Hribar v. Commissioner of Social Security

Filing 14

MEMORANDUM AND ORDER Granting in part 12 MOTION for Summary Judgment Denying in part 13 Defendant's Motion for Summary Judgment(Signed by Magistrate Judge Dena Hanovice Palermo) Parties notified.(cfelchak, 4)

Case 4:21-cv-04253 Document 14 Filed on 03/16/23 in TXSD Page 1 of 22
United States District Court
Southern District of Texas

ENTERED

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
THOMAS H.,

1

Plaintiff,
v.
KILOLO KIJAKAZI,
Acting Commissioner of Social
Security,
Defendant.

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March 16, 2023
Nathan Ochsner, Clerk

Case No. 4:21-cv-04253

MEMORANDUM AND ORDER
Plaintiff Thomas H. (“Plaintiff”) filed this suit seeking judicial review of an
administrative decision. Pl.’s Compl., ECF No. 1. Jurisdiction is predicated upon
42 U.S.C. § 405(g). Plaintiff appeals from the decision of the Commissioner of the
Social Security Administration (“Commissioner” or “Defendant”) denying
Plaintiff’s claim for disability insurance benefits under Title II of the Social Security
Act (“the Act”). 2 The Parties filed cross-motions for summary judgment. Pl.’s MSJ,

1

Pursuant to the May 1, 2018 “Memorandum Re: Privacy Concern Regarding Social Security and
Immigration Opinions” issued by the Committee on Court Administration and Case Management
of the Judicial Conference of the United States, the Court uses only Plaintiff’s first name and last
initial.
2

On June 6, 2022, based on the parties’ consent, the case was transferred to this Court to conduct
all proceedings pursuant to 28 U.S.C. § 636(c). Consent & Transfer Order, ECF No. 10.
1

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ECF No. 12; Pl.’s MSJ Br., ECF No. 12-1; Def.’s MSJ, ECF No. 13. Plaintiff
challenges the Administrative Law Judge’s (“ALJ”) determination, arguing that the
ALJ’s finding that Plaintiff is not disabled is not supported by substantial evidence
and is the result of legal errors. ECF No. 12-1. Defendant counters, asserting that the
ALJ carefully reviewed the record, delineated his findings with attention to the full
record, and pointed to substantial evidentiary support for his findings. ECF No. 13.
Based on the briefing, the law, and the record, the Court determines that the ALJ’s
opinion is largely supported by substantial evidence and most of Plaintiff’s
arguments are without merit. However, the ALJ failed to consider whether Plaintiff’s
service animals are medically necessary, and if so, what impact a service animal
would have on Plaintiff’s ability to perform jobs in the market. Therefore, Plaintiff’s
motion for summary judgment should be granted in part and denied in part and
Defendant’s motion for summary judgment should be granted in part and denied in
part.
I.

BACKGROUND
Plaintiff is 46 years old, R. 295, 3 and has a high school education. R. 26.

Plaintiff worked as mechanical designer and aviation mechanic. R. 35. Plaintiff
alleges a disability onset date of January 1, 2018. R. 24. Plaintiff claims he suffers
physical and mental impairments. Id.
3

“R.” citations refer to the electronically filed Administrative Record, ECF No. 14.
2

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On February 4, 2020, Plaintiff filed an application for disability benefits under
Title II of the Act. R. 231–37. Plaintiff based 4 his application on limitations
stemming from major depressive disorder, general anxiety disorder, L4-5 herniated
discs with left paracentral extusion, left femoral nerve rad moderate incomplete
paralysis, right sciatic nerve rad mild incomplete paralysis, and degenerative disc
disease. R. 266. The Commissioner denied his claim initially, R. 126-29, and on
reconsideration, R. 134-36.
A hearing was held before an ALJ. An attorney represented Plaintiff at the
hearing. R. 42. Plaintiff and a vocational expert (“VE”) testified at the hearing. R. 43.
The ALJ issued a decision denying Plaintiff’s request for benefits. 5 R. 19–41. The

4

The relevant time period is January 1, 2018—Plaintiff’s alleged onset date—through January 18,
2021—the date of the ALJ’s decision. R. 24, 37. The Court will consider medical evidence outside
this period to the extent it demonstrates whether Plaintiff was under a disability during the relevant
time frame. See Williams v. Colvin, 575 F. App’x 350, 354 (5th Cir. 2014); Loza v. Apfel, 219 F.3d
378, 396 (5th Cir. 2000).
5

