Howard v. O'Malley

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
K.H.,
Plaintiff,
v.
Frank Bisignano, Commissioner of
Social Security Administration, 1
Defendant.
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Civil Action No. 4:24-cv-04730
MEMORANDUM AND RECOMMENDATION
This 	appeal 	from 	an 	administrative 	ruling 	denying 	social 	security
benefits was referred to the undersigned judge. 	Dkt. 3. 	After carefully
considering the parties’ cross-motions for summary judgment, Dkts. 15, 19, the
administrative record, Dkt. 10, and the applicable law, it is recommended that
Plaintiff’s motion for summary judgment (Dkt. 15) be denied and that the
Commissioner of Social Security’s motion for summary judgment (Dkt. 19) be
granted.
Background
Plaintiff filed for supplemental security income (SSI) on September 30,
2021. See R.315. Her application claimed she suffered from degenerative disc
1 The Court grants the request to substitute Frank Bisignano for Leland Dudek as
Defendant in this case. See Dkt. 17 at 1 n.1.
United States District Court
Southern District of Texas
ENTERED
February 26, 2026
Nathan Ochsner, Clerk
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disease with multiple herniations, arthritis, scoliosis, trochanteric bursitis,
depression, and anxiety. R.365.
The Commissioner denied Plaintiff’s application initially, R.224-25, and
upon reconsideration, R.234-35. Plaintiff sought and received a hearing before
an administrative law judge (“ALJ”). R.237. After the hearing, the ALJ issued
a decision finding that Plaintiff is not disabled. R.20-38.
The ALJ applied the five-step sequential evaluation process to determine
whether Plaintiff was disabled under 20 C.F.R. § 416.920(a)(4). R.25-38. The
ALJ first determined that Plaintiff had not engaged in substantial gainful
activity since her application filing date. 	R.25. 	At step two, the ALJ found
that Plaintiff had the following severe impairments: lumbar and cervical
degenerative disc disease, trochanteric bursitis of bilateral hips, and major
depressive 	disorder 	with 	anxious 	distress. 	Id. 	At 	step 	three, 	the 	ALJ
determined that Plaintiff does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. R.26. In doing so,
the ALJ analyzed the governing “paragraph B” criteria to determine Plaintiff’s
mental impairment’s impact on four functional areas. 	See R.26-27. 	The ALJ
determined that Plaintiff had mild limitations in understanding, remembering
or 	applying 	information, 	in 	interacting 	with 	others, 	and 	in 	adapting 	or
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managing oneself. Id. The ALJ found that Plaintiff had a moderate limitation
in understanding, remembering, or applying information. R.26.
After concluding that Plaintiff has severe impairments that do not meet
the 	requirements 	of 	the 	listed 	impairments, 	the 	ALJ 	then 	determined
Plaintiff’s residual functional capacity (“RFC”), as follows:
[T]he claimant has the residual functional capacity to
perform 	sedentary 	work 	as 	defined 	in 	20 	CFR
404.1567(a) (i.e. lift, carry, push, or pull a maximum of
ten pounds; sit for six hours out of an eight-hour
workday; and stand and walk for two hours out of an
eight-hour workday) except she can occasionally climb
ramps and stairs. She can never climb ladders, ropes,
or scaffolds. 	She can occasionally stoop, kneel, and
crouch. 	She 	can 	never 	crawl. 	She 	is 	able 	to
understand, carry out, and remember detailed but not
complex instructions. 	She can sit for one hour and
then would need to stand for about five minutes before
resuming a standing position, and she can stay on task
during this transition.
R.27. 	At step four, the ALJ found that Plaintiff cannot perform her past
relevant work. 	R.36. 	Based on a vocational expert’s testimony, the ALJ
determined at step five that Plaintiff could perform other work that exists in
significant numbers in the national economy—namely, as an order clerk,
charge 	account 	clerk, 	or 	telephone 	information 	clerk—and 	thus 	was 	not
disabled. R.37-38.
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Plaintiff sought review from the Social Security Administration Appeals
Council, which was denied. 	R.1-6. 	That rendered the decision ripe for this
Court’s review. See 42 U.S.C. § 405(g).
