Keel v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LUZENIA K., §

§

Plaintiff, §

§

v. §

§ Case No. 3:19-cv-01006-BT

ANDREW SAUL, §

Commissioner of the §

Social Security Administration, §

§

Defendant. §

MEMORANDUM OPINION AND ORDER

Plaintiff Luzenia K.1 filed a civil action seeking judicial review pursuant to

42 U.S.C. § 405(g) of a final adverse decision by the Commissioner of Social

Security. For the reasons explained below, the Commissioner’s decision is

AFFIRMED in all respects.

Background

Plaintiff alleges that she is disabled due to several physical and mental

impairments, including a ruptured disc in her neck; injured lower back, knee, and

shoulder; chronic pulmonary edema; diabetes; fluid in her lungs; neuropathy;

depression; and anxiety. Pl.’s Br. 3-9 (ECF No. 15); Administrative Record 299-

300, 318 (A.R.) (ECF No. 11-1). She alleges disability beginning March 10, 2010.

1 The Court uses only Plaintiff’s first name and last initial as instructed by the May

1, 2018 Memorandum Re: Privacy Concern Regarding Social Security and

Immigration Opinions issued by the Committee on Court Administration and Case

Management of the Judicial Conference of the United States.

Pl.’s Br. 2; A.R. 297. After an initial administrative hearing decision dated

September 9, 2013 denying Plaintiff benefits, the Appeals Council remanded her

case to the administrative law judge (ALJ) for further consideration. A.R. 586.

Following the second administrative hearing decision dated January 15, 2016

denying benefits, the Appeals Council remanded Plaintiff’s case again for further

consideration (the “Second Remand Order”). Id. at 617-18. Her applications for

supplemental security income and disability insurance benefits were denied for a

third time, and the Appeals Council declined review. Id. at 287. Plaintiff’s most

recent administrative hearing took place in Dallas, Texas, on November 6, 2017.

Id. at 286. At the time of the hearing, Plaintiff was 56 years old. See id. at 298. She

has a high school education, can communicate in English, id., and has past work

experience as a customer service representative and a mailroom supervisor, id. at

330.

The ALJ issued his written decision on May 1, 2018. Id. at 114. The ALJ found

that Plaintiff was not disabled and, therefore, not entitled to supplemental security

income or disability insurance benefits. Id. At step one of the five-step sequential

evaluation,2 the ALJ found Plaintiff had not engaged in substantial gainful activity

2 “In evaluating a disability claim, the Commissioner conducts a five-step

sequential analysis to determine whether (1) the claimant is presently working; (2)

the claimant has a severe impairment; (3) the impairment meets or equals an

impairment listed in appendix 1 of the social security regulations; (4) the

impairment prevents the claimant from doing past relevant work; and (5) the

impairment prevents the claimant from doing any other substantial gainful

activity.” Audler v. Astrue, 501 F.3d 446, 447-48 (5th Cir. 2007). The claimant

bears the initial burden of establishing a disability through the first four steps of

since March 10, 2010. A.R. 104. At steps two and three, the ALJ found that Plaintiff

had the severe impairments of degenerative disc disease of the cervical and lumbar

spine and disorder of the right shoulder, right knee, and right hip; nonetheless, the

ALJ found that her impairments, or combination of impairments, did not meet or

equal the severity of any listed impairment in the social security regulations. Id. at

104, 106. At step four, the ALJ found Plaintiff has the residual functional capacity

(RFC) to perform light work, except that she can “stand and/or walk for up to [two]

hours total per [eight]-hour workday,” “cannot [c]limb ladders, ropes, or scaffolds,

but can occasionally climb ramps and stairs,” “can occasionally balance, stoop,

kneel, and crouch,” and “can perform only occasional overhead reaching with the

dominant upper extremity.” Id. at 107. At step five, relying on the testimony of a

vocational expert (VE), the ALJ found that Plaintiff could perform her past relevant

work as a customer service representative. Id. at 113.

As stated above, the Appeals Council declined to review the May 1, 2018

administrative decision. Id. at 1. Plaintiff then filed this action in federal district

court on April 26, 2019, arguing: (1) the ALJ committed a Stone error, which has

prejudiced Plaintiff; (2) the ALJ committed error by failing to consider the factors

the analysis; at the fifth step, the burden shifts to the Commissioner to show that

there is other substantial work in the national economy that the claimant can

perform. Id. at 448; Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014)

(citations omitted). A finding that the claimant is disabled or not disabled at any

point in the five-step review is conclusive and terminates the analysis. Copeland,

771 F.3d at 923 (citing Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995));

Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987) (citing Barajas v. Heckler, 738

F.2d 641, 643 (5th Cir. 1984) (per curiam)).

set forth in 20 C.F.R. §§ 404.1527 and 416.927 before declining to give weight to

the opinion of Plaintiff’s treating physician; (3) the ALJ erred by making an

implicit determination that Plaintiff’s noncompliance with prescribed medical

treatment precluded a finding of disability; (4) the ALJ did not comply with the

Second Remand Order; and (5) the ALJ committed a Ripley error and the RFC is

consequently not supported by substantial evidence.

