Opinion
EP-23-CV-00288-KC-RFC
06-20-2024
SUZAN R., Plaintiff, v. MARTIN O'MALLEY, Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
ROBERT F. CASTANEDA UNITED STATES MAGISTRATE JUDGE
Plaintiff Suzan R. appeals from the decision of the Commissioner of the Social Security Administration, denying her claims for disability insurance benefits (“DIB”) under Title II of the Social Security Act. Pursuant to 28 U.S.C. § 636, the Honorable U.S. District Judge Kathleen Cardone referred this case to the undersigned Magistrate Judge for a report and recommendation. For the following reasons, the Court RECOMMENDS that the Commissioner's decision be AFFIRMED.
I. PROCEDURAL HISTORY
On April 27, 2021, Suzan filed a DIB application alleging disability beginning on December 1, 2016, due to high blood pressure, post-traumatic stress disorder (“PTSD”), bipolar disorder, anxiety, and sleep apnea. Tr. of Admin. R. 14, 50 [hereinafter Tr], ECF No. 5. The disability onset date was later amended to September 28, 2018. Id. at 14.
Suzan's application was initially denied on July 12, 2021, id. at 14, 49-59, 75-78, and again upon reconsideration on February 3, 2022, id. at 14, 60-67, 81-85. Upon Suzan's request, Administrative Law Judge (“ALJ”) Ilene Kramer conducted a telephonic hearing on August 18, 2022. Id. at 14, 30-48. On February 1, 2023, the ALJ issued an unfavorable decision. Id. at 11-28. The Appeals Council denied Suzan's request for review on June 6, 2023. Id. at 1-6. Thus, the ALJ's decision became the Commissioner's final decision in Suzan's case. Id. at 1.
II. DISCUSSION
A. Standard of Review
Judicial review of the Commissioner's decision is limited to a determination of whether (1) the Commissioner's final decision is supported by substantial evidence on the record and (2) the Commissioner applied the proper legal standards. Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014).
Substantial evidence is “more than a scintilla but less than a preponderance” and is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (citation omitted). To determine whether substantial evidence supports the Commissioner's decision, courts weigh “four elements of proof”: “(i) objective medical facts; (ii) diagnoses and opinions of treating and examining physicians; (iii) claimant's subjective evidence of pain and disability; and (iv) claimant's age, education, and work history.” Williams v. Colvin, 575 Fed.Appx. 350, 354 (5th Cir. 2014) (per curiam). The Court cannot “reweigh the evidence in the record, try the issues de novo, or substitute [its] judgment for the Commissioner's, even if the evidence weighs against the Commissioner's decision.” Salmond v. Berryhill, 892 F.3d 812, 817 (5th Cir. 2018) (citation omitted); see also Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005) (“Conflicts of evidence are for the Commissioner, not the courts, to resolve.”). “A finding of no substantial evidence is appropriate only if no credible evidentiary choices or medical findings support the decision.” Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001) (citation omitted). If substantial evidence supports the Commissioner's findings, they are conclusive and must be affirmed. Perez, 415 F.3d at 461.
A court's finding of legal error requires either automatic reversal or harmless error analysis, depending on the steps taken by the ALJ to reach the final decision. Keel v. Saul, 986 F.3d 551, 556 (5th Cir. 2021). Broadly, “[h]armless error exists when it is inconceivable that a different administrative conclusion would have been reached . . . if the ALJ did not err.” Id. “‘Procedural perfection in administrative proceedings is not required' as long as ‘the substantial rights of a party have not been affected.'” Audler v. Astrue, 501 F.3d 446, 448 (5th Cir. 2007) (citation omitted).
B. Evaluation Process
Under the Social Security Act, disability is defined as the “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). An ALJ evaluates disability claims according to a five-step sequential process: (1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe medically determinable impairment; (3) whether the claimant's impairment meets or medically equals the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) whether the impairment prevents the claimant from performing past relevant work; and (5) whether the impairment prevents the claimant from doing any other work. 20 C.F.R. § 404.1520(a)(4).
Between steps three and four, the ALJ determines the claimant's “residual functional capacity” (“RFC”). Id. § 404.1520(e). The RFC “is the most [the claimant] can still do” despite the limitations caused by his physical and mental impairments. Id. § 404.1545(a)(1). The ALJ then considers the RFC to make the step four and step five determinations. Id. § 404.1520(e).
At the first four steps, the claimant bears the burden of proving that he is disabled. Webster v. Kijakazi, 19 F.4th 715, 718 (5th Cir. 2021). If the claimant meets this burden, at step five the burden shifts to the Commissioner to “prove the claimant's employability.” Id. (citation omitted). If the Commissioner satisfies this burden, “the burden shifts back to the claimant to rebut this finding.” Perez, 415 F.3d at 461 (citation omitted).
