Ana Arenas Cruz v. Kilolo Kijakazi

Filing 19

ORDER --Based on the foregoing, the Court finds that no reversible error was committed during these proceedings and substantial evidence supports the Commissioners finding that Plaintiff is not disabled. Accordingly,IT IS HEREBY ORDERED that the Commissioners decision finding that Plaintiff isnot disabled is AFFIRMED.. Signed by Judge Elizabeth S. Chestney. (mgr)

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
ANA ARENAS CRUZ,
Plaintiff,
vs.
KILOLO KIJAKAZI, ACTING
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

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SA-21-CV-01246-ESC

ORDER
This order concerns Plaintiff’s request for review of the administrative denial of her
application for a period of disability and disability insurance benefits (“DIB”) under Title II. 42
U.S.C. §§ 405(g), 1383(c)(3). On October 4, 2022, the parties appeared through counsel before
the Court for oral argument on the issues raised in this case. After considering Plaintiff’s
Opening Brief [#14], Defendant’s Brief in Support of the Commissioner’s Decision [#15], the
transcript (“Tr.”) of the SSA proceedings [#9], the applicable case authority and relevant
statutory and regulatory provisions, the parties’ oral arguments at the Court’s hearing, and the
entire record in this matter, the Court concludes that no reversible legal error was committed
during the proceedings, and substantial evidence supports the Commissioner’s decision finding
Plaintiff not disabled. The Court will therefore affirm the Commissioner’s decision.
I. Jurisdiction
This Court has jurisdiction to review a decision of the Social Security Administration
pursuant to 42 U.S.C. § 405(g). The undersigned has authority to enter this Order pursuant to 28

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U.S.C. § 636(c)(1), as all parties have consented to the jurisdiction of a United States Magistrate
Judge [#17].
II. Legal Standards
In reviewing the denial of benefits, the Court is limited to a determination of whether the
Commissioner, through the ALJ’s decision,1 applied the proper legal standards and whether the
Commissioner’s decision is supported by substantial evidence. Martinez v. Chater, 64 F.3d 172,
173 (5th Cir. 1995); 42 U.S.C. §§ 405(g), 1383(c)(3). “Substantial evidence is more than a
scintilla, less than preponderance, and is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Villa v. Sullivan, 895 F.2d 1019, 1021–22 (5th Cir.
1990) (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)). The Court may not
reweigh the evidence or substitute its judgment for that of the Commissioner. Newton v. Apfel,
209 F.3d 448, 452 (5th Cir. 2000). Conflicts in the evidence and credibility assessments are for
the Commissioner, not the Court, to resolve. Id. While substantial deference is afforded the
Commissioner’s factual findings, the Commissioner’s legal conclusions, and claims of
procedural error, are reviewed de novo. See Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir.
1994).
In determining if a claimant is disabled, the Commissioner uses a sequential, five-step
approach, which considers whether: (1) the claimant is currently engaged in substantial gainful
activity, (2) he has a severe impairment, (3) the impairment meets the severity of an impairment
enumerated in the relevant regulations, (4) it prevents the claimant from performing past relevant
work, and (5) it prevents him from doing any relevant work. Garcia v. Berryhill, 880 F.3d 700,
In this case, because the Appeals Council declined to review the ALJ’s decision, the
decision of the ALJ constitutes the final decision of the Commissioner, and the ALJ’s factual
findings and legal conclusions are imputed to the Commissioner. See Higginbotham v. Barnhart,
405 F.3d 332, 336 (5th Cir. 2005); Harris v. Apfel, 209 F.3d 413, 414 (5th Cir. 2000).
1

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704 (5th Cir. 2018). If the claimant gets past the first four stages, then the burden shifts to the
Commissioner on the fifth step to prove the claimant’s employability. Id. A finding that a
claimant is not disabled at any point in the five-step review is conclusive and terminates the
analysis.

Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987); see also 20 C.F.R. §

404.1520(a)(4).
III. Factual Background
Plaintiff Ana Arenas Cruz filed her application for DIB on July 3, 2019, alleging
disability beginning May 1, 2019. (Tr. 170.) Plaintiff later amended her disability onset date to
January 1, 2020. At the time of her application, Plaintiff was 57 years old and was working parttime as an Uber driver. (Tr. 170, 200, 243.) Plaintiff completed part of her high-school
education and attended secretary school. (Tr. 200.) Plaintiff has past work experience in
banking, having worked for Wachovia and then Wells Fargo from 1994 to 2019 in the customer
service department, focusing on commercial clients. (Tr. 200, 222–23, 293.) Plaintiff stopped
working due to pain in her back in 2019. (Tr. 249.)
An Adult Function Report completed at the time of her disability application indicates
that Plaintiff had a cyst removed from her spinal cord, which caused nerve damage and
ultimately required a spinal fusion surgery. (Tr. 242.) Plaintiff claims that she suffers from
arthritis and continuous restless leg syndrome as a result of the surgery, as well as depression due
to losing her ability to work in a profession she loved. (Tr. 242, 248.) Plaintiff’s work history
report indicates that Wells Fargo had provided her certain accommodations at work, such as a
sit/stand desk and a bed in her office, but ultimately the pain made working her full-time position
too difficult. (Tr. 229.) Plaintiff also stated that the muscle relaxers she took to manage her pain
caused her to pass out while driving home from work on multiple occasions. (Id.) The medical

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conditions upon which Plaintiff based her initial DIB application are major back problems, two
major back surgeries, ADD, mild depression due to pain, high blood pressure, and cataracts. (Tr.
292.)
Plaintiff’s application was denied initially on April 13, 2020, and again upon
reconsideration on July 30, 2020. (Tr. 59–88.) Following the denial of her claim, Plaintiff
requested an administrative hearing.

Plaintiff and her attorney attended the administrative

hearing before Administrative Law Judge (“ALJ”) Gordan Momcilovic on March 10, 2021. (Tr.
32–58.) Plaintiff and vocational expert (“VE”) Judith Harper provided testimony at the hearing.
(Id.) Plaintiff testified regarding her pain and restless leg syndrome from the surgical nerve
damage, as well as muscle spasms and arthritis in her back. (Tr. 45–46.) Plaintiff stated that she
is unable to stand for more than five to ten minutes at a time due to her pain and cannot sleep
more than three to five hour per night, which make working full-time difficult. (Tr. 45–47.)
Plaintiff testified minimally about her depression and ADD, as the focus at the administrative
hearing was primarily on her physical limitations. (Tr. 48.) In terms of Plaintiff’s activities of
daily living, she testified that she is able to cook with her husband’s help, clean her house, take
care of herself, shop for groceries, and even has worked with a recruiter to look for part-time
work. (Tr. 45–48.)
The ALJ issued an unfavorable decision on March 30, 2021. (Tr. 10–22.) The ALJ
found that Plaintiff met the insured-status requirements of the SSA through June 30, 2021, and
applied the five-step sequential analysis required by SSA regulations.

At step one of the

analysis, the ALJ found that Plaintiff has not engaged in substantial gainful activity since
January 1, 2020, the amended alleged disability onset date. (Tr. 12.) At step two, the ALJ found
Plaintiff to have the severe impairments of lumbar fusion with sequela of mild-to-moderate

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degenerative disc disease and post-laminectomy syndrome; NEC/chronic pain/somatic symptom
disorder; and persistent depressive disorder/major depressive disorder, ADHD/ADD, and
anxiety. (Tr. 12–13.) At step three, the ALJ found that Plaintiff’s impairments did not meet or
medically equal the severity of one of the listed impairments in the applicable Social Security
regulations so as to render Plaintiff presumptively disabled. (Tr. 13–14.)
Before reaching step four of the analysis, the ALJ found Plaintiff retained the residual
functional capacity (“RFC”) to perform medium work with frequent balancing and all other
postural limitations performed only occasionally, and limited Plaintiff to understanding,
remembering, and carrying out “detailed but not complex” job instructions and work-related
tasks. (Tr. 15–20.) At step four, the ALJ determined that Plaintiff is capable of performing her
past relevant work as a taxi driver and is therefore not disabled.

