Villere v. Social Security Administration

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

SHANA VILLERE CIVIL ACTION

VERSUS NO: 24-00708

SOCIAL SECURITY ADMINISTRATION SECTION: “O” (4)

REPORT AND RECOMMENDATION

I. Introduction

The claimant, Shana Villere ("Villere"), seeks judicial review pursuant to Title 42 U.S.C. §

405 (g) of the final decision of the Commissioner of Social Security. The matter was referred to

the undersigned United States Magistrate Judge pursuant to Title 28 U.S.C. § 636(b) and

Local Rule 19.02E(b), for the submission of Proposed Findings and Recommendations.

II. Facts and Background

Villere protectively filed an application for Disability Insurance Benefits and Title II

application for a Period of Disability on July 6, 2021, claiming the onset of a disability as of June

1, 2020. R. Doc. 7 at 213. Villere claimed disability due to migraine, anxiety, hypertension,

depressive bipolar, and diabetes. Id. at 23. Villere was forty-five (45) years old at the time she filed

the subject application and was a “younger individual” according to the regulations. Id. at 32.

Villere’s application was denied at the initial level, and she filed a timely request for video

hearing during COVID-19. R. Doc. 7 at 171. On April 19, 2023, a hearing was held before

Administrative Law Judge (“ALJ”) Karen Wiedmann. Id. at 20. The ALJ found that Villere met

the insured status requirements through December 31, 2024. Id. at 22.

The ALJ found that Villere has not engaged in substantial gainful activity since June 1,

2020, the alleged onset date. R. Doc. 7, Finding 1, at 23. The ALJ further found that Villere had

severe impairments consisting of chronic migraine without aura, complicated migraine,

hemiplegic migraine, seizure, depression, and generalized anxiety disorder. Id., Finding 2, at 23.

However, the ALJ further found that Villere does not have an impairment or combination of

impairments that meet or medically equals the severity of one of the listed impairments under 20

CFR Part 404, Subpart P, Appendix 1. Id., Finding 3, at 23-26.

The ALJ found that Villere had the residual functional capacity to perform a full range of

work at all exertional levels but with the following non-exertional limitation of avoiding all

exposure to hazards in the workplace, such as dangerous moving machinery and unprotected

heights. R. Doc. 7, Finding 5, at 26-31. The ALJ found that Villere was able to understand,

remember, and follow simple and familiar detailed instructions, remember locations and work-like

procedures, maintain sufficient attention and concentration to perform simple and familiar detailed

tasks, and sustain a routine without special supervision. Id.

The ALJ found that Villere retains the ability to perform activities within a schedule,

maintain regular attendance, make work-related decisions, be aware of normal hazards, travel to

unfamiliar places, and set realistic goals. R. Doc. 7, Finding 5, at 26-31. The ALJ found that Villere

would likely do better in a setting requiring minimal public interactions, i.e. occasional interaction,

and may work better with things rather than people. Id. The ALJ found that Villere can adapt to

routine and predictable changes in the workplace and would do best in a low-stress environment

without changing demands or quotas. Id.

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The ALJ found that Villere is unable to perform any relevant work, such as her past relevant

work as a floral designer, manager of a Financial Institute, and Vice President of Financial

Institute. R. Doc. 7, Finding 6, at 31. The ALJ found that on the alleged disability date, Villere

was forty-five (45) years old and a “younger individual” age 18-49 with a high school education.

Id., Finding 7 & 8, at 32. The ALJ further found that the transferability of job skills was not material

to the determination of disability because using the Medical Vocational Rules supported a finding

that Villere was not disabled regardless of whether Villere had transferable job skills. Id., Finding

9, at 32. Finally, the ALJ found that there are a significant number of jobs in the national economy

that Villere could perform at her age, education, work experience, and residual functional capacity.

Id., Finding 10, at 32.

The Appeals Council rejected Villere’s request for review on January 25, 2021. R. Doc. 7

at 6. On March 20, 2024, Villere filed the subject matter seeking a judicial review of the denial of

her claim. R. Doc. 1.

On review, Villere seeks a reversal of the ALJ’s decision. R. Doc. 1. First, Villere contends

that the ALJ failed to explain her consideration of the supportability and consistency factors in

evaluating the medical opinion evidence. R. Doc. 8 at 2. Second, Villere contends that the ALJ

erred because she ignored statements from third parties as to the severity of Villere’s impairments.

