Hinds v. Commissioner of Social Security

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
Joshua H., 	§
Plaintiff, 	§
§
v. 	§ 	Civil Action H-24-4846
§
Frank Bisignano,1 	§
Commissioner of the 	§
Social Security Administration, 	§
Defendant. 	§
MEMORANDUM AND RECOMMENDATION
Joshua 	H. 	appeals 	the 	Social 	Security 	Administration
Commissioner’s final decision denying his application for social
security benefits. ECF No. 1. This case has been referred to the
undersigned magistrate judge for all pretrial purposes. ECF No. 8.
Pending 	before 	the 	court 	are 	Plaintiff’s 	Motion 	for 	Summary
Judgment and Brief in Support, ECF Nos. 11, 12, and Defendant’s
Motion for Summary Judgment and Response in Opposition to
Plaintiff’s Brief, ECF No. 16. Joshua H. also filed a Reply. ECF
No. 19. The court recommends that Plaintiff’s Motion for Summary
Judgment be DENIED and that Defendant’s Motion for Summary
Judgment be GRANTED.
1. Procedural Posture
Joshua H. applied for social security benefits under Title II
of the Social Security Act on September 7, 2023. Tr. 175–76. He
alleged a disability onset date of May 6, 2022. Tr. 177. The Social
Security 	Administration (SSA) denied 	Joshua 	H.’s application
1 	Frank 	Bisignano 	is 	Commissioner 	of 	the 	SSA 	and 	is 	automatically
substituted as a party under Federal Rule of Civil Procedure 25(d).
United States District Court
Southern District of Texas
ENTERED
February 26, 2026
Nathan Ochsner, Clerk
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initially on October 9, 2023, Tr. 45–46, and upon reconsideration
on January 18, 2024, Tr. 54–55.
Administrative Law Judge (ALJ) David J. Hebert held a
telephonic hearing on June 3, 2024. Tr. 11–38. At the hearing, the
ALJ heard testimony from Joshua H. and a vocational expert (VE).
Tr. 13. Joshua H.’s counsel was present and had the opportunity
to examine the witnesses. Tr. 16–22, 37.
At 	the 	hearing 	Joshua 	H.’s 	counsel 	examined 	him. 	He
testified that he had been in the military but had been found 100%
disabled by the Veteran’s Administration. Tr. 16. That finding was
based on prior suicide attempts and his inability to be out in public.
Tr. 	17. 	Joshua 	H. 	testified 	that 	he 	experienced 	anger 	and
frustration that led to difficulties in his previous jobs, such as
yelling at supervisors and being aggressive. Tr. 17–18. Joshua H.
rarely left the house, did not like being around strangers, and could
not go to the store by himself. Tr. 18–19. Because of his depression,
Joshua H. sometimes spent entire days in bed. Tr. 19. His wife
performed most of the tasks around the house, but Joshua H.
would contribute with his wife’s assistance. Tr. 20. He was on
several medications for depression, anxiety, sleep issues, and high
blood pressure, all of which made him tired. Id. Despite the
medications, Joshua H. still had anger issues twice per day. Tr.
20–21. He handled those emotions by isolating himself for an hour
each time. Tr. 21. While Joshua H. did not have difficulties eating
and grooming, he only did those things when reminded by his wife.
Id. He spent most of his days watching television and playing
games with his kids. Tr. 22
Before turning the examination over to the ALJ, the ALJ
asked Joshua H.’s counsel whether the Claimant was “alleging any
physical impairments.” Tr. 22. Counsel stated “No, Your Honor,
the crux of this case is mental.” Id.
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The ALJ examined Joshua H. He testified that he was in the
Army for four years and then worked for five years as a civilian
contractor. Tr. 24–25. He worked as an intelligence analyst. Tr. 24.
His 	highest 	rank 	was 	sergeant/E-5, 	and 	he 	was 	honorably
discharged from the military in June 2009. Tr. 25. After the
military, Joshua H. worked at National Cash Register servicing
ATM machines. Tr. 25–26. That work did not involve being around
others but did involve both servicing the physical ATM machine as
well as working on the machine’s computerized operating system.
Tr. 26–27. The ALJ commented on the fact that Joshua H.’s mental
impairments were caused by his military service, which ended in
2009, yet Joshua H. was able to work up to 2022. Tr. 28. Joshua H.
stated that he was able to work despite his mental impairments
because his supervisor gave him “a lot of leeway,” but Joshua H.
had no documentation of that fact. Id. Joshua H. testified that he
saw his VA therapist every three months but was not receiving any
other therapy. Tr. 29.
The VE testified next. She noted that Joshua H.’s past work
history also included six months in a management position at
National Cash Register, which Joshua H. confirmed was strictly a
management job, and did not involve servicing the ATMs. Tr. 33.
