ANDREW M. EDISON, Magistrate Judge.
Plaintiff Rhonda Sue Short ("Short") seeks judicial review of an administrative decision denying her disability insurance benefits under Title II of the Social Security Act (the "Act"), 42 U.S.C. § 401 et seq., and for supplemental security benefits under Title XVI of the Act, 42 U.S.C. § 1381 et seq.
All dispositive pretrial motions in this case have been referred to this Court for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Dkt. 6. Before the Court are competing motions for summary judgment filed by Short and Defendant Nancy A. Berryhill, the Acting Commissioner of the Social Security Administration (the "Commissioner"). Dkts. 16 and 18. Having considered the motions, responsive briefing, record, and applicable law, the Court
Short filed a claim for social security disability benefits under Title II and Title XVI of the Act, alleging disability as of December 20, 2013. Short's applications were initially denied and denied again upon reconsideration. Subsequently, an ALJ held a hearing and found Short was not disabled. Short filed an appeal with the Appeals Council. The Appeals Council denied review, making the ALJ's decision final. This appeal followed.
Under the Act, individuals who have contributed to the program and have a physical or mental disability may apply for disability insurance benefits. See 42 U.S.C. § 423. The Commissioner's decision to deny social security benefits is reviewed by the federal courts to determine whether (1) the Commissioner applied the proper legal standard, and (2) the Commissioner's factual findings are supported by substantial evidence. See Garcia v. Berryhill, 800 F.3d 700, 704 (5th Cir. 2018). "To be substantial, evidence must be relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion; it must be more than a scintilla but it need not be a preponderance." Fraga v. Bowen, 810 F.2d 1296, 1302 (5th Cir. 1987) (citation omitted). "If the Commissioner's findings are supported by substantial evidence, they must be affirmed." Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000). "A finding of no substantial evidence is appropriate only if no credible evidentiary choices or medical findings support the decision." Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001) (quoting Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000)). "Procedural perfection in administrative proceedings, however, is not required." Jones v. Colvin, 638 F. App'x 300, 303 (5th Cir. 2016) (citing Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir.1988)) (internal quotation marks omitted).
"[A] claimant is disabled only if she is incapable of engaging in any substantial gainful activity." Anthony v. Sullivan, 954 F.2d 289, 293 (5th Cir. 1992) (internal quotation marks, emphasis, and citation omitted). To determine if a claimant is disabled, the ALJ uses a sequential, five-step approach:
Salmond v. Berryhill, 892 F.3d 812, 817 (5th Cir. 2018) (quoting Kneeland v. Berryhill, 850 F.3d 749, 753 (5th Cir. 2017)).
"The claimant bears the burden of proof on the first four steps, but the Commissioner bears the burden on the fifth step." Salmond, 892 F.3d at 817 (citation omitted). "Before reaching step four, the Commissioner assesses the claimant's residual functional capacity (`RFC'). The claimant's RFC assessment is a determination of the most the claimant can still do despite his or her physical and mental limitations and is based on all relevant evidence in the claimant's record. The RFC is used in both step four and step five to determine whether the claimant is able to do her past work or other available work." Kneeland, 850 F.3d at 754 (internal quotation marks and citations omitted).
The Commissioner's decision must stand or fall with the reasons stated in the ALJ's final decision. See Newton, 209 F.3d at 455. Post hoc rationalizations for an agency decision are not to be considered by a reviewing court. See SEC v. Chenery Corp., 332 U.S. 194, 196 (1947). "The reviewing court may not reweigh the evidence, try the questions de novo, or substitute its judgment for the Commissioner's, even if it believes the evidence weighs against the Commissioner's decision. Conflicts in the evidence are for the Commissioner, not the courts, to resolve." Pennington v. Comm'r of Soc. Sec. Admin., No. 3:16-CV-230, 2017 WL 4351756, at *1 (S.D. Tex. Sept. 29, 2017) (citing Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002)).
The ALJ found at step one that Short had not engaged in substantial gainful activity since December 20, 2013.
The ALJ found at step two that Short had the following severe impairments: diabetes mellitus, peripheral neuropathy, chronic kidney disease, affective disorders (bipolar and depression), anxiety (panic disorder without agoraphobia), and status post left knee amputation.