Id. Third, Villere contends that the ALJ failed to document Villere’s documented reasons for a gap

in treatment, thereafter failing to develop the record. Id.

III. Standard of Review

The role of the Court on judicial review under Title 42 U.S.C. § 405(g) is limited to

determining whether (1) the final decision is supported by substantial evidence and (2) whether

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the Commissioner used the proper legal standards to evaluate the evidence. See Brown v. Apfel,

192 F.3d 492, 496 (5th Cir. 1999). The Court may not re-weigh the evidence, try issues de novo

or substitute its judgment for that of the Secretary. Brown, 192 F.3d at 496. If supported

by substantial evidence, then the Secretary's findings are conclusive and must be

affirmed. Richardson v. Perales, 402 U.S. 389, 390 (1971). See also Wilkinson v.

Schweiker, 640 F.2d 743, 744 (5th Cir. 1981) (citations omitted).

“Substantial evidence is such relevant evidence as a reasonable mind might accept to

support a conclusion.” See Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995). It is more than a

mere scintilla and less than a preponderance.” Ripley, 67 F.3d at 555. It must do more than create

a suspicion of the existence of the fact to be established, but no “substantial evidence” will be

found when there is only a “conspicuous absence of credible choices” or “no contrary medical

evidence.” Payne v. Weinberger, 480 F.2d 1006, 1007 (5th Cir. 1973); Hemphill v. Weinberger,

483 F.2d 1137, 1138 (5th Cir. 1973).

A single piece of evidence will not satisfy the substantiality test if the ALJ ignores, or fails

to resolve, a conflict created by countervailing evidence. Kent v. Schweiker, 710 F.2d 110, 114

(3d Cir. 1983). Evidence is not substantial if it is overwhelmed by other evidence, particularly

that offered by treating physicians. Kent, 710 F.2d at 114.

IV. Analysis

A. Supportability and Consistency Factors

Villere contends that remand is required because the ALJ failed to explain her

consideration of the supportability and consistency factors in evaluating the medical opinion

evidence. R. Doc. 8 at 2. Villere contends that the ALJ rejected every aspect of the medical opinion

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provided by Dr. Rex. S. Hauser, Villere’s treating neurologist since 2021, which stated that Villere

could not successfully engage in full-time competitive work. Id. Villere further contends that the

ALJ did so on legally insufficient grounds, thus warranting a remand. Id.

The Commissioner contends that the ALJ Properly considered the medical source opinions.

R. Doc. 9 at 9. The Commissioner further contends that the ALJ’s decision should be affirmed. Id.

Under the regulations applicable to claims filed on or after March 27, 2017, such as this

one, the Commissioner no longer defers to medical opinions nor gives them any specific

evidentiary weight. See 20 C.F.R. §§ 404.1520c(a). Instead, the Commissioner assesses the

persuasiveness of medical opinions according to five factors: (1) supportability; (2) consistency;

(3) relationship with the claimant; (4) specialization; and (5) other factors, including familiarity

with other evidence in the claim or an understanding of the agency's policies and evidentiary

requirements. See 20 C.F.R. § 404.1520c(c)(1)-(5).

Of the five factors, supportability and consistency are the most important, even more so

than the source of the opinion. See 20 C.F.R. § 404.1520c(a), (b)(2). “Supportability” concerns the

degree to which a medical opinion is supported by objective medical evidence and supporting

explanations: “[t]he more relevant the objective medical evidence and supporting explanations

presented by a medical source are to support his or her medical opinions(s) ... the more persuasive

the medical opinion(s) ... will be.” See 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1); see also

Revisions to Rules, 82 Fed. Reg. at 5853 (defining supportability as “[t]he extent to which a

medical source's opinion is supported by relevant objective medical evidence and the source's

supporting explanation”).

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“Consistency” measures the degree to which a medical opinion is consistent with the

evidence from other medical and non-medical sources: “[t]he more consistent a medical opinion(s)

... is with the evidence from other medical sources and nonmedical sources in the claim, the more

persuasive the medical opinion(s) ... will be.” See 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2);

see also Revisions to Rules, 82 Fed. Reg. at 5853 (defining consistency as “the extent to which the

opinion is consistent with the evidence from other medical sources and nonmedical sources in the

claim”). In essence, “Consistency” is an external check that references evidence from other

medical and nonmedical sources. Id. Therefore, each of these factors requires some comparison of

the medical opinions to other medical evidence of record.

