Opinion
Civil Action 2:24-cv-024-BP
10-25-2024
MARSHELL COOPER, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
MEMORANDUM OPINION AND ORDER
HAL R. RAY, JR. UNITED STATES MAGISTRATE JUDGE
Marshell Cooper (“Cooper”) applied for Title II Disability Insurance Benefits (“DIB”) under the Social Security Act (“SSA”). The Commissioner denied her application initially and upon reconsideration, deciding that she was not disabled. Cooper appealed. There is no reversible error in the residual functional capacity (“RFC”) that the Administrative Law Judge (“ALJ”) formulated, and there is substantial evidence to support the ALJ's finding that a significant number of jobs exist in the national economy that Cooper can perform. Accordingly, the Court AFFIRMS the Commissioner's decision and DISMISSES the case with prejudice.
I. BACKGROUND
Cooper seeks disability benefits under the SSA, claiming disability status since November 6, 2017. ECF No. 1 at 1, Soc. Sec. Admin. R. (hereinafter “Tr.”) 247. During a telephonic hearing with the ALJ on July 26, 2023, Cooper amended her alleged onset disability date to September 3, 2020. Tr. 41. The Commissioner decided that she was not disabled and denied her application initially and upon reconsideration. Id at 24. Cooper requested a hearing before an ALJ who conducted the hearing and affirmed the Commissioner's decision. Tr. 24. After the Appeals Council (“AC”) denied review (Tr. 1-5), Cooper filed this civil action seeking judicial review under 42 U.S.C. §§ 405(g) and 1383(c). See ECF No. 1; Higginbotham v. Barnhart, 405 F.3d 332, 334 (5th Cir. 2005) (citing 20 C.F.R. § 416.1400(a)(5)) (“[T]he Commissioner's decision does not become final until after the [AC] makes its decision denying the claimant's request for review.”).
II. STANDARD OF REVIEW
Title II of the SSA, 42 U.S.C. §§ 401-434, governs the disability insurance program. A person is disabled if she is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” Id. § 423(d)(1)(A). To determine whether a claimant is disabled and thus entitled to disability benefits, the Commissioner employs a sequential five-step evaluation process. 20 C.F.R. § 404.1520.
First, the claimant must not be presently doing any substantial gainful activity. Id. § 404.1520(a)(4)(i). “Substantial gainful activity” is work that “involves doing significant physical or mental activities” for pay or profit. Id. § 404.1572. Second, the claimant must have a severe impairment or combination of impairments. Id. § 404.1520(a)(4)(ii). Third, disability exists if the impairment or combination of impairments meets or equals an impairment in the federal regulatory list. See 20 C.F.R. § 404.1520(a)(4)(iii) (referencing 20 C.F.R. pt. 404, subpt. P, app. 1). Before proceeding to steps four and five, the Commissioner assesses the claimant's RFC and considers her past relevant work (“PRW”). See id. § 404.1520(a)(4), (e)-(f). RFC means “the most [a claimant] can still do despite [her] limitations,” id. § 404.1545(a)(1), while PRW means work the claimant has done “within the past 15 years, that was substantial gainful activity, and that lasted long enough for [the claimant] to learn to do it.” Id. § 404.1560(b)(1). Fourth, if the claimant's medical status alone does not constitute a disability, the impairment or impairments must prevent the claimant from returning to his PRW considering his or her RFC. Id. § 404.1520(a)(4)(iv). Fifth, the impairment must prevent the claimant from doing any other relevant work, considering the claimant's RFC, age, work experience, and education. Id. § 404.1520(a)(4)(v); Crowley v. Apfel, 197 F.3d 194, 197-98 (5th Cir. 1999).
“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.” Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987). “The claimant bears the burden of showing he is disabled through the first four steps of the analysis; on the fifth, the Commissioner must show that there is other substantial work in the national economy that the claimant can perform.” Audler v. Astrue, 501 F.3d 446, 448 (5th Cir. 2007).