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Legal standard
This Court reviews the Commissioner’s denial of social security benefits
“only to ascertain whether (1) the final decision is supported by substantial
evidence and (2) whether the Commissioner used the proper legal standards to
evaluate the evidence.” Whitehead v. Colvin, 820 F.3d 776, 779 (5th Cir. 2016)
(per curiam) (quotation omitted). 	“Substantial evidence is ‘such relevant
evidence 	as 	a 	reasonable 	mind 	might 	accept 	as 	adequate 	to 	support 	a
conclusion.’” 	Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)). 	It is “more than a scintilla,
but it need not be a preponderance.” 	Taylor v. Astrue, 706 F.3d 600, 602 (5th
Cir. 2012) (per curiam) (quotation omitted).
When conducting its review, the Court cannot reweigh the evidence or
substitute its judgment for the Commissioner’s. Brown v. Apfel, 192 F.3d 492,
496 (5th Cir. 1999). 	“Conflicts of evidence are for the Commissioner, not the
courts, to resolve.” 	Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005). 	But
judicial review must not be “so obsequious as to be meaningless.” 	Brown,
192 F.3d at 496 (quotation omitted). The court must scrutinize the record as a
whole, taking into account whatever fairly detracts from the weight of evidence
supporting the Commissioner’s findings. 	Singletary v. Bowen, 798 F.2d 818,
823 (5th Cir. 1986).
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Analysis
I. 	Legal framework
“The Commissioner uses a sequential, five-step approach to determine
whether a claimant is … disabled: (1) whether the claimant is presently
performing substantial gainful activity; (2) whether the claimant has a severe
impairment; (3) whether the impairment meets or equals a listed impairment;
(4) whether the impairment prevents the claimant from doing past relevant
work; and (5) whether the impairment prevents the claimant from performing
any other substantial gainful activity.” 	Morgan v. Colvin, 803 F.3d 773, 776
(5th 	Cir. 	2015) 	(footnote 	omitted) 	(citing 	20 	C.F.R. 	§§ 	404.1520(a)(4),
416.920(a)(4)). Before moving from step three to four, the ALJ determines the
claimant’s RFC, which is used to evaluate steps four and five. 	Id. at 776 n.2
(quoting 20 C.F.R. § 404.1520(a)(4)).
“Under this five-step approach, if the Commissioner determines at a
prior step that the applicant is or is not disabled, the evaluation process stops
....” 	Id. at 776 (citing 20 C.F.R. § 404.1520(a)(4)). 	The claimant bears the
burden of proof at the first four steps. Kneeland v. Berryhill, 850 F.3d 749, 753
(5th Cir. 2017). 	At the last step, the burden shifts to the Commissioner “to
establish the existence of other available substantial gainful employment that
a claimant can perform.” Id. at 753-54. The Commissioner meets this burden
by identifying potential alternative jobs existing in significant numbers in the
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national economy. 	See Fraga v. Bowen, 810 F.2d 1296, 1302 (5th Cir. 1987);
42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1566(a). The burden then “shifts back
to the claimant to prove that he is unable to perform the alternate work.”
Fraga, 810 F.2d at 1302.
II. 	The ALJ did not reversibly err when forming the RFC.
Plaintiff 	argues 	that 	the 	ALJ’s 	RFC 	finding 	is 	not 	supported 	by
substantial evidence. 	Dkt. 15 at 9. 	Specifically, she contends that the ALJ’s
RFC 	failed 	to 	account 	for 	Plaintiff’s 	documented 	physical 	and 	mental
limitations. Id. The Commissioner responds that the RFC is amply supported
by physical exam findings in the treatment records, objective findings by
various doctors, medical findings of state agency consultants, and Plaintiff’s
daily activities. Dkt. 19 at 5.
An applicant’s RFC is defined as “the most [an applicant] can still do
despite [her] limitations.” 	20 C.F.R. § 404.1545. 	“The ALJ is responsible for”
making this determination. Ripley v. Charter, 67 F.3d 552, 557 (5th Cir. 1995)
(citing 20 C.F.R. § 404.1546). 	In doing so, the ALJ examines all medical
evidence in the record. 	Webster v. Kijakazi, 19 F.4th 715, 718 (5th Cir. 2021);
20 C.F.R. § 404.1545 (RFC is based on “all the relevant evidence in [an
applicant’s] case record”).
Here, the ALJ found that Plaintiff “has the residual functional capacity
to perform sedentary work as defined in 20 CFR 404.1567(a) … except she can
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occasionally climb ramps and stairs. 	She can never climb ladders, ropes, or
scaffolds. She can occasionally stoop, kneel, and crouch. She can never crawl.
She is able to understand, carry out, and remember detailed but not complex
instructions. She can sit for one hour and then would need to stand for about
five minutes before resuming a standing position, and she can stay on task
during 	this 	transition.” 	R.27. 	As 	explained 	below, 	substantial 	evidence
supports some, but not all, of the RFC’s limitations. But any error is harmless,
so reversal and remand are unmerited.
