# Keel v. Commissioner of Social Security

> District Court, N.D. Texas · May 20, 2020

URL: https://www.frixlaw.com/law-library/cases/10448582

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** May 20, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
LUZENIA K., §
§
Plaintiff, §
§
v. §
§ Case No. 3:19-cv-01006-BT
ANDREW SAUL, §
Commissioner of the §
Social Security Administration, §
§
Defendant. §
MEMORANDUM OPINION AND ORDER
Plaintiff Luzenia K.1 filed a civil action seeking judicial review pursuant to
42 U.S.C. § 405(g) of a final adverse decision by the Commissioner of Social
Security. For the reasons explained below, the Commissioner’s decision is
AFFIRMED in all respects.
Background
Plaintiff alleges that she is disabled due to several physical and mental
impairments, including a ruptured disc in her neck; injured lower back, knee, and
shoulder; chronic pulmonary edema; diabetes; fluid in her lungs; neuropathy;
depression; and anxiety. Pl.’s Br. 3-9 (ECF No. 15); Administrative Record 299-
300, 318 (A.R.) (ECF No. 11-1). She alleges disability beginning March 10, 2010.
1 The Court uses only Plaintiff’s first name and last initial as instructed by the May
1, 2018 Memorandum Re: Privacy Concern Regarding Social Security and
Immigration Opinions issued by the Committee on Court Administration and Case
Management of the Judicial Conference of the United States.
Pl.’s Br. 2; A.R. 297. After an initial administrative hearing decision dated
September 9, 2013 denying Plaintiff benefits, the Appeals Council remanded her
case to the administrative law judge (ALJ) for further consideration. A.R. 586.

Following the second administrative hearing decision dated January 15, 2016
denying benefits, the Appeals Council remanded Plaintiff’s case again for further
consideration (the “Second Remand Order”). Id. at 617-18. Her applications for
supplemental security income and disability insurance benefits were denied for a
third time, and the Appeals Council declined review. Id. at 287. Plaintiff’s most

recent administrative hearing took place in Dallas, Texas, on November 6, 2017.
Id. at 286. At the time of the hearing, Plaintiff was 56 years old. See id. at 298. She
has a high school education, can communicate in English, id., and has past work
experience as a customer service representative and a mailroom supervisor, id. at
330.
The ALJ issued his written decision on May 1, 2018. Id. at 114. The ALJ found

that Plaintiff was not disabled and, therefore, not entitled to supplemental security
income or disability insurance benefits. Id. At step one of the five-step sequential
evaluation,2 the ALJ found Plaintiff had not engaged in substantial gainful activity

2 “In evaluating a disability claim, the Commissioner conducts a five-step
sequential analysis to determine whether (1) the claimant is presently working; (2)
the claimant has a severe impairment; (3) the impairment meets or equals an
impairment listed in appendix 1 of the social security regulations; (4) the
impairment prevents the claimant from doing past relevant work; and (5) the
impairment prevents the claimant from doing any other substantial gainful
activity.” Audler v. Astrue, 501 F.3d 446, 447-48 (5th Cir. 2007). The claimant
bears the initial burden of establishing a disability through the first four steps of
since March 10, 2010. A.R. 104. At steps two and three, the ALJ found that Plaintiff
had the severe impairments of degenerative disc disease of the cervical and lumbar
spine and disorder of the right shoulder, right knee, and right hip; nonetheless, the

ALJ found that her impairments, or combination of impairments, did not meet or
equal the severity of any listed impairment in the social security regulations. Id. at
104, 106. At step four, the ALJ found Plaintiff has the residual functional capacity
(RFC) to perform light work, except that she can “stand and/or walk for up to [two]
hours total per [eight]-hour workday,” “cannot [c]limb ladders, ropes, or scaffolds,

but can occasionally climb ramps and stairs,” “can occasionally balance, stoop,
kneel, and crouch,” and “can perform only occasional overhead reaching with the
dominant upper extremity.” Id. at 107. At step five, relying on the testimony of a
vocational expert (VE), the ALJ found that Plaintiff could perform her past relevant
work as a customer service representative. Id. at 113.
As stated above, the Appeals Council declined to review the May 1, 2018

administrative decision. Id. at 1. Plaintiff then filed this action in federal district
court on April 26, 2019, arguing: (1) the ALJ committed a Stone error, which has
prejudiced Plaintiff; (2) the ALJ committed error by failing to consider the factors

