# Lee v. Commissioner Of Social Security

> District Court, S.D. Texas · September 28, 2022

URL: https://www.frixlaw.com/law-library/cases/10675857

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** September 28, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10675857

## How later opinions describe it (automated extraction)

- finding that “check-the-box” forms without additional explanations may be given less weight but reserving the determination for the ALJ
- finding good cause to assign little weight to a treating doctor’s opinion “due to its brevity and conclusory nature, lack of explanatory notes, or supporting objective tests and examination . . .”

## Opinion text

IN THE UNITED STATES DISTRICT COURT September 28, 2022
FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
HOUSTON DIVISION

§
ORIN L.,1 §
§
Plaintiff, §
§ No. 4:21-cv-02407
v. §
§
KILOLO KIJAKAZI, §
Acting Commissioner of Social §
Security, §
§
Defendant. §

MEMORANDUM AND ORDER

Plaintiff Orin L. (“Plaintiff”) filed this suit seeking judicial review of an
administrative decision. Compl., ECF No. 1. Jurisdiction is predicated upon 42
U.S.C. § 405(g). Plaintiff appeals from the decision of the Commissioner of the
Social Security Administration (“Commissioner” or “Defendant”) denying
Plaintiff’s claim for disability insurance benefits under Title II of the Social Security
Act (“the Act”).2 The Parties filed cross-motions for summary judgment. Pl.’s MSJ,

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 On February 28, 2022, based on the parties’ consent, the case was transferred to this Court to
conduct all proceedings pursuant to 28 U.S.C. § 636(c). Def.’s Consent, ECF No. 7; Pl.’s Consent,
ECF No. 8; Order Transferring, ECF No. 8.
ECF No. 10; Def.’s MSJ, ECF No. 11. Plaintiff challenges the Administrative Law
Judge’s (“ALJ”) determination, arguing that the ALJ’s finding that Plaintiff is not

disabled was not supported by substantial evidence and is the result of legal errors.
Pl.’s MSJ, ECF No. 10-1. Defendant counters, asserting that the ALJ carefully
reviewed the record, delineated his findings with attention to the full record, and

pointed to substantial evidentiary support for his findings. Def.’s MSJ Brief, ECF
No. 11. Based on the briefing, the law, and the record, the Court determines that
substantial evidence supports the ALJ’s determination. Therefore, Plaintiff’s motion
for summary judgment is denied and Defendant’s motion for summary judgment is

granted.
I. BACKGROUND
Plaintiff is 62 years old, R. 60,3 and completed four or more years of college.

R. 174. Plaintiff previously worked as a site supervisor, account executive, and
industrial organization manager. R. 16. Plaintiff alleges a disability onset date of
June 11, 2019. R. 10. Plaintiff claims he suffers from physical impairments. R. 173.
On July 18, 2019, Plaintiff filed his application for disability insurance

benefits under Title II of the Act. R. 145–46. Plaintiff based4 his application on

3 “R.” citations refer to the electronically filed Administrative Record, ECF No. 6.
4 The relevant time period is June 11, 2019—Plaintiff’s alleged onset date—through December
31, 2021—Plaintiff’s last insured date. R. 10. The Court will consider medical evidence outside
this period to the extent it demonstrates whether Plaintiff was under a disability during the relevant
degenerative disc disease, hypertension, unknown arthritis back, and unknown leg
problem. R. 173. The Commissioner denied his claim initially, R. 82–85, and on

reconsideration, R. 88-90.
A hearing was held before an Administrative Law Judge (“ALJ”). An attorney
represented Plaintiff at the hearing. R. 28. Plaintiff and a vocational expert (“VE”)

testified at the hearing. R. 28. The ALJ issued a decision denying Plaintiff’s request
for benefits.5 R. 7–17. The Appeals Council denied Plaintiff’s request for review,
thus upholding the ALJ’s decision to deny disability benefits. R. 1-3.
Plaintiff appealed the Commissioner’s ruling to this court. ECF No. 1.

