Luna v. Dudek

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
ROEL FELIPE LUNA,
Plaintiff,
VS.
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CIVIL ACTION NO. 2:25-CV-00083
LELAND DUDEK,
Defendant.
MEMORANDUM AND RECOMMENDATION
Plaintiff Roel F.L. (“Roel”)1 filed this action pursuant to 42 U.S.C. § 405(g) to
review the decision of the Commissioner of Social Security (“the Commissioner”) to deny
his application for Social Security disability benefits. Now pending are Roel’s and the
Commissioner’s construed cross-motions for summary judgment. (D.E.s 9, 12, 13). Roel
contends that the ALJ failed to apply the correct legal standard when she: (1) relied on
occupations at step five of the sequential evaluation that had requirements inconsistent with
the limitations in the residual functional capacity (“RFC”); and (2) failed to include mental
limitations in the RFC that were congruent with the earlier finding of severe mental
impairments. For the reasons discussed further below, it is recommended that Roel’s
1 Pursuant to the May 1, 2018, “Memorandum Re: Privacy Concern Regarding
Social Security and Immigration Opinions” issued by the Committee on Court
Administration and Case Management of the Judicial Conference of the United States, this
order uses only Plaintiff’s first name and last initial.
United States District Court
Southern District of Texas
ENTERED
February 10, 2026
Nathan Ochsner, Clerk
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motion (D.E. 9) be DENIED, the Commissioner’s motion (D.E. 12) be GRANTED, and
this cause of action be DISMISSED.
I. JURISDICTION
This Court has jurisdiction under 42 U.S.C. § 405(g) to review a final decision of
the Commissioner of Social Security and venue is appropriate because Roel resides in Jim
Wells County, Texas. 42 U.S.C. § 405(g); 28 U.S.C. § 124(b)(6).
II. BACKGROUND & ADMINISTRATIVE RECORD
a. Application and Hearing
In May 2023, Roel filed an application for disability insurance benefits, alleging a
disability commencing on May 1, 2022. (D.E. 7-1 at 185-86, 234-42). The Commissioner
denied Roel’s application both initially and on reconsideration. (Id. at 72-73).
The ALJ held a hearing on August 21, 2024. (Id. at 45). At the hearing, a vocational
expert identified Roel’s past relevant work as an oil field equipment mechanic and forklift
truck operator. (Id. at 57). In a first hypothetical, the ALJ asked the vocational expert
whether a person with the same age, educational history, and work history as Roel could
complete his past work if he was limited to medium-exertion work and: (1) could only
occasionally balance, stoop, kneel, and crouch, but never crawl; (2) could occasionally
climb ramps or stairs, but never climb ladders, ropes, or scaffolds; and (3) must avoid
hazards like moving machinery or heights and have no exposure to vibrations. (Id. at 58-
59). The vocational expert responded that such a person could not complete Roel’s past
jobs, but could perform other jobs including: (1) marker, DOT 369.687-026 with over
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57,000 jobs; (2) hand packager, DOT 920.587-018 with over 175,000 jobs; and (3) order
picker, DOT 922.687-058 with over 55,000 jobs. (Id. at 59).
In a second hypothetical, the ALJ asked if jobs would be available if the person was
limited to light-exertion jobs with all the other limitations from the first hypothetical. (Id.
at 59-60). The vocational expert responded that such a person could perform jobs such as
office helper, laundry folder, and mail clerk. (Id. at 60). In a third hypothetical, the ALJ
inquired about a person who was limited to medium work, had all the other limitations
previously discussed, and was further limited to occasional concentrated exposure to
environmental irritants such as fumes, dust, and gases, and no concentrated exposure to
extreme heat, cold, or humidity. The vocational expert responded that such a person could
perform the jobs previously identified. (Id.). Similarly, if the person was limited to
understanding, remembering, and carrying out detailed instructions and tasks, but not
complex instructions or tasks, the previously identified jobs would still be available. (Id.).
Finally, the same was true if the person was limited to light work. (Id. at 61). The
vocational expert testified that her testimony was based on the information in the DOT,
and where the DOT was silent on an issue, based on her knowledge, education, training,
and experience. (Id. at 62).
