# Finster v. Kijakazi

> District Court, S.D. Texas · March 1, 2024

URL: https://www.frixlaw.com/law-library/cases/10677447

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** March 1, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10677447

## How later opinions describe it (automated extraction)

- noting that consent by conduct will be implied absent a party’s “express refusal to consent”

## Opinion text

IN THE UNITED STATES DISTRICT COURT March 01, 2024
FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
HOUSTON DIVISION

RENEE F.,1 §
§
Plaintiff, §
§
v. § Case No. 4:22-cv-04237
§
MARTIN O’MALLEY,2
§
Commissioner of Social Security,
§

§
Defendant.

MEMORANDUM AND ORDER
Plaintiff Renee F. (“Plaintiff”) filed this suit seeking judicial review of an
administrative decision. Pl.’s Compl., ECF No. 1. Jurisdiction is predicated upon
42 U.S.C. § 405(g).3 Plaintiff appeals from the decision of the Commissioner of the
Social Security Administration (“the Commissioner”) denying Plaintiff’s claim for
disability insurance benefits under Title II of the Social Security Act (“the Act”).
Plaintiff filed a motion for summary judgment, ECF No. 9, and the Commissioner

1 Pursuant to 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, the Court uses only Plaintiff’s first name and last
initial.
2 The Court substitutes in the name of the current Commissioner as Defendant pursuant to Federal
Rule of Civil Procedure 25(d).
3 On February 7, 2023, based on the parties’ joint consent, the case was transferred to this Court
to conduct all proceedings pursuant to 28 U.S.C. § 636(c). Order, ECF No. 5. While only the
Commissioner’s consent appears on the docket, ECF No. 4, Plaintiff has not objected to transfer.
See Roell v. Withrow, 538 U.S. 580, 590 (2003) (allowing consent to Magistrate Judge jurisdiction
to be implied by conduct); PNC Bank, Nat’l Ass’n v. Ruiz, 989 F.3d 397, 400 (5th Cir. 2021)
(noting that consent by conduct will be implied absent a party’s “express refusal to consent”).
filed a response, ECF No. 13, which the Court treats as a cross-motion for summary
judgment. Plaintiff seeks an order rendering benefits or remand for further

consideration, arguing that the Administrative Law Judge’s (“ALJ”) decision “is not
supported by substantial evidence and is the result of legal errors.” ECF No. 9 at 4,
13. The Commissioner counters that “the ALJ followed the correct legal standards,”

and substantial evidence supports the ALJ’s decision. ECF No. 13 at 10. Based on
the briefing, the record, and the applicable law, the Court finds that the ALJ properly
determined Plaintiff was not disabled during the relevant period. Plaintiff’s motion
for summary judgment is denied, and the Commissioner’s cross-motion is granted.

I. BACKGROUND
Plaintiff was 53 years old on her alleged disability onset date. R. 508.4
Plaintiff has completed two years of college, and she previously worked as a

receptionist and information aide. R. 125, 512-13. Plaintiff alleges a disability onset
date of May 1, 2017. R. 508. Plaintiff claims to suffer from degenerative disc disease,
carpal tunnel syndrome, migraines, and several other medical conditions. R. 511.
On April 2, 2019, Plaintiff filed an application for disability insurance benefits

under Title II of the Act.5 R. 437-38. Plaintiff based her application on chronic back

4 “R.” citations refer to the electronically filed Administrative Record, ECF No. 5.
5 For Plaintiff’s disability insurance benefits, the relevant period is May 1, 2017—Plaintiff’s
alleged onset date—through December 31, 2022—Plaintiff’s last insured date. R. 16, 508. The
Court will consider medical evidence outside this period to the extent it demonstrates whether
pain and nerve damage from her carpal tunnel syndrome. R. 512, 553, 577. The
Commissioner denied Plaintiff’s claim initially, R. 132-40, and on reconsideration.

R. 143-56.
Three administrative hearings were held before an ALJ where Plaintiff was
represented by an attorney. R. 36, 82, 106. Plaintiff and a vocational expert (“VE”)

testified at each hearing. R. 36-37, 82-83, 106-07. After the first two hearings in
2020 and 2021, the ALJ issued unfavorable decisions, which the Appeals Council
then vacated and remanded for further proceedings. R. 157-205. The third and final
hearing took place on March 2, 2022. R. 36-81. The ALJ issued a decision finding

that Plaintiff had the residual functional capacity (“RFC”) to perform light work with
some moderate restrictions.6 R. 19-20. The ALJ found Plaintiff not disabled and

