HOLGUIN v. O'Malley, Commissioner of the Social Security Administration

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
CARMEN HOLGUIN,
Plaintiff,
v.
FRANK BISIGNANO, COMMISSIONER
OF THE SOCIAL SECURITY
ADMINISTRATION,
Defendant.
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EP-24-CV-00412-DB-MAT
REPORT AND RECCOMMENDATION
Plaintiff Carmen Holguin (“Plaintiff”) appeals from a decision of the Acting
Commissioner of the Social Security Administration (“Commissioner”) denying her claim for
supplemental security income (“SSI”) under Title XVI of the Social Security Act. On November
7, 2024, Senior United States District Judge David Briones referred this case to the undersigned
for review and recommendation pursuant to 28 U.S.C. § 636 and Appendix C to the Local Rules
of the United States District Court for the Western District of Texas. For the following reasons,
the Court RECOMMENDS that the decision of the Commissioner be AFFIRMED under 42
U.S.C. § 405(g).
I. BACKGROUND & PROCEDURAL HISTORY
Plaintiff completed two years of college and has prior work experience as a nail salon
technician and as the secretary of an auto parts store. Tr. of Admin. R. [hereinafter, “Tr.”] at 418,
ECF No. 6-2. On May 17, 2021, Plaintiff applied for SSI. Id. at 38. She alleged disability
beginning January 1, 2019. Id. At the time of the application, Plaintiff was 44 years old. See id.
at 390.
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On October 20, 2021, Plaintiff’s disability claims were denied, and again upon
reconsideration on November 14, 2022. Id. at 150, 160. Administrative Law Judge (“ALJ”)
Jennifer Fellabaum held a telephonic hearing on July 6, 2023, and later issued a decision denying
Plaintiff’s claims on November 20, 2023. Id. at 20. Plaintiff requested review of the ALJ’s
decision, which was denied by the Appeals Council on April 23, 2024. Id. at 20, 379. The
ALJ’s decision became the final decision of the Commissioner at that time.1 Plaintiff now seeks
judicial review of the decision.
On November 19, 2024, Plaintiff brought this action seeking judicial review of the
Commissioner’s final decision under 42 U.S.C. § 405(g). On April 4, 2025, Plaintiff filed her
opening brief, requesting that the Court remand her claims for further administrative
proceedings. Pl.’s Br. at 16-17, ECF No. 11. On May 13, 2025, the Commissioner filed a
response to Plaintiff’s brief, requesting that the Court affirm the Commissioner’s decision. Br. in
Supp. Of Comm’r’s Decision at 11 [hereinafter “Def.’s Resp.”], ECF No. 17. Plaintiff did not
file a reply brief.
II. DISCUSSION
A. Standard of Review
Judicial review, under 42 U.S.C. § 405(g), of the Commissioner’s decision denying social
security benefits is “highly deferential.” Garcia v. Berryhill, 880 F.3d 700, 704 (5th Cir. 2018).
Review is limited to a determination of whether (1) the Commissioner’s final decision is
supported by substantial evidence on the record and (2) the Commissioner applied the proper
legal standards. See 42 U.S.C. § 405(g); Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014).
1 See Masterson v. Barnhart, 309 F.3d 267, 271 (5th Cir. 2002) (“The ALJ's decision thus became the
Commissioner's final and official decision when the Appeals Council denied [the claimant's] request for
review on the merits.”).
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“Substantial evidence is more than a scintilla, less than a preponderance, and is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Sun
v. Colvin, 793 F.3d 502, 508 (5th Cir. 2015). “[W]hatever the meaning of ‘substantial’ in other
contexts, the threshold for such evidentiary sufficiency is not high.” Biestek v. Berryhill, 587
U.S. 97, 103 (2019). In applying the “substantial evidence” standard, “the court scrutinizes the
record to determine whether such evidence is present,” Sun, 793 F.3d at 508, but it may not “try
the issues de novo” or “reweigh the evidence.” Salmond v. Berryhill, 892 F.3d 812, 817 (5th Cir.
2018) (alteration in original). “[N]or, in the event of evidentiary conflict or uncertainty,” may
the court substitute its judgment for the Commissioner's, “even if [it] believe[s] the evidence
weighs against the Commissioner's decision.” Garcia v. Berryhill, 880 F.3d 700, 704 (5th Cir.
2018). “Conflicts of evidence are for the Commissioner, not the courts, to resolve.” Sun, 793
F.3d at 508. “A finding of no substantial evidence is appropriate only if no credible evidentiary
choices or medical findings support the decision.” Whitehead v. Colvin, 820 F.3d 776, 779 (5th
Cir. 2016).
Generally, “[w]here . . . the Secretary has relied on erroneous legal standards in assessing
the evidence, he must reconsider that denial.” Leidler v. Sullivan, 885 F.2d 291, 294 (5th Cir.
