3:25-cv-00064•Acevedo v. Dudek
Texte intégral
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS EL PASO DIVISION MICHAEL A., Plaintiff, § § § § § § § § § § 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.” Case 3:25-cv-00064-KC-RFC Document 17 Filed 12/10/25 Page 1 of 15
2 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) Case 3:25-cv-00064-KC-RFC Document 17 Filed 12/10/25 Page 2 of 15
3 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, Case 3:25-cv-00064-KC-RFC Document 17 Filed 12/10/25 Page 3 of 15
4 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 Case 3:25-cv-00064-KC-RFC Document 17 Filed 12/10/25 Page 4 of 15
5 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. Case 3:25-cv-00064-KC-RFC Document 17 Filed 12/10/25 Page 5 of 15
6 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 Case 3:25-cv-00064-KC-RFC Document 17 Filed 12/10/25 Page 6 of 15
7 “[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 Case 3:25-cv-00064-KC-RFC Document 17 Filed 12/10/25 Page 7 of 15
8 [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). Case 3:25-cv-00064-KC-RFC Document 17 Filed 12/10/25 Page 8 of 15
9 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 Case 3:25-cv-00064-KC-RFC Document 17 Filed 12/10/25 Page 9 of 15
10 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. Case 3:25-cv-00064-KC-RFC Document 17 Filed 12/10/25 Page 10 of 15
11 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 Case 3:25-cv-00064-KC-RFC Document 17 Filed 12/10/25 Page 11 of 15
12 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. Case 3:25-cv-00064-KC-RFC Document 17 Filed 12/10/25 Page 12 of 15
13 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 Case 3:25-cv-00064-KC-RFC Document 17 Filed 12/10/25 Page 13 of 15
14 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 Case 3:25-cv-00064-KC-RFC Document 17 Filed 12/10/25 Page 14 of 15
15 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. Case 3:25-cv-00064-KC-RFC Document 17 Filed 12/10/25 Page 15 of 15
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