Opinion
CIVIL 1:22-CV-00936
11-26-2024
KEVIN LINN NEAL, Appellant v. UNITED STATES COMMISSIONER OF SOCIAL SECURITY, Appellee
DRELL DISTRICT JUDGE
REPORT AND RECOMMENDATION
Joseph H.L. Perez-Montes United States Magistrate Judge
Before the Court is an appeal by Kevin Linn Neal (“Neal”) from the final decision of the Commissioner of Social Security, finding that Neal is not disabled with the meaning of the Social Security Act and denying him benefits.
Because the findings and conclusions of the ALJ/Commissioner as to Neal's mental and physical residual functional capacity are supported by substantial evidence, the final decision of the Commissioner should be affirmed and Neal's appeal should be denied.
I. Background
A. Procedural Background
Neal filed applications for disability insurance benefits (“DIB”) and supplemental security insurance (“SSI”) on August 1, 2019, alleging a disability onset date of May 15, 2015 (ECF No. 8-1 at 229, 236) due to: “traumatic brain injury due to a wreck; nerve damage-neck and left arm; depression; lower back pain; memory problems; type II diabetes; high blood pressure; acid reflux; [and] autoimmune disorder” (ECF No. 8-1 at 261). Those applications were denied by the Social Security Administration (“SSA”) both initially (ECF No. 8-1 at 136, 139) and on reconsideration (ECF No. 161).
A de novo hearing was held before an administrative law judge (“ALJ”) on February 6, 2019, at which Neal appeared with his attorney and a vocational expert (“VE”). ECF No. 8-1 at 40.
The ALJ found that Neal met the insured status requirements through September 30, 2019 and had not engaged in substantial gainful activity since May 15, 2015. ECF No. 8-1 at 23. Neal was a younger individual with at least a high school education. ECF No. 8-1 at 33. The ALJ found that Neal has severe impairments of degenerative disc disease (“DDD”) of the cervical spine, diabetes mellitus, hypertension, and peripheral neuropathy, but does not have an impairment or combination of impairments that meets or medically equals the severity of one the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. ECF No. 8-1 at 23, 27.
The ALJ further found that Neal has the residual functional capacity to perform sedentary work with the following additional limitations: only occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs; never climb ladders, ropes, or scaffolds, only occasional handling with the left upper extremity; no fingering with the left hand; frequent but not constant fingering and handling with the right upper extremity; no work around hazards such as unprotected heights and dangerous, moving machinery; use of a cane for ambulation; and needs to change positions for 1 to 2 minutes per hour without being off-task or away from the workstation. ECF No. 8-1 at 28. The ALJ also found that Neal had no past relevant work. ECF No. 8-1 at 33. The ALJ concluded that Neal had not been under a disability, as defined in the Social Security Act, from May 15, 2015 through the date of her decision on June 22, 2021. ECF No. 34.
Neal requested a review of the ALJ's decision, but the Appeals Council declined to review it. ECF No. 8-1 at 5. The ALJ's decision became the final decision of the Commissioner of Social Security (“the Commissioner”).
Neal then filed this appeal for judicial review of the Commissioner's final decision. Neal contends:
1. The ALJ failed to articulate a rational medical and evidentiary basis for ruling that Neal can perform work on a daily basis, at the sedentary level, given the Plaintiff s residual functional capacity.
2. The ALJ failed to articulate a rational medical and evidentiary basis for discarding every opinion of the Plaintiff's treating physician about the Plaintiff's abilities. Evaluations of the treating physicians cannot be dismissed without proper analysis under the required factors.
B. Medical and Other Records
Neal was born on August 7, 1974, and was 46 years old at the time of his administrative hearing in 2021. ECF No. 8-1 at 40, 229. Neal reported that he worked part time as a desk clerk at a motel from 2008 to 2011, and he worked full time as a “range officer” at a shooting range from 2013 to May 14, 2015. ECF No. 81 at 262.
On March 27, 2015, x-rays showed that Neal's heart size was normal, his lungs were clear, and he had no acute cardiopulmonary process. ECF No. 8-1 at 441. In May 2015, following complaints of abdominal pain, a CT scan of Neal's abdomen and pelvis showed a normal pelvis, but a possible large ulcer crater in his esophagus or diverticulum. ECF No. 8-1 at 433, 436.
Neal was involved in a motor vehicle accident on May 16, 2015, and initially complained only of stiffness in his wrists. ECF No. 8-1 at 425. Four days after the accident, Neal complained of a developing headache, blurred vision, and pain in the back of his head. ECF No. 8-1 at 425, 430. A CT scan of his head was negative except for mild chronic sinusitis. ECF No. 8-1 at 430, 727. An MRI of his brain was normal. ECF No. 8-1 at 728. An MRI his Neal's cervical spine showed: disc ridge complex present indenting the ventral thecal sac with mild left neural foraminal narrowing and mild left neural foraminal narrowing and mild to moderate disc height loss at ¶ 6-7; and small central disc protrusion indenting ventral thecal sac without canal stenosis or neural foraminal narrowing at ¶ 5-6. ECF No. 8-1 at 729. Neal was found to have controlled hypertension and uncontrolled diabetes mellitus type 2, and was prescribed Lisinopril, Loratadine, Metformin HCl, and Prilosec. ECF No. 8-1 at 427, 430.
Neal was evaluated by Dr. Bryan Picou in June 2015, and reported constant cervical spine pain since his accident three weeks prior. ECF No. 8-1 at 538. Neal also reported left arm pain and numbness, left neck pain, and low back pain. ECF No. 8-1 at 538. Neal was 5' 10” tall and weighed 165 pounds. ECF No. 8-1 at 538. Neal's gait was affected by a left leg limp and generalized left side pain. ECF No. 81 at 539, 545. Neal was diagnosed with neck pain and diplopia (double vision), and was prescribed physical therapy for the left-sided pain. ECF No. 8-1 at 539.
Two weeks later, Neal was treated for a severe three-day headache with nausea, vertigo, blurred vision, and dizziness. ECF No. 8-1 at 540. He had lost 5 pounds. ECF No. 8-1 at 541. Dr. Picou ordered lab work and an MRI of the brain, and referred Neal to an ophthalmologist. ECF No. 8-1 at 542.
In July 2015, Neal complained of unresolving epigastric pain for over a month and reported his history of recent trauma. ECF No. 8-1 at 433. A CT scan of his abdomen and pelvis showed significant circumferential thickening of the distal esophagus with questionable distal esophageal diverticulum versus large ulcer crater. ECF No. 8-1 at 436.
In late July 2015, Neal was treated for vomiting and nausea. He weighed 151 pounds. ECF No. 8-1 at 386, 544. Neal complained of nausea and vomiting for 5 days, as well as vertigo, and his skin was tenting. ECF No. 384-85. Neal stated he usually did not vomit unless he was up, moving around, and getting dizzy. ECF No. 375, 377. Neal was hospitalized for two days, and prescribed Ondansetron HCl and Tramadol HCl. ECF No. 8-1 at 385, 413. He was diagnosed with acute gastroenteritis with intravascular volume depletion, iron deficiency anemia, hypertension, and diabetes, and. ECF No. 8-1 at 375.
In August 2015, Neal again reported 5 days of nausea and vomiting, with vertigo and constant neck pain. ECF No. 8-1 at 547. Neal weighed 158 pounds and was 5' 10” tall. ECF no. 8-1 at 548. Neal was diagnosed with a low body mass index (“BMI”), nausea and vomiting, and iron deficiency anemia. ECF No. 8-1 at 549. Neal was referred to physical therapy. ECF No. 8-1 at 548.
