Venegas v. Commissioner of Social Security
Filing
14
MEMORANDUM OPINION AND ORDER re 3 Complaint filed by Leslie Venegas. Signed by Judge Anne T. Berton. (jg1)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
LESLIE VENEGAS,
Plaintiff,
v.
MARTIN O’MALLEY, Commissioner of
Social Security Administration,
Defendant.
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EP-24-CV-00005-ATB
MEMORANDUM OPINION AND ORDER
This is a civil action seeking judicial review of an administrative decision by the Social
Security Administration (SSA). Pursuant to 42 U.S.C. § 405(g), Plaintiff Leslie Venegas, the
claimant at the administrative level, appeals from the final decision of Defendant Martin
O’Malley, the SSA’s Commissioner, denying her claims for disability insurance benefits (DIB)
and supplemental security income (SSI) under Titles II and XVI of the Social Security Act, 42
U.S.C. § 401, et seq., and § 1382, et seq. The parties consented to have a magistrate judge
conduct all proceedings, including the entry of final judgment. For the reasons that follow, the
Court finds that the Commissioner’s decision should be AFFIRMED.
I. BACKGROUND
On August 8, 2019, Venegas, then 29 years old, applied for DIB and SSI, claiming
disability beginning on October 26, 2018.1 When she was in middle school, Venegas was
1
Tr. of Admin. R. at 34 [hereinafter “Tr.”]. Previously, in 2017, Venegas also applied for DIB
and SSI, claiming disability beginning on January 1, 2016. Id. at 144. On October 25, 2018, an
Administrative Law Judge (ALJ), Robert McPhail, denied those claims, id. at 155, and on July 19, 2019,
the Social Security Appeals Council denied her request for review of ALJ McPhail’s decision, id. at 160.
diagnosed with myasthenia gravis,2 and recently, she was diagnosed with asthma.3 For her
myasthenia gravis, she receives intravenous immunoglobulin (IVIG) infusions, most recently,
once in every three weeks.4 Venegas alleged disability based on myasthenia gravis, asthma,
breathing problems, and muscle weakness.5 She has a high school education, attended two years
of college, and in 2012, obtained a degree as a medical assistant.6 In the past, she worked as an
office administrative clerk and as a home healthcare provider.7
Venegas’s claims were denied initially on December 5, 2019, and on reconsideration on
March 24, 2020. Thereafter, in April 2020, Venegas requested a hearing before an ALJ. After
multiple postponements and rescheduling due in part to COVID,8 an in-person hearing was held
before ALJ Gordan Momcilovic on April 18, 2023; at the hearing, Venegas, who was
represented by her attorney, testified, and so did a vocational expert. On May 24, 2023, the ALJ
issued a written decision denying Venegas’s claims for disability benefits. Venegas then
administratively appealed the decision, but on September 25, 2023, the Appeals Council denied
2
Id. at 661; see also id. at 417, 642, 687. “Myasthenia gravis is an immunological disorder of
neuromuscular transmission, marked by fluctuating weakness, especially of the eye, face, and limb trunk
muscles, that characteristically increases with activity.” Henderson ex rel. N.T. v. Astrue, 401 F. App’x
449, 450 n.1 (11th Cir. 2010).
3
Tr. at 706, 711.
4
Id. at 61.
5
Id. at 388, 417.
6
Id. at 57, 389.
7
Id. at 379, 405, 455.
8
E.g., id. at 183, 198–99, 224, 230, 246, 282, 302, 308.
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her request for review; as a result, the ALJ’s decision became the final decision of the
Commissioner.9
On January 4, 2024, Venegas, proceeding in forma pauperis, brought this action seeking
judicial review of the Commissioner’s final decision pursuant to 42 U.S.C. § 405(g). On July 12,
2024, Venegas filed her opening brief, requesting that the Court reverse the Commissioner’s
decision and remand her claims for further administrative proceedings. Pl.’s Br. at 2, 13, 18,
ECF No. 9. On August 12, 2024, the Commissioner filed a response to Venegas’s brief,
requesting that the Court affirm the Commissioner’s decision. Br. in Supp. of Comm’r’s
Decision at 10 [hereinafter “Def.’s Resp.”], ECF No. 11. Venegas did not file a reply.
II. THE SEQUENTIAL EVALUATION PROCESS
AND THE ALJ’S FINDINGS AND CONCLUSIONS
Eligibility for DIB or for SSI on the basis of disability requires that the claimant be
“disabled” within the meaning of the Social Security Act. 42 U.S.C. §§ 423(a)(1)(E), 1382(a).10
The Act defines “disability” as an “inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment . . . which has lasted or can
be expected to last for a continuous period of not less than 12 months.” Id. §§ 423(d)(1)(A),
1382c(a)(3)(A). “A claimant has the burden of proving [she] suffers from a disability.” Garcia
v. Berryhill, 880 F.3d 700, 704 (5th Cir. 2018).
To determine disability, the Commissioner uses a sequential, five-step approach, which
considers:
9
See Masterson v. Barnhart, 309 F.3d 267, 271 (5th Cir. 2002) (“The ALJ’s decision thus
became the Commissioner’s final and official decision when the Appeals Council denied [the claimant’s]
request for review on the merits.”).
10
See also Lyon v. Bowen, 802 F.2d 794, 796 (5th Cir. 1986) (“To be eligible for SSI an
individual must be aged, blind, or disabled as defined in 42 U.S.C. § 1382c and have income and
resources below the levels specified in 42 U.S.C. § 1382a.” (emphasis added)).
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(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.
Kneeland v. Berryhill, 850 F.3d 749, 753 (5th Cir. 2017) (cleaned up); see also 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4).11 “The burden of proof is on the claimant at the first four steps,”
Kneeland, 850 F.3d at 753, and if she gets past these steps, “the burden shifts to the
Commissioner on the fifth step to prove the claimant’s employability,” Keel v. Saul, 986 F.3d
551, 555 (5th Cir. 2021). A determination at any step that the claimant is disabled or is not
disabled “ends the inquiry.” Id.
Before going from step three to step four, the Commissioner assesses the claimant’s
residual functional capacity (RFC). Kneeland, 850 F.3d at 754. “The claimant’s RFC
assessment is a determination of the most the claimant can still do despite his or her physical and
mental limitations and is based on all relevant evidence in the claimant’s record.” Id. (brackets
omitted); see also 20 C.F.R. §§ 404.1520(e), 404.1545(a)(1), 416.920(e), 416.945(a)(1). “The
RFC is used in both step four and step five to determine whether the claimant is able to do her
past work or other available work.” Kneeland, 850 F.3d at 754.
