AMY BALLIDIS v. KILOLO KIJAKAZI, Acting Commissioner of Social Security
Civil Action No. 4:21-cv-403-ALM-KPJ
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION
February 21, 2023
KIMBERLY C. PRIEST JOHNSON, UNITED STATES MAGISTRATE JUDGE
Plaintiff Amy Ballidis (“Ms. Ballidis“) brings this appeal under
I. APPLICABLE LAW
A. Sequential Evaluation Process
To qualify for disability benefits, a claimant must establish that he or she is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.”
When considering a disability application, the Commissioner is required to use a five-step
B. Standard of Review
The standard of review in a social security appeal is whether the Commissioner‘s final decision3 “is supported by substantial evidence in the record and whether the proper legal standards were used in evaluating the evidence.” Bowling, 36 F.3d at 434 (quoting Villa, 895 F.2d at 1021). If substantial evidence supports the Commissioner‘s findings and the correct legal
“Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Pena v. Saul, 846 F. App‘x 308, 309 (5th Cir. 2021) (per curiam) (internal quotation marks omitted) (quoting Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994)). “[I]t must be more than a scintilla, but it need not be a preponderance.” Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995) (quoting Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992)). Substantial evidence “must do more than create a suspicion of the existence of the fact to be established, but ‘no substantial evidence’ will be found only where there is a ‘conspicuous absence of credible choices’ or ‘no contrary medical evidence.‘” Bailey v. Saul, 853 F. App‘x 934, 935 (5th Cir. 2021) (per curiam) (quoting Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988) (per curiam) (internal citation omitted)). The Court “may not reweigh the evidence in the record, nor try the issues de novo, nor substitute [the Court‘s] judgment for the [Commissioner‘s], even if the evidence preponderates against the [Commissioner‘s] decision.” Bowling, 36 F.3d at 434 (quoting Harrell, 862 F.2d at 475). Rather, evidentiary conflicts are for the Commissioner to decide, and “if a decision is supported by substantial evidence, it must be affirmed even if there is contrary evidence.” Bailey, 853 F. App‘x at 935 (citing Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990) (per curiam)). However, the Court must do more than “rubber stamp” the decision; the Court must “scrutinize the record and take into account whatever fairly detracts from the substantiality of evidence supporting the [Commissioner‘s] findings.” Cook v. Heckler, 750 F.2d 391, 393 (5th Cir. 1985).
Ms. Ballidis was born in 1968, attended four or more years of college, and last worked in 2018 as a paralegal.4 See Tr. 29, 151, 188-192, 215. On April 25, 2019, Ms. Ballidis filed an application for disability insurance benefits (“DIB“), alleging disability since October 31, 2018, due to “SP Spinal Cord Stimulator 11/2018” and cervicalgia. See id. at 21, 188-99. The Social Security Administration (“SSA“) denied Ms. Ballidis‘s claim initially on July 9, 2019, and upon reconsideration on October 23, 2019. See id. at 94-99. Thereafter, Ms. Ballidis filed a written request for a hearing. See id. at 100-01. On July 21, 2020, Administrative Law Judge Thomas Wheeler (the “ALJ“) held a hearing. See id. at 36-64. The hearing was attended by Ms. Ballidis, her attorney, and a vocational expert (“VE“). See id. at 38, 55.
On October 28, 2020, the ALJ issued an unfavorable decision denying Ms. Ballidis‘s claim. See id. at 16-31. In her decision, the ALJ found Ms. Ballidis met the insured status requirements of the Social Security Act through December 31, 2023. See id. at 21. At step one, the ALJ found that Ms. Ballidis had not engaged in substantial gainful activity since the alleged onset date, October 31, 2018. See id. At step two, the ALJ found that Ms. Ballidis had the following severe impairments: degenerative disc disease of the cervical spine with radiculopathy and left anterior cruciate ligament (“ACL“) tear. See id. At step three, the ALJ found that none of Ms. Ballidis‘s impairments, alone or in combination, met or medically equaled a Listing. See id. at 24-25. Because the ALJ found that none of the impairments met a Listing, the ALJ assessed Ms. Ballidis‘s RFC. See id. at 25-28. The ALJ found Ms. Ballidis had the RFC to:
lift, carry, push, and pull 20-pounds occasionally and 10-pounds frequently. The claimant can sit for a total of 6-hours of an 8-hour workday and can stand and walk
for a total of 6-hours of an 8-hour workday. The claimant can occasionally perform reaching (in all directions), handling, fingering, and feeling with the right upper extremity. Finally, the claimant can occasionally climb ramps and stairs, can occasionally climb ladders, ropes, and scaffolds, and can perform occasional balancing, stooping, kneeling, crouching and crawling.
