CHRISTINA A. BRYAN, Magistrate Judge.
Plaintiff Clare Stockman filed this case under 42 U.S.C. § 405(g) of the Social Security Act for review of the Commissioner's final decision denying her request for disability insurance benefits and supplemental security income under the Act. The Commissioner and Stockman moved for summary judgment. (Dkt. 13, 18). Each party responded. (Dkt. 18, 19). After considering the pleadings, the record, and the applicable law, the court
Stockman filed a claim for social security disability insurance and supplemental security income benefits on September 19, 2014 alleging a disability onset date of February 19, 2009 claiming a crushed spine and tail bone, pain in her spine, inability to sit or stand for long periods of time, and fatigue. (Dkt. 11-4 at 5; Dkt. 11-8 at 6). Following the denial of her application and subsequent request for reconsideration, Stockman requested a hearing before an Administrative Law Judge (ALJ). A hearing took place on July 11, 2017. The ALJ issued a decision on August 2, 2017, finding that Stockman was not disabled within the meaning of the Social Security Act. (Dkt. 11-3 at 16-25). The Appeals Council denied review on November 30, 2017, (Dkt. 11-3 at 2-7), and the ALJ's decision became the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481.
Section 405(g) of the Act governs the standard of review in social security disability cases. Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002). Federal court review of the Commissioner's final decision to deny Social Security benefits is limited to two inquiries: (1) whether the Commissioner applied the proper legal standard; and (2) whether the Commissioner's decision is supported by substantial evidence. Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014); Stockman v. Apfel, 174 F.3d 692, 693 (5th Cir. 1999).
With respect to all decisions other than conclusions of law,
The court weighs four types of evidence in the record when determining whether there is substantial evidence of disability: (1) objective medical facts; (2) diagnoses and opinions of treating and examining physicians; (3) the claimant's subjective evidence of pain and disability; and (4) the claimant's age, education, and work history. Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991); Hamilton-Provost v. Colvin, 605 F. App'x 233, 236 (5th Cir. 2015).
The ALJ must follow a five-step sequential analysis to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Water, 276. F.3d at 718. The Social Security 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). A finding at any point in the five-step sequence that the claimant is disabled, or is not disabled, ends the analysis. Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987).
In the first step, the ALJ decides whether the claimant is currently working or "engaged in substantial gainful activity." 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). Work is "substantial" if it involves doing significant physical or mental activities, and "gainful" if it is the kind of work usually done for pay or profit. 20 C.F.R. §§ 404.1572, 416.972; Copeland, 771 F.3d at 924.
In the second step, the ALJ must determine whether the claimant has a severe impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). Under applicable regulations, an impairment is severe if it "significantly limits your physical or mental ability to do basic work activities." 20 C.F.R. §§ 404.1520(c), 416.922(a). Under Fifth Circuit binding precedent, "[a]n impairment can be considered as not severe only if it is a slight abnormality [having] such minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education or work experience." Loza v. Apfel, 219 F.3d 378, 391 (5th Cir. 2000) (emphasis added) (quoting Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985)). "Re-stated, an impairment is severe if it is anything more than a `slight abnormality' that `would not be expected to interfere' with a claimant's ability to work." Salmond v. Berryhill, 892 F.3d 812, 817 (5th Cir. 2018) (citing Loza, 219 F.3d at 391). This second step requires the claimant to make a de minimis showing. Salmond, 892 F.3d at 817.
If the claimant is found to have a severe impairment, the ALJ proceeds to the third step of the sequential analysis: whether the severe impairment meets or medically equals one of the listings in the regulation known as Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); 20 C.F.R. Part 404, Subpart P, Appendix 1. If the impairment meets one of the listings in Appendix 1, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the ALJ finds that the claimant's symptoms do not meet any listed impairment, the sequential analysis continues to the fourth step.
In step four, the ALJ must decide whether the claimant can still perform her past relevant work by determining the claimant's "residual functional capacity" (RFC). 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). "The RFC is the individual's ability to do physical and mental tasks on a sustained basis despite limitations from her impairments." Giles v. Astrue, 433 F. App'x 241, 245 (5th Cir. 2011). The ALJ must base the RFC determination on the record as a whole and must consider all of a claimant's impairments, including those that are not severe. 20 C.F.R. §§ 404.1520(e), 404.1545(e); Giles, 433 F. App'x at 245; see also Villa v. Sullivan, 895 F.2d 1019, 1023-24 (5th Cir. 1990).
The claimant bears the burden to prove disability at steps one through four, meaning the claimant must prove she is not currently working and is no longer capable of performing her past relevant work. Newton, 209 F.3d at 453 (citing 42 U.S.C. § 423(d)(1)(A)). If the claimant meets her burden, the burden shifts to the Commissioner at step five to show that the "claimant is capable of engaging in some type of alternative work that exists in the national economy." Id. Thus, in order for the Commissioner to find in step five that the claimant is not disabled, the record must contain evidence demonstrating that other work exists in significant numbers in the national economy, and that the claimant can do that work given her RFC, age, education, and work experience. Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987).
