Opinion
23-CV-2-DC-RCG
11-03-2023
LORINA C. SILVAS, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF THE U.S. MAGISTRATE JUDGE
RONALD C. GRIFFIN UNITED STATES MAGISTRATE JUDGE
BEFORE THE COURT is Plaintiff Lorina C. Silvas' (“Plaintiff” or “Silvas”) Complaint and Brief (Docs. 1, 11); Defendant Kilolo Kijakazi, Acting Commissioner of Social Security's (“Defendant” or “Commissioner”) Responsive Brief (Doc. 16); and Plaintiff's Reply to Brief of Defendant (“Reply Brief”) (Doc. 19). This matter is before the undersigned United States Magistrate Judge through a standing order of referral pursuant to 28 U.S.C. § 636 and Appendix C of the Local Court Rules for the Assignment of Duties to United States Magistrate Judges. After due consideration, the Court RECOMMENDS that the Commissioner's decision be AFFIRMED.
All citations are to CM/ECF generated pagination unless otherwise noted.
I. Background
Silvas asks the Court to reverse a decision made by an Administrative Law Judge (“ALJ”) of the Social Security Administration (“SSA”), in which the ALJ found that Plaintiff does not possess a “disability” as defined by the Social Security Act (“Act”). (Doc. 1).
Silvas was born on June 4, 1973 and has a GED education. (Doc. 11 at 2). She was previously employed at a convenience store, and as a cleaner. Id.
Silvas filed her disability claim on December 7, 2020, asserting the presence of a disability with an alleged onset date of September 18, 2019. Id. at 1. She claimed that she suffered from neck and back injuries. Id.
Silvas' application was initially denied on April 1, 2021, and denied again upon reconsideration on October 27, 2021. Id. On May 17, 2022, Silvas and a vocational expert (“VE”) appeared before the ALJ via telephonic hearing. Id. The ALJ issued a hearing decision on June 29, 2022, finding that Plaintiff was not under a disability within the meaning of the Act from September 18, 2019, through the date of the decision. (Doc. 6-2 at 35). On November 1, 2022, the SSA's Appeals Council concluded that no basis existed for changing the ALJ's decision and declined to review it. (Doc. 11 at 2). Thus, the ALJ's decision became the final decision of the Commissioner. See Kneeland v. Berryhill, 850 F.3d 749, 755 (5th Cir. 2017).
Silvas later filed her complaint with this Court on January 3, 2023, and her brief on July 18, 2023. (Docs. 1, 11). Defendant filed a responsive brief on August 7, 2023, followed by Plaintiff filing her reply brief on August 28, 2023. (Docs. 16, 18). Thus, this matter is now ripe for disposition.
II. Legal Standard
A. Five-Step Evaluation Process
A “disability” in the context of the Act is defined, in cases not involving blindness, as an “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). In determining whether a claimant is disabled, an ALJ, acting on behalf of the Commissioner, applies a sequential five-step approach, considering whether:
(1) the claimant is currently engaged in substantial gainful activity;
(2) the claimant has a severe medically determinable physical or mental impairment that has lasted or is expected to last for a continuous period of at least 12 months, or combination of impairments that is severe and meets the duration requirement;
(3) the impairment meets the severity of an impairment enumerated in 20 C.F.R. Pt. 404, Subpt. P, App. 1;
(4) the claimant can perform [her] past relevant work given [her] residual functional capacity; and
(5) the claimant's residual functional capacity, age, education, and work experience prevents [her] from performing other work.Sherman v. Kijakazi, No. 1:22-CV-00775-RP-SH, 2023 WL 3727022, at *2 (W.D. Tex. Apr. 27, 2023) (citing 20 C.F.R. § 404.1520(a)(4)). Between steps three and four, the ALJ determines the claimant's “residual functional capacity” (“RFC”). 20 C.F.R. § 404.1520(a)(4). The RFC is “the most [the claimant] can still do” despite any physical or mental limitations caused by her “impairments and any related symptoms.” § 404.1545(a)(1). If a claimant's impairment does not meet or equal a listed impairment, the ALJ assesses the claimant's RFC “based on all the relevant medical and other evidence in [the] case record.” § 404.1520(e). Such medical evidence includes “the testimony of physicians and the claimant's medical records.” Webster v. Kijakazi, 19 F.4th 715, 718 (5th Cir. 2021). After determining the RFC, the ALJ proceeds to steps four and five.
