Ojeda v. O'Malley, Commissioner of the Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

DEBRA OJEDA, §

PLAINTIFF, §

VS. : CIVIL ACTION NO. 3:24-CV-00431-BJ

COMMISIONER OF :

SOCIAL SECURITY, §

DEFENDANT. §

MEMORANDUM OPINION AND ORDER

I. STATEMENT OF THE CASE

Plaintiff Debra Ojeda (“Ojeda”) filed this action pursuant fo Sections 405(g) and

1383(c)(3) of Title 42 of the United States Code for judicial review of a final decision of the

Commissioner of Social Security denying her claims for disability insurance benefits (“DIB”) and

supplemental security income (“SSI”) under Titles I] and XVI of the Social Security Act (“SSA”).

Ojeda protectively applied for DIB on August 24, 2021, alleging that she became disabled on June

11, 2021. (Transcript (“Tr.”) 201-16). On August 10, 2022, Ojeda protectively filed for SSI,

alleging the same onset date of disability. (Tr. 217). After her applications for benefits were

denied both initially and on reconsideration, Ojeda requested a hearing before an Administrative

Law Judge (“ALJ’). (Tr. 103-12, 122-29, 130-31}. The ALJ held a hearing by telephone on

September 5, 2023, and issued an unfavorable decision on October 10, 2023. (Tr. 11-32, 33-62).

On January 18, 2024, the Appeals Council denied Ojeda’s request for review, leaving the ALJ’s

decision as the final decision of the Commissioner in this case. (Tr. 1-6). Ojeda subsequently

filed this civil action seeking review of the ALJ’s decision. (ECF No. 1).

II. STANDARD OF REVIEW

Disability insurance is governed by Title I, 42 U.S.C. § 404 et seg. of the SSA. In addition,

numerous regulatory provisions govern disability insurance benefits. See 20 C.F.R. Pt. 404.

Supplemental security income is governed by Title XVI, 42 U.S.C. § 416 ef seg. of the SSA, in

addition to numerous regulatory provisions, See 20 C.F.R. Pt. 416. Although technically governed

by different statutes and regulations, “[t]he law and regulations governing the determination of

disability are the same for both disability insurance benefits and SSI.” Greenspan y. Shalala, 38

F.3d 232, 236 (Sth Cir, 1994).

The SSA defines “disability” as a “medically determinable physical or mental impairment”

lasting at least twelve months that prevents the claimant from in engaging in substantial or gainful

activity. 42 U.S.C. §§ 423(d), 1382c(a\G)(A); McQueen v. Apfel, 168 F.3d 152, 154 Gth Cir.

1999). To determine whether a claimant is disabled, and thus entitled to disability benefits, a five-

step analysis is employed. 20 C.F.R. § 404.1520(4). First, if a claimant is presently engaging in

any substantial gainful activity, a finding of not disabled will be made. fd Substantial gainful

activity is defined as work activity involving the use of significant physical or mental abilities for

pay or profit. 20 C.F.R. § 404.1572. Second, the claimant must have an impairment or

combination of impairments that is considered “severe.” 20 C.F.R. § 404.1520(c); see also Stone

v, Heckler, 752 F.2d 1099, 1101 (Sth Cir. 1985), cited in Loza v. Apfel, 219 F.3d 378, 392 (Sth Cir.

2000). Third, disability will be found if the impairment or combination of impairments “meets or

equals” an impairment listed in the Listing of Impairments (“Listing”), 20 C.F.R. Pt. 404, Subpt.

P, App. 1. 20 C.F.R. § 404.1520(d). Fourth, if disability cannot be found based on the claimant’s

medical status alone, it must be determined whether the impairment or combination of impairments

prevent the claimant from returning to the claimant’s past relevant work. 20 C.F.R. §§

404.1520(a)(4\(iv), (D. At the fifth and final step, the impairment or impairments must prevent

the claimant from doing any other work, considering the claimant’s residual functional capacity

(“RFC”), age, education, and past work experience. /d. §§ 404,1520(g), 416.920(f); see also

Crowley v. Apfel, 197 F.3d 194, 197-98 (Sth Cir. 1999), At steps one through four, the burden of

proof rests upon the claimant to show she is disabled. Crowley, 197 F.3d at 198. If the claimant

satisfies this responsibility, the burden shifts to the Commissioner to show that there is other

gainful employment the claimant can perform despite her existing impairments. /d. If the

Commissioner meets this burden, the burden of proof shifts back to the claimant to rebut the

Commissioner’s findings. Jd.