the analysis; at the fifth step, the burden shifts to the Commissioner to show that
there is other substantial work in the national economy that the claimant can
perform. Id. at 448; Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014)
(citations omitted). A finding that the claimant is disabled or not disabled at any
point in the five-step review is conclusive and terminates the analysis. Copeland,
771 F.3d at 923 (citing Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995));
Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987) (citing Barajas v. Heckler, 738
F.2d 641, 643 (5th Cir. 1984) (per curiam)).
set forth in 20 C.F.R. §§ 404.1527 and 416.927 before declining to give weight to
the opinion of Plaintiff’s treating physician; (3) the ALJ erred by making an
implicit determination that Plaintiff’s noncompliance with prescribed medical

treatment precluded a finding of disability; (4) the ALJ did not comply with the
Second Remand Order; and (5) the ALJ committed a Ripley error and the RFC is
consequently not supported by substantial evidence.
Legal Standards
Judicial “review of Social Security disability cases ‘is limited to two

inquiries: (1) whether the decision is supported by substantial evidence on the
record as a whole, and (2) whether the Commissioner applied the proper legal
standard.’” Copeland, 771 F.3d at 923 (quoting Perez v. Barnhart, 415 F.3d 457, 461
(5th Cir. 2005)); see also Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995) (citation
omitted). Substantial evidence is “more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation
marks and citation omitted); see also Copeland, 771 F.3d at 923 (“Substantial
evidence is ‘more than a mere scintilla and less than a preponderance.’”) (quoting
Perez, 415 F.3d at 461). The Commissioner, and not the courts, resolves conflicts
in the evidence; thereafter, the Court may not “reweigh the evidence or try the

issues de novo.” Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995) (per curiam)
(citing Cook v. Heckler, 750 F.2d 391, 392-93 (5th Cir. 1985); Patton v.
Schweiker, 697 F.2d 590, 592 (5th Cir. 1983) (per curiam)). Accordingly, the
Court may not substitute its own judgment for the Commissioner’s, and it may
affirm only on the grounds that the Commissioner stated to support his or her
decision. Copeland, 771 F.3d at 923 (citing Cole v. Barnhart, 288 F.3d 149, 151

(5th Cir. 2002) (per curiam)).
Analysis
As a preliminary matter, the Court notes that the May 1, 2018 administrative
decision is the third in a series of decisions denying Plaintiff benefits. While none
of Plaintiff’s arguments rely entirely on any prior hearing decision or remand order

besides the Second Remand Order, Plaintiff points out and discusses findings by
prior ALJs who heard this matter and directives from the first remand order. But
this matter is on appeal from the adverse decision dated May 1, 2018 and the
Appeals Council’s denial of review dated April 16, 2019. It is not the province of
this Court to consider any hearing decision other than the May 1, 2018 decision.
42 U.S.C. § 405(g) (providing for judicial review of a final decision of the

Commissioner); See also Weeks v. Soc. Sec. Admin. Comm’r, 230 F.3d 6, 7 (1st Cir.
2000) (per curiam) (holding that an Appeals Council’s remand for further
consideration is not a final decision of the Commissioner); Culbertson v. Shalala,
30 F.3d 934, 937 n.3 (8th Cir. 1994) (same); Duda v. Sec’y of Health & Human
Servs., 834 F.2d 554, 555 (6th Cir. 1987) (per curiam) (same). To the extent it is

error for an ALJ to ignore a mandate of the Appeals Council, the Court will consider
whether, in rendering the May 1, 2018 decision, the ALJ complied with the
mandates found in the Second Remand Order only.
I. The ALJ committed a Stone error, but the error is harmless.
Plaintiff first argues the ALJ failed to apply the appropriate legal standard
in deciding whether Plaintiff’s impairments were “severe” at step two of the

analysis. Specifically, Plaintiff contends that the ALJ did not cite or otherwise set
forth the Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985) definition of “severe.” The
Court agrees; the ALJ applied the incorrect legal standard at step two of the
sequential evaluation, but because the error is harmless, remand is not required.
Under Stone, an impairment is not severe “only if it is a slight abnormality

having such minimal effect on the individual that it would not be expected to
interfere with the individual’s ability to work.” Stone, 752 F.2d at 1101 (citations
and alterations omitted). In fact, Stone requires a finding of “severe” if the
impairment interferes with an individual’s ability to work at all. Stephanie Z. v.
Berryhill, 2018 WL 4467470, at *3 (N.D. Tex. Sept. 18, 2018) (citing Scroggins v.
Astrue, 598 F. Supp. 2d 800, 805-06 (N.D. Tex. 2009); Morris v. Astrue, 2012 WL

