Allen v. Commissioner, Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ANTONIO A., §

§

Plaintiff, §

§

v. § Case No. 3:23-cv-00449-BT

§

MARTIN J. O’MALLEY, §

COMMISSIONER OF SOCIAL §

SECURITY, §

§

Defendant.1 §

MEMORANDUM OPINION AND ORDER

Before the Court is Plaintiff Antonio A.’s2 civil action seeking judicial review

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

Social Security. (ECF No. 1). For the reasons explained below, the Commissioner’s

decision is REVERSED.

Background

Plaintiff alleges that he is disabled due to gout, back problems, obesity,

vision loss, high blood pressure, high cholesterol, and headaches. Admin. R. 82,

1 Martin O’Malley became the Commissioner of Social Security on December 20,

2023. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Martin

O’Malley should be substituted for Kilolo Kijakazi as the defendant in this suit. No

further action need be taken to continue this suit by reason of the last sentence of

section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

2 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.

229 (ECF No. 10-1).3 Plaintiff was born in 1981 and alleges an amended disability

onset date of December 11, 2021. Id. at 31, 48. Plaintiff has at least a high school

education. Id. at 31, 230.

On April 28, 2021, Plaintiff applied for disability insurance benefits (DIB)

and supplemental security income (SSI) under Titles II and XVI of the Social

Security Act (the “Act”). Id. at 100. His claims were denied initially and upon

reconsideration. Id. at 87, 98, 130-39, 141-46. Thereafter, Plaintiff requested a

hearing before an Administrative Law Judge (ALJ), who conducted an online video

hearing on October 6, 2022.4 Id. at 46-80.

On November 10, 2022, the ALJ issued a decision finding that Plaintiff has

not been under a disability within the meaning of the Act from his alleged amended

onset date through the date of the decision, and thus he is not entitled to DIB or

SSI. Id. at 25, 32. As an initial matter, the ALJ found that Plaintiff met the insured

status requirements under the Act though December 31, 2023. Id. at 26. Utilizing

the five-step sequential evaluation,5 the ALJ first found that Plaintiff had not

3 Citations to the record refer to the CM/ECF page numbers at the top of each page

rather than page numbers at the bottom of each filing.

4 Because of the extraordinary circumstances presented by the COVID-19

pandemic, the ALJ conducted the hearing by video.

5 “In evaluating a disability claim, the [ALJ] conducts a five-step sequential

analysis to determine whether (1) the [plaintiff] is presently working; (2) the

[plaintiff] 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 [plaintiff] from doing past relevant work; and (5) the

impairment prevents the [plaintiff] from doing any other substantial gainful

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

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

engaged in substantial gainful activity since December 11, 2021, his alleged

amended onset date. Id. at 26. At the second step, the ALJ noted that Plaintiff

experienced severe impairments of “ruptured quadriceps tendon s/p surgery;

keratoconus; and obesity.” Id. at 26. At the third step, the ALJ determined that

Plaintiff’s impairments did not meet or medically equal any listed impairment in

appendix 1 of the social security regulations. Id. at 28-29.

Before proceeding to step four, the ALJ found that Plaintiff has the RFC:

to perform less than the full range of sedentary work . . . ; he has the

ability to lift, carry, push, and/or pull 10 pounds occasionally and less

than 10 pounds frequently, stand and/or walk 2 hours of an 8-hour

day, and sit 6 hours of an 8-hour day. Claimant can less than

occasionally climb, balance, stoop, kneel, crouch, and crawl. Claimant

can perform work occasionally requiring far visual acuity and/or

visual accommodation. Claimant is able to avoid ordinary hazards.

Claimant cannot work around moving mechanical parts or

unprotected heights.

Id. at 29.

Next, the ALJ found that “[t]ransferability of job skills is not material to the

determination of disability because using the Medical-Vocational Rules as a

framework supports a finding that the claimant is ‘not disabled,’ whether or not

the claimant has transferrable job skills.” Id. at 31.

the analysis; at the fifth step, the burden shifts to the ALJ to show that there is

other substantial work in the national economy that the plaintiff can perform. Id.

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

A finding that the plaintiff 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)).

Finally, relying on the testimony of a vocational expert, at step five, the ALJ

determined that Plaintiff had the ability to perform the jobs of order clerk,

document preparer, and table worker, and that such jobs existed in significant

numbers in the national economy. Id. at 32-33.