The burden of proving a disability rests with the claimant throughout the first four steps. Kneeland, 850 F.3d at 753. If the claimant meets her burden, at step five, the burden of proof shifts to the Commissioner “to establish the existence of other available substantial gainful employment that [the] claimant can perform.” Sherman, 2023 WL 3727022, at *2 (citing Kneeland, 850 F.3d at 753). If the Commissioner satisfies this burden, “the burden then shifts back to the claimant to prove that she is unable to perform the alternate work.” Morales v. Comm'r, No. EP-22-CV-00120-FM-RFC, 2022 WL 18912157, at *2 (W.D. Tex. Dec. 5, 2022) (cleaned up) (citing Fraga v. Bowen, 810 F.2d 196, 1302) (5th Cir. 1987)).
B. Judicial Review of the ALJ's Decision
Federal courts review a denial of social security benefits by examining whether: (1) the decision is supported by “substantial evidence”; and (2) the ALJ “applied the proper legal standards.” Schofield v. Saul, 950 F.3d 315, 319 (5th Cir. 2020) (cleaned up).
“Under the substantial-evidence standard, court[s] look to [the] existing administrative record and ask whether it contains ‘sufficient evidence' to support the agency's factual determinations.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (cleaned up). Substantial evidence does not imply a high threshold but does require “more than a mere scintilla.” Id. (cleaned up). Indeed, this standard is only met by “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (cleaned up). “A finding of no substantial evidence is appropriate only if no credible evidentiary choices or medical findings support the decision.” Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001) (cleaned up).
In determining whether substantial evidence did support the ALJ's decision, courts weigh “four elements of proof: (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) his age, education, and work history.” Probst v. Kijakazi, No. EP-22-CV-00286-RFC, 2023 WL 3237435, at *1 (W.D. Tex. May 3, 2023) (cleaned up) (citing Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995)). A court must not “reweigh the evidence or substitute [its] judgment for that of the [ALJ].” Wills v. Kijakazi, No. 22-20609, 2023 WL 4015174, at *2 (5th Cir. June 14, 2023) (cleaned up). “Conflicts of evidence are for the [ALJ], not the courts, to resolve.” Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005). Thus, courts “may only scrutinize the record to determine whether it contains substantial evidence to support the [ALJ's] decision.” Sherman, 2023 WL 3727022, at *3. If the ALJ's findings are supported by substantial evidence, they must be affirmed. See Garcia v. Berryhill, 880 F.3d 700, 702 (5th Cir. 2018).
III. Analysis
A. The ALJ's Findings
In this case, at step one, the ALJ found that Silvas had not engaged in substantial gainful activity since September 18, 2019 (Doc. 6-2 at 21). At step two, the ALJ concluded that Silvas was afflicted with the following severe impairments: degenerative changes to the cervical spine; degenerative changes to the lumbar spine; mild degenerative changes to the right shoulder; diabetes mellitus; and right-knee osteoarthritis. Id. Step three revealed that Silvas did not have one of the listed impairments that would result in an automatic approval of her claim. Id. at 22.
In determining Plaintiff's RFC, the ALJ concluded that Silvas:
had the [RFC] to perform light work as defined in 20 C.F.R. 404.1567(b) except: the claimant can stand and/or walk for five hours in an eight-hour workday. The claimant can sit for at least six hours in an eight-hour workday. The claimant can never climb ladders, ropes, or scaffolds. The claimant can occasionally climb ramps and stairs, stoop, kneel, crouch, and crawl. The claimant can frequently balance. With her dominant right upper extremity, the claimant can occasionally reach overhead, and frequently reach in other directions. With her non-dominant left upper extremity, the claimant can frequently reach in all directions. The claimant can frequently handle and finger bilaterally. The claimant must avoid concentrated exposure to hazards, such as unprotected heights, or open flames. The claimant also must avoid concentrated exposure to extreme cold.Id. at 23. Thus, the ALJ found that “the claimant's statements concerning the intensity, persistence, and limiting effects of these symptoms cannot be wholly accepted.” Id. at 32.
