter explanation” is insufficient to meet § 404.1520c(b)'s articulation requirements).
The Court reaches the same conclusion about the ALJ's explanation of why he found the SAMCs' findings partially persuasive. Tr. at 24. Here, too, the ALJ uses the same cookie-cutter explanation as he did with Dr. Nasur's and Dr. Michael's opinions. Id. In an attempt to discuss the consistency of the SAMCs' findings, the ALJ added two conclusory statements that the SAMCs' findings are “generally consistent with the objective medical evidence at hearing level” and that “longitudinal treatment records support the limitations identified.” Id. These explanations are insufficient. See Pearson v. Comm'r of Soc. Sec., No. 1:20-CV-166, 2021 WL 3708047, at *4 (S.D.Miss. Aug. 11, 2021) (stating that the ALJ must provide enough explanation of consistency and supportability to allow for meaningful review, or “[s]tated differently, there must be a discernible ‘logic bridge' between the evidence and the ALJ's persuasiveness finding”).
Even so, as explained below, the ALJ's error was harmless. The doctrine of harmless error applies to an ALJ's failure to comply with § 404.1520c's articulation requirements. Miller, 2023 WL 234773, at *3 (citing Shineski v. Sanders, 556 U.S. 396, 407-08 (2009) (holding that the harmless error doctrine applies to administrative rulings)); Austin v. Kijakazi, 52 F.4th 723, 729 (8th Cir. 2022) (applying the harmless error doctrine to ALJ's articulation and evaluation of the persuasiveness of medical opinions under § 404.1520c); Bischoff v. Bischoff, No. 22-16022, 2023 WL 5319251, at *1 (9th Cir. Aug. 18, 2023) (unpublished) (mem.) (“[E]ven if the ALJ erred in failing to provide a more detailed explanation about the ‘supportability' and ‘consistency' of any of the medical opinions, any error was harmless.”). An error is harmless “unless the substantial rights of a party have been affected” by the error. Rollins v. Astrue, 464 Fed.Appx. 353, 358 (5th Cir. 2012) (citing Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988)). “Where the resulting disability determination remains unchanged, . . . no substantial rights have been affected.” Qualls v. Astrue, 339 Fed.Appx. 461, 464 (5th Cir. 2009) (citing Mays, 837 F.2d at 1364).
The burden is on the plaintiff to show that the ALJ's error was “prejudicial”-that is, the error affected his substantial rights. Jones v. Astrue, 691 F.3d 730, 734 & n.6 (5th Cir. 2012); see also Shave v. Apfel, 238 F.3d 592, 597 (5th Cir. 2001) (“This [c]ourt requires . . . a showing that the claimant was prejudiced by the agency's failure to follow a particular rule before such a failure will be permitted to serve as the basis for relief from an ALJ's decision.”).
See also Keel, 986 F.3d at 556 (“Harmless error exists when it is inconceivable that a different administrative conclusion would have been reached even if the ALJ did not err.”).
Turning first to the SAMCs' findings, they assessed identical functional limitations, compare Tr. at 95-96, with id. at 114-116, which differ from the limitations in the ALJ's RFC formulation only in the following respects: Whereas the SAMCs found that there were no environmental limitations, the ALJ's RFC formulation states that Rodriguez “must avoid concentrated exposure to extreme heat, extreme cold, and environmental irritants such as fumes, odors, and gases” and “must avoid all use of hazardous moving machinery, and he must avoid all exposure to unprotected heights.” Compare id., at 115, with id. at 17. In other words, the ALJ's RFC formulation is more restrictive, and therefore, more favorable to Rodriguez, than the RFC assessed by the SAMCs. As such, the ALJ's § 404.1520c error was harmless insofar as the error led to the ALJ's non-adoption of all of the limitations assessed by the SAMCs. See, e.g., Baker o/b/o Baker v. Berryhill, No. 1:15-CV-00943-MAT, 2018 WL 1173782, at *4 (W.D.N.Y. Mar. 6, 2018) (“Remand is generally not warranted where the ALJ's RFC finding is more restrictive than the limitations set forth in the medical opinions of record, inasmuch as any alleged error in this regard inures to the claimant's benefit.”); Griffin v. Kijakazi, No. 2:22-CV-57-DCP, 2023 WL 3573734, at *11 (E.D. Tenn. May 19, 2023) (finding that “any error by the ALJ in failing to sufficiently articulate the consistency and supportability factors was . . . harmless for another reason, namely, that the ALJ imposed greater limitations than those opined by the [SAMC]s”).
