Ojeda v. Commissioner, Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JUSTIN M., §

§

Plaintiff, §

§

v. § Case No. 3:24-cv-02646-E-BT

§

COMMISSIONER OF SOCIAL §

SECURITY, §

§

Defendant. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Before the Court is Plaintiff Justin M.’s1 civil action seeking judicial review

pursuant to 42 U.S.C. § 405(g) of a final adverse decision by the Commissioner of

Social Security. Compl., ECF No. 1. For the reasons explained below, the Magistrate

Judge recommends that the Court AFFIRM the Commissioner’s decision.2

1 The Court uses only Plaintiff’s first name and last initial as instructed by the

May 1, 2018, Memorandum Re: Privacy Concern Regarding Social Security and

Immigration Opinions issued by the Committee on Court Administration and Case

Management of the Judicial Conference of the United States.

2 This case was automatically referred to the undersigned with a designation to

exercise the district court’s full jurisdiction and conduct all proceedings in this case

upon the consent of the parties. See Special Order No. 3-350. Plaintiff did not

consent to the undersigned exercising the court’s full jurisdiction over this case.

See ECF No. 6. Accordingly, this case was reassigned to a United States District

Judge for the Northern District of Texas and referred to the undersigned per

Special Order 3 for findings of fact, conclusions of law, and a recommendation for

the disposition of the case.

Background

Plaintiff alleges that he is disabled due to ulcerative colitis, autism spectrum

disorder, and anxiety. Admin. R. 256 (ECF No. 13-1).3 Plaintiff was born on August

5, 2001, and has a high school education. Admin. R. 30, 227, 234, 257. He has no

past relevant work experience. Admin. R. 30.

Plaintiff filed concurrent applications for Title II Child Disability Benefits

and Title XVI Supplemental Security Income (SSI) on December 10, 2021, alleging

a disability onset date of August 5, 2001. Admin. R. 227, 234. The claims were

denied initially and upon reconsideration. Admin. R. 106, 116, 127, 135. Plaintiff

requested a hearing before an Administrative Law Judge (ALJ), who conducted a

telephonic administrative hearing on May 2, 2024. Admin. R. 37.

The ALJ found Plaintiff was not disabled and thus not entitled to benefits.

Admin. R. 31. Utilizing the five-step sequential evaluation,4 the ALJ first found that

3 Citations to the record refer to the CM/ECF page numbers at the top of each page

rather than page numbers at the bottom of each filing.

4 “In evaluating a disability claim, the [ALJ] conducts a five-step sequential

analysis to determine whether (1) the [plaintiff] is presently working; (2) the

[plaintiff] has a severe impairment; (3) the impairment meets or equals an

impairment listed in appendix 1 of the social security regulations; (4) the

impairment prevents the [plaintiff] from doing past relevant work; and (5) the

impairment prevents the [plaintiff] from doing any other substantial gainful

activity.” Audler v. Astrue, 501 F.3d 446, 447-48 (5th Cir. 2007). The plaintiff

bears the initial burden of establishing a disability through the first four steps of

the analysis; at the fifth step, the burden shifts to the ALJ to show that there is

other substantial work in the national economy that the plaintiff can perform. Id.

at 448; Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014) (citations omitted).

A finding that the plaintiff is disabled or not disabled at any point in the five-step

review is conclusive and terminates the analysis. Copeland, 771 F.3d at 923 (citing

Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995)); Lovelace v. Bowen, 813 F.2d

Plaintiff had engaged in substantial gainful activity from September 2023 to the

date of his decision. Admin. R. 22-23. But the ALJ continued with the sequential

evaluation because he determined that Plaintiff did not engage in substantial

gainful activity prior to September 25, 2023. Admin. R. 22-23. The ALJ stated that

his remaining findings “address[ed] the period the claimant did not engage in

substantial gainful activity.” Admin. R. 23. At the second step, the ALJ noted that

Plaintiff experienced severe impairments of “ulcerative colitis, autism spectrum

disorder, an anxiety disorder, a depressive disorder, and an attention deficit

hyperactivity disorder.” Admin. R. 23. At the third step, the ALJ determined that

Plaintiff’s severe impairments did not meet or medically equal any listed

impairment in appendix 1 of the social security regulations. Admin. R. 25.