Turning to step four, the ALJ found that Plaintiff was “unable to perform any past relevant work.” Id. at 33. At step five, the ALJ concluded that jobs exist in significant numbers in the national economy that the claimant can perform. Id. Based on this finding, the ALJ concluded that Silvas was “not disabled” from September 18, 2019, through the date of his decision (June 29, 2022). Id. at 35.
B. Did the ALJ Correctly Determine Silvas' RFC?
Silvas challenges only the ALJ's calculation of her RFC based on his treatment of two medical opinions. (Doc. 11 at 9). First, Silvas claims the ALJ failed to properly evaluate the opinion of Family Nurse Practitioner (“FNP”) White. Id. Second, Silvas claims the ALJ failed to properly evaluate the opinions of Dr. Affinati. Id. Because Silvas asserts errors with the calculation of her RFC, special guidelines apply.
Silvas initially refers to “the State agency consultants,” (Doc. 11 at 9) but later only addresses Dr. Affinati's opinion. (Doc. 11 at 16-17).
1. Guidelines for Evaluating Medical Opinions
The ALJ determines a claimant's RFC by examining “all of the relevant medical and other evidence.” 20 C.F.R. § 404.1545(a)(3). In this examination, the ALJ considers the persuasiveness of “all medical opinions and prior administrative medical findings” against the backdrop of five specific factors: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and (5) other factors. Garcia v. Saul, No. SA-19-CV-01307-ESC, 2020 WL 7417380, at *4 (W.D. Tex. Dec. 18, 2020); 20 C.F.R. § 404.1520c(a)-(c). Of these factors, supportability and consistency are of utmost persuasive importance-an explanation is required only for these two factors when the ALJ articulates her conclusions. 20 C.F.R. § 404.1520c(b)(2); see Morales, 2022 WL 18912157, at *3.
“Supportability” refers to the proposition that, the “more relevant” evidence exists to support a medical opinion, the “more persuasive” the opinion will be. 20 C.F.R. § 404.1520c(c)(1). “Consistency,” on the other hand, refers to the proposition that, the “more consistent” a medical opinion or prior administrative medical findings are with the evidence from other medical and nonmedical sources, the “more persuasive” the opinion will be. Id. § 404.1520c(c)(2). Put differently, “supportability looks internally to the bases presented by the medical opinion itself while consistency is an external inquiry that juxtaposes a medical opinion to other evidence in the record, including opinions of other medical professionals.” Morales, 2022 WL 18912157, at *3 (cleaned up).
The explanation for persuasiveness given by the ALJ “must enable the court to undertake a meaningful review of whether his finding with regard to the particular medical opinion was supported by substantial evidence” and “must not require the [C]ourt to merely speculate about the reasons behind the ALJ's persuasiveness finding or lack thereof.” Chavarria v. Kijakazi, No. EP-22-CV-00407-KC-RFC, 2023 WL 3984857, at *3 (W.D. Tex. June 13, 2023) (cleaned up). In other words, “there must be a discernable ‘logic bridge' between the evidence and the ALJ's persuasiveness finding.” Id. (cleaned up). If the ALJ fails to address or mention a medical opinion in the record without explanation, she commits legal error. Sherman, 2023 WL 3737022, at *4. The ALJ's opinion is, however, required only to explain how medical opinions from a single source are considered together in one analysis-individual explanations for each medical opinion are not mandatory. 20 C.F.R. § 404.1520c(b). No articulation is necessary for nonmedical opinions. § 404.1520c(d).
As of March 27, 2017, a date which precedes the hearings at issue, an ALJ is no longer required to consider a treating physician's medical opinion to be controlling. See Winston v. Berryhill, 755 Fed.Appx. 395, 402 n.4 (5th Cir. 2018) (per curiam). Instead, the above factors are to be used to allocate non-controlling weight to a given opinion. See 20 C.F.R. § 404.1520c(a).
With these principles in mind, the Court turns to Silvas' arguments.