Thus, 	Joshua 	H.’s 	past 	relevant 	work 	was 	Automatic 	Teller
Machine Servicer, which was a light, skilled job; and Customer
Service Manager, which was a light, highly skilled job, which he
was performing at the medium exertion level. Tr. 33–34.
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 past work experience as Joshua H.; who had no
exertional limitations; could understand, remember, and carry out
complex tasks; should never work at forced-paced assembly line or
production-rate jobs; should not have jobs dealing with the public;
and could only occasionally deal with co-workers and supervisors.
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Tr. 34–35. According to the VE, such a person could perform
Joshua H.’s past work as an ATM Servicer, but not as a Customer
Service Manager. Tr. 35. Such a person could also obtain work
available in the national economy as a kitchen helper/dishwasher,
a warehouse worker, or a merchandise marker. Tr. 35–36. When
asked 	about 	the 	same 	hypothetical 	worker 	with 	additional
limitations to having “good days and bad days” and would thus
miss three days of work per month, the VE stated that such a
person could not obtain any work. Tr. 36. Joshua H.’s attorney
added to the ALJ’s first hypothetical limitations that either the
person would have to work in isolation or that the person would
need frequent reminders to stay on task. Tr. 37. The VE testified
that, 	in 	either 	case, 	the 	person 	would 	be 	precluded 	from 	all
employment. Tr. 37.
The ALJ issued his decision on July 24, 2024, finding that
Joshua H. was not disabled from May 6, 2022, through the date of
the decision. The Appeals Counsel denied Joshua H.’s request for
review of the ALJ’s decision on October 7, 2024. Tr. 1–5. Joshua H.
filed his complaint in federal court on December 10, 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 were disabled “on or before
the date . . . last insured.” See 42 U.S.C. § 423; Schofield v. Saul,
950 F.3d 315, 319 (5th Cir. 2020). Disability is defined as 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).
The Commissioner uses a sequential, five-step approach to
determine whether the claimant is disabled. See Schofield, 950
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F.3d 315, 317 (5th Cir. 2020); 20 C.F.R. § 404.1520(a)(4). The
claimant bears the burden of proof on the first four steps, and the
Commissioner bears the burden on the fifth step. See 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).
This court’s review of the ALJ’s disability determination is
“highly deferential,” and the court asks “only whether substantial
evidence 	supports 	the 	decision 	and 	whether 	the 	correct 	legal
standards were employed.” Garcia v. Berryhill, 880 F.3d 700, 704
(5th Cir. 2018) (citations omitted). “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, 139 S. Ct. 1148, 1154 (2019) (quoting Consol. Edison Co.
of N.Y. v. N.L.R.B., 305 U.S. 197, 229 (1938)). The reviewing court
must 	scrutinize 	the 	record 	to 	determine 	whether 	substantial
evidence supports the ALJ’s decision but may not reweigh the
evidence or substitute its judgment. See Perez v. Barnhart, 415
F.3d 457, 461 (5th Cir. 2005).
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). 	A 	person 	engaged 	in 	substantial 	gainful
activity is not disabled, regardless of her medical condition, age,
education, or work experience. 20 C.F.R. § 404.1520(b).
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The 	ALJ 	found 	that 	Joshua 	H. 	had 	not 	engaged 	in
substantial gainful activity since May 6, 2022, the alleged onset
date. Tr. 63. This finding is not in dispute.
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). 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). “[A]n 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.’” Johnson v. Colvin, 595 F. App’x 443 (5th Cir. 2015)
(quoting Stone v. Heckler, 752 F.2d 1099 (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 Joshua H. had severe impairments of
post-traumatic 	stress 	disorder 	(PTSD), 	anxiety 	disorder, 	and
depression. 	Tr. 	63. 	The 	ALJ 	found 	that 	none 	of 	Joshua 	H.’s
physical impairments were severe. Id. The ALJ considered all of
Joshua H.’s medically determinable impairments, both severe and
non-severe 	in 	determining 	Joshua 	H.’s 	residual 	functional
capacity. Tr. 65. 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,
the ALJ’s findings are supported by substantial evidence and are
not in dispute.
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C. Step Three
At step three, the ALJ determines if any of the claimant’s
severe impairments meets or equals a listed impairment found in
20 C.F.R. Part 404, Subpart P, Appendix 1 (Listing). 20 C.F.R.
§ 404.1520(a)(4)(iii). The Listing describes 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). If all the criteria of a Listing
section are met or equaled, the claimant is considered disabled.
20 C.F.R. 	§ 404.1520(d); 	Whitehead, 	820 F.3d 	at 	780–81. 	The
claimant has the burden of establishing that an impairment meets
or 	equals 	the 	specified 	medical 	criteria. 	Whitehead, 	820 F.3d
at 779.
