Boyd v. Saul

IN THE UNITED STATES DISTRICT COURT September 17, 2021

Nathan Ochsner, Clerk

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

§

COURTNEY B.,1 §

§

Plaintiff, §

§ Case No. 4:19-CV-04525

v. §

§

KILOLO KIJAKAZI,2 §

Acting Commissioner of Social §

Security §

§

Defendant. §

MEMORANDUM AND ORDER

ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

Plaintiff Courtney B. (“Plaintiff”) 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. 1.3 The Parties filed cross-motions for summary judgment. ECF

Nos. 12, 13. Based on the briefing and the record, the Court determines that the

Plaintiff’s motion is denied, the Defendant’s motion is granted, and the

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 The suit was originally filed against Andrew Saul, the then-Commissioner of the Social Security

Administration. Pursuant to Federal Rule of Civil Procedure 25(d), Kilolo Kijakazi has been

automatically substituted as Defendant.

3 On March 4, 2020, the case was transferred to this Court to conduct all proceedings pursuant to

28 U.S.C. § 636(c). ECF No. 10.

Commissioner’s final decision in the underlying administrative action is affirmed.

I. BACKGROUND

Plaintiff is a 37-year-old woman, with a high school education. R. 7, 191,

214.4 Plaintiff worked as a medical billing manager, a grocery cashier and manager,

and has done medical billing and medical coding. R. 215, 236–44. Plaintiff has not

returned to work since February 23, 2016. R. 214.

On February 13, 2017, Plaintiff filed her application for disability insurance

benefits under Title II of the Act, claiming both physical and mental impairments

and alleging an onset date of February 23, 2016. R. 191–92. Plaintiff based5 her

application on syringomyelia syrinx on spinal cord, chronic pain, continual muscle

spasms, sporadic paralysis on right side, bilateral numbness in hands, complications

with bowel movements, complications with urination, and depression. R. 213. The

Commissioner denied her claim initially, R. 112–16, and on reconsideration. R. 117–

21.

A hearing was held before an Administrative Law Judge (“ALJ”). An attorney

represented Plaintiff at the hearing. R. 40. Plaintiff, a medical expert (“ME”), and a

4 “R.” citations refer to the electronically filed Administrative Record, ECF No. 8.

5 The relevant time period is February 23, 2016—Plaintiff’s alleged onset date—through

December 31, 2019—Plaintiff’s last insured date. ECF No. 12 at 2. 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).

vocational expert (“VE”) testified at the hearing. R. 41. The ALJ issued a decision

denying Plaintiff’s request for benefits.6 R. 14. The Appeals Council denied

Plaintiff’s request for review, affirming the ALJ’s denial of benefits. R. 1; see Sims

v. Apfel, 530 U.S. 103, 106 (2000) (explaining that when the Appeals Council denies

the request for review, the ALJ’s opinion becomes the Commissioner’s final

decision).

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

asking the Court to find that Plaintiff is entitled to disability benefits under the Act,

or, in the alternative, remand for reconsideration of the evidence. ECF No. 1; Pl.’s

6 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 five. R. 32. At step one,

the ALJ found that Plaintiff did not engage in substantial gainful activity since her alleged onset

date of February 23, 2016. R. 19 (citing 20 C.F.R. 404.1571 et seq.). At step two, the ALJ found

that Plaintiff has the following severe impairments: chronic pain, anxiety, and major depressive

disorder. R. 20. 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. 20. The ALJ found that Plaintiff has the Residual Functional Capacity (“RFC”) to

perform light work as defined in 20 CFR 404.1567(b). R. 22. However, the ALJ included

limitations, including that Plaintiff could never climb ladders, ropes, or scaffolds; could never be

exposed to extreme heat or cold; could occasionally climb ramps and stairs, balance, stoop, kneel,

crouch, and crawl; could understand, remember, and carryout simple, routine, and repetitive tasks,

involving only simple work-related decisions with few, if any, workplace changes; could have

occasional interaction with the public; and the job should not have any assembly lines or mandated

teams and should be self-paced so the claimant can speed up or slow down or even stop so long as

the assigned work is complete by the end of the shift. R. 22. At step four, the ALJ determined that

through the date last insured, Plaintiff was unable to perform any past relevant work. R. 30. At

step five, based on the testimony of the vocational expert and a review of the report, the ALJ

concluded that considering Plaintiff’s age, education, work experience, and RFC, Plaintiff was

capable of making a successful adjustment to other work that exists in significant numbers in the

national economy, including mail clerk, office cleaner, and shipping and receiving weigher. R. 31.

