Hernandez v. Berryhill
Filing
19
MEMORANDUM OPINION AND ORDER. IT IS ORDERED that the decision of the Commissioner will be AFFIRMED.. Signed by Judge Miguel A. Torres. (lc3)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
2111g
1)
!
CRUZ HERNANDEZ,
2:
ç8
§
§
Plaintiff,
§
§
v.
NO. EP-18-CV-00055-MAT
§
§
ANDREW SAUL,' COMMISSIONER
OF THE SOCIAL SECURITY
ADMINISTRATION,
§
§
§
§
Defendant.
§
MEMORANDUM OPINION AND ORDER
This is a civil action seeking judicial review
42 U.S.C.
§
of an administrative decision pursuant to
405(g). Plaintiff Cruz Hernandez ("Plaintiff') appeals from the decision of the
Commissioner of the Social Security Administration ("Commissioner") denying her applications
for a period of disability and disability insurance benefits ("DIB") under Title II of the Social
Security Act (the "Act") and supplemental security income under Title XVI of the Act. (Pl.'s
Compl., ECF No. 1, at 1). The parties consented to the transfer of the case to this Court for
determination and entry of judgment.
See 28 U.S.C.
§ 636(c);
Local Court Rule CV-72. For the
reasons set forth below, the Commissioner's decision will be AFFIRMED.
I.
PROCEDURAL HISTORY
Plaintiffwas fifty-five years old at the time of the decision of the Administrative Law Judge
of Civil
Andrew Saul is now the Commissioner of the Social Security Administration. Pursuant to Federal Rule
substituted for Acting Commissioner Nancy A. Berryhill as the defendant in
Procedure 25(d), Andrew Saul is now
this case.
1
("AU"), dated December 23, 2016.
See
(R. 29, 35, 53)2 Her past relevant work includes being a
house cleaning maid and a sewing machine operator. (R. 38-39, 46-47, 197). On November 3,
2014, Plaintiff filed applications for a period of disability and DIB and Supplemental Security
Income benefits, in which she alleged disability beginning on September
1,
2009, due to arthritis
and back pain. (R. 153-59, 160-70). After her applications were denied initially and upon
reconsideration, Plaintiff requested a hearing by an AU. (R. 53-59, 92-97, 98).
On September 1, 2016, a hearing was conducted before the AL (R. 33-52). At the hearing,
Plaintiff amended her onset disability date to September 30, 2013. (R. 21, 36). On December 23,
2016, the AU issued a written decision denying benefits at step two of the five-step evaluation
process on the basis that Plaintiffs impairments, "considered singly and in combination, do not
significantly limit [Plaintiffs] ability to perform basic work activities." (R. 28). On December 15,
2017, the Appeals Council denied Plaintiffs request for review, thereby making the
AU's
decision the Commissioner's final administrative decision. (R. 1-8).
In this appeal, Plaintiff argues that the AU's decision is not supported by substantial
evidence and results from legal error. (Pl.'s Br., ECF No. 16, at 2). Specifically, Plaintiff contends:
(1) that the AU did not consider the combined impacts ofher impairments as required by 20 C.F.R.
§
404.1523 and (2) that the AU failed to properly develop the record and weigh the medical
opinion evidence and, therefore, did not follow proper legal standards. Id.
II.
LAW AND ANALYSIS
A. STANDARD OF REVIEW
The Court's review is limited to a determination of whether the Commissioner's final
decision is supported by substantial evidence on the record as a whole, and whether the
2
Reference to the record of administrative proceedings is designated by (R. [page number(s)]).
2
Commissioner applied the proper legal standards. Myers
2001) (citing Greenspan
v.
v.
Apfel, 238 F.3d 617, 61.9 (5th Cir.
Shalala, 38 F.3d 232, 236 (5th Cir. 1994)) (internal quotation marks
omitted). Substantial evidence "meansand means only'such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Biestek
v.
