Morgan v. O'Malley

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
Diektrich M.,1
Plaintiff,
v.
Frank J. Bisignano,2
Commissioner of the Social
Security Administration,
Defendant.
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Civil Action H-24-4578
MEMORANDUM AND RECOMMENDATION
Diektrich M. appeals the Social Security Administration
Commissioner’s final decision denying his application for Social
Security benefits. ECF No. 1. This case has been referred to the
undersigned 	magistrate 	judge 	for 	all 	pretrial 	purposes.
ECF No. 7. Pending before the court are Diektrich’s Motion for
Summary 	Judgment, 	ECF 	No. 11, 	and 	the 	Commissioner’s
Cross-Motion for Summary Judgment, ECF No. 19. The court
recommends that Diektrich’s Motion for Summary Judgment be
DENIED, 	and 	that 	the 	Commissioner’s 	Cross-Motion 	for
Summary 	Judgment 	be 	GRANTED. 	Accordingly, 	the 	court
recommends 	that 	the 	Commissioner’s 	final 	decision 	be
AFFIRMED.
1 In light of guidance received from the Committee on Court Administration and Case
Management of the Judicial Conference of the United States, which states that there
are significant privacy concerns in social security cases, the court refers to the Plaintiff
only by their first name and last initial.
2 Pursuant to Federal Rule of Civil Procedure 25(d), Frank J. Bisignano is substituted
as the defendant in this suit.
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1. Procedural Posture
On January 18, 2019, Diektrich filed an application for
disability 	insurance 	benefits 	(DIB) 	and 	Medicare 	Qualified
Government Employee (MQGE) benefits, under Title II of the
Social Security Act (Act). Tr. 183–84. Diektrich alleged that his
disability began on December 31, 2015, due to major depressive
disorder, anxiety, radiculopathy, and degenerative joint disease.
Id.; Tr. 109. Because of Diektrich’s work history, in order to qualify
for 	both 	DIB 	and 	MQGE 	benefits, 	Diektrich 	must 	establish
disability on or before December 31, 2021 (the date he was last
insured). Tr. 583. If Diektrich were only able to establish disability
after the December 31, 2021, but before December 31, 2022, he
would qualify solely for MQGE benefits. Id.
The SSA denied Diektrich’s application at the initial level
on April 25, 2019, and upon reconsideration on June 20, 2019.
Tr. 85–94, 110–13, 96–107, 118–20. Administrative Law Judge
(ALJ) William Sharp held a hearing on March 17, 2020, and found
that Diektrich was not disabled under the Act during the relevant
period. Tr. 10. The Appeals Council (AC) affirmed ALJ Sharp’s
decision. Tr. 1. Diektrich appealed to federal court, and the case
was remanded to the Commissioner for further consideration. See
Diektrich M. v. Kijakazi, No. 20-2555, 2021 WL 6072594 (S.D. Tex.
Dec. 	23, 	2021), 	R. 	& 	R. 	adopted, 	2022 	WL 	74333 	(S.D. Tex.
Jan. 7, 2022).
On September 13, 2022, ALJ Sharp held a second hearing.
Tr. 608. Again, ALJ Sharp determined that Diektrich was not
disabled under the Act during the relevant period. Tr. 769–70.
Upon review, the AC found that ALJ Sharp had not sufficiently
considered the medical evidence. Tr. 781–83. Because ALJ Sharp
had twice held hearings on Diektrich’s claim, the AC remanded the
case to a different ALJ to conduct another hearing. Id.
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ALJ Daniel Whitney held the third hearing on Diektrich’s
claim by video on March 20, 2024. Tr. 636. Diektrich’s counsel was
present at the hearing. Id. Diektrich testified about his work
history, education, military experience, and medical conditions.
Tr. 639– 66.
As to his work history, Diektrich testified that his most
recent job was in 2017. Tr. 642–44. At that time, he worked for
Bryan Independent School District as a teacher’s aide. Id. He
stated that in that role, he would “counsel” students and function
as a “behavior specialist.” Id. Diektrich explained that prior to that
role, from 2011 to 2016, he worked at Blinn College. Tr. 642. First,
as a full-time veterans’ financial aid coordinator, and then, for a
brief period, as a part-time shuttle driver. Id. From 2009, until he
was 	hired 	at 	Blinn 	College, 	Diektrich 	worked 	as 	a 	parking
enforcement officer for Texas A&M University. Tr. 641–42.
A Vocational Expert (VE) testified about Diektrich’s past
work. As classified by the Dictionary of Occupational Titles (DOT),
Diektrich’s job as a parking lot enforcement officer is an unskilled
(SVP 2), light exertion position. Tr. 644. His prior job as a veterans’
coordinator is a skilled (SVP 6), light exertion position. Id. And
Diektrich’s prior job as a teacher aide is a semi-skilled (SVP 3),
light exertion position. Id.
After 	the 	VE 	classified 	Diektrich’s 	prior 	jobs, 	Diektrich
testified about his education, as well as his experience in the
military. Tr. 645. Diektrich stated that he graduated high school.
Id. He enlisted in the Army from 1997 to 2002. Id. He explained
that he was deployed to California and Louisiana during that time.
Tr. 	645–46. 	He 	testified 	that 	in 	approximately 	2020, 	the
Department of Veterans Affairs (VA) declared him 100% disabled
due to his medical conditions. Tr. 647.
As to his mental condition, Diektrich testified that he suffers
from depression, anxiety, suicidal thoughts, and audio and visual
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hallucinations. 	Tr. 	647, 	655–57. 	Diektrich 	explained 	that 	his
mental health affects him in various ways. Tr. 653–57. He stated
that while he was a veterans benefits coordinator, he had difficulty
focusing 	and 	concentrating 	because 	he 	“was 	under 	so 	much
pressure.” Tr. 653–54. He said that he would lash out in anger, and
his ability to perform his job declined. Tr. 654. He was terminated
from the job as a result. Tr. 658–59. Diektrich explained that he
has trouble sleeping because he has nightmares related to his
experiences in the military. Tr. 646–47, 655–56. Those experiences
included Diektrich witnessing fellow servicemen being killed by
explosives, and, in a separate incident, in a helicopter crash. Id.
While he is prescribed medication for his mental health conditions,
Diektrich 	testified 	that 	that 	he 	still 	experienced 	symptoms.
Tr. 655–57.
