The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
E.M.Z.,1 §
§
Plaintiff, §
§
v. § 3:26-CV-0161-BR
§
COMMISSIONER, SOCIAL SECURITY §
ADMINISTRATION, §
§
Defendant. §
MEMORANDUM OPINION AND ORDER AFFIRMING THE DECISION
OF THE COMMISSIONER OF SOCIAL SECURITY
Pursuant to 42 U.S.C. § 405(g), Plaintiff seeks judicial review of a decision by the
Commissioner of Social Security, who denied Plaintiff’s application for disability insurance
benefits under Title II2 of the Social Security Act (“the Act”). (ECF 1 and ECF 7-1 at 16).
Proceeding pro se, Plaintiff challenges the Commissioner’s decision on multiple grounds. (See
ECF 9 at 1–2).
Because, for the reasons that follow, Plaintiff has not shown that he was prejudiced by the
ALJ either failing to apply the correct legal standards or to support her decision with substantial
evidence, the Commissioner’s decision is AFFIRMED.
1 It is the undersigned’s practice to identify the plaintiff using only the first and last initial in filings in social security
disability cases. This ensures that the public maintains access to the opinions (in compliance with Rule 5.2(c)(2)(B)
of the Federal Rules of Civil Procedure and the E-Government Act of 2002) while still protecting the privacy of non-
government parties’ identities within the opinion. See U.S. Jud. Conf. Comm. on Ct. Admin. and Case Mgmt., Privacy
Concern Regarding Social Security and Immigration Opinions, May 1, 2018 (memorandum).
2 42 U.S.C. §§ 401–33.
I. PLAINTIFF’S CONDITION
Plaintiff was born in May of 19683 and did not finish high school; he has some college
education but no degree. (ECF 7-1 at 24, 76–77).4 He suffers from back and shoulder pain that is
complicated by degenerative disc disease, an osteochondroma (i.e., a benign bone tumor) on his
left femur, another osteochondroma that has undergone surgical excision, fatty liver disease
(“hepatic steatosis”), diabetes mellitus, bilateral hernias, and obesity. (Id. at 19–21). His brief
alleges the severity of his pain significantly restricts his mobility and his regular daily activities.
(ECF 9 at 8–10).
Plaintiff worked as a self-employed forklift repairman until January 5, 2017, when his pain
became so great that he could no longer perform the necessary activities. (ECF 7-1 at 19). After
that time, ownership of the business transferred to his wife, and his work has been limited to
answering phone calls and relaying messages to and from customers. (Id. at 22, 24).
II. PROCEDURAL BACKGROUND
Plaintiff initially filed the disputed application to the Social Security Administration (the
“Agency”) on June 19, 2020, alleging disability beginning January 5, 2017. (ECF 7-1 at 94). After
state agency denials of his claim both initially (id. at 93–105) and upon reconsideration (id.
at 106–112), Plaintiff sought review of his application by an Administrative Law Judge (“ALJ”)
(id. at 173–76). After a telephonic hearing (id. at 72–92), the first ALJ assigned to his case issued
an unfavorable decision on March 8, 2023. (Id. at 113–125).
3 Unless otherwise specified, facts in this section are taken from the factual findings of the ALJ, which, as further
explained below, must be affirmed if they are supported by any substantial evidence.
4 Most pages in the administrative record (ECF 13) have been marked with multiple different, inconsistent page
numbers by the various systems that produced the records in question; citations in this Opinion are not to these internal
page numbers, but are rather to the page numbers generated by the Court’s electronic case filing (“ECF”) system,
which can be found at the top of the page when a filing is accessed through ECF or PACER.
Plaintiff successfully petitioned for review to the Social Security Administration Appeals
Council, which vacated the unfavorable decision, remanding the Plaintiff’s claim for rehearing.
(Id. at 129–33). Specifically, the Appeals Council noted that the decision was issued two months
before Plaintiff turned 55 in May of 2023. (Id. at 131). The Social Security Regulations5 divide
claimants into categories by age, one of which runs from age 50 to 54 and another of which runs
from age 55 to 60. 20 C.F.R. § 1563(d)–(e). The Appeals Council vacated the ALJ’s decision
because it did not take into consideration the impending change in age category, or explain how it
impacted Plaintiff’s disability status. (ECF 7-1 at 131–32).
On remand, the same ALJ held a new hearing (id. at 61–71) and issued a partially favorable
decision on May 21, 2024 (id. at 134–47). In this decision, the ALJ found that Plaintiff had not
been disabled from his alleged disability onset date, but that he became disabled on January 1,
2023. (Id. at 145–47). To achieve that result, the ALJ applied Social Security regulations
“non-mechanically” and evaluated Plaintiff as if he turned 55 in January of 2023, rather than May
of 2023. (Id. at 145). The result was a decision that would have awarded benefits beginning
approximately six years after Plaintiff was asking them to begin. (Id. at 145–47).