See also Colson v. Colvin, 120 F.Supp.3d 778, 791 (N.D. Ill. 2015) (finding the limitations suggested by consultative examiner provided substantial evidence for the more restrictive limitations the ALJ included in the RFC).
Next, turning to Dr. Michael's report, although the report lists various functional limitations, it does not describe the extent of the limitations using the language of duration or frequency such as “never,” “occasionally,” or “frequently.” Tr. at 755. Consequently, the RFC's limitations found by the ALJ are consistent with the limitations assessed by Dr. Michael: For example, the ALJ's finding that Rodriguez can occasionally stoop and crouch is consistent with Dr. Michael's opinion that there are limitations with stooping and crouching. Compare Tr. at 17, with id. at 755. So, the ALJ's § 404.1520c error as to Dr. Michael's opinions was inconsequential to the ultimate nondisability determination.
See also SSR 83-10, 1983 WL 31251, at *5-*6 (SSA 1983) (explaining that “occasional” means “up to one-third of the time” and “frequent” means “one-third to two-thirds of the time”); POMS DI 25001.001, https://secure.ssa.gov/poms.nsf/lnx/0425001001 (last visited Aug. 21, 2023) (describing frequency of demands of the selected characteristics of occupations).
Finally, regarding the limitations assessed by Dr. Nasur, the Commissioner points out, and Rodriguez makes no attempt to dispute, that almost all of the limitations included in the RFC are either more restrictive than, or the same as, Dr. Nasur's limitations. Def.'s Resp. at 22. They differ in the following respects: Whereas Dr. Nasur found that Rodriguez can occasionally balance and can never climb, kneel or crawl, Tr. at 501-02, the ALJ's RFC formulation does not include any limitation as to balancing and provides that he can never climb ladders, ropes, or scaffolds, can occasionally climb ramps or stairs, and can occasionally kneel and crawl, id. at 17. Nevertheless, as the Commissioner points out, see Def.'s Resp. at 20, none of the jobs relied on by the ALJ at step four as Rodriguez's past relevant work requires climbing, balancing, kneeling, or crawling as those jobs are described in the Dictionary of Occupational Titles. Consequently, the ALJ's § 404.1520c error was harmless insofar as the error led to the ALJ's non-adoption of all of the limitations assessed by Dr. Nasur. See Simmons v. Colvin, 639 Fed.Appx. 446, 447 (9th Cir. 2016) (“[A]ny error in failing to incorporate certain postural limitations into the RFC was harmless because none of the jobs the ALJ identified at step four of the sequential analysis require climbing, balancing, stooping, kneeling, crouching, or crawling.” (citing to the Dictionary of Occupational Titles)).
See Dep't of Labor, Dictionary of Occupational Titles § 203.582-054, 1991 WL 671700 (data entry clerk) (4th Ed. 1991) (data entry clerk) (describing that the climbing, balancing, kneeling, and crawling activities as “Not Present - Activity or condition does not exist”); Id. § 239.362-014, 1991 WL 672224 (customer service representative) (same); Id. § 032.262-010, 1991 WL 646554 (user support analyst/desk representative) (same).
2. Whether the ALJ Relied on His Lay Reading of the Medical Evidence
Rodriguez argues that because the ALJ “rejected” every single medical source opinion of the record without citation to contradictory evidence and without medical evidence to support this “rejection,” he must necessarily have relied “on nothing other than his own lay reading of complex medical evidence” in formulating the RFC. Pl.'s Br. 8; Pl.'s Reply Br. at 2. Therefore, he continues, remand for further consideration is required. Pl.'s Br. 8. For the following reasons, the Court is not persuaded.
As to this argument, Rodriguez clarifies that he does not argue that the ALJ's RFC determination is not supported by substantial evidence. Pl. Reply Br. at 1.
Contrary to Rodriguez's argument, the ALJ did not reject in toto the SAMCs' RFC assessments; instead, he found those assessments to be “partially persuasive.” Tr. at 24. See Rodriguez v. Comm'r of Soc. Sec., No. 4:23-CV-175-BP, 2023 WL 4207451, at *5 (N.D. Tex. June 27, 2023) (“Assigning less persuasive merit to . . . a specific evidentiary source is a far cry from rejecting that source in its entirety.”). Indeed, as discussed above, the limitations in the ALJ's RFC formulation differ from the limitations assessed by the SAMCs only in respect to the environmental limitations, and even then, the ALJ's environmental limitations are more restrictive than those of the SAMC. So, the ALJ adopted most of the SAMCs' RFC assessments.
