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Carson v. Berryhill

United States District Court, S.D. Texas, Houston Division

January 26, 2018



         Pending before the court[2] are Plaintiff's Motion for Summary Judgment (Doc. 10) and Defendant's Cross-Motion for Summary Judgment (Doc. 7). The court has considered the motions, the responses, the administrative record, and the applicable law. For the reasons set forth below, the court RECOMMENDS that Plaintiff's motion be DENIED and Defendant's motion be GRANTED.

         I. Case Background

         Plaintiff filed this action pursuant to 42 U.S.C. § 405(g) for judicial review of an unfavorable decision by the Social Security Administration (“SSA”) Commissioner (“Commissioner” or “Defendant”) regarding Plaintiff's claim for disability insurance benefits under Title II of the Social Security Act (“Act”).

         A. Medical History

         Plaintiff was born on May 26, 1961, and was fifty-one years old on the alleged disability onset date of May 14, 2013.[3]Plaintiff worked as a court reporter for many years up to May 14, 2013.[4] The medical records generally support a history of treatment for psychiatric disorders and diabetes mellitus (“diabetes”).[5]

         1. Psychiatric Disorders

         Plaintiff began treatment with Edward Fallick, D.O., (“Dr. Fallick”) in 2000 for psychiatric disorders.[6] At an appointment four months prior to the alleged onset date, Plaintiff reported that she was feeling much better since starting Abilify, [7] stating that it “[r]eally changed [her] life” and that her mood was a lot lighter and she was “less snappish.”[8] During the relevant time, Plaintiff continued to see Dr. Fallick for medication management until January 2015.[9] At that last appointment, Plaintiff stated that she was “[d]oing fairly well (all things considered).”[10]Although Plaintiff's mood reports varied from increased depression to improved, the mental status examination results were consistently within normal limits, and the Global Assessment of Functioning[11] (“GAF”) score, when included, remained at sixty, a score at the highest functioning end of moderate symptoms.[12] Dr. Fallick diagnosed Plaintiff with mood disorder, not otherwise specified, and regularly adjusted Plaintiff's medications based on Plaintiff's reports of the effects on her mood.[13] None of Dr. Fallick's treatment notes from this time period reflected a diagnosis of bipolar disorder or attention-deficit hyperactivity disorder (“ADHD”) or recorded any cognitive side effects from medication.[14] They also provided no indication of Plaintiff's residual functional capacity or her limitations of daily living, other than the mention that Plaintiff lacked motivation and that she was not going out of the house for certain periods.[15]

         In March 2014, Plaintiff began receiving treatment through the Harris Health System for both medication management and psychotherapy.[16] Cristin Aoshima-Kilroy, M.D., (“Dr. Aoshima-Kilroy”) performed the initial psychiatric evaluation on March 4, 2014, and found Plaintiff's mental status examination to be within normal limits with “ok” mood and “full range-dysthymic” affect.[17]Dr. Aoshima-Kilroy expressed her concern with the number of psychotropic medications that Plaintiff was taking and her opinion that Plaintiff's self-reported cognitive blunting and headaches could be a result of the medications.[18] The doctor discussed these points with Plaintiff, who said that she wanted to remain on all of the medications.[19]

         Diagnosing Plaintiff with mood disorder, not otherwise specified, Dr. Aoshima-Kilroy stated, “I do not see enough evidence to agree with diagnosis of bipolar disorder. Borderline personality disorder appears to be better suited diagnosis and will continue to monitor for this.”[20] Dr. Aoshima-Kilroy added cluster B traits to Plaintiff's diagnosis, reflecting the opinion that Plaintiff could have a personality disorder.[21]

         Over the course of the subsequent seventeen months, Plaintiff attended eleven medication management appointments with Dr. Aoshima-Kilroy, who consistently recorded that the mental status examinations were within normals limits with changes in mood that ranged in description from depressed to anxious to “better” to “accepting” and affect that mostly remained dysthymic.[22] Dr. Aoshima-Kilroy continued the diagnosis of mood disorder and cluster B traits throughout treatment during the relevant time but added the diagnosis of anxiety disorder, not otherwise specified, in August 2014.[23] A year later, she changed the mood disorder diagnosis to unspecified bipolar disorder and added neuro-cognitive disorder.[24]

