Acevedo v. Dudek

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
MICHAEL A.,
Plaintiff,
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v. EP-25-CV-00064-KC-RFC
FRANK BISIGNANO, Commissioner of
the Social Security Administration,
Defendant.
REPORT AND RECOMMENDATION
Plaintiff Michael A. appeals from the Commissioner of the Social Security
Administration’s decision to deny his claim for disability insurance benefits (“DIB”) under Title
II of the Social Security Act. Pl.’s Appeal Br. [hereinafter “Pl.’s Br.”], ECF No. 8. Pursuant to
28 U.S.C. § 636, the Honorable U.S. District Judge Kathleen Cardone referred this case to the
undersigned Magistrate Judge for a report and recommendation. For the following reasons, the
Court RECOMMENDS that the Commissioner’s decision be REVERSED and REMANDED.
I. LEGAL STANDARD
A. Standard of Review
Judicial review of a Commissioner’s decision “is limited to two inquiries: (1) whether the
decision is supported by substantial evidence on the record as a whole, and (2) whether the
Commissioner applied the proper legal standard.” Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir.
2014) (quoting Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005)).
Substantial evidence exists where there is “more than a mere scintilla but less than a
preponderance” of evidence on the record to support the Commissioner’s decision, or “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
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Copeland, 771 F.3d at 923 (quoting Perez, 415 F.3d at 461). In determining whether the
Commissioner’s decision is supported by substantial evidence, courts weigh “(i) objective material
facts; (ii) diagnoses and opinions of treating and examining physicians; (iii) [the] claimant’s
subjective evidence of pain and disability; and (iv) [the] claimant’s age, education, and work
history.” Williams v. Colvin, 575 F. App’x 350, 354 (5th Cir. 2014) (per curiam) (citing Martinez
v. Chater, 64 F.3d 172, 174 (5th Cir.1995)). A reviewing court may not “reweigh the evidence in
the record, try the issues de novo, or substitute [its] judgment for the Commissioner’s, even if the
evidence weighs against the Commissioner’s decision.” Salmond v. Berryhill, 892 F.3d 812, 817
(5th Cir. 2018) (quoting Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000)). However, while a
court must affirm findings supported by substantial evidence, reversal and remand are appropriate
where “no credible evidentiary choices or medical findings support the [Commissioner’s]
decision.” See Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001) (quoting Harris v. Apfel, 209 F.3d
413, 417 (5th Cir.2000)).
B. Disability Evaluation Process
Under the Social Security Act, the definition of disability includes 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). An Administrative Law Judge (“ALJ”) evaluates disability
claims according to a five-step sequential process, in which he determines (1) whether the claimant
is currently engaged in substantial gainful activity; (2) whether the claimant has suffered from a
severe medically determinable impairment meeting specified durational requirements; (3) whether
the claimant’s impairment meets or medically equals the severity of an enumerated impairment;
(4) whether the impairment prevents the claimant from performing past relevant work; and (5)
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whether the impairment prevents the claimant from doing any other work. 20 C.F.R. §
404.1520(a)(4). If, at step three, the ALJ determines the claimant’s combination of impairments
does not meet or medically equal the severity of an enumerated impairment, the ALJ must
determine the claimant’s “residual functional capacity” (“RFC”) to consider this RFC at steps four
and five. § 404.1520(e). The RFC “is the most [the claimant] can still do” despite the limitations
caused by physical or mental impairments. 20 C.F.R § 404.1545(a)(1).
II. BACKGROUND
On September 19, 2023, Plaintiff filed a protective application for DIB, alleging that he
suffered from multiple mental and physical impairments which caused him to become disabled.
SSA Tr. 19 [hereinafter Tr.], ECF No. 4. Plaintiff’s application was initially denied on December
1, 2023, and following reconsideration, was denied again on January 29, 2024. Id. Upon
Plaintiff’s request, ALJ Jim Fraiser conducted a telephonic hearing on August 26, 2024, ultimately
determining Plaintiff was not disabled on September 13, 2024. Id. at 19, 30.
