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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

EL PASO DIVISION

FREDDIE AGUILAR,

Plaintiff,

v.

KILOLO KIJAKAZI,1

COMMISSIONER OF THE SOCIAL 

SECURITY ADMINISTRATION,

Defendant.

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NO. EP-20-CV-119-MAT

MEMORANDUM OPINION AND ORDER

This is a civil action seeking judicial review of an administrative decision pursuant to 

42 U.S.C. § 405(g). Plaintiff Freddie Aguilar (“Plaintiff”) appeals from the decision of the 

Commissioner of the Social Security Administration (the “Commissioner”) denying his

application for Social Security Disability Insurance Benefits (“DIB”). (ECF No. 5). In accordance 

with 28 U.S.C. § 636(c) and Appendix C, Rule 1(i) of the Local Court Rules of the Western District 

of Texas, the parties have consented to proceed with this case before the undersigned, including 

all proceedings and the entry of final judgment. (ECF Nos. 3, 15). For the reasons set forth below, 

the Commissioner’s decision be AFFIRMED.

I. BACKGROUND

Plaintiff was forty-nine years old at the time the Administrative Law Judge (“ALJ”) 

issued his decision on May 31, 2019. (R. 13, 23).2 His relevant prior job experience included 

work as a certified nurse assistant, truck driver, cashier, manager, and dispatcher. (R. 23). On 

1 Kilolo Kijakazi is now the Acting Commissioner of the Social Security Administration (SSA). Pursuant to Federal 

Rule of Civil Procedure 25(d), Kilolo Kijakazi is substituted for Acting Commissioner Andrew Saul as the 

defendant in this case.

2 Reference to the record of administrative proceedings is designated by (R. [page number(s)]). 

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December 8, 2017, Plaintiff filed a Title II application for a period of disability and DIB, as well 

as a Title XVI application for supplemental security income (“SSI”), both alleging a disability 

onset date of December 1, 2017. (R. 16). Aguilar’s applications were denied initially on February 

23, 2018, and upon reconsideration on July 24, 2018. (R. 16). The ALJ held a video hearing on 

March 4, 2019. (R. 16). The ALJ issued a decision (“Decision”) on May 31, 2019, finding that 

Aguilar was not disabled on both applications. (R. 24). On March 20, 2020, the Appeals Council 

denied Aguilar’s request for review of the ALJ’s Decision. (R. 1).

II. DISCUSSION

A. STANDARD OF REVIEW

The Court’s review is limited to a determination of whether the Commissioner’s final 

decision “is supported by substantial evidence on the record as a whole and whether the 

[Commissioner] applied the proper legal standard[s].” Myers v. Apfel, 238 F.3d 617, 619 (5th Cir. 

2001) (internal quotation marks omitted) (citing Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 

1994)). “Under the substantial-evidence standard, a court looks to an existing administrative record 

and asks whether it contains ‘sufficien[t] evidence’ to support the agency’s factual 

determinations.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (alteration in original) (quoting 

Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence “means—and means 

only—‘such relevant evidence as a reasonable mind might accept as adequate to support a 

conclusion.’” Id. (quoting Consol. Edison Co., 305 U.S. at 229). It is more than a scintilla of 

evidence, but less than a preponderance. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995) (citing 

Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993)). 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) (internal quotation marks omitted) 

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(quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)).

In determining whether there is substantial evidence to support the findings of the 

Commissioner, the Court may not reweigh the evidence or try the issues de novo. Newton v. Apfel, 

209 F.3d 448, 452 (5th Cir. 2000). The Court may not substitute its own judgment “even if the 

evidence preponderates against the [Commissioner’s] decision.” Harrell v. Bowen, 862 F.2d 471, 

475 (5th Cir. 1988) (citation omitted). “Conflicts in evidence are for the [Commissioner] and not 

the courts to resolve.” Spellman, 1 F.3d at 360 (internal quotation marks omitted) (quoting Selders 

v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990)). If the Commissioner’s findings are supported by 

substantial evidence, “they are conclusive and must be affirmed.” Id. (citations omitted). However, 

“[t]he ALJ’s decision must stand or fall with the reasons set forth in the ALJ’s decision, as adopted 

by the Appeals Council.” Newton, 209 F.3d at 455.