C. The ALJ's Findings
In this case, at step one, the ALJ found that Suzan had not engaged in substantial gainful activity since September 28, 2018, the amended disability onset date. Tr. 17. At step two, the ALJ found that Suzan had the following severe impairments: hypertension, obstructive sleep apnea, bipolar II disorder, generalized anxiety disorder, and PTSD. Id. At step three, the ALJ found that Suzan did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id.
For Suzan's RFC, the ALJ determined that Suzan could perform “light work” with the following limitations: “she could understand, remember, carry out, and exercise judgement for detailed, but not complex, semiskilled work. She was limited to self-paced work, avoiding high quota, fast-paced work, like fast-paced assembly line work.” Id. at 19.
A “light work” job “involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds” and either “a good deal of walking or standing” or “sitting most of the time with some pushing and pulling of arm or leg controls.” 20 C.F.R. § 404.1567(b).
At step four, the ALJ found that Suzan's RFC did not preclude her from performing her past relevant work as a customer service representative. Id. at 23. Therefore, the ALJ concluded, Suzan was not disabled from the amended disability onset date through March 31, 2022, the date last insured. Id. at 24.
The ALJ determined that Suzan met the insured status requirements of the Social Security Act until March 31, 2022, so, for DIB purposes, Suzan had to establish disability on or before that date. Tr. 16.
D. Analysis
Suzan alleges that the ALJ erred by (1) failing to appropriately account for a state agency medical consultant's (“SAMC”) finding that Suzan could only carry out simple tasks, after the ALJ stated the SAMC's findings were persuasive; (2) failing to put forth hypothetical questions to the vocational expert (“VE”) that expressed Suzan's limitations as a function-by-function assessment; and (3) eliciting a response from the VE regarding a conflict with the Dictionary of Occupational Titles (“DOT”) that does not allow for meaningful judicial review. Pl.'s Br. 4-9, ECF No. 8.
1. The SAMC's narrative finding that Suzan could focus on “simple tasks only”
One of the SAMCs for Suzan at the reconsideration level was Stephen Kleinman, M.D. See Tr. 63. Dr. Kleinman concluded that, as a whole, Suzan had moderate limitations in the area of concentrating, persisting, or maintaining pace. Id. Dr. Kleinman also concluded that Suzan “can focus adequately on simple tasks only.” Id. at 64. This statement was included in a section of the mental RFC assessment that asks the SAMC to “[e]xplain in narrative form the sustained concentration and persistence capacities and/or limitations” of the claimant. Id. The ALJ stated in her opinion that she found “[Dr. Kleinman's] opinion persuasive where it addresses the limitations to concentration and maintaining pace” because it was “consistent with the evidence showing depressed and anxious mood and affect and hopeless and helpless thought content, while generally showing unremarkable thought content, normal attention, and normal psychomotor activity.” Id. at 23. The ALJ ultimately concluded that Suzan had a moderate limitation in concentrating, persisting, or maintaining pace. Id. at 18. The ALJ translated this into a mental RFC limitation of understanding, remembering, carrying out, and exercising judgment for detailed, but not complex, semiskilled work, as well as a limitation to self-paced work, avoiding high quota, fast-paced work. Id. at 19.
Suzan alleges that, because the ALJ found the SAMC's findings addressing her limitations in concentrating, persisting, or maintaining pace persuasive, then the ALJ should have adapted all the SAMC's findings on her limitation in concentrating, persisting, or maintaining pace, namely that Suzan was limited to working on “simple tasks.” Pl.'s Br. 4-5. Instead, she points out, the ALJ determined in Suzan's RFC that she could perform “detailed, but not complex, semi-skilled work,” which, Suzan maintains, is less restrictive than a limitation to simple tasks. Id. at 5. Suzan further argues in her reply brief that the Commissioner is “provid[ing] his own analysis” in order to make up for what is missing in the ALJ's decision. Pl.'s Reply Br. 2, ECF No. 11.
The Commissioner asserts in his brief that “the ALJ properly followed the revised regulations regarding how the adjudicator considers medical opinions for claims, such as Plaintiff's filed after March 27, 2017.” Def.'s Opp'n Mem. 5, ECF No. 9. The Commissioner argues that the ALJ is “not required to adopt every limitation Dr. Kleinman proposed.” Id. at 6.