And the environmental limitations included in the ALJ's RFC match those assessed by Dr. Nasur by the types or categories of environmental limitations (for example, dust, temperature extremes, machinery, heights, etc.), though for each category, the ALJ's formulated limitation is either more restrictive than, or the same as, that assessed by Dr. Nasur. No other medical source opinions of record provide environmental limitations broken down by such categories. Compare Tr. at 115 (responding “No” to the question “[d]oes the individual have environmental limitations?” (SAMC Armstrong's RFC assessment); id. at 755 (“There are relevant workplace environmental limitations due to congestive heart failure, shortness of breath on exertion and lower extremity edema.” (Dr. Michael's consultative examination report)). So, although the ALJ determined that Dr. Nasur's medical assessment was not persuasive, it appears that he accepted Dr. Nasur's opinions, at a minimum, regarding the doctor's environmental limitations. See Winsted v. Berryhill, 923 F.3d 472, 478 (7th Cir. 2019) (“The court applies a common-sense reading to . . . an ALJ's decision.”).
Environmental limitations pertain to a claimant's ability to tolerate “extremes of temperature, noise, . . . vibration, . . . fumes, dust, and poor ventilation,” and his ability to work with “hazards such as unprotected elevations and dangerous moving machinery.” SSR 85-15, 1985 WL 56857, at *8 (SSA 1985).
Compare id. at 502 (Dr. Nasur's assessment) (opining that there are significant restrictions as to temperature extremes, moving machinery, and fumes, but no significant restrictions as to height and dust, humidity, chemicals, noise, vibration), with id. at 17 (The ALJ's RFC) (“The claimant must avoid concentrated exposure to extreme heat, extreme cold, and environmental irritants such as fumes, odors, and gases. The claimant must avoid all use of hazardous moving machinery, and he must avoid all exposure to unprotected heights.”).
Moreover, in assessing the RFC, the ALJ considered and extensively discussed various treatment notes and reports from multiple physicians and medical test results. Tr. at 17-24. They include treatment notes and reports from Dr. Nasur-separate and apart from his assessments of Rodriguez's functional limitations. E.g., id. at 20 (citing Ex. 3F/5, i.e., Tr. at 472; Ex. 4F/21-23, i.e., Tr. at 505-07); id. at 21 (citing Ex. 4F/11-15, i.e., Tr. at 495-99; Ex. 4F/44-48, i.e., Tr. at 528-32; Ex. 5F/18-47, i.e., Tr. at 577-606).
All these persuade the Court that in formulating the RFC, the ALJ relied on various medical records as well as some of the medical source opinions regarding Rodriguez's functional limitations. See Rounds v. Comm'r, Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (“[T]he ALJ is responsible for translating and incorporating clinical findings into a succinct RFC.”); Matta v. Astrue, 508 Fed.Appx. 53, 56 (2d Cir. 2013) (“Although the ALJ's conclusion may not perfectly correspond with any of the opinions of medical sources cited in his decision, he was entitled to weigh all of the evidence available to make an RFC finding that was consistent with the record as a whole.”). Remand is not warranted on this ground.
D. The ALJ's Determination of Past Relevant Work
At step four, the ALJ identified and adopted the following jobs as Rodriguez's past relevant work: data entry clerk, customer service representative, and user support analyst/desk representative. Tr. at 25. The ALJ found that Rodriguez could perform, and his RFC does not preclude the performance of work-related activities required by, these jobs as they are generally performed in the national economy. Id. at 26. Rodriguez argues that remand is required because the three occupations the ALJ adopted are not past relevant work. Pl.'s Br. at 3.
A job constitutes past relevant work if it was performed (1) at the level of “substantial gainful activity”; (2) within the past 15 years; and (3) long enough for the claimant to have learned the job. 20 §§ 404.1560(b)(1); 404.1565(a); Copeland v. Colvin, 771 F.3d 920, 924 (5th Cir. 2014). “At step four, a claimant has the burden to prove that he cannot perform his past relevant work, either as actually performed or as generally performed in the national economy.” Stacy v. Colvin, 825 F.3d 563, 569 (9th Cir. 2016) (internal quotes omitted); see also Audler, 501 F.3d at 448 (“The claimant bears the burden of showing that [he] is disabled through the first four steps of the analysis.”). “The necessary consequence of this burden is that the claimant has the burden of showing that certain work experience is not past relevant work.” Barnes v. Sullivan, 932 F.2d 1356, 1359 (11th Cir. 1991).
