# Opinion

> District Court, E.D. Louisiana · June 17, 2026

URL: https://www.frixlaw.com/law-library/cases/11346874

## Case

- **Full name:** Preston Lee v. Frank Bisignano, Commissioner of Social Security Administration
- **Court:** District Court, E.D. Louisiana
- **Decided:** June 17, 2026
- **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/11346874

## How later opinions describe it (automated extraction)

- finding that ability to work for short time periods does not constitute “substantial gainful activity” when claimant’s mental illness renders him incapable of maintaining employment for any length of time
- rejecting assertion that 38 total or partial missed days over a 20-month period rendered claimant incapable of sustained employment

## Opinion text

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

PRESTON LEE * CIVIL ACTION

VERSUS * NO. 25-2462 DIV. 2

FRANK BISIGNANO, COMMISSIONER OF * M.J. CURRAULT
SOCIAL SECURITY ADMINISTRATION

ORDER AND REASONS
Plaintiff Preston Lee seeks judicial review pursuant to 42 U.S.C. § 405(g) of the decision
of the Commissioner of the Social Security Administration (the “Commissioner”) denying his
application for social security disability insurance benefits under Title II and supplemental security
income under Title XVI of the Social Security Act (the “Act”). ECF No. 1; see also 42 U.S.C.
§§ 423, 1381a. The parties consented to the undersigned Magistrate Judge’s jurisdiction for
determination pursuant to 28 U.S.C. § 636(c). ECF No. 12.
I. PROCEDURAL BACKGROUND
Plaintiff Preston Lee, then a 47-year old man, filed an application for disability insurance
benefits (“DIB”) on May 31, 2022, and supplemental security income (“SSI”) on June 17, 2022.
ECF No. 10, Tr. at 198-237. His age classification at all relevant times was that of a “younger
person.” 20 C.F.R. §§ 404.1563(c), 416.963(c). Plaintiff alleges he is disabled due to heart attack,
diabetes, COPD, high blood pressure, PTSD, anxiety and depression, with disability commencing
on May 2, 2022. Tr. at 53, 60, 68, 79, 270, 288, 323, 331.
Plaintiff’s applications were denied at the initial level on February 27, 2023, and on
reconsideration on June 4, 2024. Id. at 52-87, 93-122. On June 11, 2024, Plaintiff requested a
hearing before an administrative law judge (“ALJ”). Id. at 123-25.
The administrative hearing was conducted on February 12, 2025. Tr. at 29-51; see also
171-87, 191-94. Plaintiff appeared and testified at the hearing, and he was represented by counsel
Eva Conner. Id. at 35-45. Christi Lamandre, an impartial vocational expert (“VE”), also appeared
and testified at the hearing. Id. at 45-53. On March 13, 2025, the ALJ issued a decision denying
Plaintiff’s applications. Id. at 10-28. Plaintiff requested review of the ALJ’s decision. Id. at 6-9,

195-97. The Appeals Council denied review on October 17, 2025, rendering the ALJ’s decision
the final decision of the Commissioner for purposes of this Court’s review. Id. at 1-5.
Plaintiff filed this matter on December 9, 2025. ECF No. 1. In accordance with the March
11, 2026, Scheduling Order, Plaintiff filed his brief in support of social security appeal, treated as
a summary judgment motion, on April 1, 2026. ECF Nos. 11, 14. The Commissioner filed an
opposition on May 13, 2026, and Plaintiff filed a reply on May 27, 2026. ECF Nos. 19, 20.
II. STATEMENT OF ISSUES ON APPEAL
Plaintiff seeks reversal of the ALJ’s decision and remand to the agency for further
administrative proceedings on the basis that the denial of his disability claim is not supported by

substantial evidence. ECF No. 1 ¶ 8. He identifies one issue for appeal: “The ALJ erred when
she failed to acknowledge or discuss vocational expert (VE) testimony that undermines her finding
that Plaintiff can work despite his demonstrated limitations caused by his absenteeism resulting
from hospitalizations and emergency room treatments.” ECF No. 14 at 1.
III. ALJ’s FINDINGS RELEVANT TO ISSUES ON APPEAL
The ALJ made the following relevant findings:
1. The claimant meets the insured status requirements of the Social Security Act
through December 31, 2026.

2. The claimant has not engaged in substantial gainful activity since May 2, 2022, the
alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: coronary artery disease,
diabetes mellitus, neuropathy, asthma, degenerative disc disease, and obesity (20
CFR 404.1520(c) and 416.920(c)).

