Opinion
EP-22-CV-00135-KC-ATB
04-05-2023
LILIA MARTINEZ, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
ANNE T. BERTON UNITED STATES MAGISTRATE JUDGE
This is a civil action seeking judicial review of an administrative decision. Pursuant to 42 U.S.C. § 405(g), Plaintiff Lilia Martinez, the claimant at the administrative level, appeals from the final decision of Defendant Acting Commissioner of the Social Security Administration (“Commissioner”) denying her claim for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et seq. Pursuant to 28 U.S.C. § 636(c), Appendix C of this District's Local Rules, and the Honorable District Judge Kathleen Cardone's standing order, the case was referred to the undersigned Magistrate Judge for a report and recommendation. For the reasons set forth below, the Court recommends that the Commissioner's decision be affirmed.
See https://www.txwd.uscourts.gov/wp-content/uploads/2022/12/Standing-Order-Regarding-Civil-Case-Assignments.pdf.
I. BACKGROUND
On April 2, 2019, Martinez applied for disability insurance benefits. Martinez has a high-school diploma but no vocational, trade, or college education. In the past, she worked as an office receptionist, patient service and records specialist, and call center representative at a medical clinic and hospital. On March 29, 2019, she retired from the hospital because, according to her, she could not work anymore due to vertigo; at the time, she was 63 years old.She alleged disability beginning on March 30, 2019, based on vertigo, lumber radiculopathy, and plantar fasciitis.
Tr. of Admin. R. [hereinafter, cited as “Tr.”] at 48.
Id. at 47, 49-51.
Id. at 46-47, 51-52.
Id. at 47.
Id. at 264, 341.
Martinez's application was denied initially on July 30, 2019, and on reconsideration on December 20, 2019. Thereafter, Martinez requested a hearing, which was held before the Administrative Law Judge (“ALJ”) on June 2, 2021; at the hearing, Martinez was represented by her attorney. On August 5, 2021, the ALJ denied her application in a written decision. On October 1, 2021, Martinez appealed to the Social Security Appeals Council for review of the ALJ's decision. On January 25, 2022, the Appeals Council concluded that there existed no basis for changing the ALJ's decision. The ALJ's decision therefore became the final decision of the Commissioner.
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.”).
On April 20, 2022, Martinez brought this action seeking judicial review of the Commissioner's final decision pursuant to 42 U.S.C. § 405(g). On November 24, 2022, Martinez filed her opening brief requesting that the Commissioner's decision be vacated and her claims for disability benefits be remanded for further administrative proceedings. Pl.'s Br. at 22, ECF No. 18. On December 27, 2022, the Commissioner filed a response brief in support of his decision. Mem. in Support of Comm'r's Decision [hereinafter, cited as “Def.'s Resp.”], ECF No. 22. Martinez did not file a reply brief.
II. STANDARDS
A. Commissioner's Disability Determination Process
Disability is defined 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.” 42 U.S.C. § 423(d)(1)(A). “A claimant has the burden of proving [s]he 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:
(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). “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 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 [she] can still do despite . . . her physical and mental limitations and is based on all relevant evidence in the claimant's record.” Id. (cleaned up); see also 20 C.F.R. §§ 404.1520(e), 404.1545(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.
B. Judicial Review of Commissioner's Decision
Judicial review, under §405(g), of the Commissioner's decision denying social security benefits is “highly deferential”: Courts “ask only whether substantial evidence supports the decision and whether the correct legal standards were employed.” Garcia, 880 F.3d at 704. “Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Sun v. Colvin, 793 F.3d 502, 508 (5th Cir. 2015).
In applying the “substantial evidence” standard, “the court scrutinizes the record to determine whether such evidence is present,” id., but it 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. “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).
III. ALJ'S DETERMINATIONS
The ALJ evaluated Martinez's claims for disability benefits pursuant to the five-step sequential evaluation process mentioned above. The ALJ found, as a threshold matter, that Martinez's last date insured was December 31, 2019. Tr. at 23. At step one, the ALJ found that Martinez did not engage in substantial gainful activity during the period from March 30, 2019, her amended alleged disability onset date through December 31, 2019, her date last insured (the “relevant disability period” or “relevant period”). Id. At step two, the ALJ determined that Martinez's vertigo, bilateral plantar fasciitis, and degenerative disc disease of the lumbar spine constituted sever impairments, but that her bilateral tinnitus and bilateral sensorineural hearing loss did not qualify as severe impairments. Id. at 23-24. At step three, the ALJ found that Martinez did not have an impairment or combination of impairments that met or medically equaled a listed impairment for presumptive disability. Id. at 24.
Next, before going to step four, the ALJ determined that during the relevant disability period, Martinez retained the RFC to perform:
light work as defined in 20 CFR 404.1567(b) except the claimant is further restricted such that she is limited to standing and/or walking for a combined total of 2 hours per 8-hour workday; she can never climb ladders, ropes, or scaffolds; she can only occasionally climb ramps and stairs; she can only occasionally balance, stoop, kneel, crouch, and crawl; she cannot work at unprotected heights or around dangerous moving machinery or open flames; and she cannot perform any commercial driving.Tr. at 25. At step four, the ALJ found that, through the date last insured, Martinez remained able to perform her past relevant work as a receptionist, a customer service representative in a call center, or a medical clerk. Id. at 29. The ALJ concluded that she was not disabled at any time during the relevant disability period and denied her application for benefits. Id. at 29-30.
IV. DISCUSSION
As mentioned above, the Court's review of the Commissioner's decision denying benefits is limited to two inquires: whether the decision is supported by substantial evidence and whether the Commissioner used the proper legal standards. Garcia, 880 F.3d at 704, supra. Martinez assigns multiple errors to the ALJ's decision-all of which turn on whether the ALJ used the proper legal standards. Reduced to their essence, these alleged errors are that the ALJ: (1) failed to consider her depression, Pl.'s Br. at 8-9; (2) failed to consider certain statements by Dr. Juan E. Bahamon, id. at 20-21; (3) substituted his lay opinion for Dr. Dinorah Nutis's opinion, id. at 10-12; (4) improperly “cherry-picked” evidence, id. at 15-19; (5) failed to provide, in the RFC, additional limitations related to her concentration problems, id. at 14; and (6) failed to consider the side-effects of her medications, id. at 21-22. Below, the Court addresses each issue in turn.
A. Depression
Martinez argues that the ALJ erred because despite her testimony regarding her depression and her diagnosis of depressive disorder, the ALJ failed to evaluate her depression at step two and further failed to consider the combined effects of her physical impairments and her depression in assessing her RFC. Pl.'s Br. at 8-9 (citing 20 C.F.R. §§ 404.1520a, 404.1523). The Commissioner responds that Martinez did not allege that she was disabled due to any mental impairment, including depression, and that medical records show, at most, a short-term impairment that does not meet the 12-month durational requirement and that imposed no limitations on Martinez. Def.'s Resp. at 8-9.
At step two, the ALJ was tasked with determining whether Martinez had a severe impairment or combination of impairments. See 20 C.F.R. § 404.1520(c); see also id. § 404.1520a (describing the “special technique” for mental impairment evaluations). In determining impairment severity, the ALJ “is required to consider the combined effects of all impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity.” Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000) (citing 20 C.F.R. § 404.1523). The regulations further require an ALJ to consider the combined impact of all impairments, including non-severe impairments, when assessing a claimant's RFC. 20 C.F.R. § 404.1545(a)(2).
“Under the special technique, [the Commissioner] must first evaluate [the claimant's] pertinent symptoms, signs, and laboratory findings to determine whether [the claimant] ha[s] a medically determinable mental impairment(s).” 20 C.F.R. § 404.1520a(b)(1). “After identifying an impairment, the Commissioner attempts to ‘rate the degree of functional limitation resulting from the impairment(s),'” Randall v. Astrue, 570 F.3d 651, 658 (5th Cir. 2009) (quoting id. § 404.1520a(b)(2)), and only then does the Commissioner address severity, id. (citing id. § 404.1520a(d)).