As to his physical condition,3 Diektrich testified that he had
joint displacement in his hip and sciatic nerve damage, and that
he experienced chronic pain in his back and left knee. Tr. 647,
650– 51. He explained that those conditions prevented him from
sitting or standing for extended periods of time. Id. He stated that
he used a cane, back brace, and knee brace to walk, which had been
prescribed for him by the VA. Tr. 649, 652. At home, he used a hot
pad and a TENS unit to manage his pain Tr. 652–53. Additionally,
Diektrich testified that he had diabetes, high blood pressure, and
high cholesterol. Tr. 650. He took medications to manage his
physical and mental conditions. Tr. 650.
On a regular day without work, Diektrich said that he would
stay at home, sit on the couch, watch TV, and read the Bible and
other books. Tr. 648. He testified that he was not able to do the
3 The court notes that the parties do not argue that the ALJ erred in connection with
any of Diektrich’s physical impairments. This case is focused on whether the ALJ
erred with respect to his mental impairments.
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home-exercises that he had been given by his chiropractor and
physical therapist. Tr. 649.
The ALJ presented a series of hypotheticals to the VE, and
Diektrich’s lawyer cross-examined the VE. The VE testified about
a hypothetical claimant, described as a person of Diektrich’s same
age, 	education, 	and 	work 	experience, 	who 	was 	limited 	to
performing 	only 	simple 	and 	non-production 	rate 	paced 	jobs,
involving a maximum of six hours of sitting and six hours of
standing and walking; occasionally lifting twenty pounds and
frequently lifting ten pounds; occasionally climbing, but never
climbing ladders, ropes, and scaffolds; frequently stooping and
crouching. Tr. 661. The VE responded that such a hypothetical
claimant would be able to perform Diektrich’s past work as a
parking lot enforcement officer, but not as a teacher’s aide. Id. The
VE testified that such a person would also be capable of working
in the unskilled positions of marker, officer helper, and router, as
those positions are described in the DOT. Id.
On 	cross-examination, 	Diektrich’s 	lawyer 	posed 	one
question to the VE about the number of unscheduled absences
from work an individual could have while still being able to sustain
employment. Tr. 663. The VE answered that an individual cannot
have more than two unscheduled absences from work per month.
Id. Then, in closing, Diektrich’s lawyer summarized Diektrich’s
alleged impairments, citing to specific documents in the record.
Tr. 664–65.
The ALJ issued his decision on April 24, 2024, finding that
Diektrich was not disabled from December 31, 2015, through
December 	31, 	2022. 	Tr. 583. 	Diektrich 	requested 	review 	of
the 	ALJ’s 	decision, 	which 	the 	Appeals 	Council 	denied 	on
September 16, 2024. Tr. 570. Diektrich timely filed a complaint in
federal court on November 20, 2024. ECF No. 1.
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2. Legal Standards
The 	Social 	Security 	Act 	provides 	disability 	insurance
benefits to individuals with physical and mental disabilities who
have contributed to the program and were disabled “on or before
the date . . . last insured.” See 42 U.S.C. § 423; Schofield v. Saul,
950 	F.3d 	315, 	319 	(5th 	Cir. 	2020). 	Disability 	is 	defined 	as
the “inability to engage in any substantial gainful activity by
reason 	of 	any 	medically 	determinable 	physical 	or 	mental
impairment . . . which has lasted or can be expected to last for a
continuous 	period 	of 	not 	less 	than 	12 	months[.]” 	42 	U.S.C.
§ 423(d)(1)(A).
The Commissioner uses a sequential, five-step approach to
determine 	whether 	the 	claimant 	is 	disabled. 	See 	Schofield,
950 F.3d 315, 317 (5th Cir. 2020); 20 C.F.R. § 404.1520(a)(4). The
claimant bears the burden of proof on the first four steps, and the
Commissioner bears the burden on the fifth step. See Keel v. Saul,
986 F.3d 551, 555 (5th Cir. 2021). A finding that the claimant is
disabled or not disabled at any point in the five-step review
terminates the analysis. 20 C.F.R. § 404.1520(a)(4).
This court’s “review of the ALJ’s [disability] determination
is highly deferential,” 	Garcia v. Berryhill, 880 	F.3d 700, 704
(5th Cir. 2018) (citations omitted). The court “ask[s] only whether
substantial evidence supports the decision and whether the correct
legal standards were employed.” Id. “A decision is supported by
substantial evidence if ‘credible evidentiary choices or medical
findings support the decision.’” Salmond v. Berryhill, 892 F.3d 812,
817 (5th Cir. 2018) (quoting Whitehead v. Colvin, 820 F.3d 776, 779
(5th 	Cir. 	2016)). 	“Substantial 	evidence 	is 	‘more 	than 	a 	mere
scintilla but less than a preponderance.’” Id. (quoting Williams v.
Admin. Rev. Bd., 376 F.3d 471, 476 (5th Cir. 2004)). “It means—
and means only—‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Biestek v.
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Berryhill, 587 U.S. 97, 103 (2019) (quoting Consol. Edison Co. of
N.Y. v. NLRB, 305 U.S. 197, 229 (1938)). The reviewing court must
scrutinize the record to determine whether substantial evidence
supports the ALJ’s decision, but it may not reweigh the evidence
or substitute its judgment. Perez v. Barnhart, 415 F.3d 457, 461
(5th Cir. 2005).
3. Analysis
A. Step One
At step one, the ALJ must determine whether the claimant
is 	engaged 	in 	substantial 	gainful 	activity. 	20 	C.F.R.
§ 404.1520(a)(4)(i). 	A 	person 	engaged 	in 	substantial 	gainful
activity is not disabled, regardless of their medical condition, age,
education, or work experience. 20 C.F.R. § 404.1520(b).
The ALJ found that Diektrich did not engage in substantial
gainful activity from his alleged onset date through the date he
was last insured. Tr. 585. The record showed that while Diektrich
earned some wages in 2016 and 2017 as a MQGE, his income did
not exceed the substantial gainful activity threshold during the
relevant period. Id. This finding is not in dispute.
B. Step Two
At 	step 	two, 	the 	ALJ 	determines 	whether 	any 	of 	the
claimant’s impairments, or any combination thereof, is severe and
has lasted, or is expected to last, a continuous period of at least
twelve months. 20 C.F.R. § 404.1520(a)(4)(ii) (citing 20 C.F.R.