Therefore, the ALJ concluded that Plaintiff was not disabled. R. 32.

MSJ Brief, ECF No. 12. In his cross motion, Defendant contends that the ALJ’s

findings are proper and supported by substantial evidence. Def.’s MSJ Brief, ECF

No. 13.

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

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 fact, 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, 219 F.3d at 393. “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 factors 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.” Conley-Clinton v. Saul,

787 F. App’x 214, 216 (5th Cir. 2019) (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. Brown, 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. “Only where there is a

‘conspicuous absence of credible choices or no contrary medical evidence’ will we

find that the substantial evidence standard has not been met.” Qualls v. Astrue, 339

F. App’x 461, 464 (5th Cir. 2009).

III. BURDEN OF PROOF

An individual claiming entitlement to disability insurance benefits under the

Act has the burden of proving her disability. Johnson v. Bowen, 864 F.2d 340, 343–

44 (5th Cir. 1988). The Act defines disability 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.”

42 U.S.C. § 423(d) (1)(A) (2000). The impairment must be proven through

medically accepted clinical and laboratory diagnostic techniques. 42 U.S.C.

§ 423(d)(3) (2000). The impairment must be so severe that the claimant is “incapable

of engaging in any substantial gainful activity.” Foster v. Astrue, No. H-08-2843,

2011 WL 5509475, at *6 (S.D. Tex. Nov. 10, 2011) (citing Anthony v. Sullivan, 954

F.2d 289, 293 (5th Cir. 1992)). A claimant is eligible for benefits only if the onset

of the impairment started by the date the claimant was last insured. Id. (citing Ivy v.

Sullivan, 898 F.2d 1045, 1048 (5th Cir. 1990)).

The Commissioner applies a five-step sequential process to determine

disability status. Id. The claimant bears the burden of proof at the first four steps to

establish that a disability exists. Farr, 2012 WL 6020061, at *2. The burden shifts

to the Commissioner at step five to show that the claimant can perform other work.

Id. The burden then shifts back to the claimant to rebut this finding. Id. If at any step

in the process the Commissioner determines that the claimant is or is not disabled,

the evaluation ends. Id.

IV. DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT.

Plaintiff raises three issues. First, Plaintiff argues that the ALJ violated SSR

00-4p by not resolving the conflict between the vocational expert’s testimony and

the DOT. ECF No. 12 at 4–7. Second, Plaintiff contends that the ALJ misstated and

cherry-picked the evidence and failed to adequately explain the decision. Id. at 7–

13. Third, Plaintiff argues that the ALJ erred in not providing an explanation as to

how much weight was given to treating physician opinions and why their opinions

went unreferenced. Id. at 13-15. Defendant counters that the vocational expert’s

testimony is consistent with the DOT and Plaintiff failed to show that she cannot

perform the step five jobs. ECF No. 14 at 5–7. The Commissioner also argues that

the ALJ properly considered and weighed the evidence of record, including the

treating physicians’ opinions, and that the ALJ’s decision is supported by substantial

evidence. Id. at 7–11.

A. ALJ Did Not Violate SSR 00-4p When Considering the Vocational

Expert’s Testimony.

Plaintiff argues that the ALJ violated SSR 00-4p in two ways. First, Plaintiff

contends that the ALJ failed to resolve the conflict between the VE’s testimony and

the DOT because the ALJ’s finding that Plaintiff could perform the position of

“office clerk (DOT 323.687-014): 917,000 jobs nationally” conflicts with the actual

description of the position in the DOT. ECF No. 12 at 4. Plaintiff asserts the DOT

number the ALJ provided corresponds to a job called “cleaner, housekeeping (any

industry)” with requirements that differ from the position the ALJ provided. Id.

Plaintiff argues that she cannot respond to the finding without knowing to which

position the ALJ refers. Id. Second, Plaintiff further argues that the ALJ violated

SSR 00-4p by accepting the VE’s testimony despite a conflict in the reasoning level

of the jobs the VE provided VE and the ALJ’s RFC determination. Id. at 6–7.