(Tr. 20–21.) The ALJ

alternatively found that Plaintiff is capable of other work in the national economy, namely the
work of a hand packager and order picker. (Tr. 21.) Accordingly, the ALJ determined that
Plaintiff is not disabled for purposes of the Act, and therefore not entitled to receive DIB. (Id.)
Plaintiff requested review of the ALJ’s decision, but her request for review was denied by
the Appeals Council on May 11, 2021. (Tr. 1–9.) On December 16, 2021, Plaintiff filed the
instant case, seeking review of the administrative determination.
IV. Analysis
Plaintiff raises one point of error in this appeal.2 Plaintiff argues that the ALJ erred in
making the RFC determination as to Plaintiff’s mental limitations and the RFC is not supported
by substantial evidence. Specifically, Plaintiff contends that the ALJ’s limitation of Plaintiff to
“detailed but not complex” job instructions is impermissibly vague and inconsistent with other
Plaintiff’s brief raised an additional issue—whether the ALJ’s credibility assessment
was defective—but Plaintiff withdrew this issue at oral argument.
2

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findings, and the ALJ erred in not including any social imitations in the RFC. None of these
arguments has merit.
An RFC determination is the most an individual can still do despite her limitations. 20
C.F.R. § 404.1545(a)(1). In assessing a claimant’s RFC, the ALJ must consider all the evidence
in the record, including the limiting effects of all documented impairments, regardless of whether
those impairments are severe or non-severe. Id. at § 404.1545(a)(1)–(3). The relative weight
given to the evidence contained in the record is within the ALJ’s discretion. Chambliss v.
Massanari, 269 F.3d 520, 523 & n.1 (5th Cir. 2001) (per curiam). To that end, the ALJ is not
required to incorporate limitations in the RFC that she did not find to be supported in the record.
See Morris v. Bowen, 864 F.2d 333, 336 (5th Cir. 1988) (per curiam). Furthermore, “RFC
determinations are inherently intertwined with matters of credibility, and the ALJ’s credibility
determinations are generally entitled to great deference.” Acosta v. Astrue, 865 F. Supp. 2d 767,
790 (W.D. Tex. 2012) (citing Newton, 209 F.3d at 459 (internal quotation omitted)).
Here, the ALJ assessed Plaintiff with the RFC for medium work with certain physical
limitations not at issue in this appeal. (Tr. 15–20.) As to mental limitations, the ALJ limited
Plaintiff to understanding, remembering, and carrying out “detailed but not complex” job
instructions and work-related tasks. (Id.) The ALJ did not include any social limitations in
Plaintiff’s RFC. The ALJ did not commit reversible error in assessing Plaintiff’s mental RFC,
which is supported by substantial evidence.
As to Plaintiff’s ability to follow “detailed but not complex” job instructions, Plaintiff
argues the ALJ failed to create a logical bridge between his “Paragraph B” findings at step three
and this aspect of the mental RFC. The Paragraph B criteria are a list of four functional areas
generally utilized for evaluating mental impairments at all levels of the administrative review

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process: the ability to (1) understand, remember, or apply information; (2) interact with others;
(3) concentrate, persist, or maintain pace; and (4) adapt or manage oneself.