         Dr. Aoshima-Kilroy variously rated Plaintiff's GAF score as fifty-five or sixty, both reflecting moderate symptoms, throughout treatment.[25] At various times, Plaintiff reported making jewelry, refinishing furnishing, having friends over to visit frequently, visiting a friend out of town, washing clothes and dishes, driving others around town, and attending support groups.[26] Plaintiff reported memory difficulties more than once and, at one appointment, could not remember any of five objects until given a hint on one, after which she was able to name them all.[27]

         In addition to medication management, Plaintiff received psychotherapy for anxiety and depression prior to the alleged onset date.[28] The therapy sessions through Harris Health System were the only time-relevant psychotherapy in the record. From March 2014 to August 2015, Plaintiff received psychotherapy more than thirty times.[29] Although Plaintiff saw at least three therapists during that time, her mental status exam results were always within normal limits; her diagnosis remained mood disorder, not otherwise specified; and her GAF score remained at fifty-five.[30]

         On occasion at non-psychiatric medical appointments, the treatment provider addressed Plaintiff's mental health.[31] For example, on August 25, 2015, at an appointment for diabetes management, Plaintiff told the nurse practitioner that her mental “fog” had resolved and the stressors in her life had minimized.[32]The practitioner recorded that Plaintiff's mood, affect, behavior, and thought content were all normal.[33]

         In October 2015, two months after issuance of the ALJ's decision, Brittany Grabois Schuman, Psy.D., (“Dr. Schuman”), conducted an outpatient psychology evaluation.[34] The evaluation included clinical and neuropsychiatric interviews; intelligence and cognitive functioning tests; personal, psychiatric, and neuropsychological assessments and inventories, and review of health records and a self-report questionnaire.[35] Plaintiff's mood was depressed with congruent affect without suicidal or homicidal thoughts, intent, means, or any plan.[36]

         In the evaluation summary, Dr. Schuman opined that Plaintiff experienced “mild difficulty with delayed memory for auditory tasks” but was “fully oriented, ” possessed intact “abilities for naming, visuospatial/constructional tasks, attention, and abstraction, ” tested in the high average range for nonverbal intelligence, and suffered “minor difficulties with language and processing speed.”[37] The doctor further opined that the deficits in Plaintiff's ability to participate in activities of daily living were minor and her cognitive deficits were likely attributable to depression, not to a sharp decline in mental abilities.[38] Dr. Schuman diagnosed Plaintiff with unspecified bipolar and related disorder and unspecified anxiety disorder and assessed Plaintiff a GAF score of fifty-five.[39]

         2. Diabetes

         Plaintiff's diabetes diagnosis predated the alleged disability period but medication and disease management continued throughout the relevant time.[40] The notes from multiple encounters stated that Plaintiff maintained seventy-five percent compliance with diabetes medication; however, her compliance with proper diet was recorded as anywhere from twenty-five to seventy-five percent.[41] In those treatment notes, the providers often also indicated that Plaintiff's home blood tests generally reflected high glucose levels.[42]

         Although Plaintiff had abnormal results on diabetes-related laboratory tests on more than one occasion, Plaintiff showed no other physical manifestations of unmanaged diabetes.[43] More specifically, the treatment providers routinely recorded that Plaintiff had no numbness or tingling, no gait disturbance, no muscular weakness, and no impaired coordination/balance.[44] The only contrary notation in the record was Plaintiff's report at a psychiatric appointment in June 2015 that she had fallen a few times and was experiencing hand numbness.[45] However, a podiatry appointment in July 2015 produced normal results with no report of falls or numbness.[46] In August and September of 2015, Plaintiff reported walking for exercise four times a week.[47]