Defendant concedes that the ALJ committed “a scrivener’s error” when she

provided the proper DOT code for the position of office cleaner but referred to the

position as office clerk. ECF No. 14 at 5. However, Defendant argues that Plaintiff

could have easily responded to the position of office cleaner as this was the position

the VE identified with the same DOT code the ALJ included in her decision. Id.

at 5–6. Further, Defendant argues that there is no “conflict” between the DOT and

the VE’s testimony as the VE provided the correct job title and corresponding DOT

number. Id. at 6. Defendant also argues that there is no conflict between the jobs the

VE provided and the ALJ’s RFC determination because an RFC limiting a person to

simple tasks does not preclude the performance of jobs with level three reasoning.

Id. at 7.

1. The ALJ did not commit reversible error when she cited the wrong job

title for one of the jobs the VE provided.

The error Plaintiff identified involves only the ALJ’s recitation of the title of

the position, not the DOT code for office cleaner. R. 32. During the hearing, the VE

provided both the correct job title and corresponding DOT number for the position

of “office cleaner.” R. 74.

Where the ALJ’s intent is apparent, an error or contradiction in a decision may

be excused as a scrivener’s error. Galvan v. Berryhill, No. 4:15-CV-3718, 2018 WL

993882, at *3 n.3 (S.D. Tex. Feb. 21, 2018) (citing Dukes v. Colvin, No. 3:14-CV-

173-BF, 2015 WL 1442988, at *4 (N.D. Tex. Mar. 31, 2015)). In cases where the

error has no effect on the analysis or the outcome, courts again consider it to be a

scrivener’s error. See, e.g., Wills v. Colvin, No. 1:14-CV-504, 2016 WL 792693, at

*6–7 (E.D. Tex. Mar. 1, 2016) (holding that a single mention in ALJ’s decision that

claimant was able to perform light work, where the ALJ stated later in the opinion

that claimant was able to perform medium work, constituted a scrivener’s error

because other evidence in the opinion indicated ALJ’s intent to limit claimant to

medium work); Madison v. Astrue, No. 3:CV-07-364, 2008 WL 2962337, at *6

(M.D. Pa. July 29, 2008) (finding the ALJ’s use of the phrase “unable to perform

any past relevant work” in the heading of his analysis in step four amounted to a

scrivener’s error because the ALJ went on to step five and found that claimant could

perform other work in the national economy). In contrast, where the error alters the

outcome of the ALJ’s decision, courts have found that it amounts to more than a

mere transcription or typographical error. See, e.g., Smith v. Colvin, No. 3:15-CV-

2964-BH, 2016 WL 5086073, at *10–11 (N.D. Tex. Sept. 19, 2016) (rejecting

Commissioner’s argument that ALJ’s error constituted a scrivener’s error because

RFC was inconsistent with the step five determination and evidence in record did

not clearly reveal the ALJ’s intent).

The ALJ posed two hypothetical questions to the VE that included Plaintiff’s

limitations on her ability to work. Based on the second set of parameters, the VE

testified that the hypothetical person would be able to serve in the positions of mail

clerk (DOT 209.687-026), office cleaner (DOT 323.687-014), and shipping and

receiving weigher (DOT 222.387-074). R. 73–75. The VE further testified that there

were 100,000 mail clerk jobs nationally, 917,000 office cleaner jobs nationally, and

69,000 shipping and receiving weigher jobs nationally. Id. When crafting her

decision, the ALJ relied on the VE’s testimony. The ALJ wrote, “The vocational

expert testified that given all of these factors the individual would be able to perform

the requirements of representative occupations, light and unskilled, such as: 1. Mail

clerk (DOT 209.687-026): 100,000 jobs nationally; 2. Office clerk (DOT 323.687-

014): 917,000 jobs nationally; and 3. Shipping receiving clerk (DOT 222.387-074):

69,000 jobs nationally.” R. 31–32. Further, the ALJ wrote, “Based on the testimony

of the vocational expert, the undersigned concludes that, considering the claimant’s

age, education, work experience, and residual functional capacity, the claimant is

capable of making a successful adjustment to other work that exists in significant

numbers in the national economy.” R. 32.

