Opinion · Court of Appeals for the Fifth Circuit

Webster v. Kijakazi

19 F.4th 715

Type: Opinion
Court: Court of Appeals for the Fifth Circuit
Jurisdiction: Federal
Date: 2021-11-29
Topic: employee-benefits-and-executive-compensation

holding that substantial evidence supported the ALJ’s decision although the record reflected conflicting medical evidence and the ALJ found a treating physician’s opinion unpersuasive | holding that substantial evidence supported the ALJ’s decision although the record reflected conflicting medical evidence and the ALJ found a treating physician’s opinion unpersuasive | holding that substantial evidence supported the ALJ’s decision although the record reflected conflicting medical evidence and the ALJ found a treating physician’s opinion unpersuasive | holding that substantial evidence supported the ALJ’s decision although the record reflected conflicting medical evidence and the ALJ found a treating physician’s opinion unpersuasive | holding that substantial evidence supported the ALJ’s decision although the record reflected conflicting medical evidence and the ALJ found a treating physician’s opinion unpersuasive | holding that substantial evidence supported the ALJ’s decision although the record reflected conflicting medical evidence and the ALJ found a treating physician’s opinion unpersuasive | holding that substantial evidence supported the ALJ’s decision although the record reflected conflicting medical evidence and the ALJ found a treating physician’s opinion unpersuasive | holding that substantial evidence supported the ALJ’s decision to find as unpersuasive the treating physician’s opinion, even though the record reflected conflicting medical evidence | holding that the RFC was supported by substantial evidence when the ALJ “relied on the state agency’s 2018 assessment” and “incorporated these findings into [the claimant]’s RFC” | stating that the claimant bears the burden at step four to demonstrate an inability to perform past relevant work | noting that supportability and consistency are the most important factors that an ALJ considers when reviewing medical evidence provided by treating physicians | finding that, although ALJ did not adopt state agency report or accept testimony of a medical provider, this did not preclude finding that his decision was based on substantial evidence | finding that although the ALJ did not adopt the state agency report or accept the testimony of a medical provider, this did not preclude a finding that his decision was based on substantial evidence | finding that although the ALJ did not adopt the state agency report or accept the testimony of a medical provider, this did not preclude a finding that his decision was based on substantial evidence | finding that ALJs are no longer required to give controlling weight to a treating physician’s opinion but may consider a number of factors to determine “what weight, if any, to give a medical opinion” | finding the record was sufficiently developed with medical records, opinions from state agency medical consultants, findings from doctors, and testimony from plaintiff’s wife and mother | affirming an ALJ’s RFC that neither “adopted the state agency report verbatim nor accepted the testimony of [a treating physician],” but was nevertheless “based on substantial evidence” | noting our court follows the general rule that “arguments not raised before the district court are waived and cannot be raised for the first time on appeal” (quotation omitted) | comparing 20 C.F.R. § 404.1527 (2016), with 20 C.F.R. § 404.1520c (2017) | comparing § 404.1520c with its predecessor and citing a Social Security Administration final rule for its explanation that the current regulations allow “courts to focus on the content of the evidence rather than on the source” (cleaned up) | comparing § 404.1520c with its predecessor and citing a Social Security Administration final rule for its explanation that the current regulations allow courts to “focus on the content of the evidence rather than on the source” (cleaned up) | comparing § 404.1520c with its predecessor and citing a Social Security Administration final rule for its explanation that the current regulation

Citator

Cited by: 54 opinions

Case: 20-60856 Document: 00516109588 Page: 1 Date Filed: 11/29/2021

United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit

FILED
No. 20-60856 November 29, 2021
Lyle W. Cayce
Clerk
Arthur Webster,

Plaintiff—Appellant,

versus

Kilolo Kijakazi, Acting Commissioner of Social
Security,

Defendant—Appellee.

Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:19-CV-97

Before Elrod, Southwick, and Costa, Circuit Judges.
Leslie H. Southwick, Circuit Judge:
The district court affirmed the decision of the Social Security
Commissioner to deny disability benefits to Arthur Webster. On appeal,
Webster argues that the Administrative Law Judge erred in assessing his
Residual Function Capacity and failed to develop the record by declining to
order a Consultative Exam. Webster also argues that the Administrative Law
Judge failed to analyze his impairments under the proper listing and failed to
consider whether he could maintain employment, assuming he could find any
at all. We AFFIRM.
Case: 20-60856 Document: 00516109588 Page: 2 Date Filed: 11/29/2021