The Commissioner also asserts that the ALJ included in the RFC the limitation that Suzan is “limited to self-paced work, avoiding high quota, fast-paced work, like fast-past [sic] assembly line work,” which is equivalent to a “focus on simplistic work activities.” Id. at 7 (quoting Tr. 23). However, other cases suggest that a limitation to simple tasks is not equivalent to a limitation to self-paced work. In Springer v. Commissioner of Social Security, 451 F.Supp.3d 744 (E.D. Mich. 2020), for example, the claimant's RFC stated that the claimant could carry out “low stress work, which is work that is self-paced and not at a production rate . . . and simple, routine, repetitive work.” Id. at 754. The ALJ's inclusion of these two limitations separately suggests that they are not equivalent. In another example, a court concluded that “[s]ubstantial evidence supports the ALJ's decision concerning Plaintiff's RFC to do simple, routine work tasks on a regular and continuing basis at all exertional levels, with the additional requirements of work that is as self- paced as possible, that is not on an assembly line, and require no team work or hourly quotas.” Chanbunmy v. Astrue, 560 F.Supp.2d 371, 387 (E.D. Pa. 2008) (emphasis added). Given this, the Court cannot conclude that Suzan's limitation to self-paced work is equivalent to a limitation to simple tasks.
However, Suzan argues without providing any evidence that her limitation to “understand[ing], remember[ing], carry[ing] out, and exercis[ing] judgement for detailed, but not complex, semiskilled work” is not equivalent to a limitation to “simple tasks.” “[T]he determination of residual functional capacity is the sole responsibility of the ALJ.” Taylor v. Astrue, 706 F.3d 600, 602-03 (5th Cir. 2012). The ALJ's RFC findings do not need to “mirror a medical opinion.” Dominick S. v. Kijakazi, No. 3:20-CV-03473-E-BT, 2022 WL 2874705, at *2 (N.D. Tex. May 12, 2022), report and recommendation adopted sub nom. Simonetti v. Kijakazi, 2022 WL 2872490 (N.D. Tex. July 20, 2022); see also Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012) (“[T]here is no requirement in the regulations for a direct correspondence between an RFC finding and a specific medical opinion on the functional capacity in question.”); Reeves v. Comm'r of Soc. Sec., 618 Fed.Appx. 267, 275 (6th Cir. 2015) (“[T]here is no requirement that an ALJ adopt a state agency psychologist's opinions verbatim ....”).
Both the ALJ and the SAMC concluded that Suzan had a moderate limitation in concentration, persistence, or pace, and case law in the Fifth Circuit establishes that either an RFC limitation to “detailed but not complex” tasks or a limitation to “simple” tasks addresses such a moderate limitation. See, e.g., Westover v. Astrue, No. 4:11-CV-816-Y, 2012 WL 6553102, at *10 (N.D. Tex. Nov. 16, 2012) (“[T]he ALJ's hypothetical limitation to ‘detailed but not complex instruction' indicates incorporation of [the plaintiff's moderate] impairment in concentration, persistence, or pace.”), report and recommendation adopted, 2012 WL 6553829 (N.D. Tex. Dec. 13, 2012); Mary C.R. v. Kijakazi, No. 3:20-cv-00286-BT, 2021 WL 4476764, at *6-7 (N.D. Tex. Sept. 30, 2021) (collecting cases where understanding and carrying out only “detailed but not complex instructions” RFC finding accounted for a moderate limitation in concentrating, persisting, or maintaining pace); Calvert v. Colvin, No. EP-14-CV-404-ATB, 2016 WL 3906821, at *6 (W.D. Tex. July 14, 2016) (“[T]he Court finds that the ALJ's mental RFC determination, that [the] [p]laintiff could perform work limited to understanding, remembering, and carrying out detailed but not complex instructions . . . is not contrary to the ALJ's . . . finding that [the] [p]laintiff was moderately limited in her ability to maintain concentration, persistence, or pace.”); Bordelon v. Astrue, 281 Fed.Appx. 418, 423 (5th Cir. 2008) (per curiam) (“[R]estrictions to . . . simple, one-to two-step instructions reflect that the ALJ reasonably incorporated [the plaintiff's] moderate concentration, persistence, and pace limitations ....”); Hariman v. Comm'r, SSA, No. 4:18-CV-377, 2019 WL 4727417, at *2 (E.D. Tex. Sept. 27, 2019) (finding that a limitation to “simple tasks and instructions” and “simple work related decisions” covered the plaintiff's moderate limitation in concentration, persistence, and pace); Cornejo v. Colvin, No. EP-11-CV-470-RFC, 2013 WL 2539710, at *6 (W.D. Tex. June 7, 2013) (stating that an RFC limitation to “perform[ing] simple tasks” is “an accommodation for [the plaintiff's] acknowledged moderate limitation in concentration, persistence, and pace”). Thus, although the ALJ did not use exactly the same language as Dr. Kleinman, the ALJ appears to have incorporated Dr. Kleinman's findings into Suzan's RFC.
