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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JAMES K. R.,

Plaintiff,

V.

KILOLO KIJAKAZI, Acting 

Commissioner of the Social 

Security Administration,

Defendant.

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No. 3:22-cv-722-N-BN

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Plaintiff James K. R. seeks judicial review of a final adverse decision of the 

Commissioner of Social Security pursuant to 42 U.S.C. § 405(g). For the reasons 

explained below, the hearing decision should be reversed.

Background

Plaintiff alleges that he is disabled as a result of bilateral degenerative joint 

disease of the hips. After his applications for disability insurance benefits and 

supplemental security income (“SSI”) benefits were denied initially and on 

reconsideration, Plaintiff requested a hearing before an administrative law judge 

(“ALJ”). That hearing was held on May 6, 2021. See Dkt. No. 11-1 at 48-81 

(Administrative Record (“AR”) at 43-76). At the time of the hearing, Plaintiff was 

forty-eight years old. He is a high school graduate and has past work experience as a

warehouse worker, a cook helper, a home attendant, and a hand packager. Plaintiff 

has not engaged in substantial gainful activity since January 15, 2018.

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The ALJ found that Plaintiff was not disabled and therefore not entitled to 

disability or SSI benefits. See Dkt. No. 11-1 at 26-38 (AR at 21-33) (ALJ Decision).

Although the medical evidence established that Plaintiff suffered from bilateral 

degenerative joint disease of the hips, the ALJ concluded that the severity of that 

impairment did not meet or equal any impairment listed in the social security 

regulations. The ALJ further determined that Plaintiff had the residual functional 

capacity (“RFC”) to perform a limited range of sedentary work but could not return 

to his past relevant employment. Relying on a vocational expert’s testimony, the ALJ 

found that Plaintiff was capable of working as an order clerk, a final assembler, or an 

addresser – jobs that exist in significant numbers in the national economy. 

Plaintiff appealed that decision to the Appeals Council. The Council affirmed. 

Plaintiff then filed this action in federal district court. In a single ground for 

relief, Plaintiff contends that the Appeals Council failed to consider new and material 

evidence of his disability that was probative enough to raise a relative probability of 

changing the outcome of the hearing.

The undersigned concludes that the hearing decision should be reversed and 

this case remanded to the Commissioner of Social Security for further proceedings 

consistent with these findings and conclusions.

Legal Standards

Judicial review in social security cases is limited to determining whether the 

Commissioner’s decision is supported by substantial evidence on the record as a 

whole and whether Commissioner applied the proper legal standards to evaluate the 

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evidence. See 42 U.S.C. § 405(g); Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 

2014); Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995). Substantial evidence is 

“more than a mere scintilla. It means such relevant evidence as a reasonable mind 

might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 

389, 401 (1971); accord Copeland, 771 F.3d at 923. The Commissioner, rather than 

the courts, must resolve conflicts in the evidence, including weighing conflicting 

testimony and determining witnesses’ credibility, and the Court does not try the 

issues de novo. See Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995); Greenspan 

v. Shalala, 38 F.3d 232, 237 (5th Cir. 1994). This Court may not reweigh the evidence 

or substitute its judgment for the Commissioner’s but must scrutinize the entire 

record to ascertain whether substantial evidence supports the hearing decision. See 

Copeland, 771 F.3d at 923; Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988). The 

Court “may affirm only on the grounds that the Commissioner stated for [the] 

decision.” Copeland, 771 F.3d at 923.

“In order to qualify for disability insurance benefits or [supplemental security 

income], a claimant must suffer from a disability.” Id. (citing 42 U.S.C. § 423(d)(1)(A)).

A disabled worker is entitled to monthly social security benefits if certain conditions 

are met. See 42 U.S.C. § 423(a). The Act defines “disability” as the inability to engage 

in substantial gainful activity by reason of any medically determinable physical or 

mental impairment that can be expected to result in death or last for a continued 

period of 12 months. See id. § 423(d)(1)(A); see also Copeland, 771 F.3d at 923; Cook 

v. Heckler, 750 F.2d 391, 393 (5th Cir. 1985). 