Here, ALJ Momcilovic evaluated Venegas’s claims pursuant to the above-mentioned
five-step sequential evaluation process. At step one, the ALJ found that Venegas had not
engaged in substantial gainful activity since October 26, 2018, her alleged disability onset date.
11
“‘The relevant law and regulations governing the determination of disability under a claim for
[DIB] are identical to those governing the determination under a claim for [SSI].’” Undheim v. Barnhart,
214 F. App’x 448, 449 n.1 (5th Cir. 2007) (quoting Davis v. Heckler, 759 F.2d 432, 435 n.1 (5th Cir.
1985)). Part 404 of 20 C.F.R. relates to DIB, see 20 C.F.R. § 404.1, whereas Part 416 relates to SSI, see
20 C.F.R. § 416.101. As relevant here, the regulations are not materially different; so, hereinafter, the
Court may cite to Parts 404 and 416 interchangeably. See Sun v. Colvin, 793 F.3d 502, 506 n.1 (5th Cir.
2015).
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Tr. at 36. At step two, the ALJ determined that Venegas had the following severe impairments:
myasthenia gravis and major depressive disorder with anxious distress. Id. The ALJ also noted
that Venegas’s asthma, intramural uterine fibroid status-post open myomectomy, menorrhagia or
dysmenorrhea with sequela of iron deficiency anemia, hair loss, axillary hidradenitis suppurativa,
and hyperglycemia were non-severe impairments. Id. at 37. At step three, the ALJ found that
Venegas’s impairments, alone or in combination, did not meet or equal the severity of any
impairments listed in 20 CFR Part 404, Subpart P, Appendix 1 (the Listing of Impairments) that
lead to automatic findings of disability. Id.
Next, before going to step four, the ALJ determined that Venegas retained the RFC to
perform “light work” as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) with some
additional restrictions: she could not climb ladders, ropes, and scaffolds though she could engage
in all other postural activities occasionally, and she could understand, remember, and carry out
simple job instructions and work-related tasks. Tr. at 38.
At step four, the ALJ found, based upon the vocational expert’s testimony, that Venegas
could not perform her past relevant work, i.e., administrative clerk and companion, because the
demands of her past work exceeded her RFC. Tr. at 42–43. At step five, the ALJ found, again
based upon the vocational expert’s testimony, that given Venegas’s age, education, work
experience, and RFC, she could work as an office helper, counter clerk, and routing clerk, and
that these jobs existed in significant numbers in the national economy. Id. at 43–44. The ALJ
concluded that Venegas was not disabled under the Act and therefore, was not entitled to
disability benefits. Id. at 31, 44.
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III. STANDARDS FOR JUDICIAL REVIEW
Judicial review, under 42 U.S.C. § 405(g), of the Commissioner’s decision denying social
security benefits is “highly deferential.” Garcia, 880 F.3d at 704. Courts review the
Commissioner’s decision “only to ascertain whether (1) the final decision is supported by
substantial evidence and (2) whether the Commissioner used the proper legal standards to
evaluate the evidence.” Webster v. Kijakazi, 19 F.4th 715, 718 (5th Cir. 2021) (quotation marks
and citation omitted).
Substantial evidence is “more than a mere scintilla,” Biestek v. Berryhill, 587 U.S. 97,
103 (2019), but “less than a preponderance of the evidence,” Schofield v. Saul, 950 F.3d 315, 320
(5th Cir. 2020). “It means—and means only—such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Biestek, 587 U.S. at 103 (internal quotes
omitted). “And whatever the meaning of ‘substantial’ in other contexts, the threshold for such
evidentiary sufficiency is not high.” Id. “A finding of no substantial evidence is appropriate
only if no credible evidentiary choices or medical findings support the decision.” Whitehead v.
Colvin, 820 F.3d 776, 779 (5th Cir. 2016).
In reviewing the Commissioner’s decision, “the court scrutinizes the record to determine
whether [substantial] evidence is present.” Sun, 793 F.3d at 508. It however may not “try the
issues de novo” or “reweigh the evidence.” Salmond v. Berryhill, 892 F.3d 812, 817 (5th Cir.
2018). “[N]or, in the event of evidentiary conflict or uncertainty,” may the court substitute its
judgment for the Commissioner’s, “even if [it] believe[s] the evidence weighs against the
Commissioner’s decision.” Garcia, 880 F.3d at 704. “Conflicts of evidence are for the
Commissioner, not the courts, to resolve.” Sun, 793 F.3d at 508.
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IV.
DISCUSSION
As mentioned above, the Court’s review of the Commissioner’s decision denying benefits
is limited to two inquiries: whether the decision is supported by substantial evidence and whether
the Commissioner used the proper legal standards. Garcia, 880 F.3d at 704, supra. Venegas
assigns two errors to ALJ Momcilovic’s decision. First, she argues that the ALJ erred in failing
to consider and evaluate her hearing testimony. Pl.’s Br. at 7, 9–13. Second, she argues that the
ALJ’s persuasiveness evaluation of the medical opinion of Dr. Darine Kassar, Venegas’s treating
neurologist, is not supported by substantial evidence. Id. at 7, 13–18. Below, the Court
addresses each in turn.
A. Consideration and Evaluation of Hearing Testimony
In determining a claimant’s RFC, an ALJ must consider “all of the relevant medical and
other evidence” including the claimant’s own “descriptions and observations of [her] limitations
from [her] impairment(s), including limitations that result from [her] symptoms, such as pain.”
20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). The ALJ is required to “evaluate the intensity and
persistence of [her] symptoms,” considering “all of the available evidence, including [her]
medical history, the medical signs and laboratory findings, and statements about how [her]
symptoms affect her.” Id. §§ 404.1529(c), 416.945(c). Social Security Ruling (SSR) 16-3p, a
sub-regulatory policy, explains that ALJs will assess whether the “individual’s statements about
the intensity, persistence, and limiting effects of symptoms are consistent with the objective
medical evidence and other evidence of record.” SSR 16-3p, 2016 WL 1119029, *7 (SSA Mar.