Further, the ALJ's opinion makes clear that she did consider all of the relevant evidence in formulating Suzan's mental RFC assessment. The ALJ stated that “[t]he medical evidence of record showed . . . only mild to moderate psychiatric findings, which is inconsistent with the allegations of disabling severity.” Tr. 20. She added that “the claimant . . . indicated that she could help care for household pets, complete personal care, prepare daily meals, perform chores with encouragement, shop by computer, pay bills, count change, drive ‘short distances,' play phone games, get along with others, follow instructions, and handle changes in routine.” Id. at 22. Specifically with respect to Suzan's limitation in concentrating, persisting, and maintaining pace, the ALJ noted that “[t]he limitations in concentration and maintaining pace are consistent with the evidence showing depressed and anxious mood and affect and hopeless and helpless thought content, while generally showing unremarkable thought content, normal attention, and normal psychomotor activity.” Id. at 23. And substantial evidence supports the ALJ's findings. Suzan stated in her function report that she can feed her dogs, do laundry, clean, shop for groceries and clothes, pay bills, count change, prepare meals, and play games on her phone. Id. at 230-33. Numerous medical records document her attention and memory as being intact and her thought process as organized and logical. Id. at 277, 284, 290, 297, 304, 312, 320, 327, 339, 343, 351, 355, 363, 367, 372, 381, 390, 399, 446, 452, 458, 466, 471, 480, 773.
Since substantial evidence supports the RFC limitation and Suzan has provided no evidence that the ALJ erred as a matter of law, the Court will not recommend remanding the case.
2. The ALJ's inclusion of “semiskilled” work in the RFC and hypothetical questions to the VE
Suzan also argues that “[t]he ALJ's restriction of [Suzan] to semi-skilled work was purely a vocational restriction,” which “should not be a description in an RFC assessment for mental limitations.” Pl.'s Br. 6. Suzan points to an adjudication tip contained in an Appeals Council Training Guide, which suggests that “unskilled work” language should not be used in an RFC, and “the RFC should be stated as a function-by-function assessment and not as a general vocational skill category.” Id. (quoting Soc. Sec. Admin. Off. of App. Operations, Evaluating Allegations of Mental Limitations 28, ECF No. 8-1). The Commissioner argues that the adjudication tip mentioned only “unskilled work” and not “semiskilled work,” which is the skill level included in Suzan's RFC. Def.'s Opp'n Mem. 8. The Commissioner states that a function-by-function assessment was also included in the RFC, after the reference to “semi-skilled work.” Id.
“[T]he RFC assessment is a function-by-function assessment of an individual's ability to do work-related activities.” Otte v. Comm'r, Soc. Sec. Admin., No. 3:08-CV-2078-P (BF) ECF, 2010 WL 4363400, at *6 (N.D. Tex. Oct. 18, 2010), report and recommendation adopted, No. 3:08-CV-2078-P BF, 2010 WL 4318838 (N.D. Tex. Oct. 27, 2010). “The categories of work-related mental activities the ALJ must consider in determining a claimant's mental RFC include the abilities to understand, carry out, and remember instructions; use judgment in making work-related decisions; respond appropriately to supervision, co-workers, and work situations; and deal with changes in a routine work setting.” Id.; see also SSR 85-15, 1985 WL 56857, at *4 (Jan. 1, 1985) (“The basic mental demands of competitive, remunerative, unskilled work include the abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a routine work setting.”). Claimants are “entitled to a full and fair function-by-function determination of [their] mental RFC[s].” Otte, 2010 WL 4363400, at *7. “A restriction to ‘unskilled work' without additional explanation regarding specific work-related mental activities (such as those suggested in the Commissioner's form SSA-4734-F4-SUP) is too broad and unspecified a term to convey meaning with regard to mental limitations in plaintiff's RFC.” Field v. Astrue, No. 08-4079-JAR, 2009 WL 1212044, at *8 (D. Kan. May 5, 2009) (emphasis added).