In August and September 2015, Neal underwent physical therapy for headaches, neck pain and decreased grip strength ECF No. 8-1 at 443-471.
In October 2015, Neal complained of low back pain, mid-back pain, left shoulder pain, and neck pain. ECF No. 8-1 at 551. Neal was primarily diagnosed with low back pain and radiculopathy in the lumbosacral region. ECF No. 8-1 at 553. Neal was again referred to physical therapy. ECF No. 8-1 at 553.
In January 2016, Neal complained of neck pain on the left side, radiating. ECF No. 8-1 at 555. Neal weighed 159 pounds. ECF No. 8-1 at 556. Neal was assessed with a low BMI, neck pain, and low back pain. ECF No. 8-1 at 557. An MRI of the cervical spine was ordered, and his prescriptions for Tramadol and Promethazine were refilled. ECF No. 8-1 at 557. Neal's neck pain (cervicalgia) continued in February. ECF No. 8-1 at 561. Neal had a “disc” and left foraminal stenosis and was referred for a neurosurgical consultation. ECF No. 8-1 at 561.
In May 2016, Neal was treated for intractable nausea and vomiting, with a previous history of ulcer and esophageal wall thickening. ECF No. 8-1 at 1506. Neal had abdominal pain with it. ECF No. 8-1 at 1505. Neal also had throbbing pain in his head and reported having similar headaches in the past after a motor vehicle accident. EF No. 8-1 at 1505. Neal was diagnosed with a possible esophageal lesion. ECF No. 8-1 at 1506, 1812. The vomiting resolved and Neal was discharged. ECF No. 8-1 at 1504. A CT scan of his chest was normal. ECF No. 8-1 at 731. An x-ray of his chest showed no acute cardiopulmonary process. ECF No. 81 at 2117. A CT scan of his abdomen and pelvis showed esophageal wall thickening in the distal esophagus with a small hiatal hernia. ECF No. 8-1 at 732, 2122.
Also in May 2016, Neal was treated for depression and prescribed sertraline. ECF No. 8-1 at 568. Neal was diagnosed with post-concussion syndrome, diabetes with neurological manifestations, chronic pain, and low BMI, and was referred to a neurosurgeon. ECF No. 8-1 at 572.
“Persistent post-concussive symptoms- also called post-concussion syndrome - occurs when symptoms of a mild traumatic brain injury [known as a concussion] last longer than expected after an injury. These symptoms may include headaches, dizziness, and problems with concentration and memory. They can last weeks to months.... In most people, symptoms appear within the first 7 to 10 days and go away within three months. But sometimes they can last for a year or more.” Mayo Foundation for Medical Education and Research: Persistent Post-Concussive Symptoms (Post-Concussion Syndrome), available at https://www.mayoclinic.org/diseases-conditions/post-concussion-syndrome/symptoms-causes/syc-20353352?p=1.
In July 2016, Neal's brain MRI was negative, his EEG was negative, and an MRI of his cervical spine showed disc disease at ¶ 5-6, 6-7. ECF no. 8-1 at 570.
Neal was evaluated in August 2016, at University (Oschner LSU) Health Shreveport, when he was 42 years old. ECF No. 8-1 at 487. Neal reported an esophageal stricture since childhood, with frequent coughing/choking and regurgitation of undigested foods. ECF No. 8-1 at 487. A CT scan showed distal esophageal thickening. ECF No. 8-1 at 487. Neal complained that the May 2015 accident aggravated his symptoms. ECF No. 8-1 at 487.
In October 2016, Neal underwent an esophagogastroduodenoscopy (EGD) which showed a distal esophageal stricture and large esophageal diverticulum. ECF No. 8-1 at 486. A mid-esophagus biopsy was benign, and the findings were consistent with reflux esophagitis. ECF No. 8-1 at 487. An EGD was performed again in December 2016, and showed candidal esophagitis and esophageal diverticulum. ECF No. 8-1 at 480. Another EGD was performed a week later with the same results. ECF No. 8-1 at 478-79.
In November 2016 and January 2017, Neal was prescribed hydrocodone/acetaminophen, tramadol, and promethazine. ECF No. 8-1 at 576-77, 580-81, 585.
In January 2017, Neal reported, at Ochsner LSU Health-Shreveport, that he had severe pain in his left shoulder and low back pain, as well as “severe C5-7 disease” and acquired scoliosis of the lumbar spine. ECF No. 8-1 at 500. Since the motor vehicle accident, he had many falls, blurry vision, left upper extremity weakness, and intermittent left upper extremity hyperesthesia (increased sensitivity). ECF No. 8-1 at 500. Neal reported having nine months of physical therapy in the last year, during which he plateaued and then his symptoms worsened. ECF No. 8-1 at 500.
Neal's depression medications were also continued through May 2017. ECF No. 8-1 at 588. Neal had anhedonia, anxious mood, altered sleep habits, crying spells, decreased ability to concentrate, fatigue, sadness, feelings of worthlessness, and only slight improvement in activity. ECF No. 8-1 at 586. Neal was diagnosed with major depressive disorder, single episode. ECF No. 8-1 at 587.
Neal also had nausea, vomiting, and diarrhea that resulted in dehydration in May 2017. ECF No. 1782-1788. When it was noted that Neal had bottles of hydrocodone, Ultram, and Phenergan in his bag or medications, he was advised to rest and take his medications as prescribed and was sent home. ECF No. 8-1 at 1786-88.
In June 2017, Neal was again evaluated with chronic pain and depression, and prescribed venlafaxine HCl, hydrocodone/acetaminophen, and tramadol. ECF No. 8-1 at 596.
In August 2017, Neal complained of blurry vision in his left eye. ECF No. 8-1 at 1102. Neal had a dense subhyoloid (vitreous) hemorrhage in his left eye and proliferative diabetic retinopathy in both eyes. ECF No. 8-1 at 1102, 1105, 1107, 1108. Neal had surgery (pars plana vitrectomy, plan retinal endolaser, and exo-cryoretinopexy) to treat a vitreous hemorrhage in his left eye caused by diabetes mellitus. ECF No. 8-1 at 737, 740, 1098, 1112. In October 2017, it was noted that Neal may need laser treatment in the right eye in the future. ECF No. 8-1 at 1089.
In September 2017, Neal again complained of nausea, as well as chronic pain, and his prescriptions were refilled. ECF No. 8-1 at 610-12. In November 2017, Neal underwent a sleep study and was diagnosed with obstructive sleep apnea, nocturnal hypoxemia, and periodic limb movement syndrome. ECF No. 8-1 at 1760. In December 2017, Neal's hypertension was well-controlled by Lisinopril. ECF No. 8-1 at 620. However, Neal was prescribed metformin, a diabetic diet, and walking for his uncontrolled diabetes with neurological and ophthalmic manifestations. ECF No. 8-1 at 620, 624. Neal weighed 151 pounds. ECF No. 8-1 at 624.
In January 2018, Neal had proliferative diabetic retinopathy in both eyes. ECF No. 8-1 at 1085. A sleep study showed mild obstructive sleep apnea and moderate periodic limb movement syndrome. ECF No. 8-1 at 2107. Neal was prescribed a trial of CPAP therapy. ECF No. 8-1 at 2107.
In March 2018, Neal complained of generalized anxiety with difficulty concentrating and nervousness. ECF No. 8-1 at 627. Neal also had cervical spinal stenosis causing left side pain (severe, intermittent, throbbing, sometimes sharp) that radiated to his chest, left shoulder, upper back, and left leg. ECF No. 8-1 at 627. Neal had nausea with pain, reflux, and headache. ECF No. 8-1 at 627. He weighed 153 pounds. ECF No. 8-1 at 629. Neal was prescribed hydrocodone, tramadol, and Zofran for pain; amlodipine for hypertension; and venlafaxine for anxiety. ECF No. 8-1 at 629.
