IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

EL PASO DIVISION

ERIC D. LAMONS,

Plaintiff,

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v. EP-20-CV-00094-ATB

ANDREW SAUL, COMMISSIONER OF 

THE SOCIAL SECURITY 

ADMINISTRATION,

Defendant.

MEMORANDUM OPINION AND ORDER

This is a civil action seeking judicial review of an administrative decision. Jurisdiction is 

predicated upon 42 U.S.C. § 405(g). Both parties having consented to trial on the merits before a 

United States Magistrate Judge, the case was transferred to this Court for trial and entry of 

judgment pursuant to 28 U.S.C. § 636(c) and Rule CV-72 and Appendix C to the Local Court 

Rules for the Western District of Texas.

Plaintiff Eric Lamons (“Lamons”) appeals from the decision of the Commissioner of the 

Social Security Administration (“Commissioner”) denying his application for Disability Insurance 

Benefits (“DIB”). For the reasons set forth below, the Court orders that the Commissioner’s 

decision be AFFIRMED.

I. PROCEDURAL HISTORY

On July 23, 2018, Lamons filed an application for DIB, alleging a disability onset date of

March 1, 2017. (R. 10). Lamons’s application was denied initially on September 17, 2018, and 

upon reconsideration on November 20, 2018. (R. 15). An Administrative Law Judge (“ALJ”) 

held a hearing on September 10, 2019. (R. 32-64). The ALJ issued a decision (“Decision”) on 

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November 26, 2019, finding that Lamons was not disabled. (R. 21). On February 13, 2020, the 

Appeals Council denied Lamons’s request for review of the ALJ’s Decision. (R. 1-5).

II. ISSUE

Plaintiff presents the following issues for review:

1. Whether the ALJ properly considered Lamons’s chronic migraines when 

formulating a limited range of light-work residual functional capacity (RFC);

2. Whether the ALJ appropriately found that Lamons had no medically required

use of a walker;

3. Whether the ALJ ignored or failed to account for Lamons’s chronic pain and pain 

syndrome when formulating the RFC; and

4. Whether the ALJ erred in assigning no weight to Lamons’s 100 percent Veterans’ 

Administration (“VA”) Disability Rating.

III. DISCUSSION

a. Standard of Review

This Court’s review is limited to a determination of whether the Commissioner’s Decision 

is supported by substantial evidence, and whether the Commissioner applied the proper legal 

standards in evaluating the evidence. See 42 U.S.C. § 405(g); Masterson v. Barnhart, 309 F.3d 

267, 272 (5th Cir. 2002); Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995). Substantial 

evidence “means—and means only—‘such relevant evidence as a reasonable mind might accept 

as adequate to support a conclusion.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoting 

Consol. Edison Co. v. Nat’l Labor Relations Bd., 305 U.S. 197, 229 (1938)). “Substantial evidence 

is more than a mere scintilla and less than a preponderance.” Masterson, 309 F.3d at 272 (citation 

and internal quotes omitted). The Commissioner’s findings will be upheld if supported by 

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substantial evidence. Id. A finding of no substantial evidence will be made only where there is a 

conspicuous absence of credible choices or no contrary medical evidence. Abshire v. Bowen, 848 

F.2d 638, 640 (5th Cir. 1988) (per curiam) (citation and internal quotes omitted).

In applying the substantial evidence standard, the court may not reweigh the evidence, try 

the issues de novo, or substitute its own judgment for the Commissioner’s, even if it believes the 

evidence weighs against the Commissioner’s Decision. Masterson, 309 F.3d at 272. “[C]onflicts 

in the evidence are for the Commissioner and not the courts to resolve.” Id. (citation and internal 

quotes omitted); Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993).

b. Evaluation Process

The ALJ evaluates disability claims according to a sequential five-step process: (1) whether 

the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a 

severe medically determinable physical or mental impairment; (3) whether the claimant’s 

impairment(s) meet or equal the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, 

Appendix 1; (4) whether the impairment prevents the claimant from performing past relevant 

work; and (5) whether the impairment prevents the claimant from doing any other work. 20 C.F.R. 

