Hollinger v. Kijakazi ( 2021 )

Case: 20-61103 Document: 00515994117 Page: 1 Date Filed: 08/25/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 25, 2021
No. 20-61103
Lyle W. Cayce
Clerk
James Hollinger, Jr.,
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-220
Before Smith, Stewart, and Willett, Circuit Judges.
Per Curiam:*
James Hollinger Jr. applied for social security disability benefits, but
an administrative law judge found that Hollinger was not disabled. The
Appeals Council vacated this decision, remanding the case for the ALJ to
consider and assign weight to two opinions from Hollinger’s nurse
practitioner, Vickie Turnage. The ALJ again found that Hollinger was not
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 20-61103
disabled. Hollinger unsuccessfully sought relief from the Appeals Council,
and a magistrate judge affirmed the ALJ’s second decision. Hollinger
appealed.
Judicial review of the Commissioner’s final administrative decision is
limited under 42 U.S.C. § 405(g) to two inquiries: (1) whether substantial
evidence of record supports the Commissioner’s decision, and (2) whether
the decision comports with relevant legal standards. Villa v. Sullivan, 895
F.2d 1019, 1021 (5th Cir. 1990). Substantial evidence “means—and means
only—such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019)
(citation and internal quotation marks omitted); see also, e.g., Nasrallah v.
Barr, 140 S. Ct. 1683, 1692 (2020) (“The agency’s findings of fact are
conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary.” (internal quotation marks and citations omitted)).
This, of course, recognizes that the presiding ALJ “has seen the hearing up
close.” Biestek, 139 S. Ct. at 1157 (commenting on underlying deference).
On this backdrop, Hollinger seeks review of (1) whether the ALJ
incorporated Hollinger’s mental-health restrictions into the residual
functioning capacity (RFC) assessment, (2) whether the ALJ properly
assigned weight to the medical experts’ testimony, and (3) whether the ALJ
was required to make a separate finding that Hollinger could maintain
employment on a regular and continuing basis. We answer all but the final
question in the affirmative and, as explained below, AFFIRM.
First, the record demonstrates that the ALJ appropriately
incorporated Hollinger’s mental-health restrictions into the RFC. As the
RFC observes:
The claimant can understand, remember, and carry out simple
instructions and perform simple repetitive tasks. He can
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No. 20-61103
maintain attention and concentration for two[-]hour periods in
an eight[-]hour day. The claimant can have occasional non-
confrontational interaction with supervisors, rare incidental
contact with coworkers with no work requiring close
cooperation, and never with the general public.
This summary of Hollinger’s capacity finds ample support in the record. Yet
Hollinger argues the ALJ only focused on evidence that reinforced the
conclusion that Hollinger was not disabled and could do light work. We
disagree. There is a line between cherry-picking and resolving conflicting
evidence, and we decline the invitation to blur that boundary. Compare
Spellman v. Shalala, 1 F.3d 357, 364 (5th Cir. 1993) (endorsing rejection of
treating physician’s opinion where inconsistent with substantial evidence),
with Switzer v. Heckler, 742 F.2d 382, 385–86 (7th Cir. 1984) (reversing where
denial rested on excerpts of an uncontradicted medical report that, in full,
revealed severe impairments).
Neither can we conclude the ALJ erred in discharging his duty to
weigh the evidence received. This court has long held that “[t]he ALJ is free
to reject the opinion of any physician when the evidence supports a contrary
conclusion.” See, e.g., Martinez v. Chater, 64 F.3d 172, 176 (5th Cir. 1995)
(citation and internal quotation marks omitted). Here, the ALJ identified and
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resolved various conflicts against Hollinger. 1 Hollinger’s discontent, though
understandable, does not mean that “any reasonable adjudicator would be
compelled to conclude to the contrary.” See Nasrallah, 140 S. Ct. at 1692.
Finally, the ALJ was not required to make a finding on Hollinger’s
ability to maintain employment. Our holding in Singletary v. Bowen, 798 F.2d
818 (5th Cir. 1986), does “not require . . . separate findings on ‘obtaining’
and ‘maintaining’ a job in every case.” Frank v. Barnhart, 326 F.3d 618, 621
(5th Cir. 2003). Instead, Singletary findings are appropriate where there is “a
situation which, by its nature, the claimant’s [impairment] waxes and wanes
in its . . . disabling symptoms.” Id. at 619, 621 (emphasizing “cases in which
a person could work for short periods, but could not hold a job”). This case
presents no such scenario. The stable nature of Hollinger’s limitations,
which have persisted for years, 2 renders Singletary of no moment.
We conclude by emphasizing that our “limited role . . . under 42
U.S.C. § 405(g) is . . . not to reweigh the evidence, . . . try the issues de novo,
or substitute the judgment of the court for that of the [Commissioner].”
1
Three conflicts bear emphasis. First, the ALJ concluded Dr. Whelan’s “findings
regarding . . . work stresses [were] inconsistent with his own findings”—namely, that
Hollinger had “‘good’ to ‘fair’ abilities in every other functional area.” Second, the ALJ
concluded Dr. Whelan’s opinion contradicted that of Dr. Buck, who indicated Hollinger
was “fairly able to respond appropriately to coworkers and supervisors in a work
environment, but with significant anxiety.” Third, Turnage’s January 2017 statements—
even assuming they were initially due more weight, but see Foster v. Astrue, 410 F. App’x
831, 833 (5th Cir. 2011) (limiting weight of opinion in brief, conclusory questionnaire); 20
C.F.R. §§ 404.1502(a)(1)(7) (acceptable medical sources), .1527(f) (weight due); id. at §§
416.902(a)(1)(7) (acceptable medical sources), .927(f) (weight due)—conflicted with
Hollinger’s indication and Dr. Saul’s conclusion that Hollinger had no limitations in
memory or understanding.
2
We also note that Hollinger has exhibited many of his limitations since 1990 and
still held a semi-skilled, full-time job from 1997 to 2009. This further supports the ALJ’s
conclusion that Hollinger could undertake a new line of unskilled, light work. See Vaughan
v. Shalala, 58 F.3d 129, 131 (5th Cir. 1995) (similar situation).
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Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983); accord Newton v. Apfel,
209 F.3d 448, 452 (5th Cir. 2000) (“Conflicts in the evidence are . . . not [for]
courts to resolve.” (citation omitted)). We look instead to whether “a
reasonable mind would support the [ALJ’s] conclusion.” Keel v. Saul, 986
F.3d 551, 555 (5th Cir. 2021) (citation omitted). Viewed through this lens, we
AFFIRM.
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