         B. Application to SSA

         On September 24, 2014, Plaintiff filed an application for disability insurance benefits, [48] claiming an inability to work since May 14, 2013, due to bipolar disorder, obsessive-compulsive disorder, anxiety, and depression.[49] In a later disability report, Plaintiff added diabetes to the list of disabling conditions and omitted obsessive-compulsive disorder.[50]

         In November 2013, Plaintiff underwent two consultative examinations.[51] During the psychological evaluation, Plaintiff exhibited a dysphoric mood at times and a euthymic mood at times.[52]The contents of her thoughts, her orientation, her ability to perform calculations were normal, but she exhibited difficulty with certain memory assessments.[53] The psychologist opined that Plaintiff's social life was stable and that she was able to manage her money, was independent with all personal hygiene and self care, and was able to drive.[54] Based on Plaintiff's self-reports during the interview, the psychologist diagnosed Plaintiff with bipolar disorder and hoarding disorder and found her prognosis to be fair with psychotherapy, medication compliance, and anxiety-management education.[55]

         At the medical examination, Plaintiff reported that she was experiencing numbness and tingling in her toes and hands and that she felt the sensation of burning in her left great toe.[56]Plaintiff also told the doctor that she walked one mile at a time.[57]The doctor observed Plaintiff's gait to be normal and her ability to walk on her toes and heels to be normal.[58] The doctor diagnosed Plaintiff with diabetes with peripheral neuropathy, as well as restless leg syndrome, bipolar disorder, and incontinence and assessed her prognosis to be “very good.”[59]

         On December 20, 2013, the SSA found Plaintiff not disabled at the initial level of review.[60] On April 11, 2014, the SSA again found Plaintiff not disabled upon reconsideration.[61]

         In October 2014, Dr. Fallick completed a mental residual functional capacity (“RFC”) evaluation on Plaintiff's behalf.[62] He listed mood disorder, not otherwise specified, and ADHD, predominantly inattentive subtype, as Plaintiff's psychiatric diagnoses and assessed her prognosis to be guarded.[63] With regard to Plaintiff's response to treatment, Dr. Fallick stated that it varied but that Plaintiff “continuously struggle[d] with distract[i]bility and motivation.”[64] Regarding side effects, the doctor stated vaguely that “Topamax[65] may cause cognitive dulling.”[66]

Dr. Fallick's RFC assessment rated Plaintiff as “[u]nable to meet competitive standards” on nine mental abilities and aptitudes necessary for the performance of unskilled work: (1) “[m]aintain attention for two[-]hour segment;” (2) “[s]ustain an ordinary routine without special supervision;” (3) “[w]ork in coordination with or proximity to others without being unduly distracted;” (4) “[p]erform at a consistent pace without an unreasonable number and length of rest periods;” (5) “[r]espond appropriately to changes in a routine work setting;” (6) “[d]eal with normal work stress;” (7) “[u]nderstand and remember detailed instructions;” (8) “[c]arry out detailed instructions;” and (9) “[d]eal with stress of semiskilled and skilled work.”[67]

         He opined that Plaintiff was seriously limited but not precluded on six mental abilities and aptitudes.[68] Of the remaining ten mental abilities and aptitudes listed on the form, Dr. Fallick answered five, finding Plaintiff limited but satisfactory in those areas, and left five blank.[69] According to Dr. Fallick's projection, Plaintiff would be absent from work more than four days a month due to her impairments or treatment.[70]

         Plaintiff requested a hearing before an ALJ.[71] The ALJ granted Plaintiff's request and scheduled the hearing on June 11, 2015.[72]

         C. Hearing

         At the hearing, Plaintiff, two medical experts, and a vocational expert testified.[73] Under questioning by the ALJ, Plaintiff confirmed her age and described her past relevant work as a court reporter.[74] Plaintiff answered questions by her attorney about her psychiatric history.[75] Plaintiff stated that Dr. Fallick had been her psychiatrist since 2000.[76] She said that she was hospitalized in 2005 because she was suicidal but had not received inpatient treatment since then.[77] She also reported a history of alcohol and drug dependence but became sober in 1990.[78] Plaintiff described in detail how much difficulty she had meeting the demands of her job in 2010 due to lack of concentration and distractibility and explained that this poor performance ultimately led to her termination in May 2013.[79] A month later, Plaintiff began to receive insurance payments for long-term disability.[80]

