Opinion
Civil Action 5:24-CV-6
12-12-2024
THELMA PERUSQIA v. MARTIN O'MALLEY, Commissioner of the Social Security Administration
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Christopher dos Santos United States Magistrate Judge
Pending before the Court is Plaintiff Thelma Perusqia's Motion for Summary Judgment, (Dkt. No. 9), and Defendant's Cross Motion for Summary Judgment. (Dkt. No. 10). On August 1, 2024, United States District Judge John A. Kazen referred both motions to the Undersigned for a Report and Recommendation. (Dkt. No. 14). For the reasons below, the Undersigned recommends Plaintiff's motion, (Dkt. No. 9), be GRANTED, and that the Commissioner's Cross Motion for Summary Judgment, (Dkt. No. 10), be DENIED.
I. BACKGROUND
On August 28, 2020, Plaintiff filed both a Title II application for disability and disability insurance benefits and a Title XVI application for supplemental security income (SSI). (Dkt. No. 7-5 at 2). In her application, Plaintiff alleged various physical and mental impairments that caused her to be-and continue to cause her to be-disabled. (Dkt. No. 7-6 at 14). These alleged impairments, among others, include severe depression, anxiety, frequent migraines, chronic pain, fibromyalgia, and degenerative diseases. (Id. at 14-33).
On July 29, 2022, a hearing was held before an Administrative Law Judge (“the ALJ”). (Dkt. No. 7-2 at 45). During the hearing, the ALJ reviewed various important issues regarding Plaintiff's application, including Plaintiff's motion to withdraw Plaintiff's Title II application. (Id. at 45-70). However, Plaintiff was unable to attend the hearing and was therefore unable to provide testimony as to her alleged disabilities. (Id. at 45). The ALJ then ordered Plaintiff to show good cause as to why she was unable to attend to determine whether an additional hearing should be held. (Dkt. No. 7-4 at 9597). Plaintiff provided a response. (Id. at 98). On September 9, 2022, the ALJ denied both the SSI application and the request for hearing after finding that Plaintiff's response was inadequate. (Dkt. No. 7-3 at 81). Plaintiff appealed to the Social Security Administration Appeals Council who then vacated and remanded the ALJ's decision, concluding that Plaintiff was entitled to a rehearing as she had shown good cause as to why she was not in attendance at the original hearing. (Id. at 89). After holding a rehearing with Plaintiff in attendance, the ALJ issued a second unfavorable decision finding Plaintiff is not disabled under the Social Security Act (“the SSA”). (Id. at 16).
In determining Plaintiff is not disabled under the SSA, the ALJ engaged in the Social Security Administration's well established five-step sequential evaluation. 20 C.F.R. § 416.920(a)(4)(i)-(v). In conducting the evaluation, the ALJ considers:
(i) whether the claimant is currently engaged in substantial gainful activity,
(ii) whether the claimant has a medically determinable physical or mental impairment or combination of impairments that are “severe,”
(iii) whether the impairment or combination of impairments meets or equals a listing in 20 C.F.R. Part 404, Subpart P, Appendix 1,
(iv) whether the impairment prevents the claimant from performing past relevant work, and
(v) whether the claimant's assigned Residual Functional Capacity (“RFC”) prevents her from engaging in any other work.Id; see also Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994) (summarizing the five-step disability analysis). The claimant bears the burden of proving her disability at the first four steps. Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000). Should the claimant meet this burden, the burden shifts to the Commissioner at the fifth step. Ibid.
Under the first step, the ALJ found that Plaintiff had not been engaged in substantial gainful activity since August 28, 2020, the alleged onset date of her impairments. (Dkt. No. 7-2 at 18). During the second step, the ALJ found that the claimant had a list of medically determinable impairments that “significantly limit [her] ability to perform basic work activities as required by SSR 85-28” and were therefore severe.(Ibid.). Moving to step three, the ALJ determined that Plaintiff does not “have an impairment or combination of impairments that meets or medically equals the severity” of listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id. at 20). In coming to this conclusion, the ALJ examined the “paragraph B” criteria contained in 20 C.F.R. Part 404, Subpart P Appendix 1, § 12.00, “Mental Disorders. (Id. at 20-21). The paragraph B criteria are representations of “the areas of mental functioning a person uses in a work setting.” (Ibid.). These areas include the claimant's ability to 1) understand, remember, or apply information; 2) interact with others; 3) concentrate, persist, or maintain pace; and 4) adapt or manage oneself. 20 C.F.R. § 416.920a(c)(2)-(4). The process of examining these areas is a “complex and highly individualized process, referred to as the “special technique.” Id. § 416.920a(c)(1)-(3).
These impairments include “bipolar disorder/major depressive disorder, post-traumatic stress disorder, unspecified anxiety disorder/generalized anxiety disorder/social anxiety disorder, somatic symptom disorder, panic disorder, avoidant personality disorder with depressive schizoid traits, cervical degenerative disc disease, and, in combination only, mil dextroscoliosis, lumbar degenerative disc disease, and thoracic degenerative disc disease.” (Dkt. No. 7-2 at 18). While other impairments were raised, the ALJ determined they were not severe after reviewing the record. (Id. at 18-20); see 20 C.F.R. § 416.922.
The ALJ also evaluated whether the “paragraph C” criteria are satisfied. However, the ALJ's assessment as to these criteria is not at issue. (Dkt. No. 7-2 at 22).
In using the special technique, the ALJ evaluates the claimant's medically determinable impairments found under step two and assigns a “degree of limitation” to each of the four functional areas. Id. § 416.920a(b)(2). A degree of limitation is a rating that acts as a representation of the claimant's ability to function “independently, appropriately, effectively, and on a sustained basis.” Id. § 416.920a(c)(2). The rating system used is represented by a five-point scale ranging from none, mild, moderate, marked, and extreme. Ibid. If a functional area is assigned a degree of limitation rating of moderate or higher, the claimant's medically determinable mental impairment is deemed to be severe. Id. § 416.920a(d)(1)-(2). If the mental impairment is severe, the ALJ “determines if it meets or is equivalent in severity to a listed mental disorder” in paragraph B. Id. § 416.920a(d)(2). A mental impairment will meet or equal a listed mental disorder only if the ALJ assigns a rating of at least: (1) extreme as to one functional area; or (2) marked as to two functional areas. See 20 C.F.R. Subpart P, App. 1, § 12.00. If the ALJ declines to make either of these assignments, the mental impairment “neither meets nor is equivalent in severity to any listing, [and the ALJ must then] assess[] [the claimant's] residual functional capacity” under step 4 of the disability analysis. Id. § 416.920a(d).