Despite the discrepancy between the VE’s testimony and the ALJ’s written

opinion as to the title of one of the jobs identified, in context, the surrounding

paragraphs make clear that the ALJ intended to identify the position of office cleaner

rather than office clerk. Not only did the ALJ include the same DOT code that the

VE provided at the hearing for the position of office cleaner, but the ALJ also

included the same number of nationwide jobs that the VE stated at the hearing.

Therefore, the Court finds that the ALJ’s use of the job title office clerk, rather than

office cleaner, is a scrivener’s error.

SSR 00-4p is inapplicable. SSR 00-4p provides that:

When a VE or VS provides evidence about the requirements of a job or

occupation, the adjudicator has an affirmative responsibility to ask about any

possible conflict between that VE or VS evidence and information provided

in the DOT. In these situations, the adjudicator will: ask the VE or VS if the

evidence he or she has provided conflicts with information provided in the

DOT; and if the VE’s or VS’s evidence appears to conflict with the DOT, the

adjudicator will obtain a reasonable explanation for the apparent conflict.

SSR 00-4p, 2000 WL 1898704, at *4 (SSA Dec. 4, 2000). “When vocational

evidence provided by [an expert] is not consistent with information in the DOT, the

adjudicator must resolve this conflict before relying on the . . . evidence to support

a determination or decision that the individual is or is not disabled.” Id. If the conflict

is resolved in favor of the VE, the ALJ must articulate a “plausible reason” for

accepting testimony that conflicts with the DOT so that the hearing decision is

susceptible to meaningful judicial review. Augustine v. Barnhart, No. 1-00-CV-749,

2002 WL 31098512, at *10 (E.D. Tex. Aug. 27, 2002); see also SSR 00-4p

(providing examples of reasonable explanations for disregarding DOT). However,

the testimony of the VE did not conflict with the DOT. The ALJ reasonably relied

on the VE’s testimony because the record reflects an adequate basis for the assertion

that Plaintiff could perform the jobs the VE identified. See Carey, 230 F.3d at 146.

Therefore, the ALJ was not required to explain in her decision how she resolved the

conflict because there is no such conflict.7

2. The jobs the VE provided did not conflict with the ALJ’s RFC

determination.

In her RFC determination, the ALJ found that Plaintiff can “understand,

remember, and carryout simple, routine and repetitive tasks involving only simple

work-related decisions with few, if any, work place changes.” R. 22. Plaintiff argues

that the jobs the VE provided at the hearing conflict with this determination. ECF

7 Plaintiff cites Bridges v. Astrue as support for her argument that the ALJ committed legal error

by accepting the VE’s conflicting testimony without any further inquiry. ECF No 12 at 6 (citing

Bridges v. Astrue, No. 07-490-FJP-DLD, 2008 WL 4510037, at *6 (M.D. La. Sept. 30, 2008)). In

Bridges, the court found that the jobs the VE identified were in fact categories of jobs, creating

ambiguity with respect to the identity, number, and listed skill level of the positions, and that the

VE failed to describe the specific skills and exertional levels required for the positions, other than

to say that they were unskilled, sedentary jobs. 2008 WL 4510037, at *5. Unlike in Bridges,

Plaintiff has not pointed to any conflict between VE’s testimony and the DOT. Rather, the conflict

exists between the VE’s testimony and step five of the ALJ’s decision that included the wrong title

of the job the VE identified. Given this difference, Bridges is inapplicable.

No. 12 at 6. Plaintiff asserts that since the RFC limited her to jobs that require only

simple tasks, she cannot perform the step five jobs, which, according to Plaintiff,

require a reasoning level of three. Id.

However, this court previously rejected this same argument, as have at least

two other district courts in this circuit. Burnham v. Saul, No. H-19-1564, 2020 WL

3259619, at *6–7 (S.D. Tex. Apr. 14, 2020); accord Graves v. Saul, No. 7:18-cv-

00177-O-BP, 2020 WL 896669, at *4 (N.D. Tex. Feb. 25, 2020); Edwards v.

Comm’r, No. 4:18-CV-372, 2019 WL 4564833, at *2–3 (E.D. Tex. Sept. 20, 2019).

In Burnham, the court, citing the holdings in Graves and Edwards, rejected

plaintiff’s argument that the level three reasoning level was inconsistent with the

ALJ’s RFC and plaintiff’s ability to understand, remember and carry out “simple

tasks” and make “simple work related decisions.” 2020 WL 3259619, at *6–7.