1989). That said, even if the ALJ commits legal error, “remand is warranted only if the . . . error
was harmful.” Miller v. Kijakazi, No. 22-60541, 2023 WL 234773, at *3 (5th Cir. Jan. 18, 2023)
(per curiam) (citing Shinseki v. Sanders, 556 U.S. 396, 407–08 (2009)); see also Mays v.
Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988) (“Procedural perfection in administrative
proceedings is not required. This court will not vacate a judgment unless the substantial rights of
a party have been affected.”). “Harmless error exists when it is inconceivable that a different
administrative conclusion would have been reached even if the ALJ did not err.” Keel v. Saul,
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986 F.3d 551, 556 (5th Cir. 2021). Furthermore, it is plaintiff’s burden to show prejudice or
harm from the error. Jones v. Astrue, 691 F.3d 730, 734–35 (5th Cir. 2012).
B. The ALJ’s Evaluation Process
Eligibility for SSI based on disability requires that the claimant be “disabled” within the
meaning of the Social Security Act. 42 U.S.C. §§ 423(a)(1)(E), 1382(a). Under the Social
Security Act, 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); see 42 U.S.C. § 416(i).
In evaluating a disability claim, the ALJ follows a five-step sequential process to
determine whether: (1) the claimant is presently engaged in substantial gainful employment; (2)
the claimant has a severe medically determinable physical or mental impairment; (3) the
claimant’s impairment meets or medically equals an impairment listed in the appendix to the
regulations; (4) the impairment prevents the claimant from doing past relevant work; and (5) the
impairment prevents the claimant from performing other substantial gainful activity. 20 CFR §
404.1520(a)(4); Salmond, 892 F.3d at 817.
Between steps three and four, the ALJ determines the claimant’s “residual functional
capacity” (“RFC”). 20 CFR § 404.1520(e). The RFC “is the most [the claimant] can still do
despite [their] limitations.” Id. § 404.1545(a)(1). The ALJ determines the RFC by examining
“all of the relevant medical and other evidence.” Id. § 404.1545(a)(3). When using medical
opinions as evidence, the ALJ must assess the persuasiveness of such evidence in her opinion.
Id. § 404.1520c(a). Persuasiveness is based on several factors that the ALJ must consider, but
the ALJ is only required to articulate “supportability” and “consistency” in her decision. Id. §
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404.1520c(b)(2). The ALJ then uses the claimant’s RFC in making determinations at steps four
and five. Id. § 404.1520(e).
“The burden of proof is on the claimant at the first four steps.” Kneeland v. Berryhill, 850
F.3d 749, 753 (5th Cir. 2017). If the claimant meets this burden, at step five the burden shifts to
the Commissioner “to show that there is other substantial gainful employment available that the
claimant is capable of performing.” Fraga v. Bowen, 810 F.2d 1296, 1301–02 (5th Cir. 1987).
If the Commissioner satisfies this burden, “the burden then shifts back to the claimant to prove
that he is unable to perform the alternate work.” Id. at 1302. A determination at any step that the
claimant is or is not disabled “ends the inquiry.” Keel v. Saul, 986 F.3d 551, 555 (5th Cir. 2021);
see 20 CFR §404.1520(a)(4).
C. The ALJ’s Findings
Here, ALJ Fellabaum evaluated Plaintiff’s claims under the above-mentioned five-step
sequential evaluation process. At step one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since May 17, 2021, the date of her SSI application. Tr. at 40. At step
two, the ALJ found that Plaintiff had the following severe impairments: “narcolepsy; obstructive
sleep apnea; insomnia; degenerative disc disease; varicose veins; bilateral carpal tunnel and
cubital tunnel syndrome; right wrist and hand osteoarthritis; right foot osteoarthritis with hallux
valgus and bunion; and left foot hallux valgus and bunion.” Id. The ALJ also noted Plaintiff’s
non-severe impairments, including her migraines. Id. At step three, the ALJ concluded that
Plaintiff’s impairments, alone or in combination, did not meet or equal the severity of any
impairment listed in 20 CFR Part 404, Subpart P, Appendix 1. Id. at 41. The ALJ explained that
she “considered all of the claimant’s impairments individually and in combination but can find
no evidence that the combined clinical findings from such impairments reach the level of
severity contemplated in the listings.” Id. at 42.
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Next, before going to step four, the ALJ, determined that Plaintiff retained the RFC to
perform “light work” as defined in 20 CFR 416.967(b) except:
she can occasionally climb ramps and stairs, balance, stoop,
crouch, kneel and crawl. [She] can never climb ladders, ropes, or
scaffolds, or be exposed to unprotected heights, hazardous
machinery, or concentrated exposure to extreme heat or humidity.