The regulations provide: “We will consider all of your medically determinable impairments of which we are aware, including your medically determinable impairments that are not ‘severe,' as explained in §§ 404.1520(c), 404.1521, and 404.1523, when we assess your residual functional capacity.” 20 C.F.R. § 404.1545(a)(2).
As recounted earlier, at step two, the ALJ found that Martinez had severe impairments of vertigo, bilateral plantar fasciitis, and degenerative disc disease of the lumbar spine. Tr. at 23. Moreover, the ALJ discussed Martinez's diagnoses of bilateral sensorineural hearing loss as well as bilateral tinnitus but found that her hearing loss or tinnitus was not severe. Id. at 24. The ALJ did not expressly evaluate her depression at step two, and in his discussion of Martinez's RFC, the ALJ does not mention it (though it does not mean that the ALJ did not consider her depression).
See Stephens v. Berryhill, 888 F.3d 323, 329 (7th Cir. 2018) (“The ALJ need not provide a complete written evaluation of every piece of testimony and evidence.” (cleaned up)).
For several reasons, the Court finds, contrary to Martinez' arguments, that the ALJ did not err. First, at the administrative level, Martinez, who had the burden of proving her disability, did not allege that her depression is a disabling mental impairment. See Leggett v. Chater, 67 F.3d 558, 566 (5th Cir. 1995) (“The ALJ's duty to investigate . . . does not extend to possible disabilities that are not alleged by the claimant or to those disabilities that are not clearly indicated on the record.”). As the Commissioner points out, Martinez did not allege that she was disabled due to depression, either initially or on appeal to the agency: initially, she alleged only vertigo as the basis of her disability, Tr at 264, and on appeal, she additionally alleged lumbar radiculopathy and plantar fasciitis, id. at 341. Martinez argues that at the hearing before the ALJ, she testified about her depression, alluding to her purported testimony about “crying spells.” Pl.'s Br. at 8-9 (incorrectly citing to Tr. at 58, where no mention of “cry” appears; correct pin-cite is Tr. at 56). To be sure, at the hearing, in response to her counsel's question, “how far can you walk without having to hold onto anything in distance?” Martinez testified that “at the beginning [she] would cry” and that “[she] used to cry” because she could walk “not even a block.” Tr. at 56. Such testimony is insufficient to put her depression before the ALJ. See Pierre v. Sullivan, 884 F.2d 799, 802-03 (5th Cir. 1989) (holding isolated comments about claimant's low intelligence insufficient to raise suspicion that claimant was mentally retarded).
Cf. also Jones v. Bowen, 829 F.2d 524, 526 (5th Cir. 1987) (holding that claimant not only failed to meet his burden in proving a non-exertional mental impairment, but also failed to raise a suspicion concerning such an impairment, where he reported to a physician that “he had become emotionally upset” and later reported that “he had become grouchy, angry, and depressed about his situation of being unable to work”).
Second, the medical evidence does not indicate that Martinez's depression satisfies the durational requirement for an impairment under the regulations. Step two involves two separate inquiries: “a duration requirement” and “a severity requirement.” Beggs v. Colvin, No. 4:14-CV-129-O, 2015 WL 5542540, at *3 (N.D. Tex. Aug. 31, 2015) (citing Singletary v. Bowen, 798 F.2d 818, 821 (5th Cir. 1986)). The regulations set out the duration requirement: “Unless your impairment is expected to result in death, it must have lasted or must be expected to last for a continuous period of at least 12 months.” 20 C.F.R. § 1509. Further, where a claimant has two or more concurrent impairments, “the impairments may combine to create[] a continuous period of disability so long as the duration of each impairment, taken separately, lasted or was expected to last for 12 months.” Ratto v. Sec'y, Dep't of Health & Hum. Servs., 839 F.Supp. 1415, 1427 (D. Or. 1993) (discussing 20 C.F.R. §§ 404.1522(a), 404.1523).
Here, the medical records indicate that with one exception, no physician affirmatively diagnosed Martinez with depression. On March 1, 2019, Dr. Nutis-Martinez's primary care physician whom Martinez saw as early as April 2016 and as late as February 2021-evaluated Martinez's psychiatric conditions as “appropriate affect and demeanor,” though she noted, under the review of symptoms/systems (ROS) subsection of the “subjective” section of her medical note, that Martinez's psychiatric symptoms/systems indicated “positive for depression.” Tr. 498, 500. Dr. Bahamon's (a neurologist) note dated July 22, 2019, states, under its “history of present illness” section, that Martinez “has become secondarily depressed,” but Dr. Bahamon made no further statement about her depression. Tr. at 600-05. On October 10, 2019, during her visit with Dr. Adaeze A. Onuoha-Martinez's primary neurologist whom she saw as early as July 2018 and as late as May 2021-she reported that she “sometimes gets depressed and is tearful because she cannot continue her life,” but upon examination of her “mental status,” Dr. Onuoha found that she had “appropriate mood and affect”; he made no further statement about depression. Tr. at 710; see also Pl.'s Br. at 8 (citing Tr. 710 to argue that Martinez reported depression related symptoms). On October 25, 2019, Dr. Lawal Lookman, who appears to be a cardiologist and with whom Martinez visited for the first time on that date, diagnosed her with “depressive disorder,” Tr. at 1028 (“F32.9: Major depressive disorder, single episode, unspecified”), and on Martinez's later visit, he noted that the onset date of her disorder was October 25, 2019, id. at 1034; see also Pl.'s Br. at 8 (relying on Dr. Lookman's diagnosis).
Dr. Lookman's treatment notes indicate that he practices at Southwestern Cardiac Arrhythmia Institute in El Paso, Texas, and on October 25, 2019, he saw Martinez as a “new patient.” Tr. at 1026.
However, shortly after the relevant disability period ended on December 31, 2019, Martinez visited with Dr. Brian Perry on January 20, 2020, and during that visit, Martinez denied having depression or any other psychiatric issues, Tr. at 685, and Dr. Perry, upon examination, found that she had “normal mood” and “normal affect,” id. at 686. Further, between July 10, 2020, and February 3, 2021, Martinez visited with Dr. Nutis four times, and on each visit, Dr. Nutis noted, under the “subjective” section of her medical notes, that Martinez's psychiatric symptoms/systems were “negative for . . . depression,” id. at 817, 824, 830, 834, and found that Martinez had “appropriate affect and demeanor,” id. at 819, 825, 831, 836.
Based on these medical records, the ALJ could have properly concluded that Martinez's depression was a short-term condition, and the ALJ therefore had no reason to consider her depression, either singly or in combination with Martinez's other impairment. See Singletary, 798 F.2d at 821-22 (While “a claimant whose claim is based on a mental condition does not have to show a 12[-]month period of impairment unmarred by any symptom-free interval,” he must still “present medical evidence which indicates that his mental condition is a long-term problem and not just a temporary set-back.”); see also Ratto, 839 F.Supp. at 1427, supra.
Finally, although Martinez speculates that her depression “could have significantly eroded her functional capacity resulting in her being unemployable” and faults the ALJ for not considering the effects of her depression on her overall functioning, Pl.'s Br. at 9, she fails to point to any evidence that demonstrates that her depression causes functional limitations of a kind or severity different than those health conditions already accounted for by the ALJ in his assessment of her RFC. See Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010) (“The claimant has the burden to prove his residual functional capacity.”); Leggett, 67 F.3d at 564 (“The burden of proof lies with the claimant to prove disability under the first four parts of the inquiry.”). Martinez contends that her depression caused her “crying spell,” which, in turn, she adds, “could impact her abilities in concentration, persistence, and pace.” Pl.'s Br. 9. For support, Martinez relies on her testimony that “at the beginning I would cry” and “I used to cry,” Tr. at 56, which we have discussed above. Id. But this testimony is no evidence that her depression impacted, or the degree to which it impacted, her abilities in concentration, persistence, and pace.