         Relevant to her condition since her termination, which coincides to the day with her alleged onset date, Plaintiff reported that she was unable to concentrate, heard voices saying her name, saw nonexistent people running in halls of her house, and compulsively hoarded[81] furniture.[82] Plaintiff said that she did not sleep much at night but slept a lot during the day, staying in bed most of the time.[83] Plaintiff described a “bad day, ” which she said occurred one or two days a week, as including her skin crawling, her head hurting, and her body shaking.[84] At the time of the hearing, Plaintiff said, she was taking “seven types of psych meds.”[85]

         Plaintiff's attorney asked about diabetes, with which, Plaintiff testified, she had been diagnosed in 1998.[86] Plaintiff reported, that as a result of diabetes, she recently had begun experiencing tingling in her hands and numbness in her toes.[87]Plaintiff reported being able to drive, to watch television shows on her computer, to attend Narcotics Anonymous meetings, to grocery shop, and to care for three dogs but being unable to read or to date.[88]

         Ashok Khushalani, M.D., (“Dr. Khushalani”), a psychiatric expert, testified next and provided an overview of Plaintiff's mental-health treatment based on his review of Plaintiff's medical records.[89] In particular, he pointed out that Plaintiff described Abilify as changing her life.[90] Dr. Khushalani noted a discrepancy between Dr. Fallick's RFC assessment in October 2014 indicating Plaintiff had several significant limitations and one of his treatment notes in January 2015 stating that Plaintiff was “well.”[91]Further addressing contradictions between Dr. Fallick's RFC assessment and his treatment notes, Dr. Khushalani stated that Dr. Fallick rated Plaintiff as having marked limitations but had rated her as sixty on the GAF scale, which, he said, was considered comparable to moderate to marked limitations.[92]

         Dr. Khushalani opined that Plaintiff did not meet or equal any of the mental disorders described in the listings of the regulations[93] (the “Listings”). In Dr. Khushalani's opinion, Plaintiff was “reasonably stable” with mild restrictions on activities of daily living, moderate restrictions in maintaining social functioning and following detailed and complex instructions.[94] Finding no evidence of any restriction in attention span, concentration, and pace for simple tasks, Dr. Khushalani found Plaintiff capable of completing simple tasks with only occasional public contact.[95]

         Turning to Plaintiff's physical ailments, the ALJ questioned Albert Oguejiofor, M.D., (“Dr. Oguejiofor”), who identified diabetes as a medically determinable impairment.[96] Dr. Oguejiofor stated, “[W]e have . . . diabetes with no evidence for listing level in organ complication of diabetes. What we're looking at is peripheral neuropathy with muscle atrophy, loss of power and positions resulting in an inability to ambulate effectively, due to listing 11.14 [peripheral neuropathy] and 11.04 [vascular insult to the brain].”[97] He also listed skin sarcoidosis as a nonsevere impairment.[98] Dr. Oguejiofor opined that Plaintiff was capable of work that was light in exertional demand.[99]

         The doctor explained that the usual side effects from the medical and psychotropic medications Plaintiff was taking would not prohibit light work unless she was experiencing severe side effects, which was not reflected in the record.[100] On this topic, Dr. Khushalani expressed his opinion that her regimen included too many medications, stating, “Fortunately, most of the medications she is getting have very few side effects and very little sedation, so I believe she's lucky, but I don't know that she needs all those medicines.”[101] When asked, he explained that generally those medications did not cause sedation, forgetfulness, or loss of concentration and noted that the medical record did not reflect that Plaintiff had reported experiencing side effects from the medications.[102]