4. The claimant 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 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925 and 416.926).

5. After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined in 20
CFR 404.1567(b) and 416.967(b) except the claimant is never able to climb ladders,
ropes, or scaffolds. He is occasionally able to climb ramps and stairs, balance,
stoop, kneel, crouch, and crawl. He must avoid even moderate exposure to
pulmonary irritants.

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and
416.965).

7. The claimant was born on October 1, 1975 and was 46 years old, which is defined
as a younger individual age 18-49, on the alleged disability onset date (20 CFR
404.1563 and 416.963).

8. The claimant has at least a high school education (20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not an issue in this case because the claimant’s past
relevant work is unskilled (20 CFR 404.1568 and 416.968).

10. Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the national
economy that the claimant can perform (20 CFR 404.1569, 404.1569a, 416.969,
and 416.969a).

11. The claimant has not been under a disability, as defined in the Social Security Act,
from May 2, 2022, through the date of this decision (20 CFR 404.1520(g) and
416.920(g)).

ECF No. 10, Tr. at 15, 17-18, 20-22.
IV. EVIDENCE IN THE RECORD
A. Factual Background
Plaintiff filed a claim on May 31, 2022, alleging disability due to heart attack, diabetes,
COPD, high blood pressure, PTSD, anxiety and depression, with an onset date of May 2, 2022.
ECF No. 10, Tr. at 53, 60, 68, 79, 270, 288, 323, 331. According to his Function Reports, Plaintiff
“sit[s] in a chair all day,” handles daily food preparation, cleans and does laundry, goes outside
weekly and shops for food monthly, but he does not do yard work because the heat hurts his chest.
Id. at 323-330; see also id. at 307-22. He also pays bills, counts change, and handles checking and
savings accounts (id. at 310, 318, 326), with inconsistent responses concerning his ability to follow

written and spoken instructions. Compare Tr. at 320, 328, with id. at 312. Plaintiff’s wife states
that they spend all their time together; they play cards, cook or just sit; he has no problems with
personal care; he prepares meals daily, does laundry, shops, and handles money. Id. at 280-87.
At the hearing, Plaintiff testified that he graduated from high school in special education
due to comprehension learning disability. Id. at 35. He worked full-time as a delivery driver for
Domino’s Pizza from 20171 through 2022 before he left for a job at Sonic. Id. at 35-36, 45. Shortly
after starting to work at Sonic, he had a heart attack. Id. at 36. He had three stents for blockages
but suffers from shortness of breath and chest pain with mild exertion. Id. at 36-37. He also has
asthma that he controls with inhalers and diabetes with neuropathy (tingling) in his feet. Id. 37-

38. Plaintiff testified that he also has back issues that limit his standing for long periods, vision
problems (constant blur) that impact his ability to drive and read, PTSD and psychosis, and trouble
focusing and concentrating. Id. at 39-40.
B. Medical Evidence
I have reviewed the medical records and the ALJ’s summary of the medical evidence. ECF
No. 10, Tr. 15-20, 384-1467. The ALJ’s summary is substantially correct and is incorporated
herein by reference, with the modifications, corrections and highlights as noted herein.

1 Plaintiff’s application indicates he started working at Domino’s in 2012, not 2017. Tr. at 272.
C. Vocational Expert Testimony
Vocational expert (“VE”) Christi Lamandre testified at the hearing, with a stipulation as to
her qualifications as a VE. ECF No. 10, Tr. 45-50. Lamandre testified that Plaintiff’s past work
as a pizza delivery man is “SVP of 2, unskilled work, and medium.” Id. at 45. The ALJ posed a
hypothetical of an individual of the same age, education, and work history as Plaintiff who can

occasionally lift and carry 20 pounds, frequently lift and carry 10 pounds, stand and walk for six
hours in an eight-hour day and sit for six hours in an eight-hour day, never climb ladders, ropes,
or scaffolds, occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl and
must avoid even moderate exposure to pulmonary irritants such as dust, fumes, odors and gases.
Id. at 46. Lamandre testified that such a person would be unable to perform Plaintiff’s past work,
but that hypothetical person could perform work as a cashier, toll collector, receptionist,
information clerk, and food preparation worker. Id. at 46-47.
The ALJ then modified the hypothetical to add that the individual had difficulty remaining
on task and pace throughout the day due to lack of concentration such that he would be off task