Moreover, although Dr. Lookman diagnosed her with depressive disorder, the diagnosis is not evidence of how she functions. “[T]he mere existence of [an] impairment[] does not reveal the extent to which [it] limit[s] her ability to work.” Moore v. Barnhart, 405 F.3d 1208, 1213 n.6 (11th Cir. 2005). And “the plaintiff bears the ultimate burden of establishing that a specific diagnosed condition imposes actual exertional or non-exertional limitations.” Vereen v. Barnhart, No. SA 05 CA 0010 XR NN, 2005 WL 3388136, at *5 (W.D. Tex. Nov. 16, 2005) (citing Hames v. Heckler, 707 F.2d 162, 165 (5th Cir. 1983) (“The mere presence of some impairment is not disabling per se. Plaintiff must show that she was so functionally impaired by her back trouble that she was precluded from engaging in any substantial gainful activity.”)).
In sum, the Court finds that the ALJ did not err by failing to expressly evaluate her depression at step two, and further, the ALJ did not err by failing to consider, insofar as he did not consider, her depression in assessing the RFC.
B. Dr. Bahamon's Statements
Martinez next argues that the ALJ's failure to consider and evaluate certain statements by Dr. Bahamon, a neurologist, is reversible error. Pl.'s Br. at 20-21. Specifically, Martinez contends that the ALJ failed to evaluate, and therefore failed to consider, the following two statements in Dr. Bahamon's treatment note dated July 22, 2019: Dr. Bahamon's finding that “[w]ith the Nilen-Barany [sic] maneuver, . . . severe vertigo was elicited” and assessment that Martinez “is quite disabled by this severe vertigo.” Tr. at 604, cited in Pl.'s Br. at 21. The Commissioner responds that because Martinez's claims were filed after March 27, 2017, the ALJ was not required to provide how he considered such statements. Def.'s Resp. at 15.
Cf. Revisions to Rules Regarding Evaluation of Medical Evidence, 82 Fed.Reg. 5844, 5855-56, 2017 WL 168819 (SSA Jan. 18, 2017) (“[T]he term ‘evaluate' . . . impl[ies] a need to provide written analysis,” whereas “the term ‘consider' . . . is easily distinguishable from [any] articulation requirements.”).
For disability claims filed on or after March 27, 2017, an ALJ is not required to provide written analysis about “statements on an issue reserved to the Commissioner” or “about how [the ALJ] considered such evidence in [his] determination or decision, even under § 404.1520c.” 20 C.F.R. § 404.1520b(c). Among such statements are: “[s]tatements that you are or are not disabled,” and “[s]tatements about whether or not you have a severe impairment(s).” § 404.1520b(c)(3)(i)-(ii). Such statements by a medical source are “inherently neither valuable nor persuasive to the issue of whether [the claimant] [is] disabled.” § 404.1520b(c). Even so, the ALJ must consider such statements. Program Operations Manual System (POMS) DI § 24503.040(D) (SSA, Mar. 24, 2017) (“We consider all evidence we receive, including a statement on an issue reserved to the Commissioner.”).
“The POMS is a set of policies issued by the Administration to be used in processing claims.” Jaramillo v. Colvin, 576 Fed.Appx. 870, 875 n.3 (10th Cir. 2014) (internal quotes omitted).
The Court agrees with the Commissioner that Dr. Bahamon's statement that she “is quite disabled by this severe vertigo” is a statement on an issue reserved to the Commissioner. See Frank v. Barnhart, 326 F.3d 618, 620 (5th Cir. 2003) (“Among the opinions by treating doctors that have no special significance are determinations that an applicant is ‘disabled' or ‘unable to work.' . . . These determinations are legal conclusions that the regulation describes as reserved to the Commissioner.” (cleaned up)). The ALJ therefore was not required to provide any written analysis about this statement or how he considered it.
Dr. Bahamon's other statement that “severe vertigo was elicited” on the Nylen-Barany test stands on a different footing. “Determining whether a statement is on an issue reserved to the Commissioner involves a consideration about the context in which the source makes the statement.” POMS DI § 24503.040(D); see also Revisions to Rules Regarding Evaluation of Medical Evidence, 82 Fed.Reg. at 5851 (“[A]djudicators should consider the context of a source's use of a term in our laws and regulations to determine if it qualifies as a statement on an issue reserved to the Commissioner or another kind of evidence, such as a medical opinion.”). Viewed in the context of Dr. Bahamon's note, this is a diagnostic statement about the degree of the medical severity of Martinez's vertigo as determined on a medical test that he conducted. For example, toward the end of his note, Dr. Bahamon states that “I gave her a prescription for meclizine 25 mg . . . for mild vertigo[,] and if the vertigo is severe[,] she can take Tranxene 3.75 mg.” Tr. at 605 (emphasis added). Therefore, it is not a “[s]tatement about whether or not you have a severe impairment(s).” § 404.1520b(c)(3)(ii); cf. Giles v. Astrue, 433 Fed.Appx. 241, 24546 (5th Cir. 2011) (“[A] conclusion that the degree of curvature is medically ‘severe' differs from a finding that the ailment was “severe” for purposes of disability determination.”). As such, the statement is not about an issue reserved to the Commissioner and is not one about which § 404.1520b(c) dispenses with a requirement, if any, to provide a written analysis.
Moreover, under the articulation-requirement regulation, § 404.1520c(b), the ALJ was not required to articulate his consideration of Dr. Bahamon's statement that “severe vertigo was elicited,” either. According to that regulation, an ALJ is required to “articulate in [his] determination or decision how persuasive [he] find[s] all of the medical opinions . . . in [the claimant's] case record.” § 404.1520c(b) (emphasis added). However, Dr. Bahamon's statement that “severe vertigo was elicited” on the test is not a “medical opinion” within the meaning of the regulations. § 404.1513(a)(2). As such, the ALJ was not required to expressly evaluate the statement under § 404.1520c(b). See Austin v. Kijakazi, 52 F.4th 723, 729 n.3 (8th Cir. 2022) (“Mere diagnostic statements or ‘judgments about the nature and severity of . . . impairments' are not ‘medical opinions' and, therefore, not subject to . . . § 404.1520c['s]” articulation requirements. (quoting § 404.1513(a)(3); internal citation omitted); Roy v. Comm'r, SSA, No. 22-5036, 2022 WL 17726702, at *3 (10th Cir. Dec. 16, 2022) (unpublished) (holding ALJ did not commit legal error in failing to evaluate under § 404.1520c a statement by a physician that was “simply clinical observations regarding the nature and severity of [the plaintiff's] tremor” because the statement qualified as “other medical evidence” rather than a “medical opinion). So, the ALJ did not err by not expressly evaluating Dr. Bahamon's diagnostic statement “severe vertigo was elicited” on the test.
As relevant here, the regulations define three categories of evidence from a medical source such as a medical doctor: “objective medical evidence,” “medical opinion,” and “other medical evidence.” 20 C.F.R. § 404.1513(a). “Objective medical evidence is medical signs, laboratory findings, or both.” Id. § 404.1513(a)(1). “A medical opinion is a statement from a medical source about what you can still do despite your impairment(s) and whether you have one or more impairment-related limitations or restrictions in the following abilities: . . . (i) Your ability to perform physical demands of work activities . . .; (ii) Your ability to perform mental demands of work activities . . .; (iii) Your ability to perform other demands of work . . .; and (iv) Your ability to adapt to environmental conditions ....” Id. § 404.1513(a)(2). “Other medical evidence is evidence from a medical source that is not objective medical evidence or a medical opinion, including judgments about the nature and severity of your impairments, your medical history, clinical findings, diagnosis, treatment prescribed with response, or prognosis.” Id. § 404.1513(a)(3) (emphasis added).