16, 2016) (superseding SSR 96-7p, 1996 WL 374186 (July 2, 1996), which governed evaluation
of symptoms and assessment of “credibility” of an individual’s statements)).12
12
Effective March 28, 2016, the SSA eliminated the use of the term “credibility” in the subregulatory policy and stressed that when evaluating a claimant’s symptoms, the agency adjudicators will
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Here, the ALJ found that although Venegas’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms, her “statements concerning the intensity,
persistence and limiting effects of these symptoms are not entirely consistent with the medical
evidence and other evidence in the record.” Tr. at 39. After discussing Venegas’s allegations
from two Function Reports (Exhibits B4E and B8E) that she submitted at the initial and
reconsideration stages of the administrative review process and the treatment notes from no
fewer than eleven neurology, primary-care, and emergency-room visits between August 2018
and February 2023—the ALJ summarized his assessment of Venegas’s descriptions and
observations about her symptoms and limitations as follows:
Considering the foregoing, the claimant’s allegations have some support in the
record, though not to the extent alleged. The records do document reports of
weakness and fatigue partially substantiated by some abnormal exam findings.
However, the records also show good management of her myasthenia gravis with
treatment. Additionally, physical exams in the record show largely normal
findings, including no acute distress, normal speech, no aphasia, intact cognition,
normal rapid alternating movements, no weakness or ataxia, grossly intact cranial
nerves, no respiratory distress, normal gait and posture, normal motor strength and
sensation, no focal neurological deficits, normal reflexes, and ability to rise from
chair without hands (B2F/16-19; B4F/2-6; B5F/15-19; B7F/86).
Id. at 41.
Venegas argues that the ALJ erred because he failed to consider or evaluate13 her
testimony at the hearing. Pl.’s Br. at 11, 18. She points out that at the hearing, she described
various symptoms of her myasthenia gravis; her weakness that makes it difficult for her to walk
and tend to her personal needs at times; her abilities to stand, walk, and lift objects; her daily
“not assess an individual’s overall character or truthfulness in the manner typically used during an
adversarial court litigation.” SSR 16-3p, 2016 WL 1119029, *1, 10.
13
In the parlance used by the SSA, “evaluate” implies “a need to provide written analysis,”
whereas “consider” does not. Revisions to Rules Regarding Evaluation of Medical Evidence, 82 Fed.
Reg. 5844, 5855–56, 2017 WL 168819 (SSA Jan. 18, 2017).
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activities; and the side effects of her medication and treatments. Id. at 10–11 (citing Tr. at 60–
69). She points out that in his decision, the ALJ expressly considered her “written statements” in
the Function Reports mentioned above but faults the ALJ for providing no “assessment or
consideration” of her hearing testimony. Id. at 11. She contends that remand is required so that
her testimony may be considered in the adjudication of her claims. Id.
The Commissioner concedes that the ALJ did not discuss Venegas’s testimony in his
decision but points out that her hearing statements are similar to her statements in the Function
Reports and her reports in numerous medical records. Def.’s Resp. at 5. Because the ALJ
expressly considered these statements and reports, the Commissioner argues, the ALJ properly
considered Venegas’s symptoms notwithstanding the omission of a specific discussion of her
testimony. Id. at 5–6.
The Court cannot agree with Venegas that the ALJ failed to consider her hearing
statements. At the conclusion of the hearing, the ALJ acknowledged Venegas’s testimony, Tr. at
76, and in his decision, he noted that Venegas testified at the hearing, id. at 34. Elsewhere in the
decision, the ALJ stated that he considered “all the evidence” in the record, id. at 35, and in
particular, in assessing Venegas’s RFC, he stated that he “considered all symptoms and the
extent to which these symptoms can reasonably be accepted as consistent with the objective
medical evidence and other evidence, based on the requirements of 20 [C.F.R. §§] 404.1529 and
416.929 and SSR 16-3p,” id. at 38. Simply because the ALJ did not discuss Venegas’s hearing
statements does not mean that the ALJ did not consider them. See Castillo v. Barnhart, 151 F.
App’x 334, 335 (5th Cir. 2005) (“That the ALJ did not specifically cite each and every piece of
medical evidence considered does not establish an actual failure to consider the evidence.”); Wall
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v. Astrue, 561 F.3d 1048, 1070 (10th Cir. 2009) (Where “the ALJ indicates he has considered all
the evidence[,] our practice is to take the ALJ at his word.” (cleaned up)).14
The vast majority of Venegas’s hearing statements are cumulative of her written
statements in the Function Reports as well as her subjective reports in the medical records—that
the ALJ expressly considered. For example, she testified that when her myasthenia gravis
exacerbates, she experiences double vision, trouble talking, trouble eating, and trouble
swallowing, Tr. at 60, and the ALJ, citing to Venegas’s Function Reports, recounted her written
allegations that “her impairments . . . cause her to experience weakness, blurred vision, slurred
speech, difficulty breathing, fatigue, and difficulty chewing and swallowing,” id. at 39. She
testified that because of her myasthenia gravis, she experiences weakness on the right side of her
body, Tr. at 60–61, and the ALJ recounted from treatment notes, inter alia, from a May 2020
appointment that she “reported experiencing increased weakness,” id. at 40 (citing Tr. at 687),
and from an April 2022 appointment that “she reported some recurrent weakness,” id. at 41
(citing Tr. at 1212). Whereas she testified that she could sit for no more than an hour, stand for
only 10-15 minutes, and walk for 10-15 minutes before needing to stop and rest, id. at 67–68, she
stated in her Function Reports that her conditions affected her abilities to sit, stand, and walk,
and that she could walk one block before needing to stop and rest, id. at 401, 428. The ALJ,
citing the Reports, noted that Venegas reported being unable to walk long distances or sit and
stand for extended periods. Id. at 39.
As for the remaining hearing statements to which Venegas directs the Court’s attention,
the ALJ’s discussion of the medical records suggests that he considered them but found them to
14
See also Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005) (Although the ALJ must build
“a logical bridge” from the evidence to his conclusion, he “need not . . . provide a complete written
evaluation of every piece of testimony and evidence.” (internal quotes and citations omitted)).