Id. at 25. At step four, the ALJ found that Ms. Ballidis was unable to perform any past relevant work. See id. at 29. At step five, the ALJ determined that considering Ms. Ballidis‘s age, education, work experience, and RFC, there were jobs that existed in significant numbers in the national economy she could perform. See id. at 30. Relying on the VE‘s testimony, the ALJ determined that Ms. Ballidis could perform occupations such as usher, children‘s attendant, and furniture rental clerk. See id. Accordingly, the ALJ concluded Ms. Ballidis was not disabled within the meaning of the Social Security Act (the “Act“). See id. at 31.
Ms. Ballidis requested that the Appeals Council review the ALJ‘s unfavorable decision. See id. at 148-50. On April 1, 2021, the Appeals Council denied the request for review. See id. at 1-3. Therefore, the ALJ‘s decision became the Commissioner‘s final decision. See Sims v. Apfel, 530 U.S. 103, 106-07 (2000);
III. ANALYSIS
Ms. Ballidis argues both that the ALJ applied the incorrect legal standards and the ALJ‘s RFC determination is not supported by substantial evidence. See Dkt. 13 at 11-17. Ms. Ballidis focuses her arguments on the ALJ‘s alleged error to properly consider Ms. Ballidis‘s limitations in carrying and manipulative ability in the physical RFC assessment. See id. at 13-14. For the reasons that follow, the Court finds the Commissioner‘s final decision should be affirmed.
Ms. Ballidis filed her application for DIB on April 25, 2019. See Tr. 20. Therefore, the revised regulations pertaining to medical opinion evidence apply to this case. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017). For claims filed on or after March 27, 2017, all medical sources can provide evidence that is categorized and considered as medical opinion evidence and subject to the same standard of review. See
The new SSA regulations impose three “articulation requirements” when an ALJ considers medical opinion evidence. See
On appeal, Ms. Ballidis contends the ALJ‘s physical RFC assessment was improper because “it is not clear if or how the ALJ addressed [Ms. Ballidis‘s] carrying limitations” and the Court “cannot conduct meaningful review where no explanation of why [a] ‘persuasive’ opinion containing sedentary restrictions in [the] RFC is not adopted.” Dkt. 13 at 12. Ms. Ballidis argues the ALJ found physical therapist Andrew Martinez‘s opinion persuasive but “[w]hile Ms. Ballidis does not disagree, ultimately, with [physical therapist Andrew] Martinez‘s findings, she does not know if this is [a] medical opinion to be weighed or should be considered objective medical evidence of her functional limitations and residual functional capacity.” Id. Ms. Ballidis asserts “[r]egardless of whether it is considered persuasive opinion or objective medical evidence, the recitation of [physical therapist Andrew] Martinez‘s findings in the [ALJ‘s decision] is vague and any failure to accurately reflect the findings is necessary [sic].” Id. In response to Ms. Ballidis‘s argument, the Commissioner argues the ALJ‘s evaluation of the medical evidence and opinions comports with the relevant guidelines as “the regulations governing claims filed on or after March 27, 2017 no longer mandate particularized procedures that the adjudicator must follow in considering opinions from treating sources . . . .” Dkt. 14 at 6. The Commissioner also argues the ALJ was not required to recite any medical opinion verbatim in the RFC assessment. See id. at 9.
