Opinion
EP-22-CV-00369-KC-LS
03-12-2024
RICARDO O., Plaintiff, v. COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,[1] Defendant.
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
LEON SCHYDLOWER UNITED STATES MAGISTRATE JUDGE
Plaintiff appeals the denial of his application for supplemental security income. I recommend that the District Court AFFIRM the Commissioner's decision.
I. Facts and Proceedings.
Plaintiff alleges he became disabled on July 25, 2019because of attention deficit disorder (“ADD”), a learning disability, and anxiety.An SSA Administrative Law Judge (“ALJ”) held a hearing on December 9, 2021 and heard testimony from Plaintiff, who was represented by counsel, and a vocational expert (“VE”). In an opinion dated February 1, 2022, the ALJ determined that Plaintiff was not disabled within the meaning of the Social Security Act.The Appeals Council denied his request for review on August 12, 2022, making the decision of the ALJ the final decision of the Commissioner.Plaintiff argues in this appeal that the ALJ erred when evaluating the opinions of a consulting psychologist and psychiatrist and because she did not adopt their opinions when evaluating Plaintiff's mental health impairments.
R:49.
R:82.
R:43-81.
R:22-36.
R:8-10.
II. Discussion.
A. Legal Standards.
Judicial review of the Commissioner's decision is limited to two inquiries: (1) whether the decision is supported by substantial evidence on the record as a whole; and (2) whether the Commissioner applied the proper legal standard.Substantial evidence “is more than a mere scintilla and less than a preponderance.”The Commissioner's findings will be upheld if supported by substantial evidence. In evaluating a disability claim, the Commissioner must follow a five-step sequential process to determine whether: (1) the claimant is presently working; (2) the claimant has a severe medically determinable physical or mental impairment; (3) the claimant's impairment meets or equals an impairment listed in the appendix to the regulations; (4) the impairment prevents the claimant from doing past relevant work; and (5) the claimant can perform other relevant work.
Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014) (quoting Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005)).
Hill v. Berryhill, 718 Fed.Appx. 250, 253-54 (5th Cir. 2018) (quoting Masterson v. Barnhart, 309 F.3d 267, 272 (5th 2002)).
Masterson, 309 F.3d at 272.
20 C.F.R. § 416.920; Boyd v. Apfel, 239 F.3d 698, 704-05 (5th Cir. 2001).
Courts utilize four elements of proof to determine whether there is substantial evidence of disability: (1) objective medical evidence; (2) diagnoses and opinions of treating and examining physicians; (3) the claimant's subjective evidence of pain and disability; and (4) the claimant's age, education, and work history.A court cannot, however, reweigh the evidence, try the issues de novo, or substitute its judgment for the Commissioner's.The Commissioner, not the courts, must resolve conflicts in the evidence.Finally, even if there is error at the ALJ level, remand to the SSA is warranted only if the error was harmful.The Plaintiff's burden is to show that the ALJ's “error was prejudicial.”
Perez, 415 F.3d at 462.
Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000).
Id.
Miller v. Kijakazi, 2023 U.S. App. LEXIS 1118, at *8 (5th Cir. Jan. 18, 2023), citing Shinseki v. Sanders, 556 U.S. 396, 407-08, 129 S.Ct. 1696, 173 L.Ed.2d 532 (2009).
Id., citing Jones v. Astrue, 691 F.3d 730, 734 (5th Cir. 2012) (footnote omitted).
B. Residual Functional Capacity.
Residual functional capacity, or RFC, is the most an individual can still do despite his or her limitations.The responsibility for determining a claimant's RFC belongs to the ALJ.The ALJ must consider a claimant's abilities despite his or her physical and mental limitations based on the relevant evidence in the record.The ALJ must consider the limiting effects of an individual's impairments, even those that are non-severe, and any related symptoms.An RFC finding is used to determine if the claimant can still do his or her past jobs.If the claimant cannot, the RFC is then used to determine whether the claimant can do other jobs in the national economy.
Id. at § 416.946(c); Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995).
Perez, 415 F.3d at 461-62.
Perez, 415 F.3d at 462; 20 C.F.R. § 416.920(e).
Id.
C. The ALJ's Findings.
In this case, the ALJ found that Plaintiff had the following severe impairments: “specific learning disorder with impairment in reading, attention deficit disorder, anxiety disorder and obesity.”They were not, however, individually or in combination severe enough to meet or equal an impairment listed in the appendix to the regulations.The ALJ found that Plaintiff could still perform “light work” with certain physical restrictions as long as the work involves only simple instructions and decisions and does not involve “fast-paced production requirements.” Although at nineteen years-old Plaintiff had never worked,“there are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform.”Accordingly, the ALJ found Plaintiff not disabled and not entitled to supplemental security income.