Moreover, the office cleaner job has a reasoning level of one, not three.8 DOT

323.687-014, 1991 WL 672783. Plaintiff does not dispute that a reasoning level of

one is consistent with a claimant’s ability to understand simple instructions and

perform simple tasks. See ECF No. 12 at 7. Reasoning level one requires a claimant

to “[a]pply commonsense understanding to carry out simple one- or two-step

instructions. Deal with standardized situations with occasional or no variables in or

8 The jobs of mail clerk and shipping/receiving weigher each have a reasoning level of three.

DOT 209.687-026, 1991 WL 671813; DOT 222.387-074, 1991 WL 672108.

from these situations encountered on the job.” Dictionary of Occupational Titles,

Vol. II, App. C § III. Because the ALJ need only find one job that exists in significant

numbers in the national economy that Plaintiff could perform, the office cleaner job

alone would satisfy that requirement. See Lucia A. v. Saul, No. 4:19-CV-04685, 2021

WL 707672, at *8 (S.D. Tex. Jan. 26, 2021) (finding that substantial evidence

supports the ALJ’s step five determination where one of the jobs identified by the

VE satisfied Plaintiff’s limitations and existed at significant numbers in the

economy); Gaspard v. Soc. Sec. Admin., Comm’r, 609 F. Supp. 2d 607, 617 (E.D.

Tex. 2009) (“The Commissioner’s burden at Step 5 of the sequential evaluation

process . . . is satisfied by showing the existence of only one job with a significant

number of available positions that the claimant can perform.” (citing Evans v.

Chater, 55 F.3d 530, 532–33 (10th Cir. 1995))). Therefore, substantial evidence

supports the ALJ’s step five determination.

B. The ALJ Properly Considered and Weighed the Medical Evidence.

Plaintiff argues that the ALJ misstated and “cherry-picked” the evidence by

omitting or ignoring several pieces of evidence regarding Plaintiff’s symptoms and

appointments. ECF No. 12 at 7–10. Plaintiff contends that the ALJ used only the

evidence that supported her decision. Id. at 10. Defendant counters that the ALJ

properly considered the evidence, and substantial evidence supports her RFC

determination. ECF No. 14 at 7–9.

The RFC determination is the sole responsibility of the ALJ. Taylor v. Astrue,

706 F.3d 600, 602–603 (5th Cir. 2012) (citing Ripley v. Chater, 67 F.3d 552, 557

(5th Cir. 1995)). 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). However, the

“ALJ must consider all the record evidence and cannot ‘pick and choose’ only the

evidence that supports his position.” Loza, 219 F.3d at 393 (citing Switzer v. Heckler,

742 F.2d 382, 385–86 (7th Cir. 1984)). The ALJ must address and make specific

findings regarding the supporting and conflicting evidence, the weight to give that

evidence, and reasons for his or her conclusions regarding the evidence. Armstrong

v. Sullivan, 814 F. Supp. 1364, 1373 (W.D. Tex. 1993).

Plaintiff provides several instances where the ALJ did not cite a particular part

of the record. Among other things, Plaintiff asserts that the ALJ failed to consider

Plaintiff’s history of falling, instances of Plaintiff exhibiting emotional distress, the

context of several medical examinations, several medical examinations Plaintiff

underwent, additional medical diagnoses and observations of Plaintiff’s condition,

and an MRI of Plaintiff’s thoracic spine in March 2017. ECF No. 12 at 7–10.

Plaintiff argues that these instances are examples of the ALJ “cherry-picking” the

record. However, there is no need for the ALJ to discuss each and every piece of

evidence in the record, nor does the ALJ’s failure to discuss the evidence actually

establish a failure to consider the evidence. See Castillo v. Barnhart, 151 F. App’x

334, 335 (5th Cir. 2005) (citing Falco v. Shalala, 27 F.3d 160, 163 (5th Cir. 1994));

Bordelon v. Shalala, No. 94-30377, 1994 WL 684574, at *1 (5th Cir. Nov. 15, 1994).

There is no evidence that the ALJ failed to consider these records just because she

failed to discuss them in her opinion or that she was “picking and choosing” only

evidence that supported her position.

