Opinion
EP-22-CV-00306-KC-ATB
08-04-2023
DANIEL HERNANDEZ, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
ANNIE T. BERTON, UNITED STATES MAGISTRATE JUDGE
This is a civil action seeking judicial review of an administrative decision. Pursuant to 42 U.S.C. § 405(g), Plaintiff Daniel Hernandez, the claimant at the administrative level, appeals from the final decision of Defendant Acting Commissioner of the Social Security Administration (Commissioner) denying his claims for disability insurance benefits (DIB) and supplemental security income (SSI) under Title II and Title XVI, respectively, of the Social Security Act, 42 U.S.C. § 401, et seq., and § 1382, et seq. Pursuant to 28 U.S.C. § 636(c), Appendix C of this District's Local Rules, and the Honorable District Judge Kathleen Cardone's standing order, the case was referred to the undersigned Magistrate Judge for a report and recommendation. For the reasons set forth below, the Court recommends that the Commissioner's decision be affirmed.
See https://www.txwd.uscourts.gov/wp-content/uploads/2022/12/Standing-Order-Regarding-Civil-Case-Assignments.pdf.
I. BACKGROUND
On August 27, 2012, Hernandez applied for DIB and SSI, alleging that he became disabled as of July 26, 2012, due to chronic heart disease (congestive heart failure), at least one stroke, and loss of feeling in his left arm. He was twenty-six years old when he applied for benefits. He has at least a high school education, and previously, he worked as a roustabout, auto mechanic, truck driver, and construction worker.
Tr. of Admin. R. [hereinafter, cited as “Tr.”] at 188, 207.
Id. at 18.
Id. at 18, 615.
After his claims were denied initially and upon reconsideration by the agency, Hernandez requested a hearing by an administrative law judge (ALJ). On March 20, 2014, ALJ Ann Farris held a hearing, and on June 18, 2014, she denied his application in a written decision, finding that he was not disabled. After the Appeals Council denied his request for review of the ALJ's decision, he appealed to this Court in November 2015. On appeal, Hernandez presented a single issue: whether ALJ Farris erred in finding that his congestive heart failure did not meet or medically equal the requirements of Listing 4.02 (chronic heart failure) of 20 C.F.R. § 404, Subpart P, Appendix 1. In June 2018, the Honorable Magistrate Judge Miguel Torres reversed the Commissioner's decision and remanded Hernandez's disability claims for further administrative proceedings. Specifically, Judge Torres urged the ALJ to order testing to determine whether Hernandez is unable to perform an exercise tolerance test at a workload equivalent to 5 metabolic equivalents (METs) as provided in Listing 4.02B3.
Id. at 13, 19.
Id. at 700; Compl., Hernandez v. Colvin, No. 3:15-CV-00338-MAT (W.D. Tex. Nov. 18, 2015), ECF No. 6.
Pl. Br. at 2, Hernandez, No. 3:15-CV-00338-MAT (Apr. 11, 2016), ECF No. 20.
Tr. at 714; Op., Hernandez, No. 3:15-CV-00338-MAT (June 14, 2018), ECF No. 23.
Tr. at 723; Op. at 8, Hernandez, No. 3:15-CV-00338-MAT.
On remand, a different ALJ, Janice Holmes, was assigned to Hernandez's claims. She held a hearing on October 1, 2019. At the hearing, Hernandez, represented by her attorney, and a vocational expert testified, though a medical expert/cardiologist was not scheduled to testify.In a post-hearing brief, Hernandez requested a supplemental hearing with a medical expert. On June 15, 2021, ALJ Holmes held a supplemental hearing, where Subramaniam Krishnamurthi, M.D., a medical expert who is board certified in cardiology and internal medicine, testified; a vocational expert, who attended the hearing, did not testify. On July 19, 2021, ALJ Holmes issued her written decision in which she denied Hernandez's application finding that he was not disabled. On July 6, 2022, the Appeals Council denied Hernandez's request for review of the ALJ Holmes's decision; ALJ Holmes's decision thus became the final decision of the Commissioner.
Tr. at 607, 640.
Id. at 902. On multiple occasions, Hernandez requested that a medical expert testify at a supplemental hearing. Id. at 906, 907, 908, 915.
Id. at 607, 674.