b. ALJ Decision
On November 21, 2024, the ALJ issued an opinion concluding that Roel was not
under a disability since May 1, 2022. (Id. at 22-37). At the first step of the sequential
evaluation process, the ALJ concluded that Roel had not engaged in substantial gainful
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activity since May 1, 2022. (Id. at 25). At the second step, the ALJ concluded that Roel
had several severe impairments, including type II diabetes mellitus, obstructive sleep
apnea, allergic rhinitis and recurrent sinusitis, testicular hypofunction and hypogonadism,
osteoarthritis of the knees, plantar fasciitis and left heel spur, lumbar degenerative disc
disease, obesity, migraines, overactive bladder, somatic symptom disorder, unspecified
anxiety disorder, and uncomplicated bereavement. (Id.). At the third step, the ALJ
concluded that Roel did not have an impairment or combination of impairments that met
or medically equaled one of the listed impairments in 20 C.F.R. § 404, Subpart P, Appendix
1. (Id. at 26). When considering the Paragraph B criteria for mental impairments, the ALJ
concluded that Roel had: (1) a mild limitation in understanding, remembering, or applying
information; (2) a mild limitation in interacting with others; (3) a moderate limitation in
concentrating, persisting, or maintaining pace; and (4) a mild limitation in adapting or
managing oneself. (Id. at 27-28). The ALJ noted that the limitations identified in the
Paragraph B criteria were not a mental RFC assessment. (Id. at 28-29).
The ALJ concluded that Roel had the RFC to perform medium work, with additional
limitations including: (1) occasional balancing, stooping, kneeling, and crouching, but no
crawling; (2) occasional climbing of ramps or stairs, but no climbing of ladders, ropes, or
scaffolds; (3) no exposure to hazards such as moving machinery and heights; (4) no
exposure to vibrations; (5) occasional, concentrated exposure to environmental irritants
such as fumes, dust, and gases; (6) no concentrated exposure to extreme heat, cold, or
humidity; and (7) the ability to understand, remember, and carry out detailed instructions
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and tasks, but not complex instructions or tasks. (Id. at 29). At step four, the ALJ
concluded that, based on his RFC, Roel was not able to perform his past relevant work.
(Id. at 35). However, at step five, the ALJ concluded based on the vocational expert’s
testimony that Roel could perform other jobs in the national economy, including marker,
hand packager, and order picker. (Id. at 36-37). The ALJ noted that some of Roel’s
limitations were not accounted for in the DOT and that the DOT does not account for jobs
now performed with more modern tools and processes. (Id. at 37). However, the ALJ
stated that the vocational expert testified that these issues were accounted for in her
testimony based on her knowledge, education, training, and experience. Thus, the ALJ
concluded that Roel was not under a disability from January 14, 2023, through the date of
the decision. (Id.).
The Appeals Council denied Roel’s request for review of the ALJ’s decision. (Id.
at 6-8).
III. DISCUSSION
a. Whether the ALJ erred at step five by relying on occupations with
requirements inconsistent with the limitations in the RFC determination
In his motion for summary judgment, Roel first contends that the requirements of
the three occupations the ALJ identified at step five were inconsistent with the physical
limitations in the RFC determination. (D.E. 9 at 3-4). As to the marker position, Roel
contends that it requires frequent stooping and frequent exposure to humidity. (Id. at 4-5).
As to the hand packager position, Roel argues that it requires frequent exposure to
atmospheric conditions and extreme heat. (Id. at 5). As to the order picker position, Roel
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asserts that it requires frequent stooping and crouching. (Id.). Roel contends that the
inconsistency between the job requirements and the RFC is a legal error that requires
remand. (Id. at 5-6). He argues that the vocational expert’s testimony is insufficient to
save the ALJ’s step five finding because the ALJ failed to resolve the inconsistencies
between the testimony and the DOT. (Id. at 6-11).
The Commissioner responds that the vocational expert was familiar with the specific
requirements of each occupation, and the ALJ properly relied on her testimony to make the
step five finding. (D.E. 12 at 3). The Commissioner argues that Roel has shown, at most,
an implied or indirect conflict with the DOT in regard to the hand packager job, which is
not sufficient to show reversible error where it was not challenged in the administrative
proceedings. (Id. at 4-5). Finally, the Commissioner asserts that, regardless of the other
jobs identified by the ALJ, the hand packager job is sufficient to support the step five
finding because over 175,000 such jobs exist in the national economy. (Id. at 5-6).
Roel replies that the Commissioner’s brief incorrectly focuses on the substantial
evidence standard when his argument is instead that the ALJ committed legal error. (D.E.
13 at 1). He argues that the Commissioner has not addressed the issues he identified with
two of the three occupations the ALJ relied on, and has further conceded that there is some
conflict between the vocational expert’s testimony about the hand packager position and
the DOT. (Id. at 2). He contends that this inconsistency requires remand because it must
be resolved by the ALJ in accordance with agency regulations. (Id. at 2-7).