An ALJ must follow five steps in determining whether a claimant is disabled. 20 C.F.R.
§ 416.920(a)(4). The ALJ here determined Plaintiff was not disabled at step five. R. 20. At step
one, the ALJ found that Plaintiff did not engage in substantial gainful activity since the alleged
onset date. R. 12 (citing 20 C.F.R. §§ 404.1571 et seq.). At step two, the ALJ found that Plaintiff
has the following severe impairments: disorders of the back, intermittent explosive disorder,
personality disorder, status-post carpal tunnel release, obesity, affective mood disorder, and
generalized anxiety disorder. R. 24 (citing 20 C.F.R. § 404.1520(c)). At step three, the ALJ
determined that Plaintiff did not have an impairment or combination of impairments that met or
medically equaled the severity of one of the listed impairments in the regulations that would lead
to a disability finding. R. 25 (referencing 20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526). The
ALJ found that Plaintiff has the RFC to perform light work as defined in 20 CFR § 404.1567(b).
R. 28. However, the ALJ added limitations, including that standing and/or walking is limited to
four hours out of an eight-hour workday, no more than 30 minutes at a time. After 30 minutes of
standing and/or walking, the claimant should be allowed to sit at the workstation for three to four
minutes while continuing to work before he could return to standing or walking. He should never
be required to climb ropes, ladders or scaffolds or crawl. He can only occasionally balance, stoop,
3

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Appeals Council denied Plaintiff’s request for review, thus upholding the ALJ’s
decision to deny disability benefits. R. 1-3. Plaintiff filed suit, appealing the
determination. ECF No. 1.
II. STANDARD OF REVIEW OF THE COMMISSIONER’S DECISION.
The Social Security Act provides for district court review of any final decision
of the Commissioner that was made after a hearing in which the claimant was a
party. 42 U.S.C. § 405(g). In performing that review:
The court shall have power to enter, upon the pleadings and transcript
of the record, a judgment affirming, modifying, or reversing the
decision of the Commissioner . . ., with or without remanding the cause
for a rehearing. The findings of the Commissioner . . . as to any fact, if
supported by substantial evidence, shall be conclusive[.]
Id.
Judicial review of the Commissioner’s decision denying benefits is limited to
determining whether that decision is supported by substantial evidence on the record
as a whole and whether the proper legal standards were applied. Id.; see also Boyd
kneel and crouch. Although he is status-post bilateral carpal tunnel release, due to mild residual
pain in his hands, he can frequently but not constantly fine finger and gross handle. Further, the
claimant should never be required to work in proximity to hazards. To minimize stress, the
claimant should never be required to work at a forced pace. Due to his social limitations, the
claimant should be limited to no more than only occasional interactions with the public, coworkers,
and supervisors, and should have no more than one or two supervisors. Due to the claimant’s
limitations in adapting to change and handling stress, he should never be subjected to more than
only occasional changes in the work setting and should never be required to make plans or set
goals independently of others. R. 28. At step four, the ALJ determined that Plaintiff was not able
to perform past relevant work as a mechanical designer or aviation mechanic. R. 35 (citing 20
C.F.R. § 404.1565). However, the ALJ determined that the Plaintiff can make a successful
adjustment to other work that exists in significant numbers in the national economy. R. 36-37.
Therefore, the ALJ concluded that Plaintiff was not disabled. R. 37.
4

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v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001); Loza, 219 F.3d 393. “Substantial
evidence” means “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019)
(quotations omitted). It is “more than a scintilla but less than a preponderance.”
Carey v. Apfel, 230 F.3d 131, 135 (5th Cir. 2000). The “threshold for such
evidentiary sufficiency is not high.” Biestek, 139 S. Ct. at 1154.
The Court weighs four factors to determine “whether there is substantial
evidence of disability: (1) objective medical facts; (2) diagnoses and opinions of
treating and examining physicians; (3) subjective evidence of pain and disability;
and (4) the claimant’s age, education, and work history.” Conley-Clinton v. Saul,
787 F. App’x 214, 216 (5th Cir. 2019) (citing Martinez v. Chater, 64 F.3d 172, 174
(5th Cir. 1995)).
A reviewing court may not reweigh the evidence in the record, try the issues de
novo, or substitute its judgment for that of the Commissioner, even if the evidence
preponderates against the Commissioner’s decision. Brown v. Apfel, 192 F.3d 492,
496 (5th Cir. 1999). Even so, judicial review must not be “so obsequious as to be
meaningless.” Id. (quotations omitted). The “substantial evidence” standard is not a
rubber stamp for the Commissioner’s decision and involves more than a search for
evidence supporting the Commissioner’s findings. Singletary v. Brown, 798 F.2d
818, 822–23 (5th Cir. 1986); Cook v. Heckler, 750 F.2d 391, 393 (5th Cir. 1985).
5