A. 	Substantial 	evidence 	supports 	the 	RFC’s 	exclusion 	of
certain physical limitations, and its failure to include a
complete restriction on stooping was harmless.
Plaintiff 	contends 	that 	the 	RFC 	finding 	fails 	to 	include 	many
documented limitations stemming from her degenerative disc disease. Dkt. 15
at 10. 	In particular, Plaintiff argues that the ALJ did not adequately assess
the supportability and consistency of her orthopedic surgeon Dr. Henry Small’s
opinion. 	Dkt. 15 at 13. 	She asserts that the ALJ did not adequately explain
the reasons for rejecting certain limitations found in Dr. Small’s opinion,
despite 	finding 	his 	opinion 	partially 	persuasive. 	Id. 	In 	response, 	the
Commissioner emphasizes that the ALJ decided to limit Plaintiff to a reduced
range of sedentary work with a sit-and-stand option, and the record does not
support further functional limitations in the RFC. Dkt. 19 at 8.
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When determining the RFC, the ALJ must evaluate the persuasiveness
of “all the medical opinions and all of the prior administrative findings in [the]
case record.” 20 C.F.R. § 404.1520c(b). “In evaluating persuasiveness, the ALJ
considers five factors: (i) supportability; (ii) consistency; (iii) the source’s
relationship with the patient; (iv) the source’s specialty; and (v) ‘other factors
that tend to support or contradict’ the opinion.” Shugart v. Kijakazi, 2022 WL
912777, at *3 (S.D. Tex. Mar. 29, 2022) (quoting 20 C.F.R. § 404.1520c(c)).
“[T]he ALJ is required to explain how he considered the supportability and
consistency factors ….” Id. (quotation omitted). “[T]here must be a discernable
logic bridge between the evidence and the ALJ’s persuasiveness finding.”
Cardenas v. Kijakazi, 2022 WL 2719044, at *6 (S.D. Tex. June 3, 2022).
Here, Dr. Small’s examination on May 18, 2017 found, among other
things, that Plaintiff can “[n]ever” bend at the waist (i.e., stoop), 2 nor can she
reach either above or below the shoulder level. 	R.879. 	He also opined that
Plaintiff can use gross manipulation (gripping, grasping, and handling) only
occasionally and fine manipulation (fingering, keyboard) frequently, but not
constantly. 	Id. 	Dr. 	Small 	also 	maintained 	that 	those 	limitations 	were
permanent. Id.
2 “The ability to stoop incorporates the ability to bend.” Young v. Comm’r Soc. Sec.,
2020 WL 572717, at *6 (M.D. La. Feb. 5, 2020).
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After acknowledging Dr. Small’s opinions, the ALJ found they were
“partially persuasive as they are forms for the short-term disability, and he
has to provide some sort of answer in the blanks. These support that she has
some work ability, and that is persuasive.” R.35. But the ALJ’s decision does
not explain which of Dr. Small’s many opinions about Plaintiff’s physical
abilities 	were 	persuasive 	and 	whether 	those 	opinions 	were 	or 	were 	not
supported by or consistent with other record evidence. 	See id. 	And despite
finding Dr. Small’s opinions partially persuasive, the ALJ did not explain why
the foregoing limitations found by Dr. Small were not included in the RFC.
That was error.
Nevertheless, to merit reversal, Plaintiff must show that the lack of
adequate explanation was harmful. 	See generally Audler v. Astrue, 501 F.3d
446, 448 (5th Cir. 2007) (analyzing an ALJ’s failure to provide an explanation
for a different step-three finding). 	“Procedural perfection in administrative
proceedings is not required. 	This court will not vacate a judgment unless the
substantial rights of a party have been affected.” 	Mays v. Bowen, 837 F.2d
1362, 1364 (5th Cir. 1988). 	“Harmless error exists when it is inconceivable
that a different administrative conclusion would have been reached absent the
error.” 	Shugart, 2022 WL 912777, at *4 (quotation omitted). 	That is not the
case here.
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Plaintiff argues that Dr. Small’s opinion is consistent with the opinion of
Dr. Michael Abselsayed, a Doctor of Osteopathic Medicine, and Plaintiff’s own
testimony about her conditions. 	See Dkt. 15 at 12. 	Much like Dr. Small, Dr.