The ALJ found that Joshua H. did not have an impairment
or combination of impairments that met or medically equaled the
severity of an impairment in the Listing. Tr. 65–66.
The ALJ considered several Listing sections relevant to
Joshua 	H.’s 	mental 	impairments—Listing 	sections 	12.04
(depressive, bipolar and related disorders), 12.06 (anxiety and
obsessive-compulsive disorders), and 12.15 (trauma- and stressor-
related disorders). Each of those Listings sets forth certain criteria
that must be met to qualify for the listing. Each listing has its own
Paragraph A, and each shares the same criteria for Paragraphs B
and 	C. 	See 	Listing 	§ 12.00(E) 	(paragraph 	B 	criteria) 	and 	(G)
(paragraph C criteria). To be found disabled at this step with
respect to any of the Listings at issue here, a claimant’s mental
disorder must satisfy the requirements of both paragraphs A and
B, or both paragraphs A and C. Id. Thus, a claimant who does not
satisfy either of paragraphs B or C does not meet any of the
Listings under consideration here.
The paragraph B criteria relate to four broad areas of mental
functioning a person uses in a work setting. Listing § 12.00(E).
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Those four areas are the applicant’s ability to (1) understand,
remember, 	or 	apply 	information; 	(2) 	interact 	with 	others; 	(3)
concentrate, persist, or maintain pace; and (4) adapt or manage
oneself. 	Id. 	The 	ALJ 	must 	evaluate 	the 	claimant’s 	ability 	to
function using this rating scale:
1. No 	limitation 	(or 	none). 	[Claimant 	is] 	able 	to
function in this area independently, appropriately,
effectively, and on a sustained basis.
2. Mild limitation. [Claimant’s] functioning in this
area independently, appropriately, effectively, and
on a sustained basis is slightly limited.
3. Moderate 	limitation. [Claimant’s] functioning 	in
this area independently, appropriately, effectively,
and on a sustained basis is fair.
4. Marked limitation. [Claimant’s] functioning in this
area independently, appropriately, effectively, and
on a sustained basis is seriously limited.
5. Extreme 	limitation. 	[Claimant 	is] 	not 	able 	to
function in this area independently, appropriately,
effectively, and on a sustained basis.
Listing 	§ 	12.00(F)(2). 	To 	meet 	the 	paragraph 	B 	criteria, 	a
claimant’s disorder must result in an “extreme” limitation in one,
or 	a 	“marked” 	limitation 	in 	two 	of 	the 	four 	areas 	of 	mental
functioning. Id. The ALJ found that Joshua H. had only moderate
or mild limitations in each of the four areas. Tr. 65–66.
The ALJ found that Joshua H. had only a mild limitation in
understanding, remembering, or applying information. Tr. 65. The
ALJ recognized that Joshua H. had some memory impairment,
such as forgetting names and directions and that his wife stated
he would get frustrated when trying to follow written instructions.
Tr. 	65. 	On 	the 	other 	hand, 	the 	ALJ 	noted 	that 	Joshua 	H.
remembered the details about his medical treatment, doctors,
appointments, 	and 	medications, 	and 	that 	he 	would 	help 	his
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children with homework. Id. The ALJ noted that Joshua H. had
earned an online degree in cybersecurity and that he had a license
as 	a 	loan 	servicer. 	Id. 	Ultimately, 	the 	ALJ 	found 	that 	“[n]o
cognitive deficits have been identified.” Id.
As for interacting with others, the ALJ found a moderate
limitation. Tr. 65. The ALJ considered Joshua H.’s reports of
irritability and anger, that Joshua H. may have lost his job for
arguing with his boss, that he has difficulty with crowds, and that
he does not leave the house without his wife. Id. On the other hand,
the ALJ noted that Joshua H. may have lost his job because his
team was being shut down, and that he reported taking his
children to school. Id. The ALJ considered the fact that Joshua H.
interacted appropriately with health care providers by himself,
and that there was no evidence he acted inappropriately with
health care providers. Id.
The ALJ found only a mild limitation in Joshua H.’s ability
to concentrate, persist, or maintain pace. Tr. 65. There were no
records 	to 	confirm 	Joshua 	H.’s 	ADHD 	diagnosis. 	Id. 	While
Joshua H. reported being able to sustain concentration for only a
few minutes, he was also able to complete an online degree, read
for pleasure, and earn a license as a loan servicer after the alleged
onset date. Tr. 65–66. There were no treatment records showing
“attentional deficits.” Tr. 66.