In early April 2018, Neal was treated for a severe headache with nausea and dizziness, and worsening depression (anhedonia, anxious mood, altered sleep habits, crying spells, decreased ability to concentrate, fatigue, sadness, feelings of worthlessness). ECF No. 8-1 at 631. Neal was diagnosed with chronic pain and major depressive disorder, single episode. ECF No. 8-1 at 634.
In mid-April 2018, Neal was evaluated by Dr. Picou for an episode of recurring neck and back pain that began during a car ride. ECF No. 8-1 at 1485. Neal also had continuous nausea and vomiting, with a small amount of blood in his vomit. ECF No. 8-1 at 1486. Neal was generally weak, with nausea, vomiting, neck pain, some headache, and generalized weakness. ECF No. 8-1 at 1486. An x-ray showed no active chest disease. ECF No. 8-1 at 2105. Neal was diagnosed with acute gastroenteritis and prerenal azotemia. ECF No. 8-1 at 1486, 1728. Neal was given fluids and his vomiting resolved within a few hours. ECF No. 8-1 at 946, 1728.
Prerenal azotemia is an abnormally high level of nitrogen waste products in the blood. MedlinePlus, Medical Encyclopedia: Prerenal azotemia, available at http://www.nlm.nih.gov/medlineplus/encyclopedia.html (a service of the U.S. National Library of Medicine and the National Institutes of Health).
In early May 2018, Neal was treated for dehydration, chronic pain, and hypertension. ECF No. 8-1 at 635. It was noted that Neal's compliance with treatment, medication, and appointments had been good. ECF No. 8-1 at 635. He reported memory loss and losing the feeling in his left hand. ECF No. 8-1 at 635. Neal weighed 146 pounds. ECF No. 8-1 at 637.
On May 28, 2018, Neal went to the medical clinic complaining of nausea, vomiting, and diarrhea for about four days. ECF No. 1625. Neal also reported weakness and back pain. ECF No. 8-1 at 1626. Neal's head, eye, ENT, neck, chest, respiratory, cardiovascular, abdominal, extremities, back, neurological, psychiatric, and skin exams were all normal. ECF No. 8-1 at 1627. An x-ray of Neal's chest was normal, and an EKG was normal. ECF No. 8-1 at 1628-29, 2100. Neal was diagnosed with gastroenteritis (ECF No. 8-1 at 1484, 1629) and prescribed Zofran (ECF No. 8-1 at 1484).
In June 2018, Neal was treated for low back pain (primarily lumbar spine, not radiating), nausea, and vomiting. ECF No. 8-1 at 639. His medications were refilled, and he was ordered to participate in a gastric emptying study and upper GI with air contrast and small bowel follow-through. ECF No. 8-1 at 642. Neal was also prescribed a blood glucose meter test kit. ECF No. 8-1 at 642.
In July 2018, Neal continued to complain of low back pain and said that his depression medication had become ineffective. ECF No. 8-1 at 643. Neal weighed 143 pounds. ECF No. 8-1 at 645. An upper GI fluoroscopy suggested gastroparesis and gastritis, possible localized stricturing of the distal esophagus, and gastroesophageal reflux. ECF No. 8-1 at 733, 1038. Later in July, Neal's Type 2 diabetes and gastritis were reviewed. ECF No. 8-1 at 647. He was diagnosed with Type 2 diabetes, esophageal stricture, and gastroparesis secondary to diabetes.ECF No. 8-1 at 649.
Gastroparesis is a condition that reduces the ability of the stomach to empty its contents. It does not involve a blockage (obstruction). The condition is a common complication of diabetes. MedlinePlus, Medical Encyclopedia: Gastroparesis, available at http://www.nlm.nih.gov/medlineplus/encyclopedia.html (a service of the U.S. National Library of Medicine and the National Institutes of Health).
In August 2018, Neal underwent a limited esophagogastroduodenoscopy due to his dysphagia and history of severe esophageal stricture. ECF No. 8-1 at 1482. A very tight esophageal stricture with limited region of circumferential esophagitis was found. ECF No. 8-1 at 972, 975, 1482. Neal was diagnosed with esophageal obstruction and dysphagia, and the stricture was dilated. ECF No.8-1 at 973-74. In August and September 2018, Neal was also treated for his chronic pain. ECF No. 81 at 651. In late September, Neal was again treated for nausea and vomiting, as well as pneumonia. ECF No. 8-1 at 663, 952, 961.
On October 1, 2018, Neal again had nausea and vomiting with weight loss. ECF No. 8-1 at 664. Neal was hospitalized, hydrated, and discharged. ECF No. 8-1 at 940, 1481. The next day the nausea and vomiting continued, so he was given medication but he still continued to vomit for four more days. ECF. No. 8-1 at 1481. Neal lost 6 pounds of fluid and had tenting skin, dry mucosa, and decreased urine output. ECF No. 8-1 at 1481. Neal was hospitalized, rehydrated, and given Reglan. ECF No. 8-1 at 1481. Neal was diagnosed with acute gastroenteritis with intravascular volume depletion and diabetes mellitus with gastroparesis. ECF No. 8-1 at 1481. On October 11, 2018, he was still vomiting, but felt better. ECF No. 8 1 at 668. He weighed 143 pounds. ECF No. 8-1 at 670.
Neal continued to complain of back pain in November through December 2018, and January, April, and May of 2019. His medications were refilled. ECF No. 8-1 at 673-680, 681, 698, 702.
In January 2019, Neal was evaluated and treated for leukocytosis and thrombocytosis. ECF No. 8-1 at 743. The leukocytosis was most likely due to eosinophilia, and the thrombocytosis was most likely due to iron deficiency. ECF No. 801 at 746-48. An abdominal ultrasound was normal. ECF No. 8-1 at 934.
In February 2019, an eye exam showed that Neal's diabetes has caused moderate proliferative retinopathy in his right eye and moderate non-proliferative retinopathy in the left eye. ECF No. 8-1 at 749, 753-55, 1081. In March, he underwent a pan retinal photocoagulation in the right eye. ECF No. 8-1 at 1077. In August, he had a vitreous hemorrhage in the right eye that was treated with pars plana vitrectomy, pan retinal endolaser, and exo-cryoretinopexy. ECF No. 8-1 at 1109.
“Diabetes can harm the eyes by causing diabetic retinopathy. It is one of the most common eye diseases that needs laser photocoagulation. It can damage the retina, the back part of your eye. The most severe form of the condition is proliferative diabetic retinopathy, in which abnormal vessels grow on the retina. Over time, these vessels can bleed or cause scarring of the retina. In laser photocoagulation for diabetic retinopathy, laser energy is aimed at certain areas of the retina to prevent abnormal vessels from growing or shrinking those that may already be there. Sometimes it is done to make edema fluid in the center of the retina (macula) go away.” MedlinePlus, Medical Encyclopedia: Laser Photocoagulation, available at http://www.nlm.nih.gov/medlineplus/encyclopedia.html (a service of the U.S. National Library of Medicine and the National Institutes of Health).
In May 2019, Neal was evaluated for a vitreous hemorrhage in his right eye with blurry vision, related to his high blood pressure and Type 2 diabetes mellitus with proliferative diabetic retinopathy. ECF No. 1074. The hemorrhage was given time to resolve on its own. ECF No. 1074.
