Opinion
1:22-CV-00775-RP-SH
04-27-2023
ZACHARY SHERMAN, Plaintiff v. KILOLO KIJAKAZI, Acting Commissioner of the Social Security Administration, Defendant
THE HONORABLE ROBERT PITMAN UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
SUSAN HIGHTOWER UNITED STATES MAGISTRATE JUDGE
Before the Court are Plaintiff's Opening Brief, filed December 5, 2022 (Dkt. 12); Defendant's Brief in Support of the Commissioner's Decision, filed January10, 2023 (Dkt. 13); Plaintiff's Reply, filed January 20, 2023 (Dkt. 14); and the Social Security record (Dkt. 10).
The District Court referred this case to this Magistrate Judge for disposition of all nondispositive pretrial matters and for findings and recommendations on all case-dispositive motions pursuant to 28 U.S.C. § 636(b)(1), Federal Rule of Civil Procedure 72, Rule 1 of Appendix C of the Local Rules of the United States District Court for the Western District of Texas, and the Standing Order Regarding Court Docket Management of Cases Seeking Judicial Review of Social Security Decisions for the Austin Division.
I. Background
Plaintiff Zachary Sherman asks the Court to reverse the Social Security Commissioner's final administrative decision denying him disability insurance benefits (“DIB”) under Title II of the Social Security Act (“Act”). Plaintiff, who was 36 years old at the time of the Commissioner's decision, was born May 22, 1985 and has a high school diploma “plus some college.” Dkt. 10-2 at 58, 63. He served in the United States Army as a tanker and an infantry weapons crewmember from 2008 until 2014. Dkt. 10-5 at 2. Plaintiff was deployed to combat in Iraq in 2009 and Afghanistan in 2013. Dkt. 10-7 at 197. He alleges that during his combat deployment, he was exposed to “frequent grenade attacks, gunfire, and IED attacks.” Dkt. 12 at 6. During his military service, Plaintiff sustained multiple physical injuries resulting in right knee anterior cruciate ligament (“ACL”) repair surgery, right elbow ulnar nerve decompression surgery, and umbilical hernia repair surgery. He also sustained multiple concussions and was diagnosed with traumatic brain injury (“TBI”). Dkt. 10-7 at 923.
Dkt. 10-7 at 836-37.
Id. at 453.
Id. at 625-26.
Plaintiff has not engaged in substantial work activity since his discharge from the military in July 2014. Plaintiff alleges that he is been unable to work due to post-traumatic stress disorder (“PTSD”); TBI; depression; migraine headaches; history of ACL repair; cubital tunnel syndrome/nerve injury of right elbow; and lumbar and cervical degenerative disc disease. Dkt. 10-3 at 37.
In December 2017, the Department of Veterans Affairs (“VA”) assigned Plaintiff a 90 percent disability rating, declared him “totally and permanently disabled” due to his “service-connected disabilities,” and awarded him $3,249.51 in monthly disability benefits. Dkt. 10-5 at 2. Plaintiff's 90% disability rating was based on his impairments from PTSD (70%), migraine headaches (30%), lumbosacral or cervical strain (20%), tinnitus (10%), and limited knee flexion (10%). Dkt. 10-7 at 1123.
Plaintiff filed his first application for DIB (“First DIB Application”) on March 19, 2018, alleging a disability onset date of July 7, 2014. Dkt. 10-3 at 5. The Commissioner denied Plaintiff's application initially and on reconsideration. Id. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). Id. ALJ Gal Lahat held a video hearing on December 21, 2018. Id. On June 5, 2019, ALJ Lahat issued a decision finding that Plaintiff was not disabled under the Act. Id. at 18. The Appeals Council affirmed the ALJ's decision on November 21, 2019. Id. at 25. Plaintiff did not seek judicial review of his First DIB Application.
Plaintiff filed the instant application for DIB on April 11, 2020, alleging a disability onset date of June 6, 2019 due to the same disabilities alleged in his First DIB Application. Dkt. 10-2 at 35. After the Commissioner denied the application initially and on reconsideration, Plaintiff requested a hearing before an ALJ. Id. ALJ Mary Kay Rauenzahn conducted a telephone hearing at which Plaintiff testified and was represented by his attorney; vocational expert Carrie L. Guthrie-Whitlow also testified. Id. ALJ Rauenzahn issued a decision finding that Plaintiff was not disabled under the Act on December 15, 2021. Id. at 51. Plaintiff has exhausted his administrative remedies and now asks the Court to reverse the decision and remand for further administrative remedies under 42 U.S.C. § 405(g).