Because he maintains that he should be awarded benefits beginning in 2017, Plaintiff again
petitioned for review by the Appeals Council. (Id. at 260–62). The Appeals Council, however,
determined that the ALJ had erred in Plaintiff’s favor6 in multiple ways. (Id. at 154–58).
Specifically, the ALJ had held that Plaintiff’s earnings during the period for which he sought
5 The Agency has the authority to promulgate regulations implementing the Act under 42 U.S.C. § 405(a). In addition
to traditional notice-and-comment regulations issued according to the Administrative Procedure Act, 5 U.S.C. §
553(b)–(c), the Social Security Administration also publishes statements of policy or interpretation known as Social
Security Rulings (each an “SSR”). 20 C.F.R. § 402.160(b)(1) (effective January 17, 2025; previously codified at 20
C.F.R. § 402.35).
6 The Appeals Council began its order of remand by noting that the ALJ had informed Plaintiff that any appeal of the
partially-favorable decision would result in a review of the entire record and could lead the Appeals Council to vacate
the award of benefits. (ECF 7-1 at 156; see id. at 135).
disability benefits created a presumption that he was not disabled, but instead of evaluating that
presumption, the ALJ proceeded through the remainder of the analysis “out of an abundance of
caution.” (Id. at 156–57; see id. at 139–40). Second, the ALJ gave no reason why January 1, 2023
should be considered the relevant date instead of Plaintiff’s actual birthday, which had passed more
than a year before the ALJ’s decision issued. (Id. at 157; see id. at 145). Finally, though the Appeals
Council found no fault resulting from the fact that the same ALJ had issued both prior decisions,
it determined that the case should be assigned to a new ALJ moving forward. (Id. at 158).
The new ALJ, Judge Julie Nestler, held a second telephonic hearing, at which a vocational
expert and Plaintiff, who—as in the instant judicial proceedings—at all times represented himself
pro se, both testified. (Id. at 32–60). Judge Nestler then issued, on August 27, 2025, a complete
denial of his application for disability. (Id. at 13–26). Plaintiff once again appealed the unfavorable
decision to the Appeals Council, which this time declined to disturb the ALJ’s findings. (Id.
at 6–10).
The Appeals Council’s December 12, 2025 denial of the request to review Judge Nestler’s
decision was the final decision of the Commissioner. (Id. at 5–8); see 42 U.S.C. §§ 405(g),
1383(c)(3) (establishing the subject matter jurisdiction of United States District Courts to review
final decisions of the Commissioner) and Kneeland v. Berryhill, 850 F.3d 749, 755 (5th Cir. 2017)
(confirming that the Appeals Council declining to review an ALJ decision establishes that ALJ
decision as final). Plaintiff filed the instant action on January 21, 2026. (ECF 1).
Pursuant to the Northern District of Texas Special Order No. 3-350 (Sep. 11, 2023), this
case was originally assigned to the undersigned United States Magistrate Judge to serve as
presiding judge. Though notified of the right to withhold consent to the undersigned’s jurisdiction
(see ECF 2), neither party indicated non-consent, and the undersigned accordingly issues this
Order and the associated Judgment pursuant to 28 U.S.C. § 636(c).
III. APPLICABLE LAW
A person may qualify for or disability insurance benefits under the Act if they are disabled.
42 U.S.C. §§ 423(a)(1). A person is disabled according to the terms of the Act if they are unable
to “engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 416(i)(1)(A),
423(d)(1)(A). “‘Substantial gainful activity’ is defined as a work activity involving significant
physical or mental abilities for pay or profit.” Masterson v. Barnhart, 309 F.3d 267, 271 n.2 (5th
Cir. 2002); accord 20 C.F.R. §§ 404.1572(a)–(b).
ALJs use a standardized framework to determine whether an applicant is disabled under
the Act:
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). Before proceeding to steps four and five,
the ALJ must assess a claimant’s residual functional capacity (“RFC”). Perez v. Barnhart, 415
F.3d 457, 461 (5th Cir. 2005). RFC is defined as “the most [a claimant] can still do despite [the
claimant’s] limitations.” 20 C.F.R. §§ 404.1545(a)(1).
The plaintiff bears the burden of proof in establishing a disability through the first four
steps of the analysis; at the fifth step, the burden shifts to the ALJ and the Agency to show that
there is other substantial work in the national economy that the plaintiff is capable of performing.
Audler, 501 F.3d at 448; Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014). 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 55, 58 (5th Cir. 1987) (citing Barajas v. Heckler, 738 F.2.d
641, 643 (5th Cir. 1984) (per curiam)).
A. Standard of Review
The Act grants United States District Courts the jurisdiction to review final decisions of
the Agency. 42 U.S.C. § 405(g). When reviewing disability determinations made by the
Commissioner, a court is “limited to two inquiries: whether substantial evidence supports the
ALJ’s decision, and whether the ALJ applied the proper legal standards when evaluating the
evidence.” Taylor v. Astrue, 706 F.3d 600, 602 (5th Cir. 2012). These limitations are imposed by
statute:
The findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive . . . and where a claim has been denied by
the Commissioner . . ., the Court shall review only the question of conformity with
[Agency] regulations and the validity of such regulations.
