Merchant v. Colvin

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
Christopher M.,1
Plaintiff,
v.
Frank J. Bisignano,2
Commissioner of the Social
Security Administration,
Defendant.
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Civil Action H-24-5053
MEMORANDUM AND ORDER
Christopher M. appeals the Social Security Administration
Commissioner’s final decision denying his application for Social
Security benefits. ECF No. 1. Pending before the court are
Plaintiff’s Motion for Summary Judgment, ECF No. 10; and
the Commissioner’s Cross Motion for Summary Judgment and
Brief in Support, ECF Nos. 14, 15. The parties consented to the
jurisdiction of the undersigned magistrate judge for all
purposes, including entry of final judgment. ECF Nos. 4, 7.
Plaintiff’s Motion for Summary Judgment is GRANTED. The
Commissioner’s Motion for Summary Judgment is DENIED, and
the case is REMANDED for additional administrative
proceedings consistent with this opinion.
1 In light of guidance received from the Committee on Court Administration and Case
Management of the Judicial Conference of the United States, which states that there
are significant privacy concerns in social security cases, the court refers to the Plaintiff
only by his first name and last initial.
2 Pursuant to Federal Rule of Civil Procedure 25(d), Frank J. Bisignano is substituted
as the defendant in this suit.
United States District Court
Southern District of Texas
ENTERED
March 03, 2026
Nathan Ochsner, Clerk
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1. Procedural Posture
On 	July 	28, 	2021, 	Christopher 	filed 	applications 	for
disability insurance benefits, under Title II of the Social Security
Act, and supplemental social security income benefits, under Title
XVI of the Social Security Act. Tr. 354, 357. Christopher alleged
that 	his 	disability 	began 	on 	January 	8, 	2019, 	due 	to 	vision
problems, a right hip fracture, arthropathy of the right hip joint,
peripheral neuropathy, patellofemoral instability of the right knee,
uncontrolled diabetes, diabetic ulcers on the bottom of his right
foot, partial amputation of his left foot, sciatica, and daily hip pain.
Tr. 408.
The SSA denied both of Christopher’s applications at the
initial level on December 23, 2021, and upon reconsideration on
May 31, 2022. Tr. 139, 152. Administrative Law Judge (ALJ)
William Howard held a hearing on November 8, 2022, which was
postponed because Christopher had not received the exhibits.
Tr. 33–44. The ALJ held another hearing on February 2, 2023,
where Christopher and a Vocational Expert (VE) testified. Tr. 45–
65. Christopher was not represented by counsel at that hearing.
The ALJ examined Christopher. Tr. 51. Christopher testified
that he completed twelfth grade, but he did not graduate high
school. Tr. 52. Christopher testified that the last time he worked
in any capacity was in 2019, prior to being injured at work. Tr. 52.
Christopher was injured when he fell from the top of a trailer to a
concrete floor and fractured his right hip. Tr. 53. Shortly after his
injury, Christopher had surgery to partially amputate his left foot.
Tr. 53–54.
Christopher testified that he does not cook, wash dishes, do
laundry, 	sweep, 	dust, 	exercise, 	or 	mow 	the 	lawn. 	Tr. 	55–56.
Christopher will occasionally take out the garbage, and he will
grocery shop about once a month. Id. Christopher drives a Dodge
Ram pickup truck and went fishing about two times in the year
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prior to the hearing. Tr. 55, 57. Christopher can walk about 100
yards and stand for about an hour before needing to sit down.
Tr. 57. He stated that he can lift about twenty or thirty pounds.
Tr. 58. At that time, he stated that he took pain medication, and
he did not use a walker, crutch, or cane. Tr. 58.
Christopher 	testified 	about 	his 	past 	work. 	In 	2011,
Christopher drove a vacuum truck and serviced portable toilets.
Tr. 58. Then, Christopher worked loading and driving large 18-
wheeler trucks.3 Id.
