Smith v. Saul

Filing 19

MEMORANDUM AND OPINION denying 16 MOTION for Summary Judgment and granting 17 MOTION for Summary Judgment (Signed by Magistrate Judge Andrew M Edison). Parties notified.(rcastro, 4)

Case 4:21-cv-00580 Document 19 Filed on 05/06/22 in TXSD Page 1 of 9
United States District Court
Southern District of Texas

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

May 06, 2022
Nathan Ochsner, Clerk

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§ CIVIL ACTION NO. 4:21-cv-00580
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MEMORANDUM AND OPINION
Plaintiff Lacey G. Smith (“Smith”) seeks judicial review of an administrative
decision denying her 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 Smith and Defendant Kilolo Kijakazi, the Acting
Commissioner of the Social Security Administration (the “Administration” or
“Commissioner”). 1 See Dkts. 16 and 17. After reviewing the briefing, the record,
and the applicable law, Smith’s motion for summary judgment is DENIED, and
the Commissioner’s motion for summary judgment is GRANTED.
BACKGROUND
Smith filed an application for supplemental security income under Title II
of the Act in July 2017, alleging disability beginning on May 12, 2011. Her
application was denied and denied again upon reconsideration. Subsequently, an
Administrative Law Judge (“ALJ”) held a hearing and found that Smith was not
disabled. Smith filed an appeal with the Appeals Council. The Appeals Council
issued an order remanding the case back to the ALJ for further consideration. The
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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ALJ held another hearing and again found that Smith was not disabled. Smith filed
another 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)
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whether the impairment prevents the claimant from doing past
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 Smith “did not engage in substantial gainful
activity during the period from the alleged onset date of May 12, 2011, through the
date last insured of September 30, 2015.” Dkt. 13-3 at 18.
The ALJ found at Step 2 that Smith suffered from “the following severe
impairments:

morbid

obesity,

disorders

of

the

spine,

and

sarcoidosis/asthma/chronic obstructive pulmonary disease (COPD).” Id. at 19.
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 Smith’s RFC as follows:
[T]he the claimant had the residual functional capacity to perform
sedentary work as defined in 20 CFR 404.1567(a) except he was
limited to never climbing ropes, ladders or scaffolds; occasionally
climbing ramps and stairs; occasionally balancing, stooping, kneeling,
crouching, and crawling; frequently (but not constantly) reaching in
all directions, handling, fingering, and feeling bilaterally; never
working around hazards such as moving machinery, open flames,
unprotected heights, and open bodies of water; and, avoiding
concentrated exposure to vibrations, cold, heat, humidity, wetness,
fumes, odors, dusts, gases, chemicals or poor ventilation.
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Id. at 21.
At Step 4, the ALJ found that Smith “was unable to perform any past relevant
work.” Id. at 26. And, at Step 5, the ALJ concluded that jobs existed in significant
numbers in the national economy that Smith could have performed, including
“occupations such as an order clerk (DOT 209.567-014) with approximately
90,000 jobs in the national economy; an optical goods worker (DOT 713.684-038)
with approximately 40,000 jobs in the national economy; and, a final assembler
(DOT 713.687-018 with approximately 55,000 jobs in the national economy.” Id.
at 27 (emphasis omitted).
DISCUSSION
This social security appeal raises two issues: (1) whether the ALJ improperly
evaluated certain medical source opinions in assessing Smith’s RFC; and (2)
whether substantial evidence supports the ALJ’s Step 5 determination. I address
each issue in turn.
A.

THE ALJ’S RFC ASSESSMENT
Smith makes two arguments concerning the ALJ’s RFC determination.
First, she takes issue with the ALJ’s determination that she must “avoid[]

