De Leon v. Commissioner of Social Security

MARIBEL DE LEON,
Plaintiff,
vs.
UNITED ST A TES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION
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§ 	CIV. NO. 7:24-CV-00467
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FRANK BISIGNANO 1,
Commissioner of Social Security
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Administration, 	§
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Defendant. 	§
REPORT AND RECOMMENDATION
I. 	Introduction
Plaintiff, Maribel De Leon, initiated this action by filing a complaint pursuant to 42 U .S .C .
§ 405(g) of the Social Security Act on November 8, 2024. (Dkt. No. 2) . Plaintiff challenges the
denial of Title II and Title XVI Social Security Benefits (Social Security Disability Insurance and
Supplemental Security Income benefits). (Id. 	at 2). 	This matter has been referred to the
undersigned for report and recommendation pursuant to 28 U.S.C. § 636(b).
On February 6, 2025, Defendant filed an answer to the complaint. (Dkt. Nos. 9, 10). 	On
March 10 , 2025, Plaintiff filed a Brief in Support. (Dkt. No. 11 ). 	Defendant responded with
Defendant's Response Brief in Support of the Commissioner's Decision. (Dkt. No. 15). Plaintiff
then filed Plaintiffs Reply Brief. (Dkt. No. 16).
1 On May 7, 2025 , Frank Bisignano was sworn in as 18th Commissioner of Social Security Administration.
Social Security Matters, Financial Services Industry Leader Frank Bisignano to be the 18th Commissioner
of Social Security, (May 7, 2025) (https://blog.ssa.gov/financial-services-industry-leader-frank-bisignano-
to-be-the- l 8th-commissioner-of-social-security/). 	District 	Clerk's 	Office 	is 	advised 	to 	substitute
Commissioner Bisignano as named defendant. Fed. R. Civ. P. 25(d); see also 42 U.S.C. § 405(g).
1
United States District Court
Southern District of Texas
ENTERED
November 06, 2025
Nathan Ochsner, Clerk
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After review of said filings , this case is ripe for disposition on the record.
Plaintiff claims the Commissioner' s decision is not based on substantial evidence as
required by 42 U.S .C. § 405(g). (Dkt. No. 11 at 3). Specifically, Plaintiff argues the Commissioner
erred as a matter of law by failing to incorporate all the limitations from the prior administrative
medical findings into the RFC assessment. (Id. at 9) .
After careful review of the record and relevant law, for the foregoing reasons, the
undersigned recommends that the Commissioner's decision be AFFIRMED.
II. Background
Plaintiff filed 	applications for 	Title II disability 	msurance 	benefits and Title XVI
supplemental security income on April 21 , 2022. (Dkt. No. 9-3 at 23; Ex. No. BID ; Ex. No. B2D).
Both claims were initially denied on October 26, 2022, and again upon reconsideration on August
14 , 2023 . (Dkt. No. 9-4 at 23-38; Ex. No. B2A; Ex. No . B3A; Ex. No. B6A; Ex. No. B7A).
Plaintiff subsequently requested a hearing on September 12 , 2023. (Dkt. No. 9-5 at 27-28; E x. No.
B8B). 	A telephone hearing took place on March 26 , 2024. (Dkt. No. 9-3). 	The ALJ issued an
unfavorable written decision on April 29 , 2024. (Dkt. No. 9-3 at 20). 	The Social Security
Administration received Plaintiffs request for review of the Administrative Law Judge 's (ALJ)
action on May 10 , 2024. (Dkt. No. 9-3 at 13). 	The Appeals Council subsequently denied the
request for review on September 3, 2024. (Id. at 7) . As such, the ALJ's decision became the final
decision of the Commissioner on September 3, 2024. Plaintiff initiated this action on November
8, 2024. (Dkt. No. 2). Defendant Commissioner filed an answer to the complaint on February 6,
2025 . (Dkt. Nos. 9, 10). Plaintiff then filed a Brief in Support on March 10 , 2025 . (Dkt. No. 11).
Defendant responded with Defendant's Response Brief in Support of the Commissioner's Decision
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on May 19, 2025. (Dkt. No. 15). 	Finally, Plaintiff filed Plaintiffs Reply Brief on June 2, 2025 .
(Dkt. No. 16).
With a birth date of May 1, 1981, Plaintiff was classified as a younger individual. (Dkt.
No. 9-3 at 31). 2 	Plaintiff has a high school diploma and some college education. (Id. at 30).
Previously, Plaintiff has worked as a: secretary/data entry, cashier, cook, general labor, warehouse
worker, and has been self-employed. (Dkt. No. 9-3 at 44). 	Plaintiff alleged a combination of
impairments to support her claim, including arthritis, bipolar disorder, depression, and anxiety.
(Id.). These conditions, Plaintiff suggests, "deteriorate the capacity to sustain an acceptable level
of concentration, attendance and attention in completion unskilled work on a full -time basis." (Id.).
Plaintiff claims difficulty standing or walking as a result of joint and body pain, including
symptoms of cramps and loss of motion due to the pain and stiffness. (Id.). 	Moreover, Plaintiff
contends that 	while 	her 	mental 	conditions 	are 	currently 	improving 	under treatment, she
experiences occasional problems with mood swings that frustrate social encounters and hinders
the ability to stay focused . (Dkt. No. 9-3 at 44).
The ALJ conducted a telephone hearing on March 26, 2024. (Dkt. No. 9-3 at 38). Plaintiff
was represented by a non-lawyer representative. (Id. at 40). Also present was the vocational expert
(VE), who has a Ph.D. and specializes in vocational rehabilitation. (Id. at 41 ).
At the hearing, Plaintiff testified to obtaining a high school diploma and attending some
college courses. (Dkt. No. 9-3 at 46). 	Plaintiff testified that she last worked in 2019 and is self-
employed by making and selling food plates. (Id. at 46). Previously, Plaintiff worked as a diesel
cashier at Love's Travel Stop that had to lift a maximum of fifty (50) pounds, unloaded trailers at
2 Administrative Transcript has been filed by the Social Security Administration as of February 6, 2025 .
(See generally, Dkt. Nos. 9, I 0). Citations will be assigned CM/ECF docket and page number stamped on
the administrative record at time of filing. 	When warranted, citation will include SSA exhibit and page
numbers.