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Judicial review of the Commissioner’s decision regarding a claimant’s entitlement
to benefits is limited to two questions: (1) whether substantial evidence supports the
Commissioner’s decision; and (2) whether the decision comports with relevant legal
standards. Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005). Substantial evidence is
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Id. In addition to being support by substantial evidence, an ALJ must apply
the proper legal standards and conduct the “proceedings in conformity with the applicable
statutes and regulations.” Cook v. Heckler, 750 F.2d 391, 393 (5th Cir. 1985). “The ALJ’s
decision must stand or fall with the reasons set forth in the ALJ’s decision, as adopted by
the Appeals Council.” Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000). In other words,
“in dealing with a determination or judgment which an administrative agency alone is
authorized to make, [a reviewing court] must judge the propriety of such action solely by
the grounds invoked by the agency.” SEC v. Chenery Corp., 332 U.S. 194, 196 (1947).
In evaluating a disability claim, the Commissioner follows a five-step sequential
process to determine whether: (1) the claimant is participating in substantial gainful
activity; (2) the claimant’s ability to work is significantly limited by a physical or mental
impairment; (3) the claimant’s impairment meets or equals an impairment listed in the
appendix to the regulations; (4) the impairment prevents the claimant from doing past
relevant work; and (5) the claimant cannot presently perform other relevant work.
Martinez, 64 F.3d at 173-174; 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The claimant
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bears the burden of proof on the first four steps, with the burden shifting to the
Commissioner at the fifth step. Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994).
At step five, ALJs “often seek the views of vocational experts,” who must have
“expertise and current knowledge of working conditions and physical demands of various
jobs,” along with “knowledge of the existence and numbers of those jobs in the national
economy.” Biestek v. Berryhill, 587 U.S. 97, 100 (2019) (internal quotation marks and
brackets omitted). “When offering testimony, the experts may invoke not only publicly
available sources but also information obtained directly from employers and data otherwise
developed from their own experience in job placement or career counseling.” Id. (internal
quotation marks omitted). The ALJ properly concludes that work exists in the national
economy “when there is a significant number of jobs (in one or more occupations) having
requirements” that the claimant can meet given their RFC. 20 C.F.R. § 404.1566(b).
Vocational expert testimony should generally be consistent with the information in
the DOT. Social Security Ruling (“SSR”) 00-4p, 2000 WL 1898704 at *2. However,
when “there is an apparent unresolved conflict between [vocational expert] evidence and
the DOT, the adjudicator must elicit a reasonable explanation for the conflict before relying
on the [vocational export] evidence to support a determination or decision about whether
the claimant is disabled.” Id. The ALJ must inquire on the hearing record whether a
vocational expert’s testimony is consistent with the DOT. Id. If there is an inconsistency,
the ALJ must resolve the conflict by determining if the vocational expert’s explanation is
reasonable and provides a basis to rely on the testimony over the DOT. Id. The ALJ has
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an affirmative responsibility to ask the vocational expert about any possible conflicts, and
if their testimony appears to conflict with the DOT, the ALJ must obtain a reasonable
explanation for that conflict. Id. at *4.
“In instances of implied conflicts, claimants should not be permitted to scan the
record for implied or unexplained conflicts between the specific testimony of an expert
witness and the voluminous provisions of the DOT, and then present that conflict as
reversible error, when the conflict was not deemed sufficient to merit adversarial
development in the administrative hearing.” Daniel D. v. O'Malley, No. 4:23-CV-780,
2024 WL 1096571, at *5 (S.D. Tex. Mar. 13, 2024) (internal quotation marks omitted).
Thus, where the vocational expert testifies that their testimony is consistent with the DOT,
the ALJ is not required to address an implied conflict in the written decision. Id.
According to the Dictionary of Occupational Titles, a hand packager:
Packages materials and products manually, performing any combination of
following duties: Cleans packaging containers. Lines and pads crates and
assembles cartons. Obtains and sorts product. Wraps protective material
around product. Starts, stops, and regulates speed of conveyor. Inserts or
pours product into containers or fills containers from spout or chute. Weighs
containers and adjusts quantity. Nails, glues, or closes and seals containers.
Labels containers, container tags, or products. Sorts bundles or filled
containers. Packs special arrangements or selections of product. Inspects
materials, products, and containers at each step of packaging process.
Records information, such as weight, time, and date packaged.
D.O.T. 920.587-018. The DOT entry for the job further provides examples of various
industries wherein someone could work as a hand packager. Id. The job is medium work
that requires, among other things, frequent exposure to extreme heat and atmospheric
conditions. Id.