Plaintiff was under a disability during this timeframe. See 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.
§ 404.1520(a)(4). The ALJ here determined Plaintiff was not disabled at step four. R. 25. At step
one, the ALJ found that Plaintiff did not engage in substantial gainful activity since her alleged
onset date. R. 135 (citing 20 C.F.R. §§ 404.1571 et seq.). At step two, the ALJ found that Plaintiff
has the following severe impairments: osteoarthritis, neuropathy, carpal tunnel syndrome,
degenerative disc disease, fibromyalgia, and headaches. R. 18 (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 in the
regulations that would lead to a disability finding. R. 19 (citing 20 C.F.R. §§ 404.1520(d),
404.1525, 404.1526). The ALJ then found that Plaintiff had the RFC to perform light work as
defined in 20 CFR § 404.1567(b), with some postural and environmental restrictions, including
inter alia no more than: frequent handling, fingering, feeling, or reaching; frequent exposure to
sustained concentrated amounts of dust, odors, fumes, or pulmonary irritants; and moderate noise.
R. 19-20. At step four, the ALJ determined that Plaintiff was able to perform past relevant work
as a receptionist and referral info clerk as generally performed, but not as actually performed. R. 25
(citing 20 C.F.R. § 404.1565). The ALJ thus concluded that Plaintiff was not disabled. R. 26.
denied her request for benefits. R. 25-26. The Appeals Council denied Plaintiff’s
request for review, upholding the ALJ’s decision to deny benefits. R. 1-6.

Plaintiff appealed the Commissioner’s ruling to this Court. ECF No. 1.
II. STANDARD OF REVIEW
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
as a whole and whether the proper legal standards were applied. Id.; 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.” 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 Commissioner’s decision. 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. 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. Singletary, 798 F.2d at 823. “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.” Qualls v. Astrue, 339
F. App’x 461, 464 (5th Cir. 2009) (quotation omitted).
III. APPLICABLE LAW
A. Disability Insurance Benefits Under the Act.
The Act permits the payment of insurance benefits to persons who have

contributed to the program and who suffer a physical or mental disability. 42 U.S.C.
§ 423(a)(1)(D). These payments are referred to as disability insurance benefits.
Applicants must prove “disability” to qualify for benefits. Id. § 423(d)(1)(A).

“Disability” is defined 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 12 months.” Id. A physical or mental
impairment is defined as “an impairment that results from anatomical, physiological,
or psychological abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.” Id. § 423(d)(3). “The suffering of

some impairment does not establish disability; a claimant is disabled only if he is
‘incapable of engaging in any substantial gainful activity.’” Anthony v. Sullivan, 954
F.2d 289, 293 (5th Cir. 1992) (quoting Milam v. Bowen, 782 F.2d 1284, 1286 (5th

Cir. 1987)).
B. The Shifting Burden of Proof.
The Act places the burden of establishing disability on the claimant. Perez v.
Barnhart, 415 F.3d 457, 461 (5th Cir. 2005). To be entitled to disability insurance
benefits, a claimant “must show that he was disabled on or before the last day of his
insured status.” Ware v. Schweiker, 651 F.2d 408, 411 (5th Cir. 1981).

The Commissioner applies a five-step sequential process to determine
disability status. Torres v. Colvin, No. 4:13-cv-2571, 2014 WL 4064002, at *6 (S.D.
Tex. Aug. 15, 2014). The claimant bears the burden of proof at the first four steps to

establish that a disability exists. Farr v. Astrue, No. G-10-205, 2012 WL 6020061,
at *2 (S.D. Tex. Nov. 30, 2012). The burden shifts to the Commissioner at step five
to show that the claimant can perform other work. Id. 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. Id.
IV. ANALYSIS
Plaintiff raises six alleged errors on appeal.7 ECF No. 9 at 2. In response, the

Commissioner reframes the arguments into three broad issues: (1) whether the ALJ
erred at step three, (2) whether the ALJ properly evaluated Plaintiff’s subjective
symptoms, and (3) whether substantial evidence supports the ALJ’s finding. ECF

7 Plaintiff contends the ALJ erred in: (1) failing to consider Plaintiff’s headaches, (2) failing to call
a medical expert to testify, (3) finding Plaintiff can perform past relevant work, (4) failing to
include a sustainability finding, (5) substituting the ALJ’s own opinion for that of a medical expert,
and (6) determining Plaintiff’s credibility. ECF No. 9 at 2. Plaintiff’s motion is an almost word-
for-word regurgitation of her briefing before the Appeals Council. R. 708-17. The briefing is at
least updated with citations to the administrative transcript, but several references to the “Appeals
Council” remain. See ECF No. 9 at 5, 8. Plaintiff further insists “[t]he record contains substantial
evidence to refute the ALJ’s finding” of no disability. Id. at 13. But that is not the correct standard.
The Court will not reweigh the evidence on appeal, so long as more than a scintilla of evidence
supports the Commissioner’s decision. See Brown, 192 F.3d at 496; Carey, 230 F.3d at 135.
No. 13 at 4-10. The Court appreciates the Commissioner’s attempt to organize and
clarify the issues. Nonetheless, the Court will separately address each of the alleged