Here, the ALJ included such additional explanation and an itemized assessment. As mentioned, the ALJ found that Suzan was moderately limited in understanding, remembering, or applying information and in concentrating, persisting, or maintaining pace but was mildly limited in interacting with others and in adapting or managing herself. Tr. 18. In formulating Suzan's RFC, the ALJ concluded that Suzan “could understand, remember, carry out, and exercise judgment for detailed, but not complex, semiskilled work.” Id. at 19. She also concluded that Suzan is “limited to self-paced work, avoiding high quota, fast-paced work, like fast-paced assembly line work.” Id. These findings encompass the ALJ's function-by-function assessment. The ALJ did not simply limit Suzan to “semiskilled work” without any other assessment of her mental RFC. Cf. Wiederholt v. Barnhart, 121 Fed.Appx. 833, 839 (10th Cir. 2005) (finding ALJ erred in formulating RFC to include only that claimant was “limited to simple, unskilled job tasks” because “[t]he relatively broad, unspecified nature of the description ‘simple' and ‘unskilled' d[id] not adequately incorporate the ALJ's additional, more specific findings . . . such as [that the claimant had] moderate difficulties maintaining concentration, persistence, or pace”). Thus, the ALJ did not err.
3. VE's response and potential conflict with the DOT
Suzan's last point of contention is that the ALJ erred by soliciting a response from the VE about a conflict with the DOT that “is confusing and non-responsive” and does not allow for judicial review. Pl.'s Br. 8. At the hearing, the ALJ queried with respect to her hypothetical questions to the VE:
[ALJ]: Okay. So for hypo one, is that testimony consistent with the DOT?
[VE]: Yes.
[ALJ]: And I put the avoiding-well, I limited it to self-paced work avoiding high quotas or fast-paced work. Is that covered by the DOT?
[VE]: Well, it is in a sense with the job description itself. You can draw conclusions regarding that type of thing. But there is [sic] no specific limitations that I am aware of in the DOT regarding no quota or production type work.
[ALJ]: Okay. So that conclusion is based on your experience placing people in those jobs?
[VE]: Yes, and again, with the job description itself in this case. That would be consistent with the DOT because of the description which describes someone who's not performing that type of quota work or production work.Tr. 46-47. The Commissioner argues that Suzan's counsel should have raised any objections they had to this line of questioning during the hearing, which Suzan and her counsel failed to do. Def.'s Opp'n Mem. 10. And, he argues, there is no conflict here because the DOT is silent about whether certain jobs are self-paced or not. Id. at 11.
The ALJ's first hypothetical is the one she later used for Suzan's RFC. See Tr. 19, 46.
“Occupational evidence provided by a VE . . . generally should be consistent with the occupational information supplied by the DOT. When there is an apparent unresolved conflict between VE . . . evidence and the DOT, the adjudicator must elicit a reasonable explanation for the conflict ....” SSR 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000). Additionally, “[t]he adjudicator must resolve the conflict by determining if the explanation given by the VE . . . is reasonable and provides a basis for relying on the VE . . . testimony rather than on the DOT information.” Id.
Here, the ALJ complied with the requirement that she ask on the record about any conflicts between the VE's testimony and the DOT. The VE stated that the DOT does not specifically keep track of whether a job is self-paced or requires quotas or production work. The VE then added that his testimony was based on his experience and consistent with the DOT's description of the customer service representative job, which does not state that fast-paced production or quotas are required. Thus, the record reflects an adequate basis for the ALJ to rely upon the VE's testimony. See SSR 00-4p, 2000 WL 1898704, at *2 (“Reasonable explanations . . . which may provide a basis for relying on the evidence from the VE . . . include, but are not limited to[,] the following: . . . information obtained . . . from a VE's . . . experience in job placement or career counseling.”). Thus, the Court believes that the ALJ did not commit any legal error with respect to this issue.
Further, Suzan's counsel was present and had the opportunity to question the VE further. In Bailey v. Saul, 853 Fed.Appx. 934 (5th Cir. 2021), the Fifth Circuit explained that it differentiates between “actual” or “obvious” conflicts between a VE's testimony and the DOT and “alleged” or “indirect” conflicts. Id. at 937. If the conflict is not direct or obvious, “a claimant cannot later point to a conflict that he or she did not press before an ALJ.” Id. “[C]laimants should not be permitted to scan the record for implied or unexplained conflicts between the specific testimony of an expert witness and the voluminous provisions of the DOT, and then present that conflict as reversible error.” Id. (quoting Carey v. Apfel, 230 F.3d 131, 146-47 (5th Cir. 2000)). Therefore, after failing to raise the issue of a perceived conflict at the hearing, Suzan cannot raise it now.
III. CONCLUSION
For the foregoing reasons, the Court RECOMMENDS that the decision of the Commissioner be AFFIRMED pursuant to 42 U.S.C. § 405(g).
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.