The opinion
IN THE UNITED STATES DISTRICT COURT March 31, 2023
FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
HOUSTON DIVISION
§
ANGELA E.,1 §
§
Plaintiff, §
§ No. 4:21-cv-0149
v. §
§
KILOLO KIJAKAZI,2 §
Acting Commissioner of Social §
Security, §
§
Defendant. §
MEMORANDUM AND ORDER
Plaintiff Angela E. (“Plaintiff”) filed this suit seeking judicial review of an
administrative decision. ECF No. 1. Jurisdiction is predicated upon 42 U.S.C.
§ 405(g). Plaintiff appeals from the decision of the Commissioner of the Social
Security Administration (“Commissioner”) denying Plaintiff’s claim for disability
insurance benefits under Title II of the Social Security Act (“the Act”).3 The Parties
1 The Court uses only Plaintiff’s first name and last initial. See “Memorandum Re: Privacy
Concern Regarding Social Security and Immigration Opinions,” Committee on Court
Administration and Case Management of the Judicial Conference of the United States (May 1,
2018).
2 The suit was originally filed against Andrew Saul, the prior Commissioner of the Social Security
Administration. Pursuant to Federal Rule of Civil Procedure 25(d), Kilolo Kijakazi has been
automatically substituted as Defendant.
3 On March 30, 2022, the case was transferred on the consent of the parties to this Court to conduct
all proceedings pursuant to 28 U.S.C. § 636(c). Order, ECF No. 17.
filed cross-motions for summary judgment, Pl.’s MSJ, ECF No. 23; Def.’s MSJ,
ECF No. 27, and Plaintiff filed a reply, Pl.’s Reply, ECF No. 29. In six points of
error, Plaintiff challenges the Administrative Law Judge’s (“ALJ”) determination,
arguing that the finding that Plaintiff is not disabled was not supported by substantial
evidence and is the result of legal errors. ECF No. 23 at 30-31. Defendant counters
that substantial evidence supports the ALJ’s determination, and it should be
affirmed. Def.’s MSJ Brief, ECF No. 28 at 16. Based on the briefing, the law, and
the record, the Court determines that Plaintiff’s arguments are without merit because
substantial evidence supports the ALJ’s determination. Therefore, Plaintiff’s motion
for summary judgment is denied, and Defendant’s motion for summary judgment is
granted.
I. BACKGROUND
Plaintiff is 51 years old, R. 36, 213,4 and completed the 9th grade. R. 114,
451. For over twenty years, Plaintiff worked as a customer service representative.
R. 146-47. Plaintiff alleges a disability onset date of July 6, 2015. R. 37, 214.
Plaintiff claims she suffers physical impairments that prevent her from working.
R. 163.
On March 1, 2016, Plaintiff filed her application for disability insurance
benefits under Title II of the Act. R. 371. Plaintiff based her application on a tumor
4 “R.” citations refer to the electronically filed Administrative Record, ECF Nos. 14–15.
in her throat, a deteriorating disc, and a blood clot in her leg. R. 163.5 The
Commissioner denied her claim initially, R. 179, and on reconsideration, R. 199.
A hearing was held before an Administrative Law Judge (“ALJ”). R. 56–106.
An attorney represented Plaintiff at the hearing. R. 56. Plaintiff and a vocational
expert testified at the hearing. R. 57. The ALJ issued a decision denying Plaintiff’s
request for benefits. R. 202–15. On appeal, the Appeals Council remanded the case
for consideration of a new MRI taken after the ALJ’s decision. R. 224–27. The same
ALJ held a second hearing. R. 107–61. The same attorney represented Plaintiff at
the hearing on remand. R. 108. Plaintiff and a vocational expert testified at the
hearing. R. 109. The ALJ issued a decision, again denying benefits. R. 21–47.6 The
5 The relevant time period is July 6, 2015—Plaintiff’s alleged onset date—through December 31,
2020—Plaintiff’s last insured date. R. 24, 27. The Court will consider medical evidence outside
this period to the extent it demonstrates whether Plaintiff was under a disability during the relevant
time frame. See Courtney B. v. Kijakazi, No. 4:19-CV-04525, 2021 WL 4243512, at *1 (S.D. Tex.
Sept. 17, 2021) (citing Williams v. Colvin, 575 F. App’x 350, 354 (5th Cir. 2014); Loza v. Apfel,
219 F.3d 378, 396 (5th Cir. 2000)).
6 An ALJ must follow five steps in determining whether a claimant is disabled. 20 C.F.R.
§ 416.920(a)(4). On remand, the ALJ determined Plaintiff was not disabled at step five. R. 37.
At step one, the ALJ found that Plaintiff did not engage in substantial gainful activity during the
period from her alleged onset date through her date last insured. R. 27 (citing 20 C.F.R. § 404.1571,
et seq.). At step two, the ALJ found that Plaintiff has the following severe impairments:
degenerative disc disease of the lumbar, cervical, and thoracic spine with foraminal lumbar
stenosis, deep vein thrombosis of the left leg, status post stent placement, chronic gastritis, and
hiatal hernia. R. 27 (citing 20 C.F.R. § 404.1520(c)). At step three, the ALJ determined that
Plaintiff did not have an impairment or combination of impairments that met or medically equaled
the severity of one of the listed impairments that would lead to a disability finding. R. 27–28
(referencing 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526). Between step three and four, the
ALJ found that Plaintiff has the residual functional capacity (“RFC”) to perform sedentary work
as defined in 20 CFR § 404.1567(a) and included additional limitations. R. 28. At step four, the
ALJ determined that Plaintiff could not perform past relevant work as a customer service
representative. R. 35 (referencing 20 C.F.R. 404.1565). At step five, based on the testimony of the
vocational expert and the record, considering Plaintiff’s age, education, work experience, and
Appeals Council denied Plaintiff’s request for review, thus upholding the ALJ’s
decision to deny disability benefits. R. 1–4.
Plaintiff filed this appeal. Pl.’s Compl., ECF No 1. Plaintiff seeks reversal of
the ALJ’s determination and an award of benefits, or in the alternative, remand for
additional administrative proceedings. ECF No. 23 at 31. Defendant asks the Court
to affirm the decision because it is supported by substantial evidence. ECF No. 28
at 16.
II. THE STANDARD OF REVIEW OF THE COMISSIONER’S DECISION.
The Social Security Act provides for district court review of any final decision
of the Commissioner that was made after a hearing in which the claimant was a
party. 42 U.S.C. § 405(g). In performing that review:
The court shall have power to enter, upon the pleadings and transcript of the
record, a judgment affirming, modifying, or reversing the decision of the
Commissioner . . . , with or without remanding the cause for a rehearing. The
findings of the Commissioner . . . as to any fact, if supported by substantial
evidence, shall be conclusive[.]
Id.
Judicial review of the Commissioner’s decision denying benefits is limited to
determining whether that decision is supported by substantial evidence on the record
RFC, the ALJ determined Plaintiff could make a successful adjustment to other work that exists
in significant numbers in the national economy, including a sorter, final assembler, surveillance
system monitor, order clerk, callout operator, or charge account clerk. R. 36–37. Therefore, the
ALJ concluded that Plaintiff was not disabled. R. 37.
as a whole and whether the proper legal standards were applied. Id.; Conner v. Saul,
No. 4:18-CV-657, 2020 WL 4734995, at *2 (S.D. Tex. Aug. 15, 2020) (citing Boyd
v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001); Loza v. Apfel, 219 F.3d 378, 393 (5th
Cir. 2000)). “Substantial evidence” means “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.
Ct. 1148, 1154 (2019) (quotations omitted). It is “more than a scintilla but less than
a preponderance.” Conner, 2020 WL 4734995, at *2 (quoting Carey v. Apfel, 230
F.3d 131, 135 (5th Cir. 2000)). The “threshold for such evidentiary sufficiency is not
high.” Biestek, 139 S. Ct. at 1154.