Id. at 617.
Pl.'s Br. at 3, ECF No. 11; Br. in Support of Comm'r's Decision at 3, ECF No. 17; see also Tr. at 594-97.
See Masterson v. Barnhart, 309 F.3d 267, 271 (5th Cir. 2002) (“The ALJ's decision thus became the Commissioner's final and official decision when the Appeals Council denied [the claimant's] request for review on the merits.”).
On September 1, 2022, Hernandez brought this action seeking judicial review of the Commissioner's final decision. On February 11, 2023, he filed an opening brief requesting that the Commissioner's decision be vacated and his claims for disability benefits be remanded for further administrative proceedings. Pl.'s Br. at 2, 11, ECF No. 11. On March 9, 2023, the Commissioner filed a response brief. Br. in Support of Comm'r's Decision [hereinafter, cited as “Def.'s Resp.”], ECF No. 12. Hernandez filed a reply brief on March 24, 2023. Pl.'s Reply, ECF No. 14.
II. ALJ'S FINDINGS AND CONCLUSIONS
Eligibility for disability insurance benefits or supplemental security income payments requires that the claimant be disabled. 42 U.S.C. §§ 423(a)(1)(E), 1382(a). Disability is defined as an inability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months.” Id. §§ 423(d)(1)(A), 1382c(a)(3)(A). “A claimant has the burden of proving he suffers from a disability.” Garcia v. Berryhill, 880 F.3d 700, 704 (5th Cir. 2018).
To determine disability, the Commissioner uses a sequential, five-step approach, which considers:
(1) whether the claimant is presently performing substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the impairment meets or equals a listed impairment; (4) whether the impairment prevents the claimant from doing past relevant work; and (5) whether the impairment prevents the claimant from performing any other substantial gainful activity.Kneeland v. Berryhill, 850 F.3d 749, 753 (5th Cir. 2017) (cleaned up); see also 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). “The burden of proof is on the claimant at the first four steps,” Kneeland, 850 F.3d at 753, and if he gets past these steps, “the burden shifts to the Commissioner on the fifth step to prove the claimant's employability,” Keel v. Saul, 986 F.3d 551, 555 (5th Cir. 2021). A determination at any step that the claimant is disabled or is not disabled “ends the inquiry.” Id.
“‘The relevant law and regulations governing the determination of disability under a claim for disability insurance benefits are identical to those governing the determination under a claim for supplemental security income.'” Undheim v. Barnhart, 214 Fed.Appx. 448, 449 n.1 (5th Cir. 2007) (quoting Davis v. Heckler, 759 F.2d 432, 435 n. 1 (5th Cir. 1985)). Part 404 of 20 C.F.R. relates to disability insurance benefits, see 20 C.F.R. § 404.1, whereas Part 416 relates to supplemental security income, see 20 C.F.R. § 416.101. As relevant here, the regulations are not materially different, and therefore, hereinafter, the Court will refer only to the regulations under Part 404. See Sun v. Colvin, 793 F.3d 502, 506 n.1 (5th Cir. 2015).
Before going from step three to step four, the Commissioner assesses the claimant's residual functional capacity (RFC). Kneeland, 850 F.3d at 754. “The claimant's RFC assessment is a determination of the most the claimant can still do despite his or her physical and mental limitations and is based on all relevant evidence in the claimant's record.” Id. (cleaned up); see also 20 C.F.R. §§ 404.1520(e), 404.1545(a)(1). “The RFC is used in both step four and step five to determine whether the claimant is able to do h[is] past work or other available work.” Kneeland, 850 F.3d at 754.
Here, ALJ Holmes evaluated Hernandez's disability claims pursuant to the abovementioned five-step sequential evaluation process. At step one, the ALJ found that Hernandez had not engaged in substantial gainful activity since July 26, 2012 (his alleged disability onset date). Tr. at 610. At step two, the ALJ found that Hernandez had the following severe impairments: status-post cerebral vascular accident (stroke) with residual hemiparesis of the left hand; congestive heart failure, status-post implantable cardioverter defibrillator; hypertension; obesity; and obstructive sleep apnea. Id. At step three, the ALJ found that Hernandez did not have an impairment or combination of impairments for presumptive disability: specifically, Hernandez did not meet or equal any of the medical listings, including Listings 4.02 (chronic heart failure) and 11.04 (vascular insult to the brain) of 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 611-12.
