Jackson v. Commissioner of Social Security

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
K.J.,1
Plaintiff.
V.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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CIVIL ACTION NO. 3:25-cv-00416
MEMORANDUM AND RECOMMENDATION
Plaintiff K.J. seeks judicial review of an administrative decision denying her
applications for disability and disability insurance benefits under Title II and
supplemental security income under Title XVI of the Social Security Act (the
“Act”). K.J. and Defendant Frank Bisignano, the Commissioner of the Social
Security Administration (the “Commissioner”) have both filed briefs. See Dkts. 8,
11. After reviewing the briefing, the record, and the applicable law, I recommend
that the Commissioner’s decision be affirmed.
BACKGROUND
On August 16, 2022, K.J. filed a Title II application for disability and
disability insurance benefits and a Title XVI application for supplemental security
income alleging disability beginning March 2, 2022. Her applications were denied
and denied again upon reconsideration. On April 3, 2025, an Administrative Law
Judge (“ALJ”) held a hearing. On April 21, 2025, the ALJ issued a decision, finding
that K.J. was not disabled. K.J. filed an appeal with the Appeals Council. In support
1 On May 1, 2023, the Committee on Court Administration and Case Management of the
Judicial Conference of the United States issued a memorandum recommending that
courts adopt a local practice of using only the first name and last initial of any non-
government party in Social Security opinions. This court has taken that guidance a step
further in the interest of claimant’s privacy and will use only initials in public opinions.
United States District Court
Southern District of Texas
ENTERED
July 15, 2026
Nathan Ochsner, Clerk
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of her appeal, K.J. submitted new evidence: a six-page questionnaire completed by
Heather Reed, a physician assistant. On September 3, 2025, the Appeals Council
denied review, making the ALJ’s decision final and ripe for judicial review.
APPLICABLE LAW
The standard of judicial review for disability appeals is provided in 42 U.S.C.
§ 405(g). See Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002). Courts
reviewing the Commissioner’s denial of social security disability applications limit
their 	analysis 	to 	“(1) whether 	the 	Commissioner 	applied 	the 	proper 	legal
standards; 	and 	(2) whether 	the 	Commissioner’s 	decision 	is 	supported 	by
substantial evidence on the record as a whole.” Est. of Morris v. Shalala, 207 F.3d
744, 745 (5th Cir. 2000). Addressing the evidentiary standard, the Fifth Circuit has
explained:
Substantial evidence is that which is relevant and sufficient for a
reasonable mind to accept as adequate to support a conclusion; it
must be more than a scintilla, but it need not be a preponderance. It
is the role of the Commissioner, and not the courts, to resolve conflicts
in the evidence. As a result, [a] court cannot reweigh the evidence, but
may only scrutinize the record to determine whether it contains
substantial 	evidence 	to 	support 	the 	Commissioner’s 	decision. 	A
finding of no substantial evidence is warranted only where there is a
conspicuous absence of credible choices or no contrary medical
evidence.
Ramirez v. Colvin, 606 F. App’x 775, 777 (5th Cir. 2015) (cleaned up). Judicial
review is limited to the reasons relied on as stated in the ALJ’s decision, and post
hoc rationalizations are not to be considered. See SEC v. Chenery Corp., 332 U.S.
194, 196 (1947).
Under the Act, “a claimant is disabled only if she is incapable of engaging in
any substantial gainful activity.” Anthony v. Sullivan, 954 F.2d 289, 293 (5th Cir.
1992) (quotation omitted). The Commissioner uses a five-step approach to
determine if a claimant is disabled, including:
(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;
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(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.
Salmond v. Berryhill, 892 F.3d 812, 817 (5th Cir. 2018) (quoting Kneeland v.
Berryhill, 850 F.3d 749, 753 (5th Cir. 2017)).
The burden of proof lies with the claimant during the first four steps before
shifting to the Commissioner at Step 5. See Salmond, 892 F.3d at 817. Between
Steps 3 and 4, the ALJ considers the claimant’s residual functional capacity
(“RFC”), which serves as an indicator of the claimant’s maximum capabilities given
the physical and mental limitations detailed in the administrative record. See
Kneeland, 850 F.3d at 754. The RFC also helps the ALJ “determine whether the
claimant is able to do her past work or other available work.” Id.
THE ALJ’S DECISION
The ALJ found at Step 1 that K.J. “has not engaged in substantial gainful
activity since March 2, 2022, the alleged onset date.” Dkt. 7-1 at 27.
The ALJ found at Step 2 that K.J. “has the following severe impairments:
obesity; degenerative disc disease of the cervical spine with radiculopathy and
residual effects, post-surgical repair; degenerative disc disease of the lumbar spine
with 	radiculopathy; 	osteoarthritis 	of 	the 	bilateral 	knees; 	intracranial
bleed/hematoma; migraines; peripheral neuropathy; sleep apnea; and chronic
kidney disease.” Id. at 28.