42 U.S.C. § 405(g). If the ALJ fails to apply the proper legal standard, a denial must be remanded
and reconsidered. Moore v. Sullivan, 895 F.2d 1065, 1070 (5th Cir. 1990). If the ALJ applies the
proper standards, however, and relies on any substantial evidence, the decision must be upheld. Id.
“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) (cleaned up). “It must do more
than create a suspicion of the existence of the fact to be established[.]” Hames v. Heckler, 707 F.2d
162, 164 (5th Cir. 1983). The reviewing court may not reweigh evidence or substitute its own
judgment for that of the Commissioner, even if the court determines the evidence preponderates
toward a different finding. Hardman, 820 F.3d at 151. Conflicts in the evidence are resolved by
the Commissioner, not the courts. Laffoon v. Califano, 558 F.2d 253, 254 (5th Cir. 1977).
Even a decision unsupported by substantial evidence will not always be vacated or
reversed. An error is harmless and will not result in remand “when it is inconceivable that a
different administrative conclusion would have been reached even if the ALJ did not err.” Keel v.
Saul, 986 F.3d 551, 556 (5th Cir. 2021).7 In short, a decision denying Social Security disability
benefits is entitled to great deference and will only be overruled if the correct legal standards were
not applied, or if the decision turned on a conclusion for which there was no substantial evidence.
B. Substantial Gainful Activity
As noted above, the first step of the five-step process is to determine whether a claimant is
currently working. A claimant cannot be considered disabled if they are presently engaged in
“substantial gainful activity,” which is defined as a work activity involving significant physical or
mental abilities for pay or profit. 42 U.S.C. §§ 416(i)(1)(A), 423(d)(1)(A); Masterson, 309 F.3d at
271 n.2; and 20 C.F.R. §§ 404.1572(a)–(b). This is a two-prong test; work is “substantial” if it
involves significant activities or abilities, and it is “gainful” if it results in earnings above a certain
threshold. Copeland, 771 F.3d at 924–25.
The Social Security regulations establish a method for calculating the earnings threshold
that will ordinarily show gainfulness. See 20 C.F.R. § 404.1574(b)(2). This calculation takes a
$700.00 baseline and multiplies it by the ratio of a modern wage index to the national average
wage index for 1998. Id. at 404.1574(b)(2)(ii)(B). The Agency publishes the resulting thresholds
by year in the Program Operations Manual System (“POMS”). Tables of SGA Earnings Guidelines
7 Failure to apply the correct legal standard can also be a harmless error; Keel itself upheld the harmless application
of an erroneous step-two “severity” standard. Keel, 986 F.3d at 555–56. However, because an “ALJ’s decision must
stand or fall with the reasons set forth in the ALJ’s decision[,]” a failure to apply the correct legal standard can only
be sustained as a harmless error if sufficient reasoning is articulated in his decision to support it under the legal standard
that he failed to apply. Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000).
and Effective dates Based on Year of Work Activity, SSA POMS DI 10501.015,
https://secure.ssa.gov/apps10/poms.nsf/lnx/0410501015 (last accessed July 15, 2026).
With some exceptions, a claimant with earnings above the applicable threshold will be
considered to have engaged in substantial gainful activity, and a claimant without such earnings
will not. 20 C.F.R. §§ 404.1574(b)(2), 404.1574(b)(3)(i); Copeland, 771 F.3d at 924–27. The first
exception applies to claimants without earnings, and it comes into play when “there is evidence
indicating that [they] may be engaging in substantial gainful activity” despite their lack of earnings
above the threshold. 20 C.F.R. § 404.1574(b)(3)(ii).8 The second exception applies to claimants
with earnings, and it triggers when such a claimant is “in a position to control when earnings are
paid . . . or the amount of wages paid[.]” Id.9
When an exception to the general rule has been triggered, the regulations list two examples
of other information that an ALJ will consider to determine whether a claimant has engaged in
substantial gainful activity. The first is whether the claimant’s “work is comparable to that of
unimpaired people in [the claimant’s] community who are doing the same or similar
occupations[,]” and the second is whether the claimant’s “work, although significantly less than
that done by unimpaired people, is clearly worth the amounts” constituting the applicable earnings
thresholds. Id. at 404.1574(b)(3)(ii)(A)–(B). These two examples of “other information” are not
exhaustive. Copeland, 771 F.3d at 925.
8 For a hypothetical illustrative of the purpose behind this exception, consider a claimant who could receive wages
above the threshold, but who works for an employer that underpays them. By finding such a claimant has not engaged
in substantial gainful activity and paying out benefits to them, the Agency would effectively subsidize the employer’s
choice to underpay the claimant. See Barnhart v. Walton, 535 U.S. 212, 225 (2002) (recognizing that the Agency
established another subsection of this regulation in part to address “the problem of work disincentives”).