Plaintiff appealed the ALJ’s decision to the Appeals Council. Id. at 6. The

Appeals Council found that the appeal did not provide a basis for modifying the

ALJ’s decision. Id. at 6-10. Plaintiff then filed this action in federal district court.

Legal Standard

The Court’s “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 [ALJ] applied the proper legal standard.’”

Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014) (quoting Perez v. Barnhart,

415 F.3d 457, 461 (5th Cir. 2005)). 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); see Copeland, 771 F.3d at 923 (“Substantial evidence is more than a mere

scintilla and less than a preponderance.”).

The ALJ, and not the courts, resolves conflicts in the evidence; 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). Hence, the Court may not substitute its

own judgment for the ALJ’s, and it may affirm only on the grounds that the

Commissioner stated to support his decision. Copeland, 771 F.3d at 923. If the

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

conclusive, and the Commissioner’s decision must be affirmed. Martinez, 64 F.3d

at 173. A reviewing court must defer to the ALJ’s decision when substantial

evidence supports it, even if the court would reach a different conclusion based on

the evidence in the record. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).

Nevertheless, the substantial evidence review is not an uncritical “rubber

stamp” and requires “more than a search for evidence supporting the [ALJ’s]

findings.” Hill v. Saul, 2020 WL 6370168, at *6 (N.D. Tex. Sept. 29, 2020) (quoting

Martin v. Heckler, 748 F.2d 1027, 1031 (5th Cir. 1984)), adopted by 2020 WL

6363878 (N.D. Tex. Oct. 29, 2020) (Lindsay, J.). The Court “must scrutinize the

record and take into account whatever fairly detracts from the substantiality of the

evidence supporting” the ALJ’s decision. Id. (quoting Martin, 748 F.2d at 1031). A

no-substantial-evidence finding is appropriate only if there is a “conspicuous

absence of credible choices” or “no contrary medical evidence.” Id. (citation

omitted).

Analysis

The central issue presented is whether the ALJ’s RFC determination was

supported by substantial evidence. As his sole point of error, Plaintiff contends that

the “ALJ’s RFC determination is unsupported by substantial evidence because he

constructed the RFC out of whole cloth.” Pl.’s Brief 10 (ECF No. 16). Specifically,

Plaintiff argues that “[b]ecause the ALJ had no medical opinions in the record that

he found persuasive, and no opinions at all on Plaintiff’s visual limitations from his

keratoconus, there is effectively no evidence from which the ALJ could build a

logical bridge to determine Plaintiff’s RFC.” Id. Plaintiff further contends that “it

was incumbent that the ALJ obtain a medical expert opinion on how Plaintiff’s

keratoconus impacts his ability to work [and] the ALJ was not permitted to insert

his own guess at what Plaintiff’s RFC visual limitations require.” Id. at 14.

In response, the Commissioner contends that “substantial evidence of

record supports [the ALJ’s] decision” and the ALJ “applied proper legal standards

in reaching this decision.” Def.’s Br. 5 (ECF No. 18). The Commissioner also argues

that “[w]hat Plaintiff characterizes as the ALJ’s impermissible interpretation of

raw medical data is actually the ALJ properly interpreting the medical evidence to

determine Plaintiff’s capacity for work.” Id. at 4.

RFC is the most that a person can still do despite recognized limitations. 20

C.F.R. § 404.1545(a)(1). The RFC determination is a “combined medical

assessment of an applicant’s impairments with descriptions by physicians, the

applicant, or others of any limitations on the applicant’s ability to work.” Hill, 2020

WL 6370168, at *6 (cleaned up) (quoting Hollis v. Bowen, 837 F. 2d 1378, 1386-

87 (5th Cir. 1988) (per curiam)). It “is an assessment of an individual’s ability to

do sustained work-related physical and mental activities in a work setting on a

regular and continuing basis.” Social Security Ruling (SSR) 96-8p, 1996 WL

374184, at *1 (S.S.A. July 2, 1996). An individual’s RFC should be based on all of

the relevant evidence in the case record, including opinions submitted by treating

physicians or other acceptable medical sources. 20 C.F.R. at § 404.1545(a)(3)

(2012); SSR 96-8p, 1996 WL 374184, at *1.

