JORGE GARZA v. COMMISSIONER OF SOCIAL SECURITY (2023)

MEMORANDUM OPINION AND ORDER

This action was assigned for disposition pursuant to the parties' consent to proceed before a Magistrate Judge. Dkt. Nos. 13, 14. The Court has jurisdiction to review a final decision of the Social Security Administration. 42 U.S.C. § 405(g). Having considered the parties' briefing of Plaintiff's Motion for Summary Judgment, Dkt. No. 10, and the Acting Commissioner's Cross-Motion for Summary Judgment, Dkt. No. 15, the Court affirms the evaluation of opinion evidence but will vacate the Acting Commissioner's decision and remand for further consideration of Plaintiff's subjective complaints.

I. Background

On March 26, 2019, Plaintiff Jorge Garza filed an application for Title II Disability Insurance Benefits, alleging disability beginning December 2, 2018, due to degenerative disc disease of the lower back. Administrative Transcript (“T”) at 113–24. Garza's claim was denied initially on June 6, 2019, and, on reconsideration, on September 23, 2019. T 123, 131. After hearings held on April 21, 2020, T 34–44, and October 5, 2020, T 45–92, Administrate Law Judge Katherine W. Brown (“the ALJ”) issued an unfavorable decision on October 27, 2020. T 135–46. Garza requested review, and, on March 26, 2021, the Appeals Council granted review, vacated the hearing decision, and remanded for further proceedings. T 152–54. After a hearing held August 19, 2021, T 93–112, the ALJ issued another unfavorable decision on August 30, 2021. T 13–26.

The ALJ determined that Garza met the insured status requirements through December 31, 2023, and has not engaged in substantial gainful activity since the alleged onset date. T 15. The ALJ found that Garza has back disorder (including degenerative disc disease, status-post laminectomy and interbody fusion at L5/S1), which is a severe impairment that does not meet or medically equal one of the impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. T 15–17. The ALJ determined that Garza has the residual functional capacity to perform sedentary work, but:

He is limited to occasional climbing of ramps or stairs; never climbing ladders, ropes, or scaffolds; occasional stooping, kneeling, crouching and crawling; frequent reaching in all directions and frequent pushing/pulling in line with his lifting limitations; and occasional use of foot controls. He must avoid unprotected heights and moving mechanical parts, and he requires the use of a cane to assist in ambulation.

T 18. The ALJ found Garza is unable to perform his past work as a property assessment monitor, underwriting supervisor, and mortgage underwriter. T 23–24. However, the ALJ determined that Garza's previously acquired work skills are transferable to other occupations with jobs existing in significant numbers in the national economy, like human resource assistant, personnel scheduler, and maintenance scheduler. T 25. Thus, the ALJ concluded that Garza is not disabled. T 26.

On February 8, 2022, the Appeals Council denied review, T 2–4, and the ALJ's decision became the Acting Commissioner's final decision. Garza sued under 42 U.S.C. § 405(g).¹

II. Disability, Residual Functional Capacity, and Review under the Social Security Act

A. The Five-Step Inquiry

A claimant must be disabled to receive benefits under Title II of the Social Security Act. 42 U.S.C. § 423(d)(1)(A); Heckler v. Campbell, 461 U.S. 458, 459–61 (1983). An individual is disabled under the Act if he is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment” which has lasted or can be expected to last for at least twelve months. § 423(d)(1)(A).

The Commissioner uses a sequential, five-step inquiry to determine whether a claimant is disabled: (1) an individual who is working and engaging in substantial gainful activity is not disabled; (2) an individual who does not have a “severe impairment” is not disabled; (3) an individual who “meets or equals a listed impairment in [20 C.F.R. Part 404, Subpart P, Appendix 1, 12.00–12.09, Mental Disorders (“Appendix 1”)]” of the regulations will be considered disabled without consideration of vocational factors; (4) if an individual is capable of performing his past work, a finding of “not disabled” must be made; (5) if an individual's impairment precludes him from performing his past work, other factors including age, education, past work experience, and residual functional capacity (“RFC”) must be considered to determine if any other work can be performed. Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991) (per curiam) (summarizing provisions); 20 C.F.R. §§ 404.1520(a)(4)(i)–(v), 416.920 (b)–(f). A determination at any step that the claimant is or is not disabled terminates the inquiry. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995). The claimant “bears the burden of proof on the first four steps”; on the fifth, “the Secretary bears the burden of establishing that the claimant is capable of performing work in the national economy.” Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994) (citing Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987)).

Here, under this framework, the ALJ found, and the parties do not dispute, that Garza has not worked since the alleged onset date, T 15, that Garza has a severe impairment (back disorder), T 15–17, albeit not one listed in Appendix 1, T 17–18, and that Garza is unable to perform his past work as a property assessment monitor, underwriting supervisor, and mortgage underwriter, T 23–24. The parties concentrate their arguments on the ALJ's RFC finding at step five.

B. Residual Functional Capacity

RFC “is an administrative assessment of the extent to which an individual's medically determinable impairment(s), including any related symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to do work-related physical and mental activities.” Irby v. Barnhart, 180 Fed. App'x 491, 493 (5th Cir. 2006) (unpublished) (citing Social Security Ruling (“SSR”) 96-8p).² “Ordinarily, RFC is an assessment of an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis.” SSR 96-8p. “A ‘regular and continuing basis’ means 8 hours a day, for 5 days a week, or an equivalent work schedule.” Id. Put simply, RFC is “the most [Garza] can still do despite [his] limitations.” 20 C.F.R. § 404.1545(a)(1).

