Romo v. O'Malley

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION
LEE R.1, 	§
Plaintiff, 	§
§
v. 	§ 	CIVIL ACTION NO. 1:24-cv-165
§
FRANK BISIGNANO,2 	§
as Commissioner of Social Security, 	§
Defendant. 	§
REPORT AND RECOMMENDATION AFFIRMING
DENIAL OF SOCIAL SECURITY BENEFITS
I. 	Synopsis
Lee R. (Lee) comes to the Social Security Administration (SSA) with a variety of
complaints, including hearing and vision loss, a bad back, hurting knees and mental health
conditions including anxiety and depression. Lee was denied social security benefits. On appeal,
Lee’s chief complaint is he does not have the mental capacity to work. Lee complains the ALJ
erred when the Judge failed to properly consider the opinion of the Dr. Gayle Pitcher’s opinion
regarding his mental health. This Court find the ALJ used the proper legal standards supported by
substantial evidence to discredit Dr. Pitcher’s opinion of Lee’s mental status.
II. 	Jurisdiction
This Court has jurisdiction over this case pursuant to 42 U.S.C. § 405(g) to review a final
decision of the Social Security Commissioner for claims arising under Title XVI of the Social
Security Act, 42 U.S.C. § 1382c(a)(3)(A). Venue is proper in the Southern District of Texas,
Brownsville Division, because Mr. Lee resides in Lyford, Willacy County, Texas. Dkt. No. 1, p.
1.; 42 U.S.C. § 405(g); 28 U.S.C. § 124(b)(6). Pursuant to 28 U.S.C. § 636(b)(1), this case was
referred to the undersigned United States Magistrate Judge to conduct all pretrial proceedings. Dkt.
No. 4.
1 Due to significant privacy concerns in social security cases and noting that judicial opinions are not subject
to Federal Rule of Civil Procedure 5.2, any opinion, order, judgment, or other disposition in this case will
refer to the claimant only by first name and last initial.
2 Frank Bisignano is now the Commissioner of Social Security and should be substituted as Defendant,
pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.
United States District Court
Southern District of Texas
ENTERED
November 25, 2025
Nathan Ochsner, Clerk
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III. 	Standard of Review
This Court’s review of the Commissioner’s decision is limited to determining whether the
decision was supported by substantial evidence and whether the relevant legal standards were
applied in reaching this decision. Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir. 1992).
Substantial evidence is that which is relevant and sufficient for a reasonable mind to accept as
adequate to support a conclusion. Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993) (citing
Richardson v. Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is more than a mere
scintilla, but less than a preponderance. Moore v. Sullivan, 919 F.2d 901, 904 (5th Cir. 1990).
“Under the substantial-evidence standard, a court looks to an existing administrative record
and asks whether it contains ‘sufficient evidence’ to support the agency’s factual determinations.”
Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). When applying the substantial evidence
standard, this Court is not to “reweigh the evidence in the record, nor try the issues de novo, nor
substitute [its] judgment for that of the [Commissioner’s].” Johnson v. Bowen, 864 F.2d 340, 343.
Additionally, “[c]onflicts within the evidence are not for the court to resolve.” Selders v. Sullivan,
914 F.2d 614, 617 (5th Cir. 1990). The Administrative Law Judge’s (ALJ) decision must stand or
fall on the rationale set forth in the ALJ’s opinion. Newton v. Apfel, 209 F.3d 455, 458 (5th Cir.
2000). If the Commissioner’s findings are supported by substantial evidence, the findings are
conclusive and must be affirmed. 42 U.S.C. § 405(g); Brown v. Apfel, 192 F.3d 492, 496 (5th Cir.
1999).
IV. 	Disability Determination Process
Title II of the Social Security Act provides benefits to individuals with a disability. 42
U.S.C. § 423(d)(1)(A); Heckler v. Campbell, 461 U.S. 458, 459-61 (1983). The Social Security
Act defines disability as the “inability 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.” Id.