20 C.F.R. §

404.1520a(c)(3); 20 C.F.R. § Pt. 404, Subpt. P, App. 1. At step three, the ALJ considered
Listings 12.04 (depressive, bipolar and related disorders), 12.06 (anxiety and obsessivecompulsive disorders), and 12.11 (neurodevelopmental disorders) and made the following
findings: Plaintiff has mild limitations in interacting with others and adapting and managing
herself and has moderate limitations in understanding, remembering or applying information and
concentration, persistence, and maintaining pace. (Tr. 13–14.) Plaintiff argues it is inconsistent
for the ALJ to find these moderate limitations and yet also to find Plaintiff has the ability to
follow “detailed but not complex” instructions. Plaintiff also argues this aspect of the mental
RFC (and the corresponding hypothetical posed to the VE at the ALJ’s hearing) is impermissibly
vague. The Court disagrees.
Step three determinations and RFC determinations are distinct analyses. Paragraph B
findings “are not an RFC assessment but are used to rate the severity of mental impairment(s) at
steps 2 and 3 of the sequential evaluation process.” Policy Interpretation Ruling Titles II and
XVI: Assessing Residual Functional Capacity in Initial Claims, SSR 96-8p, 1996 WL 374184, at
*4 (S.S.A. July 2, 1996). Although the ALJ must consider the paragraph B limitations when
determining a mental RFC, he is not required to incorporate these limitations verbatim. See
Holmes v. Astrue, No. 3:11-cv-2634-G BH, 2013 WL 638830, at *13 (N.D. Tex. Jan. 25, 2013).
Additionally, while it is true that the mental RFC should involve a “more detailed assessment”
than the Paragraph B findings, see SSR 96-9p, at *4, the Court rejects Plaintiff’s argument that
the mental RFC here is impermissibly vague or inconsistent in light of the limited mental health
evidence in the record and the substantial evidence supporting the overall mental RFC.

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To constitute reversible error and warrant remand, Plaintiff must show that she suffered
prejudice due to the ALJ’s mental RFC determination. Jones v. Astrue, 691 F.3d 730, 734–35
(5th Cir. 2012) (“The party seeking to overturn the Commissioner’s decision has the burden to
show that prejudice resulted from an error.”). Plaintiff has not demonstrated that the ALJ’s
failure to incorporate the Paragraph B findings verbatim in the RFC caused her prejudice. Stated
another way, Plaintiff has not made a sufficient showing that, had the ALJ included these
findings, the outcome in her DIB proceeding would have been different and more favorable. See
Jones v. Astrue, No. 3:11–CV–3416–M–BH, 2013 WL 1293900, at *17–18 (N.D. Tex. Mar.7,
2013), rec. adopted, 2013 WL 1296503 (N.D. Tex. Mar. 29, 2013) (ALJ’s failure to incorporate
the “exact language” of Paragraph B findings into RFC did not require remand in absence of
showing of prejudice). Nor is the lack of a social limitation in the RFC prejudicial considering
the entire record in this case.
The ALJ found Plaintiff to be not disabled in part because he concluded she is able to
perform her past relevant work as an Uber driver. Due to Plaintiff’s part-time work in this
position during the relevant time period, the ALJ found Plaintiff’s assertions that she was unable
to drive to her full-time job due to side effects from her medication to lack credibility. (Tr. 18.)
The ALJ also noted repeatedly throughout his opinion that the record lacked any evidence of
deterioration or decompensation in Plaintiff’s mental functioning significant enough to impair
Plaintiff’s overall ability to work. (Id.) Rather, the medical records demonstrate that Plaintiff is
under the conservative care of her primary care provider, who has provided her with medications
to manage her conditions and that her overall prognosis in terms of her mental functioning is
promising if she complies with her physician’s treatment plan. (Id.) Plaintiff has not explained

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to the Court how either of the alleged errors in the mental RFC determination would have
resulted in a different conclusion by the ALJ as to Plaintiff’s ability to work.
Moreover, substantial evidence supports the mental RFC determination in this case.
Importantly, Plaintiff bears the burden to establish that her mental impairments cause significant
limitations to her RFC resulting in disability. Greenspan, 38 F.3d at 239. If there is a lack of
detail in the RFC determination here, it is at least in part due to the dearth of mental health
evidence in the record. As noted by the ALJ, Plaintiff did not undergo any treatment from a
psychiatrist, psychologist, or any other mental health provider. (Tr. 18.) The only treatment
records regarding Plaintiff’s mental health during the relevant time period3 are those created by
Plaintiff’s primary care provider, Dr. Oscar Cerda.
Dr. Cerda treated Plaintiff throughout 2020 and diagnosed her with ADD, anxiety, and
depression.

