IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

ROBERT RAY ELDRIDGE, § 

 Plaintiff, § 

v. § Civil Action No. 3:22-CV-00558-BH 

 § 

KILOLO KIJAKAZI, § 

ACTING COMMISSIONER OF SOCIAL § 

SECURITY ADMINISTRATION, § 

 Defendant. § Consent Case1

MEMORANDUM OPINION AND ORDER 

 Based on the relevant filings, evidence and applicable law, the final decision of the 

Commissioner of Social Security (Commissioner) denying the plaintiff’s claims for Supplemental 

Security Income (SSI) under Title XVI of the Social Security Act is REVERSED in part, and the 

case is REMANDED for reconsideration. 

I. BACKGROUND 

Robert Ray Eldridge (Plaintiff) filed his application for SSI on November 5, 2019, alleging 

disability beginning on October 28, 2019. (doc. 8-1 at 179.)2 His claim was denied initially on 

December 5, 2019, and upon reconsideration on October 6, 2020. (Id. at 76-84, 86-96.) After 

requesting a hearing before an Administrative Law Judge (ALJ), he appeared and testified at a 

hearing on April 28, 2021, which was held by telephone due to the extraordinary circumstances 

presented by the coronavirus pandemic. (Id. at 56.) On June 30, 2021, the ALJ issued a decision 

finding him not disabled. (Id. at 24.) On July 9, 2021, Plaintiff timely appealed the ALJ’s decision 

to the Appeals Council, and submitted new evidence, including medical records from his provider 

1

 By consent of the parties and order filed May 27, 2022 (doc. 10), this matter has been transferred for the 

conduct of all further proceedings and the entry of judgment. 

2

 Citations to the record refer to the CM/ECF system page number at the top of each page rather than the 

page numbers at the bottom of each filing. 

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dated between December 15, 2020, and September 12, 2021. (Id. at 168.) The Appeals Council 

denied his request for review on January 13, 2022, making the ALJ’s decision the final decision 

of the Commissioner. (Id. at 4-5.) The Notice of Appeals Council Action explained that the new 

evidence did not show “a reasonable probability that it would change the outcome of the ALJ’s 

decision” or that it “relate[d] to the period at issue” and affected the decision about whether he was 

disabled beginning on or before June 30, 2021. (Id. at 5.) He timely appealed the Commissioner’s 

decision under 42 U.S.C. § 405(g). (doc. 1.) 

A. Age, Education, and Work Experience 

Plaintiff was born on June 9, 1971; he was 49 years old on the date he filed his application 

on November 5, 2019. (doc. 8-1 at 59, 179.) He had a high school education, could communicate 

in English, and had no past relevant work. (Id. at 59, 68, 192.) 

B. Medical Evidence 

When he was 8 months old, Plaintiff suffered extensive burns to the left side of his body 

during a house fire; he lost his left ear and left forearm. (Id. at 261, 331, 343.) He began having 

seizures by age 8 and took phenytoin (PHT)3

. (Id. at 43, 331, 343, 351.) Between 2004 and 2013, 

he was diagnosed with type 2 diabetes, hyperlipidemia, and hypertension. (Id. at 264-65, 270.) 

1. Pre-hearing 

On April 3, 2019, while incarcerated in the Texas Department of Criminal Justice (TDCJ), 

Plaintiff underwent a psychological screening interview. (Id. at 52, 296-301.) He reported feeling 

“ok” and taking Dilantin4 for epilepsy; he was found to not require further evaluation. (Id. at 296-

3

 PHT “has been the predominant medication for the treatment of epilepsy for over 7 decades.” Rohit R. 

Das, et al., The Role of Phenytoin in the Treatment of Localization Related Epilepsy: An International InternetBased Survey of Neurologists and Epileptologists, ISRN Neurology 1 (2013), https://www.ncbi.nlm.nih.gov/ 

pmc/articles/PMC3713315/pdf/ISRN.NEUROLOGY2013-613456.pdf. 

4

 PHT is “marketed under the trade-name Dilantin”. Id.

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301.) Six days later, Plaintiff submitted to an intake physical exam by physician assistant Laura P. 