Next, the ALJ conducted a residual functional capacity (RFC) assessment.

He found that Plaintiff has the RFC “to perform medium work . . . except that he

can only have occasional interactions with the general public that is superficial and

incidental to the work performed (e.g. no customer service).” Admin. R. 26-27.

Finally, relying on the testimony of a vocational expert, the ALJ determined

that Plaintiff had the ability to perform the jobs of hand packager, warehouse

worker, and laundry worker, and that such jobs existed in significant numbers in

the national economy. Admin. R. 30. Therefore, the ALJ found that Plaintiff was

55, 58 (5th Cir. 1987) (citing Barajas v. Heckler, 738 F.2d 641, 643 (5th Cir. 1984)

(per curiam)).

not disabled under the Social Security Act and not entitled to Child Disability

Benefits or SSI. Admin. R. 31.

Plaintiff appealed the ALJ’s decision to the Appeals Council. Admin. R. 222-

223. The Appeals Council found that the appeal did not provide a basis for

modifying the ALJ’s decision. Admin. R. 6-9. Plaintiff then filed this action in

federal district court.

Legal Standard

The Court’s “review of Social Security disability cases ‘is limited to two

inquiries: (1) whether the decision is supported by substantial evidence on the

record as a whole, and (2) whether the [ALJ] applied the proper legal standard.’”

Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014) (quoting Perez v. Barnhart,

415 F.3d 457, 461 (5th Cir. 2005)). Substantial evidence is “more than a mere

scintilla. It means such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401

(1971); see Copeland, 771 F.3d at 923 (“Substantial evidence is more than a mere

scintilla and less than a preponderance.”).

The ALJ, and not the courts, resolves conflicts in the evidence; the Court

may not “reweigh the evidence or try the issues de novo.” Martinez v. Chater, 64

F.3d 172, 174 (5th Cir. 1995) (per curiam). Hence, the Court may not substitute its

own judgment for the ALJ’s, and it may affirm only on the grounds that the

Commissioner stated to support her decision. Copeland, 771 F.3d at 923. If the

Commissioner’s findings are supported by substantial evidence, the findings are

conclusive, and the Commissioner’s decision must be affirmed. Martinez, 64 F.3d

at 173. A reviewing court must defer to the ALJ’s decision when substantial

evidence supports it, even if the court would reach a different conclusion based on

the evidence in the record. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).

Nevertheless, the substantial evidence review is not an uncritical “rubber

stamp” and requires “more than a search for evidence supporting the [ALJ’s]

findings.” Hill v. Saul, 2020 WL 6370168, at *6 (N.D. Tex. Sept. 29, 2020) (quoting

Martin v. Heckler, 748 F.2d 1027, 1031 (5th Cir. 1984)), adopted by 2020 WL

6363878 (N.D. Tex. Oct. 29, 2020) (Lindsay, J.). The Court “must scrutinize the

record and take into account whatever fairly detracts from the substantiality of the

evidence supporting” the ALJ’s decision. Id. (quoting Martin, 748 F.2d at 1031). A

no-substantial-evidence finding is appropriate only if there is a “conspicuous

absence of credible choices” or “no contrary medical evidence.” Id. (citation

omitted).

Analysis

On appeal, Plaintiff raises two arguments. First, he contends that the ALJ’s

RFC assessment is not supported by substantial evidence because, although he

found Plaintiff’s ulcerative colitis to be a severe impairment, he failed to account

for limitations from Plaintiff’s ulcerative colitis in his RFC assessment. Pl.’s Br. 11-

13, ECF No. 17-2. Second, he contends that the ALJ erred in failing to evaluate

whether he was disabled for a closed period lasting at least 12 months following his

alleged onset date because the ALJ improperly relied on his functioning during the

period after he returned to work. Id. at 14-16. For the reasons set forth below, the

Court finds Plaintiff’s arguments lack merit, and the ALJ’s decision should

therefore be affirmed.