II. THE STANDARD OF REVIEW OF COMMISSIONER’S DECISION.
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

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).
5 An ALJ must follow five steps in determining whether a claimant is disabled. 20 C.F.R.
§ 416.920(a)(4). The ALJ here determined Plaintiff was not disabled at step four. R. 17. 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. R. 12 (citing 20 C.F.R. 404.1571 et seq.).
At step two, the ALJ found that Plaintiff has the following severe impairments: osteoarthritis and
degenerative disc disease. R. 12 (citing 20 C.F.R. 404.1520 (c)). 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 the regulations that would lead to a
disability finding. R. 14 (referencing 20 C.F.R. 404.1520(d), 404.1525, and 404.1526). The ALJ
found that Plaintiff has the residual functional capacity (“RFC”) to perform light work as defined
in 20 CFR § 404.1567(b). Id. At step four, the ALJ determined that through the date last insured,
Plaintiff can perform past relevant work. R. 16. Therefore, the ALJ concluded that Plaintiff was
not disabled. R. 17.
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. THE SHIFTING BURDEN OF PROOF IN A DISABILITY CASE.
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 v. Astrue, No. G-10-205, 2012 WL 6020061,

at *2 (S.D. Tex. Nov. 30, 2012). 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 two issues. First, Plaintiff argues that the ALJ failed to develop
the record regarding Plaintiff’s radiculopathy6/lower extremity issues and upper

6 Radiculopathy is caused by a pinched nerve in the spine. More specifically, it happens when one
extremity issues. ECF No. 10-1 at 4. Second, Plaintiff asserts that the ALJ failed to
properly weigh the medical opinion evidence as the applicable regulations require.

Id. Defendant counters that substantial evidence supports the ALJ’s determination
regarding Plaintiff’s upper and lower extremities issues and the ALJ properly
considered the medical opinion evidence. ECF No. 11 at 2. The Court will consider

each argument in turn.
A. The ALJ Properly Conducted Plaintiff’s RFC Analysis.
Between the third and fourth steps of the sequential analysis, the ALJ must
decide the claimant’s RFC, which is defined as the most the claimant can still do

despite his [or her] physical and mental limitations . . . based on all relevant evidence
in the claimant’s record.” Winston v. Berryhill, 755 F. App’x 395, 399 (5th Cir.
2018) (citation omitted). The RFC determination is the “sole responsibility of the

ALJ.” Taylor v. Astrue, 706 F.3d 600, 602–03 (5th Cir. 2012) (quoting Ripley v.
Chater, 67 F.3d 552, 557 (5th Cir. 1995)).
When making the RFC determination, the ALJ must consider all medical
opinions contained in the record. Winston, 755 F. App’x 399; 42 U.S.C. § 405(b)(1).

The ALJ must “incorporate limitations into the RFC assessment that were most
supported by the record.” Conner v. Saul, No. 4:18-CV-657, 2020 WL4734995, at

of the nerve roots (where the nerves join the spinal column) is compressed or irritated.
Radiculopathy, THE CLEVELAND CLINIC, https://my.clevelandclinic.org/health/diseases/22564-
radiculopathy (last visited Sept. 6, 2022).
*8 (S.D. Tex. Aug 15, 2020) (citing Muse v. Sullivan, 925 F.2d 785, 790 (5th Cir.
1991)). The revised Social Security guidelines7 require consideration of several

factors, the most important of which are consistency and supportability. 20 C.F.R.
§ 404.1520c(b).8 Under these guidelines, the ALJ must articulate how persuasive he
finds each of the opinions in the record. 20 C.F.R. § 404.1520c(b).9 As an

administrative factfinder, the ALJ is entitled to significant deference in deciding the
appropriate weight to accord the various pieces of evidence in the record, including
the persuasiveness of medical experts and the weight to be accorded their opinions.
See Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985).