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Burlington Coat Factory where she had to lift a maximum of fifty (50) pounds, worked as a cashier
and cook at Edinburg Wings where she had to lift a maximum of thirty (30) pounds, and worked
as a gardener at RNB Contracting where the maximum weight lifted was thirty (30) pounds. (Id.
at 47-49).
Plaintiff testified that she suffered with mental issues for many years. (Dkt. No. 9-3 at 49).
The mental issues were treated with medications and were "a little bit more controlled." (Id.) .
Plaintiff claimed to have episodes with her temper with others around her, which occur about three
times out of the month. (Id. ; Dkt. No. 9-3 at 57). However, the main reason for the application
was arthritis. (Dkt. No. 9-3 at 49). Specifically, the pain and stiffness in Plaintiffs hands, arms,
back, and neck create difficulty in carrying things and moving around. (Id.). The pain "comes and
goes" but " it's not all the time." (Dkt. No. 9-3 at 50). 	Plaintiff has trouble writing, mopping,
making side-to-side movements, and carrying things like pans. (Id.). 	Plaintiff can walk for about
thirty (30) minutes at a time, and travel approximately three blocks. (Id.). Plaintiff can stand in
one place for "no more than an hour" before her back starts to hurt. (Dkt. No. 9-3 at 50). Similarly,
Plaintiff is unable to sit on a regular chair for more than one hour. (Dkt. No. 9-3 at 55). Plaintiff
also experiences spasms once or twice a week, which occur when she "get[s] in a position where
[her body] locks and [she is] in a lot of pain." (Id. at 56).
Plaintiff further testified that she receives food stamps and that she does not drive or have
a vehicle. (Dkt. No. 9-3 at 51). While Plaintiff is independent in her personal care, she has a hard
time mopping, sweeping, washing dishes, and using utensils to cut or mix in preparing meals. (Id.
at 52). 	Plaintiff testified that while she previously had a diagnosis of cocaine dependence, she
currently does not use any illegal substances. (Id. at 54).
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The VE testified at the hearing and classified Plaintiffs prior employment as follows: self-
employment of sales of food plates (DOT 526.134-010) 3, skill level 7, medium strength; cashier
(DOT 211.462-010), skill level 2, light strength; unloader (DOT 922.687-058), skill level 2, light
strength; and laborer/gardener (DOT 405.687-014). (Dkt. No. 9-3 at 58-59). 	The ALJ then
presented the VE with a series of hypothetical individuals to determine employment possibilities.
In the first hypothetical, the ALJ described an individual with Plaintiffs age, education,
and vocational background, with the ability to perform a full range of work at the light exertional
level, with the added limitation that the individual can only occasionally climb ramps or stairs, and
never climb ladders, ropes, or scaffolds. (Dkt. No. 9-3 at 59). This individual can occasionally
stoop, 	kneel, 	crouch, 	crawl, frequently 	handle 	and 	finger 	bilaterally, 	and 	is 	capable 	of
understanding, remembering, and carrying out detailed, but not complex, instructions. (Id.). 	This
individual can tolerate occasional interaction with coworkers, supervisors, and the public, and can
adapt to occasional changes in the work routine. (Id.). 	The VE found that this individual is not
capable of performing any of Plaintiffs prior work; however, the VE pointed to the positions of
photocopy machine operator (DOT 207.685-014), marker (DOT 209.587-034), and router (DOT
222.587-038), which present 30,000, 165 ,000, and 	160,000 jobs in the national economy,
respectively. (Id. at 59-60).
In the second hypothetical, the ALJ proffered the same individual, but with the added
restrictions of standing and walking a total of only four hours in an eight-hour workday. (Dkt. No.
3 DOT is noted abbreviation for United States Department of Labor's Dictionary of Occupational Titles.
"The DOT and its supplement, Selected Characteristics of Occupations Defin ed in the Revised Dictionary
of Occupational Titles (SCO) , comprise a comprehensive listing of job titles in the United States, along
with detailed descriptions of requirements for each job, including assessments of exertional levels and
reasoning abilities necessary for satisfactory performance on those jobs." 	Gaspard v. Soc. Sec. Admin.
Com 'r, 609 F.Supp.2d 607, 612 (E.D. Tex. 2009). The publications are recognized as "authoritative" by
the SSA and are relied upon by the SSA "for information about the requirements of work in the national
economy." Id. at 612-13 (quoting Soc. Sec. R. 00-4p, 2000 WL 1898704, at *2).
5
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9-3 at 60). This second individual could understand, remember, and carry out simple instructions
but not at a production rate pace and can adapt to a work routine that is repetitive from day to day
with few unexpected changes. (Id.) . Here, the VE found no jobs in the national economy at the
light level; 4 however, at the sedentary level, 5 the VE suggested addressor (DOT 209.587-010),
touch up screener (DOT 726.684-110), and type copy examiner (DOT 979.687-026), with 40,000,
55 ,000, and 20,000 jobs available in the national economy, respectively. (Id. at 60-61).
Finally, in the third hypothetical, the ALJ suggested an individual with the same limitations
from the first two hypotheticals, but with the further reductions to only occasional handling and
fingering bilaterally and with no interaction with the public. (Dkt. No. 9-3 at 61). Here, the VE
found no jobs available in the national economy. (Id.). Further, the VE testified that the tolerance
for being off task in competitive employment rests at approximately 15-20% of the time in an
eight-hour workday, and the tolerance for absences is no more than two per month. (Id.).