Neal had nausea, as well as chronic back pain, in July 2019. ECF No. 8-1 at 706. Neal continued to be treated for back pain and headaches in September and October. ECF No. 8-1 at 710, 714, 723.
In August 2019, Neal had a mild vitreous hemorrhage of his right eye and proliferative diabetic retinopathy (retinal scar tissue). ECF No. 8-1 at 1070, 1508. Neal was 45 years old with diabetes mellitus and decreased vision in his right eye. ECF No. 8-1 at 1509. Neal underwent a successful pars plana vitrectomy of his right eye to remove the blood. ECF No. 8-1 at 1070, 1508.
Later in August 2019, Neal reported vomiting caused by the general anesthesia for the laser eye surgery. ECF No. 8-1 at 762. An EKG and x-rays of his chest were normal, so he was treated for dehydration. ECF No. 8-1 at 762-68, 792, 798.
In October 2019, Neal had 20/50 vision in his right eye and 20/20 vision in his left eye. ECF No. 1053. He was diagnosed with Type 2 diabetes mellitus with proliferative diabetic retinopathy without macular edema in both eyes, and was instructed to control his serum glucose and blood pressure. ECF No. 8-1 at 1053-54.
In November 2019, Neal had another episode of vomiting with dehydration and fever. He was treated for pneumonia, gastroparesis, nausea, and vomiting. ECF No. 8-1 at 1131-36, 1140-60, 1212-16, 1476-79.
In December 2019, Neal complained of dizziness and back pain. ECF No. 8-1 at 1359. Neal weighed 140 pounds. ECF No. 8-1 at 1361. Dr. Picou continued to prescribe medication to Neal's for chronic pain and chronic headaches through March 2021. ECF No. 8-1 at 1389-1420; 1440-1466.
In February 2020, Dr. Fay Thrasher, Ph.D. was employed to do a mental status exam of Neal. ECF No. 8-1 at 1377. Dr. Thrasher noted that Neal has a speech impediment. ECF No. 8-1 at 1377. Neal complained of feeling depressed and having nightmares since his 2015 motor vehicle accident. ECF No. 8-1 at 1377. Neal reported worrying about his medical conditions, sleeping poorly, having a poor appetite, feeling anxious, and having suicidal ideation without intent (he said he had one previous suicide attempt). ECF No. 8-1 at 1379.
There are no medical records of a suicide attempt in the administrative record.
Dr. Thrasher found: Neal was alert and oriented; his attention and calculation skills were good; his comprehension was good; his intellectual functioning was estimated to be in the high average range; his concentration and pace were fairly good; his persistence was fair; and his judgment and insight appeared to be good. ECF No. 8-1 at 1379. Dr. Trasher diagnosed him with depressive disorder and, provisionally, with post-traumatic stress disorder. ECF No. 8-1 at 1379. Dr. Thrasher stated that Neal appeared able to perform simple to complex work tasks, but probably would not be able to maintain attention and concentration to perform those tasks for a 2-hour work block. ECF No. 8-1 at 1380. She also found that Neal is limited in his: ability to relate to coworkers and the general public; his ability to sustain effort and persist at a normal pace over a routine 40-hour workweek; and his ability to tolerate the stress, pressure, and social environment of a work setting. ECF No. 8-1 at 1380. Neal's emotional lability and inability to modulate and express anger in a socially appropriate manner would be disruptive to co-workers and prevent him from accepting criticism from supervisors. Also, his very limited coping strategies would preclude him from tolerating the stress and pressure of an ordinary work environment or adapting effectively to even slight changes. ECF No. 8-1 at 1380.
Dr. Thrasher further stated that Neal appeared to be immature, dependent, and lacking the knowledge, experience, and self-responsibility necessary to effectively manage his financial affairs. ECF No. 8-1 at 1380.
In March 2020, a psychiatric review technique form was filled out by Dr. Catherine Wise, a psychologist. Dr. Wise found that Neal suffers from depression and anxiety which cause: mild limitations in his ability to concentrate, persist, or maintain pace; and a mild limitation in his ability to adapt or manage himself. ECF No. 8-1 at 101-02.
In July 2020, Dr. Tosheiba Holmes, M.D. examined Neal at the request of Disability Determinations Services. ECF NO. 8-1 at 1427. After a comprehensive physical examination and x-rays, Dr. Holmes found that Neal is able to: stand up to 1/3 of an 8-hour work day; and walk up to 1/3 of an 8-hour work day. Dr. Holmes also found that Neal; has a limited ability to bend or stoop; has a limited ability to reach, handle, or grasp; and appeared to require the use of a cane when walking. ECF No. 8-1 at 1431.
In October 2020, another psychiatric review technique form was filled out by Dr. Judith Levy, a psychologist. After reviewing Neal's medical records, Dr. Levy found that Neal has mild limitations in: the ability to understand, remember, or apply information; the ability to concentrate, persist, or maintain pace; and the ability to adapt or manage himself. ECF No. 8-1 at 118.
A residual functional capacity assessment was done by Dr. Jeffrey Faludi in July 2020. After reviewing Neal's medical records, Dr. Faludi found Neal has the following exertional limitations: can occasionally lift/carry 10 pounds; can frequently lift/carry less than 10 pounds; can stand/walk a total of four hours in an eight-hour day; requires a hand-held assistive device for ambulation; can sit for about six hours in an eight-hour day; and can do unlimited pushing and pulling, as limited by his ability to lift-carry. ECF No. 8-1 at 84. Dr. Faludi also found Neal has postural limitations: he can only occasionally climb ramps/stairs, balance, stoop (including bending at the waist), kneel, crouch, or crawl; and Neal should never climb ladders/ropes/scaffolds. ECF No. 8-1 at 85. And Dr. Faludi found Neal has manipulative limitations: unlimited reaching in any direction (including overhead); limited handling (gross manipulation) in both hands; limited fingering (fine manipulation) in both hands; and unlimited feeling. ECF No. 8-1 at 85. Dr. Faludi found that Neal should avoid concentrated exposure to hazards (such as machinery and heights). ECF No. 8-1 at 86.
In November 2020, Dr. Gerald Dzurik A physical residual functional capacity assessment on Neal. ECF No. 8-1 at 121-23. After reviewing Neal's medical records, Dr. Dzurik found the same physical limitations that Dr. Faludi had found. ECF No. 8-1 at 121-23.
An MRI of Neal's cervical spine in November 2020 showed mild degenerative changes greatest at ¶ 5-6 where there is slight posterior disc bulge and moderate right foraminal narrowing. ECF No. 8-1 at 1097, 1503. There was no significant spinal stenosis and no definite nerve root impingement. ECF No. 8-1 at 1097, 15-3.
In December 2020, a CT scan of Neal's head showed normal brain formation, an intact skull, and no acute intracranial abnormalities. ECF No. 8-1 at 1094, 1511. X-rays of Neal's right knee showed: mild bilateral medial compartment joint space loss; slight lateral tibial translation on the right; no fracture, dislocation, or significant soft tissue abnormality; and no capsular distention. ECF No. 8-1 at 1095.
In April 2021, Dr. Picou provided a medical source statement. ECF No. 8-1 at 1436-38. Dr. Picou stated that Neal can: stand/walk % to 1 hour at a time during an eight hour day; can sit % to 1 hour in an 8-hour day and must constantly change positions; can lift/carry up to 20 pounds three to four times per day; can lift/carry a maximum of 30 pounds; cannot stoop; requires the a single-point cane for ambulation; can perform fingering-type movements and gross manipulative movements “more than frequently” with the right upper extremity; can perform fingering-type movements “none to very little” with the left hand; and can perform gross manipulative movements “only occasionally” with the left upper extremity. ECF No. 8-1 at 1436-38.