Determining RFC is a two-step process. 20 C.F.R. § 404.1529(a); Herrera v. Comm'r of Soc. Sec., 406 Fed. App'x. 899, 905 (5th Cir. 2010) (unpublished). Both steps must be satisfied to establish disability. See Salgado v. Astrue, 271 Fed. App'x 456, 460 (5th Cir. 2008) (unpublished) (“SSR 96-7p and [ ] § 404.1529 emphasize that subjective symptoms alone, absent some indication that they are supported by objective medical evidence, fail to support a disability finding.”).

First, the ALJ determines whether the claimant suffers from a medically determinable impairment that is “reasonably capable of producing” the claimed symptoms. SSR 96-7p. Claimed symptoms “will not be found to affect [one's] ability to do basic work activities unless medical signs or laboratory findings show that a medically determinable impairment(s) is present.” § 404.1529(b).

Second, the ALJ evaluates the “intensity, persistence, and limiting effects of the individual's symptoms” on his ability to do basic work activities. SSR 96-7p. The ALJ considers the objective medical evidence; the claimant's testimony; the claimant's daily activities; the location, duration, frequency, and intensity of the individual's symptoms; factors that precipitate and aggravate the symptoms; the medications individual takes to alleviate symptoms; any other treatment the claimant has received; and any other relevant factors. Id. In weighing medical opinions and statements about a claimant's pain, the ALJ must consider some particular factors. 20 C.F.R. §§ 404.1520c(c) (opinions), 404.1529(c) (pain).

Here, at the first RFC step, the ALJ found that Garza's “medically determinable impairments could reasonably be expected to cause the alleged symptoms.” T 19. At the second RFC step, the ALJ found that Garza

can perform sedentary work, in that he can lift and carry up to 10 pounds occasionally and less than 10 pounds frequently and can stand and walk for 2 hours and sit for 6 hours in an 8-hour workday. He is also limited to occasional stooping, kneeling, crouching, crawling, and climbing of ramps or stairs. He must never climb ladders, ropes, and scaffolds. He can frequently reach in all directions and can frequently push/pull in line with his lifting restrictions. The claimant can operate foot controls to no more than an occasional basis, and he must avoid work at unprotected heights or around moving mechanical parts. Lastly, he requires the use of a cane to assist in ambulation.

T 11. In light of this RFC and of Garza's age, education, and work experience, the ALJ found, on the strength of a vocational expert's testimony, that Garza could work in the national economy as a human resources assistant, personnel scheduler, or maintenance scheduler. T 24–26. Thus, she found, the agency met its burden of showing that Garza is not disabled. T 26.

The vocational expert also testified that someone like Garza would not be able to compete for work in the national economy if his RFC were to further limit him to sitting seven hours, standing thirty minutes, and walking thirty minutes per day; missing work two or more days per month; having trouble concentrating ten to fifteen percent of the workday; or needing the option to lie down or recline throughout the workday, at least three times per day, twenty or thirty minutes each time. T 88–90. So, Garza argues, if the ALJ erred in failing to include these limitations in Garza's RFC, she erred in finding him not disabled. Pl.'s Mot. 19–20, Dkt. No. 10.

Garza attacks, and the Acting Commissioner defends, two aspects of the ALJ's reasoning at the second RFC step: her consideration of medical opinions, and her consideration of statements about Garza's pain.

C. Standard of Review

“Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party ․ may obtain a review of such decision by a civil action” by a district court. 42 U.S.C. § 405(g).

Subsection 405(g) limits the Court's review of a denial of benefits to two inquiries: whether substantial evidence supports the decision, and whether the decision comports with relevant legal standards. Salmond v. Berryhill, 892 F.3d 812, 816–17 (5th Cir. 2018) (cleaned up). “Substantial evidence” is more than a scintilla, but less than a preponderance. Boyd, 239 F.3d at 704; 20 C.F.R. § 404.901. The Court does not reweigh the evidence or substitute its own judgment, but, rather, scrutinizes the record to determine whether substantial evidence is present. Greenspan, 38 F.3d at 236. “While substantial deference is afforded the Commissioner's factual findings, legal conclusions and claims of procedural error are reviewed de novo.” Gorgol v. Berryhill, No. SA-17-CA-109-HJB, 2017 WL 8181018, at *2 (W.D. Tex. Oct. 18, 2017) (citing Gutierrez, 2005 WL 1994289, at *4).

“Procedural perfection in administrative proceedings is not required,” and the Court “will not vacate a judgment unless the substantial rights of a party have been affected.” Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988) (per curiam). Remand “is appropriate only if [Garza] shows that he was prejudiced.” Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995). “Prejudice can be established by showing that additional evidence would have been produced if the ALJ had fully developed the record, and that the additional evidence might have led to a different decision.” Id. at 557 n.22.

Summary judgment is proper where the record reflects that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Although the “same standard rules governing summary judgments apply to a review of an administrative denial of social security benefits,” the Court's review is limited by 42 U.S.C. § 405(g). Alejandro v. Barnhart, 291 F. Supp. 2d 497, 500 (S.D. Tex. 2003) (cleaned up).

III. The ALJ's Consideration of Medical Opinions

An ALJ must consider, and must articulate how persuasive she finds, each medical source opinion in a claimant's case record. 20 C.F.R. § 404.1520c(a), (b). The ALJ must consider the opinion's supportability and consistency; the medical source's relationship with the claimant, examining relationship, and specialization; and other factors that tend to support or contradict the opinion. § 404.1520c(c). The ALJ need not explain her consideration of the latter factors, but supportability and consistency are the most important ones, so the ALJ must explain how she considers them. § 404.1520c(b)(2). “Supportability” means, “The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) ․, the more persuasive the medical opinions ․ will be.” § 404.1520c(c)(1). “Consistency” means, “The 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.” § 404.1520c(c)(2). See Pearson v. Comm'r of Soc. Sec., No. 1:20-CV-166-HSO-RPM, 2021 WL 3708047, at *5 (S.D. Miss. Aug. 11, 2021) (collecting cases), report and recommendation adopted, No. 1:20-CV-166-HSO-RPM, 2021 WL 3663073 (S.D. Miss. Aug. 18, 2021).

