Castillo v. O'Malley

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
FELIPE C.,
Plaintiff,
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v. 	CIVIL ACTION NO. 4:25-cv-173
FRANK BISIGNANO,
Defendant.
MEMORANDUM AND RECOMMENDATION
Plaintiff 	Felipe 	C. 	(“Plaintiff”) filed 	this lawsuit against Defendant
Frank Bisignano1 (“Commissioner”) seeking review of the denial of benefits
under Title XVI of the Social Security Act. 	(ECF Nos. 1, 20). 	Pending before
the Court2 are the Parties’ cross-motions for summary judgment. 	(ECF Nos.
20–21). 	Based on a review of the motions, arguments, and relevant law, the
Court RECOMMENDS Commissioner’s Motion for Summary Judgment (ECF
No. 21) be GRANTED and Plaintiff’s Motion for Summary Judgment (ECF
No. 	20) 	be 	DENIED. 	The 	Court 	FURTHER 	RECOMMENDS 	the
1 Frank Bisignano was sworn in as the Commissioner of Social Security on May 7,
2025. Bisignano is “automatically substituted” as the defendant in this suit. FED. R. CIV. P.
25(d); see also 42 U.S.C. § 405(g) (“Any action instituted in accordance with this subsection
shall survive notwithstanding any change in the person occupying the office of Commissioner
of Social Security or any vacancy in such office.”).
2 On February 4, 2025, this case was referred to the Undersigned for all purposes
pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and Federal Rule of Civil Procedure 72. (ECF
No. 7).
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Commissioner’s decision be AFFIRMED and the case be DISMISSED WITH
PREJUDICE.
I. 	Background
Plaintiff filed a claim for supplemental security income on August 27,
2021, alleging disability starting on July 23, 2021. 	(ECF No. 8-3 at 27).3
Plaintiff’s claims were initially denied by the Social Security Administration
on June 30, 2022, and again on reconsideration on April 8, 2023. 	(Id.). 	On
June 1, 2023, Plaintiff requested a hearing before an Administrative Law
Judge. 	(Id.). 	On January 16, 2024, Administrative Law Judge Donald Willy
held a telephonic hearing. 	(Id.). 	Plaintiff was represented by counsel at the
hearing. (Id.). Also appearing and testifying at the hearing were Kent Layton,
a psychological expert, Sanjay Krishnan, a medical expert, and Rosalind Lloyd,
a vocational expert (“VE”). (Id.).
On May 30, 2024, Administrative Law Judge Timothy Suing (the “ALJ”)
issued a decision,4 finding Plaintiff not disabled at Step Five.5 (Id. at 41–42).
3 The Administrative Record in this case can be found at ECF No. 8.
4 Although ALJ Donald Willy held a hearing in this matter, he had not approved a
draft decision. 	Therefore, the Hearing Office Chief Administrative Law Judge for the
Houston West hearing office, with the concurrence of the Regional Chief Administrative Law
Judge, reassigned the case to ALJ Timothy Suing to avoid further delay of a decision; ALJ
Suing determined that an additional hearing was not necessary to render a decision. (ECF
No. 8-3 at 27).
5 In considering a disability claim, an ALJ must conduct a five-step evaluation that
examines: (1) whether the claimant is currently engaged in substantial gainful activity; (2)
whether the claimant has a severe impairment; (3) whether the claimant’s impairment meets
or equals the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1;
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At Step One, the ALJ found Plaintiff had not engaged in substantial gainful
activity since August 27, 2021, the initial application date.6 (Id. at 29). At Step
Two, 	the 	ALJ 	found 	Plaintiff 	has 	the 	following 	severe 	impairments:
“degenerative joint disease of the bilateral knees, degenerative disc disease of
the lumbar spine with radiculopathy, osteoarthritis of the hips, obstructive
sleep apnea (OSA), obesity, major depressive disorder, and generalized anxiety
disorder (20 CFR 416.920(c)).” 	(Id.). 	At Step Three, the ALJ found Plaintiff:
“does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments in in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).”
(Id. at 30). 	The ALJ determined that Plaintiff has the Residual Functional
Capacity (“RFC”) to:
perform sedentary work as defined in 20 CFR 416.967(a) except
the claimant can occasionally perform postural functions but he
cannot crawl, kneel, or climb ladders, ropes, and scaffolds. The
claimant requires the use of a cane. 	The claimant cannot work
around 	hazards, 	such 	as 	unguarded 	heights, 	unguarded
equipment, or commercial driving. 	The claimant cannot perform
fast-paced work. 	The claimant can understand, remember, and
carry out simple, one to two step instructions. The claimant must
work 	alone, 	if 	possible, 	but 	can 	occasionally 	interact 	with
coworkers, supervisors, and the public. The claimant cannot work
in a high stress job.