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Rather, a reviewing court must scrutinize the record as a whole, considering
whatever fairly detracts from the substantiality of evidence supporting the
Commissioner’s findings. Singletary, 798 F.2d at 823. “Only where there is a
‘conspicuous absence of credible choices or no contrary medical evidence’ will we
find that the substantial evidence standard has not been met.” Qualls v. Astrue, 339
F. App’x 461, 464 (5th Cir. 2009).
III.

THE SHIFTING BURDEN OF PROOF IN A DISABIILITY CASE.
An individual claiming entitlement to benefits under the Act has the burden

of proving his disability. Johnson v. Bowen, 864 F.2d 340, 344 (5th Cir. 1988). The
Act defines disability as the “inability to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can
be expected to result in death, or which has lasted or can be expected to last for a
continuous period of not less than twelve months.” 42 U.S.C. § 423(d) (1)(A) (2000).
The impairment must be proven through medically accepted clinical and laboratory
diagnostic techniques. 42 U.S.C. § 423(d)(3) (2000). The impairment must be so
severe that the claimant is “incapable of engaging in any substantial gainful
activity.” Foster v. Astrue, No. H-08-2843, 2011 WL 5509475, at *6 (S.D. Tex. Nov.
10, 2011) (citing Anthony v. Sullivan, 954 F.2d 289, 293 (5th Cir. 1992)).
The Commissioner applies a five-step sequential process to determine
disability status. Id. The claimant bears the burden of proof at the first four steps to
6

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establish that a disability exists. Farr v. Astrue, No. G-10-205, 2012 WL 6020061,
at *2 (S.D. Tex. Nov. 30, 2012). The burden shifts to the Commissioner at step five
to show that the claimant can perform other work. Id. The burden then shifts back to
the claimant to rebut this finding. Id. If at any step in the process the Commissioner
determines that the claimant is or is not disabled, the evaluation ends. Id.
IV. PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT BECAUSE
THE ALJ FAILED TO CONSIDER WHETHER A SERVICE AMINAL
WAS MEDICALLY NECESSARY.
In challenging the ALJ’s finding that he is not disabled, Plaintiff raises four
issues: (1) the ALJ erred in failing to properly consider Dr. Nemirovskiy’s March
26, 2021 letters; (2) the ALJ improperly failed to incorporate Plaintiff’s need for a
service animal in his RFC; (3) the ALJ failed to properly apply the consistency factor
in evaluating Dr. Fox’s opinion; and (4) and the ALJ improperly substituted his lay
opinion for the medical opinion of experts. Defendant responds that the ALJ did not
commit error and his determination was based on substantial evidence. The Court
addresses each of these arguments in turn.
A. The ALJ’s RFC analysis.
Before reaching step four of the evaluation process, the ALJ must determine
a claimant’s RFC. 20 C.F.R. § 404.1520(a)(4). The RFC is a “determination of the
most the claimant can still do despite his physical and mental limitations and is based
on all relevant evidence in the claimant’s record.” Perez v. Barnhart, 415 F.3d 457,
7

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462 (5th Cir. 2005) (citing 20 C.F.R. § 404.1545(a)(1)); accord Winston v. Berryhill,
755 F. App’x 395, 399 (5th Cir. 2018). This evidence includes, but is not limited to,
“medical history, medical signs, and laboratory findings; the effects of treatment;
and reports of daily activities, lay evidence, recorded observations, medical source
statements, and work evaluations.” Roe v. Astrue, No. 11-CV-226, 2013 WL
490676, at *4 (N.D. Tex. Feb. 8, 2013); see Hollis v. Bowen, 837 F.2d 1378, 138687 (5th Cir. 1988) (“A person’s [RFC] is determined by combining a medical
assessment of an applicant’s impairments with descriptions by physicians, the
applicant, or others of any limitations on the applicant’s ability to work.”).
The RFC determination is the sole responsibility of the ALJ. Taylor v. Astrue,
706 F.3d 600, 602–603 (5th Cir. 2012) (citing Ripley v. Chater, 67 F.3d 552, 557
(5th Cir. 1995)). When making the RFC determination, the ALJ must consider all
medical opinions contained in the record. Winston, 755 F. App’x 399; 42 U.S.C.
§ 405(b)(1). The ALJ must “incorporate limitations into the RFC assessment that
were most supported by the record.” Conner v. Saul, No. 4:18-CV-657, 2020
WL4734995, at *8 (S.D. Tex. Aug 15, 2020) (citing Muse v. Sullivan, 925 F.2d 785,
790 (5th Cir. 1991)). The revised Social Security guidelines6 require consideration
of several factors, the most important of which are consistency and supportability.

