Copeland v. Berryhill

UNITED STATES DISTRICT COURT June 28, 2021

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

§

TODD C.,1 §

§

Plaintiff, §

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v. § Case No. 4:19-CV-1811

§

ANDREW SAUL,2 §

Commissioner of Social Security, §

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Defendant. §

§

MEMORANDUM & ORDER

Plaintiff Todd C. filed this suit seeking judicial review of the denial of

disability insurance benefits under Title II of the Social Security Act (“the Act”).

ECF No. 1. The Parties consented to have this Court conduct all proceedings in this

matter pursuant to 28 U.S.C. § 636(c) and filed for cross-motions for summary

judgment, ECF Nos. 13, 14. Based on the briefing and the record, the Court

determines that Plaintiff’s motion for summary judgment should be denied and

Defendant’s motion for summary judgment should be granted.

1 Pursuant to 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, the Court uses only Plaintiff’s first name and last

initial.

2 Andrew Saul has been automatically substituted for the previously named defendant in this matter

pursuant to Federal Rule of Civil Procedure 25(d) and the last sentence of 42 U.S.C. § 405(g).

I. BACKGROUND

Plaintiff is 50 years old, R. 364,3 with a bachelor’s degree in economics and

an MBA. R. 180, 221. Plaintiff worked as a certified public accountant and as a

professional consultant, R. 161, 204, 402–03, and has not worked since

September 24, 2014, due to his health. R. 211–39, 364.

Plaintiff claims to suffer from upper quadrant abdominal pain, which began

in the Spring of 2012. R. 34. Plaintiff states the pain became severe after he

underwent a cholecystectomy in 2014 with minimal relief. R. 34. After the pain

spread to both sides, Dr. Lehman, a gastroenterologist, diagnosed Plaintiff with

sphincter of ODDI dysfunction (“SOD”). R. 1356. Dr. Lehman performed a dual

sphincterectomy wherein he cut part of the sphincter of ODDI valve to reduce the

pressure. R. 1039, 1208, 1634. Dr. Lehman reported, however, that the surgeries did

not provide much pain relief. R. 2180. In 2016, Dr. Yeo performed two additional

surgeries, a transduodenal bile duct sphincteroplasty and a transduodenal pancreas

duct septoplasty. R. 1627–31, 1635–38, 1642–47.

Following these surgeries, Plaintiff claimed he continued to experience severe

abdominal pain. R. 1868. In May 2016, Plaintiff met with Dr. Catalano, who

diagnosed Plaintiff’s pain as intercostal neuralgia. R. 24, 2267, 2596. To treat the

pain, Plaintiff underwent several procedures, including a spinal cord stimulator, but

3 “R.” citations refer to the electronically filed administrative record, ECF Nos. 7, 8, and 9.

claimed none permanently alleviated his pain. R. 1396, 2555. When his pain was not

resolved, Plaintiff continued to see Dr. Uzodinma, a pain specialist, every month for

treatments, R. 24, 33–39, 47–59, 73–76, 81–86, 2118–26, 2603, including

medication and radiofrequency ablation. R. 34, 2603–04. Plaintiff also sought

treatment from Dr. Redko, a pain management specialist, who regularly injected

Plaintiff with shots. R. 2647–51, 2756–60, 2770, 2783, 2786.

On November 25, 2015, Plaintiff filed his application for disability insurance

benefits and supplemental security income under Title II of the Act based on his

SOD. R. 211, 364-65.4 According to Plaintiff, this impairment resulted in nerve pain

and severe fatigue, preventing him from being able to work full time. R. 181–86.

Plaintiff submitted an updated medical record, indicating that the primary source of

his pain was intercostal neuralgia. R. 2595. Plaintiff also stated that fatty liver

disease and sleep apnea contributed to his pain and fatigue. R. 2595. The

Commissioner denied his claims. R. 154, 240–43. Plaintiff requested

reconsideration, and the Commissioner again denied his claims. R. 154, 250–54.

Pursuant to Plaintiff’s request, a hearing was held before an Administrative

Law Judge (“ALJ”). R. 154–210. An attorney represented Plaintiff at the hearing.

4 The relevant time period is September 24, 2014—Plaintiff’s alleged onset date—through

December 31, 2019—Plaintiff’s last insured date. R. 378. The Court will consider medical

evidence outside this period to the extent it demonstrates whether Plaintiff was under a disability

during the relevant time frame. See Williams v. Colvin, 575 F. App’x 350, 354 (5th Cir. 2014);

Loza v. Apfel, 219 F.3d 378, 396 (5th Cir. 2000).

R. 176. Plaintiff and a vocational expert testified at the hearing. Id. The ALJ issued

a decision denying Plaintiff’s request for benefits.5 R. 151–70. Plaintiff requested

that the Appeals Council review the ALJ’s decision, but the Appeals Council denied

his request for review. R. 1–3.

Plaintiff filed this civil action, ECF No. 1, challenging the ALJ’s analysis and

seeking remand. Pl.’s MSJ, ECF No. 13. Defendant opposes Plaintiff’s motion,

arguing that the ALJ did not commit any reversible error, and that the ALJ’s findings

were proper and supported by substantial evidence. Def.’s MSJ, ECF No. 14.

II. STANDARD OF REVIEW

The Social Security Act provides for district court review of any final decision

of the Commissioner that was made after a hearing in which the claimant was a

5 An ALJ must follow five steps in determining whether a claimant is disabled. 20 C.F.R.

§ 416.920(a)(4). The ALJ determined Plaintiff was not disabled at Step Four. At step one, the ALJ

found that Plaintiff did not engage in substantial gainful activity during the period from his alleged

onset date through his date last insured. (20 C.F.R. 404.1571 et seq.). R. 157. At step two, the ALJ

found that Plaintiff has the following severe impairment: intercostal neuralgia (20 C.F.R. §

404.1520(c)). R. 157. At step three, the ALJ determined that Plaintiff did not have an impairment

or combination of impairments that met or medically equaled the severity of one of the listed

impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525, and

404.1526). R. 157. The ALJ found that Plaintiff has the Residual Functional Capacity (“RFC”) to

perform sedentary work as defined in 20 C.F.R. § 404.1567(b). He can occasionally lift and carry

10 pounds and frequently 5 pounds; stand and walk 4 of 8 hours each, and sit 6 of 8 hours for a

full 8 hour day with the option to change position between sitting and standing at will; has

unlimited push/pull and gross/fine dexterity except for occasional reaching and lifting overhead,

bilaterally, and occasional pushing and pulling with lower extremities, bilaterally; occasionally

climb stairs, but not ladders, ropes, scaffolds, or running; occasionally bend, stoop, crouch, crawl,

balance, twist and squat. R. 157. In addition, the ALJ found Plaintiff could occasionally be exposed

to heights, dangerous machinery, and uneven surfaces. R. 157. The ALJ also found no mental

limitations. R. 157. At step four, the ALJ determined that, through the date last insured, Plaintiff

could perform all past relevant work (20 C.F.R. § 404.1565). R. 161. Because Plaintiff could

perform all past relevant work, the ALJ found Plaintiff was not disabled. R. 161–62.

party. 42 U.S.C. § 405(g). In performing that review:

The court shall have power to enter, upon the pleadings and transcript

of the record, a judgment affirming, modifying, or reversing the

decision of the Commissioner …, with or without remanding the cause

for a rehearing. The findings of the Commissioner … as to any facts, if

supported by substantial evidence, shall be conclusive[.]

Id.

Judicial review of the Commissioner’s decision denying benefits is limited to

determining whether that decision is supported by substantial evidence on the record

as a whole and whether the proper legal standards were applied. Id.; Boyd v. Apfel,

239 F.3d 698, 704 (5th Cir. 2001); Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000).

“Substantial evidence” means “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148,

1154 (2019) (quotations omitted). It is “more than a scintilla but less than a

preponderance.” Carey v. Apfel, 230 F.3d 131, 135 (5th Cir. 2000). The “threshold

for such evidentiary sufficiency is not high.” Biestek, 139 S. Ct. at 1154.

“The Court weighs four elements to determine whether there is substantial

evidence of disability: (1) objective medical facts; (2) diagnoses and opinions of

treating and examining physicians; (3) subjective evidence of pain and disability;

and (4) the claimant’s age, education, and work history.” Roeber v. Berryhill, No.

17-CV-01931, 2018 WL 3745674, at *3 (S.D. Tex. Aug. 7, 2018) (citing Martinez

v. Chater, 64 F.3d 172, 174 (5th Cir. 1995)).