No. 20-60856

FACTUAL AND PROCEDURAL HISTORY
Arthur Webster is a former truck driver, combat rifle crew member in
the U.S. Army, mechanic, and production assembler. He has a high school
education and some college. Webster served in Iraq where he witnessed
several traumatic events, including the death of a friend and the
endangerment of Iraqi children. He suffered from posttraumatic stress
disorder (“PTSD”) following these events and was admitted into a PTSD
Residential Rehabilitation Treatment Program for over a month in 2016. He
also complains of numerous physical impairments including knee, foot, and
back pain.
On March 19, 2019, Webster applied for Title II Social Security
disability insurance benefits, alleging physical and mental impairments that
began in March of 2016. Webster was 43 years old at the time of the alleged
onset of his disability and 46 years old at the time of his hearing. Webster’s
application for benefits was denied initially and upon reconsideration.
Thereafter, Webster requested a hearing before an Administrative Law Judge
(“ALJ”). Though he found that Webster suffered from various
impairments, the ALJ denied benefits on the grounds that none of the
impairments met or exceeded the severity of the listing requirements under
the applicable regulations. Additionally, the ALJ found that Webster could
perform relevant past work as an assembler or perform various light effort,
limited contact jobs suggested by a vocational expert.
Webster timely appealed the denial to the district court. The parties
consented to a hearing before a magistrate judge, and that judge affirmed the
ALJ’s decision. Webster timely appealed.
DISCUSSION
This court reviews a Commissioner’s denial of social security
disability benefits “only to ascertain whether (1) the final decision is

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No. 20-60856

supported by substantial evidence and (2) whether the Commissioner used
the proper legal standards to evaluate the evidence.” Keel v. Saul,

986 F.3d 551, 555

 (5th Cir. 2021) (quotation marks and citation omitted). Substantial
   evidence is merely enough that a reasonable mind could arrive at the same
   decision; though the evidence “must be more than a scintilla[,] it need not
   be a preponderance.” Taylor v. Astrue,

706 F.3d 600, 602

 (5th Cir. 2012)
   (quotation marks and citation omitted).
          To determine whether a claimant is disabled, the Commissioner’s
   analysis proceeds along five steps. See

20 C.F.R. § 404.1520

(a)(4). The
   Commissioner considers (1) whether the claimant is engaged in “substantial
   gainful activity,” (2) the severity and duration of the claimant’s impairments,
   (3) whether the claimant’s impairment “meets or equals” one of the listings
   in the relevant regulations, (4) whether the claimant can still do his “past
   relevant work,” and (5) whether the impairment prevents the claimant from
   doing any relevant work.

Id.

 The claimant bears the burden on the first four
   steps. See Keel,

986 F.3d at 555

. If the claimant advances that far, the burden
   shifts to the Commissioner to “prove the claimant’s employability.”

Id.

          On appeal, Webster argues that the ALJ erred for several reasons
   relating loosely to Steps 3 through 5 of the sequential evaluation process.
   These arguments can be reduced to three categories: (1) disputes about the
   validity of the Residual Functional Capacity (“RFC”); (2) arguments that a
   Consultative Exam should have been ordered; and (3) arguments raised for
   the first time on appeal regarding the listing impairments and Webster’s
   ability to maintain work. We consider the arguments in that order.
   I.     The RFC was supported by substantial evidence.
          First, Webster argues that the ALJ’s RFC was not supported by
   substantial evidence because the ALJ failed to incorporate allegedly more
   restrictive portions of a state agency report prepared by Dr. Angela Herzgog




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                                    No. 20-60856


   and failed to accord proper weight to Webster’s examiner, Dr. Charles Small.
   Webster argues further that the allegedly faulty RFC corrupted the ALJ’s
   hypothetical questioning of the vocational expert.
          An “ALJ is responsible for determining an applicant’s residual
   functional capacity.” Ripley v. Chater,

67 F.3d 552, 557

 (5th Cir. 1995). In
   doing so, an ALJ examines the medical evidence in the record, including the
   testimony of physicians and the claimant’s medical records. See

id.

 An ALJ
   usually cannot reject a medical opinion without some explanation. See
   Kneeland v. Berryhill,

850 F.3d 749, 760

 (5th Cir. 2017).
          Notably, though, ALJs are no longer required to give controlling
   weight to a treating physician’s opinion, as was mandated by federal
   regulations and our caselaw in the past. Compare

20 C.F.R. § 404.1527

   (2016), with

20 C.F.R. § 404

.1520c; see also

82 Fed. Reg. 5853

 (Jan. 18, 2017)
   (commenting that the rule change would enable courts to focus on “the
   content of the evidence [rather] than on the source.”). For claims filed after
   March 27, 2017, an ALJ instead considers a list of factors in determining what
   weight, if any, to give a medical opinion.

20 C.F.R. § 404

.1520c. The most
   important factors in determining the persuasiveness of a medical source are
   whether the source’s medical opinion is based on “objective medical
   evidence and supporting explanations” and the “consistency” of the
   source’s opinion with the evidence from other medical and nonmedical
   sources in the claim.

Id.

