Zuniga v. Commissioner of Social Security

Filing 22

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION UNITED STATES MAGISTRATE JUDGE for 17 Report and Recommendations. It is therefore ORDERED that the decision of the Commissioner is AFFIRMED. Signed by District Judge Sean D. Jordan on 1/17/2023. (mmc)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
KAREN ZUNIGA
v.
COMMISSIONER, SSA

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CIVIL NO. 4:21-CV-705-SDJ

MEMORANDUM ADOPTING RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE
Came on for consideration the Report and Recommendation (“Report”) of the
United States Magistrate Judge in this action, this matter having been heretofore
referred to the Magistrate Judge pursuant to 28 U.S.C. § 636. (Dkt. #17). In the
Report, the Magistrate Judge recommended that the Court affirm the final decision
of the Commissioner of Social Security (“Commissioner”) denying Plaintiff Karen
Zuniga’s claim for disability insurance benefits. Zuniga timely filed objections.
(Dkt. #18). The Commissioner responded to the objections, (Dkt. #20), and Zuniga
filed a reply, (Dkt. #21).
The Court has conducted a de novo review of the objections and the portions of
the Report to which Zuniga specifically objects, and the Court is of the opinion that
the findings and conclusions of the Magistrate Judge are correct and that the
objections are without merit as to the ultimate findings of the Magistrate Judge. The
Court hereby adopts the findings and conclusions of the Magistrate Judge as the
findings and conclusions of the Court.

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I. BACKGROUND
This is an appeal of the Social Security Administration’s (“SSA”) decision
denying Zuniga’s application for disability insurance benefits. In her claim before the
SSA, Zuniga alleged that she was entitled to disability insurance benefits because
she suffered from multiple sclerosis (“MS”). The SSA’s Administrative Law Judge
(“ALJ”) found that Zuniga is not disabled within the meaning of the Social Security
Act, and, therefore, is not entitled to disability insurance benefits. Because the SSA
Appeals Council denied Zuniga’s request for review of the ALJ’s decision, the ALJ’s
unfavorable decision is the final reviewable decision in this case. Sims v. Apfel,
530 U.S. 103, 107, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000); 42 U.S.C. § 405(g). Zuniga
timely appealed that decision to this Court. (Dkt. #1).
Following briefing on the matter, the Magistrate Judge entered the Report
finding that Zuniga’s arguments on appeal were without merit and recommending
that the Court affirm the Commissioner’s decision. Zuniga timely filed objections to
the Report, and those objections are now fully briefed.
II. LEGAL STANDARD
A party who files timely written objections to a magistrate judge’s report and
recommendation is entitled to a de novo review of those findings or recommendations
to which the party specifically objects. 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P.
72(b)(2)–(3). Review of the SSA’s underlying disability decision “is limited to
determining whether that decision is supported by substantial evidence and whether
the proper legal standards are applied.” Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir.
2001) (quoting Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000)). “Substantial
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evidence is such relevant evidence as a responsible mind might accept to support a
conclusion.” Id. (quoting Harris, 209 F.3d at 417).
III. DISCUSSION
The Report describes the five-step sequential evaluation process the SSA must
use in considering disability applications. (Dkt. #17 at 2 n.3); 20 C.F.R § 404.1520.
The Court need not rehash the steps in full. Relevant here, the process includes
initially determining whether a claimant’s impairment corresponds to a listed
impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R § 404.1520. If so,
the ALJ then determines the claimant’s residual functioning capacity (“RFC”) to be
used in assessing the type of work a claimant can do. See id. The claimant must
satisfy each of the five-steps to qualify for disability insurance benefits. See id.;
(Dkt. #17 at 2 n.3).
In this case, the ALJ determined that Zuniga’s impairments or combination of
impairments did not meet or medically equal the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. at 17–21.1 The ALJ
considered several pieces of evidence in making this determination. First, the ALJ
expressly considered listing section 11.09 for multiple sclerosis, but determined that
such listing was unsupported by the record. Tr. at 18. As for Zuniga’s RFC, the ALJ
found that she could perform a full range of work at all exertional levels with certain
non-exertional limitations related to climbing, exposure to unprotected heights, and