A reviewing court may not reweigh the evidence in the record, try the issues

de novo, or substitute its judgment for that of the Commissioner, even if the evidence

preponderates against the Commissioner’s decision. Brown v. Apfel, 192 F.3d 492,

496 (5th Cir. 1999). Even so, judicial review must not be “so obsequious as to be

meaningless.” Id. (quotations omitted). The “substantial evidence” standard is not a

rubber stamp for the Commissioner’s decision and involves more than a search for

evidence supporting the Commissioner’s findings. Singletary v. Bowen, 798 F.2d

818, 822–23 (5th Cir. 1986); Cook v. Heckler, 750 F.2d 391, 393 (5th Cir. 1985).

Rather, a reviewing court must scrutinize the record as a whole, taking into account

whatever fairly detracts from the substantiality of evidence supporting the

Commissioner’s findings. Singletary, 798 F.2d at 823.

III. DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT.

Plaintiff raises three issues. First, Plaintiff challenges the ALJ’s step two

analysis because he failed to find Plaintiff’s SOD to be severe. ECF No. 13 at 3–6.

ECF No. 13 at 3–6. Next, Plaintiff contends that the ALJ improperly evaluated the

medical opinions evidence of record. Id. at 6–11. Finally, Plaintiff argues the ALJ

erred in conducting his RFC determination and finding that Plaintiff can perform the

full range of sedentary work. Id. at 11–13. Defendant argues that the ALJ committed

no reversible error at step two and properly conducted his RFC analysis. ECF No.

14 at 4–11.

A. The ALJ Erred At Step Two But Did Not Prejudice Plaintiff.

A claimant bears the burden of proving that he or she suffers from a disability;

however, the mere presence of an impairment is not enough to establish that one is

suffering from a disability. Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005)

Rather, a disability is defined as the “inability to engage in any substantial gainful

activity by reason of any medically determinable physical or mental impairment

which can be expected to result in death, or which has lasted or can be expected to

last for a continuous period of not less than twelve months.” Id. (quoting Newton v.

Apfel, 209 F.3d 448, 452 (5th Cir.2000)). Under the statute, an impairment must be

“demonstrable by medically acceptable clinical and laboratory diagnostic

techniques.” 42 U.S.C. § 423(d)(3). Furthermore, an individual is “under a disability,

only if his impairments are of such severity that he is not only unable to do his

previous work but cannot, considering his age, education, and work experience,

engage in any other kind of substantial gainful work which exists in the national

economy....” Id. § 423(d)(2)(A).

“At step two of the disability analysis, the ALJ considers whether the claimant

has a medically determinable impairment or combination of impairments that is

severe.” Foster v. Astrue, No. H-08-2843, 2011 WL 5509475, *11 (S.D. Tex. Nov.

10, 2011) (citing 20 C.F.R. §§ 404.1520(c), 416.920(c)).6 “A “severe impairment”

is one that “significantly limits [the claimant's] physical or mental ability to do basic

work activities.” Id. (citing § 404.1520(c)). An impairment is “not severe” only if it

does not impose any interference on the ability to perform work activities. Stone v.

Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985).7 Therefore, the step-two showing

requires Plaintiff only to make a “de minimis showing.” Salmond, 892 F.2d at 817

(citing Anthony, 954 F.2d 293 n.5).8

Thus, Plaintiff has the burden of proving that his medical condition qualifies

as severe. See Stone v. Heckler, 752 F.2d 1099, 1105 (5th Cir. 1985). Proving

severity results in a two-step process: the durational requirement and the severity

requirement. Id. For the durational requirement, “a claimant need only show that an

alleged impairment has lasted or can be expected to last for the twelve-month

6 “The claimant bears the burden of proof on the first four steps, and then the burden shifts to the

Commissioner on the fifth step to show that the claimant can perform other substantial work in the

national economy.” Id. Once the Commissioner makes that showing, the burden shifts back to the

claimant to rebut the finding. Id

7 In the Fifth Circuit, “[a]n impairment can be considered as 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, irrespective of age, education, or work experience.” Salmond

v. Berryhill, 892 F.2d 812, 817 (5th Cir. 2018) (citing Loza v. Apfel, 219 F.3d 378, 391 (5th Cir.

2000) (emphasis added by Salmond court)). “Restated an impairment is severe if it is anything

more than a ‘slight abnormality’ that ‘would not be expected to interfere’ with a claimant’s ability

to work.” Id.

8 Moreover, the ALJ’s failure to make a severity finding at step two is not a basis for remand where

the AJL proceeded to later steps of the five-step analysis. Herrera v. Comm’r, 406 Fed. App’x

899, 903 (5th Cir. 2010) (per curiam) (collecting cases); see Foster, 2011 WL 5509475, at *14-19

(analyzing when remand is appropriate for step two error in severity finding).

period…” not that the impairment was itself severe for the entirety of the twelve

months. Craig v. Berryhill, No. 17-CV-1715, 2019 WL 1387696, at *5 (M.D. La.,

Mar. 27, 2019) (quoting Singletary v. Bowen, 798 F.2d 818, 821 (5th Cir. 1986)).

1. The ALJ erred because he did not find Plaintiff’s SOD to be severe.

Plaintiff asserts that the SOD occurred because of his gallbladder removal

surgery in July 2014. ECF No. 13 at 5. In his step two analysis, the ALJ stated, “The

[Plaintiff’s] SOD was found to be unrelated to [his] chronic pain. It was at best an

incidental finding and the sphincterotomy procedures involving invasive abdominal

surgery in April 2015 and January 2016 corrected the problem within 12 months.”

R. 157. The ALJ found that the impairment failed to meet the durational requirement.

Id.

The ALJ’s opinion, however, confuses the severity requirement. For an

impairment to be severe, it must last for twelve months and be severe, but does not

need to be severe for the entirety of those twelve months. Craig, 2019 WL 1387696,

at *5 (remanding when ALJ determined Plaintiff’s bilateral carpal tunnel syndrome

failed the duration requirement when it was not severe for the full twelve months).

The ALJ’s imposition of the durational requirement on the severity of the

impairment is the incorrect legal standard. Id.

Social Security guidelines state that evidence of laboratory findings,

treatment, doctor’s visitations, and symptoms all indicate a continuous duration for

an impairment. SSR 93-52, 1982 WL 31376, at *3. The record indicates that, after

the first sphincterotomy Dr. Lehman performed in April 2015, the problem was not

resolved. R. 2158.9 Prior to his appointment with Dr. Wolf in January 2016, Plaintiff

had anesthetic shots from Dr. Uzodinma and a neurolytic celiac plexus block from

Dr. Fuke to alleviate his symptoms. R. 2064, 2126. Plaintiff made more than a de

minimis showing that his SOD continued from the onset date in July 2014 through

January 2016, which is more than a year and met the durational requirement.

Singletary, 798 F.2d at 821(finding continuous doctor’s visits and hospitalizations

indicators of the duration of an impairment). Therefore, the ALJ erred in finding that

the SOD failed to meet the durational requirement.

Similarly, Plaintiff presented sufficient evidence to establish the “severity”

requirement of his SOD impairment. In his step two analysis, the ALJ stated that the

SOD would have no more than a minimal or slight limitation in the Plaintiff’s

functional ability. R. 157. While the medical record presents varying opinions10 on

9 In a visit with Dr. Yeo, who performed Plaintiff’s transduodenal sphincteroplasty and

septoplasty, Dr. Yeo observed that “the patient carries a diagnosis of SOD and he is very disabled

and troubled by it. He is currently on what I would call ‘polypharmacy,’ and this has clearly

impacted his life.” R. 2158 (10/29/15). When Plaintiff began seeing Dr. Uzodinma, Dr. Uzodinma

noted that Plaintiff underwent procedures for his SOD but without prolonged benefit. R. 2127

(12/4/15).

10 Dr. Ertan, an examining physician, opined that “his [abdominal] pain and hepatomegaly are

likely due to fatty liver. Sphincter of ODDI dysfunction is an unlikely possibility.” R. 987

(1/29/15). Dr. Swamy, a reviewing physician, opined that the SOD was not the cause of his

abdominal pain. R. 2696–2704 (8/18/17).

the cause of his pain, Plaintiff provided sufficient evidence to meet the low threshold

to find that his SOD exceeded a “slight abnormality.” Specifically, the record

contains evidence documenting Plaintiff’s pain and medical opinions confirming the

SOD as the cause of his pain.11 Furthermore, the record documents numerous

procedures Plaintiff underwent to treat this impairment.12 Thus, Plaintiff has

satisfied this de minimus burden, and the ALJ erred in not finding Plaintiff’s SOD

to be a severe impairment.

2. The ALJ’s error did not prejudice Plaintiff.

Procedural perfection in administrative proceedings is not required. Rollins v.

Astrue, 464 F App’x 353, 358 (5th Cir. 2012) (quoting Mays v. Bowen, 837 F.2d

1362, 1364 (5th Cir. 1988)). The court will not vacate a judgment unless the

“substantial rights of a party have been affected.” Id. The ALJ’s RFC calculation

compensated for the ALJ’s error in not finding Plaintiff’s SOD to be severe.