Contrary to this assertion, the ALJ acknowledged and considered some of the

evidence that Plaintiff contends she ignored. For instance, Plaintiff states that the

ALJ ignored a 2017 MRI of her thoracic spine, but the ALJ acknowledged this

examination and noted the mild findings. R. 29. Plaintiff also suggests that the ALJ

ignored her complaints of severe pain during a February 2017 doctor’s visit, but the

ALJ found Plaintiff’s chronic pain to be a severe impairment. R. 20.

Moreover, Plaintiff omits relevant information in the examples she cites as

support for her argument. For example, Plaintiff argues that the ALJ failed to

acknowledge that an emergency room visit in February 2017 occurred due to a fall,

but Plaintiff omitted that she drove herself to the emergency department, was

unreceptive of guidance against driving, continued to ambulate after the fall, and her

pain was mild. See R. 709–10. Plaintiff also argues that, when discussing February

2017 doctor’s visit, the ALJ failed to note that she was sobbing and weeping.

Plaintiff fails to acknowledge, however, that she was composed during the visit.

R. 696.

In conducting her RFC determination, the ALJ considered both conflicting

and supporting evidence. The ALJ acknowledged that Plaintiff’s medically

determinable impairments could reasonably be expected to cause Plaintiff’s alleged

symptoms, but disagreed with Plaintiff concerning the intensity, persistence and

limiting effects of these symptoms. R. 23. Although the ALJ may not have discussed

every piece of evidence in her decision, the ALJ provided a general chronological

outline of the progress of Plaintiff’s symptoms and impairments. The ALJ’s analysis

reflects that Plaintiff suffers from a history of chronic pain, muscular instability,

anxiety, and depression, but that these symptoms were not always present, were

managed through medication, and were often unsubstantiated by medical tests.

R. 22–30. Additionally, Plaintiff’s chronic pain syndrome and mental limitations9

9 Plaintiff did not raise the issue, but the Court notes that the ALJ gave little to no weight to the

only medical opinions on Plaintiff’s mental limitations, including the opinions of two State Agency

physicians, and Dr. Gamez, a psychologist who provided therapy to Plaintiff from May 2018

through December 2018. R. 30. There were no other opinions regarding Plaintiff’s mental

limitations. “[W]hen 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.” Garcia v.

Berryhill, No. 17-CV-263, 2018 WL 1513688, at *2 (W.D. Tex. Mar. 27, 2018) (collecting cases);

accord Allen v. Saul, No. 4:19-cv-1575, 2020 WL 5412630, at *7 (S.D. Tex. Sept. 9, 2020);

Beachum v. Berryhill, No. 17-CV-95, 2018 WL 4560214, at *4 (W.D. Tex. Sept. 21, 2018). By

rejecting the only medical opinions on Plaintiff’s mental limitations, the ALJ improperly

interpreted the raw medical data contained in the records to formulate an RFC. This is particularly

egregious for mental health limitations, which are difficult to determine. Singletary v. Brown, 798

F.2d 818, 820 (5th Cir. 1986) (“Determining whether a claimant is disabled because of a mental

condition under the . . . sequential process can be a difficult task.”). Reversal of an ALJ’s decision

is appropriate, however, only if a plaintiff shows prejudice from the error. Newton v. Apfel, 209

have waxed and waned but have shown improvements in recent years.10 As the trier

of fact, the ALJ is entitled to weigh the evidence against other objective findings.

See Walker v. Barnhart, 158 F. App’x 535, 536 (5th Cir. 2005). Since the ALJ

considered both conflicting and supporting evidence when formulating her RFC

determination, substantial evidence supports the ALJ’s decision.

C. The ALJ Properly Considered Dr. Vahid Eslami’s Opinion.

Plaintiff argues that the ALJ violated 20 C.F.R. § 404.1527(c) because he

failed to consider the opinions of Dr. Vahid Eslami and other treating physicians

F.3d 448, 458 (5th Cir. 2000); Brock v. Chater, 84 F.3d 726, 729 (5th Cir. 1996) (“We will not

reverse the decision of an ALJ for lack of substantial evidence where the claimant makes no

showing that he was prejudiced in any way by the deficiencies he alleges.”). Plaintiff did not show

prejudice because she did not raise the issue and waived any error. See, e.g., Arteaga v. Berryhill,

