Opinion
EP-22-CV-00353-DCG-LS
03-27-2024
ZOROASTRO R., Plaintiff, v. COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,[1] Defendant.
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
LEON SCHYDLOWER, UNITED STATES MAGISTRATE JUDGE
Plaintiff appeals the denial of his third application for disability insurance benefits and supplemental security income. I recommend that the District Court AFFIRM the Commissioner's decision.
R:44.
I. Facts and Proceedings.
Plaintiff's second disability application was denied on July 9, 2018.In this third application he now alleges he became disabled the next day, July 10, 2018, because of “Multiple Sclerosis; Gastric Problems; vision problems due to dipopia and MS; unable to sleep; Dizzyness; tarsal coalition on right foot; Depression; Anxiety; [and] 10 Lesions on the Brain.”An SSA Administrative Law Judge (“ALJ”) held a hearing on February 10, 2022 and heard testimony from Plaintiff, who was represented by counsel, and a vocational expert (“VE”).In an opinion dated February 24, 2022, the ALJ determined that Plaintiff was not disabled within the meaning of the Social Security Act.The Appeals Council denied his request for review on August 11, 2022, making the decision of the ALJ the final decision of the Commissioner.Plaintiff argues in this appeal that the ALJ erred in utilizing the opinions of two consulting psychologists.
R:80.
R:45.
R:87-88.
R:37-64.
R:16-31.
R:4-9.
II. Discussion.
A. Legal Standards.
Judicial review of the Commissioner's decision is limited to two inquiries: (1) whether the decision is supported by substantial evidence on the record as a whole; and (2) whether the Commissioner applied the proper legal standard.Substantial evidence “is more than a mere scintilla and less than a preponderance.” The Commissioner's findings will be upheld if supported by substantial evidence.In evaluating a disability claim, the Commissioner must follow a five-step sequential process to determine whether: (1) the claimant is presently working; (2) the claimant has a severe medically determinable physical or mental impairment; (3) the claimant's impairment meets or equals an impairment listed in the appendix to the regulations; (4) the impairment prevents the claimant from doing past relevant work; and (5) the claimant can perform other relevant work.
Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014) (quoting Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005)).
Hill v. Berryhill, 718 Fed.Appx. 250, 253-54 (5th Cir. 2018) (quoting Masterson v. Barnhart, 309 F.3d 267, 272 (5th 2002)).
Masterson, 309 F.3d at 272.
20 C.F.R. §§ 404.1520, 416.920; Boyd v. Apfel, 239 F.3d 698, 704-05 (5th Cir. 2001).
Courts utilize four elements of proof to determine whether there is substantial evidence of disability: (1) objective medical evidence; (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.A court cannot, however, reweigh the evidence, try the issues de novo, or substitute its judgment for the Commissioner's.The Commissioner, not the courts, must resolve conflicts in the evidence.Finally, even if there is error at the ALJ level, remand to the SSA is warranted only if the error was harmful.The Plaintiff's burden is to show that the ALJ's “error was prejudicial.”
Perez, 415 F.3d at 462.
Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000).
Id.
Miller v. Kijakazi, 2023 U.S. App. LEXIS 1118, at *8 (5th Cir. Jan. 18, 2023), citing Shinseki v. Sanders, 556 U.S. 396, 407-08, 129 S.Ct. 1696, 173 L.Ed.2d 532 (2009).
Id., citing Jones v. Astrue, 691 F.3d 730, 734 (5th Cir. 2012) (footnote omitted).
B. Residual Functional Capacity.
Residual functional capacity, or RFC, is the most an individual can still do despite his or her limitations.The responsibility for determining a claimant's RFC belongs to the ALJ.The ALJ must consider a claimant's abilities despite his or her physical and mental limitations based on the relevant evidence in the record. The ALJ must consider the limiting effects of an individual's impairments, even those that are non-severe, and any related symptoms.An RFC finding is used to determine if the claimant can still do his or her past jobs.If the claimant cannot, the RFC is then used to determine whether the claimant can do other jobs in the national economy.
Id. at §§ 404.1546(c), 416.946(c); Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995).
Perez, 415 F.3d at 461-62.
Id.
C. The ALJ's Findings.
In this case, the ALJ found that Plaintiff had the following severe impairments: “multiple sclerosis (MS), left knee patella dislocation/subluxation, and (in combination only) major depression, unspecified bipolar disorder, and unspecified anxiety disorder.”They were not, however, individually or in combination severe enough to meet or equal an impairment listed in the appendix to the regulations.The ALJ found that Plaintiff could still perform “sedentary work... [with only] occasional interaction with the general public; limited to simple job instructions and work-related tasks; and requires no more than occasion changes in the work setting.”Although the ALJ found that Plaintiff could not perform his former jobs,“there are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform.”Accordingly, the ALJ found Plaintiff not disabled and not entitled to disability insurance benefits and supplemental security income.