II. Standard of Review
A. Five-Step Evaluation Process
The Social Security Act defines “disability” 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.” 42 U.S.C. § 423(d)(1)(A). To determine whether a Social Security claimant is disabled, the Commissioner uses a sequential, five-step approach, considering whether:
(1) the claimant is currently engaged in substantial gainful activity;
(2) the claimant has a severe medically determinable physical or mental impairment that has lasted or is expected to last for a continuous period of at least 12 months, or combination of impairments that is severe and meets the duration requirement;
(3) the impairment meets the severity of an impairment enumerated in 20 C.F.R. Pt. 404, Subpt. P, App. 1;
(4) the claimant can perform his past relevant work given his residual functional capacity; and
(5) the claimant's residual functional capacity, age, education, and work experience prevents him from performing other work.20 C.F.R. § 404.1520(a)(4). The burden of proof is on the claimant at the first four steps. Kneeland v. Berryhill, 850 F.3d 749, 753 (5th Cir. 2017). The burden of proof shifts to the Commissioner at the fifth step to establish the existence of other available substantial gainful employment that a claimant can perform. Id. If the Commissioner identifies such employment, the burden shifts back to the claimant to prove that she could not perform the alternative work identified. Id.
If a claimant's impairment does not meet or equal a listed impairment, the Commissioner must assess the claimant's residual functional capacity (“RFC”) “based on all the relevant medical and other evidence in your case record.” 20 C.F.R. § 404.1520(e). A claimant's RFC “is a determination of the most the claimant can still do [in a work setting] despite his [or her] physical and mental limitations and is based on all relevant evidence in the claimant's record.” Kneeland, 850 F.3d at 754 (citing 20 C.F.R. § 404.1545(a) (“Your residual functional capacity is the most you can still do despite your limitations.”)). In determining a claimant's RFC, an ALJ “examines the medical evidence in the record, including the testimony of physicians and the claimant's medical records.” Webster v. Kijakazi, 19 F.4th 715, 718 (5th Cir. 2021). “The RFC assessment must include a resolution of any inconsistencies in the evidence.” Myers v. Apfel, 238 F.3d 617, 620 (5th Cir. 2001).
B. Judicial Review of the ALJ Decision
The federal courts review the Commissioner's denial of social security benefits only to ascertain whether (1) the final decision is supported by substantial evidence, and (2) the Commissioner used the proper legal standards to evaluate the evidence. Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000). “Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains ‘sufficient evidence' to support the agency's factual determinations.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (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.” Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983).
Courts consider four elements of proof when determining whether there is substantial evidence of a disability: (1) objective medical facts; (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. Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995). But the court may not reweigh the evidence, try the issues de novo, or substitute its judgment for that of the Commissioner. Salmond v. Berryhill, 892 F.3d 812, 817 (5th Cir. 2018). Rather, the court may only scrutinize the record to determine whether it contains substantial evidence to support the Commissioner's decision. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995). “If the Commissioner's findings are supported by substantial evidence, they must be affirmed.” Newton, 209 F.3d at 452.
III. ALJ Opinion
In his Application, Plaintiff alleged a disability onset date of June 6, 2019, the day after the first ALJ decision. Because Plaintiff was last insured on March 31, 2020, ALJ Rauenzahn determined that June 6, 2019 through March 31, 2020 was the relevant period for determining whether Plaintiff was disabled. The ALJ proceeded to employ the five-step sequential evaluation. 20 C.F.R. § 404.1520(a).
At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity “during the period from his alleged onset date of June 6, 2019 through his date last insured of March 31, 2020.” Dkt. 10-2 at 37. At step two, the ALJ found that Plaintiff has the following severe impairments: PTSD, TBI, major depressive disorder, obsessive-compulsive disorder, migraines, right knee anterior ACL and medial collateral ligament injuries status-post repair, right cubital tunnel syndrome status-nerve transposition, and mild lumbar degenerative disc disease. Id. at 38. At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 39.