Here, the ALJ considered the medically determinable impairments found under step two and the evidence associated with those findings to assign a degree of limitation in all four functional areas. (Dkt. No. 7-2 at 21-22). The ALJ assigned a rating of moderate as to each area. (Id. at 21). Importantly, the ALJ determined Plaintiff suffered from a moderate limitation in her ability to concentrate, persist, or maintain pace, stating:
[w]ith regard to concentrating, persisting, or maintaining pace, the claimant has a moderate limitation. The claimant reported that she has difficulty with memory, completing tasks, understanding, following instructions, and focusing. The claimant reported she needs written instructions explained to her and spoken instructions repeated. Her sister takes care of her bills. She can drive herself to appointments or to the pharmacy when there is no one available to take her (Testimony). Treatment records indicate the claimant's attention is adequate but she has exhibited poor concentration at times.(Ibid.) (citations omitted). As a result, the ALJ concluded Plaintiff's mental impairments were severe. (Ibid.). However, because Plaintiff's “mental impairments do not cause at least two ‘marked' limitations or one ‘extreme' limitation,” the ALJ determined the severity of her mental impairments did not meet or equal a listed mental disorder in paragraph B. (Id. at 22); see 20 C.F.R. Subpart P, App. 1, § 12.00. Accordingly, the ALJ was required to assign Plaintiff with an RFC and continue to step 4 of the disability analysis.
Under the fourth step of the disability analysis, the ALJ was required to determine whether the claimant's RFC prevents her from performing her past relevant work. 20 C.F.R. § 416.920(a)(v). A claimant's RFC “is an administrative assessment of the extent to which an individual's medically determinable impairment(s), including any related symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to do work-related physical and mental activities.” Irby v. Barnhart, 180 Fed.Appx. 491, 493 (5th Cir. 2006) (unpublished); 20 C.F.R. § 416.920a(d)(3). In other words, a claimant's RFC is a determination of what work the claimant can do despite their impairments. See Herrera v. Comm'r of Soc. Sec., 406 F.App'x. 899, 902 (5th Cir. 2010) (unpublished). To determine a claimant's RFC, an ALJ must engage in a two-step analysis. SSR 16-3p.
Currently, past relevant work is work performed “within the past 5 years, that was substantial gainful, activity and lasted long enough for [the claimant] to learn to do it.” 20 C.F.R. § 416.960(b)(1) (updated June 21, 2024). However, at the time of the ALJ's decision, past relevant work was work performed “within the past 15 years, that was substantial gainful activity and lasted long enough for [the claimant] to learn to do it.” (Dkt. No. 7-2 at 17); Ibid. Accordingly, the ALJ considered work dating back 15 years prior to the onset of the alleged disability. (Dkt. No. 7-2 at 17).
Under the first step, the ALJ must determine “whether there is an underlying medically determinable physical or mental impairment(s) . . . that could reasonably be expected to produce the claimant's alleged symptoms.” SSR 16-3p; 20 C.F.R. § 416.929(b). In making this determination, the ALJ considers the entirety of the record which includes medical records and opinions, records and opinions of non-medical sources, and the testimony of the claimant themselves. SSR 16-3p. Should the ALJ conclude that a medically determinable impairment could reasonably be expected to produce an individual's alleged symptoms, the ALJ moves to the second step. Ibid. Under the second step of the analysis, the ALJ must evaluate the “intensity, persistence, and limiting effects of the individual's symptoms . . . and determine the extent to which an individual's symptoms limit” her ability to engage in work activities. Ibid. Like the ALJ's review under the first step, the ALJ considers “the entire case record, including objective medical evidence; the claimant's own statements; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record.” Ibid.
Here, the ALJ found Plaintiff suffered from medically determinable impairments that could reasonably be expected to cause the symptoms she alleged under the first step. (Dkt. No. 7-2 at 27). As to the medical impairments at issue, the ALJ found that claimant's bipolar disorder, major depressive disorder, post-traumatic stress disorder (PTSD), unspecified anxiety disorder, somatic symptom disorder, panic disorder, and avoidant personality disorder with depressive schizoid traits could reasonably be expected to cause the symptoms she alleged. (Ibid.). Moving to the second step, the ALJ concluded that Plaintiff's claims regarding intensity, persistence and limiting effects of the medically determinable impairments were not supported by the objective evidence. (Id. at 22-34). As part of that decision, the ALJ discussed the medical opinions he found to be persuasive and unpersuasive as required by 20 C.F.R. § 404.1520c(b)(2) and § 416.920c(b)(2). (Id. at 33-34). As a result, the ALJ assigned the following RFC:
[the claimant] has the residual functional capacity to perform light work as defined in 20 CFR 416.967(b) except no climbing ladders, ropes, or scaffolds; occasional climbing of ramps and stairs; and frequent balancing, kneeling, stooping, crouching, and crawling. The claimant retains the ability to understand, remember and carry out detailed but not complex jobs with frequent interaction with the general public and no more than occasional changes in the work setting.(Id. at 22) (emphasis added).
The ALJ then used this RFC to determine which past relevant work Plaintiff could perform despite her impairments. (Id. at 35). To accomplish this, the ALJ considered testimony provided by a vocational expert (“VE”) at the disability hearing. (Id. at 35; 114). After considering the VE's testimony and the rest of the record, to include the objective medical evidence, the ALJ found that Plaintiff could perform her past relevant work as a “tax clerk.” (Id. at 35). Because the ALJ found that Plaintiff could perform this past relevant work under the fourth step, he concluded that Plaintiff is not disabled under the Social Security Act. (Ibid.).