2. FNP White's Opinion
Silvas attacks the ALJ's determination that FNP White's opinions were unpersuasive (Doc. 11 at 11-16; Doc. 6-2 at 31-32). FNP White opined that Silvas could only “infrequently” sit and could only occasionally carry one-to-five pounds. (Doc. 6-2 at 31-32). On another occasion, FNP White stated that Silvas could sit for only one hour in an eight-hour workday, and walk for only one hour in an eight-hour workday. (Doc. 6-2 at 32).
The ALJ found that FNP White's opinions were “broadly inconsistent” with medical records from other providers. Id. Silvas is correct to point out that “a generic statement” that a medical provider's opinion is “broadly inconsistent” with the record is not an acceptable form of explanation. (Doc. 11 at 11-12) (citing Edwards v. Kijakazi, No. 4:22-CV-00520, 2023 WL 2386748, at *3-4 (S.D. Tex. Mar. 6, 2023), report and recommendation adopted sub nom. Edwards v. Comm'r of Soc. Sec. Benefit, No. 4:22-CV-00520, 2023 WL 2616018 (S.D. Tex. Mar. 22, 2023). But Edwards does not help Silvas' case. In Edwards, the Court rejected a consistency finding because the ALJ stated only that a medical provider's opinion was inconsistent with “other evidence,” without identifying the “other evidence.” Edwards, 2023 WL 2386748, at *4. Here, the ALJ provided citations to the medical record to support his finding. (Doc. 6-2 at 32). Because the ALJ provided citations to the medical record to support his “broadly inconsistent” finding, the ALJ's finding was not merely a “generic statement.” Thus, the ALJ properly supported his finding.
Silvas then disputes the ALJ's citations to the medical record to support his “broadly inconsistent” finding. (Doc. 11 at 12). The Court agrees with Silvas that the ALJ improperly cited medical evidence that arose from before Silvas' disability start date of September 18, 2019. But the ALJ also cited relevant medical evidence to support his finding, including Dr. Wong's opinion. (Doc. 6-7 at 364). Unlike FNP White, Dr. Wong stated that Silvas performed well on her musculoskeletal examination, noting that she was “comfortable and not in pain.” Id. Dr. Wong also observed that “she has no problem to sit, stand, move about, lift, carry, handle objects, hear, and speak,” which contradicts FNP White's assertion that Silvas could not sit for prolonged periods. Id.
Dr. Wong's opinion of Silvas' ability to sit also undermines Silvas' argument that the ALJ improperly focused on strength to the exclusion of Silvas' claimed disabilities. (Doc. 11 at 13-16). The ALJ's actual statement was that FNP White's opinion was “broadly inconsistent with the objective documentation of record, including observations of. .strength” (Doc. 6-2 at 32) (emphasis added). The ALJ's use of “including” means that the ALJ's findings on Silvas' strength were intended to be inclusive rather than exclusive. Thus, Silvas' reference to the ALJ's “almost fanatical reliance on [strength]” is a red herring, distracting the Court from the ALJ's primary finding. (Doc. 11 at 14). The ALJ's primary finding was that FNP White's opinions were inconsistent with other evidence in the record, and this includes Dr. Wong's opinion that Silvas had no issues with sitting, standing, lifting, or carrying.
“Plaintiff does not suffer from weakness. Her manipulative issues are caused by the pain, tingling, and numbness in her upper extremities.FNP White did not base her opinion on weakness, but pain.The ALJ's logic misses the mark where it criticizes a lack of defects from which Plaintiff does not claim to suffer.” (Doc. 11 at 13).
Given the low bar set by the “substantial evidence” standard, the ALJ's citation to contrary medical evidence in the form of Dr. Wong's opinion is sufficient to support the “inconsistent” finding. Indeed, for this Court to find “no substantial evidence” in the ALJ's opinion, the Court would have to conclude that “no medical findings” supported the decision. See Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001) (emphasis added). Because the ALJ cited relevant medical findings supporting his decision, the Court concludes that substantial evidence supported his finding that FNP White's opinion was unpersuasive.