4468185, at *5 (N.D. Tex. Sept. 4, 2012), adopted by 2012 WL 4466144 (N.D. Tex.
Sept. 27, 2012)). In the Fifth Circuit, a court assumes that the ALJ applied an
incorrect standard to the severity requirement unless the correct standard is set
forth by reference to Stone or by an express statement that ALJ used the
construction the Fifth Circuit gives to the severity requirement. Stone, 752 F.2d at

1106. Nevertheless, “[a] case will not be remanded simply because the ALJ did not
use ‘magic words.’” Hampton v. Bowen, 785 F.2d 1308, 1311 (5th Cir. 1986).
Remand is only required “where there is no indication the ALJ applied the correct
standard.” Id. The Commissioner may overcome the presumption that the ALJ
applied an incorrect severity standard by showing that, though not explicitly
stated, the ALJ applied the correct legal standard or by demonstrating that the

ALJ’s application of an improper standard was harmless. See Taylor v. Astrue, 706
F.3d 600, 603 (5th Cir. 2012) (per curiam) (citing Mays v. Bowen, 837 F.2d 1362,
1364 (5th Cir. 1988)).
Here, the ALJ did not cite Stone, and his articulation of the severity standard
is inconsistent with Stone. Indeed, the ALJ defines severe impairments as

“medically determinable impairments that significantly limit the claimant’s ability
to perform basic work activities.” A.R. 104 (citing SSR 85-28, 1985 WL 56856 (Jan.
1, 1985)). Stone disapproved of this very articulation of the severity standard.
Stone, 752 F.2d at 1104-05 & n.3; Mattie D. C. v. Berryhill, 2019 WL 1084185, at
*3 (N.D. Tex. Feb. 13, 2019), adopted by 2019 WL 1077372 (N.D. Tex. Mar. 7,
2019). Consequently, the Court assumes the ALJ applied an incorrect legal

standard at step two. Remand is not required, however, because the error is
harmless.
The Commissioner contends that the ALJ’s application of the incorrect
severity standard is harmless because the ALJ did not deny benefits at step two,
but instead proceeded through the remainder of the sequential evaluation process.

Resp. 3. “[T]he Fifth Circuit has held that [a] Stone error does not mandate
automatic reversal and remand, and application of harmless error analysis is
appropriate, in cases where the ALJ proceeds past step two of the sequential
evaluation process.” Hitchcock v. Berryhill, 2019 WL 1128866, at *7 (N.D. Tex.
Mar. 12, 2019) (citing Taylor, 706 F.3d at 603); see also Gibbons v. Colvin, 2013
WL 1293902, at *16 (N.D. Tex. Mar. 30, 2013 ) (finding Stone error harmless where

the ALJ considered the effects of the claimant’s impairments, including those that
were not severe, on his ability to work); Goodman v. Comm’r of Soc. Sec. Admin.,
2012 WL 4473136, at *10 (N.D. Tex. Sept. 10, 2012) (same), adopted by 2012 WL
4479253 (N.D. Tex. Sept. 28, 2012). But here, the ALJ proceeded beyond step two
and evaluated Plaintiff’s impairments’ impact on her ability to work only with

respect to the impairments he found severe. That the ALJ moved beyond step two
to the remainder of the sequential evaluation does not render the Stone error
harmless in this case. Rather, the Court concludes the error is harmless for the
reasons that follow.
Plaintiff contends that the ALJ should have found the following impairments
severe: (1) “depression, dizziness, forgetfulness, headache, loss of sleep, loss of

weight, nervousness, numbness in right leg, left shin, right hand, frequent
urination”; (2) morbid obesity; (3) diabetes; and (4) chronic kidney disease. Pl.’s
Br. 15. Plaintiff argues remand is required because medical records establish that
Plaintiff suffered from each of these impairments and Plaintiff testified that she
experiences them.

First, Plaintiff claims that the ALJ’s severity determination “implicitly
reject[ed] the opinion of Stella Nwankwo, MD, an examining SAMC, that [Plaintiff]
suffers from depression, dizziness, forgetfulness, headache, loss of sleep, loss of
weight, nervousness, numbness in right leg, left shin, right hand, [and] frequent
urination[.]” Pl.’s Br. 16. The ALJ is not required to cite and discuss every symptom
reflected in the medical records. See Smith v. Astrue, 2008 WL 5251782, at *4