Applying the required five-step analysis to Plaintiff’s claim, the ALJ first found that
Plaintiff “did not engage in substantial gainful activity during the period from his alleged onset
date of April 4, 2018 through his date last insured of December 31, 2023.” Tr. 21. At step two,
the ALJ determined Plaintiff “had the following severe impairments: depression, PTSD, and
obstructive sleep apnea,” but determined Plaintiff’s “fibromyalgia and osteoarthritis of the
lumbosacral spine [were] not severe,” as neither condition “resulted in any significant neurologic
or musculoskeletal limitations.” Id. at 21–22. In the third step, the ALJ found that Plaintiff’s
combination of impairments did not meet or medically equal the severity of any impairment listed
in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 22. Considering Plaintiff’s RFC, the ALJ
found Plaintiff had “the residual capacity to perform light work” and could “understand,
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remember, and carry out detailed instructions,” but would “be off task five percent of the workday
due to issues with concentration, persistence, and pace.” Id. at 24. Finally, at step five, the ALJ
determined that given Plaintiff’s “age, education, work experience, and [RFC], there were jobs
that existed in significant numbers” that he could perform, citing 850,000 jobs as a housekeeper
and 190,000 jobs as a garment sorter available in the national economy. Id. at 29.
In support of his claim, Plaintiff submitted medical records, including multiple Disability
Benefits Questionnaires (“Questionnaires”) produced in conjunction with disability benefits
claims that Plaintiff had filed with the U.S. Department of Veterans Affairs (“VA”). See Tr. 507–
1178. Several Questionnaires were authored by VA Clinicians Mar Grau Escriva, MD, Mirza M.
Vazquez, MD, and Brannon M. Sims, NP (collectively, “VA Clinicians”), following their
respective examinations of Plaintiff. See id. at 921–27 (Questionnaire written by Dr. Escriva); id.
at 938–1125 (Questionnaires written by NP Sims); id. at 638–44, 1126–43 (Questionnaires written
by Dr. Vazquez). These records contained statements by the VA Clinicians discussing Plaintiff’s
ability to perform work. See, e.g., id. at 638, 923,1028. While the ALJ referenced Dr. Vazquez’s
findings in his decision, id. at 25, he did not address the statements regarding Plaintiff’s
occupational limitations written by Dr. Escriva or NP Sims, see id. at 13–30.
Following the ALJ’s determinations, Plaintiff filed a request for review on September 13,
2024. Tr. 1. The Appeals Council subsequently denied this request, and the ALJ’s decision
became the Commissioner’s final decision in Plaintiff’s case. Id. Plaintiff filed suit to appeal the
Commissioner’s decision on February 26, 2025. Compl.
III. DISCUSSION
In his appeal, Plaintiff asserts that the Commissioner committed a reversible error by
adopting the ALJ’s decision, because the ALJ impermissibly and harmfully (1) declined to
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separately consider Plaintiff’s ability to maintain employment and (2) failed to adequately
articulate his consideration of the medical opinions offered by the VA Clinicians. Pl.’s Br. 12–
23.1 Accordingly, Plaintiff requests the Court either “reverse the decision of the Commissioner
with award of benefits” or remand the decision for further administrative proceedings. Compl. 2.2
A. The ALJ committed a reversible error by failing to adequately articulate his
consideration of the medical opinions offered by Dr. Vazquez, Dr. Escriva and NP
Sims.
Plaintiff argues that the ALJ erred in failing to articulate his consideration of the medical
opinions of Dr. Vazquez, Dr. Escriva, and NP Sims, Pl.’s Br. 14–19, and that this error is reversible
because it “makes it impossible to know whether the ALJ properly considered and weighed [the
VA Clinicians’] opinion[s], which directly affects the RFC determination,” id. at 19 (quoting
Fuller v. Kijakazi, No. EP-22-CV-00133-FM-MAT, 2023 WL 58077867, at *7 (W.D. Tex. Aug.
22, 2023), R. & R. adopted, 2023 WL 5811852 (W.D. Tex. Sept. 7, 2023)).