Specifically, the ALJ reviewed the medical evidence and considered the limitations

11 R.1356 (On 5/11/15, Dr. Lehman diagnosing Plaintiff’s SOD based on Plaintiff’s pain, fatigue,

and diminished appetite); R. 2568 (On 7/20/16, Dr. Uzodinma reporting Plaintiff’s chronic pain

due to potentially SOD.); R. 2647 (On 11/1/17, Dr. Redko discussing how Plaintiff’s sphincter

ODDI dysfunction continued after his first surgery).

12 R. 2536 (On 5/20/16, Dr. Uzodinma performing right intercostal nerve blocks to alleviate pain,

discussing procedure as a “therapeutic” measure for SOD); R. 34 (On 4/25/17, Dr. Uzodinma

listing procedures Plaintiff underwent to help his ODDI dysfunction without prolonged benefit

including medication, botox injections, sphincterotomy, splanchnic nerve RFTC, open celiac

plexus blocks, and bile / pancreatic duct sphincteroplasty and septoplasty); R. 2651 (On 10/2/17,

Dr. Redko discussing how Plaintiff underwent jejunal surgery for his SOD to no avail).

and symptoms Plaintiff claimed he experienced from his SOD. R. 158–61. In

particular, the ALJ discussed Plaintiff’s chronic abdominal pain, aggravating factors

of Plaintiff’s pain, and Plaintiff’s ability to perform daily activities with these

limitations.13 The ALJ found Plaintiff’s statements regarding the intensity,

persistence, and limiting effects of the symptoms were not entirely consistent with

the medical evidence and evidence of his daily living activities. R. 160. Therefore,

it is not probable that the ALJ would have arrived at a different conclusion had he

considered the SOD to be severe in step two. Hammond v. Barnhart, 124 F. App’x

847, 854 (5th Cir. 2005) (affirming ALJ’s decision when it was not probable a

different result would have occurred but for the ALJ’s error).

Furthermore, even though the ALJ erred in failing to find Plaintiff’s SOD to

be a severe impairment, the ALJ proceeded beyond step two, finding Plaintiff was

not disabled at step four. R. 161. Fifth Circuit case law holds that such action may

constitute harmless error in cases where the ALJ proceeded past step two. Herrera

v. Comm’r of Soc. Sec., 406 F. App’x 899, 903 (5th Cir. 2010) (noting the ALJ’s

failure to make a severity finding at step two was not a basis for remand where the

finding would not affect his step five analysis) (citing Adams v. Bowen, 833 F.2d

13 In his RFC analysis, the ALJ noted that, “[a]t the hearing the claimant testified to chronic, right-

sided abdominal pain that feels like “a vise,” with referred numbness to the right arm and leg. He

explained that his pancreatic duct and sphincter valve surgeries did not help him. He said he

experiences the most pain when sitting straight up and that standing is preferable to sitting.”

R. 158.

509, 512 (5th Cir. 1987)). The ALJ considered the limitations of the SOD in arriving

at the RFC and would not have reached a different conclusion absent this error.

Cagle v. Colvin, No. H-12-0296, 2013 WL 2105473, at *8 (S.D. Tex. May 14, 2013)

(“Because the ALJ progressed beyond step two and considered all limitations

supported by the record, to the extent there was a step two error it was harmless.”).

Therefore, the ALJ’s error was harmless error.

B. The ALJ Did Not Commit Reversible Error When Weighing the Medical

Opinions.

1. The ALJ gave great weight to Dr. Redko and Dr. Uzodinma.

Plaintiff argues that the ALJ improperly evaluated the medical opinion

because he failed to consider the section 404 factors. ECF No. 13 at 3–6. Plaintiff

claims the ALJ instead relied on outdated opinions of state agency medical

consultants and his own lay interpretation of the medical records, thus preventing

the RFC from reflecting Plaintiff’s worsening health conditions. Id. at 6. The Court

disagrees with Plaintiff and finds that the ALJ properly conducted his analysis.

As Plaintiff’s abdominal pain persisted, he began seeking treatment from

Dr. Uzodinma, an interventional pain medicine specialist in 2015. R. 2602–04

(Plaintiff’s summary of his treatment history). Starting in December 2015, Plaintiff

saw Dr. Uzodinma regularly through the relevant time frame.14 Since May 2016,

14 R. 2126 (12/4/15); R. 2122 (1/7/16); R. 2118 (2/12/16); R. 2593 (2/12/16); R. 2151 (2/15/16);

R. 2536 (5/20/16); R. 2568 (7/19/16); R. 2555 (9/27/16); R. 2461 (10/25/16); R. 2532 (12/2/16);

Dr. Uzodinma performed three procedures aimed at treating his abdominal

intercostal nerve entrapment and/or intercostal neuralgia. R. 7 (Dr. Uzodinma’s

summary of treatment history). These procedures include several injections of a

combination steroid and local anesthetic, a radiofrequency ablation of several right-

side intercostal nerves, and finally additional nerve blocks. R. 7. Dr. Uzodinma

stated that these treatments offered “some benefit,” which lasted “for approximately

a month” but did not relieve all of Plaintiff’s pain. R. 7.

Dr. Uzodinma additionally prescribed several different medications during the

treatment history. R. 2568 (7/19/16). Dr. Uzodinma saw improvement with the use

of medication noting, “patient has reported improved functionality, quality of life,

and analgesic control with current opioid medication therapy,” and “[w]ithout these

medications, Patient will likely suffer deterioration and functionality and worsening

pain.” Id. Despite the improvement with medication, Dr. Uzodinma opined that

Plaintiff’s ailments cause “significant persistent disability and reduction of quality

of life and functional status.” R. 2555 (9/27/16). For this reason, Dr. Uzodinma

recommended that Plaintiff obtain a spinal cord stimulator, but Plaintiff’s insurance

initially denied his application.15 Once Plaintiff obtained a spinal cord stimulator in

R. 86 (12/20/16); R. 2538 (1/24/17); R. 81 (1/24/17); R. 73 (2/21/17); R. 56 (2/21/17); R. 47 (3/31

/17); R. 24 (3/31/17); R. 33 (4/24/17); R. 2741 (6/6/17); R. 2736 (7/11/17); R. 2726 (9/19/17).

15 R. 2555 (On 9/27/16, “[Plaintiff] continues active treatments including application for spinal

cord stimulator trial to improve his functional status and ability to continue gainful employment.”);

March 2017, ECF No. 13 at 9, Dr. Uzodinma noted Plaintiff’s improvement with the

device.16 As Plaintiff began improving with the device, Plaintiff reduced his reliance

on medications.17

To alleviate his pain, Plaintiff also sought treatment from Dr. Redko, a pain

management specialist. R. 19. Dr. Redko treated Plaintiff for his abdominal pain by

monitoring anesthesiologist care, IV administration, intercostal blocks, and celiac

plexus and splanchnic nerve blocks.18 Dr. Redko’s noted that these multiple

procedures failed to resolve Plaintiff’s chronic pain until his spinal cord stimulator.19

Prior to the operation, Dr. Redko observed that, “[Plaintiff] cannot work or sit at the

desk” and “[h]e has a hard time sitting or lying on his right side. He is fairly

R. 2538 (On 1/24/17, “I have performed peer to peer with Aetna physician, Dr. Jeffrey Ottmers,

and waiting reply regarding approval of spinal cord stimulator trial.”).

16 R. 2741 (On 6/6/17, “[Plaintiff] reports suboptimal coverage [with] permanent implant”); R.

2726–28 (On 9/19/17, “[Plaintiff] reports he is getting good coverage by his Spinal Cord

Stimulator”).

17 R. 2726 (On 9/19/17, Dr. Uzodinma reported Plaintiff had discontinued Lorazepam and other

prescribed medications due to improvements with the spinal cord stimulator).

18 R. 2651 (10/2/17); R. 2786 (10/2/17); R. 2783 (10/23/17); R. 2649 (10/23/17); R. 501 (11/1/17);

R. 2647 (11/1/17); R. 2776 (1/15/18); R. 2775 (1/22/18); R. 2770 (2/22/18); R. 19 (2/28/18); R.

2767 (3/1/18); R. 2764 (3/8/18); R. 2760 (3/22/18); R. 2756 (3/29/18).

