Allen v. O'Malley

UNITED STATES DISTRICT COURT August 08, 2025

Nathan Ochsner, Clerk

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

ETHAN ALLEN, §

§

Plaintiff, §

§

v. § CIVIL ACTION NO. 4:24-cv-2129

§

FRANK BISIGNANO, §

§

Defendant. §

MEMORANDUM AND RECOMMENDATION

Plaintiff Ethan Allen (“Plaintiff”) filed this lawsuit against Defendant

Frank Bisignano (the “Commissioner”) seeking review of the denial of benefits

under Title XVI of the Social Security Act. (ECF Nos. 1, 7).1 Pending before

the Court are the parties’ cross-motions for summary judgment. (ECF Nos. 7,

9).2 Based on a review of the motions, arguments, and relevant law, the Court

RECOMMENDS the Commissioner’s Motion for Summary Judgment (ECF

No. 9) be GRANTED IN PART AND DENIED IN PART and Plaintiff’s

Motion for Summary Judgment (ECF No. 7) be GRANTED IN PART AND

1 Frank Bisignano was sworn in as the Commissioner of Social Security on May 15,

2025. Bisignano is “automatically substituted” as the defendant in this suit. FED. R. CIV. P.

25(d); see also 42 U.S.C. § 405(g) (“Any action instituted in accordance with this subsection

shall survive notwithstanding any change in the person occupying the office of Commissioner

of Social Security or any vacancy in such office.”).

2 On October 21, 2024, this case was referred to the Undersigned for all purposes

pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and Federal Rule of Civil Procedure 72. (ECF

No. 10).

DENIED IN PART. The Court FURTHER RECOMMENDS the case be

REMANDED for further administrative proceedings, consistent with this

opinion.

I. Background

Plaintiff filed a claim for supplemental security income on October 7,

2020, alleging disability starting on October 2, 2020. (ECF No. 3-1 at 31).3

Plaintiff’s claims were initially denied by the Social Security Administration

on July 29, 2021, and again on reconsideration on November 7, 2022. (Id.). On

November 18, 2022, Plaintiff requested a hearing before an Administrative

Law Judge. (Id.). On September 14, 2023, Administrative Law Judge Michelle

Whetsel (the “ALJ”) held a telephonic hearing. (Id.). Plaintiff was represented

by counsel at the hearing. (Id.). Thomas J. Meunier, a vocational expert

(“VE”), also appeared at the hearing. (Id.).

On October 17, 2023, the ALJ issued a decision, finding Plaintiff not

disabled at Step Five.4 (Id. at 41). At Step One, the ALJ found Plaintiff had

not engaged in substantial gainful activity since October 7, 2020, the

3 The Administrative Record in this case can be found at ECF No. 3.

4 In considering a disability claim, an ALJ must conduct a five-step evaluation that

examines: (1) whether the claimant is currently engaged in substantial gainful activity; (2)

whether the claimant has a severe impairment; (3) whether the claimant’s impairment meets

or equals the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1;

(4) whether the impairment prevents the claimant from doing past relevant work; and (5)

whether the impairment prevents the claimant from doing any other work. Masterson v.

Barnhart, 309 F.3d 267, 271 (5th Cir. 2002) (citing 20 C.F.R. § 404.1520).

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application date. (Id. at 33). At Step Two, the ALJ found Plaintiff has the

following severe impairments: “stroke with residual deficits, high blood

pressure, vision disorder, vertigo, anxiety/depression/bipolar disorder (20 CFR

416.920(c)).” (Id.). At Step Three, the ALJ found Plaintiff: “does not have an

impairment or combination of impairments that meets or medically equals the

severity of one of the listed impairments in 20 CFR Part 404, Subpart P,

Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).” (Id. at 34). The ALJ

determined that Plaintiff has the Residual Functional Capacity (“RFC”) to:

perform sedentary work as defined in 20 CFR 416.967(a) except

the claimant can lift 20 pounds occasionally, 10 pounds frequently,

stand and walk for about four hours and sit for about six hours in

an eight-hour workday. The claimant can occasionally climb

ramps and stairs, but should never climb ladders, ropes, or

scaffolds. He can occasionally balance, stoop, kneel, crouch, and

crawl. He should avoid concentrated exposure to extreme heat,

extreme cold, fumes, dusts, odors, gases, poor ventilation,

dangerous moving machinery, and wet, slippery, uneven surfaces.

The claimant should avoid all exposure to unprotected heights. He

can frequently reach in all directions, including overhead,

bilaterally. The claimant can frequently handle and finger

bilaterally. He can occasionally push, pull, and operate foot

controls, bilaterally. The claimant can remember and follow

simple instructions. He can perform the tasks assigned, but not at

a production rate pace; however, he can meet the end of day work

goals. The claimant can occasionally adapt to changes in the

workplace.

(Id. at 35). At Step Four, the ALJ found Plaintiff “has no past relevant work.”

(Id. at 40). At Step Five, the ALJ found there were jobs that existed in

significant numbers in the national economy that Plaintiff could perform—

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such as a parking lot cashier, food and beverage order clerk, and final

assembler—and therefore Plaintiff was not disabled as defined under the

Social Security Act. (Id. at 40–41).

Plaintiff appealed to the Appeals Council who denied Plaintiff’s request

for review on March 15, 2024. (Id. at 6). Thus, the ALJ’s decision represents

the Commissioner’s final decision in the case. See Sims v. Apfel, 530 U.S. 103,

106–07 (2000).