(4) whether the impairment prevents the claimant from doing past relevant work; and (5)
whether the impairment prevents the claimant from doing any other work. 	Masterson v.
Barnhart, 309 F.3d 267, 271 (5th Cir. 2002) (citing 20 C.F.R. § 404.1520).
6 At the administrative hearing, Plaintiff’s onset date was amended to the same as his
application date, August 27, 2021. (ECF No. 8-3 at 58).
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(Id. at 35). 	At Step Four, the ALJ found Plaintiff “is unable to perform any
past relevant work.” 	(Id. at 40). 	At Step Five, the ALJ found there were jobs
that existed in significant numbers in the national economy that Plaintiff could
perform—such as a lens inserter, jewelry preparer, and compact assembler—
and therefore Plaintiff was not disabled as defined under the Social Security
Act. (Id. at 41–42).
Plaintiff appealed to the Appeals Council and the Appeals Council denied
Plaintiff’s request for review on November 4, 2024. (Id. at 2). Thus, the ALJ’s
decision represents the Commissioner’s final decision in the case. See Sims v.
Apfel, 530 U.S. 103, 106–07 (2000).
II. 	Legal Standard
The Court’s review of a final decision of the Commissioner on a Social
Security disability claim is exceedingly deferential. Taylor v. Astrue, 706 F.3d
600, 602 (5th Cir. 2012). “[R]eview of Social Security disability cases ‘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)). 	When 	the
Commissioner’s decision is reached by applying improper legal standards, the
decision is not supported by substantial evidence. 	Singletary v. Bowen, 798
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F.2d 818, 823 (5th Cir. 1986). “Substantial evidence is ‘such relevant evidence
as a reasonable mind might accept to support a conclusion’ and constitutes
‘more than a mere scintilla’ but ‘less than a preponderance’ of evidence.”
Hardman v. Colvin, 820 F.3d 142, 147 (5th Cir. 2016) (quoting Newton v. Apfel,
209 F.3d 448, 452 (5th Cir. 2000)). “‘Any findings of fact by the Commissioner
which are supported by substantial evidence are conclusive.’” 	Heck v. Colvin,
674 F. App’x 411, 413 (5th Cir. 2017) (quoting Taylor, 706 F.3d at 602).
Even 	so, 	judicial 	review 	must 	not 	be 	“so 	obsequious 	as 	to 	be
meaningless.” 	Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999) (quotations
omitted). 	The substantial evidence standard is not a rubber stamp for the
Commissioner’s 	decision 	and 	involves 	more 	than 	a 	search 	for 	evidence
supporting the Commissioner’s findings. Singletary, 798 F.2d at 822–23; Cook
v. Heckler, 750 F.2d 391, 393 (5th Cir. 1985). 	Rather, a reviewing court must
scrutinize the record as a whole, taking into account whatever fairly detracts
from the substantiality of evidence supporting the Commissioner’s findings.
Singletary, 798 F.2d at 823. The court “‘may not reweigh the evidence . . . , nor
try the issues de novo, nor substitute [its] judgment for the [Commissioner’s],
even if the evidence preponderates against the [Commissioner’s] decision.’”
Johnson v. Colvin, 595 F. App’x 443, 444 (5th Cir. 2015) (quoting Harrell v.
Bowen, 862 F.2d 471, 475 (5th Cir. 1988)).
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III. 	Discussion
Plaintiff first argues the ALJ’s step five finding is not supported by
substantial evidence because the VE’s testimony does not support that Plaintiff
can do other work considering his RFC, age, education, and work experience.
(ECF No. 20 at 6–10; ECF No. 8-3 at 41). 	Plaintiff also argues the ALJ erred
in failing to fully accommodate in the RFC all of Plaintiff’s limitations resulting
from his severe obesity. 	(ECF No. 20 at 10–12). 	The Commissioner argues
that the ALJ reasonably considered Plaintiff’s obesity when formulating the
RFC finding and reasonably relied on the VE’s testimony which was in
response to the RFC finding that was supported by the record. (ECF No. 21 at
8–16). Because the VE’s testimony is dependent on the RFC finding, the Court
will address Plaintiff’s RFC in relation to his limitations first.