Specifically, Rodriguez argues that the job of user support analyst/desk representative (help desk clerk) is not past relevant work because he did not perform it long enough to learn to do it. Pl.'s Br. at 10. He also argues that the jobs of data entry clerk and customer service representative are not past relevant work because he never performed these jobs at the level of substantial gainful activity. Id. at 11. The Commissioner disputes these arguments. Def.'s Br. at 23-24. In particular, she contends that the job of data entry clerk was performed at the substantial gainful activity level. Id. at 24.
To determine whether the job was performed at the level of substantial gainful activity, the earnings derived from the job are considered. 20 C.F.R. § 404.1574(a)(1). If the amount of the claimant's monthly average earnings from the job equals or exceeds a certain threshold amount of monthly earnings, as calculated by a formula set by the Commissioner, the job is presumed to constitute substantial gainful activity. Id. § 404.1574(b)(2)(ii); White v. Heckler, 740 F.2d 390, 394 (5th Cir. 1984). If, however, it falls below that threshold, the job is presumed not to constitute substantial gainful activity. Id. § 404.1574(b)(3)(i); Copeland, 771 F.3d at 927. For the periods relevant here, the threshold amount of monthly earnings is $940 in 2008, $980 in 2009, and $1,000 in 2010. POMS DI 10501.015, Tables of SGA Earnings Guidelines, Table 2, https://secure.ssa.gov/apps10/poms.nsf/lnx/0410501015 (last visited Aug. 21, 2023).
Rodriguez argues that he worked as a data entry clerk for Burnett Companies Consolidated “from 2008 through 2010.” Pl.'s Br. at 11 (emphasis added). Citing to a detailed earnings query report, he points out that he earned from Burnett $10,742.74 in 2008, $5,906.89 in 2009, and $6,664.00 in 2010. Id. He posits that his average monthly earnings as a data entry clerk were $895 in 2008, $492 in 2009, and $555 in 2010, and each of these earning amounts is less than the threshold amount of monthly earnings for the respective year. Id. at 11-12.
It appears that Rodriguez arrived at these average monthly earning amounts by dividing the total earnings for a given year by twelve-as if he worked as a data entry clerk for the entirety of the year. However, the detailed earnings query report shows that in each of the three years, he held a second job for a different employer-suggesting that he worked as a data entry clerk for less than twelve months in each year. Tr. at 267-68. Where, as here, a claimant performed a job less than a full calendar year, “[e]arnings are generally averaged over the actual period of time in which the work was performed,” not “over the entire year.” SSR 83-35, 1983 WL 31257, at *1 (SSA Jan. 11983); see also id. at *3 (providing example of claimant with reported earnings from January to August and identifying the “actual period of work involved” as “the 8-month period from January through August,” not 12 months (Example A)); see also Schlegel v. Comm'r of Soc. Sec., No. 6:16-CV-1236-ORL-DCI, 2017 WL 2379811, at *2 (M.D. Fla. June 1, 2017) (“[A] claimant's average monthly earnings while doing prior work is calculated by averaging the claimant's earnings over the actual period of work involved, not over the entire year.”).
Cf. also SSR 83-35, 1983 WL 31257, at *2 (“Generally, such earnings are to be averaged over the entire period of work requiring evaluation. However, it will be necessary to average separately the distinct periods of work involved when there is a regulatory change in the [substantial gainful activity] earnings level or there is a significant change in work patterns or earnings.”); 20 C.F.R. 404.1574a(a)-(b).
The detailed earnings query report does not include any information about how long in a given year he worked for each of the two employers. Rodriguez, who has the burden of showing that certain work experience is not past relevant work, does not point to any evidence that shows how many months he worked as a data entry clerk in each of 2008, 2009, and 2010. The Commissioner however points out that at a minimum, Rodriguez worked for six months as a data entry clerk in 2010 and argues therefore that his average monthly earnings exceeded the threshold amount for that year. Def.'s Br. at 24. In his reply brief, Rodriguez does not address the Commissioner's argument.