Judicial review is limited to determining whether the Commissioner applied correct legal standards and whether substantial evidence in the record supports the Commissioner's decision. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995); Hollis v. Bowen, 837 F.2d 1378, 1382 (5th Cir. 1988). “Substantial evidence is such relevant evidence as a reasonable mind might accept to support a conclusion.” Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995) (quoting Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994)). “It is more than a mere scintilla and less than a preponderance.” Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001) (quoting Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000)). “A finding of no substantial evidence is appropriate only if no credible evidentiary choices or medical findings support the decision.” Id. (quoting same). The Court may neither reweigh evidence in the record nor substitute its judgment for the Commissioner's, but it will carefully scrutinize the record to determine if substantial evidence is present. Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000); Hollis, 837 F.2d at 1383. “Conflicts in the evidence are for the [Commissioner] and not the courts to resolve.” Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999) (alteration in original) (quoting Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990)).
III. ANALYSIS
The Commissioner, acting through the ALJ, completed the five-step evaluation process here. See Tr. 14-24. First, the ALJ found Cooper had not engaged in substantial gainful activity since September 3, 2020. Id. at 16. Second, he found the following medically severe impairments: degenerative joint disease of the knees, status post left knee replacement, degenerative disc disease of the lumbar spine, obesity, major depressive disorder, anxiety, and post-traumatic stress disorder. Id. He found several non-severe impairments including hypertension and edema. Id. Third, he identified no impairment or combination of impairments that qualify under the federal regulatory list. Tr. 17. He then assessed Cooper's RFC:
After careful consideration of the entire record, the undersigned finds that the claimant has a [RFC] to perform sedentary work as defined in 20 CFR 416.967(a) except the claimant can stand and/or walk, combined, for two hours a day, and with the further limitation of use of a cane needed only for walking distances over 100 feet, both limitations due to left knee osteoarthritis, a total knee replacement, and morbid obesity. The claimant cannot climb ladders, ropes, or scaffolds. The claimant can occasionally walk on ramps and stairs, kneel, crouch, and crawl. The claimant can frequently balance and stoop. The claimant can frequently interact with supervisors and coworkers. The claimant can occasionally interact with the public. The claimant can maintain adequate concentration, persistence, and pace to remain on -task for all work except assembly line and production-paced work tasks.Tr. 19. Because the claimant had no PRW, the ALJ determined at step four that Cooper could not perform PRW. Tr. 22. However, at step-five, the ALJ found that there were jobs that existed in significant numbers in the national economy that Cooper could perform, specifically as a charge account clerk, credit clerk, and sorter. Tr. 23. The step-five finding meant that Cooper was ineligible for DIB because she was not disabled, a finding that terminated the ALJ's evaluation. Id.; see Lovelace, 813 F.2d at 58.
Cooper argues for reversal of the ALJ's decision for two reasons. ECF No. 13. First, she claims that the ALJ did not rely on a medical opinion to support his finding that she needed a cane to walk distances over 100 feet Id. at 6. Second, she asserts that the ALJ did not comply with SSR 00-4p by failing to identify and resolve apparent conflicts between the occupations identified by the Vocational Expert (“VE”) and the Dictionary of Occupational Titles (“DOT”). Id. at 11.
A. Substantial evidence supports the ALJ's determination of Cooper's RFC.
“Because a determination [of] whether an impairment[ ] is severe requires an assessment of the functionally limiting effects of an impairment[ ], [all] symptom-related limitations and restrictions must be considered at this step.” Martinez v. Kijakazi, No. 3:20-cv-3282-BH, 2022 WL 4590577, at *11 (N.D. Tex. Sept. 29, 2022) (quoting Social Security Ruling (“SSR”) 96-3P, 1996 WL 374181, at *2 (S.S.A. July 2, 1996)). Ultimately, a severity determination may not be “made without regard to the individual's ability to perform substantial gainful activity.” Stone v. Heckler, 752 F.2d 1099, 1104 (5th Cir. 1985).
Although a claimant's step-two burden is quite low, it remains exceedingly difficult to show that substantial evidence does not support an ALJ's opinion, in whole or in part. Evidence is substantial if it “is more than a mere scintilla,” but it need not be greater than a preponderance. Boyd, 239 F.3d at 704. It is the bare minimum needed for “a reasonable mind [to] accept to support a conclusion.” Ripley, 67 F.3d at 555 (quoting Greenspan, 38 F.3d at 236). A finding of no substantial evidence is only appropriate where a reasonable mind could not support the ALJ's conclusion based on the evidence under consideration. See Id.