A. Plaintiff’s RFC Accounts for His Obesity
Plaintiff argues the ALJ erred by failing to include in the RFC his alleged
need to elevate his legs during the workday due to edema associated with his
obesity.7 	(ECF No. 20 at 10–11). 	Plaintiff contends this is error because the
regulations mandate that “an ALJ’s RFC finding must consider the limiting
effects of all of the claimant’s impairments, even those that are not severe,”
7 Edema is swelling caused by too much fluid trapped in the body’s tissues. Edema is
more likely to show up in the legs and feet. See Edema: Symptoms & Causes, M AYO CLINIC,
https://www.mayoclinic.org/diseases-conditions/edema/symptoms-causes/syc-20366493 (last
visited Feb. 20, 2026).
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and thus, “the ALJ was required to consider Plaintiff’s need to elevate his legs
when making his RFC finding.” (Id. at 11).
An RFC assessment must account for all limitations supported by the
record. 	20 C.F.R. § 416.945(a) (providing the RFC is the most a claimant can
still do despite their limitations and will be assessed “based on all the relevant
evidence in [their] case record”). 	“[T]he determination of residual functional
capacity is the sole responsibility of the ALJ.” 	Taylor, 706 F.3d at 602–03
(quoting Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995)). However, the ALJ
“need only include limitations in the RFC determination that are supported by
the evidence in the record.” Vaughn v. Colvin, 589 F. App’x 238, 244 (5th Cir.
2014) (citing Muse v. Sullivan, 925 F.2d 785, 790 (5th Cir.1991); Hames v.
Heckler, 707 F.2d 162, 165–66 (5th Cir. 1983)). 	“An RFC determination must
be based on substantial evidence and any conflicts in the evidence are resolved
by the ALJ, not the courts.” 	See Mendoza v. Comm’r, Soc. Sec. Admin., No.
5:24-cv-055, 2025 WL 906225, at *3 (N.D. Tex. Mar. 25, 2025) (citing S.K. v.
O’Malley, No. 3:24-cv-092, 2024 WL 2162777, at *2 (N.D. Tex. May 14, 2024)).
See also Day v. Colvin, No. 4:15-cv-102, 2016 WL 361613, at *8 (N.D. Tex. Jan.
8, 2016), report and recommendation adopted, No. 4:15-cv-102, 2016 WL
337756 (N.D. Tex. Jan. 27, 2016) (no error where VE testified that a person
that needed to elevate their legs at waist level or more periodically throughout
the day would not be able to be productive during the day, and the ALJ did not
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incorporate such a limitation into the RFC, as he did not find it supported by
the majority of the evidence in the record).
Here, the ALJ expressly found obesity to be a severe impairment and
discussed Plaintiff’s allegations that he needed to elevate his legs. 	(ECF No.
8-3 	at 	29–30, 	35–37). 	The 	ALJ 	specifically 	noted 	that 	at 	the 	hearing,
“[Plaintiff] reported pain in his back and having to elevate his legs an hour or
two per day.” (Id. at 36). The ALJ compared those allegations with the medical
evidence and reasonably found them not entirely consistent with the record.
Specifically, the ALJ noted that physical examinations showed:
In March 2022, the claimant had a steady gait with a cane and had
normal 5/5 strength in his upper and lower extremities despite
evidence of radiculopathy. 	Although the claimant had limited
range of motion in the back in August 2022, he had no lower
extremity weakness, edema, tenderness, numbness, or tingling. In
December 2022, the claimant had normal range of motion with no
edema 	or 	tenderness 	(Ex. 	D19F, 	pg. 	68). 	Similarly, 	clinical
findings in February 2023 in his treatment notes show normal
range of motion, no edema, and no tenderness. These findings are
not consistent with the degree of weakness and leg elevation the
claimant testified to at his hearing.
(Id. at 36–37) (emphasis added). 	The ALJ further observed that in 2022
Plaintiff reported engaging in activities such as “caring for his mother” and
“doing light housework,” which were inconsistent with the degree of limitation
alleged. 	(Id. at 37). 	Even so, based on this evidence, the ALJ “restricted him
to the sedentary exertional range limiting the amount of exertion or weight
lifted or carried.” 	(Id.). 	And, “[f]urther limitations were also afforded to
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[Plaintiff] limiting his ability to occasionally perform postural functions . . .