1. The ALJ’s RFC assessment is supported by substantial evidence.

The Court first addresses Plaintiff’s argument that the ALJ assessed his

ulcerative colitis as severe at step two and then committed error by not assigning

a limitation for this condition in the RFC. See Pl.’s Br. 11-13. Plaintiff notes that

the only limitations in the RFC are that Plaintiff is restricted to “medium-level

work (i.e., lifting 50 pounds occasionally and 25 pounds frequently) and that he

must have limited contact with the general public.” Id. at 2. Plaintiff contends that

“[n]either of these limitations, on their face, is rationally related to the Plaintiff’s

ulcerative colitis and the symptoms resulting from that condition.” Id. He also

maintains that “the ALJ did not provide any suitable explanation in the RFC

narrative to explain how the assessed limitations would account for Plaintiff’s

gastrointestinal disorder.” Id.

The Commissioner responds this was not error, as the consideration at step

two of whether a condition is severe is different than the RFC inquiry. Def.’s Resp.

Br. 7, ECF No. 22. The Commissioner contends that “Plaintiff’s argument ignores

the ALJ’s discussion of that impairment in his RFC analysis in which the ALJ

explained that although Plaintiff was diagnosed with ulcerative colitis in January

2020, that impairment quickly improved with treatment (Tr. 23).” Id. at 4.

According to the Commissioner, “the ALJ thoroughly considered Plaintiff’s

medical records, including explaining that Plaintiff’s medication successfully

controlled his ulcerative colitis, and those records provide substantial evidence

supporting the ALJ’s RFC assessment.” Id. at 1. The Commissioner asserts that

“[t]he ALJ further supported his assessment of Plaintiff’s ulcerative colitis when

he discussed, and found persuasive, the prior administrative medical findings of

Patty Rowley, M.D., and Gary Smith, M.D.,” both of whom found ulcerative colitis

was a severe impairment, but concluded that Plaintiff could still perform medium

work, despite the ulcerative colitis. Id. at 6.

“Determining a [plaintiff’s RFC] is the ALJ’s responsibility, and [the ALJ]

has the authority and duty to weigh the evidence and reach any conclusion

supported by substantial evidence.” Gonzales v. Astrue, 231 F. App’x 322, 324 (5th

Cir. 2007) (per curiam). Under the current regulations, ALJs do “not defer or give

any specific evidentiary weight, including controlling weight, to any medical

opinion(s) or prior administrative medical finding(s).” 20 C.F.R. § 404.1520c(a);

accord Winston v. Berryhill, 755 F. Appx 395, 402 n.4 (5th Cir. 2018) (citation

omitted). A reviewing court must defer to the ALJ’s decision when substantial

evidence supports it, even if the court would reach a different conclusion based on

the evidence in the record. Leggett, 67 F.3d at 564.

The purpose of assessing a claimant’s RFC is to determine the work that can

be done despite present limitations. See Myers v. Apfel, 238 F.3d 617, 620 (5th Cir.

2001) (per curiam); 20 C.F.R. § 404.1545(a)(1). The RFC determination is a

“combined medical assessment of an applicant’s impairments with descriptions by

physicians, the applicant, or others of any limitations on the applicant’s ability to

work.” Hill, 2020 WL 6370168, at *6 (cleaned up) (quoting Hollis v. Bowen, 837

F. 2d 1378, 1386-87 (5th Cir. 1988) (per curiam)). It “is 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.” Social Security Ruling (SSR) 96-

8p, 1996 WL 374184, at *1 (S.S.A. July 2, 1996). An individual’s RFC should be

based on all of the relevant evidence in the case record, including opinions

submitted by treating physicians or other acceptable medical sources. 20 C.F.R. at

§ 404.1545(a)(3) (2012); SSR 96-8p, 1996 WL 374184, at *1.