Abselsayed found that Plaintiff cannot bend at the waist and was limited in
her abilities to reach and handle and finger. See R.848. Dr. Abselsayed opined
that Plaintiff should not seek employment in any position that required her to
turn her head frequently, lean over, lift objects greater than 10 pounds, climb
ladders, stoop, organize objects below the level of her waist, or perform
frequent typing or fine manipulation or fingering. 	Id. 	According to Plaintiff,
that opinion underscores why substantial evidence goes against the RFC.
But other evidence supports the RFC’s exclusion of other limitations, at
least with respect to Plaintiff’s neck-turning, reaching, and handling and
fingering abilities. 	As the ALJ noted when deeming Dr. Abelsayed’s opinion
only partly persuasive, the “fully-developed record indicates that the claimant
had full range of motion of the head and shoulders.” 	R.35 	Indeed, treatment
records from December 2020 showed that Plaintiff’s neck had a “full range of
motion,” that Plaintiff had a “normal full range of motion of all joints,” and that
Plaintiff’s sensation was “intact with normal reflexes, coordination, and muscle
strength and tone.” R.532, 679 (December 2020 physical examination). Those
observations are consistent with findings during a physical examination one
month later. See R.517, R.562 (January 2021 physical examination). The ALJ
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also 	highlighted 	a 	more 	recent 	record 	from 	Dr. 	Matthew 	Cubbage, 	an
orthopedic 	surgeon, 	who 	noted 	that 	Plaintiff’s 	bilateral 	upper 	and 	lower
extremity strength was five out of five bilaterally. 	R.33 (citing R.971, an
October 10, 2023 examination). 	The same record observed that Plaintiff had
“full active and passive range of motion” in the shoulder “without pain or
crepitus ....” R.971. 	It also found that Plaintiff had “[f]ull range of motion” in
her neck area, notwithstanding Plaintiff’s reports of pain. Id.
The 	ALJ 	also 	evaluated 	the 	findings 	of 	the 	state 	agency 	medical
consultant Dr. Jeanine Kwun. 	R.34. 	Dr. Kwun limited Plaintiff to sedentary
work with no climbing ladders, ropes, or scaffolds, and occasionally climbing
ramps or stairs, balancing, stooping, kneeling, crouching, and crawling. R.209-
10, 212. The ALJ found this opinion persuasive because it was consistent with
the record, but explained that she also provided for a sit-stand option to
accommodate Plaintiff’s testimony and intermittent cane use. 	R.34. 	No
further limitations were recommended by Dr. Kwun. 	The ALJ could properly
adopt this opinion. 	See, e.g., White v. Kijakazi, 2022 WL 784480, at *7 (S.D.
Tex. Mar. 15, 2022) (an ALJ may “in her discretion rely on the state agency
consultants’ opinions in formulating the RFC”).
In addition, the ALJ acknowledged and addressed Plaintiff’s testimony
about being unable to turn her head, suffering pain in her lower back, hips,
neck, and shoulders, and dropping things. R.28-29.; R.188, 189, 191. But the
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ALJ concluded that Plaintiff’s self-described symptoms 	were not entirely
consistent with the other record evidence detailed above. 	R.29. 	Because
substantial evidence supports the ALJ’s decision to exclude neck-turning,
reaching, handling and fingering limitations from the RFC, Plaintiff cannot
show that the ALJ would have adopted Dr. Small’s opinion had he provided a
further explanation. 	Cf. Miller v. Astrue, 2023 WL 234773, at *4 (5th Cir.
Jan.18, 2023) (per curiam) (no harmful error absent a showing “that if the ALJ
had given further explanation, then she would have adopted” the medical
opinions that the ALJ deemed unpersuasive).
The analysis differs with respect to Dr. Small’s opinion that Plaintiff
cannot bend at the waist—that is, she cannot stoop. 	Dr. Abselsayed reached
much the same conclusion in his August 2020 examination. R.848. So did Dr.
Small when seeing Plaintiff again in 2020. R.804 (August 2020 finding limited
range of motion in lumber spine). Even the ALJ noted other records suggesting
that Plaintiff had trouble stooping. 	See R.32 (citing R.971, Dr. Cubbage’s
October 2023 finding that Plaintiff has “pain with range of motion of the
lumbar spine with forward flexion, extension, and lateral bending”). And it is
unclear whether any other records suggest otherwise.