6

Because Plaintiff filed his claim on February 4, 2020, the ALJ was required to follow the revised
guidelines in conducting Plaintiff’s RFC assessment. 20 C.F.R. § 404.1520c(a); Winston, 755 F.
App’x at 402, n. 4.
8

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20 C.F.R. § 404.1520c(b). 7 Under these guidelines, the ALJ must articulate how
persuasive he finds each of the opinions in the record. 20 C.F.R. § 404.1520c(b).8
As an administrative factfinder, the ALJ is entitled to significant deference in
deciding the appropriate weight to accord the various pieces of evidence in the
record, including the credibility of medical experts and the weight to be accorded
their opinions. See Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985). However, the
“ALJ must consider all the record evidence and cannot ‘pick and choose’ only the
evidence that supports his position.” Switzer v. Heckler, 742 F.2d 382, 385–86 (7th
Cir. 1984). The ALJ must address and make specific findings regarding the
supporting and conflicting evidence, the weight to give that evidence, and reasons
for his or her conclusions regarding the evidence. Armstrong v. Sullivan, 814 F.
Supp. 1364, 1373 (W.D. Tex. 1993).
B. Failure To Address Psychiatrist’s First Letter Was Not Error.
The record contains two letters from Dr. Nemirovskiy, Plaintiff’s treating

7

These factors include supportability, consistency, the physician’s relationships with Plaintiff, the
physician’s specialization, evidence showing the medical source is familiar with the other evidence
in the claim, or that the medical source understands the disability program’s policies and
evidentiary policies. Id.
8

The revised guidelines have eliminated the former requirement that the ALJ give deference to
the opinions of treating physicians. Garcia v. Saul, No. SA-19-CV-01307-ESC, 2020 WL
7417380, at *4 (W.D. Tex. Dec. 18, 2020) (explaining that despite the revised regulations, previous
decisions are still relevant as supportability and consistency have always been the most important
considerations.).
9

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psychiatrist, dated March 26, 2021. R. 86 9 & 87.10 Plaintiff argues that the ALJ erred
in rejecting these letters without explanation. ECF No. 12-1 at 11-12. Defendant
responds that Dr. Nemirovskiy’s letters were properly excluded because they were
conclusory and inconsistent with other mental examinations included in the record.11
ECF No. 13 at 7-8.
Plaintiff is correct that the ALJ did not discuss Dr. Nemirovskiy’s letters in
9

The first letter states the following:
This letter is in reference to Mr. Thomas Hribar and his disability claim. I am a VA
psychiatrist and Mr. Hribar is currently under my care for treatment of Major
Depressive Disorder (MDD) and Generalized Anxiety Disorder (GAD). He has
been diagnosed and treated for MDD and GAD by multiple other MH providers at
the Conroe VA since 2017. These mental health conditions are chronic and not
curable. In October 2018, he required psychiatric hospitalization for stabilization
of his mental health condition. He currently requires psychiatric treatment
including both psychotherapy and medication management to alleviate his
symptoms. Despite receiving treatment, he continues to experience persistent and
significant mood and anxiety symptoms.
As his psychiatrist, it is of my opinion that Mr. Hribar is not capable of working
any type of job due to his MH disability. He also suffers from severe chronic low
back pain and is receiving treatment for this as well. Due to his physical condition
and pain, his mood and anxiety symptoms have worsened.

10

The second letter states the following:
The US Veteran, Mr. Thomas Hribar, is my patient and has been under my care at
the VA. I am familiar with his history and functional limitations imposed by his
disability. He meets the definition of disability under the Americans with
Disabilities Act, the Fair Housing Act, and the Rehabilitation act of 1973.
Due to his medical condition, Mr. Hribar has certain limitations coping with
stress/anxiety and social interaction. In order to help alleviate these difficulties, and
to enhance his ability to live independently, I am prescribing a service animal that
will assist Mr. Hribar in coping with his disability.