Silvas erroneously cites to Cyphers v. Comm'r, Soc. Sec. Admin., No. 4:21-CV-1368-P, 2022 WL 18495865, at *3 (N.D. Tex. Nov. 17, 2022), report and recommendation adopted, 2023 WL 1110301 (N.D. Tex. Jan. 30, 2023) to argue that the ALJ improperly rejected FNP White's opinion. (Doc. 11 at 14-15). Rather than quoting the court's opinion in that case, Silvas quotes the plaintiff's brief. Id. at 15. In Cyphers, the court only reversed because the ALJ.
3. Dr. Affinati's Opinion
In a similar vein, Silvas argues that the ALJ did not properly credit Dr. Affinati's opinion. (Doc. 11 at 16-17). Using similar arguments as she used regarding the ALJ's treatment of FNP White, Silvas argues the ALJ used the same improper citation and rationale to reject Dr. Affinati's opinion. To the extent that Silvas reiterates the same arguments used for FNP White, the Court rejects those arguments for the same reasons.
In evaluating Dr. Affinati's opinion, Silvas claims that the ALJ ignored conflicting evidence. (Doc. 11 at 17). She argues that the ALJ “failed to describe any of the positive findings, discuss Plaintiff's shoulder surgeries, or the pain in her hands.” Id. Yet Silvas does not cite the portions of the record she believes the ALJ should have considered, leaving the Court guessing as to which evidence she claims the ALJ missed.
The Court notes that although Dr. Affinati opined that Silvas had limited reaching ability, the doctor also concluded that Silvas could sit, stand, and/or walk for six hours in an eight-hour workday. (Doc. 6-3 at 8). This finding conflicts with FNP White's opinion that Silvas' ability to sit and walk were far more limited. Thus, Dr. Affinati's opinion is not wholly favorable to Silvas.
The Court is unsure what Silvas meant by “any of the positive findings.” (Doc. 11 at 17). “[P]ositive findings” could mean those findings which show Silvas in poor health, but the phrase is too nonspecific to be of value to the Court's analysis.
The Court considers “the pain in her hands” to be similarly nonspecific as “any of the positive findings.” Id.
In addition, Silvas cites a case that is easily distinguished from her own. Dickson v. Saul, No. EP-19-CV-00142-RFC, 2019 WL 6828300 (W.D. Tex. Dec. 13, 2019). In Dickson, the court reversed the ALJ's decision because the ALJ ignored the opinions of five doctors. Id. at *3. The Court does not see the connection between Silvas' claim that the ALJ disregarded nonspecific and un-cited aspects of her medical records, and an ALJ who neglected to consider five doctors' opinions. Even though the ALJ “must consider all the record evidence,” that duty does not failed to consider a doctor's opinion. Cyphers, 2022 WL 18495865, at *9. On the issue in which Silvas cites the plaintiff's brief, the court actually agreed with the Commissioner. Id. at *7. demand that the ALJ redundantly cite all aspects of the 931-page transcript for each and every medical opinion considered. Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000).
Finally, Silvas misstates the ALJ's decision when she claims that the ALJ failed to discuss her medical history. (Doc. 11 at 17). Although Silvas claims the ALJ failed to “discuss Plaintiff's shoulder surgeries,” in fact he did discuss them. Id. The ALJ noted that Silvas underwent two shoulder surgeries, and that these provide “further objective bases for at least some of the claimant's reports.” (Doc. 6-2 at 25).
For the reasons stated above, the Court concludes that substantial evidence supported the ALJ's decision to find the “reaching” conclusions of Dr. Affinati unpersuasive.
IV. Recommendation
For the reasons stated above, the Court RECOMMENDS that the decision of the Commissioner be AFFIRMED.
SIGNED this 3rd day of November, 2023.
Instructions for Service and Right to Appeal/Object
In the event that a party has not been served by the Clerk with this Report and Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return receipt requested. Pursuant to 28 U.S.C. § 636(b), any party who desires to object to this report must serve and file written objections within fourteen (14) days after being served with a copy unless the time period is modified by the District Judge. A party filing objections must specifically identify those findings, conclusions, or recommendations to which objections are being made; the District Judge need not consider frivolous, conclusive, or general objections. Such party shall file the objections with the Clerk of the Court and serve the objections on the U.S. Magistrate Judge and on all other parties. A party's failure to file such objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the District Judge. Additionally, a party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report within fourteen (14) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Judge. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).