Legal Standards

Judicial “review of Social Security disability cases ‘is limited to two

inquiries: (1) whether the decision is supported by substantial evidence on the

record as a whole, and (2) whether the Commissioner applied the proper legal

standard.’” Copeland, 771 F.3d at 923 (quoting Perez v. Barnhart, 415 F.3d 457, 461

(5th Cir. 2005)); see also Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995) (citation

omitted). Substantial evidence is “more than a mere scintilla. It means such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation

marks and citation omitted); see also Copeland, 771 F.3d at 923 (“Substantial

evidence is ‘more than a mere scintilla and less than a preponderance.’”) (quoting

Perez, 415 F.3d at 461). The Commissioner, and not the courts, resolves conflicts

in the evidence; thereafter, the Court may not “reweigh the evidence or try the

issues de novo.” Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995) (per curiam)

(citing Cook v. Heckler, 750 F.2d 391, 392-93 (5th Cir. 1985); Patton v.

Schweiker, 697 F.2d 590, 592 (5th Cir. 1983) (per curiam)). Accordingly, the

Court may not substitute its own judgment for the Commissioner’s, and it may

affirm only on the grounds that the Commissioner stated to support his or her

decision. Copeland, 771 F.3d at 923 (citing Cole v. Barnhart, 288 F.3d 149, 151

(5th Cir. 2002) (per curiam)).

Analysis

As a preliminary matter, the Court notes that the May 1, 2018 administrative

decision is the third in a series of decisions denying Plaintiff benefits. While none

of Plaintiff’s arguments rely entirely on any prior hearing decision or remand order

besides the Second Remand Order, Plaintiff points out and discusses findings by

prior ALJs who heard this matter and directives from the first remand order. But

this matter is on appeal from the adverse decision dated May 1, 2018 and the

Appeals Council’s denial of review dated April 16, 2019. It is not the province of

this Court to consider any hearing decision other than the May 1, 2018 decision.

42 U.S.C. § 405(g) (providing for judicial review of a final decision of the

Commissioner); See also Weeks v. Soc. Sec. Admin. Comm’r, 230 F.3d 6, 7 (1st Cir.

2000) (per curiam) (holding that an Appeals Council’s remand for further

consideration is not a final decision of the Commissioner); Culbertson v. Shalala,

30 F.3d 934, 937 n.3 (8th Cir. 1994) (same); Duda v. Sec’y of Health & Human

Servs., 834 F.2d 554, 555 (6th Cir. 1987) (per curiam) (same). To the extent it is

error for an ALJ to ignore a mandate of the Appeals Council, the Court will consider

whether, in rendering the May 1, 2018 decision, the ALJ complied with the

mandates found in the Second Remand Order only.

I. The ALJ committed a Stone error, but the error is harmless.

Plaintiff first argues the ALJ failed to apply the appropriate legal standard

in deciding whether Plaintiff’s impairments were “severe” at step two of the

analysis. Specifically, Plaintiff contends that the ALJ did not cite or otherwise set

forth the Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985) definition of “severe.” The

Court agrees; the ALJ applied the incorrect legal standard at step two of the

sequential evaluation, but because the error is harmless, remand is not required.

Under Stone, an impairment is not severe “only if it is a slight abnormality

having such minimal effect on the individual that it would not be expected to

interfere with the individual’s ability to work.” Stone, 752 F.2d at 1101 (citations

and alterations omitted). In fact, Stone requires a finding of “severe” if the

impairment interferes with an individual’s ability to work at all. Stephanie Z. v.

Berryhill, 2018 WL 4467470, at *3 (N.D. Tex. Sept. 18, 2018) (citing Scroggins v.

Astrue, 598 F. Supp. 2d 800, 805-06 (N.D. Tex. 2009); Morris v. Astrue, 2012 WL

4468185, at *5 (N.D. Tex. Sept. 4, 2012), adopted by 2012 WL 4466144 (N.D. Tex.