B. FIVE-STEP SEQUENTIAL EVALUATION PROCESS

Under the Social Security Act (the “Act”), “disability” means, in relevant part, the 

“inability to engage in any substantial gainful activity by reason of any medically determinable 

physical or mental impairment which can be expected to result in death or 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),

1382c(a)(3)(A). This means that:

An individual shall be determined to be under a disability only if his 

physical or mental impairment or impairments are of such severity 

that he is not only unable to do his previous work but cannot, 

considering his age, education, and work experience, engage in any 

other kind of substantial gainful work which exists in the national 

economy. . . . 

Id. §§ 423(d)(2)(A), 1382c(a)(3)(B).

The Social Security Administration Regulations (the “Regulations”) prescribe a “five-step 

sequential evaluation process” to determine whether a claimant is disabled. 20 C.F.R. 

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§§ 404.1520(a)(1), 416.920(a)(1). If at any step of the process the ALJ finds that the claimant is 

either disabled or not disabled, the ALJ will make his determination as to disability and will not 

continue with a consideration of the remaining steps. Id. §§ 404.1520(a)(4), 416.920(a)(4).

At the first step, the ALJ determines whether the claimant is engaged in substantial gainful 

activity. Id. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If so, the ALJ will find the claimant is not 

disabled and will not continue to step two. Id. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).

At the second step, the ALJ considers the medical severity of the claimant’s impairment(s). 

Id. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination of impairments is 

severe within the meaning of the Regulations if it “significantly limits” an individual’s “physical 

or mental ability to do basic work activities.” Id. §§ 404.1520(c), 416.920(c). If the ALJ determines 

that the claimant does not have a severe medically determinable physical or mental impairment or 

combination of impairments that meet the duration requirement, then the ALJ will find that the 

claimant is not disabled and will not continue to step three. Id. §§ 404.1520(a)(4)(ii),

416.920(a)(4)(ii).

At the third step, the ALJ also considers the medical severity of the claimant’s 

impairment(s), specifically whether the impairment(s) meets the duration requirement and “meets 

or equals one of [the] listings in appendix 1 of this subpart.” Id. §§ 404.1520(a)(4)(iii), 

416.920(a)(4)(iii). If so, the claimant will be found to be disabled, and the ALJ will not continue 

to step four. Id. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).

Before proceeding to the fourth step, the ALJ will make a finding as to the claimant’s 

residual functional capacity (“RFC”), “based on all the relevant medical and other evidence” in 

the administrative record. Id. §§ 404.1520(e), 416.920(e). A claimant’s RFC is the most he can 

still do despite his physical and mental limitations that affect what he can do in a work setting. Id.

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§§ 404.1545(a)(1), 416.945(a)(1). When assessing the RFC, the ALJ will consider all of a 

claimant’s medically determinable impairments, not just ones that the ALJ determines are severe. 

Id. §§ 404.1545(a)(2), 416.945(a)(2).

At step four of the five-step sequential evaluation process, the ALJ considers the RFC 

assessment and the claimant’s past relevant work. Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If 

the ALJ determines that, considering the RFC, the claimant can still do his past relevant work, then 

the ALJ will find that the claimant is not disabled and will not continue to step five. Id. Finally, at 

step five, the ALJ considers the claimant’s RFC, age, education, and work experience to determine 

whether the claimant can adjust to other work. Id. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the 

ALJ finds that the claimant cannot, then the ALJ will find that the claimant is disabled. Id.

C. THE ALJ’S WRITTEN DECISION

In his written Decision, the ALJ analyzed Plaintiff’s applications for a period of disability

and DIB and his application for SSI using the five-step sequential evaluation process set forth in 

the Regulations. (R. 16–24). Before beginning the evaluation process, the ALJ found that Plaintiff 

“meets the insured status requirements of the Social Security Act through December 31, 2021.” 

(R. 18). At step one of the five-step sequential evaluation process, the ALJ found that Plaintiff had 

not engaged in substantial gainful activity since December 1, 2017, the alleged onset date of 

disability. (R. 18). Proceeding to step two, the ALJ found that Plaintiff had the following severe3

impairments: diabetes and diabetic neuropathy. (R. 18). At step three, the ALJ concluded that 

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

3The ALJ also determined that the following impairments were not severe: foot surgery of the right foot, hypertension, 

gout, obesity, degenerative disc disease (“DDD”), carpal tunnel syndrome, and a sprained right ankle. (R. 18–19).