R:25.
R:26-28.
R:28-34.
R:34.
R:35.
R:36.
D. Dr. Schutte's Opinion.
Plaintiff argues that the ALJ failed to correctly evaluate and utilize the opinion of consulting psychologist Dr. James Schutte. He contends that “the ALJ failed to comply with the requirements of 20 C.F.R. §§ (sic) 404.1520c by failing to evaluate the [opinion's] ‘consistency' and ‘supportability' factors.”Section 404.1520c applies to Title II Social Security Disability Insurance Benefits, not the Title XVI Supplemental Security Income benefits Plaintiff seeks in this case. For purposes of the analyzing Plaintiff's argument, however, I will assume he intended to rely on 20 C.F.R. § 416.920c, the analogous provision for Title XVI benefits.
Doc No. 13, at 8-9.
Plaintiff bases his argument on the following excerpts from Dr. Schutte's concluding summary:
[Plaintiff] reported symptoms of ADHD and anxiety, and exhibited signs of ADHD during the present evaluation.. .His attention and concentration were measured to be in the borderline range.His ability to reason seems moderately impaired due to a history of borderline intellectual functioning, as well as ADHD, and his ability to make occupational, social, and personal adjustments seems moderately impaired due to a history of borderline intellectual functioning, as well as ADHD and anxiety.
Id. at 11-12, citing R:554.
Plaintiff is correct that the ALJ was required to explain whether Dr. Schutte's opinion is supportedand consistentwith other medical source evidence, but her opinion reflects she did just that. The ALJ noted that Dr. Schutte's diagnosis of borderline intellectual functioning relied on earlier testing by another psychologist, Dr. Nacim, who diagnosed Plaintiff as follows:
“The factors of supportability...and consistency.are the most important factors we consider when we determine how persuasive we find a medical source's medical opinions.. .to be. Therefore, we will explain how we considered the supportability and consistency factors for a medical source's medical opinions.in your determination or decision.” 20 C.F.R. § 416.920c(b)(2).
“Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinion(s) or prior administrative finding(s) will be.” 20 C.F.R. § 416.920c(c)(1).
“Consistency. The more consistent a medical opinion(s) or prior administrative finding(s) is with the evidence from other medical sources and non medical sources in the claim, the more persuasive the medical opinion(s) or prior administrative finding(s) will be.” 20 C.F.R. § 416.920c(c)(2).
Prognosis: Good: [Plaintiff] has been diagnosed with a learning disorder and is offered assistance as needed at school. His reading comprehension is not so deficient that he requires placement in a special education class or accommodations for testing. His condition is likely to improve.
R:431.
The ALJ observed that Dr. Nacim's diagnosis did not support and was not consistent with Dr. Schutte's diagnosis. Whereas Dr. Schutte diagnosed intellectual disability, the ALJ noted that Dr. Nacim “specifically ruled out intellectual disability, and diagnosed specific learning disability with impairment in reading.”Dr. Nacim's findings that Plaintiff's prognosis was good, his reading deficiencies did not warrant placement into special education classes, and “[h]is condition was likely to improve” all militate against Dr. Schutte's diagnosis of borderline intellectual functioning.
R:26, referring to R:431.
The ALJ also cited to other medical records showing that Plaintiff spends his days looking for jobs and researching community college options, can make his own meals, performs a full range of house and yard work, and enjoys going to friends' houses and attending Friday night football games.The ALJ noted that Dr. Schutte's records reflect that Plaintiff's short and long-term memory is intactand that Plaintiff easily understood and answered the questions posed during his hearing.Accordingly, the record reflects that the ALJ both analyzed Dr. Schutte's opinion and measured whether it is supported and consistent with the other medical evidence in the record, especially the records of Dr. Nacim.
R:27, citing Exhibit 4E, which is R:351-59.
R:27, citing R:553.
R:27.
Finally, the ALJ generated a mental RFC that restricted Plaintiff to carrying out only simple instructions with no fast-paced production requirements.This restrictive mental RFC would render harmless any error had the ALJ not addressed the supportability and consistency of Dr. Schutte's opinion.
R:28.