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Here, Roel has not established that the ALJ legally erred in his conclusion at step
five that other work existed in the national economy. Specifically with regard to the hand
packager position, Roel has shown at best an implied conflict between the job requirements
in the DOT and the limitations the ALJ identified in the RFC. Roel contends that the hand
packager position requires frequent exposure to atmospheric conditions and extreme heat,
which is inconsistent with the ALJ’s conclusions that he can have only occasional,
concentrated exposure to environmental irritants and no concentrated exposure to extreme
heat. (D.E. 7-1 at 29); D.O.T. 920.587-018. However, “frequent” describes how often the
exposure occurs, while “concentrated” describes the intensity of the exposure. This
distinction is illustrated by the ALJ’s inclusion of the adjective “occasional” in addition to
“concentrated” when discussing exposure to environmental irritants, thereby limiting both
the frequency and the intensity of Roel’s exposure to those conditions. (D.E. 7-1 at 29).
Accordingly, Roel has not shown an apparent conflict between the ALJ’s RFC limitations
and the requirements of the hand packager job because “frequent” and “concentrated” do
not describe the same thing.
Nonetheless, the ALJ was required to inquire on the hearing record whether the
vocational expert’s testimony was consistent with the DOT. SSR 00-4p, 2000 WL
1898704 at *2. The ALJ did so here, and the vocational expert testified that her testimony
was based on the information in the DOT, and where the DOT was silent on an issue, based
on her knowledge, education, training, and experience. (D.E. 7-1 at 62). Given this
answer, which was unchallenged at the hearing, and because there was no apparent conflict
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between the vocational expert’s testimony and the hand packager job, the ALJ was not
required to address the implied conflict in her decision. See Daniel D., 2024 WL 1096571
at *5; SSR 00-4p, 2000 WL 1898704 at *2, 4. Accordingly, Roel has not established that
the ALJ applied the wrong legal standard in her discussion of the hand packager job.
However, this does not end the inquiry. The Commissioner has not raised any
argument regarding the marker or order picker positions and has effectively conceded that
there is a direct conflict between the job requirements in the DOT for those occupations
and the limitations in the RFC. (See generally D.E. 12). Thus, the existence of the hand
packager job alone must constitute substantial evidence to support the ALJ’s step five
conclusion.2 Under the regulations, work exists in the national economy “when there is a
significant number of jobs (in one or more occupations) having requirements” that the
claimant can meet given their RFC. 20 C.F.R. § 404.1566(b). The vocational expert
testified that 175,000 hand packager jobs exist in the national economy, and the ALJ relied
on this testimony in her decision. (D.E. 7-1 at 36-37, 59). The Fifth Circuit has concluded
that evidence showing 50,000 available jobs in a single occupation is sufficient to support
an ALJ’s conclusion at step five that other work exists in significant numbers in the national
economy. Lirley v. Barnhart, 124 F. App'x 283, 284 (5th Cir. 2005). Given this,
substantial evidence also supported the ALJ’s conclusion here where the evidence shows
175,000 hand packager jobs in the national economy, regardless of whether the ALJ could
2 Although Roel has explicitly not raised any argument regarding the substantial
evidence standard, this memorandum will address the issue for completeness.
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also have relied on the vocational expert’s testimony regarding the marker and order picker
positions. Accordingly, Roel has not shown reversible error in the ALJ’s step five analysis.
b. Whether the ALJ erred because the mental limitations in the RFC
determination were inconsistent with the earlier finding of severe mental
impairments
Roel next contends that, under the applicable regulations, the mental limitations in
the RFC are inconsistent with the ALJ’s earlier conclusion that her mental impairments
were severe. (D.E. 9 at 13-14). Specifically, Roel argues that a severe mental impairment
is one that significantly limits the ability to perform “basic work activities,” and “basic
work activities” are defined to include understanding, carrying out, and remembering
“simple instructions.” (Id. at 13-14). Accordingly, Roel contends that, in order to be
consistent with the regulations, the ALJ’s severity determination dictates a higher level of
impairment than the RFC’s limitation to understanding, remembering, and carrying out
detailed instructions and tasks. (Id. at 14-18).
The Commissioner responds that the RFC determination adequately accounted for
the earlier Paragraph B finding of a moderate limitation in concentration, persistence, or
pace. (D.E. 12 at 6). The Commissioner argues that the Paragraph B analysis and RFC
analysis have different standards, and the findings at the Paragraph B stage do not require
any specific limitation in the RFC. (Id. at 6-7).
Roel replies that the Commissioner’s brief misconstrues his argument, which is not
that the severity and Paragraph B findings require specific limitations in the RFC, but rather
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that the broad mental limitations found at those steps cannot disappear from the RFC
determination without explanation. (D.E. 13 at 7-9).