1. The Questionnaires authored by the VA Clinicians contained medical opinions.
As a threshold issue, the Court must determine whether the statements made by the VA
Clinicians constitute “medical opinions.” A medical opinion is “a statement from a medical source
about what [a claimant] can still do despite [his] impairment(s) and whether [he has] one or more
impairment-related limitations or restrictions in [certain] abilities.” 20 C.F.R. § 404.1513(a)(2).
A medical source’s statement is considered a medical opinion where it addresses impairments in
1 Plaintiff further argues that “the ALJ erred in making an RFC determination based on his own
interpretation of the medical evidence,” rather than based on statements by medical sources addressing the
impact of Plaintiff’s impairments on his ability to work. Pl.’s Br. 27–28 (citing Griffin v. O’Malley, SA-
23-CV-01090-FB, 2025 WL 440284, at *9 (W.D. Tex. Jan. 17, 2025), R. & R. adopted, 2025 WL 440281
(W.D. Tex. Feb. 7, 2025)). The Court finds this error stems from or is tied to the ALJ’s failure to consider
the medical opinions contained in the Questionnaires. Accordingly, this third ground can be properly
resolved by curing the ALJ’s error in failing to adequately consider the VA Clinicians’ medical opinions.
2 Plaintiff also included a request for attorneys’ fees under the Equal Access to Justice Act. Compl.
2. To the extent Plaintiff intends to pursue such relief, he may file a separate motion for attorney’s fees.
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a claimant’s work-related abilities, including his “ability to perform mental demands of work
activities, such as understanding; remembering; maintaining concentration, persistence, or pace;
carrying out instructions; or responding appropriately to supervision, co-workers, or work
pressures in a work setting” or “physical demands of work activities, such as sitting, standing,
walking, lifting, carrying, pushing, pulling, or other physical functions.” § 404.1513(a)(2)(i)–(ii).
In her June 7, 2021 Mental Disorders Disability Benefits Questionnaire, Dr. Vazquez
opined that Plaintiff’s major depressive disorder caused him (1) “[o]ccupational and social
impairment with occasional decrease in work efficiency and intermittent periods of inability to
perform occupational tasks, although generally functioning satisfactorily, with normal routine
behavior, self-care and conversation;” (2) “mild memory loss, such as forgetting names, directions
or recent events;” (3) “[d]isturbances of motivation and mood;” and (4) “[d]ifficulty adapting to
stressful circumstances, including work or a work like setting.” Tr. 1126–27, 1133. Similarly, in
her October 25, 2017 Mental Disorders Disability Benefits Questionnaire, Dr. Escriva reported
that as a result of the disorder, Plaintiff had (1) “[o]ccupational and social impairment with
deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or
mood;” (2) “difficulty in establishing and maintaining effective work and social relationship;” and
(3) “difficulty in adapting to stressful circumstances, including in a work or work-like setting.” Id.
at 923, 926. These statements by medical sources, which bear on Plaintiff’s ability to remember
instructions, maintain pace, carry out his duties, and interact in a work setting, are medical
opinions. See § 404.1513(a)(2)(ii); see also Sherman v. Kijakazi, No. 1:22-CV-00775-RP-SH,
2023 WL 3727022, at *5–6 (W.D. Tex. Apr. 27, 2023), R. & R. adopted, No. 1:22-CV-775-RP,
2023 WL 3725179 (W.D. Tex. May 30, 2023) (PTSD evaluation which determined plaintiff had
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“[o]ccupational and social impairment with deficiencies in most areas, such as work, school,
family relations, judgment, thinking and/or mood” constituted a medical opinion).