A claimant seeking Social Security benefits bears the burden of proving a disability as
defined by the Social Security Act, 20 C.F.R. § 416.920(a)(4). A claimant satisfies that burden,
when he or she demonstrates a physical or mental impairment which lasts at least twelve months
and 	precludes 	that 	person 	from 	pursuing 	any 	substantial 	gainful 	activity. 	20 	C.F.R. 	§
416.920(a)(4)(ii). Once the claimant proves disability as defined by the SSA, the administrative
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law judge utilizes a five-step sequential process to determine whether the claimant can perform
substantial gainful activity. This five-step process is set forth in 20 C.F.R. §§ 404.1520(b)-(f),
416.920(b)-(f). If an individual is found disabled at any point in the sequential review, further
inquiry is unnecessary as the person is entitled to benefits. 20 C.F.R. §§ 404.1520(a), 416.920(a).
At Step One, the claimant must not be presently working at any substantial gainful activity,
or work activity involving the use of significant physical or mental abilities for pay or profit. 20
C.F.R. §§ 404.1527, 416.972.
At Step Two, the claimant must have an impairment or a severe combination of
impairments. 20 C.F.R. §§ 404.1520(c), 416.920(c); Stone v. Heckler, 752 F.2d 1099, 1101 (5th
Cir. 1985), cited in Loza v. Apfel, 219 F.3d 378, 392 (5th Cir. 2000).
At Step Three, disability will be found if the impairment or combination of impairments
meets or equals an impairment listed in the Listing of Impairments, 20 C.F.R. Pt. 404, Subpt. P,
App. 1. 20 C.F.R. §§ 404.1520(d), 416.920(d).
At Step Four, the impairment(s) must prevent the claimant from returning to his past
relevant work. 20 C.F.R. §§ 404.1520(e), 416.920(e). Past relevant work is defined as substantial
gainful activity performed within the last fifteen years, where the claimant’s employment lasted
long enough for the claimant to learn how it is performed. 20 C.F.R. § 404.1560(b)(1).
At Step Five, the impairment must prevent the claimant from doing any work. To determine
this, the ALJ considers the claimant's residual functional capacity, age, education, and past work
experience. 20 C.F.R. §§ 404.1520(f), 416.920(f); Crowley v. Apfel, 197 F.3d 194, 197-98 (5th
Cir. 1999). Residual functioning capacity “is an administrative assessment of the extent to which
an individual’s medically determinable impairment(s), including any related symptoms, such as
pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to
do work-related physical and mental activities.” Irby v. Barnhart, 180 Fed. App’x 491, 493 (5th
Cir. 2006) (unpub.) (citing Social Security Ruling (“SSR”) 96-8p).
The Commissioner may demonstrate the availability of other employment for the claimant.
If the Commissioner accomplishes this, the burden of proof shifts back to the claimant to rebut
that finding. Selders v. Sullivan, 914 F.2d 614, 618 (5th Cir. 1990) (per curiam). The claimant must
then prove he or she is unable to perform the alternate work the Commissioner identified. Taylor
v. Bowen, 782 F.2d 1294, 1298 (5th Cir. 1986); Millet v. Schweiker, 662 F.2d 1199, 1201 (5th Cir.
1981).
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The ALJ uses a two-part determination when considering the claimant’s impairment and
the claimant’s residual functioning capacity. The first part determines whether the claimant suffers
from a medically determinable impairment “reasonably capable of producing” the claimed
symptoms. Soc. Sec. Ruling 16-3p Titles II & XVI: Evaluation of Symptoms in Disability Claims,
SSR 16-3P (S.S.A. Oct. 25, 2017). Claimed symptoms “will not be found to affect [one’s] ability
to do basic work activities unless medical signs or laboratory findings show that a medically
determinable impairment(s) is present.” 20 C.F.R. § 404.1529(b). To proceed to the second part of
the inquiry, the ALJ must find that the claimant has a medically determinable impairment capable
of causing the alleged symptoms. Winget v. Astrue, 2007 WL 4975206, *10 (W.D. Tex. 2007)
(unpubl.). If the ALJ does not find that the claimant indeed has a medically determinable
impairment capable of causing the alleged symptoms under the first part of the inquiry at Step
Five, the ALJ cannot proceed to the second part of the analysis. Therefore, a claimant cannot
receive a positive disability determination if the claimant’s impairment would not objectively and
reasonably cause the reported symptoms. But if the medical evidence objectively identifies an
impairment that could reasonably produce the claimed symptom, the inquiry turns to the severity
and impact of that symptom under the second part of the inquiry.