Moreover, simply because the ALJ did not discuss Dr. Bahamon's statements in his written decision does not mean that the ALJ did not consider them. See Castillo v. Barnhart, 151 Fed.Appx. 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.”); Rottmann v. Comm'r of Soc. Sec., 817 Fed.Appx. 192, 195-96 (6th Cir. 2020) (“‘An ALJ can consider all the evidence without directly addressing in his written decision every piece of evidence submitted by a party.'” (quoting Loral Def. Sys.-Akron v. NLRB, 200 F.3d 436, 453 (6th Cir. 1999)); Rice v. Barnhart, 384 F.3d 363, 371 (7th Cir. 2004) (“[T]he ALJ need not provide a written evaluation of every piece of evidence.”).
See also Vandestreek v. Colvin, No. 7:14-CV-00001-O, 2015 WL 1239739, at *6 (N.D. Tex. Mar. 17, 2015) (“[I]t is well-established that an ALJ can consider all the evidence in the record without directly addressing each piece of evidence in his opinion.” (collecting cases)).
Here, the ALJ's written decision indicates that he considered Dr. Bahamon's treatment note at issue in assessing “consistency,” see § 404.1520c(c)(2), of Dr. Walter Bain's finding of “moderate gait imbalance.” See Tr. at 26 (citing Ex. 10F/7, i.e., Tr. at 604)). Elsewhere, the ALJ discussed Dr. Bahamon's treatment note in other regards. E.g., id. at 24 (citing Ex. 10F multiple times). The Court therefore finds that the ALJ did not err insofar as Martinez claims he did not consider the statements. See Vaught v. Astrue, 271 Fed.Appx. 452, 454 (5th Cir. 2008) (finding no reversible error in the ALJ's failure to discuss the examination of the claimant performed by a physician where the ALJ necessarily considered the physician's report).
In sum, the Court finds no error by the ALJ for his failure to expressly evaluate Dr. Bahamon's statements.
C. Dr. Nutis's Diagnosis
Martinez argues that the ALJ improperly substituted his lay opinion for that of the Dr. Nutis's medical opinion. Pl. Br. at 11-12; see also Frank, 326 F.3d at 622 (An ALJ may “not substitute his medical judgment for a doctor's.”). On December 11, 2019, Dr. Nutis diagnosed Martinez with “Benign paroxysmal vertigo, unspecified ear.” Tr. at 783. In his written decision, the ALJ cited that diagnosis in evaluating other medical evidence on Martinez's ability to walk.
Martinez takes issue with the manner in which the ALJ recounted Dr. Nutis's diagnosis. He wrote: “moreover, the claimant's vertigo diagnoses was [sic] assessed to be ‘benign' at this time.” Tr. at 26 (italics in original) (quoting Ex. 19F/13, i.e., Tr. 783). Martinez points out that the word “benign” was part of the entire diagnosis and argues that Dr. Nutis did not use it as an adjective to describe the severity of her condition, but that the ALJ used the word to mean that her vertigo was “not significant.” Pl.'s Br. at 10. So, as her arguments go, the ALJ misinterpreted Dr. Nutis's treatment note and thereby, improperly substituted his lay opinion for Dr. Nutis's qualified medical opinion. Id. This, she says, was reversible error. Id. at 11.
The Court observes that nowhere in his decision does the ALJ use the words “not significant” or the like to describe Martinez's vertigo; those words are Martinez's interpretative gloss-an obvious attempt to import a common dictionary meaning of the term into his decision and then, to turn around and fault the ALJ for it. See Merriam-Webster's Collegiate Dictionary 114 (11th ed. 2007) (defining “benign” as “having no significant effect”). But the ALJ used quotations marks around the word “benign,” suggesting that he relied on the specialized meaning of the term as used in the diagnosis. Martinez also directs the Court's attention to an online source, apparently authored by a non-profit research and educational organization for rare disorders (it was not in evidence before the ALJ), Pl. Br.'s at 10 & n.1, which states that the term “benign” as used in “Benign Paroxysmal Positional Vertigo” “means that the disorder is not progressive and is not considered serious.”
See https://rarediseases.org/rare-diseases/benign-paroxysmal-positional-vertigo/ (last visited Mar. 31, 2023).
An alternate plausible interpretation of the ALJ's writing is that he was simply reciting the diagnosis as a statement of fact without applying any interpretive hue thereto. The medical evidence in the record indicates that although Martinez long reported her dizziness and vertigo to her physicians, Dr. Nutis, for the first time, diagnosed her with Benign Paroxysmal Vertigo in September 2019, Tr. at 788, and later noted that diagnosis in her December 11, 2019 treatment note, id. at 783, which the ALJ cited. The record further indicates that after the relevant disability period ended, Martinez's diagnoses for vertigo or dizziness were evolving. So, in writing that “the claimant's vertigo diagnoses was [sic] assessed to be ‘benign' at this time, ” id. at 26 (underline added), the ALJ could have been referring to her diagnosis at the time (around December 2019 before the end of the relevant disability period), as opposed to her diagnoses at a later time.
See Tr. 1053 (“66 year old female who is being managed for dizziness/vertigo/meniere's disease. Advised patient that this is the trajectory of Meniere's disease.” (Dr. Onuoha's note dated Sept. 28, 2020)); id. at 817 (“Positive for vertigo; Tradjectory [sic] Menieres Disease.” (Dr. Nutis's note dated Feb. 3, 2021; Review of System section); id. at 819-20 (diagnosis of “H81.03 Tradjectory [sic] Menieres Disease” (Dr. Nutis's note dated Feb. 3, 2021; assessment section).
To be sure, the ALJ could have been precise and state the full name of the diagnosis to foreclose the contention Martinez makes here, but “[p]rocedural perfection in administrative proceedings is not required.” Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988). Moreover, even if the ALJ misinterpreted Dr. Nutis's diagnosis, as Martinez argues, for it to constitute reversible error, Martinez must show more. Specifically, the burden is on Martinez to show that the ALJ's “error was prejudicial.” Jones v. Astrue, 691 F.3d 730, 734 (5th Cir. 2012). Martinez fails to meet this burden.
Martinez speculates, but fails to substantiate, that the ALJ's misinterpretation led to his “downplaying” the impact of her symptoms on the RFC. Pl.'s Br. at 11. But the ALJ's decision, read in light of the record evidence, suggests to the contrary. As mentioned, at step two, the ALJ found that Martinez's vertigo was a severe impairment. Moreover, it should be recalled that the ALJ cited Dr. Nutis's diagnosis at issue in the context of his evaluation of the medical evidence about her ability to walk, and regarding her ability to walk, the ALJ included additional limitations in the RFC beyond those assessed by state-agency medical consultants. Specifically, the consultants found that she could “stand and/or walk for 6 hours per 8-hour workday and sit for 6 hours per 8-hour workday.” Tr. at 28. The ALJ explained:
The paragraph in which the ALJ cited Dr. Nutis's diagnosis reads in full as follows:
In October 2019, it was noted that the claimant was ambulatory and that she could walk without restrictions (Ex. 21F/23). Treatment notes from November 2019 again indicate that the claimant was ambulatory and that she could walk without restrictions (Ex. 21F/20).