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be exaggerated. For example, Venegas testified that she could lift at most 5 pounds, Tr. at 67,
and in her Function Reports, she stated that her conditions affected her ability to lift, id. at 428,
and even alleged that she could not do any lifting, id. at 401 (“Because of illness and condition[,]
I am unable to perform any of the items above.”). Although the ALJ did not discuss these
statements, he recounted relevant objective medical evidence that weighs in favor of a finding of
exaggeration. Compare, e.g., id. at 40 (recounting that exams in March 2019 showed “no
weakness or ataxia, and normal strength and tone in all extremities” (citing Tr. at 605–06)), id.
(recounting that exams in July 2021 showed “normal reflexes, coordination, gait, muscle
strength, and tone” and “normal extremity strength” (citing Tr. at 865)), and id. at 41 (recounting
that exams in February 2023 showed “normal range of motion and strength” (citing Tr. at 1263),
with id. at 40 (recounting that exams during a neurology follow-up visit in May 2020 showed
“significant proximal weakness” but also nothing that her IVIG infusion was discontinued two
months prior (citing Tr. at 685, 687, 691)). Ultimately, the ALJ concluded that Venegas’s
“reports of weakness and fatigue [are] partially substantiated by some abnormal exam findings”
and that her “allegations have some support in the record, though not to the extent alleged.” Id.
at 41; see also Clary v. Barnhart, 214 F. App’x 479, 482 (5th Cir. 2007) (“Obviously, the
evaluation of a claimant’s subjective symptoms is a task particularly within the province of the
ALJ.” (internal quotes omitted)); Hollis v. Bowen, 837 F.2d 1378, 1385 (5th Cir. 1988) (The ALJ
is not required to “give subjective evidence precedence over medical evidence.”).
Similarly, regarding side effects of her medications and treatments, and her daily
activities, Venegas testified: her medications cause nausea, diarrhea, and sleepiness; during the
day, she takes two to three breaks; and during those breaks, she sleeps or just lays down in bed,
though she mostly sleeps because the pills make her sleepy. Tr. at 63–64. In her Function
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Reports, she stated that she experiences nausea and drowsiness from her pills, and headaches and
nose bleedings from IVIG infusions, id. at 403, and she also stated that after waking up in the
morning, she takes her medications, eats, and then lays down to rest, id. at 424. In his decision,
the ALJ recounted from treatment notes from a neurology follow-up visit in January 2021 that
she reported medication compliance “without any major side effects.” Id. at 40 (citing Tr. at 912
(“She is compliant with her medications for MG [i.e., myasthenia gravis]. Without any major
side effects.” (treatment notes))). The same treatment notes indicate that her IVIG infusion
caused no major side effects. Id. at 912. According to treatment notes from another
appointment, “[w]ith IVIG, at times she has headache, but it is tolerable.” Id. at 862. Further,
the ALJ recounted from treatment notes from an appointment in August 2018 that she “reported
being able to independently perform activities of daily living.” Id. at 39 (citing Tr. at 608
(treatment notes)). From these, the ALJ could reasonably conclude, as he did, that Venegas’s
“allegations have some support in the record, though not to the extent alleged.” Id. at 41.
In sum, although an explicit mention of some of Venegas’s testimony about her
impairments, symptoms, limitations, and daily activities would have been helpful, the ALJ’s
omission of her testimony in his decision does not require remand because Venegas’s statements
at the hearing are largely cumulative of her allegations and subjective reports in the Function
Reports and in the medical records that the ALJ expressly considered, and further because the
ALJ’s discussion of the medical evidence indicates that he considered her hearing statements but
found them to be exaggerated. See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir.
2012) (rejecting argument that the ALJ’s decision did not adequately evaluate and discuss certain
evidence and stating, “[w]here . . . we can follow the adjudicator’s reasoning . . . , merely
technical omissions . . . do not dictate reversal”); Bennett v. Berryhill, No. CV 17-2671-KHV,
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2018 WL 6267767, at *10 (D. Kan. Nov. 30, 2018) (“An ALJ’s failure to discuss evidence that is
largely cumulative of other evidence is not grounds for remand.” (citing Davis v. Astrue, 237 F.
App’x 339, 342 (10th Cir. 2007)); Lord v. Apfel, 114 F. Supp. 2d 3, 13 (D.N.H. 2000) (“Courts
have held that an ALJ’s failure to address a specific piece or pieces of evidence did not
undermine the validity of her conclusion, . . . when that conclusion was supported by citations to
substantial medical evidence in the record and the unaddressed evidence was . . . cumulative of
the evidence discussed by the ALJ.” (collecting cases)).
B. Persuasiveness Evaluation of Dr. Kassar’s Opinions
For benefits claims filed on or after March 27, 2017, such as Venegas’s claims here, the
SSA enacted substantial revisions to the regulations governing the evaluation of medical opinion
evidence. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg.
5844, supra. Under the new regulations, ALJs “will not defer or give any specific evidentiary
weight, including controlling weight, to any medical opinion(s) . . . from [a claimant’s] medical
sources,” including the opinion of the claimant’s treating physician. 20 C.F.R. §§ 404.1520c(a),
416.920c; see also Webster, 19 F.4th at 718–19 (stating that “ALJs are no longer required to give
controlling weight to a treating physician’s opinion, as was mandated by federal regulations and
our caselaw in the past”); compare Leggett v. Chater, 67 F.3d 558, 566 (5th Cir. 1995)
(explaining that under the so-called “treating-physician rule,” the opinions of a claimant’s
treating physicians are entitled to “great weight”), with Harner v. Soc. Sec. Admin., Comm’r, 38
F.4th 892, 897 (11th Cir. 2022) (“In 2017, the Commissioner eliminated the treating-physician
rule.”).
Instead, for claims filed after March 27, 2017, an ALJ must, considering several specified
factors, “articulate in [his] . . . decision how persuasive [he] find[s] all of the medical opinions
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and all of the prior administrative medical findings” in the record. 20 C.F.R. §§ 404.1520c(b),
416.920c(b); see also id. §§ 404.1520c(c)(1)–(5), 416.920c(c)(1)–(5) (listing factors). “[T]he
most important factors” are “supportability” and “consistency,” and the ALJ must “explain how
[he] considered the supportability and consistency factors for a medical source’s medical
opinions or prior administrative medical findings.” Id. §§ 404.1520c(b)(2), 416.920c(b)(2). The
ALJ however need not explain how he considered the remaining factors, such as the medical
source’s “specialization,” “relationship to the claimant,” and “understanding of [the SSA’s]
disability program’s policies and evidentiary requirements”—unless “two or more medical
opinions or prior administrative medical findings about the same issue are both equally wellsupported and consistent with the record,” id. §§ 404.1520c(b)–(c), 416.920c(b)–(c), a condition
that is not present here.