On November 6, 2023, the Appeals Council denied Plaintiff's request for review, making the ALJ's unfavorable decision the final determination of the Commissioner of the Social Security Administration and ripe for review. (Dkt. No. 7-2 at 2-5); 42 U.S.C. § 405(g). On January 11, 2024, Plaintiff initiated this action challenging the determination pursuant to 42 U.S.C. § 405(g), requesting the court vacate and remand the decision for further review. (Dkt. No. 1).
II. LEGAL STANDARDS
Under 42 U.S.C. § 405(g), judicial review of an ALJ's decision is limited to determining (1) whether the decision is supported by substantial evidence; and (2) whether the proper legal standards were utilized in coming to a decision. Stevens v. Shalala, 36 F.3d 90, 1994 WL 523807, at *1 (5th Cir. 1994) (unpublished).
The substantial evidence standard of review requires the reviewing court to determine whether the ALJ's decision is supported by the administrative record. Beck v. Barnhart, 205 F.App'x. 207, 210 (5th Cir. 2006) (unpublished). In making this determination, a reviewing court “may not reweigh the evidence in the record, nor try the issue de novo.” Bowling, 26 F.3d at 434. Rather, the reviewing court must determine whether the decision is supported by a “quantum of relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” Casey v. Apfel, 230 F.3d 131, 135 (5th Cir. 2000); see Biestek v. Berryhill, 587 U.S. 97, 102-03 (2019) (Stating the threshold to establish evidence sufficient to satisfy the standard is “not high”). While the standard is highly deferential, the Court must still “carefully scrutinize the record to determine if [sufficient] evidence is present.” Westover v. Astrue, No. 4:11-CV-816-Y, 2012 WL 6553102, at *2 (N.D. Tex. Nov. 16, 2012).
When an ALJ fails to follow proper legal standards in making his or her decision, a court will reverse the action and remand for further proceedings unless the court finds that the error is harmless. Frank v. Barnhart, 326 F.3d 618, 622 (5th Cir. 2003). “Harmless error exists when ‘it is inconceivable that the ALJ would have reached a different conclusion' absent the error. Kilby v. Kijakazi, No. 4:20-CV-3035, 2022 WL 1797043, at *5 (S.D. Tex. 2022) (quoting Id.). Accordingly, to establish that an error exists that warrants remand, “a plaintiff must show that the SSA's decision might have been different” had the ALJ followed proper legal standards. Cardenas v. Kijakazi, No. 7:21-CV-135, 2022 WL 2719044, at *6 (S.D. Tex. June 3, 2022), report and recommendation adopted, 2022 WL 2715204 (S.D. Tex. July 12, 2022).
III. ANALYSIS
A. The ALJ did not Adequately Articulate the Persuasiveness Factor of Supportability Regarding Favorable Medical Opinion Evidence, Pursuant to 20 C.F.R. § 404.1520c and § 416.920c, Resulting in Prejudicial Error.
Plaintiff challenges the ALJ's conclusion that Plaintiff retains “the ability to understand, remember and carry out detailed but not complex jobs with frequent interaction with the general public and no more than occasional changes in the work setting” under his RFC determination. (Dkt. No. 9-1 at 18). Specifically, Plaintiff argues that the ALJ failed to properly weigh and articulate the persuasiveness factors of supportability and consistency regarding a favorable medical opinion provided by Plaintiff's mental health counselor Aramazti Canales, LPC, (“Ms. Canales”) as required by 20 C.F.R. § 404.1520c and § 416.920c. (Ibid.).
For claims filed on or after March 27, 2017, an ALJ must consider the “persuasiveness” of medical opinions from different medical sources. 20 C.F.R. § 404.1520c(b)(2) and § 416.920c(b)(2). In determining whether a medical opinion is persuasive, the ALJ considers five factors. Shugart v. Kijakazi, No. 3:21-CV-00007, 2022 WL 912777, at * 3 (S.D. Tex. Mar. 29, 2022). These factors are: “(i) supportability; (ii) consistency; (iii) the source's relationship with the patient; (iv) the source's specialty; and (v) other factors that tend to support or contradict the opinion.” Ibid. (internal quotations omitted). The most important of those five factors are supportability and consistency. 20 C.F.R. § 404.1520c(b)(2) and § 416.920c(b)(2). Because of their importance, an ALJ is required to articulate how he considered the “supportability and consistency factors for a medical source's medical opinions or prior administrative medical findings” in the RFC determination. Id. § 416.920c(b)(2).
Prior to March 27, 2017, an ALJ was required to give “controlling weight to [a] treating source[‘s] medical opinions” when evaluating opinion evidence in a disability analysis. 20 C.F.R. § 404.1527(c)(2). However, an ALJ must now evaluate and consider the “persuasiveness” of all medical opinions and “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [the claimant's] medical sources.” 20 C.F.R. § 404.1520c(b)(2) and § 416.920c(b)(2).
While the supportability and consistency factors are similar, they serve two distinct purposes in the ALJ's persuasiveness analysis. An ALJ's analysis of the supportability factor requires the ALJ to consider whether there is relevant “objective medical evidence and supporting explanations presented by [the] medical source” to support his or her medical opinion. Ibid. In other words, whether a medical opinion is “supported” depends on whether it provides an adequate explanation for itself without regard to whether those explanations are supported by the entire record as a whole. Sabahat H. v. Kijakazi, No. 4:22-CV-4243, 2024 WL 922781, at *5 (S.D. Tex. Mar. 4, 2024). The consistency factor, on the other hand, requires the ALJ to evaluate whether the medical opinion is consistent “with the evidence from other medical sources and nonmedical sources.” Id. § 404.1520c(c)(2); Id. § 416.920c(c)(2). The more consistent the medical opinion is with the rest of the record, “the more persuasive the medical opinion . . . will be.” Ibid.