B. The ALJ’s Failure To Order A Consultative Examination Was Not
Error.
Plaintiff argues that the ALJ did not fulfill his duty to develop the record
because he failed to order consultative examinations. ECF No. 10 at 4. Specifically,
Plaintiff contends that an electromyography (“EMG”)10 should have been ordered to

7 Because Plaintiff filed his claim on July 18, 2019, the ALJ was required to follow the resvised
guidelines in conducting Plaintiff’s RFC assessment. 20 C.F.R. § 404.1520c(a); Winston, 755 F.
App’x at 402, n. 4.
8 These factors include supportability, consistency, the physician’s relationships with Plaintiff, the
physician’s specialization, evidence showing the medical source is familiar with the other evidence
in the claim, or that the medical source understands the disability program’s policies and
evidentiary policies. Id.
9 The revised guidelines have eliminated the former requirement that the ALJ give deference to
the opinions of treating physicians. Garcia v. Saul, No. SA-19-CV-01307-ESC, 2020 WL
7417380, at *4 (W.D. Tex. Dec. 18, 2020) (explaining that despite new regulations, previous
decisions are still relevant as supportability and consistency have always been the most important
considerations.).
10 EMG is a diagnostic procedure to assess the health of muscles and the nerve cells that control
confirm a diagnosis of radiculopathy and a consultative examination should have
been ordered to determine the functionality of Plaintiff’s upper extremities. Id. at 6.

An ALJ’s decision lacks substantial evidence “if the claimant shows that (1)
the ALJ failed to fulfill his duty to develop the record adequately and (2) that failure
prejudiced Plaintiff.” Jones v. Astrue, 691 F.3d 730, 733 (5th Cir. 2012) (citing

Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996)). The question of whether the ALJ
fully and fairly developed the record depends on whether there was sufficient
evidence in the record for an informed decision. “As long as sufficient evidence does
exist, the ALJ has no duty to request additional evidence.” Barnes v. Astrue, No. H-

07-4377, 2008 WL 5348225, at *9 (S.D. Tex. Dec. 22, 2008). Thus, “the decision to
order a consultative examination is within the ALJ’s discretion.” Flynn v. Saul, No.
4:19-CV-03523, 2020 WL 4818863, at *5 (S.D. Tex. Aug. 19, 2020) (quoting Cruz

v. Colvin, No. EP-12-CV-00179-ATB, 2013 WL 3338591, at *9 (W.D. Tex. July 1,
2013). “A consultative evaluation becomes necessary only when the claimant
presents evidence sufficient to raise a suspicion concerning a non-exertional
impairment.” Brock, 84 F.3d 728 (internal quotation marks and citation omitted).

“[R]eversal is appropriate only if the claimant shows that he was prejudiced

them (motor neurons). EMG results can reveal nerve dysfunction, muscle dysfunction or problems
with nerve-to-muscle signal transmission. Electromyography (EMG), THE MAYO CLINIC,
https://www.mayoclinic.org/tests-procedures/emg/about/pac-20393913 (last visited Sept. 7,
2022).
as a result of the insufficient record.” Hudspeth v. Astrue, No. 4:09–CV–156–Y,
2010 WL 3033891, at *12 (N.D. Tex. July 2, 2010). Prejudice is demonstrated “by

showing that Plaintiff ‘could and would have adduced evidence that might have
altered the result.’” Torres v. Colvin, No. 5:14-CV-34, 2015 WL 12571022, at *11
(S.D. Tex. Feb. 5, 2015) (quoting Kane v. Heckler, 731 F.2d 1216, 1220 (5th Cir.

1984)).
1. The ALJ was not required to order a consultative examination to
obtain an EMG.
Here, Plaintiff contends that the ALJ erred in not ordering an EMG to confirm
his treating physician’s, Dr. Kantamani’s, diagnosis that Plaintiff suffered from
radiculopathy. ECF No. 10-1 at 6 (citing R. 16). In support of his argument, Plaintiff
points to the ALJ’s observation that “the record did not include an EMG confirming

radiculopathy.” Id. Plaintiff’s argument appears to be that the ALJ’s duty to develop
the record was triggered because he noted the absence of an EMG in the record.
However, Plaintiff identifies no precedent, nor is this Court aware of any, supporting

the proposition that the absence of a diagnostic procedure alone triggers an ALJ’s
duty to further develop the record. To the contrary, the claimant bears the burden to
prove his disability, which includes obtaining sufficient medical records to establish
his disability. See Gonzalez v. Barnhart, 51 Fed. App'x 484 (5th Cir.2002)