19 Dr. Redko noted that Plaintiff “did not improve with surgery,” additionally underwent jejunal

surgery “without improvement,” several intercostal blocks were “inconclusive,” splanchnic and

celiac blocks “did not bring any improvement,” and right 9-10 intercostal nerve brought “several

weeks of numbness and some partial improvement.” R. 2756 (3/29/18). Dr. Redko also noted that

Plaintiff’s condition was “chronic and ongoing.” Id.

asymptomatic standing, lying on his back.”20 However, after the addition of the

spinal cord stimulator, Dr. Redko observed “some partial improvement.”21 As

Plaintiff continued to improve with the use of the spinal cord stimulator, Dr. Redko

noted that Plaintiff was “able to work with current treatment plan” and was

“improving on treatment.” R. 2778.22

The ALJ afforded “great weight” to both the opinions of Dr. Uzodinma and

Dr. Redko. R. 159–60. When reviewing Dr. Uzodinma’s previous treatments, the

ALJ noted that Dr. Uzodinma confirmed that Plaintiff’s medications “had been

helpful but were lessened or eliminated due to the stimulator.” R. 159 (referencing

2726–28). The ALJ also observed that Plaintiff claimed to have “good pain coverage

with the stimulator” so much so that he was able to “come off Ativan and

gabapentin.” R. 159. In affording “great weight” to the opinion of Dr. Uzodinma,

the ALJ stated, “[f]rom a psychological aspect, Dr. Uzodinma noted normal affect,

mood, behavior, thought content, and judgment.” R. 160. The ALJ gave this opinion

great weight because it “revealed no mental impairment.” R. 160.23

20 R. 2651 (10/1/17); R. 2786 (10/2/17); R. 2783 (10/23/17); R. 2779 (11/6/17); R. 2776 (1/15/18);

R. 2773 (1/22/18); R. 2770 (2/22/18); R. 2767 (3/1/18); R. 2760 (3/22/18); R. 2756 (3/29/18); R.

2764 (4/16/18).

21 R. 2786 (On 10/2/17, Dr. Redko noted Plaintiff experienced some partial improvement although

Plaintiff could not sit or work at a desk).

22 R. 2778 (11/6/17); R. 2776 (1/15/18); R. 2783 (4/16/18).

23 While affording “great weight” to the opinion of Dr. Uzodinma, the ALJ also granted “great

weight” to the opinion of Dr. Smith, a consulting psychologist who was responsible for assuring

Discussing Plaintiff’s pain treatments, the ALJ again gave “great weight” to

Dr. Redko’s opinion, which the ALJ claimed revealed “a significant reduction in

pain” enabling the claimant to work “fairly asymptomatic.” R. 159–60. The ALJ

noted that Dr. Redko’s treatments, including the spinal cord stimulator and

intercostal blocks, allowed Plaintiff to be “‘fairly asymptomatic’ standing or lying

on his back.” R. 159 (quoting Dr. Redko’s report).

In addition to the two treating physicians, the ALJ gave “little weight” to the

opinion of Dr. Stanfill, a vocational rehabilitation consultant who opined that

Plaintiff was disabled based upon Plaintiff’s treating doctor’s statements. R 161.24

In rejecting this opinion, the ALJ noted that Dr. Stanfill is a vocational counselor

and not a medical doctor or psychologist, thus his opinion had little probative value

concerning functional limitations imposed by Plaintiff’s physical impairments.

R. 161 (referencing R. 2329–30).

Instead, the ALJ gave “some weight” to the opinion of Dr. Swamy, a medical

Plaintiff’s psychological aptitude for surgery. R. 1988. Similar to Dr. Uzodinma, Dr. Smith

observed that Plaintiff was asymptomatic from a psychological perspective but also opined that

Plaintiff could not walk, sit, or stand for long period of time due to his pain. R. 2640. The ALJ

stated that he afforded both Dr. Uzodinma’s and Dr. Smith’s opinion great weight as they reveal

“no mental impairment.” R. 160.

24 Dr. Stanfill opined that Plaintiff “has been totally disabled from past employment as a Senior

Management Consultant or form any other occupation at any level of physical exertion for which

he is trained and experienced, even on a part-time basis, from September of 2014 through the

present date. This opinion is based upon the definition of disability cited above and [Plaintiff’s]

treating doctor’s statements. It is further this consultant’s opinion that this off work status will

continue for the foreseeable future while [Plaintiff] pursues additional pain management

interventions.” R. 2329–30 (May 17, 2016).

consultant who conducted an RFC report. R. 161. Dr. Swamy’s functional capacity

examination denied any evidence of cognitive restrictions and found Plaintiff’s pain

to be “intermittent.” R. 2696–2704. The ALJ only afforded Dr. Swamy some weight,

however, as he found the record supported additional limitations considering

Plaintiff’s testimony and other medical documentation. R. 161. The ALJ also

afforded “great weight” to the opinions of the state agency consultants, but found

the evidence supports “additional limitations” considering Plaintiff’s pain, even

though the ALJ noted that Plaintiff’s condition had improved. R. 161.

2. The ALJ properly weighed the evidence of the record.

The ALJ is the sole arbiter of the witnesses. Chambliss v. Massanari, 269 F.3d

520, 523 (5th Cir. 2001). As administrative factfinder, the ALJ is entitled to

significant deference in deciding the appropriate weight to accord the various pieces

of evidence in the record. See Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985).

Social Security guidelines require adjudicators to consider the opinions of

medical sources and apply the factors denoted in regulations when weighing the

opinions. SSR 96-5p, 1996 WL 374183.25 “These factors are: (1) the physician’s

length of treatment of the claimant; (2) the frequency of examination; (3) the nature

and extent of the treatment relationship; (4) the extent to which the physician’s

25 “The Social Security Administration’s ruling are not binding on this court, but they may be

consulted when the statute at issue provides little guidance.” Myers v. Apfel, 238 F.3d 617, 620

(5th Cir. 2001).

opinion is supported by the medical record; (5) the consistency of the opinion with

the record as a whole; and (6) the specialization of the treating physician.” Giles v.

Astrue, 433 F. App’x 241, 248 (5th Cir. 2011).

The ALJ must afford controlling weight to a treating physician’s opinion

about the nature and severity of a claimant’s impairment when it is well-supported

by medical evidence and consistent with other evidence of record. 20 C.F.R.

§§ 404.1527(c)(2) & 416.927(c)(2). However, the ALJ is free to reject the opinion

of any physician when the “evidence supports a contrary conclusion,” and a treating

physician’s opinion “may be assigned little or no weight when good cause is shown.”

Newton v. Apfel, 209 F.3d 448, 455–56 (5th Cir. 2000) (emphasis in original)

(remanding when ALJ failed to discuss why he gave more weight to non-treating

physician’s opinion). “Good cause may permit an ALJ to discount the weight of a

treating physician relative to other experts where the treating physician’s evidence

is conclusory, is unsupported by medically acceptable clinical, laboratory, or

diagnostic techniques or is otherwise unsupported by evidence.” Qualls v. Astru, 339

F. App’x 461, 465 (5th Cir. 2009) (quoting Newton, 209 F.3d at 456). When an ALJ

rejects the opinion of a treating physician, the Fifth Circuit has held that, “absent

reliable medical evidence from a treating or examining physician controverting the

claimant’s treating specialist, an ALJ may reject the opinion of the treating physician

only if the ALJ performs a detailed analysis of the treating physician’s views under

the criteria set forth in § 404.1527.” Id.

However, an “ALJ does not need to specifically enumerate § 404.1527(c)’s

six factors when there is competing first-hand medical evidence and the ALJ as a

factual matter finds that one doctor’s opinion is more well-founded than another, or

when the ALJ has weighed the treating physician’s opinion on disability against the

medical opinion of other physicians who have treated or examined the claimant and

have specific medical bases for a contrary opinion.” Romo v. Berryhill, No. 17-CV-

2163, 2018 WL 4146416, at *3 (S.D. Tex. Aug. 30, 2018) (quotations omitted)

(emphasis added); accord Walker v. Barnhart, 158 F. App’x 534, 535 (5th Cir. 2005)

(ALJ was not required to consider each Newton factor because the record contained

competing first-hand medical evidence).

a. The ALJ weighed the medical opinions in accordance with the

section 404 factors.

Plaintiff argues that the ALJ failed to consider the section 404 factors in

weighing the medical opinions. ECF No. 13 at 6–11. Plaintiff further contends that

the ALJ was biased when weighing the evidence by disregarding the required

factors. Id. at 7. To the contrary, the ALJ did a thorough analysis of the records

consistent with the section 404 factors.

Plaintiff has an established treating relationship with both Dr. Redko and

Dr. Uzodinma, both of whom examined Plaintiff on a regular basis for an extended

period—sufficient to create a longitudinal history of care. The ALJ afforded both

medical opinions “great weight,” finding that both opinions established Plaintiff’s

condition improved. R. 159–60. While affording great weight to Dr. Redko, the ALJ

stated he did so because it “reveals a significant reduction in pain based on implanted

stimulator to a reasonable, modest level enabling the claimant to work ‘fairly

asymptomatic.’” R. 160. Similarly, in giving “great weight” to Dr. Uzodinma’s

opinion, the ALJ noted that Dr. Uzodinma performed a spinal cord stimulator trial,

which provided relief for Plaintiff’s pain. R. 159. The ALJ also noted that

Dr. Uzodinma noted normal affect, mood, behavior, thought content, and

judgment—consistent with the record. Id.