(Tr. 450–505.)

But aside from diagnoses and medication management, these

records do not shed much light on the extent and nature of Plaintiff’s mental limitations. Dr.
Cerda prescribed multiple medications for Plaintiff’s ADD and anxiety (which Plaintiff appeared
to be taking as directed) and attempted to provide treatment for Plaintiff’s depression by
providing her with a “starter kit” for an antidepressant. (Tr. 526.) But Plaintiff indicated she
was unlikely to comply with the antidepressant prescription, as, according to Plaintiff, her
husband obstructed her ability to get treatment for her depression due to his concerns about her
possible addiction to prescription drugs.

(Tr. 432–34, 524–25.)

(In light of Plaintiff’s

medication history of multiple psychiatric medications for treatment of anxiety and ADD and
other physical ailments, this assertion is not particularly credible.) Dr. Cerda’s single-page,
check-box medical source statement does not provide any additional details as to Plaintiff’s
3

The relevant time period is January 1, 2020, the amended disability onset date, to March
30, 2021, the date of the ALJ’s decision.
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mental limitations, and the ALJ unsurprisingly found Dr. Cerda’s ultimate conclusion that
Plaintiff would be off task 25% or more of the workday to be unsupported by any of Dr. Cerda’s
own treatment records. (Tr. 505.)
The only other records concerning Plaintiff’s mental status are two consultative
examinations performed in early 2020, a medical exam by Dr. Charles Clements and a
psychological exam by Dr. Javier Villanueva. (Tr. 466, 470–72.) These records also do not
provide an evidentiary basis for a more restrictive mental RFC. Dr. Clements documented
Plaintiff as having a “normal” mental status and found her to be alert and oriented with
appropriate emotional effect. (Tr. 466.) Plaintiff presented similarly for Dr. Villanueva’s exam;
he found her to be cooperative, with good eye contact, and an appropriate, congruent, and
euthymic mood, with no sign of anxiety and good frustration tolerance.

(Tr. 471.)

Dr.

Villanueva’s evaluation of Plaintiff resulted in findings that she was oriented to time, person, and
place and had memory and concentration only slightly below normal limits. (Tr. 471–72.) Dr.
Villanueva also opined that Plaintiff’s condition would improve with ongoing medication
management. (Tr. 472.) Overall, although Dr. Villanueva noted that Plaintiff was “struggling to
make occupational, personal and social adjustments,” he found “no significant deficits in
memory or concentration noted during [his] evaluation.” (Tr. 472.)
Despite all of these findings, none of which suggest Plaintiff is severely limited in her
mental functioning, Plaintiff argues there is no evidentiary basis for finding she is able to follow
detailed but not complex instructions. Yet both the State Agency Psychological Consultants
(SAPCs) at the initial and reconsideration levels found Plaintiff to have this same RFC, and both
the SAPCs made the same Paragraph B findings as the ALJ. (Tr. 66, 69–70, 80, 85.) As to
Plaintiff’s ability to sustain concentration and persistence limitations, the SAPCs found Plaintiff