Next, the ALJ found that Hernandez retained the RFC to perform “light work” but with certain exertional and non-exertional limitations. Id. at 612. At step four, she found that Hernandez could not perform his past relevant work. Id. at 615. At step five, the ALJ found that, considering Hernandez's age, education, work experience, and RFC, jobs existed in significant numbers in the national economy that Hernandez could perform, including agricultural nut sorter (DOT 521.687-086), tile spotter (DOT 739.687-182), and toy stuffer (DOT 731.685-014). Id. at 616-17. The ALJ concluded that Hernandez had not been disabled since July 26, 2012 (the alleged disability onset date) through July 19, 2021 (the date of the ALJ's decision). Id. at 617.
The relevant disability period for a DIB claim is the disability onset date through the last date on which the claimant met the Act's insured requirement, i.e., the “date last insured,” whereas the relevant disability period for an SSI claim is the disability onset date through the date of the ALJ's decision. Hamilton-Provost v. Colvin, 605 Fed.Appx. 233, 237 n.5 (5th Cir. 2015). Here, the ALJ found, for purposes of the DIB claim, that Hernandez's date last insured was December 31, 2017. Tr. at 610.
III. STANDARDS FOR JUDICIAL REVIEW
Judicial review, under §405(g), of the Commissioner's decision denying social security benefits is “highly deferential.” Garcia, 880 F.3d at 704. Courts review such a decision “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.” Webster v. Kijakazi, 19 F.4th 715, 718 (5th Cir. 2021) (quotation marks and citation omitted). “Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Sun, 793 F.3d at 508.
In applying the “substantial evidence” standard, “the court scrutinizes the record to determine whether such evidence is present,” id., but it may not “try the issues de novo” or “reweigh the evidence,” Salmond v. Berryhill, 892 F.3d 812, 817 (5th Cir. 2018). “[N]or, in the event of evidentiary conflict or uncertainty,” may the court substitute its judgment for the Commissioner's, “even if [it] believe[s] the evidence weighs against the Commissioner's decision.” Garcia, 880 F.3d at 704. “Conflicts of evidence are for the Commissioner, not the courts, to resolve.” Sun, 793 F.3d at 508. “A finding of no substantial evidence is appropriate only if no credible evidentiary choices or medical findings support the decision.” Whitehead v. Colvin, 820 F.3d 776, 779 (5th Cir. 2016).
IV. DISCUSSION
Hernandez assigns two errors to ALJ Holmes's July 19, 2021 decision: (1) that the ALJ's RFC formulation failed to account for all of his non-exertional limitations, in particular, environmental limitations, into the RFC; and (2) that the ALJ failed to incorporate such limitations in a hypothetical question to a vocation expert. Pl.'s Br. at 7-9.
Nonexertional limitations include mental, postural, manipulative, communicative/hearing, visual, and as relevant here, environmental limitations. SSR 96-8p, 1996 WL 374184, at *6 (S.S.A. July 2, 1996); see also Williams v. Colvin, No. CV H-15-82, 2016 WL 1182220, at *8 n.4 (S.D. Tex. Mar. 28, 2016) (stating same (citing 20 C.F.R. § 404.1569a(c))).
Environmental limitations pertain to a claimant's ability to tolerate “extremes of temperature, noise, . . . vibration, . . . fumes, dust, and poor ventilation,” and his ability to work with “hazards such as unprotected elevations and dangerous moving machinery.” SSR 85-15, 1985 WL 56857, at *8 (S.S.A. 1985).