The ALJ found that Plaintiff retained the RFC to perform light work with some limitations, as defined in 20 C.F.R. § 404.1567(b). Dkt. 10-2 at 42. In making that determination, the ALJ specified that:
The claimant can lift and carry 20 pounds occasionally and 10 pounds frequently. He can stand and/or walk for approximately six hours and sit for approximately six hours, in an eight-hour workday, with normal breaks. The claimant cannot climb ladders, ropes and scaffolds and can occasionally climb stairs and ramps. The claimant can occasionally stoop, crouch, kneel, and crawl. He can frequently reach in all directions and can frequently handle and finger with the right, dominant, upper extremity. The claimant should have no concentrated exposure to moving mechanical parts and high, exposed place hazards, as rated by the Selective Characteristics of Occupations of the Dictionary of Occupational Titles (SCO-DOT). The claimant can understand, remember, and carry out simple and routine instructions and tasks. The claimant is limited to isolated work, which involves no direct public contact and occasional direct co-worker and supervisor interaction, with no group tasks. Supervisor contact should generally be limited to providing work assignments and answering questions, then leaving the individual to complete tasks independently. The claimant should perform only low stress work, which is defined as requiring only occasional changes in work setting, occasional changes in work duties, and no work on a moving conveyor belt.Id. At step four, the ALJ determined that Plaintiff would be unable to perform his past relevant work as an infantry weapons crewmember, which is classified as very heavy, semi-skilled work. Id. at 49.
After consulting a vocational expert, the ALJ determined at step five that Plaintiff could perform other light, unskilled work such as cleaner housekeeping, inspector and hand packager, and nut and bolt assembler. Dkt. 10-2 at 50. The ALJ further found that even if Plaintiff were limited to standing and walking two hours and sitting six hours out of an eight-hour work day, he could perform other sedentary and unskilled jobs such as a final assembler or table worker. Id. The ALJ concluded that Plaintiff was not disabled. Id. at 51.
IV. Analysis
Plaintiff argues that the ALJ's decision is not supported by substantial evidence and is the product of legal error because (1) the ALJ failed to address Dr. Johnathan Norwood's medical opinions, in violation of 20 C.F.R. § 404.1520c, and (2) the ALJ's RFC finding was “based upon misinterpretations of the medical evidence of record and with no basis in a medical's expert's assessment.” Dkt. 12 at 1.
A. Guidelines for Evaluating Medical Opinions
In determining a claimant's RFC, “[m]edical opinions, especially conflicting medical opinions, must be considered.” Kneeland, 850 F.3d at 759. Under the rules for evaluating medical opinions, 20 C.F.R. § 404.1520c, the ALJ must consider “all medical opinions and prior administrative medical findings” in the case record. Camarillo v. Comm'r of Soc. Sec., No. SA-20-CV-01019-ESC, 2021 WL 5332310, at *6 (W.D. Tex. Nov. 16, 2021); see also Wallace v. Kijakazi, No. 3:22-CV-0820-X-BH, 2023 WL 2795854, at *8 (N.D. Tex. Mar. 20, 2023) (“Every medical opinion is evaluated regardless of its source.”), R. & R. adopted, 2023 WL 2801207 (N.D. Tex. Apr. 5, 2023).
On January 18, 2017, the Social Security Administration updated the rules on the evaluation of medical evidence for claims filed after March 27, 2017. 82 Fed.Reg. 5853 (Jan. 18, 2017). “ALJs are no longer required to give controlling weight to a treating physician's opinion, as was mandated by federal regulations and our caselaw in the past.” Webster, 19 F.4th at 719. Although the regulations no longer require ALJs to “defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative fmding(s),” the ALJ must consider all “medical opinions” for their “persuasiveness” using the factors outlined in the rule. 20 C.F.R. § 404.1520c(a). These factors include supportability, consistency, relationship with the claimant, length of the treatment relationship, frequency of examinations, purpose of the treatment relationship, examining relationship, specialization, and other factors such as whether the medical source has familiarity with the other evidence in the claim. Id. § 404.1520c(c). The most important factors are supportability and consistency. Id.