The ALJ performed the standard 5-step sequential analysis. (Dkt. 11-3 at 16-25). The ALJ found that Stockman met the insured status requirements of the Act through June 30, 2013; had not engaged in substantial gainful activity since her alleged onset date of February 19, 2009; and had the severe impairment of "status-post cervical fusion at C5-6 (from motor vehicle accident in 1997)[.]" (Dkt. 11-3 at 18-19). The ALJ determined that none of her impairments, alone or in combination, met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id. at 20-21).
The ALJ further determined that Stockman had the residual functional capacity to perform medium work as defined in 20 C.F.R. § 404.1567(c) and 416.967(c)
Stockman asserts the following points of error in her appeal to this court:
(Dkt. 13 at 4-15). The court finds that Plaintiff's arguments lack merit and that substantial evidence supports the decision.
The listings are a set of descriptions of physical and mental illnesses and abnormalities, categorized by the body system they affect. Hawthorne v. Astrue, 493 F.Supp.2d 838, 846 (S.D. Tex. 2007). The purpose of the listings is to describe impairments "severe enough to prevent a person from doing any gainful activity" regardless of age, education or work experience. 20 C.F.R. § 416.925(a); Sullivan v. Zebley, 493 U.S. 521, 532 (1990); SSR 83-19, 1983 WL 31248, at *1 (Jan. 1, 1983). "If the claimant's impairment matches or is `equal' to one of the listed impairments, he qualifies for benefits without further inquiry." Sullivan, 493 U.S. at 525. An impairment or combination of impairments meets or equals a listing only if the claimant presents medical findings equal in severity to all the criteria for the most similar listed impairment. Id. at 530 ("For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify."); SSR 83-19, 1983 WL 31248, at *2 (Jan. 1, 1983) ("An impairment `meets' a listed condition in the Listing of Impairments only when it manifests the specific findings described in the set of medical criteria for that listed impairment.").
Stockman alleges her impairments meet the requirements of Listing 1.04A, which pertains to "[d]isorders of the spine ... resulting in compromise of a nerve root ... or the spinal cord." 20 C.F.R. § 404, Subpt. P, App. 1, § 1.04. This listing requires "[e]vidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine)[.]" 20 C.F.R. § 404, Subpt. P, App. 1, § 1.04A.
Stockman has not met her burden to show that her impairments meet Listing 1.04A because she has not presented objective medical evidence of "motor loss (atrophy with associated muscle weakness or muscle weakness)." 20 C.F.R. § 404, Subpt. P, App. 1, § 1.04A. Stockman relies heavily on the opinion from Dr. Pawan Grover to support a claim that her impairment meets or medically equals Listing 1.04A. (Dkt. 13 at 6-7). However, Dr. Grover's treatment records do not show that she suffered motor loss as a result of her spinal impairment. (See Dkt. 11-15 at 47-49). In fact, after examining Stockman, Dr. Grover noted "5/5 strength in all extremities." (Dkt. 11-15 at 47). In addition to Dr. Grover's assessment of full strength in all extremities, Dr. Abu-Nassar's January 14, 2015 consultative exam demonstrated a normal gait, 5/5 strength in her extremities, normal sensation to touch, and the ability to bend, squat, walk on her toes and heels, and climb one flight of stairs.
Substantial evidence exists to support the ALJ's determination at step three that Stockman's impairments do not meet or equal
Stockman also claims the decision must be remanded due to the ALJ's inadequate explanation of the step three determination, citing Audler v. Austrue, 501 F.3d 446 (5th Cir. 2007). (Dkt. 13 at 8). In Audler, the Fifth Circuit held that the ALJ erred at step three because, without mentioning a specific listing and without any explanation, the ALJ "summarily concluded," that the claimant's impairments were not severe enough to equal to any listing in Appendix 1. Audler, 501 F.3d at 448. Here, the ALJ singled out Listing 1.04 and discussed medical records spanning several years as support for her conclusion that Stockman's impairment did not meet a listing. (See Dkt. 11-3 at 20-21). In her step three analysis, the ALJ mentioned Stockman's 2014 physical examination, which revealed no musculoskeletal or neurological abnormalities. (Dkt. 11-3 at 20, 11-9 at 60-61). She also discussed a January 2015 consultative examination, during which Stockman displayed normal range of motion in her spine. (Dkt. 11-3 at 20, 11-9 at 53). Next, the ALJ noted that a January 2015 lumbar x-ray was unremarkable and displayed no evidence of lumbar radiculopathy. (Dkt. 11-3 at 20, 11-9 at 56). The ALJ also took note of a January 2017 treatment record which shows that Stockman maintained full range of motion in her neck. (Dkt. 11-3 at 20, 11-14 at 4). Unlike the ALJ in Audler, the ALJ in this case adequately discussed her reasoning for the decision that Stockman did not meet the requirements of Listing 1.04.