The second part of Step Five evaluates “the intensity, persistence, and limiting effects of
the individual’s symptoms” on a person’s ability to do basic work activities. SSR 16-3p (S.S.A
Oct. 25, 2017). In performing this evaluation, the ALJ considers the following matters: objective
medical evidence; the claimant’s testimony; the claimant’s daily activities; the location, duration,
frequency, and intensity of the individual’s symptoms; factors that precipitate and aggravate the
symptoms; the type, dosage, effectiveness, and side effects of any medication the individual takes
or has taken to alleviate pain or other symptoms. Id. In addition to medication, the ALJ also
considers other treatment the individual receives or has received for relief of pain or other
symptoms. 20 C.F.R. §§ 404.1529(c), 416.929(c). Lastly, the ALJ also considers any other factors
relating to the claimant’s functional limitations and restrictions resulting from pain or other
symptoms. Id.
When a mental impairment is present at Step Five, the ALJ must “first evaluate [claimant’s]
pertinent symptoms, signs, and laboratory findings to determine whether [claimant has] a
medically determinable mental impairment.” 20 C.F.R. § 404.1520a(b)(1); See also 20 C.F.R. §
404.1520a; Boyd v. Apfel, 239 F.3d 698, 705 (5th Cir. 2001) (determining merits of mental
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disability claims). If the ALJ determines that the claimant has a medically determinable mental
impairment, then the ALJ must use a special technique to evaluate the severity of the impairment.
To do so, the ALJ evaluates the degree of functional limitation resulting from the impairment in
four separate areas deemed essential for work: (1) understand, remember, or apply information;
(2) interact with others; (3) concentrate, persist, or maintain pace; and (4) adapt or manage oneself.
20 C.F.R. §§ 404.1520a(b)(2)–(c)(4). These limitations can be rated “none, mild, moderate,
marked, [or] extreme.” 20 C.F.R. § 416.920a(c)(4). If the degree of functional limitation is “none”
or “mild” in each of the four areas, the ALJ must find the impairment “not severe,” which generally
concludes the analysis and terminates the proceedings. 20 C.F.R. § 404.1520a(d)(1). If the mental
impairment is “severe,” under §§ 404.1520a(c)(4) and (d)(1)(2), the ALJ must then determine if it
meets or equals a listed mental disorder under Appendix 1. See 20 C.F.R. § 404.1520a(d)(2). If
the impairment is severe but does not reach the level of a listed disorder, then the ALJ must conduct
an RFC assessment considering the mental impairment. 20 C.F.R. § 404.1520a(d)(3).
V. 	Background
a. 	Administrative Procedural History
Lee filed an application for disability insurance benefits on November 5, 2021. Dkt. No. 8-
1, p. 249-250.3 Lee also filed an application for supplemental security income. Id. at 253-258. Lee
alleges an onset date of April 27, 2020. Id. at 249, 253. The Commissioner denied both claims on
April 25, 2022. Id. at 103-104. After reconsideration, the Commissioner denied both claims again
on March 14, 2023. Id. at 113, 122. An Administrative Law Judge held a telephone hearing on
Lee’s applications on February 13, 2024. Id. at 50-88.
On March 4, 2024, the ALJ determined that Mr. Lee is not disabled. Id. at 31-45. Lee
appealed the ALJ’s decision with the Appeals Council. Id. at 245. The Appeals Council denied
further review and found no regulatory reason to review the ALJ’s decision. Id. at 1. Accordingly,
all available administrative remedies have been exhausted, and this case is ripe for judicial review.