The ALJ also must “articulate in [her] decision how persuasive [she] finds all of the medical opinions and all of the prior administrative medical findings in [the claimant's] case record.” Id. § 404.1520c(b). The ALJ also must “explain how [she] considered the supportability and consistency factors for a medical source's medical opinions or prior administrative medical findings.” Id. § 404.1520c(b)(2). She may, but need not, explain how she considered the remaining factors. Id. An ALJ commits legal error when she fails to address or even mention a medical opinion in the record without explanation. Kneeland, 850 F.3d at 759; see also Webster, 19 F.4th at 718 (“An ALJ usually cannot reject a medical opinion without some explanation.”); Amanda J. v. Saul, No. 3:19-CV-1016-B, 2020 WL 4697880, at *3 (N.D. Tex. Aug. 13, 2020) (“[A]n ALJ commits error when he fails to address or mention a medical opinion-irrespective of whether the ALJ could have rejected it.”).
B. Dr. Norwood's PTSD Evaluation
During Plaintiff's application process for VA disability benefits, Dr. Jonathan Norwood, PsyD, a clinical psychologist, examined and evaluated Plaintiff for PTSD. Dkt. 10-7 at 315. Dr. Norwood completed a ten-page PTSD Review and Disability Benefits Questionnaire dated October 22, 2017 (“PTSD Evaluation”) summarizing his findings. Id. at 315-25. After examining Plaintiff and evaluating his medical records, Dr. Norwood concluded that Plaintiff's current “Mental Disorder Diagnosis” is PTSD from experiencing and witnessing “traumatic events” during his combat deployments. Id. at 315, 319. Dr. Norwood stated that Plaintiff's level of occupational and social impairment from his PTSD diagnosis is: “Occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.” Id. at 317. Dr. Norwood found that Plaintiff's PTSD caused Plaintiff to suffer these symptoms:
Depressed mood, Anxiety, Panic attacks more than once a week, Chronic sleep impairment, Mild memory loss, such as forgetting names, directions or recent events, Flattened affect, Disturbances of motivation and mood, Difficulty in establishing and maintaining effective work and social relationships, Difficulty in adapting to stressful circumstances, including work or a work-like setting, Inability to establish and maintain effective relationships.Id. at 323.
Dr. Norwood further opined that Plaintiff's PTSD caused him the following work-related difficulties and impairments: (1) “difficulty attending to or was easily distracted from the task at hand”; (2) “difficulty maintaining concentration and focus on work over a period of time, tends to skip from one task to another without completing the prior task”; (3) “intrusive thoughts which interfere with the ability to stay focused on the task at hand”; (4) “significant difficulty accepting supervision or receiving instructions without becoming angry (authority conflict”); (5) “significant difficulty remembering instructions and details of work assignments”; (6) “significant difficulty functioning around other people, has difficulty functioning as a team member, and feels uncomfortable around others”; (7) “cannot tolerate being around other people in any setting for more than a few minutes”; and (8) “sleep is so disrupted that [he] is usually fatigued at work, making concentration and focus on work assignments difficult.” Id. at 325.
On December 1, 2017, the VA found Plaintiff to be “totally and permanently disabled.” Dkt. 10-5 at 2. While disability determinations made by the VA are not binding on the Commissioner, the ALJ must “consider all of the supporting evidence underlying the other governmental agency or nongovernmental entity's decision that we receive as evidence in [a] claim in accordance with § 404.1513(a)(1) through (4).” 20 C.F.R. § 404.1504; see also Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir. 2001) (“A VA rating of total and permanent disability is not legally binding on the Commissioner because the criteria applied by the two agencies is different, but it is evidence that is entitled to a certain amount of weight and must be considered by the ALJ.”).
C. Not Addressing Dr. Norwood's Opinions Was Error
In determining that Plaintiff retained the RFC to perform certain light work, the ALJ states that she “considered the medical opinion(s) and prior administrative medical finding(s) in accordance with the requirements of 20 CFR 404.1520c.” Dkt. 10-2 at 42. But it is undisputed that the ALJ did not consider or even reference Dr. Norwood's PTSD Evaluation in her decision. See Commissioner's Brief (Dkt. 13) at 14.
The Commissioner argues that the ALJ was not required to address Dr. Norwood's PTSD Evaluation in her decision because it is not a “medical opinion” as defined in the regulations, predates the disability period at issue in this appeal, and was addressed by the ALJ in Plaintiff's First DIB Application. The Court considers these arguments in turn.