In terms of adapting or managing himself, the ALJ found
that Joshua H. had a moderate limitation. Tr. 66. Joshua H.
reported an inability to tolerate stress or change; experienced
chronically poor sleep, had difficulty with crowds; and would have
a panic attack after five minutes in a store. Id. He would have road
rage 	and 	panic 	attacks 	when 	driving. 	Id. 	At 	the 	same 	time,
Joshua H. could use a computer, take care of his personal needs,
and perform chores and yard work. Id. He kept up with his own
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medical treatment and medications and effectively advocated for
himself. Id.
Finding no extreme or marked limitations in any functional
area, 	the 	ALJ 	concluded 	that 	Joshua 	H. 	did 	not 	satisfy 	the
paragraph B criteria. Tr. 66. He also found no evidence of any of
the Paragraph C criteria. Id.
The 	ALJ’s 	step 	three 	determination 	is 	supported 	by
substantial evidence. The step three findings are not directly in
dispute, although Joshua H. maintains that the ALJ did not
consider his own step three findings in formulating the RFC, which
is discussed below. Joshua H. does not point out any evidentiary
or legal error in the ALJ’s step three findings. The ALJ did not cite
any 	specific 	part 	of 	the 	record 	when 	making 	the 	step 	three
findings, but, having reviewed the record and the briefing, the
court detects no error—legal or factual.
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). 	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)); SSR 96–8p, 1996 WL 374184, at *2, 4 (July 2,
1996). 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); 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.”).
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The ALJ determined that Joshua H. had the RFC to perform
a full range of work at all exertional levels, but with these non-
exertional limitations:
He can understand, remember, and carry out complex
tasks; he can never perform forced pace, assembly line,
or production rate jobs; he can never deal with the
general 	public; 	and 	he 	can 	occasionally 	relate 	to
coworkers and interact with supervisors.
Tr. 66.
In making this determination, the ALJ considered the entire
record, including Joshua H.’s hearing testimony and statements
he made to medical providers, his two function reports, his wife’s
third-party 	function 	report, 	the 	medical 	records, 	and 	various
statements and opinions of Joshua H.’s medical providers. Tr. 67–
73.
As for Joshua H.’s statements at the hearing and to medical
providers, as well as the statements of his wife, the ALJ’s summary
of 	those 	statements 	is 	consistent 	with 	Joshua 	H.’s 	hearing
testimony, 	which 	the 	court 	summarized 	above. 	Essentially,
Joshua H. maintains that he is extremely limited mentally. He
states that he cannot function independently either at home or in
public in any meaningful way. He cannot shop, drive, or take care
of himself without reminders. Tr. 67–69. The ALJ found that,
while 	Joshua H.’s 	medically 	determinable 	impairments 	could
reasonably be expected to cause the symptoms Joshua H. alleged,
the intensity, persistence, and limiting effects of those symptoms
were not entirely consistent with the medical and other evidence
in the record. Tr. 69. The court turns next to an analysis of that
finding. The court notes first that the ALJ’s decision contains a
lengthy discussion of Joshua H.’s physical symptoms and medical
findings. There appears to be no allegation that Joshua H. is
physically 	limited, 	given 	counsel’s 	statement 	at 	the 	hearing,
quoted above. Moreover, the summary judgment briefing does not
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address Joshua H.’s physical impairments. It does not appear that
Joshua 	H. 	has 	any 	physical 	limitations 	that 	would 	require
limitations in the RFC. It is undisputed that he works out at the
gym five times per week, that he can perform chores at home, and
that his recent past work involved lifting. The RFC’s omission of
any physical limitations is supported by substantial evidence and
is consistent with the law. Because the briefing does not address
Joshua H.’s physical RFC, neither does the court.2
In terms of mental limitations, the ALJ recognized that
Joshua 	H. 	had 	a 	diagnosis 	of 	PTSD, 	and 	that 	he 	reported
significant 	symptoms 	related 	to 	that 	diagnosis. 	Tr. 	70. 	The
symptoms he reported in the medical records are generally in line
with his hearing testimony. Tr. 70–71. The ALJ compared those
reported symptoms to other mental status examinations in the
record. For example, a mental status exam on February 16, 2021,
outside the relevant period, showed him to be “irritable,” but was
otherwise normal. Id. (citing 10F/331; Tr. 1114). Another cited
mental status exam on November 16, 2022, within the relevant
period, was similar. Id. (citing 10F/270; Tr. 1053). The ALJ cited
another 	examination 	report 	dated 	November 	8, 	2023, 	which
showed that Joshua H. was going to the gym five times per week,
and was staying busy with chores, reading, and spending time with
his children. Tr. 71 (citing 10F/171; Tr. 952). The mental status
exam during that visit showed him to be in a “low” mood, but to
have, 	among 	other 	things, 	linear 	and 	goal-directed 	thought
processes; no delusions; “good” insight and judgment; and intact
attention, concentration, and cognition. Tr. 953–54. The same was
true in March 2024. Tr. 71 (citing 10F/126; Tr. 909). The court
2 In his Reply, Joshua H. states that he “never denied having physical
limitations.” ECF No. 19 at 9. There is no argument that he has physical
impairments that would require limitations in the RFC.
