Baker v. Kijakazi, Acting Commissioner of the Social Security Administration

Filing 15

OPINION AND ORDER. The Court Affirms the Commissioner's decision re 14 Cross Motion for Summary Judgment . (Signed by Magistrate Judge Andrew M Edison) Parties notified. (rrc3)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SANDRA BAKER,
Plaintiff.
V.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

June 03, 2024
Nathan Ochsner, Clerk

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§ CIVIL ACTION NO. 4:23-cv-00397
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OPINION AND ORDER
Plaintiff Sandra Baker (“Baker”) seeks judicial review of an administrative
decision denying her application for supplemental security income under Title XVI of
the Social Security Act (the “Act”). See Dkt. 1. Baker and Defendant Martin O’Malley,
Commissioner of the Social Security Administration (the “Commissioner”), have both
filed briefs. See Dkts. 13–14. After reviewing the briefing, the record, and the
applicable law, I AFFIRM the Commissioner’s decision.
BACKGROUND
On June 20, 2019, Baker filed an application for Title XVI supplemental
security income. Her application was denied and denied again upon reconsideration.
Subsequently, an Administrative Law Judge (“ALJ”) held a hearing and found that
Baker was not disabled. Baker 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). See Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002). 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 decision is supported by substantial evidence on the record as a
whole.” Est. 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 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 Baker “has not engaged in substantial gainful
activity since June 20, 2019, the application date.” Dkt. 5-3 at 166.
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The ALJ found at Step 2 that Baker suffered from “the following severe
impairments:

high

blood

pressure,

a

disorder

of

the

right

knee,

anxiety/depression/bipolar disorder.” Id.
At Step 3, the ALJ found that Baker “does not have an impairment or
combination of impairments that meets or medically equals the severity of one of the
listed impairments.” Id. at 167.
Prior to consideration of Step 4, the ALJ determined Baker’s RFC as follows:
[Baker] has the residual functional capacity to perform medium work as
defined in 20 CFR 416.967(c) except she can occasionally climb ramps
and stairs, but should never climb ladders, ropes or scaffolds. [Baker]
can occasionally balance, stoop, kneel, crouch and crawl. She should
avoid all exposure to dangerous moving machinery (excluding motor
vehicles) and unprotected heights. [Baker] can occasionally push, pull,
and operate foot controls, bilaterally. She can remember and follow
detailed, but not complex instructions. She can perform the tasks
assigned, but not at a production rate pace; however, she can meet the
end of day work goals. [Baker] can have occasional contact with
coworkers, supervisors and the general public. She can occasionally
adapt to changes in the workplace.
Id. at 168–69.
At Step 4, the ALJ found that Baker “has no past relevant work.” Id. at 177.
Nevertheless, at Step 5, the ALJ elicited testimony from a vocational expert
(“VE”) that “there are jobs that exist in significant numbers in the national economy
that [Baker] can perform.” Id. Accordingly, the ALJ found that Baker “has not been
under a disability, as defined in the Social Security Act, since June 20, 2019, the date
the application was filed.” Id. at 178.
DISCUSSION
This social security appeal involves three issues: (1) whether the ALJ’s physical
RFC findings are supported by substantial evidence; (2) whether the ALJ’s mental
RFC findings are supported by substantial evidence; and (3) whether the ALJ erred in
questioning the VE during the hearing. I address each issue below.
A.

SUBSTANTIAL EVIDENCE SUPPORTS THE ALJ’S PHYSICAL RFC
Baker argues that “[t]he ALJ fails to reference any medical opinion that

supports her [physical] RFC finding.” Dkt. 13 at 9. This is simply not true. The ALJ

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considered that “State Agency medical consultants at both the initial and
reconsideration levels noted [Baker] could perform medium work with postural and
climbing limitations.” Dkt. 5-3 at 176. The ALJ found these “opinions only somewhat
persuasive” because the consultants “noted no severe physical impairments,” whereas
the ALJ imposed “more restrictive limits on [Baker]’s ability to exert herself, perform
postural movements, use her extremities and be exposed to workplace hazards.” Id.
The ALJ reviewed the medical evidence of record and determined that Baker is
actually more limited than the State Agency medical consultants’ opinions suggest.
“That these medical experts found [Baker] . . . to have greater [physical] capabilities
is ultimately supportive of the ALJ’s RFC determination.” Fleming v. Saul, No. SA-19cv-00701, 2020 WL 4601669, at *9 (W.D. Tex. Aug. 10, 2020).
Baker emphasizes an examination by Dr. Daryl K. Daniel (“Dr. Daniel”), who
diagnosed her with right knee arthropathy and chronic pain, and recommended a
follow-up MRI, after ordering an x-ray that showed mild patellofemoral osteoarthritis
and concern for internal derangement. But Baker overlooks that the State Agency
medical consultants had the benefit of Dr. Daniel’s examination and findings when
rendering their opinions,1 which the ALJ found “consistent with the determination
that [Baker]’s conditions are not disabling.” Dkt. 5-3 at 176.
Baker points to no contrary medical evidence that would warrant greater
limitations than those imposed by the ALJ. See Ramirez, 606 F. App’x at 777. To the
extent Baker believes that her own testimony constitutes contrary evidence
warranting greater limitations, the ALJ determined that “[t]he evidence of record
documents medically determinable impairments [that] could reasonably cause the
types of symptoms [Baker] alleges, but not to the general extent to which she alleges
them.” Dkt. 5-3 at 173. Specifically, the ALJ noted that “the record reflects no loss of
motion or neurological deficits of [Baker]’s extremities that would preclude the
performance of medium work.” Id. “Conflicts of evidence are for the Commissioner,
not the courts, to resolve.” Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005). The

See Dkt. 5-4 at 4 (listing Dr. Daniel’s examination in the evidence of record at the initial
review level); id. at 16–17 (same, on reconsideration).
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ALJ’s physical RFC represents a credible choice that is supported by substantial
evidence.2
B.