Dr. Kassar rendered her opinion on a check-box and fill-in-the-blank form, entitled
Medical Release/Physician Statement (MRPS); she completed the MRPS in April 2022 for
purposes of Venegas’s application for food stamps before the Texas Health and Human Services
Commission. Tr. at 42, 1218. Specifically, for standing, Dr. Kassar checked the box indicating
that Venegas could perform the activity for a maximum of two hours per workday; for walking,
she did the same; for sitting, she checked the box for “other”; and for lifting, she wrote “none,”
without checking any box.15 Id. at 1218. Following the check-box section of the MRPS, Dr.
Kassar stated that Venegas may not lift or carry objects more than 10 pounds for more than 1
hour per day. Id. at 1219. She also wrote “myasthenia gravis” in a box labeled “primary
disabling diagnosis,” and in response to the question, “any other remarks, recommendations or
15
To indicate the maximum hours per workday that an applicant can perform the listed activities,
the MRPS form instructs its respondent to select one of the five boxes for each listed activity,
respectively, representing 2 hours, 4 hours, 6 hours, 8 hours, and “other.” Tr. at 1218.
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restrictions?” she wrote that Venegas “has an auto-immune disorder that could be doing well for
a while[,] then exacerbates.” Id.
In evaluating the MRPS, the ALJ stated that Dr. Kassar assessed that Venegas is unable
to sustain even “sedentary work”16 and determined that this assessment was not persuasive. Tr.
at 42. The ALJ explained that Dr. Kassar’s assessment was conclusory and her own treatment
records did not support her assessment. Id. Further, the ALJ found, Dr. Kassar’s assessment
was not consistent with prior assessments of the state agency physicians, Dennis Pacl, M.D. and
Randal Reid, M.D., or with Venegas’s own reports of her ability to perform activities of daily
living. Id. Dr. Pacl and Dr. Reid had reviewed the record evidence and provided their
assessments, respectively, at the initial and reconsideration stages of the administrative review
process.
1. Supportability
“Supportability” is the degree to which a provider supports her medical opinion by
relevant objective medical evidence and explanations. 20 C.F.R. §§ 404.1520c(c)(1),
416.920c(c)(1). Venegas argues that the ALJ’s supportability-factor analysis is not supported by
substantial evidence. Pl.’s Br. at 18. The Court disagrees.
First, the ALJ found that Dr. Kassar’s assessment was “conclusory.” Tr. at 42. Dr.
Kassar stated that her myasthenia gravis could be doing well for a while, then exacerbates, but
that statement does not explain, why, for example, she assessed that Venegas could not lift or
carry more than 10 pounds for more than 1 hour per day or that she could walk a maximum of
16
See 20 C.F.R. § 404.1567(a) (“Sedentary work involves lifting no more than 10 pounds at a
time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a
sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often
necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally
and other sedentary criteria are met.”).
- 15 -
two hours per workday. Dr. Kassar provided no further statements, nor did she mention any
supporting objective tests and examinations. So, the ALJ’s characterization of Dr. Kassar’s
opinion as “conclusory” was reasonable.17
Second, the ALJ explained that Dr. Kassar’s own treatment records do not support her
assessment of Venegas’s abilities because the records show good management of her myasthenia
gravis with treatment. Tr. at 41–42; see also Adams v. Soc. Sec. Admin., Comm’r, No. 23-11233,
2024 WL 2846726, at *3 (11th Cir. June 5, 2024) (unpublished) (“‘[C]heck box’ opinions cannot
be dismissed as conclusory on that basis alone and should be read in light of the provider’s
treatment notes.” (citing Schink v. Comm’r of Soc. Sec., 935 F.3d 1245, 1262 (11th Cir. 2019))).
To illustrate, the ALJ pointed out that the records from Venegas’s appointment with Dr. Kassar
in March 2019 describe Venegas as doing well, and exams at this appointment showed no
weakness or ataxia, intact cognition, normal posture, and normal strength in all extremities. Tr.
at 42 (citing Tr. at 603–06).
Moreover, throughout his written decision, the ALJ discussed Dr. Kassar’s other
treatment notes that further support a finding of good management of Venegas’s myasthenia
gravis with treatment. For example, the ALJ noted that after her IVIG infusion was discontinued
in March 2020,18 she reported during a visit in May 2020 that she was experiencing increased
17
Cf. Thomas v. Berryhill, 881 F.3d 672, 675 (8th Cir. 2018) (concluding that ALJ did not err
discounting a treating physician’s assessments because they “consist of nothing more than vague,
conclusory statements—checked boxes, circled answers, and brief fill-in-the-blank responses,” and
“[t]hey cite no medical evidence and provide little to no elaboration” (applying pre-2017 regulations
governing medical opinions)); Foster v. Astrue, 410 F. App’x 831, 833 (5th Cir. 2011) (finding that
treating physician’s opinion was not entitled to considerable weight because of “its brevity and
conclusory nature, lack of explanatory notes, or supporting objective tests and examinations” (same)).
18
“Her IVIG infusion was discontinued in March [2020] as plan to wean off IVIG.” Tr. 687
(treatment notes from May 12, 2020 follow-up visit).
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weakness, difficulty swallowing, and shortness of breath, and that the treatment notes from that
visit showed a plan to restart her IVIG incursion. Tr. at 40 (citing Tr. at 687–91). The ALJ also
recounted from treatment notes of Venegas’s next follow-up visit in July 2020 that after her
infusion was restarted, her symptoms improved, she returned to baseline, and she reported being
content with her improvement. Id. (citing Tr. at 682).19 As another example, the ALJ noted that
at Venegas’s follow-up visit with Dr. Kassar in April 2022, Venegas continued to report feeling
good on her medication regimen. Id. at 41 (citing Tr. at 1212).20 At the conclusion of the ALJ’s
discussion of Dr. Kassar’s treatment notes from Venegas’s visits between August 2018 and
February 2023—the ALJ deduced that physical exams in the record show largely normal
findings, including no weakness or ataxia, normal gait and posture, normal motor strength,
normal reflexes, and ability to rise from chair without hands. Id. at 41 (citing Dr. Kassar’s
treatment notes).