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notes that during the latter visit, Joshua H. self-reported that he
was severely limited in many areas, Tr. 903–08, but the mental
status 	examination 	noted 	no 	problems. 	Tr. 	909. 	The 	ALJ
characterized 	that 	mental 	status 	examination 	as 	“generally
unremarkable.” Tr. 71.
The ALJ also reviewed the opinions and prior administrative
findings in the record. State Agency psychological consultant Dr.
Nicole 	Mannis 	reviewed 	Joshua 	H.’s 	medical 	records 	and
evaluated the paragraph B criteria mentioned above. Dr. Mannis
found 	that 	he 	had 	moderate 	limitations 	in 	his 	ability 	to
understand, remember, and apply information, and to adapt and
manage himself. Tr. 72 (citing Ex. 1A). She found no limitation in
his ability to interact with others or to concentrate, persist or
maintain pace. Tr. 42. She found that Joshua H. could understand,
remember, and carry out detailed but not complex instructions,
make 	decisions, 	attend 	and 	concentrate 	for 	extended 	periods,
accept instructions, and respond appropriately to changes in a
routine work setting. Tr. 44. The ALJ found that the opinion was
supported by Joshua H.’s report that he needs reminders, gets road
rage, and has memory problems. Tr. 72. The ALJ further found
that the opinion was not consistent with Joshua H.’s reports that
medication would control his nightmares and anxiety, but that it
was consistent with his inability to tolerate stress, his anger, and
his inability to leave the house without his wife. Id. It was also
inconsistent with his report of losing his job because of an angry
outburst, his inability to tolerate crowds, and his restlessness and
history 	of 	ADHD. 	Id. 	Thus, 	the 	opinion 	was 	only 	partially
persuasive. Id.
There were several other statements in the record that the
ALJ did not consider to qualify as opinions, so he did not analyze
their consistency or supportability, although he did consider the
statements themselves. Certain VA medical records addressed the
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VA’s 	view 	of 	disability, 	but 	that 	question 	is 	left 	to 	the
Commissioner to determine under the Commissioner’s rules and
criteria, which are different from the VA’s. Tr. 72; see 20 C.F.R.
§1504. Dr. Renee McPherson Watson found insufficient evidence
to form an opinion because Joshua H. did not cooperate with the
development of the record. Tr. 72–73. Drs. Julia Jackson and
Tyesha Alexander examined Joshua H. and the ALJ considered
those examination records, but neither presented an opinion for
the ALJ to evaluate. Tr. 70–71. While the ALJ did not evaluate the
persuasiveness of the forgoing medical statements, he did consider
the evidence.
The RFC was determined according to the appropriate legal
framework and is supported by substantial evidence. Specifically,
there is no evidence that Joshua H. is physically limited in a way
that 	would 	require 	work 	limitations. 	Moreover, 	each 	of 	the
psychological limitations is supported by the record. The ALJ
considered 	all 	of 	the 	evidence 	in 	the 	record 	and 	weighed 	its
credibility. While Joshua H. testified about and reported to his
medical providers many disabling symptoms, the ALJ did not
credit all of his statements. Mental status examinations were
mostly normal, and Joshua H. has a history of working skilled jobs
and seeking out educational opportunities. None of the evidence
that the ALJ found credible supports further limitations with
respect to Joshua H.’s ability to understand, remember, and carry
out tasks. As the ALJ summarized in his Decision, Joshua H. is
able to use computers well, held a job as an ATM repair person for
six years, and was able to earn an online degree. In conjunction
with many normal or near normal mental status exams, these facts
fully support the RFC. Joshua H.’s anger issues, problems with
crowds, and difficulties interacting with others are all accounted
for in the RFC by limiting him to no forced pace, never dealing with
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the public, and only occasionally interacting with co-workers and
supervisors.
Joshua H. argues that the ALJ violated the Fifth Circuit’s
holding in Ripley v. Chater when he rejected all medical opinions
and determined the RFC without a supporting medical opinion.