9 To the same end as the hypothetical in the previous footnote, consider an employer who, recognizing a claimant’s
impairments and wanting to contribute to their maintenance, pays the claimant higher wages than they would pay a
non-disabled employee for the same work. By withholding benefits from such a claimant because they are engaged in
gainful activity, the Agency would effectively penalize the employer’s efforts to employ individuals with disabilities.
C. Self-Employment as Substantial Gainful Activity
When a claimant’s earnings result from self-employment, the regulations establish three
further tests that an ALJ will use, in order, to determine whether that self-employment constitutes
substantial gainful activity. 20 C.F.R. § 404.1575(a)(2). These tests are intended to determine “the
value of [the claimant’s] services to the business regardless of whether [they] receive an immediate
income for [those] services.” Id.
The first test is whether the claimant “render[s] services that are significant to the operation
of the business and receive[s] substantial income from the business.” Id. at 404.1575(a)(2)(i). If a
claimant operates a business entirely by themselves, any services rendered are “significant,” and
if the business “involves the services of more than one person,” the claimant’s services are
“significant” if the claimant “contributes more than half the total time required for the management
of the business, or [renders] management services for more than 45 hours a month[.]” Id. at
404.1575(b)(1).10 The claimant’s income is “substantial” under this test if, after deducting certain
expenses related to the claimant’s self-employment, the amount they earn is above the thresholds
used to determine substantial gainful employment generally, or else is comparable to the amount
they earned before becoming impaired or to the amount earned by similarly situated unimpaired
individuals. Id. at 404.1575(c).
If a claimant has not engaged in substantial gainful activity under the first test, the ALJ
proceeds to the second and third tests. Id. at 404.1575(a)(2). The second test asks whether a
claimant’s “work activity, in terms of factors such as hours, skills, energy output, efficiency,
duties, and responsibilities, is comparable to that of unimpaired individuals in your community
10 There is another prong to the definition of “significant services” in this test that only applies to farm landlords and
is not at issue in this case. 20 C.F.R. § 404.1575(b)(2).
who are” similarly situated. Id. at 404.1575(a)(2)(ii). The third asks whether their “work activity,
although not comparable to that of unimpaired individuals, is clearly worth the” ordinary threshold
amounts “when considered in terms of its value to the business, or when compared to the salary
that an owner would pay to an employee” for the same work. Id. at 404.1575(a)(2)(iii).
D. The ALJ’s Obligation to Develop the Record
Unlike the adversarial proceedings in Article III courts, proceedings before an ALJ are
inquisitorial. Carr v. Saul, 593 U.S. 83, 89–90 (2021). The role of an ALJ is not to neutrally
adjudicate the better of two competing sides, but is rather to “ensure that [the] administrative
process is fair to claimants by conducting de novo, informal, non-adversarial hearings[.]” SSR 13-
1p, 2013 WL 633939, *2; accord 20 C.F.R. § 404.900(b). This sometimes translates to an
obligation to seek out evidence beyond what is submitted by the applicant. “The ALJ has a duty
to develop the facts fully and fairly relating to an applicant’s claim for disability benefits. If the
ALJ does not satisfy his duty, his decision is not substantially justified.” Ripley v. Chater, 67 F.3d
552, 557 (5th Cir. 1995) (internal citations and footnotes omitted).
The regulations detail the process that an ALJ will generally follow to discharge their duty
to develop the record. The Agency will make an initial request for medical records, and then will
follow up on that request once within ten to twenty calendar days, and will wait for at least ten
calendar days from the follow-up for the source to provide the requested records. 20 C.F.R.
§ 404.1512(b)(i).
The Fifth Circuit has explained that the obligation on the ALJ is not necessarily to obtain
all of a claimant’s medical records, but is rather to develop all relevant facts. Sun v. Colvin, 793
F.3d 502, 509–10 (5th Cir. 2015). For example, an ALJ can make up for absent medical records
by questioning a claimant in pursuit of the missing information. Id. Finally, as in other contexts,
an ALJ’s failure to develop the record does not require reversal if that failure was harmless and
did not prejudice the claimant. Jones v. Astrue, 691 F.3d 730, 733 (5th Cir. 2012).
E. A Claimant’s Symptoms
The Agency has established a two-step test for evaluating a claimant’s own descriptions or
statements of their impairments.11 SSR 16-3p, 2017 WL 5180304, *3; accord 20 C.F.R.
§ 404.1529; see also Dunbar v. Barnhart, 330 F.3d 670, 672 (5th Cir. 2003) (per curiam) (“The
ALJ must consider subjective evidence of pain, but it is within his discretion to determine the
pain’s disabling nature.”) (quoting Wren v. Sullivan, 925 F.2d 123, 128 (5th Cir. 1991)).