Floersch, PA (PA Floersch) at TDCJ’s John Middleton Unit. (Id. at 261-63.) He had a blood 

pressure of 168/103, weighed 200 pounds, had a BMI of 26, and wore glasses for “vision 

correction”, but had an otherwise normal evaluation with all extremities and joints, squatted 

“well”, and had straight spine with full flexion. (Id. at 261.) He had “missed 2 doses” of his 

hypertension medication and was 33 percent compliant with PHT; his last seizure had been a year 

earlier. (Id.) He was assigned the following PULHES classification: 

P3MP = physical capability: one or more medical conditions or deficits require significant 

activity limitations or accommodations, multiple codes, permanent; 

U3KP = upper extremity: one or more medical conditions or deficits require significant 

activity limitations or accommodations, no work assignment requiring excessive 

exposure to sunlight or high environmental limitations, permanent; 

L3KP = lower extremity: one or more medical conditions or deficits require significant 

activity limitations or accommodations, no work assignment requiring excessive 

exposure to sunlight or high environmental limitations, permanent; 

H1AP = hearing and ears: all systems in th[is] category are normal, no assignment 

limitations, permanent; and 

E2BP = eyes and vision: some medical condition or deficit may require limitations; minor 

limitations in assignment, permanent. 

S = [blank][.] 

(Id. at 262.)5

 She also “delete[d]” his limitations for working in “no humidity extremes”. (Id.) 

5

 “TDCJ inmates are classified for housing and work using the PULHES system”, a numeric system the 

military established for rating a patient’s health. See Flowers v. Isbelle, No. CIV.A. H-12-1165, 2012 WL 6099046, 

at *1 n.1 (S.D. Tex. Dec. 7, 2012) (citations omitted). PULHES is based on an evaluation of six different categories 

of body parts/systems—Physical Capability; Upper Extremities; Lower Extremities; Ears and Hearing; Eyes and 

Vision; and Mental Health, formerly “Psychiatric” (S)—a medical professional assigns a “number” to reflect 

“functional capacity” of that body part/system, a “code” to assess any work limitations, and a “modifier” to identify 

prognosis: 

1 = All systems in that category are normal. 

2 = Some medical condition or deficit may require limitations. 

3 = One or more medical conditions or deficits require significant activity limitations or accommodations. 

4 = Significant medical, physical or mental impairment and strict limitations in work, housing and unit 

assignment. 

... 

A = No assignment limitations 

B = Minor limitations in assignment 

C = No prolonged walking, no lifting more than specified pounds, restricted physical activity 

D = No exposure to heavy air pollutants. Restricted physical activity. 

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On April 16, 2019, Plaintiff was prescribed antibiotics for an infection and underwent a 

comprehensive metabolic panel (CMP). (Id. at 266.) He had blood pressure of 156/107, a BMI of 

26, and a hemoglobin A1c (HgA1c) level of 6.3, and he had been 38.46 percent PHT compliant. 

(Id. at 281.) On April 23, 2019, he was evaluated for atherosclerotic cardiovascular disease 

(ASCVD)6 risk, had a 29.3 percent risk of ASCVD, and was prescribed Lipitor. (Id. at 283-84.) 

His blood pressure was 118/84, he weighed 199 pounds, and his BMI was 26. (Id. at 283.) 

On May 7, 2019, Plaintiff presented to TDCJ’s Tulia Transfer Facility N3 (Tulia) for a 

“musculoskeletal symptoms” note. (Id. at 290-92.) He was ambulatory, weighed 201 pounds, had 

a BMI of 27 and blood pressure of 140/86, with no suspected fracture, normal joints, movement, 

gait, posture, and peripheral edema, as well as full range of motion in all extremities and neck and 

bilateral back lateral flexion. (Id. at 290-91.) He requested diabetic shoes due to daily “moderate” 

foot pain. (Id.) On June 6, 2019, Plaintiff had normal vital signs and again requested diabetic shoes 

E = Restricted to lighter, slower activities. 

G = No work assignment where sudden loss of consciousness would be dangerous or where awareness of 

environment is required in order to avoid injury. 

K = No work assignment requiring excessive exposure to sunlight or high environmental temperatures. 