The Court weighs four factors to determine “whether there is substantial
evidence of disability: (1) objective medical facts; (2) diagnoses and opinions of
treating and examining physicians; (3) subjective evidence of pain and disability;
and (4) the claimant’s age, education, and work history.” Conley-Clinton v. Saul,
787 F. App’x 214, 216 (5th Cir. 2019) (citing Martinez v. Chater, 64 F.3d 172, 174
(5th Cir. 1995)).
A reviewing court may not reweigh the evidence in the record, try the issues de
novo, or substitute its judgment for that of the Commissioner, even if the evidence
preponderates against the decision. Conner, 2020 WL 4734995, at *2 (citing Brown
v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999)). Even so, judicial review must not be
“so obsequious as to be meaningless.” Id. (quotations omitted). The “substantial
evidence” standard is not a rubber stamp for the Commissioner’s decision and
involves more than a search for evidence supporting the Commissioner’s findings.
Derakhshani v. Saul, No. 4:18-CV-553, 2020 WL 1650734, at *1 (S.D. Tex. Mar.
25, 2020) (citing Singletary v. Brown, 798 F.2d 818, 822–23 (5th Cir. 1986); Cook
v. Heckler, 750 F.2d 391, 393 (5th Cir. 1985)). Rather, a reviewing court must
scrutinize the record as a whole, taking into account whatever fairly detracts from
the substantiality of evidence supporting the Commissioner’s findings. Id. “Only
where there is a ‘conspicuous absence of credible choices or no contrary medical
evidence’ will we find that the substantial evidence standard has not been met.”
Anastasia J. v. Kijakazi, No. 4:20-CV-2731, 2022 WL 1176753, at *2 (S.D. Tex.
Mar. 31, 2022), report and recommendation adopted sub nom. Jarreau v. Saul, No.
4:20-CV-02731, 2022 WL 1172991 (S.D. Tex. Apr. 19, 2022) (quoting Qualls v.
Astrue, 339 F. App’x 461, 464 (5th Cir. 2009)).
III. THE SHIFTING BURDEN OF PROOF IN A DISABILITY CASE.
An individual claiming entitlement to disability insurance benefits under the
Act has the burden of proving her disability. Id. (citing Johnson v. Bowen, 864 F.2d
340, 343–44 (5th Cir. 1988)). The Act defines disability as the “inability to engage
in any substantial gainful activity by reason of any medically determinable physical
or mental impairment which can be expected to result in death, or which has lasted
or can be expected to last for a continuous period of not less than twelve months.”
42 U.S.C. § 423(d)(1)(A) (2000). The impairment must be proven through medically
accepted clinical and laboratory diagnostic techniques. 42 U.S.C. § 423(d)(3)
(2000). The impairment must be so severe that the claimant has the “inability to
engage in any substantial gainful activity.” Salmond v. Berryhill, 892 F.3d 812, 817
(5th Cir. 2018) (quoting 42 U.S.C. § 423(d)(1)(A)). A claimant is eligible for
benefits only if the onset of the impairment started by the date the claimant was last
insured. Anastasia J., 2022 WL 1176753, at *2 (citing Foster v. Astrue, No. H-08-
2843, 2011 WL 5509475, at *6 (S.D. Tex. Nov. 10, 2011)).
The Commissioner applies a five-step sequential process to determine
disability status. Kneeland v. Berryhill, 850 F.3d 749, 753 (5th Cir. 2017). The
claimant bears the burden of proof at the first four steps to establish that a disability
exists. Id. The burden shifts to the Commissioner at step five to show that the
claimant can perform other work. Id. at 754. The burden then shifts back to the
claimant to rebut this finding. Id. If at any step in the process the Commissioner
determines that the claimant is or is not disabled, the evaluation ends. Morgan v.
Colvin, 803 F.3d 773, 776 (5th Cir. 2015).
IV. PLAINTIFF FAILED TO SHOW REVERSIBLE ERROR AND
DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT.
Plaintiff raises six issues, asserting the ALJ committed reversible error. First,
Plaintiff argues the ALJ improperly evaluated the evidence in formulating Plaintiff’s
RFC. ECF No. 23 at 7-10. Second, Plaintiff argues that the ALJ incorrectly relied
on two state agency medical consultant (“SAMC”) opinions. Id. at 10-11. Third,
Plaintiff argues the ALJ erred in her evaluation of Dr. Roeser’s and Dr. Rudolph’s
evidence. Id. at 11-18. Fourth, Plaintiff argues that the ALJ failed to evaluate the
medical opinion of Dr. Doctor. Id. at 18-21. Fifth, Plaintiff challenges the ALJ’s
finding that Plaintiff did not meet the criteria in Listing 1.04A. Id. at 21-28. Sixth,
Plaintiff argues that the ALJ failed to include all limitations the record evidence
supported. Id. at 28-30. Defendant responds that substantial evidence supports the
ALJ’s determinations. ECF No. 28. The Court will consider each argument in turn.
A. Substantial Evidence Supports The ALJ’s RFC Determination.
Between step three and step four of the evaluation process, the ALJ must
determine a claimant’s RFC. 20 C.F.R. § 404.1520(a)(4). The RFC is a
“determination of the most the claimant can still do despite [the claimant’s] physical
and mental limitations and is based on all relevant evidence in the claimant’s
record.” Choicie H. v. Kijakazi, No. 4:21-CV-2563, 2023 WL 2634043, at *4 (S.D.
Tex. Mar. 24, 2023) (citing Perez v. Barnhart, 415 F.3d 457, 462 (5th Cir. 2005)).
This evidence includes, but is not limited to, “medical history, medical signs, and
laboratory findings; the effects of treatment; and reports of daily activities, lay
evidence, recorded observations, medical source statements, and work evaluations.”
Neill v. Kijakazi, No. 4:21-CV-01744, 2022 WL 1809309, at *2 (S.D. Tex. June 2,
2022), report and recommendation adopted, 2022 WL 2193415 (S.D. Tex. June 17,
2022) (cleaned up); see Choicie H., 2023 WL 2634043, at *4 (citing Hollis v. Bowen,
837 F.2d 1378, 1386-87 (5th Cir. 1988)).
The RFC determination is the sole responsibility of the ALJ. Id. (citing Taylor
v. Astrue, 706 F.3d 600, 602–603 (5th Cir. 2012)). As administrative factfinder, the
ALJ is entitled to significant deference in deciding the appropriate weight to accord
the various pieces of evidence in the record. See id. (citing Scott v. Heckler, 770
F.2d 482, 485 (5th Cir. 1985). However, the “ALJ must consider all the record
evidence and cannot ‘pick and choose’ only the evidence that supports [the ALJ’s]
position.” Id. (quoting Switzer v. Heckler, 742 F.2d 382, 385–86 (7th Cir. 1984))
(cleaned up). The ALJ must address and make specific findings regarding the
supporting and conflicting evidence, the weight to give that evidence, and reasons
for his or her conclusions regarding the evidence. Id. (citing Armstrong v. Sullivan,
814 F. Supp. 1364, 1373 (W.D. Tex. 1993)). Specifically, the ALJ must make “an
assessment of an individual’s ability to do sustained work-related physical and
mental activities in a work setting on a regular and continuing basis.” Michele G. v.
Kijakazi, No. 4:20-CV-00640, 2021 WL 4034064, at *3 (S.D. Tex. Sept. 4, 2021)
(quoting Myers v. Apfel, 238 F.3d 617, 620 (5th Cir. 2001)). “A ‘regular and
continuing basis’ means 8 hours a day, for 5 days a week, or an equivalent work
schedule.” Id.
Here, the ALJ found that Plaintiff has the RFC to perform sedentary work.
R. 28–35. The Social Security regulations define sedentary work in § 404.1567(a) as
follows:
Sedentary work involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and
small tools. Although a sedentary job is defined as one which involves
sitting, a certain amount of walking and standing is often necessary in
carrying out job duties. Jobs are sedentary if walking and standing are
required occasionally and other sedentary criteria are met.