On the one hand, courts have found that when impairments are identified as

severe at step two, but an RFC does not include any limitations for those

impairments, the RFC in effect contradicts the step two finding. See, e.g., Spears

v. Barnhart, 284 F. Supp. 2d 477, 483 (S.D. Tex. 2002) (noting that by failing to

include any limitations, the ALJ “basically contradict[ed] the fact that he found

[the claimant’s] impairments to be severe”); Norman v. Astrue, 2011 WL 2884894,

at *6 (W.D. Tex. July 18, 2011) (“Similar to Spears, here the ALJ did not include

any limitations resulting from the [impairment], contradicting his own finding that

the [impairment] was ‘severe.’”). Some federal court in Texas have held that such

an inconsistency warrants remand. See, e.g., Spears, 284 F. Supp. 2d at 483-84

(finding the ALJ’s failure to address the claimant’s limitations related to her severe

impairment was error that warranted remand); Norman, 2011 WL 2884894, at *6

(finding remand was warranted where the ALJ found the claimant’s limitation was

severe at step two, but failed to include any limitation resulting from the

impairment in his RFC analysis); Martinez v. Astrue, 2011 WL 4128837, at *5-7

(N.D. Tex. Sept. 15, 2011), adopted by 2011 WL 4336701 (N.D. Tex. Sept. 15, 2011)

(same).

In Martinez, for instance, the ALJ failed to include limitations from the

plaintiff’s hand surgery in the RFC despite finding that the hand surgery was a

severe impairment. 2011 WL 4128837, at *5-6. The court remanded the case

because it was unable to determine whether the ALJ intended the hand surgery to

be a severe impairment, and if so, whether the RFC should have included certain

limitations relating to it. Id. at *7. The court explained that if the RFC should have

included those limitations, then the ALJ was required to seek additional testimony

from the VE as to whether the plaintiff could still perform the jobs identified by the

VE. Id.

On the other hand, “several Texas federal courts have found that an ALJ does

not err solely by finding an impairment severe at step two and failing to attribute

any limitation to that impairment in his RFC assessment.” Walker v. Colvin, 2015

WL 5836263, at *15 (N.D. Tex. Sept. 30, 2015) (Ramirez, J.) (collecting cases and

discussing the split in authority among Texas federal courts on this issue). The

Fifth Circuit has held “[t]he ALJ’s finding that [the plaintiff] had ‘a combination of

impairments that is severe’ did not foreclose a finding that [the plaintiff] had a

residual functional capacity to perform a range of light work[] and is not

necessarily inconsistent with that finding.” See Boyd v. Apfel, 239 F.3d 698, 706

(5th Cir. 2001) (quoting 20 C.F.R. § 404.1520a(c)(2))5; see also Gutierrez v.

Barnhart, 2005 WL 1994289, at *9 (5th Cir. Aug. 19, 2005) (per curiam) (“A

claimant is not entitled to Social Security disability benefits merely upon a showing

that (s)he has a severe disability. Rather, the disability must make it so the

claimant cannot work to entitle the claimant to disability benefits.”); Rivera v.

Comm’r of Soc. Sec., 2021 WL 7906837, at *1 (E.D. Tex. Nov. 22, 2021) (citing

Walker, 2015 WL 5836263, at *15) (“[A] court may find that an impairment is

severe; however, that does not necessarily mean that the impairment must result

in limitations in the RFC.”); Quigley v. Astrue, 2010 WL 5557500, at *8 (N.D. Tex.

Sept. 8, 2010) (noting that step two and the RFC determination are different

inquiries), adopted by 2011 WL 61630 (N.D. Tex. Jan. 5, 2011).