SUBSTANTIAL EVIDENCE SUPPORTS THE ALJ’S MENTAL RFC
Baker asserts that “the ALJ’s mental RFC, like her physical RFC, is unsupported

by any physician of record.” Dkt. 13 at 12. This is, again, untrue. State Agency
psychologists opined that Baker’s “mental impairments were not ‘severe,’ as they
resulted in only mild limitations.” Dkt. 5-3 at 176. As with Baker’s physical RFC, the
ALJ found these “opinions only somewhat persuasive” because the psychologists
found no severe physical impairments, whereas the ALJ found that “the evidence
available at the hearing level, when considered to provide [Baker] with the widest
degree of consideration, supports a finding of severe mental impairments . . ., but to
no more than a moderate degree.” Id. Again, the ALJ reviewed the medical evidence
of record and determined that Baker is actually more limited than the State Agency
psychologists’ opinions—this “is ultimately supportive of the ALJ’s RFC
determination.” Fleming, 2020 WL 4601669, at *9.
Baker makes much of her consultative mental status evaluation by Richard
Hardaway, Ph.D. (“Dr. Hardaway”), who opined that Baker “was unlikely to have the
ability to sustain concentration and persist in a work-related activity at a reasonable
pace due to her bipolar disorder.” Dkt. 5-3 at 175. But Baker again overlooks that the
State Agency psychologists had the benefit of Dr. Hardaway’s evaluation when
rendering their opinions,3 which the ALJ found “consistent with the determination
that [Baker]’s conditions are not disabling.” Id. at 176. She also overlooks the ALJ’s
observation that Dr. Haraway’s opinion was “based largely on [Baker]’s self-reported
symptoms and [his] diagnoses only provisional.” Id. at 175.

Because the ALJ’s RFC is supported by substantial evidence, it does not matter that the
ALJ failed to conduct a function-by-function assessment. See Barbour v. Kijakazi, No.
4:20-cv-0861, 2021 WL 4478332, at *5 (M.D. Pa. Sept. 30, 2021) (“An ALJ’s failure to
conduct a function-by-function assessment does not require remand where the ALJ’s
decision is otherwise supported by substantial evidence.”).

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See Dkt. 5-4 at 4–5 (listing Dr. Hardaway’s reports in the evidence of record at the initial
level); id. at 17 (same, on reconsideration).
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Baker points to various mental deficits, see Dkt. 13 at 12–13, and the ALJ’s
failure to make a specific finding as to her ability to sustain employment as proof that
the ALJ’s opinion is unsupported by substantial evidence. But “[a] finding of no
substantial evidence is warranted only where there is a conspicuous absence of
credible choices or no contrary medical evidence.” Ramirez, 606 F. App’x at 777
(quotation omitted). The phrase “no contrary medical evidence” means that “[n]o
medical evidence contradicts [the claimant’s disability].” Payne v. Weinberger, 480
F.2d 1006, 1008 (5th Cir. 1973). That is not the case here.
The ALJ thoroughly reviewed Baker’s medical records. The ALJ acknowledged
Baker’s “history of suicidal ideation, visual hallucinations and auditory hallucinations,
. . . mood swings, [and] paranoia regarding others being out to get her.” Dkt. 5-3 at
169. But the ALJ found more compelling the “improvements in the signs and
symptoms associated with [Baker]’s mental impairments when she is compliant with
treatment.” Id. at 174 (emphasis added). Conflicts in the evidence are for the
Commissioner to resolve, not me. See Perez, 415 F.3d at 461. The ALJ’s choices here
are credible, and substantial evidence supports her mental RFC determination.
C.

THE ALJ DID NOT ERR IN QUESTIONING THE VOCATIONAL EXPERT
As for the ALJ’s Step 5 determination, Baker argues that the ALJ included

impermissible vocational findings in her hypothetical questions to the VE.
Specifically, Baker takes issue with this statement by the ALJ: “She can perform the
tasks assigned, but not at a production rate pace; however, she can meet the end of
the day work goals.” Dkt. 5-3 at 227. Baker contends “[t]he ALJ erred in not defining
what she means by ‘end of day work goals.’” Dkt. 13 at 10. According to Baker, “[i]f the
[VE] assumes [she can meet the end of the day work goals], it would be impossible for
the ALJ to not find that there is work that [Baker] can perform.” Id. at 11.
I acknowledge that the ALJ’s choice of words was not precise. Yet, a complete
review of the hearing testimony demonstrates the fallacy of Baker’s argument. The
assumption that any claimant can otherwise do the job is baked into every
hypothetical posed by the ALJ. The VE’s job is to opine on whether there are jobs that
will tolerate each claimant’s particular limitations. During the hearing, the ALJ

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instructed the VE to “assume all of the facts in my previous hypotheticals”—which
included that Baker could meet the end of the day work goals—but to also assume that
she would be “off task 20 percent or more of the workday.” Dkt. 5-3 at 235, 236. The
VE testified—after assuming, as instructed, that Baker could meet the end of the day
work goals—that “no work” would be available under such a hypothetical. Id. at 236.
The VE’s answers demonstrate that she considered Baker’s assumed limitations,
despite the ALJ unnecessarily telling the VE To assume that Baker can otherwise do
the job. Thus, the ALJ’s hypotheticals did not infect the VE’s analysis, and the ALJ did
not err in phrasing her hypotheticals the way she did.
CONCLUSION
For the reasons discussed above, I AFFIRM the Commissioner’s decision. I
will enter a final judgment separately.
SIGNED this 3rd day of June 2024.

______________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE

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