Sept. 27, 2012)). In the Fifth Circuit, a court assumes that the ALJ applied an

incorrect standard to the severity requirement unless the correct standard is set

forth by reference to Stone or by an express statement that ALJ used the

construction the Fifth Circuit gives to the severity requirement. Stone, 752 F.2d at

1106. Nevertheless, “[a] case will not be remanded simply because the ALJ did not

use ‘magic words.’” Hampton v. Bowen, 785 F.2d 1308, 1311 (5th Cir. 1986).

Remand is only required “where there is no indication the ALJ applied the correct

standard.” Id. The Commissioner may overcome the presumption that the ALJ

applied an incorrect severity standard by showing that, though not explicitly

stated, the ALJ applied the correct legal standard or by demonstrating that the

ALJ’s application of an improper standard was harmless. See Taylor v. Astrue, 706

F.3d 600, 603 (5th Cir. 2012) (per curiam) (citing Mays v. Bowen, 837 F.2d 1362,

1364 (5th Cir. 1988)).

Here, the ALJ did not cite Stone, and his articulation of the severity standard

is inconsistent with Stone. Indeed, the ALJ defines severe impairments as

“medically determinable impairments that significantly limit the claimant’s ability

to perform basic work activities.” A.R. 104 (citing SSR 85-28, 1985 WL 56856 (Jan.

1, 1985)). Stone disapproved of this very articulation of the severity standard.

Stone, 752 F.2d at 1104-05 & n.3; Mattie D. C. v. Berryhill, 2019 WL 1084185, at

*3 (N.D. Tex. Feb. 13, 2019), adopted by 2019 WL 1077372 (N.D. Tex. Mar. 7,

2019). Consequently, the Court assumes the ALJ applied an incorrect legal

standard at step two. Remand is not required, however, because the error is

harmless.

The Commissioner contends that the ALJ’s application of the incorrect

severity standard is harmless because the ALJ did not deny benefits at step two,

but instead proceeded through the remainder of the sequential evaluation process.

Resp. 3. “[T]he Fifth Circuit has held that [a] Stone error does not mandate

automatic reversal and remand, and application of harmless error analysis is

appropriate, in cases where the ALJ proceeds past step two of the sequential

evaluation process.” Hitchcock v. Berryhill, 2019 WL 1128866, at *7 (N.D. Tex.

Mar. 12, 2019) (citing Taylor, 706 F.3d at 603); see also Gibbons v. Colvin, 2013

WL 1293902, at *16 (N.D. Tex. Mar. 30, 2013 ) (finding Stone error harmless where

the ALJ considered the effects of the claimant’s impairments, including those that

were not severe, on his ability to work); Goodman v. Comm’r of Soc. Sec. Admin.,

2012 WL 4473136, at *10 (N.D. Tex. Sept. 10, 2012) (same), adopted by 2012 WL

4479253 (N.D. Tex. Sept. 28, 2012). But here, the ALJ proceeded beyond step two

and evaluated Plaintiff’s impairments’ impact on her ability to work only with

respect to the impairments he found severe. That the ALJ moved beyond step two

to the remainder of the sequential evaluation does not render the Stone error

harmless in this case. Rather, the Court concludes the error is harmless for the

reasons that follow.

Plaintiff contends that the ALJ should have found the following impairments

severe: (1) “depression, dizziness, forgetfulness, headache, loss of sleep, loss of

weight, nervousness, numbness in right leg, left shin, right hand, frequent

urination”; (2) morbid obesity; (3) diabetes; and (4) chronic kidney disease. Pl.’s

Br. 15. Plaintiff argues remand is required because medical records establish that

Plaintiff suffered from each of these impairments and Plaintiff testified that she

experiences them.

First, Plaintiff claims that the ALJ’s severity determination “implicitly

reject[ed] the opinion of Stella Nwankwo, MD, an examining SAMC, that [Plaintiff]

suffers from depression, dizziness, forgetfulness, headache, loss of sleep, loss of

weight, nervousness, numbness in right leg, left shin, right hand, [and] frequent

urination[.]” Pl.’s Br. 16. The ALJ is not required to cite and discuss every symptom

reflected in the medical records. See Smith v. Astrue, 2008 WL 5251782, at *4

(W.D. Miss. Dec. 17, 2008) (citing Flors v. Massanari, 2002 WL 100631, at *5

(S.D.N.Y. Jan. 25, 2002)); see also Gay v. Saul, 2020 WL 1158727, at *7 (N.D. Ohio

Mar. 10, 2020) (“An ALJ must ‘consider’ all of the available evidence, including a

claimant’s medical history, but there is no requirement that an ALJ recite every

symptom, complaint, or notation included in every medical record in the transcript

file.” (citing 20 C.F.R. § 416.929(a)). Nevertheless, the written decision shows that

the ALJ considered Plaintiff’s alleged mental impairments, including her diagnosis

for depression, and concluded that Plaintiff’s “medically determinable mental

impairments cause no more than ‘mild’ limitation in any of the functional areas[.]”