Berryhill, 139 S. Ct. 1148,
1154, (2019) (quoting Consol. Edison Co. v. Nat'lLaborRelationsBd., 305 U.S. 197,229(1938)).
It is more than a scintilla, but less than a preponderance. Ripley
Cir. 1995) (quoting Spellman
Shalala,
v.
1
v.
Chater, 67 F.3d 552, 555 (5th
F.3d 357, 360 (5th Cir. 1993)). A finding of "no
substantial evidence" will be made only where there is a "conspicuous absence of credible choices"
or "no contrary medical evidence." Abshire v. Bowen, 848 F.2d 638, 640 (5th Cir. 1988) (quoting
Hames
v.
Heckler, 707 F.2d 162, 164 (5th Cir. 1983)) (internal quotation marks omitted).
In determining whether there is substantial evidence to support the findings of the
Commissioner, the Court may not reweigh the evidence or try the issues de novo. Newton
v.
Apfel,
209 F.3d 448, 452 (5th Cir. 2000). The Court may not substitute its own judgment "even if the
evidence preponderates against the [Commissioner's] decision." Harrell v. Bowen, 862 F.2d 471,
475 (5th Cir. 1988) (citation omitted). "Conflicts in evidence are for the [Commissioner] and not
the courts to resolve." Speilman,
1
F.3d at 360 (quOting Selders
Cir. 1990)) (internal quotation marks omitted).
v.
Sullivan, 914 F.2d 614, 617 (5th
If the Commissioner's findings are supported by
substantial evidence, "they are conclusive and must be affirmed." Id. However, "[t]he
AU's
decision must stand or fall with the reasons set forth in the AU's decision, as adopted by the
Appeals Council." Newton, 209 F.3d at 455.
B. FIvE-STEP SEQUENTIAL EVALUATION PROCESS
Under the Social Security Act, "disability" means, in relevant part, the "inability to engage
in any substantial gainful activity by reason of any medically determinable physical or mental
3
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 12 months
.
.
.
." 42 U.S.C.
§
423(d)(1)(A). This means
that:
An individual shall be determined to be under a disability only if his
physical or mental impairment or impairments are of such severity
that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national
economy.
Id. at
§
423(d)(2)(A)
The Social Security Administration Regulations (the "Regulations") prescribe a "five-step
sequential evaluation process" to determine whether a claimant is disabled. 20 C.F.R.
§S
404.1520(a)(1) & 416.920(a)(1). If, at any step of the process, the AU finds that the claimant
is either disabled or not disabled, the AU will make his determination as to disability and will not
continue with a consideration of the remaining steps. Id. at
§
404.1520(a)(4) & 416.920(a)(4).
At the first step, the AU determines whether the claimant is engaged in substantial gainful
activity. Id. at
§
404.1520(a)(4)(i) & 416.920(a)(4)(i). If so, the AU will find the claimant is not
disabled and will not continue to step two. Id.
At the second step, the AU considers the medical severity of the claimant's impairment(s).
Id. at
§S
404.1520(a)(4)(ii) & 416.920(a)(4)(ii). An impairment or combination of impairments is
severe within the meaning of the regulations if it "significantly limits" an individual's "ability to
perform basic work activities." Id. at
§
404.1520(c) & 416.920(c).
"[Am
impairment can be
considered as not severe only if it is a slight abnormality which has such a minimal effect on the
individual that it would not be expected to interfere with the individual's ability to work,
irrespective of age, education or work experience." SSR 85-28, at *3 (citing Stone
v.
Heckler,
752
F.2d 1099 (5th Cir. 1985). If the AU determines that the claimant does not have a severe medically
ri
determinable physical or mental impairment or combination of impairments that meet the duration
requirement, then the AU will find that the claimant is not disabled and will not continue to step
three. Id. at
§§
404.1 520(a)(4)(ii) & 416. 920(a)(4)(ii)
At the third step, the AU
also considers the medical severity
of the claimant's
impairment(s), specifically whether the impairment(s) meets the duration requirement and "meets
or equals one of [the] listings in appendix
41 6.920(a)(4)(iii).