II. Legal Standard

The Court’s review of a final decision of the Commissioner on a Social

Security disability claim is exceedingly deferential. Taylor v. Astrue, 706 F.3d

600, 602 (5th Cir. 2012). “[R]eview of Social Security disability cases ‘is limited

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

on the record as a whole, and (2) whether the Commissioner applied the proper

legal standard.’” Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014) (quoting

Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005)). When the

Commissioner’s decision is reached by applying improper legal standards, the

decision is not supported by substantial evidence. Singletary v. Bowen, 798

F.2d 818, 823 (5th Cir. 1986). “Substantial evidence is ‘such relevant evidence

as a reasonable mind might accept to support a conclusion’ and constitutes

‘more than a mere scintilla’ but ‘less than a preponderance’ of evidence.”

Hardman v. Colvin, 820 F.3d 142, 147 (5th Cir. 2016) (quoting Newton v. Apfel,

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209 F.3d 448, 452 (5th Cir. 2000)). “‘Any findings of fact by the Commissioner

which are supported by substantial evidence are conclusive.’” Heck v. Colvin,

674 F. App’x 411, 413 (5th Cir. 2017) (quoting Taylor, 706 F.3d at 602).

Even so, judicial review must not be “so obsequious as to be

meaningless.” Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999) (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, 798 F.2d at 822–23; 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. The court “‘may not reweigh the evidence . . . , nor

try the issues de novo, nor substitute [its] judgment for the [Commissioner’s],

even if the evidence preponderates against the [Commissioner’s] decision.’”

Johnson v. Colvin, 595 F. App’x 443, 444 (5th Cir. 2015) (quoting Harrell v.

Bowen, 862 F.2d 471, 475 (5th Cir. 1988)).

III. Discussion

Plaintiff asserts three points of error. Plaintiff argues: (1) the ALJ erred

in finding Plaintiff’s impairments do not meet or equal the requirements of

Listing 11.04; (2) the ALJ fails to properly evaluate the severity of Plaintiff’s

back impairments; and (3) the RFC finding is not supported by a medical

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source of record and does not include the limiting effects of all of Plaintiff’s

impairments. (ECF No. 7 at 6). The Commissioner argues substantial

evidence supports the ALJ’s finding regarding Listing 11.04, the ALJ properly

evaluated Plaintiff’s back impairment, and substantial evidence supports the

ALJ’s RFC assessment. (ECF No. 9 at 4–12).

A. Listing 11.04

Plaintiff argues the ALJ erred in finding Plaintiff does not meet or equal

Listing 11.04. (ECF No. 7 at 11). Plaintiff claims he meets or equals the A and

C criteria of Listing 11.04. (Id. at 7). The Commissioner contends the ALJ

properly found Plaintiff’s impairments did not meet the criteria for Listing

11.04. (ECF No. 9 at 4).

“At step three, the Commissioner considers the medical severity of the

claimant’s impairment(s) and determines whether the impairment(s) meets or

equals the criteria for a listed impairment in 20 C.F.R. Part 404, Subpart P,

Appendix 1.” Martin v. Colvin, No. 1:16-cv-205, 2017 WL 2450288, at *2 (S.D.

Miss. June 6, 2017) (citing 20 C.F.R. § 416.920(a)(4)(iii), (d)). “The burden of

proof to meet a listing is ‘demanding and stringent.’” Id. at *3 (quoting Falco

v. Shalala, 27 F.3d 160, 162 (5th Cir. 1994)). “The responsibility for

determining whether a claimant meets a listing is reserved to the

Commissioner.” Id. (citing 20 C.F.R. § 416.927(e)(2)). “The ALJ has the burden

to identify the relevant listed impairment [and] Plaintiff has the burden of

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establishing that her impairment meets or equals an impairment set out in the

Listing of Impairments.” Travis v. Berryhill, No. 15-cv-3399, 2019 WL

1205161, at *6 (S.D. Tex. Mar. 14, 2019); see Jordan v. Comm’r of Soc. Sec., No.

4:15-cv-026, 2015 WL 7283179, at *3 (N.D. Miss. Nov. 16, 2015) (“The plaintiff

does indeed retain the burden of establishing that her impairments met or

medically equal an impairment enumerated in the Listings.”).

Listing 11.04 relates to vascular insult to the brain, which is met by

criteria A, B, or C:

A. Sensory or motor aphasia resulting in ineffective speech or

communication (see 11.00E1) persisting for at least 3 consecutive

months after the insult.

OR

B. Disorganization of motor function in two extremities (see

11.00D1), resulting in an extreme limitation (see 11.00D2) in the

ability to stand up from a seated position, balance while standing

or walking, or use the upper extremities, persisting for at least 3

consecutive months after the insult.

OR

C. Marked limitation (see 11.00G2) in physical functioning (see

11.00G3a) and in one of the following areas of mental functioning,

both persisting for at least 3 consecutive months after the insult:

1. Understanding, remembering, or applying information

(see 11.00G3b(i)); or

2. Interacting with others (see 11.00G3b(ii)); or

3. Concentrating, persisting, or maintaining pace (see

11.00G3b(iii)); or

4. Adapting or managing oneself (see 11.00G3b(iv)).

20 C.F.R. Part 404, Subpart P, Appendix 1, § 11.04.

As to Listing 11.04, the ALJ found:

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[Plaintiff]’s stroke did not result in sensory or motor aphasia

lasting for 3 consecutive months after the insult; or

disorganization of motor function in two extremities resulting in

an extreme limitation in the ability to stand up, balance while

standing/ walking, or use the upper extremities; or a marked

limitation in physical and mental functioning (Exhibits 17F-12, 8,

28; 11F-3, 4, 12; 7F-13).

(ECF No. 3-1 at 34).

First, Plaintiff argues the ALJ erred because Plaintiff meets or equals

criteria A of Listing 11.04. (ECF No. 7 at 7-8). Criteria A requires “[s]ensory

or motor aphasia resulting in ineffective speech or communication (see

11.00E1) persisting for at least 3 consecutive months after the insult.” 20

C.F.R. Part 404, Subpart P, Appendix 1, § 11.04(A). Here, Plaintiff was

hospitalized on October 2, 2020, due to a stroke.5 (ECF No. 3-1 at 37; ECF No.