11

Defendant also defends the ALJ’s rejection of a blank form that appears to have been sent to
Dr. Nemirovskiy, but not filled out. R. 936. Because Plaintiff does not argue that the ALJ erred in
rejecting the blank form, any error is waived. Boggs v. Krum Indep. Sch. Dist., 376 F. Supp. 3d
714, 722 (E.D. Tex. 2019) (“A party waives an issue if he fails to adequately brief it.”) (quotations
omitted).
10

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his decision. However, the ALJ is under no obligation to discuss every piece of
evidence that he reviewed and considered in his written opinion. Audler v. Astrue,
501 F.3d 446, 448 (5th Cir. 2007) (finding that the ALJ is not required “to do an
exhaustive point-by-point discussion” to justify his findings); Walker v. Bowen, 834
F.2d 635, 643 (7th Cir. 1987) (“We do not require the ALJ to discuss every piece of
evidence, but only to articulate his rationale sufficiently to allow meaningful
review.”). Further, “[t]he ALJ’s failure to mention a particular piece of evidence
does not necessarily mean that he failed to consider it.” Hammond v. Barnhart, 124
Fed. Appx. 847, 851 (5th Cir. 2005). Here, the ALJ acknowledged that he reviewed
all the evidence. R. 23.
In fact, the only evidence ALJs must consider and weigh when making their
decisions are medical opinions. See Kneeland v. Berryhill, 850 F.3d 749, 759 (5th
Cir. 2017). “A medical opinion is a statement from a medical source about what you
can still do despite your impairment(s) and whether you have one or more
impairment-related limitations or restrictions.” 20 C.F.R. § 404.1513(a)(2). Because
Dr. Nemirovskiy’s first letter was not a medical opinion, the ALJ did not commit
error in rejecting it without explanation. See Carter v. Berryhill, No. W-16-CA00282-JCM, 2017 WL 2859745, at *5 (W.D. Tex. July 5, 2017) (finding that
because statement from physician was “not a medical opinion and thus the ALJ had
no duty to discuss it nor explicitly weigh it.”). The second letter will be addressed in
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the next section discussing the ALJ’s failure to consider Plaintiff’s need for a service
animal.
The first letter from Dr. Nemirovskiy contained Plaintiff’s diagnosed mental
health conditions and stated that, “[a]s his psychiatrist, it is of my opinion that
[Plaintiff] is not capable of working any type of job due to his MH disability.” R. 86.
“[A] determination by a treating physician that an applicant is ‘disabled’ or ‘unable
to work’ is not a medical opinion entitled to deference, but rather a legal conclusion
‘reserved to the Commissioner.’” Tucker v. Astrue, 337 Fed. Appx. 392, 396–97 (5th
Cir. 2009) (citing Frank, 326 F.3d 618, 620 (5th Cir. 2003)). By regulation, opinions
on an applicant’s ability to work are not “medical opinions,” for purposes of
§ 404.1527 and “are not entitled to any special significance or treatment under the
regulations.” Tucker, 337 F. App’x at 396–97. Consequently, an ALJ is not required
to discuss such an opinion. Orange v. Colvin, No. CV 15-246-JJB-RLB, 2016 WL
4034798, at *4 (M.D. La. June 14, 2016), report and recommendation adopted, No.
CV 15-246-JJB-RLB, 2016 WL 4035330 (M.D. La. July 25, 2016) (finding that the
“ALJ was not required to discuss Dr. Broussard’s opinion as to the ultimate issue of
disability — a decision reserved for the Commissioner”); Beard v. Commissioner of
Social Security, No. 8:17-CV-2940-T-PDB, 2019 WL 1417466, at *3 (M.D. Fla.
Mar. 29, 2019) (finding that the ALJ did not need to weigh physician’s statement
because “statement on a matter reserved to the Commissioner and therefore was not
12

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a medical opinion”). Therefore, because Dr. Nemirovskiy’s letter consisted of an
opinion on an issue ultimately reserved for the ALJ, the ALJ was not required to
address it.
C. The ALJ Erred Because He Failed To Consider Plaintiff’s Need
For A Service Animal.
Plaintiff also complains that the ALJ erred in not considering the medical
necessity and vocational impact of his service animal. ECF No. 12-1 at 10-11.
Defendant responds that the ALJ did not err because there was no prescription for a
service animal in the record. ECF No. 13 at 8. The Court agrees with Plaintiff and
remands his case for the ALJ to determine Plaintiff’s need for a service animal.
“‘[T]he use of a service dog must be medically necessary to be considered in
an RFC assessment.’” Duenes v. Kijakazi, 578 F. Supp. 3d 859, 869 (S.D. Tex.
2022). 12 In Duenes, the court ordered remand because despite testimony regarding
the service animal and a prescription for the service animal in the record, “the ALJ