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“In evaluating a disability claim, the Commissioner conducts a five-step 

sequential analysis to determine whether (1) the claimant is presently working; (2) 

the claimant has a severe impairment; (3) the impairment meets or equals an 

impairment listed in appendix 1 of the social security regulations; (4) the impairment 

prevents the claimant from doing past relevant work; and (5) the impairment 

prevents the claimant from doing any other substantial gainful activity.” Audler v. 

Astrue, 501 F.3d 446, 447-48 (5th Cir. 2007).

The claimant bears the initial burden of establishing a disability through the 

first four steps of the analysis; on the fifth, the burden shifts to the Commissioner to 

show that there is other substantial work in the national economy that the claimant 

can perform. See Copeland, 771 F.3d at 923; Audler, 501 F.3d at 448. A finding that 

the claimant is disabled or not disabled at any point in the five-step review is 

conclusive and terminates the analysis. See Copeland, 771 F.3d at 923; Lovelace v. 

Bowen, 813 F.2d 55, 58 (5th Cir. 1987).

In reviewing the propriety of a decision that a claimant is not disabled, the 

Court’s function is to ascertain whether the record as a whole contains substantial 

evidence to support the Commissioner’s final decision. The Court weighs four 

elements to determine whether there is substantial evidence of disability: (1) 

objective medical facts; (2) diagnoses and opinions of treating and examining 

physicians; (3) subjective evidence of pain and disability; and (4) the claimant’s age, 

education, and work history. See Martinez, 64 F.3d at 174.

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The ALJ has a duty to fully and fairly develop the facts relating to a claim for 

disability benefits. See Ripley, 67 F.3d at 557. If the ALJ does not satisfy this duty, 

the resulting decision is not substantially justified. See id. However, the Court does 

not hold the ALJ to procedural perfection and will reverse the ALJ’s decision as not 

supported by substantial evidence where the claimant shows that the ALJ failed to 

fulfill the duty to adequately develop the record only if that failure prejudiced 

Plaintiff, see Jones v. Astrue, 691 F.3d 730, 733 (5th Cir. 2012) – that is, only if 

Plaintiff’s substantial rights have been affected, see Audler, 501 F.3d at 448.

“Prejudice can be established by showing that additional evidence would have been 

produced if the ALJ had fully developed the record, and that the additional evidence 

might have led to a different decision.” Ripley, 67 F.3d at 557 n.22. Put another way, 

Plaintiff “must show that he could and would have adduced evidence that might have 

altered the result.” Brock v. Chater, 84 F.3d 726, 728-29 (5th Cir. 1996).

Analysis

In his single claim of error, Plaintiff asserts that a claimant’s submission of 

new evidence requires remand when the evidence raises a reasonable probability of 

changing the outcome and that, in this case, where he submitted to the Appeals 

Council a questionnaire from his nurse practitioner Kelly Peters, who reported that 

Plaintiff would remain off task and miss work four or more times each month, this 

submission raises a reasonable probability of changing the outcome when the ALJ 

found no such limitations and when Peters was the only treating provider to identify 

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Plaintiff’s limitations. As he explains in his reply brief, Plaintiff’s only contention is 

that the Appeals Council should have granted review under 20 C.F.R. § 404.970(a)(5).

More specifically, Plaintiff explains that, after the ALJ found against Plaintiff 

following a hearing at which he was unrepresented, Plaintiff “obtained counsel, who 

helped him secure and submit to the Appeals Council an opinion statement from 

nurse practitioner Kelly Peters,” who, “[c]ontrary to the ALJ’s findings, .... reported 

that [Plaintiff] needed to recline four hours of an eight-hour workday” and “predicted 

[that Plaintiff] would remain off task and require four or more workplace absences 

each month.” Dkt. No. 13 at 6 (citing AR 7, 8, 10). According to Plaintiff, “[t]his new 

evidence should have prompted the Appeals Council to grant review and remand,” 

but instead it “issued a boilerplate denial, reasoning the evidence ‘does not show a 

reasonable probability that it would change the outcome of the decision.’” Id. (quoting 

AR at 2).