7 at 8; ECF No. 9 at 5). Plaintiff finds issue with the ALJ’s determination that

‘“there is no evidence the Plaintiff has experienced ongoing limitation in

speech’” and argues the medical evidence contradicts the ALJ’s findings. (ECF

No. 7 at 8 (quoting ECF No. 3-1 at 39)). Further, Plaintiff argues any

resolution of his speech was temporary. (Id. at 8–9).

The question turns to whether substantial evidence supports the ALJ’s

finding that ineffective speech or communication persisted for at least three

consecutive months after the October 2, 2020 stroke. The ALJ and Plaintiff

5 It is unclear whether Plaintiff had one stroke or multiple strokes. However, to be

consistent, the Court will refer to it as a “stroke.”

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cite to record evidence to support their positions. For instance, the ALJ cites

to Exhibit 11F at 3, 4, and 12, which are medical progress reports and

examinations from November 2020 to March 2022, containing the notation,

“PSYCH: alert, oriented, cognitive function intact, cooperative with exam, good

eye contact, judgement and insight good, mood/affect full range, speech clear.”

(ECF No. 3-1 at 34, 704–742). The ALJ also cites to a June 2021 office visit at

Absolute Pain and Wellness, in which Plaintiff had “no current complaints”

and is “[d]oing well.” (Id. at 37, 527). The ALJ notes that there were times

Plaintiff’s speech was limited but determined it was not ongoing and provides

record evidence showing Plaintiff’s speech was not impacted for three

consecutive months. (Id. at 34–39, 399–400, 497, 759).

On the other hand, Plaintiff cites evidence that he had difficulty

speaking and had slurred speech on October 2, 2020, that his slurred speech

resolved temporarily on the same day, and then his speech impairment

returned on October 14, 2020. (ECF No. 7 at 8–9). Plaintiff cites to a disability

report dated October 14, 2020, where it was observed that Plaintiff “was a bit

difficult to understand due to slurred, mumbled speech.” (Id. at 9; ECF No. 3-

1 at 276). The only other dates Plaintiff refers to regarding his “slowed and

slurred speech” are March 16, 2021 and March 23, 2021. (ECF No. 7 at 9).

These instances of slowed or slurred speech in October 2020 and March 2021

do not establish Plaintiff suffered ineffective speech or communication

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persisting three consecutive months. Further, Plaintiff fails to cite authority

that stands for the notion that “temporary resolution” of ineffective speech or

communication meets the requirement of Listing 11.04, criteria A. As such,

Plaintiff has not met his burden in establishing sensory or motor aphasia

resulting in ineffective speech or communication persisting for at least three

consecutive months after the insult.

Second, Plaintiff argues the ALJ erred because Plaintiff meets or equals

criteria C of Listing 11.04. (ECF No. 7 at 9-10). Criteria C requires a marked

limitation in physical functioning and one in the area of mental functioning,

including (1) understanding, remembering, or applying information, (2)

interacting with others, (3) concentrating, persisting, or maintaining pace, and

(4) adapting or managing oneself, both persisting for at least three consecutive

months after the insult. 20 C.F.R. Part 404, Subpart P, Appendix 1, § 11.04(C).

The ALJ found Plaintiff has a marked limitation in mental functioning as to

understanding, remembering, or applying information. (ECF No. 3-1 at 34).

However, the ALJ did not find Plaintiff had a marked physical limitation. (See

id.). Accordingly, the Court must determine whether the ALJ’s determination

that Plaintiff does not have a marked physical limitation is supported by

substantial evidence.

The ALJ’s determination that Plaintiff does not have a marked physical

limitation is supported by substantial evidence. For instance, the ALJ cites to

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certain portions of Exhibit 11F, which include general examinations of Plaintiff

from November 2020 to March 2022. (ECF No. 3-1 at 34, 37). The ALJ notes,

“[t]he remainder of the claimant’s treatment records are somewhat

inconsistent, with only occasional signs of muscle weakness in the right

extremities (Exhibits 11F-39, 27, 3 vs 17F-28, 16, 12, 8)”, “in December of 2020,

the claimant had a normal blood pressure and had full range of motion in all

extremities with good strength in the upper and lower extremities. No deficits

in strength were noted (Exhibit 11F-39)” and “[i]n Fact, the claimant’s physical

examinations from April 2021 through March of 2022 show normal strength in

the upper and lower extremities, with good sensation and no reports of muscle

weakness or unsteady gait (Exhibits 11F-27, 12, 3–4).” (Id. at 37). The record

the ALJ cites specifically states: “MUSCULOSKELETAL: full range of motion,

no swelling or deformity. EXTREMITIES: no edema, full range of motion, no

clubbing, cyanosis, or edema” and “NEUROLOGIC: nonfocal, motor strength

normal upper and lower extremities, sensory exam intact.” (Id. at 703–04).

Further, the ALJ notes “the use of the cane seems not to be medically

necessary as there is no documented need and [Plaintiff] himself indicates

there was no prescription provided for the cane. Moreover, the evidence of

record shows generally normal exam results regarding gait, ambulation, and

muscle strength.” (Id. at 36, 78). The ALJ also notes Plaintiff’s use of a cane

decreased over time. (See id. at 37 (“He reported he was using the cane less as

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time went on. For example, in February of 2023, the claimant reported he was

using his cane less and was working out regularly (Exhibit 17F-12, 16). By

July of 2023, the claimant did not appear with the cane (Exhibit 17F-8).”)).