§ 404.1509). An impairment is severe if it “significantly limits [the
claimant’s] physical or mental ability to do basic work activities.”
20 C.F.R. § 404.1520(c). An impairment is “not severe only if it is
a slight abnormality [having] such minimal effect on the individual
that it would not be expected to interfere with the individual’s
ability 	to 	work, 	irrespective 	of 	age, 	education[,] 	or 	work
experience.” 	Keel, 986 F.3d at 555 (quoting 	Stone v. 	Heckler,
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752 F.2d 1099, 1101 (5th Cir. 1985)). “A person who does not have
a ‘severe impairment’ is not disabled.” Schofield, 950 F.3d at 318
(citing 20 C.F.R. § 404.1520(c)).
Through the date Diektrich was last insured, the ALJ found
that Diektrich had severe impairments of “Degenerative Disc
Disease of the Cervical and Lumbar Spine; Osteoarthritis of the
Knees; Right Shoulder Impingement; Obesity; Bipolar/Depressive
Disorder; 	and 	Anxiety/Post-Traumatic 	Stress 	Disorder . . . .”
Tr. 585. The ALJ’s findings are supported by substantial evidence
and are not in dispute.
C. Step Three
At step three, the ALJ determines if any of the claimant’s
severe impairment meets or equals a listed impairment (Listing)
in Appendix 1. 20 C.F.R. § 404.1520(a)(4)(iii); see also 20 C.F.R. Pt.
404, Subpt. P, App. 1. The Listings describe impairments that the
SSA considers “severe enough to prevent an individual from doing
any 	gainful 	activity, 	regardless 	of . . . age, 	education, 	or 	work
experience.” 20 C.F.R. § 404.1525(a). The claimant will be found
disabled if the claimant’s impairments meet or equal all of the
specified criteria of a Listing. 20 C.F.R. § 404.1520(d); Whitehead,
820 F.3d at 781. The claimant has the burden of establishing that
their impairments match the Listing. Whitehead, 820 F.3d at 781.
The ALJ considered Listing Sections 1.15, 1.16, 1.18, 12.04,
12.06, and 12.15, in combination with Social Security Ruling (SSR)
19-2p (Evaluating Cases Involving Obesity). Tr. 586. The ALJ
determined 	that 	Diektrich 	did 	not 	have 	an 	impairment 	or
combination of impairments that met or medically equaled the
severity of an impairment in the Listings. Id. Diektrich does not
dispute this finding.
Although “[o]bseity is not a listed impairment,” it may cause
functional effects that may increase the severity or functional
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limitations of the individual’s other impairments. SSR 19-2p, 2019
WL 	2374244 	(May 	20, 	2019). 	“No 	specific 	weight 	or 	BMI
establishes obesity as a ‘severe’ or ‘not severe’ impairment.” Id.
Instead, an ALJ must assess “the effect of obesity on a person’s
functioning when deciding whether the impairment is severe.” Id.
In Diektrich’s case, the ALJ noted that “obesity is often associated
with musculoskeletal, respiratory, cardiovascular, and endocrine
disorders[,] 	and 	[it] 	increases 	the 	risk 	of 	developing 	other
impairments in these body systems.” Tr. 588. Accordingly, the ALJ
considered the effect of obesity on his other physical and mental
impairments, singly and in combination. Tr. 589.
The 	ALJ 	determined 	that 	Diektrich’s 	musculoskeletal
impairments did not meet or equal the severity of impairments in
Listing Sections 1.15, 1.16, or 1.18 through the date he was last
insured. Tr. 587. Diektrich’s medical records did not reflect a
medical need for a walker, bilateral canes, or crutches, or other
mobility 	device 	that 	requires 	the 	use 	of 	both 	hands. 	Id.
Additionally, the record did not demonstrate that Diektrich is
incapable of using one arm to independently initiate, sustain, and
complete 	work-related 	activities 	involving 	fine 	and 	gross
movements, while using his other arm to operate a mobility device
or other hand-held assistive device. Id. The record also did not
show that Diektrich has the inability to use both of his arms such
that neither arm could be used to independently initiate, sustain,
and 	complete 	work-related 	activities 	involving 	fine 	and 	gross
movements. Id.
The 	ALJ 	also 	determined 	that 	Diektrich’s 	mental
impairments, considered singly and in combination, did not meet
or equal the severity of impairments in Listing Sections 12.04
(depressive, bipolar, and related disorders), 12.06 (anxiety and
obsessive-compulsive disorders), and 12.15 (trauma- and stressor-
related disorders) because Diektrich did not satisfy the “paragraph
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B” or the “paragraph C” criteria. Tr. 588–89. To be found disabled
at step three, the claimant’s mental disorder must satisfy the
requirements of both paragraphs A and B, or the requirements of
both paragraphs A and C. Listing § 12.00(A)(2). A claimant who
does not satisfy either of paragraphs B or C cannot meet or equal
the severity of impairments in the Listings in Section 12.
The paragraph B criteria “represent the areas of mental
functioning 	a 	person 	uses 	in 	a 	work 	setting.” 	Listing
§ 12.00(A)(2)(b). 	Those 	areas 	are 	the 	claimant’s 	ability 	to
(1) understand, remember, or apply information; (2) interact with
others; (3) concentrate, persist, or maintain pace; and (4) adapt or
manage oneself. Id. The ALJ must evaluate the claimant’s ability
to function in each of the four areas using this five-point rating
scale:
a. No 	limitation 	(or 	none). 	[Claimant 	is] 	able 	to
function in this area independently, appropriately,
effectively, and on a sustained basis.
b. Mild limitation. [Claimant’s] functioning in this
area independently, appropriately, effectively, and
on a sustained basis is slightly limited.
c. 	Moderate 	limitation. [Claimant’s] functioning 	in
this area independently, appropriately, effectively,
and on a sustained basis is fair.
d. Marked limitation. [Claimant’s] functioning in this
area independently, appropriately, effectively, and
on a sustained basis is seriously limited.
e. 	Extreme 	limitation. 	[Claimant 	is] 	not 	able 	to
function in this area independently, appropriately,
effectively, and on a sustained basis.