[She] can frequently finger, handle, and feel bilaterally, and she
can occasionally use bilateral foot controls. [She] cannot operate or
ride in a motor vehicle for commercial purposes, and her work
should be performed indoors, but brief walking from building to
building can be performed. [She] cannot perform fast-paced
assembly line work.”
Id. at 42-43.
The ALJ made this finding after she “considered all symptoms and the extent to which
these symptoms can reasonably be accepted as consistent with the objective medical evidence
and other evidence, based on the requirements of 20 CFR 416.929 and SSR 16-3p.” Id. at 43.
ALJ Fellabaum also noted that she “considered the medical opinion(s) and prior administrative
medical finding(s) in accordance with the requirements of 20 CFR 416.920c.” Id. Considering
her severe impairments, non-severe impairments, and daily life activities as required by 20 CFR
416.929 and SSR 16-3p
At step four, the ALJ concluded that Plaintiff had no past relevant work based on her
“limited earnings and work history.” Id. at 47. The ALJ considered if Plaintiff could make
adjustments to other work by considering her RFC, “age, education and work experience in
conjunction with the Medical-Vocational Guidelines, 20 CFR Part 404, Subpart P, Appendix 2.”
Id. The ALJ explained that Plaintiff’s ability “to perform all or substantially all of the
requirements of [light work] has been impeded by additional limitations.” Id. Still, the vocational
expert testified that given all of Plaintiff’s factors, she could perform three jobs that are widely
available in the national economy. Id. Finally, at step five, the ALJ concluded that “considering
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the [Plaintiff’s] age, education, work experience, and residual functional capacity, the [Plaintiff]
is capable of making a successful adjustment to other work that exists in significant numbers in
the national economy.” Id. Therefore, the ALJ concluded that Plaintiff was not disabled under
the Social Security Act from May 17, 2021 (the date the application was filed) through
November 20, 2023 (the date of the ALJ’s decision). Id. at 48.
D. Analysis
On appeal, Plaintiff presents two issues for the Court. First, Plaintiff alleges that the ALJ
erred as a matter of law because she assessed “vague and internally inconsistent RFC limitations
and failed to resolve the inconsistencies in explaining the basis for the limitation.” Pl. Br. at 7.
Second, Plaintiff argues that the ALJ’s “subjective symptom evaluation is not supported by
substantial evidence where the ALJ only provided generic reasoning to reject Plaintiff’s
testimony and failed to provide reasons for rejecting Plaintiff’s testimony regarding exposure to
light.” Id. The Court addresses these arguments below.
1. The ALJ Applied the Correct Standard in Determining Plaintiff’s RFC
Plaintiff argues that the ALJ’s RFC assessment failed to meet the standards set forth in 20
CFR § 416.945, SSR 96-8p, because the RFC was overly vague and internally inconsistent. Pl.’s
Br. at 10. Specifically, she alleges that while the ALJ found that Plaintiff was limited to
performing a range of light work, requiring her to perform “‘a good deal of walking or
standing’” the ALJ further limited her to only briefly walking outside in the course of her job
duties. Id. (citing Tr. 42-43). Then, Plaintiff contends that the vocational expert’s testimony is
unreliable because by not defining briefly “in reasonable vocational terms that could be
interpreted in a manner commensurate with the ALJ’s intentions by the vocational expert. . . . It
is impossible to determine whether the vocational expert had the same definitional understanding
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of the term ‘briefly’ as the ALJ when he responded to the hypothetical question that was posed.”
Id. at 10-11. Finally, Plaintiff alleges that the “ALJ’s finding that migraines standing alone
would result in substantial environmental limitations in the RFC assessment is inconsistent with
[the ALJ’s] finding at step two that the condition is a non-severe impairment.” Id. at 11.
In response, the Commissioner contends that the ALJ did not err because she applied the
correct severity standard to Plaintiff’s migraines and properly considered them under SSA
regulations. Def. Br. at 4-5. The Commissioner also notes that even if the ALJ had applied the
wrong standard by over restricting Plaintiff’s RFC, it was harmless error because it worked in
Plaintiff’s favor. Id. at 5. Next, the Commissioner responds that the fact that the vocational
expert was able to answer the question without clarification as well as Plaintiff’s counsel being
present and failing to cross-examine the vocational expert for any alleged deficiency or
inconsistency defeats Plaintiff’s argument that the ALJ’s decision was unsupported by
substantial evidence. Id. at 6. Again, the Commissioner points out that even if the Plaintiff were
correct, it is harmless error because it had no bearing on the procedure used or substance of the
decision. Id. at 7.
a. The ALJ’s Application of the Wrong Legal Standard in RFC Determination
was Harmless Error
At Step 2, Plaintiff must demonstrate that she experienced a severe medically
determinable impairment or combination of impairments that lasted or could be expected to last
for a continuous period of at least 12 months. 20 CFR § 416.920(4)(a)(ii); id. § 416.909; see
Allen v. Kijakazi, No. 21-30771. 2022 WL 7265517, at *2 (5th Cir. Oct. 12, 2022) (explaining
that Plaintiff “not the ALJ, bears the burden of proof” in RFC determination).