See Higginbotham v. Barnhart, 405 F.3d 332, 336 (5th Cir. 2005). On November 7, 2024, this
cause was initiated pursuant to 42 U.S.C. § 405(g), seeking to reverse the Commissioner’s negative
determination. Dkt. No. 1.
3 The citation to the record refers to the Bates-stamped number on each record page.
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b. Factual History
Lee was 46 years old when he filed for benefits. Dkt. No. 8-1, p. 249, 253. Lee’s claim for
disability was due to a vision and hearing problem, back and knee pain, a broken bone, and anxiety.
Id. at 105, 114. Lee alleged an inability to function and/or work as of April 27, 2020. Id. at 249,
253. At the time of filing, the SSA determined Lee suffered from Osteoarthritis and Allied
Disorders as well as Disorders of the Skeletal Spine, and both were categorized as severe. Id. at
91. The SSA also noted there are no mental medically determinable impairments established. Id.
There was no Mental Residual Functional Capacity associated with Lee’s claim. Id. at 97.
c. 	Hearing Testimony
On February 13, 2024, the ALJ (Reeves) held a hearing concerning Lee’s case. Dkt. No.
8-1, pp. 50-88. Lee’s attorney stated that Lee has “moderate disc space nerve at L5-S1, the facet
arthropathy and possible mid-spinal stenosis.” Id. at 55. Additionally, his attorney stated that Lee
“does have the ability to sustain concertation and persistence, but it appears unlikely that he could
maintain affective social interaction on a consistent independent basis with supervisors, coworkers
and the public or cope with normal pressures in a competitive work setting.” Id.
Lee wore his hearing aids during the hearing, and he stated that with the volume up “pretty
high” on his hearing aid, he could hear everyone on the phone call. Id. at 65. However, Lee added
that “in reality in person and, like, face to face, it will fall away long distance.” Id. Further, Lee
told the ALJ that “it is difficult to communicate with people.” Id. In situations where he tries to
communicate with others, Lee stated, “I can’t hear nothing.” Id. When asked if he has a more
difficult time hearing in a room where there is background noise, Lee answered affirmatively. Id.
at 78. Lee also stated that he hears a ringing noise, also known as tinnitus. Id. at 81.
Regarding his sight, Mr. Lee states that he has a prescription for a soft contact lens from
“a long time ago, maybe about ten” years presumably. Id. at 66. Lee states that without the contact
“I’m totally blurry to blind . . . [and] even though I use my contact, if I read a book, I have to take
it off and just read it real close, so I can read it.” Id. at 66. Lee states that “in order to read something
or in order to reattach something, or, you know, stuff like that” he must have his contact lens off.
Id. Lee states that although he has glasses, he “can’t have the glasses on because . . . the glass is
so thick and it hurts my head. I start getting headaches.” Id. When asked whether he can drive with
his contact on, Lee states that “[t]there’s a time I can, there’s a time I can’t. But there’s time I can,
but I get kind of scared.” Id. at 67. He states that “I only do the day . . . At night I can’t see. I don’t’
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drive at all at night.” Id. Lee also stated that he received a surgery where his left eye was taken out
and replaced with a prosthesis. Id. at 66. Lee also told the ALJ that he moved from jobs “because
there was problems, like, I can’t see and stuff like that.” Id. at 60.
When asked about sitting and standing, Lee states that he can stand “about 20, 30 minutes
and then I have to sit down and wait.” Id. at 69. He provides the same approximation for sitting.