1
of this subpart
.
. .
." Id. at
§
404. 1520(a)(4)(iii) &
If so, the claimant will be found to be disabled, and the AU will not continue
to step four. Id.
Before proceeding to the fourth step, the AU will make a finding as to the claimant's
residual functional capacity ("RFC"), "based on all the relevant medical and other evidence" in
the administrative record. Id. at
§§
404.1520(e) & 416.920(e). A claimant's RFC is the most she
can still do despite her physical and mental limitations that affect what she can do in a work setting.
Id. at
404.1545(a)(1) & 416.945(a)(1). When assessing the RFC, the AU will consider all of a
§
claimant's medically determinable impairments, not just ones that the AU determines are severe.
Id. at
§'
404.1545(a)(2) & 416.945(a)(2).
At step four of the five-step sequential evaluation process, the AU considers the RFC
assessment and the claimant's past relevant work. Id. at
§
404.1520(a)(4)(iv) 416.920(a)(4)(iv).
If the AU determines that, considering the RFC, the claimant can still do her past relevant work,
then the AU will fmd that the claimant is not disabled and will not continue to step five. Id. Finally,
at step five, the AU considers the claimant's RFC, age, education, and work experience to
determine whether the claimant can adjust to other work. Id. at
416. 920(a)(4)(v).
§S
404.1520(a)(4)(v) &
If the AU finds that the claimant cannot, then the AU will fmd that the claimant
is disabled. Id.
5
C. THE AU's WRITTEN DECISION
In his written decision, the AU analyzed Plaintiffs application for disability using the
five-step sequential evaluation process set forth in the Regulations. (R. 22-28). At step one, the
AU found that Plaintiff had not engaged in substantial gainful activity since September 30, 2013,
the amended alleged onset date. (R. 23). Proceeding to step two, the AU found that Plaintiff had
the following medically determinable impairments: degenerative disc disease of the lumbar spine;
degenerative joint disease of bilateral hands; carpal tunnel syndrome; ulnar neuropathy; joint
inflammation ofthe bilateral arms, wrists, and hands; and obesity. (R. 24). But, the AU found that
these medically determinable impairments were not severe impairments, singly and in
combination, because these impairments "do not significantly limit the claimant's ability to
perform basic work activities." (R. 28). Accordingly, the AU determined that Plaintiff was not
disabled and, therefore, did not proceed to step three, four, or five. (R. 28).
D. WHETHER THE AU PROPERLY CONSIDERED THE COMBINED IMPACT OF PLAINTIFF'S
IMPAIRMENTS
Plaintiff first argues that the AU erred by not considering the combined impact of
Plaintiffs "degenerative disc disease, degenerative joint disease, carpal tunnel syndrome, ulnar
neuropathy, and obesity in compliance with 20 C.F.R. § 404.1523," and thereby prematurely ended
the sequential evaluation process. (Pl.'s Br., ECF7 No. 16, at 3-4). In response, the Commissioner
argues that the AU followed 20 C.F.R.
§
404.1523 when he found that the Plaintiff did not have
a severe impairment or combination of impairments, because the AU referenced the standard
throughout his decision. (Comm'r's Br., ECF No. 17, at 1-2).
Title 20 C.F.R.
§
404.1523 and 416.923 state:
(c) Combined effect. In determining whether your physical or
mental impairment or impairments are of a sufficient medical
severity that such impairment or impairments could be the basis of
eligibility under the law, we will consider the combined effect of all
of your impairments without regard to whether any such
impairment, if considered separately, would be of sufficient
severity. If we do find a medically severe combination of
impairments, we will consider the combined impact of the
impairments throughout the disability determination process. If we
do not find that you have a medically severe combination of
impairments, we will determine that you are not disabled.