Both treating physicians cited to Plaintiff’s chronic abdominal pain

throughout their treatment history.26 However, upon receiving the spinal cord

stimulator and subsequent adjustments in 2017, both Dr. Redko and Dr. Uzodinma

observed improvements in Plaintiff’s condition.27 The ALJ found these medical

26 Dr. Redko’s notes: R. 2651 (10/2/17); R. 2786 (10/2/17); R. 2783 (10/23/17); R. 2649

(10/23/17); R. 501 (11/1/17); R. 2647 (11/1/17); R. 2776 (1/15/18); R. 2775 (1/22/18); R. 2770

(2/22/18); R. 19 (2/28/18); R. 2767 (3/1/18); R. 2764 (3/8/18); R. 2760 (3/22/18); R. 2756

(3/29/18).

Dr. Uzodinma’s notes: R. 2126 (12/4/15); R. 2122 (1/7/16); R. 2118 (2/12/16); R. 2593 (2/12/16);

R. 2151 (2/15/16); R. 2536 (5/20/16); R. 2568 (7/19/16); R. 2555 (9/27/16); R. 2461 (10/25/16);

R. 2532 (12/2/16); R. 86 (12/20/16); R. 2538 (1/24/17); R. 81 (1/24/17); R. 73 (2/21/17); R. 56

(2/21/17); R. 47 (3/31 /17); R. 24 (3/31/17); R. 33 (4/24/17); R. 2741 (6/6/17); R. 2736 (7/11/17);

R. 2726 (9/19/17).

27 Shortly after the spinal cord stimulator trial, on 6/6/17, Dr. Uzodinma noted that “[Plaintiff]

reports suboptimal coverage [with] permanent implant.” R. 2741. A few months after treatment,

opinions to be consistent with both Plaintiff’s testimony at the hearing as well as the

medical record. R. 159–60. The ALJ also found the treating physicians’ conclusions

to be consistent with their records, observing how both Dr. Redko and Dr. Uzodinma

had overall unremarkable examinations of Plaintiff in their most recent visitations.28

Although Newton does not require the ALJ to recite each factor as a litany in every

case, it is imperative that the ALJ’s discussion reflect an accurate understanding of

the factors. Allen v. Saul, N0. 4:19-CV-1575, 2020 WL 5412630, at *6 (S.D. Tex.

Sept. 9, 2020) (reversing when ALJ’s determination for the factors was incorrect).

The ALJ’s analysis, which afforded great weight to the treating physicians, reflects

an accurate understanding of the factors, examining the consistency of the opinion

on 9/19/17, Dr. Uzodinma noted that “[Plaintiff] reports he is getting good coverage by his Spinal

Cord Stimulator.” R. 2726–28.

On 10/2/17, Dr. Redko observed Plaintiff experienced some partial improvement although he

maintained Plaintiff could not sit or work at a desk). R. 2786. Dr. Redko observed that due to

Plaintiff’s improvement from the spinal cord stimulator, Plaintiff was “able to work with current

treatment plan” and was “improving on treatment.” R. 2779 (11/6/17); R. 2776 (1/15/18); R. 2783

(4/16/18).

28 The ALJ observed that in recent examinations, Dr. Redko noted normal alignment of the spine

with adequate range of motion flexion extension and lateral rotation, normal range of motion in

the upper and lower extremities, normal strength with no muscle atrophy or wasting throughout,

and intact reflexes bilaterally in the upper and lower extremities. R. 160. Further, Dr. Redko

conducted a body scan performed in February 2018 which revealed nothing. Id. (referencing

R. 2770). The ALJ also observed that under Dr. Uzodinma’s treatments, with the use of the spinal

cord stimulator and medications, Plaintiff reported that he had good pain coverage and was able

to come off Ativan and gabapentin. R. 159 (referencing R. 2726–28). Upon Dr. Uzodinma’s recent

examination of Plaintiff, Dr. Uzodinma noted Plaintiff’s normal affect, mood, behavior, thought

content, and judgment. R. 160 (referencing R. 2726–28). The ALJ noted that Dr. Uzodinma’s

observations were consistent with Dr. Swamy and Dr. Smith. R. 160 (referencing R. 1988, 2696–

2704).

with the record and the consistency of the opinion with the physician’s own medical

records.

The rest of the ALJ’s analysis similarly reflects an understanding of the

factors. The ALJ granted little weight to the opinion of Dr. Stanfill, who opined

“claimant was disabled from all work.” R. 161 (referencing R. 2329–30). The ALJ

discounted Dr. Stanfill’s opinion because he is a vocational counselor and not a

medical doctor, and therefore his opinion offered little probative value concerning

functioning limitations. R. 161.

When discussing the opinion of Dr. Swamy, a medical consultant, the ALJ

granted it some weight as it was somewhat supported by medical evidence and

consistent with the record as a whole. Id. However, the ALJ found that considering

Plaintiff’s testimony and medical evidence that additional limitations were

supported, more so than what Dr. Swamy opined. Id. Further, Dr. Swamy as a

medical consultant did not have the established treatment relationship that Dr. Redko

and Dr. Uzodinma had, whose opinions were afforded greater weight. The ALJ also

noted that the state agency consultants found Plaintiff could perform at a light level

of work, but determined that considering the evidence and Plaintiff’s testimony,

additional limitations were warranted. Id. Therefore, the ALJ reduced Plaintiff to a

sedentary level of functioning as opposed to a light level. Id.

The ALJ’s decision demonstrates that the section 404 factors were considered

when weighing the medical opinions of the record. In limiting Plaintiff to light work,

the ALJ considered consistency of the opinions with the medical records,

consistency with the record as a whole, the length of treatment of physicians, and

the specialization of the physicians, reflecting an accurate understanding of the

factors. Accordingly, the ALJ did not violate C.F.R. § 404.1527 because he

considered the required factors in assigning weight to the medical opinions.

b. The ALJ gave appropriate credibility to Plaintiff’s testimony.

Plaintiff additionally argues that the ALJ erred in conducting his RFC analysis

because he disregarded Plaintiff’s testimony. ECF No. 13 at 8–9. Specifically,

Plaintiff alleges that the ALJ distorted his testimony to cherry-pick the evidence. Id.

Plaintiff points to the ALJ’s statement that “claimant’s statements concerning the

intensity, persistence and limiting effects of these symptoms are not entirely

consistent with the medical evidence.” ECF No. 13 at 7 (quoting R. 157–58).

In conducting his analysis, the ALJ referenced Plaintiff’s testimony and

provided explanations when the ALJ found the testimony less credible. R. 157–58.29

29 In making his RFC determination, the ALJ referenced Plaintiff’s testimony concerning his

current impairments, his pain level, his medications, his activities, as well as his estimate

concerning his ability to do work. Although the ALJ found the claimant’s medically determinable

impairments could reasonably be expected to cause the alleged symptoms, he also found that

Plaintiff’s statements concerning the intensity, persistence, and limiting effects of the symptoms

were not entirely consistent with the medical evidence and other evidence in the record. R. 158.

Additionally, the ALJ also found that Plaintiff’s complaint of chronic pain was inconsistent with

his testimony that he experienced significant pain relief such that he stopped taking medication

following his injections and spinal cord stimulator. R. 159.

Furthermore, the ALJ incorporated Plaintiff’s testimony concerning his activity

level in restricting Plaintiff to sedentary work, noting additional limitations. R.

160.30 Moreover, the ALJ was within his authority to weigh the credibility of the

testimony of Plaintiff with the medical record. Taylor 706 F.3d at 602–03 (“The

RFC determination is the sole responsibility of the ALJ.”) (per curiam) (quoting

Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995)). The ALJ is permitted to consider

the objective medical evidence over the subjective statements of Plaintiff. Britton v.

Saul, 827 F. App’x 426, 431 (5th Cir. 2020) (affirming ALJ’s decision and granting

“great deference” to ALJ’s evaluation of claimant’s credibility when he afforded

greater weight to medical opinions than claimant’s testimony).

Plaintiff points to the ALJ’s assessment that Plaintiff’s pain with the spinal

cord stimulator was “a modest ‘3’” in his decision. ECF No. 13 at 8 (referencing R.