Discussing Plaintiff’s physical impairments in his October 25, 2017 Disability Benefits
Questionnaires, NP Sims similarly stated that Plaintiff’s medical conditions impacted his ability
to work, finding (1) Plaintiff’s back condition required him to “[a]void heavy lifting or repetitive
bending” and caused him “[d]ifficulty with prolonged sitting or standing,” Tr. 995; (2) Plaintiff’s
fibromyalgia resulted in pain and fatigue which may require rest and “limit occupational
endurance,” id. at 974; (3) Plaintiff’s bilateral hip strain caused him “[d]ifficulty standing or
walking for long periods of time without rest,” id. at 1015; and Plaintiff’s neck condition led to
“[d]ifficulty with strenuous activity requiring repetitive neck movements or heavy lifting,” id. at
1040. Thus, NP Sims’ Questionnaires, which specifically address Plaintiff’s ability to perform
physical demands in the workplace, also include medical opinions.
Accordingly, the Questionnaires authored by Dr. Vazquez, Dr. Escriva, and NP Sims
contain medical opinions.
2. The ALJ failed to adequately articulate his consideration of the medical opinions offered
by the VA Clinicians.
While it is true that “[p]rocedural perfection in administrative proceedings is not required,”
decisions from executive agencies must be articulated in a manner which provides courts with a
foundation for informed review. See Audler v. Astrue, 501 F.3d 446, 448 (5th Cir. 2007) (quoting
Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir.1988)). Moreover, controlling regulations explicitly
provide that, in crafting a DIB decision, an ALJ must consider and “articulate . . . how persuasive
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[he] finds all of the medical opinions . . . in [a claimant’s] case record.” 20 C.F.R. § 404.1520c(a)–
(b). 3
(a) The ALJ was required to articulate his consideration of the medical opinions contained
in the Questionnaires.
Despite Section 404.1520c’s articulation requirement, the Commissioner argues that 20
C.F.R. § 404.1504 relieved the ALJ of his obligation to evaluate the VA Clinicians’ medical
opinions. Def.’s Br. Supp. Comm’r’s Decision 4. It is true that, under Section 404.1504, an ALJ
is not bound by “a decision made by any other governmental agency . . . about whether [a claimant
is] disabled, blind, employable, or entitled to any benefits.” However, the same regulation
expressly provides that, while an ALJ may not be constrained by a sister agency’s decision, he
must still consider any “supporting evidence underlying the other governmental agency . . .
decision” that he receives as evidence. Id.
Here, the Commissioner conflates the agency’s directive to disregard the VA’s disability
decision with the ALJ’s obligation to consider the medical evidence authored by the VA
Clinicians. The VA Clinicians’ statements act as evidence supporting the VA decision – not the
decision itself. Their medical opinions are not absorbed into the ultimate disability determination
by virtue of the fact that they were conducted in furtherance of a disability application. Nor are
the findings – which are based on the VA Clinicians’ clinical evaluations and medical expertise –
transformed into legal determinations regarding disability eligibility merely because both
assessments were performed within the same agency.
3 Where a single medical source produces multiple medical opinions, the agency need not “articulate
how [it] considered each medical opinion or prior administrative medical finding from one medical source
individually,” but may instead “articulate how [it] considered the medical opinions or prior administrative
medical findings from that medical source together in a single analysis.” § 404.1520c(b)(1).
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Given that the medical sources’ statements simply constitute evidence underlying the VA’s
disability decision, the ALJ was not relieved of his obligation to analyze the persuasiveness of the
opinions.
(b) The ALJ failed to adequately articulate his consideration of the supportability and
consistency of the medical opinions offered by the VA Clinicians.
Although an agency may balance several factors when weighing persuasiveness, it must, at
minimum, explain how it considered the consistency and supportability of a medical source’s
opinion. § 404.1520c(b)(2); see also § 404.1520c(c). Medical opinions are “supportable,” and
thus more persuasive, where there is relevant objective medical evidence and explanation to
support the source’s statements. § 404.1520c(c)(1). Opinions are “consistent” where they are
found to align with other medical and nonmedical evidence in the record. § 404.1520c(c)(2).