A.R. 105. Specifically, the ALJ determined Plaintiff had mild limitation in

understanding, remembering, or applying information, mild limitation in her

ability to concentrate, persist, or maintain pace, and no limitation in interacting

with others or adapting and managing herself. Id. And, to the extent Plaintiff’s

mental impairments contribute to her physical pain, the ALJ considered Plaintiff’s

pain in determining the overall RFC. Plaintiff does not point to any medical

evidence that her alleged mental impairments would prevent her from engaging in

substantial gainful activity, as found by the ALJ. Thus, any Stone error with respect

to Plaintiff’s alleged mental impairments is harmless. Remand is not required

because there is no evidence in the record that Plaintiff’s mental health claims are

severe enough to prevent her from holding substantial gainful employment.

Taylor, 706 F.3d at 603.

Second, Plaintiff argues that because Dr. Nwankwo and Judge Collins, the

ALJ who heard Plaintiff’s claim originally, both acknowledged that Plaintiff suffers

from morbid obesity, the ALJ should have found that Plaintiff’s morbid obesity is

a severe impairment. Pl.’s Br. 16. But Plaintiff advances no argument as to how her

morbid obesity affects her ability to work. Indeed, the ALJ acknowledged that there

“is no indication that the claimant’s obesity causes direct limitation of her ability

to perform basic work activities,” but nonetheless considered how her obesity “may

have contributed to and affected her other impairments” in both his step two

severity analysis and his RFC determination. A.R. 105.

Third, Plaintiff argues that her diabetes is uncontrolled and severe. Pl.’s Br.

17. But, in his severity determination, the ALJ notes that Plaintiff has “admitted to

noncompliance with prescribed behavioral changes, going so far as to state that

when she was compliant with such lifestyle changes, her blood sugar levels remain

controlled.” A.R. 104. The ALJ thus found that with greater compliance, Plaintiff

could avoid diabetes-related symptoms such as dizziness and inability to focus. Id.

An ALJ may rely upon the lack of treatment as an indication of nondisability. Villa

v. Sullivan, 895 F.2d 1019, 1024 (5th Cir. 1990). Plaintiff, pointing to a progress

note by John Sadler, PhD, contends that Dr. Sadler “implicitly ties [Plaintiff’s]

noncompliance [with insulin treatment for diabetes] with her mental state[.]” Pl.’s

Br. 17. But Plaintiff does not explain how this fact renders her diabetes severe, or

how it precludes the ALJ from considering noncompliance with treatment as an

indication of nondisability.

Finally, Plaintiff states that the “[m]edical records substantiate [her]

incontinence . . . [and] show[ she] suffers from stage 3 chronic kidney disease.” Id.

at 16. The record indeed reflects that (1) Plaintiff urinates frequently and (2) that

she has suffered from kidney stones and “simple cysts” on her kidneys, but

otherwise has had normal kidney ultrasounds. The Court notes, however, that at

the administrative hearing Plaintiff blamed her frequent urination on a medication

that helps alleviate her leg swelling, not on any sort of kidney disease. See, e.g.,

A.R. 304. In fact, when asked at the administrative hearing to describe the

impairments that affect her ability to work, Plaintiff did not mention any

impairment related to her kidneys. Although the ALJ has a duty to develop facts

fully and fairly, the duty “does not extend to possible disabilities that are not

alleged by the claimant or to those disabilities that are not clearly indicated on the

record.” Leggett v. Chater, 67 F.3d 558, 566 (5th Cir. 1995). And, as discussed

more fully below, the ALJ properly considered Plaintiff’s frequent urination in

accordance with the Second Remand Order.

For these reasons, Court finds Plaintiff has failed to demonstrate that the

ALJ would have reached a different conclusion regarding Plaintiff’s ability to work

if he had applied the correct severity standard. Accordingly, the Court concludes

that the ALJ’s failure to apply the correct severity standard was a harmless error.

If a Stone error is harmless, it is not reversible because “procedural perfection is

not required, and an adjudication of the Commissioner is not to be vacated unless

a substantial right of the claimant has been adversely affected,” for “the major

policy underlying the harmless error rule is to preserve judgments and avoid waste

of time.” Jones v. Astrue, 851 F. Supp. 2d 1010, 1015 (N.D. Tex. 2012) (brackets

and internal quotation marks omitted) (citing Mays, 837 F.2d at 1364).