§ 404.1520(a)(4). Once the claimant satisfies his burden under the first four steps, the burden 

shifts to the Commissioner at step five to show that there is other gainful employment available in 

the national economy that the claimant is capable of performing. Greenspan v. Shalala, 38 F.3d 

232, 236 (5th Cir. 1994). This burden may be satisfied either by reference to the Medical 

Vocational Guidelines of the regulations, by vocational expert (“VE”) testimony, or by other 

similar evidence. Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987). Once the Commissioner 

makes the requisite showing at step five, the burden shifts back to the claimant to rebut the finding

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that there are jobs that exist in significant numbers that the claimant could perform. Perez v. 

Barnhart, 415 F.3d 457, 461 (5th Cir. 2005). 

In the present case, the ALJ found that Lamons met “the insured status requirements of the 

Social Security Act through December 31, 2022.” (R. 12). In addition, the ALJ found that Lamons 

“ha[d] not engaged in substantial gainful activity since March 1, 2017, the alleged onset date.” (R. 

12). At step two, the ALJ found that Lamons “has the following severe impairments: degenerative 

disc disease of the cervical and lumbar spine, degenerative joint disease of the knee and ankle, 

obesity, depression, anxiety, and posttraumatic stress disorder (PTSD).” (R. 13). Further, the ALJ 

found that “[t]he above medically determinable impairments significantly limit the ability to 

perform basic work activities as required by SSR 85-28.” (R. 13). At step three, the ALJ found 

that Lamons did not have an impairment or combination of impairments that met or medically 

equaled the severity of any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 

1. (R. 14).

Before proceeding to step four, the ALJ found that Lamons:

has the residual functional capacity to perform light work as defined in 20 CFR 

404.1567(b), lifting 20 pounds occasionally and 10 pounds frequently, 

standing/walking for 4 hours in an 8-hour workday, and 6 hours in an 8-hour 

workday, except [Lamons] can perform occasional climbing of ladders, ropes, 

scaffolds, stairs and ramps; occasional balancing, stooping, kneeling, crouching, 

and crawling; can understand[,] remember and carry out detailed, but not complex 

instructions, make basic decisions, concentrate for extended periods, interact with 

others, respond to changes, and have only occasional contact with the public, coworkers and supervisors.

(R. 15). At step four, the ALJ determined that Lamons could not perform any past relevant 

work. (R. 19). Subsequently, at step five, the ALJ found that “there are jobs that exist in 

significant numbers in the national economy that [Lamons] can perform.” (R. 19). 

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Accordingly, the ALJ found that Lamons was not disabled within the meaning of the Social 

Security Act from March 1, 2017, through the Decision date. (R. 20).

c. Analysis

1. The ALJ Properly Considered Lamons’s Migraines When Formulating a Limited 

Range of Light-Work RFC

Lamons argues that “[t]he objective medical evidence establishes that Lamons is fully 

disabled and cannot lift more than 10 pounds, crouch, reach overhead bilaterally and cannot carry 

out detailed instructions due to his physical and mental impairments,” and that “[t]he ALJ 

erroneously disregarded the chronic migraines . . . .” (ECF No. 13, p. 3).

To support this contention, Lamons highlights his own testimony “that he suffered daily 

chronic migraines,” that “he suffer[ed] dizziness daily,” and that he suffered from “chronic 

migraines . . . .” (ECF No. 13, p. 3) (citing (R. 36, 38, 43-44)). In response, the Commissioner 

argues that “the ALJ acknowledged that [Lamons] reported having headaches and pain but 

properly determined that these impairments were non-severe . . . [since] the evidence does not 

support a finding of medically determinable severe migraine headaches.” (ECF No. 16, p. 6)

(citing (R. 13)).