(“Generally, however, the duty to obtain medical records is on the claimant.”);
Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995) (burden of proof lies with
claimant to prove disability).
Moreover, the ALJ is not a doctor and cannot order an EMG. Thus, what

Plaintiff is seeking is a consultative examination. An ALJ is obligated to order a
consultative examination only “where the record is devoid of substantial evidence
to support an ALJ’s conclusion.” Aronson v. Comm’r of Soc. Sec., No. 4:21-CV-

00756-O-BP, 2022 WL 2135017, at *5 (N.D. Tex. May 31, 2022), report and
recommendation adopted, No. 4:21-CV-00756-O-BP, 2022 WL 2134178 (N.D.
Tex. June 14, 2022). This was not the situation here. Rather, there was ample
evidence in the record for the ALJ to make his RFC determination, including the

opinions of the examining state agency medical consultant (“SAMC”) (Dr. Hadley,
R. 269-72) and the non-examining SAMCs (Drs. Herman, R. 60-66, and Moore,
R. 67-75). R. 15. On January 15, 2020, Dr. Hadley physically examined Plaintiff.

R. 269-72. His observations included that Plaintiff could “ambulate effectively” and
“did not exhibit an antalgic gait.” R. 271. Dr. Hadley took x-rays of Plaintiff during
the examination. R. 270. Significantly, none of the doctors who examined or
reviewed Plaintiff’s files—including Dr. Kantamani—ordered an EMG or otherwise

indicated that an EMG was necessary to assess Plaintiff’s limitations. Nor did
Plaintiff request a consultative examination at the hearing. Land v. Astrue, No.
CIV.A. H-11-02186, 2012 WL 9392189, at *8 (S.D. Tex. Oct. 9, 2012) (affirming

ALJ’s decision and noting plaintiff’s failure to request a consultative examination).
Accordingly, the ALJ did not err in failing to order a consultative examination
to obtain the results of an EMG for his RFC analysis.

2. The ALJ did not err in failing to order a consultative examination
regarding Plaintiff’s upper extremity issues.
Second, Plaintiff argues that the ALJ erred in not sufficiently developing the
record regarding Plaintiff’s upper extremity issues. ECF No. 10-1 at 6. In support of
his position, Plaintiff points to Dr. Hadley’s notation that “[t]here was past pointing
and dysdiadochokinesis,”11 R. 270, and Dr. Kantamani’s opinion that Plaintiff

“could not use the left upper extremity for reaching, handling, and fingering.” ECF
No. 10-1 at 6 (citing R. 285). Plaintiff’s argument is without merit.
Significantly, Plaintiff does not contest that Dr. Hadley’s notation indicates
that the upper extremity issue described was a past and not a current issue for

Plaintiff. Id. (“While this may or may not have been historical”). Further, Dr. Hadley
gave no indication that Plaintiff suffered from any current limitations that might
relate to this past upper extremity issue. R. 271.

Plaintiff’s testimony also supported the ALJ’s conclusion that he was not
limited by any upper extremity issue. Plaintiff testified that he suffered from
numerous issues—difficulty standing for more than ten minutes at a time, bending,

11 Dysdiadochokinesia is the inability to perform rapid alternating muscle movements. Franklyn
Rocha Cabrero & Oscar De Jesus, Dysdiadochokinesia, NATIONAL LIBRARY OF SCIENCE,
https://www.ncbi.nlm.nih.gov/books/NBK559262/#:~:text=Dysdiadochokinesia%20(diadochoki
nesia)%20is%20the%20inability,the%20fists%2C%20and%20foot%20tapping (last visited Sept.
19, 2022).
crawling, and sitting in traffic for long periods—but did not describe any issue with
his upper extremities. R. 45-50. Plaintiff’s argument that Dr. Kantamani’s opinion

that Plaintiff could not use the “left upper extremity for reaching, handling, and
fingering” triggered the ALJ’s duty to develop the record is unsupported. ECF
No. 10-1 at 6 (citing R. 285). Dr. Kantamani provided no explanation for this

opinion, R. 285 (leaving the portion of the form asking for an explanation supporting
the limitation blank), which conflicted with Plaintiff’s testimony, R. 45-50.12 Again,
Plaintiff did not request a consultative examination at the hearing. Manzano v.
Berryhill, No. 4:16-CV-3496, 2018 WL 1518558, at *9 (S.D. Tex. Mar. 28, 2018)