A denial of disability benefits is reviewed only to determine whether the Commissioner

applied the correct legal standards and whether the decision is supported by substantial evidence

in the record as a whole. Leggett v. Chater, 67 F.3d 558, 564 (Sth Cir. 1995); Hollis v. Bowen,

837 F.2d 1378, 1382 (Sth Cir. 1988). Substantial evidence is such relevant evidence as a

reasonable mind might accept to support a conclusion. Boyd vy. Apfel, 239 F.3d 698, 704 (Sth Cir.

2001). It is more than a mere scintilla of evidence, but less than a preponderance. /d. A finding

of no substantial evidence is appropriate only ifno credibly evidentiary sources or medical findings

support the decision. Jd. The Court may neither reweigh the evidence in the record nor substitute

its judgment for the Commissioner’s, but it will scrutinize the record to determine if the evidence

is present. Harris v. Apfel, 209 F.3d 413, 417 (Sth Cir. 2000); Hollis, 837 F.2d at 1383.

' There are four elements of proof that must be weighed in determining whether substantial evidence of

disability exists: (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.

See Wren v. Sulfivan, 925 F.2d 123, [26 (Sth Cir. 1991).

Ili. ISSUES

In her brief, Ojeda presents the following issues:

1. Whether the ALJ failed to apply the appropriate legal standard at Step Two; and

2. Whether the ALJ’s RFC determination is fatally flawed because it is not supported

by substantial evidence.

(Plaintiff's Brief (“PL’s Br.”) at 1).

IV. ALJ DECISION

In his October 10, 2023 decision, the ALJ found that Ojeda met the insured status

requirements of the SSA through June 30, 2026, and had not engaged in substantial gainful activity

since June 11, 2021, the alleged onset date of Ojeda’s disability. (Tr. 16). At Step Two, the ALJ

found that the claimant had the following severe impairments: “major depressive disorder; and

generalized anxiety disorder.” (Tr. 17 (emphasis omitted)). The ALJ considered and determined

that the following impairments were not severe: prior history of heart failure, hypertension,

hyperlipidemia, diabetes mellitus, gout, obesity, and arthritis. (Tr. 17-18). Next, at Step Three,

the ALJ determined that the claimant did not have an impairment or combination of impairments

that met or was medically equivalent to the severity of one of the impairments in the Listing. (Tr.

18-20.) As to the claimant’s RFC, the ALJ stated:

After careful consideration of the entire record, the undersigned

finds that the claimant has the residual functional capacity to perform a full-

range of work at all exertional levels with the following non-exertional

limitations: she can understand, remember, and carry out instructions that

are detailed but not complex, make related decisions, and attend and

concentrate for extended periods; she can adapt to occasional change in a

routine work setting; she can have occasional interactions with supervisors

and co-workers; and she can have no interactions with the public.

(Tr. 20 (emphasis omitted); see Tr. 20-26).

At Step Four, the ALJ found that Ojeda was unable to perform any of her past relevant

work. (Tr. 26-27). However, at Step Five, the ALJ found that there were jobs “that exist in

significant numbers in the national economy that the claimant can perform.” (Tr. 27-28 (emphasis

omitted)). Accordingly, the ALJ concluded that Ojeda was not disabled as defined under the SSA

from the alleged onset date of June 11, 2021, through the date of the decision. (Tr. 28).