12

(quoting McGehee v. Berryhill, 386 F.Supp. 3d 80, 87 (D. Mass. July 2, 2019) (citing Santos v.
Colvin, No. 3:12-cv-5827-KLS, 2013 WL 5176846, at *2, *6 (W.D. Wash. Sept. 12, 2013)
(finding a reversible error where the ALJ did not consider the vocational impact of plaintiff's use
of a service animal when “at least some evidence in the record” showed that “plaintiff's use of a
service animal when “at least some evidence in the record” showed that “plaintiff's use of a service
dog [was] medically necessary”); Rentfro v. Colvin, No. 14-cv-3015, 2015 WL 12868081, *13
(C.D. Ill. Oct. 21, 2015) (finding that the ALJ's failure to adequately address evidence of plaintiff's
prescription from doctor for service dog [was] material and noting that it was unclear “that a person
could perform a cleaning job if her RFC required her to take a service dog with her to the job
site.”); [but see] Payano v. Colvin, No. 2:15-cv-294-RFB-GWF, 2017 WL 4778593, at *4 (D. Nev.
Oct. 23, 2017) (finding a letter from a psychiatrist recommending a service dog alone does not
support an assessment that a dog is necessary for plaintiff to work and therefore it was a harmless
error for the ALJ to omit the need for a service dog in the hypothetical question to the VE where
the evidence failed to support that a service dog was necessary for plaintiff to work.)).
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made no determination about whether [a service animal] was medically necessary.”
578 F. Supp. 3d 869.
Defendant argues that Duenes is distinguishable because there is no “actual
prescription” in the record and no “mention of an emotional support animal in any
medical treatment record.” ECF No. 13 at 8. However, courts have reversed in
circumstances where “at least some evidence in the record” showed that “plaintiff’s
use of a service dog [was] medically necessary.” Santos, 2013 WL 5176846, at *2,
*6 (finding a reversible error where the ALJ did not consider the vocational impact
of plaintiff’s use of a service animal).
Here, there is ample evidence from which the ALJ could have concluded that
Plaintiff’s service dogs were medically necessary. First, Dr. Nemirovskiy’s letter
states that she “is prescribing” a service animal to assist Plaintiff in coping with
stress, anxiety, and social interactions arising from his disability. R. 87. While this
letter is not written on a prescription pad, Defendant has failed to point to evidence
that it is not in fact a prescription. Second, Plaintiff testified that he had a prescription
that allowed him to take the service dogs with him wherever he went. Id. He also
testified that his dogs are trained therapy dogs, and that, as part of their training, they
keep him away from people when he is in public. R. 58-59. There is no evidence to
the contrary. Duenes, 578 F. Supp. 3d at 870.
Based on this evidence, the ALJ should have considered whether the service
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dogs were medically necessary to be considered in the RFC analysis. The case must
be remanded for further development of the record regarding Plaintiff’s need for his
service animals. See Santos, 2013 WL 5176846, at *6 (holding that an ALJ
committed reversible error in failing to discuss a plaintiff's alleged need for a service
dog, where there was “at least some evidence in the record that plaintiff's use of a
service dog is medically necessary”); Kourtney L. v. Berryhill, 2019 WL 3945251,
at *3 (D. Or. Aug. 21, 2019) (“On remand, the ALJ should perform the sequential
analysis and resolve conflicts in the medical record to determine whether plaintiff
requires a service animal[.]”).
D. The ALJ Properly Assessed The Consistency Of Dr. Fox’s Opinion.
The consistency factor is “‘an all-encompassing inquiry focused on how well
a medical source is supported, or not supported, by the entire record.’” Shugart v.
Kijakazi, No. 3:21-CV-00007, 2022 WL 912777, at *3 (S.D. Tex. Mar. 29, 2022)
(quoting Vellone ex rel Vellone v. Saul, No. 1:20-CV-00261 (RA) (KHP), 2021 WL
319354, at *6 (S.D.N.Y. Jan. 29, 2021), report and recommendation adopted,
No. 20-CV-261 (RA), 2021 WL 2801138 (S.D.N.Y. July 6, 2021)). As such,
consistency is an external inquiry that juxtaposes a medical opinion to other evidence
in the record, including opinions of other medical professionals. See Hubbard v.
Comm’r of Soc. Sec., No. 4:20-CV-00588-BP, 2022 WL 196297, at *4 (N.D. Tex.
Jan. 21, 2022) (comparing a doctor’s opinion to that of two state agency medical
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consultants).
Plaintiff complains that the ALJ erred in two ways when evaluating Dr. Fox’s
opinion. First, Plaintiff argues that it was error for the ALJ to find that the
consistency factor weighed against finding Dr. Fox’s opinion persuasive because the
ALJ did not include consideration of other medical opinions. ECF No. 12-1 at 13.
Second, Plaintiff contends that the ALJ’s consistency analysis impermissibly
addressed only a portion of Dr. Fox’s opinion. Id. at 13-14. Both contentions are
meritless.
The ALJ found that Dr. Fox’s opinion was not consistent with Plaintiff’s daily
activities. Specifically, Dr. Fox opined that Plaintiff “was limited in his ability to
sustain concentration and persist in work-related activity at a reasonable pace,”
which the ALJ found inconsistent with Plaintiff’s ability to do “auto mechanic work
(an activity that requires considerable gross movement with one’s hands), regularly
play the guitar (and activity that requires considerable fine manipulation), and play
video games and manage his finances, all of which require considerable
concentration.” R. 34.
Relying on Giles R. v. Kijakazi, No. 4:20-CV-1220, 2021 WL 4502842, at *8
(S.D. Tex. Sept. 30, 2021), Plaintiff argues that the ALJ erred in relying on Plaintiff’s
daily activities for his evaluation of the consistency factor and should have relied on
other medical opinions. However, Giles does not support this contention. In Giles,
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the court found that that the ALJ erred when “she rejected all opinions of record