Listing § 12.00(F)(2). 	To 	meet 	the 	paragraph 	B 	criteria, 	a
claimant’s disorder must result in an “extreme” limitation in one
or 	a 	“marked” 	limitation 	in 	two 	of 	the 	four 	areas 	of 	mental
functioning. Id. The ALJ found that Diektrich had only mild or
moderate limitations in each of the four areas. Tr. 588–89.
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As 	for 	understanding, 	remembering, 	or 	applying
information, 	the 	ALJ 	determined 	that 	Diektrich 	had 	a 	mild
limitation. Tr. 588. The ALJ noted that Diektrich’s medical records
reflect that he is cognitively intact with linear, logical, and goal-
directed thought processes. Id. (citing Tr. 430, 436, 1576, 1611,
1683–84, 1728, 1737). The ALJ stated that the first two State
Agency 	Psychological 	Consultants 	(SAPCs) 	who 	evaluated
Diektrich’s records found that he was not limited in this area,
while the second two SAPCs found a mild limitation. Id. (citing
Tr. 90, 102, 698, 718). The ALJ found that Diektrich “is not
particularly limited in this area of function.” Id.
As for interacting with others, the ALJ determined that
Diektrich had a mild limitation, but he noted that “it was closer to
moderate 	than 	none.” 	Tr. 588. 	The 	ALJ 	acknowledged 	that
Diektrich 	testified 	to 	having 	some 	difficulty 	interacting 	with
others, particularly in crowds, which is consistent with his own
reports to medical providers. 	Id. (citing Tr. 436 and Hearing
Testimony). However, the ALJ noted that his medical records from
2019 showed that he was cooperative and friendly with good eye
contact. Id. (citing Tr. 359, 430, 436). The ALJ observed that
Diektrich’s 	medical 	records 	reflected 	his 	self-reported 	anger
problems. Id. (citing Tr. 521). But his mental status examinations
at the VA in 2021 and 2022 continued to indicate that Diektrich
was cooperative, friendly, and engaged, and that he exhibited good
eye contact and normal speech. Id. (citing Tr. 1576, 1611, 1683,
1737). The ALJ considered the fact that Diektrich’s mood was
described in the records as “dysphoric” to “euthymic most days,”
with congruent affect. Id. (citing Tr. 1611, 1737). He noted that
Diektrich’s records reflected that he had “good social support.” Id.
(citing Tr. 1686). The first two SAPCs determined that Diektrich
had a mild limitation in this area of function, while the second two
found a moderate limitation. Id. (citing Tr. 90, 102, 698, 718). The
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ALJ concluded that a mild limitation best reflected Diektrich’s
“consistently cooperative, friendly attitude” with no “indication of
significant interpersonal conflict.” Id.
As for concentrating, persisting, or maintaining pace, the
ALJ determined that Diektrich had a moderate limitation. Tr. 588.
The ALJ acknowledged that Diektrich testified to having difficulty
concentrating. 	Id. 	However, 	the 	ALJ 	noted 	that 	his 	medical
records reflect that his attention and concentration were intact,
and that his “thought content contained no abnormalities,” such as
suicidal or homicidal ideation, hallucinations, or delusions, which,
if present, might have interfered with Diektrich’s concentration,
persistence, or ability to maintain pace. Id. (citing Tr. 1576, 1611,
1737). The ALJ considered that Diektrich participated during his
evaluation, which 	resulted in his attention and concentration
being deemed “fair.” Tr. 588–89 (citing Tr. 1612, 1683–84, 1738).
The 	first 	two 	SAPCs 	determined 	that 	Diektrich 	had 	a 	mild
limitation in this area of function, while the second two found a
moderate limitation. Tr. 589 (citing Tr. 90, 102, 698, 718).
As for adapting or managing oneself, the ALJ determined
that Diektrich had a mild limitation. Tr. 589. The ALJ noted that
Diektrich’s mental status examinations indicated that he was
casually/well-dressed and well-groomed, and that he exhibited
good-to-fair insight and no impairment to his judgment. Id. (citing
Tr. 1576, 	1611, 	1737). 	The 	first 	two 	SAPCs 	determined 	that
Diektrich had a mild limitation in this area of function, while the
second two found a moderate limitation. Id. (citing Tr. 90, 102, 698,
718). The ALJ noted that Diektrich had experienced a moderate
limitation in this area, as indicated by the second two SAPC
opinions, but that Diektrich’s function in this area was stable with
treatment. 	Id. 	(citing 	Tr. 429–41, 	1540– 87, 	1625–1750).
Accordingly, the ALJ found a mild limitation. Id.
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Because 	Diektrich 	did 	not 	have 	at 	least 	two 	“marked”
limitations or one “extreme” limitation in the four areas of mental
functioning, 	the 	ALJ 	determined 	that 	he 	did 	not 	satisfy 	the
paragraph B criteria. Tr. 589.
The ALJ also determined that Diektrich failed to satisfy the
paragraph C criteria because the evidence did not show that his
mental impairments were “serious and persistent”—that is, his
impairments did not exist over a period of at least two years,
accompanied 	by 	evidence 	of 	ongoing 	medical 	treatment 	that
diminished the symptoms of his mental disorders, plus marginal
adjustment. Tr. 589; see also Listing § 12.00(G)(2) (explaining the
paragraph C criteria).
The 	ALJ’s 	step-three 	determination 	is 	supported 	by
substantial evidence and comports with the law. The step three
findings are not directly in dispute, although Diektrich maintains
that the ALJ did not consider his own step three findings in
formulating the RFC, which is discussed below. Diektrich does not
point out any evidentiary or legal error in the ALJ’s step three
findings. 	The 	ALJ 	specifically 	cites 	portions 	of 	the 	record 	in
making his step three findings. Having reviewed the record and
the briefing, the court detects no error—legal or factual.
D. Residual Functional Capacity
Before reaching the final two steps, the ALJ must assess the
claimant’s 	residual 	functional 	capacity 	(RFC). 	20 	C.F.R.
§ 404.1520(e) 	(citing 	20 	C.F.R. 	§ 404.1545). 	The 	RFC 	is 	a
determination of the most a claimant can do despite all physical
and mental limitations. Perez, 415 F.3d at 461–62 (citing 20 C.F.R.
§ 404.1545(a)(1)). The RFC determination is based on “the medical
evidence in the record, including the testimony of physicians and
the claimant’s medical records.” Webster v. Kijakazi, 19 F.4th 715,
718 (5th Cir. 2021). “An ‘ALJ is responsible for determining an
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applicant’s residual functional capacity.’” Id. (quoting Ripley v.