V. DISCUSSION

A. The ALJ Applied the Correct Legal Standard at Step Two

As set out above, the first issue is whether the ALJ applied the appropriate legal standard

at Step Two. To evaluate whether a claimant’s medical condition qualifies as a “severe

impairment” at Step Two, the Commissioner has issued regulations that defined a “severe

impairment” as one that “significantly limits [a claimant’s] physical or mental ability to do basic

work activities.” 20 C.F.R. § 404.1520(c). As Ojeda correctly notes in her brief, the Fifth Circuit

has held that a literal application of that definition is inconsistent with the statutory language and

legislative history of the SSA. See Stone, 752 F.2d at 1104-05. As a result, under Fifth Circuit

precedent, a claimant’s impairment is severe when it is more than 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, irrespective of age, education, or work experience.” fd. at 1101.

Ojeda contends that the ALJ erred by failing to find that some of his impairments are severe

because the ALI failed to cite Stone and, thus, applied the wrong legal definition of severe. (PI.’s

Br. at 7-9). However, the Fifth Circuit has held that Social Security Ruling (SSR”) 85-28 is

consistent with Stone and an ALJ may fulfill his duty, to show that he applied the correct standard,

by citing to SSR 85-28. See Keel v. Saul, 986 F.3d 551, 556 (5th Cir. 2021) (holding that “[t]hough

the precise wording differs, Stone and SSR 85-28 are not substantially different enough to warrant

a finding of error.”). In this case, the ALJ cited to and applied the definition of severe found in

SSR 85-28. (Tr. 17-18). Consequently, the ALJ did not commit reversable error by failing to cite

Stone, and remand is not required for this issue.

B. The ALJ’s RFC Determination

As discussed above, the second issue before the Court is whether the ALJ's RFC

determination is supported by substantial evidence. Ojeda argues that the ALI’s RFC

determination is not supported by substantial evidence because “no medical source provides

support for the RFC’s omission of any physical limitations.” (PL’s Br. at 10). Specifically, Ojeda

claims that the ALJ committed a Ripley error as “[nJo medical opinion evidence supports the ALJ’s

finding, which indicates the ALJ used his own expertise to arrive at the findings,” because the

“SAMC doctors conclude[ed] that Plaintiff is limited to medium work.” (Pl.’s Br. at 10-11).

1. The ALJ’s RFC determination is not supported by substantial evidence

Ripley stands for the proposition that reversible error lies where the “record does not clearly

establish” how an applicant’s condition affects her ability to work. Thornhill v. Colvin, No. 3:14-

cv-335-M, 2015 WL 232844, at *10 (N.D. Tex. Dec. 15, 2014) (quoting Ripley, 67 F.3d at 557), R

& R adopted, 2015 WL 232844 (N.D. Tex. Jan. 16, 2015). The claimant in Thermhill alleged

disability from depression, but the ALJ found the claimant to be “not disabled.” /d at *1. Finding

the Thornhill claimant’s symptoms miid, the ALJ determined than the claimant was less limited

than did a registered nurse, physician, and licensed professional counselor, but more limited than

did two SAMCs. Jed. at *9. The RFC determination in Thornhill reflected an ability to work but

was erroneous to the extent that it “added mental limitations . . . to accommodate for [the

claimant’s}] mild symptoms.” /d at *10. Even though adding mental limitations suggested that

the ALJ was “simply giving [the claimant] the benefit of the doubt as to what limitations might

apply,” the only supporting evidence was progress notes that did not address the claimant’s ability

to work. Jd. Thornhill held that while the ALJ could depart from the relevant medical opinions,

it then “became incumbent upon the ALJ to obtain an expert medical opinion” to fill the gap. /d.

(citing Ripley, 67 F.3d at 557). In Ripley, Thornhill, and their progeny, the ALJ’s failure to obtain

a medical opinion addressing how the respective claimants’ impairments affected their ability to

work warranted reversal and remand in each instance. See Ripley, 67 F.3d at 557-58; Thornhill,

2015 WL 232844, at *11; Kirkland v. Comm’r of Soc. Sec., No. 4:22-cv-759-O-BP, 2023 WL

3357597 (N.D. Tex. Apr. 25, 2023), R & R adopted, No. 4:22-cy-759-O-BP, 2023 WL 3362633

(N.D. Tex. May 10, 2023).

