IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

EL PASO DIVISION

LLOYD VERNELL ALLEN JR.,

Plaintiff,

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v. No. EP-20-CV-00045-ATB

ANDREW M. 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 Lloyd Vernell Allen (“Allen”) 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 October 20, 2017, Allen filed an application for DIB, alleging a disability onset date on 

February 15, 2017. (R. 15). Allen’s application was denied initially on February 21, 2018, and 

upon reconsideration on July 6, 2018. (R. 15). An Administrative Law Judge (“ALJ”) held a 

hearing on March 27, 2019. (R. 40-67). The ALJ issued a decision (“Decision”) on May 22, 2019, 

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finding that Allen was not disabled. (R. 17-26). On January 3, 2020, the Appeals Council denied 

Allen’s request for review of the ALJ’s Decision. (R. 1-5).

II. ISSUE

Allen presents the following issues for review:

1. Whether “[t]he ALJ erred in giving no weight to Mr. Allen’s [Veterans’ 

Administration (“VA”)] disability rating of 90%, holding that it was not relevant”1

(ECF No. 10, p. 3); and

2. Whether “[t]he ALJ erred in failing to fully consider the medical evidence of 

acute stress disorder and adjustment disorder with mixed anxiety and Traumatic 

Brain Injury (“TBI”). (Id. at 4).

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 

1 Although Allen alleges the ALJ gave improper weight to the VA disability rating, Allen additionally alleges that the 

ALJ improperly “rejected the medical opinions of treating and examining doctors alike about Allen’s disability and 

unemployability rating without contradictory evidence from a medical expert of any kind.” (ECF No. 10, p. 4).

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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 Allen met “the insured status requirements of the 

Social Security Act through December 31, 2021.” (R. 17). In addition, the ALJ found that Allen 

“ha[d] not engaged in substantial gainful activity since February 15, 2017, the amended alleged 

onset date.”2 (R. 17). At step two, the ALJ found that Allen:

has the following sever impairments: lumbar degenerative disc disease status post 

fusion, cervical degeneration disc disease, degenerative joint disease of the left 

knee, right hip degenerative joint disease, migraine headaches, left shoulder 

tendinosis status post-surgery, insomnia, chronic pain syndrome, post-traumatic 

stress disorder, and major depressive disorder.

(R. 17). Further, the ALJ further found that “[t]he above medically determinable impairments 

significantly limit the ability to perform basic work activities as required by SSR 85-28.” (R. 17). 

At step three, the ALJ found that Allen did not have an impairment or combination of impairments 

that met or medically equaled the severity of any of the listed impairment. (R. 17). 

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

has the residual function capacity to perform light work . . . except [Allen] must 

have a sit/stand option, defined as [Allen] being allowed to sit or stand every one 

hour, and can occasionally climb ramps and stairs, never climb ladders, ropes, and 

scaffolds, occasionally balance, stoop, kneel, crouch, and crawl, occasionally reach 

overhead bilaterally, must avoid all exposure to hazards such as operational control 

of moving machinery and unprotected heights, can do no commercial driving, and 

is limited to simple, routine, and repetitive tasks and superficial interaction with the 

public and co-workers.

(R. 19). At step four, the ALJ determined that Allen could not perform any past relevant work. 

(R. 24). Subsequently, at step five, the ALJ found that “there are jobs that exist in significant 

numbers in the national economy that [Allen] can perform.” (R. 25). Accordingly, the ALJ found 

2 At the hearing, the ALJ granted Allen’s motion to “amend[] his alleged onset date to February 15, 2017” from 

October 1, 2016. (R. 15). 

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that Allen was not disabled within the meaning of the Social Security Act through the Decision 

date. (R. 26).

c. Analysis

1. Consideration by ALJ of Allen’s VA Disability Rating and its Supporting Medical 

Opinions 

Allen argues that “[t]he ALJ failed to properly weigh Allen’s VA disability rating by 

erroneously holding that it was irrelevant and would not be addressed . . . despite the VA’s 

extensive medical evaluations and well-crafted opinions.” (ECF No. 10, p. 3). At the hearing,

Allen’s attorney cited Allen’s “90% VA disability rating that corresponds with his impairments of 

PTSD, his migraine headaches, his degenerative arthritis of his spine, his tinnitus . . . limited 

extension of the thigh, [which] corresponds with his hip problems” (R. 44-45) and reiterated in 

his brief the “Paralysis of the Median Nerve [and] Limited Fusion of the Knee.” (ECF No. 10, p. 