The Court therefore finds that the ALJ’s supportability analysis and finding are supported
by substantial evidence. See Kraus v. Saul, 988 F.3d 1019, 1025 (8th Cir. 2021) (concluding that
ALJ properly discredited treating physician’s conclusory opinion on check-box form because the
physician provided no explanation or evidence in support of his conclusions and the opinion was
not consistent with his treatment notes); Johnson v. Bowen, 864 F.2d 340, 348 (5th Cir. 1988)
(“If an impairment reasonably can be remedied or controlled by medication or therapy, it cannot
19
See also Tr. at 682 (“Since last visit patient has been rec[ei]ving IVIG q[uaque] 3 weeks . . . .
She currently reports all of her presenting symptoms from last visit have improved and she has returned to
her baseline. P[atient] is content with this improvement” (treatment notes from May 12, 2020 follow-up
visit)).
20
See also Tr. at 1212 (“She is currently on [M]estinon (pyridostigmine) 60mg q[uaque] 4 hrs,
cellcept (mycophenolate) 1500 mg [twice a day], and IVIG every 3 weeks[,] and prednisone 5 mg (5 days
before menstruation) before her menstruation. She continues to feel good with this regimen.” (treatment
notes from April 22, 2022 follow-up visit)).
- 17 -
serve as a basis for a finding of disability.”); Lovelace v. Bowen, 813 F.2d 55, 59 (5th Cir. 1987)
(“A medical condition that can reasonably be remedied either by surgery, treatment, or
medication is not disabling.”).
Venegas sees things differently. Citing to Dr. Kassar’s treatment notes, Venegas
contends that her myasthenia gravis is “episodic,” in that she experiences periods of relative
improvement and stability punctuated by episodic exacerbations. Pl.’s Br. at 14. That’s why,
Venegas argues, Dr. Kassar remarked on the MRPS that Venegas’s myasthenia gravis could be
doing well for a while, then exacerbates, and assessed her abilities to perform exertional
activities as “quite limited.” Id. at 14–15. Citing to treatment notes from an emergency room
visit in June 2018 and from Venegas’s visits with Dr. Kassar in May 2020, July 2020, and April
2022, Venegas claims that the ALJ cherry-picked some examination findings during her periods
of stability—to portray Dr. Kassar’s assessment as unsupported by the record, but, Venegas
continues, the ALJ “disregarded” evidence showing episodic exacerbations of her conditions. Id.
at 15 (citing Tr., at 481, 685, 687-91, 1212–15). Had the ALJ properly taken into consideration
the “waxing and waning” nature of her myasthenia gravis symptoms, Venegas speculates, he
would have been persuaded by Dr. Kassar’s assessment. Id. at 18.
As an initial matter, although Venegas provides pin citations to the pages of the treatment
notes, she does not specify what particular statements, observations, or diagnoses in the cited
pages she relies on or the ALJ disregarded. As the Commissioner points out, the ALJ discussed
each visit’s treatment notes that Venegas cites. Def.’s Resp. at 7–8. For example, from the notes
from Venegas’s emergency room visit on June 12, 2018,21 which Venegas claims the ALJ
disregarded, the ALJ recounted that she reported worsening weakness and fatigue, but that her
21
She had a “[m]ild exacerbation of myasthenia gravis associated with viral respiratory illness.”
Tr. at 487.
- 18 -
symptoms improved after she was administered a dose of IVIG. Tr. at 39 (citing Tr. at 485).
The ALJ also noted that she was discharged on the following day, with instructions to resume
her home medications, and exams at discharge showed normal findings. Id. (citing Tr. at 481–
85); see also id. at 485 (instructing Venegas to continue her home medications and monthly
IVIG infusion). Likewise, in discussing Dr. Kassar’s April 2022 treatment notes, the ALJ
recognized that Venegas reported some recurrent weakness, eyelid droopiness, and difficulty
swallowing, but also observed that she continued to report feeling good on her medication
regimen. Id. at 41.
The thrust of Venegas’s arguments is that Dr. Kassar’s assessment is consistent with her
treatment notes. But “the question before [the Court] is limited to whether the ALJ’s decision -not Dr. [Kassar]’s opinion -- is supported by substantial evidence. That Dr. [Kassar]’s opinion
might be consistent with some record evidence is not enough to overturn the ALJ’s decision.”
Cf. Vergara v. Comm’r of Soc. Sec., No. 22-11671, 2023 WL 5814433, at *3 (11th Cir. Sept. 8,
2023) (unpublished). “Although [Venegas] may disagree with the ALJ’s [determination]” that
Dr. Kassar’s own treatment records do not support her assessment of Venegas’s abilities, as
mentioned above, “it is supported by substantial evidence.” Cf. Bowers v. Kijakazi, 40 F.4th
872, 875 (8th Cir. 2022) (addressing challenge to ALJ’s persuasiveness evaluation of the
claimant’s treating rheumatologist opinion).
2. Consistency
“Consistency” is the degree to which a provider’s medical opinion is “consistent with the
evidence from other medical sources and nonmedical sources’” in the record. 20 C.F.R. §§
404.1520c(c)(2), 416.920c(c)(2). Venegas argues that the ALJ’s consistency-factor analysis is
not supported by substantial evidence. Pl.’s Br. at 18. Recall that the ALJ determined that Dr.
- 19 -
Kassar’s assessment is not consistent with the assessments of the state agency physicians, Dr.
Pacl and Dr. Reid, or with Venegas’s own reports of her ability to perform activities of daily
living. Tr. at 42. Venegas advances several subsidiary arguments: first attacking the ALJ’s
reliance on the state agency physicians’ assessments and then attacking the ALJ’s consideration
of her reports of daily activities.
(a) ALJ’s Reliance on State Agency Consultants’ Findings in Consistency Analysis
Dr. Pacl and Dr. Reid each determined that Venegas had the RFC to perform “light
work”22 with postural limitations and subsidiarily determined that she could sit, stand, and walk,
each for a total of 6 hours (with normal breaks) in a workday and could lift or carry 20 pounds
occasionally and 10 pounds frequently. Tr. at 97–98, 102, 127–28, 132. But Dr. Kassar assessed
that Venegas could stand and walk for a maximum of two hours per workday and could not lift
or carry objects more than 10 pounds for more than 1 hour per day. Id. at 1218–19. Before
evaluating Dr. Kassar’s assessment, the ALJ evaluated the persuasiveness of Dr. Pacl’s and Dr.