Chater, 67 F.3d 552, 557 (5th Cir. 1995)); see also 20 C.F.R.
§ 404.1546(c).
The ALJ determined that, thorough the date Diektrich was
last insured, Diektrich had the RFC to perform light work, limited
to occasionally climbing ladders, ropes, and scaffolds; frequent
stooping and crouching; and understanding, remembering, and
carrying out simple tasks with no production rate pace jobs (such
as an assembly line). Tr. 589.
In making this determination, the ALJ considered the entire
record, including Diektrich’s hearing testimony and statements he
made to medical providers, the medical records, and the various
statements 	and 	opinions 	of 	Diektrich’s 	medical 	providers.
Tr. 589–90.
As for Diektrich’s statements at the hearing and to medical
providers, the ALJ’s summary of those statements is consistent
with Diektrich’s hearing testimony, which the court summarized
above. 	Essentially, 	Diektrich 	maintains 	that 	he 	is 	extremely
limited physically and mentally. He does very little other than
watch television and read while on the couch. He cannot exercise.
Diektrich 	has 	a 	history 	of 	mental 	problems 	including
depression related to chronic pain, bipolar disorder, PTSD, and
anxiety. Tr. 592. He reported to his medical providers that his
symptoms improved with medication. Id. (citing Tr. 1375). His
clinical evaluations showed him to be cooperative and engaged,
with good eye contact, normal speech, a stable mood and logical
and 	goal-directed 	thoughts 	processes. 	Id. 	There 	were 	no
indications 	of 	hallucinations 	or 	delusions. 	Id. 	He 	had 	intact
memory, and fair concentration, judgment, and insight. Id. (citing
Tr. 1683–84).
The 	ALJ 	found 	that, 	while 	Diektrich’s 	medically
determinable impairments could reasonably be expected to cause
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his 	alleged 	symptoms, 	his 	statements 	about 	the 	intensity,
persistence, and limiting effects of his symptoms were not entirely
consistent with the medical evidence. Tr. 592. The court turns next
to an analysis of that finding.
The 	ALJ 	considered 	that 	Diektrich’s 	obesity 	may 	have
worsened his physical limitations. Tr. 591. He explained that
Diektrich’s RFC “reflects the effect obesity has upon [his] ability to
perform routine movement and necessary physical activity within
the work environment.” Tr. 587–88. As to Diektrich’s physical
limitations, 	the 	ALJ 	stated 	that 	his 	physical 	exams 	“have
demonstrated 	some 	abnormalities, 	but 	they 	are 	not 	severe.”
Tr. 591. The ALJ acknowledged that Diektrich’s medical records
reflect his complaints of neck pain and chronic back pain. Tr. 590.
The ALJ also noted that Diektrich’s imaging records from 2017
reflect spinal disc protrusions, some disc and joint degeneration in
his cervical and lumbar spine, and mild lumbar spondylosis. Id.
Additionally, the ALJ noted that in the summer of 2021, Diektrich
was 	diagnosed 	with 	a 	right 	shoulder 	impingement, 	and 	a
subsequent MRI of his shoulder showed “only mild” degenerative
changes. Tr. 591. The ALJ also acknowledged that despite these
physical 	abnormalities 	and 	injuries, 	Diektrich’s 	clinical
evaluations have shown that his range of motion of his spine, neck,
back, and shoulder are within functional limits, despite some pain
in his 	back and shoulder 	at 	the 	top 	of his range 	of 	motion.
Tr. 590– 91. The ALJ stated that Diektrich has received a variety
of treatments for his physical impairments, including epidural
steroid injections, prescription medications, and physical therapy.
Id. 	The 	ALJ 	observed 	that 	Diektrich 	repeatedly 	reported
improvement after undergoing physical therapy for his shoulder
and 	back. 	Tr. 	591. 	The 	ALJ 	noted 	that 	in 	September 	2020,
Diektrich’s doctor reported that his “back symptoms have not
interfered with his activities of daily living.” Tr. 592
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The ALJ noted that Diektrich had reported pain in both
knees during medical treatment, but his medical records did not
reflect 	any 	radiological 	imaging 	of 	his 	knees 	or 	a 	diagnosis
reflecting knee problems. Tr. 592. The ALJ also observed that
physical examinations of Diektrich’s extremities have not shown
“cyanosis, 	edema, 	or 	clubbing,” 	and 	his 	respiratory 	and
cardiovascular examinations have been normal. Id.
Although Diektrich testified that he has trouble walking,
and that he has been using a cane for six or seven years—prior to
the date he was last insured. Tr. 592. However, the ALJ cited
medical records from January 2018, February 2020, June 2020,
and 	December 	2023 	reflecting 	that 	Diektrich 	demonstrated
normal, stable gait without the need for a cane, brace, or other
assistive device. Id. The ALJ observed that Diektrich does not have
a prescription for an assistive device. Id. The ALJ also noted that
Diektrich did not mention using a cane at his SSA hearings in 2020
and 2022. Id. The ALJ noted that the VA provided Diektrich with
knee braces at Diektrich’s own request, which Diektrich wore
“some of the time.” Id.
In terms of mental limitations, the ALJ concluded that the
evidence did not reflect the severity of mental health symptoms
that 	Diektrich 	alleged. 	Tr. 	593. 	While 	Diektrich 	testified 	to
hearing 	voices, 	the 	ALJ 	pointed 	out 	that 	Diektrich’s 	medical
records showed that he repeatedly denied auditory and visual
hallucinations or delusions, and there was no evidence of such
symptoms in his clinical evaluations. Id. (citing Tr. 430, 437, 454,
518, 	555, 	1376, 	1683, 	2172). 	The 	ALJ 	acknowledged 	that
Diektrich’s medical records reflected that he had a history of
depression related to chronic pain, bipolar disorder, PTSD, and
anxiety. Tr. 592 (citing Tr. 359, 382, 430, 436, 500, 556, 1311, 1371,
1570). The ALJ noted, however, that Diektrich’s mental health
was stable with treatment. Tr. 593 (citing Tr. 430–31, 437–38,
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454–55, 518, 522, 555, 1376, 1576, 1683–84). In January 2021,
Diektrich reported that his symptoms improved with medication,
and in May 2022, he reported that, even though his back pain
made him irritable at times, his PTSD and anxiety were under
good control with medication. Id. (citing Tr. 1375, 1678). The ALJ
observed 	that 	clinical 	evaluations 	consistently 	showed 	that
Diektrich “was cooperative and engaged with good eye contact,
normal speech, a euthymic (stable) mood, a logical and goal-
directed 	thought 	process, 	no 	indication 	of 	hallucinations 	or
delusions, intact memory, and fair concentration, judgment, and
insight.” Id. (citing Tr. 430–31, 437–38, 454–55, 518, 522, 555,
1376, 1576, 1683–84).