At step three, the ALJ found that none of these impairments met any of the Social Security Administration's listed impairments.
Prior to consideration of step four, the ALJ assessed Short's RFC, as follows:
Dkt. 11-3 at 25. At step four, based on this RFC, the ALJ found that Short is unable to perform any past relevant work. At step five, the ALJ considered Short's age, education, work experience, and RFC in conjunction with the Medical Vocational Guidelines and the testimony of a vocational expert to determine if there was any other work she could perform. At the time of the ALJ's hearing, Short was 39 years old with a high school education. The ALJ determined that transferability of job skills was not material in the determination of disability. The ALJ concluded that "the claimant is capable of making a successful adjustment to other work that exists in significant numbers in the national economy. A finding of `not disabled' is therefore appropriate." Id. at 31.
This appeal raises three issues: (1) whether the ALJ failed to properly weigh the opinion of examining physician Ross E. Keiser, Ph.D. ("Dr. Keiser"); (2) whether the ALJ failed to properly weigh the opinion of treating source Maureen Biggs, Doctor of Nursing Practice ("DNP Biggs"), when determining Short's RFC; and (3) whether the ALJ properly developed the record. The Court addresses each issue in turn.
Short argues that the ALJ erred when she afforded "some weight" to Dr. Keiser's opinion and that "[i]f Dr. Keiser's opinion [was] weighted with Plaintiff's continued difficulty in mind, his opinion of significantly impaired abilities to make occupational and personal adjustments would result in a different RFC." Dkt. 17 at 19. The Commissioner responds that "the ALJ gave specific, legitimate reasons for giving some weight to Dr. Keiser's opinion . . . [n]othing more was required." Dkt. 18 at 7.
A treating physician's opinion regarding the severity and nature of a plaintiff's impairment must be given controlling weight if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with . . . other substantial evidence." Martinez v. Chater, 64 F.3d 172, 175-76 (5th Cir. 1995) (citing 20 C.F.R. § 404.1527(d)(2)). Generally, "[o]pinions of acceptable medical sources that are not treating sources [—such as examining physicians—] are not provided with the same `considerable weight' as treating sources, but such medical opinion evidence is still entitled to weighing and evaluation." Ihde v. Colvin, 270 F.Supp.3d 956, 964 (W.D. Tex. 2017). (citations omitted). Put another way, the "standard of deference to the examining physician is contingent upon the physician's ordinarily greater familiarity with the claimant's injuries . . . [W]here the examining physician is not the claimant's treating physician and where the physician examined the claimant only once, the level of deference afforded his opinion may fall correspondingly." Rodriguez v. Shalala, 35 F.3d 560, 1994 WL 499764, at *2 (5th Cir. 1994) (citing Moore v. Sullivan, 919 F.2d 901, 905 (5th Cir. 1990)).
"A hearing officer demonstrates that he properly weighed the evidence where he gives `specific reasons,' in accordance with the weight factors, for assigning an examining physician's evidence a particular weight." Ihde, 270 F. Supp. 3d at 964 (citing Pradia v. Colvin, No. 3:15-CV-00036-RFC, 2017 WL 28088, at *5 (W.D. Tex. Jan. 3, 2017)). There is not, however, a requirement for "detailed analysis." Pradia, 2017 WL 28088, at *5. The ALJ is free to reject the medical opinion of any physician when the evidence supports a contrary conclusion. See Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987). Moreover, "[w]hen a treating or examining physician's opinions are inconsistent with other substantial evidence in the record, the opinions are not entitled to any specific weight in the ALJ's decision." Smith v. Comm'r of Soc. Sec. Admin., No. 4:12-CV-00625-DDB, 2014 WL 4467880, at *3 (E.D. Tex. Sept. 9, 2014) (citation omitted).
Dkt. 11-3 at 30. Because Dr. Keiser is an examining physician,
Short argues that Dr. Keiser's opinion contradicts the ALJ's RFC determination. This argument goes to the ALJ's consideration of Dr. Keiser's opinion. This Court cannot reweigh the evidence or substitute its judgment for that of the Commissioner. See Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994). Additionally, any conflicts in the evidence, including the medical evidence, are resolved by the ALJ, not the reviewing court. See Carry v. Heckler, 750 F.2d 479, 484 (5th Cir. 1985). The Court finds that substantial evidence supports the ALJ's decision to afford Dr. Keiser's opinion "some weight." The ALJ appropriately considered Dr. Keiser's opinion and the ALJ did not commit error in her consideration of Dr. Keiser's opinion.