          The ALJ in these proceedings relied on the state agency’s 2018
   assessment, finding it “persuasive” because it was supported by the evidence
   and consistent with Webster’s other records. The state agency found that
   Webster had the capacity to maintain attention and concentration “for two
   hour periods . . . without excessive interruption from psychological
   symptoms” and could “interact adequately, on a limited basis, receive non-




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                                   No. 20-60856


   confrontational supervision, and make mental adaptions to complete
   unskilled tasks in a work setting, especially those requiring minimal
   interaction with others.” Further, Webster “retain[ed] mental capacity to
   complete unskilled work tasks for which he remains physically capable.”
          Contrary to Webster’s contentions, the ALJ incorporated these
   findings into Webster’s RFC, which stated that Webster had the “residual
   functional capacity to perform light work as defined by 20 C.F.R.
   [§] 404.1567(b) except that he can engage in occasional climbing and
   balancing” and that he was “further limited to routine, repetitive tasks with
   occasional public contact.” Furthermore, the ALJ appropriately used the
   RFC when questioning the vocational expert, and Webster’s counsel had
   “the opportunity to correct deficiencies in the ALJ’s question by mentioning
   or suggesting to the vocational expert any purported defects in the
   hypothetical questions.” Bowling v. Shalala,

36 F.3d 431, 436

(5th Cir. 1994).
Moreover, the RFC and the state agency report are reflected in the vocational
expert’s proposed occupations, as he specifically identified potential
employment that did not require “a great deal of interaction with the public
or coworkers.”
The ALJ also articulated his reasons for rejecting the testimony of Dr.
Small. As is required by Section 404.1520c, the ALJ considered both the
consistency and supportability of Dr. Small’s testimony in light of other
medical opinions and evidence in the record, including Webster’s hospital
and VA treatment records. Ultimately, the ALJ determined that Dr. Small’s
testimony was only “supported” by his own findings and was inconsistent
with Webster’s medical history and longitudinal psychiatric treatment
records indicating improvement to the symptoms caused by Webster’s
PTSD. Though the ALJ neither adopted the state agency report verbatim
nor accepted the testimony of Dr. Small, it cannot be said that his decision

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No. 20-60856

was not based on substantial evidence or that he improperly applied the
relevant legal standards.
II. A Consultative Exam was not required.
Webster also argues that the ALJ erred by failing to order a requested
Consultative Exam (“CE”). Webster argues that the conflicting evidence
introduced by Dr. Small necessitated a further development of the record
with a government-funded CE.1
An “ALJ has a duty to develop the facts fully and fairly relating to an
applicant’s claim for disability benefits.” Ripley,

67 F.3d at 557

. An ALJ’s
   failure to fulfill this duty is not reversible error unless the claimant is
   prejudiced.

Id.

 “A consultative examination is required to develop a ‘full
   and fair record’ only if ‘the record establishes that such an examination is
   necessary to enable the [ALJ] to make the disability decision.’” Hardman v.
   Colvin,

820 F.3d 142, 148

 (5th Cir. 2016) (quoting Jones v. Bowen,

829 F.2d 524, 526

 (5th Cir. 1987)).
           As in Hardman, the record here is “replete with medical documents
   that spanned years.”

Id.

The ALJ reviewed Webster’s medical records from
both the Veteran’s Administration (“VA”) and the hospital, the state agency
consultation, the findings of Dr. Small, and testimony from Webster’s wife
and mother. Nothing in the record suggests that the ALJ needed any more
medical information to reach an informed decision about whether Webster
was disabled. The ALJ’s decision was based upon substantial evidence in a
sufficiently developed record, and he did not err in declining to order the CE.

1
Part of Webster’s argument for a CE relies on his belief that the ALJ erred in
determining that the record showed no evidence of prescribed knee and back braces.
Though the record does evidence the existence of the knee brace, the pages cited by Webster
do not demonstrate that either the back or knee brace were prescribed.

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No. 20-60856

III. Webster’s remaining arguments were waived.
Webster advances two final claims of error that he did not raise at the
district court. First, he argues that the ALJ erred by not analyzing Listing
Impairment 12.15 for Trauma and Stressor related disorders. Second, he
argues that the ALJ erred by failing to determine whether Webster could hold
whatever job he could find for a significant period of time.
Our court adheres to the general rule that “arguments not raised
before the district court are waived and cannot be raised for the first time on
appeal.” LeMaire v. Louisiana Dep’t of Transp. & Dev.,

480 F.3d 383, 387

   (5th Cir. 2007). An argument is not waived, though, “if the argument on the
   issue before the district court was sufficient to permit the district court to
   rule on it.” Horton v. Bank One, N.A.,

387 F.3d 426, 435

 (5th Cir. 2004)
   (citation and quotation marks omitted).
          Webster did not raise these arguments at the district court or present
   them in a manner sufficient for the district court to rule on them. Nor did he
   respond to the Commissioner’s arguments that they were waived.
   Consequently, we hold that Webster waived these arguments.
          AFFIRMED.




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