R:19 (emphasis in original).
R:19-20.
R:23-30.
R:30.
Id.
R:31.
D. Dr. Schutte's Opinion.
Plaintiff first argues that the ALJ did not explain why he “reject[ed]” portions of an opinion from Dr. James Schutte, a consulting psychologist. On December 20, 2020, Dr. Schutte conducted a one-time video interview of Plaintiff and concluded he “exhibited signs of bipolar disorder during the present evaluation” and “seems moderately impaired due to bipolar disorder, and his ability to make occupational, social, and personal adjustments seems markedly impaired due to bipolar disorder and anxiety.”
R:608-09 (emphasis added).
Contrary to Plaintiff's argument, the ALJ explained explicitly why he did not find Dr. Schutte's findings persuasive. First, the ALJ noted that Plaintiff had no history of psychiatric hospitalizations. Next, the ALJ referred to medical records in which Plaintiff associates his depression with his multiple sclerosis diagnosis, not a bipolar disorder.Moreover, the ALJ also cites to two examinations that occurred after Dr. Schutte's video interview with completely normal mental health findings.There are also numerous other medical records generated both before and after Dr. Schutte's interview that reflect normal mental health findings.
R:29 (ALJ citing to Exhibit C8F3, which is R:589, and to Exhibit C11F3, which is R:607).
R:599 (“Mental Status: Orientation: oriented to person, place, problem, and time. Mood/Affect: appropriate mood and affect. Language: can appropriately name objects, does not repeated phrases, and has spontaneous speech. Memory: recent memory intact and remote memory intact. Fund of Knowledge: current events and past history.”); R:621 (“PSYCH: Cooperative, appropriate mood and affect.”).
R:517 (“Psychiatric symptoms: No anxiety or substance abuse...Psychiatric: Cooperative.”); R:577: (“Psychiatric: Cooperative, appropriate mood & effect, normal judgment.”).
Finally, I note that there are no bipolar diagnoses whatsoever in Plaintiff's medical records other than the “signs of bipolar disorder” that Dr. Schutte gleaned during his one-time consultative video interview. Nonetheless, rather than reject Dr. Schutte's “Unspecified Bipolar Diagnosis”for want of support in the remainder of Plaintiff's medical records, the ALJ adopted it and listed it as one of Plaintiff's severe impairments. Indeed, the ALJ based Plaintiff's highly restrictive non-exertional mental RFC limitations on Dr. Schutte's bipolar disorder observations. Accordingly, rather than failing to explain why he rejected Dr. Schutte's opinion, the ALJ both explained his analysis of the opinion and incorporated it into Plaintiff's mental RFC. There is no error in this regard.
R:608.
E. Dr. Leslie Postovoit's Opinion
Plaintiff next argues that the ALJ erroneously failed to explain why he “reject[ed]” portions of an opinion from Dr. Leslie Postovoit, another consulting psychologist. Dr. Postovoit found that Plaintiff was “able to understand, remember, and carry out detailed but not complex instructions, make basic decisions, concentrate for extended periods, interact with others, and respond to changes.”Rather than reject this opinion, the ALJ found it “persuasive.”Indeed, the ALJ found
R:166.
R:28.
Plaintiff “slightly more limited” than Dr. Postovoit's opinion reflected.On this basis the ALJ incorporated into Plaintiff's mental RFC heightened restrictions with respect to following instructions and interactions with the public. There is no error with respect to the ALJ's treatment of Dr. Postovoit's opinion.
R:28-29.
Recommendations
Substantial evidence supports the ALJ's determination and I find no legal error.
Accordingly, I recommend the Commissioner's decision be AFFIRMED.
SO RECOMMENDED.
NOTICE
THE PARTIES HAVE FOURTEEN DAYS FROM SERVICE OF THIS REPORT AND RECOMMENDATION TO FILE WRITTEN OBJECTIONS. 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b). FAILURE TO FILE TIMELY OBJECTIONS MAY PRECLUDE APPELLATE REVIEW OF FACTUAL FINDINGS OR LEGAL CONCLUSIONS, EXCEPT FOR PLAIN ERROR. ORTIZ V. CITY OF SAN ANTONIO FIRE DEP'T, 806 F.3D 822, 825 (5TH CIR. 2015).