20 C.F.R. § 404.1567(a). The ALJ also imposed further non-exertional limitations
on the RFC. R. 28.7
Plaintiff contends that the ALJ evaluated the evidence to determine whether
the criteria of Listing 1.04 were met, but not to formulate the RFC. ECF No. 23 at 10.
Citing the most recent MRI, Plaintiff also asserts that “new evidence shows a
significant intervening event and suggests a downward trajectory, or at least a
plateau set below” the sedentary RFC the ALJ found. Id. at 11 (citing R. 2563).
These contentions are unfounded.
Plaintiff’s argument focused on a single paragraph of the RFC discussion.8 In
formulating the RFC determination, however, the ALJ reviewed the record evidence
7 The ALJ applied the following limitations: the Plaintiff can occasionally climb ramps and stairs,
but should never climb ladders, ropes, or scaffolds; can occasionally balance, stoop, kneel, crouch,
and crawl; could frequently reach in all directions, including overhead, bilaterally; can
occasionally push, pull, and operate foot controls with her right lower extremity; and cannot push,
pull, and operate foot controls with her left lower extremity. R. 28.
8 The ALJ stated in one paragraph that “[w]hile the June 2018 MRI may suggest a decline in the
claimant’s conditions, that decline does not meet or equal the criteria in section 1.04 of the Listing
of Impairments, and the claimant’s residual functional capacity, as herein defined has taken into
account the decline noted in the [Appeals Council] remand order.” R. 34.
in fifty-nine paragraphs that spanned eight pages. R. 28-35. The opinion provided a
detailed assessment of Plaintiff’s medical history, including references to treatment
records for her back and lower extremity pain, activities of daily living, symptoms,
and medical opinions in the record. Id. Furthermore, the ALJ noted improvement in
Plaintiff’s spinal condition, including a January 2020 emergency room visit,
documenting painless full range of motion without tenderness in her back. Id. at 33
(citing R. 2749-55). Therefore, in her thorough review of the record, there is nothing
to suggest that the ALJ only evaluated the evidence for the purpose of its relationship
to Listing 1.04, or that the ALJ did not review the new evidence. Quite to the
contrary, the listing analysis is in another section of the opinion from the RFC
analysis. Compare R. 28-35 (ALJ formulating Plaintiff’s RFC), with R. 27-28 (ALJ
determining that Plaintiff did not meet Listing 1.04 requirements).
Even assuming the ALJ had erred in her evaluation of the evidence for
formulating the RFC, “Plaintiff would still have the burden of showing prejudice.”
Isaac R. v. Kijakazi, No. 4:21-CV-01654, 2022 WL 4751131, at *8 (S.D. Tex. Sept.
30, 2022) (citing Jones v. Astrue, 691 F.3d 730, 734-35 (5th Cir. 2012)). Here,
Plaintiff failed to show in any detail how any evidence would have altered the
determination. Hernandez v. Saul, No. 18-CV-00055, 2019 WL 4482942, at *7
(W.D. Tex. Sept. 18, 2019) (finding no prejudice where plaintiff failed to show or
argue with any specificity that error would have altered the result).
Therefore, substantial evidence supports the ALJ’s RFC determination and
reversal is not warranted.
B. The ALJ’s Properly Relied on the SAMCs’ Opinions.
Plaintiff next contends the ALJ erred because she relied on the outdated
medical opinions of two state agency medical consultants (“SAMCs”), Dr. Lucy
Saur and Dr. Randal Reid. ECF No. 23 at 10-11. According to Plaintiff, the ALJ
should not have relied on these opinions because the doctors did not review any
medical evidence after 2016, including the lumbar MRI from June 5, 2018. Id. at 10.
Plaintiff implies that the ALJ may not give any weight to a SAMC opinion when the
SAMC did not review all the evidence in the record. However, Plaintiff identifies no
precedent, nor is this Court aware of any, supporting this proposition.
To the contrary, “[a]n ALJ is legally required to evaluate every medical
opinion [s]he receives and consider certain factors when deciding how much weight
to give the medical opinion.” Ventura v. Colvin, No. 6:16-CV-16, 2017 WL
1397130, at *6 (S.D. Tex. Feb. 27, 2017), report and recommendation adopted, 2017
WL 1397131 (S.D. Tex. Mar. 30, 2017) (citing 20 C.F.R. §§ 404.1527(b), (c),
416.927(b), (c)). “The ALJ may not ignore a SAMC opinion and must explain the
weight” she gives to the opinion because these consultants are considered highly
qualified and experts in Social Security disability evaluation. Id. at *11 (citing 20
C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i)).
Additionally, “[t]he ultimate decision whether Plaintiff is disabled rests with
the ALJ,” not the SAMC. Id. at *12 (citing Newton v. Apfel, 209 F.3d 448, 455 (5th
Cir. 2000); 20 C.F.R. §§ 404.1527(d)(1), (e)(2)(i), 416.927(d)(1), (e)(2)(i)).
Therefore, the ALJ, not the SAMC, is responsible for using the full record to make
the determination. Id. (citing Woods v. Colvin, No. 3:15-CV-2355, 2017 WL
563980, at *4 (N.D. Tex. Jan. 20, 2017), report and recommendation adopted sub
nom. Woods v. Berryhill, 2017 WL 551903 (N.D. Tex. Feb. 10, 2017)).
Here, the SAMCs provided similar though not identical opinions. Dr. Saur
opined that Plaintiff could lift less than 10 pounds frequently and 10 pounds
occasionally; and could stand and walk for up to 2 hours a day.9 Dr. Reid opined that
Plaintiff could occasionally lift and/or carry 10 pounds; frequently lift and/or carry
less than 10 pounds; stand and/or walk with normal breaks for a total of 2 hours; sit
with normal breaks for a total of about 6 hours in an 8-hour workday; do unlimited
pushing and/or pulling; and does not have postural, manipulative, visual,
communicative, or environmental limitations.10 The ALJ gave the SAMCs some
weight, explaining the following:
[t]he examiners had the opportunity to review the entire medical file
available at the time, which showed, the claimant routinely had normal
physical examinations. Accordingly, the opinions are consistent with
the evidence of record available at the time of the review, but more
9 R. 177, 179 (8/01/2016).
10 R. 196–97 (12/08/2016).
recent medical evidence supports additional non-exertional limitations
on the claimant’s abilities.
R. 34.
Plaintiff does not dispute that the SAMCs evaluated the record available at
the time of their consultations. See ECF No. 23 at 10-11. Instead, Plaintiff contends
that in relying on the SAMCs’ opinions, the ALJ ignored the 2018 MRI. ECF No. 23
at 11. Quite the opposite, the ALJ acknowledged the 2018 MRI, assessed the other
evidence that the SAMCs did not review, noted mostly mild findings from the 2018
MRI, and added limitations as a result. R. 33-35. Accordingly, substantial evidence
supports the ALJ’s decision to give “some weight” to the SAMCs’ opinions and thus
to rely on the SAMCs’ opinions as “somewhat persuasive.” R. 34; see also Ventura,
2017 WL 1397130, at *12.
But even if the ALJ had erred in her reliance on the SAMCs’ opinions,
Plaintiff would still have the burden of showing prejudice. See Isaac R., 2022 WL
4751131, at *8 (citing Jones, 691 F.3d at 734-35). Here, Plaintiff argues that remand
is appropriate so the ALJ can reconsider the 2018 MRI. See ECF No. 23 at 11.
However, the ALJ stated that the “2018 MRI may suggest a decline in the claimant’s
conditions,” R. 34, indicating that she already considered that evidence. Plaintiff
fails to point to evidence that would have altered the results. See Hernandez, 2019
WL 4482942, at *7. Thus, any error was harmless.