In a work history report that Rodriguez submitted before the ALJ's hearing took place, Rodriguez self-reported that he worked as a data entry clerk and as a service representative from January 2008 to June 2010 and as a help desk clerk from June 2010 to February 2011. Tr. at 273. That is to say, in 2010, he worked as a data entry clerk six months (a conservative estimate favoring Rodriguez). As mentioned, in that year, he earned $6,664.00 from Burnett working as a data entry clerk. Therefore, in 2010, the amount of his monthly average earnings from the data entry job is $1,110.66, which exceeds the threshold amount of monthly earnings for 2010, i.e., $1,000.
Consequently, contrary to Rodriguez's argument, the job of data entry clerk constitutes a substantial gainful activity. Moreover, at the hearing, the vocational expert (“VE”) testified that Rodriguez worked that job long enough to acquire the skills in that position, Tr. at 63, and the ALJ relied on that testimony to find that the job of data entry clerk is past relevant work, id. at 64-65; see also id. at 25. Therefore, substantial evidence supports the ALJ's determination that the job of data entry clerk is past relevant work. The Court need not address any purported errors related to the other two jobs the ALJ identified as past relevant work. See Lind v. Astrue, 370 Fed.Appx. 814, 817 & n.2 (9th Cir. 2010) (“[T]he ability to perform one of [the claimant's] past jobs is sufficient to meet the [substantial gainful activity] standard” for past relevant work at step four.); Wells v. Colvin, 727 F.3d 1061, 1074 (10th Cir. 2013) (“[E]ven if [claimant] could only perform the job of bookkeeper,” which was one of four jobs that ALJ found constituted past relevant work, “that job is sufficient to support the ALJ's step-four determination.”).
See Dictionary of Occupational Titles, supra, § 203.582-054, 1991 WL 671700 (describing that the job of data entry clerk has a Specific Vocational Preparation (“SVP”) rating of 4, which means that it takes “[o]ver 3 months up to and including 6 months” for a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation).
See also DeLeon v. Barnhart, 174 Fed.Appx. 201, 203 (5th Cir. 2006) (“[T]here was substantial evidence to support the Commissioner's finding that [the plaintiff] had the RFC to perform, at least, two jobs identified by the VE, and [the plaintiff] was not prejudiced by any purported error related to other jobs identified by the VE.”).
Finally, Rodriguez takes issue with the ALJ's written decision for its lack of explanation and analysis of past relevant work, and on that basis, he says, remand is necessary. Pl.'s Br. at 12-13; Pl.'s Reply Br. at 5. Although the ALJ discussed other aspects of his step four findings, including the VE's testimony, he did not discuss or analyze why he found that the three jobs qualify as past relevant work. He wrote only that “[i]n reviewing the evidence of record, the undersigned finds this work activity meets the duration, recency, and substantial gainful activity requirements of past relevant work as required by SSR 82-62.” Tr. at 25. The ALJ did not elaborate on this particular finding plausibly because at the hearing, Rodriguez's counsel agreed with him that the three jobs so qualified. To the extent that the ALJ erred by not adequately explaining this finding, such error was harmless because further explanation by the ALJ would not have changed the outcome insofar as substantial evidence supports the ALJ's finding that the job of data entry clerk is past relevant work.
At the beginning of the hearing, the ALJ questioned Rodriguez about his past jobs and simultaneously asked the VE if he needed additional information from Rodriguez for the jobs. Tr. at 4043. Toward the end of the hearing, when the VE testified, the ALJ questioned him and Rodriguez about the past jobs. Id. 62-65. The VE classified Rodriguez's past jobs in terms of the DOT classifications and testified as to whether Rodriguez had worked these jobs long enough to have learned them. Id. After the VE's testimony in this regard, the following colloquy took place between the ALJ and Rodriguez's counsel:
ALJ: So, Counsel, based on evidence and the following testimony, I find that there are four positions of past relevant work. Data Entry Clerk, Customer Service Representative, Desk Help and the Food Service Manager. All of those as described by Mr. Cynowa [(the VE)] for us today. Anything that you're aware of that would lead to a different conclusion regarding the past relevant work or do you agree that is our past relevant work?
ATTY: I agree that's the past relevant work.Id. at 64-65. Counsel did not object to, but instead agreed with, the ALJ's finding of past relevant work.
V. CONCLUSION
For the foregoing reasons, IT IS RECOMMENDED that the Commissioner's decision be AFFIRMED.
SO ORDERED and SIGNED this 22nd day of August 2023.