Here, the ALJ considered two medical opinions in assigning the relevant portion of the RFC determination. (Dkt. No. 7-2 33-34). First is a medical opinion from Ms. Canales titled “Mental Residual Functional Capacity Questionnaire” (“MRFCQ”). (Dkt. No. 7-8 at 13). As part of this opinion, Ms. Canales provided supporting explanations in the form of psychotherapy treatment notes and answers to questions in the MRFCQ to explain her conclusions. (Id. at 3-17). As summarized by the ALJ in his decision, Ms. Canales' medical opinion included the following:
[T]he claimant had limited but satisfactory ability to understand, remember, and carry out very short and simple instructions and accept instructions and respond appropriately to criticism from supervisors; seriously limited but not precluded ability to remember work-like procedures, maintain attention for two hour segments, sustain an ordinary routine without special supervision, work in coordination with or proximity to others without being unduly distracted, make simple work-related decisions, get along with co-workers or peers without duly distracting them or exhibiting behavioral extremes, deal with normal work stress; and be aware of normal hazards and take appropriate precautions, understand, remember, and carry out detailed instructions; and unable to meet competitive stands in her ability to maintain regular attendance and be punctual within customary usually strict tolerances, complete a normal workday and workweek without interruptions from psychologically based symptoms, perform at a consistent pace without an unreasonable number and length of rest periods, respond appropriately to changes in routine work setting, set realistic goals or make plans independently of others, deal with stress of semiskilled and skilled work, and interact appropriately with the general public; no useful ability to function in her ability to maintain social appropriate behavior, travel in unfamiliar places, and use public transportation; would likely be absent 4 or more days per month due to her impairments or treatment.(Dkt. No. 7-2 at 33-34) (citations omitted).
The ALJ concluded that Ms. Canales' opinion was unpersuasive “as it is not supported by or consistent with the objective evidence, longitudinal treatment history, and overall record.” (Id. at 34). In his relatively brief explanation supporting this conclusion, the ALJ expressed the following:
The evidence indicates the claimant's mental issues are improved and stable with medications and therapy. She has a history of noncompliance, resulting in worsening symptoms, which improve significantly with medication adherence. In addition, mental status exams are not entirely consistent with the alleged symptom severity and limitations. While she has dysphoric mood, exams are otherwise unremarkable.(Ibid.) (citations omitted). The second opinion reviewed was an opposing medical opinion provided by a state agency psychological examiner in which it was opined that “the severity of [claimant's alleged] psychological impairment does not appear [to be] fully supported.” (Dkt. No. 7-3 at 57). In concluding this medical opinion was persuasive, the ALJ found that it was “consistent and supported by the record that shows the claimant has consistent complaints of depression and is treated with medication but would retain the ability to understand, remember, and carry out detailed, but not complex instructions.” (Ibid.). As a result, the ALJ assigned the RFC at issue which resulted in a finding of non-disability. (Id. at 34-35).
a. The ALJ Adequately Articulated the Persuasiveness Factor of Consistency in Finding Ms. Canales' Medical Opinion Unpersuasive.
Plaintiff argues that the ALJ's consistency discussion was insufficient under 20 C.F.R. § 404.1520c and § 416.920c, explaining that it was overbroad, conclusory, and cherry-picked the record. (Dkt. No. 9-1 at 23). Plaintiff explains that because of these deficiencies, the discussion does not adequately articulate why Ms. Canales' opinion was inconsistent with the rest of the record. (Ibid.). Defendant contends that the ALJ sufficiently articulated the consistency factor by addressing portions of the record that conflicted with Ms. Canales' medical opinion. (Dkt. No. 11 at 9).
As stated above, the consistency factor requires the ALJ to explain why a medical opinion is or is not consistent with the rest of the record. 20 C.F.R. § 404.1520c(c)(2); 20 C.F.R. § 416.920c(c)(2). “An ALJ's decision sufficiently addresses consistency when the ALJ explains the conflicts between a medical opinion and the remaining record.” Lee v. Comm'r of Soc. Sec., No. 4:21-CV-1390, 2022 WL 4490176, at *4 (S.D. Tex. Sept. 27, 2022). The ALJ is “not required to provide a point-by-point discussion of each and every medical opinion . . . but must still provide some explanation for [his] reasons for rejecting a medical opinion of record.” Ibid. Accordingly, an explanation will be sufficient if it “enables the court to undertake a meaningful review of whether [the ALJ's] finding with regard to the particular medical opinion was supported by substantial evidence, and does not require the Court to merely speculate about the reasons behind the ALJ's persuasiveness finding or lack thereof.” Luckett v. Kijakazi, No. 4:20-CV-04002, 2021 WL 5545233, at *4 (S.D. Tex. Nov. 26, 2021).
The Undersigned concludes that the ALJ sufficiently articulated the consistency factor. While the ALJ's discussion was relatively short, the ALJ provided sufficient context for why he found Ms. Canales' opinion to be inconsistent with the rest of the evidence. See Lee, 2022 WL 4490176, at *4 (concluding an ALJ's three sentence consistency discussion was sufficient to satisfy the requirements of 20 C.F.R. § 404.1520c and § 416.920c). The ALJ pointed to portions of the record which directly conflicted with Ms. Canales' conclusions in her medical opinion. (Dkt. No. 7-2 at 34). Specifically, the ALJ identified evidence that Plaintiff's mental status exams were not consistent with the alleged symptom severity and that other than her dysphoric mood, Plaintiff's exams were “unremarkable.” (Ibid.). This explanation allows the Undersigned to do more than “merely speculate about the reasons behind the ALJ's” decision. Luckett, 2021 WL 5545233, at *4. Instead, it demonstrates that the ALJ considered the rest of the record when he concluded that Ms. Canales' medical opinion was inconsistent.
The ALJ's discussion, while essential, is not the only reason why the Undersigned comes to this conclusion. Plaintiff also agrees that the ALJ's decision provides an explanation that “reasonably pertain[s] to how consistent [Ms. Canales' medical] opinion is with the record.” (Dkt. No. 9-1 at 21); see Price v. Astrue, 401 Fed.Appx. 985, 986 (5th Cir. 2010) (per curiam) (Although the ALJ does not need to comment on every piece of evidence, he must still “build an accurate and logical bridge between the evidence and the final determination.”). While Plaintiff may find the discussion to be short, the ALJ's explanation was sufficient for purposes of satisfying 20 C.F.R. § 404.1520c and § 416.920c. Thus, as the Plaintiff states, the ALJ provided sufficient context for why he concluded that Ms. Canales' opinion was inconsistent with the record.
b. The ALJ Failed to Adequately Articulate the Persuasiveness Factor of Supportability in Finding Ms. Canales' Medical Opinion Unpersuasive.