Therefore, because the ALJ properly relied on the opinions of the SAMCs in
consideration with the other medical evidence in the record, neither reversal nor
remand is warranted.
C. Substantial Evidence Supports the ALJ’s Consideration of Dr. Roeser’s
and Dr. Rudolph’s Evidence.
Plaintiff argues that the ALJ failed to evaluate Dr. Roeser’s report under the
“treating physician rule.” ECF No. 23 at 11-13. Plaintiff also argues that the ALJ
failed to evaluate Dr. Rudolph’s evidence as an “other source.” Id. at 13-18. The
Court addresses each argument in turn.
1. Dr. Roeser was not a treating physician and the ALJ properly
considered the underlying objective medical evidence.
Plaintiff argues that the ALJ failed to evaluate Dr. Roeser’s report under the
treating physician rule. ECF No. 23 at 12. Defendant responds contends that
Dr. Roeser’s report does not contain any opinions. He examined Plaintiff and noted
that she may require injections (which she later had as detailed in the ALJ’s
decision), and he prescribed physical therapy. ECF No. 28 at 10 (citing R. 660-62).
Defendant further contends that the ALJ is not required to discuss every piece of
evidence in the record. Id. at 11.
The “treating physician rule” requires an ALJ to give “controlling weight to a
treating physician’s opinion on the nature and severity of a patient’s impairment,
provided that opinion is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and . . . not inconsistent with other substantial
evidence.” Christian v. Berryhill, No. 4:15-CV-3714, 2017 WL 1134152, at *10
(S.D. Tex. Mar. 27, 2017) (quoting Newton, 209 F.3d at 455); Ventura, 2017 WL
1397130, at *6 (quoting Newton, 209 F.3d at 455) (treating physician’s opinion
should be accorded “great weight”); accord 20 C.F.R. § 404.1527(c)(2).11 A
physician is considered a treating source based on the following definition:
[t]reating source means your own acceptable medical source who
provides you, or has provided you, with medical treatment or evaluation
and who has, or has had, an ongoing treatment relationship with you.
Generally, we will consider that you have an ongoing treatment
relationship with an acceptable medical source when the medical
evidence establishes that you see, or have seen, the source with a
frequency consistent with accepted medical practice for the type of
treatment and/or evaluation required for your medical condition(s). We
may consider an acceptable medical source who has treated or
evaluated you only a few times or only after long intervals (e.g., twice
a year) to be your treating source if the nature and frequency of the
treatment or evaluation is typical for your condition(s).
20 C.F.R. § 404.1527(a)(2).
The report Plaintiff relies on was a one-time evaluation. ECF No. 12-13. Thus,
Dr. Roeser is a “non-treating source,” which is “a physician . . . who had examined
[a claimant] but does not have, or did not have, an ongoing treatment relationship
11 In cases filed on or after March 27, 2017, the ALJ “will not defer or give any specific evidentiary
weight, including controlling weight, to any medical opinion(s) or prior administrative medical
finding(s),” including those from a treating physician. 20 C.F.R. § 404.1520c(a). Because Plaintiff
filed her claim on March 1, 2016, the ALJ was required to follow the prior guidelines in conducting
the RFC analysis, including giving controlling weight to a well-supported treating physician’s
opinion. Courtney B., 2021 WL 4243512, at *8 (citing 20 C.F.R. § 404.1527(c)(2)).
with [the claimant.]” Lindsey v. Saul, No. 4:20-CV-303, 2021 WL 933748, at *9
n.75 (S.D. Tex. Jan. 20, 2021), report and recommendation adopted, 2021 WL
931694 (S.D. Tex. Mar. 10, 2021) (citing 20 C.F.R. §§ 404.1502, 416.902). An
evaluation of a plaintiff “on one occasion would not qualify as an ongoing treatment
relationship.” Id. (citing Richardson ex rel. C.R. v. Barnhart, 338 F. Supp. 2d 749,
759 (S.D. Tex. 2004)). Therefore, the ALJ was not required to give Dr. Roeser’s
report controlling weight. However, Dr. Roeser is a board certified neurosurgeon.12
As a specialist, his opinion about medical issues in his specialty is given greater
weight than a generalist’s opinion. Ventura, 2017 WL 1397130, at *6 (citing 20
C.F.R. § 404.1527(c)(5), 416.927(c)(5)).13
Regardless of whether Dr. Roeser is a treater or specialist, Defendant argues
that there was no opinion to consider. ECF No. 28 at 10. The report is a one
paragraph “treatment plan” that references a 2015 MRI; and his sole opinion was
that the findings shown in that MRI were contributing to Plaintiff’s low back pain.
R. 662. Dr. Roeser referred her for additional x-rays and physical therapy. Id.
Without mentioning the treatment plan, the ALJ referred to the 2015 MRI and
12 Andrew C. Roeser, MD, NEUROSURGICAL GROUP OF TEXAS, https://www.neurosurgery-
texas.com/physicians/andrew-c-roeser-md (last visited Mar. 30, 2023).
13 Plaintiff failed to raise the argument that Dr. Roeser is a specialist whose opinion is entitled to
more weight. Any error is therefore waived. Courtney B., 2021 WL 4243512, at *7 n.9 (“Reversal
of an ALJ's decision is appropriate, however, only if a plaintiff shows prejudice from the error.
Plaintiff did not show prejudice because she did not raise the issue and waived any error.”).
detailed its findings from the radiologist’s report. R. 30; see R. 664-65. Thus, the
ALJ considered the findings contained in the underlying objective evidence that
formed the basis for the treatment plan and Dr. Roeser’s opinion. Furthermore, the
ALJ acknowledged that Plaintiff underwent physical therapy since 2019.
R. 29, 31, 32.
Defendant also argues that the absence of a discussion of Dr. Roeser’s report
from the ALJ’s decision is not a reversible error because the ALJ is not required to
“to discuss all evidence that supports the decision or the evidence that was rejected.”
ECF No. 28 at 11 (citing Falco v. Shalala, 27 F.3d 160, 163 (5th Cir. 1994); Ramirez
v. Colvin, No. 2:12-CV-262, 2014 WL 1293888, at *10 (N.D. Tex. Mar. 28, 2014)).
Defendant is correct that there is no requirement that an ALJ “do an exhaustive
point-by-point discussion of each piece of evidence at every step.” Lindsey, 2021
WL 933748, at *5 (quoting Audler v. Astrue, 501 F.3d 446, 448 (5th Cir. 2007)).
Additionally, “[t]he ALJ's failure to mention a particular piece of evidence does not
necessarily mean that [s]he failed to consider it[.]” Id. (quoting Hammond v.
Barnhart, 124 F. App'x 847, 851 (5th Cir. 2005)). “[C]ourts routinely decline to find
reversible error when the ALJ explicitly states she considered the entire record in
the decision.” Id. (citing Brunson v. Astrue, 387 F. App'x 459, 461 (5th Cir. 2010)).
Here, the ALJ stated she considered the entire record. R. 27.
Even if the absence of a discussion of Dr. Roeser’s report in the ALJ’s
decision was an error, Plaintiff does not show that a different result would have
occurred if a discussion of the report had been included. See ECF No. 23 at 12-13.
The ALJ’s reference to the 2015 MRI findings and physical therapy indicates to the
contrary. Moreover, the case was remanded to the ALJ for consideration of the 2018
MRI which contains findings that are more severe that in the 2015 MRI. Moreover,
the ALJ’s opinion was consistent with Dr. Roeser’s one sentence opinion that the
findings in the 2015 MRI contributed to Plaintiff’s lower back pain. Courts will not
reverse for lack of substantial evidence where the plaintiff fails to show that the
alleged deficiencies caused prejudice. Newton, 209 F.3d at 458. Thus, Plaintiff has
not met her burden of establishing that the absence of the discussion of Dr. Roeser’s
report as opposed to the specific evidence is an error warranting reversal. See Isaac
R., 2022 WL 4751131, at *8 (citing Jones, 691 F.3d at 734-35).