Substantial evidence did not support the ALJ's RFC determination in Ripley, thus warranting remand, because the record “d[id] not clearly establish.. .the effect [the claimant's] condition had on his ability to work.” Id. at 557. The ALJ found Ripley not disabled because he could perform sedentary work. Id. Even though the record included “a vast amount of medical evidence,” including “reports discussing the extent of Ripley's injuries,” no reports from “qualified medical experts” showed how Ripley's condition affected his ability to perform sedentary work. Id. at 557 & n.27.
After Ripley, the Court found that reversible error lies where the “record does not clearly establish” how an applicant's condition affects their ability to work. Bowles v. Comm'r of Soc. Sec., No. 7:20-cv-00112-O-BP, 2021 WL 7451148, at *3 (N.D. Tex. Oct. 19, 2021), rec. adopted, 2022 WL 768546 (N.D. Tex. Mar. 14, 2022); Fitzpatrick v. Colvin, No. 3:15-cv-3202-D, 2016 WL 1258477, at *7-8 (N.D. Tex. Mar. 31, 2016); Thornhill v. Colvin, No. 3:14-cv-335-M, 2015 WL 232844, at *10 (N.D. Tex. Dec. 15, 2014), rec. adopted, 2015 WL 232844 (N.D. Tex. Jan. 16, 2015).
Cooper argues that the “ALJ's conclusion that Cooper only needed to use a cane when walking distances over 100 feet is not supported by substantial evidence.” ECF No. 15 at 2. In determining the RFC, the ALJ incorporated medical evidence. For instance, the ALJ found that the record established that Cooper required a cane for walking distances greater than over 100 feet. Tr. at 19. One State Agency Medical Consultant (“SAMC”) even noted the use of the cane. Tr. 114. None of the three SAMCs that reviewed Cooper's medical records imposed the additional limitation regarding the use of a cane. However, the ALJ partially adopted one of the SAMCs opinions by finding that Cooper “could lift 10 pounds occasionally and less than 10 pounds frequently, stand and/or walk two hours a day, and included the need for a cane to walk distances over 100 feet.” ECF No. 14 at 4 and Tr. 22. The ALJ reduced the weight Cooper could lift by 10 pounds in each instance. The ALJ found the additional limitation necessary to account for Cooper's left knee osteoarthritis, total knee replacement, and morbid obesity. TR. 19. Because of the additional limitation of a cane, Cooper asserts that no medical evidence supports the ALJ's determination of her physical limitations, and that reversal must follow. ECF Nos. 13 at 9, 15 at 4.
Cooper's argument is unavailing. Her case is distinguishable from the cases noted above where the Court reversed the ALJ's decision. In those post-Ripley cases, the Court found that substantial evidence did not support the ALJs' RFC determinations “when the ALJ rejected all medical opinions of record and independently determined [ ] the plaintiff[s'] [limitations].” Ernest A. J. v. Saul, No. 1:18-cv-00194-BU, 2020 WL 6877706, at *17 (N.D. Tex. Oct. 19, 2020), rec. adopted, 2020 WL 6873609 (N.D. Tex. Nov. 23, 2020).
Here, the ALJ did not completely reject the SAMCs' opinions, but instead found the opinion of the SAMC at the reconsideration level “more persuasive” given the other evidence of record. Tr. 22. “Assigning less persuasive merit to particular areas of a specific evidentiary source is a far cry from rejecting that source in its entirety.” Vasquez v. Comm'r of Soc. Sec., No. 7:21-cv-00028-O-BP, 2022 WL 2975471, at *5 (N.D. Tex. June 30, 2022), rec. adopted, 2022 WL 2972240 (N.D. Tex. July 26, 2022). See also Ernest A. J., 2020 WL 6877706 at *17 (“[t]he ALJ . . . departed from the SAMCs' medical opinions insofar as the ALJ found Plaintiff to be more limited than the SAMCs opined. However, this departure does not constitute a rejection of those opinions, as Plaintiff suggests.”); Michael L. v. Berryhill, No. 3:18-cv-0010-G-BK, 2019 WL 1243866, at *5 (N.D. Tex. Feb. 20, 2019), rec. adopted, 2019 WL 1244076 (N.D. Tex. Mar. 18, 2019) (“the ALJ did not reject the assessments of the SAMCs by including additional restrictions in her RFC assessment”).