In June 2021, Dr. Picou submitted another statement as to Neal's residual functional capacity, stating that Neal can: stand/walk a total of % to 1 hour at a time with a knee brace; sit a total of % to 1 hour per day (at a time??) due to constantly changing positions; lift-carry less than 20 pounds 3 to 4 times per day; lift/carry 30 pounds only occasionally; perform fingering movements or gross manipulative movements with his right hand more than frequently; perform none to very little fingering movements with his left hand; and perform gross manipulative movements only occasionally with his left hand. ECF No. 8-1 at 15- 17. However, Neal cannot stoop and must use a single-point cane to walk. ECF No. 8-1 at 16. Dr. Picou stated that Neal cannot do any work full time without an unacceptable rate of absenteeism. ECF No 8-1 at 17. Dr. Picou also stated that Neal's limitations were applicable as of and prior to September 30, 2018. ECF No. 8-1 at 17.
C. 2021 Administrative Hearing
An administrative hearing was held before an administrative law judge (“ALJ”) on May 20, 2021 at which Neal appeared with his attorney and a vocational expert (“VE”). ECF No. 8-1 at 40.
Neal testified that he is 5'10” tall, weighs 165 pounds, and is right-handed. ECF No. 8-1 at 46. Neal said he usually lives alone, but was living with someone at that time. ECF No. 8-1 at 46. He does not have any children. Neal's sole source of income is the person he lives with, who is a university professor. ECF No. 8-1 at 4647. Neal is not responsible for any of the bills. ECF No. 88-1 at 47. Neal testified that he does not receive food stamps. He has Medicaid. ECF No. 8-1 at 48.
Neal goes to the grocery store, but does not like to drive due to anxiety and poor eyesight, ECF No. 8-1 at 47. Neal testified that he has had surgery on both eyes and has virtually no peripheral vision. ECF No. 8-1 at 47. Neal has a driver's license and drives occasionally. ECF No. 8-1 at 47-48. Neal's friend usually drives. ECF No. 8-1 at 48.
Neal has some college education. ECF No. 8-1 at 48. Neal is not currently working. ECF No. 8-1 at 48. He last worked right before a motor vehicle accident in 2015, at the “shooting club.” ECF No. 8-1 at 48. Neal said he has applied for jobs at Walmart and fast food restaurants since the accident, but has not been offered a job, possibly because he uses a cane to walk. ECF No. 8-1 at 48. Neal testified that using a cane does not prevent him from falling. ECF No. 8-1 at 49.
Neal testified that he does not think he could do a sit-down job because he cannot sit very long before his back starts hurting and he has to move around. ECF No. 8-1 at 49.
The ALJ noted that Neal's earnings during college and from the shooting club were not enough to be considered “substantial gainful activity.” Neal explained that, although those were his only jobs, he has also lived with roommates. ECF No. 8-1 at 49.
Neal testified that both hands were affected by his injuries from the motor vehicle accident. ECF No. 8-1 at 49. His left arm “feels like it's on fire all the time” and he has difficulty holding anything with his left hand because the outer three fingers are numb most of the time. ECF No. 8-1 at 49, 58.
Neal has lost a significant amount of strength in both arms, but mostly the left arm. Neal is starting to have the burning sensation in his right arm, as well, but he is able to hold things with it most of the time. ECF No. 8-1 at 50. Neal is able to button and zip clothing, but sometimes it is a struggle. ECF No. 8-1 at 53. Neal has difficulty tying his shoes, so he often wears flip-flops. ECF No. 8-1 at 54.
Neal has difficulty typing with his left hand because he often thinks he hit a key with it but did not, so he types with his right hand. ECF No. 8-1 at 58. Neal drops things with both hands, but mostly with his left hand. ECF No. 8-1 at 58. Neal has difficulty picking up items from a table with either hand. ECF No. 8-11 at 59. Neal also has difficulty picking up and holding onto a phone. ECF No. 8-1 at 59. Because the administrative hearing was held by phone (during the pandemic), Neal testified he had to switch hands to hold the phone. ECF No. 8-1 at 59.
Neal does not have difficulty handling things like papers or files, but does have trouble separating individual papers. ECF No. 8-1 at 59-60. Neal also has difficulty holding onto a can - he can do it for a short amount of time with his right hand. ECF No. 8-1 at 60. Before the accident, Neal was able to write with either hand. ECF No. 8-1 at 60. Neal also has trouble holding onto his cane, so he has a lanyard on his cane that he puts around his wrist. ECF No. 8-1 at 60.
Neal testified that he is receiving antidepressants from Dr. Picou. ECF No. 8-1 at 50. Neal also testified that he probably needs to see a mental health specialist. ECF No. 8-1 at 50.
Neal takes all of his medications as prescribed. ECF No. 8-1 at 50. The medications cause side-effects: Ubrelvy causes nausea, metformin causes nausea; and the antidepressant has caused a significant decrease in testosterone and libido. ECF No. 8-1 at 51. The medications also cause chronic constipation and diarrhea. ECF No. 8-1 at 51.
Neal testified that he has pain in his head, neck, back, and right knee. ECF No. 8-1 at 51. His headaches (migraines) are his worst pain. ECF No. 8-1 at 51. Ubrelvy does not always relieve his migraines. ECT No. 8-1 at 52. Neal has headaches “most of the time,” although sometimes he goes seven to 14 days without one. ECF No. 8-1 at 52.
Neal has difficulty remembering the things he needs to keep track of, such as appointments and prescription refills. But he makes lists and the person he lives with helps him remember. ECF No. 8-1 at 52.
Neal testified that he does not go out with friends because he is embarrassed that he is 46 years old and walking with a cane. ECF No. 8-1 at 52-53. Neal testified that he has 5 poems in the United States Library of Congress, but sometimes he cannot remember easy words. ECF No. 8-1 at 53. His memory has gotten progressively worse since he suffered a “traumatic brain injury” in 2015. ECF No. 8-1 at 53.
Neal testified that he can: lift 30 to 35 pounds sometimes; sit for 30 minutes to an hour; and stand and walk for 30 minutes to an hour. ECF No. 8-1 at 53. In a normal day, Neal helps wrangle his goddaughters (both three years old) who live in the same house as Neal. ECF No. 8-1 at 54. Neal also spends a lot of time sitting or laying down. ECF No. 8-1 at 54. Neal's friend works from home, teaching online. ECF No. 8-1 at 54. Neal does laundry, and takes care of his hygiene, but falls in the shower “fairly often.” ECF No. 8-1 at 54-55. Neal also cooks sometimes. ECF No. 8-1 at 55. Neal helps pick up toys, but is unable to sweep because it aggravates his back. ECF No. 8-1 at 55. Neal does not do any yardwork or gardening. ECF No. 81 at 55.
Neal testified that he goes to church occasionally, but sometimes has difficulty sitting for the entire service. ECF No. 8-1 at 55-56. Neal enjoys watching historical reenactments, although he is no longer able to take part in them. ECF No. 8-1 at 56. Neal goes to a movie once in a while, but has to take pain medication (hydrocodone) before the movie. ECF No. 8-1 at 56. Neal also reads and tries to paint, but it is becoming more difficult to do those things. ECF No. 8-1 at 57.
Neal testified that, if he had a job sitting down, he would have to stand up and walk around for about ten minutes every hour. ECF No. 8-1 at 56.