3).

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 v. Massanari, 269 F. 3d 520, 522 (5th Cir. 

2001); 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 

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entitled to any benefits.” 20 C.F.R. § 404.1504 (binding all social security “claims filed . . . on or 

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

In this case, the amended version of 20 C.F.R. § 404.1504 governs because Allen filed for 

disability benefits on October 20, 2017. (R. 15). Based upon the regulation, the ALJ explained 

during the administrative hearing that “the VA disability rating was not relevant and [would] not 

be addressed in the [D]ecision.” (R. 45). Further, during the administrative hearing, the 

understanding by Allen’s attorney was “that the VA disability rating is not taken into account,”

but that there was “case law within the Fifth Circuit [mentioning] some varying [sic] in that.” (R. 

66). However, Allen’s reliance upon Fifth Circuit precedents involves social security claims filed 

before March 2017, that are not applicable to this case. See, e.g., 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). The ALJ reiterated in the Decision that “[under the current rules 

for evaluating medical evidence in claims filed after March 27, 2017, I did not provide articulation 

about evidence that is neither inherently valuable nor persuasive . . . [including] decisions by other 

governmental . . . entities.” (R. 23).

Although the Commissioner does not need to “provide any analysis” regarding the VA 

disability rating, the Commissioner is required to “consider all of the supporting evidence 

underlying the other governmental agency or nongovernmental entity’s decision” that the 

Commissioner receives as evidence. 20 C.F.R. § 404.1504 (emphasis added). Allen’s VA records,

which included the disability rating and underlying medical records, were marked as Exhibits 7F 

and 8F. (R. 44). The ALJ considered and cited throughout his Decision to the VA records that

included the VA disability rating. For example, the ALJ considered a January 2016 nerve testing

medical record, found in the VA records, and concluded that Allen had a non-severe impairment 

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of bilateral carpal tunnel syndrome. (R. 17-18) (citing Ex. 8F). Furthermore, the ALJ considered 

VA records indicating Allen’s reported lack of sleep in late 2018 and Allen’s denial of headaches 

and joint and muscle pain in March and May of 2017. (R. 21-22) (citing Ex. 8F). Finally, the ALJ

considered “[s]ubsequent [VA] treatment records [that] noted [Allen’s] affect was at times mildly 

constricted.” (R. 22) (citing Ex. 7F). Since the ALJ is only required to consider all of the 

supporting evidence underlying the VA disability rating, the citation to the VA records, which 

included the VA disability rating, is sufficient evidence that “the ALJ’s decision is consistent with 

the requirements of 20 C.F.R. § 404.1504.” See Vadney v. Saul, No. CV H-19-1818, 2020 WL 

3847844, *5 (S.D. Tex. June 19, 2020), report and recommendation adopted, No. CV H-19-1818, 

2020 WL 3839611 (S.D. Tex. July 8, 2020) (holding that multiple citations to the exhibits 

containing the VA records throughout the ALJ’s decision were sufficient evidence that the ALJ 

“considered the VA’s disability ratings and the supporting medical records”).

Furthermore, the ALJ properly considered each of the underlying symptoms of Allen’s VA 

disability rating. Allen concedes that “[t]he ALJ correctly characterized Allen’s chronic PTSD 

with Major Depressive Disorder disability restrictions as having ‘difficulty remembering,’ [] 

‘deficits in judgement,’ [and] was only getting 3 hours of sleep.” (ECF No. 10, p. 3 fn 2). 