158). Plaintiff argues that this statement was taken out of context and applied only

when Plaintiff was lying down and using his spinal cord stimulator, not engaged in

activities. ECF No. 13 at 8. However, at the hearing the ALJ asked Plaintiff, “[i]f

30 The ALJ afforded greater limitations in his RFC determination than those provided by medical

consultants. Specifically, Dr. Swamy limited the claimant to lifting, carrying, pushing and pulling

up to 25 pounds occasionally and 15 pounds frequently; no limitations on sitting and standing, but

allowed that Plaintiff should be able to change position between sitting and standing every 30

minutes. R. 161 (referencing R. 2703). But the ALJ limited Plaintiff to sedentary work, as opposed

to light work, restricting Plaintiff to occasionally lift and carry 10 pounds and frequently 5 pounds;

stand and walk 4 of 8 hours each and sit 6 of 8 hours for a full 8-hour day with the option to change

position between sitting and standing at will. R. 157.

you just go around normally doing what you do and you got [the spinal cord

stimulator] on, it’s working during the day, where are you at?” to which Plaintiff

responded “I would say it’s a 3 now.” R. 187. In addition to Plaintiff’s testimony, at

his recent examinations following the implantation of the spinal cord stimulator,

Plaintiff often reported his pain level at a 3/10 or better.31

Plaintiff also claims that the ALJ distorted his testimony concerning his daily

activities. ECF No. 13 at. 8. In particular, Plaintiff argues that the ALJ was incorrect

in claiming that Plaintiff traveled frequently for leisure. Id. Plaintiff claims the ALJ

also erred in stating that Plaintiff also currently attends UT football games. Id.

However, Plaintiff’s testimony at the hearing supports the ALJ’s statements.

When asked if he had travelled anywhere in the last three years, Plaintiff responded

that they had been to Colorado to visit Plaintiff’s parents, Grand Cayman’s in the

last three years, and Austin a couple of times during the recent years to attend UT

football games. R. 197. In the RFC analysis, the ALJ noted that Plaintiff testified to

attending a week-long vacation in Colorado at his parents’ condo, travelling to

Grand Cayman Island with his wife and parents for a week’s vacation, and going 3–

4 times to the University of Texas Football games, where his wife is an alumnus.

R. 158. Plaintiff’s argument that “he used to go to football games,” ECF No. 13 at

31 R 2736 (7/11/17, reporting pain at “3/10”); R. 2731 (9/5/17, reporting pain at “1/10”); R. 2726

(9/19/17, reporting pain at “3/10”).

8, is unsupported. Specifically, the ALJ asked Plaintiff at the hearing about any place

he visited in the last three years. R. 198. Plaintiff responded that he and his family

go to Austin a couple of times each year to attend University of Texas football

games. R. 198–99. Plaintiff commented that he usually stays in the hotel room, but

he did attend the first game of the season the previous year. R. 199. Accordingly, the

ALJ’s finding is consistent with the evidence of Plaintiff daily activities, including

travelling and attending football games.

Finally, Plaintiff contends that the ALJ erred when he failed to give Plaintiff’s

testimony appropriate credibility. ECF No. 13 at 6–7. A factfinder’s evaluation of

the credibility of subjective complains is entitled to judicial deference if supported

by substantial evidence. Villa v. Sullivan, 895 F.2d 1019, 1024 (5th Cir. 1990)

(affirming ALJ’s decision to afford greater weight to objective evidence over

Plaintiff’s subjective complaints). However, an ALJ’s unfavorable credibility

evaluation of a plaintiff’s complaints of pain will not be upheld when the

uncontroverted medical evidence shows a basis for his complaints “unless the ALJ

weighs the objective medical evidence and assigns articulated reasons for

discrediting claimant’s subjective complaints of pain.” Anderson v. Sullivan, 887

F.2d 630, 633 (5th Cir. 1989) (quoting Abshire v. Bowen, 848 F.2d 638, 642 (5th

Cir. 1988) (per curiam)).

The ALJ weighed the medical evidence and Plaintiff’s testimony to find that

Plaintiff’s pain had substantially improved with the use of the spinal cord

stimulator.32 Additionally, the ALJ noted that Plaintiff’s testimony was

contradictory, stating that his chronic, right-sided abdominal pain feels like “a vise,”

while also testifying that his pain was reduced to a modest “3” level. R. 158. For

these reasons, the ALJ found that Plaintiff’s statements concerning intensity,

persistence, and limiting effects were “not entirely consistent with the medical

evidence and other evidence in the record.” R. 158–59.

Accordingly, substantial evidence supports the ALJ’s assessment of the

credibility of Plaintiff’s testimony.

3. The ALJ’s misstatements of the record were harmless error.

Plaintiff argues that the ALJ erred because he misstated the record, which

prejudiced Plaintiff. Plaintiff bears the burden of proof to show that an ALJ’s error

affected his substantial rights. Audler v. Astrue, 501 F.3d 446, 449 (5th Cir. 2007)

(reversing when Plaintiff met burden to show that ALJ’s error of not properly

explaining the decision affected her substantial rights). An ALJ need not discuss

every piece of evidence, but it is his responsibility to “develop facts fully and fairly

relating to applicant’s claim for disability benefits.” Ripley, 67 F.3d at 557; Jefferson

32 The ALJ observed Plaintiff testified that he no longer takes pain medication, and after the

implantation of a spinal cord stimulator, his pain level is reduced to a modest ‘3’ level when used.

R. 158. Similarly, the ALJ found that the most recent medical records showed normal examinations

of Plaintiff and improved pain management from his treating physicians. R. 158–60.

v. Barnhart, 356 F.Supp.2d 663, 675 (S.D. Tex. 2004) (“Although the ALJ need not

discuss every piece of evidence, he may not ignore evidence that does not support

his decision.”).

Plaintiff argues the ALJ cherry-picked the evidence when he omitted

Dr. Redko’s observation that Plaintiff “cannot sit or work at a desk.” ECF No. 13 at

10. An ALJ’s failure to mention a particular piece of evidence does not necessarily

mean that he failed to consider it. Hammond, 124 F. App’x at 851 (holding that an

ALJ’s failure to articulate the weight given to state agency medical consultants was

harmless error). Dr. Redko’s notation that Plaintiff cannot sit or work at a desk

appears in every examination under “Subjective.”33 However, following the addition

of the spinal cord stimulator, Dr. Redko included additional notes in the Subjective

section, stating that pain was now “intermittently present,” the recent intercostal

block provided “near complete pain relief,” and Plaintiff could now “work with

treatment plan.” R. 2773 (1/22/18). Additionally, Dr. Redko described Plaintiff as

“improving on treatment.” R. 2764 (4/6/18). While the ALJ did not include this

statement, the ALJ found Dr. Redko’s treatment history to overall reflect that

Plaintiff experienced significant improvement with recent medications and the

spinal cord stimulator. R. 159–60. Dr. Redko’s notes support this assertion.

33 R. 2651 (10/1/17); R. 2786 (10/2/17); R. 2783 (10/23/17); R. 2779 (11/6/17); R. 2776 (1/15/18);

R. 2773 (1/22/18); R. 2770 (2/22/18); R. 2767 (3/1/18); R. 2760 (3/22/18); R. 2756 (3/29/18);

R. 2764 (4/16/18).

Furthermore, the ALJ assessed medical evidence weighing on both sides of

the argument. For example, the ALJ discussed how Plaintiff estimated that he could

sit for only 30 minutes at a time and stand for an hour before changing positions.

R. 158. The ALJ also delved into Plaintiff’s account that multiple procedures failed

to correct his condition, noting his medications, injections, previous surgeries, and

finally the implanted spinal cord stimulator. R. 158–60.34 As the record contains

more than thirty physicians’ opinions, the ALJ accounted for physicians who both

found Plaintiff to be disabled and able to work at a greater exertion level than the

ALJ determined. The ALJ heavily relied on the physicians with the longest

established treatment relationship with Plaintiff, who were also recent treaters,

Dr. Redko and Dr. Uzodinma. For the stated reasons, the ALJ did not simply ignore

evidence that did not support his decision. Jefferson, 356 F.Supp.2d at 675 (reversing

when ALJ’s discussion omitted conflicting evidence regarding Plaintiff’s

impairments.).

Further, Plaintiff argues that the ALJ misstated the evidence to find that

34 The ALJ examined Plaintiff’s treatment history, beginning with a July 2014 cholecystectomy,

following with Plaintiff complained of chronic pain. R. 159. His pain was not relieved, and he

underwent endoscopic sphincterotomy in February 2015 and in April 2015, his physicians

performed an ERCP. When Plaintiff continued to experience abdominal pain, doctors eventually

diagnosed Plaintiff with SOD. R. 159. The ALJ noted that Plaintiff’s pain continued even after an

exploratory laparotomy with lysis of adhesions, transduodenal bile duct sphincterosplasty, a

transduodenal pancreas duct septoplasty, and alcohol celiac nerve block. R. 159. The ALJ observed

that it wasn’t until Dr. Uzodinma installed the spinal cord stimulator did Plaintiff finally experience

significant pain relief. R. 159.