Moving to the ALJ's supportability discussion, Plaintiff argues that the ALJ failed to address the supportability factor in his decision with regards to Ms. Canales' opinion. (Dkt. No. 9-1 at 20-21). Defendant disagrees, arguing that the ALJ's decision sufficiently addressed the supportability factor when viewed in its entirety. (Dkt. No. 11 at 11). The Undersigned concludes that the ALJ failed to adequately explain why Ms. Canales' opinion was not supported because the ALJ did not provide any discussion as to why Ms. Canales' medical opinion was or was not supported by the objective medical evidence and supporting explanations that Ms. Canales provided.
An ALJ commits legal error when he fails to expressly address both the consistency and supportability factors as required by 20 C.F.R. § 404.1520c(c)(1) and § 416.920c(c)(1). Cardenas, 2022 WL 2719044, at *8 (concluding the ALJ committed legal error when the ALJ failed to expressly address the supportability factor). An ALJ is not permitted to reject a medical opinion “by implication.” Moore v. Saul, No. 3:20-CV-48-DPJ-MTP, 2021 WL 754833, at *3 (S.D.Miss. Feb. 26, 2021). Instead, he must create “an accurate and logical bridge between the evidence and the final determination.” Price, 401 Fed.Appx. at 986; see Pearson v. Comm'r of Soc. Sec., No. 1:20-CV-166-HSO-RPM, 2021 WL 3708047, at *5 (S.D.Miss. Aug. 11, 2021), report and recommendation adopted, 2021 WL 3663073 (S.D.Miss. Aug. 18, 2021) (concluding an ALJ must provide a “discernible ‘logic bridge' between the evidence and [his] persuasiveness finding”). The only way to build this bridge is by engaging in a substantive discussion of the supportability factor. Moore, 2021 WL 754833, at *3; see also Lee, 2022 WL 4490176, at *4 (“[T]he regulations require the ALJ's decision to include the supportability conclusion and explanation, and failure to do so constitutes legal error.”).
Here, the ALJ failed to provide a logical bridge by neglecting to expressly explain why Ms. Canales' supporting explanations (i.e. Ms. Canales' progress notes and written statements in the MRFCQ) did or did not support her medical opinion. Defendant argues that while the ALJ failed to explicitly address supportability, it is evident that the ALJ found Ms. Canales' medical opinion unsupported when viewing the decision and record as whole. (See Dkt. No. 11 at 11-12). Defendant cites to various case law to support this position. (Ibid). However, these cases fail to convince the Undersigned that an ALJ is not required to explicitly address supportability. In each of the cases cited, either (1) the ALJ provided at least some discussion of the supportability factor;or (2) the reviewing court found that the ALJ failed to articulate supportability but found that the legal error did not affect the claimant's substantial rights for some other reason. (Ibid.); Moore, 2021 WL 754833, at *3. Therefore, each case does not support a conclusion that the ALJ is not required to expressly discuss the supportability factor.
For example, Defendant cites Miller v. Commissioner of Social Security to support a position that the ALJ's persuasiveness discussion should “be considered in light of the entire RFC discussion and the evidence therein.” (Dkt. No. 11 at 10-11); No. 1:20-CV-00194-HSO-RPM, 2022 WL 566175 (S.D.Miss. Feb. 25, 2022). In Miller, the court found that the ALJ sufficiently articulated the supportability factor despite a “terse discussion.” Miller, 2022 WL 588175, at *5. However, Miller is distinguishable in that the underlying medical opinion in that case provided neither medical evidence nor supporting explanations for the ALJ to evaluate. Id. at *6; see also See Teixeira v. Comm'r, SSA, No. 4:21-cv-0003-SDJ-CAN, 2022 WL 3130859, at *7 (E.D. Tex. July 12, 2022), report and recommendation adopted, 2022 WL 3107856 (E.D. Tex. Aug. 4, 2022) (finding the ALJ's supportability discussion to be sufficient when the ALJ stated in his decision that the “[medical] source provide[d] no supporting rationale” for his medical opinion). Therefore, the ALJ's explanation that the medical opinion “was not supported by reference to specific evidence or a detailed explanation” was sufficient for purposes of a supportability analysis. Here, the ALJ did not cite a lack of objective medical evidence or supporting explanation for why he found Ms. Canales' opinion to be unsupported. Instead, he failed to substantively engage with the objective medical evidence and/or supporting explanations Ms. Canales provided altogether.
Any argument that the ALJ's general statement that he “careful[ly] considered[] the entire record” also fails to cure the defect caused by failing to expressly address supportability. (Dkt. No. 7-2 at 22). An ALJ's use of “cursory, boilerplate language about carefully considering the entire record does not constitute an explanation for rejecting a medical opinion.” Kneeland v. Berryhill, 850 F.3d 749, 761 (5th Cir. 2017); see also Shugart, 2022 WL 912777, at *4 (finding ALJ's failure to address supportability to be prejudicial when the ALJ generally asserted the medical opinion was “unsupported”). This is because the use of boilerplate language, like an ALJ's general summary of a conflicting explanation, fails to expressly address the supportability factors as mandated by 20 C.F.R. § 404.1520c(c)(1) and § 416.920c(c)(1). The ALJ's generalized statement that “[Ms. Canales'] opinion . . . is not supported by or consistent with the objective evidence, longitudinal treatment history, and overall record” is insufficient because it fails to address the supportability factor with any specificity. (Dkt. No. 7-2 at 34). Without providing explicit reasons for why came to his decision, the Undersigned cannot conduct a meaningful review of ALJ's decision to find Ms. Canales' medical opinion to be unsupported.
Therefore, the ALJ's failure to provide explicit discussion of the supportability factor results in a legal error. See Lee, 2022 WL 4490176, at *5 (finding the ALJ must articulate the supportability factor even when the medical opinion is in the form of check boxes and includes no additional supporting explanations). Accordingly, the Undersigned must determine whether the error affected Plaintiff's substantial rights or whether it was simply harmless.
c. The ALJ's Failure to Address the Supportability Factor is not Harmless and Warrants Remand.
