Opinion
6:21-CV-01040-ADA-JCM
11-15-2022
SHIRLEAN JOAN JOHNSON, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of the Social Security Administration, Defendant.
TO: THE HONORABLE ALAN D ALBRIGHT, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION
JEFFREY C. MANSKE, UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation is submitted to the Court pursuant to 28 U.S.C. § 636(b)(1)(C), Fed.R.Civ.P. 72(b), and Rules 1(f) and 4(b) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges. Before the Court is an appeal for judicial review of a Social Security Administration's denial of benefits filed by Shirlean Johnson, Plaintiff's Brief (ECF No. 10), Defendant's Brief (ECF No. 12), Plaintiff's Reply Brief (ECF No. 13), and the Transcript Record (ECF No. 8). For the reasons that follow, the undersigned RECOMMENDS that the final decision of the Commissioner be AFFIRMED.
I. Background
Plaintiff Shirlean Johnson seeks judicial review of a final decision of the Office of Hearings Operations' December 16, 2020, Unfavorable Decision under the Social Security Act, 42 U.S.C. §§ 405(g) and 1383(c)(3). Pl.'s Compl. (ECF No. 3) at 1. Plaintiff filed a Title II application for a period of disability and disability insurance benefits on September 10, 2019. Tr. at 168. She also filed an application for supplemental security income under Title XCI of the Social Security Act on October 19, 2019. Tr. at 184. Plaintiff alleged that her onset date was March 31, 2015. Tr. at 175. She claimed disabilities of general anxiety disorder, hypertension, chronic insomnia, sleep apnea, and shoulder problems. Id.
To determine if Plaintiff qualified as disabled under the Act, the ALJ used a five-step sequential inquiry analyzing whether: 1) the claimant engaged in substantial gainful activity; 2) the claimant has a severe impairment; 3) the impairment meets or equals a listed impairment; 4) the impairment prevents the claimant from doing past relevant work; and 5) the impairment prevents the claimant from doing other work. Tr. at 11-12; 20 C.F.R. § 404.1520.
At step one, the ALJ determined Plaintiff had not engaged in substantial gainful activity since March 31, 2015. Tr. at 12. At step two, the ALJ found that Plaintiff had the following severe impairments: obesity; diabetes mellitus; and partial thickness tear of the left shoulder with moderate AC joint arthritis. Id. At step three, the ALJ found that Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. at 14.
The ALJ further concluded that Plaintiff has the residual functional capacity (“RFC”) to perform modified medium work. Id. Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. 20 CFR §§ 404.1567(c), 416.967. The ALJ found that Plaintiff “could only frequently climb ramps and stairs, balance, stoop, kneel, crouch, and crawl and would be limited to no more than occasional overhead reaching or overhead work with the nondominant left upper extremity.” Tr. at 14. Thus, the ALJ concluded at step four that Plaintiff can perform her past relevant work as a laundry laborer. Tr. at 16. Finally, at step five, the ALJ concluded that there are other jobs that exist in significant numbers in the national economy Plaintiff could perform. Id. Based on these findings, the ALJ found that Plaintiff was not disabled or entitled to disability benefits. Tr. at 18.
After the ALJ issued the Unfavorable Decision, Plaintiff requested an Appeals Council review. Tr. at 166. The Appeals Council declined to review the ALJ's decision, rendering it the Commissioner's final administrative decision. Tr. at 1. Plaintiff then filed this suit on October 7, 2021. See Pl.'s Compl.
II. Judicial Review
Judicial review of the denial of disability benefits pursuant to 42 U.S.C. § 405(g) is limited to determining the existence of substantial evidence in the record to support the Commissioner's decision and whether the ALJ followed relevant legal standards in evaluating the evidence. Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995). The scope of review is limited to the record and the court will not conduct de novo review, make credibility determinations, nor re-weigh the evidence. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
Substantial evidence is more than a scintilla but less than a preponderance. Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992). It requires evidence relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 400 (1971); Jones v. Heckler, 702 F.2d 616, 620 (5th Cir. 1983). Substantial evidence will create more than a mere suspicion of the existence of the fact to be established. Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983).
In determining whether substantial evidence of disability exists, a court will weigh: 1) objective medical facts or clinical findings; 2) diagnoses and opinions of treating and examining physicians; 3) plaintiff's subjective evidence of pain and disability; and 4) the claimant's age, education, and work history. Wren v. Sullivan, 925 F.2d. 123, 126 (5th Cir. 1991) (citing DePaepe v. Richardson, 464 F.2d 92, 94 (5th Cir. 1972)). If proper principles of law were applied, and if the Commissioner's decision is supported by substantial evidence, the Commissioner's findings are conclusive and must be affirmed even if substantial evidence exists to support an alternative finding. Arkansas v. Oklahoma, 503 U.S. 91, 113 (1992); Crowley v. Apfel, 197 F.3d 194, 197 (5th Cir. 1999); Martinez, 64 F.3d. at 173 (citing Richardson, 402 U.S. at 390).