Here, Garza attacks the ALJ's consideration of three medical source opinions.

A. Dr. Dhiman's Opinion

On June 10, 2020, medical expert Nitin Paul Dhiman, M.D., responded to the ALJ's request for medical interrogatories and provided a medical statement on Garza's ability to do work-related physical activities. T 913–18 (statement), 919–21 (interrogatories). He opined that Garza could lift or carry up to twenty pounds occasionally and ten pounds frequently, T 913 (citing Ex. 2F at 42); could stand and walk for thirty minutes at a time and could sit for a total of seven hours, stand for thirty minutes, and walk for thirty minutes total in an eight-hour day, T 914 (citing Ex. 2F at 110); did not need a cane to ambulate, T 914; could occasionally reach in all directions and push/pull, T 915 (citing Ex. 5F at 64 and history of surgery); could frequently balance, could occasionally stoop, kneel, crouch, crawl, and climb stairs and ramps, and could never climb ladders or scaffolds, T 916 (citing Ex. 5F at 64 and history of surgery); and had various environmental limitations, T 917. Dr. Dhiman added, “I am not sure why the lack of solid fusion is present but I can suspect that the patient has improved greatly even without having that surgery (fusion) completed.” T 920.

The ALJ found Dr. Dhiman's medical opinions “mostly persuasive”:

However, the medical evidence does not support his opinion that the claimant is limited to standing and walking to no more than 30 minutes each in an 8-hour workday. Physical examinations by Dr. Jude were repeatedly unremarkable for any motor or sensory deficits, or gait dysfunction, and they routinely showed full range of motion of the extremities. Additionally, the evidence does not support Dr. Dhiman's opinion that the claimant could only occasionally reach, push, and pull. Yet, again, physical examinations by Dr. Jude, as well as by Dr. Benavides, were devoid of any deficits of the upper extremities, including range of motion, and motor and sensory functioning. However, due to the claimant's history of spinal surgery, the undersigned finds that he is limited to work at the sedentary exertional level with the ability to stand/walk for no more than 2 hours in an 8-hour workday. The claimant's history of lumbar surgery limits him to frequent reaching and pushing/pulling.

T 21–22 (going on to discuss environmental limitations).

Garza contends that the ALJ inadequately explained the deficiencies in Dr. Dhiman's evidence and, in light of the whole record, mischaracterized the physical examinations. Pl.'s Mot. 13–14, Dkt. No. 10-1. The ALJ's substitution of a two-hour-per-day stand/walk limitation in place of Dr. Dhiman's one-hour limitation was particularly harmful, Garza argues, because it made Garza competitive for work in the national economy under the vocational expert's testimony. Id. at 20 (citing T 88). The Acting Commissioner retorts that the ALJ engaged with the physical examinations more closely than did Dr. Dhiman, and it accuses Garza of asking the Court to re-weigh the evidence. Resp. 8, Dkt. No. 15-1.

In support of the one-hour stand/walk limitation, Dr. Dhiman cited “physical examination: 2F; p.110,” which was memorialized in office notes from one of Garza's follow-up visits with his back surgeon, Jordan J. Jude, M.D. T 659, 914. The examination was, as the ALJ observed, unremarkable. See T 21–22. Garza “states that he is doing extremely well and continues to increase into his normal activities without difficulty. His only complaint is occasional rare cramping of his left calf. Otherwise, he is able to perform all of his normal activities without difficulty and he denies any pain.” T 659. Garza was “overall: well nourished, well developing, sitting in the examining chair comfortably and in no acute distress.” T 659. His musculoskeletal gait and station were “overall: normal gait and normal station.” T 659. His bilateral lower extremities were “insp & palp - LE-overall: warm, non-tender, and without swelling or edema. No tenderness on palpitation.; range of motion - LE; overall: full range of motion without pain; stability - LE; overall: no noted dislocations or subluxations in any joints; strength & tone - LE; overall: motor strength is 5/5 in the bilateral lower extremities and muscle tone is normal.” T 659. Dr. Jude concluded, “He is doing well clinically as well as radiographically. I commended him on his progress thus far.” T 659. If any of this could support a one-hour stand/walk limitation, Dr. Dhiman's one-line citation, “physical examination: 2F; p.110,” did not show how. T 914.

Looking beyond that citation, the ALJ noted, “Physical examinations by Dr. Jude were repeatedly unremarkable for any motor or sensory deficits, or gait dysfunction, and they routinely showed full range of motion of the extremities.” T 22. The record contains over a hundred pages of impressions from Dr. Jude's office,³ which disclose Garza's decision to undergo back surgery, T 653–54 (Oct. 6, 2017), initial relief after surgery, T 655–56 (Feb. 2, 2018), 659–60 (Aug. 3, 2018), early promise of bone fusion, T 661–62 (Feb. 25, 2019), eventual reverses, T 802–03 (Sept. 16, 2019) and 980–81 (Nov. 18, 2019), and ultimate failure of bone fusion and onset of pseudoarthrosis, T 979 (Nov. 23, 2020). The ALJ reviewed this history, T 19–20, and acknowledged that it showed “recurrent lower back pain,” “tingling sensation/pain to the left calf and lower extremity,” and “failed fusion from his November 2017 laminectomy and interbody fusion with disc prosthesis at L5/S1,” which might warrant surgical intervention in the future. T 21. In making her RFC determination, the ALJ weighed these problems against the fact that “post-surgical follow-up visits with Dr. Jude were repeatedly benign for any neurological deficits and showed no deficits in ambulation.” T 21. The Court has reviewed the record and finds that the ALJ's characterization of the Dr. Jude examinations was broadly accurate. The ALJ might have weighed more heavily Garza's statement to Dr. Jude, “Walking will exacerbate his back pain and resting will help,” T 979, but, faced with a dynamic treatment record, e.g., T 980 (“He says he has no issues ambulating ․”), she was not required to. The ALJ was entitled to find Dr. Dhiman's one-hour stand/walk limitation unpersuasive in light of Dr. Jude's examinations.