Even had the ALJ erred by failing to explain her reasoning, the error is harmless because, as discussed above, substantial evidence supports the ALJ's step three finding. See Audler, 501 F.3d at 448 (requiring harmless error analysis even if ALJ erred by failing to state any reason for step three determination); Hall v. Schweiker, 660 F.2d 116, 119 (5th Cir. 1981) (requiring the claimant show prejudice resulting from the ALJ's error); James v. U.S. Comm'r, Soc. Sec. Admin., 6:16-cv-0055, 2018 WL 3129697, at *4 (W.D. La. June 8, 2018) ("To demonstrate the requisite harm, the claimant must demonstrate that the evidence showed that she satisfied [the l]istings ...."). For the reasons discussed in this section, the ALJ did not err at step three, and even if she had, the error is harmless, does not require remand, and the step three decision is supported by substantial evidence.
Stockman alleges multiple errors by the ALJ with respect to the residual functional capacity determination. A claimant's residual functional capacity, or RFC, is her "remaining ability to work despite all of her limitations resulting from her impairment[s]." Stockman v. Astrue, H-09-0656, 2010 WL 1404124, at *10 (S.D. Tex. Mar. 31, 2010) (citing 20 C.F.R. § 404.1545(a)). In evaluating the claimant's RFC, the ALJ must consider how the claimant's impairments affect her physical, mental, and other abilities, as well as the total limiting effects of her impairments. Stockman, 2010 WL 1404124, at *10 (citing 20 C.F.R. § 404.1545). The ALJ has the sole responsibility for determining a claimant's RFC based on the record as a whole. 20 C.F.R. § 404.1545(a)(3); see Villa, 895 F.2d at 1023.
The Fifth Circuit has consistently held that an ALJ is not required to conduct a function-by-function analysis if she bases her RFC assessment, at least in part, on a state medical examiner's report that contains a function-by-function analysis. See, e.g., Beck v. Barnhart, 205 F. App'x. 207, 213-14 (5th Cir. 2006) (holding that the ALJ's RFC determination was supported by substantial evidence because it was based on an examining physician's "general evaluation" of claimant's mobility, as well as a non-examining physician's "function-by-function analysis of the impact of [claimant's] impairments on her ability to perform various tasks."); Onishea v. Barnhart, No. 03-21028, 2004 WL 1588294, at *2 (5th Cir. July 16, 2004) (holding that the ALJ's reliance on a state examiner's function-by-function analysis is sufficient for the purpose of SSR 96-8p). Therefore, the ALJ did not err by failing to include a separate function by function analysis in her decision.
Nothing in the record shows that Stockman's symptoms, by their very nature, "wax and wane." In fact, Stockman does not assert that her pain varies in intensity or waxes and wanes; instead, she claims only that the ALJ "fail[ed] to comply" with the Regulations by declining to determine if she can sustain employment. (Dkt. 13 at 10). Because Stockman does not allege symptoms or conditions that wax and wane, the ALJ's RFC determination includes the determination that she can sustain work that is within the limits of the RFC. The ALJ did not err by failing to separately address Stockman's ability to maintain employment. See Perez, 415 F.3d 457 (5th Cir. 2005) (quoting Frank, 326 F.3d at 619 (citing Watson v. Barnhart, 288 F.3d 212, 217-18 (5th Cir. 2002)) ("This court made clear in Frank that `nothing in Watson suggests that the ALJ must make a specific finding regarding the claimant's ability to maintain employment in every case.' ... Rather, `Watson requires a situation in which, by its nature, the claimant's physical ailment waxes and wanes in its manifestation of disabling symptoms.' ... Without such a showing, the claimant's ability to maintain employment is subsumed in the RFC determination.").
Although the court assumes the ALJ committed error by failing to discuss the impact of obesity, the error was harmless unless Stockman can demonstrate she was prejudiced by the error. Caro v. Colvin, NO. EP-14-CV-212-MAT, 2017 WL 635497, at *3 (W.D. Tex. Feb. 14, 2017) ("Although the ALJ did not directly address [the claimant's] obesity, [the claimant] has failed to show that omission was harmful."); Willingham v. Comm'r of Soc. Sec. Admin., NO. 4:12-CV-00242, 2014 WL 1050286, at *5 (E.D. Tex. Mar. 14, 2014) ("[E]ven if the ALJ erred by failing to discuss independently the effect of Plaintiff's obesity as related to his other impairments, Plaintiff has not shown that he was prejudiced."); Madrid v. Colvin, No. 4:12-CV-800-Y, 2013 WL 6641305, at *6 (N.D. Tex. Dec. 17, 2013) (holding that the ALJ's failure to specifically analyze the claimant's obesity pursuant to SSR 02-01p was harmless error); Vaughn v. Astrue, No. 3:08-CV-1920-L, 2009 WL 3874607, at *5 (N.D. Tex. Nov. 17, 2009) ("At most, [the ALJ's] failure to specifically refer to obesity in his decision is harmless error ....").