While the claimant reported feeling dizzy in December 2019 (contemporaneous with the end of the relevant period), it was found that she nonetheless exhibited normal gait on physical examination (Ex. 19F/13) - moreover, the claimant's vertigo diagnoses was [ sic ] assessed to be "benign" at this time (Ex. 19F/13).Tr. at 26 (italics in original).
While there is plenty of evidence in treatment notes during the relevant period that supports the assessments of the State agency's consultants, the undersigned finds that the frequent subjective dizziness and imbalance complaints documented in medical records along with the presence of at least some objective findings indicative of gait abnormalities warrant a further extent of physical restriction . . ., particularly with regard to standing and walking.Id. The ALJ's RFC assessment states, inter alia, that “the claimant is further restricted such that she is limited to standing and/or walking for a combined total of 2 hours per 8-hour workday.” Id. at 25. The Court therefore finds that even if the ALJ made an error in interpreting Dr. Nutis's diagnostic statement, any such error was harmless. See Keel, 986 F.3d at 556 (“Harmless error exists when it is inconceivable that a different administrative conclusion would have been reached even if the ALJ did not err.” (citing Frank, 326 F.3d at 622)); Bordelon v. Astrue, 281 Fed.Appx. 418, 422 (5th Cir. 2008): Brock v. Chater, 84 F.3d 726, 729 (5th Cir. 1996) (“We will not reverse the decision of an ALJ for lack of substantial evidence where the claimant makes no showing that he was prejudiced in any way by the deficiencies he alleges.” (citation and footnote omitted)).
D. “Cherry-Picking” Evidence
An “ALJ must consider all the record evidence and cannot ‘pick and choose' only the evidence that supports his position.” Loza, 219 F.3d at 393-94 (citing, among others, Switzer v. Heckler, 742 F.2d 382, 385-86 (7th Cir. 1984)). The prohibition against cherry-picking evidence is a court-created doctrine and has its roots in the administrative principle that the ALJ must “fairly evaluate[] the competing items of evidence in an even-handed way.” Khan v. Saul, 855 Fed.Appx. 343, 352 (9th Cir. 2021) (Collins, J. dissenting) (citing, among others, Garrison v. Colvin, 759 F.3d 995, 1018 n.23 (9th Cir. 2014) (“[A]n ALJ is not permitted to ‘cherry-pick' from mixed results to support a denial of benefits.” (cleaned up))).
Although appellate courts have stated the prohibition with slight linguistic variations, they all require the ALJ to expressly discuss, in his written decision, countervailing evidence that undermines his finding on nondisability, when he relies on other evidence that supports that finding. See, e.g., Plessinger v. Berryhill, 900 F.3d 909, 915 (7th Cir. 2018) (“ALJs are not permitted to cherry-pick evidence from the record to support their conclusions, without engaging with the evidence that weighs against their findings.”); Stephens, 888 F.3d at 329 (“The ALJ may not select and discuss only that evidence that favors [his] ultimate conclusion but must confront the evidence that does not support [his] conclusion and explain why it was rejected.” (cleaned up)); Trujillo v. Comm'r, SSA, 818 Fed.Appx. 835, 842 (10th Cir. 2020) (“[A]bsent an explanation, ‘an ALJ is not entitled to pick and choose through an uncontradicted medical opinion, taking only the parts that are favorable to a finding on nondisability.'” (brackets omitted) (quoting Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007)).
When an ALJ improperly cherry-picks evidence, he commits reversible error. Scrogham v. Colvin, 765 F.3d 685, 699 (7th Cir. 2014). But omitting the mention of the countervailing evidence does not amount to improper cherry-picking where the reviewing court can readily glean from the record a proper reason for the omission. See, e.g., Prill v. Kijakazi, 23 F.4th 738, 748-49 (7th Cir. 2022) (concluding that “medical records . . . dictate that the ALJ did not improperly cherry-pick evidence”); Baldwin v. Berryhill, 746 Fed.Appx. 580, 584 (7th Cir. 2018) (noting that ALJ did not err when he decided to ignore a finding from a psychological evaluation report, but instead relied on the psychologist's explanation in the narrative assessment in the same report); Jones v. Berryhill, 720 Fed.Appx. 851, 853 (9th Cir. 2017) (finding ALJ did not cherry-pick evidence where the counter examples of evidence plaintiff cited were “of limited relevance”); Shockley v. Colvin, 564 Fed.Appx. 935, 938 (10th Cir. 2014) (finding ALJ did not improperly pick and choose among medical reports where “[t]he findings that the ALJ did not discuss consist[ed] of only mild impairments or limitations” and nothing in the doctor's report “suggest[ed] any greater limitations than the ALJ accounted for in his RFC finding”); Hoelck v. Astrue, 261 Fed.Appx. 683, 685-86 (5th Cir. 2008) (rejecting claimant's argument that the ALJ impermissibly picked and chose evidence by considering only her higher GAF scores, but ignoring her lowest GAF score, where the ALJ noted in his decision the medical visit in which she received the lowest score, and “the ALJ could have permissibly concluded [that the lowest score] was entitled to less weight”).
See also Trujillo, 818 Fed.Appx. at 842 (applying harmless-error analysis to ALJ's failure to explain why she omitted certain medical opinions by two non-examining physicians but heavily relied on the physicians' other opinions); White v. Comm'r of Soc. Sec., 572 F.3d 272, 284 (6th Cir. 2009) (“[W]e see little indication that the ALJ improperly cherry picked evidence; the same process can be described more neutrally as weighing the evidence.”).
After all, “an ALJ need not mention every piece of evidence” in his written decision. Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010); see also Falco, 27 F.3d at 163 (rejecting as unnecessary rule requiring ALJ to specifically articulate evidence that supported decision and discuss evidence that was rejected); Austin, 52 F.4th at 729 (“And the ALJ is not required to explicitly reconcile every conflicting shred of medical evidence.” (cleaned up)). Moreover, to repeat, simply because the ALJ did not discuss the countervailing evidence in his written decision does not mean that he did not consider it. See Castillo, 151 Fed.Appx. at 335 (“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.”), supra.
As an initial matter, the Court notes that Martinez advances numerous arguments under the “cherry-pick” umbrella-which, no doubt, suggests a “kitchen-sink” approach. Some of these arguments are not necessarily germane to an analysis under the “cherry-pick” line of case law but are more appropriately addressed under other rubrics of the relevant law. The Court will address these untethered issues in Part IV.G, infra. What remain for the Court to address here are: Martinez's arguments that the ALJ cherry-picked evidence from several medical treatment notes. Pl.'s Br. at 16-17. Below, the Court addresses each in turn.
Dynegy Mktg. & Trade v. Multiut Corp., 648 F.3d 506, 513 (7th Cir. 2011) (“Not only does the ‘kitchen sink' approach to briefing cause distraction and confusion, it also consumes space that should be devoted to developing the arguments with some promise.” (internal quotes omitted)).
First, Martinez argues that the ALJ cherry-picked evidence from Dr. Onuoha's treatment note dated October 10, 2019. Pl.'s Br. at 16. Martinez points out that the ALJ cited that note to write: “‘it was noted that the claimant was ambulatory and could walk without restrictions.'” Tr. at 26 (quoting Ex. 21F/23, i.e., Tr. at 864). This notation, she further points out, was mentioned under the “social history” section of the doctor's note, but the ALJ, she complains, did not say so. Pl.'s Br. at 16. She adds that the ALJ omitted that she reported to Dr. Onuoha that she was “[u]nable to walk straight and leans to one side,” which is stated in the same note. Tr. at 865.