In Salmond v. Berryhill, the Fifth Circuit resolved an intra-Circuit split as to which
standard ALJ’s must apply in their severity assessment by reiterating that the Stone v. Heckler,
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752 F.2d 1099, 1101 (5th Cir. 1985), standard is the Circuit’s “binding precedent.” 892 F.3d 812,
817 (5th Cir. 2018); see generally Guzman v. Berryhill, No. EP-17-CV-312-MAT, 2019 WL
1432482, at *5 (W.D. Tex. Mar. 29, 2019). The 5th Circuit clarified that “an impairment is
severe if it is anything more than a ‘slight abnormality’ that ‘would not be expected to interfere’
with a claimant’s ability to work.” Salmond, 892 F.3d at 817 (quoting Loza v. Apfel, 219 F.3d
378, 391 (5th Cir. 2000)).
In her written decision, the ALJ defined a medically determinable impairment as not
severe by following the Stone standard but misciting to SSR 85-28. She writes “[a] medically
determinable impairment is not severe if it is only ‘a slight abnormality which has such a
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’ (SSR 85-28).” Tr. at 41. The
ALJ found that Plaintiff had multiple severe impairments; however, migraines, among other
impairments, were found to be non-severe because the record “failed to demonstrate any
resulting limitation that met the [12 month continuous time period] durational requirement.” Tr.
at 41. After considering all symptoms and the extent they can be reasonably accepted as
consistent with objective medical evidence and other evidence, the ALJ found, by applying the
SSR 85-28 standard, that these non-severe impairments “do not significantly limit the claimant’s
ability to perform basic work activities.” Id. (emphasis added).
Accordingly, because the ALJ applied the SSR 85-28 severity standard and not the Stone
standard, the Court finds that the ALJ did not apply the proper legal standard and therefore erred.
Finding error, the Court must next determine whether failure to apply the Stone standard
requires the Court to remand without further inquiry or whether a harmless error analysis is
appropriate. In Stone, the Fifth Circuit considered an appeal from the denial of benefits at step
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two where the ALJ found that the plaintiff did not have a severe impairment. 752 F.2d at 1100.
There, the Fifth Circuit referred to its “recent experience with cases where the disposition has
been on the basis of nonseverity” in its conclusion before it stated that “[u]nless the correct
standard is used, the claim must be remanded to the [Commissioner] for reconsideration.” Id. at
1106.
While some courts conclude that this statement requires remand in all cases, see, e.g.,
Padalecki, 688 F. Supp. 2d at 581; Scroggins, 598 F. Supp. 2d at 806-07, most of our sister
courts and the Fifth Circuit undertake harmless error analysis where a Stone error occurred. See
Keel, 986 F.3d at 556 (explaining that even if the Court “were to conclude that the ALJ failed to
properly apply the Stone standard, such a conclusion does not require an automatic reversal – if
the ALJ proceed[ed] past step two, we consider whether the error was harmless”); see also
Guzman v. Berryhill, 2019 WL 1432482, at *7 (finding that while the ALJ committed a Stone
error because the ALJ found that they did have another severe physical impairment that required
proceeding past step two that the error was harmless); Adams v. Bowen, 833 F.2d 509, 512 (5th
Cir. 1987) (holding appellant’s argument that the ALJ erred in failing to find her back problems
severe was not grounds for a remand because the case did not implicate the ‘non-severity’ of
plaintiff’s condition since the ALJ continued through step four of the sequential analysis); Jones
v. Bowen, 829 F.2d 524, 527 n.1 (5th Cir. 1987) (holding no Stone error where the ALJ properly
found the claimant's hypertension was mild and proceeded through step five, rather than denying
benefits “prematurely ... based on an improper determination of ‘non-severity’ ”); Herrera v.
Astrue, 406 F. App'x 899, 903 (5th Cir. 2010) (same). A step two error is harmless if the ALJ
proceeds past step two and properly considers both the severe and non-severe impairments in the
remaining steps. Ardoin v. Saul, No. 4:19-CV-02022, 2020 WL2934814, at *3 (S.D. Tex. June 3,
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2020) (citing Goodman v. Comm’s of Soc. Sec. Admin., 3:11-CV-1321-G(BH), 2012 WL
4473136, at *10 (N.D. Tex. Sep. 10, 2012). A harmless error exists when it is “inconceivable”
that a different outcome would be reached without the error. See Frank v. Barnhart, 326 F.3d
618, 622 (5th Cir. 2003); Watts v. Berryhill, 5-17-CV-001920-RBF, 2018 WL 4623666, at *6
(W.D. Tex. Sept. 26, 2018) (“ ‘In the Fifth Circuit, harmless error exists when it is inconceivable
that a different administrative conclusion would have been reached absent the error.’”).