It is the province of the ALJ to weigh competing medical opinions. See Taylor v. Astrue, 

706 F.3d 600, 602-03 (5th Cir. 2012) (“the determination of residual functional capacity is the sole 

responsibility of the ALJ”). “[C]onflicts in the evidence are for the Commissioner and not the 

courts to resolve.” Masterson, 309 F.3d at 272 (quoting Newton, 209 F.3d at 452).

Here, the ALJ acknowledged that Lamons reported having headaches but found that 

“[w]hile the claimant received treatment at times for headaches, there was no evidence that the 

claimant had frequent headaches, such that they would pose work-related limitations.” (R. 13). 

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Lamons refers to evidence in the record indicating a history of headaches (R. 953) and 

specific examples of recorded migraines and headaches. See (ECF No. 13, p. 4-5). However, 

some of the medical records to which Lamons cites in support of his position also support the 

ALJ’s decision that the migraines were not severe or frequent enough to pose work-related 

limitations. Lamons writes that he “was again seen at [William Beaumont Army Medical Center 

(WBAMC)] clinic for headaches and dizziness.” (Id. at p. 5) (citing R. 916, 923). But, the portion 

of the record, to which Lamons cites, shows Lamons “stated that he was not having any . . . 

headache[s] . . .” and was released without limitations. (R. 923).

The record also includes several clinic visits where Lamons was described as having no 

migraines or headaches. (R. 1894) (October 23, 2018 clinical report); (R. 1729) (August 28, 2018

screening); (R. 546) (July 19, 2018 screening); (R. 554, 1272) (July 10, 2018 screening); (R. 1775) 

(June 29, 2018 screening); (R. 435) (December 6, 2017 exam); (R. 1046, 1051) (October 18, 2017 

screening); (R. 1077, 1843) (June 7, 2017 screening); (R. 1265) (July 29, 2015 screening). Further, 

in a VA benefits letter, dated August 4, 2017, Lamons’s migraine attacks were described as 

occurring on average once a month over the last several months. (R. 226).

Accordingly, the Court finds that the evidence in the record does not support the contention 

that Lamons’s migraine headaches were a severe impairment or that they affected the RFC beyond 

the limitations the ALJ included. See Carrier v. Sullivan, 944 F.2d 243, 247 (5th Cir. 1991) (the 

ALJ properly resolves conflicts in the evidence).

Lamons also argues that the ALJ “erroneously disregarded” the VE’s testimony that an 

applicant who could not concentrate for three quarters of the week or month due to pain could not 

perform the three jobs that were identified by the VE. (ECF No. 13, p. 3) (citing (R. 59)). 

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However, the ALJ may reject VE testimony which is based on hypothetical assumptions that 

ultimately are rejected by the ALJ. See Owens v. Heckler, 770 F.2d 1276, 1282 (5th Cir. 1985).

Substantial evidence in the record supports the ALJ’s RFC assessment and final Decision

finding that Lamons’s migraines were not frequent such that they would pose work-related 

limitations. Accordingly, the Court finds that the ALJ properly considered Lamons’s migraines 

when formulating a limited range of light-work RFC.

2. The ALJ Appropriately Found that Lamons had no Medically Required Use of a 

Walker

Lamons argues that “[t]he ALJ erroneously held that Lamons’[s] use of a walker was 

medically unnecessary.” (ECF. No. 13, p. 5). To support this contention, Lamons relies upon his 

own testimony that “he began falling about twice a week and began using a walker.” (ECF No. 

13, p. 5) (citing (R. 38-39)). However, the ALJ found “no evidence to support the need for 

[Lamons] to require a need for a walker to ambulate.” (R. 16). Specifically, the ALJ cited to a 

clinical report from WBAMC, dated July 2018, where Lamons reported having “no difficulty 

walking” (R. 483) and to screenings at the Mendoza Soldier Family Care Clinic in October and 

November 2018, where Lamons was “observed to have a normal gait and stance with unlimited 

mobility without the use of a walker.” (R. 17) (citing (R. 1450, 1673)). 