When a claimant submits new and material evidence that relates to the period 

before the date of the ALJ's decision, the Appeals Council must consider the evidence 

in deciding whether to grant a request for review. See 20 C.F.R. § 404.970(b). “The 

Appeals Council will review a case at a party's request or on its own motion if – ... (5) 

Subject to paragraph (b) of this section, the Appeals Council receives additional 

evidence that is new, material, and relates to the period on or before the date of the 

hearing decision, and there is a reasonable probability that the additional evidence 

would change the outcome of the decision.” 20 C.F.R. § 404.970(a)(5). Only evidence 

which relates to the period for which benefits were denied can be material. See 

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Thomas v. Colvin, 587 F. App'x 162, 165 (5th Cir. 2014) (per curiam). Evidence of a 

later-acquired disability or of the subsequent deterioration of a previously 

nondisabling condition is not material. See id.

New evidence submitted to the Appeals Council is considered part of the record 

on which the Commissioner's final decision is based. See Higginbotham v. Barnhart, 

405 F.3d 332, 337-38 (5th Cir. 2005). The Court must examine all the evidence, 

including the new evidence, to determine whether the Commissioner's final decision 

to deny a claim is supported by substantial evidence. See Sun v. Colvin, 793 F.3d 502, 

510 (5th Cir. 2015).

The Court should remand the case only if the new evidence dilutes the record 

to such an extent that the ALJ's decision becomes unsupported. See Higginbotham v. 

Barnhart, 163 F. App'x 279, 281-82 (5th Cir. 2006). Based on its internal procedures, 

the Appeals Council need not provide a detailed discussion about all new evidence 

submitted to it. See Higginbotham, 405 F.3d at 335 n.1. But, “[a]though ‘[t]he 

regulations do not require the [Appeals Council] to provide a discussion of the newly 

submitted evidence or give reasons for denying review,’ in some instances remand [is] 

necessary if it is unclear whether the [Appeals Council] evaluated the new evidence” 

at all. Nejmeh v. Colvin, No. 4:14-cv-816-Y, 2016 WL 642518, at *2 (N.D. Tex. Feb. 

18, 2016) (citing Sun, 793 F.3d at 512).

The Commissioner’s response – and, more importantly, the Appeals Council’s 

denial of review – focuses on the requirement of showing a reasonable probability 

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that the new evidence would have changed the outcome of the ALJ’s disability 

determination.

As to that standard, Plaintiff argues that Peters’s

opinion does anything but confirm evidence already in the record. Quite 

the contrary – the ALJ’s sedentary RFC implicitly finds no need for 

additional rest breaks or worker absenteeism. (See AR at 28.) Nurse 

Peters, however, reported that [Plaintiff] would remain off task over 

fifteen minutes per hour and would have four or more workplace 

absences each month. (AR at 10.) And the ALJ’s RFC provides no 

allowance for alternating positions (See AR at 28) whereas Peters 

advised that [Plaintiff] alternated sitting and standing on an “as 

needed/at will” basis. (AR at 8.) It’s entirely probable, therefore, that the 

ALJ would have assigned greater limitations based on the medical 

source’s opinion. 

The opinion evidence is particularly important given the 

precedent from this Court, which has consistently held that an ALJ 

cannot independently decide a claimant’s work-related limitations. See 

Raper v. Colvin, 262 F. Supp. 3d 415, 422-23 (N.D. Tex. 2017) (Stickney, 

M.J.) (collecting cases). Recall that the only evidence of [Plaintiff’s] 

work-related limitations was offered by the SAMCs, who believed 

[Plaintiff] could lift and carry up to twenty pounds and stand or walk for 

six hours of an eight-hour workday. (AR at 80-81, 88-89, 102-03, 115-

16.) The ALJ found the SAMC opinions only “somewhat persuasive” 

because “additional evidence received at the hearing level shows the 

claimant’s bilateral hip arthritis has progressively worsened” such that

[Plaintiff] was more restricted. (Tr. at 31.) But as this Court has 

observed, the ALJ cannot independently determine the claimant’s workrelated limitations, “even if the ALJ believes he is simply giving Plaintiff 

the benefit of the doubt as to what limitations apply.” Thornhill v. 