RFC is what an individual can still do despite her limitations. SSR 96-8p, 1996 WL

374184, at *2 (July 2, 1996). Itreflects the individual’s maximum remaining ability to do sustained

work activity in an ordinary work setting on a regular and continuing basis. fd; see Myers v. Apfel,

238 F.3d 617, 620 (Sth Cir. 2001). A regular and continuing basis is an eight-hour day, five days

a week, or an equivalent schedule. SSR 96-8p, 1996 WL 374184, at *2. RFC is not the least an

individual can do but the most. /d. The RFC is a function-by-function assessment, with both

exertional and non-exertional factors to be considered, and it is based upon all of the relevant

evidence in the case record, fd. at 3-6. The responsibility for determining a claimant’s RFC lies

with the ALJ. See Villa v. Sullivan, 895 F.2d 1019, 1023-24 (Sth Cir. 1990). The ALJ must discuss

the claimant’s ability to perform sustained work activity on a regular and continuing basis and

resolve any inconsistencies in the evidence. SSR 96-8p, 1996 WL 374184, at *7.

In making the RFC assessment, the ALJ must consider all symptoms, including pain, and

the extent to which these symptoms can be reasonably accepted as consistent with objective

medical evidence and other evidence. See 20 C.F.R. § 404.1529; SSR 16-3p, 2017 WL 5180304,

at *1 (Oct. 25, 2017); SSR 96-8p, 1996 WL 374184, at *5. The ALJ must also consider limitations

and restrictions imposed by all of an individual’s impairments, even impairments that are not

severe. See SSR 96-8p, 1996 WL 374184, at *5. The ALJ may draw reasonable inferences from

the evidence in making his decision, but the social security ruling also cautions that presumptions,

speculation, and supposition do not constitute evidence. See, ¢.g., SSR 86-8, 1986 WL 68636, at

*8 (1986), superseded by SSR 91-7c, 1991 WL 231791, at *1 (Aug. 1, 1991) (changing the ruling

only to the extent the SSR discusses the former procedures used to determine disability in

children).

The ALJ is not required to incorporate limitations in the RFC that he did not find the record

supported. See Muse v. Sullivan, 925 F.2d 785, 790 (Sth Cir. 1991) (“The ALJ as factfinder has

the sole responsibility for weighing the evidence and may choose whichever physician's diagnosis

is most supported by the record.”), In reviewing the ALJ’s decision, a finding of no substantial

evidence is appropriate only if no credible evidentiary choices or medical findings support the

decision. Boyd, 239 F.3d at 704.

In this case, as stated above, the ALJ found that Ojeda was able to “perform a full-range of

work at all exertional levels” but that she had the following non-exertional limitations: “she can

understand, remember, and carry out instructions that are detailed but not complex, make related

decisions, and attend and concentrate for extended periods; she can adapt to occasional change in

routine work setting; she can have occasional interactions with supervisors and co-workers; and

she can have no interactions with the public.” (Tr. 20 (emphasis omitted)). In making his RFC

determination, the ALJ considered the opinions of state agency physicians Timothy Honigman,

M.D, and Phillip Matar, M.D., as well as other medical evidence in the record, stating:

On April 21, 2022, internal medicine State agency physician Timothy

Honigman, M.D. opined that the claimant could perform medium work activity

(Ex.fA/5). Then, on March 20, 2023, internal medicine State agency physician

Phillip Matar, M.D. affirmed Dr. Honigmna’s opinion (Ex.4A/5-6; Ex.6A/5-6).

Considering the totality of the evidence, the record supports that the claimant’s

medically determinable physical impairments are nonsevere. This is consistent with

and supported by the predominantly normal physical examination findings and

physician observations (see Ex.1F/4-5 on February 28, 2022; Ex.4F/7 on August 1,

2022: Ex.4F/47 on November 8, 2022; Ex.4F/75-76 on March 27, 2023; Ex.6F/11

on May 9, 2023). Moreover, as discussed above in Finding No. 3, these physical

impaitments are generally controlled with treatment. Thus, Dr. Honigman’s and Dr.

Matar’s opinions are unpersuasive as they are inconsistent with and unsupported

by the evidence of record.

The undersigned considered the consultative examinations at Exhibits 1F

and 2F, but the physicians did not provide opinions to consider for persuasive value.