Conversely, Plaintiff cites to evidence of physical limitation on the date

of Plaintiff’s stroke and in December 2020, March 2021, and May 2021. (ECF

No. 7 at 10). However, Plaintiff has not met his burden in establishing a

marked limitation in physical functioning persisting for at least three

consecutive months after the stroke.6

To the extent Plaintiff argues the ALJ erred in not providing an

explanation for the finding that Plaintiff’s stroke did not result in a marked

limitation in physical functioning, Plaintiff’s argument fails. Here, the ALJ

6 To compare, aphasia and apraxia was found to persist for at least three months after

a stroke under Listing 11.04(A) where, “Henry suffered a central nervous system vascular

accident (a stroke) on or about December 7, 2004. All of the medical records, from admission

to the hospital to beyond the three-month duration period of the listing, show that Henry

suffered from aphasia and apraxia as a result of his stroke.” Henry v. Astrue, No. 6:07-cv-

01708, 2009 WL 928348, at *4 (W.D. La. Apr. 6, 2009). The court specifically noted,

On January 24, 2005, Dr. Kevin Hargrave, of Comprehensive Neurologic

Center, recorded “motor aphasia.” (Tr. 154). Henry continued speech therapy

for several months. A follow up examination at LSUMC on March 4, 2005, by

the LSUMC Neurology clinic, noted “aphasia, apraxia” and instructed Henry

to “continue speech therapy.” (Tr. 167). Henry continued speech therapy for

aphasia at LSUMC Speech Clinic through May 9, 2005, beyond the three

month required period. There is no record in the file showing that Henry was

successfully discharged from speech therapy.

Id. at *5. Further, a court found residual effects of a stroke did not meet Listing 11.04(b)

where “the medical evidence fails to show significant and persistent disorganization of motor

function in two extremities that resulted in sustained disturbance of gross and dexterous

movements, or gait and station for more than three months after her stroke.” Travis, 2019

WL 1205161, at *7.

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identifies Listing 11.04, cites to record evidence, and explains that Listing

11.04 was not met or equaled. (ECF No. 3-1 at 34). Although the ALJ could

have provided a more in-depth and detailed analysis at Step Three, procedural

perfection is not required. See Jordan, 2015 WL 7283179, at *3. Moreover,

the ALJ provided a detailed discussion of Plaintiff’s stroke and impairments

following the stroke in the RFC analysis. See Martin, 2017 WL 2450288, at *4

(“Here, even though the ALJ did not reference Listings 11.04 and 11.18 in her

step three analysis, she did, in her RFC analysis, discuss an absence of

evidence of lasting neurological impairment.”). As such, the Court finds the

ALJ did not err. See id. (“Not only did the ALJ not identify which Listing for

which the plaintiff failed to qualify, [] but she wholly failed to discuss the

evidence or provide any explanation whatsoever for how she reached her

conclusion. This was clear error.”).

Even so, Plaintiff has not established that such an error is not harmless.

“[I]f the ALJ erred by failing to specifically address Listings 11.04 and 11.18,

the error was harmless because Plaintiff has not shown that her substantial

rights were affected.” Id. at *5 (citing Audler v. Astrue, 501 F.3d 446, 448 (5th

Cir. 2007)). “To show that substantial rights were affected ‘typically requires

a claimant to demonstrate that his impairment satisfies the criteria of a

particular listing.’” Id. (quoting Pickett v. Colvin, No. 3:15-cv-700, 2017 WL

439978, *2 (S.D. Miss. Jan. 6, 2017), report and recommendation adopted, 2017

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WL 422812 (S.D. Miss. Jan. 31, 2017)). Here, Plaintiff does not meet his

burden in establishing he has an impairment under Listing 11.04. Specifically,

Plaintiff fails to establish sensory or motor aphasia resulting in ineffective

speech or communication persisting for at least three consecutive months after

the stroke under Listing 11.04(A) and Plaintiff fails to establish a marked

limitation in physical functioning persisting for at least three consecutive

months after the stroke under listing 11.04(C). Further, the ALJ cites to record

evidence that contradicts Plaintiff’s assertions. Cf. Jordan, 2015 WL 7283179,

at *4 (“According to the court, because no medical evidence had been

introduced to contradict the diagnostic checklist findings, and because the ALJ

had not offered any explanation to the contrary, the substantial rights of the

plaintiff were affected by the ALJ’s failure to provide her bases for her step

three decision.”). As such, even if the ALJ erred in her analysis, any error is

harmless.

B. Back Impairment

Plaintiff argues the ALJ failed to properly evaluate the severity of

Plaintiff’s back impairments in determining the RFC. (ECF No. 7 at 11–13).

The Commissioner asserts the ALJ properly considered Plaintiff’s back pain.

(ECF No. 9 at 8–9).

To the extent Plaintiff claims the ALJ erred at Step Two in not

characterizing his back pain as a severe impairment, such error is harmless if

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the ALJ considers Plaintiff’s back pain in formulating the RFC. See Moreno v.

Comm’r of Soc. Sec. Admin., 698 F. Supp. 3d 935, 942 (W.D. Tex. 2023) (“For

example, in a case considering an ALJ’s mischaracterization of a severe

fibromyalgia impairment as nonsevere, the court found the error was harmless

‘because all impairments were considered in the ALJ’s formulation of [the

claimant’s] RFC.’” (quoting Enriquez v. Acting Comm’r of Soc. Sec. Admin., No.

3:17-cv-00329, 2018 WL 2293967, at *3 (W.D. Tex. May 18, 2018)). Because

the ALJ does not mention Plaintiff’s back pain at Step Two, the Court must

determine whether the ALJ considered Plaintiff’s back pain in determining the

RFC. See A.M. v. O’Malley, No. 4:23-cv-1091, 2024 WL 758537, at *3 (N.D.