Here, while finding that among others Plaintiff’s migraines were not severe impairments,
the ALJ did find, at step two, that Plaintiff had severe physical impairments of narcolepsy,
obstructive sleep apnea, insomnia, degenerative disc disease, varicose veins, bilateral carpal
tunnel, and cubital tunnel syndrome, right wrist and hand osteoarthritis with hallux valgus and
bunion, and left foot hallux valgus and bunion. Tr. at 40. Therefore, the ALJ was required to
proceed past step two of the five-step sequential evaluation process. 20 CFR § 404.1520(a)(4).
Moreover, the ALJ did consider the migraines during the RFC finding as required by SSR 96-8p,
1996 WL 374184, at *5, between steps three and four. Accordingly, no different outcome would
have occurred at step two, absent the ALJ's harmless error.
b. The ALJ Properly Accounted for Plaintiff’s Migraines
SSR 96-8p requires that in assessing an RFC, “the adjudicator must consider limitations
and restrictions imposed by all of an individual’s impairments, even those that are not ‘severe.’”
Social Security Ruling 96-8p (SSR 96-8p): Titles II and XVI: Assessing Residual Functional
Capacity in Initial Claims, 61 Fed. Reg. 34474, 34477 (July 2, 1996), 1996 WL 374184, at *5
(emphasis added). “This is because even non-severe limitations may combine with other severe
impairments to prevent an individual from doing past relevant work or narrow the range of work
that the individual can perform.” Hernandez v. Comm’r of Soc. Sec., 748 F.Supp. 3d 442, 447-48
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(W.D. Tex. 2024) (citing SSR 96-8p, 61 Fed. Reg. at 34477, 1996 WL 374184, at *5). Here, as
explained above, the ALJ found that Plaintiff’s migraines were not a severe impairment.
Nevertheless, the ALJ did consider Plaintiff’s migraines as required by SSR 96-8p when making
her RFC determinations.
The ALJ considered Plaintiff’s migraines and assessed “environmental limitations . . .
due to [plaintiff’s] migraines.” Tr. at 46. The ALJ assigned “extreme heat or humidity” and
“brief walking from building to building” as limitations because of Plaintiff’s migraines. Id.
Plaintiff argues that by ascribing significant limitations to a non-severe impairment the
ALJ did not apply the proper legal standard. A review of the record demonstrates that the
Plaintiff is in error on this point. If an ALJ goes beyond step two, “the adjudicator must consider
limitations and restrictions imposed by all of an individual’s impairments, even those that are not
“severe.” SSR 96-8p, 61 Fed. Reg. at 34477, 1996 WL 374184, at *5. That is precisely what the
ALJ did. Here, the ALJ considered not only the limiting effects of Plaintiff’s severe impairments
she found at Step 2, but also explicitly considered Plaintiff’s migraines when setting
environmental limitations in her RFC determination. Therefore, the ALJ properly accounted for
Plaintiff’s migraines consistent with her determination of that the migraines were a non-severe
impairment at Step 2. Accordingly, the RFC determination was correctly made and was not
internally inconsistent.
c. The Term “Briefly” Was Not Overly Vague
At Step 5, to determine whether a claimant is disabled, the ALJ generally asks a
vocational expert (“VE”) whether a hypothetical person with the claimant’s RFC can perform
jobs that are available in the national economy. In this appeal, Plaintiff argues that the ALJ “did
not define ‘briefly’ in reasonable vocational terms that could be interpreted in a manner
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commensurate with the ALJ’s intention by the vocational expert.” Pl.’s Br. at 10. She contends
“[i]t is not clear from this RFC whether the Plaintiff could walk outside for five minutes, fifteen
minutes, or thirty minutes, since ‘briefly’ is not defined. It is impossible to determine whether the
vocational expert had the same definitional understanding of the term ‘briefly’ as the ALJ when
he responded to the hypothetical question that was posed. As a result, the vocational expert’s
testimony is unreliable.” Id.
First, the vocational expert’s ability to answer the question posed without needing
clarification is evidence that the hypothetical “was not inappropriately vague.” Stackhouse v.
Berryhill, No. 1:17-00315, 2018 WL 4292155, at *5 (W.D.N.Y. Sept. 10, 2018) (explaining that
when a vocational expert does not require clarification of an ALJ’s hypothetical the hypothetical
is clear in context). Here, the vocational expert was able to answer the questions presented to her
without asking for any clarification. Tr. at 70-71. Aside from Plaintiff’s speculation, “there is no
indication that the VE was in any manner confused by the question.” Smith v. Kijakazi, No. 4:21-
cv-00580, 2022 WL 1443685, at *4 (S.D. Tex. May 6, 2022) (citing Kendall A. v. Saul, No.