Regarding the DDD, the ALJ notes the evidence does not support that this is a consistent problem or that the claimant 

was prescribed a cane to assist in ambulation. (R. 19). After considering the four broad areas of mental functioning 

set out in the disability regulations for evaluating mental disorders and in the Listing of Impairments (20 C.F.R. § 404, 

Subpart P, Appendix 1), the ALJ also determined that the claimant’s medically determinable mental impairment of 

depression was not severe. (R. 19–20).

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the severity of one of the listed impairments in the Regulations. (R. 20).

Before proceeding to step four, the ALJ found that Plaintiff had the RFC to perform the 

full range of medium work as defined by the Regulations.

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(R. 21). At step four, considering 

Plaintiff’s RFC and his past relevant work, the ALJ determined that Plaintiff was capable of 

performing his past relevant work as a certified nurse assistant, truck driver, cashier, manager, and 

dispatcher and is not disabled. (R. 23). Accordingly, the ALJ determined that Plaintiff was not 

under a disability between the alleged onset date and the date of his Decision and, therefore, did 

not proceed to step five of the five-step sequential evaluation process. (R. 24). For his application 

for a period of disability and DIB, Plaintiff was deemed not disabled under sections 216(i) and 

223(d) of the Act. (R. 24). Based on the application for SSI, Plaintiff was deemed not disabled

under section 1614(a)(3)(A) of the Act. (R. 24).

D. THE ALJ PROPERLY CONSIDERED AGUILAR’S CHRONIC BACK PAIN AND SEVERE STENOSIS 

WHEN FORMULATING THE RFC

Plaintiff argues that the ALJ “disregarded the medical evidence that reflects a chronic back 

condition that failed to respond to physical therapy and medication and required surgical 

intervention.” (ECF No. 17, p. 2). To support this contention, Plaintiff lists excerpts from medical 

records dating from November 20, 2017, through March 10, 2019, detailing notes reflecting: 

treatment and prescription of pain killers (R. 347-50) and a referral to a doctor (R. 438) for foot 

and back pain; “throbbing; sharp; deep” pain5description for bilateral pain in foot and heel pain 

4 According to the Regulations: “Medium work involves lifting no more than 50 pounds at a time with frequent 

lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that he or 

she can also do sedentary and light work.” 20 C.F.R. §§ 404.1567(b), 416.967(b).

5 Plaintiff cites to p. 445-46 and p. 585 of the record referring to “worsening pain level (10/10) and ‘throbbing, sharp 

and deep’ pain and back pain.” However, p. 445-46 in the record is a doctor visit to address “bilateral pain in foot.” 

(R. 444). Similarly, p. 585 in the record is a doctor’s visit addressing “heel pain.” (R. 584).

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(R. 444-6, 585); use of a cane post-foot surgery6(R. 537, 653); post-surgery foot and pain (R. 657-

58); physical therapist documentation of a lower back pain diagnosis (R. 728); ineffectiveness of 

medication for back and bilateral leg pain (R. 814, 820); MRI lumbar spine diagnosis for “L4-L6 

severe [right and minimal left] foraminal stenosis, L3-L4 minimal right foraminal stenosis, L6-S1 

posterior disc fissure” (R. 933-34); lumbar radiculopathy treatment (R. 928-29); lower back pain 

with constant symptoms and a pain level of 7 on a scale of 10 (R. 901); and the ability to do workrelated activities on a regular basis (R. 893-98). (ECF No. 17, p. 2-4). Plaintiff also included 

excerpts from medical records from March 7, 2019, through March 26, 2019, that reflect a 

diagnosis of lumbar radiculopathy (R. 58, 77), neurogenic claudication (R. 58, 77), lumbar stenosis 

(R. 58, 77), Transforaminal Lumbar Interbody Fusion (TLIF) (R. 48, 58), and foraminal stenosis 

(R. 58, 77).

First, the ALJ’s Decision and the list of exhibits considered by the ALJ included medical and 

other records from November 20, 2017 to February 26, 2019. The Plaintiff does not provide 

evidence to support the allegation that the ALJ omitted or rejected these records. Contrary to 

Plaintiff’s assertion, the ALJ also did not omit or reject the medical records from March 7, 2019 

through March 26, 2019, since Plaintiff never submitted them to the ALJ. (R. 2). These records 

were only submitted to the Appeals Council after the ALJ’s Decision on May 31, 2019. (R. 2).