Plaintiff’s condition was improving. ECF No. 13 at 9. Although Plaintiff challenges

this assertion,35 the record contains several physicians opining to his improvements.

As discussed, both treating physicians Dr. Redko36 and Dr. Uzodinma37 observed

noticeable improvements throughout the treatment history. In these observations,

both physicians noted improvements with the use of medications, intercostal blocks,

and the spinal cord stimulator. Additionally, Plaintiff himself testified to improved

functionality. Plaintiff reported improved functionality to Dr. Uzodinma,38 and

35 Plaintiff argues that when the ALJ stated he “experienced significant pain relief with

medications, injections, and his spinal cord stimulator,” R. 159, the ALJ was misstating the record.

ECF No. 13 at 9. Plaintiff argues that a common sense look at the record shows a much different

picture. Id.

36 R. 2776 (On 1/15/18, Dr. Redko noted intercostal nerves brought some partial improvement, the

implanted spinal cord stimulator provided some partial improvements, the intercostal block

provided near complete pain relief, Plaintiff was able to work on current treatment plan, and finally

that Plaintiff was improving on current treatment). Dr. Redko copied this sentiment in his

following examinations. R. 2773 (1/22/18); R. 2770 (2/22/18); R. 2767 (3/1/18); R. 2760

(3/22/18); R. 2756 (3/29/18); R. 2764 (4/16/18).

37 R. 2122 (On 1/7/16, Dr. Uzodinma reported that Plaintiff stated his “pain control and activity

have improved considerable since the Lorazepam was increased”); R. 2593 (On 2/12/16, Dr.

Uzodinma reported Plaintiff’s improved functionality and analgesic control on current narcotic-

based maintenance medication therapy); R. 56–59 (On 2/21/17, Dr. Uzodinma reported that

Plaintiff has improved functionality and analgesic control with current opioid medication therapy);

R. 39 (On 4/6/17, Dr. Uzodinma noted that Plaintiff reported 70% improvement with neuropathic

intercostal neuralgia pain with spinal cord stimulator trial); R. 24 (On 5/19/17, Dr. Uzodinma

stated that “Plaintiff has reported improved functionality, quality of life, and analgesic control with

current opioid medication therapy for moderate to severe pain.”).

38 R. 2122 (On 1/7/16, Plaintiff stated his “pain control and activity have improved considerable

since the Lorazepam was increased”); R. 2568 (On 7/19/16, Plaintiff reported improved

functionality on current medication); R. 39 (On 4/6/17, Plaintiff reported 70% improvement with

neuropathic intercostal neuralgia pain with spinal cord stimulator trial); R. 33–39 (On 4/25/17,

Plaintiff reported improved functional ability to tolerate a workday without need to standup and

walk around frequently to relieve abdominal discomfort); R. 26 (On 5/19/17, Plaintiff reported

testified that he no longer takes medication because he has the spinal cord stimulator,

which reduces his pain to a level 3. R. 186–87.39 Accordingly, substantial evidence

supports the ALJ’s finding that Plaintiff’s condition had improved, and he did not

cherry-pick the evidence in making this assertion.

Plaintiff additionally points to several misstatements in the record in which

the ALJ cited to the wrong page number, the wrong physician’s name, listed the

incorrect date, or the wrong procedure. ECF No. 13 at 9–11. But Plaintiff has failed

to meet his burden to show that these misstatements would affect his substantial

rights. Jones v. Astrue, 691 F.3d 730, 734–35 (5th Cir. 2012) (holding that to

establish an error warranting remand, a plaintiff bears the burden of demonstrating

that it is possible that a different result would occur absent the error). Mistakes in

the record will only be the basis for remand if such errors would cast into doubt the

existence of substantial evidence to support the ALJ’s decision. See Morris v.

Bowen, 864 F.2d 333, 335 (5th Cir. 1988) (affirming ALJ decision when procedural

improprieties did not eliminate substantial evidence). Harmless error exists when it

is inconceivable that a different administrative conclusion would have been reached

improved functionality, quality of life, and analgesic control with current opioid medication

therapy for moderate to severe pain.).

39 At the oral hearing, the ALJ asked Plaintiff, “[i]f you go around normally doing what you do

and you got it on, it’s working during the day, where are you at?” R. 187. Plaintiff responded, “[i]t

depends how long I do something.” R. 187. The ALJ rephrased the question and asked, “what

generally are you, a 3?” To which Plaintiff responded, “[i]t would say it’s a 3 now.” R. 187.

Plaintiff also testified at the hearing that the spinal cord stimulator was “replacing drugs.” R. 187.

absent the error. Frank v. Barnhart, 326 F.3d 618, 622 (5th Cir. 2003) (affirming

ALJ’s decision when error in assessing Plaintiff’s credibility would not have

affected the outcome of the decision); Bornette v. Barnhart, 466 F.Supp.2d 811, 816

(E.D. Tex. 2006) (“error is harmless unless there is reason to believe that remand

might lead to a different result.”).

Considering the voluminous record, an incorrect page number referencing to

a physician’s opinion would not conceivably result in a different outcome.40

Similarly, the ALJ’s improper citation to Dr. Uzodinma when it was Dr. Catalano

who first diagnosed Plaintiff with intercostal neuralgia would not affect the outcome

in the ALJ finding that Plaintiff’s condition significantly improved from the onset

of his pain. Plaintiff also argues that the ALJ incorrectly stated that Dr. Swamy

“conducted a functional capacity examination of [Plaintiff],” R. 159, when he is in

fact a consultant who has never personally examined Plaintiff. When assessing the

consistency of Dr. Swamy’s opinion, the ALJ only afforded it “some weight,”

finding it to be somewhat supported by medical evidence and consistent with the

record as a whole. R. 161. Not giving this opinion great weight, it did not constitute

a large factor of the ALJ’s analysis. Further, the ALJ does not state any additional

40 Simon v. Saul, No. 4:19-cv-3357, 2021 WL 920194, at *4 (S.D. Tex. Jan. 27, 2021) (finding

harmless error when ALJ mistakenly stated the incorrect surgery); Garza Mundy v. Berryhill, No.

1:18-cv-172, 2019 WL 5269177, at *6 (S.D. Tex. Sept. 12, 2019) (finding harmless error when

ALJ failed to consider work history as a factor in the RFC); Whitaker v. Colvin, No. H-15-2035,

2017 WL 875290, at *17 (S.D. Tex. Feb. 15, 2017) (finding harmless error when ALJ failed to

discuss any hospital record in his decision).

weight was given to this opinion considering him to be an examining physician

versus a hired consultant. Therefore, if the Court were to remand the case to

reconsider the evidence with clarification of Dr. Swamy’s status as a consultant, it

is implausible that a different outcome would occur. Finally, Plaintiff adds that the

ALJ incorrectly stated that Plaintiff received a radiofrequency ablation. ECF No. 13

at 10. However, in July 2016, Dr. Uzodinma reported that he performed a

radiofrequency ablation of several right-side intercostal nerves. R. 8.

Plaintiff has failed to identify a misstatement that casts doubt into the

existence of substantial evidence to support the ALJ’s decision.

C. Substantial Evidence Supports the ALJ’s RFC.

The RFC analysis is conducted in between steps three and four, at which point

Plaintiff maintains the burden of proof to show that he cannot perform the full range

of sedentary work. Grenspan, 38 F.3d at 237. The Social Security regulations define

sedentary work in § 404.1567(a) as follows:

Sedentary work involves lifting no more than 10 pounds at a time and

occasionally lifting or carrying articles like docket files, ledgers, and small

tools. Although a sedentary job is defined as one which involves sitting, a

certain amount of walking and standing is often necessary in carrying out job

duties. Jobs are sedentary if walking and standing are required occasionally,

and other sedentary criteria are met. 20 C.F.R. § 404.1567.

SSR 83-10 elaborates on the definition of “sedentary work” and explains that

“standing or walking should generally total no more than about 2 hours of an 8-hour

workday, and sitting should generally total approximately 6 hours of an 8-hour

workday.” Myers, 238 F.3d at 610.

Plaintiff argues that he cannot perform sedentary work because the biggest

difficulty with his impairment is sitting. ECF No. 13 at 11. Plaintiff contends that

the ALJ could not have found Plaintiff to be able to perform the full range of

sedentary work had the ALJ conducted a proper function-by-function assessment

considering all of the evidence. Id. at 12–13.