(Dkt. #9-1) through (Dkt. #9-16) comprise the Administrative Record (“Tr.”). As in
the Report, when citing to the record, the Court cites to the Tr.’s internal pagination in the
lower right-hand corner of each page rather than to the CM/ECF document number and page.
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dangerous moving machinery. Tr. at 21. Second, the ALJ considered a Family Medical
Leave Act form and a note related to Zuniga’s application for a Texas disability
parking placard provided by Zuniga’s neurologist, Dr. Lynn Wang, M.D. Tr. at 20–
21. However, the ALJ found that the documents were not persuasive because they
did not contain a functional assessment of Zuniga and did not constitute consistent
treatment records. Tr. at 20–21. The ALJ then concluded that Zuniga could perform
past relevant work. Tr. at 21. Finally, the ALJ made the alternative finding at the
final step of the analysis that Zuniga can make a successful adjustment to other work
that exists in significant numbers in the national economy. Tr. at 22. For these
reasons, the ALJ concluded that Zuniga had not been under a disability from
November 10, 2016, the date Zuniga alleged that her disability began, through the
date of the ALJ’s decision. Tr. at 23.
Zuniga objects that the ALJ—and in turn the Magistrate Judge in affirming
the ALJ—committed reversible legal error by failing to adhere to SSA policies
regarding how to evaluate severe impairments with cyclical symptoms. Specifically,
she argues that the ALJ (1) failed to consider subjective evidence of Zuniga’s pain;
(2) misrepresented the record in finding that Zuniga had a normal neurological
examination in 2020; (3) failed to consider both Zuniga’s cyclical exacerbations and
her limitations in walking, standing, and carrying; and (4) committed reversible legal
error because his residual functional capacity finding does not comport with Zuniga’s
diagnosis. None of Zuniga’s objections has merit.

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A. Zuniga’s First Objection
First, Zuniga objects that the ALJ failed to consider subjective evidence of her
pain. “The subjective feeling of pain may be introduced either through testimony by
the claimant or friends, family, and co-workers.” Ware v. Schweiker, 651 F.2d 408,
412 (5th Cir. Unit A July 24, 1981). Zuniga does not point to any subjective evidence
of pain in the administrative record, and the Court is unable to locate any. To the
extent Zuniga asserts that evidence related to her balance issues and incidents of
falling also implicates subjective evidence of pain, the ALJ properly considered that
evidence. See Tr. at 19.
Because there is no subjective evidence of pain in the record that the ALJ did
not consider, the first objection is overruled.
B. Zuniga’s Second Objection
Second, Zuniga argues that the ALJ’s finding that Zuniga had a normal
neurological examination in 2020 is “objectively false” because “Dr. Wang in 2020
NEVER performed a ‘neurological examination’ with ‘findings’ that were ‘normal’
because the visit was via telemedicine.” (Dkt. #18 at 2 (quoting Dkt. #17 at 20)).
Zuniga further contests that Dr. Wang’s office note shows that she did not perform
any motor, sensory, or reflex examinations. Therefore, Zuniga concludes that remand
is necessary because the ALJ did not develop the facts fully and fairly.
Zuniga’s argument that she did not have a normal neurological examination is
contradicted by the record. Though she may disagree with her physician’s method of
conducting the examination, the medical records clearly reflect a normal neurological
examination and show that Dr. Wang considered, among other things, Zuniga’s
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speech and cognition. Tr. at 425. Moreover, Zuniga herself denied any neurological
symptoms other than “weakness.” Tr. at 425. Zuniga does not argue that an in-person
neurological examination or an examination otherwise conducted differently would
have resulted in abnormal findings. As the Magistrate Judge noted, the “Court will
not reverse the decision of an ALJ for failure to fully and fairly develop the record
unless the claimant shows that he or she was prejudiced by the ALJ’s failure.”
(Dkt. #17 at 10 n.6) (quoting Carey v. Apfel, 230 F.3d 131, 142 (5th Cir. 2000)). And
to establish prejudice, a claimant must show that she “could and would have adduced
evidence that might have altered the result.” (Dkt. #17 at 10 n.6) (quoting Carey, 230
F.3d at 142). Zuniga has made no such showing here.
Because Zuniga fails to explain how the ALJ and Magistrate Judge erred in
finding that Zuniga had a normal neurological examination in 2020, and because
Zuniga has not shown how any alleged error prejudiced her, Zuniga’s second objection
is also overruled.
C. Zuniga’s Third Objection
Zuniga next objects that the ALJ erred in failing to consider both Zuniga’s
cyclical exacerbations caused by her condition and her limitations in walking,
standing, and carrying.
The ALJ considered all of the evidence Zuniga presented related to the
“frequency and duration of exacerbations, length of remissions, and permanent
residuals.” 20 C.F.R. Part 404 Subpart P, App. 1, Section 11.00D. The ALJ specifically
noted that Zuniga “explained that her symptoms are sporadic with good days and bad