II. The ALJ did not err with respect to the evaluation from

Dr. Wolski’s office; and even if the ALJ did err, his error was harmless.

Plaintiff also argues that the ALJ implicitly rejected the medical source

statement of Ed Wolski, MD, by failing to mention it at all, without considering the

appropriate factors. The Court disagrees that the portion of the record to which

Plaintiff refers constitutes a medical source statement. And, even if the portion of

the record at issue is a medical source statement, the Court concludes that the ALJ

was not required to evaluate the factors before rejecting it. The Regulations provide

six factors for an ALJ to consider in determining the degree of weight to afford a

medical source opinion. See 20 C.F.R. §§ 416.927(c), 404.1527(c); Bentley v.

Colvin, 2015 WL 5836029, at *8 (N.D. Tex. Sept. 30, 2015). The factors are: (1) the

length of the treatment relationship and the frequency of examination; (2) the

nature and extent of the treatment relationship; (3) the supportability of the

opinion by medical signs and laboratory findings; (4) the consistency of the

medical opinion with the record; (5) whether the medical opinion is one of a

specialist or not; and (6) any other factors the claimant or others bring to the

Commissioner’s attention. 20 C.F.R. §§ 416.927(c), 404.1527(c).3 Generally, the

ALJ is free to reject the opinion of any physician when the evidence supports a

contrary conclusion, but where the ALJ rejects the sole relevant medical opinion

before it, it must engage in a detailed analysis of the relevant factors. Newton v.

Apfel, 209 F.3d 448, 456 (5th Cir. 2000); Qualls v. Astrue, 339 F. App’x 461, 467

(5th Cir. 2009) (per curiam).

Plaintiff states that Dr. Wolski’s medical source statement can be found in

the Administrative Record at page 1092. At page 1092 is a “Functional Capacity

Evaluation Summary” prepared on May 4, 2010 stating that Plaintiff can

occasionally squat and bend, can never reach up, can occasionally lift/carry 12

pounds from the floor, can frequently lift/carry six pounds from the floor, and can

consistently lift/carry two pounds from the floor. A.R. 1092. The provider who

prepared the summary is Ismael Rodriguez, whose medical credentials are

unknown. See id. It appears that the evaluation may have been conducted at Dr.

Wolski’s practice, see id. at 1093, but the summary nowhere contains Dr. Wolski’s

signature.4 As it is unclear the medical credentials of Ismael Rodriguez, the Court

3 Section 416.927(c) applies in cases where the claimant seeks supplemental

security insurance, while § 404.1257(c) applies where the claimant seeks disability

insurance benefits. See 20 C.F.R. § 404.1527(b), (c); 20 C.F.R. § 416.927(b), (c).

The two provisions contain identical factors and require the same analysis. See

Bentley, 2015 WL 5836029, at * 6.

4 Even if Dr. Wolski did sign or otherwise adopt the summary, that would not

change the analysis. See Geraldine F. v. Saul, 2020 WL 1539629, at *4 (N.D. Tex.

Feb. 28, 2020) (noting that an acceptable medical source’s co-signing the opinion

of an “other source” does not affect the weight of the opinion), adopted by 2020

WL 1530743 (N.D. Tex. Mar. 30, 2020).

concludes the portion of the record to which Plaintiff points does not constitute a

medical source statement. See Thibodeaux v. Astrue, 324 F. App’x 440, 445 (5th

Cir. 2009) (per curiam) (holding that only acceptable medical sources can render

medical opinions); SSR 06-03p, 2006 WL 2329939 (Aug. 9, 2006) (noting that

acceptable medical sources include licensed physicians, psychologists,

optometrists, podiatrists, and qualified speech pathologists).

Moreover, the Court concludes that the ALJ was not required to engage in

an analysis of the regulatory factors with respect to the portion of the record at

issue because, to the extent it was a medical source statement, it was not the sole

medical source statement in the record. Indeed, the ALJ considered and afforded

no weight to the opinions of at least four other treating physicians, A.R. 112, and

considered and gave great weight to the opinions of two SAMCs, id. at 111. See also

Walker v. Colvin, 2014 WL 12539258, at *8 (W.D. Tex. Jan. 28, 2014) (finding no

Newton error where ALJ credited SAMC opinions over treating physician opinion

because rejected treating physician opinion was not the sole medical opinion in the

record). For these reasons, the Court concludes that the ALJ did not commit error

by failing to consider the portion of the record containing an evaluation by Ismael

Rodriguez.