No. 4:18-CV-3475, 2020 WL 1154570, at *2 n.5 (S.D. Tex. Mar. 10, 2020) (finding that Plaintiff

waived issue with regards to Step Three listings by failing to brief the argument). Moreover,

Plaintiff cited to the ALJ’s treatment of these three opinions in her next point of error as the only

opinions the ALJ showed the weight given. ECF No. 12 at 12. Nonetheless, despite saying she

gave no weight to the opinion, the limitations the ALJ incorporated in the RFC are consistent with

Dr. Gamez’s diagnosis and noted limitations. For example, Dr. Gamez diagnosed Plaintiff with

major depressive disorder and anxiety, R. 1578, which the ALJ found to be severe impairments,

R. 20. In addition, Dr. Gamez noted Plaintiff had difficulty accomplishing tasks. R. 1578. The

RFC limits her to self-pace so that the work need only be done at the end of the day. R. 22.

Dr. Gamez also opined Plaintiff suffered from impaired social functions and distances herself from

people to avoid conflict. R. 1578. The RFC limits her to only occasional interaction with the public,

no assembly line work, and no teamwork. R. 22. Thus, there is no prejudice to Plaintiff.

10 R. 1395 (2/28/18) (Plaintiff able to carry out her daily activity); R. 1414 (3/28/18) (Plaintiff still

cared for her children and husband); R. 1416 (3/28/18) (Plaintiff denied anxiety); R. 1519

(9/28/18) (Plaintiff denied suffering from anxiety); R. 1520 (9/28/18) (Plaintiff’s pain stable on

medication); R. 1521 (9/28/18) (Plaintiff denied suffering from anxiety and depression); R. 1531

(10/29/18) (Plaintiff stated leg tremors have improved and denied suffering from anxiety and

depression); R. 1531 (10/29/18) (Plaintiff functioning well at home taking care of her children and

husband); R. 1534 (10/29/18) (Plaintiff appeared cheerful, pleasant, alert, and oriented); R. 1534

(10/29/18) (no visible tremors); R. 1537 (10/29/18) (tremors improving); R. 1553 (11/15/18)

(muscle spasms not present during examination); R. 1569 (11/28/18) (sporadic symptoms of

paresthesia, tremors, loss of balance); R. 1571 (11/28/18) (Plaintiff alert and oriented).

regarding a diagnosis of stiff person syndrome and failed to explain the weight given

to the opinions of all the treating physicians. ECF No. 12 at 10–14. Defendant

counters that the ALJ properly considered the various medical opinions, and that

even assuming Plaintiff were diagnosed with stiff person syndrome, the diagnosis

alone does not establish disability. ECF No. 14 at 9–10.

An ALJ’s “decision must contain specific reasons for the weight given to the

treating source’s medical opinion, supported by the evidence in the case record, and

must be sufficiently specific to make clear to any subsequent reviewers the weight

the adjudicator gave to the treating source’s medical opinion and the reasons for that

weight.” SSR 96-2p, 61 Fed. Reg. 34490-01 (July 2, 1996); see also Myers v. Apfel,

238 F.3d 617, 621 (5th Cir. 2001). A treating physician’s opinion on the nature and

severity of a claimant’s impairment should be afforded “controlling weight” when it

is “well-supported by medically acceptable clinical and laboratory diagnostic

techniques and is not inconsistent with the other substantial evidence in [the] case

record.” 20 C.F.R. § 404.1527(c)(2).11 “[W]hen good cause is shown, less weight,

little weight, or even no weight may be given to the physician’s testimony” when

such opinions “are brief and conclusory, not supported by medically acceptable

11 In cases filed on or after March 27, 2017, the ALJ “will not defer or give any specific evidentiary

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

finding(s),” including those from a treating physician. 20 C.F.R. § 404.1520c(a). Since Plaintiff

filed her claim on February 13, 2017, 20 C.F.R. § 404.1527(c)(2) applies.

clinical laboratory diagnostic techniques, or otherwise unsupported by the

evidence.” Myers, 238 F.3d at 621 (quoting Greenspan v. Shalala, 38 F.3d 232, 237

(5th Cir. 1994)); see, e.g., Loza, 219 F.3d at 395 (concluding that “[n]o good cause

appears in the ALJ opinion or in the record to justify the ALJ’s failure to give

‘considerable weight’ to the treating doctors’ medical evidence”).