Thus, consideration of “consistency” involves “an external inquiry that juxtaposes [the] medical
opinion[s] to other evidence in the record,” while a “supportability” analysis requires the ALJ to
“look[] internally to the bases presented by the medical opinion[s]” themselves. Rico v. O'Malley,
No. EP22CV00263DBMAT, 2024 WL 766047, at *2 (W.D. Tex. Feb. 8, 2024), R. & R. adopted,
No. EP-22-CV-263-DB, 2024 WL 760233 (W.D. Tex. Feb. 23, 2024) (citing Probst v. Kijakazi,
No. EP-22-CV-00286-RFC, 2023 WL 3237435, at *3 (W.D. Tex. May 3, 2023)).
While it is true the Fifth Circuit has not “found that ‘magic words or [a] specific amount
of explanation [is] required’” to address either factor, “the ALJ's discussion on supportability and
consistency must be ample enough ‘to permit meaningful judicial review.’” Rico, 2024 WL
766047, at 3–4 (quoting Ida D. v. Kijakazi, No. 1:21-CV-00206-BU, 2022 WL 19518458, at *4
(N.D. Tex. Nov. 8, 2022) (citation omitted), R. & R. adopted, No. 1:21-CV-206-H-BU, 2023 WL
2474210 (N.D. Tex. Mar. 13, 2023)) (citing Ray v. Comm'r of Soc. Sec., No. 4:21-cv-1709, 2022
WL 3566844, at *4 (S.D. Tex. 2022)). Thus, courts within this Circuit have determined that “[t]he
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measuring stick for an ‘adequate discussion’ is whether the ALJ's persuasiveness explanation . . .
does not require the [c]ourt to merely speculate about the reasons behind the ALJ's persuasiveness
finding or lack thereof.” Lara v. Kijakazi, No. 3:21-CV-1032-L-BH, 2022 WL 4486085, at *12
(N.D. Tex. Aug. 29, 2022), R. & R. adopted, No. 3:21-CV-1032-L-BH, 2022 WL 4485826 (N.D.
Tex. Sept. 27, 2022); see also Kilby v. Kijakazi, No. 4:20-CV-03035, 2022 WL 1797043, at *4
(S.D. Tex. Mar. 15, 2022); McBride v. O'Malley, No. 4:22-CV-985-SDJ-KPJ, 2024 WL 1505745,
at *7 (E.D. Tex. Mar. 6, 2024), R. & R. adopted, No. 4:22-CV-985-SDJ, 2024 WL 1308001 (E.D.
Tex. Mar. 26, 2024).
In discussing Dr. Vazquez’s medical opinions, the ALJ weighed her opinions against
statements by other medical sources, Tr. 27 (stating that the opinion of another medical source was
“generally consistent with the medical evidence up to November 2022”), and reviewed the medical
evidence underlying her opinion – namely, the medical status examination she performed, as well
as Plaintiff’s medical history and records, id. at 25. However, while the ALJ addressed these
factors, he failed to clearly state his findings on the ultimate issue – whether he found Dr.
Vazquez’s opinions to be persuasive. Id. 13–30. Because the decision leaves the Court to
speculate about the ALJ’s findings regarding persuasiveness, the ALJ failed to adequately
articulate his analysis of Dr. Vazquez’s medical opinions.
In regard to the opinions of Dr. Escriva and NP Sims, the ALJ’s decision makes no
reference to the statements made by either VA Clinician. Tr. 13–30. Although the ALJ stated
generally that he “fully considered the medical opinions and prior administrative medical
findings,” id. at 26, such cursory, boilerplate language cannot cure an ALJ’s complete failure to
address the persuasiveness of a medical source’s opinions. The ALJ thus did not satisfy the
articulation requirements for the medical opinions of Dr. Escriva and NP Sims.
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Accordingly, the ALJ committed a legal error by failing to articulate his consideration of
the VA Clinicians’ opinions in a way that permits meaningful judicial review, and his decision
cannot be said to be supported by substantial evidence. See Kneeland v. Berryhill, 850 F.3d 749,
761 (5th Cir. 2017) (failure to address medical opinions is a legal error, not supported by
substantial evidence); Sherman, 2023 WL 3727022, at *7 (same).