(W.D. Miss. Dec. 17, 2008) (citing Flors v. Massanari, 2002 WL 100631, at *5
(S.D.N.Y. Jan. 25, 2002)); see also Gay v. Saul, 2020 WL 1158727, at *7 (N.D. Ohio
Mar. 10, 2020) (“An ALJ must ‘consider’ all of the available evidence, including a
claimant’s medical history, but there is no requirement that an ALJ recite every
symptom, complaint, or notation included in every medical record in the transcript

file.” (citing 20 C.F.R. § 416.929(a)). Nevertheless, the written decision shows that
the ALJ considered Plaintiff’s alleged mental impairments, including her diagnosis
for depression, and concluded that Plaintiff’s “medically determinable mental
impairments cause no more than ‘mild’ limitation in any of the functional areas[.]”
A.R. 105. Specifically, the ALJ determined Plaintiff had mild limitation in
understanding, remembering, or applying information, mild limitation in her

ability to concentrate, persist, or maintain pace, and no limitation in interacting
with others or adapting and managing herself. Id. And, to the extent Plaintiff’s
mental impairments contribute to her physical pain, the ALJ considered Plaintiff’s
pain in determining the overall RFC. Plaintiff does not point to any medical
evidence that her alleged mental impairments would prevent her from engaging in

substantial gainful activity, as found by the ALJ. Thus, any Stone error with respect
to Plaintiff’s alleged mental impairments is harmless. Remand is not required
because there is no evidence in the record that Plaintiff’s mental health claims are
severe enough to prevent her from holding substantial gainful employment.
Taylor, 706 F.3d at 603.
Second, Plaintiff argues that because Dr. Nwankwo and Judge Collins, the

ALJ who heard Plaintiff’s claim originally, both acknowledged that Plaintiff suffers
from morbid obesity, the ALJ should have found that Plaintiff’s morbid obesity is
a severe impairment. Pl.’s Br. 16. But Plaintiff advances no argument as to how her
morbid obesity affects her ability to work. Indeed, the ALJ acknowledged that there
“is no indication that the claimant’s obesity causes direct limitation of her ability

to perform basic work activities,” but nonetheless considered how her obesity “may
have contributed to and affected her other impairments” in both his step two
severity analysis and his RFC determination. A.R. 105.
Third, Plaintiff argues that her diabetes is uncontrolled and severe. Pl.’s Br.
17. But, in his severity determination, the ALJ notes that Plaintiff has “admitted to
noncompliance with prescribed behavioral changes, going so far as to state that

when she was compliant with such lifestyle changes, her blood sugar levels remain
controlled.” A.R. 104. The ALJ thus found that with greater compliance, Plaintiff
could avoid diabetes-related symptoms such as dizziness and inability to focus. Id.
An ALJ may rely upon the lack of treatment as an indication of nondisability. Villa
v. Sullivan, 895 F.2d 1019, 1024 (5th Cir. 1990). Plaintiff, pointing to a progress

note by John Sadler, PhD, contends that Dr. Sadler “implicitly ties [Plaintiff’s]
noncompliance [with insulin treatment for diabetes] with her mental state[.]” Pl.’s
Br. 17. But Plaintiff does not explain how this fact renders her diabetes severe, or
how it precludes the ALJ from considering noncompliance with treatment as an
indication of nondisability.
Finally, Plaintiff states that the “[m]edical records substantiate [her]

incontinence . . . [and] show[ she] suffers from stage 3 chronic kidney disease.” Id.
at 16. The record indeed reflects that (1) Plaintiff urinates frequently and (2) that
she has suffered from kidney stones and “simple cysts” on her kidneys, but
otherwise has had normal kidney ultrasounds. The Court notes, however, that at
the administrative hearing Plaintiff blamed her frequent urination on a medication

that helps alleviate her leg swelling, not on any sort of kidney disease. See, e.g.,
A.R. 304. In fact, when asked at the administrative hearing to describe the
impairments that affect her ability to work, Plaintiff did not mention any
impairment related to her kidneys. Although the ALJ has a duty to develop facts
fully and fairly, the duty “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.” Leggett v. Chater, 67 F.3d 558, 566 (5th Cir. 1995). And, as discussed
more fully below, the ALJ properly considered Plaintiff’s frequent urination in
accordance with the Second Remand Order.
For these reasons, Court finds Plaintiff has failed to demonstrate that the
ALJ would have reached a different conclusion regarding Plaintiff’s ability to work

if he had applied the correct severity standard. Accordingly, the Court concludes
that the ALJ’s failure to apply the correct severity standard was a harmless error.
If a Stone error is harmless, it is not reversible because “procedural perfection is
not required, and an adjudication of the Commissioner is not to be vacated unless
a substantial right of the claimant has been adversely affected,” for “the major
policy underlying the harmless error rule is to preserve judgments and avoid waste