Although Plaintiff states that the ALJ ignored other treating physicians,

Plaintiff only cites as evidence the medical evaluations of Dr. Vahid Eslami.12

Dr. Eslami qualifies as a treating physician for the purposes of assigning “controlling

weight.” The Social Security Regulations require that a “treating source” have “an

ongoing treatment relationship” with the claimant. 20 C.F.R. § 404.1502. Plaintiff

must have seen Dr. Eslami “with a frequency consistent with accepted medical

practice for the type of treatment and/or evaluation required for [her] medical

condition(s).” Id. Although Plaintiff visited Dr. Eslami on only two occasions,

during those visits, Dr. Eslami conducted several tests on Plaintiff. R. 1275, 1402.

While Dr. Eslami ultimately could not make an absolute diagnosis, Dr. Eslami, in

consultation with Dr. Elena Shanina, formulated a plan of care for Plaintiff. R. 1408–

12 The Plaintiff did not name any other treating physicians or cite to any opinions she claims were

not adequately considered. Since the Plaintiff failed to adequately brief this issue with respect to

any other treaters, she has waived any error. Boggs v. Krum Indep. Sch. Dist., 376 F. Supp. 3d 714,

722 (E.D. Tex. 2019) (“A party waives an issue if he fails to adequately brief it.”) (quotations

omitted). It is not the court’s responsibility to scour the record looking for evidence to support a

party’s arguments. See Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003) (citing U.S. v.

Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like pigs, hunting for truffles buried in

briefs.”)).

09. Unlike the claimant in Ybarra v. Colvin, Plaintiff did not visit Dr. Eslami for the

sole purpose of obtaining a report to support her disability claim. Cf. No. 4:13-CV-

3720, 2015 WL 222330 at *11 (S.D. Tex. Jan. 14, 2015) (declining to find an

“ongoing treatment relationship” where the sole purpose of the second examination

was to conduct a limitations assessment for the purposes of claimant’s disability

claim).

Since Dr. Eslami qualified as a treating physician, the ALJ was required to

give his opinion “controlling weight” if it was “well-supported by medically

acceptable clinical and laboratory diagnostic techniques and is not inconsistent with

. . . other substantial evidence.” Newton, 209 F.3d at 455 (quoting Martinez v.

Chater, 64 F.3d 172, 176 (5th Cir. 1995)). Plaintiff misstates the record, however,

when she argues that the ALJ did not consider his opinion. Dr. Eslami stated in his

evaluation that, after reviewing the results of Plaintiff’s anti-GAD test, there is no

absolute diagnosis for Plaintiff. R. 1408. The ALJ cites Dr. Eslami’s inability to

absolutely diagnose Plaintiff as support for her determination that “claimant’s

alleged stiff person syndrome [was] a non-medically determinable impairment. . ..

The evidence of record shows that this condition was ruled out.” R. 20. While the

ALJ’s choice of language in describing Dr. Eslami’s conclusion may be an

overstatement, the ALJ did not discount or ignore his opinion. Nor did Dr. Eslami

provide any limitations on Plaintiff’s ability to work that the ALJ was required to

consider elsewhere. Since the ALJ considered Dr. Eslami’s conclusion, the ALJ was

not required to go through the factors listed in 20 C.F.R. § 404.1527(d)(2). See

Newton, 209 F.3d at 456 (explaining that an ALJ must consider the 404 factors to

assess the weight to be given to the opinion of a treating physician when the ALJ

determines that it is not entitled to “controlling weight’).

The ALJ did not err in her evaluation of the treating physicians’ opinions.

Although the ALJ does not cite Dr. Eslami by name, the ALJ considered his opinion

in connection with Plaintiffs alleged stiff person syndrome. As Dr. Eslami was a

treating physician, the ALJ gave great weight to his inability to provide an absolute

diagnose for Plaintiff's impairments despite a positive anti-GAD test.

V. CONCLUSION

The Court GRANTS Commissioner’s motion for summary judgment, ECF

No. 13, and DENIES Plaintiffs motion for summary judgment, ECF No. 12. The

Commissioner’s determination that Plaintiff is not disabled is AFFIRMED.

Plaintiff's claims are DISMISSED WITH PREJUDICE.

Signed at Houston, Texas, on September 17, 2021.

Dena Rlermer-

Dena Hanovice Palermo

United States Magistrate Judge

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