Clark v. Social Security Administration

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

J.C. CIVIL ACTION

VERSUS NO. 24-1138

FRANK BISIGNANO, SECTION: “J” (3)

COMMISSIONER OF

SOCIAL SECURITY

REPORT AND RECOMMENDATION

Plaintiff timely filed this action for judicial review1 after the Social Security

Administration (the “Administration”) issued a final denial of her claim for disability

insurance benefits under Title II of the Social Security Act (the “SSA”), 42 U.S.C.

§§ 416(i) and 423, et seq.2 Plaintiff asks the Court to reverse the Administrative Law

Judge’s (“ALJ”) holding that Plaintiff is not entitled to the benefits she seeks and

remand this matter for further administrative proceedings.3 The Administration, via

Commissioner Frank Bisignano,4 urges the Court to affirm the denial of benefits and

dismiss this case.5 Pursuant to 28 U.S.C. § 636(b) and Local Rule 73.2(B), this matter

was referred to the undersigned United States Magistrate Judge. Having carefully

considered the parties’ briefing and the administrative record6 in the light of the

1 See 42 U.S.C. § 405(g).

2 R. Doc. 1.

3 R. Docs. 9, 16.

4 Frank Bisignano became the Commissioner of Social Security on May 6, 2025.

Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Mr. Bisignano should

be substituted as the defendant in this suit. No further action need be taken to

continue this suit because of the last sentence of Section 205(g) of the Social Security

Act, 42 U.S.C. § 405(g).

5 R. Doc. 13.

6 R. Doc. 3.

applicable law, it is recommended that Plaintiff’s appeal be denied and this complaint

dismissed with prejudice.

I. Background

Plaintiff is a 55-year-old female.7 She has at least a high school degree and

work experience as a mortgage sales loan broker, fast food supervisor, and lounge

manager.8 In November 2018, Plaintiff applied for disability insurance benefits

asserting that cervical disc disease, mild lumbar scoliosis and osteoporosis, effects of

pelvic fracture, right wrist tendinitis/de Quervain’s tenosynovitis, and obesity

rendered her disabled as of March 7, 2007.9 After the Administration denied her

application, a hearing to review the claim was held before an ALJ at Plaintiff’s

request.10 The record was left open to obtain records from OMNI Pain Management,

Joseph Gautreaux, M.D., Metairie Imaging-Elmwood MRI, and the Ochsner Medical

Center.11 The ALJ held a supplemental hearing to review the new records at

Plaintiff’s request.12 The ALJ issued a decision in September 2023 holding that

Plaintiff was not disabled within the definition of the SSA13 between March 7, 2007,

and the last date on which Plaintiff met the status requirements for disability

insurance coverage (December 31, 2010).14

7 Id. at 26.

8 Id. at 26–27, 357.

9 Id. at 14, 18–19.

10 Id. at 14–15, 36, 192.

11 Id. at 14.

12 Id. at 14–15, 74, 258.

13 See 42 U.S.C. §§ 416(i), 423(d).

14 R. Doc. 3 at 11–28.

The ALJ conducted the five-step sequential analysis required by 20 C.F.R.

§ 404.1520 to consider a claimant’s assertion of disability. As the Fifth Circuit has

explained:

The five steps consider: (1) Is the claimant “doing substantial gainful

activity”? (2) If not, does the claimant “have a severe medically

determinable physical or mental impairment” of sufficient duration? (3)

If so, does her impairment(s) meet or equal a listing in Appendix 1 of the

applicable regulations? (4) If not, considering the claimant’s “residual

functional capacity,” can the claimant still do her “past relevant work”?

(5) If not, can the claimant adjust to other work given her residual

functional capacity, age, education, and work experience?

Vasquez v. O’Malley, 2024 WL 4381269, at *1 (5th Cir. Oct. 3, 2024) (quoting 20 C.F.R.

§ 416.920). At steps one through four, the burden of proof is on the claimant to show

she is disabled. Shave v. Apfel, 238 F.3d 592, 594 (5th Cir. 2001). If the claimant can

carry this burden through step three or four, she has established disability and the

inquiry is over. Id. Otherwise, the burden shifts to the Commissioner at step five to

prove the claimant nonetheless retains sufficient functional capacity to adjust to

other employment. Id.