1. Dr. Norwood's Statements and Opinions are Medical Opinions
First, the Commissioner argues that Dr. Norwood's PTSD Evaluation is not a “medical opinion,” defined in 20 C.F.R. § 1513(a)(2) as “a statement from a medical source about what [a claimant] can still do despite [his] impairment(s) and whether [he has] one or more impairment-related limitations or restrictions” in the ability to perform the physical and mental demands of work activities. The Commissioner argues that Dr. Norwood's PTSD Evaluation is not a medical opinion because the form merely includes “checkmarks” regarding Plaintiff's “deficiencies and difficulties” and “amounts, at most, to a declaration or endorsement of ‘unemployability' . . . an issue reserved to the Commissioner.” Dkt. 13 at 14-15.
The Commissioner is correct that statements that a claimant is or is “not disabled, blind, able to work, or able to perform regular or continuing work” are “[s]tatements on issues reserved to the Commissioner” and deemed “inherently neither valuable nor persuasive.” 20 C.F.R. § 404.1520b(c)(3)(i). But Dr. Norwood does not opine in his PTSD Evaluation that Plaintiff is disabled or cannot work. Rather, in the PTSD Evaluation, Dr. Norwood states that he performed a PTSD examination of Plaintiff and opines that Plaintiff suffers from PTSD and has numerous symptoms and impairments and work-related difficulties due to his PTSD. Dkt. 10-7 at 315-25.
The Court finds that Dr. Norwood's statements and opinions constitute medical opinions under 20 C.F.R. § 404.1513(a)(2). See Kneeland, 850 F.3d at 759 (stating that doctor's statement that plaintiff “cannot work any job that entails standing for longer than 30 minutes or walking farther than 50 yards” was a medical opinion “as he examined [plaintiff], noted observations from that examination, and opined on her work limitations”). Courts have found similar VA Disability Benefits Questionnaires to be medical opinions under the Social Security regulations. See Flowers v. Kijakazi, No. CIV-21-795-AMG, 2022 WL 4125250, at *3 (W.D. Okla. Sept. 9, 2022) (treating PTSD Disability Benefits Questionnaire for the VA as a medical opinion); Ealey v. Comm'r of Soc. Sec., No. 3:20-CV-124-KHJ-JCG, 2021 WL 2212384, at *4 (S.D.Miss. May 7, 2021) (classifying VA Disability Questionnaire as a medical opinion), R. & R. adopted, 2021 WL 2211445 (S.D.Miss. June 1, 2021).
2. Dr. Norwood's PTSD Evaluation is Relevant
Next, the Commissioner argues that even if Dr. Norwood's PTSD Evaluation is considered a medical opinion, the ALJ was not required to consider it because (1) it predates the disability period at issue in this appeal (June 6, 2019 through March 31, 2020), and (2) Dr. Norwood's opinions were addressed by the ALJ in Plaintiffs First DIB Application.
While Dr. Norwood's PTSD Evaluation predates Plaintiff's alleged disability onset date (June 6, 2019), the applicable regulations require an ALJ “to consider all medical opinions in the record, regardless of their source” and “do not provide any exception to that requirement for opinions that pre-date a claimant's onset date.” Davidson v. Colvin, 164 F.Supp.3d 926, 941 (N.D. Tex. Sept. 30, 2015) (citing 20 C.F.R. § 404.1527(c)(2)); see also 20 C.F.R. §§ 404.1520c (requiring ALJ to consider all medical opinions in the case record). Courts have found that “an ALJ may not simply ignore medical opinions because they pre-date the onset of disability or post-date the last insured date, since that evidence can be relevant to a claim of disability.” Davidson, 164 F.Supp.3d at 941-42 (collecting cases); see also Morris v. Kijakazi, No. 4:21-CV-01243-O-BP, 2022 WL 10177703, at *5 (N.D. Tex. Sept. 29, 2022) (“[A]n ALJ is required to consider all medical opinions in the record. The regulations do not provide any exception to that requirement for relevant opinions that pre-date a claimant's onset date.”), R. & R. adopted, 2022 WL 10198818 (N.D. Tex. Oct. 17, 2022); Knapp v. Saul, No. 7:19-CV-00069-O-BP, 2020 WL 3516130, at *6 (N.D. Tex. June 12, 2020) (finding that ALJ erred in failing to discuss medical opinion that predated alleged onset date of disability because ALJ must consider all medical opinions in the record), R. & R. adopted, 2020 WL 3510732 (N.D. Tex. June 29, 2020).