Therefore, reversal is not warranted.
2. The ALJ properly considered the evidence from Dr. Rudolph.
Plaintiff argues that the ALJ should have considered the evidence from
Dr. Rudolph—her chiropractor—as an “other source” in her analysis of the severity
of Plaintiff’s impairments. ECF No. 23 at 18. Moreover, Plaintiff complains that the
ALJ’s determination that Dr. Rudolph’s 2016 opinion on Plaintiff’s ability to work
“does not indicate what objective testing was performed” is without basis. ECF
No. 23 at 13 (citing R. 34). Defendant asserts that the ALJ properly considered
Dr. Rudolph’s opinion and that Plaintiff’s argument thus is without merit. ECF
No. 28 at 8-10.
“Only an acceptable medical source ‘can establish the existence of a
medically determinable impairment, give medical opinions, and be considered
treating sources whose medical opinions may be entitled to controlling weight.’”
Moore v. Saul, No. 4:19-CV-00195, 2020 WL 2487046, at *3 (N.D. Tex. Jan. 31,
2020), report and recommendation adopted, 2020 WL 1302324 (N.D. Tex. Mar. 19,
2020) (quoting Thibodeaux v. Astrue, 324 F. App'x 440, 445 (5th Cir. 2009)). “A
chiropractor is classified as an other source,” not an acceptable medical source.
Genaro M. v. Comm'r, SSA, No. 3:19-CV-2609, 2021 WL 665539, at *3 (N.D. Tex.
Feb. 4, 2021), report and recommendation adopted sub nom. Mendoza v. Comm'r,
SSA, 2021 WL 662105 (N.D. Tex. Feb. 18, 2021) (citing 20 C.F.R. 404.1513(d)).
As an “other source,” Dr. Rudolph’s evidence “may be used to support findings on
the severity of an impairment and an impairment's effect on a claimant's ability to
work.” Phyllis R. v. Berryhill, No. 3:18-CV-478, 2019 WL 1367684, at *4 (N.D.
Tex. Mar. 8, 2019), report and recommendation adopted, No. 3:18-CV-0478-D,
2019 WL 1358903 (N.D. Tex. Mar. 26, 2019), aff'd sub nom. Russo v. Saul, 805 F.
App'x 269 (5th Cir. 2020) (citing Young v. Berryhill, 689 F. App'x 819, 822 (5th Cir.
2017)).
a. The ALJ properly disregarded Dr. Rudolph’s opinion that
Plaintiff cannot work.
Here, Plaintiff focuses on the ALJ’s evaluation of Dr. Rudolph’s evidence as
it relates to establishing the severity of Plaintiff’s impairments. See ECF No. 23
at 18. However, Plaintiff does not designate a single impairment an acceptable
medical source identified that Dr. Rudolph’s evidence shows is severe, but that the
ALJ failed to include as a severe impairment. See ECF No. 23 at 13-18.
Instead, Plaintiff points to multiple instances of Dr. Rudolph opining that
Plaintiff could perform “no work” or was “unable to work.” See ECF No. 23 at 16-
17 (citing R. 2659, 2661, 2663-64, 2673-74). The determination of whether Plaintiff
is able to work, however, “is a finding reserved [for] the Commissioner, and is not a
medical opinion within the meaning of the regulation.” Kevin L. v. Kijakazi, No.
4:21-CV-2160, 2022 WL 3328269, at *5 (S.D. Tex. July 27, 2022), report and
recommendation adopted, 2022 WL 3283741 (S.D. Tex. Aug. 11, 2022) (citing 20
C.F.R. § 404.1527(d)(3); Frank v. Barnhart, 326 F.3d 618, 620 (5th Cir. 2003)).
Thus, the ALJ properly disregarded Dr. Rudolph’s opinion that Plaintiff cannot
work. See Gillman v. Comm'r, SSA, No. 4:19-CV-00704, 2021 WL 1213556, at *11
(E.D. Tex. Mar. 30, 2021) (finding that “Dr. Lee's opinion that Plaintiff is ‘unable to
work’ is not determinative and properly disregarded by the ALJ”).
b. The ALJ properly considered Dr. Rudolph as an other
source and explained the weight given.
The ALJ “generally should explain the weight given to opinions from [other]
sources.” Horton v. Berryhill, No. CV-H-18-3341, 2020 WL 1321820, at *5 (S.D.
Tex. Feb. 27, 2020), report and recommendation adopted, 2020 WL 1321817 (S.D.
Tex. Mar. 19, 2020) (citing 20 C.F.R. § 404.1527(f)(2) (2017)). “[C]onflicts in the
evidence are for the ALJ, not the courts, to resolve.” Steven C. v. Kijakazi, No. 4:21-
CV-1066, 2022 WL 4490174, at *5 (S.D. Tex. Sept. 27, 2022) (citing Newton, 209
F.3d at 453).
Regarding Dr. Rudolph’s 2019 opinion, the ALJ explained that “the opinion
does not indicate what objective testing was performed to reach that opinion.” R. 35.
The ALJ’s decision reflects that she considered Dr. Rudolph’s evidence, finding it
inconsistent with Dr. Rudolph’s objective exam and treatment records. See id. at 34-
35. Plaintiff challenges the ALJ’s statement about objective testing is baseless and
cites to evidence from Dr. Rudolph showing objective testing and examinations.14
However, Plaintiff does not cite to any evidence showing that Dr. Rudolph
connected the objective testing with his opinion on Plaintiff’s ability to perform
work related functions.
14 See ECF No. 23 at 13-18 (citing R. 683-84 (9/28/2015), 688 (9/30/2015), 690-91 (10/01/2015),
693-94 (10/02/2015), 696 (10/07/2015), 699-700 (10/09/2015), 702 (10/14/2015), 1454
(7/01/2016), 1455 (7/15/2016), 1458 (7/19/2016), 1736 (9/14/2017), 1738 (9/14/2017), 1753
(5/17/2017), 2554-55 (6/08/2018), 2659-60 (8/21/2019), 2663-64 (7/24/2019), 2673-74
(12/30/19)).
Even if Plaintiff had provided such support, Plaintiff does not identify what
prejudice would have resulted. See ECF No. 23 at 13-18. Thus, Plaintiff has failed
to carry her burden to show that prejudice resulted from the error she alleges. See
Isaac R., 2022 WL 4751131, at *8 (citing Jones, 691 F.3d at 734-35).
Accordingly, the ALJ properly considered Dr. Rudolph’s evidence as an other
source, and she did not commit reversible error in discounting his opinion on
Plaintiff’s ability to work. R. 34; see also Williams v. Saul, No. 7:20-CV-00008,
2020 WL 8254286, at *6 (N.D. Tex. Dec. 30, 2020), report and recommendation
adopted, 2021 WL 211812 (N.D. Tex. Jan. 21, 2021) (ALJ discussed other source’s
treatment and medical records and cited to those records in her decision, held ALJ
sufficiently considered the other non-medical source evidence).
D. Substantial Evidence Supports The ALJ’s Treatment of Dr. Doctor’s
Records.
Plaintiff challenges the ALJ’s treatment of Dr. Doctor’s medical opinion.
While acknowledging that the ALJ recited Dr. Doctor’s findings in the opinion,
Plaintiff claims that she failed to evaluate his medical opinion in formulating the
RFC. ECF No. 23 at 21. In addition, Plaintiff complains the ALJ mistakenly stated
that “Dr. Doctor did not indicate the claimant was limited in her activities” when he
made no such statement. Id. at 20 (citing R. 28). Defendant argues that Dr. Doctor
did not offer a medical opinion thus the ALJ “could not evaluate something which
did not exist.” ECF No. 28 at 13.
Medical opinions “are statements from acceptable medical sources that reflect
judgments about the nature and severity of your impairment(s), including your
symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and
your physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(1); see also Perez v.