Plaintiff argues that the ALJ's error affected her substantial rights because had the ALJ “adequately evaluated the opinion evidence in this case he would have adopted limitations from Ms. Canales' opinion that” would have precluded the ALJ's ultimate RFC finding. (Dkt. No. 9-1 at 25). Defendant on the other hand contends that the omission was harmless because the ALJ's failure to “use the magic words or . . . precisely connect the dots” was harmless and had no effect on his decision. (Dkt. No. 11 at 12). The Undersigned concludes that the ALJ's failure to address the supportability factor was not harmless and did affect Plaintiff's substantial rights.
The ALJ did not just fail to use the “magic words,” but instead neglected to address a factor that was essential to his analysis. Without a supportability discussion, it is impossible for the Undersigned “to determine whether the ALJ properly considered and weighed [Ms. Canales'] opinion.” Cardenas, 2022 WL 2719044, at *8. In other words, it is impossible to determine whether the ALJ's persuasiveness decision was supported by substantial evidence.
This failure harms Plaintiff's substantial rights because the ALJ's decision to find Ms. Canales' opinion unpersuasive, but the state agency's opinion persuasive, played a significant part in assigning the underlying RFC. (Dkt. No. 7-2 at 34). While the ALJ may have come to the same conclusion under proper consideration, the Undersigned can only speculate as to whether the ALJ's persuasiveness decision was supported by substantial evidence. Ramirez v. Saul, SA-20-CV-00457-ESC, 2021 WL 2269473, at *6 (W.D. Tex. June 3, 2021) (stating a court cannot provide post-hoc rationalizations for the ALJ's decision). Had the ALJ properly considered the supportability factor for both opinions, he could have found Ms. Canales' opinion persuasive. Further, had he found Ms. Canales' opinion to be persuasive, he would have assigned an RFC limitation that was significantly more limiting than the one assigned, presumably rendering Plaintiff disabled. However, remand is warranted because such speculation is expressly prohibited. Kilby, 2022 WL 1797043, at *5 (concluding remand was warranted when it was impossible to determine whether an ALJ's decision was supported by substantial evidence due to the ALJ failure to address the supportability factor); See also King v. OMalley, No. 4:22-CV-932-ALM-KPJ, 2024 WL 1186896, at *6-7 (E.D. Tex. Mar. 1, 2024), report and recommendation adopted, 2024 WL 1180992 (E.D. Tex. Mar. 19, 2024) (finding prejudicial error when the ALJ adequately addressed the consistency factor but failed to address supportability).
B. The ALJ Created a Defective RFC that Failed to Account for Moderate Limitations in Concentration, Persistence, and Pace Found Present at Step Three, Resulting in Prejudicial Error.
Plaintiff not only challenges the ALJ's persuasiveness findings used to create the RFC, but also challenges substantive portions of the RFC itself. (Dkt. No. 9-1 at 25); Cardenas, 2022 WL 2719044, at *8-9 (evaluating an RFC and determining whether it was supported by substantial evidence after finding the ALJ failed to address the supportability factor of a medical opinion). Plaintiff argues that the ALJ failed to account for the moderate limitations in concentration, persistence, and pace found to be present at step three of the disability analysis when he assigned the RFC. (Dkt. No. 9-1 at 2526). Defendant disagrees arguing the ALJ accounted for the moderate limitations in concentration, persistence, and pace by limiting Plaintiff to an “ability to understand, remember and carry out detailed but not complex jobs with frequent interaction with the general public and no more than occasional changes in work setting.” (Dkt. No. 7-2 at 22).
Because the ALJ determined that Plaintiff's mental impairments were severe but did not meet or equal the listed impairments, the ALJ was required to determine Plaintiff's RFC. Westover, 2012 WL 6553102, at *8 (stating the ALJ bears the responsibility for determining a claimant's RFC). To do this, the ALJ had to consider the testimony provided by the VE at the disability hearing. At the hearing, the VE first identified Plaintiff's past relevant work and assigned each with a classification in accordance with the Dictionary of Occupational Titles (“DOT”). (Dkt. No. 7-2 at 114-17). The VE identified the following past relevant work:
1. Administrative assistant, sedentary, skilled, specific vocational preparation (“SVP”) 7, DOT code: 169.167-010
2. Tax clerk, sedentary, semi-skilled, SVP 3, DOT code: 219.487-010
3. Cashier I, sedentary, skilled, SVP 5, DOT code: 211.362-010
4. Secretary, sedentary, skilled, SVP 6, DOT code: 201.362-030
5. Court clerk, sedentary, skilled, SVP 6, DOT code: 243.362-010(Ibid.). Next, the ALJ asked the VE three hypotheticals to determine whether a hypothetical person could engage in Plaintiff's past relevant work that was previously identified. (Id. at 117-19). In the first hypothetical-which contains much of the same language included in the final RFC assignment- the ALJ asked the following:
[A]ssume, sir, [the] individual can do light work, light work as defined in our regulations and by the Secretary of Labor. But it's not a full range of light work because there are additional non-exertional, physical and mental limitations, such as, no climbing ladders, ropes, and scaffolds, occasional climbing of ramps and stairs and all other postural activities can be done frequently. Individual can frequently interact with general public, retains the ability to understand, remember, and carry out detailed, but not complex job instructions and work-related tasks and requires no more than occasional changes in the work setting. Would such individual be able to do any of the past work of this particular claimant in your opinion, or none that you can identify.(Id. at 117-18) (emphasis added). In response, the VE advised that such a hypothetical individual would be precluded from participating in all of Plaintiff's past relevant work except for her past relevant work as a tax clerk. (Id. at 118). The ALJ then proposed a second hypothetical which retained much of the previous hypothetical but changed “the frequency of interaction with general public from frequent to occasional.” (Id. at 119). The VE responded that such a hypothetical person could still engage in Plaintiff's past relevant work as a tax clerk. (Id. at 120). The ALJ then proposed a final hypothetical individual that retained the same limitations as the individual in the second hypothetical, except it changed the limitation from “detailed, non-complex [jobs] to simple” jobs. (Ibid.). Importantly, the VE concluded that this hypothetical individual would be unable to engage in Plaintiff's past relevant work as a tax clerk because tax clerk is classified as a semi-skilled job. (Id. at 120-21).