of time.” Jones v. Astrue, 851 F. Supp. 2d 1010, 1015 (N.D. Tex. 2012) (brackets
and internal quotation marks omitted) (citing Mays, 837 F.2d at 1364).
II. The ALJ did not err with respect to the evaluation from
Dr. Wolski’s office; and even if the ALJ did err, his error was harmless.
Plaintiff also argues that the ALJ implicitly rejected the medical source
statement of Ed Wolski, MD, by failing to mention it at all, without considering the
appropriate factors. The Court disagrees that the portion of the record to which
Plaintiff refers constitutes a medical source statement. And, even if the portion of
the record at issue is a medical source statement, the Court concludes that the ALJ

was not required to evaluate the factors before rejecting it. The Regulations provide
six factors for an ALJ to consider in determining the degree of weight to afford a
medical source opinion. See 20 C.F.R. §§ 416.927(c), 404.1527(c); Bentley v.
Colvin, 2015 WL 5836029, at *8 (N.D. Tex. Sept. 30, 2015). The factors are: (1) the
length of the treatment relationship and the frequency of examination; (2) the

nature and extent of the treatment relationship; (3) the supportability of the
opinion by medical signs and laboratory findings; (4) the consistency of the
medical opinion with the record; (5) whether the medical opinion is one of a
specialist or not; and (6) any other factors the claimant or others bring to the
Commissioner’s attention. 20 C.F.R. §§ 416.927(c), 404.1527(c).3 Generally, the
ALJ is free to reject the opinion of any physician when the evidence supports a
contrary conclusion, but where the ALJ rejects the sole relevant medical opinion

before it, it must engage in a detailed analysis of the relevant factors. Newton v.
Apfel, 209 F.3d 448, 456 (5th Cir. 2000); Qualls v. Astrue, 339 F. App’x 461, 467
(5th Cir. 2009) (per curiam).
Plaintiff states that Dr. Wolski’s medical source statement can be found in
the Administrative Record at page 1092. At page 1092 is a “Functional Capacity

Evaluation Summary” prepared on May 4, 2010 stating that Plaintiff can
occasionally squat and bend, can never reach up, can occasionally lift/carry 12
pounds from the floor, can frequently lift/carry six pounds from the floor, and can
consistently lift/carry two pounds from the floor. A.R. 1092. The provider who
prepared the summary is Ismael Rodriguez, whose medical credentials are
unknown. See id. It appears that the evaluation may have been conducted at Dr.

Wolski’s practice, see id. at 1093, but the summary nowhere contains Dr. Wolski’s
signature.4 As it is unclear the medical credentials of Ismael Rodriguez, the Court

3 Section 416.927(c) applies in cases where the claimant seeks supplemental
security insurance, while § 404.1257(c) applies where the claimant seeks disability
insurance benefits. See 20 C.F.R. § 404.1527(b), (c); 20 C.F.R. § 416.927(b), (c).
The two provisions contain identical factors and require the same analysis. See
Bentley, 2015 WL 5836029, at * 6.
4 Even if Dr. Wolski did sign or otherwise adopt the summary, that would not
change the analysis. See Geraldine F. v. Saul, 2020 WL 1539629, at *4 (N.D. Tex.
Feb. 28, 2020) (noting that an acceptable medical source’s co-signing the opinion
of an “other source” does not affect the weight of the opinion), adopted by 2020
WL 1530743 (N.D. Tex. Mar. 30, 2020).
concludes the portion of the record to which Plaintiff points does not constitute a
medical source statement. See Thibodeaux v. Astrue, 324 F. App’x 440, 445 (5th
Cir. 2009) (per curiam) (holding that only acceptable medical sources can render

medical opinions); SSR 06-03p, 2006 WL 2329939 (Aug. 9, 2006) (noting that
acceptable medical sources include licensed physicians, psychologists,
optometrists, podiatrists, and qualified speech pathologists).
Moreover, the Court concludes that the ALJ was not required to engage in
an analysis of the regulatory factors with respect to the portion of the record at

issue because, to the extent it was a medical source statement, it was not the sole
medical source statement in the record. Indeed, the ALJ considered and afforded
no weight to the opinions of at least four other treating physicians, A.R. 112, and
considered and gave great weight to the opinions of two SAMCs, id. at 111. See also
Walker v. Colvin, 2014 WL 12539258, at *8 (W.D. Tex. Jan. 28, 2014) (finding no
Newton error where ALJ credited SAMC opinions over treating physician opinion

because rejected treating physician opinion was not the sole medical opinion in the
record). For these reasons, the Court concludes that the ALJ did not commit error
by failing to consider the portion of the record containing an evaluation by Ismael
Rodriguez.
To the extent the ALJ’s treatment of Ismael Rodriguez’s evaluation could be