On February 27, 2023, the ALJ issued a decision finding that
Christopher was not disabled. Tr. 127. On July 19, 2023, the
Appeals Council vacated the ALJ’s decision and remanded the case
for 	further 	proceedings 	because 	the 	decision 	did 	not 	include
consideration of a Third-Party Function Report from Christopher’s
sister-in-law. Tr. 134–35.
After remand from the Appeals Council, the ALJ held a
hearing 	on 	January 	10, 	2024. 	Tr. 	66. 	Much 	of 	Christopher’s
testimony was the same at both the 2023 and 2024 hearings.
Christopher’s counsel was present at the 2024 hearing, and
he examined Christopher. Tr. 66, 70. Christopher testified that he
has not returned to work and that he can only stand for 45 minutes
to 	an 	hour 	before 	having 	problems 	with 	his 	feet. 	Tr. 	70–71.
Christopher stated that he needs surgery on his right foot but that
he cannot afford it. Tr. 71. Sometimes Christopher’s feet swell, so
he elevates them. Id.
Christopher testified that he was on his feet most of the time
in his past work. Tr. 72. Now, Christopher does not walk much,
but he will drive about five minutes at a time. He dresses himself,
but he does not cook or wash dishes, and he does not leave the
3 The VE also testified at the February 2023 hearing. Tr. 59–64. That VE’s testimony
is not at issue in this appeal.
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house often. Tr. 73–74. Christopher feels that his feet are getting
worse than they were in the past. Tr. 74.
The ALJ examined Christopher. Christopher stated that he
used to go fishing, but that he stopped fishing about a year or two
prior to the hearing. Tr. 75. Christopher stated that he can walk
about 100 yards, he can lift about 30–40 pounds, and that he does
not take pain medication. Tr. 75. Christopher stated that after he
broke his right hip, his right leg from the hip to his foot has been
bothering him. Tr. 76. Christopher can sit for three to four hours.
Tr. 76.
The 	VE 	testified 	that 	Christopher’s 	past 	work 	history
reflects a job as a truck driver with medium physical demands,
which is considered an SVP four, semi-skilled position. Tr. 78.
Christopher 	also 	worked 	as 	a 	material 	handler 	with 	heavy
physical demands, which is an SVP three, semi-skilled position. Id.
The ALJ posed a series of hypothetical questions to the VE.
He asked the VE first to assume a person of the same age,
education and vocational background as Christopher; who could
work at the light exertional level, but with standing or walking
limited to four hours out of an eight-hour workday for no longer
than an hour at a time; after an hour of standing or walking, the
person should be allowed to sit for ten to fifteen minutes while
continuing the work; the person could sit about six hours out of an
eight-hour workday; lifting and/or carrying limited to ten pounds
frequently, twenty pounds occasionally; no working in proximity to
hazards 	such 	as 	deep 	water, 	open 	flames, 	dangerous 	moving
machinery, or unprotected heights; only occasionally balance and
negotiate stairs and ramps. Tr. 79. According to the VE, such a
person could not perform Christopher’s past work. Id. Such a
person 	would 	not 	have 	any 	skills 	that 	would 	transfer 	from
Christopher’s past work. Id. Such a person could obtain work
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available in the national economy as a ticket seller, photo-copy
machine operator, or router. Tr. 79–80.
When asked about the same hypothetical worker with the
additional limitation of one unscheduled, two-hour break per day
in addition to the usual breaks, the VE stated that such a person
could not maintain any jobs in the national economy. Tr. 80–81.
Christopher’s attorney asked the VE whether an individual
who consistently missed two days of work per month would be able
to maintain competitive employment. Tr. 81. The VE stated that,
based on his education, training, and work experience, such a
person could not maintain competitive employment in the national
economy. Id. Christopher’s attorney also asked whether a person
in the first hypothetical who needed a fifteen minute break after
standing or walking for an hour but could not continue working for
those fifteen minutes be able to maintain competitive employment.