The second step of the sequential analysis requires that the factfinder decide whether
the claimant's impairment is “severe,” irrespective of age, education and work experience.
Anthony v. Sullivan, 954 F.2d 289, 293 (5th Cir. 1992). An impairment can only be
considered as not severe if it is so slight that it would not be expected to interfere with the
individual’s ability to work. Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985). RFC,
which is determined between the third and fourth steps, is the most a claimant can do
despite their limitations. 20 C.F.R. § 404.1545(a). The “limitations identified in the
‘paragraph B’ and ‘paragraph C’ criteria are not an RFC assessment but are used to rate
the severity of mental impairment(s) at steps 2 and 3 of the sequential evaluation process.
The mental RFC assessment used at steps 4 and 5 of the sequential evaluation process
requires a more detailed assessment by itemizing various functions contained in the broad
categories found in paragraphs B and C.” SSR 96-8P, 1996 WL 374184 at *4.
Here, Roel has not shown that the ALJ’s RFC determination was inconsistent with
her earlier finding of severe mental impairments. In December 2025, the court in Lopez v.
Bisignano, No. SA-25-CV-232-OLG (HJB), 2025 WL 4033863 (W.D. Tex. Dec. 19,
2025), addressed an identical argument. In Lopez, “the ALJ … found moderate deficits in
concentration, persistence, and pace, and incorporated that finding into the RFC by limiting
Plaintiff to carrying out detailed but not complex instructions.” Id. at *5 (internal brackets
and quotation marks omitted). Claimant raised the same argument that Roel now makes:
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“that the ALJ's RFC finding contained no limitations on the claimant's ability to perform
basic work activities.” Id. at *4. The court noted that this argument had been “repeatedly
rejected by courts in the Fifth Circuit,” and findings similar to the ALJ’s here had “been
upheld in numerous other courts.” Id. at *4-5 (citing Roberts v. Comm'r of Soc. Sec., No.
4:24-CV-930-BP, 2025 WL 1268116 (N.D. Tex. May 1, 2025)). This was because “the
paragraph B findings at step 3 and do not directly correlate to the RFC,” and there was “no
authority that a finding of a severe limitation at step two must correspond to an RFC finding
that specifically limits understanding, carrying out, and remembering simple instruction.”
Id. This court reached the same conclusion in Wells v. Saul, No. 6:20-CV-00014, 2021
WL 4976724, at *8 (S.D. Tex. June 10, 2021), report and recommendation adopted, No.
6:20-CV-00014, 2021 WL 4973714 (S.D. Tex. Oct. 25, 2021), where essentially the same
argument was made.3
The facts here are indistinguishable from those in Lopez and Roberts. As in both of
those cases, the ALJ here found a moderate limitation in Roel’s ability to concentrate,
persist, or maintain pace when considering the Paragraph B criteria, and incorporated that
finding in the RFC by limiting Roel to understanding, remembering, and carrying out
detailed instructions and tasks, but not complex instructions or tasks. (D.E. 7-1 at 27-29).
3 Notably, Roel and the claimants in Wells, Lopez, and Roberts were all represented
by the same counsel. Despite his experience raising this argument, counsel’s brief does
not cite any case adopting his interpretation of the regulations and caselaw. See also
Roberts, 2025 WL 1268116 at *4 (noting that the claimant had cited no authority finding
that a severe limitation at step two must correspond to an RFC limitation of understanding,
carrying out, and remembering only simple instructions).
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Accordingly, for the same reasons as in Lopez and Roberts, Roel has not shown that the
ALJ applied the wrong legal standard in crafting the mental RFC.
IV. RECOMMENDATION
Accordingly, it is recommended that Roel’s motion (D.E. 9) be DENIED, the
Commissioner’s motion (D.E. 12) be GRANTED, and this cause of action be
DISMISSED.
Respectfully submitted on February 10, 2026.
____________________________
Julie K. Hampton
United States Magistrate Judge
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NOTICE TO PARTIES
The Clerk will file this Memorandum and Recommendation and transmit a copy to
each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of
the Memorandum and Recommendation, a party may file with the Clerk and serve on the
United States Magistrate Judge and all parties, written objections, pursuant to Fed. R. Civ.
P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District Court
for the Southern District of Texas.
A party’s failure to file written objections to the proposed findings, conclusions, and
recommendation in a magistrate judge’s report and recommendation within FOURTEEN
(14) DAYS after being served with a copy shall bar that party, except upon grounds of
plain error, from attacking on appeal the unobjected-to proposed factual findings and legal
conclusions accepted by the district court. Douglass v. United Servs. Auto Ass’n, 79 F.3d
1415 (5th Cir. 1996) (en banc).
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