1:18-cv-0031-BP, 2019 WL 4602967, at *8 (N.D. Tex. 2019) (finding that a hypothetical
question was not “too vague” and, therefore, did not impact the VE's assessment of
employability because there was no “indication that the VE was in any manner confused” by the
question)).
Further, under Fifth Circuit precedent, “if the [ALJ’s] hypothetical omits a recognized
limitation ‘and the claimant or his representative is afforded the opportunity to correct
deficiencies in the [ALJ’s] question by mentioning or suggesting to the vocational expert any
purported defects in the hypothetical questions’ there is no reversible error.” Wise v. Barnhart,
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101 F. App’x 950, 951 (5th Cir. 2004) (quoting Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir.
1994)).
Here, Plaintiff’s counsel was present at the hearing, was afforded the opportunity to
cross-examine the vocational expert and cure any deficiencies, but failed to do so. Tr. at 70-72.
Plaintiff’s counsel did, however, question the vocational expert as to whether being absent a few
times a month or being off task “15 percent” of the time would affect her responses. Id. at 71.
But at no point did Plaintiff’s counsel ask for clarification on what the ALJ meant by “briefly.”
See id. Therefore, this point of error fails. See Wise, 101 F. App’x at 951 (“Wise does not dispute
that his representative was allowed to cross-examine the vocational expert regarding the
administrative law judge’s hypothetical. Thus, even assuming, arguendo, that the administrative
law judge’s hypothetical was deficient in the respects urged on appeal, because Wise’s
representative was afforded an opportunity to correct any perceived deficiencies, there is no
reversible error.”).
Even if the ALJ’s hypothetical was deficient as to its use of “briefly,” there was no
reversible error. Because it “clearly had no bearing on the procedure used or the substance of the
decision reached.” Mass. Trs. of E. Gas & Fuel Assocs. v. United States, 377 U.S. 235, 248
(1964). The vocational expert provided three jobs (Garment Sorter, Office Helper, and Mailroom
Clerk) in response to a hypothetical question about the limitation regarding short walks from
building-to-building. Tr. at 48. None of these jobs require any exposure to weather, defined as
“outside atmospheric conditions.” SCODICOT, Appendix D; see Dictionary of Occupational
Titles (DOT) Garment Sorter, 222.687-014, 1991 WL 672131; DOT, Office Helper, 239.567-
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010, 1991 WL 672232; DOT, Mail Clerk, 209.687-026, 1991 WL 671813.2 Therefore,
regardless of what “briefly” meant, “there is no reasonable likelihood that either the vocational
expert’s testimony, or the ALJ’s decision, would have been any different.” Swindle v. Colvin,
NO. 12-0323, 2013 WL 12106130, at *6 (S.D. Tex. Sept. 23, 2013).3 Accordingly, the use of
“briefly” by the ALJ was not overly vague.
2. The ALJ Properly Assessed Plaintiff’s Subjective Symptoms
In determining a claimant’s RFC, an ALJ must consider “all of the relevant medical and
other evidence” including the claimant’s own “descriptions and observations of [her] limitations
from [her] impairment(s), including limitations that result from [her] symptoms, such as pain.”
20 CFR §§ 404.1545(a)(3), 416.945(a)(3). The ALJ is required to “evaluate the intensity and
persistence of [her] symptoms,” considering “all of the available evidence, including [her]
medical history, the medical signs and laboratory findings, and statements about how [her]
symptoms affect her.” Id. §§404.1529(c), 416.945(c). Social Security Ruling (SSR) 16-3p, a sub-
regulatory policy, explains that ALJs will assess whether the “individual’s statements about the
intensity, persistence, and limiting effect of symptoms are consistent with the objective medical
evidence and other evidence of record.” Social Security Ruling 16–3p (SSR 16-3p); Titles II and
XVI: Evaluation of Symptoms in Disability Claims, 81 Fed. Reg. 14166, 14170 (Mar. 16, 2016)
2 The DOT identified the position of Deliverer, Outside, 230.663-010, 1991 WL 672160 as describing the
duties of office helpers that are required to leave the workplace to “deliver items to other business
establishments.” DOT, Office Helper, 239.567-010, 1991 WL 672232.
3 Plaintiff makes passing references to, but appears to abandon the argument that “there is no medical
support in the record for the ALJ’s finding that [she] could still work despite her impairments so long as
she only goes outside briefly, remain indoors, and does not work at a fast production pace. The ALJ
appears to have based these limitations primarily on the Plaintiff’s testimony but the ALJ simultaneously
excluded other limitations that she described without a satisfactory explanation.” Pl.’s Br. at 11. United
States v. Mirza, 454 F. App’x 249, 256 n.6 (5th Cir. 2011) (citing United States v. Stalnaker, 571 F.3d
428, 440-41 (5th Cir. 2009) (concluding that undeveloped arguments that lacked citations to relevant law
were waived for inadequate briefing)). Beyond making a reference to this issue and seemingly raising it,
the Plaintiff does not mention it further, and does not elaborate on or develops this issue beyond this
initial mention.