In those instances where courts have found that an ALJ did not err in finding

severe impairments at step two and not attributing any limitation to those

impairments in the RFC assessment, the ALJs considered the limitations that were

encompassed by the severe impairments or accounted for the limitations in some

respect before making a disability finding. See, e.g., Gonzalez v. Colvin, 2014 WL

61171, at *6-7 (N.D. Tex. Jan. 6, 2014) (finding the ALJ’s decision was not subject

to reversal where he did not set forth specific limitations in his RFC determination

5 In Spears, supra, the court found that “[t]he ALJ, however, did not include any

limitations—basically contradicting the fact that he found her impairments to be

severe.” Spears, 284 F. Supp. 2d at 483. Spears does not cite any authority for this

proposition. As explained in Boyd, a finding of severity at step two does not

preclude a finding at step five that a claimant can still work, despite the severe

impairment. See Boyd, 239 F.3d at 706.

relating only to the claimant’s severe impairment but found other limitations that

took into account the claimant’s severe impairment); Carnley v. Colvin, 2013 WL

5300674, at *9 (N.D. Tex. Sept. 20, 2013) (finding that although the ALJ erred by

finding claimant’s seizure disorder to be a severe impairment and failing to

incorporate limitations from the disorder into the RFC, it was clear he intended to

include seizure limitations because the hypothetical questions posed to the VE at

the hearing included such limitations, thereby negating need to remand the case);

Scott v. Colvin, 2013 WL 6047555, at *11 (S.D. Tex. Nov. 14, 2013) (finding that the

ALJ “fully addressed the impact of [the claimant’s severe impairment] on her

ability to do sustained work activities”). The ALJ must clearly consider the severe

impairments in determining the claimant’s RFC, not necessarily assess limitations

for each severe impairment. See, e.g., Campbell v. Berryhill, 2017 WL 1102797, at

*12 (N.D. Tex. Feb. 24, 2017) (finding error where “the ALJ expressly found that

Plaintiff's deep vein thrombosis was one of twelve severe impairments at step two,

but [ ] did not expressly address what impact, if any, it had in determining

Plaintiff’s RFC”) (emphasis added), adopted by 2017 WL 1091651 (N.D. Tex. Mar.

23, 2017).

In the instant case, the ALJ found that Plaintiff had numerous severe

impairments, including the severe impairment of ulcerative colitis based on the

medical evidence. Admin. R. 23-24. After finding 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, the ALJ found that

Plaintiff had the RFC “to perform medium work . . . except that he can only have

occasional interactions with the general public that is superficial and incidental to

the work performed (e.g. no customer service).” Admin. R. 26-27.

In making this finding, the ALJ expressly considered evidence of Plaintiff’s

severe ulcerative colitis, noting that it was diagnosed in January 2020 during a

hospitalization related to intermittent abdominal pain and weakness. Admin. R.

23, 28 (citing Exhibits 2F/1-2; 3F/13). The ALJ detailed that, following his initial

diagnosis, Plaintiff received treatment with medication, beginning Humira in May

2020. Admin. R. 23, 28 (citing Exhibits 5F/3; 8F/5, 15-16). The ALJ highlighted

that Plaintiff subsequently demonstrated significant improvement with

medication, reporting he was having only 1-2 bowel movements a day with no

blood in his stool or abdominal pain and that his appetite improved. Admin. R. 23,

28 (citing Exhibits 5F/3, 29, 32; 8F/24; 9F/4; 13F/6-7; 17F/7).

The ALJ outlined that Plaintiff’s subsequent treatment records continued to

document good control and Plaintiff even reported he was asymptomatic by

September 2020. Admin. R. 23, 28. The ALJ highlighted that Plaintiff generally

denied abdominal pain and rectal bleeding while reporting good appetite and

normal bowel movements. Admin. R. 28 (Exhibits 5F/3, 29, 32; 8F/24; 9F/4;

13F/6, 7; 17F/7). He noted that Plaintiff’s treatment providers continued to

document that his ulcerative colitis was in clinical remission and his examination

findings were normal. Admin. R. 28 (citing Exhibits 5F/6, 31, 86; 6F/10-11, 14-15;

8F/18; 9F/4; 10F/4; 12F/16-17; 13F/6; 14F/6, 8; 17F/7). Examination findings are

relevant and substantial evidence supporting the RFC assessment. See Britton v.

Saul, 827 F. App’x 426, 429 (5th Cir. 2020).

Further, the ALJ noted that in August 2021, Plaintiff reported he was going

to the gym three times a week (Exhibit 6F/10). Admin. R. 28 (citing Exhibit 6F/10).