Id. at
§S
404.1523(c) & 416.923(c). Reviewing the AU's decision, there is no indication that the
AU failed to consider the combined effects
references the standard under
§S
of Plaintiff's impairments. The AU continuously
404.1523 & 416.923 throughout his decision. (R. 22-28).
Accordingly, Plaintiff has not shown that the AU erred in this respect.
E. WHETHER THE AU ERRED BY FAILING TO FURTHER DEVELOP THE RECORD AND FAILING
TO PROPERLY WEIGH THE TREATING PHYSICIAN'S OPINIONs
Plaintiff asserts that remand is warranted because the AU failed to satisfy his duty to
further develop the record by not recontacting the treating physician and incorrectly giving the
treating physician's opinion little weight. (Pl.'s Br., ECF No. 16, at 5-6). In response, the
Commissioner asserts that the AU properly developed the record and weighed the medical opinion
evidence, and moreover, that even if the AU erred, Plaintiff has not shown a legal error warranting
remand. (Comm'r's Br., ECF No. 17, at 4-7).
The AU
did
not err by not recontacting the treating physician.
Plaintiff argues that the AU failed his affirmative duty to further develop the record by
recontacting Dr. Monsivais, Plaintiff's treating physician. (Pl.'s Br., ECF No. 16 at 5-6). Plaintiff
asserts that the AU cannot ignore a treating physician opinion without first attempting to fill clear
gaps in the administrative record, and that the AU bears an affirmative duty to seek out more
information from the treating physician to develop the record. Id. at 5. Plaintiff argues that because
7
the AU failed to recontact Dr. Monsivais, the AU failed to "follow procedures required by law."
Id. at 6.
In response, the Commissioner argues that recontacting Dr. Monsivais is discretionary, and
"only a potential consideration" when the AU cannot reach a conclusion on whether a claimant is
disabled. (Comm'r's Br., ECF No. 17, at 7) (citing 20 C.F.R.
§
404.1520b(c) & 416.920b(c)).
The Commissioner claims that recontacting Dr. Monsivais was not necessary because the evidence
as a whole was "clearly adequate to determine the issue
of Plaintiffs disability." Id. Lastly, the
Commissioner asserts that the AU properly developed the record by providing Plaintiff with an
initial consultation examination with Dr. Eleje at government's expense, as well as obtaining
testimony from Plaintiff about, inter alia, her age and past relevant work. Id. at 6-7.
The AU owes a duty to a claimant to develop the record fully and fairly to ensure that his
decision is an informed decision based on sufficient facts. Sun
Cir. 2015) (citing Ware
v.
v.
Colvin, 793 F.3d 502, 509 (5th
Schweiker, 651 F.2d 408, 414 (5th Cir. 1981); James
F.2d 702, 704 (5th Cir. 1986)); see also 20 CFR
§
v.
Bowen, 793
404.1512(b)(1), (b)(2) & 416.912(b)(1), (b)(2)
("[B]efore we make a determination that you are not disabled, we will develop your complete
medical history
.
.
.
and may ask you to attend a consultative examination at government
expense."). For example, "[i]f the AU determines that the treating physician's records are
inconclusive or otherwise inadequate to receive controlling weight, absent other medical opinion
evidence based on personal examination or treatment of the claimant, the AU must seek
clarification or additional evidence from the treating physician in accordance with 20 C.F.R.
§
404.1512(e)." Jones
v.
Astrue, 691 F.3d 730, 734 (5th Cir. 2012) (quoting Newton, 209 F.3d at
453) (emphasis in original).
The AU can also satisfy his duty to develop the record by questioning a claimant about,
inter alia, her education, training, work history, daily routine, pain, and physical limitations. See
Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996). "If the AU fails to fulfill this duty, 'he does
not have before him sufficient facts on which to make an informed decision and consequently the
decision is not supported by substantial evidence." Sun, 793 F.3d at 509 (quoting James, 793 F.2d
at 704). A court may reverse the AU's decision on the basis
of no substantial evidence if the
plaintiff can show that "( 1) the AU failed to fulfill his duty to develop the record adequately and
(2) that failure prejudiced the [plaintiff]." Jones, 691 F.3d at 733. However, although the AU has
a duty to develop the record, the ultimate burden rests with the claimant to provide evidence of her
disability. 42 U.S.C.