E. Dr. Katz's Opinion.
Plaintiff also argues that the ALJ failed to evaluate the supportability and consistency of psychologist Dr. Katz's opinion. Plaintiff does not identify on which Dr. Katz opinion he relies for this argument, but I surmise it is “Exhibit 14F” based on a quote from the ALJ he includes in his opening brief.Exhibit 14Fis an SSA form that Dr. Katz filled out on March 9, 2021 in which he opines that Plaintiff had marked restrictions in his ability to “[u]nderstand and remember simple instructions,” “[c]arry out simple instructions,” and “...make judgments on simple work-related decisions.”He also recorded that Plaintiff had extreme restrictions with respect to his ability to “carry out complex instructions” and “make judgments on complex work-related decisions.”
See Doc. No. 13, at 16 (“The [ALJ] has considered the opinion of Dr. Katz regarding the claimant's mental limitations (Exhibit 14F).”).
Exhibit 14F is at R:628-30.
R:628.
Id.
I note at the outset that Dr. Katz appears to have generated this opinion more than a year after his last examination of Plaintiff, which was on February 11, 2020.Indeed, in analyzing the March 2021 opinion's supportability, that ALJ noted that Plaintiff reported to Dr. Katz during the February 2020 examination that his health was stable and he was planning to attend community college.Given this discrepancy, given the amount of time between the February 2020 examination and Dr. Katz's March 2021 opinion, and given the absence of meaningful explanation in the March 2021 opinion, I agree with the ALJ's observation that Dr. Katz's “opinion is conclusory and no explanation for this finding is provided.”
R:556.
R:30, citing R:556.
R:34.
With respect to whether Dr. Katz's opinion was consistent with other medical evidence, the ALJ noted that Plaintiff participated in sports and exercised an hour per day in March 2020.That same record reflects completely normal neurologic and psychiatric findings and that Plaintiff's mental health consisted of “good self-esteem, regular ups and downs but overall enjoys life, [and] [g]ets along well with friends and family.”
R:30, citing R:626.
R:625-26.
The ALJ also noted that in February 2021 Plaintiff had no symptoms or complications from his ADD and learning disability, and had no ADD complications again in March 2021.Importantly, the ALJ also observed that Plaintiff's ADD and learning disability were “controlled” in July 2021.Indeed, that month Plaintiff reported no ADD complications and that he was “doing just fine” with respect to his learning disability with no difficulty learning.
R:31, citing R:739.
R:31, citing R:671.
R:671.
Given the foregoing, the ALJ committed no error with respect to gauging the supportability and consistency of Dr. Katz's opinion and discounting its persuasiveness.
F. Plaintiff's Mental RFC.
Plaintiff's last argument is that the ALJ erroneously failed to adopt the opinion of a psychologist or psychiatrist when generating Plaintiff's mental RFC. Again, the responsibility for determining a claimant's RFC belongs to the ALJ“based on all relevant evidence in the claimant's record.”In this case, what Plaintiff “characterizes as the ALJ substituting [her] opinion is actually the ALJ properly interpreting the medical evidence to determine [Plaintiff's] capacity for work.”As discussed above, the ALJ conducted an exhaustive review of Plantiff's entire record, analyzed and gauged the supportability and consistency of the opinions of Drs. Schutte and Katz, and synthesized those doctors' observations and opinions with those from Plaintiff's other medical providers, including the medical records discussed above reflecting “controlled” ADD and learning disability with no associated complications in 2020 and 2021.
20 C.F.R. § 416.946(c); Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995).
Perez, 415 F.3d at 461-62.
Taylor v. Astrue, 706 F.3d 600, 603 (5th Cir. 2012).
“The claimant must show that he is so functionally impaired by his mental impairment that he is precluded from engaging in substantial gainful activity.”It is Plaintiff's burden, not the ALJ's, to make this showing, and Plaintiff failed to satisfy his burden in this regard.
Id.
Recommendations
Substantial evidence supports the ALJ's determination and I find no legal error. Accordingly, I recommend the Commissioner's decision be AFFIRMED.
SO RECOMMENDED.
NOTICE
THE PARTIES HAVE FOURTEEN DAYS FROM SERVICE OF THIS REPORT AND RECOMMENDATION TO FILE WRITTEN OBJECTIONS. 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b). FAILURE TO FILE TIMELY OBJECTIONS MAY PRECLUDE APPELLATE REVIEW OF FACTUAL FINDINGS OR LEGAL CONCLUSIONS, EXCEPT FOR PLAIN ERROR. ORTIZ V. CITY OF SAN ANTONIO FIRE DEP'T, 806 F.3D 822, 825 (5TH CIR. 2015).