In support of the occasional reach/push/pull limitation, Dr. Dhiman cited “History of spinal surgery” and “physical examination: 5F; p.64,” which was memorialized in office notes from another of Garza's follow-up visits with Dr. Jude. T 802, 915. In a case with over a thousand pages of record about spinal surgery, the ALJ was free to find the citation to “history of spinal surgery” unpersuasive. T 802. As for the examination, it was not quite as rosy as the former one, but the impressions most relevant to reaching, pushing, and pulling were, “gait and station-overall: normal gait and normal station,” and, “range of motion - LE; overall: full range of motion without pain.” T 802. The ALJ was under no obligation to find Dr. Dhiman's opinion, on the strength of this citation, persuasive. The ALJ also noted the inconsistency of the opinion with the rest of Drs. Jude and Benavides' examinations, which she also reviewed in her RFC determination. T 22. The Court has reviewed the record and, again, finds the ALJ was broadly accurate. She was entitled to find Dr. Dhiman's occasional reach/push/pull limitation unpersuasive.

Garza claims that the ALJ mischaracterized the examinations as “normal” and contended inaccurately that Garza had “no defects of the upper extremities necessitating reaching limitations.” Pl.'s Mot. 13, Dkt. No. 10-1. But the ALJ did not state that Dr. Jude's examination impressions were “normal”; rather, she stated that they “were repeatedly unremarkable for any motor or sensory deficits, or gait dysfunction, and they routinely showed full range of motion of the extremities.” T 21–22. The Court has reviewed Dr. Jude's records and, while they show that attention was paid to the symptoms in Garza's lower extremities, e.g., T 979, 980, they show that little or none was paid to his upper extremities. See T 661, 890–95, 979–81. And the ALJ did not find that Garza had no reaching limitations: She expressly found him limited to frequent reaching/pushing/pulling, and she confined her discussion of Dr. Dhiman's opinion to its consistency with the Dr. Jude examination that Dr. Dhiman himself cited and with Drs. Jude and Benavides' other examinations. T 22. Finally, Garza recites some impressions from other portions of the record to show that “the record as a whole” supported Dr. Dhiman's opinion. Pl.'s Mot. 13, Dkt. No. 10-1. For example, Ida Gutierrez, P.T., recorded, “restrictions: no pulling, no lifting, no twisting,” “Patient ambulates with decreased lumbar lordosis, posterior pelvic tilt,” and, as to the spine, “Range of motion is restricted with flexion (limited to 75 degrees), right lateral bending (limited to 30 degrees), left lateral bending (limited to 10 degrees), ․” T 674 (recording also, “Pt has no difficulty with work duties ․”). But Dr. Dhiman did not cite the record as a whole. He cited specific pages, which, the ALJ did not err in finding, did not persuasively support some parts of his opinion. See T 914 (citing Ex. 2F at 110), 915 (citing Ex. 5F at 64 and history of surgery). The ALJ needed not find persuasive an opinion given on faulty support just because better support could have been found elsewhere.

Substantial evidence shows that the ALJ's consideration of Dr. Dhiman's opinion satisfied 20 C.F.R. § 404.1520c.

B. Dr. Benavides' Opinions

On March 4, 2020, Luis M. Benavides, M.D., sent a questionnaire he had filled out. T 872, 875–77. Dr. Benavides was Garza's primary care doctor and had treated him every sixty to ninety days for the prior twenty years. T 872. On the strength of these examinations, T 876, Dr. Benavides opined that Garza would be off task for more than twenty-five percent of a workday, could stay on task for less than an hour between breaks, and would miss work more than four days per month, T 872; could occasionally lift/carry less than ten pounds and could occasionally carry, but only rarely lift, ten pounds, T 875; could sit for four hours, could stand/walk for two hours total in an eight-hour day, would require the option to sit/stand at will, and would need the option to lie down or recline three times, for between twenty and thirty minutes each, per workday, T 875; would sometimes need a quad cane when walking more than one hundred feet, T 875–76; could rarely reach overhead, could occasionally reach in other directions and use foot controls, and could frequently handle, finger, and feel, T 876; and had some other postural and environmental limitations, T 877.

On July 13, 2021, Dr. Benavides completed another questionnaire. T 1022. He now opined that Garza would be off task for fifteen percent of the workday and absent two days per month, T 1022; could occasionally lift and frequently carry ten pounds but only rarely lift/carry twenty pounds, T 1022; could sit for three hours and stand/walk for two hours total per workday but would need the option to sit/stand at will, T 1023; would need, and could not walk more than fifty yards without, a quad cane, T 1024; could frequently reach, handle, finger, and feel, T 1024; and had some other postural and environmental limitations, T 1025.