Before addressing the alleged errors, the Court briefly sketches the backdrop against which these errors are asserted. The ALJ found that:
[Hernandez] has the [RFC] to perform light work . . . except that he could only stand and walk for 4 hours in an 8-hour workday. In addition, he must never climb, and he can occasionally stoop, kneel, crouch, and crawl. [Hernandez] must avoid hazards, such as unprotected heights, dangerous moving machinery, and operating motor vehicles. Moreover, he is limited to occasional handling and fingering with the left non-dominant extremity.Tr. at 612. As mentioned above, upon remand from this Court, the ALJ held two hearings: a hearing on October 1, 2019, and a supplemental hearing on June 15, 2021. During the first hearing, Robert Grant, a vocational expert (VE) testified, and the ALJ posed hypothetical questions to VE Grant that reasonably incorporated the RFC. Id. at 659-60. Grant testified that a hypothetical individual with the RFC could not perform any of Hernandez's past relevant work, but could perform other jobs, including agricultural nut sorter (DOT 521.687-086), tile spotter (DOT 739.687-182), and toy stuffer (DOT 731.685-014). Id. During the supplemental hearing, Dr. Krishnamurthi testified as a medical expert and did so based on his review of the medical evidence, but the ALJ did not call Howard Martin, a second VE, to testify, though Martin attended the hearing and was available to testify. Id. at 670-71, 674-698. So, the ALJ did not pose any hypothetical questions to VE Martin. Ultimately, in her written decision, the ALJ, relying on VE Grant's testimony at the first hearing, concluded, at step five, that jobs existed in significant numbers in the national economy that Hernandez could perform and therefore, that Hernandez was not disabled. Id. at 617.
With this backdrop, the Court turns to each of the two alleged errors, in turn.
A. The ALJ's Failure to Include Environmental Limitations in the RFC
Hernandez points out that at the supplemental hearing, Dr. Krishnamurthi opined that Hernandez has a limited ability to tolerate temperature extremes and humidity. See Pl.'s Br. at 676; see also Tr. at 676. Regarding Hernandez's limitations, Dr. Krishnamurthi, a nonexamining physician, testified, inter alia, as follows: “Avoid extreme temperatures, heat or cold, to occasional. Avoid humidity to occasional.” Id. at 676. In her written decision, the ALJ recounted Dr. Krishnamurthi's testimony and assigned “great weight” to his opinions. Id. at 615. So, Hernandez argues, the ALJ erred because despite assigning great weight to Dr. Krishnamurthi's opinions, she did not include in the RFC any environmental limitations related to the avoidance of heat, cold, or humidity. Pl.'s Br. at 8.
The Court observes that the parties as well as the ALJ seem to interpret this testimony differently. Hernandez says, “Dr. Krishnamurth[i] opined that the Plaintiff should avoid occasional exposure to extreme temperatures, heat to cold, and should also avoid occasional exposure to humidity.” Pl.'s Br. at 8. Likewise, the ALJ recounted this testimony as follows: “Dr. Krishnamurthi further opined that the claimant should avoid occasional exposure to extreme temperatures and occasional exposure to humidity.” Tr. at 615. The Commissioner, on the other hand, understands this testimony to mean “limitations regarding no more than occasional exposure to extreme temperatures and humidity.” Def.'s Resp. at 5 (emphasis added). At the supplemental hearing, the following colloquy took place between the ALJ and Dr. Krishnamurthi: [ALJ] All right. Well, does the claimant have any physical limitations as a result of these impairments? [Dr. K.] Yes. [ALJ] All right. [Dr. K.] He's able to lift frequently 10 pounds, occasionally 30 pounds. Can sit six out of eight-hour period. Stand and walk together a total of four hours out of eight-hour period. Use of upper extremities, reaching, handling, fingering, feeling, grasp, no limitations. Also no ladders, scaffolds or ropes. Bend, stoop, crawl, crouch and kneel all occasional. No heights. No heavy machineries. Avoid extreme temperature, heat or cold, to occasional. Avoid humidity to occasional. And these are the limitations. Tr. at 676. Read in context, Dr. Krishnamurthi's testimony suggests that the Commissioner has the better interpretation. The ALJ's restatement of the testimony appears to be a scrivener's error.
Because Hernandez's disability claims were filed in August 2012, the ALJ evaluated Dr. Krishnamurthi's testimony, under 20 C.F.R. § 404.1527, which applies to claims filed before March 27, 2017. Section 404.1527 requires ALJs to assign a specific weight to medical opinions, based on, inter alia, treatment and examining relationships. § 404.1527(c)(1)-(2); Revisions to Rules Regarding Evaluation of Medical Evidence, 81 Fed.Reg. 62560, 62570-71, 2016 WL 4702272 (S.S.A. Sept. 9, 2016). Thus, for example, under § 404.1527, ordinarily, the opinion of a treating physician is entitled to greater weight than that of an examining physician, and the opinion of an examining physician is entitled to greater weight than that of a non-examining physician. Kneeland, 850 F.3d at 760 & n.51.