and pace for 15% of the work time. Id. at 47. In response, Lamandre testified that, with added
restriction, the individual would not be able to maintain full-time competitive employment without
accommodation. Id. at 47-48. The ALJ then asked the VE to consider a different modification to
the first hypothetical, adding that the individual can understand, remember and carry out work that
is simple, and he is able to concentrate, persist and remain on task and pace for the performance
of simple work and capable of occasional changes in the routine in the work setting. Id. at 48. In
response, Lamandre confirmed that the jobs previously identified would be viable. Id.
Plaintiff’s attorney then questioned the VE regarding tolerance for absences. In response,
Lamandre testified that absences of more than five days (not counting vacation days) in unskilled
jobs would typically require some accommodation. Id. at 49-50.
Following the hearing and in argument to the Appeals Council, Plaintiff’s attorney raised
the same argument asserted herein, specifically that Plaintiff should be found disabled because his

record of medical appointments and hospitalizations reflect that he would be absent more than five
days, and thus, could only perform the VE’s identified jobs with accommodation. Id. at 381-83.
V. ARGUMENTS ON APPEAL
Plaintiff argues on appeal that the ALJ erred in finding him not disabled because the VE
testified that more than five absences a year in the identified jobs would require an accommodation,
and the records reflect that, in 2002, Plaintiff had 13 “medical event days” (4 days impatient, 1
day ER, 8 days outpatient), in 2023, he had 13 days (3 required testing days, 3 ER visits, 7
outpatient), and in 2024, he had 42 days (20 physical therapy appointments, a 3 day hospitalization,
1 ER visit, 2 cardiac catheterization procedures, and 16 outpatient). ECF No. 14 at 4-5. Plaintiff
asserts that the ALJ was required to make a “Singletary finding”2 because the record reflected a

pattern of absenteeism caused by his medical treatment that is vocationally significant. Id. at 5.
In Opposition, the Commissioner argues that the Fifth Circuit’s decision in Jones v.
O’Malley, 107 F.4th 489 (5th Cir. 2024), is decisive and supports the ALJ’s determination. ECF
No. 19 at 5-8. The Commissioner argues that the ALJ is not bound to consider limitations not
adopted. Id. at 3. He further asserts that the ALJ noted and discussed Plaintiff’s past, completed
course of therapy and other appointments, but no evidence supported a finding that any ongoing
treatment would necessitate absences, as suggested by Plaintiff. Id. at 4-6.

2 Singletary v. Bowen, 798 F.2d 818 (5th Cir. 1986).
In Reply, Plaintiff distinguishes Jones3 and argues that, even excluding completed physical
therapy, he had 6 medical event days in 2023 and 7 days in 2024. ECF No. 20.
VI. APPLICABLE LAW AND ANALYSIS
A. Standard of Review
The role of the court on judicial review under § 405(g) is to determine whether the decision

is supported by substantial evidence on the record as a whole and whether the proper legal
standards were applied in evaluating the evidence.4 The court must affirm the Commissioner’s
determination to deny benefits unless it finds that the ALJ applied the incorrect legal standard or
that the ALJ’s determination is not supported by substantial evidence.5 This standard precludes
the court from reweighing the evidence or substituting its judgment for that of the administrative
fact finder.6 Despite this limited function, the court must scrutinize the record in its entirety to
determine the reasonableness of the decision reached and whether substantial evidence exists to
support the decision.7 Procedural perfection in administrative hearings, however, is not required;
a reviewing court may only vacate a judgment if the “substantial rights” of a party have been
affected.8

1. Substantial Evidence
Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion; it is more than a scintilla but less than a preponderance.9 The

3 Plaintiff’s initial memorandum fails to mention, much less address, Jones at all.
4 Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014) (quoting Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir.
2005)); Richard ex rel. Z.N.F. v. Astrue, 480 F. App’x 773, 776 (5th Cir. 2012) (citation omitted); Stringer v. Astrue,
465 F. App’x 361, 363 (5th Cir. 2012) (citing Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002)).
5 Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001).
6 Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000) (quoting Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999)); see
also Cook v. Heckler, 750 F.2d 391, 392 (5th Cir. 1985).
7 Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988).
8 Mays v. Bowen, 837 F.2d 1362, 1362-63 (5th Cir. 1988).
9 Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation omitted); Richard, 480 F. App’x at 776 (citing Perez, 415
F.3d at 461).
ALJ is entitled to make any finding that is supported by substantial evidence, regardless of whether
other conclusions are also permissible.10 A finding of “no substantial evidence” is appropriate
only if no credible evidentiary choices or medical findings support the decision.11 The
Commissioner, not courts, must resolve conflicts in the evidence, including weighing conflicting
testimony and determining witnesses’ credibility, and the court does not try any issues de novo.12