The ALJ found that Plaintiff satisfied steps one and two. First, Plaintiff had

not engaged in substantial gainful activity since the alleged onset date of her

disability.15 Second, Plaintiff suffered from several medical impairments, including

cervical disc disease, mild lumbar scoliosis and osteoporosis, effects of pelvic fracture,

right wrist tendinitis/de Quervain’s tenosynovitis, and obesity.16 The ALJ also

concluded that Plaintiff suffered from additional impairments of chronic obstructive

15 Id. at 18.

16 Id. at 18–19.

pulmonary disease, bilateral greater trochanteric bursitis, bilateral rotator cuff tears,

right knee degenerative changes, right trigger thumb and long finger, and right

shoulder tendinosis, but only after the date of last insured.17 Finally, the ALJ

concluded that Plaintiff suffered from the non-severe impairments of fibromyalgia

and headaches.18 The ALJ determined, however, that Plaintiff did not satisfy step

three because none of these impairments or any combination thereof met or equaled

an impairment listed in Appendix One.19

Continuing to step four, the ALJ found that Plaintiff had the residual

functional capacity to perform light work with some limitations.20 The ALJ

determined that Plaintiff must avoid concentrated exposure to vibrations.21 While

Plaintiff’s ability to perform all or substantially all of the requirements of skilled,

light work was impeded by her additional limitations, the ALJ concluded that she

nonetheless retained the functional capacity to successfully adjust to other work.22

17 Id. The ALJ also noted that the additional impairments “do not reasonably relate

back to the period prior to the date last insured.” Id. at 18.

18 Id. at 18–19. The ALJ reasoned that (1) the medical evidence does not reflect

objective medical abnormalities to establish fibromyalgia or a primary headache

disorder as medically determinable impairments and (2) Plaintiff did not indicate any

history of or treatment for fibromyalgia during a July 2010 medical evaluation and

self-reported that her occasional headaches were relieved by over-the-counter

medication. Id. (first citing Soc. Sec. Ruling, Ssr 12-2p; Titles II & Xvi: Evaluation of

Fibromyalgia, SSR 12-2P (S.S.A. July 25, 2012); then citing Soc. Sec. Ruling, Ssr 19-

4p; Titles II & Xvi: Evaluating Cases Involving Primary Headache Disorders, SSR

19-4P (S.S.A. Aug. 26, 2019)).

19 Id. at 18–19; see also 20 C.F.R. § 404, Subpt. P, App. 1.

20 Id. at 19.

21 Id.

22 Id. at 26–28. The ALJ noted that Plaintiff could not perform her past relevant work

as a lounge manager but determined that Plaintiff’s age, education, and work

Therefore, it held that Plaintiff was not disabled during the period for which she

claims entitlement to disability insurance benefits.23

Plaintiff asserts the ALJ failed to properly evaluate her proffered expert

medical opinions and that such error resulted in a finding of residual functional

capacity to perform light work that was not supported by the medical evidence.24

Next, Plaintiff argues that the vocational expert testimony failed “to account for the

full extent of [her] limitations,” specifically as it relates to her “ability to engage in

the identified jobs.”25 Lastly, Plaintiff claims ineffective assistance of counsel directly

contributed to her inability to successfully demonstrate her disability and eligibility

for benefits.26

II. Standard of Review

This Court’s review of a denial of social security benefits “is exceedingly

deferential and limited to two inquiries: whether substantial evidence supports the

ALJ’s decision, and whether the ALJ applied the proper legal standards when

evaluating the evidence.” Taylor v. Astrue, 706 F.3d 600, 602 (5th Cir. 2012).

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

as adequate to support a conclusion.’” Greenspan v. Shalala, 38 F.3d 232, 236 (5th

Cir. 1994) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). This must

experience qualified her to perform other, unskilled jobs that existed in significant

numbers in the national economy. Id.