3. The ALJ’s error warrants remand.
Where, as here, the ALJ’s analysis proceeds beyond step two, a finding of error does not
warrant remand if the reviewing court determines the error was harmless. Keel v. Saul, 986 F.3d
551, 556 (5th Cir. 2021). As a general rule, an ALJ’s failure to address medical opinions should
not be deemed harmless because “such an error makes it impossible to know whether the ALJ
properly considered and weighed an opinion, which directly affects the RFC determination.”
Kneeland, 850 F.3d at 761–62. If a reviewing court determines “the record before the agency [did]
not support the agency action, [or] . . . the agency [had] not considered all relevant factors, ... the
proper course, except in rare circumstances, is to remand to the agency for additional investigation
or explanation.’” Calcutt v. Fed. Deposit Ins. Corp., 598 U.S. 623, 628–29 (2023) (quoting
Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)). This principle governs even
where the court “discerns a possibility, even a strong one, that by another course of reasoning the
agency might come to the same result.” FDA v. Wages & White Lion Invs., L.L.C., 604 U.S. 542,
591 (2025) (quoting Henry J. Friendly, Chenery Revisited: Reflections on Reversal and Remand
of Administrative Orders, 1969 Duke L.J 199, 222 (1969)).
Here, the ALJ’s decision that Plaintiff could perform light work was based primarily on
the opinions of physicians who had determined that Plaintiff had “intact range of motion” and
could “frequently climb, balance, stoop, kneel, crouch and crawl.” Tr. 26–27. The ALJ referred
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to the medical opinion and evaluation of Carmen M. Rico Ramirez, MD, as the “only finding that
could support exertional or postural limits” – despite acknowledging that Dr. Rico Ramirez’s
opinion did “not fully assess the claimant’s ability to sit, stand, walk, lift, carry, push, pull, etc., as
required by Social Security regulations.” Id. at 28. Thus, NP Sims’ opinion, which identifies that
Plaintiff had difficulty sitting, standing, walking, lifting, bending, and with other “strenuous
activity requiring repetitive neck movements,” id. at 995, 1028, 1040, would present the ALJ with
new considerations, necessarily changing his analysis.
Similarly, regarding Plaintiff’s mental impairments, the ALJ determined that Plaintiff had
“moderate, rather than only mild mental limits,” Tr. 27, such that he “can understand, remember,
and carry out detailed instructions” and would “be off task five percent of the workday,” id. at 24.
While this finding could be consistent with Dr. Escriva’s opinion that Plaintiff suffered from
“[o]ccupational and social impairment with deficiencies in most areas,” id. at 923, and Dr.
Vazquez’s opinion that the Plaintiff faced “occasional decrease[s] in work efficiency and
intermittent periods of inability to perform occupational tasks, although generally functioning
satisfactorily, with normal routine behavior, self-care and conversation,” id. at 1126–27, the Court
lacks sufficient bases to definitively determine how either opinion would weigh into the ALJ’s
analysis if properly considered. Moreover, the ALJ’s finding that Plaintiff was able to remember
instructions, carry them out, and be off task only five percent of the day seems to be potentially at
odds with both doctors’ opinions that Plaintiff suffered from “disturbances of motivation” and
“difficulty in adapting to stressful circumstances, including in a work or work-like setting,” see
Tr. 926, 1133, as well as Dr. Vazquez’s opinion that Plaintiff suffered from “mild memory loss,
such as forgetting names, directions or recent events,” id. at 1133. Thus, the Court finds that the
ALJ’s error was not harmless and, by extension, remand is appropriate.
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The Court thus RECOMMENDS that the Commissioner’s findings be REVERSED and
REMANDED for reconsideration consistent with the Court’s determination that the ALJ must
properly articulate his consideration of the medical opinions offered by the VA Clinicians.
B. The ALJ did not err in declining to separately consider Plaintiff’s ability to maintain
employment.