limiting Plaintiff to light or sedentary work and concluded that Plaintiff could
perform medium work” based on his daily activities. 2021 WL 4502842, at *8.
Nothing in Giles requires ALJs to compare medical opinions as part of their
consistency analysis, nor is the Court aware of any case that commands such a result.
Plaintiff’s argument is simply a disagreement with the ALJ’s consideration of the
consistency of Dr. Fox’s opinion with the evidence in the record and a request for
this Court to reweigh the evidence. This request is improper. The Court may not
reweigh the evidence in the record, even if the evidence weighs heavily against the
Commissioner’s decision. Brown, 192 F.3d at 496.
Plaintiff also argues that the ALJ committed error because he failed to analyze
Dr. Fox’s opinion that Plaintiff was unable to regulate emotions and manage the
pressures of a work environment in light of consistency with the record. ECF
No. 12- 1 at 13. Plaintiff points to no caselaw supporting this position. To the
contrary, courts addressing the issue have found that “[a]ccording to prevailing
jurisprudence, an ALJ need not explain her evaluation of each portion of a medical
source’s opinion.” Hague v. Comm’r of Soc. Sec., No. 20-13084, 2022 WL 965027,
at *6 (E.D. Mich. Mar. 30, 2022); see also Vilches v. Kijakazi, No. 3:21-CV-15KFP, 2022 WL 11455775, at *4 (M.D. Ala. Oct. 19, 2022) (“A detailed description
of every part of a medical source opinion’s supportability and consistency (or lack
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thereof) is not required”). As such, the ALJ did not err when he did not separately
address the consistency of each part of Dr. Fox’s opinion.
Thus, Plaintiff has failed to show the ALJ erred in his consistency analysis of
Dr. Fox’s opinion.
E. The ALJ Did Not Improperly Rely On His Own Lay Opinion.
Plaintiff argues that because the ALJ found the opinions of each psychiatric
professional unpersuasive, he improperly relied on his own unsupported opinion.
ECF No. 12-1 at 14. Plaintiff’s argument is without merit.
Just because the ALJ did not accept all medical opinions at face value does
not mean that he substituted his own lay opinion. As a preliminary matter, ALJ’s are
not required to create an RFC that corresponds exactly with the medical opinions of
record. See Cooley v. Comm’r of Soc. Sec., No. 20-CV-46, 2021 WL 4221620, at *5
(S.D. Miss. Sept. 15, 2021) (noting “the ALJ’s RFC determination neither needs to
perfectly match a particular medical opinion nor find the sole supporting medical
opinion entirely persuasive,” because otherwise the RFC “would be largely limited
to rubberstamping a particular medical opinion”) (quotations and citations omitted);
Myers v. Kijakazi, No. 20-CV-445, 2021 WL 3012838, at *4 (W.D. Tex. July 16,
2021), report and recommendation adopted, 2021 WL 4025993 (Sept. 3, 2021)
(explaining that the law does not require a positive statement or positive evidence
from a medical source indicating a claimant can perform the demands included in
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the RFC).
Further, “[t]he regulations do not prohibit the ALJ from assessing the
claimant’s RFC based on other record evidence when he finds all medical opinions
to be unpersuasive.” West v. Kijakazi, No. CV H-21-2395, 2022 WL 4137297, at *6
(S.D. Tex. Aug. 26, 2022), report and recommendation adopted, No. CV H-212395, 2022 WL 4138574 (Sept. 12, 2022). Here, the ALJ used medical records, the
SAMCs opinions, treatment notes, and Plaintiff’s testimony to formulate the RFC.
This is not lay interpretation of the evidence. See, e.g., Carson v. Comm’r of Soc.
Sec., No. 21-CV-12, 2022 WL 2525438, at *7 (E.D. Tex. May 25, 2022), report and
recommendation adopted, 2022 WL 2489340 (July 6, 2022) (holding the ALJ did
not err in finding state agency opinions not persuasive and in formulating the RFC
based on testimony, medication management, activities of daily living, and other
medical evidence because there is no requirement that the RFC mirror or match a
medical opinion).
“What [plaintiff] characterizes as the ALJ substituting his opinion is actually
the ALJ properly interpreting the medical evidence to determine [plaintiff’s]
capacity for work.” Taylor, 706 F.3d at 602–03. The ALJ found the SAMCs opinions
on physical limitations persuasive and relied on them, but found even more
restrictions, which is in Plaintiff’s favor. R. 33. Even if the ALJ should have afforded
more weight to the medical opinions in the record, such error would be harmless.
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See Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988) (noting “[p]rocedural
perfection in administrative proceedings is not required” and a court “will not vacate
a judgment unless the substantial rights of a party have been affected”); see also
Frank, 326 F.3d at 621–22 (applying harmless error analysis where the ALJ
“seem[ed] to draw his own medical conclusions from some of the [medical] data,
without relying on a medical expert’s help”).
The only issue Plaintiff raises with the ALJ’s reasoning is that he failed to
explain how the daily activities supported a finding that “Plaintiff has the ability to
sufficiently regulate his emotions to interact appropriately with coworkers and the
public, respond appropriately to criticism from one or two supervisors, adapt to
occasional change in the work setting, or otherwise cope with the pressures of a work
setting.” ECF No. 12-1 at 15. But the ALJ did provide such an explanation.
Specifically, the ALJ stated that with regard to certain activities the Plaintiff engaged
in—preparing meals, performing most household chores, driving, riding a
motorcycle, shopping in stores and online, handling money, playing the guitar, doing
self-paced auto projects, doing laundry, performing light repairs, cleaning, playing
video games, riding his bicycle, caring for himself, and caring for two 100 pound
plus dogs—the “social interactions required in order to perform these activities are
the same as those necessary for obtaining and maintaining employment.” R. 35.