The first step requires the ALJ to determine whether the claimant’s medically determinable
impairments could reasonably be expected to produce the claimant’s symptoms. SSR 16-3p, 2017
WL 5180304, at *3. The second step is for the ALJ to evaluate the intensity and persistence of a
claimant’s symptoms, and it requires the ALJ to determine “whether an individual’s statements
about the intensity, persistence, and limiting effects of his or her symptoms are consistent with the
medical signs and laboratory findings of record.” SSR 16-3p, 2017 WL 5180304, at *5. If the
claimant’s statements about their impairments are inconsistent with the objective medical and
other evidence, the ALJ will find the claimant’s symptoms less likely to be disabling. Id. at *8;
accord 20 C.F.R. §§ 404.1529(c)(4).
IV. THE ALJ’S FINDINGS
In reaching the conclusion that Plaintiff was not disabled, the ALJ found that Plaintiff’s
earnings history made him eligible for coverage through December 31, 2028 (Plaintiff’s “date last
insured”). (ECF 7-1 at 16). At step one of the five-step process, the ALJ found that Plaintiff,
through self-employment, had engaged in substantial gainful activity from January of 2018
11 See 20 C.F.R. §§ 404.1502(i) (defining “symptoms” as “your own description of your physical or mental
impairment”).
through December of 2023. (Id. at 18). Accordingly, the ALJ’s subsequent analysis was limited to
whether Plaintiff had been under a disability for any twelve-month period not covered by that
window of substantial gainful activity. (Id. at 19).
At step two, the ALJ found that Plaintiff had the severe impairments of lumbar spondylosis,
left femur osteochondroma, osteochondroma of the right leg (status post surgical excision), hepatic
steatosis, diabetes mellitus, bilateral inguinal hernias, and obesity. (Id. at 19–21). At step three, the
ALJ determined that these impairments were not, singularly or in combination, equivalent to any
disabling impairment listed in the applicable regulations. (Id. at 21).
The ALJ then assessed Plaintiff as having:
the residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) except he can [only] occasionally climb ladders, ropes and scaffolds.
He can frequently [but not constantly] climb ramps and/or stairs. He can [only]
occasionally balance as defined in the Dictionary of Occupational Titles and
Selected Characteristics of Occupations. He can [only] occasionally stoop, kneel,
crouch and crawl.
(Id. at 21). In making this RFC finding, the ALJ found that Plaintiff’s statements about his own
symptoms could reasonably be caused by his impairments, but that the evidence was only partially
consistent with the alleged “intensity, persistence, and limiting effects of these symptoms[.]” (Id.
at 21–22). The ALJ also found that the medical opinions of the state agency medical consultants
which limited Plaintiff to performing medium work were only partially persuasive, because
evidence submitted at Plaintiff’s hearing indicated the more extreme limitations included in his
RFC. (Id. at 23).
At step four in the five-step process, the ALJ found that Plaintiff was capable of performing
his past relevant work as a “Dispatcher, Maintenance Service,” which is defined in the Dictionary
of Occupational Titles (the “DOT”) at section 239.367-014. (Id. at 24). Relying on testimony from
the vocational expert and from Plaintiff, the ALJ found that such work “does not require the
performance of work-related activities precluded by” Plaintiff’s RFC, and that Plaintiff could
perform such work both as he had actually done in the past, and as it was generally performed in
the national economy. (Id.).
At step five, the ALJ further found that Plaintiff’s age, education, work experience, and
RFC were such that other jobs also existed in significant numbers in the national economy that
Plaintiff could perform. (Id.). Specifically, the vocational expert identified three such jobs: cashier,
laundry sorter, and produce sorter. (Id. at 24–25). Accordingly, the ALJ found that the Plaintiff
had not been disabled for any continuous twelve-month period between January 5, 2017 and
August 27, 2025. (Id. at 26).
V. ANALYSIS
Plaintiff contends that the ALJ erred by failing to obtain records from a medical provider,
“Silver Chiropractic” (ECF 9 at 12–13), by improperly evaluating Plaintiff’s self-employment
earnings (id. at 6–8), by not fully crediting his symptoms when determining his RFC (id. at 8–12),
by finding that Plaintiff could perform past relevant work (id. at 4–6), and, as a result of the other
alleged errors, by incorrectly applying the Medical-Vocational Guidelines (id. at 13). Defendant
has responded that the ALJ applied the correct legal standards and that her decision was in all
respects supported by substantial evidence. (See generally ECF 10).
In Plaintiff’s reply, he adds a new request for the Court to remand for the Agency to
consider new evidence. (ECF 11 at 6–7).12 Specifically, Plaintiff mentions a hospitalization for
12 As the Supreme Court has explained, two different sentences in 42 U.S.C. § 405(g) establish two different kinds of
remand from the district courts back to the Agency. Melkonyan v. Sullivan, 501 U.S. 89, 97–98 (1991). Applicable
here, sentence six remands for consideration of new evidence, unless requested by the Commissioner before an answer
has been filed, are limited to circumstances in which there is both (1) new material evidence and (2) good cause for
the failure to incorporate that evidence in prior proceedings. 28 U.S.C. § 405(g); see Istre v. Apfel, 208 F.3d 517, 519–
20 (5th Cir. 2000) (citing Melkonyan, 501 U.S. at 98–99). The inquiry into “good cause” concerns whether there is a
“legitimate reason why this evidence was not produced earlier.” Id. at 556.
stroke in June of 2025 that was not included in the record because the Plaintiff inadvertently failed
to submit it and did not realize it might impact the ALJ’s assessment of his diabetes. (Id. at 5–7).