(Tr. 25),

ALJ’s are no longer required to give controlling weight to a treating physician’s opinion,

as was previously mandated by case law and regulations. Compare 20 C.F.R. § 404.1527 (2016),

with 20 C.F.R. § 404.1520c; see also 82 Fed. Reg. 5853 (Jan. 18, 2017) (commenting that the

change was intended to enable courts to focus on the content of the evidence rather than the

source). Instead, ALJ’s must consider a list of factors in determining what weight, if any, to give

a medical opinion, 20 C.F.R. § 404.1520c. In this case, the ALJ rejected both of the SAMCs’

medical opinions regarding Ojeda’s physical limitations after citing to multiple medical sources

that indicated “predominantly normal” physical examination findings and physician observations,

noting that all of claimant’s physical impairments appear to be generally controlled with

medication, and finding that Ojeda’s testimony was inconsistent with the alleged limitations. (Tr.

25 (citing to Tr. 348-49, 370, 410, 438-39; 498).

The Court finds persuasive the analysis from a number of district courts throughout the

Fifth Circuit that have continued to consider whether the ALJ impermissibly relied on his or her

lay opinion to form an RFC. See, eg., Barbara H. v. Kijakazi, No. 3:20-cv-1890-X, 2022 WL

300541, at *4 (N.D. Tex. Jan. 12, 2022) (“Here, the ALJ rejected all the medical expert evidence

concerning the effects of [the plaintiff’s] impairments and determined [the plaintiffs] RFC based

on his own evaluation of findings from [the plaintiff’s] various physical exams, tests, and readings.

This RFC determination is not supported by substantial evidence.”) (collecting cases)); Lopez v.

Saul, No. SA-19-cv-01088, 2020 WL 4934462, at *4 (W.D. Tex. Aug. 22, 2020) (“Where ‘the ALJ

rejects the only medical opinions of record, interprets the raw medical data, and imposes a different

RFC, the ALJ has committed reversible error.’”) (quoting Garcia v. Berryhill, No. EP-17-CV-

00263, 2018 WL 1513688, at *2 (W.D. Tex. Mar. 27, 2018)); Deborah S. v. Comm'r of Soc. Sec.

Admin. , No. 4:20-cv-1580, 2021 WL 4442514, at *6 (S.D, Tex. Sept. 28, 2021) (Here, there were

no other medical opinions the ALJ considered. In an opinion short on discussion of the medical

records, the ALJ improperly substituted his opinion without reasoning and analysis for all four

medical opinions to formulate an RFC.”). The 2017 regulatory changes, regarding the ALJ’s

discretion in forming the RFC, do not allow the ALJ to overstep the bounds of a lay person’s

competence and render a medical judgment. See Afoore v, Sati, 3:20-cv-161-MPM, 2022 WL

987735 at *2 (N.D. Miss. March 31, 2022) (“And by ‘raw medical evidence,’ this court is referring

to evidence that does not permit ‘common-sense judgments about functional capacity’ and instead

requires the ALJ to ‘overstep the bounds of a lay person's competence and render a medical

judgment.’... A lay person would not readily understand how medical notations about disc bulging

and ‘moderate facet degenerative changes’ impact one's ability to work.”) (citing Minor v. Astrue,

No. 1:13-ev-17, 2014 WL 936438, at *6 (S.D. Miss. March 10, 2014) (citing Gordils v. Sec'y of

Health and Hum. Servs., 92) F.2d 327, 329 (ist Cir, 1990))).

Based on this precedent, the Court must consider whether the ALJ impermissibly

substituted his lay opinion for those of the SAMCs. “Ifthe ALJ finds no medical opinion of record

to be even partially persuasive, there is typically an evidentiary gap in the record between the

claimant's raw medical data, impairments, and remaining ability to work.” Miller v. Comin’r of

Soc. Sec., No. 1:20-cv-194, 2021 WL 7541415, at *9 (S.D. Miss. Dec. 17, 2021), R & R

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adopted, 2022 WL 566175 (S.D. Miss. Feb. 24, 2022) (citing Martin v. Berryhill, No. 4:19-CV-

115-JMV, 2020 WL 5089390, at *3 (N.D. Miss. Aug. 28, 2020)). Therefore, ‘“ulnless the

remaining record ‘clearly establish[es]’ the effect that the claimant’s condition has on her ability

to work, the ALJ must fill this gap with another medical opinion.” /d. (quoting Ripley, 67 F.3d at

557); see also Brian K. L. vy. Comm’r of Sac. Sec., No. 4:20-cv-2810, 2022 WL 902641, at *6 (S.D.