The ALJ is responsible for assessing a claimant’s RFC. 20 C.F.R. §§

404.1546(c), 416.946(c). In making that assessment, the ALJ considers not only

medical opinions but all of the relevant medical and other evidence. 20 C.F.R. §§

404.1513(a), 416.945(a)(3). In this context, evidence is anything the claimant or

anyone else submits or that the ALJ obtains relating to the claim. 20 C.F.R. §§

404.1513(a), 416.913(a). The ALJ “has the authority and duty to weigh the evidence

and reach any conclusion supported by substantial evidence.” Gonzales v. Astrue,

231 F. App’x 322, 324 (5th Cir. 2007) (per curiam).

After reviewing the hearing decision and the administrative record, the

Court finds that the ALJ’s RFC determination is not supported by substantial

evidence.

Here, the ALJ determined Plaintiff to have the RFC to “perform less than the

full range of sedentary work . . . [assessed ] as the ability to lift, carry, push, and/or

pull 10 pounds occasionally and less than 10 pounds frequently, stand and/or walk

2 hours of an 8-hour day, and sit 6 hours of an 8-hour day.” Admin. R. 29. He

further limited Plaintiff’s RFC, determining he can “less than occasionally climb,

balance, stoop, kneel, crouch, and crawl.” Id. With respect to Plaintiff’s medically

determinable vision impairment, the ALJ limited Plaintiff to “work occasionally

requiring far visual acuity and/or visual accommodation.” Id. And, he found that

although Plaintiff “is able to avoid ordinary hazards[,] [he] cannot work around

moving mechanical parts or unprotected heights.” Id.

In explaining how he came to this determination, the ALJ points to

Plaintiff’s hearing testimony and objective medical evidence in the record. Id. at

29-31. He summarized the hearing testimony as follows:

At the hearing, claimant testified that he cannot really drive because

of his vision and his knee. He has double vision and his eyes blur. His

knee is still not normal. It buckles and hurts and wakes him from his

sleep. He does not use a brace or cane. He keeps his right eye closed

most of the time. He is able to avoid hazards. He drives 5 to 10 times

per week to take his roommate’s kids to school and pick them up. He

can sit 20 to 30 minutes. He can lift 50 to 70 pounds but cannot walk

very far with it and would have to rest in between doing that. His leg

just buckles when he is walking and has caused him to fall. He last fell

about 2 months ago.

Id. at 30 (citing hearing testimony).

With respect to his vision, the ALJ noted:

Claimant saw optometrist, David Dinh, in May 2022, complaining of

dirty contacts throughout the day causing him to take them out and

clean them three times per day. He was also having problems with

glare. At the conclusion of the appointment, Dr. Dinh noted that

claimant’s visual acuity with lenses was 20/20 in both eyes.

Id. at 31 (citing Exhibit 23F/5-6). He noted that Plaintiff “underwent a right

corneal transplant in August 2022.” Id. (citing Exhibit 26F/22-23). He also noted

that “[a]dditional treatment was received in August and later.” Id. at 29 (citing

Exhibit 27F). He noted that Plaintiff “testified at the hearing that this was meant

to slow the progression and his vision could possibly improve [and that] he still

drives 5 to 10 times per week, indicating that his vision is satisfactory to do so.” Id.

(citing Hearing Testimony).

The ALJ then concluded, “[a]fter careful review of the evidence,” Plaintiff’s

“medically determinable impairments could reasonably be expected to cause some

of the alleged symptoms,” but his “statements concerning the intensity,

persistence, and limiting effects of these symptoms are not entirely consistent with

the medical evidence” and other evidence in the record. Id. at 30.

Further, the ALJ determined that the state agency medical consultants’

opinions6—that Plaintiff could perform work at the light exertional level with

limitations in climbing, performing postural activities, and exposure to

environmental conditions, and with no visual limitations—were “partially

persuasive,” noting that “evidence received at the hearing level supports more

limitation.” Id. at 31. On that basis, the ALJ determined that Plaintiff’s RFC should

also include additional postural limitations and limitations arising from Plaintiff’s

vision impairment.

Under the current regulations, ALJs do “not defer or give any specific

evidentiary weight, including controlling weight, to any medical opinion(s) or prior

administrative medical finding(s).” 20 C.F.R. § 404.1520c(a); accord Winston v.

Berryhill, 755 F. App’x 395, 402 n.4 (5th Cir. 2018) (citation omitted).