errors Plaintiff raised, but only to the extent those arguments are adequately briefed.
For the reasons stated below, the Court finds no error and substantial evidence
supports the ALJ’s decision. Further, Plaintiff has inadequately briefed and therefore

waived many of her arguments.
A. The ALJ Did Not Fail to Consider Plaintiff’s Headaches, and Any
Error Was Harmless.
Plaintiff argues that the ALJ erred by not fully factoring in the impact of her
headaches into the RFC determination. Courts review an ALJ’s RFC determination
for substantial evidence. Perez, 415 F.3d at 464. But arguments may nonetheless be
waived where the party “fail[s] to adequately brief its arguments, and support them

with facts, evidence, or applicable authority.” New Cingular Wireless, LLC v. City
of Brownsville, No. 1:19-CV-91, 2019 WL 8499340, at *11 (S.D. Tex. Dec. 20,
2019); see also Vaught v. Astrue, 271 Fed. App’x 452, 454 (5th Cir. 2008) (“A party

who inadequately briefs an issue is considered to have abandoned the claim.”).
Plaintiff concedes that the ALJ acknowledged her headaches as a severe
impairment. ECF No. 9 at 4; R. 18. The ALJ then discussed and considered
Plaintiff’s sparse medical evidence of headaches. R. 20-21, 24. Although Plaintiff

never mentioned headaches at the hearing, the ALJ still limited her RFC to “frequent
exposure to . . . odors” and “moderate noise.” R. 20. Yet, Plaintiff insists the ALJ
erred by not including limitations for “light sensitivity” or “strong smells.” ECF
No. 9 at 4-5. Plaintiff cites no case law in support of this argument. The few citations

to the record—while indicating Plaintiff has previously reported headaches, R. 734,
817—do not support either proposed limitation. Plaintiff fails to identify relevant
supporting evidence, and the argument is further waived due to inadequate briefing.

But even assuming the ALJ somehow erred by failing to consider the effects
of light and smell on Plaintiff’s headaches, any error was harmless. “Harmless error
exists when it is inconceivable that a different administrative conclusion would have
been reached even if the ALJ did not err.” Keel v. Saul, 986 F.3d 551, 556 (5th Cir.

2021). “[T]he burden of showing that an error is harmful normally falls upon the
party attacking the agency’s determination.” Id. (quoting Shinseki v. Sanders, 556
U.S. 396, 409 (2009)). While Plaintiff contends the ALJ erred by not incorporating

into the RFC “testimony that her headaches are also exacerbated by light sensitivity
and certain strong smells,” ECF No. 9 at 4-5, Plaintiff offers no explanation how
such error was prejudicial. Nor does Plaintiff cite where in the record she provided
such testimony. The Court is not required to go digging through the record to find

evidence in support a party’s motion.8 Plaintiff failed to carry her burden to show
prejudice. Thus, even if the ALJ erred, any error was harmless.

8 See de la O v. Hous. Auth. of City of El Paso, 417 F.3d 495, 501 (5th Cir. 2005) (“Judges are not
like pigs, hunting for truffles buried in briefs.” (quoting United States v. Dunkel, 927 F.2d 955,
956 (7th Cir.1991))). Nevertheless, it appears Plaintiff is referring to an earlier hearing held on
B. The ALJ Was Not Required to Call a Medical Expert to Testify.
Plaintiff argues the ALJ erred at step three by failing to call a medical expert

to testify.9 Plaintiff bears the burden of proof at step three. Whitehead v. Colvin, 820
F.3d 776, 781 (5th Cir. 2016). “For a claimant to show that his impairment matches
a listing, it must meet all of the specified medical criteria.” Id. (quoting Sullivan v.

Zebley, 493 U.S. 521, 530 (1990)). While Plaintiff concedes that “an ALJ has
discretion in obtaining a medical expert’s testimony,” she nonetheless insists that
“the ALJ was required to obtain medical expert testimony” under the circumstances.
ECF No. 9 at 5-6. Plaintiff primarily relies on a case from the District of Colorado

for this argument. Id. at 6 (quoting Welch v. Colvin, No. 15-CV-00517-CMA, 2016
WL 106871, at *6 (D. Colo. Jan. 11, 2016)).
But Plaintiff’s reliance on Welch is misplaced. Plaintiff quotes Welch out of

context for the proposition that “an ALJ must obtain a medical expert’s opinion . . .