ECF 	No. 12 	at 	9 	(citing 	Ripley 	v. 	Chater, 	67 	F.3d 	552 	(5th
Cir. 1995)). The regulations do not prohibit the ALJ from assessing
the claimant’s RFC based on other record evidence when the ALJ
finds 	the 	available 	medical 	opinions 	to 	be 	unpersuasive. 	20
C.F.R. §§ 404.1545(a)(1), 	(a)(3), 	(e). 	The 	regulations 	place 	the
responsibility upon the ALJ to assess a claimant’s RFC “based on
all 	the 	relevant 	evidence 	in 	[the 	claimant’s] 	case 	record.” 	20
C.F.R. § 404.1545(a)(1); see also 20 C.F.R. § 404.1546(c). Courts
regularly affirm ALJ decisions where all medical opinion evidence
has been rejected as unpersuasive. In the absence of medical
opinions, courts have found evidence such as MRI and EEG test
results, neurophysiological studies, treating physician remarks,
physical examinations, and the claimant’s own testimony to be
substantial evidence to support the ALJ’s RFC determination. See
Taylor, 	706 	F.3d 	at 	603 	(considering 	MRI 	and 	EEG 	results,
neurophysiological 	studies, 	and 	treating 	physician 	remarks);
Garza v. Astrue, No. M-09-133, 2013 WL 2432421, at *15–16 (S.D.
Tex. June 3, 2013) (considering physical examinations and general
medical evidence); Gutierrez v. Barnhart, No. 04-11025, 2005 WL
1994289, 	at 	*7 	(5th 	Cir. 	Aug. 	19, 	2005) 	(per 	curiam 	and
unpublished 	opinion) (“the ALJ’s 	determination of Gutierrez’s
residual functional capacity is based on substantial evidence even
without such a medical opinion”).
In Ripley, the Fifth Circuit remanded the case because,
among other errors, the ALJ found the claimant was capable of
sedentary work “even though there was no medical testimony
supporting this conclusion.” 94 F.3d at 557 (emphasis added). The
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court pointed out that “[t]he absence of such a [medical source]
statement . . . does not, in itself, make the record incomplete.” Id.
The court explained that, in the absence of a medical statement,
the court focuses on whether the ALJ’s decision is supported by
substantial evidence in the existing record. Id. The court concluded
that the ALJ’s opinion was not supported by substantial evidence
because the record contained “a vast amount of medical evidence”
establishing an impairment that the ALJ did not consider in
formulating the RFC. Id.
Here, the evidence that Joshua H. seeks to have the court
rely on is mostly his own self-reported symptoms (to medical
providers, during the hearing, and in his function reports) and his
wife’s function report. The ALJ did not find those statements to be
fully credible and instead relied on other evidence in the record.
The record is replete with evidence supporting the RFC. Moreover,
the RFC accounts for most of the limitations that Joshua H. claims
to have.
Joshua H. also cites Williams v. Astrue, 355 F. App’x 828
(5th Cir. 2009). ECF No. 12 at 6. In Williams, the Fifth Circuit
remanded 	because 	“there 	was 	no 	medical 	or 	other 	evidence
supporting the ALJ’s [RFC] determination.” Id. at 831 (emphasis
added). 	The 	court 	found 	that, 	once 	the 	ALJ 	refused 	to 	give
controlling 	weight 	to 	certain 	medical 	opinions, 	there 	was 	no
evidence left to support the ALJ’s RFC finding. The court also
pointed out that “the ALJ failed to consider [a] physical therapy
discharge summary [that] directly contradicts the ALJ’s finding.”
Id. The court concluded that, in the face of contradictory evidence
and with no evidence supporting the ALJ’s RFC finding, the RFC
was not supported by substantial evidence. Id. at 832. Importantly,
the court explained that Ripley stood for the proposition that “an
ALJ may not rely on his own unsupported opinion as to the
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limitations presented by the [claimant’s] medical conditions.” Id.
at 832 n.6 (emphasis added) (citing Ripley, 97 F.3d at 557).
This case does not present the same problems as Ripley and
Williams did. Here, the ALJ properly considered the single medical
opinion in the record and explained why he found it to be partially
persuasive. Again, he did not reject all of the opinions. As will be
discussed next, there was only one actual opinion in the record—
Dr. Mannis’s—which he found to be partially persuasive. The ALJ
actually found the same or more limitations in the paragraph B
criteria than did Dr. Mannis and he disagreed only about Joshua
H.’s ability 	to 	understand, 	remember, 	and 	apply 	information,
finding only a mild limitation, in comparison to Dr. Mannis’s
moderate finding. The ALJ then properly considered all of the
other evidence in the record as he was required to do. Unlike
Williams and Ripley, the partial exclusion of the sole opinion in the
case did not leave the RFC finding without support.
Joshua H. argues that the ALJ failed to articulate how
persuasive he found all of the medical opinions in the record. 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. In his
decision, 	the 	ALJ 	must 	explain 	his 	consideration 	of 	the
supportability 	and 	consistency 	factors. 	20 	C.F.R.
§§ 404.1520c(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). Those
rules 	only 	apply 	to 	actual 	medical 	opinions 	and 	prior
administrative findings, however. Id. A medical opinion is defined
in 20 C.F.R. § 404.1513(a)(2) to be “a statement from a medical
source about what you can still do despite your impairment(s) and
whether you have one or more impairment-related limitations in
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[a list of abilities].” That list of abilities contains the paragraph B
criteria discussed above with respect to step three. 20 C.F.R.