(“Where a claimant is represented by counsel at the hearing and her counsel fails to
request a consultative examination or specify the information requiring further
development, ‘we will not impose a duty on the ALJ to order a consultative

examination unless the need for one is clearly established in the record.’”) (quoting
Hawkins v. Chater, 113 F.3d 1162, 1168 (10th Cir. 1997)). Finally, none of the other
doctors who provided opinions identified any similar limitation.
Therefore, based on the record, a consultative examination of Plaintiff’s upper

extremities was not necessary.

12 It is worth noting that Dr. Kantamani submitted another treating source statement (but did not
sign) opining that Plaintiff should never use either hand. R. 268. That Dr. Kantamini would prepare
another opinion with markedly different limitation for Plaintiff is further evidence that his opinion
was not persuasive.
Even if the ALJ erred in not developing the record as Plaintiff claims,
“reversal is appropriate only if the [plaintiff] shows that he was prejudiced as a result

of the insufficient record.” Hudspeth, 2010 WL 3033891 at *12. “To establish
prejudice, a [plaintiff] must show that he ‘could and would have adduced evidence
that might have altered the result.’” Brock, 84 F.3d at 728 (quoting Kane, 731 F.2d

at 1220). Here, Plaintiff argues only that “it is conceivable that a different
conclusion” could have been reached, ECF No. 10-1 at 7, but makes no showing that
ordering a consultative examination might have altered the ALJ’s RFC
determination as required. There was ample evidence for the ALJ to make his

decision, including the opinions of three SAMCs, all of which supported a finding
that Plaintiff could engage in light work.
Therefore, Plaintiff failed to show prejudice.

C. The ALJ’s Weighing of The Medical Opinion Evidence Did Not Prejudice
Plaintiff.
Plaintiff argues that the ALJ improperly weighed the opinion evidence for
three reasons. First, the ALJ’s discussion of the supportability and consistency
factors in evaluating Drs. Herman’s and Moore’s reports did not satisfy the
requirements of 20 C.F.R. § 404.1520c(b). ECF No. 10-1 at 8. Second, the ALJ
improperly considered Dr. Hadley’s finding that Plaintiff was capable of light work

in his explanation of the consistency factor. Third, the ALJ improperly interpreted
Plaintiff’s magnetic resonance imaging (“MRI”) in discounting Dr. Kantamani’s
opinion. ECF No. 10-1 at 8-9.

Pursuant to the revised rules for evaluating medical opinions, the ALJ is
required to explain the persuasiveness of the medical opinions. 20 C.F.R.
§ 404.1520c(b). When evaluating whether a medical opinion is persuasive, the ALJ

considers five factors: (1) supportability; (2) consistency; (3) relationship with the
claimant; (4) specialization; and (5) other factors which “tend to support or
contradict the opinion.” See id. § 404.1520c(c)(1)–(5). The most important factors
in this analysis are supportability and consistency. See id. § 404.1520c(a), (b)(2),