The record contains no evidence demonstrating that Stockman's obesity had any impact on her ability to work. Stockman did not mention obesity as an impairment in her application or during her administrative hearing and her attorney refrained from questioning her at the hearing about the effect of obesity on her other impairments or her ability to work. Stockman's treating and consulting physicians gave no indication that her weight impacted her ability to perform work. The ALJ's failure to discuss the impact of Stockman's mild obesity was harmless error because the record is devoid of any evidence that her obesity impacts her ability to perform the medium work included in her RFC. See McGee v. Astrue, No. H-10-575, 2011 WL 11048325, at *4 (S.D. Tex. Feb. 25, 2011) ("Overall, [the claimant] has failed to identify any evidence that indicates her obesity limited her ability to perform basic sedentary work activities and there is no objective evidence that any decreased functioning was attributable to her obesity."); Zeringue v. Astrue, No. 3:09-CV-00063, 2010 WL 3021998, at *7 (M.D. La. July 9, 2010) (finding harmless error in failure to comply with SSR 02-01p where "[t]here is no medical evidence that [claimant's] obesity aggravates [his] degenerative disc disease of the lumbar spine ... or that it has any effect on his ability to perform sedentary work."); Conerly v. Barnhart, No. 1:06CV467-LG-JMR, 2008 WL 724030, at *5, n.2 (S.D. Miss. Mar. 17, 2008) (holding that an ALJ's failure to discuss obesity is not reversible error where plaintiff's physician noted obesity but did not find work limitations due to obesity).
Stockman claims the AU did not consider any explanations for the dearth of treatment records between 2011 and 2015 (Dkt. 13 at 14-15); yet, the ALJ noted in her decision that Plaintiff experienced difficulty in obtaining treatment due to the denial of claims by insurance companies. (Dkt. 11-3 at 21). Moreover, the AU scrutinized other factors in determining Stockman's RFC, including self-reported daily activities, objective medical records, and the opinion of treating and consulting physicians. (Id. at 21-23). Stockman has not shown error by the ALJ on this point.
In this case, substantial evidence supports the ALJ's RFC finding. In reaching her decision, the ALJ considered the objective medical evidence of Plaintiff's allegedly disabling back pain. An MRI of Stockman's thoracic and lumbar spine, dated July 24, 2009, revealed mild degenerative changes and no sign of spinal stenosis, focal disc bulge, or focal disc protrusion. (Dkt. 11-9 at 39). An x-ray of the lumbar spine, dated January 14, 2015, was "essentially unremarkable" showing only mild degenerative changes. (Dkt. 11-9 at 56). X-rays dated November 28, 2016 were largely unremarkable as well — there was no evidence of compression fracture in the lumbar spine and only mild degenerative changes of the cervical spine. (Dkt. 11-14 at 38-39). An MRI dated February 20, 2017 showed multilevel degenerative disc changes of the cervical and lumbar spine but no acute compression fracture. (Dkt. 11-14 at 11-14). Multiple physical examinations revealed normal range of motion of the neck and back and other signs of normal musculoskeletal function. (Dkt. 11-9 at 53 (showing normal gait, normal extension, flexion, and lateral flexion of the back, and normal range of motion); Dkt. 11-14 at 4-5 (showing normal gait, full range of motion in the head, neck, and back); Dkt. 11-14 at 9-10 (showing normal gait, full range of motion in head, neck, and back, no impairment of walking on toes or heels)).
Moreover, the majority of the evidence Stockman relies on consists of self-reported symptoms of pain. (See Dkt. 13 at 11-12). Although an ALJ must consider subjective complaints of pain in her disability determination, Hamilton-Provost, 605 F. App'x at 236, subjective evidence does not take precedence over conflicting medical evidence. Owens v. Heckler, 770 F.2d 1276, 1281 (5th Cir. 1985). Subjective complaints of pain cannot form the basis for a disability finding without objective evidence to show that the symptoms could reasonably be expected to produce the symptoms alleged. Id. (holding the claimant failed to meet her burden to offer corroborating proof of allegedly debilitating back pain). The objective medical evidence does not support her complaints of disabling back pain. For these reasons, the ALJ's RFC assessment is supported by substantial evidence and should not be disturbed.
For the reasons discussed above, the court