To be sure, the “social history” section of the treatment note indicates that Dr. Onuoha reviewed the information listed under the section. Id. at 864 (“Reviewed Social History”). Moreover, despite her report that she was unable to walk straight (the notation that the ALJ omitted), the note indicates that Dr. Onuoha found, upon conducting a physical examination of her, that she “ambulate[d] independently,” and her “gait/posture” was “normal.” Id. at 865. Because the omitted notation, her subjective complaint, is not consistent with Dr. Onuoha's objective finding but the notation that the ALJ cited is, the Court finds that the ALJ was not required to mention the omitted notation and he did not improperly cherry-pick evidence. See Ramirez v. Colvin, 606 Fed.Appx. 775, 779 (5th Cir. 2015) (finding no error where the ALJ discounted claimant's subjective complaints contrary to medical evidence and stating “it is the role of the Commissioner, and not the courts, to resolve conflicts in the evidence”).
The Court also observes that elsewhere in his written decision, the ALJ noted a similar subjective statement by Martinez that “she must hold onto her husband, a shopping cart, or other objects (e.g., assistive devices such as a cane) for balance and stability when standing or walking,” Tr. at 25, but discounted it by pointing out that during a doctor's visit in July 2019, she “reported . . . that she had not had to use a cane or walker despite her dizziness,” id. at 26 (emphasis in original).
Second, Martinez argues that the ALJ cherry-picked evidence from Dr. Bahamon's treatment note dated July 22, 2019. Pl.'s Br. at 16. Martinez points out that the ALJ cited this note to write, “[n]eurology treatment notes . . . indicate that despite the claimant's exhibited ataxic gait due to vertigo[,] . . . it was also noted on examination that the claimant exhibited normal muscle tone with no indications of motor weakness or atrophy on physical examination.” Tr. at 26 (citing Tr. at 604, cited as Ex. 10F/7). She argues that the ALJ cherry-picked evidence because he omitted the following diagnosis that appears on the same page of the treatment note: “Other Findings: With the Nilen-Barany [ sic ] maneuver, and [ sic ] severe vertigo was elicited and noticeable rotatory nystagmus which was fatigable was seen.” Id. at 604.
Earlier, the Court found that the ALJ committed no error by failing to expressly discuss or evaluate the portion of Dr. Bahamon's diagnosis that states that severe vertigo was elicited on the Nylen-Barany test. See Part IV.B, supra.
In the portion of the ALJ's written decision where the ALJ cited Dr. Bahamon's note, the ALJ concluded that the cited notation “is not suggestive of substantial disuse of the lower extremities through the avoidance of standing/walking.” Tr. at 26. But Dr. Bahamon's diagnostic notation about severe vertigo, which the ALJ omitted, says nothing about her ability to walk or stand; so, the ALJ had no reason to mention it. Moreover, the medical records call into question the probative value of Dr. Bahamon's diagnosis of severe vertigo-the weighing of which was clearly within the province of the ALJ. See Muse v. Sullivan, 925 F.2d 785, 790 (5th Cir. 1991) (“The ALJ as factfinder has the sole responsibility for weighing the evidence.”). The records indicate that on July 5, 2019, a few days before Dr. Bahamon's test, Dr. Lance Jackson, a neuro-otologist, performed a Dix-Hallpike maneuver test on Martinez; her chief complaint for the visit was vertigo. Tr. at 564. During Dr. Jackson's test, Martinez reported no dizziness or vertigo when in supine or sitting positions, mild and negative nystagmus was observed in the supine position, and no spontaneous nystagmus was observed. Tr. at 567. Thus, Dr. Jackson's diagnosis, to some extent, contradicts Dr. Bahamon's diagnosis. Cf. Guzman v. Barnhart, 159 Fed.Appx. 578, 581 (5th Cir. 2005) (observing that two examination notes “somewhat contradict[]” each other, but stating “it is for the ALJ, not this Court, to resolve such inconsistencies”). To be sure, had the ALJ discussed Dr. Jackson's diagnosis to support any finding of nondisability, but omitted Dr. Bahamon's diagnosis, it would be a clear case of an improper cherry-picking. But in his decision, the ALJ discussed neither diagnosis.
As mentioned earlier, Dr. Bahamon's diagnostic statements are not subject to § 404.1520c(b)'s articulation requirements, see Part IV.B, supra; Austin, 52 F.4th at 729 n.3, supra. The same holds true for Dr. Jackson's diagnostic statements. Moreover, the ALJ considered both diagnostic statements as evidenced by the fact that he cited, for other information, both physicians' treatment notes that contain their diagnoses.
The Court finds that the ALJ did not improperly cherry-pick evidence from Dr. Bahamon's note by omitting the doctor's Nylen-Barany diagnostic result. Cf. Trujillo, 818 Fed.Appx. at 842 (“[A]bsent an explanation, an ALJ is not entitled to pick and choose through an uncontradicted medical opinion . . . .'” (cleaned up)), supra; Switzer, 742 F.2d at 385-86 (observing that a doctor's “report is uncontradicted,” and stating “the Secretary's attempt to use only the portions favorable to her position, while ignoring other parts, is improper” (emphasis added)), cited with approval in Loza, 219 F.3d at 393.
Third, Martinez argues that the ALJ cherry-picked evidence from Dr. Onuoha's treatment note dated February 21, 2020, which was after the relevant disability period. Pl.'s Br. at 16. As Martinez points out, the ALJ cited that note to write: “For example, in February 2020, it was found that the claimant could walk without restrictions,” Tr. at 27 (citing Ex. 17F/5, i.e., Tr. at 703 (doctor's note)), “and that she ambulated independently with a normal gait, even on her tiptoes,” Id. (citing Ex. 17F/5, i.e., Tr. at 704) (same). Martinez argues that the treatment note actually says, “unsteady gait” and that her vertigo episodes are “now occurring more frequently.” Pl.'s Br. at 16 (citing Tr. at 704). She faults the ALJ for omitting this evidence in his written decision.
The omitted notation is found under the “History of Present Illness” (HPI) section of Dr. Onuoha's note. That section states in relevant part: “Episodes [of vertigo] were occurring infrequently but now occurring with more frequency. Two weeks ago[,] she developed pressure in her head, nausea, unsteady gait.” Tr. at 704 (emphasis added). Martinez plucks the italicized portions from the just-quoted notation. As the notation makes clear, she developed unsteady gait “two weeks ago.” The Court's review of the medical records reveals that the same notation is found (including the “two weeks ago” language) in multiple other treatment notes authored by Dr. Onuoha-dating as far back as June 2018. See, e.g., Tr. at 716. That suggests that this notation as it appears in Dr. Onuoha's February 21, 2020 treatment note does not describe Martinez's symptoms from around that date, but from June 2018-an obvious carry-over mistake.
As such, the omitted notation has no temporal relevance to the ALJ's opinion for which he cited the treatment note. Specifically, he cited Dr. Onuoha's note in support of his opinion that “even more recent treatment records since the end of the relevant period suggest that the claimant has continued to function at a higher level than she reported at the hearing,” Tr. at 27 (emphasis added); recall, the relevant period ended on December 31, 2019. Moreover, the notations that the ALJ cited appear under the “Reviewed Social History” and “Physical Exam” sections of the treatment note; that suggests that they were based on the review and examination Dr. Onuoha conducted on the date of the note. The Court therefore finds that the ALJ did not improperly cherry-pick evidence from Dr. Onuoha's February 21, 2020 note by omitting the mention of the notation Martinez points out.
Fourth, Martinez argues that the ALJ cherry-picked evidence from Dr. Jackson's treatment note dated July 5, 2019. Pl.'s Br. 17. In his written decision, the ALJ wrote that “it is notable that the claimant reported at this time that she had not had to use a cane or walker despite her dizziness.” Tr. at 26 (citing Ex. 8F/6, i.e., Tr. at 564) (original italic and underline emphasis omitted; new italic emphasis added). Martinez points out that during the same visit, she reported, but the ALJ omitted, that her dizziness was constant and “very severe.” Pl.'s Br. 17 (citing Tr. at 564). The ALJ did not cherry-pick evidence because he expressly stated “despite her dizziness” in the above-quoted statement in his written decision. Tr. at 26. Moreover, as previously mentioned, the ALJ added “a further extent of physical restriction” in the RFC- beyond those assessed by the state-agency consultants-on the account of her “frequent subjective dizziness . . . complaints documented in medical records.” Id. at 28.