Reid’s assessments. The ALJ found their assessments persuasive, reasoning in part that the state
agency physicians supported their assessments with citations to evidence showing normal
strength, no proximal weakness, normal deep tendon reflexes, and intact cranial nerves. Id. at 41
(citing Tr. at 129).
Venegas argues that the fact that Dr. Kassar’s opinion is not consistent with the opinions
of the state agency consultants has no bearing on the consistency of Dr. Kassar’s opinion with
the other evidence of record. Pl.’s Br. at 15–16. She explains that the opinion of a treating
physician would always be inconsistent with the state agency consultants’ opinions because if it
22
See 20 C.F.R. § 404.1567(b) (“Light work involves lifting no more than 20 pounds at a time
with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may
be very little, a job is in this category when it requires a good deal of walking or standing, or when it
involves sitting most of the time with some pushing and pulling of arm or leg controls.”).
- 20 -
were consistent, the claimant’s benefits claim would be approved at an earlier level of the
administrative review process and therefore, would not be adjudicated by an ALJ. See id. at 16.
She adds that Dr. Kassar is a specialist in neurology and the state agency consultants are not. Id.
(citing 20 C.F.R. § 404.1520c(4), which sets forth the specialization factor for persuasiveness
analysis).23 She contends that Dr. Kassar’s opinion is not inconsistent with the record and “less
persuasive” because it varies from the “less-informed” opinion of the state agency consultants
who have no “first-hand knowledge” of Venegas’s conditions. Id. (citing 20 C.F.R. §
404.1520c(3), which sets forth the “relationship with the claimant” factor, which considers, inter
alia, the length and extent of the treatment relationship).
For several reasons, the Court is not persuaded by Venegas’s arguments. First, the
consistency factor requires comparing a physician’s opinion under review against evidence from
other sources, 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2), but Venegas fails to point to
anything in the regulations that say that a state agency consultant’s assessment and findings do
not qualify as such evidence. Although a state agency consultant’s findings “are not in
themselves evidence at the level of the administrative review process at which they are made,”
id. § 404.1513a, they become evidence for an ALJ’s review process, id. § 404.1513a(b) (An ALJ
must “consider prior administrative medical findings . . . from our Federal or State agency
medical . . . consultants.”); see also id. § 404.1513(a)(5) (defining “prior administrative medical
finding” as one of several categories of evidence).
23
20 C.F.R. § 404.1520c(4) (“The medical opinion or prior administrative medical finding of a
medical source who has received advanced education and training to become a specialist may be more
persuasive about medical issues related to his or her area of specialty than the medical opinion or prior
administrative medical finding of a medical source who is not a specialist in the relevant area of
specialty.” (describing the specialization factor)).
- 21 -
Second, although Venegas emphasizes the specialization factor and the “relationship with
the claimant” factor as they relate to Dr. Kassar’s specialty in neurology and her treatment
relationship with Venegas, the regulations also require an ALJ to consider a medical source’s
“understanding of [the SSA] disability program’s policies.” Id. § 404.1520c(5). The regulations
explain that “[s]tate agency medical . . . consultants are highly qualified and experts in Social
Security disability evaluation.” Id. § 404.1513a(b)(1); see also SSR 17-2p, 2017 WL 3928306,
at *3 (SSA Mar. 27, 2017) (State agency medical consultants “are highly qualified medical
sources who are also experts in the evaluation of medical issues in disability claims under the
Act.”).
Third, the regulatory history surrounding the promulgation of the new rules governing the
evaluation of medical evidence for benefits claims filed on or after March 27, 2017, further
undercuts Venegas’s arguments. In promulgating 20 C.F.R. § 404.1520c, the SSA explained that
the new regulation eliminates confusion about the “hierarchy” of medical sources—i.e.,
according the most weight to treating sources, less weight to examining sources, and the least
weight to non-examining or reviewing sources such as state agency medical consultants—that
was inherent in the former regulation, 20 C.F.R. § 404.1527, and its treating-physician rule.24
Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. at 5853, supra.
In addition, the SSA rejected a recommendation that the agency adjudicators should never
consider evidence from state agency medical consultants to be “more persuasive” than evidence
24
See, e.g., Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (“As a general rule, more
weight should be given to the opinion of a treating source than to the opinion of doctors who do not treat
the claimant. While the opinion of a treating physician is thus entitled to greater weight than that of an
examining physician, the opinion of an examining physician is entitled to greater weight than that of a
non-examining physician.” (citing, among others, § 404.1527(c)(2), (d)(3) (cleaned up)), cited in
Kneeland, 850 F.3d at 760 n.52 (5th Cir. 2017) (“This treating physician regulation currently appears at
20 C.F.R. § 404.1527(c)(2).”).
- 22 -
from a claimant’s own medical source because the consultants are “unqualified.” Id. at 5856. In
so rejecting, the agency explained that it maintains “strict requirements” for who may serve as a
“qualified” state agency medical consultant. Id. These consultants, the agency added, “have
valuable experience in [the] adjudicative processes, and their review of all of the evidence [in the
record] provides them with a comprehensive perspective that other medical sources, including an
individual’s own medical sources, may not have.” Id.
Finally, courts have affirmed an ALJ’s adverse persuasiveness determination of a treating
physician’s opinion where the opinion was not consistent with the opinion of a state agency
medical consultant. See, e.g., Bowers, 40 F.4th at 875–76 (concluding that ALJ properly rejected
claimant’s rheumatologist’s opinion that the claimant’s conditions require extensive exertional
limitations, where state agency physicians reported that he could perform light work and the ALJ
found that the state agency physicians’ opinions were “more consistent” with the medical
records); id. at 876 (“Nor was the ALJ’s reliance on [the state agency physicians’] opinions an
error.”); Vergara, 2023 WL 5814433, at *2 (concluding that ALJ adequately articulated that
treating psychiatrist’s opinion was inconsistent with the overall record, where the ALJ found that
her opinion was inconsistent with the opinions of two state agency psychological consultants);
see also Thompson v. Soc. Sec. Admin., No. 23-30702, 2024 WL 1886757, at *2 (5th Cir. Apr.