Tex. Feb. 22, 2024) (“Even if Plaintiff is correct that the ALJ erred by failing

to consider the Plaintiff’s chronic pain syndrome to be a severe impairment,

this does not end the analysis.” (citing Keel v. Saul, 986 F.3d 551, 556 (5th Cir.

2021)); Herrera v. Comm’r of Soc. Sec., 406 F. App’x 899, 903 (5th Cir. 2010)

(“[T]he ALJ’s failure to assess the severity of Herrera’s anxiety or learning

impairments at step two is not a basis for remand.”). ‘“[I]f the ALJ proceeds

past step two, we consider whether the 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.’” Id. (quoting Keel, 986 F.3d at

556).

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Accordingly, the Court turns to the RFC analysis. In reviewing

Plaintiff’s complaints of back pain and the limiting effects of his back pain,

the ALJ must consider all relevant evidence, including medical

signs and laboratory findings, as well as the opinions of treating

and non-treating medical sources, objective medical evidence, and

other factors relevant to the claimant’s symptoms, such as daily

activities; location, duration, frequency and intensity of pain and

other symptoms; and measures taken (such as medication,

treatment or home remedies) to alleviate those symptoms.

Christian v. Berryhill, No. 4:15-cv-3714, 2017 WL 1134152, at *8 (S.D. Tex.

Mar. 27, 2017). “While the Fifth Circuit does not require the ALJ to strictly

follow these criteria when evaluating a Plaintiff’s subjective claims of pain, an

ALJ is still ‘bound . . . to explain his reasons for rejecting’ those complaints of

pain.” Quintanilla v. Astrue, No. 11-cv-1040, 2013 WL 4046371, at *17 (W.D.

Tex. Aug. 8, 2013) (quoting Falco, 27 F.3d at 163–64). “When the record

contains evidence that could support a claimant’s allegations of disabling pain

and the ALJ does not discuss this evidence before dismissing the complaint,

the decision is not supported by substantial evidence.” Id. (citing Newton, 209

F.3d at 459).

Here, the ALJ only references Plaintiff’s subjective complaints of back

pain once in the entire decision. (ECF No. 3-1 at 36). The ALJ states, “[a]t the

hearing, the claimant testified he has slurred speech, memory issues, vertigo,

back pain, and right sided weakness.” (Id.). However, the ALJ finds,

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[a]fter careful consideration of the evidence, the undersigned finds

that the claimant’s medically determinable impairments could

reasonably be expected to cause the alleged symptoms; however,

the claimant’s statements concerning the intensity, persistence

and limiting effects of these symptoms are not entirely consistent

with the medical evidence and other evidence in the record for the

reasons explained in this decision. The medical evidence of record

supports the presence of conditions that could reasonably be

expected to cause some of the symptoms that the claimant alleges,

but not to the full extent to which they allege them. Therefore, the

undersigned finds the claimant’s subjective complaints to be

partially inconsistent with the evidence of record.

(Id.). The ALJ came to this conclusion without a discussion of the relevant

evidence in the record regarding Plaintiff’s back pain and without an

explanation on how she came to this conclusion regarding Plaintiff’s back pain.

See Quintanilla, 2013 WL 4046371, at *18 (“Instead, he merely rejected,

without discussion, any allegations of pain that were inconsistent with the

RFC assessment.”). Although the ALJ determined Plaintiff’s subjective

complaints of back pain are inconsistent with record evidence, the ALJ does

not address or cite to the inconsistent record evidence. (See ECF No. 3-1 at 35–

40).

Contrary to the ALJ’s findings, there is record evidence supporting

Plaintiff’s complaints of back pain. For instance, the record shows Plaintiff has

been treated for back pain since at least October 2018. (ECF No. 3-1 at 790).

Gregory Krynski and Dr. Klein explain in progress notes that Plaintiff was

“under [a] pain management program[,]” “[t]he pain is described as sharp,

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stabbing with radiation into both legs to his posterior thighs[,]” and “[t]he

severity of the pain is 8/10 average, continuous and is aggravated by lifting

and movement.” (Id. at 703, 705, 707, 710, 712, 715, 718, 721, 724, 727, 730,

733, 736, 739, 742, 745, 748, 751, 754, 757, 759, 761, 763, 765, 767, 769).

Further, it was noted that “an MRI (magnetic resonance imaging), of the

lumbar spine show multiple levels of disc protrusion and foraminal stenosis.”

(Id.). On December 17, 2018, Dr. Robles found “[e]vidence of posterior broad-

based 3.5mm. disc protrusion” and “a moderate bilateral foraminal stenosis

with minimal encroachment of the root nerve” at L2-3 and “[e]vidence of 3mm.

central disc protrusion, indents the ventral thecal sac.[,] [m]ild facet

degenerative changes[,]” and “[p]resence of mild bilateral foraminal stenosis

with no impingement of the root nerve” at L4-5. (ECF No. 3-2 at 264–65). On

July 31, 2023, Dr. Andrew Jones found Plaintiff’s lumbar spine had paraspinal

muscle tenderness and his assessment included lumbar muscle spasms,

paresthesia, radiculopathy, chronic pain syndrome, lumbar spondylopathy,

lumbar disc herniation, and lumbar degenerative disc disease. (Id. at 832).

While the Commissioner argues there is evidence in the record to support the

ALJ’s decision, the ALJ does not cite to or address such evidence. (See ECF

No. 9 at 8–9). The ALJ consistently cites to Exhibit 11F to show Plaintiff had

normal strength in the upper and lower extremities. (See ECF No. 3-1 at 37).

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However, Exhibit 11F also includes evidence of Plaintiff’s back pain, his pain

treatment, and his unsteady gait. (See generally id. at 703–769).