April 16, 2021. R. 82-105. But the only relevant testimony is a brief exchange regarding any
“sensitivity to sound, smells or light,” where Plaintiff cursorily stated: “Yeah, no smell, I can’t
have any kind of perfumes around me, sound unbearable, and absolutely no light.” R. 99. No
further elaboration appears in the transcript, nor did Plaintiff testify that those environmental
factors trigger headaches. Plaintiff even indicates to the contrary that her headaches are “caused
by her sinus conditions.” ECF No. 9 at 4; R. 817 (noting certain medications help “control the
headaches from sinus congestion”). Plaintiff bears the burden of proving disability, and she fails
to identify any evidence in support.
9 Plaintiff also cites authority for the propositions that an ALJ has a duty to develop the record and
“is unqualified to interpret raw medical data.” ECF No. 9 at 5-6 (citing Sims v. Apfel, 530 U.S.
103, 111 (2000); Garcia v. Berryhill, No. EP-17-CV-00263-ATB, 2018 WL 1513688, at *3 (W.D.
Tex. Mar. 27, 2018)). But Plaintiff does not actually argue the ALJ erred in either respect. Because
Plaintiff has inadequately briefed those issues by failing to provide any legal analysis, such
arguments are waived. See Vaught, 271 Fed. App’x at 454.
when the ALJ is considering a finding that the claimant’s impairment(s) medically
equals a medical listing.” 2016 WL 106871 at *6 (cleaned up). But as Welch

continues, an ALJ may make the determination whether impairments meet or
medically equal a listing “with or without the opinion of a medical expert.” Id. (citing
HALLEX § I-2-5-34).10 The district court thus rejected the argument that an ALJ

must “obtain the opinion of a medical expert during all hearings at step three of the
sequential analysis” as “clearly not contemplated by the governing regulations.” Id.
(citing 20 C.F.R. § 404.1527(e)(2)(iii)). Instead, if “the ALJ did not consider a
finding that Plaintiff’s impairments met or medically equaled a medical listing,” then

“the ALJ was not required to obtain the opinion of a medical expert.” Id.
That is precisely the situation here, the ALJ found no medical equivalency at
step three. R. 19. Plaintiff concedes that she never alleged that she met or medically

equaled any medical listing. ECF No. 9 at 5. Assuming Welch was controlling law,
that case squarely rejects Plaintiff’s argument. Because the ALJ was under no
obligation to call a medical expert to testify, the ALJ committed no error. Moreover,

10 HALLEX is the acronym for the Social Security Administration’s Hearings, Appeals and
Litigation Law Manual. See Morgan v. Colvin, 803 F.3d 773, 777 (5th Cir. 2015). The Fifth Circuit
has held that violation of a HALLEX policy is only reversible error if it results in prejudice. Id.
But even if the ALJ violated HALLEX, Plaintiff does not argue she was prejudiced, so any error
is harmless. See Keel, 986 F.3d at 556. In this context, HALLEX § I-2-5-34(A) clarifies that an
ALJ cannot “consider finding that the claimant’s impairment(s) medically equals a listing” without
a medical expert opinion, but an ALJ has discretion whether to obtain a medical expert opinion
when determining “whether a claimant’s impairment(s) meets a listed impairment(s).” Only a
positive finding requires a medical expert.
Plaintiff never clarifies which medical listing her impairments allegedly met or
medically equaled, so any error is harmless. See Keel, 986 F.3d at 556. Plaintiff has

not met her burden to show error at step three.
C. The ALJ Considered Plaintiff’s Ergonomic Accommodations.
Plaintiff argues that the ALJ failed to fully consider the fact that she required

ergonomic accommodations in her past relevant work. At step four, the ALJ may
consider ability to perform past relevant work as actually performed or as “generally
performed in the national economy.” Bailey v. Saul, 853 Fed. App’x 934, 938 (5th
Cir. 2021). Plaintiff also bears the burden of proof at step four. See Salmond v.

Berryhill, 892 F.3d 812, 817 (5th Cir. 2018). Plaintiff argues that she needed “a fully
ergonomic workstation” to perform her prior receptionist work. ECF No. 9 at 6-7. A
medical note from her doctor support these restrictions, and Plaintiff was temporarily

placed on light duty to alleviate her back pain in June of 2015. R. 1267-68. Plaintiff
concedes the cited evidence “pre-date[s] the relevant time period,” but she insists
that it is “indicative” of her issues. ECF No. 9 at 7. Plaintiff thus contends she is “no
longer capable of sustained competitive work,” because she can perform past

relevant work “only as generally performed, with accommodations.” Id.
But Plaintiff again cites no authority and supplies no legal analysis in support
of her assertions of error.11 Plaintiff’s argument that the ALJ “completely ignores or

11 Plaintiff only cites in passing SSR 83-10 for the proposition that Plaintiff “would be unable to
dismisses outright” the ergonomic accommodations, ECF No. 9 at 6, is also
incorrect. Quite to the contrary, the ALJ discussed the 2015 ergonomic

accommodations and work restrictions. R. 23-24. But the ALJ found that evidence
unpersuasive because “it was rendered prior to the alleged onset date in 2017 . . . for
work accommodation purposes, not Social Security disability purposes.” R. 24.