Tr. 81–82. The VE stated that such a person would not be able to
maintain competitive employment. Tr. 82.
The ALJ issued his decision on March 1, 2024, finding that
Christopher was not disabled from January 8, 2019, through the
date of the decision. Tr. 26. Christopher requested review of the
ALJ’s decision, which the Appeals Council denied on October 24,
2024. Tr. 1, 6. Christopher timely filed a complaint in federal court
on December 23, 2024. ECF No. 1.
2. Legal Standards
The 	Social 	Security 	Act 	provides 	disability 	insurance
benefits to individuals with physical and mental disabilities who
have 	contributed 	to 	the 	program 	and 	provides 	supplemental
income to individuals with physical and mental disabilities who
have limited income and resources. See 42 U.S.C. §§ 423, 1382.
Disability is defined as the “inability to engage in any substantial
gainful activity by reason of any medically determinable physical
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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), 1382c(a)(3)(A).
The Commissioner uses a sequential, five-step approach to
determine whether the claimant is disabled. Schofield v. Saul,
950 F.3d 315, 317 (5th Cir. 2020); 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4). The claimant bears the burden of proof on the first
four steps, and the Commissioner bears the burden on the fifth
step. Keel v. Saul, 986 F.3d 551, 555 (5th Cir. 2021). A finding that
the claimant is disabled or not disabled at any point in the five-
step review terminates the analysis. 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4).
This court’s review of the ALJ’s disability determination is
“highly 	deferential.” 	Garcia 	v. 	Berryhill, 	880 	F.3d 	700, 	704
(5th Cir. 2018) (citations omitted). The court asks “only whether
substantial evidence supports the decision and whether the correct
legal standards were employed.” Id. “A decision is supported by
substantial evidence if ‘credible evidentiary choices or medical
findings support the decision.’” Salmond v. Berryhill, 892 F.3d 812,
817 (5th Cir. 2018) (quoting Whitehead v. Colvin, 820 F.3d 776, 779
(5th 	Cir. 	2016)). 	“Substantial 	evidence 	is 	‘more 	than 	a 	mere
scintilla but less than a preponderance.’” Id. (quoting Williams v.
Admin. Rev. Bd., 376 F.3d 471, 476 (5th Cir. 2004)). “It means—
and means only—‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Biestek v.
Berryhill, 587 U.S. 97, 103 (2019) (quoting Consol. Edison Co. of
N.Y. v. NLRB, 305 U.S. 197, 229 (1938)). The reviewing court must
scrutinize the record to determine whether substantial evidence
supports the ALJ’s decision, but it may not reweigh the evidence
or substitute its judgment. Perez v. Barnhart, 415 F.3d 457, 461
(5th Cir. 2005).
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3. Analysis
A. Step One
At step one, the ALJ must determine whether the claimant
is 	engaged 	in 	substantial 	gainful 	activity. 	20 	C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). 	A 	person 	engaged 	in
substantial 	gainful 	activity 	is 	not 	disabled, 	regardless 	of 	her
medical condition, age, education, or work experience. Id.
The 	ALJ 	found 	that 	Christopher 	has 	not 	engaged 	in
substantial gainful activity since the alleged onset date. Tr. 18.
Christopher does not dispute the ALJ’s step-one finding.
B. Step Two
At 	step 	two, 	the 	ALJ 	determines 	whether 	any 	of 	the
claimant’s impairments, or any combination thereof, is severe and
has lasted or is expected to last a continuous period of at least
twelve months. 20 C.F.R. §§ 404.1520(a)(4)(ii) (citing 20 C.F.R.
§ 404.1509), 	416.920(a)(4)(ii) 	(citing 	20 	C.F.R. 	§ 	416.909). 	An
impairment is severe if it “significantly limits [the claimant’s]
physical or mental ability to do basic work activities.” 20 C.F.R.