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(superseding SSR 96-7p, 1996 WL 374186, at *1 (July 2, 1996)), which governed evaluation of
symptoms and “credibility” of an individual’s statements). This is a two-step process where the
ALJ first must “consider whether there is an underlying medically determinable physical or
mental impairment(s) that could reasonably be expected to produce [Plaintiff’s] symptoms, such
as pain.” Id.
Here, the ALJ answered in the affirmative and moved on to the requisite next step
requiring her to “evaluate the intensity and persistence of those symptoms to determine the
extent to which the symptoms limit [Plaintiff’s] ability to perform work-related activities.” Tr. at
44; SSR 16-3p, 81 Fed. Reg. 34476, 1996 WL 374186, at *2; 20 CFR § 404.1529(a). “In
considering the intensity, persistence, and limiting effects of [Plaintiff’s] symptoms, [the ALJ is
required to] examine the entire case record, including the objective medical evidence;
[Plaintiff's] statements about the intensity, persistence, and limiting effects of symptoms;
statements and other information provided by medical sources and other persons; and any other
relevant evidence in the [Plaintiff’s] case record.” Id. at 34476, at *2. This requires the ALJ to
consider Plaintiff’s “daily activities.” 20 CFR § 416.929(c)(3)(i). Here, the ALJ found that while
Plaintiff
described daily activities that are fairly limited, two factors weigh
against considering these allegations to be strong evidence in favor
of finding the [Plaintiff] disabled. First, allegedly limited daily
activities cannot be objectively verified with any reasonable degree
of certainty. Secondly, even if the [Plaintiff's] daily activities are
truly as limited as alleged, it is difficult to attribute that degree of
limitation to the [Plaintiff's] medical condition, as opposed to other
reasons, in view of the relatively weak medical evidence and other
factors discussed in this decision.
Tr. at 44.
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Plaintiff argues that “[t]he ALJ’s finding that Plaintiff’s testimony was not credible,
because her daily activities could ‘not be objectively verified with any reasonable degree of
certainty’ is in error.” Pl.’s Br. at 14. Defendant admits that “when discussing plaintiff’s daily
activities, it would have been better if the ALJ pointed to plaintiff’s latest treatment note, in
which her provider stated that her “[a]ctivities [were] now within functional limit and [she was]
able to perform tasks as desired within and outside [her] home.” Def.’s Resp. at 9 (citing Tr. at
1810).
Still, the issue boils down to semantics. It is no cause for remand because:
[c]redibility determinations are reserved to the Commission and
this Court may not reconsider those determinations de novo or
substitute its judgment for the ALJ's. The fact that this Court may
have come to a different conclusion than the ALJ does not
invalidate the ALJ's determination that plaintiff's subjective
complaints were less than credible due to the lack of objective
medical evidence.
Young v. Saul, No. MO:19-CV-00143-RCG, 2020 WL 13929406, at *8 (W.D. Tex. Aug. 20,
2020) (quoting Roberson v. Colvin, NO. 2:13-CV-197, 2015 WL 1408925, at *19 (N.D. Tex.
Mar. 27, 2015)).
When Roberson was decided, the SSA evaluated claimants’ credibility. See SSR 96-7p.
1996 WL 374186 (July 2, 1996). It no longer does so; SSR 16-3p “eliminat[ed] the use of the
term ‘credibility.’” 2017 WL 5180304, at *2. Accordingly, the ALJ here never found that
plaintiff’s testimony about her symptoms was not “fully credible.” Instead, she determined that
Plaintiff’s subjective characterization of her symptoms was “not entirely consistent with the
medical evidence and other evidence in the record.” Tr. 44. This is a matter of “semantic[s],”
Howard v. Berryhill, NO. 3:16-318, 2017 WL 551666, at *7 (N.D. Tex. Feb. 10, 2017), and
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doesn’t undercut Roberson’s holding. Therefore, the ALJ applied the correct legal standard, and
her conclusions were supported by substantial evidence.
Finally, Plaintiff argues that the ALJ’s finding that “Plaintiff’s restricted range of
activities is not consistent with the ‘relatively weak’ medical evidence is contrary to the record
and not supported by substantial evidence. Pl.’s Br. at 15. Plaintiff explains that she has
“significant diabetic neuropathy,” required “extensive medication management of her chronic
migraine symptoms.” Id. (citing Tr. at 1651-52, 829-30, 1167). She continues that she “has
required multiple surgical procedures involving her upper extremities.” Id. (citing Tr. at 1052,
1066, 1100). Then argues that the ALJ failed to explain “how the referenced medical evidence is
in any way inconsistent with Plaintiff’s reported limitations in her range of daily activities.” Id.4
The Fifth Circuit has eschewed formalistic rules of articulation requiring ALJ’s to note
every piece of evidence that supported their decision and discuss rejected evidence. Falco v.