Tex. Mar. 28, 2022) (quoting Garcia, 2018 WL 1513688, at *2) (Consequently, when the ALJ

rejects the only medical opinions of record, interprets the raw medical data, and imposes a different

RFC, the ALJ has committed reversible error.’”).

In this case, as stated above, the ALJ noted that the SAMCs concluded that Ojeda could

perform medium work. The ALJ found both opinions to be entirely unpersuasive because “they

are inconsistent with and unsupported by the evidence of record.” (Tr. 25). In crafting the RFC,

the ALJ rejected all available medical opinions by citing to raw medical data and Ojeda’s

testimony. Thus, it is evident that the ALJ used his interpretation of the medical evidence to wholly

reject the only medical opinions of record. Because there were no other medical opinions for the

AL] to rely on, the Court can only conclude that the ALJ impermissibly substituted his own lay

opinion for that of the medical expert opinions of record. Consequently, the Court finds that

substantial evidence does not support the ALJ’s RFC determination, and the Court must evaluate

if such error prejudiced Ojeda.

2. The ALJ’s error was harmless

‘“*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 (Sth Cir,

2007) (quoting Mays v. Bowen, 837 F.2d 1362, 1364 (Sth Cir. £988) (per curiam)). Accordingly,

the Court may not vacate the judgment unless Ojeda shows that she was prejudiced by the ALJ’s

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error, See Mays, 837 F.2d at 1364, Prejudice occurs when procedural errors cast doubt on the

existence of substantial evidence in support of the ALJ’s decision. See Morris v. Bowen, 864 F.2d

333, 335 (Sth Cir, 1988) (per curiam). Generally, remand is necessary when, as here, the ALJ

rejected all available medical opinions, cited raw medical data, and made judgments regarding the

claimant’s RFC. See Harris vy. Comm’r, Soc. Sec. Admin., No. 4:22-CV-487-P, 2023 WL 5826869,

at *6 (N.D, Tex. Aug. 22, 2023), R & R adopted, No. 4:22-CV-00487-P, 2023 WL 5826975 (N.D.

Tex. Sept. 8, 2023) (citing Beachtum v. Berryhill, No. 1:17-cv-0009, 2018 WL 4560214, at *4 (W.D.

Tex. Sept. 21, 2018) (internal citation omitted)).

This case presents a rare exception to that general remand rule as the Court finds that the

ALJ’s error was harmless. Here, both SAMC opinions, that the ALJ rejected, opined that Ojeda

could perform medium level jobs. (Tr. 27-28, 66-67, 78-79). Because the ALJ found that Ojeda

was unable to perform her past relevant work, he proceeded to Step Five, where he found that there

are jobs that exist in significant numbers in the national economy that Ojeda could perform. (Tr.

26-28). While the ALJ’s RFC determination found that Ojeda could perform work at all exertional

levels, the three jobs that the ALJ found Ojeda could perform are al! medium level jobs. (Tr. □□□

28) (listing: (1) Kitchen Helper, DOT: 318.687-010; (2) Janitor, DOT: 381.687-018; and (3)

Laundty Worker, DOT: 361.684-014). Therefore, even if the ALJ adopted the conclusions of the

SAMC opinions and found that Ojeda could perform medium levei work, she would be able to

petform all of the jobs that the ALJ listed at Step Five. Consequently, the Court finds that the

ALJ’s error was harmless and does not warrant remand.

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VI. CONCLUSION

Based on the foregoing, the Commissioner’s decision is AFBERMED.

SIGNED July 31, 2024. f ff

JEFFREY L. CURETON

ITED STATES MAGISTRATE JUDGE

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