[and] restricted him from crawling, kneeling, or climbing ladders, ropes, and
scaffolds because of evidence showing difficulties walking and with his range
of motion.” (Id.).8
Plaintiff essentially asks the Court to reweigh the evidence and credit
his testimony over the ALJ’s evaluation of the objective findings. However, the
Court “may not reweigh the evidence . . . nor substitute [its] judgment for the
[Commissioner’s].” 	Johnson, 595 F. App’x at 444 (5th Cir. 2015). Substantial
evidence supports the ALJ’s determination that the objective medical findings
did not corroborate the extent of physical, obesity-related limitations that
Plaintiff alleged. 	See also Hess v. Kijakazi, No. 9:21-cv-00111, 2023 WL
4153208, at *7 (E.D. Tex. Apr. 11, 2023), report and recommendation adopted
sub nom. Hess v. Comm’r of Soc. Sec. Admin., No. 9:21-cv-111, 2023 WL
3775063 (E.D. Tex. June 1, 2023) (finding no error in ALJ’s obesity analysis
8 Although Plaintiff points to testimony from the medical expert (Dr. Krishnan) at the
administrative hearing indicating he “should elevate his legs if he is having some edema”
(ECF No. 20 at 10–11; see also ECF No. 8-3 at 79 (emphasis added)), that testimony was
conditional. 	Moreover, the expert testified edema could be considered a non-severe
impairment “but that [it] is not consistently there” and “[he] did not consistently see that
[Plaintiff] had edema. In most of the times his edema was mentioned it was mild at best . . .
there is no evidence showing . . . he requires to elevate his legs doing [sic] work times.” (ECF
No. 8-3 at 74, 79). As such, the ALJ was not required to include a leg-elevation limitation
absent evidence demonstrating that such elevation was medically necessary on a sustained
basis. 	See 20 C.F.R. § 416.945; see also SSR 96-8p (providing that when there is no
information in the case record that there is such a limitation or restriction, the adjudicator
must consider the individual to have no limitation or restriction with respect to that
functional capacity).
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where 	the 	ALJ 	limited 	the 	claimant 	to 	sedentary 	work 	in 	part 	due 	to
documented morbid obesity, and the claimant failed to identify objective
evidence showing additional obesity-related limitations beyond those included
in the RFC); Liguez v. Kijakazi, No. 4:20-cv-02798, 2021 WL 4943321, at *8
(S.D. Tex. Aug. 11, 2021), report and recommendation adopted sub nom. Liguez
v. Comm’r of Soc. Sec., No. 4:20-cv-2798, 2021 WL 4941997 (S.D. Tex. Oct. 22,
2021) (finding no error where the ALJ considered the claimant’s obesity, cited
BMI 	measurements, 	evaluated 	obesity 	in 	combination 	with 	other
impairments, 	and 	the 	record 	contained 	no 	medical 	evidence 	establishing
additional 	obesity-related 	functional 	limitations 	that 	should 	have 	been
included in the RFC). 	Accordingly, the Court finds the ALJ adequately
considered Plaintiff’s obesity and associated symptoms in formulating the
RFC.
B. The ALJ Reasonably Relied on VE Testimony at Step Five
Plaintiff 	also 	argues 	that 	the 	ALJ’s 	step 	five 	determination 	is
unsupported because the VE testified that an individual who could “only
occasionally concentrate and persist in work-related activities” would exceed
acceptable off-task tolerances. 	(ECF No. 20 at 8–9). 	Plaintiff contends that
this testimony mandates a finding of disability because the ALJ found Plaintiff
had “moderate” limitations in concentration, persistence, and pace. 	(Id. at 9–
10). In other words, Plaintiff interprets the VE’s testimony as indicating that
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“an occasional limitation in the domain of concentration, persistence, and pace
will prevent Plaintiff from being able to perform other work in the national
economy . . . [and] the ALJ’s finding to the contrary is not supported by
substantial evidence.” (Id. at 10). Plaintiff’s argument rests on a conflation of
the ALJ’s step-three findings under the special psychiatric technique with the
RFC assessment at steps four and five.
At 	step 	three, 	the 	ALJ 	evaluates 	mental 	impairments 	using 	the
“paragraph 	B” 	criteria, 	rating 	functional 	limitations 	as 	mild, 	moderate,
marked, or extreme. 	See 20 C.F.R. § 416.920a(c). 	These findings are not an
RFC determination—SSR 96-8p expressly provides that the paragraph B
findings “are not an RFC assessment” and that the RFC requires a more
detailed function-by-function analysis. 1996 WL 374184 at *4.
Here, 	the 	ALJ 	found 	Plaintiff 	had 	a 	moderate 	limitation 	in
concentration, persistence, and pace for purposes of the paragraph B analysis.
(ECF No. 8-3 at 34). 	However, when formulating the RFC, the ALJ limited
Plaintiff to simple one- to two-step instructions, no fast-paced work, work alone
if possible, occasional interaction with others, and no high-stress jobs. 	(Id. at
35). 	These limitations reflect the ALJ’s translation of Plaintiff’s mental
impairments into specific work-related functional restrictions.
The 	hearing 	testimony 	further 	undermines 	Plaintiff’s 	argument.