Ms. Ballidis‘s argument that it was error for the ALJ to not provide an explanation as to why the ALJ did not include sedentary restrictions from physical therapist Andrew Martinez‘s assessment in the RFC is unavailing. Contrary to Ms. Ballidis‘s assertions, the ALJ is only required to provide an “accurate and logical bridge” within his RFC explanation for meaningful judicial review. Price v. Astrue, 401 F. App‘x 985, 986 (5th Cir. 2010) (per curiam) (citation omitted);
Accordingly, the Court concludes the ALJ applied the correct legal standard in the evaluation of physical therapist Andrew Martinez‘s medical opinion. The ALJ found the opinion of physical therapist Andrew Martinez to be persuasive “as it is consistent with the record as a whole, all of claimant‘s symptoms were considered, and the opinion is supported with explanation and objective testing.” Tr. 28. The ALJ discussed physical therapist Andrew Martinez‘s findings
B. Substantial Evidence
Having found no legal error in the standard the ALJ applied in considering the medical opinion evidence, the Court next considers Ms. Ballidis‘s argument that substantial evidence does not support the ALJ‘s decision.
The RFC is an assessment of a claimant‘s ability to do work on a sustained basis in an ordinary work setting despite the claimant‘s impairments. See Myers v. Apfel, 238 F.3d 617, 620 (5th Cir. 2001). The RFC assessment is based on “all of the relevant medical and other evidence,”
In the ALJ‘s decision, the ALJ found Ms. Ballidis had severe physical impairments of degenerative disc disease of the cervical spine with radiculopathy and left ACL tear. Tr. 21. The ALJ further found Ms. Ballidis had the following physical RFC:
to lift, carry, push, and pull 20-pounds occasionally and 10-pounds frequently. The claimant can sit for a total of 6-hours of an 8-hour workday and can stand and walk for a total of 6-hours of an 8-hour workday. The claimant can occasionally perform reaching (in all directions), handling, fingering, and feeling with the right upper extremity. Finally, the claimant can occasionally climb ramps and stairs, can occasionally climb ladders, ropes, and scaffolds, and can perform occasional balancing, stooping, kneeling, crouching and crawling.
Id. at 25. The ALJ considered Ms. Ballidis‘s testimony concerning the intensity, persistence, and limiting effects of her symptoms and found her allegations “not sufficiently supported by the record as a whole in light of the objective medical findings, the medical history and degree of medical treatment required, and the claimant‘s description of her activities of daily living.” Id. at 27. The ALJ noted Ms. Ballidis‘s daily activities after the alleged onset date indicated she could
The ALJ considered Ms. Ballidis‘s treatment history and found her statements as to the severity of her symptoms to be inconsistent because “although the claimant did undergo surgery to her cervical and lumbar spine, as well as her ACL, the record reflects that those surgeries were generally successful in relieving the symptoms.” Id. The ALJ further noted the objective medical evidence showed there was secondary foraminal stenosis, but no focal nerve or compression was visible, and the interval cervical computed tomography myelogram study did not show any evidence of significant residual cervical neuroforaminal stenosis. See id. (citing Ex. 3/F5-6; 6F/7; 7F/42-43). The ALJ also noted Ms. Ballidis‘s clinical examinations, including findings that her right arm was starting to atrophy from lack of use and her cervical spine revealed a decreased range of motion. See id. (citing Ex. 5F/3, 14; 6F/5-6; 7F/20). The ALJ thus reduced the physical RFC to light level in lifting, carrying, pushing, and pulling and occasional reaching in all directions and for the right upper extremity for handling, fingering, and feeling. See id.