Any findings of fact by the Commissioner that are supported by substantial evidence are
conclusive.13 The court weighs four elements of proof when determining whether there is
substantial evidence of disability: (1) objective medical facts; (2) diagnoses and opinions of
treating and examining physicians; (3) the claimant’s subjective evidence of pain and disability;
and (4) the claimant’s age, education, and work history.14
2. Credibility Determinations
When a claimant gives subjective testimony, the ALJ has the responsibility to evaluate the
claimant’s credibility.15 To determine credibility, the ALJ must review the entire record and
express specific reasons supported by evidence in the case record for his credibility findings, but
the ALJ does not have to discuss every guiding regulatory factor.16 In this case, the ALJ found

that Plaintiff’s “medically determinable impairments could reasonably be expected to cause the
alleged symptoms; however, . . . [Plaintiff’s] statements concerning the intensity, persistence and

10 See Arkansas v. Oklahoma, 503 U.S. 91, 113 (1992).
11 Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000) (citation omitted).
12 Halterman ex rel. Halterman v. Colvin, 544 F. App’x 358, 360 (5th Cir. 2013) (citing Newton, 209 F.3d at 452).
13 Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995) (citing § 405(g)).
14 Chrisner v. Astrue, 249 F. App’x 354, 356 (5th Cir. 2007) (quoting Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir.
1991)); Perez, 415 F.3d at 462 (citation omitted).
15 Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002) (citations omitted).
16 Giles v. Astrue, 433 F. App’x 241, 249 (5th Cir. 2011) (citing Clari v. Barnhart, 214 F. App’x 479 (5th Cir. 2007)
(“The ALJ is not required to mechanically follow every guiding regulatory factor in articulating reasons for denying
claims or weighing credibility.”)).
limiting effects of these symptoms are not entirely consistent with the medical evidence and other
evidence in the record for the reasons explained in [her] decision.” ECF No. 10, Tr. at 18-19.
If the ALJ explains credibility findings and substantial evidence supports those findings,
the Court must affirm the credibility assessment.17 Because the ALJ is best suited to make a
credibility determination, the Court gives considerable deference to the ALJ’s findings if

substantial evidence supports those findings.18 The ALJ’s credibility determinations in this case
are supported by substantial evidence and will not be disturbed on judicial review.
B. Standard for Entitlement to Benefits
To be considered disabled and eligible for DIB, a claimant must show that he is unable to
perform substantial gainful activity because of a medically determinable physical or mental
impairment.19 A “physical or mental impairment” is “an impairment that results from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.”20 To qualify as a disability, the impairment must
be expected to result in death or have lasted (or is expected to last) for a continuous period of not
less than 12 months.21 The mere presence of an impairment, however, is not enough to establish

that one is suffering from a disability. Rather, a claimant is disabled only if he is “incapable of
engaging in any substantial gainful activity.”22 Thus, to be considered disabled and eligible for
benefits, a claimant must prove his disability by establishing a physical or mental impairment
lasting at least twelve months that prevents him from engaging in substantial gainful activity.23

17 Undheim v. Barnhart, 214 F. App’x 448, 450-51 (5th Cir. 2007).
18 McKnight v. Astrue, 340 F. App’x 176, 181 (5th Cir. 2009) (“Credibility determinations are generally entitled to
great deference . . . .” (citation omitted)).
19 See 42 U.S.C. §§ 416(i)(1), 423(d)(1)(A).
20 § 423(d)(3).
21 Id. § 423(d)(1)(A); see also Copeland, 771 F.3d at 923.
22 Anthony v. Sullivan, 954 F.2d 289, 293 (5th Cir. 1992) (citation modified) (quoting Milam v. Bowen, 782 F.2d 1284,
1286 (5th Cir. 1986)).
23 42 U.S.C. § 1382c(a)(3)(A); see also §§ 416(i)(1), 423(d)(1)(A).
The Commissioner has promulgated regulations that provide procedures for evaluating
disability claims.24
In evaluating a disability claim, the Commissioner conducts a five-step
sequential analysis to determine whether (1) the claimant is presently working;
(2) the claimant has a severe impairment; (3) the impairment meets or equals an
impairment listed in appendix 1 of the social security regulations; (4) the
impairment prevents the claimant from doing past relevant work; and (5) the
impairment prevents the claimant from doing any other substantial gainful
activity.25