30, 2024) (unpublished) (rejecting plaintiff’s argument that ALJ erred by accepting a state
agency consultant’s (Dr. Gruenwald) opinion over an examining consultant’s (Dr. Day) opinion
because Gruenwald was a “non-examining plastic surgeon” and reasoning that the plaintiff offers
no support for her contention that Gruenwald’s specialty as a plastic surgeon is disqualifying and
adding that “[t]o the contrary, because Gruenwald was a state agency consultant, the SSA
- 23 -
regulations required the ALJ to consider Gruenwald’s findings” (citing 20 C.F.R. §§
404.1513a(b)(1), 416.913a(b)(1))).
(b) ALJ’s Consideration of Self-Reported Daily Activities in Consistency Analysis
Citing to Venegas’s Function Reports, the ALJ determined that Dr. Kassar’s assessment
is not consistent with Venegas’s own report of her ability to perform activities of daily living.
Tr. at 42 (citing Tr. at 423–30). Elsewhere in his decision,25 the ALJ noted that Venegas
indicated on the Reports that she could prepare simple meals, perform some light household
chores, drive, go out alone, and shop in stores. Id. at 37 (same). Further, the ALJ recounted that
at a neurology follow-up visit on August 3, 2018 (which was a few days before her alleged
disability onset date), Venegas reported being able to independently perform activities of daily
living. Id. at 39 (citing Tr. at 608). Therefore, the Court is satisfied that substantial evidence
exists to support the ALJ’s consistency determination based on Venegas’s daily activities. See
Riccio v. O’Malley, No. 23-35265, 2024 WL 3898560, at *1 (9th Cir. Aug. 22, 2024)
(unpublished) (concluding that substantial evidence supported ALJ’s evaluation of physician’s
opinion, where the ALJ rejected portions of the opinion because they were inconsistent with the
claimant’s reported activities, which included, among other things, travel, shopping, raising her
grandchildren, and helping others in the community), aff’g No. 3:22-CV-5461-DWC, 2023 WL
2300645, at *3 W.D. Wash. Mar. 1, 2023) (recounting that the physician opined that the claimant
25
See Crum v. Comm’r of Soc. Sec., 660 F. App’x 449, 457 (6th Cir. 2016) (stating—in the
context of reviewing ALJ’s analysis of the consistency factor under pre-2017 regulation, 20 C.F.R. §
404.1527(c)—that although “the ALJ did not reproduce the list of [the claimant’s] treatment records a
second time when she explained why [the claimant’s primary-care physician’s] opinion was inconsistent
with this record[,] . . . it suffices that she listed them elsewhere in her opinion”); Rice v. Barnhart, 384
F.3d 363, 370 n.5 (7th Cir. 2004) (“Because it is proper to read the ALJ’s decision as a whole, and
because it would be a needless formality to have the ALJ repeat substantially similar factual analyses at
both steps three and five, we consider the ALJ’s treatment of the record evidence in support of both his
conclusions at steps three and five.” (internal citation omitted)).
- 24 -
was limited to lifting no more than 20 pounds occasionally and 10 pounds frequently due to the
weakness of her hands and left shoulder).26
Venegas argues that the ALJ made no reference to Venegas’s hearing testimony wherein
she described her daily activities, Pl.’s Br. at 16, but as discussed in Part IV.A of this Opinion,
though the ALJ did not discuss Venegas’s hearing statements in his decision, he considered them
but found them to be exaggerated in view of medical and other evidence. See Tr. at 41
(“Considering the foregoing, [Venegas’s] allegations have some support in the record, though
not to the extent alleged.” (ALJ’s decision)). She also points to treatment notes from her
neurology follow-up visit with Dr. Kassar in March 2019, which show that during that visit,
Venegas reported that she was able to do activities of daily living, but that she had to rest during
the day and take multiple breaks. Id. at 603, cited in Pl.’s Br. at 16–17. Dr. Pacl and Dr. Reid
cited this subjective report in their assessments, id. at 99, 129, but nonetheless assessed less
restrictive exertional limitations than those assessed by Dr. Kassar, and the ALJ found Dr. Pacl’s
and Dr. Reid’s assessments persuasive.27
Venegas’s arguments invite the Court to reweigh evidence, which it may not do. See
Muse v. Sullivan, 925 F.2d 785, 790 (5th Cir. 1991) (“The ALJ as factfinder has the sole
26
See also Esco v. Kijakazi, No. 2:21-CV-119-CWB, 2023 WL 2721006, at *8 (M.D. Ala. Mar.
30, 2023) (concluding that substantial evidence supported ALJ’s determination that consultative
examiner’s opinion—that the claimant “must rest his neck and lie down every hour for relief of neck
pain”—was not consistent with the claimant’s own reports of his daily activities including that he “tended
to his personal care, prepared meals, performed light chores, . . . shopped, [and] drove”), aff’d sub nom.
No. 23-11777, 2024 WL 1156572, at *4 (11th Cir. Mar. 18, 2024) (holding that substantial evidence
supported the ALJ’s persuasiveness analysis of the consultative examiner’s opinion).
27
Cf. Adams, 2024 WL 2846726, at *1, *3 (concluding that substantial evidence supported the
ALJ decision to afford little weight to treating physician’s opinion—that the claimant “would be off task
fifty percent of the time and would fail to report to work twenty-five days a month [due to] her medical
condition”—because “other medical evidence was . . . consistent with episodic back pain that was
responsive to treatment, and her own self-report reflected daily activities exceeding the limitations” the
physician assessed).
- 25 -
responsibility for weighing the evidence.”); Miller v. Kijakazi, No. 22-60541, 2023 WL 234773,
at *4 (5th Cir. Jan. 18, 2023) (unpublished) (stating, in the context of addressing ALJ’s
persuasiveness analysis of medical opinions, that plaintiff “is essentially asking us to reweigh the
evidence . . . which we cannot do”); Nasser v. Comm’r of Soc. Sec., No. 22-1293, 2022 WL
17348838, at *2 (6th Cir. Dec. 1, 2022) (unpublished) (stating that arguments underlying
plaintiff’s objection—that the ALJ misapplied 20 C.F.R. § 404.1520c in evaluating his treating
physician’s opinion—are “a veiled attempt to have us reweigh the evidence”).
In sum, the Court finds that substantial evidence supports the ALJ’s determination that
Dr. Kassar’s assessment was not persuasive.
V.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that the Commissioner’s decision is
AFFIRMED.
So ORDERED and SIGNED this 28th day of January 2025.
____________________________________
ANNE T. BERTON
UNITED STATES MAGISTRATE JUDGE
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