“When confronted with new and material evidence, the Appeals Council ‘shall evaluate the entire 

record including the new and material evidence . . . . [and i]t will then review the case if it finds 

that the administrative law judge’s action, findings, or conclusion is contrary to the weight of the 

evidence currently of record." Whitehead v. Colvin, 820 F.3d 776, 780 (5th Cir. 2016) (quoting 20 

C.F.R. § 404.970(b)); see 20 C.F.R. § 416.1470(b). If the Appeals Council “conclude[s] that the 

6 Plaintiff mentions that the treating physician observes him using a cane, but a record he cites only mentions 

Plaintiff receiving a CAM boot for weightbearing and a prescription for pain medication post-surgery. (R. 647).

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additional information d[oes] not provide a basis for changing the ALJ’s decision[, then] the ALJ’s

decision bec[o]me[s] that Commissioner’s final decision.” Whitehead, 820 F. 3d at 779. Finally, 

“the regulations do not require the Appeals Council to discuss the newly submitted evidence, nor 

is the Appeals Council required to give reasons for denying review.” Id. at 780.

1. NEW RECORDS SUBMITTED PRIOR TO THE ALJ’S MAY 31, 2019 DECISION

The new medical records first submitted to the Appeals Council cover Plaintiff’s treatment 

both before and after the ALJ’s Decision. For the records prior to the Decision,7the Appeals 

Council determined that they “do[] not show a reasonable probability that [the records] would 

change the outcome of the decision.” (R. 2); see Whitehead, 820 F.3d at 780 (“we conclude that 

the newly submitted evidence was not so significant as to require remand to the ALJ for additional 

consideration.”). In his Brief, Plaintiff discusses his medical treatment records beginning from 

March 7, 2019, continuing through March 10, 2019. (ECF No. 17, p. 4). Plaintiff contends that 

“the objective medical evidence of chronic back pain and severe stenosis is substantial and 

disregarding it cannot comprise substantial evidence.” Id. at 5. Because certain medical records 

from March 7, 2019, through March 26, 2019 were not submitted to the ALJ (R. 2), the Court finds 

that they could not have been considered in the Decision and thus were not improperly rejected by 

the ALJ. Moreover, the ALJ expressly considered the rest of the medical records identified in 

Plaintiff’s Brief, covering from November 20, 2017 to January 10, 2019 (see ECF No. 17, p. 2-5), 

and considered Plaintiff’s testimony about pain in his lower back and neck, as well as Plaintiff’s 

use of a cane at the hearing when making the RFC determination. (R. 21). The medical records 

considered by the ALJ and the medical records submitted to the Appeals Council reinforce 

Plaintiff’s back and spinal stenosis issues and the limitations that were considered and factored in 

7 The Appeals Council identifies these records as being from March 7, 2019 through March 26, 2019.

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the ALJ’s RFC determination.

Plaintiff also contends that the ALJ’s “RFC analysis failed to consider Plaintiff’s chronic back 

impairments . . . either alone or in combination as directed by 20 C.F.R. § 404.1523.” (ECF No. 

17, p. 7). However, after reviewing the ALJ’s Decision, the Court finds that the ALJ considered 

all the evidence referenced by Plaintiff, and that the ALJ’s RFC determination was supported by

the record as a whole. The ALJ’s opinion demonstrates that he weighed Plaintiff’s degenerative 

disc disease (DDD) and other impairments, Plaintiff’s ability to walk and stand, neuropathy, use 

of a cane eight months prior to the hearing and at the hearing, and other limitations along with 

Plaintiff’s back problems. (R. 19, 21). The ALJ also considered a physical examination of the 

spine, as well as the upper extremities and muscle bulk. (R. 22). Further, the ALJ considered 

Plaintiff’s work history, his ability to care for himself, and his mental impairment of depression. 

(R. 19). This Court cannot reweigh the evidence, nor substitute its judgment for that of the ALJ. 

Haywood v. Sullivan, 888 F.2d 1463, 1466 (5th Cir. 1989); Harrell v. Bowen, 862 F.2d 471, 475 

(5th Cir. 1988). Accordingly, the Court concludes that the ALJ did not fail to consider evidence 

relevant to Plaintiff’s back problems.

Additionally, while Plaintiff has identified the portions of the record that are relevant to his 

“chronic back pain and severe stenosis” (ECF No. 7, p. 5), he fails to explain how that evidence 

weighs in favor of a more restrictive RFC determination than the one formulated by the ALJ. 