The claimant has the burden of proof under the first four steps; if the claimant successfully carries
this burden, the burden shifts to the Commissioner at the fifth step to show that other substantial
gainful employment is available in the national economy that the claimant is capable of
performing.26 When the Commissioner shows that the claimant is capable of engaging in
alternative employment, the ultimate burden of persuasion shifts back to the claimant.27
1. Residual Functional Capacity
A claimant’s residual functional capacity (“RFC”) is the most a claimant can do despite
limitations.28 This assessment is used in steps 4 and 5 to determine the claimant's ability to perform
past relevant work or any other type of work.29 It is an administrative assessment made by the
ALJ based on the totality of the evidence in the record.30
When making the assessment, the ALJ should consider medical assessments, descriptions
by physicians, descriptions by the claimant, and any other evidence that shows any limitations on
the claimant's ability to work.31 The ALJ is to resolve any conflicts in the medical evidence after

24 20 C.F.R. §§ 404.1501-99 & Appendices, 416.901-98.
25 Audler v. Astrue, 501 F.3d 446, 447-48 (5th Cir. 2007) (citation omitted); accord. Newton, 209 F.3d at 453.
26 Audler, 501 F.2d at 448; Newton, 209 F.3d at 453.
27 Newton, 209 F.3d at 453; Plaisance v. Astrue, No. 08-5134, 2009 WL 4161086, at *2 (E.D. La. Nov. 23, 2009)
(citations omitted).
28 20 C.F.R. § 416.945(a)(1).
29 Perez, 415 F.3d at 462.
30 § 416.945; 20 C.F.R. § 416.946(c).
31 Hollis v. Bowen, 837 F.2d 1378, 1386-87 (5th Cir. 1988) (per curiam) (citation omitted).
evaluating the record.32 In assessing RFC, “the adjudicator must discuss the individual’s ability
to perform sustained work activities in an ordinary work setting on a regular and continuing basis
(i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule).”33 The issue of whether
the claimant can maintain employment for a significant period of time is subsumed in the analysis
regarding the claimant’s ability to obtain employment.34

The ALJ is not required, however, to incorporate limitations in the RFC that are not found
to be supported in the record.35 The ALJ is entitled to make any finding that is supported by
substantial evidence, regardless of whether other conclusions are also permissible. Claimant’s
disagreement with that finding, when that finding is supported by substantial evidence, is
insufficient to establish error as this Court may not reweigh the evidence in the record, try the
issues de novo or substitute its judgment for the Commissioner, even if the evidence weighs against
the Commissioner’s decision.36
2. The ALJ’s Discretion in Evaluating Medical Evidence

The ALJ provided a proper summary of the relevant medical evidence in the opinion, and
this summary accurately reflects the available records. ECF No. 10, Tr. at 15-20. An ALJ has
considerable discretion in assigning weight to medical opinions and may reject the opinion of any
physician when the evidence supports a contrary conclusion.37 An ALJ considers several factors
when assessing the weight to be given to medical opinions – the length of the treatment, frequency
of examination, nature and extent of treatment relationship, support of physician’s opinion

32 Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990) (citation omitted).
33 SSR 96-8p, 1996 WL 374184, at *7 (July 2, 1996).
34 Frank v. Barnhart, 326 F.3d 618, 619 (5th Cir. 2003) (“An ALJ may explore [whether claimant can hold a job for
significant period of time] in connection with the claimant’s physical diagnosis as well as in the ability-to-work
determination.”); Newton, 209 F.3d at 455 (citations omitted) (stating that the ALJ is free to reject the opinion of any
physician when the evidence supports a contrary conclusion).
35 Morris v. Bowen, 864 F.2d 333, 336 (5th Cir. 1988).
36 Halterman, 544 F. App’x at 360 (citing Newton, 209 F.3d at 452); Stringer, 465 F. App’x at 364.
37 Martinez v. Charter, 64 F.3d 172, 176 (5th Cir. 1995) (per curiam).
afforded by the medical evidence of record, consistency of opinion with record as a whole, and
specialization of the treating physician.38 “The ALJ is free to reject the opinion of any physician
when the evidence supports a contrary conclusion.”39
C. Plaintiff’s Appeal
At step 1, the ALJ determined that Plaintiff meets the insured status requirements through