§
423(d)(5)(A).
Here, Dr. Monsivais was not the only examining physician; the medical record also
includes examinations by Dr. Eleje and Dr. Ralu. See e.g., (R. 250-52, 262-63). Therefore, the
AU was not required to request more information from Dr. Monsivais. Moreover, at the hearing,
the AU gave Plaintiff the opportunity to answer questions about her education, work history, pain,
and treatment, and provided her the opportunity to talk about her daily routine. (R. 38-46). For
these reasons, the AU did not fail to fulfil his duty to develop the record.
ii.
The AU did not err in giving the treating source 's opinion little weight.
Plaintiff asserts that before the AU can give a treating source's opinion little weight, the
AU must first attempt to develop the record. (Pl.'s Br., ECF No. 16, at 5-6). Additionally, Plaintiff
asserts that the treating physician's opinions are generally given "considerable weight," and are
also given more weight than those of non-examining physicians. Id. at 6. In response, the
Commissioner argues that a treating physician's opinion may be given "little to no weight when
good cause is shown." (Comm'r's Br., ECF No. 17, at 5). The Commissioner then asserts good
cause was given because the AU noted that Dr. Monsivais' s medical opinion was inconsistent
with his subsequent findings and the rest of the medical record. Id. at 5-6.
When determining disability, the AU will consider medical opinions from acceptable
medical sources, including treating physicians, together with the rest of the relevant evidence in
the record. 20 C.F.R.
§
404.1527(a)(b) 416.927(a)(b). A treating source's medical opinion on
the issue(s) of the nature and severity of a claimant's impairment(s) will be given controlling
weight if the AU finds that it is "well- supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case
record." Id. at
§S
404.1527(c)(2) & 416.927(c)(2).
When a treating source's medical opinion is not given controlling weight, the AU applies
the factors listed in paragraphs (c)(2)(i)(ii) and (c)(3)(c)(6) of
§§
404.1527 and 416.927 in
determining what weight to give the opinions and provides "good reasons" for the weight given.
Id. at
§
404.1 527(c)(2) & 41 6.927(c)(2). "[A]bsent reliable medical evidence from a treating or
examining physician controverting the claimant's treating specialist, an AU may reject the opinion
of the treating physician only
if
the AU performs a detailed analysis of the treating physician's
views, under the criteria set forth in 20 C.F.R.
§ 404.1527(d)(2)."3 Newton,
209 F.3d at 453
(emphasis in original). These factors include the length, frequency, nature, and extent of the
treatment relationship, the supportability of the opinion, the consistency of the opinion with the
record as a whole, specialization of the physician, and other factors, such as the medical source's
understanding of disability programs and evidentiary requirements and the extent to which the
The criteria that the Fifth Circuit references at subsection (d)(2) in Newton are currently located at subsection
404.1527 arid 416.927. Compare 20 C.F.R. § 404.1527 & 416.927 (effective to
July 31, 2006) with 20 C.F.R. § 404.1527 & 416.927 (effective Aug. 24, 2012 to Mar. 26, 2017)
and 20 C.F.R. § 404.1527 & 416.927 (effective Mar. 27, 2017).
(c)(2)(i)(ii) and (c)(3)(c)(6) of
10
medical source is familiar with the other information in the claimant's case record. Id. at
§
404.1527(c) & 416.927(c).