4 The regulations define " light work" as follows:
(b) 	Light work. Light work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight
lifted may be very little, a job is in this category when it requires a good deal of walking
or standing, or when it involves sitting most of the time with some pushing and pulling of
arm or leg controls. To be considered capable of performing a full or wide range of light
work, you must have the ability to do substantially all of these activities. If someone can
do light work, we determine that he or she can also do sedentary work, unless there are
additional limiting factors such as loss of fine dexterity or inability to sit for long periods
of time.
20 C.F.R. §§ 404. l567(b), 416.967(b).
5 The regulations define "sedentary work" as fo llow s:
(a) 	Sedentary work. Sedentary work involves lifting no more than 10 pounds at a time
and occasionally lifting or carrying articles like docket files, ledgers, and small tools.
Although a sedentary job is defined as one which involves sitting, a certain amount of
walking and standing is often necessary in carrying out job duties. Jobs are sedentary if
wa lking and standing are required occasionally and other sedentary criteria are met.
20 C.F.R. §§ 404.1567(a); 416.967(a).
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Following the hearing, the ALJ issued a written decision setting forth the findings and
ultimate decision.
III. ALJ Opinion
The ALJ rendered an unfavorable decision on April 29 , 2024. (Dkt. No. 9-3). In reviewing
Plaintiffs submission, the ALJ followed the five-step process. 6
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity
since April 21 , 2022, the amended alleged onset date. (Dkt. No. 9-3 at 26). At step two, the ALJ
found Plaintiff had the following severe impairments: type 2 diabetes mellitus; vitamin D
deficiency; obesity; bipolar disorder; anxiety disorder; and posttraumatic stress disorder (PTSD).
(Id.). 	At step three, the ALJ found that Plaintiff did not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed impairments. (Id. at
27). After step three, the ALJ determined Plaintiffs Residual Function Capacity 7 as follows:
6 In evaluating a disability claim , the Commissioner must undertake a five-step analysis, as follows:
(I) a claimant who is working, engaging in a substantial gainful activity, will not be found
to be disabled no matter what the medical findings are; (2) a claimant will not be found to
be disabled unless he has a "severe impairment"; (3) a claimant whose impairment meets
or is equivalent to an impairment listed in Appendix l of the regulations will be considered
disabled without the need to consider vocational factors; (4) a claimant who is capable of
performing work that he has done in the past must be found "not disabled"; and (5) if the
claimant is unable to perform his previous work as a re sult of his impairment, then factors
such as his age, education, past work experience, and residual functional capacity must be
considered to determine whether he can do other work.
Zimmerman v. Astru e, 288 F. App' x 931 , 933-34 (5th Cir. 2008) (citing Bowling v. Shala/a, 36 F.3d 431,
435 (5th Cir. 1994); 20 C.F.R. §§ 404.1520(a)-(e), 416.920(a)-(e). A finding that an individual is disabled
or, alternatively, not disabled, at any step is "conclusive" and ends the review. Zimmerman, 288 F. App ' x.
at 934 (quoting Harrell v. Bowen, 862 F.2d 471 , 475 (5th Cir. 1988)). 	Plaintiff carries the burden of
establishing disability in the first four steps, while the burden "shifts to the Commissioner to show that
there is other substantial work in the national economy that the claimant is able to perform." Williams v.
Astru e, 355 F. App' x 828, 830 (5th Cir. 2009)(citingAudler v. As tru e, 501 F.3d 446, 447-48 (5th Cir. 2007)).
7 After step three, there is an assessment of "an individual 's ability to do sustained work-related physical
and mental activities in a work setting on a regular and continuing basis[,]" or, the Residual Functional
Capacity (RFC) assessment. SSR 96-8p, 1996 WL 374184, at*l (July 2, 1996). This assessment is utilized
at step 4 "to determine whether an individual is able to do past relevant work, and at step 5 to determine
7
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After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined in 20
CFR 404.1567(b) and 416.967(b) except: occasional climbing ramps and stairs; no
climbing ladders, ropes, and scaffolds; occasional stooping, kneeling, crouching
and crawling; frequent handling and fingering bilaterally; capable of understanding,
remembering, and carrying out detailed but not complex instructions; can tolerate
occasional interaction with coworkers, supervisors and the public; and can adapt to
occasional changes in the work routine.
(Dkt. No. 9-3 at 28). At step four, the ALJ found Plaintiff was unable to perform any past relevant
work. (Id. at 31). Finally, at step five, based on the testimony of the vocational expert 8, the ALJ
found that, considering Plaintiffs age, education, work experience, and residual functional
capacity, Plaintiff was "capable of making a successful adjustment to other work that exists in
significant numbers in the national economy." (Id. at 32).
After review of these findings, the ALJ found that Plaintiff was "not disabled" for purposes
of the claim. (Dkt. No. 9-3 at 33). The ALJ's decision became the Commissioner' s final decision
when the Appeals Council denied Plaintiffs request for review. (Dkt. No. 9-3 at 7) ; Sims v. Apfel,
530 U.S . 103 , 107 (2000).
Now, Plaintiff asks this Court to review the Commissioner' s final decision.
IV. Summary of the Plead in gs
Plaintiff seeks judicial review of the final administrative decision of the Commissioner of
the Social Security Administration. (Dkt. No. 11 at 3). 	Plaintiff claims the Commissioner' s
decision is not based on substantial evidence. (Id.). Plaintiff presents the primary issue for review:
"the Commissioner erred as a matter of law by failing to incorporate all the limitations from the
whether an individual is able to do other work, considering his or her age, education, and work experience."
Id. at *2.
8 The vocational expert suggested the positions of photocopy machine operator (DOT 207.685-014), marker
(DOT 209.587-034), and router (DOT 222 .587-038). (Dkt. No. 9-3 at 32). The vocational expert alleged
that these jobs exist, at the national level, with approximately 30,000, 165 ,000, and 160,000 jobs available
respectively. (Id.).
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prior administrative medical findings 9 into the RFC assessment." (Id. at 7). Plaintiff alleges "the
ALJ erred by failing to either incorporate into the RFC assessment portions of the prior
administrative findings found persuasive or explain their exclusion." (Dkt. No. 	11 	at 	13).