For completeness, the Court also considers Plaintiff’s claim that the ALJ erred in declining
to separately consider Plaintiff’s ability to maintain employment. “[T]he regulation describing
RFC, [§ 404.1545], as well as a Social Security Ruling, SSR 96–8p (1996), both . . . make clear
that RFC is a measure of the claimant's capacity to perform work ‘on a regular and continuing
basis.’” Dunbar v. Barnhart, 330 F.3d 670, 672 (5th Cir. 2003). Thus, “[a] finding that a claimant
is able to engage in substantial gainful activity requires . . . a determination that the claimant can
hold whatever job he finds for a significant period of time.” Singletary v. Bowen, 798 F.2d 818,
822 (5th Cir. 1986) (citing Parsons v. Heckler, 739 F.2d 1334, 1340 (8th Cir.1984)).
An ALJ need not make “separate findings on ‘obtaining’ and ‘maintaining’ a job in every
case.” Frank v. Barnhart, 326 F.3d 618, 621 (5th Cir. 2003); see Dunbar, 330 F.3d at 672 (ALJs
are not required to make “an explicit finding in every case that the claimant can not only engage
in substantial gainful activity but maintain that employment as well.”). A separate finding is
required only where evidence shows a claimant’s “ability to maintain employment would be
compromised despite his ability to perform employment.” Dunbar, 330 F.3d at 672 (citing Frank,
326 F.3d at 619).
Although it appears Plaintiff demonstrated that he experiences fluctuations in his mood
and mental health, see Tr. 25, he was required to do more than prove he “has ‘good days and bad
days’” to require separate findings on the issue of his ability to maintain employment. Heck v.
Colvin, 674 F. App'x 411, 416 (5th Cir. 2017) (quoting Perez, 415 F.3d at 465). Plaintiff also
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needed to show that his symptoms “wax[] and wane[] in a manner that precludes employment,”
Brendon F. v. O’Malley, No. 4:23-CV-02981, 2024 WL 4101814, at *5 (S.D. Tex. July 15, 2024)
(quoting Pena v. Saul, No. 7:19-CV-0005, 2019 WL 8223588, at *23 (S.D. Tex. Dec. 26, 2019),
R. & R. adopted, No. 7:19-CV-00005, 2020 WL 1234281 (S.D. Tex. Mar. 13, 2020) (emphasis
added), such that he can “only work in short spurts or is beset by intensified specific symptoms at
regular intervals,” Heck, 674 F. App'x at 416. Without more, Plaintiff’s cited evidence that his
fluctuating condition leads to “intermittent periods of inability to perform occupational tasks” does
not meet this threshold. See Tr. 638. By contrast, the fact that this evidence refers to these periods
of incapacity as “intermittent” contradicts Plaintiff’s claim that he is regularly unable to work.
Thus, given that Plaintiff did not otherwise establish that he can only work for short durations, he
has not shown that his symptoms rise to the level of requiring a separate finding regarding his
ability to maintain employment.
Accordingly, the Court does not find that the ALJ erred in declining to separately consider
Plaintiff’s ability to maintain employment.
IV. CONCLUSION
For the foregoing reasons, the Court RECOMMENDS that the decision of the
Commissioner be REMANDED pursuant to 42 U.S.C. § 405(g).
SIGNED this 10th day of December, 2025.
ROBERT F. CASTAÑEDA
UNITED STATES MAGISTRATE JUDGE
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NOTICE
FAILURE TO FILE WRITTEN OBJECTIONS TO THE PROPOSED FINDINGS,
CONCLUSIONS, AND RECOMMENDATIONS CONTAINED IN THE FOREGOING
REPORT, WITHIN FOURTEEN DAYS OF SERVICE OF SAME, MAY BAR DE NOVO
DETERMINATION BY THE DISTRICT JUDGE OF AN ISSUE COVERED HEREIN
AND SHALL BAR APPELLATE REVIEW, EXCEPT UPON GROUNDS OF PLAIN
ERROR, OF ANY UNOBJECTED-TO PROPOSED FACTUAL FINDINGS AND LEGAL
CONCLUSIONS AS MAY BE ACCEPTED OR ADOPTED BY THE DISTRICT COURT.
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