At Step 3, the ALJ found that K.J. “does not have an impairment or
combination of impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” Id.
Prior to consideration of Step 4, the ALJ determined K.J.’s RFC as follows:
[K.J.] has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b) except [she] can stand
and/or walk 4 hours in an 8-hour workday; she can sit 6 hours in an
8-hour workday; she can lift and/or carry 10 pounds frequently and
20 pounds occasionally; she can never climb ladders, ropes, or
scaffolds; she can occasionally climb ramps and stairs; she can
occasionally 	balance, 	stoop, 	kneel, 	crouch, 	and 	crawl; 	she 	can
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occasionally perform overhead reaching with the bilateral upper
extremities; she can frequently perform gross handling and fine
fingering with the bilateral upper extremities; she can occasionally be
exposed to extreme heat, extreme cold, and extreme humidity; she can
have moderate exposure to noise/vibration; she can never work at
unprotected 	heights; 	she 	can 	never 	work 	around 	dangerous
machinery or workplace hazards; she can never drive; and, due to the
combination 	of 	the 	claimant’s 	combined 	impairments, 	she 	can
understand, remember and carry out simple instructions, but no work
performed in a production rate environment (such as assembly line
work), involving only simple, work-related decisions, and having to
deal with only occasional changes in a routine work setting.
Id. at 29–30.
At Step 4, the ALJ found that K.J. “is unable to perform any past relevant
work.” Id. at 33.
At Step 5, the ALJ elicited testimony from a vocational expert (“VE”) that
“there are jobs that exist in significant numbers in the national economy that [K.J.]
can 	perform.” 	Id. 	Thus, 	the 	ALJ 	found 	that 	K.J. 	“has 	not 	been 	under 	a
disability . . . from March 2, 2022, [the alleged onset date,] through the date of [the
ALJ’s] decision.” Id. at 34.
DISCUSSION
K.J. raises two issues for my review: (1) “Whether the ALJ committed
harmful error by failing to assess [K.J.]’s need for a cane”; and (2) “Whether the
Appeals Council erred by finding Physician Assistant Heath[er] Reed’s opinion did
not create a reasonable probability that it would have changed the outcome of the
ALJ’s decision.” Dkt. 8 at 4. For the reasons explained below, neither the ALJ nor
the Appeals Council erred.
A. 	THE ALJ D ID NOT E RR
In her opening brief, K.J. notes that she “testified three times during the 26-
minute April 2025 hearing that she had to use a cane,” including testimony “that
she had a stroke in 2022, could not walk without her walking stick, and needed
help balancing”; “that she could walk unassisted for five or ten minutes”; and “that
she used a cane.” Dkt. 8 at 5. K.J. also points out that the record shows that she
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“had balance disturbance, gait abnormalities, and occasional dizziness” and “was
prescribed a walker following [an] August 2022 surgery.” Id. K.J. contends that,
considering this evidence, the ALJ erred when he “failed to include, or state why
he did not include, a limitation in the RFC to account for [K.J.]’s need for a cane or
other assistive device.” Id. I disagree.
The ALJ mentioned all the facts that K.J. recited in her opening brief. The
ALJ observed that K.J. “was hospitalized from March 3, 2022, through March 13,
2022, for treatment of hematoma on the right side of her brain” (i.e., a stroke).
Dkt. 7-1 at 30. The ALJ noted that K.J. “had balance problems, occasional
dizziness, headaches, [and] gait abnormalities.”. Id. The ALJ also noted that K.J.
“suffered from gait instability” and ultimately had spinal surgery. Id. at 31. The ALJ
further recounted K.J.’s testimony that “she requires the use of a walking stick to
ambulate.” Id. at 32. The ALJ was well aware that K.J. “ambulated with a cane.”
Id. at 31. Still, it was not error for the ALJ to craft an RFC without mentioning K.J.’s
self-reported need for a cane.
“To find that a hand-held assistive device is medically required, there must
be medical documentation establishing the need for a hand-held assistive device
to aid in walking or standing, and describing the circumstances for which it is
needed.” SSR 96-9P, 1996 WL 374185, at *7 (July 2, 1996). The only medical
documentation in the record regarding K.J.’s need for a hand-held assistive device
are prescriptions for a folding walker with wheels and a heavy-duty rolling walker
following K.J.’s spinal surgery in August 2022. See Dkt. 7-1 at 534–35. These
prescriptions, however, are silent as to the circumstance in which these devices are
needed. Moreover, these prescriptions are not for a cane or a walking stick, which
is the hand-held assistive device that K.J. claims she currently needs and uses.
Perhaps most importantly, during a November 2022 follow-up, K.J.’s physician
found on exam that she had “full strength throughout” and a “[n]ormal gait.” Id. at
346. K.J. simply did not carry her burden to demonstrate that a cane is medically
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required. Accordingly, the ALJ did not err in failing to discuss whether K.J. needed
a hand-held assistive device when crafting K.J.’s RFC.