Specifically, Plaintiff argues that the ALJ failed to effectively articulate the supportability and
consistency factors in rejecting the persuasiveness of the prior administrative medical findings,
namely Dr. Koretzky ' s medical opinion. 10 (Id. at 15). And, because the ALJ erred in the evaluation
of prior administrative medical findings, the ALJ presented a defective hypothetical to the VE. (Id.
at 17). 	Further, Plaintiff suggests the ALJ erred by including in the RFC the restriction of
"occasional interaction with the public" as opposed to "superficial interaction with the public" as
opined by Dr. Koretzky. (Dkt. No. 11 at 16). 	Thus, Plaintiff urges, the Court should remand
because it is not able to speculate as to what the VE' s testimony would have been. (Id. at 17).
9 The Code of Federal Regulations provide specific definitions for these terms, for example:
Under the new regulations ," [a] medical opinion is a statement from a medical source about
what [Plaintiff] can still do despite [Plaintiff' s] impairments and whether [Plaintiff has]
one or more impairment-related limitations or restrictions," in the [Plaintiff' s] ability to
perform the physical or mental demands of work activities, perform other demands of
work, and adapt to environmental conditions. 	Medical signs and laboratory findings are
considered "objective medical evidence." And any other statements, " including judgments
about the nature and severity of [the claimant' s] impairments, [the claimant's] medical
history, clinical findings, diagnosis, treatment proscribed with response, or prognosis"
constitute "other medical evidence."
Clewis v. Kijakazi, No. 4:20-2914, 2021 WL 7084147, at *3 (S.D. Tex. Nov. 17 , 2021) (citing 20 C.F.R. §§
404. l 513(a)( 1)-(3), 416.913(a)(l )-(3)). When referring to Dr. Koretzky's medical opinion, Plaintiff utilizes
the terms "medical opinion" and "administrative medical findings" interchangeably. (See generally 0kt.
No. 11 ). The Court construes both as referring to the medical opinions identified in the record, as defined
under the Regulations.
10 The ALJ considered various medical opinions, including those of: Dr. Gary Smith, M.D., Dr. Martin
Koretzky, Ph . 0. , Dr. Alison Caviness, M.D ., Dr. Douglas Hanze, Ph.D., and Dr. Gustavo E. Fors-
Rodriguez, M.D. (See Ex. Nos. B8A, B9A, B4A, BSA, B2F). However, Plaintiff only takes issue with the
ALJ's analysis regarding the opinion of Dr. Koretzky. (See generally 0kt. No . 11).
9
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In response, Defendant argues that "the ALJ considered the issue of Plaintiffs limitations
related to interacting with others, and made a finding of fact that is reasonable and supported by
substantial evidence." (Dkt. No. 15 at 2). Specifically, Defendant contends the ALJ effectively
articulated both the consistency and supportability factors within the persuasiveness analysis. (Dkt.
No. 15 at 7-9). 	Moreover, Defendant claims the distinction between superficial contact and
occasional contact with the public was immaterial because the types of jobs identified at step five
do not describe the level of contact with the public under the DOT beyond that of superficial
contact. (Id. at 11 ).
V. Standard of Review
A district court has 	the power to 	affirm, modify, or reverse the 	decision 	of the
Commissioner, with or without remanding the case for rehearing. 42 U.S.C. § 405(g). 	When a
plaintiff has been denied benefits, a reviewing district court is limited to a determination of whether
the ALJ applied the correct legal standards and whether the decision is supported by substantial
evidence. Lopez v. Saul, SA-19-CV-0 1088-ESC, 2020 WL 4934462, at *2 (5th Cir. Aug. 22, 2020)
(citing Martinez v. Chafer, 64 F.3d 172, 173 (5th Cir. 1995)). 	"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." Esther D.J v. Kijakazi, No.
5:20-CV-239, 2022 WL 5434335, at *2 (S .D. Tex. Aug. 3, 2022) (quoting Copeland v. Colv in ,
771 F.3d 920, 923 (5th Cir. 2014)). The court may not reweigh the evidence nor substitute its own
judgment for that of the ALJ. Hollis v. Bowen, 837 F.2d 1378, 13 83 (5th Cir. 1988).
The Commissioner' s factual findings are entitled to substantial deference; however, legal
conclusions and allegations of procedural error are reviewed de novo . Gorgo/ v. Berryhill, No. SA-
17 -CA-109-HJB, 2017 WL 8181018, at *2 (W.D. Tex. Oct. 18 , 2017) (citing Brueggemann v.
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Barnhart, 348 F.3d 689, 692 (8th Cir. 2003) and Gutierrez v. Barnhart, No. 04-11025, 2005 WL
1994289, at *4 (5th Cir. Aug. 19 , 2005)). 	Put simpl y, substantial evidence will be met, and the
Commissioner' s ruling left undisturbed, unless there is a complete "absence of credible choices or
no contrary medical evidence." Courtney B. v. Kijakazi, No. 4:19-CV-04525, 2021 WL 4243512,
at *2 (S.D. Tex. Sept. 17 , 2021) (quoting Qualls v. Astru e, 339 F.App' x 461 , 464 (5th Cir. 2009)).
VI. Applicable Law and Analysis
a. 	The ALJ erred in failing to sufficiently articulate the persuasiveness factors
with regard to the state medical psychological opinions.