To the extent the ALJ’s treatment of Ismael Rodriguez’s evaluation could be

considered error, it was harmless. The Functional Capacity Evaluation Summary

completed by Ismael Rodriguez indicates that Plaintiff was capable of satisfying

the physical demands of sedentary work. A.R. 1092. Sedentary work involves

lifting no more than 10 pounds at a time and occasionally lifting or carrying articles

such as docket files and small tools. 20 C.F.R. § 404.1567(a). See also 20 C.F.R.

§ 416.967(a) (same). In sedentary jobs, walking and standing are required only

occasionally. Id. The ALJ determined that Plaintiff was not disabled because she

could return to her past relevant work as a customer service representative—a

sedentary job. A.R. 113, 330; see also Dictionary of Occupational Titles § 241.367-

014, 1991 WL 672252 (customer-complaint clerk). Ismael Rodriguez’s assessment

of Plaintiff’s functional capacity is entirely consistent with the ALJ’s ultimate

conclusion.

III. The ALJ did not err by considering Plaintiff’s noncompliance with

diabetes treatment in determining the severity of her diabetes.

Plaintiff argues the ALJ committed error by implicitly determining that

Plaintiff’s noncompliance with medical treatment for her diabetes precluded a

finding of disability. Pl.’s Br. 24. It is Plaintiff’s position that the ALJ was required

to follow the procedure set forth in SSR 82-59 before finding Plaintiff not disabled

based on her failure to comply with medical treatment. Id. In particular, Plaintiff

contends that before a determination of noncompliance is made, the claimant must

be informed of the effect of noncompliance on his or her eligibility for benefits and

be afforded an opportunity to undergo the prescribed treatment or show justifiable

cause for failing to do so. Id. (citing SSR 82-59).

The Court assumes without deciding that it is error for an ALJ to find a

claimant “not disabled” based solely on her noncompliance with prescribed

medical treatment. See, e.g., Lindsey v. Astrue, 2011 WL 817173, at *8 (N.D. Tex.

Mar. 9, 2011) (finding error where the ALJ relied “almost exclusively” on

noncompliance with prescribed medical treatment and substance abuse in

determining RFC). Nonetheless, the ALJ did not commit error here because the

ALJ did not find Plaintiff not disabled based exclusively on her noncompliance

with medical treatment. Rather, the ALJ cited Plaintiff’s refusal to make certain

prescribed lifestyle changes as a factor in determining the severity of Plaintiff’s

diabetes. A.R. 104. The ALJ further notes that Plaintiff states that her blood sugar

levels remain controlled when she does adhere to the prescribed lifestyle changes.

Id.

Indeed, Plaintiff concedes that “[t]he ALJ never explicitly rules that

Plaintiff’s noncompliance with medical treatment . . . justifies a finding of not

disabled,” that it is clear that “noncompliance was an important factor in the

[d]ecision,” and that the ALJ determined that Plaintiff is not disabled “in part[,]

at least,” because she did not comply with medical treatment. Pl.’s Br. 24-25

(emphasis added). An ALJ is entitled to consider noncompliance with prescribed

medical treatment as a factor in the overall disability determination. Aguero v.

Saul, 2020 WL 1493551, at *7 (N.D. Tex. Mar. 26, 2020); Milligan v. Colvin, 2014

WL 7028038, at *8 (N.D. Tex. Dec. 12, 2014). See also Griego v. Sullivan, 940 F.2d

942, 945 (5th Cir. 1991) (“it [is] within the discretion of the ALJ to discount [the

plaintiff’s] complaints of pain based on[, among other things,] her decision to

forego certain medications.”); Johnson v. Comm’r of Soc. Sec. Admin., 2013 WL

632104, at *20-21 (N.D. Tex. Feb. 4, 2013) (distinguishing Lindsey and finding

that an ALJ may consider noncompliance with prescribed medical treatment as a

factor in assessing a claimant’s credibility), adopted sub nom. by Johnson v.

Astrue, 2013 WL 628561 (Feb. 20, 2013).

The Court concludes that the ALJ committed no error in considering

Plaintiff’s noncompliance with prescribed medical treatment as a factor in

determining the severity of Plaintiff’s impairments.

IV. The ALJ complied with the Appeals Council’s mandate to consider

the effects of Plaintiff’s medications on her ability to work.

Plaintiff also contends that the ALJ erred by failing to follow the Appeals

Council’s mandate to consider Plaintiff’s medication side effects. Pl.’s Br. 25. Under

the mandate rule, an ALJ “shall take any action that is ordered by the Appeals

Council and may take any additional action that is not inconsistent with the

Appeals Council’s remand order.” 20 C.F.R. § 404.977(b). The Court assumes

without deciding that an ALJ’s refusal to follow a remand order is error. Compare

Henderson v. Colvin, 520 F. App’x 268, 273 (5th Cir. 2013) (per curiam)

(“[A]lthough [the plaintiff] cites some case law for the proposition that failure to

comply with an Appeals Council order constitutes reversible error, none is

mandatory authority.”), with Rymer v. Colvin, 2013 WL 6869088, at *4 (N.D. Tex.