“[T]he record contains numerous indications that Plaintiff’s complaints

of disabling pain may have been credible, and the ALJ’s failure to provide

specific, articulable reasons for disregarding those complaints constitutes

reversible error.” Quintanilla, 2013 WL 4046371, at *18. While the ALJ may

have been justified in finding that Plaintiff’s complaints of pain were not

meritorious, her decision was not supported by substantial evidence in the

record. Accordingly, the Court recommends Commissioner’s decision be

vacated and this matter be remanded for additional findings regarding the

Plaintiff’s complaints of back pain.

C. RFC Assessment

Next, Plaintiff argues the RFC is not supported by substantial evidence

and it fails to accommodate Plaintiff’s impairments. (ECF No. 7 at 13–14).

Specifically, Plaintiff argues the ALJ erred in failing to (1) accommodate for

his back pain;7 (2) accommodate for his residual deficits from the stroke; (3)

accommodate for his mental limitations in the domains of interacting with

others and adapting and managing oneself; (4) accommodate for his use of a

7 The Court has found the ALJ’s decision regarding Plaintiff’s back pain was not

supported by substantial evidence in the record. As such, the Court will not address this

argument.

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cane when ambulating; (5) accommodate for his visual impairments; (6)

support the RFC finding with a medical source opinion of record; and (7)

present a complete hypothetical question to the VE concerning Plaintiff’s

ability to perform work in the national economy. (Id. at 14–20). The

Commissioner counters that the ALJ’s RFC determination is supported by

substantial evidence. (ECF No. 9 at 9).

“An individual’s RFC ‘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.’” Martha L. v. Saul, No. 1:20-cv-00003, 2021 WL

3610316, at *3 (N.D. Tex. July 27, 2021), report and recommendation adopted,

No. 1:20-cv-003, 2021 WL 3604082 (N.D. Tex. Aug. 13, 2021) (quoting SSR 96-

8p, 1996 WL 374184, at *1, *3–*5 (S.S.A. July 1, 1996)). The determination of

RFC is solely the ALJ’s responsibility, see Taylor, 706 F.3d at 602–03, and the

ALJ considers all relevant medical and other evidence in making the RFC

determination, see 20 C.F.R. § 404.1545(a)(3); SSR 96–5, 1996 WL 374183, at

*5. “The ALJ is permitted to draw reasonable inferences from the evidence in

making his decision, but the social security rulings also caution that

presumptions, speculation, and supposition do not constitute evidence.”

Thornhill v. Colvin, No. 3:14-cv-335, 2015 WL 232844, at *8 (N.D. Tex. Jan.

16, 2015). However, the ALJ is not required to incorporate limitations in the

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RFC that he did not find to be supported in the record. See Morris v. Bowen,

864 F.2d 333, 336 (5th Cir. 1988).

1. Residual Deficits from the Stroke

Plaintiff argues the ALJ fails to identify which “residual deficits”

Plaintiff suffers from; and thus, Plaintiff cannot determine whether such

residual deficits were properly accommodated for in the RFC. (ECF No. 7 at

14–15). The Commissioner does not address this argument. (See ECF No. 9).

However, in making this argument, Plaintiff provides no case law or authority.

(See ECF No. 7 at 14–15). As such, the Court finds this argument is

inadequately briefed and will not address it. See Liggins v. City of Duncanville,

Tex., No. 3:20-cv-0654, 2021 WL 929105, at *10 n.8 (N.D. Tex. Mar. 11, 2021)

(“Plaintiff, however, does not subsequently develop these arguments or provide

additional factual or case-law support. Thus, the Court does not address these

additional assertions.”).

2. Mental Limitations

Plaintiff argues the ALJ erred in not accommodating for Plaintiff’s

mental limitations in the domains of interacting with others and adapting and

managing oneself. (ECF No. 7 at 15). The Commissioner maintains the ALJ

accounted for all of Plaintiff’s mental limitations. (ECF No. 9 at 11).

“Even when an ALJ finds that a claimant’s mental impairments are non-

severe, the ALJ must still consider the impact of [any] non-severe

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impairments—either singly or in combination with other conditions—when he

determines [his] RFC.” Martha L., 2021 WL 3610316, at *4 (quoting Gonzales

v. Colvin, No. 3:15-cv-0685, 2016 WL 107843, at *5 (N.D. Tex. Jan. 11, 2016)

(quotations omitted)). “Courts within this district have found no legal error

where an ALJ does not include mental limitations in a claimant’s RFC so long

as the ALJ considered the limiting effects and restrictions of all impairments

in the RFC analysis, even those impairments that are non-severe.” Id. at *5;

see Gonzales, 2016 WL 107843, at *6, *8 (holding “the ALJ adequately

discussed and considered the limiting effects of [Plaintiff’s] mental

impairments in formulating his RFC” when the ALJ’s RFC analysis considered

relevant mental health records, reports, and plaintiff’s testimony regarding his

mental impairments); Danny R. C. v. Berryhill, No. 3:17-cv-1682, 2018 WL

4409795, at *15–16 (N.D. Tex. Sep. 17, 2018) (finding no legal error where the

ALJ declined to include mental limitations in plaintiff’s RFC because the ALJ’s

“decision reflect[ed] that he considered Plaintiff’s mental functioning when

performing his RFC analysis.”).

Before determining Plaintiff’s RFC, the ALJ determined Plaintiff has a

mild limitation in the domain of interacting with others and a moderate

limitation in the domain of adapting and managing oneself. (ECF No. 3-1 at

34–35). In the RFC, the ALJ further discussed Plaintiff’s mental limitations.