The ALJ found Dr. Benavides' medical opinions “not persuasive”:

His clinical examinations were routinely unremarkable and failed to support his opinion that the claimant was unable to stand, walk, and sit for 8 hours combined in an 8-hour workday. There is no support for adding a sit/stand option at will, and there is no support for Dr. Benavides's opinions concerning the claimant's ability to remain on task or on his expected absenteeism. Since December 2018, the claimant usually expressed that he was doing well, while physical examination by Dr. Benavides were largely unremarkable. The claimant routinely appeared alert and in no acute distress, and exam findings were non-focal (Ex. 20F/7, 13, 16-17, 20, 28-30, 33, 36, 49-50, 53-54, 57). In addition, the opinions were not consistent with objective medical evidence from Dr. Jude. In November 2019, the claimant had mild tenderness of the lumbar spine. However, examination of the lower extremities showed full range of motion without significant pain, intact (5/5) motor strength, and normal sensory functioning. Dr. Jude remarked that the claimant was doing well clinically despite diagnostic findings that his spine was not fused (Ex. 9F/5-6).

T 23 (going on to discuss Dr. Jude notes from November 2020).

Garza accuses the ALJ of selective reading. Pl.'s Mot. 17, Dkt. No. 10-1. He argues that had the ALJ fully credited Dr. Benavides' opinions on Garza's reclining, sitting, standing/walking, absenteeism, and concentration limitations, she would not have found Garza competitive for work in the national economy under the vocational expert's testimony. Id. at 20 (citing T 88–90). The Acting Commissioner responds that the ALJ evaluated Dr. Benavides' opinions properly. Resp. 9–11, Dkt. No. 15-1.

Although Garza makes general charges of “picking and choosing” and “select reading,” Pl.'s Mot. 17, Dkt. No. 10-1, he does not cite a single line of the record that the ALJ wrongly selected or failed to select in his Motion. Meanwhile, to support the ALJ's doubt of the questionnaires, she cited, and the Acting Commissioner recites in her Response, a string of Dr. Benavides' unremarkable examinations, T 23; Resp. 10, Dkt. No. 15-1 (citing T 23, 1032, 1038, 1041–42, 1045, 1053–56, 1058, 1061, 1074–75, 1078–79, 1082), and Dr. Jude's objective medical evidence, id. (citing T 890–91, 979). In his Reply, Garza attacks the relevance of some of these examinations, Reply 3, Dkt. No. 16, but the Court has reviewed them and finds that substantial evidence supports the ALJ's account that Garza “routinely appeared alert and in no acute distress, and exams findings were non-focal.” T 23. The fact that many of Dr. Benavides' treatment notes did not include back pain buttresses, rather than detracts from, the ALJ's conclusion. The ALJ was entitled to rely on Dr. Benavides' examinations in finding his opinions unpersuasive.

Substantial evidence shows that the ALJ's consideration of Dr. Benavides' opinions satisfied 20 C.F.R. § 404.1520c.

C. Dr. Kuhns' Opinion

On April 7, 2020, treating physician Clarissa Kuhns, Ph.D., completed a questionnaire about Garza's psychological conditions. T 881. Dr. Kuhns treated Garza with cognitive behavioral therapy for adjustment disorder with depressive features twenty-three times between September 22, 2015, and June 16, 2018. T 881, 925. Garza experienced anxiety, anger, decreased energy, difficulty concentrating and thinking, and poor emotional regulation. T 881–82. He had mild limitations in his ability to concentrate and marked limitations in his ability to interact with others and manage himself at work and home. T 883. Dr. Kuhns opined that Garza could stay on task for less than two hours at a time, would be off task for up to fifteen percent of the workday, and could perform only simple tasks, T 884–85; could sometimes, but not consistently, maintain socially appropriate behavior and work with the public, coworkers, and supervisors, T 884–85; and would need to miss work two times per month, T 885.

The ALJ explained,

Yet, Dr. Kuhns statements appeared to be based on encounters from September 22, 2015 to June 15, 2018 (Ex. 13F/4), which predate the claimant's alleged onset date of disability. They are not relevant in this matter. Furthermore, the medical evidence of record does not support these limitations. In June 2020, the claimant's responses to GAD-7 and PHQ-9 screenings were consistent with minimal symptoms of anxiety and depression (Ex. 14F/42-43). Moreover, on a letter dated June 11, 2020, Dr. Kuhns indicated that she had not treated the claimant since June 2018. Dr. Kuhns reported that the claimant participated fully and responded well to treatment. She concluded that he required no further treatment (Ex. 13F). Accordingly, Dr. Kuhns' medical opinions are not persuasive.

T 22.

Garza claims that the ALJ erred in finding Dr. Kuhns' opinion “not relevant” for its reliance on pre-onset evidence, and he argues that the ALJ failed to adequately explain why Dr. Kuhns' explanations did not support her opinion. Pl.'s Mot. 18–20, Dkt. No. 10-1 (citing 20 C.F.R. § 404.1520c(c)(1)). He urges that if the ALJ had included in Garza's RFC the marked limitations in ability to interact with others and manage himself, he might have been disabled under Appendix 1, would be precluded from the semi-skilled work identified by the vocational expert, and would require further work restrictions. Id. at 19–20 (citing SSR 85-15). The Acting Commissioner responds that the ALJ's decision was proper and her explanation adequate. Resp. 12, Dkt. No. 15-1.