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days.” (Tr. at 19). The ALJ looked to neurology records showing that Zuniga’s “last
visit was a year earlier” and that there was “no clinical evidence to suggest
exacerbation of multiple sclerosis.” (Tr. at 20). At the next appointment, Zuniga “said
she was doing fine, although she easily trips and occasionally has some falls.” (Tr. at
20).
In her reply brief, Zuniga puts a finer point on the ALJ’s alleged failure. Zuniga
contends that “the ALJ was required to include in his RFC finding unscheduled days
off when [Zuniga] experience[s] an exacerbation of her severe remitting and relapsing
multiple sclerosis” and that “Zuniga’s treating neurologist confirmed that these
cyclical symptoms occur between 2-3 times a month.” (Dkt. #21 at 1) (emphasis in
original). The ALJ did consider the fact that Dr. Wang signed a form for Zuniga’s
husband to take intermittent leave two to three days per month from his job to help
Zuniga. However, the ALJ properly found the form unpersuasive because it (1) did
“not contain a functional assessment of the claimant,” and (2) was inconsistent with
other treatment records, including other treatment records from Dr. Wang “showing
consistently grossly normal physical examination findings.” See (Tr. at 21). As to the
latter point, though Zuniga contends that Dr. Wang’s statement that her MS was
“partially stable” in 2019 means that she “ha[s] relapses about three times a month,”
Zuniga does not point the Court to any evidence supporting this definition. (Dkt. #18
at 2).
Zuniga cites to Gewin v. Astrue, No. 10-1008, 2011 WL 3924232 (W.D. La. Aug.
3, 2011) to buttress her objection, but that case is readily distinguishable. (Dkt. #18

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at 5). In Gewin, the ALJ discounted the claimant’s testimony and the assessment of
the claimant’s neurologist, choosing instead to give greater weight to a consultative
physician’s findings. Gewin, 2011 WL 3924232, at *4. That physician opined that “at
the present time,” i.e., during a period of remission, the claimant had no limitation of
function. Id. The court found that the ALJ erred in not obtaining evidence to support
a determination regarding the frequency and duration of the claimant’s exacerbations
because “multiple sclerosis, as experienced by plaintiff, presents the type of
impairment that waxes and wanes in its manifestations of disabling symptoms.” Id.
at *4–5.
Here, by contrast, the ALJ considered Zuniga’s testimony that she has good
and bad days. The ALJ specifically asked Zuniga how often she experienced
symptoms from her MS, and Zuniga responded only that “it’s so sporadic.” (Tr. at 36).
The ALJ elicited testimony that Zuniga “ha[s] a little fall” once or twice a week. (Tr.
at 37). The ALJ also looked at years of treatment records reflecting Zuniga’s condition
at various points. Other than the vague assertion that Zuniga needed her husband’s
support two to three times a month, which the Court addressed above, Zuniga points
to no evidence that the ALJ failed to consider or should have developed further. Nor
does Zuniga provide the Court with any information about what her specific “cyclical
symptoms” are. Accordingly, this objection is also overruled.
D. Zuniga’s Fourth Objection
Finally, Zuniga objects that the ALJ’s RFC finding “does not comport with a
diagnosis of MSRR, partially stable.” (Dkt. #18 at 5). Zuniga does not provide any

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support for this assertion, although she appears to imply that, again, the ALJ’s failure
to consider the cyclical nature of her symptoms, including the frequency and duration
of her exacerbations, resulted in an erroneous RFC finding. This unsupported
objection must also be overruled.
In sum, the Court concludes that the ALJ made a decision that was supported
.
by substantial evidence and used proper legal standards to evaluate the evidence. See
Webster v. Kijakazi, 19 F.4th 715, 718 (5th Cir. 2021).
IV. CONCLUSION
Based on the foregoing reasons, the Court concludes that Zuniga’s Objections
to Report and Recommendation of United States Magistrate Judge, (Dkt. #18), are
OVERRULED. It is therefore ORDERED that the decision of the Commissioner is
AFFIRMED.
So ORDERED and SIGNED this 17th day of January, 2023.

____________________________________
SEAN D. JORDAN
UNITED STATES DISTRICT JUDGE

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