Plaintiff further states that he has obtained medical insurance coverage through Medicare that has
enabled him to obtain medical care “that he previously could not access.” (Id. at 7). He identifies
the records from such treatment as another example of new evidence for the Agency to consider.
(Id.).
Though courts will generally not consider arguments or issues raised for the first time in a
reply brief, they retain the discretion to do so if they give the non-movant an opportunity to respond
to the new argument. Thompson v. Dallas City Att’ys Off., 913 F.3d 464, 471–72 (5th Cir. 2019).
The Court in this case exercises its discretion to consider the merits of Plaintiff’s reply-brief
argument without a response from Defendant13 because, as explained below, Plaintiff has not
shown good cause for the failure to provide the evidence in question to the Appeals Council, so
no response from Defendant is necessary. See 28 U.S.C. § 405(g); Istre, 208 F.3d at 519–20.
A. New Evidence
When Plaintiff received the most recent unfavorable ALJ decision, it was accompanied by
a letter that explained the process for appealing to the Appeals Council. (ECF 7-1 at 13–15).
Specifically, the letter explained to Plaintiff, “You may send us a written statement about your
case. You may also send us new evidence. You should send your written statement and any new
evidence with your appeal.” (Id. at 14) (emphasis in original).
When Plaintiff submitted his request for the Appeals Council to review the ALJ’s decision,
one of his stated reasons was, “I also have new evidence to show my physical limitations.” (Id.
at 310). Immediately below that statement, on the form Plaintiff used, was a checkbox with the
13 Defendant has not moved for leave to file a sur-reply or to strike Plaintiff’s argument from his reply brief.
text, “Please grant me an extension of time to submit evidence or argument.” (Id.). Plaintiff did
not check that box. (Id.).
After the unchecked box, the form includes a section labeled, “ADDITIONAL
EVIDENCE” that reads as follows:
You may submit any additional evidence or argument to the Appeals Council. If
you have additional evidence that relates to the period on or before the date of the
hearing decision, you must inform the Appeals Council about it or submit it, or any
other evidence or argument, when you submit this form unless you request an
extension of time by checking the box above. This will ensure that the Appeals
Council has the opportunity to consider the additional evidence before taking its
action. . . . If you submit neither evidence nor a legal argument now or within any
extension of time the Appeals Council grants, the Appeals Council will take its
action based on the evidence currently in your file.
(Id.) (emphasis in original). There is no indication in the record that Plaintiff submitted evidence
with his request for Appeals Council review.
To show good cause for his failure to submit the proposed evidence, Plaintiff points to his
pro se status, arguing that he “did not understand the evidence-submission process, did not
understand that the hospital records had to be separately identified and submitted,” “or that the
hospitalization would be important to the ALJ’s evaluation of his diabetes-related complications,
symptoms, treatment history, and functional limitations.” (ECF 11 at 6–7).
Contrary to these arguments, Plaintiff was repeatedly advised of the need to submit the
new evidence that he wanted the Appeals Council to consider. In fact, identical instructions
appeared also in the letters accompanying the two previous ALJ decisions (ECF 7-1 at 114, 135)
and on the form that Plaintiff used to challenge the first unfavorable ALJ decision (id. at 214).
Similarly, though Plaintiff may not have known how the hospitalization would relate to the ALJ’s
decision before that decision issued, he did have that information once he had received the ALJ’s
decision, reviewed it, and decided to ask the Appeals Council for review. Accordingly, Plaintiff
has not given any legitimate reason why the evidence in question was not produced earlier and
provided to the Agency, and sentence six remand is not warranted in this case.
B. The ALJ’s Failure to Obtain Medical Records
As the Plaintiff acknowledges, the Agency requested medical records from Silver
Chiropractic on June 11, 2025 and then followed up on June 16, 2025. (See ECF 9 at 12). In other
words, the Agency requested medical records, and followed up on the request within ten to twenty
business days, as required by the regulations. 20 C.F.R. § 404.1512(b)(i). As Plaintiff
acknowledges, the Agency closed the request on July 14, 2025, well after the ten-day waiting
period required by the regulations. (See ECF 9 at 12). The mere fact that the requested records
were never provided by the source does not establish that the ALJ failed to adequately develop the
record. Sun, 793 F.3d at 509–10. Because the ALJ discharged her duty to develop the record in
accordance with the regulations, this argument does not provide a reason to overturn her decision.