The ALJ is responsible for determining an applicant's RFC. Ripley v. Chater, 67 F.3d 552,
557 (5th Cir. 1995) (citing 20 C.F.R. § 404.1546 (1994)). 	When a disability determination is
unfavorable to the Plaintiff, the Commissioner shall provide "a statement of the case, in
understandable 	language, 	setting 	forth 	a 	discussion 	of 	the 	evidence, 	and 	stating 	the
Commissioner's determination and the reason or reasons upon which it is based." 42 U.S. C. §
405(b )(1 ). The ALJ must review all medical evidence in the record. 20 C.F .R. §§ 404. l 545(a)(l ),
416.945(a)(l). 	However, "[m]edical opinions are just one of se veral categories of evidence the
ALJ considers" in formulating Plaintiff's RFC. Carol B. v. Kijakazi, No. 4:23-CV-03484, 2025
WL 492500, at *5 (S.D. Tex. Jan. 24 , 2025) (citing Wills v. Kijakazi, No. 22-20609, 2023 WL
4015174, at *3 (5th Cir. June 14 , 2023) (per curiam)). In reviewing the record, the ALJ is tasked
with interpreting the medical evidence and she must weigh the competing evidence in formulating
the RFC. Bishops v. Saul, No.3:19CV9- CWR-LRA, 2020 WL 2310405, at *4 (S.D. Miss. Feb.
20, 2020) (citing Ta ylor v. Astru e, 706 F.3d 600, 603 (5th Cir. 2012)). 	As such, an ALJ has the
authority to reject an opinion, in whole or in part, if the rest of the evidence supports a contrary
conclusion. Tello v. O 'Malley, 7:23-cv-00399, 2024 WL 4204936, at *4 (S.D. Tex. Aug. 29, 2024)
(internal citations omitted). 	However, the ALJ is required to articulate specific and legitimate
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reasons for rejecting medical opinions. Tusken v. Astrue, No. 4:08 -CV -657-A, 2010 WL 2891076,
at *10 (N.D. Tex. May 25 , 2010) (citing Gonzalez v. Barnhart, No. SA-05-CA-0282-RF, 2006
WL 1875912, at *4 (W.D. Tex. June 30, 2006)), report and recommendation adopted, No. 4:08 -
CV -657-A, 2010 WL 2891075 (N.D. Tex. July 20, 2010).
For cases filed on or after March 27, 2017, an ALJ must additionally determine the
"persuasiveness" of medical sources from different sources. Perusqia v. 0 'Malley, No. 5 :24 -cv-
6, 2024 WL 5248430, at *8 (S .D. Tex. Dec. 12 , 2024); see 20 C.F.R. §§ 404.1520c(c), 416.920c(c).
The ALJ considers five factors to make this determination: (1) supportability; (2) consistency; (3 )
the source' s relationship with the patient; (4) the source' s specialty; and (5) other factors that tend
to support or contradict the opinion. 20 C.F.R §§ 404.1520c(c), 416.920c(c). Of these factors, the
most important are supportability and consistency. 20 C.F.R. §§ 404. l 520c(b)(2), 416.920c(b )(2).
As a result, the ALJ must clearly articulate how she considered the "supportability and consistency
factors for a medical source's medical opinions or prior administrative medical findings" in
making the RFC determination. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). In determining if
the ALJ' s persuasiveness discussion is sufficient the Court must decide whether "the ALJ' s
persuasiveness explanation enables the court to undertake a meaningful review of whether his
findings regarding the particular medical opinion was supported by substantial evidence and does
not require the Court to merely speculate about the reasons behind the ALJ's persuasiveness
finding or lack thereof." Luckett v. Kijakazi, No. 4:20-cv-04002, 2021 WL 5545233 , at *3 (S .D.
Tex. Nov. 26, 2021) (quoting Cooley v. Comm 'r of Soc. Se c. , No . 2:20-CV - 46 -RPM, 2021 WL
4221620, at *6 (S.D. Miss. Sept. 15 , 2021)).
While the factors of supportability and consistency appear similar, they serve distinct
purposes in the analysis. The supportability factor focuses more on the opinion internally, seeking
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to determine whether there is relevant "objective medical evidence and supporting explanations
presented by [the] medical source" to support the medical opinion. 20 C.F.R. §§ 404.1520c(c)(l),
416.920c(c)(l). 	Conversely, the consistency factor peers externally and requires the ALJ to
determine whether the medical opinion is consistent "with the evidence from other medical sources
and nonmedical sources" in the record. 20 C.F.R. §§ 404. l 520c(c)(2), 416.920c(c)(2). Simply put,
there must be a discemable logic bridge between the evidence and the ALJ's persuasiveness
finding. Luckett, 2021 WL 5545233, at *4. 	Thus, while the explanation need not be lengthy or
profound, "the ALJ must do more than pay lip service to the regulation without substantively
engaging with the supportability and consistency of medical opinions in any detail whatsoever."
Pearson v. Cornrn 'r of Soc. Sec., No. 1:20-CV-166-HSO-RPM, 2021 WL 3708047, at *5 (S .D.
Miss. Aug. 11 , 2021), report and recommendation adopted, 2021 WL 3663073 (S.D. Miss. Aug.
18 , 2021) (citing Howard D v. Saul, No. 5:19-CV-01615 (BKS), 2021 WL 1152834, at *12
(N.D.N.Y. Mar. 26 , 2021)) (emphasis in original).
Plaintiff takes issue with the ALJ's persuasiveness discussion. 	Specifically, Plaintiff
claims that the ALJ "erred by failing to either incorporate into the RFC assessment portions of the
prior administrative medical findings found persuasive or explain their exclusion." (Dkt. No. 11 at
13). 	In this sense, Plaintiff contends that while the ALJ found Dr. Koretzky 's opinion only
"somewhat persuasive," the ALJ said it was supported and explained with references to the record,
and consistent with the record and objective evidence, which implies the opinion was fully
persuasive. (Id. at 15). 	However, in the ALJ's RFC assessment, she changed Dr. Koretzky 's
recommended level of interaction with the public from "superficial" to "occasiona l[ ,]" which
implies that the ALJ found the opinion less than fully persuasive. (Id. at 16). Simply put, Plaintiff
argues that the ALJ committed error by finding Dr. Koretzky's opinion less than fully persuasive
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but failing to include "any fault or detail what, if any, the opined limitations were unsupported or
inconsistent." (Id. at 15).