The ALJ posed a hypothetical to the VE involving a person: of Neal's age and education; with no past relevant work; who is limited to sedentary work; can occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs; can never climb ladders, ropes, or scaffolds; can perform occasional handling with the left upper extremity; no fingering with the left hand; can do frequent but not constant fingering and handling with the right upper extremity; cannot work around hazards such as unprotected heights or dangerous moving machinery; must use a cane for ambulation; and needs to change position for one to two minutes per hour without being off-task or away from the workstation. ECF No. 8-1 at 61-62. Neal clarified that he is right-hand dominant. ECF No. 8-1 at 62.
The VE testified that such a person could work as a call-out operator: DOT No. 237.367-004; sedentary; unskilled; SVP 2; reaching, handling, and fingering requirements are all occasional; and 2,974 full time jobs in the national economy. ECF No. 8-1 at 63. Such a person could also work as an election clerk: DOT No. 205.367-030; sedentary; unskilled; SVP 2; reaching, handling, and fingering requirements are all occasional; and 6,743 full-time jobs in the national economy. ECF No. 8-1 at 63. The person could also work as a surveillance system monitor: DOT No. 379.367-010; sedentary; SVP 2; unskilled; and reaching, handling, and fingering are all occasional; and 8,928 full time jobs nationally. ECF No. 8-1 at 6364.
The ALJ posed a second hypothetical to the VE, involving a person with the same limitations as in the first hypothetical except the person: cannot stoop; can sit no longer than one hour at a time and needs to move around for 10 to 15 minutes after every hour; and can stand and walk no more than one hour at a time. ECF No. 8-1 at 65. The ALJ clarified that the person's need to move around would require him to leave his workstation. ECV No. 8-1 at 65. The VE testified there would not be any jobs such a person could do, due to the need to leave his workstation. ECF No. 8-1 at 65.
The VE posed a third hypothetical, involving a person with the same limitations as in the second hypothetical, and additionally requiring: at least two extra 15-minute breaks during the workday; or else the person would be off-task at least 20% of the workday; or the person would be absent at least two days per month. ECF No. 8-1 at 65. The VE testified that any one of those three provisions would eliminate all jobs for such a person. ECF No. 8-1 at 66.
D. ALJ's Findings and Conclusions
To determine disability, the ALJ applied the sequential process outlined in 20 C.F.R. §404.1520(a) and 20 C.F.R. §416.920(a). The sequential process required the ALJ to determine whether Neal (1) is presently working; (2) has a severe impairment; (3) has an impairment listed in or medically equivalent to those in 20 C.F.R. Pt. 404, Subpt. P, App. 1 ("Appendix 1"); (4) is unable to do the kind of work he did in the past; and (5) can perform any other type of work. If it is determined at any step of that process that a claimant is or is not disabled, the sequential process ends. A finding that a claimant is disabled or is not disabled at any point in the five-step review is conclusive and terminates the analysis. See Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994), cert. den., 514 U.S. 1120 (1995) (citing Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987)).
To be entitled to benefits, an applicant bears the initial burden of showing that he is disabled. Under the regulations, this means that the claimant bears the burden of proof on the first four steps of the sequential analysis. Once this initial burden is satisfied, the Commissioner bears the burden of establishing that the claimant is capable of performing work in the national economy. See Greenspan, 38 F.3d at 237.
In the case at bar, the ALJ found that Neal had not engaged in substantial gainful activity since May 15, 2015, his alleged disability onset date. ECF No. 8-1 at 23. Neal had disability insured status through September 30, 2019. ECF No. 8-1 at 23. The ALJ also found that Neal has severe impairments of: degenerative disc disease of the cervical spine; diabetes mellitus; hypertension; and peripheral neuropathy. ECF No. 8-1 at 34. Neal does not have an impairment or combination of impairments listed in, or medically equal to, one listed in Appendix 1 of 20 C.F.R. Part 404, Subpart P. ECF NO. 8-1 at 27.
At Step No. 5 of the sequential process, the ALJ found that Neal has the residual functional capacity to perform sedentary work with additional limitations: he can only occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs; he can never climb ladders, ropes, or scaffolds; only occasional handling with the left upper extremity; no fingering with the left upper extremity, frequent but not constant fingering and handling with the right upper extremity; no work around hazards such as unprotected heights and dangerous, moving machinery; he must use a cane for ambulation; and he needs to change position for 1 to 2 minutes per hour without being off take or away from his workstation. ECF No. 8-1 at 28.
The ALJ also found that Neal; is a younger individual with at least a high school education and no past relevant work. ECF No. 8-1 at 33. The ALJ found there are jobs that exist in significant numbers in the national economy that Neal can perform: callout operator, DOT 237l367-014 (sedentary, unskilled, SVP 2, 2,974 jobs nationally); election clerk, DOT 205.367-030 (sedentary, unskilled, SVP 2, 6,743 jobs nationally); and surveillance systems monitor, DOT 379.367-010 (sedentary, unskilled, SVP 2, 8,928 jobs nationally). ECF No. 8-1 at 34. The ALJ concluded that Neal was not disabled as defined in the Social Security Act at any time through the date of his decision on June 22, 2021. ECF No. 8-1 at 34.
II. Law and Analysis
A. Scope of Review
A court reviews the Commissioner's denial of social security benefits “‘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.'” Kneeland v. Berryhih, 850 F.3d 749, 753 (5th Cir. 2017) (quoting Whitehead v. Colvi, 820 F.3d 776, 779 (5th Cir. 2016)); see also 42 U.S.C. § 405(g). The standard of review under § 405(g) is “exceedingly deferential.” Taylor v. Astru, 706 F.3d 600, 602 (5th Cir. 2012). A decision is supported by substantial evidence if “credible evidentiary choices or medical findings support the decision.” Whitehea., 820 F.3d at 779 (quoting Boy, 239 F.3d at 704).
“Substantial evidence is ‘more than a mere scintilla but less than a preponderance.'” Williams v. Administrative Review Boar, 376 F.3d 471, 476 (5th Cir. 2004) (quoting Rpley v. Chate, 67 F.3d 552, 555 (5th Cir. 1995)). For the evidence to be substantial, it must be relevant and sufficient for a reasonable mind to support a conclusion. See Falco v. Shalala, 27 F.3d 160, 162 (5th Cir. 1994) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). “[T]he substantial evidence test does not involve a simple search of the record for isolated bits of evidence which support the [Commissioner's] decision,” but must include a scrutiny of “the record as a whole.” Singletary v. Bowen, 798 F.2d 818, 822-23 (5th Cir. 1986). “[T]he substantiality of the evidence must take into account whatever in the record fairly detracts from its weight.” Singletary, 798 F.2d at 823.
A court reviewing the Commissioner's decision “may not retry factual issues, reweigh evidence, or substitute [its] judgment for that of the fact-finder.” Dellolio v. Heckler, 705 F.2d 123, 125 (5th Cir. 1983); see also Fraga v. Bowen, 810 F.2d 1296, 1302 (5th Cir. 1987). “[T]he resolution of conflicting evidence and credibility choices is for the [Commissioner] and the administrative law judge, rather than [a court].” Allen v. Schweiker, 642 F.2d 799, 801 (5th Cir. 1981); see also Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992). A court does have authority, however, to “set aside factual findings that are not supported by substantial evidence and [to] correct errors of law.” Deiloiio, 705 F.2d at 125. “A finding of no substantial evidence is appropriate only if no credible evidentiary choices or medical findings support the decision.” Jones v. O'Malley, 107 F.4th 489, 493 (5th Cir. 2024) (quoting Boy, 239 F.3d at 704, and Harris v. Apfe, 209 F.3d 413, 417 (5th Cir. 2000)).