C. Plaintiff’s Self-Employment Earnings
As noted above, the ALJ found that Plaintiff engaged in substantial gainful activity for the
years from 2018 through 2023. (ECF 7-1 at 18–19). Plaintiff does not challenge the income
amounts on which the ALJ based her findings for those years. (Compare id. and ECF 9 at 7).14
Those amounts are set out in the following table alongside the monthly and annual thresholds for
substantial gainful employment in the subject year:
Year Monthly Threshold Annual Threshold Plaintiff’s Earnings
2018 $1,180 $14,160 $26,543
2019 $1,220 $14,640 $20,260
14 Plaintiff did include a paragraph in his brief arguing that, “The tax records show why the ALJ could not simply rely
on annual earnings figures.” (ECF 9 at 7). There, Plaintiff shows that his earnings for each of the relevant years were
reduced from his annual gross business receipts by substantial business expenses. (Id.; see also ECF 11 at 2–3). The
Court does not interpret this as challenging the ALJ’s calculation of his annual earnings because the amounts relied
on by the ALJ were Plaintiff’s net earnings for the relevant years, exclusive of business expenses, and those amounts
exactly match the ones set forth by Plaintiff. (Compare ECF 9 at 7 and ECF 7-1 at 18–19).
2020 $1,260 $15,120 $16,767
2021 $1,310 $15,720 $27,311
2022 $1,350 $16,200 $23,225
2023 $1,470 $17,640 $20,593
Tables of SGA Earnings Guidelines and Effective dates Based on Year of Work Activity, SSA
POMS DI 10501.015, https://secure.ssa.gov/apps10/poms.nsf/lnx/0410501015 (last accessed July
15, 2026); (ECF 7-1 at 18–19; accord ECF 9 at 7). As the table shows, Defendant’s earnings were
above the threshold for substantial gainful employment in each of the relevant years. Accordingly,
if he also rendered services that were “significant,” then his self-employment during those years
qualifies as substantial gainful activity under the first relevant test. 20 C.F.R. § 404.1575(a)(2)(i).
The ALJ’s discussion of whether Plaintiff provided significant services was limited to a
one-sentence finding that “he has provided significant services in speaking to customers and
referring them for mechanic work.” (ECF 7-1 at 19). In other words, the ALJ did not determine,
as required by the first self-employment test, that Plaintiff “contributes more than half the total
time required for the management of the business, or [renders] management services for more than
45 hours a month[.]” 20 C.F.R. § 404.1575(b)(1).
Accordingly, the ALJ was required to proceed to the second and third self-employment
tests, and determine whether Plaintiff’s work activity is comparable to that of similarly-situated
unimpaired individuals, and whether it, even in not comparable under the second test, is clearly
worth the threshold amounts. Id. at 404.1575(a)(2)(ii)–(iii). The ALJ in this case found that
Plaintiff’s work, which consists entirely of speaking to customers and referring them for mechanic
work, satisfied the third test because it was worth the reported earnings amounts, which (as
explained above) exceed the ordinary thresholds. (ECF 7-1 at 19). To support this finding, the ALJ
noted that Plaintiff “has not provided any evidence that he was overpaid for the services
rendered[,]” and as a result, “[t]here is no evidence the services he rendered were not worth the
amounts paid.” (ECF 7-1 at 19).
Plaintiff mainly challenges this finding as inadequately explained, or else as failing to fully
appreciate the limited nature of his services to the business. (ECF 9 at 6–8, and ECF 11 at 2–3).
He otherwise characterizes the ALJ’s finding as “assuming that all business income reflected
Plaintiff’s personal work.” (ECF 11 at 3). However, as noted above, the ALJ did not rely on gross
business income when evaluating Plaintiff’s earnings, and it was Plaintiff’s own burden to prove
that he had not engaged in substantial gainful activity. Audler, 501 F.3d at 448. Because Plaintiff
did not provide any evidence that his work was incomparable to that of similarly situated
unimpaired people, or else that it was not worth the amounts he earned for it,15 the ALJ correctly
determined that Plaintiff was ineligible for disability from 2018 through 2023.
D. Plaintiff’s Symptoms and RFC
Plaintiff challenges the ALJ’s RFC determination as “unsupported because it omitted
Plaintiff’s need to lie down for hours, stop for two to three hours or longer, alternate positions,
limit standing and walking, and limit use of his left arm.” (ECF 9). Plaintiff testified that he had
these limitations at each of his three hearings before the ALJs. (ECF 7-1 at 80–82, 64–66,
and 43–48).
The ALJ explicitly acknowledged Plaintiff’s testimony about these limitations in her
decision. (Id. at 22). She summarized that testimony as follows:
During the hearing, the claimant testified he has pain in his lower back and legs
after driving for 15 to 20 minutes, depending on the day. . . . He could lift [objects
no heavier than] a phone and paper beginning in 2017. His right arm is his stronger
arm, he could lift 3 to 5 pounds. He has too much pain in his left arm to lift anything.
15 By way of example, if Plaintiff had provided any evidence to the ALJ that an unimpaired person, performing only
the same phone services for another business as he performed for his business, would be paid less than the annual
thresholds in the table above, that evidence might have enabled a finding that Plaintiff’s work was not substantial
gainful activity. The record contains no evidence of that or any similar sort.