A claimant’s RFC is “the most [the claimant] can still do despite [their] limitations.” 20 

C.F.R. § 404.1545(a)(1). The responsibility to determine the claimant’s RFC belongs to the ALJ. 

Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995). In making this determination, the ALJ must 

consider all the relevant medical and other evidence and determine the claimant’s abilities despite 

his or her physical and mental limitations. See 20 C.F.R. 404.1545(a)(3). The ALJ must consider 

the limiting effects of an individual’s impairments, even those that are not severe, and any related 

symptoms. See 20 C.F.R. §§ 404.1529, 404.1545. The relative weight to be given to the evidence 

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is within the ALJ’s discretion. Chambliss v. Massanari, 269 F.3d 520, 523 n.1 (5th Cir. 2001) 

(per curiam). “[T]he ALJ is not required to incorporate limitations in the RFC that he or she did 

not find to be supported in the record.” Bessey v. Berryhill, 1:18-CV-000078-AWA, 2019 WL 

1431599, at *4 (W.D. Tex. Mar. 29, 2019); see Morris v. Bowen, 864 F.2d 333, 336 (5th Cir. 1988)

(per curiam).

It is the claimant’s burden to establish disability and to provide or identify medical and 

other evidence of his or her impairments. See 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 404.1512(a). 

A medically determinable impairment must be established by acceptable medical sources. 20 

C.F.R. § 404.1513(a). A claimant’s own subjective complaints, without objective medical 

evidence of record, are insufficient to establish disability. See 20 C.F.R. § 404.1529(c)(3).

In order to find that a hand-held assistive device is medically required, “there must be 

medical documentation establishing the need for a hand-held assistive device to aid in walking or 

standing, and describing the circumstances for which it is needed (i.e., whether all the time, 

periodically, or only in certain situations; distance and terrain; and any other relevant 

information).” SSR 96-9p, 1996 WL 374185, at *7.

Lamons has not demonstrated that the use of the walker was medically necessary. In fact, 

Lamons regularly reported having no pain or no more than moderate pain. See (R. 1449, 1616, 

1659, 1671, 1690). The ALJ also noted Lamons’s participation in physical therapy for his bilateral 

knees and his decrease in pain with medication. (R. 17) (citing (R. 962)). 

The ALJ found that Lamons “was given a rolator [sic] walker with a seat due [to] bilateral 

knee pain and buckling in September 2018, despite minimal findings on objective imaging.” (R. 

17) (citing (R. 2022)). In fact, in July 2018, two months prior to being given a walker, Lamons 

reported no difficulty walking. (R. 17) (citing (R. 483)). Furthermore, the ALJ found it 

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“significant that [Lamons] was observed to have a normal gait and stance with unlimited mobility 

without the use of a walker” in October and November 2018, the two months after being given the 

walker. (R. 17) (citing (R. 1550, 1673)). In sum, the ALJ determined Lamons to have a limitation 

of combined standing/walking of no more than 4 hours in an 8-hour workday “[g]iven the 

relatively mild findings on imaging, and the demonstrated improvement with treatment.” (R. 17).

Lamons argues that the Fifth Circuit in Frank v. Barnhart, 326 F.3d 618, 622 (5th Cir. 

2003) warns against the ALJ “playing doctor” and making their own independent medical 

assessments. See (ECF No. 13, p. 6). Furthermore, Lamons cites to Newtown, in which the Fifth 

Circuit found that the ALJ “improperly” rejected the treating physician’s medical opinions 

“without contradictory evidence from physicians who had examined or treated [the claimant] and 

without requesting additional information from the treating physician.” Newton v. Apfel, 209 F.3d 

448, 460 (5th Cir. 2000). However, the Commissioner argues that the ALJ did not “play doctor,” 

but instead cited to contrary medical findings and to the lack of findings or observations supporting 

the medical need for a walker. (ECF No. 16, p. 11); see also Johnson v. Bowen, 864 F.2d 340, 348 

(5th Cir. 1988) (claimant’s testimony can be discounted when the evidence reflects that pain can 

be remedied or controlled by medication or therapy). 