As to the medical opinion evidence of record, the ALJ found the medical opinion of physical therapist Andrew Martinez to be persuasive, as it was consistent with the record as a whole, considered all of claimant‘s symptoms, was supported with explanation and objective testing, and was based on an evaluation of the claimant. See id. at 28 (citing Ex. 1F). The ALJ also found the opinions of the state agency medical consultants (the “SAMCs“) to be persuasive, as they were supported by objective medical evidence and consistent with the record as a whole. See id. (citing Ex. 1A; 3A; 1F). The ALJ also considered Dr. Andrew Wilkins‘s opinion and found it partially persuasive, as Dr. Andrew Wilkins noted there were substantial limitations performing manual tasks with the right arm for more than thirty minutes at a time, which was consistent with
Ms. Ballidis argues substantial evidence does not support the physical RFC assessment because physical therapist Andrew Martinez‘s testing indicated that Ms. Ballidis “[c]an only occasionally carry [ten pounds],” which “is not the frequent requirement seen in
The Court concludes the ALJ‘s physical RFC assessment is supported by substantial evidence. “A finding of no substantial evidence is appropriate only where there is a conspicuous absence of credible choices or no contrary medical evidence.” Rivera v. Comm‘r of Soc. Sec., No. 6:20-cv-614, 2021 WL 7906837, at *2 (E.D. Tex. Nov. 22, 2021) (citing Homan v. Comm‘r of Soc. Sec. Admin., 84 F. Supp. 2d 814, 818 (E.D. Tex. 2000)) (emphasis added); see also Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000) (explaining the reviewing court “may not reweigh the evidence or substitute [its] judgment for that of the Commissioner“). Physical therapist Andrew Martinez found Ms. Ballidis demonstrated the ability to lift up to twenty pounds and could occasionally carry ten pounds. See Tr. 260. Dr. Andrew Wilkins found Ms. Ballidis “cannot lift [in] excess of 10 lbs.” Id. at 471. However, the SAMCs found Ms. Ballidis could occasionally lift and carry twenty pounds and frequently lift and carry ten pounds. Tr. 70, 83. Furthermore, the SAMCs found a physical RFC of light work to be appropriate. See id. at 73, 85. The ALJ also considered Ms. Ballidis‘s testimony of her daily activities, as well as the objective medical evidence of record, and determined a reduction to a light RFC with limitations for occasional reaching in all directions, handling, fingering and feeling with the right upper extremity. See id. at 27. Thus, the Court finds the ALJ‘s physical RFC assessment is supported by substantial evidence in the record.
Ultimately, Ms. Ballidis is asking the Court to come to its own conclusions as to the alleged contradictions between medical opinions of record and undertake its own determination of whether she should be classified as disabled. But this is the “type of de novo review courts must decline.” Cook v. Kijakazi, No. 4:21-CV-03594, 2023 WL 375368, at *4 (S.D. Tex. Jan. 24, 2023), R. & R. adopted, 2023 WL 2020973 (S.D. Tex. Feb. 15, 2023) (citing Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999)). Ms. Ballidis asserts the “uncontradicted findings indicate that [she] does not meet the strength and durational requirements needed for the ‘light work’ offered by the Vocational Expert.” Dkt. 13 at 12. However, there is contradictory evidence in the record, as the SAMCs found that Ms. Ballidis could frequently carry ten pounds and a physical RFC of light work was
In conclusion, the Court finds substantial evidence supports the ALJ‘s physical RFC assessment and there is no legal basis for remand. See Leggett, 67 F.3d at 564.
IV. RECOMMENDATION
For the foregoing reasons, the Court recommends that the Commissioner‘s final decision be AFFIRMED.
Within fourteen (14) days after service of the magistrate judge‘s report, any party may serve and file written objections to the findings and recommendations of the magistrate judge.
A party is entitled to a de novo review by the district court of the findings and conclusions contained in this report only if specific objections are made, and failure to timely file written objections to any proposed findings, conclusions, and recommendations contained in this report shall bar an aggrieved party from appellate review of those factual findings and legal conclusions accepted by the district court, except on grounds of plain error, provided that the party has been served with notice that such consequences will result from a failure to object. Id.; Thomas v. Arn, 474 U.S. 140 (1985); see also Douglass v. United Servs. Auto Ass‘n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc), superseded by statute on other grounds,
KIMBERLY C. PRIEST JOHNSON
UNITED STATES MAGISTRATE JUDGE