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to be moderately limited in her ability to carry out detailed instructions but not significantly
limited in her ability to carry out short and simple instructions. (Tr. 69.) And the SAPCs both
concluded Plaintiff is able to “concentrate for extended periods, accept instructions, and respond
appropriately to changes in routine work setting.” (Tr. 70, 85.) Plaintiff argues that the finding
that she can follow “detailed but not complex” instructions is inconsistent and vague, but it
appears that both the SAPCs and the ALJ accounted for Plaintiff’s moderate limitations in
following detailed instructions by limiting Plaintiff to the kind of detailed instructions that are
not complex. Additionally, Plaintiff did not object to the ALJ’s hypothetical to the VE at the
administrative hearing on either of these grounds. The ALJ’s mental RFC is not inconsistent
with his Paragraph B findings, and the ALJ was entitled to rely on the SAPCs’ opinions in
assessing Plaintiff’s limitations. See 20 C.F.R. § 404.1513(a)(1).
Plaintiff argues that the ALJ offered no rationale for crediting the SAPCs’ opinions as to
Plaintiff’s mental limitations, and the SAPCs’ findings are not particularly probative because
neither SAPC had access to Dr. Cerda’s later medical records when Plaintiff’s mental condition
was more compromised. True, in December 2020 (months after the SAPCs evaluated Plaintiff),
Dr. Cerda performed a depression screening on Plaintiff and found her to be severely depressed
due to symptoms of hopelessness, poor sleep, impaired concentration, and suicidal thoughts. (Tr.
524.) But again, as the ALJ pointed out repeatedly in his opinion, this was just one visit from a
general practitioner, not a psychologist or psychiatrist or other mental health specialist.
Additionally, Dr. Cerda provided Plaintiff with antidepressants at this same visit, and there are
no subsequent mental health records in the record, aside from Dr. Cerda’s one-page medical
source statement—a statement the ALJ found to overstate Plaintiff’s limitations and to be
generally unsupported by and inconsistent with Dr. Cerda’s own records. Moreover, even

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though the SAPCs did not have these records, the ALJ did, and he still found that Plaintiff had
not established mental limitations of a disabling degree.

Plaintiff has not identified any

reversible legal error as to the ALJ’s decision to credit the SAPCs’ opinions over other evidence
of record regarding Plaintiff’s mental limitations. And, again, Plaintiff has not carried her
burden to demonstrate a more restrictive mental RFC.
As for evidence regarding the need for social limitations, Plaintiff has not directed the
Court to any evidence supporting anything more than mild limitations in this area. In Plaintiff’s
Adult Function Report, she reported shopping for groceries three time a week, having dinner
with friends, and working part-time as an Uber driver. (Tr. 242–47.) Plaintiff also reported to
Dr. Villanueva during her consultative examination that although her social life is limited and
she feels uncomfortable in public, she still socializes occasionally with friends. (Tr. 472.)
Plaintiff also testified at the ALJ’s hearing that she remains in touch with her former colleagues
from Wells Fargo and even was in conversation with a recruiter in an attempt to secure part-time
employment. (Tr. 49.) Overall, Plaintiff also established a good rapport with Dr. Villanueva and
Dr. Clements during the consultative exams. (Tr. 466, 470–72.) All of these records provide
substantial evidence for the ALJ’s finding that Plaintiff has only mild limitations in interacting
with others. Mild findings as to the Paragraph B criteria do not mandate the inclusion of mental
limitations in the RFC, where the mild limitations do not affect the claimant’s ability to do work.
Jeansonne v. Saul, No. 20-30570, 2021 WL 1373965, at *3 (5th Cir. Apr. 12, 2021). Substantial
evidence supports the ALJ’s finding that Plaintiff has only mild limitations in interacting with
others and the decision not to include any social limitations in the RFC. (Tr. 14.)

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In summary, because there is substantial evidence to support the ALJ’s RFC
determination, and the ALJ did not commit any reversible legal error in making this
determination, the Commissioner’s decision that Plaintiff is not disabled should be affirmed.
V. Conclusion
Based on the foregoing, the Court finds that no reversible error was committed during
these proceedings and substantial evidence supports the Commissioner’s finding that Plaintiff is
not disabled. Accordingly,
IT IS HEREBY ORDERED that the Commissioner’s decision finding that Plaintiff is
not disabled is AFFIRMED.
SIGNED this 17th day of November, 2022.

ELIZABETH S. ("BETSY") CHESTNEY
UNITED STATES MAGISTRATE JUDGE

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