considered error, it was harmless. The Functional Capacity Evaluation Summary
completed by Ismael Rodriguez indicates that Plaintiff was capable of satisfying
the physical demands of sedentary work. A.R. 1092. Sedentary work involves
lifting no more than 10 pounds at a time and occasionally lifting or carrying articles
such as docket files and small tools. 20 C.F.R. § 404.1567(a). See also 20 C.F.R.
§ 416.967(a) (same). In sedentary jobs, walking and standing are required only

occasionally. Id. The ALJ determined that Plaintiff was not disabled because she
could return to her past relevant work as a customer service representative—a
sedentary job. A.R. 113, 330; see also Dictionary of Occupational Titles § 241.367-
014, 1991 WL 672252 (customer-complaint clerk). Ismael Rodriguez’s assessment
of Plaintiff’s functional capacity is entirely consistent with the ALJ’s ultimate

conclusion.
III. The ALJ did not err by considering Plaintiff’s noncompliance with
diabetes treatment in determining the severity of her diabetes.
Plaintiff argues the ALJ committed error by implicitly determining that
Plaintiff’s noncompliance with medical treatment for her diabetes precluded a
finding of disability. Pl.’s Br. 24. It is Plaintiff’s position that the ALJ was required
to follow the procedure set forth in SSR 82-59 before finding Plaintiff not disabled
based on her failure to comply with medical treatment. Id. In particular, Plaintiff
contends that before a determination of noncompliance is made, the claimant must

be informed of the effect of noncompliance on his or her eligibility for benefits and
be afforded an opportunity to undergo the prescribed treatment or show justifiable
cause for failing to do so. Id. (citing SSR 82-59).
The Court assumes without deciding that it is error for an ALJ to find a
claimant “not disabled” based solely on her noncompliance with prescribed
medical treatment. See, e.g., Lindsey v. Astrue, 2011 WL 817173, at *8 (N.D. Tex.
Mar. 9, 2011) (finding error where the ALJ relied “almost exclusively” on
noncompliance with prescribed medical treatment and substance abuse in

determining RFC). Nonetheless, the ALJ did not commit error here because the
ALJ did not find Plaintiff not disabled based exclusively on her noncompliance
with medical treatment. Rather, the ALJ cited Plaintiff’s refusal to make certain
prescribed lifestyle changes as a factor in determining the severity of Plaintiff’s
diabetes. A.R. 104. The ALJ further notes that Plaintiff states that her blood sugar

levels remain controlled when she does adhere to the prescribed lifestyle changes.
Id.
Indeed, Plaintiff concedes that “[t]he ALJ never explicitly rules that
Plaintiff’s noncompliance with medical treatment . . . justifies a finding of not
disabled,” that it is clear that “noncompliance was an important factor in the
[d]ecision,” and that the ALJ determined that Plaintiff is not disabled “in part[,]

at least,” because she did not comply with medical treatment. Pl.’s Br. 24-25
(emphasis added). An ALJ is entitled to consider noncompliance with prescribed
medical treatment as a factor in the overall disability determination. Aguero v.
Saul, 2020 WL 1493551, at *7 (N.D. Tex. Mar. 26, 2020); Milligan v. Colvin, 2014
WL 7028038, at *8 (N.D. Tex. Dec. 12, 2014). See also Griego v. Sullivan, 940 F.2d

942, 945 (5th Cir. 1991) (“it [is] within the discretion of the ALJ to discount [the
plaintiff’s] complaints of pain based on[, among other things,] her decision to
forego certain medications.”); Johnson v. Comm’r of Soc. Sec. Admin., 2013 WL
632104, at *20-21 (N.D. Tex. Feb. 4, 2013) (distinguishing Lindsey and finding
that an ALJ may consider noncompliance with prescribed medical treatment as a
factor in assessing a claimant’s credibility), adopted sub nom. by Johnson v.

Astrue, 2013 WL 628561 (Feb. 20, 2013).
The Court concludes that the ALJ committed no error in considering
Plaintiff’s noncompliance with prescribed medical treatment as a factor in
determining the severity of Plaintiff’s impairments.
IV. The ALJ complied with the Appeals Council’s mandate to consider
the effects of Plaintiff’s medications on her ability to work.
Plaintiff also contends that the ALJ erred by failing to follow the Appeals
Council’s mandate to consider Plaintiff’s medication side effects. Pl.’s Br. 25. Under
the mandate rule, an ALJ “shall take any action that is ordered by the Appeals