If the ALJ meant to suggest that evidence collected before an alleged onset of disability can never bear on the disability, she was mistaken. “An ALJ may consider evidence predating the claimant's onset of disability alongside evidence from the relevant period, but ‘only to the extent that it illuminates’ the claimant's condition following the onset of his or her disability․ ALJs are required to at least consider evidence predating the onset of disability if it is contained in the claimant's medical record.” Dolecki v. Comm'r of Soc. Sec., No. 2:22-CV-11685, 2023 WL 4751266, at *15 (E.D. Mich. June 6, 2023) (quoting Snyder v. Comm'r of Soc. Sec., No. 1:15-CV-137, 2016 WL 944905, at *4 n.3 (W.D. Mich. Mar. 14, 2016), and citing DeBoard v. Comm'r of Soc. Sec., 211 F. App'x 411, 414 (6th Cir. 2006), 42 U.S.C. § 423(d)(5)(B) (2018), and 20 C.F.R. §§ 404.1545(a), 416.945(a)), report and recommendation rejected on other grounds, No. 22-CV-11685, 2023 WL 4747367 (E.D. Mich. July 25, 2023). The ALJ's statement that the pre-onset evidence was “not relevant in this matter” was strictly inaccurate and “fairly detracts from the substantiality of the evidence supporting the Commissioner's findings.” Martin v. Heckler, 748 F.2d 1027, 1031 (5th Cir. 1984). So, without requiring “[p]rocedural perfection,” Mays, 837 F.2d at 1364, the Court must look hard at her remaining discussion for substantial evidence that, notwithstanding this flaw, she adequately considered and explained the supportability of Dr. Kuhns' opinion. See 20 C.F.R. § 404.1520c(c)(1).

The Court does find substantial evidence. The supportability factor requires an ALJ to consider what evidence and explanations a medical source advances to support her own opinion, 20 C.F.R. § 404.1520c(c)(1), and, “when a medical source provides multiple medical opinion(s),” the ALJ may articulate her consideration of them “in a single analysis” under § 404.1520c(c). § 404.1520c(b)(1) (“Source-level articulation”). Here, Dr. Kuhns gave in evidence two items, the April 2020 questionnaire and the June 2020 letter, which the ALJ properly considered together in one analysis of Dr. Kuhns' opinion. T 22. Under source-level articulation, the ALJ's consideration of how the questionnaire and letter strengthened or weakened Dr. Kuhns' whole opinion amounted to an analysis of the opinion's supportability. See § 404.1520c(c)(1). And the ALJ's discussion of the GAD-7 and PHQ-9 screenings was an analysis of the opinion's consistency with the rest of the record. See § 404.1520c(c)(2). The Court has reviewed the questionnaire, T 880–85 (marked limitations, poor relationships, and temper outbursts, based on pre-onset observations), the letter, T 925–26 (improved relationship and good prognosis, based on pre-onset observations), and the screenings, T 968–69 (minimal anxiety and depression, based on post-onset self-reports), and finds that the ALJ did not err in relying on them to find Dr. Kuhns' opinion unpersuasive. See Leggett, 67 F.3d at 564 (“The Commissioner's decision is granted great deference ․”). Coming immediately after the ALJ's remark about relevance, her pointed use of the words “support” and “consistent” also suggests that, despite her relevance mistake, the ALJ was grappling intentionally with the § 404.1520c(c) factors. Taken as a whole, the ALJ's analysis shows that she substantively engaged in some detail with the supportability and consistency of Dr. Kuhns' opinion. See Pearson, 2021 WL 3708047, at *5.

Substantial evidence shows that the ALJ's consideration of Dr. Kuhns' opinion satisfied 20 C.F.R. § 404.1520c.

IV. The ALJ's Consideration of Statements about Garza's Pain

An ALJ must consider all of a claimant's statements about his pain and how it affects him. SSR 16-3p; 20 C.F.R. § 404.1529(a). In evaluating the intensity and persistence of the pain and how it limits the claimant's RFC, the ALJ must consider his daily activities; the location, duration, frequency, and intensity of the pain; precipitating and aggravating factors; any medication, treatment, and measures taken to relieve the pain; and other factors concerning the limitations caused by the pain. § 404.1529(c)(1), (c)(3), (d)(4). The ALJ may consider any inconsistencies in this evidence and any conflicts between it and the objective medical and other evidence. § 404.1529(c)(4). That is, she may “examine objective medical evidence in testing the applicant's credibility” and “may find, from the medical evidence, that an applicant's complaints of pain are not to be credited or are exaggerated.” Johnson v. Heckler, 767 F.2d 180, 182 (5th Cir. 1985); see Griego v. Sullivan, 940 F.2d 942, 945 (5th Cir. 1991). However, the ALJ may not reject the claimant's statements about his pain “solely because the available objective medical evidence does not substantiate” them. § 404.1529(c)(2). The ALJ need not “follow formalistic rules in his articulation,” but “the law requires the ALJ to make affirmative findings regarding a claimant's subjective complaints.” Falco v. Shalala, 27 F.3d 160, 163, 164 (5th Cir. 1994) (citing Scharlow v. Schweiker, 655 F.2d 645, 648–49 (5th Cir. Unit A Sept. 1981)); see Yazmin R.M. v. Berryhill, No. 3:17-CV-2625-L-BT, 2019 WL 1116605, at *4 (N.D. Tex. Feb. 22, 2019) (“Failure to indicate the credibility choices made and the basis for those choices in resolving the crucial subsidiary fact of the truthfulness of the subjective symptoms and complaints requires reversal and remand.” (quoting Scharlow, 655 F.2d at 649)), report and recommendation adopted sub nom. Yazmin R.M. v. Colvin, No. 3:17-CV-2625-L, 2019 WL 1115029 (N.D. Tex. Mar. 11, 2019).

In Scharlow v. Schweiker, 655 F.2d 645 (5th Cir. Unit A Sept. 1981), a disability claimant alleged that she constantly felt acute and general pains throughout her body and required a variety of tranquilizers and pain depressants. 655 F.2d at 647. The ALJ denied her claim, referring only to “the medical evidence” and giving “no indication how much attention he paid to the testimony about pain.” Id. at 649. The ALJ “made no credibility findings at all, and therefore made no finding that he disbelieved her testimony.” Id. This required remand.