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Finally, the ALJ incorporated Plaintiff’s difficulties with stress and social
interactions into the RFC, including that Plaintiff “should never be required to work
at a forced pace,” should be “limited to no more than only occasional interactions
with the public, coworkers and supervisors, and should have no more than one or
two supervisors,” and “should never be subjected to more than only occasional
changes in the work setting and should never be required to make plans or set goals
independently of others.” R. 28. These limitations were also consistent with the
SAMCs’ opinions. Both Dr. Kwun and Dr. Ligon found that Plaintiff was
moderately limited in his “ability to accept instructions and respond appropriately to
criticism from supervisors” and his “ability to get along with coworkers.” R. 103,
120. Furthermore, both SAMCs found that Plaintiff was not significantly limited in
his ability to interact appropriately with the public. Id.
Therefore, the ALJ did not improperly rely on his own lay opinion in
formulating Plaintiff’s RFC.
CONCLUSION
Accordingly, Plaintiff’s motion for summary judgment, ECF No. 12, is
GRANTED in part and DENIED in part as follows: Plaintiff’s case is remanded
for the Commissioner to consider the medical necessity of Plaintiff’s service animals
and whether Plaintiff’s RFC should be adjusted to account for the need for service
animals. In all other respects, Plaintiff’s motion is DENIED.
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The Commissioner’s motion for summary judgment, ECF No. 13, is DENIED
in part as to the ALJ’s failure to consider the medical necessity of Plaintiff’s service
animals in his determination of the RFC. In all other respects, Defendant’s motion
is GRANTED.
SIGNED at Houston, Texas, on March 16, 2022.

_______________________________
______________________________

Dena Hanovice Palermo
United States Magistrate Judge

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