Id. He states that he must “be constantly” standing and sitting. Id. Lee states this is necessary
“Because I feel like it’s . . . a pinched nerve or something like that.” Id. at 69-70. Lee also states
that at the time of the hearing, he was suffering with anxiety. Id. at 78. He states that he gets anxiety
and depression “once in a while[,]” adding that he gets panic attacks about twice a month. Id. at
74. Lee states that he takes some over the counter medication “once in a while when I need it.” Id.
d. Medical Evidence Reviewed
The ALJ had one SSA consultive examine Lee for review of his mental health. Dkt. No. 8-
1, p. 424. Gayle Pitcher, Ph. D., conducted the exam and diagnosed Lee with anxiety disorder due
to another medical condition, claustrophobia, and development disorder of scholastic skills,
unspecified. Id. Dr. Pitcher noted that Lee has not consistently accessed general medical or mental
health treatment for his diagnosed conditions, but Dr. Pitcher still noted Lee’s condition has
persisted 	for 	several 	years 	despite 	getting 	some 	medical 	treatment 	and 	medication. 	Id.
Additionally, Dr. Pitcher stated that Lee’s current physical and medical conditions appeared to be
impacting his mental state negatively. Id. Lastly, Dr. Pitcher stated that Lee’s condition could
improve with consistent general medical treatment and mental health care. Id.
When considering Lee’s functional capacity, Dr. Pitcher found that “Lee is unlikely to have
the ability to sustain concentration and persist in work-related activity at a reasonable pace due to
anxiety.” Id. Dr. Pitcher also found it is “unlikely that Lee could maintain effective social
interaction on a consistent and independent basis with supervisors, co-workers, and the public, or
cope with normal pressures in a competitive work setting.” Id. Lastly, concerning Lee’s Functional
Capacity, Dr. Pitcher provided that “[w]ith general medical care Lee may benefit from vocational
services for job placement assistance and/or to explore vocational options for individuals with his
limitations.” Id. Dr. Pitcher also stated that Lee’s “activity level and attention span appeared to be
normal.” Id. at 421.
State agency consultant Barry Rudnick, M.D., performed a review of Lee’s file and
completed a Mental Residual Functional Capacity assessment at the request of the Commissioner.
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Id. at 123-124. Dr. Rudnick found that Lee’s allegations concerning the severity and limiting
effects of his mental impairments were not wholly supported. Id. at 108, 117. Dr. Rudnick stated
that he observed no cognitive difficulties in a face-to-face interview with Lee. Id. Dr. Rudnick also
reported that Lee appeared to be fully orientated, had his memory intact, and his knowledge,
speech, attention, and concentration were all normal. Id. Dr. Rudnick noted that Lee does not need
reminders for hygiene or to take medication; he can go out alone; he drives; he shops in stores; he
was fully orientated; his abstract thinking was limited, but his memory was intact. Id. Dr. Rudnick
also noted Lee’s own reports stating that he was frustrated by his physical limitations; dealt with
insomnia; and found his physical ailments limited his concentration and stamina. Id.
State agency consultant Jean Germain, Ph. D. performed a consultive psychiatric
assessment. Id. at 91, 98. Dr. Germain found that there were no medically determinable
impairments established in Lee’s application. Id. Like Dr. Rudnick, Dr. Germain found that Lee’s
alleged limitations were not supported by the medical evidence in his record. Id. Additionally, Dr.
Germain stated that Lee’s memory was intact; his speech, attention, and concentration were all
normal. Id.
The ALJ noted Lee’s medical records are not consistent with his allegations of disability
as they indicate Lee rarely sought or received treatment. Id. at 40. Specifically regarding any
mental disability, the ALJ found Lee’s mental exams indicated relatively unremarkable psychiatric
findings with no acute distress, alert mental status, full orientation, no mood disorder, and calm
affect. Id.
VI. 	Commissioner’s Decision
Using the Social Security Administration’s established five-step sequential evaluation
process for determining whether an individual is disabled, the ALJ determined Lee was not
disabled within the meaning of the Social Security Act. Dkt. No, 8-1, p. 32. The ALJ did find that
Lee had several severe physical impairments, but the ALJ found these severe physical impairments
only represented a minimal limitation in the ability to perform basic work activities. Id. The ALJ
considered but did not find that Lee’s mental impairments met the required SSA criteria of being
one extreme limitation or two marked limitations in the broad area of mental function. Id. at 35.