In sum, the Court finds, contrary to Martinez's arguments, that the ALJ did not improperly cherry-pick evidence. The Court finds no error on this ground.
E. Concentration
Martinez argues that she testified at the hearing before the ALJ that she had problems with concentration caused by her vertigo and that the ALJ erred as a matter of law because, in the RFC, he did not include any “additional” limitation related to her concentration problems. Pl.'s Br. at 14 (citing Tr. at 58 (hearing testimony)). Once again, the Court observes, Martinez does not say what specific limitations the ALJ should have included that are different in kind or severity than those the ALJ already included in the RFC.
The cited portion of her hearing testimony followed a line of questions Martinez's counsel asked, after she testified that she “get[s] episodes” of vertigo. Tr. at 54. Counsel asked, “you said you get episodes, what happens in an episode?” Id., “how does it [i.e., a vertigo episode] affect your ability to walk?” Id. at 55, “[w]hat about standing?” Id. at 56, and “any issues with sitting at all?” Id. at 57. Immediately after asking the last question-whether her vertigo affects, if at all, her sitting-the following colloquy ensued:
Q [Counsel] Okay. And how does this affect your ability to concentrate or focus like, you know, using a computer, reading, writing?
A [Martinez] I don't do that, sir, I can't. It's like too much pressure on my head, you know. I -- even watching TV, you know, after a while I can't -- you know, I can't be -- I'm not one to be sitting down because I can't tolerate it after a while. Reading, I like to read but I can't, you know. It's just like too much pressure on my head.Tr. at 58 (emphasis added). Martinez's testimony was, to a large extent, nonresponsive to counsel's question how her vertigo affected her ability to concentrate. The essence of her response was that her episodic vertigo causes pressure in her head and in turn, because of that pressure, she could not continue to sit down “after a while.”
And the ALJ considered that testimony in assessing her RFC. Tr. at 26 (writing “[s]he also claimed that episodes of vertigo affect her while sitting.” (discussing Martinez's hearing testimony)). In the end, however, the ALJ found that Martinez's impairments could reasonably be expected to cause the alleged symptoms, but that her statements concerning the intensity, persistence and limiting effects of these symptoms were not entirely consistent with the medical evidence. Tr. at 26. So, to the extent that her testimony was that she had difficulty with her ability to concentrate due to her vertigo, as Martinez interprets it, and further to the extent that the ALJ failed to include any limitation in the RFC based on her concentration problems, as Martinez claims, Pl.'s Br. at 14-the ALJ appears to have found that her testimony in this regard was not credible at all. At base, “the evaluation of a claimant's subjective symptoms is a task particularly within the province of the ALJ who has had an opportunity to observe whether the person seems to be disabled,” Harrell v. Bowen, 862 F.2d 471, 480 (5th Cir. 1988) (brackets omitted), and a reviewing court “accord[s] ‘great deference' to an ALJ's assessment of a claimant's credibility,” Ramirez, 606 Fed.Appx. at 779 (quoting Newton v. Apfel, 209 F.3d 448, 459 (5th Cir. 2000)).
Still, Martinez insists that if the ALJ was discrediting her complaints related to her concentration, the ALJ failed to articulate any reasons for discounting those symptoms and limitations; and that was an error. Pl.'s Br. at 14. In the Fifth Circuit, “the ALJ must articulate reasons for rejecting [a] claimant's subjective complaints of pain,” or other symptoms, “when the evidence clearly favors the claimant.” Falco v. Shalala, 27 F.3d 160, 163 (5th Cir. 1994); accord James J. Flanagan Stevedores, Inc. v. Gallagher, 219 F.3d 426, 430 & n.8 (5th Cir. 2000). That is not the case here. To the contrary, the medical evidence of record (both from during and shortly after the relevant disability period) does not substantiate Martinez's contention here or her reimagined testimony that she had difficulty with her ability to concentrate. During her July 5, 2019 visit with Dr. Jackson, Martinez denied having any inability to concentrate. Tr. at 566. On October 10, 2019, Dr. Onuoha noted, upon his review of Martinez's social history, negative for difficulty in concentrating. Id. at 709. Likewise, on November 21, 2019, Dr. Onuoha again noted negative for difficulty in concentrating. Id. at 705. On January 20, 2020, shortly after the relevant disability period ended, Dr. Perry, upon examination, found that she had “normal attention span and concentration.” Id. at 686. On February 21, 2020, Dr. Onuoha once again noted negative for difficulty in concentrating. Id. at 702.
The Court therefore finds that the ALJ did not err by not expressly articulating his reasons for discounting Martinez's testimony cited above insofar as it speaks to her difficulty with concentration. Moreover, there is more than substantial evidence (the medical evidence discussed above) that supports not including in the RFC any additional limitation-albeit, not specified by Martinez-on the account of any purported difficulty with her concentration apparently caused by her vertigo; the ALJ did not err in this regard either. See Hollis v. Bowen, 837 F.2d 1378, 1385 (5th Cir. 1988) (The ALJ is “not require[d] [to] . . . give subjective evidence precedence over medical evidence. Instead, . . . a resolution of conflicts between the subjective evidence and the medical evidence should depend upon the ALJ's evaluation of the credibility of the claimant's complaints of pain.” (citations omitted)); Acosta v. Astrue, 865 F.Supp.2d 767, 790 (W.D. Tex. 2012) (“RFC determinations are inherently intertwined with matters of credibility, and the ALJ's credibility determinations are generally entitled to great deference.” (cleaned up)).
F. Medication Side Effects
Martinez argues that the ALJ erred as a matter of law because he failed to consider the effects of Martinez's medications. Pl.'s Br. at 21. Under the social security regulations, an ALJ is required to consider the “type, dosage, effectiveness, and side effects of any medication [the claimant] take[s] or ha[s] taken to alleviate . . . pain or other symptoms.'” 20 C.F.R. 404.1529(c)(3)(iv)). The ALJ's RFC assessment must be based on all of the relevant evidence in the record including the evidence of any “limitations arising from the medication side effects.” Acosta, 865 F.Supp.2d at 790 (citing SSR 96-8p, 1996 WL 374184, at *5 (July 2, 1996)).
As an initial matter, it is unclear whether Martinez was taking medications for her vertigo or other conditions during the relevant disability period. The Commissioner says that she has failed to show that she did. Def.'s Resp. 15. In her brief, she does not clearly say that she was or is taking such medications. Pl.'s Br. at 21-22. The Court's review of the record reveals the following. According to a doctor's treatment record from June 2019, Martinez started taking Meclizine for her vertigo and dizziness in June 2018. Tr. at 923; but compare id. at 710 (“Takes Meclizine with minimal relief.” (Dr. Onuoha's Oct. 10, 2019 treatment note)), with id. at 704 (“No longer taking Meclizine and paroxetine due to no relief to symptoms.” (Dr. Onuoha's Nov. 21, 2019 treatment note)). And it appears that from time to time, she was prescribed other medications. Id. at 501, 565, 605, 1065.