Plaintiff argues that the RFC's reference to her ability to perform “detailed but not complex jobs” does not account for the moderate limitations to concentration, persistence and pace found earlier in the ALJ's decision. (Dkt. No. 9-1 at 26). Plaintiff contends that had the ALJ accounted for her moderate limitation in his RFC determination, he would have concluded that she was disabled. (Id. at 28). This error, Plaintiff argues, was prejudicial because of this possibility. (Ibid.). Defendant, on the other hand, argues that the ALJ was not required to provide a word-for-word recitation of the paragraph B limitations when assigning the RFC. (Dkt. No. 11 at 14). Instead, Defendant contends that an RFC limitation only needs to “reasonably incorporate” Plaintiff's moderate limitations in concentration, persistence, and pace. (Id. at 14-15). Accordingly, Defendant concludes that a limitation to “detailed but not complex” work reasonably incorporates the underlying moderate limitation because some lower courts have found it to be sufficient. (Id. at 15).
a. A Limitation to “Detailed but not Complex” Work does not Reasonably Incorporate Moderate Limitations in Concentration, Persistence, and Pace.
As Defendant states, an RFC does not need to be a word-for-word recitation of the limitations found under step three. Bordelon v. Astrue, 281 Fed.Appx. 418, 422 (5th Cir. 2008) (unpublished). Rather, an RFC only needs to “reasonably incorporate" the disabilities recognized by the ALJ. Ibid. In Bordelon, the Fifth Circuit found that a hypothetical RFC that limited a claimant to “a job with only rare public interaction, low stress, . . . simple, one-, two-step-type instructions” reasonably incorporated the ALJ's finding that the claimant had moderate limitations in concentration, persistence, and pace. Id. at 423. Post-Bordelon, many lower courts in this circuit have found that an ALJ reasonably incorporates a claimant's moderate limitations in concentration, persistence, and pace, when he assigns an RFC that limits the claimant to “simple” work. These courts reasonably point to the use of the terms “simple” and “one-, two-step-type instructions” to support this conclusion. Hodgson v. Astrue, No. 4:07-CV-529-Y, 2008 WL 4277168, at *8 (N.D. Tex. Sept. 2008).
See, e.g., Brooks v. Berryhill, No. 17-8751, 2018 WL 7118181, at *15 (E.D. La. Dec. 28, 2018); Rollins v. Berryhill, No. 7:17-CV-136-BP, 2018 WL 2064781, at *7-8 (N.D. Tex. May 2, 2018); Prather v. Colvin, No. A-12-CV-1075-AWAA, 2014 WL 4187124, at *2-3 (W.D. Tex. Aug. 21, 2021); Morrison v. Berryhill, No. 4:1-CV-955-O-BP, 2017 WL 2437274, at *6 (N.D. Tex. Mar. 17, 2017).
Defendant argues that courts have also found that an ALJ reasonably incorporates limitations in concentration, persistence, and pace when an ALJ restricts the claimant to “detailed, but noncomplex” work because this limitation is sufficiently analogous to a “simple” limitation. Hawkins v. Kijakazi, No. A-20-CV-889-DH, 2021 WL 4923311, at *4-5 (W.D. Tex. Oct. 21, 2021); see also Westover, 2012 WL 6553102, at *9. These courts conclude that such a limitation is analogous to the limitations found to be sufficient in Bordelon after explaining that there is no substantive distinction between the terms “simple” and “detailed, but noncomplex.” See Hawkins, 2021 WL 4923311, at *5 (stating limitations regarding concentration, persistence, and pace are “subsumed by the limitations regarding ‘noncomplex' work”). However, a limitation to “detailed, but noncomplex” is distinct from a limitation to “simple” work as explained below.
The Undersigned concludes that a limitation to “detailed but not complex” work is not sufficiently analogous to a limitation to “simple” work. As stated above, an RFC is a “determination of what the claimant can do despite his mental or physical limitations, based on all the relevant evidence in the record.” Herrera, 406 F.App'x. at 902. An RFC determination is not an arbitrary limitation assignment. Instead, it is used to determine what jobs are available to the claimant despite any discovered limitations. A job will only be available to a claimant at the fourth step if the assigned RFC limitation does not conflict with what that job requires the claimant to be capable of performing. Accordingly, if the assignment of one limitation would preclude a job while the assignment of a different limitation would not, the two limitations represent different levels capability. If the two limitations represent different levels of capability, then they also represent that different “limitations [have been] imposed by [the] claimant's impairments”. Patterson v. Astrue, No. 1:08-CV-109-C, 2009 WL 3110205, at *5 (N.D. Tex. Sept. 29, 2009).
Here, the VE concluded that Plaintiff would not be capable of performing her past relevant work as a tax clerk if she were limited to “simple” work because her work as a tax clerk required her to be capable of performing “semi-skilled” work. (Dkt. No. 7-2 at 120-21). On the other hand, the VE found that the same work would not be precluded if Plaintiff was assigned a limitation of “detailed, but not complex.” (Id. at 117-18). This conclusion implicitly demonstrates that a claimant who is limited to “detailed, but not complex” is more capable than a claimant who is limited to “simple” work. Because a claimant is more capable when limited to “detailed, but not complex” work, a limitation to “simple” work recognizes a greater degree of limitation imposed by Plaintiff's impairments. Accordingly, the Bordelon court's conclusion that a limitation to “simple” work reasonably incorporates a claimant's moderate limitations in concentration, persistence, and pace, does not extend to a limitation of “detailed, but not complex.”
b. Even if a Limitation to “Detailed but not Complex” Work Reasonably Incorporates Moderate Limitations in Concentration, Persistence, and Pace, the ALJ failed to Substantively Explain why they Assigned Such a Limitation, Resulting in Prejudicial Error.