Accordingly, the ALJ did not find that Lee had mental impairments. Id. at 39. The ALJ also
considered but did not find required SSA criteria for a serious and persistent mental disorder. Id.
at 37. The ALJ concluded that Lee has the residual functional capacity (RFC) to perform light
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work as defined in C.F.R. 404.1567(B) and 416.967(B) with some exceptions. Id. at 37-38.
Accordingly, the ALJ found Lee was not disabled based on both his application for Disability
Insurance Benefits and his application for Supplemental Security Income. Id. at 45.
The ALJ made the following findings relevant to the issue on appeal:
(1) The claimant meets the insured status requirements of the Social Security Act through
December 31, 2025.
(2) The claimant has not engaged in substantial gainful activity since April 27, 2020, the
alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
(3) The claimant has the following severe impairments: left eye blindness, degenerative
disc disease of the lumbar spine, bilateral hearing loss, osteoarthritis of the right knee,
and generalized anxiety disorder (20 CFR 404.1520(c) and 416.920(c)).
(4) The claimant does not have an impairment or combination of impairments that meets
or medically equals the severity of one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d),
416.925 and 416.926).
(5) After careful consideration of the entire record, the undersigned finds that the claimant
has the residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b) except the claimant can perform no climbing of ladders,
ropes, or scaffolds. . . . The claimant can carry out simple instructions and can adapt to
occasional changes in a work setting.
(6) Considering the claimant’s age, education, work experience, and residual functional
capacity, there are jobs that exist in significant numbers in the national economy that
the claimant can perform (20 CFR 404.1569, 404.1569a, 416.969, and 416.969a).
(7) The claimant has not been under a disability, as defined in the Social Security Act, from
April 27, 2020, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
See Dkt. No. 8-1, pp. 33-45.
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VII. 	Analysis
On appeal Lee raises one issue4: “The ALJ failed to adequately weigh Dr. Pitcher’s
psychological opinions under the required regulations and substituted his lay interpretation of the
medical data for that of a trained psychologist.” Dkt. No. 10, p. 1. Lee argues the ALJ’s
persuasiveness findings concerning Dr. Pitcher’s psychological opinion on Lee’s mental diagnoses
“did not comply with regulatory requirements and are not supported by substantial evidence.” Id.
at 13. More specifically, Plaintiff contends that “the ALJ second-guessed . . . Dr. Pitcher’s
interpretation of her own examination, findings, reinterpreted the raw medical data and substituted
his opinion for that of the trained psychologist.” Id. The Commissioner argues that the ALJ found
“Dr. Pitcher’s opinion was not persuasive because it was inconsistent with other evidence in the
record.” Id. at 5. The Commissioner also counters that “Dr. Pitcher’s report was internally
inconsistent[,]” and that Dr. Pitcher’s restrictive findings “were not supported by her examination
findings.” Id.
On February 4, 2023, Lee met with Gayle Pitcher, Ph. D., for a psychological consultative
examination as requested by the SSA. Dkt. No. 8-1, p. 41. Dr. Pitcher found Lee to be suffering
from anxiety disorder and claustrophobia. Id. The ALJ considered Dr. Pitcher’s assessment in light
of the other evidence developed in Lee’s social security record and found the doctor’s opinion to
be unpersuasive and internally inconsistent. Id. After making this finding, the ALJ then crafted an
RFC based on Lee’s record. The ALJ considered Lee’s mental impairments, which were also
assessed by Social Security Administration non-examining consultant Barry Rudnick, M.D. Id. at
42-43. The ALJ’s crafted RFC discusses Lee’s mental restrictions for light work that allows him
to carry out simple instructions and adaptations to occasional changes in a work setting. Id. at 38.