The Commissioner points out that the ALJ incorporated Dr. Krishnamurthi's limitations into her RFC finding, except for the limitations regarding no more than occasional exposure to extreme temperatures and humidity. Def.'s Resp. at 5. She argues nonetheless that any error on the part of the ALJ in not including in the RFC Dr. Krishnamurthi's limitations regarding extreme temperatures and humidity is harmless. Id. at 6.
It is unclear why the ALJ did not expressly state in the RFC the limitations regarding Hernandez's ability to tolerate temperature extremes or humidity: was the omission a deliberate one or the result of an oversight? Of course, according “great weight” to a medical opinion on a limitation does not mean that the opinion is “conclusive” as to that limitation. Cf. Martinez v. Chater, 64 F.3d 172, 175-76 (5th Cir. 1995) (“Although not conclusive, an evaluation by the claimant's treating physician should be accorded great weight.”). For example, in formulating the RFC, the ALJ deviated from Dr. Krishnamurthi's opinion in one respect by limiting Hernandez to “no more than occasional handling and fingering with the left non-dominant extremity,” and in her written decision, the ALJ articulated the reasons therefor. Tr. at 615. However, in the decision, she makes no further mention of Dr. Krishnamurthi's opinion regarding Hernandez's ability to tolerate temperature extremes or humidity.
Nevertheless, the Court agrees with the Commissioner that any error in not incorporating in the RFC Dr. Krishnamurthi's opinion regarding Hernandez's ability to tolerate temperature extremes or humidity is harmless. An error is harmless and therefore, remand is unnecessary “unless the substantial rights of a party have been affected” by the error. Rollins v. Astrue, 464 Fed.Appx. 353, 358 (5th Cir. 2012) (citing Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988)). “Where the resulting disability determination remains unchanged, even if some of the reasoning underlying that decision is erroneous, no substantial rights have been affected.” Qualls v. Astrue, 339 Fed.Appx. 461, 464 (5th Cir. 2009) (citing Mays, 837 F.2d at 1364); see also Keel, 986 F.3d at 556 (“Harmless error exists when it is inconceivable that a different administrative conclusion would have been reached even if the ALJ did not err.”).
Here, at step five, the ALJ concluded that Hernandez is not disabled because he is capable of making a successful adjustment to “other work that exists in significant numbers in the national economy.” Tr. at 617. Such other work includes the jobs of agricultural nut sorter (DOT No. 521.687-086), tile spotter (DOT No. 739.687-182), and toy stuffer (DOT No. 731.685-014). Id. at 616-617. As the Commissioner points out, according to the Dictionary of Occupational Titles' descriptions of these jobs, none of them involve exposure to extreme temperatures or humidity. Def.'s Resp. at 6; see also DOT No. 521.687-086, 1991 WL 674226 (agricultural nut sorter); DOT No. 739.687-182, 1991 WL 680217 (tile spotter); and DOT No. 731.685-014, 1991 WL 679811 (toy stuffer).
Consequently, even if the ALJ erred by not including in the RFC the limitations regarding extreme temperatures and humidity found by Dr. Krishnamurthi, such error does not affect Hernandez's substantial rights and therefore, is harmless. See Simmons v. Colvin, 639 Fed.Appx. 446, 447 (9th Cir. 2016) (“[A]ny error in failing to incorporate certain postural limitations into the RFC was harmless because none of the jobs the ALJ identified at step four of the sequential analysis require climbing, balancing, stooping, kneeling, crouching, or crawling.” (citing to the Dictionary of Occupational Titles)); Williams, 2016 WL 1182220, at *9 (holding the ALJ's failure to include in the RFC the postural limitations found by a consultative examiner was harmless because “none of the three representative occupations cited by the ALJ [at step five] require postural activity” (citing to the Dictionary of Occupational Titles)).
B. The ALJ's Failure to Include Environmental Limitations in a VE Hypothetical
Next, Hernandez faults the ALJ for failing to pose to a VE any hypothetical question that incorporated the limitations regarding extreme temperatures and humidity found by Dr. Krishnamurthi. Pl.'s Br. 11. Because those limitations are nonexertional, he adds, the ALJ was obligated, by law, to incorporate those limitations into questions posed to a VE. Pl.'s Reply at 2.