§ 404.1513(a)(2)(ii).
The ALJ considered the reports of two VA physicians—Drs.
Jackson and Alexander. Tr. 70–71. Neither Dr. Jackson nor Dr.
Alexander provided an actual “opinion.” Dr. Jackson’s report is an
evaluation to determine whether Joshua H. suffered from PTSD.
Tr. 339–43. In a check box answer to “which of the following best
summarizes 	the 	veteran’s 	level 	of 	occupational 	and 	social
impairment,” 	Dr. 	Jackson 	checked 	“occupational 	and 	social
impairment with deficiencies in most areas, such as work, school,
family relations, judgment thinking and/or mood.” Tr. 340. On
another part of the form that asked whether Joshua H. met one of
the PTSD criteria, the report states that “the PTSD symptoms
described above cause clinically significant distress or impairment
in social, occupational, or other important areas of functioning.”
Tr. 343. Nowhere does Jackson describe what Joshua H. could still
do despite his impairments, or state whether Joshua H. had any
specific restrictions or limitations in 	any of the paragraph B
criteria. It therefore does not qualify as a “medical opinion” under
20 	C.F.R. 	§ 	404.1513(a)(2) 	and 	the 	ALJ 	was 	not 	required 	to
articulate 	how 	persuasive 	he 	found 	it 	under 	20 	C.F.R.
§ 404.1520c(b).
The same is true of Dr. Alexander. In a check box form under
the heading “Occupational and Social Impairment,” she checked
“Total occupational and social impairment.” Tr. 349. This appears
to be a statement about whether Joshua H. was disabled, which is
a determination left to the Commissioner and is therefore “neither
valuable nor persuasive to the issue of whether [one] is disabled.”
20 	C.F.R. 	§ 	404.1520b(c)(3)(i). 	As 	such, 	no 	analysis 	of 	Dr.
Alexander’s statements was required. Id. Moreover, nowhere in
Dr. Alexander’s report does she discuss Joshua H.’s ability to
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function or any restrictions or limitations he might have. It is
therefore not an opinion that the ALJ was required to consider. 20
C.F.R. § 404.1513(a)(2); 20 C.F.R. § 404.1520c(b).
Plaintiff makes the same arguments with respect to Drs.
Adusumilli 	and 	Abdali. 	Joshua 	H. 	says 	that 	Dr. 	Adusumilli
“opined that he suffered from PTSD, depression and anxiety.” ECF
No. 12 at 13. He says Dr. Abdali’s “diagnoses were PTSD, chronic,
and 	ADHD 	due 	to 	scoring 	highly 	for 	inattention 	and
hyperactivity.” Id. Again, for the reasons discussed above with
respect to Drs. Jackson and Alexander, these are not opinions that
required a persuasiveness analysis.
The court also notes with respect to Joshua H.’s complaints
about 	the 	ALJ’s 	consideration 	of 	the 	several 	treating 	and
examining physicians that the ALJ generally agreed with their
diagnoses. The ALJ found that Joshua H. had severe impairments
of PTSD, anxiety disorder, and depression. That is what the above-
discussed physicians concluded. The ALJ considered all of the
records from the treating physicians in formulating the RFC.
Joshua 	H. 	next 	argues 	that 	the 	ALJ 	found 	mild 	and
moderate limitations in each of the Paragraph B criteria yet failed
to account for those limitations in the RFC. The court disagrees.
The court first notes that Plaintiff seeks to have the ALJ insert
limitations reflecting all of Joshua H.’s self-reported symptoms.
ECF No. 12 at 14–15. But the ALJ did not fully credit the limiting
effects of Joshua H.’s self-reported symptoms. Tr. 69. The court is
unaware of a legal rule requiring the ALJ to insert limitations into
the RFC for which he did not find evidentiary support. Moreover,
the RFC does reflect all of the limitations that the ALJ found. The
RFC accounts for the complexity of tasks that Joshua H. can
understand, remember and carry out; it limits the pace at which
he can work; it keeps him away from the public and thus crowds;
and it limits the frequency with which he can interact with co-
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workers and supervisors. Tr. 66. Plaintiff points to no evidence
that the ALJ credited that would require further limitations in the
RFC.
Finally, Joshua H. complains that the ALJ’s analysis of his
subjective symptoms was flawed. It is unclear to the court what
Joshua H.’s complaint is. For example, he states that the ALJ
concluded that “Plaintiff did not experience persistence and focus
limitations . . . .” ECF No. 12 at 19. But the ALJ did find a mild
limitation in that area and accounted for it in the RFC. Tr. 65–66.