The ALJ used the relevant legal standards supported by substantial evidence in crafting
Lee’s RFC after discussing his discounting of Dr. Pitcher’s opinion. An ALJ is given the sole
responsibility to make an RFC determination and the ALJ is free to “reject the opinion of any
4 In Lee’s initial filing, “Complaint for Judicial Review of Disallowance of Social Security Benefits” (Dkt. No. 1),
Lee appeared intent to raise three issues on appeal: an objection to the Vocational Expert’s testimony, a complaint
on the ALJ’s failure to address Lee’s vision loss, and the adequate consideration of Dr. Pitcher opinion. Dkt. No. 1.
However, Lee only briefed the issue concerning the ALJ’s allegedly improper consideration of Dr. Pitcher’s
assessment of Lee. Dkt. No. 10. Because the Court can only consider the issues briefed, the Court considers only this
one issue. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (finding that pro se prisoner abandoned arguments
“by failing to argue them in the body of his brief . . . . only the issues presented and argued in the brief are addressed.”)
and United States v. Reagan, 596 F.3d 251, 254 (5th Cir. 2010) (defendant's failure to offer any “arguments or
explanation ... is a failure to brief and constitutes waiver.”).
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physician when the evidence supports a contrary conclusion.” Newton, 209 F.3d at 455 (quoting
Paul v Shalala, 29 F.3d 208, 211 (5th Cir. 1994)).
In rejecting Dr. Pitcher’s opinion, the ALJ considered the opinions of Dr. Barry Rudnick
and Jean Germain, Ph.D., two other medical experts who examined Lee’s record for the purpose
of rendering a decision on Lee’s mental health and its limitations on him. Dkt. No. 8-1. pp. 42-43.
Dr. Rudnick found limitations for Lee in abstract thinking, calculation, anxiety but found normal
limits on mood and affect with no suicidal or homicidal ideation, no hallucinations, intact memory,
full orientation, normal recall, normal fund of knowledge, normal speech, normal attention and
concentration, fair judgment and fair insight. Id. at 42-43. Dr. Germain found no medically
determinable mental impairment for Lee. Id. Thereafter, the ALJ crafted an RFC for Lee with more
mental health restrictions than that recommended by either Drs. Rudnick or Germain. The ALJ
found 	Dr. 	Pitcher 	unpersuasive 	because 	her 	opinion 	is 	not 	consistent 	with 	these 	other
examinations. Id. at 41.
In further rejecting Dr. Pitcher’s testimony, the ALJ found Lee had more restrictions than
discussed by Dr. Pitcher. Id. at 42. The RFC crafted by the ALJ provides more restriction for only
light work for Lee with simple instruction. Id. at 38.
The ALJ also discussed his rejection of Dr. Pitcher’s opinion as being internally
inconsistent. Dr. Pitcher’s notes on Lee state he had a normal activity level and attention span,
logical thought process, and normal psychomotor behavior. Id. at 421-423. Given that Dr. Pitcher’s
report includes notes on Lee that consider him to fall into a normal range, Dr. Pitcher’s ultimate
diagnosis that Lee could not maintain employment because of his mental health is inconsistent
with the rest of her report. Id. at 41. The ALJ also found Dr. Pitcher’s review to be internally
inconsistent, because “Dr. Pitcher assessed concertation limitations but indicated normal attention
span . . . .” Id. See 20 C.F.R. § 416.926a(e)(2); Price, 401 Fed. App'x. at 986 (5th Cir. 2010) (“The
ALJ does not need to comment on every piece of evidence, but only must build an accurate and
logical bridge between the evidence and the final determination.”). The inconsistency in Dr.
Pitcher’s record supports the ALJ’s ultimate decision to refuse to rely upon Dr. Pitcher’s opinion
on Lee’s mental diagnosis. Further, the ALJ’s given reasons for finding Dr. Pitcher’s report
internally inconsistent support the ALJ’s final decision. See Newton, 209 F.3d at 458.
Because Lee’s own medical record is not indicative of Dr. Pitcher’s mental diagnosis and
her resulting restrictions, the Court finds the ALJ properly considered the record as a whole to
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reject Dr. Pitcher’s opinion. Both medical experts Dr. Rudnick and Dr. Germain found that Lee’s
record did not support Lee’s allegations of mental disorders. Dkt. No. 8-1, p. 42-43. The ALJ noted
that Lee’s medical history “is not necessarily consistent with the allegations of disability, as the
record does not reflect the level of medical treatment one would expect of a disabled individual.”