However, Allen contends that the ALJ “ignored the evidence citing that the claimant’s treatment 

has been routine and conservative only.” (Id.). Despite this contention, Allen fails to identify any 

evidence in the record that the ALJ’s Decision ignored regarding the level of treatment Allen 

received. (Id. at 3-4). On the contrary, the ALJ did consider Allen’s treatment for PTSD, which 

“included attendance at a support group through the Department of Veteran Affairs.” (R. 22). In 

addition, the ALJ noted that the VA records of treatment reflected that the cumulative effect of 

Allen’s impairments “was at times mildly constrict[ing].” (R. 22) (emphasis added). Finally, the 

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ALJ considered the report in the record from Allen’s January 2018 psychological consultative 

examination that “noted [Allen] had no history of inpatient psychiatric treatment.” (R. 23).

Regarding Allen’s migraine headaches, the ALJ concluded that Allen had the severe 

impairment of migraine headaches. (R. 17); see also (R. 20) (“[t]he record supports a finding of 

. . . migraine headaches”); (R. 20-22) (outlining the history of Allen’s migraine headaches). For 

Allen’s degenerative arthritis of the spine, the ALJ concluded that lumbar degenerative disc 

disease post fusion and cervical degenerative disc disease were severe impairments for Allen. (R. 

17). Additionally, the ALJ considered evidence of back pain, a L4/L5 fusion, and degenerative 

disc disease in his Decision. See (R. 20). 

Further, the ALJ’s Decision reflects consideration of the evidence of paralysis of the 

median nerve because the ALJ found, while citing to the VA records, a non-severe impairment of 

bilateral carpel tunnel syndrome where the symptoms are caused by compression of the median 

nerve in the carpel tunnel. (R. 17-18). In considering Allen’s limited fusion of the knee, the ALJ 

determined Allen had a severe impairment of “degenerative joint disease of the left knee.” (R. 

17). Additionally, the ALJ considered Allen’s testimony regarding his left knee pain and his use 

of a brace on his knee. (R. 20). Further, the ALJ determined his finding was supported in the 

record by Allen’s “history of ... left knee pain,” Allen’s “left knee autologous chondrocyte 

implantation,” and the “reduced range of motion in [Allen’s] left knee.” (R. 20-21).

Regarding Allen’s tinnitus, the ALJ considered the physical consultative examination by 

Dr. Augustine Eleje that stated Allen “ha[d] no limitations with . . . hearing.” (R. 23). The ALJ 

determined that “[t]he record contain[ed] no evidence that is inconsistent with [Dr. Eleje’s] 

statement as to the absence of . . . hearing . . . limitations.” (R. 23). Additionally, there is evidence 

within the VA records of no tinnitus. See, e.g., (R. 1264) (“Ears: no change in hearing, no tinnitus, 

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no bleeding, no vertigo.”); (R. 1519) (“Ears – External ear and canal” marked “Normal”); (R. 

1604) (“Ears: denies any decreased hearing, earache or ear discharge”). 

Finally, regarding Allen’s limited extension of the thigh, which Allen’s attorney asserted 

at the hearing “corresponds with [Allen’s] hip problems” (R. 44-45), the ALJ determined that 

Allen had the severe impairment of “right hip degenerative joint disease.” (R. 17). To reach this 

determination, the ALJ considered Allen’s testimony of “hip pain” and the record’s support for 

“chronic right hip pain.” (R. 20). The ALJ further considered three MRIs from 2016 of Allen’s 

right hip that found “[a] labral tear and mild subchondral sclerosis consistent with minimal early 

osteophytic changes,” “mild bilateral joint space narrowing and minimal osteoarthritis,” and “mild 

joint space narrowing and minimal osteoarthritis.” (R. 21). As a result, the ALJ determined that 

Allen’s “history of back and knee surgeries, degenerative changes in his right hip, and residual 

pain in those areas, [Allen] will require a sit/stand option as stated in his residual functional 

capacity.” (R. 23); (R. 24). 