Dec. 30, 2013) (reversing and remanding on sole ground that the ALJ did not

follow a remand order). In any event, when an ALJ fails to follow a remand order,

remand is warranted only where the ALJ’s decision fails to apply the proper legal

standard or the decision is not supported by substantial evidence. Henderson, 520

F. App’x at 273; Payne v. Colvin, 2016 WL 5661647, at *8 n.6 (N.D. Tex. Sept. 28,

2016).

Here, the ALJ complied with the Second Remand Order, the relevant

remand order for this appeal, and there is no error. In the Second Remand Order,

the Appeals Council recognized that the prior hearing decision did not “reflect

consideration of the side effects of the claimant’s course of prescribed treatment,

in particular, the claimant’s blood pressure medications,” which cause her to take

frequent restroom breaks A.R. 617 (emphasis added). It further admonished that

the prior decision did “not discuss or evaluate the side effects of the claimant’s

medications or her need for more frequent restroom breaks,” and that such issue

warranted further consideration. Id. Accordingly, the ALJ noted in his

administrative decision that “although the claimant alleged increase in urinary

frequency such that she had to use the bathroom every 15-to-30 minutes, the

claimant herself expressly denied dysuria, urgency, hematuria, or any increase in

urinary frequency on a number of occasions[.]” Id. at 108. The Court concludes

that this finding by the ALJ satisfied his obligation under the remand order.

Plaintiff—conceding that the ALJ adequately considered her frequent urination in

accordance with the remand order—argues that because the ALJ did not consider

the side effects of all Plaintiff’s medications, he committed error. See Pl.’s Br. 26;

see also Reply 1 (ECF No. 19) (“The ALJ arguably considers the issue of urinary

frequency”).

The Court disagrees with Plaintiff that the Second Remand Order should be

interpreted to require the ALJ to consider all medication side effects. Indeed, the

Appeals Council explicitly cited Plaintiff’s frequent need to use the restroom as the

particular medication side effect of concern. And the ALJ satisfied the Second

Remand Order’s mandate to consider such a side effect by discussing Plaintiff’s

frequent urination and its effect on her ability to work. To hold that the Second

Remand Order required the ALJ to consider the side effects of all Plaintiff’s

medications would interpret it too broadly.5 For this reason, the ALJ did not err

with respect to the mandates of the Second Remand Order.

Even if the ALJ erred, however, Plaintiff failed to show the error was not

harmless. Jarrett v. Colvin, 2014 WL 1281293, at *13 (N.D. Tex. Mar. 31, 2014)

(applying harmless error analysis to the ALJ’s failure to properly evaluate the side

effects of medication). She has not shown that any of the alleged side effects

prevent her from being able to return to work as a customer service representative.

V. The ALJ has not committed a Ripley error,

and the RFC is supported by substantial evidence.

Finally, Plaintiff argues that the ALJ’s determination that she has the RFC

to stand and/or walk up to two hours per eight-hour workday is not reflected in

the opinion of any SAMC or treating doctor, indicating that the ALJ arrived at such

an RFC by engaging in his own analysis of the medical evidence in violation of

5 Plaintiff also states in passing that the Second Remand Order “specifically notes

as an issue to be decided on remand, the effects of [Plaintiff’s] depression on her

RFC.” Pl.’s Br. 16. This is inaccurate. See A.R. 617-18.

Ripley v. Chater. Accordingly, Plaintiff contends that the RFC is not supported by

substantial evidence.

The ALJ has not committed an error with respect to his finding that Plaintiff

can stand and/or walk two hours per eight-hour workday. The Court assumes

without deciding that it would be error under Ripley for the ALJ to conclude that

Plaintiff could stand and/or walk two hours per eight-hour workday without a

medical opinion in the record to that effect. Nonetheless, no Ripley error has

occurred. The opinions of SAMCs Dr. Ward and Dr. Durfor find that Plaintiff can

stand and/or walk at least two hours per eight-hour workday.6 A.R. 111, 1330. An

ALJ may meet the requirements under Ripley by relying on an SAMC’s findings.