Nonetheless, the ALJ took that evidence into account at step four, noting that
Plaintiff “needed accommodations in her past work to include an ergonomic chair.”
R. 25. The ALJ thus found Plaintiff “can only perform work as generally performed,
not as actually performed.” R. 25. Plaintiff apparently does not dispute this

conclusion.12 The ALJ fully accounted for Plaintiff’s past accommodations at step

sustain the alertness and attention needed” to keep up with pace and maintain concentration. ECF
No. 9 at 7. The referenced policy statement does note that “[s]emiskilled jobs may require alertness
and close attention to watching machine processes.” SSR 83-10, 1983 WL 31251, at *7 (1983).
But Plaintiff does not argue that her prior work was semiskilled or involved “watching machine
processes,” nor does the record indicate that she ever operated heavy machinery. Because Plaintiff
offers no explanation or analysis, these arguments are waived. See Vaught, 271 Fed. App’x at 454.
12 Nor does the mere fact that Plaintiff required accommodations for her past work automatically
preclude a finding of non-disability at step four. See Hernandez v. Kijakazi, No. SA-22-CV-01013-
ESC, 2023 WL 6294192, at *4 (W.D. Tex. Sept. 27, 2023) (“That Plaintiff performed her previous
position with accommodations, such as a desk with a sit-stand option, does not preclude that work
from being considered past relevant work for purposes of evaluating disability and may
demonstrate the necessary skills and ability to work at the substantial gainful activity level.”).
While the ALJ should also consider any relevant evidence before the alleged date of disability, see
Williams, 575 Fed. App’x at 354, Plaintiff must still prove disability during the relevant period.
Indeed, at the hearing, when asked by her attorney why she would be unable to perform sedentary
work, Plaintiff complained about her “eyesight,” being “always in pain,” and not having “good
gait,” which made her simply “not a reliable person.” R. 121-22. Plaintiff continued that she was
unable to “pay for support to get better,” and as a result she believed “there is nobody that is willing
to hire me.” R. 122. But Plaintiff never testified she could not perform sedentary work without her
previous accommodations. As for Plaintiff’s subjective claims of ongoing back pain and inability
to sit for long periods while driving, R. 114-15, the ALJ found her testimony not wholly credible,
as discussed further below.
four, and Plaintiff has not shown any error.
D. The ALJ Was Not Required to Include a Sustainability Finding.

Plaintiff argues that the ALJ erred by not considering whether she could
perform light work on a sustained basis. ECF No. 9 at 8-9. Plaintiff relies on Watson
v. Barnhart, which noted that “[a] finding that a claimant is able to engage in

substantial gainful activity requires more than a simple determination that the
claimant can find employment and that he can physically perform certain jobs; it
also requires a determination that the claimant can hold whatever job he finds for a
significant period of time.” 288 F.3d 212, 217 (5th Cir. 2002) (quotation omitted).

But the Fifth Circuit has since clarified that “Watson requires a situation in which,
by its nature, the claimant’s physical ailment waxes and wanes in its manifestation
of disabling symptoms.” Perez, 415 F.3d at 465 (quotation omitted). “Without such

a showing, the claimant’s ability to maintain employment is subsumed in the RFC
determination.” Id.; accord Castillo v. Barnhart, 151 Fed. App’x 334, 335 (5th Cir.
2005) (“We have specifically rejected the contention that, under Watson, the ALJ
must in every decision articulate a separate and explicit finding that a claimant can

maintain a job on a sustained basis.”).
Plaintiff asserts error under Watson as the ALJ did not separately consider
whether she “would be capable of holding down gainful activity for a significant

time.” ECF No. 9 at 9. Plaintiff insists that she “must spend too much time off task,
a 10-minute break every 15 minutes (40% time off task) and must regularly miss
work for several days at a time due to severe headaches.” Id. (citing R. 605, 734-36,

1267). But the Commissioner responds that “Plaintiff has not offered evidence to
support her contention that she would be unable to maintain a job for any meaningful
period of time” as required under Watson. ECF No. 13 at 7.

Plaintiff’s argument is unpersuasive for three reasons. First, she never testified
that her condition “waxes and wanes,” so Plaintiff has not established the factual
predicate for Watson. Instead, Plaintiff testified that every day was one of “those bad
days where [she] can’t get out of bed.” R. 122. At the hearing, Plaintiff stated she

“literally” was no longer able to type. R. 122-23. Plaintiff’s representative thus asked
the VE to restrict the ALJ’s hypothetical to “occasional” handling and fingering.
R. 129. But aside from the ergonomic workstation, Plaintiff posed no other questions

to the VE at any point. R. 78, 104, 130. In other words, even Plaintiff’s preferred
hypothetical if accepted by the ALJ contained no waxing and waning conditions and
her ability to work is subsumed in the RFC determination. Perez, 415 F.3d at 465.
Second, the evidence Plaintiff cites does not support the proposed restrictions.