See Reyes v. Sullivan, 915 F.2d 151, 154-55 (5th Cir. 1990) (recognizing that a

claimant’s daily activities are relevant in assessing subjective complaints). The ALJ

also observed that “there is no evidence of any hospitalizations or reports of

symptoms indicative of flareup since his initial hospitalizations, which is

inconsistent with his testimony (Hearing Testimony).” Admin. R. 28.

The ALJ further supported his assessment of Plaintiff’s ulcerative colitis in

his RFC analysis when he discussed the prior administrative medical findings of

the state agency medical consultants (SAMCs) and determined those findings were

persuasive. Admin. R. 29 (citing Exhibits 3A; 4A; 7A; 8A). See 20 C.F.R. §§

404.1513(a)(5), 404.1520c, 416.913(a)(5), 416.920c. Both SAMCs independently

reviewed the file and found ulcerative colitis was a severe impairment. Admin. R.

67-68, 83-84. Both SAMCs found that, despite Plaintiff’s ulcerative colitis, he could

perform “medium work,” consistent with the ALJ’s RFC assessment. Admin. R.

70-71, 86-88. The ALJ determined these medical findings were persuasive because

the SAMCs’ review supported their findings, and their findings were consistent

with the record. Admin. R. 29. The ALJ’s discussion of these prior administrative

medical findings provides further support for his evaluation of Plaintiff’s ulcerative

colitis and RFC assessment. See 20 C.F.R. §§ 404.1520c, 416.920c; SSR 17-2p, 2017

WL 3928306 (State agency medical consultants “are highly qualified medical

sources who are also experts in the evaluation of medical issues in disability claims

under the Act.”).

After considering the evidence of record, and Plaintiff’s allegations, the ALJ

found his “medically determinable impairments could reasonably be expected to

cause the alleged symptoms,” but found his statements “concerning the intensity,

persistence, and limiting effects of these symptoms not entirely consistent with the

medical evidence and other evidence in the record . . . .” Admin. R. 28. This finding

also informs the ALJ’s ultimate RFC assessment. See, e.g., Vasquez v. O’Malley,

2024 WL 1481437, at *7 (W.D. Tex. Feb. 21, 2024), adopted by 2024 WL 1195558

(W.D. Tex. Mar. 19, 2024), aff’d, 2024 WL 4381269 (5th Cir. Oct. 3, 2024) (ALJ

did not err in finding severe digestive impairments at step two and not attributing

any limitation to those impairments in the RFC assessment where he considered

medical evidence and Plaintiff’s testimony, but found the statements “concerning

the intensity, persistence, and limiting effects of these symptoms not entirely

consistent with the medical evidence and other evidence in the record”).

In this case, the ALJ thoroughly considered Plaintiff’s medical records,

including explaining that Plaintiff’s medication successfully controlled his

ulcerative colitis, and those records provide substantial evidence supporting the

ALJ’s RFC assessment. In addition, he found persuasive the prior administrative

medical findings of the SAMCs, both of whom considered Plaintiff’s ulcerative

colitis severe but found he could perform medium work. Admin. R. 28, 67-68, 70-

71, 83-84, 86-88.

Here, unlike in cases like Martinez, the ALJ made clear that he considered

the ulcerative colitis “severe” at step two, considered the medical impairments

from step two when he made the RFC determination, and assessed Plaintiff’s

limitations based on their impact on his actual ability to do work. Therefore, there

is no inconsistency between the ALJ’s step two findings and his RFC

determination.

Plaintiff’s attempt to highlight countervailing evidence that would favor

additional limitations, see Pl.’s Br. 12, merely invites the Court to reweigh the

evidence, which it declines to do. See Carey v. Apfel, 230 F.3d 131, 135 (5th Cir.

2000) (A reviewing court may not reweigh the evidence or substitute its judgment

for the ALJ’s judgment even if the evidence weighs against the ALJ’s

determination.).