(c)(1)-(2). The ALJ must “explain how [he] considered the supportability and
consistency factors for a medical source’s medical opinions or prior administrative
medical findings in [his] determination or decision[,]” but is not required to explain

how he considered the remaining factors. 20 C.F.R. § 404.1520c(b)(2); Stephens v.
Saul, No. 3:20-CV-823-BH, 2020 WL 7122860, at *6 (N.D. Tex. Dec. 4, 2020).
1. The ALJ’s error in considering the persuasiveness of Drs. Herman’s and
Moore’s opinions did not prejudice Plaintiff.
Plaintiff contends that the ALJ did not sufficiently explain how he determined
that the Drs. Herman’s and Moore’s opinions were persuasive. ECF No. 10-1 at 8.
The ALJ provided three reasons in his decision: (1) the opinions were well supported

by the evidence of record; (2) the opinions are consistent with one another; and (3)
the regulations consider the SAMCs to be highly qualified experts in Social Security
disability evaluation. R. 15. Plaintiff’s primary contention is that this explanation
does not satisfy the requirement that ALJ’s explain their consideration of the

consistency and supportability factors. ECF No. 10-1 at 8-9 (citing 20 C.F.R.
§ 404.1520c(b)(2)).
The supportability factor evaluates how “relevant the objective medical

evidence and supporting explanations presented by a medical source are to support
his or her medical opinion(s).” § 416.920c(c)(1). Therefore, “supportability looks
internally to the bases presented by the medical opinion itself.” Sharon H. v.
Kijakazi, No. 5:21-CV-167-H, 2022 WL 3951488, at *3 (N.D. Tex. Aug. 31, 2022).

Here, the ALJ’s only explanation for his consideration of the supportability
factor was that the opinions of Drs. Herman and Moore were “well supported by the
evidence in the record.” R. 15. Therefore, the ALJ erred to the extent he looked “to

the evidence in the medical record [as a whole] as opposed to the evidence”
Drs. Herman and Moore presented to support their opinions. Kilby v. Kijakazi,
No. 4:20-CV-03035, 2022 WL 1797043, at *3 (S.D. Tex. Mar. 15, 2022) (finding
that ALJ’s supportability analysis was in error because it did not “consider[] whether

the opinion was supported by the objective medical evidence [the physician]
provided as support for her opinion”). Consideration of the record as a whole goes
to consistency and not supportability. Id. Furthermore, the ALJ’s explanation gives

no indication as to what portion of the record was considered in his supportability
analysis. R. 15. See Cardenas v. Kijakazi, No. 7:21-CV-0135, 2022 WL 2719044,
at *8 (S.D. Tex. June 3, 2022), report and recommendation adopted sub nom.

Cardenas v. Saul, No. 7:21-CV-135, 2022 WL 2715204 (S.D. Tex. July 12, 2022)
(“the ALJ erred by failing to sufficiently explain consistency and supportability”).
Notwithstanding the ALJ’s erroneous explanation of his supportability

analysis, “[p]rocedural perfection in administrative proceedings is not required as
long as the substantial rights of a party have not been affected.” Audler v. Astrue,
501 F.3d 446, 448 (5th Cir. 2007). For procedural error to serve as a basis for relief,
Plaintiff must “show that prejudice resulted from [the] error.” Jones, 691 F.3d 734-

35. “Prejudice can be established by showing that the additional considerations
‘might have led to a different decision.’” Newton v. Apfel, 209 F.3d 448, 458 (5th
Cir. 2000) (quoting Ripley, 67 F.3d 557 n. 22). However, Plaintiff failed to identify

any considerations that would have led to a different decision.
Quite to the contrary, Drs. Herman’s and Moore’s opinions referenced
evidence supporting their conclusions. For example, both opinions noted that
Plaintiff’s “x ray show[ed] degenerative changes without acute radiographic

abnormalities,” R. 62, 71, Plaintiff was able to perform household chores and drive
a car, R. 62-63, 71, Plaintiff walked with a normal gait, and Plaintiff was able to
stand, sit, lift and carry objects, R. 64, 73. Therefore, the ALJ’s failure to reference

what the doctors relied on when discussing the supportability of these opinions was
harmless error and remand is not required on this basis.
The consistency factor evaluates the degree to which a medical opinion is in

agreement “with the evidence from other medical sources and nonmedical sources
in the claim.” § 416.920c(c)(2). Therefore, analysis of consistency “is an external
inquiry that juxtaposes a medical opinion to other evidence in the record, including

opinions of other medical professionals.” Although the ALJ’s explanation is short,
it satisfies the regulation’s requirements. The ALJ found that there was a high degree
of consistency between the non-examining SAMCs reports. R. 15. A review of
Drs. Herman’s and Moore’s opinions confirms this. For example, the doctors’

opinions were consistent regarding their assessment of Plaintiff’s impairments,
symptoms, the consistency of Plaintiff’s statements regarding symptoms and the
evidence in the file, and exertional limitations. Compare R. 60-65 with R. 67-75.