The ALJ in this case had no obligation to provide “any analysis in his determination or 

decision” regarding the VA disability rating for a claim filed after March 2, 2017. 20 C.F.R. § 

404.1504. Additionally, the ALJ’s citation to the exhibits containing the VA records and the ALJ’s 

determination of Allen’s severe and non-severe conditions that correspond with the symptoms in 

the VA record are sufficient evidence that the ALJ properly “consider[ed] all of the supporting 

evidence underlying” the VA disability rating. Accordingly, the Court finds that the ALJ satisfied 

his obligations under 20 C.F.R § 404.1504 by properly considering the medical evidence

underlying Allen’s VA disability rating, while simultaneously not giving weight to the VA 

disability rating. 

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2. Consideration by ALJ of Allen’s acute stress disorder, adjustment disorder with 

mixed anxiety, and Traumatic Brain Injury (“TBI”)

Allen’s second contention is the ALJ failed “to fully consider the medical evidence of acute 

stress disorder and adjustment order with mixed anxiety and Traumatic Brain Injury (“TBI”)”

(collectively “Disorders”). (ECF No. 10, p. 4). Allen contends that the William Beaumont 

Medical Center (“WBAMC”) records reflect these conditions, and that the ALJ erred in failing to 

consider the Disorders as severe impairments. (ECF No. 10, p. 4-5).

“Severe impairment has a specific—if somewhat surprising—meaning.” Salmond, 892 F. 

3d at 817. The Fifth Circuit has repeatedly held that “[a]n impairment can be considered as not 

severe only if it is a slight abnormality having such minimal effect on the individual that it would 

not be expected to interfere with the individual’s ability to work, irrespective of age, education or 

work experience.” Id. (quoting Loza, 219 F.3d at 391) (emphasis and brackets in original); see 

also Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985). Next, “once a severe impairment is 

determined to exist, all medically determinable impairments [including non-severe ones] must be 

considered in the remaining steps of the sequential analysis.” Burqette v. Colvin, No. CIV. A. 12-

1155, 2013 WL 3776291, at *3 (W.D. La. July 15, 2013). 

Furthermore, the ALJ’s determination of non-severity cannot constitute reversible error 

when the potential error in the determination is negated by the ALJ’s analysis beyond step two of 

the evaluation process. Horn v. Colvin, No. CV G-15-126, 2017 WL 476740, at *3 (S.D. Tex. 

Feb. 2, 2017); see, e.g., Jones v. Bowen, 829 F. 2d 524, 527 n. 1 (5th Cir. 1987) (“Appellant also 

advances the rather disingenuous argument that the district court applied the incorrect legal 

standing in determining the severity of his impairments . . . [when the ALJ] proceeded through the 

sequential evaluation to conclude at the fourth and fifth levels that appellant could perform past 

relevant work and could perform a full range of light work activities.” ); Chaparro v. Bowen, 815 

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F. 2d 1008, 1011 (5th Cir. 1987) (“this case did not turn on whether or not [claimant’s] impairment 

was severe, but on whether [claimant] could return to his past relevant work . . . Thus, [claimant’s]

argument is irrelevant to the disposition of his case.”).

In this case, Allen asserts the “records reflect the [Disorders] for the period January 7, 2016 

– March 13, 2019).” (ECF No. 10, p. 4) (citing R. 781-84, 800, 802, 804, 858). Allen was 

examined for TBI and diagnosed with anxiety in October 2016. (R. 1109-10). These records show 

that the Disorders predate Allen’s alleged onset date of February 15, 2017. (R. 15). Contrary to 

Allen’s assertion, Allen’s ability to work despite the Disorders further supports the ALJ’s finding 

of not disabled. See Vaughan v. Shalala, 58 F. 3d 129, 131 (5th Cir. 1995); Fraga v. Bowen, 810 

F. 2d 1296, 1305 & n. 11 (5th Cir. 1987) (ability to work despite pre-existing condition supports

the ALJ’s finding of not disabled). Additionally, Allen’s reliance on the “ongoing diagnos[es]” of 

the Disorders is misplaced because “his diagnos[es] constitute[] only part of the evidence the 

Secretary was required to, and did, weigh in determining whether [Allen] was disabled.” Johnson 

v. Sullivan, 894 F. 2d 683, 685 (5th Cir. 1990). A “diagnosis of symptoms or a condition, without 

more, is insufficient to establish that a condition is “severe.” Musgrove v. Astrue, No. 3-07-CV0920-BD, 2009 WL 3816669, at *3 (N.D. Tex. 2009). Instead, the ALJ fully accounted for all of 

Allen’s supported impairments in his residual functioning capacity (“RFC”) assessment, including 

those that were not severe. (R. 17-19). 