Defendant counters that the ALJ sufficiently explained the supportability and consistency
factors in the decision. (Dkt. No. 15 at 8). Further, Defendant argues that any deviation from Dr.
Koretzky's narrative conclusions was within the ALJ's discretion because she articulated the
persuasiveness factors as required. (Id.).
The ALJ found the opinions of Dr. Koretzky 11 to be "somewhat persuasive[.]" (Dkt. No.
9-3 at 30; Ex. No. BSA at 4-8; Ex. No. B9A at 4- 8). The ALJ explained her consideration of the
opinions as follows :
The undersigned considered and found somewhat persuasive the opinions
of the state agency psychological consultants at the initial and reconsideration
determination level, which states that the claimant has mild to moderate cognitive
limitations. The state agency psychological consults supported and explained their
opinions with references to the record available at the time of the review, such as
findings of depression. Additionally, these opinions are consistent with the record
and objective evidence. For example, mental status and psychiatric exams showed
minimal to normal findings, aside from depressed mood and affect. Therefore, the
undersigned finds that these medical opinions are somewhat persuasive.
(Id.) (emphasis added) (internal citations omitted).
In his opinion, Dr. Koretzky provided several explanations in narrative form :
11 The ALJ found the medical opinions of Dr. Gary Smith, M.D., Ph . D., Dr. Alison Caviness, M.D ., and
Dr. Douglas Hanze, Ph.D., to be "not persuasive" because they concluded "there was insufficient
evidence[,]" and further noted "the lack of record available at the time of review." (Dkt. No. 9-3 at 31).
This, the ALJ explained, was inconsistent with the record at the hearing level, "which shows more severe
limitations." (Id.) . Next, the ALJ found the opinion of the medical treating examiner, Dr. Gustavo E. Fors-
Rodriguez, M.D ., to be "not persuasive" because Dr. Fors-Rodriguez made a finding that "the claimant is
di sabled permanently [which] is not an opinion under the rules and regulations of Social Security as the
determination of disability is reserved for the Commissioner." (Dkt. No. 9-3 at 31). The ALJ further noted
that the opinion " is not consistent with the record[,]" and that it was supported with references to "the
claimant's findings on the mental status examination, including anxious mood[,]" which was contradicted
by records "showing normal thought processes on mental status exams." (Id.). Plaintiff does not challenge
the sufficiency of these explanations.
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• 	The claimant is capable of maintaining attendance with some difficulty. 	The
claimant is capable of completing a routine workweek at a consistent pace with
some difficulty. (Dkt. No. 9-4 at 44; Ex. No. B8A at 6; Ex. No. B9A at 6).
• 	The claimant is capable of interacting superficially with the public with some
difficulty. The claimant is capable of getting along with coworkers and supervisors
for routine task requirements with a degree of difficulty. (Dkt. No. 9-4 at 45 ; Ex .
No. B8A at 7; Ex. No. B9A at 7) (emphasis added).
• 	The claimant is capable of adapting to routine changes in the work environment
with some difficulty. (Dkt. No. 9-4 at 45; Ex. No. B8A at 7; Ex. No. B9A at 7).
However, the ALJ found the Plaintiffs RFC to be as follows :
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined in 20
CFR 404.1567(b) and 416.967(b) except: occasional climbing ramps and stairs; no
climbing ladders, ropes, and scaffolds; occasional stooping, kneeling, crouching
and crawling; frequent handling and fingering bilaterally; capable of understanding,
remembering, and carrying out detailed but not complex instructions; can tolerate
occasional interaction with coworkers, supervisors and th e public; and can adapt
to occasional changes in the work routine.
(Dkt. No. 9-3 at 28) (emphasis added). Thus, in addition to finding the opinions of Dr. Koretzky
to be "somewhat persuasive," the ALJ changed the language of Dr. Koretzky's narrative
explanation from "superficially" to "occasionally" with regard to the level of interaction with the
public. As such, the ALJ found the medical opinion to be not completely persuasive, which was
within her discretion. S ee Hapney v. Comm 'r of Soc. Sec., No. 9 :2 1-cv-76-MAC, 2023 WL
2942212, at *7 ("The RFC is an administrative finding of fact, and the ALJ, not a medical source
is responsible for this assessment.") (citing Taylor v. Astrue, 706 F.3d 600, 602-03 (5th Cir. 2012)).
However, the ALJ was required to clearly articulate how she considered the "supportability and
consistency factors for a medical source's medical opinions or prior administrative medical
findings" in making the RFC determination. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). The
Court takes each factor in turn.
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The ALJ articulated the supportability factor by saying "[t]he state agency psychological
consults supported and explained their opinions with references to the record available at the time
of the review, such as findings of depression. " (Dkt. No. 9-3 at 30). 	With such a threadbare
assertion, the ALJ makes only an illusory reference to "findings of depression" and fails to engage
in any substantive interaction with objective medical evidence to support the conclusion that the
opinion is only "somewhat persuasive." 	The ALJ makes no note of which "references to the
record" supported Dr. Koretzky ' s opinion, nor does the ALJ indulge in a discussion, with any
specificity, as to how findings of depression either support or contradict Dr. Koretzky ' s opinions.
While the ALJ cited broadly to Dr. Koretzky ' s entire report, the supportability analysis fails to
identify specific "objective medical evidence and supporting explanations presented by [the]
medical source" to support the medical opinion. 20 C.F.R. §§ 404.1520c(c)(l), 416.920c(c)(l).
As described, it is unclear which part of the medical opinion the ALJ took issue with to justify a
finding of only somewhat persuasive. As a result, the ALJ' s discussion on the supportability factor
of the persuasiveness analysis is insufficient.