He is right handed. He needs to both lay down and sit down. He is uncomfortable
in any positions. Laying down helps his back. . . . He has to walk around on his
feet. If he is having a good day, he can sit and move from one place to another.
Every day he needs to lay down for 2-3 hours at a time. He is weak during the day,
because he has not slept. Walking is very painful for him. He hurts and he cannot
move when his back spasms. He sits most of the day. He can walk through the
house.
(Id.).
The ALJ then found, in keeping with the regulations and as noted above, that Plaintiff’s
severe impairments could cause these symptoms, but that his statements about the intensity,
persistence, and limiting effects about the symptoms were partially inconsistent with the evidence.
(Id.). Specifically, the ALJ noted that “physical exams throughout the record have been fairly
benign.” (Id.). Those exams indicated “a decreased range of motion to the lumbar spine at times”
and associated difficulties with movement, but “neurological exams were otherwise benign with
intact strength, a normal gait, and a lack of neurological deficits.” (Id.). The ALJ noted that
Plaintiff did not use or appear to need an assistive device, and had no record of falls, no tenderness,
and no muscle spasms. (Id. at 22–23).
For those reasons, the ALJ found that Plaintiff was limited in ways that were less extreme
or severe than he indicated in his own testimony. (Id.). In making that finding, and then in assessing
an RFC that included significant, but not prohibitive limitations, the ALJ complied with the
regulations, applied the correct legal standard, and supported her decision with substantial
evidence. Accordingly, this Court will not vacate her decision on this ground.
E. Plaintiff’s Past Relevant Work
Plaintiff argues that the ALJ erred when she found he could perform past relevant work as
a maintenance service dispatcher, because “Plaintiff performed limited phone and referral activity
only a few hours per week, did not supervise workers, did not perform repairs, did not prepare
bids, did not negotiate contracts, and did not determine pricing or parts.” (ECF 9 at 6).
This list of things that Plaintiff did not do in the relevant period—the years between his
alleged disability onset in 2017 and Plaintiff’s third hearing in 2025—invokes Plaintiff’s
questioning of the vocational expert during that hearing. (See ECF 7-1 at 50–59). Over the course
of that questioning, Plaintiff successfully narrowed the expert’s testimony, from classifying
Plaintiff’s work in that time as a “Supervisor, Garage” (DOT 620.131-014), to “Contractor” (DOT
182.167-010), to the final answer of “Dispatcher, Maintenance Service” (DOT 239.367-014).
The DOT defines a maintenance service dispatcher as a clerk who “[r]eceives telephone
and written orders from plant departments for maintenance service, . . . and relays requests to
appropriate maintenance division[,]” “[k]eeps record of requests and services rendered[,]” and
“[r]equisitions supplies for maintenance and clerical workers.” U.S. Dept. of Labor, DICTIONARY
OF OCCUPATIONAL TITLES, § 239.367-014 (4th Ed., 1991).
In other words, the ALJ characterized the work Plaintiff had done since 2017 as a job that
did not require supervising others, performing repairs, preparing bids, negotiating contracts, or
determining pricing or parts. (See ECF 9 at 6). The job that the ALJ treated as Plaintiff’s past
relevant work was instead “limited to taking calls and referring customers,” as Plaintiff
characterizes his own role in the business. (See ECF 11 at 2).
Because the occupational definition utilized by the ALJ referred to work Plaintiff has
actually done long enough to learn it and (as explained above) at the level of substantial activity,
it properly referred to Plaintiff’s past relevant work. Additionally, because Plaintiff was still
performing that work, the ALJ properly concluded that Plaintiff could still perform past relevant
work. Plaintiff has not shown any reason to overturn the ALJ’s decision.
F. The Medical-Vocational Guidelines
Finally, Plaintiff challenges the ALJ’s finding that a person with his age, education, work
experience, and RFC could perform other jobs that existed in significant numbers in the national
economy, like cashier, laundry sorter, or produce sorter. (See ECF 7-1 at 24-25). Plaintiff
challenges this finding as undermined by the errors he alleges on other grounds, because “[i]f
Plaintiffs limited post-2017 phone and referral activity was not substantial gainful activity and
did not qualify as past relevant work, and if Plaintiff was limited to light or less than light work
without transferable skills,” the Guidelines would support a finding of disability. (ECF 9 at 13).
As explained above, the ALJ properly evaluated not only Plaintiff's past work, both for
determination of his substantial gainful activity and for determination of whether he could perform
past relevant work, but also properly evaluated Plaintiff's symptoms and RFC. Accordingly,
Plaintiff has identified no error that would warrant vacatur of the ALJ’s decision and remand for
a new application of the Guidelines.
VI. CONCLUSION
In summary, the ALJ’s decision applied the correct legal standards, was supported by
substantial evidence, and did not include any error that Plaintiff has shown was prejudicial.
Accordingly, the decision of the Commissioner is AFFIRMED. Judgment will be entered
accordingly.
IT IS SO ORDERED.
ENTERED July 16, 2026. oe Aum “Keno
UNITED STATES MAGISTRATE JUDGE
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