Defendant is correct that the “paragraph B criteria are not an RFC assessment but are used to rate the severity of mental impairment(s) at step [two] and [three] of the sequential process.” (Dkt. No. 11 at 14); see Jackson v. Astrue, No. 16-479-JJB-RLB, 2017 WL 3996437, at *3 (M.D. La. Aug. 2, 2017), report and recommendation adopted, 2017 WL 3996414 (M.D. La. Sept. 11, 2017). Thus, the paragraph B criteria do not need to be incorporated “word-for-word” and must only reasonably incorporate earlier found limitations. Bordelon, 281 Fed.Appx. at 423. However, even if a limitation to “detailed, but not complex” work reasonably incorporated moderate concentration, persistence, and pace limitations, the ALJ's decision to limit Plaintiff to “detailed, but not complex” work rather than “simple” must still be supported by substantial evidence. Williams v. Colvin, No. 4:14-CV-114-BJ, 2015 WL 1288348, at *6 (N.D. Tex. 2015) (concluding remand is not required if the ALJ's mental RFC assessment is supported by substantial evidence).
The Undersigned concludes that it is impossible to determine whether there is substantial evidence to support the ALJ's decision because the ALJ failed to adequately address the persuasiveness of the medical opinions in assigning the underlying limitation. The ALJ states in his RFC determination that he considered the “objective evidence, overall record, and treatment history” in determining that Plaintiff had the ability to carry out “detailed but not complex” work. (Dkt. No. 7-2 at 32-33). To support this conclusion, the ALJ pointed to specific portions of the evidence. (Id. at 33). First, he identified several instances in which Plaintiff presented to various health examiners that she was “doing well,” “better,” or “good.” (Ibid). Next, he pointed to Plaintiff's ability to prepare simple meals occasionally, clean and organize her room, wash dishes, water the grass, take care of her dog, re-pot plants, and spend time with family members. (Ibid.). Given the nature of substantial evidence review, these references to the record may have been sufficient to support the ALJ's decision, however, the ALJ was also required to consider medical opinions from medical sources in assigning the RFC. See Gatewood v. Berryhill, No. 5:16-CV-060-BQ. 2017 WL 1737904, at *5 (N.D. Tex. Mar. 14, 2017), report and recommendation adopted, 2017 WL 1737647 (N.D. Tex. May 1, 2017).
While medical opinions are “not the equivalent of an RFC assessment and [are] not binding on the ALJ who has discretion” to reject them, an ALJ must nonetheless consider them when coming to an RFC determination. Renteria v. Colvin, No. EP-14-CV-232-MAT, 2015 WL 5147011, at *6 (W.D. Tex. Aug. 31, 2015); 20 C.F.R. § 404.1520c. As a result, an analysis of the record without substantively considering a medical opinion will result in an improper RFC determination. Gatewood, 2017 WL 1737904, at *5-6 (“While the ALJ may choose to reject medical sources' opinions, he cannot then independently decide the effects of Plaintiff's impairments on her ability to perform work-related activities.”). An ALJ demonstrates that they have substantively considered a medical opinion by explaining whether an opinion is persuasive. 20 C.F.R. § 1520c. Accordingly, when an ALJ fails to properly articulate why an opinion is or is not persuasive, he has also failed to substantively consider a medical opinion. See King, 2024 WL 1186896, at *7 (E.D. Tex. Mar. 1, 2024).
In this case, the ALJ was required to substantively consider medical opinions from both Ms. Canales and the state agency psychological examiner. (Id. at 34); 20 C.F.R. § 404.1520c. Ms. Canales' RFC assessment concluded that Plaintiff had a “limited but satisfactory ability to understand, remember, and carry out very short and simple instructions.” (Ibid.). Ms. Canales further concluded that Plaintiff had a “seriously limited but not precluded ability to understand, remember, and carry out detailed instructions.” (Ibid.). On the other hand, the state agency psychological examiner RFC assessment found that Plaintiff “retained the ability to understand, remember, and carry out detailed, but not complex instructions.” (Ibid). Because the ALJ found Ms. Canales to be unpersuasive and the state agency psychological examiner persuasive, the ALJ adopted the limitations the state agency RFC recommended. (Id. at 34). Accordingly, the ALJ's decision to limit Plaintiff to detailed, but not complex work rather than simple work was based in part on his decision to find the state agency's opinion to be persuasive.
As stated earlier in this recommendation, it is impossible for the Undersigned to evaluate why the ALJ limited Plaintiff to “detailed, but not complex” rather than “simple” work because he failed to provide an adequate persuasiveness discussion as to each medical opinion. Without providing a meaningful review of each medical opinion, it is as if the ALJ failed to rely on either medical opinion at all. As a result, there was no logical bridge between the evidence and the ALJ's decision to limit Plaintiff to “detailed, but not complex” work. See Gatewood, 2017 WL 1737904, at *6. This error was not harmless because had the ALJ properly evaluated each medical opinion, he could have found Ms. Canales' medical opinion persuasive. While Ms. Canales' medical opinion did not preclude “detailed” work completely, it did find that she was seriously limited in her ability to perform such work. (Dkt. No. 7-2 at 34). That said, Ms. Canales concluded that Plaintiff, while limited, still had a satisfactory ability to perform simple work. (Ibid.). Accordingly, it is possible that the ALJ would have limited her to simple work had he properly analyzed both medical opinions. Had the ALJ limited Plaintiff to simple work, the ALJ would have found Plaintiff to be disabled under step four of the disability analysis because all of Plaintiff's past relevant work would have been precluded. Accordingly, the error was prejudicial and warrants remand.
IV. RECOMMENDATION
The Undersigned RECOMMENDS that Plaintiff's Motion for Summary Judgment, (Dkt. No. 9), be GRANTED and that the Commissioner's Cross Motion for Summary Judgment, (Dkt. No. 10), be DENIED, and that the final decision of the Commissioner be VACATED and REMANDED to the SSA for further proceedings consistent herewith.
NOTICE TO PARTIES
The Clerk shall file this Report and Recommendation and transmit a copy to each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of the Report and Recommendation, a party may file with the Clerk and serve on the United States Magistrate Judge and all parties, written objections, pursuant to Fed.R.Civ.P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District Court for the Southern District of Texas.
A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation 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 Court. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc).
IT IS SO ORDERED.