In Falco v. Shalala, 27 F.3d 160 (5th Cir. 1994), a disability claimant injured his back and, complaining of debilitating pain, became immobile, obese, and dependent on his medication. 27 F.3d at 161–62. The ALJ denied his claim, finding his pain to be “of only a mild to moderate degree” and explaining that the “claimant's subjective complaints are found not to be fully credible but somewhat exaggerated.” Id. at 163. This fulfilled the ALJ's obligation “to explain his reasons for rejecting a claimant's complaints of pain.” Id. at 164. The Fifth Circuit affirmed the denial.

Here, the ALJ recited an account of Garza's hearing testimony. T 18–19. On October 5, 2020, Garza stated that he has unbearable back pain and can neither walk for more than thirty or forty-five minutes before needing to sit nor sit for more than thirty or forty-five minutes before needing to walk. T 18. He uses a cane, has trouble sleeping, cannot bend over or perform activities like grocery shopping, cannot drive a vehicle for more than forty-five minutes at a time, and limits himself to lifting no more than five pounds. T 18–19. On August 17, 2021, Garza stated that a loose surgical screw generates severe pain, requiring him to lie down and remain immobilized. T 19. He uses a quad cane and, when his pain level is high, a back brace, and pain and numbness travel from his lower back to his left leg, calf, and ankle. T 19.

The ALJ concluded,

After careful consideration of the evidence, the undersigned finds that ․ the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.

The objective medical evidence of record does not substantiate the claimant's allegations of incapacitating pain.

T 19. The ALJ then proceeded to recount Garza's history with Drs. Jude and Benavides, T 19–21, and, before stating Garza's RFC and explaining her consideration of the medical opinions, T 21–23, summarized her view of Garza's pain and the objective medical evidence:

The record shows that the claimant has recurrent lower back pain despite undergoing surgical intervention in November 2017. In addition to lower back pain, the claimant also endorsed radicular symptoms. He described having tingling sensation/pain to the left calf and lower extremity. Yet, post-surgical follow-up visits with Dr. Jude were repeatedly benign for any neurological deficits and showed no deficits in ambulation.

T 21 (going on to acknowledge failed fusion).

Garza argues that the ALJ failed to consider adequately the 20 C.F.R. § 404.1529(c)(3) factors, like daily activities and other pain limitations. Pl.'s Mot. 22, Dkt. No. 10-1. He draws attention to some statements that the ALJ did not include in her recitation, e.g., there are railings and a bench in Garza's shower, T 59, he cannot lift things above his head, T 60, and he is no longer able to cook, T 62. Had the ALJ properly evaluated Garza's statements about his pain, he urges, she would have found him disabled. T 23 (citing T 54–58). The Acting Commissioner responds that the ALJ adequately considered the factors and made findings, Resp. 14–15, Dkt. No. 15-1 (citing Falco, 27 F.3d at 163–64), gave reasoning throughout her decision, and, after all, “was correct in her credibility finding.” Id. at 15. The Acting Commissioner contends that the ALJ properly acknowledged Garza's statements and analyzed the objective medical evidence, id. at 16, and highlights a line, from the ALJ's account of Dr. Jude's examinations, where the ALJ observed that Garza “was able to perform most of his normal activities of daily living without difficulty.” Id. at 17 (citing T 20 (citing T 802)). Garza replies that this “single note” did not amount to adequate consideration of Garza's daily activities under § 404.1529(c)(3)(i). Reply 5, Dkt. No. 16.

The Court agrees with Garza. The ALJ's key findings about Garza's pain were that his statements were “not entirely consistent with the medical evidence and other evidence in the record” and that the “objective medical evidence of record does not substantiate the claimant's allegations of incapacitating pain.” T 19.⁴ These flouted the Social Security Administration's rule that “we will not reject your statements about the intensity and persistence of your pain or other symptoms or about the effect your symptoms have on your ability to work solely because the available objective medical evidence does not substantiate your statements.” § 404.1529(c)(2). The ALJ's best reasoning in support of her findings was the transition between the sentences, “He described having tingling sensation/pain to the left calf and lower extremity,” and, “Yet, post-surgical follow-up visits with Dr. Jude were repeatedly benign for any neurological deficits and showed no deficits in ambulation.” T 21. Posing the word “yet” between a pain statement and a medical sign did not satisfy § 404.1529. See Price v. Astrue, 401 F. App'x 985, 986 (5th Cir. 2010) (requiring “logical bridge” between evidence and determination). This captured in miniature the structural flaw in the ALJ's discussion: She recited the pain statements, then the objective medical evidence, and only indicated the contrast between them with a one-sentence paragraph, “The objective medical evidence of record does not substantiate the claimant's allegations of incapacitating pain.” T 19. If the ALJ considered the § 404.1529(c)(3) factors, the Court cannot tell where. The line about “normal activities,” T 20, adrift in a sea of medical evidence and itself drawn from a medical report, was not enough.⁵ Garza's hearing testimony provided the only suggestion in the record that, since his last CT examination, T 982–83, “one of the screws has become loose and it's very—it's loose and it's not where it used to be and that creates the—you know, a lot of pain.” T 102–03.⁶ The ALJ left the Court to guess why, if not solely for want of objective medical substantiation, but see § 404.1529(c)(2), she found statements like this one so incredible. Cf. Pearson, 2021 WL 3708047, at *5. This requires remand.

In Scharlow, 655 F.2d 645, an ALJ gave “no indication how much attention he paid to the testimony about pain.” 655 F.2d at 649. Here, similarly, the ALJ's decision gave no hint of whether she found Garza to be credible or of how she weighed his statements against the record. In Falco, 27 F.3d 160, an ALJ found a claimant's complaints “not to be fully credible but somewhat exaggerated.” 27 F.3d at 163. Here, by contrast, the ALJ gave no explanation for her rejection of Garza's statements. This fell short of the Fifth Circuit's requirements.