6 State agency medical consultants, on initial review and reconsideration, opined

that Plaintiff could perform light work, with limitations in climbing, performing

postural activities, and exposure to environmental conditions, and had no visual

limitations. Admin. R. 94, 105, 114.

“There is no requirement that an ALJ’s RFC finding must mirror or match a

medical opinion.” Nic R. v. Kijakazi, 2023 WL 2529930, at *3 (N.D. Tex. Feb. 21,

2023) (citation omitted) (Rutherford, J.), adopted by 2023 WL 2531492 (N.D. Tex.

Mar. 15, 2023). “Even the absence of medical opinions does not necessarily render

a record inadequate to support an ALJ’s RFC determination.” Id. at *5 (citing

Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995) and Joseph-Jack v. Barnhart,

80 F. App’x 317, 318 (5th Cir. 2003) (per curiam)). But “as a non-medical

professional, the ALJ is not permitted to ‘draw his own medical conclusions from

some of the data, without relying on a medical expert’s help.’” Kenneth S. v. Saul,

2019 WL 3881618, at *5 (N.D. Tex. July 31, 2019) (Horan, J.) (quoting Frank v.

Barnhart, 326 F.3d 618, 621-22 (5th Cir. 2003)), adopted by 2019 WL 3859653

(N.D. Tex. Aug. 15, 2019). ALJs must resist the urge to “play[ ] doctor” and make

independent assessments of raw medical data. Id. at *7 (citation omitted). This is

because “[c]ommon sense can mislead” and “lay intuitions about medical

phenomena are often wrong.” Frank, 326 F.3d at 622 (citation omitted).

In Ripley, the Fifth Circuit observed that the record included “a vast amount

of medical evidence establishing that [the claimant] ha[d] a problem with his

back,” but it did “not clearly establish” what effect that “condition had on his ability

to work.” 67 F.3d at 557. In addition to lacking “reports from qualified medical

experts” regarding the claimant’s ability to work, “[t]he only evidence regarding

[the claimant’s] ability to work came from [his] own testimony.” Id. at 557. Thus,

substantial evidence did not support the ALJ’s RFC determination because the

court could not “determine the effects of [the claimant’s] conditions, no matter

how ‘small,’ on his ability to . . . work.” Id. at 557 & n.27. Later discussing Ripley,

the Fifth Circuit reaffirmed that “an ALJ may not—without opinions from medical

experts—derive the applicant’s [RFC] based solely on the evidence of his or her

claimed medical conditions.” Williams v. Astrue, 355 F. App’x 828, 832 n.6 (5th

Cir. 2009) (per curiam) (citation omitted). In Williams, the court held that “the

ALJ impermissibly relied on his own medical opinions as to the limitations

presented by” the claimant’s conditions because there was “no evidence supporting

the ALJ’s finding that” she “could perform light work with [those] conditions.” Id.

at 831-32.

Instead, the ALJ should request a “medical source statement” describing

types of work the claimant is still capable of performing despite his condition.

Ripley, 67 F.3d at 557. Absent such a statement, there is typically insufficient

evidence to support an RFC determination. Id. at 557-58 (remanding the case with

instructions to obtain a report from a treating physician regarding effects of the

plaintiff’s condition on his ability to work).

In this case, the ALJ determined that visual limitations were warranted. But

the record is devoid of any medical expert opinion on what those specific

limitations should be. The ALJ crafted Plaintiff’s RFC based on his own

determination of what Plaintiff’s visual impairment required. No treating,

examining, or consultative source offered any opinion on the effect Plaintiff’s

keratoconus—a complicated eye condition—had on his ability to work. The ALJ

improperly relied on his own interpretation of the raw medical data and Plaintiff’s

testimony.

While the RFC is ultimately the ALJ’s determination, under these

circumstances, there is no foundational basis for the ALJ’s RFC. An ALJ cannot

look to only the claimant’s “history of surgery, medical examinations, and

complaints of pain,” and conclude the claimant can perform sedentary work.