The Fifth Circuit has held that the RFC assessment is a function-by-function

assessment based upon all of the relevant evidence of an individual’s ability to do

work-related activities. Myers, 238 F.3d at 620 (remanding when ALJ failed to

address every function of sedentary work). In his RFC assessment, the ALJ

considered the medical opinions of Dr. Redko, Dr. Uzodinma, Dr. Swamy,

Dr. Stanfill, Dr. Williams, Dr. Smith, the state agency medical consultants, the

medical records, and Plaintiff’s testimony. R. 157–61. The ALJ noted Dr. Swamy’s

functional report, the representative’s functional report, the state agency consultant’s

functional report, and Plaintiff’s testimony concerning his functional capacity. Id.41

41 Dr. Swamy is a medical consultant who reviewed the record and discussed Plaintiff’s medical

history with Dr. Lehman, a previous treating physician of Plaintiff. R. 2696. The ALJ noted that

Dr. Swamy described Plaintiff’s pain as “intermittent pain over his chest area.” R. 159 (referencing

2701). Additionally, the ALJ noted that Dr. Swamy found no motor dysfunction, normal sensation,

and normal gait and opined that Plaintiff “did not appear incapacitated by [his pain].” R. 159

(R. 2701–04). Additionally, Dr. Swamy conducted an RFC for Plaintiff, limiting him to light work.

R. 160 (referencing R. 2701–04). Dr. Swamy limited Plaintiff to lifting, carrying, pushing, or

pulling up to 25 pounds occasionally and 15 pounds frequently. Id. Dr. Swamy also saw no

limitations on sitting and standing but allowed Plaintiff to be able to change positions between

sitting and standing every 30 minutes. He additionally limited Plaintiff to never kneeling, crawling,

The ALJ reasoned that he found the record supported more limitations than what

Dr. Swamy and the state agency consultant granted—both of whom opinioned that

Plaintiff could perform at light work. R. 161.

However, the ALJ found that Plaintiff’s testimony concerning his functional

capacity was not entirely supported by the record considering Plaintiff’s daily

activities. R. 15942 (observing that Plaintiff’s functional limitations do not

or twisting and never driving and operating heavy machinery, occasionally bending, occasionally

lifting up to 20 pounds overhead, and no cognitive limitations. Id. The ALJ detailed Dr. Swamy’s

analysis, but only afforded it some weight as he found the record supported additional limitations

that reduce Plaintiff to sedentary level of functioning. R. 161.

The ALJ also discussed the functional limitations proffered by Plaintiff’s representative, affording

it little weight. R. 161. Plaintiff’s representative stated Plaintiff must lie down two hours a day;

must be off work at least three hours each week for doctor appointments; off take more than 20

percent of the day, and could only perform “simple” tasks. R. 161. The ALJ found the

representative’s limitations to be inconsistent with the record considering Plaintiff’s daily social

activities. R. 161. The ALJ also noted that the record did not support a finding of mental limitations

that would limit Plaintiff to “simple tasks” or being “off task.”

The ALJ also discussed the functional limitations provided by the state agency consultants, who—

like Dr. Swamy—found Plaintiff could perform light work. R. 161.

The ALJ noted Plaintiff’s testimony at the hearing concerning his functional limitations. R. 158.

Plaintiff testified at the hearing to chronic, right sided abdominal pain that feels “like a vise” with

numbness in his right arm and leg. R. 158 (referencing R. 185–86) Plaintiff complains that he

experiences the most pain with sitting straight up, and standing is preferable. R. 158 (referencing

R. 185). Plaintiff estimated that he could sit for 30 minutes and stand for one hour before changing

positions. R. 158 (referencing R. 186–87). Further, Plaintiff testified that in the past he could lift

his 80-pound dog and lift 100 pounds at work. R. 159 (referencing R. 194). The ALJ reasoned that

while medical evidence shows that he is no longer capable of such activity due to pain, it does not

show that his limitations completely restrict him from performing all work activity or at the very

least sedentary work. R. 159.

42 The ALJ observed that based on the record, Plaintiff was able to exercise on the treadmill but

spends a great deal of time watching Netflix; he engages in numerous daily activities including

driving his vehicle, travelling for a week vacation to his parents’ ski lodge, travelling to Grand

Cayman Island with his wife and parents, and going to University of Texas football games. R. 158.

completely restrict him from engaging in exercise, family, social activities, or

vacation travel). The ALJ also discussed the examinations of Dr. Redko,

Dr. Uzodinma, and Dr. Smith, all of whom more recently conducted unremarkable

examinations, analyzing both mental and physical limitations. R. 160. 43 Based on

the medical records, the medical opinions, and Plaintiff’s testimony, the ALJ found

that Plaintiff’s condition had improved with the use of medications and the spinal

The ALJ reasoned that Plaintiff’s daily activities revealed a significantly greater physical

functional ability than alleged and displayed at least a sedentary level of function. R. 158.

43 The ALJ afforded great weight to the opinions of Dr. Redko, Dr. Uzodinma, and Dr. Smith.

R. 159–60. Concerning Dr. Redko, the ALJ discussed his more recent examinations—after the

spinal cord stimulator was implanted—in which Dr. Redko opined that Plaintiff could “work with

current treatment plan,” and his pain was between a 2 and a 6. R. 159 (referencing R. 2641). The

ALJ also noted that Dr. Redko examined Plaintiff in March 2018 and noted normal alignment of

the spine with adequate range of motion flexion extension and lateral rotation, normal range of

motion in the upper and lower extremities, normal strength with no muscle atrophy or wasting

throughout, and intact reflexes bilaterally in the upper and lower extremities. R. 160 (referencing

R. 2767). Further, the x-ray examinations conducted at this time showed no hip or lumbar

pathology. Id.

Concerning Dr. Uzodinma, the ALJ discussed his reports from both a pain management

perspective and a psychological perspective. The ALJ discussed how Plaintiff’s pain decreased

with the assistance of the spinal cord stimulator trial performed by Dr. Uzodinma, plus the

assistance of medication and some injections. R. 159 (referencing R. 2538). Due to the

improvement in pain management, the ALJ noted that Plaintiff reported to Dr. Uzodinma in

September 2017 that he was receiving good pain coverage, so much so that he was able to come

off of medication. R. 159 (referencing R. 2726–28). The ALJ also discussed Dr. Uzodinma’s

psychological examination of Plaintiff. R. 160 (referencing R. 2729). The ALJ noted that

Dr. Uzodinma observed Plaintiff to have normal affect, mood, behavior, thought content, and

judgment. Id.

Further, the ALJ discussed Dr. Smith’s psychological examination of Plaintiff as well to assess

Plaintiff’s mental limitations. R. 160 (referencing R. 1988). The ALJ detailed that Dr. Smith, who

cleared Plaintiff psychologically for surgery without reservation, found Plaintiff to possess no

cognitive impairments. Similar to Dr. Uzodinma, The ALJ afforded this opinion great weight as it

revealed no mental impairments, which the ALJ found the record supported.

cord stimulator such that Plaintiff was capable of performing sedentary work.“ The

ALJ properly conducted a function-by-function examination in the RFC analysis.*

Therefore, substantial evidence supports the ALJ’s conclusion that Plaintiff can

perform the full range of sedentary work.

IV. CONCLUSION

For the reasons stated, the Court ORDERS the following: Plaintiff's motion

for summary judgment, ECF NO. 13, is DENIED, and Defendant’s motion for

summary judgment, ECF No. 14, is GRANTED. The Commissioner’s decision is

AFFIRMED. This case is DISMISSED WITH PREJUDICE.

Signed at Houston, Texas, on June 28, 2021.

Dena Hanovice Palermo

United States Magistrate Judge

“4 Tn addition to the records discussed, the ALJ noted that the Dellon Institute for Peripheral Nerve

Institute also confirmed that the spinal cord stimulator provided relief. R. 160 (referencing

R. 2853-59).

45 See Johnson vy. Astrue, 291 F. App’x 548, 551 (Sth Cir. 2008) (affirming ALJ’s finding that

Plaintiff could perform sedentary work despite Plaintiffs need to change positions throughout the

day); Spellman v. Shalala, 1 F.3d 357, 364-65 (Sth Cir. 1993) (affirming ALJ’s finding that

Plaintiff could perform sedentary work because treating physician’s opinion was inconsistent with

evidence of Plaintiff’s everyday activities); Libbey v. Astrue, No. H-09-2004, 2010 WL 2710669,

at *8 (S.D. Tex. July 6, 2010) (affirming ALJ’s finding that Plaintiff could perform sedentary work

when Plaintiff failed to present treating physicians’ opinions to contradict findings, and when

Plaintiffs daily activities supported the finding); but see Myers, 238 F.3d at 621 (reversing ALJ’s

finding that Plaintiff could perform sedentary work when ALJ disregarded every treating

physician’s opinion to the contrary and relied solely on the medical consultant who had never

examined Plaintiff).

38