To remand, the Court must find the ALJ committed a reversible error that affected the claimant's substantial rights. See Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988)
(“Remanding this case . . . would produce the same result while wasting time and resources.”); see also Morris v. Bowen, 864 F.2d 333, 335 (5th Cir. 1988) (holding “procedural improprieties . . . constitute a basis for remand only if such improprieties would cast into doubt the existence of substantial evidence to support the ALJ's decision”). “Harmless error exists when it is inconceivable that a different administrative conclusion would have been reached absent the error.” Bornette v. Barnhart, 466 F.Supp.2d 811, 816 (E.D. Tex. 2006) (citing Frank v. Barnhart, 326 F.3d 618, 622 (5th Cir. 2003)); see also Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir.1989) (error is harmless unless there is reason to think remand might lead to a different result). “The major policy underlying the harmless error rule is to preserve judgments and avoid waste of time.” Mays, 837 F.2d at 1364 (citing Gulf States Utilities Co. v. Ecodyne Corp., 635 F.2d 517, 520 (5th Cir. 1981)).
III. Issues Presented
Plaintiff raises one issue relating to the ALJ's findings. Pl.'s Br. at 6. Plaintiff argues that the ALJ's RFC determination is not supported by substantial evidence because the ALJ failed to fully develop the record to allow for an informed assessment of Plaintiff's functional limitations. Id. The Commissioner argues that substantial evidence supports the ALJ's RFC determination and that the ALJ fully developed the record. Def.'s Br. at 2.
IV. Analysis
Plaintiff argues that the ALJ failed to properly develop the record by failing to order a consultative examination to specifically assess Plaintiff's capacity for lifting and reaching. Pl.'s Br. at 6-8. The Commissioner argues that the ALJ was not required to order a consultative examination simply because there is no medical opinion in the record regarding Plaintiff's ability to lift and reach. Def.'s Br. at 3.
The ALJ must “develop the record fully and fairly to ensure that his decision is an informed decision based on sufficient facts.” Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996), citing Kane v. Heckler, 731 F.2d 1216, 1219 (5th Cir. 1984). Generally, the Commissioner is required to make a decision based on information available to him if sufficient medical or other evidence is not provided by the claimant. Id. citing 20 C.F.R. § 404.1516. Under some circumstances, a consultative examination is required to develop a full and fair record. 20 C.F.R. § 404.1517. The decision of whether to order a consultative examination in the absence of a request by the claimant for one is left to the ALJ's discretion. Jones v. Bowen, 829 F.2d 524, 526 (5th Cir. 1987). There is no evidence in the record that Plaintiff requested a consultative examination. See generally Tr.
Plaintiff argues that because she has rotator cuff tears, the ALJ is “simply not qualified to draw his own specific lifting and reaching conclusions from this raw medical data,” and accuses the ALJ of playing doctor. Pl.'s Br. at 9. MRI results from December 2015 showed that Plaintiff had a partial thickness tear with moderate AC arthritic changes, and frayed tendinosis of the bicep tendon. Tr. at 331-32. Plaintiff contends that the ALJ “made no attempt to reconcile this objective MRI evidence with his RFC determination.” Pl.'s Br. at 9. That is clearly not the case.
The ALJ discussed the MRI and Plaintiff's course of treatment relating to her shoulder in his RFC determination. Tr. at 15-16. The ALJ noted that injections improved Plaintiff's shoulder pain and that a subsequent examination showed good strength. Id. at 15. The ALJ noted that Plaintiff's doctor recommended that Plaintiff attend physical therapy. Id. The ALJ also discussed Plaintiff's lack of complaints regarding her shoulder in subsequent doctor's visits over a three-year period. Id. The ALJ also relied on the fact that Plaintiff was advised to see pain management but did not. Id. The ALJ concluded that “[b]ased on the record, the claimant's impairments [sic] shoulder impairment is not as severe as alleged.” Id. The ALJ's conclusion that Plaintiff can perform modified medium work is supported by substantial evidence. Thus, the Commissioner's determination should be affirmed.
Even if the ALJ had failed to fully develop the record, the Commissioner's decision should still be affirmed. Courts will reverse an ALJ's decision on the grounds that the ALJ did not adequately develop the record only if “the claimant was prejudiced” by the failure. Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996) (citations omitted). Plaintiff acknowledges that a “claimant is harmed when he can show that, had the agency done its duty, it could have produced evidence that might have altered the result.” Pl.'s Br. at 7 citing Kane v. Heckler, 731 F.2d 1216, 1220 (5th Cir. 1984). Plaintiff failed to point to any evidence that might have altered the result. See generally Pl.'s Br.; see also Pl.'s Reply Br. Plaintiff has not identified a doctor who would have testified that Plaintiff could not perform modified medium work. Plaintiff has, therefore, failed to show that she was prejudiced by the ALJ's alleged failure to adequately develop the record. The Commissioner's final decision must, therefore, be affirmed.
V. Conclusion
For the reasons outlined above, the undersigned RECOMMENDS that the Commissioner's final decision be AFFIRMED.
VI. Objections
The parties may wish to file objections to this Report and Recommendation. Parties filing objections must specifically identify those findings or recommendations to which they object. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report. See 28 U.S.C. § 636(b)(1)(C); Thomas v Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc). Except upon grounds of plain error, failing to object shall further bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas, 474 U.S. at 150-53; Douglass, 79 F.3d at 1415.