Comm'r, SSA, No. 4:21-CV-594, 2022 WL 4349559, at *3 (N.D. Tex. May 2, 2022),
report and recommendation adopted sub nom. Perez v. Kijakazi, 2022 WL 4349552
(N.D. Tex. Sept. 19, 2022) (treating source statements which gave functional
limitations were medical opinions).
As Plaintiff acknowledges, the ALJ’s opinion included an extensive recitation
of the findings in Dr. Doctor’s treatment notes, documenting Plaintiff’s complaints,
and his recommendation for injections which provided little relief as the condition
worsened. See ECF No. 23 at 18-21. In fact, as Plaintiff recounted, Dr. Doctor
informed her that there was nothing else he could do to improve her condition. Id.
at 20. Despite her review of his treatment notes, Plaintiff failed to point to any
medical opinion from Dr. Doctor that the ALJ failed to consider. For example, she
does not point to any the record where Dr. Doctor documented a judgment about the
nature and severity of her impairments, symptoms, diagnosis, prognosis, what she
could still do despite her impairments, or any physical or mental restrictions that the
ALJ failed to consider. No where did Plaintiff show that Dr. Doctor documented that
she was limited in her activities. See ECF No. 23 at 18-21. Thus, Plaintiff has failed
to show a medical opinion that Dr. Doctor had that the ALJ did not consider.
Moreover, the statement that Dr. Doctor did not state Plaintiff was limited in her
activities appears to be a correct statement based on the ALJ’s review of the records
and Plaintiff has not disproved it.
Even if Plaintiff had pointed to any medical opinion, Plaintiff does not show
that evaluating a medical opinion from Dr. Doctor would have changed the result.
See id. Accordingly, Plaintiff has failed to carry her burden to show prejudice. See
Hernandez, 2019 WL 4482942, at *7; see also Isaac R., 2022 WL 4751131, at *8
(citing Jones, 691 F.3d at 734-35).
E. Substantial Evidence Supports the ALJ’s Finding that Plaintiff Did Not
Qualify as Disabled Under Listing 1.04A.
In her next challenge, Plaintiff targets the ALJ’s analysis and conclusions at
step three: whether Plaintiff’s impairments meet the requirements of a listed
impairment, such that she is presumptively disabled. ECF No. 23 at 21-28. The
listings describe certain “physical and mental illnesses and abnormalities,
categorized by the body system they affect.” Stockman v. Saul, No. 4:18-cv-00508,
2019 WL 3240522, at *3 (S.D. Tex. July 18, 2019). Their purpose is to describe
“impairments severe enough to prevent a person from doing any gainful activity”
regardless of age, education, or work experience. 20 C.F.R. § 416.925(a); Sullivan
v. Zebley, 493 U.S. 521, 529-30 (1990).
Although the ALJ considered and rejected several listings, the only one that
Plaintiff invokes is Listing 1.04A. According to Plaintiff, the ALJ did not assess all
the medical evidence, and if she had, she would have concluded that Plaintiff’s
degenerative disc disease satisfies the Listing 1.04A requirements. ECF No. 23
at 23-28. Defendant argues that the medical evidence supports only some of the
Listing 1.04A requirements. ECF No. 28 at 13-15. In reply, Plaintiff contends
Defendant failed to explain which of the prescribed criteria her conditions failed to
satisfy and therefore has failed to rebut the argument. ECF No. 29 at 5.
1. The step three analysis on appeal: Is there more than a scintilla of
evidence to support the ALJ’s finding.
At step three of the evaluation process, the ALJ must determine whether a
claimant’s impairments meet or equal the listing criteria. Steven C., 2022 WL
4490174, at *3 (citing Sullivan v. Zebley, 493 U.S. 521, 529-30 (1990)). If so, the
claimant is presumed disabled. Id. (citing Sullivan, 493 U.S. at 532). The criteria in
the medical listing are demanding and stringent, and an impairment that manifests
only some elements, no matter how severely, does not qualify as a disability. Id.
(citing Heck v. Colvin, 674 F. App’x 414-15 (5th Cir. 2017)) (quotation omitted);
see also Whitehead v. Colvin, 820 F.3d 776, 781 (5th Cir. 2016).
In evaluating an ALJ’s step-three analysis, the question is not whether there
is evidence that a plaintiff satisfies the listing criteria, but whether there is more than
a mere scintilla of evidence to support the ALJ’s finding that the plaintiff does not
meet the listing. See id. (citing Casillas v. Colvin, No. 15-CV-12, 2016 WL 3162146,
at *4 (W.D. Tex. June 3, 2016) (rejecting argument that the record evidence indicates
plaintiff’s impairment(s) meet the criteria in Listing 1.04A, reviewing only whether
substantial evidence supports the ALJ’s determination that plaintiff’s impairment
did not meet or equal the listing); Barnes v. Astrue, No. 07-cv-4377, 2008 WL
5348225, at *11 (S.D. Tex. Dec. 22, 2008) (same)). The court cannot “reweigh the
evidence or substitute [its] judgment for the Commissioner's.” Copeland v. Colvin,
771 F.3d 920, 923 (5th Cir. 2014).
Listing 1.04A applies to “Disorders of the spine,” including degenerative disc
disease that “result[s] in compromise of a nerve root (including the cauda equina) or
the spinal cord.” 20 C.F.R. Part 404, Subpart P, App. 1, § 1.04. The criteria that a
plaintiff must meet includes:
A. Evidence of nerve root compression characterized by neuro-
anatomic distribution of pain, limitation of motion of the spine, motor
loss (atrophy with associated muscle weakness or muscle weakness)
accompanied by sensory or reflex loss and, if there is involvement of
the lower back, positive straight-leg raising test (sitting and supine).
Id. § 1.04A (emphasis added). 15 Thus, every part of this listing must be met.
15 “Effective April 2, 2021, the SSA revised the criteria in the Listing of Impairments used to
evaluate claims involving musculoskeletal disorders under Titles II and XVI of the Act.” Locker
v. Comm'r, SSA, No. 1:21-CV-00823, 2022 WL 10207768, at *7 n.4 (W.D. La. Sept. 15, 2022),
report and recommendation adopted, 2022 WL 10219758 (W.D. La. Oct. 17, 2022). “Listing 1.04
was removed without replacement and new listings were created incorporating and clarifying the
provisions of the Listing 1.04 criteria.” Id. “Accordingly, where the previous and current
regulations differ, the Court considers the regulations that were in effect at the time of the ALJ's
decision.” Zepeda v. Berryhill, No. EP-17-CV-267, 2019 WL 1369947, at *4 n.2 (W.D. Tex. Mar.
26, 2019) (citing Young v. Berryhill, 689 F. App'x 819, 821 n.3 (5th Cir. 2017)). Here, the ALJ’s
final decision was rendered on April 1, 2020. R. 21. Thus, Listing 1.04 governed the ALJ's analysis
One of the reasons the ALJ gave why Plaintiff did not meet Listing 1.04
criteria was because no assistive device was used. R. 28. Plaintiff spent pages
discussing the evidence that she contends shows she meets the requirements of
Listing 1.04A. ECF No. 23 at 20-28. Regardless of whether she met all the
requirements in that specific listing paragraph, those are not the only criteria.
Plaintiff failed her burden to show that she could not effectively ambulate. Id. at 28.
2. The ALJ properly considered that Plaintiff did not use an assistive device
in her evaluation of the Listing 1.04A criteria.
Plaintiff contends that the ALJ improperly included as criteria of the listing
that Plaintiff did not use an assistive device, arguing the fact is irrelevant. ECF
No. 23 at 27. Plaintiff’s argument is misguided.
Plaintiff’s argument focuses solely on the criteria contained in Listing 1.04A.