§§ 404.1520(c), 416.920(c). An impairment is “not severe only if it
is 	a 	slight 	abnormality 	[having] 	such 	minimal 	effect 	on 	the
individual that it would not be expected to interfere with the
individual’s ability to work, irrespective of age, education[,] or
work experience.” Keel, 986 F.3d at 555 (quoting Stone v. Heckler,
752 F.2d 1099, 1101 (5th Cir. 1985)). “A person who does not have
a ‘severe impairment’ is not disabled.” Schofield, 950 F.3d at 318
(citing 20 C.F.R. § 404.1520(c)).
The ALJ found that Christopher had medically determinable
severe impairments of diabetes mellitus with neuropathy and
recurrent lower extremity sores/ulcers, status-post hip fracture,
disorder of the knee, and status-post osteomyelitis of the foot.
Tr. 18. 	The 	ALJ 	considered 	all 	of 	Christopher’s 	medically
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determinable 	impairments, 	both 	severe 	and 	non-severe 	in
determining Christopher’s residual functional capacity. Tr. 18.
Thus, any error in the ALJ’s severity findings would be harmless.
See Esparza v. Saul, No. 3:19-CV-2284, 2020 WL 6551272, at *13
(N.D. Tex. Oct. 2, 2020) (citing cases and stating that “[t]he Fifth
Circuit has stated that a failure to make a severity finding at step
two 	is 	not 	reversible 	error 	when 	an 	ALJ 	continues 	with 	the
sequential evaluation process”). In any event, Christopher does not
dispute the ALJ’s step-two findings.
C. Step Three
At step three, the ALJ determines if any severe impairment
meets or equals a listed impairment (Listing) in Appendix 1.
20 C.F.R. 	§§ 404.1520(a)(4)(iii), 	416.920(a)(4)(iii); 	see 	also 	20
C.F.R. 	Pt. 	404, 	Subpt. 	P, 	App. 	1. 	The 	Listings 	describe
impairments that the SSA considers “severe enough to prevent an
individual from doing any gainful activity, regardless of . . . age,
education, 	or 	work 	experience.” 	20 	C.F.R. 	§§ 	404.1525(a),
416.925(a). The claimant will be found disabled if the claimant’s
impairments meet or equal all of the specified criteria of a Listing.
20 C.F.R. §§ 404.1520(d), 416.920(d); Whitehead, 820 F.3d at 781.
The claimant has the burden of establishing that an impairment
meets or equals the specified medical criteria. Whitehead, 820 F.3d
at 781.
The 	ALJ 	considered 	Listing 	Sections 	11.14 	(peripheral
neuropathy), 	1.18 	(abnormality 	of 	a 	major 	joint(s) 	in 	any
extremity), 	1.21 	(soft 	tissue 	injury 	or 	abnormality 	under
continuing 	surgical 	management), 	and 	1.22 	(non-healing 	or
complex fracture of the femur, tibia, pelvis, or one or more of the
talocrural bones) and found that Christopher does not have an
impairment 	or 	combination 	of 	impairments 	that 	meets 	or
medically equals the severity of one of the listed impairments.
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Tr. 19–20. 	Christopher 	does 	not 	dispute 	the 	ALJ’s 	step-three
findings.
D. Residual Functional Capacity
Before reaching the final two steps, the ALJ must assess the
claimant’s 	residual 	functional 	capacity 	(RFC). 	20 	C.F.R.
§§ 404.1520(e) (citing 20 C.F.R. § 404.1545), 416.920(e) (citing 20
C.F.R. § 416.945). The RFC is a determination of the most a
claimant can do despite all physical and mental limitations. Perez,
415 F.3d at 461–62 (citing 20 C.F.R. § 404.1545(a)(1)). The RFC
determination is “based on all the relevant medical and other
evidence in [the] case record[.]” 20 C.F.R. § 404.1520(e); Perez, 415
F.3d at 461–62 (citing 20 C.F.R. § 404.1545(a)(1)); SSR 96–8p, 1996
WL 374184, at *2, *3, *5 (July 2, 1996). The ALJ is responsible for
assessing a claimant’s RFC. 20 C.F.R. §§ 404.1546(c), 416.946(c);
Taylor v. Astrue, 706 F.3d 600, 602–03 (5th Cir. 2012) (“[T]he
determination 	of 	residual 	functional 	capacity 	is 	the 	sole
responsibility of the ALJ.”).