Allen was examined for TBI by Dr. Lloveras of the El Paso Sleep Disorder Center in 

October 2016. (R. 1139). The symptoms resulting from Allen’s TBI were headache, insomnia, 

memory/cognitive symptoms, and mood symptoms. (R. 1145-46). The ALJ determined in the 

Decision that Allen had the severe impairments of “migraine headaches” and “insomnia.” (R. 17). 

Further, the ALJ considered Allen’s diagnosis of PTSD, for which Allen reported, inter alia,

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symptoms of “poor memory.” (R. 22). However, the ALJ concluded Allen had a “moderate 

limitation” “[i]n understanding, remembering, or applying information” due to the record showing

that Allen “had intact fund of information and memory at his psychological consultative 

examination.” (R. 18) (citing 1161-67). Finally, the ALJ considered the “mood symptoms” from 

Allen’s TBI by finding severe impairments of “post-traumatic stress disorder[] and major 

depressive disorder.” Compare (R. 17), with (R. 1280) (describing Allen’s mood symptoms as 

“symptoms of anxiety, irritability, and being easily annoyed. [Allen a]lso states depression and a 

prior diagnosis or evaluation for PTSD.”). 

Regarding Allen’s alleged mental impairments of acute stress disorder and adjustment 

disorder with mixed anxiety, the ALJ properly considered the impact of these conditions through 

the ALJ’s finding of Allen’s PTSD as severe. The ALJ addressed descriptions of what work Allen 

could perform from a mental standpoint by: 1) the consultative psychological examiner Dr. 

Randall Rattan (R. 23-24); 2) Dr. Jessaka Fife (R. 22, 1223-24); and 3) State agency consultants 

Dr. Leela Reddy and Dr. Matthew Turner (R. 24). However, the ALJ found greater mental 

limitations than these assessments due to Allen’s severe condition of PTSD. (R. 19, 24). 

Consequently, since the ALJ assessment of mental limitations due to PTSD was greater than the 

less restrictive mental assessments of acute stress disorder and adjustment disorder with mixed 

anxiety, the Court finds that the ALJ’s assessment of mental RFC was supported by substantial 

evidence. See Hall v. Berryhill, No. CV 16-15485, 2017 WL 2385484, at *6 (E.D. La. May, 18, 

2017) (“the Court is hard-pressed to see how Plaintiff was prejudiced by the ALJ’s adoption of an 

RFC assessment that was even more restrictive than that of the consultative evaluator”) (emphasis 

added) report and recommendation adopted, No. CV 16-15485, 2017 WL 2391068 (E.D. La. June 

1, 2017).

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Allen does not identify any medical evidence in the record showing that he had greater 

mental limitations than the ALJ determined. See (ECF No. 10, p. 4-5). Determination of a 

claimant’s RFC is “the sole responsibility of the ALJ.” Taylor v. Astrue, 706 F. 3d 600, 602-03 

(5th Cir. 2012). In determining Allen’s mental RFC, the ALJ relied on the opinions of the 

consultative psychological examiner, other examining sources, and State agency consultants. After 

considering the records, the ALJ assessed more restrictions in the mental RFC than the examining 

doctors and State agency consultants found. See (R. 23-24). Substantial evidence in the record 

supports the ALJ’s mental RFC assessment and final Decision. Accordingly, the Court finds that 

the ALJ properly considered all of Allen’s impairments when assessing his RFC.

IV. CONCLUSION

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

denying benefits is AFFIRMED.

SIGNED and ENTERED this 14th day of August, 2020.

ANNE T. BERTON

UNITED STATES MAGISTRATE JUDGE

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