But these are not the only listing criteria required. “The introductory paragraphs of
Section 1.00 listings clearly state that a claimant is required to prove a loss of
function as a result of a musculoskeletal impairment by demonstrating either an
‘inability to ambulate effectively on a sustained basis . . ., or the inability to perform
fine and gross movements effectively on a sustained basis.’” Locker v. Comm'r, SSA,
No. 1:21-CV-00823, 2022 WL 10207768, at *8 (W.D. La. Sept. 15, 2022), report
and recommendation adopted, No. 1:21-CV-00823, 2022 WL 10219758 (W.D. La.
regarding Plaintiff’s back condition. Therefore, the Court examined the ALJ's decision under the
listing rules in effect at the time of the ALJ’s decision.
Oct. 17, 2022) (citing 20 C.F.R. Part 404, Subpt. P., App. 1, § 1.00(B)(2)(a)).
Further, the inability to ambulate effectively must have lasted, or be expected to last,
for at least 12 months. Id.
The regulations provide that an
[i]nability to ambulate effectively means an extreme limitation of the
ability to walk; i.e., an impairment(s) that interferes very seriously with
the individual's ability to independently initiate, sustain, or complete
activities. Ineffective ambulation is defined generally as having
insufficient lower extremity functioning (see 1.00J) to permit
independent ambulation without the use of a hand-held assistive
device(s) that limits the functioning of both upper extremities.
20 C.F.R. Part 404, Subpart P, App. 1, § 1.00(B)(2)(b)(1). A plaintiff demonstrates
evidence of ineffective ambulation by showing the following:
the inability to walk without the use of a walker, two crutches or two
canes, the inability to walk a block at a reasonable pace on rough or
uneven surfaces, the inability to use standard public transportation, the
inability to carry out routine ambulatory activities, such as shopping
and banking, and the inability to climb a few steps at a reasonable pace
with the use of a single hand rail.
Id. § 1.00(B)(2)(b)(2). Thus, the regulations require medical evidence showing
ineffective ambulation for at least 12 months.
Before the Commissioner, Plaintiff failed to establish she could not ambulate
effectively either showing the use of a walker, two crutches, or two canes or an
inability to walk at a reasonable pace on uneven surfaces, use public transportation,
carry out routine activities. See id. There is no objective medical evidence to suggest
an inability to ambulate and Plaintiff points to none. ECF No. 23 at 20-28.
To the contrary, the record shows Plaintiff ambulates effectively. Although
Plaintiff shows Dr. Stuckey described her gait as “antalgic,” Dr. Stuckey also noted
that she “did not walk with an assistive device” and could “walk 3 blocks.”16 An
antalgic gait without more does not provide evidence supporting an inability to
ambulate effectively. Cf. Haynes v. Saul, No. CV-18-13914, 2020 WL 9720061, at
*10 (E.D. La. Jan. 8, 2020) (finding no listing error when plaintiff walked with an
antalgic gate and doctor prescribed one cane, “a single cane does not indicate an
inability to ambulate effectively.”). Moreover, Plaintiff’s lack of use of an assistive
device and ability to walk three blocks provides more than a scintilla of evidence of
her ability to ambulate effectively. Cf. Kashanchi v. Saul, No. 7:19-CV-310, 2020
WL 5823154, at *16 (S.D. Tex. Sept. 11, 2020), report and recommendation
adopted, No. 7:19-CV-310, 2020 WL 5819898 (S.D. Tex. Sept. 30, 2020) (deciding
that substantial evidence supported the ALJ’s finding that the plaintiff failed to meet
Listing 1.02 when plaintiff used a walker without prescription on occasion and used
crutches to help with ambulation without showing either device was needed to
ambulate).
Because Plaintiff did not present evidence that she met all the Listing 1.04A
requirements, any failure of the ALJ in her explanation of her rejection was harmless
error. See Faulkner v. Kijakazi, No. 4:20-CV-02565, 2022 WL 3356412, at *3 (S.D.
16 ECF No. 23 at 26 (citing R. 2573, 2578) (7/12/18).
Tex. Aug. 15, 2022), report and recommendation adopted sub nom. Faulkner v.
Saul, 2022 WL 3995473 (S.D. Tex. Aug. 31, 2022) (finding harmless error when
ALJ failed to explain rejection of Listing 1.04A because plaintiff presented no
evidence that he met all the requirements); cf. Michael L. v. Berryhill, No. 3:18-CV-
0010, 2019 WL 1243866, at *4 (N.D. Tex. Feb. 20, 2019), report and
recommendation adopted sub nom. Layton v. Berryhill, No. 3:18-CV-0010, 2019
WL 1244076 (N.D. Tex. Mar. 18, 2019) (granting defendant’s motion for summary
judgment because plaintiff failed to point to evidence that he needed a walker, two
canes, or two crutches to ambulate to meet the listing).
Therefore, even if there was an error in the ALJ’s explanation of her rejection
of Plaintiff meeting Listing 1.04A requirements, it was harmless, because substantial
evidence supports the step three analysis and reversal is not warranted.
3. Remand for the ALJ to develop the record on Listing 1.04A criteria is
not warranted.
Plaintiff asserts that “the ALJ should also be ordered to develop the record
and obtain medical expert testimony.” ECF No. 23 at 28. However, “[t]he ALJ's
need to contact a medical source arises only when the available evidence is
inadequate to determine if there is a disability.” Myers v. Saul, No. SA-20-CV-
00445, 2021 WL 4025993, at *7 (W.D. Tex. Sept. 3, 2021) (quoting Cornett v.
Astrue, 261 F. App'x 644, 649 (5th Cir. 2008)) (cleaned up). Here, “there is no
indication that the record was . . . so inadequate as to prohibit a proper evaluation of
Plaintiff’s impairments, and Plaintiff failed to show [medical expert testimony]
would have led to a more favorable decision.” Lori Ann T. v. Saul, No. 2:19-CV-
132, 2020 WL 13430181, at *7 (N.D. Tex. Sept. 21, 2020). Accordingly, remand for
the ALJ to develop the record on Listing 1.04A is not warranted.
F. Substantial Evidence Supports the ALJ’s Decision to Omit Additional
Limitations for Plaintiff’s Sitting, Standing, Hazy Vision, and Migraine
Headaches.
Plaintiff claims the ALJ failed to consider all her limitations in formulating
the RFC. ECF No. 23 at 28. Plaintiff argues the RFC must include all limitations
supported by the record, even those that are not severe. Id. (citing 20 C.F.R.
§§ 404.1545(e)). Specifically, Plaintiff asserts that the ALJ did not consider her
sitting and standing problems, vision problems, and migraine headaches. ECF
No. 23 at 28-30; ECF No. 29 at 6-7. Defendant responds that the ALJ properly
considered all the medical evidence, and the ALJ conducted an appropriate
assessment of Plaintiff’s impairments. ECF No. 28 at 16.
Although the ALJ did not specifically attribute any functional limitations to
Plaintiff’s sitting, standing, vision, and migraine headaches, the ALJ’s decision
reflects that she considered each in making the RFC determination. R. 33-35. First,
the ALJ’s decision shows that she determined Dr. Rudolph’s July 6, 2016
recommendation for sitting and standing limitations were not credible.17 The ALJ
17 R. 35 (citing R. 1447 (7/06/2016).
explained that she found the recommendation was not given any context and was
inconsistent with Dr. Rudolph’s objective exam and treatment results, showing full
range of motion and motor movement indicating treatment progress.18 “The ALJ is
the sole arbiter of the credibility of the witnesses.” Roger C. v. Kijakazi, No. 4:20-
CV-01807, 2021 WL 4243582, at *4 (S.D. Tex. Sept. 18, 2021) (citing Chambliss
v. Massanari, 269 F.3d 520, 523 (5th Cir. 2001)). Without medically determinable
evidence supporting the specific sitting and standing limitations that Dr. Rudolph
recommended, Plaintiff has failed to establish that not including additional
limitations for sitting and standing was error. See John David L. v. Saul, No. 4:19-
CV-02142, 2021 WL 2673198, at *6 (S.D. Tex. June 29, 2021) (citing Anthony v.