         The vocational expert, Kassandra Humphress (“Humphress”) took the stand to discuss Plaintiff's past work history and the capability of an individual with Plaintiff's RFC to perform that work or any other job.[103] Humphress classified Plaintiff's job of court reporter as sedentary in exertional demand and skilled.[104]

         The ALJ asked whether the following hypothetical individual would be able to perform that work:

Assume a hypothetical individual the claimant's age and educational background, ability to perform exertional demands of light work as defined in the commissioner's re[gu]lations. Assume the individual can occasionally lift and/or carry 20 pounds, frequently lift and/or carry 10 pounds; stand and walk about six hours out of an eight-hour workday with normal breaks, s[i]t for about six hours out of an eight-hour workday with normal breaks. The individual can understand, remember, and carry out short and simple instructions, maintain attention and concentration for extended periods on simple tasks. The individual is limited to simple, routine, repetitive tasks. The individual is limited to superficial interaction with the general public, occasional interaction with coworkers, and occasional interaction with supervisors.[105]

         Humpress answered that the individual would not be able to work as a court reporter but that she could work as a shredder, a laundry sorter, or a garment sorter.[106] When the ALJ posed additional hypothetical facts, the vocational expert stated that neither an individual who was off task for more than twenty percent of the workday nor one who would be absent from work about three days a month would be able to perform the cited jobs.[107]

         Plaintiff's attorney asked if the hypothetical individual could perform those jobs if she was limited to a climate-controlled environment, and Humphress said that the individual could.[108] The attorney then asked whether any of the following limitations would make a difference: (1) the inability to work in coordination with or in proximity to others without becoming unduly distracted; (2) the need for prompting twice per hour; (3) the inability to respond appropriately to changes in the work setting; (4) the inability to deal with normal work stress; or (5) the need to be absent four days a month.[109] Humphress answered that any of those limitations on its own would prevent employment.[110]

         D. Commissioner's Decision

         On August 7, 2015, the ALJ issued an unfavorable decision.[111]The ALJ found that Plaintiff had not engaged in substantial gainful activity since May 14, 2013, the alleged onset date.[112] The ALJ recognized the following impairments as severe: “bipolar disorder, hoarding disorder, history of polysubstance abuse, [ADHD], mood disorder, and diabetes mellitus.”[113] However, he found sarcoidosis to be a nonsevere impairment.[114] At the Listing step, the ALJ found that Plaintiff did not meet the requirements of any Listing, addressing the category of Endocrine Disorders generally and then, more specifically, Listings 12.04 (Affective Disorders), 12.06 (Anxiety and Obsessive-Compulsive Disorders), and 12.09 (Substance Addiction Disorders).[115]

         The ALJ thoroughly discussed Plaintiff's medical treatment for her impairments, including Dr. Fallick's treatment notes, those concerning diabetes, and Plaintiff's own reports and testimony.[116]He also discussed the consultative psychological and physical examinations, an initial psychiatric evaluation upon transferring treatment providers in March 2014, Dr. Fallick's RFC assessment, and the opinions of the medical experts and the state-agency consultants.[117] The ALJ stated:

The claimant has a history of mental problems and diabetes. However, the objective evidence of record shows that the claimant's impairments are adequately controlled on medications and impose[] no more than mild to moderate limitations on her ability to perform work-related activities.[118]

         The ALJ noted two inconsistencies in the record with regard to Plaintiff's psychiatric diagnoses: (1) Although Dr. Fallick indicated that Plaintiff carried a diagnosis of ADHD, his treatment notes did not include that diagnosis; and (2) Plaintiff represented that she was diagnosed with bipolar disorder, but one provider disagreed with the diagnosis and another listed it as a diagnosis based primarily on Plaintiff's subjective report.[119]

         Specifically with regard to Dr. Fallick's RFC assessment, the ALJ stated:

Dr. Fallick's treatment notes do not support the opinion that the claimant would be so limited as opined in the mental RFC. January 2014 treatment notes with Dr. Fallick indicated the claimant had only “mild” depression. She was given a GAF score of 60 during that January 2014 visit, which remained unchanged in the RFC [by Dr. Fallick]. A GAF score of 60 is not consistent with marked limitations, such that an individual would be unable to meet competitive standards maintaining attention for two[-]hour segments, sustaining an ordinary routine without special supervision, working in coordination with or proximity to others without being unduly distracted, performing at a consistent pace without an unreasonable number and length of rest periods, and responding appropriately to changes in a routine work setting.[120]

         On other occasions, the ALJ noted, Dr. Fallick recorded that Plaintiff was doing “fairly well” and assessed Plaintiff a GAF score of sixty or higher, concluding that “Dr. Fallick's own treatment notes undermine his mental RFC, as they demonstrate a history of stability on medications and mental functioning that has been only mildly to moderately impaired.”[121]

         The ALJ concluded that Dr. Fallick's opinion “regarding the nature and severity of the claimant's mental conditions” was entitled to little weight because it was “not well-supported by medically acceptable clinical and laboratory diagnostic techniques and [was] inconsistent with the other substantial evidence in the case record.”[122] On the other hand, the ALJ accorded the testifying medical experts' opinions substantial weight because they were the only doctors who reviewed the entire record, observed Plaintiff, and offered opinions that were supported by a preponderance of record evidence.[123] The ALJ also gave some weight to the state agency consultants who reviewed Plaintiff's application at the initial and reconsideration levels, stating that their opinions were “generally consistent with the medical evidence of record.”[124]

         The ALJ found Plaintiff capable of light work limited to “understanding, remembering, and carrying out short and simple instructions” and to performing simple, routine, and repetitive tasks.[125] He found her capable of maintaining attention and concentration for extended periods on simple tasks and capable of “superficial interaction with the general public and occasional contact with coworkers and supervisors.”[126] Relying on the vocational expert's response to a hypothetical that contained the same limitations as the ALJ's RFC assessment, the ALJ found Plaintiff unable to perform her past relevant work but able to perform the jobs of shredder, laundry sorter, and garment sorter.[127]Therefore, the ALJ found that Plaintiff was not disabled at any time from the alleged onset date to the date of the ALJ's decision.[128]

         On October 6, 2015, Plaintiff appealed the ALJ's decision.[129]On November 30, 2016, the Appeals Council denied Plaintiff's request for review, thereby transforming the ALJ's decision into the final decision of the Commissioner.[130] After receiving the Appeals Council's denial, Plaintiff timely sought judicial review of the decision by this court.[131]

         II. Standard of Review and Applicable Law

         The court's review of a final decision by the Commissioner denying disability benefits is limited to the determination of whether: 1) the ALJ applied proper legal standards in evaluating the record; and 2) substantial evidence in the record supports the decision. Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002).

         A. Legal Standard

         In order to obtain disability benefits, a claimant bears the ultimate burden of proving she is disabled within the meaning of the Act. Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991). Under the applicable legal standard, a claimant is disabled if she is unable “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); see also Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994). The existence of such a disabling impairment must be demonstrated by “medically acceptable clinical and laboratory diagnostic” findings. 42 U.S.C. § 423(d)(3), (d)(5)(A); Jones v. Heckler, 702 F.2d 616, 620 (5th Cir. 1983).

         To determine whether a claimant is capable of performing any “substantial gainful activity, ” the regulations provide that disability claims should be evaluated according to the following sequential five-step process:

(1) a claimant who is working, engaging in a substantial gainful activity, will not be found to be disabled no matter what the medical findings are; (2) a claimant will not be found to be disabled unless [s]he has a “severe impairment;” (3) a claimant whose impairment meets or is equivalent to [a Listing] will be considered disabled without the need to consider vocational factors; (4) a claimant who is capable of performing work that [s]he has done in the past must be found “not disabled;” and (5) if the claimant is unable to perform h[er] previous work as a result of h[er] impairment, then factors such as h[er] age, education, past work experience, and [RFC] must be considered to determine whether [s]he can do other work.

Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994); see also 20 C.F.R. § 404.1520. The analysis stops at any point in the process upon a finding that the claimant is disabled or not disabled. Greenspan, 38 F.3d at 236.

         B. Substantial Evidence

         The widely accepted definition of “substantial evidence” is “that quantum of relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” Carey v. Apfel, 230 F.3d 131, 135 (5th Cir. 2000). It is “something more than a scintilla but less than a preponderance.” Id. The Commissioner has the responsibility of deciding any conflict in the evidence. Id. If the findings of fact contained in the Commissioner's decision are supported by substantial record evidence, they are conclusive, and this court must affirm. 42 U.S.C. § 405(g).

         Only if no credible evidentiary choices of medical findings exist to support the Commissioner's decision should the court overturn it. See Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). In applying this standard, the court is to review the entire record, but the court may not reweigh the evidence, decide the issues de novo, or substitute the court's judgment for the Commissioner's judgment. Brown v. Apfel, 192 F.3d 492, 496 (5thCir. 1999). In other words, the court is to defer to the decision of the Commissioner as much as is possible without making its review meaningless. Id.

         III. Analysis

         Plaintiff requests judicial review of the ALJ's decision to deny disability benefits. Plaintiff asserts that the ALJ's decision contains the following errors: (1) failure to properly weigh the medical opinions; and (2) failure to properly assess limitations due to diabetes. Defendant argues that the ALJ's decision is legally sound and is supported by substantial evidence.

         A. Failure to Properly Weigh Medical Opinions

         The ALJ must evaluate every medical opinion in the record and decide what weight to give each. See 20 C.F.R. § 404.1527(c). Generally, the ALJ will give more weight to medical sources who treated the claimant because “these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations.” 20 C.F.R. § 404.1527(c)(2); see also Greenspan, 38 F.3d at 237 (quoting Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985)); SSR 96-5p, 1996 WL 374183, at *2.

         The ALJ is required to give good reasons for the weight given a treating source's opinion. 20 C.F.R. § 404.1527(c)(2); SSR 96-2p, 1996 WL 374188, at *5.

When the determination or decision . . . is a denial[, ] . . . the notice of the determination or decision must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight.

SSR 96-2p, 1996 WL 374188, at *5. The regulations require that, when a treating source's opinion on the nature and severity of a claimant's impairments “is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence” in the case record, it is to be given controlling weight. 20 C.F.R. § 404.1527(c)(2); SSR 96-2p, 1996 WL 374188, at *1.

         When the ALJ does not give a treating physician's opinion controlling weight, he must apply the following nonexclusive factors to determine the weight to give the opinion: (1) the “[l]ength of the treatment relationship and the frequency of examination;” (2) the “[n]ature and extent of the treatment relationship;” (3) the relevant medical evidence supporting the opinion; (4) the consistency of the opinion with the remainder of the medical record; and (5) the treating physician's area of specialization. 20 C.F.R. § 404.1527(c)(2). However, the ALJ is only required to consider these factors in deciding what weight to give a medical source opinion; he is not required to record in writing every step of the process. 20 C.F.R. § 404.1527(c)(“Unless we give a treating source's opinion controlling weight . . . we consider all of the following factors in deciding the weight we give to any medical opinion.”)(emphasis added).

         Plaintiff takes issue with the ALJ's assignment of more weight to the RFC opinion of Dr. Khushalani than that of Dr. Fallick, arguing that the ALJ “relied on the non-examining medical expert over . . . the acknowledged treating physician.”[132] Of course, giving more weight to a medical expert over a treating physician is not an error; in fact, it is the ALJ's decision to make. See Greenspan, 38 F.3d at 237 (internal quotation marks omitted) (quoting Scott, 770 F.2d at 485)(“In sum, the ALJ is entitled to determine the credibility of medical experts as well as lay witnesses and weigh their opinions accordingly.”). In deciding, the ALJ must consider all medical opinions in the record, must explain the weight given each, ...

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