Furthermore, the ALJ also found that the non-examining SAMCs’ opinions
were “well supported by the evidence in the record.” R. 15. Although the ALJ did
not specifically identify the evidence in the record supporting Drs. Herman’s and
Moore’s opinions, the ALJ’s decision included ample discussion of record evidence

that did. See Gonzales v. Kijakazi, No. 4:20-CV-00270, 2021 WL 3777181, at *3
(S.D. Tex. Aug. 3, 2021) (affirming ALJ because decision discussed evidence
relevant to the consistency and supportability factors). The ALJ discussed that

Plaintiff “remains capable of caring for his personal needs, preparing meals,
performing light household chores, operating a motor vehicle, [] shopping for
groceries[, ] among other activities of daily living.” R. 15 (citing R. 27-58 (Hearing

Transcript); R. 199-211 (Sept. 3, 2019 Function Report)).
Therefore, the Court finds the ALJ’s written decision adequately explains his
consideration of the consistency factor because it discusses evidence that was

consistent with Drs. Herman’s and Moore’s opinions. See Gonzalez, 2021 WL
3777181, at *3.
2. The ALJ did not err in considering Dr. Hadley’s opinion that Plaintiff
could engage in light or sedentary work.
Plaintiff argues that the ALJ erred in considering programmatic terms used in
Dr. Hadley’s opinion when analyzing its consistency. ECF No. 10-1 at 8. In
explaining the persuasiveness of Dr. Hadley’s opinion, the ALJ wrote that

Dr. Hadley’s opinion that Plaintiff could perform light work was “consistent with
the opinions of the non-examining SAMCs.” R. 15-16. Plaintiff’s argument is that
the regulations do not allow ALJ’s to consider opinions that use programmatic

language—light work and sedentary work—in evaluating the persuasiveness of an
opinion. ECF No. 10-1 at 8. 13 Because light work and sedentary work are
programmatic terms, Plaintiff concludes that it was error for the ALJ to consider

13 20 C.F.R. § 404.1520b(c) provides that statements “using our programmatic terms” are
“inherently neither valuable nor persuasive to the issue of whether you are disabled or blind under
the Act” and no analysis about how such evidence was considered will be provided even under 20
C.F.R. § 404.1520c (“How we consider and articulate medical opinions and prior administrative
medical findings for claims filed on or after March 27, 2017.”).
them in his persuasiveness analysis.
Although Plaintiff’s reading is plausible, the Court does not agree that 20

C.F.R. § 404.1520b(c) forbids the consideration of opinions’ use of programmatic
terms. See Sadowski v. Comm’r of Soc. Sec., No. CV 18-13672 (ES), 2020 WL
7334225, at *4 (D.N.J. Dec. 14, 2020) (citing with approval ALJ’s finding of

consistency between medical opinions using programmatic terms); Kerlin v. Astrue,
No. 3:09CV00173, 2010 WL 3937423, at *9 (S.D. Ohio Mar. 25, 2010), report and
recommendation adopted sub nom. Kerlin v. Comm’r of Soc. Sec., No. 3:09-CV-
173, 2010 WL 3895175 (S.D. Ohio Sept. 29, 2010) (same).

Even if it were error for the ALJ to consider medical opinions’ agreement on
the use of programmatic terms in evaluating consistency, Plaintiff failed to carry his
burden to “show that prejudice resulted from an error.” Jones, 691 F.3d 734-35.