“The ALJ must articulate his [or her] consideration of the medical opinion evidence,

including how persuasive he [or she] finds the medical opinions in the case record.” See Jacqueline

L. v. Comm'r of Soc. Sec., 515 F. Supp. 3d 2, 8 (W.D.N.Y. Jan. 26, 2021). However, the ALJ is

generally required to articulate and explain only the consideration of the supportability and

consistency factors, not the others. See 20 C.F.R. § 404.1520c(b)(2). Nonetheless, if the ALJ finds

that two or more medical opinions on the same issue are equally well-supported and consistent

with the record but are not exactly the same, the ALJ must articulate the consideration of the other

most persuasive factors. See 20 C.F.R. § 404.1520c(b)(3). The Commissioner “will explain how

[the ALJ] considered the supportability and consistency factors for a medical source's medical

opinions or prior administrative medical findings[.]” See 20 C.F.R. § 404.1520c(b)(2).

1. Dr. Hauser’s Opinion

The ALJ found that on August 23, 2021, Villere went to Dr. Rex S. Hauser (“Dr. Hauser”)

for evaluation of right-sided numbness which began intermittently about every two weeks and

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upon presentation occurred two to three times per week. R. Doc. 7 at 28-29. The ALJ noted that

Villere described the episodes to Dr. Hauser as strings with mental fog, confusion, difficulty

speaking, and difficulty word finding. Id. The ALJ noted Villere had further described that after

about ten minutes, the numbness to the right side of her face would spread to the right side of her

body and that these episodes could last a few hours to a full day. Id. The ALJ noted that Villere

reported occasional headaches after the episodes, and that Dr. Hauser prescribed Villere

medication after assessing her complicated migraine with aura, not intractable, without status

migrainosus, and hemiplegic migraine. Id.

The ALJ further noted that Dr. Hauser examined Villere again on November 1, 2021, and

that Villere’s spells were down to once per week instead of two to three times at the time. R.

Doc. 7 at 29. The ALJ noted that Dr. Hauser prescribed Villere Topamax and

assessed her complicated migraine and hemiplegic1 migraine. Id. The ALJ also noted that

Villere returned to Dr. Hauser again on December 13, 2021, when Dr. Hauser advised Villere that

she was taking Topamax wrong and Villere reported feeling better until recently when her usage

of Prozac increased. Id.

The ALJ noted that at this appointment on December 13, 2021, Villere

reported episodes of numbness about once per week that lasted an hour instead of all day,

and denied any new numbness, paresthesia, weakness, or changes to her vision or speech. R.

Doc. 7 at 29. Additionally, the ALJ noted that Dr. Hauser reported recurrent spells

of confusion, dysphasia, right sided paresthesia, weakness, headaches, complicated migraine,

and hemiplegic migraine. Id.

1 A hemiplegic migraine is a type of migraine headache that causes migraine symptoms and muscle weakness on

one side of the body. Muscle weakness usually starts during the aura phase of a migraine, right before or during a

headache attack. Muscle weakness may be accompanied by sensory, vision or speech changes. https://

my.clevelandclinic.org/health/diseases/hemiplegic-migraine.

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The ALJ further noted that Villere returned to Dr. Hauser on March 14, 2022, and reported

a decrease in episodes to once every other week since using Topamax. R. Doc. 7 at 29. The ALJ

noted that Villere reported less intense episodes, denied side effects from medication, and asserted

that she was considering reducing her use of Prozac. Id. The ALJ also noted that Dr. Hauser

continued to assess chronic migraine without aura, complicated migraine, hemiplegic migraine,

and seizure. Id. The ALJ also noted that Villere was prescribed a monthly injectable medication

for migraines but no treatment for seizure. Id.

The ALJ noted that after a gap in treatment, Villere returned to Dr. Hauser and reported

episode frequency about once per week that was not as intense as prior episodes, along with

headaches and fatigue the following day. R. Doc. 7 at 29-30. The ALJ noted that Dr. Hauser

continued to assess chronic migraine without aura, complicated migraine, hemiplegic migraine,

and seizure. Id. The ALJ noted that medication was again continued for migraines with no

treatment prescribed for seizures. Id.