Sullivan, 954 F.2d 289, 295–96 (5th Cir. 1992)).
Second, the ALJ’s decision also shows that she considered Plaintiff’s medical
records regarding her vision, including her March 20, 2017 visit to her
ophthalmologist Dr. Al-Zubidi and her May 11, 2017 follow-up.19 The ALJ noted
that, although at the initial visit Plaintiff complained of blurred vision, watery eyes,
headaches, and swelling of the optic nerves in both eyes, Plaintiff denied loss of
vision or double vision.20 At the follow-up, Plaintiff’s vision was 20/30 and the
18 R. 35 (citing R. 1454 (7/01/2016); 1456 (7/15/2016)).
19 R. 33 (citing R. 1679-82 (3/20/2017); R. 2209-11 (5/11/2017); R. 2480 (5/11/2017)).
20 R. 33 (citing R. 1679-82 (3/20/2017)).
Amsler Grid Test and Confrontation Visual Field Test were normal in both
Plaintiff’s eyes.21 “The ALJ is not required to incorporate limitations in the RFC that
the ALJ did not find the record supported.” Garcia v. Kijakazi, No. 2:22-CV-00055,
2023 WL 2186440, at *2 (S.D. Tex. Feb. 23, 2023). Here, objective medical testing
shows Plaintiff has normal vision, and the medical records do not show any
limitations on Plaintiffs’ ability to work based on vision.22 Therefore, the ALJ was
not required to include vision limitations, and substantial evidence supports the
ALJ’s omission of a specific limitation for Plaintiff’s vision.
Third, the ALJ’s decision shows that she considered Plaintiff’s migraine
headaches. R. 33. The ALJ’s decision addresses Dr. Al-Zubidi’s treatment notes that
part of Plaintiff’s headache was related to a migraine headache, and he instructed
Plaintiff to drink water and continue on her prescription.23 The ALJ’s decision also
addresses a medical record from Plaintiff’s visit to the emergency department for a
migraine headache, showing the condition improved, she was stable at discharge,
and she was given a prescription and instructions to take ibuprofen as needed for
pain. R. 33 (citing R. 2121, 2124 (1/04/2018)). The decision further references
Dr. Lee’s notes, documenting an MRI and MRV with no signs of sinus thrombosis.
21 R. 33; R. 2209, 2211 (5/17/2017).
22 See R. 1679-82 (3/20/2017); R. 2209-11 (5/11/2017); R. 2480 (5/11/2017).
23 R. 33 (citing R. 1679 (3/20/2017)).
R. 33 (citing R. 2279 (1/09/2018)). When there is no objective medical evidence to
support a plaintiff’s contention that the ALJ should have added limitations for
migraine headaches, the ALJ’s decision is supported by substantial evidence.
Cooper v. Kijakazi, No. 4:22-CV-118, 2023 WL 2467880, at *2 (N.D. Miss. Mar.
10, 2023) (finding the ALJ’s decision omitting a specific limitation for the plaintiff’s
migraine headaches was supported by substantial evidence when there was no
objective medical evidence to support a specific limitation). Although the ALJ
discussed medical records that document her migraines,24 and Plaintiff made
subjective complaints of symptoms from migraine headaches,25 she does not show
that the record contains objective medical evidence supporting any specific
limitations for her migraine headaches. See ECF No. 23 at 29-30; ECF No. 29 at 7.
Thus, the ALJ did not err in omitting a specific limitation for the migraine headaches.
See Cooper, 2023 WL 2467880, at *2.
Moreover, in Steven C., the court found that “[a]lthough the ALJ did not
specifically attribute any functional limitations to Plaintiff's headaches,” the
24 Additionally, the record shows that on April 18, 2017 Dr. Tang noted Plaintiff had a headache
but the physician doubted it was a migraine as Plaintiff had blurry vision and double vision
intermittently. R. 2516 (4/18/2017). Further, the Court notes Plaintiff listed this record as being
from “April 2019.” See ECF No. 23 at 29. However, although the record notes “4-09-2019” at the
top, the record lists the encounter was performed and documented on April 18, 2017. Therefore,
the Court considers this record as being from April 18, 2017.
25 See, e.g., R. 128 (Plaintiff testified at the hearing that her migraine headaches last three hours
during which time she cannot concentrate or be exposed to lights and must lay down with no light
until it goes away); R. 131 (Plaintiff also testified that she lays down two to three times a day for
two hours each time).
functional limitations in the RFC took that impairment into account. Steven C., 2022
WL 4490174, at *9. Here, like Steven C., there is nothing that indicates that the
ALJ’s functional limitation of sedentary work does not account for Plaintiff’s
limitations for sitting, standing, vision, and migraine headaches. Cf. id. (RFC for
light work accounts for headaches). Accordingly, substantial evidence supports the
ALJ’s decision to omit specific limitations for sitting, standing, vision, and migraine
headaches.26
But even if the ALJ had not considered each of the limitations, although
Plaintiff suggests a generic sit/stand option and the need to avoid work requiring
good vision, Plaintiff does not identify the specific sit/stand option and the specific
limitations for her vision and migraine headaches that she believes should have been
included and that the record supports, beyond the limitation of sedentary work. See
26 Insofar as Plaintiff argues that the ALJ erred in not finding her vision impairment and migraine
headaches severe, Plaintiff cites to the severity requirement but not the durational requirement for
a “severe” finding. See ECF No. 23 at 29-30 (citing Stone v. Heckler, 752 F.2d 1099 (5th Cir.
1985)). Plaintiff has the burden of proving that her medical conditions qualify as severe. Todd C.,
2021 WL 2651166, at *4 (citing Stone, 752 F.2d at 1105). Proving severity results in a two-step
process: the durational requirement and the severity requirement. Id. For the durational
requirement, “a claimant need only show that an alleged impairment has lasted or can be expected
to last for the twelve-month period” not that the impairment was itself severe for the entirety of
the twelve months. Id. (quoting Craig v. Berryhill, No. 17-CV-1715, 2019 WL 1387696, at *5
(M.D. La., Mar. 27, 2019)). For the severity requirement, a claimant must show that the
impairment “significantly limits [the claimant's] physical or mental ability to do basic work
activities.” Id. (quoting Foster v. Astrue, No. H-08-2843, 2011 WL 5509475, *11 (S.D. Tex. Nov.
10, 2011)). Here, Plaintiff did not brief the durational requirement. See ECF No. 23 at 29-30.
Therefore, the argument is waived for inadequate briefing. See O'Brien v. Methodist Hosp., No.
4:20-CV-4084, 2022 WL 18864879, at *9 (S.D. Tex. Dec. 23, 2022), report and recommendation
adopted sub nom. Obrien v. Methodist Hosp., 2023 WL 2249985 (S.D. Tex. Feb. 24, 2023) (citing
Magee v. Life Ins. Co. of N. Am., 261 F. Supp. 2d 738, 748 n.10 (S.D. Tex. 2003).
ECF No. 23 at 28-30; ECF No. 29 at 6-7. Thus, Plaintiff has failed to carry her
burden to show that the failure to include the additional limitations caused her
prejudice. See Isaac R., 2022 WL 4751131, at *8 (citing Jones, 691 F.3d at 734-35);
see also Steven C., 2022 WL 4490174, at *9.
CONCLUSION
The Court DENIES Plaintiff's motion for summary judgment, ECF No. 23,
and GRANTS Defendant’s motion for summary judgment, ECF No. 27. The
Commissioner’s determination that the Plaintiff is not disabled is AFFIRMED.
Plaintiff's claims are DISMISSED WITH PREJUDICE.
SIGNED at Houston, Texas, on March 31, 2023.
Dena kerma
Dena Hanovice Palermo
United States Magistrate Judge
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