On April 1, 2015, Dr. Monsivais opined that Plaintiff had limitations lifting/carrying;
standing and/or walking; pushing and/or pulling; climbing, balancing, kneeling, crouching,
crawling, and stooping, reaching, handling, fingering, and feeling; and working in with certain
environmental factors such as vibrations and temperature extremes. (R. 254-56). However, there
is competing first-hand medical evidence contradicting Dr. Monsivais's opinions of the limitations
of Plaintiff's impairments. Dr. Eleje, who completed a consultative examination of Plaintiff on
December 23, 2014, found that Plaintiff had normal hand and muscle strength, and that her
extremities have a "full range of motion with no evidence of active articular disease." (R. 251).
The musculo skeletal examination revealed that Plaintiff had a "full range of motion, symmetric
strength, normal muscle tone, no atrophy, no abnormal movements and no contractures." Id. Dr.
Eleje opined that Plaintiff had "no limitations with sitting, standing, moving about, handling
objects, lifting, carrying, hearing, speaking," and that Plaintiff's "alleged pain does not correspond
to findings on examination." Id.
Likewise, Dr. Ralu, who examined Plaintiffon December 15, 2015, observed that Plaintiff
was had normal strength in all extremities. (R. 262). Moreover, the AU noted that Dr. Monsivais's
subsequent treatment notes were not consistent with his opinions on Plaintiff's limitations,
including findings of "full range of motion and strength in [Plaintiff's] arms, wrists, and hands ad
no signs
of instability." (R. 26) (citing R. 257-59, 267-75). Thus, the record contains competing
first-hand medical evidence contradicting Dr. Monsivais's opinions. Accordingly, the AU was
not required to perform a detailed analysis of Dr. Monsivais's opinions under the criteria set for
the regulations before giving little weight to his opinions.
11
However, even if the AU was required to address the factors in his written decision, it is
clear from that decision that he did so. The AU considered all the required factors of 20 C.F.R.
§
404.1527(c) &416.927(c) when the AU gave Dr. Monsivais's opinion little weight. By
recalling the timeline of treatment, the AU considered the first factor of physician's length and
frequency of Plaintiff's treatment. (R. 26) (noting the treatment dates of February 2015 to August
2016, including treatment notes for September 2015 and May and July 2016).
The
AU's decision also shows that he considered the second factor of the treatment's
nature and extent. (R. 26) ("[Dr. Monsivais] primarily examined her arms, wrists, and hands during
those appointments and treatment focused on her carpal tunnel syndrome, ulnar neuropathy, and
joint inflammation of the bilateral arms, wrists, and hands."). Likewise, the record reflects that the
AU extensively considered both the third factor
of whether Dr. Monsivais's opinion is supported
by the record's medical evidence, and the fourth factor of whether Dr. Monsivais' s opinion is
consistent with the record as a whole.
See,
e.g.,
(R.
28) ("The inconsistencies between Dr.
Monsivais's opinion and findings greatly undermined his opinion. In addition, Dr. Monsivais's
opinion was inconsistent with Dr. Eleje's generally normal musculoskeletal or neurological and
[Plaintiff's] reported abilities, discussed above.")
The fifth factor of considering Dr. Monsivais's specialization is satisfied.
See (R.
27) (AU
noting that Dr. Monsivais did not examine Plaintiff's back).4 Finally, the AU noted that the State
Disability Determination Service's ("DDS") medical consultants, who have experience assessing
impairments for DDS, both determined, on review of Plaintiff's medical record, that Plaintiff had
no severe impairments. (R. 28). As such, the AU properly considered all the required factors
before giving little weight to Dr. Monsivais 'S opinion.
Dr. Monsivais's specialty is hand surgery, as noted in the opinion he provided. (R. 256).
12
Additionally, "good reasons" were given to give little weight to Dr. Monsivais's opinion.
Particularly, the AU focuses on the inconsistencies in Plaintiff's and Dr. Monsivais's statements.