The ALJ found that Christopher has the RFC to perform
work at the light exertion level, with additional limitations. Tr. 20.
Specifically, the claimant can stand and/or walk about
four 	hours 	in 	an 	eight-hour 	workday. 	However,
standing and/or walking is limited to about an hour at
a 	time, 	and 	then 	should 	be 	allowed 	to 	sit 	at 	the
workstation 	while 	continuing 	to 	work 	for 	10-15
minutes before he could again stand or walk. The
claimant can also sit about six hours in an 8-hour
workday. He can lift and/or carry 10 pounds frequently
and 	20 	pounds 	occasionally. 	The 	claimant 	should
never be required to work in proximity to hazards,
such as deep water, open flames, dangerous moving
machinery, 	or 	unprotected 	heights. 	Lastly, 	the
claimant can only occasionally balance and negotiate
stairs and ramps.
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Id. In reaching that conclusion, the ALJ stated that he considered
all 	of 	Christopher’s 	symptoms 	and 	the 	extent 	to 	which 	his
symptoms are consistent with the objective medical evidence and
other evidence. Id. The ALJ also stated that he considered the
medical opinions and prior administrative medical findings in the
record. Id.
Christopher argues that the ALJ’s evaluation of the state
agency physicians’ medical opinions is legally insufficient to allow
for meaningful judicial review. ECF No. 10 at 4–8. The court
agrees. To determine “what weight, if any, to give a medical
opinion,” ALJs consider a list of factors, outlined in 20 C.F.R.
§ 404.1520c. Webster, 19 F.4th at 719. In his decision, the ALJ
must 	explain 	his 	consideration 	of 	the 	supportability 	and
consistency factors. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2).
The 	supportability 	factor 	relates 	to 	how 	much 	the 	objective
medical evidence and the medical source’s explanation supports
the medical opinion, while the consistency factor relates to the
medical opinion’s consistency with evidence from other medical
sources. 20 C.F.R. §§ 404.1520c(c)(1)– (2), 416.920c(c)(1)– (2). Here,
the 	ALJ 	did 	not 	sufficiently 	explain 	the 	consistency 	or
supportability of the state agency physicians’ medical opinions.
The state agency physicians, Dr. Patty Rowley and Dr. Kim
Rowlands, issued different medical opinions. Both doctors found
that Christopher was limited to occasionally lifting or carrying up
to 20 pounds, frequently lifting or carrying 10 pounds, and sitting
for up to six hours in an eight-hour workday. Tr. 88–89, 102–103.
Dr. Rowley found that Christopher was limited to only three hours
of 	standing 	and/or 	walking 	in 	an 	eight-hour 	workday; 	only
frequent climbing ramps or stairs, stooping, kneeling, crouching,
and 	crawling; 	and 	only 	occasional 	balancing 	and 	climbing 	of
ladders, ropes, or scaffolds. Tr. 89. Dr. Rowlands, on the other
hand, found fewer limitations than did Dr. Rowley. Dr. Rowlands
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found that Christopher was limited to four hours of standing
and/or walking in an eight-hour day and that Christopher had no
limitations 	related 	to 	climbing, 	stooping, 	kneeling, 	crouching,
crawling, or balancing. Tr. 102–03.
The ALJ considered both Dr. Rowlands and Dr. Rowley’s
opinions together, in a single analysis that does not separate out
his findings as to each. He found that:
The opinions were somewhat persuasive as they were
generally consistent with the overall medical record
that demonstrated the claimant has a history of hip
and foot fracture. Nevertheless, there was no evidence
of a total functional loss as shown by the fact that the
claimant did not require the use of an assistive device
to ambulate and the diabetic ulcer did not require
continuing surgical management, and the claimant
demonstrated that he was able to ambulate normally
and 	had 	full 	range 	of 	motion 	of 	the 	extremities
(Exhibit 7F/17).