ALJs may assign more or less persuasive value to certain evidentiary sources and reach an RFC based on some, but not all, of the evidentiary record. Vasquez, 2022 WL 2975471 at *5. Thus, even though the ALJ found the opinion of the SAMC at the reconsideration level “more persuasive,” the ALJ's decision is not devoid of any medical opinions. The ALJ did not wholly reject the SAMC's assessments, and he explained the reasoning for his decision. Accordingly, the ALJ properly evaluated the medical opinion evidence of record and did not commit a Ripley error.
Additionally, the Fifth Circuit has held that “ALJs are no longer required to give controlling weight to a treating physician's opinion...” Webster v. Kijakazi, 19 F.4th 715, 719-720 (5th Cir. 2021). Moreover, other courts in the Northern District of Texas have held that the inclusion of additional limitations on a claimant's activity is not reversible error. See Ernest A. J. v. Saul, No. 1:18-CV-00194-BU, 2020 WL 6877706, at *14 (N.D. Tex. Oct. 19, 2020), rec. adopted, No. 1:18-CV-194-C-BU, 2020 WL 6873609 (N.D. Tex. Nov. 23, 2020), citing Martin v. Colvin, No. 3:14-CV-3319-BK, 2015 WL 2114506, at *6 (N.D. Tex. May 5, 2015) (finding no reversible error when the ALJ permissibly relied on the SAMC's function-by-function assessment regarding plaintiffs abilities, but then found additional limitations); Asher v. Colvin, No. 4:12- CV-831-A, 2014 WL 888350, at *12 (N.D. Tex. Mar. 6, 2014) (same); Michael L. v. Berryhill, No. 3:18-CV-0010-G-BK, 2019 WL 1243866, at *5 (N.D. Tex. Feb. 20, 2019) (same).
Cooper attempts to distinguish these cases to argue that substantial evidence does not support the ALJ's physical limitations because the consultants did not discuss the need for an assistive device. ECF No. 15 at 4. However, other courts have found that SAMCs are not required to discuss assistive devices. See Ruthie L.G. v. Comm'r of Soc. Sec. Admin., No. 3:22-CV-2585-BK, 2024 WL 731940 (N.D. Tex. Feb. 21, 2024) (finding that where SAMCs were unaware of the use of an assistive device “the inquiry focuses on whether the ALJ's decision ‘is supported by substantial evidence in the existing record.'” (quoting Ripley 67 F.3d at 557)). Further, the Fifth Circuit recently held that “[a]n administrative record is not per se incomplete without a medical opinion about a claimant's limitations, so long as it otherwise contains substantial evidence to make the RFC assessment.” Vasquez v. O'Malley, No. 24-50233, 2024 WL 4381269, *2 (5th Cir. Oct. 3, 2024).
The ALJ in this case recognized Cooper's cane use when making the RFC determination. To justify this use, the ALJ remarked in his decision that Cooper testified that “[s]he still has pain in her left knee. She has 8/10 pain in her right knee...She still uses a cane.” Tr. 20. Moreover, after the ALJ asked if Cooper used a cane, she responded that she uses it “just about every time [she] take[s] a step.” Tr. 45. Thus, Cooper's history of cane use and self-reported ability to walk supports the ALJ's additional limitation of the use of a cane. As shown, the ALJ did not commit an error by imposing an additional limitation on Cooper's RFC.
Even if the ALJ erred, limiting a claimant's activity beyond those that a medical source or SAMC expressed does not automatically constitute reversible error. Ernest A. J., 2020 WL 6877706 at *13. The Court will not reverse the Commissioner's decision where “the substantial rights of a party have not been affected.” Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988).