23 Id. at 28.

24 R. Docs. 9 at 4–5, 16 at 2–3.

25 R. Doc. 9 at 5.

26 Id. at 3.

constitute “more than a mere scintilla” of evidence but may be “less than a

preponderance.” Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993). The Court “may

not reweigh the evidence in the record, nor try the issues de novo, nor substitute [its]

judgment . . . even if [the Court concludes that] the evidence preponderates against”

the ALJ’s findings. Johnson v. Bowen, 864 F.2d 340, 343 (5th Cir. 1988). “A finding

of no substantial evidence is appropriate only if no credible evidentiary choices or

medical findings to support” the denial of benefits. Harris v. Apfel, 209 F.3d 413, 417

(5th Cir. 2000) (citing Johnson, 864 F.2d at 343-44). If supported by substantial

evidence, the ALJ’s determination is conclusive and must be affirmed. Richardson,

402 U.S. at 390 (citing 42 U.S.C. § 405(g)).

III. Substantial evidence supports the ALJ’s decision.

Plaintiff argues the ALJ’s determination that she was not disabled is

unsupported by medical evidence because the ALJ “failed to properly weigh” the

medical opinions of Dr. Mark R. Mitchell and Dr. Joseph Gautreaux.27 As directed by

20 C.F.R. § 404.1520c(b), the ALJ must consider all record medical opinions and prior

administrative medical findings based on: (1) supportability, (2) consistency, (3) the

physician’s relationship with the claimant, (4) specialization, and (5) any other factors

that tend to support or contradict a medical opinion or prior administrative medical

finding. Because supportability and consistency are the most important factors, the

27 R. Docs. 9 at 4, 16 at 2. Plaintiff also asserts the ALJ failed to weigh the 2013

opinion of Doctor “Forte,” but the exhibit to which she cites contains no opinion from

that individual. R. Doc. 16 at 2.

ALJ must explain its consideration of those factors in weighing and evaluating each

medical opinion. 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).” 20 C.F.R. § 404.1520c(c)(1). “[S]upportability 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).28 Thus, “[i]n

articulating how they considered the supportability factor, ALJs may note that the

physician’s own treatment notes do not support the physician’s opinion, that the

physician’s opinion stems from a checklist, [and] that the physician did not consider

certain evidence, did not examine the claimant, or did not provide a detailed

explanation for [their] opinion.” Guillory, 2023 WL 9751083, at *3 (quoting Starman

v. Kijakazi, No. 2:20-CV-00035-SRC, 2021 WL 4459729, at *4 (E.D. Mo. Sept. 29,

2021) (collecting sources)). Consistency, on the other hand, is the “extent to which the

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

sources in the claim.” Revisions to Rules Regarding the Evaluation of Medical

Evidence, 82 Fed. Reg. 5844-01, 5853 (Jan. 18, 2017). “[C]onsistency is an external

inquiry that juxtaposes a medical opinion to other evidence in the record, including

opinions of other medical professionals.” Sharon H., 2022 WL 3951488, at *3. The

28 See also Guillory v. Kijakazi, No. 22-4135, 2023 WL 9751083, at *3 (E.D. La. Sept.

1, 2023), report and recommendation adopted, 2024 WL 711604 (E.D. La. Feb. 21,

2024).

greater a medical opinion’s consistency with other medical sources or record evidence,

the greater its persuasive value. 20 C.F.R. § 404.1520c(c)(2).

A. The ALJ explained why the opinions of Plaintiff’s physicians

were not persuasive.29

Plaintiff argues that the ALJ failed to consider (1) Dr. Mitchell’s March 2007

certification stating permanent impairment; and (2) Dr. Mogan’s April 2012

examination which diagnosed fibromyalgia and multiple herniated discs and

indicated “extreme limitations on [her] ability to perform work-related tasks.30

Plaintiff also argues that, with respect to Dr. Gary F. Carroll’s evaluation, “the ALJ’s

selective reliance on a single evaluation undermines the integrity of the decision-

making process.”31 Thus, Plaintiff contends the ALJ’s decision lacks substantial

supporting evidence.32

In support of this argument, Plaintiff points to Newton v. Apfel, 209 F.3d 448,

(5th Cir. 2000). In that case, the Fifth Circuit reversed and remanded an ALJ’s

decision because the ALJ summarily rejected the opinion of claimant’s treating

physician, based only on the testimony of a non-specialty medical expert who had not

examined the claimant, and failed to obtain clarification or supplemental information

that could have otherwise been produced, if requested. Id. at 458. Remand was

29 Plaintiff submitted various exhibits with her initial brief. See Docs. 9-1 through 9-

11. This evidence is either outside the relevant period, already in the record (e.g., R.

Doc. 9-5), or cumulative of the evidence considered by the ALJ. Thus, it does not

support her appeal. See Leggett v. Chater, 67 F.3d 558, 567 (5th Cir. 1995).