December 31, 2026, and that he has not engaged in substantial gainful activity since May 2, 2022.
ECF No. 10, Tr. at 15. At step 2, the ALJ found severe medically determinable impairments of
coronary artery disease, diabetes mellitus, neuropathy, asthma, degenerative disc disease, and
obesity (20 C.F.R. §§ 404.1520(c) and 416.920(c)). Id. at 15-17. At step 3, the ALJ found that,
considering all of Plaintiff’s medically determinable impairments, he did not have an impairment
or combination of impairments that meets or medically equals the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925 and 416.926). Id. at 17.

Before proceeding to step 4, the ALJ determined that Plaintiff has the RFC to perform light
work as defined in 20 CFR §§ 404.1567(b) and 416.967(b) except he is never able to climb ladders,
ropes, or scaffolds; he can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and
crawl; and he must avoid even moderate exposure to pulmonary irritants. Id. at 18. Based on that
RFC finding, the ALJ determined that Plaintiff is unable to perform past relevant work. Id. at 20.
Based on the VE’s testimony and identification of several occupations that Plaintiff would be able
to perform, the ALJ determined that Plaintiff can make a successful adjustment to other work that
exists in significant numbers in the national economy and thus is not disabled. Id. at 21-22.

38 Newton, 209 F.3d at 456 (citing 20 C.F.R. § 404.1527(c)).
39 Id. at 455 (citation modified).
Plaintiff does not object to the ALJ’s analysis or conclusions at steps one through three or
her RFC finding. ECF No. 14 at 2. Rather, he objects only to the ALJ’s failure to expressly
address the VE’s testimony that absences of more than five days in unskilled jobs such as those
identified would require some accommodation. Id. at 4. Due to his past absences, Plaintiff argues
he should be found disabled.

In assessing disability, a finding that a claimant can engage in substantial gainful activity
requires more than determining that jobs exist that the claimant can physically perform; it also
requires a determination that the claimant can hold whatever job for a significant period of time.40
Although Singletary involved a claimant with a mental illness, in Watson v. Barnhart, 288 F.3d
212 (5th Cir. 2002), the Fifth Circuit held that the same rule applies to physical disability cases.41
This inquiry entails consideration of whether any necessary medical treatment would interrupt the
ability to perform a normal, eight-hour workday.42 The ALJ need not, however, articulate a
separate and distinct finding that the claimant can maintain a job over a sustained period of time
in every case; rather, it is necessary only in rare circumstances because that issue is ordinarily
subsumed in the analysis regarding the claimant's ability to obtain employment:43 “We do not

understand Watson v. Barnhart . . . , to require an explicit finding in every case that the claimant
can not only engage in substantial gainful activity but maintain that employment as well.”44
Moreover, the treatment (and related absences) that must be considered is that which is
current and on-going.45 Infrequent medical appointments or those unrelated to any ongoing course

40 Singletary, 798 F.2d at 823 (finding that ability to work for short time periods does not constitute “substantial gainful
activity” when claimant’s mental illness renders him incapable of maintaining employment for any length of time).
41 288 F.3d at 217-18.
42 Newton, 209 F.3d at 459.
43 Frank, 326 F.3d at 620-21 ; Weimer v. Astrue, 284 F. App'x 129, 135 (5th Cir. 2008); Patterson v. Astrue, 324 F.
App'x 419, 422 (5th Cir. 2009).
44 Dunbar v. Barnhart, 330 F.3d 670, 672 (5th Cir. 2003) (per curiam).
45 Sly v. Kijakazi, No. 21-208, 2022 WL 2082318, at *3 (S.D. Miss. May 24, 2022), R.&R. adopted, 2022 WL 2079874
(S.D. Miss. June 9, 2022).
of treatment need not be considered in the RFC analysis.46 As the Fifth Circuit most recently
explained in Jones:
Our later cases have clarified that “nothing in Watson suggests that the ALJ must
make a specific finding regarding the claimant's ability to maintain employment in
every case.” Rather, “Watson requires a situation in which, by its nature, the
claimant's physical ailment waxes and wanes in its manifestation of disabling
symptoms.” And the claimant's evidence must be “such that his ability to maintain
employment was not adequately taken into account in his RFC . . . determination.”
A witness’ testimony that a claimant had “good days and bad days,” and that the
claimant's pain varies in intensity or “wax[es] and wane[s] between epidural
injections,” does not meet the requisite standard.47