While Plaintiff has apparently complained of headaches to medical providers,
R. 734, nowhere does that evidence indicate her headaches would preclude work for
days at a time. As for needing breaks from sitting every 15 minutes, the record does

indicate such temporary restrictions were put in place on April 13, 2015, until her
ergonomic workstation arrived. R. 1267. But Plaintiff cites nothing indicating those
restrictions were tied to her headaches. Nor does she cite any medical opinion or

evidence that her alleged back pain precluded her from working continuously during
the relevant period, as opposed to just sitting for long periods of time.13
Third, Plaintiff’s argument misstates the standard for disability. Plaintiff does

not contest that she can perform light work comparable to her prior relevant work.
Instead, Plaintiff argues that she “would be forced into performing the required
duties regularly (8 hours per day, 5 days a week) which would undoubtedly
exacerbate her symptoms.” ECF No. 9 at 9. But simply because further work may

eventually render Plaintiff disabled in the future does not mean that she was disabled
during the relevant period. See Cauthen v. Saul, 827 Fed. App’x 444, 446 (5th Cir.
2020) (noting that claimant “must show that she meets the statutory definition of

disability while her [social security benefits] application was pending,” and therefore
“disability evidence completely unrelated to the relevant period is irrelevant to
adjudication of the claim”). Plaintiff cites no authority for such a broad mandate.
Regardless, because Plaintiff never established the necessary factual predicate under

Watson, the ALJ did not err by failing to include a separate sustainability finding.

13 The ALJ ultimately did not include any sitting restrictions in the RFC. R. 19-20. But Plaintiff
apparently does not challenge this omission, instead arguing that “[e]ven if the Appeals Council
[sic] partially agrees with the ALJ’s ultimate conclusions,” the ALJ violated Watson. ECF No. 9
at 8. Plaintiff has therefore waived any argument she may have had that the RFC is unsupported
by substantial evidence due to inadequate briefing. See Vaught, 271 Fed. App’x at 454.
E. The ALJ Did Not Reject All Medical Opinions.
Plaintiff argues the ALJ erred “by rejecting all medical opinions” in the record

and “failing to cite to a relevant medical opinion” pertaining to Plaintiff’s “upper
extremity limitations.” ECF No. 9 at 9-10. Although Plaintiff clearly disagrees with
the ALJ’s conclusion, the Fifth Circuit has explained that this is precisely what an

ALJ is supposed to do: “What [Plaintiff] characterizes as the ALJ substituting his
opinion is actually the ALJ properly interpreting the medical evidence to determine
[her] capacity for work.” Taylor v. Astrue, 706 F.3d 600, 603 (5th Cir. 2012). Indeed,
using medical records to determine the RFC “is the sole responsibility of the ALJ.”

Id. at 602-03. The ALJ’s responsibility is not to merely “adopt a specific physician’s
assessment,” but instead “to interpret the medical evidence to determine a claimant’s
capacity for work.” Miller v. Kijakazi, No. 22-60541, 2023 WL 234773, at *4 (5th

Cir. Jan. 18, 2023) (cleaned up).
But even assuming Plaintiff correctly states the law, the ALJ did not reject
every medical opinion in the record. Instead, the ALJ found the state agency medical
consultants’ opinions “somewhat persuasive.” R. 24. The reconsideration opinion

found Plaintiff capable of light work with only mild manipulative limitations, such
as “frequent fingering.” R. 24, 152. The ALJ explicitly adopted those limitations “as
stated by the [medical consultant] on reconsideration” and included them in the RFC.

R. 24. The ALJ then extended those restrictions to include frequent handling, feeling,
and reaching, based on Plaintiff’s subjective complaints of pain. Id. Because the ALJ
did not reject but rather adopted the relevant parts of the medical opinions in the

record, the Court sees no error.
The ALJ also discussed Plaintiff’s hand surgery in late 2019, noting “that she
was happy with the results,” and post-treatment exams were “markedly better than

earlier exams and showed that she had well-healed incisions with normal flexion and
extension as well as abduction and adduction of all fingers.” R. 22-23, 1349-58. But
the ALJ noted Plaintiff “did not establish with any provider until one year after the
surgery,” and her post-surgery treatment records were “sporadic and limited . . . with

exams that were largely unremarkable.” R. 23. Aside from Plaintiff’s testimony,
nothing in the record shows greater manipulative limitations. Furthermore, Plaintiff
cites no medical evidence in support of her arguments. ECF No. 9 at 9-11.