30 R. Doc. 9 at 3–4.

31 R. Docs. 9 at 4, 16 at 2.

32 R. Doc. 9 at 4–5.

necessary because the ALJ gave no weight to the treating physician’s opinion and

there was no competing first-hand medical evidence. See id.

The ALJ’s discussion here, by contrast, contains an analysis of the opinions of

Dr. Mitchell and Dr. Mogan:

The Certification of Mobility Impairment completed by Dr. Mitchell is

inherently neither valuable nor persuasive. Further, the April 2007

opinion of Dr. Michell is not persuasive because it does not articulate

any specific functional limitations, is not supported by any

accompanying objective findings, and is inconsistent with the other

evidence, including the consultative evaluation performed by Dr.

Carroll, which showed normal ambulation with no need for an assistive

device as of July 2010.33

The April 2012 opinion of Joseph Mogan, M.D. . . . is not persuasive.

This opinion was completed well after the date last insured and is

unsupported by the objective findings pertinent to the period prior to the

date last insured, including the March 2007 MRI of the claimant’s

lumbar spine reflecting only mild findings and without nerve

involvement . . . Further, the extreme limitations set forth by Dr. Mogan

are inconsistent with the other evidence for the period prior to the date

last insured, including the consultative evaluation performed by Dr.

Carroll, who reported normal gait, only mildly impaired ranges of

motion, and reduced grip strength but with normal dexterity and

grasping abilities bilaterally.34

Thus, the ALJ explained that it found (1) Dr. Mitchell’s certification unpersuasive

because it was inconsistent with Dr. Carroll’s evaluation and (2) Dr. Mogan’s opinion

unpersuasive because it fell outside the period at issue (March 7, 2007, to December

31, 2010) and was inconsistent with evidence from that time period.35 In doing so,

33 R. Doc. 3 at 26.

34 Id. at 26.

35 R. Doc. 3 at 25–26. In her initial brief, Plaintiff argued that, while the March 2007

MRI revealed relatively mild disc generation, significant deterioration and nerve

involvement “developed after the date last insured.” R. Doc. 9 at 5. In her reply,

Plaintiff maintains that “the origin of all this is my 2002 accident injuries . . . .” R.

the ALJ established good cause to discount the opinions of Dr. Mitchell and Dr.

Mogan. See Newton, 209 F.3d at 455–56 (citing Brown v. Apfel, 192 F.3d 492, 500 (5th

Cir. 1999); Greenspan, 38 F.3d at 237).

The ALG found greater consistency and supportability, and thus greater

persuasive value, in the July 15, 2010 consultative evaluation by Dr. Carroll. Dr.

Carroll reported that Plaintiff “ambulated with a normal gait” and did not require

assistive devices.36 He added that Plaintiff “reported no impairment in her station or

gait but endorsed diminished grip strength in her right hand.”37 He noted that while

her grip strength was rated three-out-five on one hand and four-out-of-five on the

other, she had “normal dexterity and grasping ability.”38 Plaintiff reported to Dr.

Carroll that she was able to drive, use public transportation, shop, and visit family

and friends.39 This is thus not a case where “no credible evidentiary choices or medical

findings support” the ALJ’s decision. Harris, 209 F.3d at 417. The ALJ’s denial of

benefits to Plaintiff is supported by substantial evidence and must be affirmed.

Lastly, Plaintiff argues that the ALJ did not consider the “whole story” because

there are records from the relevant time period showing “how bad things were.”40 Yet

the ALJ concluded that Plaintiff had severe impairments through the date last

Doc. 16 at 4. The ALJ properly considered the evidence in connection with the

relevant time period.

36 R. Doc. 3 at 22.

37 Id. In August 2010, Plaintiff presented to an emergency room and was diagnosed

with tendonitis of the right wrist. Id. at 23.

38 Id. at 22.

39 Id.

40 R. Doc. 18 at 2.

insured.41 He determined, however, that those impairments left her still able to

adjust to certain work.42 The ALJ’s finding that Plaintiff’s impairments were severe

“did not foreclose a finding that [she] had residual functional capacity to perform a

range of light work, and is not necessarily inconsistent with that finding.” Boyd v.