M = Multiple codes, which the medical record should identify (e.g., P3MP, M = C&G). 

N = No jobs requiring understanding of complex instructions. 

P = Assignment only where secondary level medical care is available. Strict limitations to work 

assignment. 

I = [“Currently housed in a Developmental Disability Program” and following specific treatments.] 

... 

D = Developmental disability ... 

R = Remedial ... 

T = Temporary ... 

P = Permanent ... indicates that no significant change in condition is expected. 

H = History .... 

See Policy A-08.7: PULHES System of Offender Medical and Mental Health Classification, TDCJ Correctional 

Managed Health Care Policy Manual, https://www.tdcj.texas.gov/divisions/cmhc/cmhc_policy_manual.html (July 

2021). A provider shall review the inmate’s PULHES classification each time a medical/mental health decision is 

made about an inmate’s current health status and functional level. Id.

6

 ASCVD is the buildup of cholesterol, fatty cells, and inflammatory deposits on the inner walls of arteries. 

See What You Should Expect from Statin Therapy, Cleveland Clinic (Jan. 6, 2020), https://health.clevelandclinic.org/ 

what-you-should-expect-from-statin-therapy. 

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for daily but “mild” bilateral foot pain. (Id. at 293-95.) 

The same day, Plaintiff had a virtual visit with Tulia’s nurse practitioner Amanda C. 

Watson, NP (Nurse Watson) for a chronic care clinic note and individualized treatment plan. (Id.

at 264-68.) His blood pressure was 140/86, he weighed 201 pounds, and his BMI was 27. (Id. at 

264.) He reported no recent seizures; he had his first seizure in 2000, his last seizure in 2015, grand 

mal seizures for the first 3 or 4 years, and petite mal seizures after that. (Id. at 265, 267.) He had a 

normal examination, appeared in no acute distress, was alert and oriented times three, and was on 

statin therapy7 for hyperlipidemia. (Id.) Nurse Watson “stressed better compliance” with his 

hypertension medication, extended his medication regimen, and advised weight loss and 30 

minutes of aerobic exercise on “most” days. (Id.) She assessed him with “borderline” hypertension, 

hyperlipidemia, type 2 diabetes, epilepsy and recurrent seizures, and amputation; gave him a 6-

month follow-up; and opined that he would not require “discharge planning” from continuity of 

care8

 prior to his release from TDCJ. (Id. at 267-68.) At another virtual visit with Nurse Watson 

on June 11, 2019, Plaintiff weighed 208 pounds and had a BMI of 28, blood pressure of 153/94, 

and “sub therapeutic” Dilantin levels despite 72.46 percent PHT compliance. (Id. at 285-87.) Nurse 

Watson affirmed his PULHES classification, opined that he would benefit from diabetic shoes that 

he still lacked, and gave him a 1-month follow-up. (Id.) 

At a “chart review” by Nurse Watson on August 18, 2019, Plaintiff weighed 213 pounds, 

his blood pressure was 189/108 and his BMI was 28, and his PHT compliance was 86.86 percent. 

7

 Statin therapy is using cholesterol-lowering medications to manage cardiovascular disease. Cleveland 

Clinic, supra note 6. 

8

 Continuity of care is “[a] program designed to provide a responsive system for individuals discharging 

from TDCJ, local referrals from parole, jail, family and other related agencies.” Offender Orientation Handbook, 

Tex. Dep’t Crim. Just. 86 (Feb. 2017), www.tdcj.texas.gov/documents/Offender_Orientation_Handbook_English. 

pdf. 

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(Id. at 288-89.) On August 26, 2019, Plaintiff told Nurse Watson that his last seizure had occurred 

in January 2019 (not 2015, as previously stated), and that his nausea from earlier in the week had 

gone away. (Id. at 269-74.) He weighed 215 pounds and had blood pressure of 152/91, a BMI of 

28, and a HgA1c level of 6.2. (Id. at 269.) He expressed his concern that Tulia lacked a 24-hour 

medical unit to treat his seizures, and Nurse Watson explained “in depth” that Tulia had policies 

to treat him if that occurred. (Id. at 270.) She adjusted his Dilantin and Lisinopril dosages to get 

them within “therapeutic range” and noted that he was in the climate-controlled unit and had no 

seizure activity. (Id. at 270, 273-74.) She again advised exercise and weight loss and deleted his 

PULHES limitations to not work in direct sunlight and to avoid extreme temperature and humidity. 