Colvin, No. 3:14-cv-335-M-BN, 2014 U.S. Dist. LEXIS 180595, at *26 

(N.D. Tex. Dec. 15, 2014) (Horan, M.J.) That’s precisely the situation 

here, and Peters is the only treating provider to identify [Plaintiff’s] 

limitations. Her opinion is therefore anything but cumulative. 

Dkt. No. 13 at 10-11 (cleaned up).

And, in reply, Plaintiff notes that the

Commissioner argues that nurse Peters’s opinion is contrary to the 

opinions of the State agency medical consultants, whom the ALJ found 

supported and consistent with the record. (Dkt. 14 at 7.) But as 

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Commissioner admits, the ALJ considered [Plaintiff] more limited than 

the consultants first thought. (Id.) Those additional limitations required 

a medical basis, and even if the ALJ acted with good intentions, he 

“cannot independently decide the effects of Plaintiff’s impairments on 

her ability to perform work-related activities ... even if the ALJ believes 

he is simply giving Plaintiff the benefit of the doubt as to what 

limitations might apply. ” Gainus v. Colvin, 3:14-cv-4381-BN, 2015 U.S. 

Dist. LEXIS 173381 at *15 (N.D. Tex. Dec. 31, 2015) (Horan, M.J.) 

(emphasis added) (internal citations omitted); Thornhill v. Colvin, No. 

3:14-cv-335-M-BN, 2014 U.S. Dist. LEXIS 180595 at *26 (N.D. Tex. Dec. 

15, 2014) (Horan, M.J.).

Once again, nurse Peters is the only medical source who both 

treated [Plaintiff] and identified his work-related limitations. Her 

opinion therefore raises a reasonable probability of changing the

outcome, and Commissioner’s contention otherwise lacks merit.

Dkt. No. 15 at 6 (cleaned up).

But Plaintiff filed his claim on August 20, 2019. As the Fifth Circuit has 

explained, for “claims filed after March 27, 2017,” “ALJs are no longer required to 

give controlling weight to a treating physician’s opinion, as was mandated by federal 

regulations and our caselaw in the past,” and “an ALJ instead considers a list of 

factors in determining what weight, if any, to give a medical opinion.” Webster v. 

Kijakazi, 19 F.4th 715, 718-19 (5th Cir. 2021) (cleaned up).

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) ... 

including those from your medical sources.” 20 C.F.R. § 404.1520c. Instead, an ALJ 

considers a list of factors in determining what weight, if any, to give a medical 

opinion. See id. “The most important factors in determining the persuasiveness of a 

medical source are whether the source’s medical opinion is based on ‘objective medical 

evidence and supporting explanations’ and the ‘consistency’ of the source’s opinion 

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with the evidence from other medical and nonmedical sources in the claim.” Webster, 

19 F.4th at 719 (quoting 20 C.F.R. § 404.1520c).

“The determination of residual functional capacity is the sole responsibility of 

the ALJ” and she may “properly interpret medical evidence to determine [the 

claimant’s] capacity for work.” Taylor v. Astrue, 706 F.3d 600, 602-03 (5th Cir. 2012). 

The ALJ’s RFC assessment is not a medical opinion. See Joseph-Jack v. Barnhart, 80 

F. App’x 317, 318 (5th Cir. 2003). Unlike medical providers and medical consultants, 

the ALJ considers additional evidence including the claimant’s statements and 

testimony concerning his symptoms, his activities of daily living, the frequency and 

intensity of pain, the effects of medication, as well as all other medical evidence and 

opinion statements in the record. See 20 C.F.R. § 404.1529.

And, under the regulations applicable here, “‘[t]here is no requirement that an 

ALJ’s RFC finding must mirror or match a medical opinion.’” Robert D.D. v. Kijakazi, 

No. 3:21-cv-3164-C-BN, 2022 WL 16935248, at *4 (N.D. Tex. Oct. 31, 2022) (quoting 

Carson v. Comm’r of Social Security, Civil Action 6:21cv12, 2022 WL 2525438, at *7 

(E.D. Tex. May 25, 2022)), rep. & rec. adopted, 2022 WL 16927799 (N.D. Tex. Nov. 