Council and may take any additional action that is not inconsistent with the
Appeals Council’s remand order.” 20 C.F.R. § 404.977(b). The Court assumes
without deciding that an ALJ’s refusal to follow a remand order is error. Compare
Henderson v. Colvin, 520 F. App’x 268, 273 (5th Cir. 2013) (per curiam)
(“[A]lthough [the plaintiff] cites some case law for the proposition that failure to

comply with an Appeals Council order constitutes reversible error, none is
mandatory authority.”), with Rymer v. Colvin, 2013 WL 6869088, at *4 (N.D. Tex.
Dec. 30, 2013) (reversing and remanding on sole ground that the ALJ did not
follow a remand order). In any event, when an ALJ fails to follow a remand order,
remand is warranted only where the ALJ’s decision fails to apply the proper legal
standard or the decision is not supported by substantial evidence. Henderson, 520
F. App’x at 273; Payne v. Colvin, 2016 WL 5661647, at *8 n.6 (N.D. Tex. Sept. 28,
2016).

Here, the ALJ complied with the Second Remand Order, the relevant
remand order for this appeal, and there is no error. In the Second Remand Order,
the Appeals Council recognized that the prior hearing decision did not “reflect
consideration of the side effects of the claimant’s course of prescribed treatment,
in particular, the claimant’s blood pressure medications,” which cause her to take

frequent restroom breaks A.R. 617 (emphasis added). It further admonished that
the prior decision did “not discuss or evaluate the side effects of the claimant’s
medications or her need for more frequent restroom breaks,” and that such issue
warranted further consideration. Id. Accordingly, the ALJ noted in his
administrative decision that “although the claimant alleged increase in urinary
frequency such that she had to use the bathroom every 15-to-30 minutes, the

claimant herself expressly denied dysuria, urgency, hematuria, or any increase in
urinary frequency on a number of occasions[.]” Id. at 108. The Court concludes
that this finding by the ALJ satisfied his obligation under the remand order.
Plaintiff—conceding that the ALJ adequately considered her frequent urination in
accordance with the remand order—argues that because the ALJ did not consider

the side effects of all Plaintiff’s medications, he committed error. See Pl.’s Br. 26;
see also Reply 1 (ECF No. 19) (“The ALJ arguably considers the issue of urinary
frequency”).
The Court disagrees with Plaintiff that the Second Remand Order should be
interpreted to require the ALJ to consider all medication side effects. Indeed, the
Appeals Council explicitly cited Plaintiff’s frequent need to use the restroom as the

particular medication side effect of concern. And the ALJ satisfied the Second
Remand Order’s mandate to consider such a side effect by discussing Plaintiff’s
frequent urination and its effect on her ability to work. To hold that the Second
Remand Order required the ALJ to consider the side effects of all Plaintiff’s
medications would interpret it too broadly.5 For this reason, the ALJ did not err

with respect to the mandates of the Second Remand Order.
Even if the ALJ erred, however, Plaintiff failed to show the error was not
harmless. Jarrett v. Colvin, 2014 WL 1281293, at *13 (N.D. Tex. Mar. 31, 2014)
(applying harmless error analysis to the ALJ’s failure to properly evaluate the side
effects of medication). She has not shown that any of the alleged side effects
prevent her from being able to return to work as a customer service representative.

V. The ALJ has not committed a Ripley error,
and the RFC is supported by substantial evidence.
Finally, Plaintiff argues that the ALJ’s determination that she has the RFC
to stand and/or walk up to two hours per eight-hour workday is not reflected in
the opinion of any SAMC or treating doctor, indicating that the ALJ arrived at such
an RFC by engaging in his own analysis of the medical evidence in violation of

5 Plaintiff also states in passing that the Second Remand Order “specifically notes
as an issue to be decided on remand, the effects of [Plaintiff’s] depression on her
RFC.” Pl.’s Br. 16. This is inaccurate. See A.R. 617-18.
Ripley v. Chater. Accordingly, Plaintiff contends that the RFC is not supported by
substantial evidence.
The ALJ has not committed an error with respect to his finding that Plaintiff

can stand and/or walk two hours per eight-hour workday. The Court assumes
without deciding that it would be error under Ripley for the ALJ to conclude that
Plaintiff could stand and/or walk two hours per eight-hour workday without a
medical opinion in the record to that effect. Nonetheless, no Ripley error has
occurred. The opinions of SAMCs Dr. Ward and Dr. Durfor find that Plaintiff can

stand and/or walk at least two hours per eight-hour workday.6 A.R. 111, 1330. An
ALJ may meet the requirements under Ripley by relying on an SAMC’s findings.
Coffelt v. Berryhill, 2017 WL 6508993, at *4 (N.D. Tex. Nov. 1, 2017), adopted by
2017 WL 6498009 (N.D. Tex. Dec. 19, 2017); see also Young v. Berryhill, 2017 WL
946323, at *12 (N.D. Tex. Feb. 13, 2017) (“Because the ALJ relied on the medical
opinions of [the SAMCs] to determine Plaintiff’s limitations, he did not

independently decide the effects of Plaintiff’s impairments[.]”), adopted by 2017
WL 931228 (N.D. Tex. Mar. 9, 2017).