The ALJ continued to summarize Dr. Hauser’s treatment history, noting that Dr. Hauser

had provided treatment to Villere for chronic, complicated migraines weekly since August 2021.

R. Doc. 7 at 30. The ALJ pointed out that Dr. Hauser reported that Villere experienced numbness

and paresthesia on the left side of the body, confusion/cognitive impairment, and extreme fatigue

and somnolence2 with confusion and fatigue that persisted for a day or two. Id. The ALJ further

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noted that according to Dr. Hauser, Villere developed depression due to her migraine disorder,

would miss two or three days per month, could not lift more than ten pounds, and would not be

2 Somnolence, defined as a state of drowsiness or strong desire to fall asleep, may be characterized as either a benign

symptom, such as a state of drowsiness prior to falling asleep or, most commonly, as a symptom of an underlying

condition, such as a sleep disorder, anxiety, depression, or stress. https://www.osmosis.org/answers/somnolence.

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capable of maintaining punctuality and attendance. Id.

The ALJ concluded that she did not find Dr. Hauser’s opinion persuasive. R. Doc. 7 at 30.

The ALJ noted that the opinion was supported by reports of Villere’s episodes occurring three or

more days per week but found that Dr. Hauser’s opinion was not consistent with the record as a

whole. Id. In support, the ALJ noted that Dr. Hauser’s more recent notes indicate that Villere

reported episodes only about once per week. Id. The ALJ also found that there was a gap in

treatment which, according to the ALJ, tends to indicate improved functioning. Id.

Upon review, remand is warranted. As noted above, an ALJ is required to articulate their

consideration of whether a medical source's opinion: (1) is supported by the source's own records

and explanations; and (2) is consistent with the other evidence in the record. See 20 C.F.R. §§

404.1520c(c)(1)–(2), 416.920c(c)(1)–(2). Because there is no bright line rule for articulating the

consideration of the supportability and consistency factors, the ALJ's persuasiveness evaluation

quoted above technically adhered to the new regulation requirements because the ALJ articulated

their consideration of these factors. See 20 C.F.R. §§ 404.1520c(a)–(b)(2), 416.920c(a)–(b)(2);

Revisions to Rules, 82 Fed. Reg. at 5854 (noting “the appropriate level of articulation will

necessarily depend on the unique circumstances of each claim”).

However, judges have questioned in the past whether dedicating a single sentence to a

factor provides a “narrative discussion” that adequately explains the ALJ's reasoning. See Flattery

v. Comm'r of Soc. Sec. Admin., No. 9:20-CV-02600-RBH-MHC, 2021 WL 5181567, at *6 (D.S.C.

Oct. 21, 2021), report and recommendation adopted sub nom. Flattery v. Kijakazi, No. 9:20-CV-

02600-RBH, 2021 WL 5180236 (D.S.C. Nov. 8, 2021). In this case, the ALJ's persuasiveness

evaluation—in which they dedicated two sentences to articulate their consideration of both

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factors—fails to provide a narrative discussion of the evidence considered and is not subject to

meaningful review.

As an initial matter, the undersigned notes the problem with considering the supportability

and consistency factors in a single sentence: the consistency factor encompasses an outward facing

inquiry on whether a medical source's opinion is consistent with the evidence from other medical

sources and nonmedical sources, while the supportability factor encompasses an inward facing

inquiry on whether the medical source's conclusions are supported by his or her own relevant

medical evidence and explanations. See Revisions to Rules, 82 Fed. Reg. at 5853; 20 C.F.R. §§

404.1520c(c)(1)–(2); 416.920c(c)(1)–(2). That is, each factor necessarily requires an ALJ to look

at specific evidence that only pertains to one factor. For example, when considering whether a

medical source's opinion is supported by his or her own treatment notes and explanations, a

different doctor's treatment notes are irrelevant to that inquiry.