The ALJ also reviewed the opinions and prior administrative
findings 	in 	the 	record. 	The 	ALJ 	addressed 	the 	opinion 	of
Dr. Juan Gonzalez, who is Diektrich’s treating psychiatrist at the
VA. On February 7, 2020, Dr. Gonzalez filled out a survey at the
request of Diektrich’s attorney. Tr. 593 (citing Tr. 523–28). Four
years later, Dr. Gonzalez affirmed his earlier responses to the
survey. Id. (citing Tr. 1232–33). The ALJ accurately summarized
Dr. Gonzalez’s survey responses as indicating that Diektrich:
• 	has a mental impairment [that was] not due to a
general 	medical 	condition 	causing 	significant
distress or impairment in social, occupational, or
other important areas of function;
• 	[was] limited in performing work on a full-time and
ongoing basis;
• 	ha[d] 	psychologically-based 	symptoms 	while 	on
medication, 	and 	would 	be 	unable 	to 	maintain
regular attendance and be punctual . . . ;
• 	would miss ten or more days of work per month;
• 	would miss entire work days on these days;
• 	could 	not 	complete 	a 	workday 	without
psychologically-based 	symptoms 	at 	a 	consistent
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pace without an unreasonable number and length
of rest periods;
• 	would 	lose 	greater 	than 	fifty-percent 	of 	the
workday or workweek;
• 	would not respond appropriately to supervisors and
co-workers greater than fifty-percent of the time;
• 	could 	not 	respond 	to 	usual 	work 	stresses 	and
situations greater than fifty-percent of the time;
• 	could not respond to changes in a routine work
setting while on medication.
Id. Dr. Gonzalez indicated that his findings were consistent with
his clinical notes. Id. However, the ALJ observed that Dr. Gonzalez
did 	not 	explain 	any 	of 	his 	survey-response 	findings, 	and 	he
observed that the findings were contradicted by Dr. Gonzalez’s
own 	clinical 	evaluations 	on 	ten 	different 	occasions 	between
January 2019 and December 2022. Id. (citing 430–31, 437–38,
454–55, 461, 518, 522, 555, 1376, 1576, 1683–84, 2172–73).
Four different SAPCs reviewed Diektrich’s medical records
and evaluated the severity of Diektrich’s mental impairments,
including the paragraph B criteria discussed above. In April 2019
and June 2019, respectively, Dr. Murphy and Dr. Sharifian found
Diektrich’s 	mental 	impairments 	non-severe. 	Tr. 	89, 	101. 	In
contrast, 	in 	December 	2020 	and 	March 	2021, 	respectively,
Dr. 	Castro 	and 	Dr. 	Kravitz 	found 	that 	Diektrich’s 	mental
impairments 	were 	severe. 	Tr. 	698, 	718. 	The 	ALJ 	noted 	that
Diektrich has continued to seek treatment and medication for his
mental health problems. Tr. 594. Therefore, as to the severity of
Diektrich’s mental impairments, the ALJ did not find the opinions
of Dr. Murphy or Dr. Sharifian to be persuasive, but he found
Dr. Castro and Dr. Kravitz’s opinions persuasive. Id.
As to the paragraph B criteria, Dr. 	Kravitz found that
Diektrich 	could 	understand, 	remember, 	and 	carry 	out 	simple
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instructions; attend and concentrate for two-hour periods; interact
adequately 	with 	co-workers 	and 	supervisors 	on 	a 	brief 	and
superficial level; and respond appropriately to changes in a routine
work setting. Tr. 712– 31. Dr. Castro found that Diektrich could
understand, remember, and carry out detailed, but not complex,
instructions; make decisions and concentrate for extended periods;
interact appropriately with others; and respond to changes in work
settings. 	Tr. 693– 710. 	The 	ALJ 	noted 	that 	Dr. 	Kravitz 	and
Dr. Castro each cited a 2020 treatment note and Diektrich’s own
reports as the basis for their opinions. Tr. 594 (citing Tr. 693–710,
712– 31). 	The 	ALJ 	found 	that 	Dr. 	Kravitz’s 	opinion 	limiting
Diektrich to simple work was persuasive because of his history of
mental 	problems 	and 	treatment. 	Tr. 	594–95 	(citing 	Tr. 382,
430– 31, 	436–39, 	500, 	554, 	1311, 	1371, 	1570, 	1628–30, 	1576,
1683–84). The ALJ also found Dr. Castro’s opinion as to Diektrich’s
social function was supported. Tr. 595. The ALJ acknowledged
that while Diektrich testified that he has difficulty interacting
with 	others 	(particularly 	in 	crowds), 	the 	record 	shows 	that
Diektrich has repeatedly been described as cooperative and polite
with good eye contact. Id. (citing Tr. 430, 437, 454, 518, 555, 1376,
1683, 2172). The ALJ did not otherwise find Dr. Kravitz and Dr.
Castro’s opinions to be persuasive. Id.
The 	ALJ 	also 	reviewed 	opinions 	related 	to 	Diektrich’s
physical function. Tr. 595. The four opinions by State Agency
Medical Consultants (SAMCs) found that Diektrich was limited to
medium 	work. 	Tr. 85– 94, 	96–107, 	693–710, 	712– 31. 	One 	of
Diektrich’s treating physicians at the VA, Dr. Charles Hachem,
opined 	that 	Diektrich 	had 	no 	physical 	activity 	restrictions.
Tr. 1692. 	The 	ALJ 	observed 	that 	Diektrich’s 	medical 	records
reflected some physical limitations, as described above. Tr. 595
(citing Tr. 333, 388, 402–03, 1344– 45, 1629– 30). Accordingly, the
ALJ found that Dr. Hachem’s opinion was not persuasive. Id.
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The 	ALJ 	also 	found 	that 	the 	four 	SAMC 	opinions 	were 	not
persuasive, as Diektrich’s physical limitations limit him to light,
not medium, work. Id.