Shalala, 27 F.3d 160, 163 (5th Cir. 1994). Simply because the ALJ did not specifically discuss
Holguin’s testimony about her diabetic neuropathy, extensive medication management for
chronic migraine symptoms, multiple surgical procedures, or light causing her migraines does
not mean she did not consider it. See Brunson v. Astrue, 387 F. App’x 459, 461 (5th Cir. 2010)
(“The fact that the ALJ cited certain evidence that he felt supported his decision does not mean
that he failed to consider all of the other evidence in the record.”); Castillo v. Barnhart, 151 F.
App’x 334, 335 (5th Cir. 2005) (citing Falco, 27 F.3d at 163 (5th Cir. 1994)) (“That the ALJ did
not specifically cite each and every piece of medical evidence considered does not establish an
actual failure to consider the evidence.”).
4 Plaintiff also argues that the ALJ “failed to provide reasons for rejecting [her] testimony regarding
exposure to light.” Pl.’s Br. at 12. However this argument is forfeited as Plaintiff does not develop the
argument beyond including it in her argument heading. Mirza, 454 F. App’x at 256 n.6.
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In making her RFC finding, the ALJ clarified that she made her finding “[a]fter careful
consideration of the entire record.” Tr. at 42. She details that “[i]n making this finding, I have
considered all symptoms and the extent to which these symptoms can reasonably be accepted as
consistent with the objective medical evidence and other evidence, based on the requirements of
20 CFR 416.929 and SSR 16-3p.” Tr. at 43.
And again, she explains that in making her determination “it is my duty to accurately
determine the degree of her impairments based upon the totality of all of the other evidence of
record. I have evaluated the claimant’s subjective complaints and other allegations in accordance
with 20 CFR 416.929 and SSR 16-3p.” Tr. at 45. At her hearing, Plaintiff was asked “[a]re the
migraines trigger[ed] by anything specific?” Tr. at 62. Plaintiff answered that her migraines are
triggered “[w]hen the light is very strong or it’ too hot like the weather.” Tr. at 62.
In her decision, ALJ Fellabaum found that Plaintiff’s allegations of disability were
undercut by several pieces of medical evidence. In her decision, ALJ Fellabaum cited to
Plaintiff’s March 2020 MRI showing her “cervical spine demonstrated mild spinal canal stenosis
at C3-4 and C4-5.” Id. at 45 (citing Tr. at 649). She also cited to medical evidence that in her
June 2021 progress notes, Plaintiff’s “strength; range of motion; muscle tone; and reflexes were
all described as normal.” Id. (citing Tr. at 739). ALJ Fellabaum also noted that in July 2022,
Plaintiff “independently ambulated,” “was oriented with an appropriate mood and effect,” “but
her sensations were decreased to light touch.” Id. (citing Tr. at 767). Later, the ALJ cited to
medical evidence from April 2023 where Plaintiff “was in no acute distress, and . . . had full
range of motion.” Id. at 46 (citing Tr. at 1503). More recently, the ALJ cited to a June 2023
physical therapy discharge summary describing Plaintiff’s “abilities walk; change body
positions; perform selfcare; and carry and handle objects were noted as within normal limits.” Id.
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(citing Tr. 1811). While the ALJ did not explicitly cite the hearing transcript where Plaintiff
explained how light can cause her migraines, the ALJ inquired about it, and did consider that
testimony as part of the record she consulted in making her determination. See Tr. at 42.
Therefore, ALJ Fellabaum’s restricted range of activities finding is consistent with the medical
evidence in the record and supported by more than a scintilla of evidence.
IV. CONCLUSION
For these reasons, the Court RECOMMENDS that the decision of the Commissioner be
AFFIRMED under 42 U.S.C. § 405(g).
SIGNED and ENTERED this 12th day of December, 2025.
MIGUEL A. TORRES
UNITED STATES MAGISTRATE JUDGE
NOTICE
FAILURE TO FILE WRITTEN OBJECTIONS TO THE PROPOSED FINDINGS,
CONCLUSIONS, AND RECOMMENDATIONS CONTAINED IN THE FOREGOING
REPORT, WITHIN FOURTEEN DAYS OF SERVICE OF SAME, MAY BAR DE NOVO
DETERMINATION BY THE DISTRICT JUDGE OF AN ISSUE COVERED HEREIN
AND SHALL BAR APPELLATE REVIEW, EXCEPT UPON GROUNDS OF PLAIN
ERROR, OF ANY UNOBJECTED-TO PROPOSED FACTUAL FINDINGS AND LEGAL
CONCLUSIONS AS MAY BE ACCEPTED OR ADOPTED BY THE DISTRICT COURT.
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