6 Plaintiff posits that the ALJ “mistakenly states that Dr. Ward and Dr. Durfor
conclude that [Plaintiff] can stand and walk 2 of 8 hours” when their opinion
actually states that Plaintiff “can stand and walk 4 of 8 hours.” Pl.’s Br. 11. Dr.
Ward’s opinion—which Dr. Durfor affirms—clearly indicates that Plaintiff can
stand and/or walk at least two hours, but not up to six hours, in an eight-hour
workday. A.R. 1330 (emphasis added). In any event, the SAMCs’ collective opinion
supports the RFC that Plaintiff can stand and/or walk two hours per eight-hour
workday.
Nevertheless, the Court finds that the ALJ’s RFC is supported by substantial
evidence. “It is the responsibility of the ALJ to interpret ‘the medical evidence to
determine [a claimant’s] capacity for work.’” Fontenot v. Colvin, 661 F. App’x 274,

277 (5th Cir. 2016) (per curiam) (quoting Taylor, 706 F.3d at 603). “[T]he ALJ is
entitled to determine the credibility of medical experts as well as lay witnesses and
to weigh their opinions and testimony accordingly.” Id. (brackets in original)
(quoting Moore v. Sullivan, 919 F.2d 901, 905 (5th Cir. 1990) (per curiam)). “If
supported by substantial evidence, the Commissioner’s findings are deemed

conclusive, and the court must accept them.” Jones, 851 F. Supp. 2d at 1015 (citing
Richardson, 402 U.S. at 390). Substantial evidence in this context “means such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson, 402 U.S. at 401 (citation omitted).
Here, substantial evidence supports Plaintiff’s RFC. As stated above, the ALJ
found that Plaintiff has the RFC to perform light work, except that she can “stand

and/or walk for up to [two] hours total per [eight]-hour workday,” “cannot [c]limb
ladders, ropes, or scaffolds, but can occasionally climb ramps and stairs,” “can
occasionally balance, stoop, kneel, and crouch,” and “can perform only occasional
overhead reaching with the dominant upper extremity.” A.R. 107. In making his
RFC determination, the ALJ relied on objective medical evidence, opinion

evidence, and Plaintiff’s own testimony and functional reports. In particular, the
ALJ gave the opinion of SAMCs Dr. Durfor and Dr. Ward “great weight”; they
found that Plaintiff can occasionally lift 20 pounds and frequently lift 10 pounds;
stand/and or walk for up to two hours in an eight-hour workday; can sit up for six
hours in in eight-hour workday; can never climb ladders, ropes, or scaffolds; can
only occasionally reach overhead with her right arm; and can balance, stoop, kneel,

crouch, and crawl. Id. at 111, 1330-32. The RFC mirrors these SAMC findings.
But the ALJ did not base his RFC determination on Dr. Ward’s and Dr.
Durfor’s opinion alone. The ALJ’s RFC assessment also considered objective
physical examinations of record which revealed, among other things, (1) normal
musculoskeletal function; (2) “generally mild findings of disorder that would not

be expected to cause symptoms” in Plaintiff’s right knee; and (3) normal strength
in Plaintiff’s extremities. Id. at 108. Moreover, the ALJ relied on Plaintiff’s own
most recent functional report and found that she reported partaking in many
activities of daily living that are inconsistent with her alleged symptoms. Id. For
example, the ALJ cited Plaintiff’s statement in her functional report that she is able
to, and typically does, prepare her own simple meals daily; perform household

chores such as laundry, dishes, and light cleaning; leave home two to four days per
week, including alone; drive and ride in a car; and handle money without issue. Id.
at 108-09, 1028-31. The Court concludes that these pieces of evidence from the
record that the ALJ relied upon in reaching the RFC constitute “more than a mere
scintilla” of evidence because a reasonable mind would accept them as adequate to

support the RFC determination. Richardson, 402 U.S. at 401.
The ALJ did not commit a Ripley error, and the RFC determination is
supported by substantial evidence.
Conclusion
For the foregoing reasons, the hearing decision of the ALJ is AFFIRMED in
all respects.
SO ORDERED.
May 20, 2020.

TT ()
CY iJ
REBECCA RUTHERFORD
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10448582. Public record. Not legal advice.