There were other statements in the record do not qualify as
opinions, 	so 	the 	ALJ 	did 	not 	analyze 	their 	consistency 	or
supportability, 	although 	he 	did 	consider 	the 	statements
themselves. Certain VA medical records addressed the VA’s view
of 	Diektrich’s 	disability, 	but 	that 	question 	is 	left 	to
the Commissioner to determine under the Commissioner’s rules
and 	criteria, 	which 	are 	different 	from 	the 	VA’s. 	Tr. 	595–96;
see 	20 	C.F.R. 	§ 1504. 	While 	the 	ALJ 	did 	not 	evaluate 	the
persuasiveness 	of 	the 	VA’s 	disability 	determination, 	he 	did
consider 	the 	supporting 	evidence 	underlying 	the 	decision,
including all of the medical evidence from the VA. Tr. 595–96.
The ALJ also considered a July 2015 disciplinary note from
Diektrich’s former employer. Tr. 596 (citing Tr. 301–03). The note
cites 	Diektrich’s 	failure 	“to 	follow 	instructions 	and 	report
information despite being given several reminders.” Id. The ALJ
found that the note did not reflect mental or physical impairments
or an inability to get along with others. Id. The ALJ found that
that conclusion was supported by Diektrich’s medical records, as
his clinical evaluations for mental health did not reflect a cognitive
limitation that accounted for his failure to follow procedure at
work, 	and 	they 	did 	not 	show 	that 	Diektrich 	had 	limited
interpersonal function. The ALJ noted that Diektrich’s medical
records showed that he is cooperative with good eye contact, and
that he had good social support. Id. (citing Tr. 1376, 1576, 1683,
1686). The ALJ concluded that the disciplinary note was not a
medical 	source 	opinion, 	and 	it 	was 	not 	probative 	in 	light 	of
Diektrich’s medical record. Id.
The RFC was determined according to the appropriate legal
framework and is supported by substantial evidence. Each of the
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physical and psychological limitations is supported by the record.
The ALJ considered all of the evidence in the record and weighed
its credibility. While Diektrich testified about and reported to his
medical providers many disabling symptoms, the ALJ did not
credit all of his statements. The ALJ properly considered the
consistency and supportability of the medical opinions in the
record and explained his evaluation of their persuasiveness, as
required 	by 	20 	C.F.R. 	§ 404.1520c. 	The 	ALJ 	also 	properly
considered all of the objective medical evidence in the record,
including Diektrich’s many normal or near-normal mental status
exams. The ALJ then concluded that while the evidence showed
that Diektrich had mental and physical limitations through the
date he was last insured, those limitations were not as severe as
Diektrich asserted. These facts fully support the RFC.
Diektrich 	makes 	numerous 	arguments 	about 	the 	ALJ’s
alleged failure to impose mental limitations in the RFC based on
his finding that Diektrich had “mild” or “moderate” limitations in
all four of the paragraph B areas. ECF No. 11 at 18–29. The ALJ
found 	that 	Diektrich 	had 	a 	“mild” 	limitation 	in 	three 	of 	the
paragraph B functional areas, and a “moderate” limitation in the
fourth area—his ability to concentrate, persist, and maintain pace.
Tr. 	588–89. 	It 	is 	apparent 	that 	the 	ALJ 	did 	account 	for 	his
“moderate” limitation finding by limiting Diektrich to simple tasks
at a non-production rate.
The three mild limitation findings, under the regulations,
are just that—a finding that Diektrich is only slightly limited in
those areas. Listing § 12.00(F)(2)(b). Many cases stand for the
proposition that the ALJ does not have to find a work-related
functional limitation in the RFC simply because he finds a “mild”
or “moderate” limitation in the paragraph B criteria. See, e.g.,
Beasley v. Colvin, 520 F. App’x 748, 754 (10th Cir. 2013) (“The ALJ
was under no obligation to include limitations in social functioning
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in [the claimant’s] RFC based solely on his finding that she had
‘moderate difficulties’ in social functioning as part of the distinct
step-three analysis.”); Gunderson v. Astrue, 371 F. App’x 807, 809
(9th Cir. 2010) (“[T]he ALJ is not required, as a matter of law, to
include all the limitations from the impairments the ALJ deems to
be severe at step two in the ALJ’s final RFC analysis.”); Bray v.
Comm’r of SSA, 554 F.3d 1219, 1228–29 (9th Cir. 2009) (“[The
claimant] offers no authority to support the proposition that a
severe mental impairment must correspond to limitations on a
claimant’s ability to perform basic work activities.”).
Moreover, 	each 	of 	the 	paragraph 	B 	criteria 	have 	many
underlying aspects. See Listing § 12.00E (describing the criteria
and which abilities each area of mental function refers to). The
ALJ read Diektrich’s medical records and each individual finding
by the experts. He did not just rely, in general, on a categorical
label placed on one of the paragraph B criteria by one doctor. For
example, 	while 	Dr. 	Castro 	found 	Diektrich 	had 	a 	moderate
limitation in his ability to interact with others, that appears to be
based solely on the finding that Diektrich was moderately limited
in his ability to accept instructions and respond appropriately to
criticism from supervisors. Tr. 698, 706. In addition to that finding,
Dr. Castro made may others, in which she found no limitations at
all, including in Diektrich’s ability to interact appropriately with
the general public and his ability to get along with coworkers or
peers without distracting them or exhibiting behavioral extremes.
Tr. 705–06.
The ALJ’s conclusions appear to be based on a thorough
reading of the records. Plaintiff has failed to demonstrate that he
is more limited than the ALJ found. He points to no evidence that
the ALJ 	credited that would require 	further limitations. The
record is replete with evidence supporting the RFC.
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Diektrich assigns numerous errors in connection with the
ALJ’s evaluation of Dr. Castro’s opinion by comparing Dr. Castro’s
opinion 	with 	that 	of 	Dr. 	Gonzalez. 	ECF 	No. 	11 	at 	22–27.