For instance, the ALJ considers Plaintiff’s subjective complaints where he

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alleges he has “difficulty with hygiene, and has low motivation. He has his

family help him with meals and chores around the house. He watches TV, but

needs reminders to perform tasks at home.” (Id. at 36). The ALJ also states,

With regard to the claimant’s mental limitations, the record shows

the claimant has a diagnosis of anxiety, depression, and bipolar

disorder. He does not receive regular treatment for these

impairments. However, the claimant had a Consultative

examination in May of 2021 with psychologist Dennis Feldman,

Ph.D. (Exhibit 5F). He was given the Wechsler Adult Intelligence

Scale test and scored a full-scale IQ score of 72, which is within

borderline range (Exhibit 5F-4). Upon examination, the claimant

exhibited normal conversational pace, sporadic eye contact, logical

thought processes, but his thought content was positive for

ruminations about health. His abstract reasoning skills were

moderately impaired, and his memory was intact (Exhibit 5F-6).

His attention and concentration were measured in the borderline

range of ability on verbally presented information. His insight and

judgment were both intact and his affect was congruent to his

mood (Exhibit 5F-6, 7). He was diagnosed with mild depression

and borderline intellectual functioning.

(Id. at 38). The ALJ provided an analysis of the opinions of Dr. Dennis

Feldman (“Dr. Feldman”), Dr. Megan Nicoloff (“Dr. Nicoloff”), Dr. John Wolfe

(“Dr. Wolfe”), Dr. Veronica Bedeau (“Dr. Bedeau”), and Dr. Alison Caviness

(“Dr. Caviness”) regarding Plaintiff’s mental impairments. (Id. at 38–39).

Further, the ALJ’s analysis includes evidence specifically relating to the

domains of interacting with others and a moderate limitation in the domain of

adapting and managing oneself. For example, the ALJ states, Dr. Nicoloff and

Dr. Wolfe “both opined the claimant can understand, remember, and carry out

simple instructions, make simple decisions, attend, and concentrate for

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extended periods, interact adequately with coworkers and supervisors, and

respond appropriately to changes in a routine work setting” but that “the

undesigned finds additional limitations are supported by the Consultative

examination, such as the claimant’s ability to adapt to workplace changes and

the pace at which he can perform tasks.” (Id. at 39).

Accordingly, the ALJ properly accommodated for Plaintiff’s mental

limitations in the domains of interacting with others and adapting and

managing oneself in the RFC. See Danny R. C., 2018 WL 4409795, at *15

(“Because the ALJ sufficiently considered [Plaintiff’s] mental impairments in

calculating the RFC, [he] did not err by not including any mental limitations

in the RFC.” (quotations and citation omitted)).

3. Use of a Cane

Plaintiff contends the RFC finding fails to accommodate for Plaintiff’s

use of a cane when ambulating. (ECF No. 7 at 15). The Commissioner argues

the ALJ accounted for Plaintiff’s use of a cane and determined the cane was

not medically necessary according to record evidence. (ECF No. 9 at 11).

“Case law emphasizes that ALJs have no duty to incorporate a Plaintiff’s

use of a non-medically necessary cane into the RFC assessment.” Moore v.

Saul, No. 3:20-cv-48, 2021 WL 909618, at *3 (S.D. Miss. Feb. 1, 2021), report

and recommendation adopted as modified, No. 3:20-cv-48, 2021 WL 754833

(S.D. Miss. Feb. 26, 2021) (citing McGowan v. Colvin, 2016 WL 4250433 at *6

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(S.D. Miss. Aug. 11, 2016) (“[B]ecause a claimant lacked a prescription for a

cane, no imagery to support claimant’s need for a cane, and claimant obtained

the cane from a family member, the ALJ’s decision was supported by

substantial evidence.”)); see also Johnson v. Berryhill, No. 3:15-cv-3961, 2017

WL 1105720, at * 11 (N.D. Tex. Mar. 24, 2017) (“While Plaintiff’s use of a cane

is sporadically mentioned in the medical records, none of the records state that

it was medically necessary, and they instead simply note that she brought her

own cane with her to the evaluations.”).

Here, the ALJ notes “the use of the cane seems not to be medically

necessary as there is no documented need and [Plaintiff] himself indicates

there was no prescription provided for the cane. Moreover, the evidence of

record shows generally normal exam results regarding gait, ambulation, and

muscle strength.” (ECF No. 3-1 at 36, 78). The ALJ also notes Plaintiff’s use

of a cane decreased over time. (See id. at 37 (“He reported he was using the

cane less as time went on. For example, in February of 2023, the claimant

reported he was using his cane less and was working out regularly (Exhibit

17F-12, 16). By July of 2023, the claimant did not appear with the cane

(Exhibit 17F-8).”)). Because Plaintiff is not prescribed a cane and due to the

record evidence the ALJ cites to support her decision regarding the use of a

cane, Plaintiff failed to meet his burden in showing he required a cane to

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ambulate and substantial evidence in the record supports the ALJ’s decision

to exclude use of a cane in the RFC. See Johnson, 2017 WL 1105720.

4. Visual Impairments

Plaintiff argues the ALJ’s RFC assessment is void of any accommodation

for his severe visual impairments. (ECF No. 7 at 16). The Commissioner states

the “record does not support Plaintiff’s claim that the ALJ should have

included visual limitations in the RFC.” (ECF No. 9 at 11).

“Finding impairments severe at Step Two ‘does not mandate additional

limitations in the RFC.’” Linward Charles M. v. Kijakazi, No. 3:21-cv-2300,

2022 WL 17182077, at *3 (N.D. Tex. Nov. 22, 2022) (quoting Winston v.

Berryhill, No. 3:16-cv-419, 2017 WL 1196861, at *12–14 (N.D. Tex. Mar. 31,

2017)). ‘“The ALJ must clearly consider the severe impairments in

determining the claimant’s RFC, not necessarily assess limitations for each

severe impairment.’” Id. (quoting Winston, 2017 WL 1196861, at *13).