Plaintiff additionally argues that the ALJ improperly rejected the opinion of
June Milligan, which a prior ALJ decision found to be persuasive. ECF No. 9 at 10-
11. Plaintiff insists the ALJ’s dismissal of “the findings of prior ALJ decisions as
well as the opinion of medical professionals” thus “violates the holding of Burgess

v. Astrue.” Id. at 11. But there are three problems with Plaintiff’s argument. First,
Burgess v. Astrue, 537 F.3d 117 (2d Cir. 2008), is a Second Circuit opinion and is
not binding authority here. Second, the purported “quote” from Burgess that Plaintiff

supplies, ECF No. 9 at 11, is little more than a Westlaw headnote, see Burgess, 537
F.3d at 130, and therefore no authority at all. Third, the source cited in Burgess for
the proposition that an ALJ must “always give good reasons” for the weight afforded

to a “treating source’s medical opinion” is 20 C.F.R. § 404.1527(c)(2), which only
applies to claims filed before March 27, 2017. Because Plaintiff filed her application
for benefits on April 2, 2019, R. 437-38, that authority is inapposite here.

Instead, under the applicable regulations, the ALJ need only “articulate how
we considered the medical opinions and prior administrative medical findings in
[Plaintiff’s] claim.” 20 C.F.R. § 404.1520c(a). An “ALJ cannot reject a medical
opinion without an explanation.” Kneeland v. Berryhill, 850 F.3d 749, 760 (5th Cir.

2017) (quotation omitted). But neither Milligan’s opinion nor the prior ALJ
decisions fall under this articulation requirement. See 20 C.F.R. § 404.1520b(c)
(noting that no explanation is necessary for evidence that is “neither valuable nor
persuasive”). Milligan is a CSHM, or certified safety and health manager,14 who

provided an ergonomics evaluation for Plaintiff in November of 2014. R. 1243-44.
Milligan is therefore not a medical source and offers no medical opinions. See 20
C.F.R. § 404.1502(d) (defining “medical source” as a licensed “healthcare worker”);

id. § 404.1513(a)(2) (defining “medical opinion” as “a statement from a medical
source”). In addition, the term “prior administrative medical findings” does not refer

14 See CSHM, INST. HAZARDOUS MATERIALS MGMT., https://ihmm.org/cshm/ (last visited Mar. 1,
2024) (explaining eligibility requirements for certification).
to earlier ALJ decisions in the same case,15 but to “medical findings made by a State
agency medical or psychological consultant at the initial level of the administrative

review process.” Id. § 404.1513a(a)(3). The ALJ therefore committed no error by
rejecting Milligan’s opinion and prior ALJ decisions, or by failing to articulate why.
F. The ALJ’s Credibility Finding on Plaintiff’s Subjective Symptoms
Is Supported by Substantial Evidence.
Finally, Plaintiff argues that the ALJ improperly rejected her testimony about
certain subjective symptoms. “The ALJ must consider the subjective evidence of

pain, but it is within his discretion to determine the pain’s disabling nature.”
Henderson v. Colvin, 520 Fed. App’x 268, 275 (5th Cir. 2013) (quotation omitted).
“While an ALJ’s assessment of a claimant’s credibility is accorded great deference,”
it must be supported by “substantial evidence.” Newton v. Apfel, 209 F.3d 448, 459

(5th Cir. 2000); see also Joseph-Jack v. Barnhart, 80 Fed. App’x 317, 318 (5th Cir.
2003) (upholding ALJ’s credibility findings when “linked to substantial evidence”).
Thus, an ALJ “cannot simply make conclusory statements regarding credibility,”

although this burden may be satisfied “by discussing the medical record and

15 The Appeals Council vacated both prior ALJ decisions. R. 177-78, 202-03; see also 20 C.F.R.
§ 404.901 (defining “vacate” as “to set aside a previous action”). An ALJ’s decision that has been
vacated has no preclusive effect on future decisions. See Mendez v. Saul, No. 7:19-CV-291, 2021
WL 1217376, at *2 n.2 (S.D. Tex. Jan. 6, 2021), adopted, No. CV M-19-291, 2021 WL 1215842
(S.D. Tex. Mar. 31, 2021) (citing Muse v. Sullivan, 925 F.2d 785, 790 (5th Cir. 1991)).
Furthermore, Plaintiff does not explain how the ALJ’s failure to articulate how those decisions
were considered was prejudicial. Moreover, despite finding Milligan’s “opinion” to be
“persuasive,” the 2021 decision also concluded that Plaintiff could perform past work and
therefore was not disabled. R. 191-92. Plaintiff’s reliance on prior decisions is puzzling.
opinions.” Giles v. Astrue, 433 Fed. App’x 241, 249 (5th Cir. 2011).
The ALJ here found that, “[d]espite alleging an inability to use her hands to

perform clerical work activities,” Plaintiff’s “ability to perform most day-to-day
activities . . . support no more than frequent manipulative limitations.” R. 24-25. The
ALJ also relied on activities such as Plaintiff “writing emails to her providers” and

“a 5-page letter in support of her disability,” returning to college to “finish[] her
Associate’s degree,” and “a fair amount of traveling/relocating” since her alleged
onset date. R. 24. Plaintiff counters that her “moving from state to state because of
her husband’s military service” is not evidence of non-disability. ECF No. 9 at 12.