concentrated exposure to vibrations, cold, heat, humidity, wetness, fumes, odors,
dusts, gases, chemicals or poor ventilation.” Id. at 21 (emphasis added). Smith
contends this determination was error because the record shows she can have no
more than moderate exposure to such irritants. See Dkt. 16 at 6–8. Even if I credit
this argument as demonstrating error, I must still ultimately evaluate whether the
error was prejudicial. See Jones v. Astrue, 691 F.3d 730, 734 (5th Cir. 2012) (“Even
if we did find that the ALJ was required to request further documentation, we
would affirm, because Jones has not met her burden of showing that any error was
prejudicial.”). In the Fifth Circuit, “harmless error exists when it is inconceivable
that a different administrative conclusion would have been reached absent the
error.” Jones v. Saul, No. 3:19-CV-0880-BH, 2020 WL 5752390, at *18 (N.D. Tex.
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Aug. 24, 2020). The error here is harmless because none of the jobs identified at
Step 5 include any exposure to irritants. See U.S. Dep’t of Labor, Dictionary of
Occupational Titles (DOT) 209.567-014, 1991 WL 671794 (order clerk); 713.684038, 1991 WL 679267 (optical goods worker); 713.687-018, 1991 WL 679271 (final
assembler). Thus, even if the error occurred, it was not prejudicial.
Next, Smith argues that the ALJ erred when he determined that the medical
opinions offered by State agency physicians Dr. Betty Santiago and Dr. Kim
Rowlands and her treating physician Dr. Thomas Masciangleo were less than
persuasive. I am not swayed by Smith’s arguments.
Dr. Santiago and Dr. Rowlands both found that Smith retained the ability to
perform medium work. The ALJ disagreed, explaining their “opinions are less than
persuasive as a preponderance of the medical evidence shows that [Smith] is more
limited than determined by the State agency.” Dkt. 13-3 at 25. Smith does not seek
to challenge the ALJ’s determination that she is more limited than found by the
doctors—i.e., she does not claim that the ALJ erred by rejecting Dr. Santiago’s and
Dr. Rowlands’s determination that she can perform medium work. Instead, Smith
points to the doctors’ determination that she should avoid even moderate exposure
to environmental irritants. See Dkt. 16 at 13. Essentially, Smith claims that the ALJ
erred by rejecting this portion of Dr. Santiago’s and Dr. Rowlands’s medical
opinions because it would support her argument that the ALJ erroneously
determined that she should avoid concentrated exposure to environmental
irritants. The problem with this argument is twofold. First, the ALJ has considered
an array of evidence and explained his reasoning for accepting and rejecting
certain evidence. Smith’s argument amounts to a request for me reweigh the
evidence. This I cannot do. See Kimbrow v. Comm’r of Soc. Sec., No. 4:20-CV01137-O-BP, 2022 WL 606738, at *5 (N.D. Tex. Feb. 3, 2022) (“The Court will not
reweigh the evidence or substitute its judgment for the ALJ’s. Just as the ALJ as
factfinder has the sole responsibility for weighing the evidence, he also has the sole
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responsibility for determining a claimant’s disability status.” (cleaned up)). Next,
Smith cannot show that the ALJ’s purported error in assessing Dr. Santiago’s and
Dr. Rowlands’s medical opinions was prejudicial. As I explained above, none of the
jobs identified at Step 5 include any exposure to irritants, meaning even if an error
occurred, it was not prejudicial.
Smith’s argument concerning Dr. Masciangleo fairs no better. Dr.
Masciangleo submitted a medical opinion describing a great number of limitations
exceeding those found by the ALJ. After describing the details of that medical
opinion, the ALJ explained:
Not only is this opinion provided and dated after September 30, 2015,
the date last insured, this opinion is not consistent with the medical
evidence as it is internally inconsistent with the treating physician’s
own physical examinations noted as within normal limits and is
without supporting clinical and laboratory findings to substantiate
such severe limitations during the period at issue thus rendering this
opinion as less than persuasive because a physical examination
performed on August 29, 2014, at Memorial Hermann Hospital is also
described as within normal limits finding the claimant to have a
normal inspection of the back, normal range of motion of all
extremities without edema, normal neurological with intact
orientation and negative deficits, and no respiratory distress.
Dkt. 13-3 at 25. Smith attacks the ALJ’s treatment of Dr. Masciangleo’s medical
opinion on two fronts. She first claims that the ALJ erred by failing to consider the
opinion based on the date it was signed. See Dkt. 16 at 12. This argument misses
the mark because the ALJ clearly explained that the opinion was less than
persuasive based on the date and medical records from the relevant time period.
Dkt. 13-3 at 25. Perhaps recognizing the weakness in the first argument, Smith
then attempts to rely on the medical records referenced by the ALJ to argue that
the ALJ should have evaluated the waxing and waning nature of her illness. See
Dkt. 16 at 12–13. This argument also misses the mark. As I’ve previously explained:
[T]he Fifth Circuit has made it clear that an ALJ is not required to
make a specific finding regarding the claimant’s ability to maintain
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employment in every case. The claimant must demonstrate, rather
than just assert, that her impairment waxes and wanes. Without
substantial evidence showing that her impairments limit her work to
short intervals, or that her impairments wax and wane in a way that
completely prevents employment, the ALJ’s determination that [a
claimant] is able to maintain employment is subsumed in the RFC
definition.
Flynn v. Saul, No. 4:19-CV-03523, 2020 WL 4818863, at *6 (S.D. Tex. Aug. 19,
2020) (citations omitted). Smith has not carried this burden.
B.