“Keeping in mind the differences between a Step Two severity finding and the

RFC assessment, an ALJ ‘does not err solely because [he or] she finds an

impairment “severe” at step two but does not attribute any limitation to that

impairment in assessing the claimant’s RFC.’” Id. (quoting Sarah B. v.

Berryhill, No. 1:17-cv-80, 2018 WL 3763837, at *9 (N.D. Tex. June 29, 2018)).

Here, the ALJ determined Plaintiff’s vision disorder is a severe

impairment at Step Two. (ECF No. 3-1 at 33). In the ALJ’s RFC assessment,

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the ALJ acknowledges Plaintiff has a history of cataracts and decreased vision.

(Id. at 36). The ALJ notes, Plaintiff “has exhibited decreased vision with 20/70

vision in both eyes without correction (Exhibit 4F). He had an eye examination

in June of 2021 that revealed age related cataracts. The examiner noted the

claimant needed glasses. His visual field was normal (Exhibit 6F-3).” (Id. at

38). The ALJ also refers to Dr. Kirkwood’s examinations of Plaintiff in which

Dr. Kirkwood “noted the claimant had 20/70 visual acuity in both eyes without

corrective lenses” and that “[t]he examiner did not see any effect of clouding in

the eyes.” (Id.).

Accordingly, the ALJ properly accommodated for Plaintiff’s vision

impairments in determining Plaintiff’s RFC, and Plaintiff has referred to no

objective medical evidence showing his visual impairment reduced his RFC

below what the ALJ found. See Linward Charles M., 2022 WL 17182077, at

*4.

5. Medical Source Opinion of Record

Plaintiff argues the ALJ’s RFC finding is not supported by any medical

source opinion of record and that the ALJ erred in interpreting the record

medical evidence. (ECF No. 7 at 16).

“While assessment of RFC is reserved for the agency, the Fifth Circuit

has clarified that the ALJ should consider a medical source opinion in arriving

at his conclusions.” Woods v. Barnhart, No. 3:08-cv-491, 2011 WL 2709869, at

27

*4 (S.D. Miss. June 24, 2011), report and recommendation adopted, No. 3:08-

cv-491, 2011 WL 2728320 (S.D. Miss. July 12, 2011) (citing Ripley v. Chater,

67 F.3d 552, 557 n. 23 (5th Cir. 1995)).

A “medical source statement” describing types of work that an

applicant is still capable of performing, “based on the medical

source’s findings,” may come from a treating physician, a

consultative physician or from a non-examining “state agency

medical and psychological consultants and other program

physicians,” who make determinations based on a review of

plaintiff’s medical records.

Id. (quoting 20 C.F.R § 404.1513).

Here, the ALJ considered evidence of Plaintiff’s physical and mental

impairments from several medical sources and referenced numerous medical

records in assessing Plaintiff’s RFC. Dr. Kirkwood completed two consultative

examinations of Plaintiff regarding his physical and mental limitations. (ECF

No. 3-1 at 37–38). Dr. Feldman completed a consultative examination with

respect to Plaintiff’s mental limitations. (Id. at 38–39). However, the ALJ

assigned no specific degree of persuasion or weight to these opinions because a

specific function by function assessment of Plaintiff’s abilities related to work

activities was not provided. (Id.). The ALJ did note that these opinions were

taken into account in determining the RFC and are not inconsistent with the

RFC. (Id.). Although the ALJ noted these medical sources did not explain

Plaintiff’s abilities related to work activities, the ALJ found the opinions of

state agency psychologists Dr. Nicoloff and Dr. Wolfe and state agency

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physicians Dr. Bedeau and Dr. Caviness somewhat persuasive. (Id. at 39). For

instance, the RFC assessment states, “[t]he State Agency physicians, Dr.

Veronica Bedeau and Dr. Alison Caviness, both opined the claimant can

perform a light range of work with limitations on his standing and walking to

four hours out of an eight-hour workday, in addition to postural,

communicative, and environmental limitations (Exhibits 1A, 4A).” (Id.). There

is not a complete lack of medical source opinion of record that the ALJ relied

upon in determining the RFC.

Accordingly, Plaintiff’s argument that the ALJ’s RFC finding is not

supported by any medical source opinion of record and that the ALJ erred in

interpreting the record medical evidence fails.

6. Hypothetical Question

Finally, Plaintiff argues “[b]ecause the ALJ fails to include all of

Plaintiff’s limitations in her RFC finding, even those specifically acknowledged

in the ALJ’ s decision, the ALJ also failed to present a complete hypothetical

question to the vocational expert concerning Plaintiff’s ability to perform other

work in the national economy.” (ECF No. 7 at 19). However, the only

impairment the ALJ did not adequately consider is Plaintiff’s back pain. As

such, upon remand, this issue will be addressed.

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IV. Conclusion

Based on the foregoing, the Court RECOMMENDS Commissioner’s

Motion for Summary Judgment (ECF No. 9) be DENIED IN PART as to the

ALJ’s evaluation of Plaintiffs back pain and GRANTED IN PART as to the

remaining arguments and Plaintiff's Motion for Summary Judgment (ECF No.

7) be GRANTED IN PART as to ALJ’s evaluation of Plaintiff's back pain and

DENIED IN PART as to the remaining arguments. The Court FURTHER

RECOMMENDS the case be REMANDED for further administrative

proceedings, consistent with this opinion.

The Clerk shall send copies of this Memorandum and Recommendation

to the respective parties who have fourteen days from the receipt thereof to file

written objections thereto pursuant to Federal Rule of Civil Procedure 72(b)

and General Order 2002-13. Failure to file written objections within the time

period mentioned shall bar an aggrieved party from attacking the factual

findings and legal conclusions on appeal.

SIGNED in Houston, Texas on August 8, 2025.

Ihdbet Ww Su<—

Richard W. Bennett

United States Magistrate Judge

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