In this case, the ALJ only conducted the supportability factor analysis as they did the

inward facing inquiry looking at Dr. Hauser’s medical opinion’s consistency with his own medical

record evidence. R. Doc. 7 at 28-30. The opinion is devoid of any outward look at other medical

sources and non-medical sources and therefore failed to articulate the consistency factor. See

Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 663 (4th Cir. 2017) (noting the “all too

common” problem of ALJs failing to show their work when evaluating claims for social security

disability benefits). While the Commissioner attempts to explain the ALJ’s decision and provide

support for the consistency finding, the regulations require the ALJ to do so, which was not done

in this case. R. Doc. 9 at 4-6. Therefore, remand is required.

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On remand, the ALJ should provide a narrative discussion that thoroughly explains their

persuasiveness evaluation and explicitly addresses the supportability and consistency factors. See

Rosa M. v. Kijakazi, No. 9:22-cv-04494-BHH-MHC, 2023 WL 9101308 (D.S.C. Dec. 8, 2023).

2. Dr. Sentell’s Opinion

Villere also challenges the ALJ’s partial acceptance of the medical opinion provided by

Dr. S. Webb Sentell, which the ALJ found to be “partially persuasive because it is supported by

the examination, but other evidence is consistent with a different degree of other limitation.” R.

Doc. 8 at 6. See R. Doc. 7 at 31. Villere contends that the ALJ did not identify any supporting

evidence from Dr. Sentell’s examination of any other evidence which was allegedly consistent

with a different degree of limitations. Id.

The Commissioner contends that the ALJ discussed her reasons for finding Dr. Sentell’s

opinion partially persuasive. R. Doc. 9 at 7. Therefore, the Commissioner contends that the ALJ’s

opinion is based on substantial evidence. Id.

Dr. S. Webb Sentell (“Dr. Sentell”), a consultative clinical neuropsychologist, conducted

a clinical interview and mental status examination of Villere after referral by a Social Security

Disability. R. Doc. 7-1 at 139-142. The record indicates that behavioral observations were limited

due to telehealth video platform. Id. at 140. The ALJ noted that Dr. Sentell opined that Villere

could repeat, remember, comprehend, and follow simple instructions. R. Doc. 7 at 31.

The ALJ noted that Dr. Sentell had determined that Villere handled complex instructions

and completed complex tasks, and that Villere’s attention and concentration were within normal

limits. R. Doc. 7 at 31. Dr. Sentell also found that Villere’s pace was within normal limits, and that

she could experience moderate limitations with social interactions in a traditional work setting. Id.

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The ALJ noted that Dr. Sentell concluded that Villere could likely tolerate traditional eight-hour

workday stressors and that she is competent to manage funds. Id. Consequently, the ALJ found

that Dr. Sentell’s opinion was partially persuasive because it is supported by the examination but

concluded that other evidence is consistent with a different degree of other limitations. Id.

Like the analysis involving Dr. Hauser, the ALJ’s analysis as to Dr. Sentell does not

adequately explain the consistency factor which encompasses an outward facing inquiry on

whether a medical source's opinion is consistent with the evidence from other medical sources and

nonmedical sources. In fact, the only explanation offered is that Dr. Sentell’s opinion was

supported by the examination. R. Doc. 7 at 31. As to the consistency, the only statement offered

is that “other evidence is consistent with a different degree of other limitation.” Id. The ALJ offered

no record references to support this conclusion, thus requiring a remand. Id.

On remand, the ALJ should provide a narrative discussion that thoroughly explains their

persuasiveness evaluation and explicitly addresses the supportability and consistency factors. See

Rosa M. v. Kijakazi, No. 9:22-cv-04494-BHH-MHC, 2023 WL 9101308 (D.S.C. Dec. 8, 2023).

The Court does not reach the remaining issues.

V. Conclusion

IT IS RECOMMENDED that the Administrative Law Judge's decision be REVERSED

AND REMANDED for further review, consistent with this opinion.

A party's failure to file written objections to the Proposed Findings, Conclusions, and

Recommendation in a Magistrate Judge's Report and Recommendation within fourteen (14) days

after being served with a copy shall bar that party, except upon grounds of plain error, from

attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by

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the District Court, provided that the party has been served with notice that such consequences will

result from a failure to object. See Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1430

(Sth Cir. 1996).

New Orleans, Louisiana, this 27th day of August 2024.

KAREN WELLS ot

UNITED STATES MAGISTRATE JUDGE

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