The court then distinguished prior cases, noting that Epps v. Harris, 624 F.2d 1267 (5th Cir. 1980),
concerned the ALJ’s failure to take into account the significant interruptions that the treatment
regimen (i.e., traction three or four times daily to alleviate pain) would have on a normal, eight-
hour work day and Newton v. Apfel, 209 F.3d 448 (5th Cir. 2000), concerned on-going treatment
that required frequent doctor and hospital visits and caused the claimant to sleep for several hours
during the day.48
Plaintiff has not established that his case presents circumstances under which the ALJ is
required to make a separate finding that he is able to maintain employment over a significant period
of time. As in Jones, Plaintiff has not shown that any on-going treatment requirements adversely
affected his attendance or ability to work on a sustained basis. Rather, he has simply counted the
number of days involving “medical events,” without regard to the reason for the visit, the length
of any visit, or the ability to schedule same during non-working hours.49 Further, Plaintiff does

46 See Pickens v. Comm'r of Soc. Sec. Admin., No. 19-895, 2022 WL 18107264, at *10 (S.D. Miss. Dec. 12, 2022)
(holding that the ALJ was not required to address the frequency of the claimant's medical appointments because the
claimant's treatment during the adjudicatory period was minimal), R.&R. adopted, 2023 WL 27892 (S.D. Miss. Jan.
3, 2023).
47 107 F.4th at 498-99 (alteration in original).
48 Id. at 499 (rejecting assertion that 38 total or partial missed days over a 20-month period rendered claimant incapable
of sustained employment).
49 ECF No. 10, Tr. at 381-83; ECF No. 14 at 4-5; ECF No. 20 at 1-2. Jones v. Kijakazi, No. 22-443, 2023 WL 6284851,
*10 (E.D. La. Sept. 26, 2023) (rejecting suggestion that claimant with 38 medical visits over 20 months could not
not suggest that these “medical events” resulted from or were related to any ongoing treatment or
anticipated course of treatment.50 “[T]he mere possibility of [medical treatment] at some
undetermined future time does not automatically render [a claimant] presently incapable of
sustained employment.”51 In the absence of any demonstrated absences related to on-going
treatment that would impact attendance or cause excessive absences, the ALJ need not explicitly

address Plaintiff’s past medical encounters for various issues.
The ALJ applied the correct legal standard and her finding that, considering Plaintiff’s age,
education, work experience, and residual functional capacity, he can perform jobs that exist in
significant numbers in the national economy is supported by substantial evidence. In the absence
of any identified ongoing treatment needs impacting attendance, the ALJ had no reason to
explicitly address the impact any such absences on Plaintiff’s ability to maintain employment.
Because her assessment of Plaintiff’s RFC and ability to do “other work” is supported by
substantial evidence, and she utilized proper legal standards, the ALJ did not err in her finding that
Plaintiff is not disabled.

VII. CONCLUSION

Plaintiff’s efforts to distinguish Jones fails. He has not demonstrated that he is disabled
due to absenteeism as he fails to show that his “medical events” are related to any ongoing,
continuing treatment. The ALJ applied the appropriate legal standards, and substantial evidence
supports her decision that Plaintiff has the ability to perform jobs that exist in significant numbers

sustain employment where nothing in the record establishes the visits could not have been scheduled around working
hours), aff’d sub nom., Jones v. O’Malley, 107 F.4th 489 (5th Cir. 2024).
50 Plaintiff’s “medical events” are quite varied. See, e,g, ECF No. 10, Tr. 429-31(presenting with shortness of breath,
productive cough, and generalized body aches), 444-45, 470-81 (right knee pain diagnosed as early osteoarthritis),
738 (presenting with cough, sinus and sore throat).
51 Jones, 107 F.4th at 499.
in the national economy. Therefore, Plaintiff is not disabled as defined by the Act. The asserted
error is without merit.
Accordingly, for the foregoing reasons,
IT IS ORDERED that Plaintiffs motion (ECF Nos. 1, 14) be DENIED and that the Complaint
be DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, this 17th of June, 2026.

oe Milly CURRAULT
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11346874. Public record. Not legal advice.