With regard to the consistency factor of the persuasiveness analysis, the ALJ explained that
"these opinions are consistent with the record and objective evidence." (Dkt. No. 9-3 at 30). This,
like the supportability discussion, blurs the lines between persuasive and unpersuasive. However,
the ALJ further delineated that "mental status and psychiatric exams showed minimal to normal
findings, aside from depressed mood and affect." (Id.). 	The latter appears to align with a finding
that the medical opinion was somewhat persuasive because it is somewhat inconsistent with the
record; however, the Court will not speculate. 	The broad reference to "the record and objective
evidence" fails to effectively articulate how the medical opinion is consistent or inconsistent "with
the evidence from other medical sources and nonmedical sources" in the record. 20 C.F.R. §§
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404.1520c(c)(2), 416.920c(c)(2). 	Such "cursory , boilerplate language" cannot be a sufficient
explanation in rejecting a medical opinion. Kneeland v. Berryhill, 850 F.3d 749, 761 (5th Cir.
2017); see Erlandsen v. O 'Malley, No. 4:23-CV-83-ALM-KPJ, 2024 WL 898915, at *4 (E.D.
Tex. Feb. 14 , 2024), report and recommendation adopted, No. 4:23CV83 , 2024 WL 897598 (E.D.
Tex. Mar. 1, 2024) ("Boilerplate language divorced from the evidence in the record is generally
insufficient to satisfy the ALJ's obligation. The ALJ must instead cite 's pecific evidence in the
record' supporting his supportability and consistency determination.") (citing Bridges v. Comm 'r
of Soc. Sec., No. 20-cv-89, 2021 WL 2908671, at *2 (N.D. Miss. June 21, 2021), report and
recommendation adopted, 2021 WL 2907892 (N.D. Miss. July 9, 2021)). 	Moreover, the ALJ's
vague reference to "minimal to normal findings", without reference to specific evidence in the
record, lands closer to paying "lip service to the regulation" than it does a substantive engagement
with the consistency factor in the persuasiveness analysis. Pearson, 202 l WL 370804 7, at *5.
In sum, the ALJ was entitled to reject, in whole or in part, Dr. Koretzky 's medical opinion
if she did not find it persuasive. However, the ALJ failed to effectively articulate the supportability
and consistency factors. Luckett, 2021 WL 5545233, at *4; see Cynthia Ann. A. v. 0 'Malley, No.
4:23-cv-03532, 2025 	WL 	391768, at *5 	(S.D. 	Tex. 	Feb. 	4, 2025) (finding insufficient a
persuasiveness analysis where the ALJ "[found] this opinion unpersuasive as it is unsupported by
and inconsistent with the objective medical evidence and appeared to rely on the claimant's self-
reports. "). This constitutes error.
b. 	Any error was not prejudicial to Plaintiff.
Having found that the ALJ committed error in failing to articulate the persuasiveness
factors as to Dr. Koretky ' s opinion, the Court must determine whether such error was harmless.
See Bradley v. Kijakazi, No. 3:22cv277-RP, 2023 WL 4278793 , at *3 (N.D. Miss. June 29, 2023)
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(citing Miller v. Kijakazi, No. 22 -60541 , 2023 WL 234773 , at *3 -4 (5th Cir. Jan. 18 , 2023) (per
curiam) (finding insufficient articulation of the persuasiveness factors to be harmless error)).
Procedural perfection is not required; the Court will not vacate a decision "unless the substantial
rights of a party have been affected." Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988).
Procedural errors affect the substantial rights of Plaintiff when they "cast into doubt the existence
of substantial evidence to support the ALJ's decision." Morris v. Bo we n, 864 F.2d 333 , 335 (5th
Cir. 1988). Moreover, the error is harmless when "it is inconceivable that a different administrative
conclusion would have been reached even if the ALJ did not err." Keel v. Saul, 986 F.3d 551 , 555
(5th Cir. 2021). The burden is on Plaintiff to show the error was prejudicial. Jones v. Astrue, 691
F.3d 730, 734 (5th Cir. 2012). 	For the Court to find prejudicial error for failing to provide
sufficient explanation as to the persuasiveness factors , Plaintiff must show that " if the ALJ had
given further explanation, then she would have adopted [the medical opinion] ." Miller v. Kijakazi,
No. 22 -60541 , 2023 WL 234773 , at *4 (5th Cir. Jan. 18 , 2023).
Plaintiff argues the "ALJ's error in her evaluation of the prior administrative medical
findings led to a defective hypothetical being presented to the vocational expert (VE)." (Dkt. No.
11 at 17). As a result, Plaintiff urges remand because "the Court is not able to speculate as to what
the VE 's testimony would have been." (Id.).
Defendant responds that "whether or not Plaintiff was restricted superficial contact with
the public is immaterial in this case, given the jobs identified and relied upon at step five." (Dkt.
No. 15 at 11 ). Defendant explains that this is because "the job descriptions contained in the DOT
[do] not suggest that these occupations require more than superficial interaction with the public,
or even any interaction with the public." (Id.).
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Here, Plaintiff has not established that " if the ALJ had given further explanation, then she
would have adopted [the medical opinion]." Miller, 2023 WL 234773 , at *4. While the ALJ failed
to satisfy the articulation requirements of the persuasiveness analysis, the ALJ thoroughly
considered Dr. Koretzky ' s report. 	The ALJ referenced Dr. Koretzky ' s report, the ultimate
conclusions therein, as well as reports containing conflicting findings, and attempted to convey
the persuasiveness of such, though unsuccessfully.
First, the ALJ cited to medical reports from an office visit at the Benchmark Wellness
Clinic, where the physical examinations appeared to lack any significant abnormalities. (See Ex.
No. B6F at 3, 6). 	The ALJ also referred to medical reports identifying diagnoses of "[b]ipolar
disorder, current episode depressed, severe, without psychotic features[,] " as well as "[c]ocaine
dependence, uncomplicated" and "[g]eneralized anxiety disorder[.]" (Dkt. No. 9-3 at 30 ; Ex. No.
B 7F at 1, 21). Next, the ALJ echoed ratings for the "paragraph B" criteria as suggested by Dr.