(Id. at 273.) She gave him a 1-month follow-up and diagnosed him with hyperlipidemia, 

hypertension, epilepsy and recurrent seizures, and absence of limb, acquired (amputation). (Id. at 

274.) Benjamin J. Leeah, M.D. (Internist), and Nurse Watson signed the treatment note. (Id.) 

At a virtual visit with Nurse Watson on September 16, 2019, Plaintiff reported improved 

compliance and feeling “much better” and in a “good mood”. (Id. at 275-79.) He weighed 215 

pounds and had a BMI of 28, HgA1c level of 6.2, and blood pressure of 166/112 at the first reading 

and 150/100 on a second reading. (Id. at 275.) He was 90.91 percent compliant with Lisinopril and 

93.18 percent with PHT9

. (Id.) She confirmed his prior PULHES classification, again advised 

exercise and weight loss, and continued his diagnoses but added type 2 diabetes. (Id. at 278-79.) 

After his release from TDCJ on October 28, 2019, Plaintiff completed a function report on 

November 20, 2019. (Id. at 52, 200-07.) He reported phantom pain, seizures, “very high” blood 

pressure, and cramping in his only hand. (Id. at 200-02.) He lived with friends who cooked “a lot” 

9

 Plaintiff’s clinic note indicated his PHT level had consistently increased in 2019: 3.5 on June 4, 2019, 5.2 

on July 9, 2019, 7.9 on August 20, 2019, and 9.3 on September 12, 2019. (doc. 8-1 at 278.) 

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for him because he only had one arm and could not hold pots or pans. (Id.) He had trouble dressing, 

bathing, and doing house chores, and he needed reminders to take his medication. (Id.) He did not 

drive due to vision problems, so he got around by walking and using public transportation; he went 

out alone, handled his own finances, shopped in stores, and went to church, a community center, 

and parks every week. (Id. at 203, 205.) His medical conditions affected his ability to lift, stand, 

reach, hear, see, climb stairs, and use his hand; he could walk about 20 yards before he needed to 

stop and rest for 5 to 10 minutes. (Id. at 204.) He could pay attention “most of the time”, follow 

written and spoken instructions “very well”, and handle stress “pretty good”. (Id. at 204, 206.) He 

could not remember when he was prescribed an artificial limb and glasses, but he needed them 

“ASAP”. (Id. at 206.) He had side effects secondary to medications: dizziness (amlodipine), dry 

mouth (guanfacine), light headedness (lisinopril), upset stomach (metformin), and headaches 

(PHT). (Id. at 207.) 

On December 4, 2019, state agency medical consultant (SAMC) Patty Rowley, M.D., 

completed a physical RFC assessment based on a review of Plaintiff’s record. (Id. at 76-84.) She 

noted that he alleged disability based on left amputated arm, high blood pressure, seizures, and 

diabetes. (Id. at 76.) She also noted his normal CMP and HgA1c level of 6.2 in April 2019, and 

his blood pressure of 166/112, normal physical examination, and diagnoses of hypertension, 

hyperlipidemia, diabetes, and seizures in September 2019. (Id. at 78.) She opined that a 

consultative examination was not required and that his alleged limitations were “partially 

supported” by the evidence of record. (Id. at 78, 82.) She found that his burns were a severe 

impairment, and his diabetes and essential hypertension were non-severe. (Id. at 79.) SAMC 

Rowley opined that Plaintiff had the physical RFC to perform medium exertional work, limited to 

lift and/or carry and push and/or pull with the right hand 20 pounds occasionally and 10 pounds 

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frequently; stand and/or walk about 6 hours in an 8-hour workday and sit about 6 hours in an 8-

hour workday; and balance, kneel, crouch, and climb ramps or stairs without limits, but never 

crawl, climb ladders, ropes, or scaffolds, or handle, finger, feel, or reach with the left hand; he had 

no visual, communicative, or environmental limitations. (Id. at 79-81, 83.) She found that Plaintiff 

had no past relevant work; a significant number of jobs that he could perform existed in the national 

economy such as escort (DOT 359.367-010)10, chaperone (DOT 359.667-010), and page (DOT 

353.367-022); and that he was not disabled. (Id. at 83.) 