Dr. Gonzalez’s 	survey 	response 	indicated 	that 	Diektrich 	was
much more limited than did Dr. Castro’s evaluation. Contrast
Tr. 523–28, with Tr. 693–710. The ALJ rejected Dr. Gonzalez’s
opinion as not persuasive, as he concluded that it conflicted with
the 	objective 	medical 	evidence, 	including 	Dr. 	Gonzalez’s 	own
treatment notes. Tr. 593. Diektrich does not argue that the ALJ’s
rejection of Dr. Gonzalez’s opinion was incorrect. He points to no
objective medical evidence that contradicts the ALJ’s finding that
the 	opinion 	was 	not 	persuasive. 	The 	ALJ’s 	consideration 	of
Dr. Gonzalez’s 	opinion 	was 	within 	the 	requirements 	of 	the
regulations, and it appears to be without error. Thus, Diektrich’s
reliance 	on 	Dr. 	Gonzalez’s 	opinion 	to 	undermine 	the 	ALJ’s
evaluation of Dr. Castro’s opinion is misplaced.
Diektrich argues that the ALJ failed to consider the evidence
underlying the VA’s disability decision. ECF No. 11 at 26–27.
While the ALJ is not bound by the VA’s decisions or administrative
findings, the evidence underlying the decision is evidence that the
ALJ may, and should, consider. However, Plaintiff has not cited
any evidence within the VA record that the ALJ failed to consider.
Under Rule 5 of the Supplement Rules of Social Security, “A brief
must support assertions of fact by citations to particular parts of
the 	record.” 	Fed. 	R. 	Civ. 	P. 	Supp. 	R. 	5. 	Moreover, 	the 	ALJ
specifically acknowledged the VA’s disability determination and
stated 	that 	he 	considered 	all 	of 	the 	evidence 	underlying 	the
decision. Tr. 595–96. The court has no reason to doubt the ALJ’s
representation. See e.g., Brunson v. Astrue, 387 F. App’x 459, 461
(5th Cir. 2010) (finding no reason to dispute the ALJ’s assertion
that his decision was based on “careful review of the evidence”);
Robinson v. Saul, No. 19-2695, 2020 WL 4480872, at *4 (S.D. Tex.
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July 14, 2020) (“As long as the decision is supported by substantial
evidence, the Court accepts the ALJ’s representation that he
‘carefully considered the evidence of record in its entirety.’”).
The court finds no error—legal or factual—in the ALJ’s RFC
assessment.
E. Step Four
At step four, the ALJ determines whether the claimant can
perform 	jobs 	they 	previously 	worked 	by 	comparing 	the 	RFC
determination with the demands of the claimant’s past relevant
work. 20 C.F.R. § 404.1520(f); see also Perez, 415 F.3d at 462. If the
claimant can perform their past work, they are not disabled.
20 C.F.R. § 404.1520(f). If the claimant cannot perform their past
work, the ALJ proceeds to step five. See 20 C.F.R. § 404.1520(g)(1).
The ALJ posed a hypothetical to the VE during the hearing
that contained all of the limitations in the RFC that the ALJ
ultimately found. Tr. 661. The VE testified that a person of the
same age, education, past work history, and limitations as the
claimant, through 	the date 	Diektrich 	was last insured, could
perform his past work as a parking lot enforcement officer. Id.
Based on that testimony, the ALJ found Diektrich was not disabled
through the date he was last insured, and for MQGE benefits,
through December 31, 2022. Tr. 597–98.
Because 	the 	VE’s 	testimony 	was 	based 	on 	the 	ALJ’s
hypothetical 	question 	that 	incorporated 	all 	the 	limitations
reasonably 	recognized 	by 	the 	ALJ, 	and 	because 	Diektrich’s
attorney had the opportunity to cross-examine the VE, the VE’s
testimony is substantial evidence supporting the ALJ’s step-five
determination. See Masterson v. Barnhart, 309 F.3d 267, 273–74
(5th Cir. 2002) (holding that the ALJ properly relied on the VE’s
testimony because the ALJ “scrupulously incorporated” all the
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limitations “supported by the evidence and recognized by the ALJ”
and gave an opportunity for cross examination).
This finding is supported by substantial evidence and is not
in error.
F. Step Five
At step five, the ALJ determines whether the claimant can
perform any other work by considering the claimant’s RFC and
other factors, including age, education, and past work experience.
Schofield, 950 F.3d at 318 (quoting 20 C.F.R. § 404.1520(a)(4)(v)).
If the claimant can perform other work available in significant
numbers in the national economy, the claimant is not disabled. Id.
(citing 20 C.F.R. § 404.1520(g)).
The ALJ found that Diektrich could perform jobs that exist
in significant numbers in the national economy. Tr. 597. As such
he found Diektrich to be not disabled. Tr. 597–98. The ALJ relied
on 	the 	VE’s 	testimony 	that 	an 	individual 	of 	Diektrich’s 	age,
education, work experience, and RFC would be able to work as a
price marker, office helper, or router, as of the date he was last
insured, and as of December 31, 2022. Tr. 597, 661.
As was the case in step four, because the VE’s testimony was
based on the ALJ’s hypothetical question that incorporated all the
limitations 	reasonably 	recognized 	by 	the 	ALJ, 	and 	because
Diektrich’s attorney had the opportunity to cross-examine the VE,
the VE’s testimony is substantial evidence supporting the ALJ’s
step-five determination.
Accordingly, the ALJ’s findings at step five are supported by
substantial evidence and are not the product of legal error.
4. Conclusion
The 	ALJ’s 	decision 	denying 	social 	security 	benefits 	is
consistent with the law and supported by substantial evidence.
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There is no genuine issue of material fact, and summary judgment
is appropriate. Fed. R. Civ. P. 56(a), (c).
Accordingly, the court RECOMMENDS that Diektrich’s
Motion 	for 	Summary 	Judgment, 	ECF 	No. 11, 	be 	DENIED;
that the Commissioner’s Cross-Motion for Summary Judgment,
ECF No. 19, be GRANTED; and that the Commissioner’s final
decision be AFFIRMED.
The 	parties 	have 	fourteen 	days 	from 	service 	of 	this
Memorandum and Recommendation to file written objections. 28
U.S.C. 	§ 636(b)(1); 	Fed. 	R. 	Civ. 	P. 	72. 	Failure 	to 	timely 	file
objections will preclude appellate review of factual findings or legal
conclusions, except for plain error. See Thomas v. Arn, 474 U.S.
140, 147–49 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276–77 (5th
Cir. 1988).
Signed at Houston, Texas, on March 2, 2026.
______________________________________
Peter Bray
United States Magistrate Judge
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