Morgan v. Saul

Filing 16

MEMORANDUM AND RECOMMENDATIONS 13 Morgan's motion for summary judgment be GRANTED, and the Commissioner's 14 motion for summary judgment be DENIED. Objections to M&R due by 1/6/2022(Signed by Magistrate Judge Andrew M Edison). Parties notified.(rcastro, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DIEKTRICH MORGAN,
Plaintiff.
VS.
KILOLO KIJAKAZI, ACTING
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

December 23, 2021
Nathan Ochsner, Clerk

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§ CIVIL ACTION NO. 4:20-cv-02555
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MEMORANDUM AND RECOMMENDATION
Plaintiff Diektrich Morgan (“Morgan”) seeks judicial review of an
administrative decision denying his application for disability insurance benefits
under Title II of the Social Security Act (the “Act”). See Dkt. 1. Before me are
competing motions for summary judgment filed by Morgan and Defendant Kilolo
Kijakazi, the Acting Commissioner of the Social Security Administration (the
“Administration” or “Commissioner”).1 See Dkts. 13, 14. After reviewing the
briefing, the record, and the applicable law, I recommend that Morgan’s motion
for summary judgment be GRANTED, and the Commissioner’s motion for
summary judgment be DENIED.
BACKGROUND
Morgan filed an application for supplemental security income under Title II
of the Act on January 15, 2019, alleging disability beginning on December 31, 2015.
His application was denied and denied again upon reconsideration. Subsequently,
an Administrative Law Judge (“ALJ”) held a hearing and found that Morgan was