(R. 25-28). The AU gave little weight to Dr. Monsivais' s opinion "because it was inconsistent
with his subsequent examinations findings and the record as a whole." (R. 27). In a September 23,
2015 physical examination with Dr. Monsivais, he assessed decreased median nerve distributions
on both of Plaintiff's hands, and positive Tinel's signs at the median and ulnar nerves on both
hands. (R. 259). Dr. Monsivais also diagnosed Plaintiff with carpal tunnel syndrome during the
same examination. (R. 259). However, Plaintiff showed normal strength and a full range of motion
in her hands. (R. 259). Moreover, in the July 2016 examination with Dr. Monsivais, Plaintiff was
found negative for carpal and cubital tunnel syndrome by electrodiagnostic testing. (R. 275).
Likewise, the AU stated that Dr. Monsivais's opinion that Plaintiff had "significant limitations"
with,
inter a/ia,
pushing were inconsistent with Dr. Monsivais ' s subsequent finding that Plaintiff
retained full range of motion and strength. (R. 27-28). Lastly, the AU questions the basis for Dr.
Monsivais's opinions as to Plaintiff's limitations due to her back condition, when there is no
indication that the doctor examined Plaintiff's back. (R. 27).
The AU also describes inconsistencies with Plaintiff's testimony. The AU notes that
although Plaintiff's medically determinable impairments "could reasonably be expected to
produce the alleged symptoms," Plaintiff's "statements concerning the intensity, persistence, and
limiting effects of these symptoms are not entirely consistent with the medical evidence and the
other evidence in the record." (R. 25). The AU also points out that Plaintiff's reported activities
of, inter a/ia,
carrying groceries and sitting in church services, are "inconsistent with the alleged
limiting effects of her symptoms or alleged side-effects of her medications." (R. 27). For all of
13
these reasons, the Court finds that the AU gave "good reasons" to give little weight to Dr.
Monsivais's opinion.
Accordingly, the Court finds that even if the AU
§
was required to address the
404.1527(c) and 416.927(c) factors, he did so as described above. Moreover, the AU gave
"good reasons" to give little weight to Dr. Monsivais's opinion in his analysis of the
inconsistencies in Dr. Monsivais's opinions and Plaintiff's self-reporting when compared to the
medical record evidence, in accordance with 20 C.F.R.
ii.
Even
f the AU
§§
404.1527(c) and 416.927(c).
did err, Plaintiff has not shown prejudice warranting remand.
Plaintiff argues that she has been prejudiced because the AU did not follow the correct
legal standards, and thereby the AU prematurely ended the evaluation process. (P1. 's Br.,
ECF
No. 16, at 6). Plaintiff alleges that "it is likely that Dr. Monsivais could have provided sufficient
reasoning to support his opinion, clarify any inconsistencies and fill any gaps." Id. In response,
Commissioner argues that Plaintiff has the burden to show that there was prejudice, and that
Plaintiff failed to meet this burden because Plaintiff has not shown that there is a "realistic
possibility" that the AU would reach a different result. (Comm'r's Br., ECF No. 17, at 7).
Even if the AU erred, remand is only warranted if prejudice resulted from the error. Jones,
691 F .3 d at 733. The party seeking to overturn the AU' s decision has the burden to show prejudice.
Id. at 734-35. To establish prejudice, Plaintiff must show that she "could and would have adduced
evidence that might have altered the result." Kane v. Heckler, 731 F.2d 1216, 1220 (5th Cir. 1984).
Plaintiff has not shown any prejudice warranting remand. Unlike the AU in Kane, who
terminated the hearing after five minutes, the AU here ended the hearing after about 45 minutes.
See (R. 38, 52). For the reasons previously discussed, substantial evidence supports the
AU's
decision and Plaintiff has not shown, or argued with any specificity, that it is likely that Dr.
14
Monsivais would have supported his opinion, clarified inconsistencies or filled gaps. Thus,
Plaintiff has failed to show that there was any prejudice warranting remand.
Accordingly,
III.
CONCLUSION
IT IS ORDERED that the decision of the Commissioner will be AFFIRMED.
SIGNED and ENTERED this
/
day of September, 2019.
/4/iiiiiT
MIGUEL A. ORRES
UNITED STATES MAGISTRATE JUDGE
15
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