B. The ALJ properly analyzed the medical evidence as to Neal's mental residual functional capacity.
Neal contends he cannot work due to his “mental impairments.” Neal points out that he suffers from anxiety and depression, for which he takes medicine prescribed by Dr. Picou, a family medicine doctor. Neal contends the ALJ failed to properly evaluate his “mental impairments” pursuant to the “paragraph B” criteria of 20 C.F.R. § 404.1520a.
“The Commissioner has instituted a corollary procedure for determining the merits of mental disability claims. 20 C.F.R. § 404.1520a.” Boy*, 239 F.3d at 705. “If an impairment is found, the ALJ must determine whether certain medical findings relevant to a claimant's ability to work are present or absent. 20 C.F.R. § 404.1520a(b)(2). The ALJ must then evaluate the degree of functional loss resulting from the impairment in four separate areas deemed essential for work. 20 C.F.R. § 404.1520a(b)(3). If the degree of functional loss falls below a specified level in each of the four areas, the ALJ must find the impairment ‘not severe,' which generally concludes the analysis and terminates the proceedings. 20 C.F.R. § 404.1520a(c)(1). If the mental impairment is ‘severe' under 20 C.F.R. § 404.1520a(c)(1), the ALJ must then determine if it meets or equals a listed mental disorder under 20 C.F.R. pt. 404, subpt. P, app. 1, 12.00-12.09. 20 C.F.R. § 404.1520a(c)(2). If the impairment is severe, but does not reach the level of a listed disorder, then the ALJ must conduct a residual functional capacity assessment. 20 C.F.R. § 404.1520a(c)(3).” Boy, 239 F.3d at 705.
Dr. Picou, Neal's general practitioner found Neal suffers from anxiety and depression, for which he prescribes medication. However, as the ALJ noted, Neal has not sought care from a mental health professional. Nor has Neal alleged or shown that the medication prescribed by Dr. Picou is not effective in controlling his depression and anxiety.
20 C.F.R. § 1521 states in part: “Your impairment(s) must result from anatomical, physiological, or psychological abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic techniques. Therefore, a physical or mental impairment must be established by objective medical evidence from an acceptable medical source. We will not use your statement of symptoms, a diagnosis, or a medical opinion to establish the existence of an impairment(s). After we establish that you have a medically determinable impairment(s), then we determine whether your impairment(s) is severe.”
Meanwhile, Dr. Thrasher evaluated Neal only once and diagnosed him with depressive disorder. It is noteworthy that Dr. Thrasher diagnosed PTSD only provisionally, and found generalized anxiety disorder and TBI by history only.
Although Neal contends that he suffered a traumatic brain injury (“TBI”) in the 2015 motor vehicle accident, there is no medical evidence to support that assertion, as noted by the ALJ. The medical evidence within a week of the accident - a negative CT scan of his head (ECF No. 8-1 at 430, 727), and a normal MRI of his brain (ECF No. 8-1 at 728) - does not support his claim, nor does any of his subsequent brain imaging. There was no diagnosis of a TBI or a concussion after the accident. The only mentions of TBI in the medical records are in Neal's medical history because he told his subsequent physicians that he had suffered a TBI in a motor vehicle accident.
The ALJ reviewed the medical records, Neal's reported activities of daily living, the opinions of the psychological consultants, Dr. Wise, Psy.D. and Dr. Levy, Ph.D., and the “Paragraph B criteria” of § 404.1520c and § 416.920c. The ALJ agreed with the findings of Dr. Wise and Dr. Levy, that Neal's mental impairments cause no more than mild functional limitations and a minimal limitation in his ability to work, and concluded that Neal's mental impairment is not severe. ECF No. 8-1 at 24-25.
Neal argues the ALJ erred in failing to adopt Dr. Thrasher's evaluation, that he cannot work for even two hours at a time and or for 40 hours per week. However, “conflicts in the evidence are for the Commissioner and not the courts to resolve.” Newton v. Apfe, 209 F.3d 448, 452 (5th Cir. 2000). After noting the inconsistencies in Dr. Thrasher's report, and reviewing the AL J's thorough evaluation of the Paragraph B criteria, it appears the ALJ made credible evidentiary choices and appropriately resolved the conflicts in the medical evidence. Substantial evidence supports the ALJ's conclusion that Neal's mental impairments are not severe.
Dr. Thrasher did not assign degrees to any of Neal's mental functional limitations. It is noted that Dr. Thrasher's evaluation report appears to have some inconsistencies: (1) “Claimant does relate well to others on a one-to-one basis. Claimant appears able to interact appropriately with the public and maintain socially appropriate behavior and hygiene.” Contrast, “His ability to relate to coworkers and the general public is limited due to his TBI, PTSD, depression, and severe medical issues. . . . Claimant's emotional lability and inability to modulate and express anger in a socially appropriate manner would be disruptive to co-workers, and prevent him from accepting criticism from supervisors.” (2) “Claimant does function independently and displays age appropriate behaviors. .. . He can set realistic goals and make plans independently.” Contrast, “Claimant appears to be immature, dependent, and lacking the knowledge, experience, and self-responsibility necessary to effectively manage his financial affairs.” (3) “Claimant's concentration is fairly good, pace is fairly good, and persistence is fair.” Contrast, “Claimant appears able to perform simple work tasks, however, [it] appears he probably would not be able to maintain attention and concentration to perform these tasks for a 2-hour work block Claimant's ability to sustain effort and persist at a normal pace over the course of a routine 40-hour workweek is limited due to aforementioned symptoms, as is his ability to tolerate stress, pressure, and social environment of a work setting.”
C. The ALJ properly analyzed the medical evidence as to Neal's physical residual functional capacity.
Neal contends the ALJ failed to articulate a rational medical and evidentiary basis for the opinions of his treating physicians concerning his physical limitations. He argues that evaluations of the treating physicians cannot be dismissed without proper analysis under the required factors.
Neal contends the required factors to be considered are set forth in 20 C.F.R. § 404.1527 (evaluating opinion evidence for claims filed before March 27, 2017). However, the statutory provision applicable to Neal's claim, which was filed after March 27, 2017, is in 20 C.F.R. § 404.1520c (evaluating opinion evidence for claims filed on or after March 27, 2017) and 20 C.F.R. 416.920c.
Neal contends that he cannot consistently work eight-hour days and 40-hour workweeks because he must take an excessive number of breaks and would have an excessive number of absences. Neal relies on the opinion of his treating physician, Dr. Picou, and states generally that people have good and bad days.
“A claimant's RFC represents the most the claimant can do in a work setting with ]his] limitations. 20 C.F.R. § 404.1545(a)(1). The RFC is used at steps four and five to determine if [he] can still perform [his] past relevant work or adjust to other work.” Wills v. Kjakaz., 2023 WL 4015174, at *2 (5th Cir. 2023) (citing Perez v. Barnhar, 415 F.3d 457, 461-62 (5th Cir. 2005), and 20 C.F.R. § 404.1520(e)). “An ALJ is to assess RFC ‘based on all the relevant evidence in [the] case record.'” Will, 2023 WL 4015174, at *4 (citing 20 C.F.R. § 404.1545(a)(1)).
The ALJ generally agreed with Dr. Holmes's opinion as to Neal's residual functional capacity and rejected Dr. Picou's opinion that Neal cannot do any work. “An ALJ may properly formulate an RFC that is not an adoption of any medical opinion while still basing his decision on substantial evidence.” West v. Kjakaz., 2022 WL 4137297, at *7 & n.3 (S.D. Tex. 2022), report and recommendation adopted, 2022 WL 4138574 (S.D. Tex. 2022) (citing Webster v. Kjakazi, 19 F.4th 715, 719 (5th Cir. 2021)).