There is no indication that inclusion of a limitation for use of a cane affected Cooper's substantial rights. Cooper did not point to any evidence demonstrating prejudice that affected the ALJ's decision. See Michael L, 2019 WL 1243866 at *5. The record reflects that the ALJ considered the entire evidentiary record and incorporated into his decision treatment notes and observations of several physicians, Cooper's testimony and hearing evidence regarding her functional impairments, her description of what she could and could not do, and the SAMCs' functional estimates to the extent that they supplemented and were consistent with the rest of the record. See Tr. 44-50, 24-25. Because those considerations are “such relevant evidence as a reasonable mind might accept to support a conclusion,” substantial evidence supports the RFC. See Ripley, 67 F.3d at 555 (quoting Greenspan, 38 F.3d at 236).
While Cooper disagrees with the RFC assessment, “[a] finding of no substantial evidence is appropriate only if no credible evidentiary choices or medical findings support the decision.” Boyd, 239 F.3d at 704 (quoting Harris, 209 F.3d at 417). That is not the case here, and the Court is “highly deferential” to the Commissioner. Perez v. Barnhart, 415 F.3d 457, 464 (5th Cir. 2005). Thus, any error on this point is not reversible.
B. The ALJ resolved all the apparent conflicts between the VE testimony and DOT descriptions.
Social Security Ruling 00-4p provides in relevant part:
Occupational evidence provided by a VE or VS [vocational specialist] generally should be consistent with the occupational information supplied by the DOT. When there is an apparent unresolved conflict between VE or VS evidence and the DOT, the adjudicator must elicit a reasonable explanation for the conflict before relying on the VE or VS evidence to support a determination or decision about whether the claimant is disabled. At the hearings level, as part of the adjudicator's duty to fully develop the record, the adjudicator will inquire, on the record, as to whether or not there is such consistency.SSR 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000). The Fifth Circuit has held that it is error for an ALJ not to ask a VE whether her testimony is consistent with the DOT. Graves v. Colvin, 837 F.3d 589, 592 (5th Cir. 2016).
Cooper argues that the ALJ did not resolve all apparent conflicts because he “did not inquire about any inconsistencies between the VE's testimony and the DOT.” ECF No. 13 at 14. Cooper alleges that there are inconsistencies between the jobs the VE proposed and the ALJ's hypothetical question. Specifically, Cooper argues that the duties of a charge clerk require “more than occasional interaction with the public,” and that the duties of a sorter require work on an assembly line that the hypothetical claimant could not perform. Id. at 15. However, the VE testified that these positions were consistent with the DOT despite the limitations, and the only difference between her testimony and the DOT is the “ability to utilize a cane.” Tr. at 52.
Cooper's argument on this point likewise is unavailing despite the VE's testimony that these positions are consistent with the DOT. First, the ALJ satisfied the requirement of SSR 00-4p by asking at the hearing whether the jobs the VE named were consistent with the DOT. Second, the ALJ permissibly relied on the VE's vocational experience to resolve any conflict. The VE stated that, despite the DOT not addressing the ability to use a cane, she based her opinion “on [] over 30 years of work experience, education and training as a vocational rehabilitation counselor placing individuals with disabilities on jobs in the community.” Tr. 52. As a result, the ALJ determined that:
Although the [VE's] testimony may be inconsistent with the information contained in the [DOT], there is a reasonable explanation for any discrepancy. While the [DOT] lists maximum requirements of occupations as generally performed, a [VE] can provide testimony with consideration given to the range of requirements of particular jobs as they are performed (SSR 00-4p). The [VE] provided testimony that the claimant could perform the above listed jobs given the claimant's [RFC] assessment (Hearing Testimony). When the testimony of a [VE] differs from the [DOT], the [ALJ] may rely upon the experience of the [VE]. If there is any conflict with the [DOT], the undersigned finds the testimony of the [VE] is reasonable and is based on vocational experience.Tr. 23-24. The ALJ may rely on a VE's testimony where professional knowledge and experience underlie the testimony. A.M. v. O'Malley, No. 4:23-CV-1091-BR, 2024 WL 758537 at *7 (N.D. Tex. Feb. 22, 2024) (referencing Clement v. Kijakazi, No. CV 22-479, 2022 WL 19073969, at *11 (E.D. La. Oct. 6, 2022)). Such was this case. Accordingly, reversal is not required on this point.
IV. CONCLUSION
Because the ALJ applied the proper legal standards and substantial evidence supports the ALJ's decision, the Court AFFIRMS the Commissioner's decision and DISMISSES this case with prejudice.
It is so ORDERED.