Id. at 40. Additionally, the ALJ found that the mental exams in Lee’s record “indicated no acute
distress, alert mental status, full orientation, no mood disorder, and calm affect.” Id. Further, the
ALJ notes, and the record shows, that Lee “rarely sought or received treatment.” Id. See Villa v.
Sullivan, 895 F.2d 1019, 1024 (5th Cir. 1990) (stating the ALJ “was not precluded from relying
upon the lack of treatment as an indication of nondisability.”). Considering Lee’s lack of medical
treatment for mental disorders and the corresponding missing medical information in his record,
this Court finds the ALJ properly rejected Dr. Pitcher’s opinion.
Because the ALJ based the RFC determination on the record as a whole and did not
substitute his own opinion, the Court finds the ALJ followed the proper legal standards. As
discussed above, other medical experts disagreed with Dr. Pitcher’s opinion. Additionally, Lee’s
testimony at the hearing, Lee’s record, and Lee’s lack of documented mental health treatment
formed a proper basis in the record for the ALJ to reject Dr. Pitcher’s opinion. See Moss v. Comm’r
of Social Security, 2020 WL 896561, at *3 (W.D.N.Y. Feb. 25, 2020) (“The ALJ's analysis ... must
be sufficiently discernible as to allow a reviewing court to ensure that the ALJ employed the proper
standards and rendered a decision supported by substantial evidence.”). Considering this evidence
in the record and the ALJ’s reasoning as written in the opinion, this Court finds the ALJ did not
substitute his own opinion for that of a medical expert.
The Court finds the ALJ’s comprehensive discussion of Lee’s medical evidence and
articulated rejection of Dr. Pitcher’s opinion is supported by substantial evidence in the record.
The court cannot overturn a SSA finding when substantial evidence supports the conclusion
reached by the ALJ. Greenspan v. Shalala, 38 F.3d 232, 240 (5th Cir. 1994). The Court finds that
the administrate record contains sufficient evidence using the relevant legal standards to support
the Commissioner’s factual determination of a denial of Lee’s benefits. Biestek, 139 S. Ct. at 1154
(2019).
Given the above, the Court finds the Commissioner’s findings are supported by substantial
evidence. Accordingly, the Commissioner’s findings are conclusive and must be affirmed. 42
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U.S.C. § 405(g); Brown, 192 F.3d at 496. For these reasons, the Court finds affirming the
Commissioner’s decision denying Lee social security benefits is warranted.
VIII. 	Recommendation
The Court RECOMMENDS Lee’s appeal be DENIED because the ALJ correctly
evaluated, considered and analyzed phycological expert Dr. Pitcher’s opinion using the correct
legal standards supported by substantial evidence.
The Court RECOMMENDS AFFIRMING the ALJ’s opinion denying Lee’s social
security benefits.
The parties have fourteen (14) days from the date of being served with a copy of this Report
and Recommendation in which to file written objections, if any, with United States District Judge
Fernando Rodriguez Jr. 28 U.S.C. § 636(b)(1). When filing an objection, a party must object to
specific facts or legal findings in this Report and Recommendation. The District Judge is not
required to consider frivolous, conclusive, or general objections. Battle v. United States Parole
Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
If any party fails to timely object to any factual or legal findings in this Report and
Recommendation, the District Judge is not required to conduct a de novo review of the record
before adopting these findings. If the District Judge chooses to adopt such findings without
conducting a de novo review of the record, the parties may not attack those findings on appeal,
except on the grounds of plain error. Alexander v. Verizon Wireless Servs., L.L.C., 875 F.3d 243,
248 (5th Cir. 2017).
Signed on November 25, 2025.
__________________________
Karen Betancourt
United States Magistrate Judge
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