As an initial matter the Court observes that the line of cases Hernandez cites in support of his argument that the ALJ was obligated to incorporate nonexertional limitations into a VE hypothetical is inapplicable here. Pl.'s Reply at 2 (citing, among others, Lawler v. Heckler, 761 F.2d 195, 198 (5th Cir. 1985)); see also Pl.'s Br. 10 (same). This line of cases addresses under what circumstances, an ALJ may exclusively rely on the Medical-Vocational Guidelines (i.e., the grid), see 20 C.F.R. § 404, Subpt. P, App. 2, and must obtain a VE's testimony in determining, at step five, the existence of other jobs that a claimant could perform any other work available in the national economy. Thus, for example, “[w]hen the characteristics of the claimant correspond to criteria in” the Guidelines, “and the claimant either suffers only from exertional impairments or his non-exertional impairments do not significantly affect his [RFC], the ALJ may rely exclusively on the Guidelines in determining whether there is other work available that the claimant can perform.” Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987). “Otherwise, the ALJ must rely upon expert vocational testimony or other similar evidence to establish that such jobs exist.” Id. (citing Lawler, 761 F.2d at 198). However, here, the ALJ relied on VE Grant's testimony (at the first hearing), not the Guidelines, explaining that Hernandez's “ability to perform all or substantially all of the requirements of this level of work has been impeded by additional limitations.” Tr. at 616.
See Wren v. Sullivan, 925 F.2d 123, 129 (5th Cir. 1991) (“[T]he Medical-Vocational Guidelines apply only when the ALJ reaches step five and finds that the claimant is unable to perform claimant's past relevant work.”).
See also Barlow v. Sec'y, Health & Hum. Servs., 29 F.3d 624, 1994 WL 395235, at *1 (5th Cir. 1994) (unpublished table decision) (“[T]he general rule[ is ]that the Guidelines may not be relied upon exclusively where the claimant suffers from non-exertional impairments.”).
So, the pertinent question is whether the ALJ erred by not calling VE Martin to testify at the supplemental hearing and in turn, by not presenting a hypothetical question to him that incorporated Dr. Krishnamurthi's limitations regarding extreme temperatures and humidity. To that, the Commissioner responds that any error was harmless because at the supplemental hearing, the ALJ gave Hernandez's counsel an opportunity to question VE Martin, but counsel passed upon that opportunity. Def.'s Resp. at 7.
At the close of Dr. Krishnamurthi's testimony, the following colloquy took place between the ALJ and Hernandez's counsel:
ALJ: I don't think I have any questions[,] and since Dr. Krishnamurthi and the consultative examiner's limitations are pretty much right on top of the hypothetical I gave at the last hearing, I don't think we need any more vocational testimony because I also ticked . . . off task, absenteeism. So[,] do you have any questions or do you want any more vocational testimony, Ms. McDermott?
[Counsel]: No, Your Honor. I agree[.] I mean with the vocational testimony the last time, although it was a different VE.Tr. at 698-99 (emphasis added).
This colloquy reflects that Hernandez's counsel not only declined a real opportunity to call VE Martin to testify, and thereby, question him about the temperature and humidity related limitations found by Dr. Krishnamurthi, but also agreed with the ALJ that her hypothetical to VE Grant adequately incorporated the limitations found by Dr. Krishnamurthi. To be sure, it is plausible that at the very moment when the colloquy took place, counsel (and possibly the ALJ) did not recall Dr. Krishnamurthi's testimony about the temperature and humidity related limitations. Counsel could have filed a post-hearing brief alerting the ALJ of any inconsistencies between Dr. Krishnamurthi's testimony and the hypothetical posed to VE Grant, and that would have been particularly apropos because, as it appears, the ALJ's office did not notify counsel that a medical expert, much less Dr. Krishnamurthi, would testify at the supplemental hearing-until the morning of the hearing. Tr. at 698-99 (transcript of the supplemental hearing). But the record does not reflect that counsel filed such a brief. On the other hand, any such inconsistencies could potentially have been avoided all together, had the ALJ scheduled Dr. Krishnamurthi or another medical expert to testify at the first hearing, where VE Grant testified. It appears though that a medical expert was not so scheduled due to an administrative mistake. Id. at 640 (“It was a mistake....There was supposed to be a medical expert today, but I don't know why there isn't.” (transcript of the first hearing) (ALJ's statement)).