Plaintiff elsewhere contends that it took her several days to write the letter in short
increments. Id. at 10; R. 51-52. Plaintiff thus insists that the ALJ erred in discrediting
Plaintiff’s testimony regarding her disabling symptoms. ECF No. 9 at 12-13.

Even if the Court agrees that Plaintiff’s moving and letter-writing do not
support the ALJ’s credibility decision,16 Plaintiff does not dispute that her return to

16 Plaintiff relies on a Seventh Circuit opinion for the proposition that boilerplate credibility
findings are “meaningless.” ECF No. 9 at 12 (quoting Murphy v. Colvin, 759 F.3d 811, 816 (7th
Cir. 2014), as amended (Aug. 20, 2014)). Even if that case was binding or persuasive authority,
Murphy noted that the use of “boilerplate language does not automatically undermine or discredit
the ALJ’s ultimate conclusion” where that decision is supported by “sufficient reasons, grounded
in evidence in the record.” Id. (quotation omitted). Plaintiff also compares the ALJ’s reliance on
her moving between states to the overturned credibility determination in Murphy. ECF No. 9 at
12-13. There, the ALJ noted several vacations after the claimant’s stroke as suggestive of less-
than-disabling symptoms. Murphy, 759 F.3d at 817. This was error, as a relaxing vacation in
Mexico, consisting of “sunning herself on the beach while listening to smooth jazz,” was hardly a
“strenuous activity” and not obviously “inconsistent with her symptoms.” Id. But this comparison
is unavailing, as moving typically requires packing, loading, and unloading boxes, as well as sitting
for long periods of time while driving between locations. These are all activities Plaintiff alleges
college contradicts her earlier allegations. It is apparent from the ALJ’s decision that
this factual discrepancy weighed heavily against Plaintiff’s credibility:

In her disability report, the claimant stated that she had stopped working
in May 2017 due to constant pain and since her family was about to
move to a new duty station, she wanted to take a break from work so
that her body could recover, but the recovery did not happen. Although
the claimant has a documented history of pain complaints and requests
for work accommodations, an April 2017 exit interview form for
Kenner Army Health Clinic contrarily showed that her main reason for
leaving work and requesting leave without pay (LWOP) was to
continue college uninterrupted and to complete her Associate’s degree
in criminal law. As was her role as a service member’s spouse, she had
to relocate from Virginia to Texas; however, she also stated that both
she and her daughter were enrolled at Texas University starting the fall
of 2017 to complete their Associate’s degrees and that she wanted
LWOP for up to 365 days to complete her degree and go to school as a
full-time student.
R. 21 (citations omitted). Plaintiff testified that she had completed “two years of
criminal justice,” and she only needed to finish her prerequisites, despite not being
able to sit or type. R. 110-11, 121-23. Plaintiff fails to explain this contradiction.
Nor was this the sole discrepancy. After Plaintiff’s hand surgery in 2019, she
“reported that she was happy with the results” and “most symptoms in the right
hand” were resolved. R. 22, 1358. While at the hearing, Plaintiff testified that she
“literally can’t” type anymore, although her medications also alleviate any pain.
R. 122-23. The ALJ further noted that, “[c]ontrary to allegations of disabling

she is unable to do. At the same time, it is equally possible that Plaintiff hired a moving company
or relied on family and expended relatively little effort during her moves from Virginia to Florida
and then to Texas. Were this the only contradictory evidence in the record, the Court might have
agreed with Plaintiff, assuming she could locate binding Fifth Circuit precedent in support.
physical impairments,” Plaintiff’ s “medical file was sparse with sporadic treatment.”
R. 21. Plaintiff does not challenge that description, and she even conceded at the
hearing that she had not received “any kind of significant care in the past two and a
half years.” R. 117. In fact, Plaintiff's records indicate that she never sought follow-

up care due to a lack of insurance, and despite one attempt to obtain insurance, she
“never returned” to submit the necessary documents. R. 23, 2007.
Because the ALJ fully discussed the record and noted multiple discrepancies
within Plaintiff's testimony—which she does not dispute or attempt to explain—the
Court finds that substantial evidence supports the ALJ’s credibility findings.
Because Plaintiff's alleged disability is primarily based on her unsubstantiated
testimony of disabling pain, the ALJ’s credibility determination is fatal to her claims.
Vv. CONCLUSION
It is therefore ORDERED that Plaintiff's motion for summary judgment, ECF
No. 9, is DENIED, and the Commissioner’s cross-motion for summary judgment,
ECF No. 13, is GRANTED. The decision of the Commissioner is AFFIRMED, and
this case is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
Signed at Houston, Texas, on March 1, 2024.
Dena Lean
Dena Hanovice Palermo
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10677447. Public record. Not legal advice.