Although psychologist Dr. Layton used the term “moderate” in the context of
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the paragraph B criteria, he clarified that Plaintiff’s concentration limitations
were 	“within 	normal 	limits” 	and 	that 	Plaintiff 	could 	remain 	on 	task
approximately “90 percent” of the workday. 	(Id. at 93–95). 	Thus, Dr. Layton
did not opine that Plaintiff would be off-task to a work-preclusive degree.
The hypothetical posed by Plaintiff’s counsel—asking the VE to assume
an individual who could “only occasionally concentrate and persist in work-
related activities”—introduced a limitation the ALJ did not adopt. (Id. at 98–
99, 101–02). 	“An ALJ need only incorporate into the hypothetical questions
those claimed disabilities the ALJ recognizes and finds the record supported.”
Roger C. v. Kijakazi, No. 4:20-cv-01807, 2021 WL 4243582, at *5 (S.D. Tex. Sep.
18, 2021) (citing Masterson, 309 F.3d at 273 (affirming ALJ’s decision to omit
questions to the VE concerning limitations the ALJ did not recognize). 	“The
hypothetical 	questions 	posed 	to 	the 	vocational 	expert 	must 	be 	said 	to
‘incorporate reasonably all disabilities of the claimant recognized by the ALJ.’”
Id. (citing Bowling v. Shalala, 36 F.3d 431, 436 (5th Cir. 1994)). 	Because the
ALJ did not find that Plaintiff would be off-task for a work-preclusive portion
of the day, he was not required to include such a restriction in the hypothetical
question. 	Instead, the ALJ presented a hypothetical consistent with the RFC
he found supported by substantial evidence. 	(ECF No. 8-3 at 98–101). 	See
Ernest. A. J. v. Saul, No. 1:18-cv-00194, 2020 WL 6877706, at *16–17 (N.D.
Tex. Oct. 19, 2020), report and recommendation adopted sub nom. Ernest A. J.
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v. 	Saul, 	No. 	1:18-cv-194, 	2020 	WL 	6873609 	(N.D. 	Tex. 	Nov. 	23, 	2020)
(concluding RFC limiting a claimant to simple, routine work and simple work-
related 	decisions 	adequately 	accommodated 	a 	moderate 	limitation 	in
concentration, persistence, or pace where the ALJ relied on objective medical
evidence and treatment notes showing the claimant could concentrate, exercise
judgment, and remain on task).
The VE testified that such an individual could perform jobs including
lens 	inserter, 	jewelry 	preparer, 	and 	compact 	assembler, 	with 	significant
numbers existing nationally. (ECF 8-3 at 99). The ALJ was entitled to rely on
that testimony. 	See Alvarado v. Berryhill, No. 18-cv-3594, 2020 WL 420840,
at *8 (S.D. Tex. Jan. 3, 2020), report and recommendation adopted, No. 18-cv-
3594, 2020 WL 419730 (S.D. Tex. Jan. 25, 2020) (“The 	RFC includes a
limitation for cane use. . . . At the hearing, the VE testified that although
Alvarado needed a cane to ambulate, he could still do the proposed jobs. . . .
The ALJ was entitled to rely on the VE’s testimony.”).
“Under the substantial-evidence standard, a court looks to an existing
administrative record and asks whether it contains ‘sufficien[t] evidence’ to
support the agency’s factual determinations. . . . the threshold for such
evidentiary sufficiency is not high.” 	Biestek v. Berryhill, 587 U.S. 97, 102–03
(2019) (internal citations omitted). 	Under the deferential standard of review,
Plaintiff has not established an error in the ALJ’s decision warranting remand.
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Accordingly, the Court concludes that substantial evidence supports the
ALJ’s step five determination and that the Commissioner met his burden at
step five of the sequential evaluation process.
IV. 	Conclusion
Based on the foregoing, the Court RECOMMENDS Commissioner’s
Motion for Summary Judgment (ECF No. 21) be GRANTED and Plaintiff’s
Motion for Summary Judgment (ECF 	No. 20) be 	DENIED. 	The Court
FURTHER RECOMMENDS the Commissioner’s decision be AFFIRMED
and the case be DISMISSED WITH PREJUDICE.
The Clerk shall send copies of this Memorandum and Recommendation
to the respective parties who have fourteen days from the receipt thereof to file
written objections thereto pursuant to Federal Rule of Civil Procedure 72(b)
and General Order 2002-13. Failure to file written objections within the time
period mentioned shall bar an aggrieved party from attacking the factual
findings and legal conclusions on appeal.
SIGNED in Houston, Texas on February 21, 2026.
______________________________
Richard W. Bennett
United States Magistrate Judge
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