14, 2022); see also Collins v. Comm’r, SSA, 4:20-CV-00769-SDJ-CAN, 2022 WL 

4494122, at *5 (E.D. Tex. Aug. 30, 2022) (holding RFC finding was supported by 

substantial evidence where the ALJ fully reviewed the record, recognized claimant 

had more limitations than assessed by non-examining consultants, and 

accommodated these additional limitations in the RFC finding); Myers v. Saul, SACase 3:22-cv-00722-N-BK Document 16 Filed 11/23/22 Page 10 of 13 PageID 931
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20-CV-00445-XR, 2021 WL 4925993, at *8 (W.D. Tex. Sept. 3, 2021) (“[T]the ALJ is 

not required to have a medical opinion that matches his RFC determination.”).

The ALJ was permitted to rely on the ALJ’s own interpretation of the medical

record and evidence to determine Plaintiff’s RFC limitations. And Plaintiff’s pointing 

to decisions governed by the regulations applicable to claims filed before March 27, 

2017 does not change that, as explained above, and pointing to that inapplicable law 

does not advance Plaintiff’s cause of showing that there is a reasonable probability 

that Peters’s opinion would change the outcome of the decision.

But substantial evidence still must support the ALJ’s RFC findings. Under the 

new regulations, the ALJ did not require a medical source opinion that mirrored the 

RFC findings. And the ALJ might not follow Peters’s opinion if presented with it.

But it does not follow from the new regulations and that possibility that there 

is not a reasonable probability that Peters’s opinion – which relates to the period for 

which benefits were denied – would change the outcome of the ALJ’s decision. This is 

particularly so where, as Plaintiff points out, Peters is the only medical source who 

both treated Plaintiff and identified his work-related limitations.

The Commissioner’s efforts to denigrate that opinion based on its check-thebox appearance or as unsupported by and inconsistent with the medical evidence in 

the record that the ALJ evaluated are unpersuasive for the reasons that Plaintiff lays 

out in reply. See Dkt. No. 15 at 3-5. And Peters’s answers in her opinion “are 

especially significant because they represent the opinion of a treating [medical 

source] that details Plaintiff's work-related abilities” and “directly conflict with the 

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ALJ's RFC assessment.” Micho H. v. Kijakazi, No. 3:21-cv-706-K-BT, 2022 WL 

1750050, at *4 (N.D. Tex. May 12, 2022), rep & rec. adopted, 2022 WL 1747944 (N.D. 

Tex. May 31, 2022). “Given the significance of these opinions on matters directly 

related to the ALJ's denial of benefits, the evidence provides a reasonable 

[probability] that it would have changed the Commissioner's decision..” Id. (cleaned 

up).

The Court may not evaluate Peters’s assessments, or determine the weight her 

opinion should be afforded, in the first instance – those matters lie exclusively with 

the Commissioner. But, after considering the entire record, the undersigned is not 

able to conclude that substantial evidence supports the final decision of the 

Commissioner. Although it may ultimately be determined after remand that the 

decision was correct, Peters’s opinion is significant and casts doubt on the denial of 

Plaintiff's benefits, and so this case should be remanded for further administrative 

review. Accord id.

Recommendation

The hearing decision should be reversed and this case remanded to the 

Commissioner of Social Security for further proceedings consistent with this opinion.

A copy of these findings, conclusions, and recommendation shall be served on 

all parties in the manner provided by law. Any party who objects to any part of these 

findings, conclusions, and recommendation must file specific written objections 

within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV.

P. 72(b). In order to be specific, an objection must identify the specific finding or 

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recommendation to which objection is made, state the basis for the objection, and 

specify the place in the magistrate judge’s findings, conclusions, and recommendation 

where the disputed determination is found. An objection that merely incorporates by 

reference or refers to the briefing before the magistrate judge is not specific. Failure 

to file specific written objections will bar the aggrieved party from appealing the 

factual findings and legal conclusions of the magistrate judge that are accepted or 

adopted by the district court, except upon grounds of plain error. See Douglass v. 

United Services Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).

SO ORDERED.

DATED: November 23, 2022

_________________________________________

DAVID L. HORAN 

UNITED STATES MAGISTRATE JUDGE

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