Short claims that, when determining her RFC, the ALJ failed to consider the opinion of treating source DNP Biggs. Short argues that the "ALJ's failure to weigh the opinion of treating source [DNP Biggs]" amounts to harmful error. Dkt. 19 at 1.
Where other sources, such as nurse practitioners, have provided opinion evidence, Social Security Ruling 06-03p provides specific guidance for how these opinions should be evaluated:
SSR 06-03p, 2006 WL 2329939, at *6 (Aug. 9, 2006). However, there is no requirement that the ALJ explain her reasoning when she accords greater weight to the opinion evidence of an acceptable medical source than the opinion evidence of other sources. See Ihde, 270 F. Supp. 3d at 962.
Dkt. 11-10 at 59-61.
Short argues that the ALJ erred because she "does not mention DNP Biggs'[s] name at any point." Dkt. 17 at 20. The Court acknowledges that the ALJ did not discuss DNP Biggs's Mental Capacity Assessment. However, the ALJ prefaced her RFC determination with the phrase: "[a]fter careful consideration of the entire record." Dkt. 11-3 at 25. The ALJ then stated she "also considered opinion evidence in accordance with the requirements of 20 CFR 404.1527 and 416.927 and SSRs 96-2p, 96-5p, 96-6p and 06-3p." Id. These statements, coupled with the hearing transcript,
Here, in determining Short's RFC, the ALJ relied on a myriad of medical treatment notes, the opinions of Dr. Keiser and the state agency psychologists, and Short's hearing testimony. Importantly, DNP Biggs's medical treatment notes were among those considered by the ALJ. Indeed, the ALJ specifically cited DNP Biggs's medical treatment notes dated September 6, 2015 and May 5, 2015 in her decision. See Dkt. 11-3 at 27. Regarding Short's mental health, the ALJ specifically discussed the July 2015 findings of Dr. Keiser, as well as the mental impairments Short described at the hearing. In the end, the ALJ found that Short has the severe impairments of affective disorders (bipolar and depression) and anxiety (panic disorder without agoraphobia), but she noted in discounting Dr. Keiser's opinion that "a recent mental status examination [dated August 2016] was normal, and the claimant reported that her bipolar disorder and anxiety were stable with medication." Dkt. 11-3 at 30. As mentioned above, DNP Biggs's Mental Capacity Assessment was completed in May 2015, making it older than Dr. Keiser's opinion. Given that the ALJ specifically discounted Dr. Keiser's opinion based on later treatment notes, it is implausible that the ALJ's decision would change based on DNP Biggs's even older Mental Capacity Assessment.
Next, Short contends that the ALJ should have obtained additional evidence about her physical impairments. She argues that the "only physical capacity opinions were the non-examining opinions of the State Agency consultants" and that substantial evidence does not support the ALJ's RFC determination. Here, Short contends that the ALJ should have sought out additional reports from a consultative examiner or medical expert. The Court disagrees.
Moreover, while Short requested DNP Biggs complete a Mental Capacity Assessment for her social security application, the Court notes that Short did not request DNP Biggs fill out a questionnaire regarding Short's physical limitations. Short has not presented any additional evidence demonstrating that had the ALJ fully developed the record, the ALJ would have come to a different conclusion. See Ripley, 67 F.3d at 557. The Court finds that substantial evidence supports the ALJ's decision because the record contained sufficient evidence for the ALJ to make an informed decision. See Hernandez, 269 F. App'x at 515.
For the reasons stated above, the Court
The Clerk shall provide copies of this Memorandum and Recommendation to the respective parties who have fourteen days from the receipt thereof to file written objections pursuant to Federal Rule of Civil Procedure 72(b) and General Order 2002-13. Failure to file written objections within the time period mentioned shall bar an aggrieved party from attacking the factual findings and legal conclusions on appeal.