Joshua H. also argues that the ALJ failed to account for the waxing
and waning nature of Joshua H.’s symptoms. ECF No. 12 at 19–
20. But the evidence of that is all from self-reports of symptoms,
such as Joshua H’s hearing testimony and his functions reports, or
from his wife’s function report, which the ALJ did not fully credit.
From the court’s review of the record, the ALJ did not formulate
the RFC based on Joshua H.’s best days; rather he formulated it
based on persistent signs and symptoms. Separate findings on
obtaining and maintaining employment are required only in cases
where the evidence shows that the claimant’s symptoms wax and
wane. Frank v. Barnhart, 326 F.3d 618, 621 (5th Cir. 2003). The
ALJ did not err.
The court finds no error—legal or factual—in the ALJ’s RFC
assessment.
E. Step Four
At step four, the ALJ determines whether the claimant can
perform his past work by comparing the RFC determination with
the demands of the claimant’s past relevant work. 20 C.F.R.
§ 404.1520(f); see also Perez, 415 F.3d at 462. If the claimant can
perform his past work, he is not disabled. 20 C.F.R. § 404.1520(f).
If the claimant cannot perform his past work, the ALJ proceeds to
step five. See 20 C.F.R. § 404.1520(g)(1).
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The ALJ posed a hypothetical to the VE during the hearing
that contained all of the limitations in the RFC that the ALJ
ultimately found. Tr. 35, 66. The VE testified that a person of the
same age, education, past work history, and limitations as the
claimant could perform Joshua H.’s past work as an ATM servicer.
Id. Based on that testimony, the VE found Joshua H. was not
disabled. Tr. 73–74.
Because 	the 	VE’s 	testimony 	was 	based 	on 	the 	ALJ’s
hypothetical 	question 	that 	incorporated 	all 	the 	limitations
reasonably 	recognized 	by 	the 	ALJ, 	and 	because 	Joshua 	H.’s
attorney had the opportunity to cross-examine the VE, the VE’s
testimony is substantial evidence supporting the ALJ’s step-five
determination. See Masterson v. Barnhart, 309 F.3d 267, 273–74
(5th Cir. 2002) (holding that the ALJ properly relied on the VE’s
testimony because the ALJ “scrupulously incorporated” all the
limitations “supported by the evidence and recognized by the ALJ”
and gave an opportunity for cross examination).
This finding is supported by substantial evidence and is not
in error.
F. Step Five
At step five, the ALJ determines whether the claimant can
perform any other work by considering the claimant’s RFC and
other factors, including age, education, and past work experience.
Schofield, 950 F.3d at 318 (quoting 20 C.F.R. § 404.1520(a)(4)(v)).
If the claimant can perform other work available in the national
economy, the claimant is not disabled. Schofield, 950 F.3d at 318
(citing 20 C.F.R. § 404.1520(g)).
The ALJ found that Joshua H. could perform jobs that exist
in significant numbers in the national economy. Tr. 74. As such he
found Joshua H. to be not disabled. Id. The ALJ relied on the VE’s
testimony that an individual of Joshua H.’s age, education, work
experience, 	and 	RFC 	would 	be 	able 	to 	work 	as 	a 	kitchen
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helper/dishwasher, warehouse worker, or merchandise marker.
Tr. 35–36, 74.
As was the case in step four, because the VE’s testimony was
based on the ALJ’s hypothetical question that incorporated all the
limitations reasonably recognized by the ALJ, and because Joshua
H.’s attorney had the opportunity to cross-examine the VE, the
VE’s testimony is substantial evidence supporting the ALJ’s step-
five determination.
Accordingly, the ALJ’s findings at step five are supported by
substantial evidence and are not the product of legal error.
4. Conclusion
The 	ALJ’s 	decision 	denying 	social 	security 	benefits 	is
consistent with the law and supported by substantial evidence.
There is no genuine issue of material fact, and summary judgment
is appropriate. Fed. R. Civ. P. 56(a), (c). Accordingly, the court
RECOMMENDS 	that 	Joshua 	H.’s 	Motion 	for 	Summary
Judgment, ECF No. 11, be DENIED; that the Commissioner’s
Motion for Summary Judgment, ECF No. 16, be GRANTED; and
that the Commissioner’s final decision be AFFIRMED.
The 	parties 	have 	fourteen 	days 	from 	service 	of 	this
Memorandum and Recommendation to file written objections. 28
U.S.C. 	§ 636(b)(1); 	Fed. 	R. 	Civ. 	P. 	72. 	Failure 	to 	timely 	file
objections will preclude appellate review of factual findings or legal
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conclusions, except for plain error. See Thomas v. Arn, 474 U.S.
140, 147–49 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276–77 (5th
Cir. 1988).
Signed at Houston, Texas on February 26, 2025.
___________________________________
Peter Bray
United States Magistrate Judge
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