Even if the ALJ had erred, K.J. could not show prejudice. “To establish
prejudice, a claimant must show that he could and would have adduced evidence
that might have altered the result.” Brock v. Chater, 84 F.3d 726, 728 (5th Cir.
1996) (quotation omitted). K.J. acknowledges that she can walk short distances
unassisted. See Dkt. 8 at 5. Thus, by her own admission, K.J. needs a cane only for
long distances. K.J. argues that “the vocational expert testified that if a person
needed a cane for long distances, all the light jobs the ALJ relied on at step five to
find [K.J.] not disabled would be precluded.” Id. at 6. That is true, but the
vocational expert also testified that even if K.J. had an RFC that incorporated the
use of a cane for long distances, there would be sedentary jobs still available:
There would be sedentary unskilled jobs with an SVP of 2. One would
be that of a digital scan operator, DOT code would be 249.587-018,
approximately 12,000 jobs in the national economy. A second would
be a surveillance monitor, 379.367-010, approximately 20,000 jobs in
the national economy, and a third would be that of a printed board
assembler, 726.684-110, approximately 9,000 jobs in the national
economy.
Dkt. 7-1 at 57. Thus, even if the ALJ erred (he did not), such error was not
prejudicial, and remand is not required.
B. 	THE A PPEALS COUNCIL (“AC”) D ID NOT E RR
The ALJ issued his decision on April 21, 2025. Three months later, on July
21, 2025, K.J. had Reed complete a six-page questionnaire. See Dkt. 7-1 at 12.
According to Reed, K.J. can only sit or stand for up to one hour in an eight-hour
day. See id. at 13. Reed also reports that K.J. is “[i]ncapable” of tolerating even low
work stress and would be absent more than four days per month. Id. at 16. Despite
having treated K.J. since only August 21, 2024, Reed opines that K.J.’s limitations,
described in Reed’s questionnaire, manifested on February 23, 2022. See id. at 17.
In denying review, the Appeals Council wrote: “You submitted a medical source
statement from Heather Reed, P.A., dated July 21, 2025 (6 pages). We find this
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evidence does not show a reasonable probability that it would change the outcome
of the decision. We did not exhibit this evidence.” Id. at 6. K.J. contends that the
Appeals Council erred in not considering this six-page questionnaire. I disagree.
The Fifth Circuit has described the Appeals Council’s obligations on review:
In deciding whether to deny the claimant’s request for review,
the AC must consider and evaluate any “new and material evidence”
that is submitted, if it relates to the period on or before the ALJ’s
decision. 20 C.F.R. § 404.970(b). If the AC finds that the ALJ’s
“action, findings, or conclusion is contrary to the weight of the
evidence currently of record,” the AC will then review the case. Id.
Otherwise, 	it 	will 	deny 	the 	claimant’s 	request 	for 	review. 	The
regulations do not require the AC to provide a discussion of the newly
submitted evidence or give reasons for denying review.
Sun v. Colvin, 793 F.3d 502, 511 (5th Cir. 2015) (emphasis added).
There is simply nothing about Reed’s questionnaire that suggests K.J. would
have obtained a different outcome if Reed’s opinion was considered. As the
Commissioner notes, “the certified administrative record does not include any
treatment records from Heather Reed to support the opinions she rendered in the
Questionnaire.” Dkt. 11 at 7. This is a markedly different situation than in Shugart
v. Kijakazi, where I ordered remand because it was “conceivable that the ALJ could
make a different administrative decision upon further review.” No. 3:21-cv-00007,
2022 WL 912777, at *4 (S.D. Tex. Mar. 29, 2022). In Shugart, I was dealing with
the ALJ’s failure to evaluate a medical opinion, not the Appeals Council’s decision
whether to consider new evidence. Moreover, in Shugart, “[t]he administrative
record contain[ed] [the opining physician]’s treatment notes, which include MRI
test results, various examination findings, as well as discussions of Shugart’s
history of spinal surgery and related symptomology.” Id. Here, however, there are
no treatment records or treatment notes from Heather Reed. Accordingly, it is
inconceivable that the ALJ would have reached a different result if he had
considered Reed’s questionnaire. Thus, the Appeals Council did not err.
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CONCLUSION
For the reasons discussed above, I recommend that the Commissioner’s
decision be affirmed.
The 	parties 	have 	14 	days 	from 	service 	of 	this 	Memorandum 	and
Recommendation to file written objections. See 28 U.S.C. § 636(b)(1)(C); Fed. R.
Civ. P. 72(b)(2). Failure to file timely objections will preclude appellate review of
factual findings and legal conclusions, except for plain error.
SIGNED this ____ day of July 2026.
______________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE
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