THE ALJ’S STEP 5 DETERMINATION
To determine whether a claimant is disabled, the ALJ generally asks a

vocational expert (“VE”) whether a hypothetical person with the claimant’s RFC
can perform jobs that are available in the national economy. In this appeal, Smith
argues that the hypothetical question the ALJ posed to the VE was flawed because
it was too vague; and, thus, the ALJ’s Step 5 determination is not supported by
substantial evidence. I disagree.
A defective hypothetical is reversible error. See Boyd v. Apfel, 239 F.3d 698,
708 (5th Cir. 2001); Orosco v. Comm’r of Soc. Sec. Admin., 171 F. Supp. 3d 539,
544 (E.D. Tex. 2016). A hypothetical question posed to a VE is not defective if (1)
the hypothetical question reasonably incorporates all disabilities of the claimant
recognized by the ALJ, and (2) “the claimant or his representative is afforded the
opportunity to correct deficiencies in the ALJ’s question by mentioning or
suggesting to the vocational expert any purported defects in the hypothetical
questions (including additional disabilities not recognized by the ALJ’s findings
and disabilities recognized but omitted from the question).” Bowling v. Shalala,
36 F.3d 431, 436 (5th Cir. 1994).
I begin with the ALJ’s hypothetical question. The ALJ asked the VE:
Assume an individual the same age, education and vocational
background as the claimant, who could do all the physical and mental
demands of work as defined by the regulations. Would be limited to
sedentary work.
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Stand and walk two, sit six. Ten, and 10 frequently. No ladders,
ropes or scaffolds. All others occasionally. Manipulative frequently
bilaterally. No moving machinery or open flames or unprotected
heights or open bodies of water.
Avoid concentrated exposure to vibrations cold, heat, humidity,
wetness as those can affect his breathing. Fumes, odors, dust, gas,
chemicals and poor ventilation. We have no transferable skills. It’s not
an issue since he’s only 43. So, give me jobs that would be unskilled.
Dkt. 13-3 at 68–69 (emphasis added).
Smith first contends that the statement “no ladders, ropes, or scaffolds. All
others occasionally” is ambiguous. Specifically, Smith argues that “[i]t is unclear
what specific actions the ALJ is referring to when he refers to ‘all others’ being
occasionally.” Dkt. 16 at 15. I am not persuaded by this argument. Other than
Smith’s speculation, there is no indication that the VE was in any manner confused
by the hypothetical question. See Kendall A. v. Saul, No. 1:18-CV-0031-BP, 2019
WL 4602967, at *8 (N.D. Tex. Sept. 4, 2019) (finding that a hypothetical question
was not “too vague” and, therefore, did not impact the VE’s assessment of
employability because there was no “indication that the VE was in any manner
confused” by the question (quotation omitted)). That is, the ALJ’s inclusion of the
phrase “[a]ll others occasionally” does not make the hypothetical question so vague
as to impact the VE’s assessment of employability absent some indication that the
VE was, himself, confused. See id. Finally, and perhaps most importantly, Smith’s
counsel was afforded the opportunity to clarify and correct any deficiencies, having
crossed the VE and asked his own hypotheticals. See Bowling, 36 F.3d at 436.
Next, Smith avers that the hypothetical question limited the VE’s response
to positions where the individual could “[m]anipulative frequently bilaterally,”
Dkt. 13-3 at 68, while the RFC found that Smith was limited to “frequently (but not
constantly) reaching in all directions, handling, fingering, and feeling bilaterally.”
Id. at 21. Smith claims that without additional context, the phrase “[m]anipulative
frequently bilaterally” is “too vague to allow for any meaningful judicial review.”
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Dkt. 16 at 15. Again, I disagree. There is no indication that the VE was confused by
the hypothetical, and Smith’s counsel had the opportunity to pose his own
hypotheticals.
In sum, 2 Smith’s arguments fail because the ALJ’s statement was not
materially vague or misleading, and Smith was nevertheless allowed to clarify any
ambiguities at the time of the testimony. See Zechenelly v. Colvin, No. CIV.A. 13403, 2014 WL 644007, at *2 (E.D. La. Feb. 19, 2014) (“Here, the ALJ’s question
reasonably incorporated [Plaintiff’s] impairments and [Plaintiff] was afforded the
opportunity to clarify and correct deficiencies, having crossed the VE and asked
her own hypothetical. In other words, [Plaintiff’s] argument fails because the ALJ’s
statement was not materially vague or misleading and she was nevertheless
allowed to clarify any ambiguities at the time of the testimony.”).
CONCLUSION
For the reasons provided above, Smith’s motion for summary judgment
(Dkt. 16) is DENIED, and the Commissioner’s motion for summary judgment
(Dkt. 17) is GRANTED.
SIGNED this __ day of May 2022.
______________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE

Smith also seems to rehash the argument concerning environmental irritants. See Dkt.
16 at 15–16. For the reasons discussed in Section A, this argument fails.

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