“Prejudice can be established by showing that the additional considerations ‘might
have led to a different decision.’” Newton, 209 F.3d 458 (quoting Ripley, 67 F.3d
557 n. 22). Plaintiff makes no effort to show that additional considerations would
have led to a different decision. Nor can he. Review of the record demonstrates that

Dr. Hadley’s opinion is consistent with those of Drs. Herman and Moore in
numerous aspects. For example, each noted that Plaintiff had no persistent
disorganization of motor function, R. 64, 73, 271, x-rays showed degenerative
changes without acute radiographic abnormalities, R. 64, 73, 270, and no limitations
relating to the manipulation of objects, id.

Therefore, the Court will not remand on this basis.
3. The ALJ did not err in his assessment of Dr. Kantamani’s opinion.
Finally, Plaintiff argues that the ALJ engaged in “impermissible layperson

interpretation” of Plaintiff’s MRI imaging in assessing the persuasiveness of
Dr. Kantamani’s opinion. This contention appears to be based on a misreading of
the ALJ’s decision.
In explaining his persuasiveness analysis, the ALJ took issue with

Dr. Kantamani’s reliance on Plaintiff’s MRI to support his opinion regarding
Plaintiff’s limitations. R. 16. The ALJ wrote that the MRI “only shows slight
effacement of the ventral thecal sac at L4-L5 and L5-S1,” R. 16 (emphasis in

original). Plaintiff argues that this indicates that the ALJ impermissibly interpreted
the MRI imaging on his own. ECF No. 10-1 at 8-9. However, the ALJ did not
interpret Plaintiff’s MRI—nor could he, given that the MRI images were not
included in the record. Instead, the ALJ relied on the interpretation of the MRI

images provided in Dr. O’Connor’s radiology report—which Dr. Kantamani
ordered. R. 261 (noting slight effacement). The inconsistency between
Dr. O’Connor’s radiology report and Dr. Kantamani’s description of it weighs

against finding Dr. Kantamani’s opinion persuasive based on both the supportability
and consistency factors. In any case, the ALJ did not engage in the impermissible
layperson interpretation as Plaintiff complains.

Moreover, Dr. Kantamani’s opinion regarding Plaintiff’s limitations consists
of a checklist form with little to no explanation. See R. 265-69, 283-86, 297-301.
For example, Dr. Kantamani’s opinion proposes that Plaintiff can never rotate his

head and neck. R. 286. Not only has the Plaintiff failed to point to anything in the
record supporting this limitation, but Dr. Kantamani leaves the section asking him
to explain the support for this limitation entirely bank. R. 286. “The use of such
checklist forms is generally viewed with disfavor among the federal courts of

appeals and district courts within the Fifth Circuit when the forms are not adequately
supported by any narrative citations to clinical findings.” Brown v. Astrue, No. 11-
2919, 2013 WL 620269, at *6 (E.D. La. Jan. 18, 2013); see also Rollins v. Astrue,

464 F. App’x 353, 357 n. 5 (5th Cir. 2012) (finding that “check-the-box” forms
without additional explanations may be given less weight but reserving the
determination for the ALJ); Foster v. Astrue, 410 F. App’x 831, 833 (5th Cir. 2011)
(finding good cause to assign little weight to a treating doctor’s opinion “due to its

brevity and conclusory nature, lack of explanatory notes, or supporting objective
tests and examination . . .”); Segovia v. Astrue, No. H-11-0727, 2012 WL 948815,
at *16-17 (S.D. Tex. Mar. 2, 2012) (finding that the ALJ properly rejected the

opinion of a treating physician who marked answers next to pre-printed findings on
a form), report and recommendation adopted, 2012 WL 951543 (S.D. Tex. Mar. 19,
2012).
Therefore, substantial evidence supported the ALJ’s determination that
Dr. Kantamani’s opinion was unpersuasive.
V. CONCLUSION
The Court DENIES Plaintiff's motion for summary judgment, ECF No. 10,
and GRANTS the Commissioner’s motion for summary judgment, ECF No. 11. The
Commissioner’s determination that Plaintiff is not disabled is AFFIRMED
Plaintiff's claims are DISMISSED WITH PREJUDICE.
SIGNED at Houston, Texas, on September 28, 2022.

Dena kerma
Dena Hanovice Palermo
United States Magistrate Judge

23

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10675857. Public record. Not legal advice.