Further, Lamons appears to be arguing that the treating physician’s opinion should be given 

controlling weight. See 20 C.F.R. § 404.1527(c)(2) (“If [the ALJ] find[s] that a treating source's 

medical opinion on the issue(s) of the nature and severity of [the claimant’s] impairment(s) is wellsupported . . . and is not inconsistent with the other substantial evidence . . . , [the ALJ] will give 

it controlling weight.”). However, for claims filed after March 27, 2017, the ALJ “will not defer 

or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or 

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prior administrative medical finding(s), including those from [the claimant’s] medical sources.” 

20 C.F.R. § 404.1520c(a); see (R. 10) (Lamons filed his claim on July 23, 2018).

Accordingly, the Court finds that the ALJ did not err in finding that Lamons had no 

medically required use of a walker when determining Lamons’s RFC.

3. The ALJ Properly Considered Lamons’s Chronic Pain and Pain Syndrome When 

Formulating the RFC

Lamons argues that the ALJ “erred in disregarding the extensive objective medical 

evidence of pain syndrome.” (ECF No. 13, p. 6). To support this contention, Lamons first argues

that he “testified that his daily pain level was at 7 (on a scale of 1 to 10) and that his mental 

impairments led to weekly VA counseling,” in addition to suffering “chronic pain 25 days out of 

the month.” (ECF No. 13, p. 7) (citing (R. 42, 46)). Further, Lamons contends that the “WBAMC 

records reflect a history of chronic knee pain” between 2014 and 2016. (ECF No. 13, p. 7). In his 

Decision, the ALJ did not find that Lamons was “pain-free,” but found the evidence did not support 

that Lamons’s “pain was of such frequency, intensity, or duration as to be disabling,” and “[t]he 

evidence of record failed to demonstrate the presence of pathological clinical signs, significant 

medical findings, or neurological abnormalities which would establish the existence of a pattern 

of pain of such severity that would contraindicate [Lamons’s] engaging in all substantial gainful 

activity.” (R. 18).

“To prove disability resulting from pain, an individual must establish a medically 

determinable impairment that is capable of producing disabling pain.” Ripley, 67 F.3d at 556; see 

also 20 C.F.R. § 404.1529(b). In considering the intensity, persistence, and limiting effects of a 

claimant’s symptoms, the ALJ examines all the available evidence. See 20 C.F.R. § 

404.1529(c)(1). The ALJ must consider whether a claimant’s statements about the intensity, 

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persistence, and limiting effects of their symptoms are consistent with the objective medical 

evidence. See 20 C.F.R. §§ 404.1529(a), (c)(4).

In addition to his testimony, Lamons highlights evidence in the record of incidents of high 

reported pain levels. (ECF No. 13, p. 7-8) (citing (R. 1725) (September 18, 2018 screening 

reporting 7 out of 10 pain); (R. 1750) (July 19, 2018 screening reporting 8 out of 10 pain); (R. 486) 

(July 18, 2018 clinical report indicating 8 out of 10 pain); (R. 555) (July 10, 2018 screening 

reporting 7 out of 10 pain when sitting, 10 out of 10 pain when standing for a long time)).

However, the record also shows that Lamons frequently reported having no pain to moderate pain.

See (R. 1616) (February 25, 2019 screening reporting 5 out of 10 pain); (R. 1659) (December 14, 

2018 screening reporting 0 out of 10 pain); (R. 1671) (November 20, 2018 screening reporting 0

out of 10 pain); (R. 1690) (October 30, 2018 screening reporting 0 out of 10 pain). The ALJ found

the lack of significant pain on these occasions to be “grossly inconsistent with [Lamons’s] 

testimony of [having 7 out of 10 pain on average]” and not supportive of any additional RFC 

restrictions. (R. 18); see Falco v. Shalala, 27 F.3d 160, 163 (5th Cir. 1994) (“pain constitutes a 

disabling condition when it is constant, unremitting, and wholly unresponsive to treatment.”)