Tr. 24.
Although the ALJ articulated his consistency determination
as to both opinions by stating that the consultants’ findings were
“generally consistent” with the overall medical record, he failed
entirely to address the internal supportability of their findings in
violation of 20 C.F.R. § 404.1520c and SSR 96-8p. The ALJ’s RFC
determination appears to accept and reject different portions of
each 	of 	Dr. 	Rowlands 	and 	Dr. 	Rowley’s 	opinions, 	without
explaining which portions of each opinion he was accepting or
rejecting or why or how each doctor’s opinion was consistent or
supported. This is error. Cf. Rai R. v. Kijakazi, No. 4:21-CV-2270,
2022 WL 4450487, at *5 (S.D. Tex. Sept. 23, 2022).
The ALJ did not explain specifically which parts of each
opinion were “somewhat persuasive” or why he adopted portions of
each 	doctor’s 	“somewhat 	persuasive” 	findings. 	Without 	more,
under the specific facts of this case, the court cannot assess the
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validity of the ALJ’s reasoning. See Christina M. v. Bisignano, No.
24-CV-3636, 2025 WL 2689668, at *5–6 (S.D. Tex. July 28, 2025),
R. & R. adopted, 2025 WL 2687862 (S.D. Tex. Sept. 16, 2025).
The ALJ’s decision must stand or fall for the reasons stated
in the ALJ’s decision. Newton v. Apfel, 209 F.3d 448, 455 (5th Cir.
2000); Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014)
(stating that the court “may affirm only on the grounds that the
Commissioner stated for his decision”). It is improper for the court
to provide a post hoc rationale for the ALJ’s decision. Doing so
would “usurp[] the agency’s function of weighing and balancing the
evidence in the first instance.” Carpenter v. Astrue, 537 F.3d 1264,
1267 	(10th 	Cir. 	2008). 	The 	court 	recognizes 	that 	procedural
perfection is not required, and that, in some cases, it may be patent
from the face of the decision how the ALJ reached his conclusions.
That is not the case here. Because the ALJ addressed both opinions
together, did not fully address the necessary factors, and gave no
explanation for incorporating certain limitations and excluding
others, the court is unable to perform the statutorily mandated
judicial review.
The error was not harmless. To make his determination that
Christopher is not disabled, the ALJ relied on the VE’s testimony
that there were sufficient jobs in the national economy that a
person with Christopher’s RFC could perform. Tr. 25–26. It is not
clear based on the current record whether, if posed with a more
limited 	RFC 	including 	limitations 	like 	those 	Dr. 	Rowley
contemplated, the VE would still testify that Christopher could
perform the proffered jobs. The court will not guess what the ALJ
would 	have 	done 	had 	he 	considered 	both 	doctors’ 	findings
separately and addressed the consistency and supportability of
each. The court concludes that the ALJ’s error was not harmless,
and reversal and remand are warranted. The court does not reach
and does not express any opinion about the other arguments that
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Christopher raises in his motion for summary judgment. The
undersigned also expresses no opinion about what RFC the ALJ
should find or whether Christopher is disabled.
4. Conclusion
The ALJ’s decision denying Social Security benefits is not
supported by substantial evidence. Summary judgment in favor of
Christopher is therefore appropriate. Fed. R. Civ. P. 56(a), (c).
Accordingly, 	Christopher’s 	Motion 	for 	Summary 	Judgment 	is
GRANTED. The Commissioner’s Motion for Summary Judgment
is DENIED. The case is REMANDED for additional proceedings
consistent with this opinion. The court will enter separate final
judgment.
Signed at Houston, Texas, on March 3, 2026.
______________________________________
Peter Bray
United States Magistrate Judge
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