At the administrative level, Martinez did not allege that she experienced side effects of her medications or that such effects were disabling. As the Commissioner points out, initially, in April 2019, she did not even assert that she took any medications, Id. at 266, and closer to the hearing before the ALJ, she submitted a list of medications, but did not allege that she experienced any side effects of those medications, Id. at 366. Martinez points to Dr. Nutis's treatment note from December 13, 2018, as evidence of her medication side effects: the note states, under its history of present illness section, that “patient takes Meclizine to help for symptoms,” and patient “states she is on the computer 7 hours a day. Meclizine 25 mg does help[,] and she gets sleepy at work.” Tr. at 503; see also Pl.'s Br. at 21-22. But this report of sleepiness falls outside the relevant disability period. Other than that isolated remark, Martinez does not point to any evidence of side effects-much less any evidence of functional limitations caused by such side effects. Moreover, at the hearing before the ALJ on June 2, 2021, and in response to her counsel's questioning, Martinez testified that she was receiving an injection beginning two weeks prior and that she was taking a medication for her vertigo. Id. at 58-59. But she did not testify what, if any, side effects she was experiencing from such medications. Further, in response to her counsel's final question toward the end, “[i]s there any other health problem or anything else that you wanted to mention before I stop asking you anymore questions?” she did not mention any side effects from her medications. Id. at 60-61.
Cf. Crowley v. Apfel, 197 F.3d 194, 199 (5th Cir. 1999) (finding the Commissioner's conclusion that the claimant suffered from no adverse side effects due to prescribed medications was in error, where the claimant testified at the hearing that she experienced medication side effects).
Consequently, the Court finds that the ALJ did not err by failing to consider any side effects of Martinez's medications. See Huff v. U.S. Comm'r S.S.A., No. CV 19-0659, 2020 WL 7396344, at *10-11 (W.D. La. Dec. 1, 2020) (finding the ALJ's failure to consider the side effects of the plaintiff's medication in evaluating her RFC was not error, where the plaintiff's argument that the side effects of her medication are disabling is unsupported by medical evidence in the record and the plaintiff “herself failed to include medication limitations in her RFC at her administrative hearing”); Stanfill v. Colvin, No. 4:14-CV-603, 2015 WL 2384250, at *9 (S.D. Tex. May 18, 2015) (rejecting the plaintiff's contention that ALJ erred by failing to consider the side effects of her medications, where those side effects were not substantiated by objective medical evidence and the plaintiff did not raise the issue of side effects at the hearing); see also Leggett, 67 F.3d at 566 (“The ALJ's duty to investigate . . . does not extend to possible disabilities that are not alleged by the claimant or to those disabilities that are not clearly indicated on the record.”), supra.
G. Plaintiff's Remaining Issues
Martinez assigns three additional errors. In her brief, she asserts them under her discussion of the ALJ's alleged cherry-picking evidence. The Court addresses them separately here because these are not arguments of the form that the ALJ cherry-picked evidence.
Two of these issues relate to two medical notes that the ALJ cited in further support of his opinion that even more recent treatment records since the end of the relevant disability period suggest that the claimant has continued to function at a higher level than she reported at the hearing. Tr. at 27. From one note, the ALJ recounted, “the claimant was reportedly feeling well and had no complaints,” Tr. 27 (citing Ex. 26F/11, i.e., Tr. at 1034 (Dr. Lookman's note dated April 16, 2020), but Martinez points out that the note actually says: “No new complaints,” Pl.'s Br. at 16 (underline added). From the other note, the ALJ recounted, “[i]n May 2020, the claimant reported that she felt she was doing better, that her dizziness, symptoms were resolving and more tolerable,” Tr. 27 (incorrectly citing Ex. 21F/3 instead of Ex. 21F/14, i.e., Tr. at 855) (Dr. Onuoha's note dated May 21, 2020)), but Martinez points out that the note actually says that the patient thinks “the episodes are somewhat resolving,” Pl.'s Br. at 16 (underline in original).
These appear to be scrivener's errors. In any event, other evidence that the ALJ cited for his above-mentioned opinion but not challenged by Martinez, e.g., Tr. 27 (citing Ex. 27F/5, i.e., Tr. at 1042 (Dr. Onuoha's May 19, 2021)), and Dr. Onuoha's February 21, 2020 treatment note discussed above, see Part IV.D, supra, are substantial evidence that supports the ALJ's opinion that more recent treatment records following the relevant disability period suggest that Martinez has continued to function at a higher level than she reported at the hearing. These scrivener's errors are harmless. See Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008) (“[A]n arguable deficiency in opinion-writing technique does not require us to set aside an administrative finding when that deficiency had no bearing on the outcome.” (internal quotes omitted)).
See also Allen v. Kijakazi, No. 21-30771, 2022 WL 7265517, at *2 & n.1 (5th Cir. Oct. 12, 2022) (unpublished) (affirming ALJ's decision that claimant was not entitled to disability insurance benefits where the ALJ's determination that the claimant had the RFC to perform “light work” was supported by substantial evidence-though his statement that a medical expert had found that the claimant was capable of performing “sedentary work” was a scrivener's error, because the expert actually found that she was capable of performing “light work”).
Finally, Martinez argues that the ALJ ignored her complaints of nausea which she made to her doctors. Pl.'s Br. at 18. She points out that during her July 5, 2019 visit with Dr. Jackson, she reported vertigo “associated nausea and vomiting,” Tr. at 564, and during her November 21, 2019 visit with Dr. Onuoha, she reported “constant nausea.” Id. at 862.
At the hearing, Martinez testified about her dizziness and nausea. And, in his written decision, the ALJ referenced “her vertigo symptoms of dizziness and nausea” in summarizing her testimony. Tr. at 25. Moreover, to repeat, the ALJ added “a further extent of physical restriction” in the RFC-beyond those assessed by the state-agency consultants-on the account of her “frequent subjective dizziness and imbalance complaints documented in medical records.” Id. at 28. The Court can reasonably infer that the ALJ's reference to her complaints of dizziness in his remark just quoted implicitly subsumes her complaints of nausea. See Duffy v. Comm'r of Soc. Sec., 736 Fed.Appx. 834, 837 (11th Cir. 2018) (“[T]he ALJ need not discuss expressly each piece of evidence[,] . . . so long as the ALJ's decision enables the reviewing court to conclude that the ALJ considered the claimant's medical condition as a whole.” (cleaned up)).
That inference is particularly warranted because the medical records, including the treatment notes that Martinez cites as evidence of nausea, reflect that her reports of nausea coincided with her reports of dizziness or vertigo. E.g., Tr. 870 (“Dizziness is accompanied by nausea/Vomiting” (Dr. Onuoha's note dated June 18, 2018)); Id. at 823 (“But when she turns her head in bed she gets dizzy and nauseated.” (Dr. Nutis's note dated January 5, 2021)); Id. at 564 (noting “chief complaint of dizziness [was] described as vertigo and imbalance” (Dr. Jackson's note dated July 5, 2019)); Id. at 860 (noting chief complaint for the visit was vertigo (Dr. Onuoha's note dated November 21, 2019)). The Court therefore finds, contrary to Martinez's contention, that the ALJ did not ignore her complaints of nausea, and the ALJ therefore did not err.
V. CONCLUSION
For the foregoing reasons, IT IS RECOMMENDED that the Commissioner's decision be AFFIRMED.
SO ORDERED
NOTICE
FAILURE TO FILE WRITTEN OBJECTIONS TO THE PROPOSED FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS CONTAINED IN THE FOREGOING REPORT, WITHIN FOURTEEN DAYS OF SERVICE OF SAME, MAY BAR DE NOVO DETERMINATION BY THE DISTRICT JUDGE OF AN ISSUE COVERED HEREIN AND SHALL BAR APPELLATE REVIEW, EXCEPT UPON GROUNDS OF PLAIN ERROR, OF ANY UNOBJECTED-TO PROPOSED FACTUAL FINDINGS AND LEGAL CONCLUSIONS AS MAY BE ACCEPTED OR ADOPTED BY THE DISTRICT COURT.