On July 9, 2021, Kilolo Kijakazi became the Acting Commissioner of the Social Security
Administration and is automatically substituted as a party under Federal Rule of Civil
Procedure 25(d).
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not disabled. Morgan filed an appeal with the Appeals Council. The Appeals
Council denied review, making the ALJ’s decision final and ripe for judicial review.
APPLICABLE LAW
The standard of judicial review for disability appeals is provided in 42 U.S.C.
§ 405(g). Courts reviewing the Commissioner’s denial of social security disability
applications limit their analysis to (1) whether the Commissioner applied the
proper legal standards, and (2) whether the Commissioner’s factual findings are
supported by substantial evidence. See Estate of Morris v. Shalala, 207 F.3d 744,
745 (5th Cir. 2000). Addressing the evidentiary standard, the Fifth Circuit has
explained:
Substantial evidence is that which is 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. It
is the role of the Commissioner, and not the courts, to resolve conflicts
in the evidence. As a result, [a] court cannot reweigh the evidence, but
may only scrutinize the record to determine whether it contains
substantial evidence to support the Commissioner’s decision. A
finding of no substantial evidence is warranted only where there is a
conspicuous absence of credible choices or no contrary medical
evidence.
Ramirez v. Colvin, 606 F. App’x 775, 777 (5th Cir. 2015) (cleaned up). Judicial
review is limited to the reasons relied on as stated in the ALJ’s decision, and post
hoc rationalizations are not to be considered. See SEC v. Chenery Corp., 332 U.S.
194, 196 (1947).
Under the Act, “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) (cleaned up). The ALJ uses a five-step approach to determine if a claimant
is disabled, including:
(1) whether the claimant is presently performing substantial gainful
activity; (2) whether the claimant has a severe impairment; (3)
whether the impairment meets or equals a listed impairment; (4)
whether the impairment prevents the claimant from doing past
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relevant work; and (5) whether the impairment prevents the claimant
from performing any other substantial gainful activity.
Salmond v. Berryhill, 892 F.3d 812, 817 (5th Cir. 2018) (quoting Kneeland v.
Berryhill, 850 F.3d 749, 753 (5th Cir. 2017)).
The burden of proof lies with the claimant during the first four steps before
shifting to the Commissioner at Step 5. See id. Between Steps 3 and 4, the ALJ
considers the claimant’s residual functional capacity (“RFC”), which serves as an
indicator of the claimant’s capabilities given the physical and mental limitations
detailed in the administrative record. See Kneeland, 850 F.3d at 754. The RFC also
helps the ALJ “determine whether the claimant is able to do her past work or other
available work.” Id.
THE ALJ’S DECISION
The ALJ found at Step 1 that Morgan had “not engaged in substantial gainful
activity since December 31, 2015,” the date of his application. Dkt. 10-3 at 13.
The ALJ found at Step 2 that Morgan suffered from “the following severe
impairments: degenerative disc disease of the lumbar spine with radiculopathy,
depression and anxiety.” Id.
At Step 3, the ALJ found that none of these impairments met any of the
Social Security Administration’s listed impairments.
Prior to consideration of Step 4, the ALJ determined Morgan’s RFC as
follows:
[Morgan] has the residual functional capacity to perform medium
work as defined in 20 CFR 404.1567(c) except the claimant can only
occasionally climb ladders, ropes, and scaffolds. The claimant can
frequently stoop and crouch. The claimant may need to alternate
standing and walking with sitting for 10 minutes in the morning and
10 minutes in the afternoon, in addition to the normal breaks. The
claimant may need to take pain, anti-inflammatory, and psychiatric
medications while at work. The claimant can frequently interact with
supervisors and coworkers. The claimant can remain on task at a
sustained rate of concentration, persistence and pace for at least 90%
of the workday.
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Id. at 16–17 (footnotes omitted).
At Step 4, the ALJ found that Morgan is capable of performing past relevant
work as a parking enforcement agent and a financial aid counselor. See id. at 20.
Thus, the ALJ concluded that Morgan is not disabled.
DISCUSSION
This appeal primarily concerns one issue: whether in crafting the RFC, the
ALJ improperly rejected the medical opinion of Morgan’s treating physician in
favor of his own lay medical opinion. In my view, the answer is yes, and this case
must be remanded.
The facts here are rather simple. Before the ALJ, Morgan presented medical
evidence substantiating his alleged severe mental and physical impairments. In
pertinent part, the ALJ determined that Morgan suffered from depression and
anxiety. In conjunction with his assertion of mental impairments, Morgan
submitted the treatment records of Dr. Juan C. Gonzalez, his treating physician at
the Veterans Administration (“VA”). In addition to his treatment notes, Dr.
Gonzalez submitted a completed questionnaire, specifically describing Morgan’s
diagnosis and the impact his mental impairments have on his ability to thrive in a
workplace. See Dkt. 10-12 at 84–88. The workplace limitations described by Dr.
Gonzalez go far beyond those stated in the ALJ’s RFC determination.
Instead of contending with Dr. Gonzalez’s described limitations, the ALJ
simply stated that he did not find Dr. Gonzalez’s opinion “persuasive as it is not
consistent with nor supported by the objective medical evidence as a whole,
including the generally benign mental status examinations.” Dkt. 10-3 at 20.
Notably, in making this determination, the ALJ did not rely upon any other
medical opinion. Indeed, the ALJ had already rejected the medical opinion of the
state agency psychological consultants—the only other medical providers offering
an opinion on Morgan’s prospective workplace limitations. See id. (“The
undersigned does not find the opinions of the state agency psychological
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consultants persuasive as they are not supported by the evidence, including the
testimony of the claimant, and inconsistent with the record.”). This means the ALJ
interpreted the raw medical evidence without the benefit of a medical expert.2
While it is true that an ALJ has the ultimate responsibility to determine an
applicant’s RFC, “an ALJ may not—without opinions from medical experts—derive
the applicant’s residual functional capacity based solely on the evidence of his or
her claimed medical conditions. Thus, an ALJ may not rely on his own
unsupported opinion as to the limitations presented by the applicant’s medical
conditions.” Williams v. Astrue, 355 F. App’x 828, 832 n.6 (5th Cir. 2009). When
this occurs, the “error is harmful and requires remand” because “the ALJ’s
determination is not based on substantial evidence.” McCool v. Saul, No. 3:19-CV00393, 2020 WL 4905501, at *4 (S.D. Tex. Aug. 20, 2020). That is what happened
here.
Consequently, this case should be remanded for further consideration.
CONCLUSION
For the reasons provided above, I recommend that Morgan’s motion for
summary judgment be GRANTED, and the Commissioner’s motion for summary
judgment be DENIED.
The Clerk shall provide copies of this Memorandum and Recommendation
to the respective parties who have fourteen days from receipt to file written
objections under 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

The Commissioner contends that the limitations Dr. Gonzalez describes in the
questionnaire are inconsistent with his treatment notes. Sometimes, this type of
argument has force. Here, however, Dr. Gonzalez expressly stated: “I consider my clinical
note findings to be consistent with the opinions stated in answer to these questions.” Dkt.
10-12 at 88. In the face of this clear statement, it is hard to understand on what basis the
ALJ disagrees. This is particularly so given the ALJ’s failure to rely upon a competing
medical opinion.
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aggrieved party from attacking the factual findings and legal conclusions on
appeal.
SIGNED this __ day of December 2021.
______________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE

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