Plaintiff “has the burden of proving [that he] has a medically determinable physical or mental 

impairment.” Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000). The Court should “not reverse 

the decision of an ALJ for lack of substantial evidence where the claimant makes no showing that 

he was prejudiced in any way by the deficienc[y] he alleges.” Brock v. Chater, 84 F.3d 726, 729 

(5th Cir. 1996). As Plaintiff has not articulated how the evidence that he presents weighs against 

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the ALJ’s RFC determination, the Court cannot reverse the ALJ’s Decision on these grounds.

2. NEW RECORDS SUBMITTED AFTER THE ALJ’S MAY 31, 2019 DECISION

For the records after the date of the Decision,8the Appeals Council determined that they 

“do[] not relate to the period at issue. Therefore, [they] do[] not affect the decision about whether 

[Plaintiff was] disabled beginning on or before May 31, 2019.” (R. 2). The relevant time period, 

that is, the period at issue for purposes of this Court’s review, is the time period prior to the date 

of the ALJ’s Decision. See Carter v. Berryhill, No. CV 16-11702, 2017 WL 3641614, at *16 (E.D. 

La. July 26, 2017), report and recommendation adopted, No. CV 16-11702, 2017 WL 3620800 

(E.D. La. Aug. 23, 2017) (“The new evidence must thus relate to the time period on or before the 

date of the ALJ’s hearing decision.”). Any consideration of disability after the date of the ALJ’s 

Decision would be for the subject of a subsequent disability application. (R. 2). Accordingly, 

Plaintiff’s argument that the ALJ disregarded “objective medical evidence of chronic back pain 

and severe stenosis” fails because there is substantial evidence that the medical records submitted 

to the ALJ were properly considered in the RFC determination, and were not omitted by the ALJ.

E. THE ALJ DID NOT ERR IN HIS CONSIDERATION OF THE MEDICAL OPINION EVIDENCE

Plaintiff asserts that the ALJ erred by disregarding the medical opinions of Dr. Alejandro

Rocha, Dr. Bratislav Velimirovic, Dr. Leo [sic] Bhaskar, and Dr. Adaeze Onuoha, which resulted 

in an RFC not based on substantial evidence. (ECF No. 17, p. 6). Plaintiff appears to be arguing 

that the treating physician’s opinion should remain a factor to be considered in the ALJ’s decision. 

See 20 C.F.R. § 404.1527(c)(2) (For claims filed before March 27, 2017, “[i]f [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 well-supported . . . and is not inconsistent with the other substantial evidence . . . 

8 The Appeals Council identifies these records as being from August 15, 2019 through September 12, 2019.

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, [the ALJ] will give it controlling weight.”). However, based on the change 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 prior administrative medical finding(s), including 

those from [the claimant’s] medical sources.” 20 C.F.R. § 404.1520c(a); see (R. 16) (Plaintiff filed 

his claim for disability insurance benefits on December 8, 2017).

Plaintiff also argues that the “ALJ must still articulate how they considered medical 

opinions from all medical sources, regardless of acceptable medical source status.” (ECF No. 17, 

p. 7) (alteration in original) (internal quotation marks omitted). As discussed previously, Dr. Leo 

[sic] Bhaskar’s medical opinion (from Del Sol Medical Center dated March 7, 2019 through March 

19, 2019) (R. 54-60) could not be considered by the ALJ because it was submitted to the Appeals 

Council after the ALJ decision. (R. 2). The list of exhibits included with the ALJ Decision and 

included citations demonstrate that the ALJ reviewed and referred to exhibits with medical 

opinions of Dr. Alejandro Rocha, Dr. Bratislav Velimirovic, and Dr. Adaeze Onuoha. Again, the 

Court should “not reverse the decision of an ALJ for lack of substantial evidence where the 

claimant makes no showing that he was prejudiced in any way by the deficienc[y] he alleges.” 

Brock v. Chater, 84 F.3d 726, 729 (5th Cir. 1996). As Plaintiff has not articulated evidence that 

support his allegation that the ALJ disregarded the medical opinions of these three physicians, the 

Court cannot reverse the ALJ’s Decision on these grounds.

III. CONCLUSION

For the foregoing reasons, IT IS ORDERED that the decision of the Commissioner be

AFFIRMED.

SIGNED and ENTERED this 29

th day of September, 2021.

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____________________________________

MIGUEL A. TORRES

UNITED STATES MAGISTRATE JUDGE

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