Apfel, 239 F.3d 698 (5th Cir. 2001). Thus, the Court finds no error in the ALJ’s

decision.

B. The vocational expert considered the limitations supported by

evidence and found by the ALJ.

Plaintiff maintains that there were discrepancies between the vocational

expert’s testimony and the extent of the limitations established by Plaintiff’s medical

history.43 The ALJ presented a series of hypothetical questions that incorporated the

limitations recognized by the ALJ. See Masterson v. Barnhart, 309 F.3d 267, 273–74

(5th Cir. 2002) (holding that the ALJ’s finding that the claimant could perform certain

jobs as testified to by the vocational expert was supported by substantial evidence

where “the ALJ scrupulously incorporated into the hypothetical questions [to the VE]

all of [the claimant’s] disabilities supported by evidence and recognized by the ALJ”);

Pineda v. Astrue, 289 F. App’x 710, 714 (5th Cir. 2008) (“The ALJ correctly described

[the claimant’s] limitations to the [VE], so we should accord weight to his testimony

delineating jobs that met [the claimant’s] exertional and other capabilities.”). In

41 R. Doc. 3 at 18.

42 R. Doc. 3 at 27–28.

43 R. Doc. 9 at 5.

response to these hypothetical questions, the vocational expert confirmed that

Plaintiff could engage in light work.44

Next, at Plaintiff’s suggestion,45 the ALJ asked the expert whether a

hypothetical individual could perform those same jobs if she could only occasionally

handle and finger.46 The expert responded that this limitation would eliminate all

jobs. Plaintiff did not pursue any cross-examination nor suggest that the ALJ ask any

additional hypothetical questions.

Construed generously, Plaintiff now argues that the vocational expert’s

testimony as to a hypothetical limitation that allowed only occasional handling and

fingering confirms that Plaintiff could not perform even light work. But this proposed

hypothetical scenario relied on Plaintiff’s own assessment of her limitations. Fifth

Circuit jurisprudence confirms that an ALJ’s hypotheticals need only address the

disabilities “supported by evidence and recognized by the ALJ.” See Masterson v.

Barnhart, 309 F.3d 267, 273–74 (5th Cir. 2002). Thus, the ALJ did not err in relying

on vocational expert testimony that was consistent with the ALJ’s assessment of

Plaintiff’s residual functional capacity.

III. Plaintiff’s complaints about her counsel are unavailing.

Plaintiff claims ineffective assistance of counsel “deprived [her] of a fair

assessment and consideration of [her] case’s merits.”47 Yet Plaintiff was

44 R. Doc. 3 at 66–69.

45 Plaintiff was unrepresented at this stage.

46 R. Doc. 3 at 69.

47 R. Doc. 9 at 3.

unrepresented at the first hearing. The ALJ then left the record open to allow the

submission of additional evidence. Plaintiff retained counsel and submitted

additional evidence. That evidence was considered in the ALJ’s decision.48 Even

assuming Plaintiff’s complaints about her counsel could be transformed into a

cognizable argument on appeal,49 Plaintiff has identified no error that prejudiced her.

IV. Recommendation

For the foregoing reasons,

IT IS RECOMMENDED that the decision of the Administrative Law Judge

be AFFIRMED and that Plaintiff’s appeal be DISMISSED WITH PREJUDICE.

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 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 the district court, provided that the party has been

served with notice that such consequences will result from a failure to object. 28

U.S.C. § 636(b)(1); Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1430 (5th

Cir. 1996) (en banc).

48 R. Doc. 3 at 15.

49 “The United States Supreme Court has never recognized a constitutional right to

counsel in Social Security proceedings.” Riley v. Berryhill, No. 5:18-CV-130-DCB-

MTP, 2019 WL 8106228, at *3 (S.D. Miss. Dec. 30, 2019) (quoting Cornett v. Astrue,

261 F. App’x 644, 651 (5th Cir. 2008), report and recommendation adopted, No. 5:18-

CV-130-DCB-MTP, 2020 WL 955300 (S.D. Miss. Feb. 27, 2020).

New Orleans, Louisiana, this 11t* day of September, 2025.

EWA J. DOSSIER

UNITED STATES MAGISTRATE JUDGE

14