Ripley, 67 F.3d at 557. In doing so, “the ALJ relied on evidence that merely

describes Plaintiff’s conditions, rather than demonstrating her ability to work

despite those impairments.” Amy Y. v. Comm’r of Soc. Sec., 2023 WL 5209813, at

*7 (N.D. Tex. July 25, 2023) (finding error where, in the absence of medical

opinions and RFC assessments by state agency consultants, the ALJ made an RFC

determination based on medical conclusions he drew from the raw data), adopted

by 2023 WL 5216497 (N.D. Tex. Aug. 14, 2023); see also Cary G. T. v. Comm’r,

Soc. Sec. Admin., 2022 WL 954341, at *3 (N.D. Tex. Mar. 29, 2022) (Toliver, J.)

(concluding that although “the RFC is ultimately the ALJ’s determination,” the ALJ

erred because there was no apparent “foundational basis for that decision” where

“no treating, examining, or consultative resource reviewed the impact of

[p]laintiff’s conditions on his ability to work”); Jim S. v. Saul, 2019 WL 4694943,

at *9 (N.D. Tex. Sept. 25, 2019) (Ramirez, J.) (finding error where, despite the

voluminous progress reports, clinical notes, and lab reports in evidence, “none

[made] any explicit or implied reference to the effects these conditions h[ad] on

claimant’s ability to work” and the ALJ could not rely on that “raw medical

evidence as substantial support for” the claimant’s RFC).

Here, as in the cases cited directly above, there are no medical opinions in

the record regarding the effects of Plaintiff’s visual impairments on his ability to

work. And as in those cases cited above, here, the Court can only conclude that the

ALJ relied on his own interpretation of the medical and other evidence, which he

may not do. See Williams, 355 F. App’x at 832 n.6. (“An ALJ may not–without the

opinions from medical experts–derive the applicant’s [RFC] based solely on the

evidence of his or her claimed medical conditions, [and] an ALJ may not rely on

his own unsupported opinion as to the limitations presented by the applicant’s

medical conditions.”).

Because “[p]rocedural perfection in administrative proceedings is not

required” and a court “will not vacate a judgment unless the substantial rights of a

party have been affected,” Plaintiff must show he was prejudiced by the ALJ’s

failure to rely on medical opinion evidence in assessing his RFC. See Mays v.

Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988) (per curiam). To establish prejudice,

he must show that the ALJ’s failure to rely on a medical opinion as to the effects

that his visual impairments had on his ability to work casts doubt on the existence

of substantial evidence supporting the disability determination. See McNair v.

Comm’r of Soc. Sec. Admin., 537 F. Supp. 2d 823, 837 (N.D. Tex. 2008)

(“Procedural errors in the disability determination process are considered

prejudicial when they cast doubt onto the existence of substantial evidence in

support of the ALJ’s decision.”) (citing Morris v. Bowen, 864 F.2d 333, 335 (5th

Cir. 1988)).

“Courts in the Northern District have found that the ALJ’s failure to rely on

a medical opinion concerning the claimant’s RFC necessarily casts doubt on the

disability determination.” Amy Y., 2023 WL 5209813, at *7 (collecting cases); see

also Cary G. T., 2022 WL 954341, at *4 (finding prejudice and remanding where

the administrative record revealed no treating, examining, or consultative resource

that reviewed the impact of Plaintiff’s conditions on his ability to work, and ALJ

assessed RFC based on his own lay interpretation of medical records and

claimant’s testimony); Jim S., 2019 WL 4694943, at *10 (finding prejudice and

remanding where there were no medical opinions in the record regarding the

effects Plaintiff’s mental impairments had on his ability to work, and the ALJ

appeared to have relied on his own interpretation of the medical and other

evidence); Tyria R. v. Saul, 2020 WL 10050779, at *13 (N.D. Tex. March 6, 2020)

(Ramirez, J.) (finding prejudice and reversing and remanding for further

proceedings for lack of substantial evidence because of the ALJ’s failure to rely on

a medical opinion in determining the plaintiff’s RFC), adopted by 2020 WL

1434516 (Mar. 20, 2020); Thornhill v. Colvin, 2015 WL 232844, at *11 (N.D. Tex.

Dec. 15, 2014) (finding prejudice and remanding “where the ALJ could have

obtained evidence that might have changed the result—specifically, a medical

source statement”).

As in these cases, the Court concludes that the ALJ’s error was not harmless

and remand is required on this issue.

Conclusion and Order

For the reasons stated, the Court REVERSES the Commissioner’s decision

and REMANDS the case to the Commissioner for further proceedings.

SO ORDERED.

February 7, 2024.

ai —

UNITED STATES*MAGISTRATE JUDGE

15