But even if the RFC should have included a no-stooping limitation,
nothing in the record suggests that the outcome would have differed. 	At step
five, the ALJ found that Plaintiff could work as an order clerk, charge account
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clerk, and telephone information clerk, all of which are jobs that exist in
significant 	numbers 	in 	the 	national 	economy. 	R.37. 	According 	to 	the
Dictionary of Occupational Titles, none of those three jobs entails stooping. See
Dictionary of Occupational Titles § 209.567-014, 1991 WL 671794 (order clerk,
states for “stooping” “Not Present – Activity or condition does not exist”);
§ 205.367-014, 1991 WL 671715 (charge clerk, same notation); § 237.367-046,
1991 WL 672194 (same for telephone quotation clerk).
Thus, even with respect to stooping, Plaintiff has not demonstrated that
“a different administrative conclusion would have been reached” even if the
ALJ should have included such a limitation in the RFC. 	See Keel v. Saul,
986 F.3d 551, 556 (5th Cir. 2021) (finding harmless error). 	Reversal and
remand are unwarranted.
B. 	Substantial evidence supports the ALJ’s formulation of
Plaintiff’s mental RFC.
Plaintiff 	argues 	that 	the 	ALJ 	erred 	when 	formulating 	the 	mental
limitations in the RFC. 	Dkt. 15 at 14. 	Plaintiff focuses on the difference
between the findings by two state agency psychological consultants, Dr. Jean
Germain and Dr. James A. Brown, that Plaintiff is moderately limited in her
ability to understand, remember, and apply information, and the ALJ’s step-
three finding that Plaintiff was only mildly limited in that area of functioning.
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See id.; R.208 (Dr. Germain’s finding); R.216 (Dr. Brown’s finding); R.26 (ALJ’s
opinion). This argument is unavailing.
Contrary to Plaintiff’s assertion, nothing in the RFC finding conflicts
with Drs. Germain’s and Brown’s opinions. 	Both consultants opined that
Plaintiff “is able to understand, remember, and carry out detailed but not
complex 	instructions, 	make 	decisions, 	concentrate 	for 	extended 	periods,
interact 	appropriately 	with 	others, 	and 	respond 	to 	changes 	in 	the 	work
setting.” R.211 (Dr. Germain); R.219 (Dr. Brown). Upon finding these opinions
persuasive, the ALJ duly limited Plaintiff to understanding, carrying out, and
remembering detailed but not complex instructions. 	See R.27. 	That RFC
tracks Drs. Germain’s and Brown’s opinions.
Moreover, 	Plaintiff 	improperly 	conflates 	two 	distinct 	steps 	in 	the
analysis. The findings that Plaintiff highlights addressed Paragraph B criteria
necessary to determine if a claimant’s mental impairment meets or medically
equals a listing. 	See R.208 (Dr. Germain); R.216 (Dr. Brown); R.26 (ALJ’s
opinion). Mental limitations identified during that step-three process “are not
an RFC assessment ....” 	SSR 96-8P, 1996 WL 374184, at *4 (S.S.A. July 2,
1996); Baquer v. O’Malley, 2024 WL 1201623, at *6 n.2 (S.D. Tex. Mar. 20,
2024) (“[A]s a legal matter, even an ALJ’s own findings on Paragraph B criteria
do not dictate what goes into the RFC. Findings on Paragraph B criteria are
not an RFC assessment.”). Thus, even if the ALJ had concluded that Plaintiff
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is moderately limited in her ability to understand, remember, and apply
information, 	there 	is 	no 	indication 	that 	the 	ALJ 	would 	or 	should 	have
formulated the RFC differently. The ALJ’s decision should be affirmed.
Recommendation
For 	the 	foregoing 	reasons, 	it 	is 	RECOMMENDED 	that 	Plaintiff’s
motion for summary judgment (Dkt. 15) be DENIED, that the Commissioner’s
motion 	for 	summary 	judgment 	(Dkt. 	19) 	be 	GRANTED, 	and 	that 	the
Commissioner’s decision be AFFIRMED.
The parties have fourteen days from service of this Report and
Recommendation to file written objections. 28 U.S.C. § 636(b)(1); Fed.
R. 	Civ. 	P. 	72(b). 	Failure 	to 	file 	timely 	objections 	will 	preclude
appellate review of factual findings and legal conclusions, except for
plain error. 	Ortiz v. City of San Antonio Fire Dep’t, 806 F.3d 822, 825
(5th Cir. 2015).
Signed on February 26, 2026, at Houston, Texas.
______________________________
Yvonne Y. Ho
United States Magistrate Judge
_______________________________________
Y	Y	Y	Yvvooonne Y. H	H	H	Hooo
United States Magistrate Judge
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