(internal citation omitted); Harrell v. Bowen, 862 F.2d 471, 481 (5th Cir. 1988) (despite chronic 

pain syndrome and degenerative disc disease, the ALJ properly determined that the claimant could 

engage in light work activity).

Finally, Lamons cites to visits to the WBAMC clinic for physical therapy and pain 

management in July and August of 2016 as evidence of the severity of his pain. (ECF No. 13, p. 

8). However, the cited medical records indicate pain levels before treatment ranging from 2 out 

of 10 to 5 out of 10 and decreased pain levels after treatment ranging from 0 out of 10 to 4 out of 

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10. (R. 827-28); see Johnson, 864 F.2d at 348 (claimant’s testimony can be discounted when the 

evidence reflects that pain can be remedied or controlled by medication or therapy).

Substantial evidence supports the ALJ’s decision that Lamons’s pain is not disabling, and 

Lamons has not shown that his pain requires restrictions greater than those reflected in the ALJ’s 

RFC findings. See (R. 15). Accordingly, the Court finds that the ALJ properly considered and 

weighed the evidence of Lamons’s chronic pain and pain syndrome when formulating the RFC.

4. The ALJ Properly Assessed Lamons’s 100 Percent VA Disability Rating

Lamons argues that “the ALJ erroneously gave no weight to [the] VA’s disability rating.” 

(ECF No. 13, p. 8). Lamons had “a 100% VA disability rating due to migraines, sleep apnea, 

chronic adjustment disorder, intervertebral disc syndrome and degenerative arthritis of the spine.” 

(Id.) (citations omitted). 

The governing Social Security regulation provides that disability decisions by 

governmental agencies, such as the VA, are not binding on the Commissioner because those 

decisions are made according to separate rules. 20 C.F.R. § 404.1504. Prior to an amendment to 

the regulation in 2017, courts held that a VA rating of disability is “evidence that is entitled to a 

certain amount of weight and must be considered by the ALJ.” Chambliss, 269 F. 3d at 522; see 

also Loza v. Apfel, 219 F. 3d 378, 394-95 (5th Cir. 2000) (“A VA rating of 100 percent service 

connected disability is not legally binding on the Commissioner, but is evidence that is entitled to 

great weight and should not have been disregarded by the ALJ.”). However, the regulation was 

amended in 2017 such that the Commissioner does not need to “provide any analysis in [the] 

determination or decision about a decision made by any other governmental agency or 

nongovernmental entity about whether [the claimant is] disabled, blind, employable, or entitled to 

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any benefits.” 20 C.F.R. § 404.1504 (binding all Social Security “claims filed . . . on or after 

March 27, 2017 . . .”) (emphasis added). 

In the instant case, the amended version of 20 C.F.R. § 404.1504 governs because Lamons

filed for disability benefits on July 23, 2018. (R. 199). Therefore, Lamon’s reliance upon Fifth 

Circuit precedents involving Social Security claims filed before March 2017, is not applicable to 

the instant case. See (ECF No. 13, p. 8) (citing Salmond v. Berryhill, 892 F. 3d 812, 815 (5th Cir. 

2018) (involving a claim filed in 2013); Lozal, 219 F. 3d at 380 (involving a claim filed on June 

10, 1993)). Accordingly, because the ALJ is not obligated to give any weight or discuss the VA 

disability rating, the Court finds that the ALJ did not err in giving no weight to Lamons’s 100 

percent VA disability rating under 20 C.F.R. § 404.1504.

IV. CONCLUSION

Based on the foregoing, IT IS HEREBY ORDERED that the Commissioner’s decision 

denying benefits is AFFIRMED.

SIGNED and ENTERED this 28th day of October, 2020.

ANNE T. BERTON

UNITED STATES MAGISTRATE JUDGE

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