Koretzky. (Dkt. No. 9-3 at 27-28; Ex. No . B8A at 5; Ex. No. B9A at 5). 12 In the same vein, the
ALJ's RFC determination appears to reflect the considerations encapsulated within Dr. Koretzky ' s
report. For example, Dr. Koretzky found that Plaintiff was not significantly limited her ability to
carry out detailed instructions while the RFC states, "capable of understanding, remembering, and
carrying out detailed but not complex instructions[.]" (Compare Dkt. No. 9-3 at 28 with Ex. No.
B8A at 6 and Ex. No. B9 A at 6) . Then, Dr. Koretzky found that Plaintiff "is capable of adapting
to routine changes in the work environment with some difficulty[,]" while the RFC claimed that
Plaintiff "can adapt to occasional changes in the work routine." (Compare Dkt. No. 9-3 at 28 with
12 In the Opinion, the ALJ described Plaintiff's paragraph "B" limitations. (See 0kt. No. 9-3 at 27-28). The
ALJ found Plaintiff's ability to understand, remember, or apply information to have mild limitations, the
ability to interact with others to have moderate limitations, the ability to concentrate, persist or maintain
pace to have moderate limitations, and the ability to adapt or manage herself to have moderate limitations.
(Id.) . These conclusions are identical to Dr. Koretzky 's findings regarding Plaintiff's paragraph "B"
limitations. (See 0kt. No. 9-4 at 43 , 51; Ex. No. B8A at 5; Ex . No. B9A at 5).
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Ex. No. B8A at 7 and Ex. No. B9A at 7) . Fina ll y, while Dr. Koretzky found Plaintiff "is capable
of interacting superficially with the public with some difficulty[,]" and that Plaintiff could get
along "with coworkers and supervisors for routine task requirements with a degree of difficulty[,]"
the 	ALJ's 	RFC 	determination 	claimed 	Plaintiff "can 	tolerate 	occasional 	interaction 	with
coworkers, supervisors, and the public[.]" (Compare Dkt. No. 9-3 at 28 with Ex. No. B8A at 7 and
Ex. No. B9A at 7). 	In fact, other than Plaintiff's challenged terminology, "occasional" and
"superficial," the ALJ's ultimate RFC determination aligned with Dr. Koretzky's medical
opinions. Thus, "the ALJ clearly considered the opinion, but fell short of engaging in the requisite
analysis." Cynthia Ann. A., 2025 WL 391768, at *6 .
Moreover, Plaintiff has not shown a "defective hypothetical" that warrants reversal. Brown
v. Barnhart, 285 F.Supp.2d 919, 933 (S .D. Tex. 2003) (citing Bo wling v. Shala/a, 36 F.3d 431 ,
437 (5th Cir. 1994). A hypothetical question to a VE that fails to incorporate Plaintiffs limitations
is "defective and in error unless (1) the assumptions reasonably incorporate all of the disabilities
recognized by the ALJ, and (2) the claimant is afforded the opportunity to correct deficiencies in
the ALJ's opinion." Id.
Plaintiff argues that the ALJ erred because "[ a]t no time during the hearing did the ALJ ask
the VE about the impact of a limitation to superficial interaction with the public on the ability" to
work the jobs proffered at step five. (Dkt. No. 11 at 17). However, the ALJ was under no obligation
to adopt, verbatim, Dr. Koretzky' s statement that Plaintiff could only superficially interact with
the public. See Kirkwood v. Comm 'r of Soc. Sec. , No. 1:21 -CV-116-MJT, 2022 WL 17347796, at
*6 (E.D. Tex. Nov. 8, 2022) (citing Webster v. Kijakazi, 19 F.4th 715, 719 (5th Cir. 2021) ("The
social security regulations explain that the ALJ is the fact-finder in making the RFC assessment,
and the ALJ is not required to adopt the RFC verbatim from a medical opinion, as this would
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nullify his role as fact-finder."). 	As mentioned above, the ALJ's error was procedural insofar as
she failed to articulate the persuasiveness factors effectively-not that she lacked the support to
deviate from Dr. Koretzky ' s recommendations, nor did she fail to consider the opinion itself.
Here, the ALJ's RFC determination, which "reasonably incorporate[s] all of the disabilities
recognized 	by 	the 	ALJ," 	included 	the 	language 	"occasional 	interaction 	with 	coworkers,
supervisors and the public." (Dkt. No. 9-3 at 28); Brown, 285 F.Supp.2d at 933. Similarly, in the
first hypothetical posed to the VE at the hearing, the ALJ asked the VE to assume the individual
"can tolerate occasional interaction with coworkers, supervisors, and the public[.]" (Dkt. No. 9-3
at 59). 	In the second hypothetical, the ALJ asked the VE to "assume the same limitations that
[were] in the first hypothetical" and added further restrictions, leaving the level of interaction with
the public undisturbed. (Id. at 60). 	Finally, in the third hypothetical, the ALJ asked the VE to
consider "no interaction with the public." (Id. at 61 ). Under the first two hypothetical individuals,
the VE found positions that had jobs in the national economy, while the third hypothetical returned
no jobs in the national economy. (Id. at 59-61). However, the ALJ subsequently adopted the VE's
testimony regarding the first hypothetical individual in crafting the RFC determination, which
included the language "occasional interaction[.]" (Dkt. No. 9-3 at 28, 32). 	As such, the ALJ's
hypothetical question to the VE reasonably incorporated all the disabilities recognized by the ALJ
and subsequently confirmed in the RFC determination. Thus, the Plaintiffs allegation fails under
the first prong.
In sum, the ALJ erred in failing to clearly articulate the supportability and consistency
factors in the persuasiveness analysis; however, such error was not prejudicial.
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VII. 	Conclusion
After a careful review of the record and relevant law, the undersigned finds that the ALJ's
decision is supported by substantial evidence; therefore, the 	undersigned recommends the
Commissioner' s decision herein be AFFIRMED. The undersigned further recommends the Clerk
close out this matter.
DONE at McAllen, Texas, this the 6th day of November 2025.
---------Juan F. Alanis
United States Magistrate Judge
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