Although neither the regulations nor HALLEX (the agency's Hearings, Appeals, and Litigation Law Manual), specifically provide for post-hearing briefs, Carter v. U.S. Comm'r of Soc. Sec., No. 1:15-CV-02850, 2017 WL 1304428, at *6 n.1 (W.D. La. Feb. 27, 2017) (citing 20 C.F.R. § 404.949, and HALLEX I-2-6-76), a claimant may file such a brief after securing the ALJ's permission to do so, e.g., Tonti v. Saul, No. CV 20-92, 2021 WL 518178, at *3 & n.2 (W.D. Pa. Feb. 11, 2021); see also SSR 96- 9p, 1996 WL 374185, at *9 n.8 (S.S.A. July 2, 1996) (“Whenever a VE is used, the individual has the right to review and respond to the VE evidence prior to the issuance of a decision.”).
Be that as it may, in similar circumstances, courts have affirmed an ALJ's decision “[w]hen [a claimant's] counsel has a real opportunity to correct any faults in the ALJ's questioning” of a VE. Kenneth M. v. Kijakazi, No. 4:20-CV-01227, 2021 WL 3931057, at *8 (S.D. Tex. Sept. 2, 2021); see also, e.g., Wise v. Barnhart, 101 Fed.Appx. 950, 951 (5th Cir. 2004) (“[E]ven assuming, arguendo, that the administrative law judge's hypothetical was deficient in the respects urged on appeal, because [the claimant's] representative was afforded an opportunity to correct any perceived deficiencies, there is no reversible error.”)); Quintanilla v. Astrue, 619 F.Supp.2d 306, 323 (S.D. Tex. 2008) (“An applicant waives his right to challenge a hypothetical on review if he does not address its deficiencies at the hearing.”); Sanchez v. Saul, No. EP-19-CV-00175-ATB, 2020 WL 51136, at *4 (W.D. Tex. Jan. 2, 2020) (finding no reversible error where the claimant's counsel “was afforded the opportunity to object and correct any perceived deficiencies in the VE's testimony during the hearing before the ALJ and chose not to object or ask the VE additional questions”). The Court likewise finds the ALJ here committed no reversible error by not calling VE Martin to testify and in turn, not posing any hypothetical question that included Dr. Krishnamurthi's limitations about extreme temperatures and humidity.
What is more, any error by the ALJ in this respect is harmless. As mentioned above, none of the representative jobs cited by the ALJ at step five involve exposure to extreme temperatures or humidity, as reflected in the Dictionary of Occupational Titles' descriptions of the jobs. See Lane v. Colvin, 643 Fed.Appx. 766, 768-69, 770 & n.1 (10th Cir. 2016) (holding ALJ committed harmless error by not including in his RFC and in his hypothetical questions to the VE a state agency consultant's opinion-that the claimant “could not tolerate frequent or prolonged contact with supervisors or co-workers”-despite according the opinion “substantial weight,” because the job cited by the ALJ at step five “does not involve frequent or prolonged interaction with supervisors or co-workers” as described in the Dictionary of Occupational Titles).
V. CONCLUSION
For the foregoing reasons, IT IS RECOMMENDED that the Commissioner's decision be AFFIRMED.
So ORDERED.
NOTICE
FAILURE TO FILE WRITTEN OBJECTIONS TO THE PROPOSED FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS CONTAINED IN THE FOREGOING REPORT, WITHIN FOURTEEN DAYS OF SERVICE OF SAME, MAY BAR DE NOVO DETERMINATION BY THE DISTRICT JUDGE OF AN ISSUE COVERED HEREIN AND SHALL BAR APPELLATE REVIEW, EXCEPT UPON GROUNDS OF PLAIN ERROR, OF ANY UNOBJECTED-TO PROPOSED FACTUAL FINDINGS AND LEGAL CONCLUSIONS AS MAY BE ACCEPTED OR ADOPTED BY THE DISTRICT COURT.