See also 20 C.F.R. § 416.912(b)(1) (“Before we make a determination that you are not disabled, we will develop your complete medical history for at least the 12 months preceding the month in which you file your application unless there is a reason to believe that development of an earlier period is necessary or unless you say that your disability began less than 12 months before you filed your application.”).
That Dr. Norwood's PTSD Evaluation was considered by the ALJ in his First DIB Application does not mean that Plaintiff is barred by res judicata from relying on this evidence. Plaintiff is not challenging the ALJ's disability determination in his First DIB Application in this appeal. Moreover, Dr. Norwood's medical opinions may be relevant to whether Plaintiff was disabled during the period at issue here. As noted, Plaintiff alleges that he began to suffer from PTSD when he was discharged from the military in 2014 and alleges that he has continued to suffer from PTSD since that time. Nor did the ALJ state that Dr. Norwood's PTSD Evaluation was not relevant to the disability analysis because of timing or res judicata.
3. Conclusion
Because Dr. Norwood's opinions are medical opinions and are relevant to Plaintiff's RFC and disability determination, the ALJ committed legal error by failing to address Dr. Norwood's medical opinions in her decision, and her decision is not supported by substantial evidence. See Kneeland, 850 F.3d at 759 (stating that ALJ committed legal error by failing to rely on or even mention physician's medical opinion that plaintiff could not stand for more than 30 minutes, “rendering his RFC not supported by substantial evidence”); Cyphers v. Comm'r, Soc. Sec. Admin., No. 4:21-CV-1368-P, 2022 WL 18495865, at *9 (N.D. Tex. Nov. 17, 2022) (finding that ALJ committed legal error where he failed to consider or even mention restrictions assessed by plaintiff's treating physician in Physical Impairment Questionnaire), R. & R. adopted, 2023 WL 1110301 (N.D. Tex. Jan. 30, 2023); Ealey, 2021 WL 2212384, at *4 (finding that ALJ failed to comply with § 404.1520c by failing to mention psychiatrist's Disability Benefits Questionnaire); Amanda J., 2020 WL 4697880, at *3 (finding that ALJ committed legal error “by failing to even mention” treating psychiatrist's medical opinion about how plaintiff's mental illness affected her ability to work); Wilkerson v. Berryhill, 2017 WL 1091601, at *6 (N.D. Tex. Mar. 23, 2017) (concluding that ALJ's failure to discuss a medical opinion on the plaintiff's work limitations “is an error of law in and of itself”). “[T]he ALJ must consider all the record evidence and cannot ‘pick and choose' only the evidence that supports his position.” Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000).
D. The Error Was Not Harmless
Having determined that the ALJ erred in disregarding Dr. Norwood's PTSD Evaluation, the Court must determine whether this error was harmless. Audler v. Astrue, 501 F.3d 446, 448 (5th Cir. 2007). “Procedural perfection in administrative proceedings is not required” as long as “the substantial rights of a party have not been affected.” Id.
The Commissioner argues that even if the ALJ committed legal error by ignoring Dr. Norwood's medical opinions, any such error was harmless. The Fifth Circuit, however, has held that an ALJ's failure to address an examining physician's medical opinion is not harmless because “such an error makes it impossible to know whether the ALJ properly considered and weighed an opinion, which directly affects the RFC determination.” Kneeland, 850 F.3d at 762.
The Court finds that, had Dr. Norwood's opinions been afforded some weight, the ALJ's RFC likely would have been different. Id. This, in turn, likely would have affected the jobs available at step five of the sequential evaluation process, and Plaintiff may have been found disabled. Id. “Of course it is possible the ALJ considered and rejected [Dr. Norwood's] opinion, but without any explanation, we have no way of knowing.” Id. Therefore, the Court finds that the ALJ's error was not harmless and recommends that the case be remanded to the ALJ to consider Dr. Norwood's medical opinions. Id.; Cyphers, 2022 WL 18495865, at *9.
V. Recommendation
For these reasons, this Magistrate Judge RECOMMENDS that the District Court REVERSE the ALJ's decision, ENTER judgment on behalf of Plaintiff, and REMAND this case to the Social Security Commissioner under sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this opinion.
VI. Warnings
The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987). A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except on grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).