In sum, the ALJ’s conclusion that Plaintiff was not disabled is supported by

substantial evidence because the ALJ considered Plaintiff’s medical impairments

when he made the RFC determination and assessed Plaintiff’s limitations based on

their impact on his actual ability to work.

2. The ALJ did not err in considering evidence from after September

25, 2023.

Plaintiff contends that because the ALJ determined he engaged in

substantial gainful activity starting on September 25, 2023, the ALJ was prohibited

from considering evidence after that date to assess his RFC. Pl.’s Br. 14-16.

Specifically, Plaintiff notes that in evaluating the objective evidence, the ALJ

referenced Exhibits 16F and 17F which contain medical findings from 2024. Id. at

15. And, Plaintiff states, the ALJ made specific references to Plaintiff’s activities

after September 2023. Id. In response, the Commissioner argues that “[t]here is

simply no support for [Plaintiff’s] proposition.” Def.’s Resp. Br. 8. The

Commissioner further contends that “even if there were such a prohibition, the

facts of this case easily justify the ALJ considering evidence from the period that

Plaintiff engaged in substantial gainful activity.” Id.

As an initial matter, as the Commissioner correctly notes, see Def.’s Resp.

Br. 8, the Fifth Circuit has explained that evidence that postdates the adjudicated

period can be relevant. See McLendon v. Barnhart, 184 F. App’x 430, 432 (5th Cir.

2006) (noting that the claimant’s “activities subsequent to the date last insured,

while not always monetarily remunerated, belie his subjective contention that he

was disabled prior to that date”); see also Fraga v. Bowen, 810 F.2d 1296, 1305 &

n.11 (5th Cir. 1987) (ability to work despite pre-existing condition supports ALJ’s

finding of not disabled).

Here, Plaintiff did not argue he was disabled for only a specific period of

time; he alleged that he was disabled throughout the entire period, even after the

date he was able to engage in substantial gainful activity. For instance, during the

administrative hearing, Plaintiff’s representative posited that Plaintiff’s work

activity was accommodated and did not qualify as substantial gainful activity.

Admin. R. 42. Further, Plaintiff stated that he started working because he was

“rotting away, doing nothing,” Admin. R. 45, not because he experienced

improvement in his symptoms that allowed him to engage in greater work activity.

He also testified at the administrative hearing that limitations from his physical

and mental impairments were ongoing. Admin. R. 47-55. At no point did he assert

that that records from after September 2023 reflected greater functional capacity

than during the prior period. Thus, as the ALJ explained, that Plaintiff was able to

engage in fulltime substantial gainful activity with his allegedly disabling

impairments supports the ALJ’s decision. Admin. R. 29.

Finally, even were the Court to assume that the ALJ should have ignored

evidence from after September 2023, the Court agrees with the Commissioner that

“Plaintiff’s argument would still fail because the record from prior to that date, as

the ALJ thoroughly discussed, provides substantial evidence supporting the ALJ’s

RFC assessment.” Def.’s Resp. Br. 9. For example, the ALJ’s citation to Exhibits

16F and 17F in considering the objective medical evidence was redundant of the

majority of exhibits to which he cited from the period preceding September 25,

2023. Here, Plaintiff has failed to show that the ALJ overly relied on evidence from

after the day he engaged in substantial gainful activity.

Recommendation

For the reasons stated, the Court should AFFIRM the Commissioner’s

decision.

SO RECOMMENDED.

August 4, 2025.

REBECCA a

UNITED STATES'MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation shall be served on all parties in

the manner provided by law. Any party who objects to any part of this report and

recommendation must file specific written objections within 14 days after being

served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In order to be

specific, an objection must identify the specific finding or recommendation to

which objection is made, state the basis for the objection, and specify the place in

the magistrate judge's report and recommendation where the disputed

determination is found. An objection that merely incorporates by reference or

refers to the briefing before the magistrate judge is not specific. Failure to file

specific written objections will bar the aggrieved party from appealing the factual

findings and legal conclusions of the magistrate judge that are accepted or adopted

by the district court, except upon grounds of plain error. See Douglass v. United

Sucs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).

18