Substantial evidence does not show that the ALJ's consideration of statements about Garza's pain satisfied 20 C.F.R. § 404.1529 or the precedents of the Fifth Circuit.

V. Conclusion and Order

For the reasons above, the Court ORDERS that Plaintiff's Motion for Summary Judgment, Dkt. No. 10, is DENIED IN PART as to the medical source opinions and GRANTED IN PART as to the statements about pain, and the Court ORDERS that the Acting Commissioner's Cross-Motion for Summary Judgment, Dkt. No. 15, is GRANTED IN PART as to the medical source opinions and DENIED IN PART as to the statements about pain. The decision of the Acting Commissioner is VACATED and REMANDED for further administrative proceedings.

IT IS SO ORDERED.

SIGNED this September 30, 2023, at Laredo, Texas.

FOOTNOTES

1.   The Court will give further details of Garza's medical history in connection with the parties' relevant arguments.

2.   “The Social Security Administration's rulings are not binding on this court, but they may be consulted when the statute at issue provides little guidance. The Fifth Circuit has frequently relied upon the rulings in evaluating ALJ's decisions.” Myers v. Apfel, 238 F.3d 617, 620 (5th Cir. 2001).

3.   See T 550–667, 802–03, 886–97, 978–84, 1015–20.

4.   See Lara v. Kijakazi, No. 3:21-CV-1032-L-BH, 2022 WL 4486085, at *19 (N.D. Tex. Aug. 29, 2022) (slip opinion) (collecting cases holding “not entirely consistent” phrase to be “boilerplate” and “essentially meaningless” and going on to approve ALJ determination), report and recommendation adopted, No. 3:21-CV-1032-L-BH, 2022 WL 4485826 (N.D. Tex. Sept. 27, 2022).

5.   Courts require more to approve a § 404.1529 discussion. See, e.g., Parker v. Comm'r of Soc. Sec., No. 9:21-CV-279-MAC, 2023 WL 5769347, at *4 (E.D. Tex. Aug. 15, 2023) (slip opinion) (“Overall, the description of symptoms and limitations which the claimant provided throughout the record has generally been inconsistent and unpersuasive.”), report and recommendation adopted sub nom. Parker v. Comm'r of Soc. Sec., No. 9:21-CV-279-MAC, 2023 WL 5751432 (E.D. Tex. Sept. 6, 2023); V. v. Comm'r of Soc. Sec., No. 4:21-CV-1797, 2022 WL 4450488, at *5 (S.D. Tex. Sept. 23, 2022) (slip opinion) (“Plaintiff has generally not received the type of medical treatment one would expect for a totally disabled individual ․”); Rodriguez v. Kijakazi, No. CV 21-1512, 2022 WL 4100837, at *7 (E.D. La. Aug. 5, 2022) (slip opinion) (“[T]he ALJ found that the allegations were not consistent with the evidence of Plaintiff's activities of daily living, noting that she can walk over a mile, drive, takes trips to pick up her medications, and that she stopped working for reasons completely unrelated to her impairments.”), report and recommendation adopted, No. CV 21-1512, 2022 WL 4094162 (E.D. La. Sept. 7, 2022); Gillman v. Comm'r, SSA, No. 4:19-CV-00704-CAN, 2021 WL 1213556, at *8 (E.D. Tex. Mar. 30, 2021) (slip opinion) (“The lack of nearly any medical treatment for over 5 years strongly suggests the claimant's impairments are not as severe as alleged.”); Mason-Watts v. Saul, No. 4:19-CV-580-Y, 2020 WL 5552152, at *9 (N.D. Tex. Aug. 12, 2020) (slip opinion) (“The claimant testified that she had been prescribed medication for pain but took mostly ibuprofen, ․ Considering the claimant's activity level during the relevant period, I conclude that this factor does not tend to show an inability to perform the range of work identified in this decision.”), report and recommendation adopted sub nom. Mason v. Saul, No. 4:19-CV-580-Y, 2020 WL 5544271 (N.D. Tex. Sept. 16, 2020); Ayala v. Saul, No. 7:19-CV-00024-O-BP, 2020 WL 2487051, at *4 (N.D. Tex. Feb. 14, 2020) (unreported) (“[T]he ALJ noted Ayala's reports of complying with most but not all of his medications, his ‘numerous’ appointment cancellations during his treatment at the Helen Farabee Centers, and the inconsistencies in his testimony about why he was fired.”), report and recommendation adopted in part, rejected in part on other grounds, No. 7:19-CV-00024-O-BP, 2020 WL 1226879 (N.D. Tex. Mar. 13, 2020); Yazmin R.M., 2019 WL 1116605, at *4 (“The ALJ also stated that he discounted Plaintiff's subjective complaints, in part, because the evidence showed she failed to follow treatment recommendations․ Finally, the ALJ stated that Plaintiff's demeanor at the hearing undermined her credibility.”); St. Clair v. Berryhill, No. 4:16-CV-1100-A, 2017 WL 3332260, at *8 (N.D. Tex. July 19, 2017) (unreported) (“[T]he claimant engages in activities that are not limited to the extent one would expect, given her complaints of disabling symptoms and limitation.”), report and recommendation adopted sub nom. Clair v. Berryhill, No. 4:16-CV-1100-A, 2017 WL 3316254 (N.D. Tex. Aug. 3, 2017).

6.   Garza continued, “In other words, you know, I've got to be either like laying down and not moving and, if I do move—well, you know, I do get the pain․ When I cough or I sneeze, if I cough or I sneeze, that also creates a pain down where the—the cage has been inserted, where the screws are.” T 103 (going on to explain this causes numbness in lower left leg).

Diana Song Quiroga United States Magistrate Judge