Neal contends the ALJ failed to articulate an evidentiary basis for overriding Dr. Picou's opinion. Under the new regulations, rather than assigning weight to the medical opinions, the Commissioner must articulate “how persuasive” he finds the medical opinions. See 20 C.F.R. § 404.1520c; 20 C.F.R. § 416.920c(b). The Commissioner's consideration of the persuasiveness of medical opinions is guided by the following factors: (1) supportability; (2) consistency; (3) relationship with the claimant (including the length of the treatment relationship, the frequency of examinations, the purpose of the treatment relationship, the extent of the treatment relationship, and the examining relationship); (4) specialization of the medical source; and (5) any other factors that tend to support or contradict the opinion. 20 C.F.R. § 404.1520c(c)(1)-(5); 20 C.F.R. § 416.920c(c)(1)-(5).
“While, under the new regulatory framework, a medical source's ‘treatment relationship' with a claimant is a factor considered when assessing the persuasiveness of medical opinions, no controlling or deferential weight attaches to any medical opinion as a matter of course.” See Wiliams v. Kjakaz., 2023 WL 5769415, at *3 (5th Cir. 2023). “Instead, the persuasiveness of any medical source's opinion - whether that source is a treating, examining, or non-examining physician - depends most significantly on whether the opinion is supported by objective medical evidence and the source's own explanation of the opinion (i.e., the first factor) and the opinion is consistent with other evidence provided by medical sources of record (the second factor).” Williams, 2023 WL 5769415, at *3 (citing 20 C.F.R. § 404.1520c(c), § 416.920c(c)).
“Supportability” and “consistency” are the most important factors. 20 C.F.R. § 404.1520c(b)(2); 20 C.F.R. § 416.920c(b)(2). The ALJ must explain these factors, but he need not expound on the remaining three unless he finds that two or more nonidentical medical opinions are equally well-supported and consistent with the record. See 20 C.F.R. § 404.1520c(b) (2)-(3); 20 C.F.R. § 416.920c(b) (2)-(3). Furthermore, the fact that a medical source actually examined the claimant or specializes in an area germane to the claimant's medical issues are not primary or dispositive considerations in assessing the medical opinion. See 20 C.F.R. § 404.1520c(c); 20 C.F.R. § 416.920c(c).
Neal's treating physician, Dr. Picou, stated that Neal cannot work due to “physical problems,” including inability to walk more than one and a half hours per day and parasthesis in his left hand. Neal contends the ALJ erred in adopting the conclusions of Dr. Holmes, a non-treating physician who evaluated Neal and found he can walk occasionally in an eight-hour day, requires use of a cane, and has a limited ability to reach, handle, and grasp.
Neal's most recent medical tests are relevant: (1) an MRI of Neal's cervical spine in November 2020 showed mild degenerative changes greatest at ¶ 5-6 where there is slight posterior disc bulge and moderate right foraminal narrowing, no significant spinal stenosis, and no definite nerve root impingement; (2) a CT scan of Neal's head, in December 2020, showed normal brain formation, an intact skull, and no acute intracranial abnormalities; and (3) x-rays of Neal's right knee showed mild bilateral medial compartment joint space loss, slight lateral tibial translation on the right, no fracture, dislocation, or significant soft tissue abnormality, and no capsular distention. ECF No. 8-1 at 1095.
The ALJ did not adopt fully the opinion of Dr. Picou, Dr. Holmes, Dr. Faludi, or Dr. Dzurik, but instead found:
The undersigned finds the opinions of Drs. Faludi and Dzurik generally consistent and persuasive, with two exceptions: First, the evidence does not support the same degree of fingering and handling limitations on the right as the left, which is supported by differences in grip strength measured by Dr. Holmes and by Dr. Picou's assessment of a lesser to no limitation on the right (e.g. Ex. 16F). Second, the undersigned did not find the claimant could stand and walk 4 hours, as the evidence better supports 2 hours of standing and walking, as typically performed in sedentary work. . . . Moreover, the consultative examiner, Tosheiba Holmes, M.D. opined, “He has limitation in standing and is able to stand occasionally in an 8 hour work day . . . able to walk occasionally in an 8 hour work day” (Ex. 15F/7). Dr. Holmes further opined, “He has a limited ability to bend or stoop. . . . He has limited ability to reach, handle or grasp” and stated, “He ambulated with difficulty and the assistive device that they used appeared to be medically required” (id.). Dr. Holmes supported her opinion with an examination report that is hereby incorporated into the record (id.). The undersigned finds the opinion of Dr. Holmes generally persuasive, as it is consistent with and supported by, the
evidence of record, her own examination of the claimant, and the opinions of Dr. Faludi and Dr. Dzurik. . . . The undersigned finds the opinion of Dr. Picou not persuasive, as it is inconsistent with the evidence of record, the opinions and finding of Dr. Holmes, and the opinions of Dr. Faludi and Dr. Dzurik. Although the undersigned accepts that the claimant has a degree of limitation consistent with the residual functional capacity (RFC) set forth above, the limitations beyond that reported by Dr. Picou are not supported by the evidence.ECF No. 8-1 at 231-32.
The ALJ did not improperly draw his own medical opinions from raw data, but properly examined the extensive medical documentation and other information in the record and resolved conflicts in the medical evidence. See Wills, 2023 WL 4015174, at *4. The ALJ reviewed the relevant factors and noted the support for the physicians' opinions in the medical evidence and the consistency of each physician's opinion with the record as a whole. ECF No. 8-1 at 29-33. The ALJ then weighed the medical evidence, resolved the conflicts, and made credible evidentiary choices to support his assessment of Neal's residual functional capacity. Compare Wills, 2023 WL 4015174, at *4 (5th Cir. 2023) (“[W]e cannot say that ‘no credible evidentiary choices or medical findings support the [ALJ's] decision.'”) (quoting Whitehead, 820 F.3d at 781, and Boy, 239 F.3d at 704).
Neal also contends the ALJ's hypothetical questions to the VE were defective because they were based on an erroneous determination of his residual functional capacity. As discussed, however, the ALJ's determination of his residual functional capacity was appropriate. Moreover, Neal's counsel was given the opportunity to question the VE further about Neal's residual functional capacity and his ability to work, and declined to do so. ECF No. 8-1 at 66.
The ALJ gave proper consideration to the medical opinions and their supportability and consistency. The ALJ's conclusions as to Neal's physical residual functional capacity and ability to work are supported by substantial evidence.
III. Conclusion
Based on the foregoing, IT IS RECOMMENDED that the final decision of the Commissioner be AFFIRMED and that Neal's appeal be DENIED.
Under the provisions of 28 U.S.C. § 636(b)(1)(c) and Fed.R.Civ.P. 72(b), parties aggrieved by this Report and Recommendation have fourteen (14) calendar days from service of this Report and Recommendation to file specific, written objections with the Clerk of Court. A party may respond to another party's objections within fourteen (14) days after being served with a copy thereof. No other briefs (such as supplemental objections, reply briefs, etc.) may be filed. Providing a courtesy copy of the objection to the undersigned is neither required nor encouraged. Timely objections will be considered by the District Judge before a final ruling.
Failure to file written objections to the proposed findings, conclusions, and recommendations contained in this Report and Recommendation within fourteen (14) days from the date of its service, or within the time frame authorized by Fed.R.Civ.P. 6(b), shall bar an aggrieved party from attacking either the factual findings or the legal conclusions accepted by the District Judge, except upon grounds of plain error.