Coffelt v. Berryhill, 2017 WL 6508993, at *4 (N.D. Tex. Nov. 1, 2017), adopted by

2017 WL 6498009 (N.D. Tex. Dec. 19, 2017); see also Young v. Berryhill, 2017 WL

946323, at *12 (N.D. Tex. Feb. 13, 2017) (“Because the ALJ relied on the medical

opinions of [the SAMCs] to determine Plaintiff’s limitations, he did not

independently decide the effects of Plaintiff’s impairments[.]”), adopted by 2017

WL 931228 (N.D. Tex. Mar. 9, 2017).

6 Plaintiff posits that the ALJ “mistakenly states that Dr. Ward and Dr. Durfor

conclude that [Plaintiff] can stand and walk 2 of 8 hours” when their opinion

actually states that Plaintiff “can stand and walk 4 of 8 hours.” Pl.’s Br. 11. Dr.

Ward’s opinion—which Dr. Durfor affirms—clearly indicates that Plaintiff can

stand and/or walk at least two hours, but not up to six hours, in an eight-hour

workday. A.R. 1330 (emphasis added). In any event, the SAMCs’ collective opinion

supports the RFC that Plaintiff can stand and/or walk two hours per eight-hour

workday.

Nevertheless, the Court finds that the ALJ’s RFC is supported by substantial

evidence. “It is the responsibility of the ALJ to interpret ‘the medical evidence to

determine [a claimant’s] capacity for work.’” Fontenot v. Colvin, 661 F. App’x 274,

277 (5th Cir. 2016) (per curiam) (quoting Taylor, 706 F.3d at 603). “[T]he ALJ is

entitled to determine the credibility of medical experts as well as lay witnesses and

to weigh their opinions and testimony accordingly.” Id. (brackets in original)

(quoting Moore v. Sullivan, 919 F.2d 901, 905 (5th Cir. 1990) (per curiam)). “If

supported by substantial evidence, the Commissioner’s findings are deemed

conclusive, and the court must accept them.” Jones, 851 F. Supp. 2d at 1015 (citing

Richardson, 402 U.S. at 390). Substantial evidence in this context “means such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Richardson, 402 U.S. at 401 (citation omitted).

Here, substantial evidence supports Plaintiff’s RFC. As stated above, the ALJ

found that Plaintiff has the RFC to perform light work, except that she can “stand

and/or walk for up to [two] hours total per [eight]-hour workday,” “cannot [c]limb

ladders, ropes, or scaffolds, but can occasionally climb ramps and stairs,” “can

occasionally balance, stoop, kneel, and crouch,” and “can perform only occasional

overhead reaching with the dominant upper extremity.” A.R. 107. In making his

RFC determination, the ALJ relied on objective medical evidence, opinion

evidence, and Plaintiff’s own testimony and functional reports. In particular, the

ALJ gave the opinion of SAMCs Dr. Durfor and Dr. Ward “great weight”; they

found that Plaintiff can occasionally lift 20 pounds and frequently lift 10 pounds;

stand/and or walk for up to two hours in an eight-hour workday; can sit up for six

hours in in eight-hour workday; can never climb ladders, ropes, or scaffolds; can

only occasionally reach overhead with her right arm; and can balance, stoop, kneel,

crouch, and crawl. Id. at 111, 1330-32. The RFC mirrors these SAMC findings.

But the ALJ did not base his RFC determination on Dr. Ward’s and Dr.

Durfor’s opinion alone. The ALJ’s RFC assessment also considered objective

physical examinations of record which revealed, among other things, (1) normal

musculoskeletal function; (2) “generally mild findings of disorder that would not

be expected to cause symptoms” in Plaintiff’s right knee; and (3) normal strength

in Plaintiff’s extremities. Id. at 108. Moreover, the ALJ relied on Plaintiff’s own

most recent functional report and found that she reported partaking in many

activities of daily living that are inconsistent with her alleged symptoms. Id. For

example, the ALJ cited Plaintiff’s statement in her functional report that she is able

to, and typically does, prepare her own simple meals daily; perform household

chores such as laundry, dishes, and light cleaning; leave home two to four days per

week, including alone; drive and ride in a car; and handle money without issue. Id.

at 108-09, 1028-31. The Court concludes that these pieces of evidence from the

record that the ALJ relied upon in reaching the RFC constitute “more than a mere

scintilla” of evidence because a reasonable mind would accept them as adequate to

support the RFC determination. Richardson, 402 U.S. at 401.

The ALJ did not commit a Ripley error, and the RFC determination is

supported by substantial evidence.

Conclusion

For the foregoing reasons, the hearing decision of the ALJ is AFFIRMED in

all respects.

SO ORDERED.

May 20, 2020.

TT ()

CY iJ

REBECCA RUTHERFORD

UNITED STATES MAGISTRATE JUDGE

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