On December 20, 2019, Plaintiff presented to Parkland Health and Hospital System 

(Parkland) to “establish care” and was examined by Latasha Pittman, APRN, FNP (Nurse 

Pittman). (Id. at 304-07.) He had a normal physical examination with normal range of motion, and 

he denied any constitutional, respiratory, cardiovascular, gastrointestinal, genitourinary, or 

neurological pain. (Id. at 305-06.) He had blood pressure of 154/100, weighed 217 pounds, was 73 

inches tall, and had a BMI of 28.8. (Id. at 306.) He was assessed with neuropathy, hypertension, 

seizure, type 2 diabetes, and hyperlipidemia. (Id.) He submitted to laboratory testing, was given a 

3-week follow-up, and was advised to take his medication as directed, exercise regularly, and avoid 

fried foods. (Id. at 306-07.) His HgA1c level was 6.1. (Id. at 334.) 

On January 15, 2020, Plaintiff returned to Parkland for a blood pressure check. (Id. at 303-

04.) He had been medication compliant and had taken his hypertension medication at 7 o’clock 

that morning; his blood pressure reading of 169/97 was sent to Nurse Pittman for review. (Id.) On 

February 19, 2020, he returned to Parkland for a blood pressure check. (Id. at 303.) He had been 

medication compliant and had taken his hypertension medication at 8 o’clock that morning, but 

his blood pressure was 186/108, and he reported headaches, tiredness, and fatigue. (Id.) 

10 DOT stands for Dictionary of Occupational Titles. 

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On March 10, 2020, Plaintiff completed a second function report. (Id. at 220-27.) He 

reported that he had only one arm and felt a lot of pain in it, his seizures were “bad”, his blood 

pressure was at stroke level, and his vision was “bad”. (Id. at 220.) His medical conditions, 

including in his left side and back, affected his ability to lift, squat, bend, stand, walk, kneel, climb 

stairs, see, and use his hand; he used a back brace and glasses. (Id. at 225-26.) He had difficulty 

dressing, cooking, and bathing, and he could not walk because his foot hurt from his diabetes or 

stand “long times” due to dizziness. (Id. at 220-22.) He had trouble concentrating, could pay 

attention for about 30 minutes, and was “okay” in following written and spoken instructions. (Id.

at 225.) He did not drive, got around by riding in a car, and never went out alone due to seizures 

and the possibility of falling; he read “all the time”, spent time with others about once every 90 

days, and went to church and “family groups” around three times a year. (Id. at 223-24.) He 

handled his own finances and shopped by computer once a month. (Id.) He placed a checkmark 

beside “yes” to indicate that he was taking medication but did not list any, and he placed a 

checkmark beside “no” to deny any medication side effects. (Id. at 227.) 

In a virtual visit with Parkland on May 20, 2020, Plaintiff was examined by physician 

assistant-certified Edith A. Hawkins-Frost, PA-C (PA Hawkins-Frost), for management of 

hypertension and type 2 diabetes. (Id. at 332-35.) He reported having no blood pressure monitor 

and that his home glucose levels had been between 197 and 200; he requested a medication refill, 

a replacement glucometer, and medical forms for disability, food stamps, and handicap parking. 

(Id. at 333.) He reported seizures since childhood due to multiple surgeries and anesthesia, but 

denied seizures for two years or treatment by Parkland’s Neurology department. (Id.) He was 

diagnosed with vitamin D deficiency, hyperlipidemia, type 2 diabetes, hypertension, and seizure. 

(Id.) His medications were refilled. (Id. at 333-34.) PA Hawkins-Frost ordered laboratory testing 

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and a brain magnetic resonance imaging (MRI), noted his December 2019 HgA1c level of 6.1, 

recommended hemoglobin electrophoresis testing for the “possible” presence of a variant 

hemoglobin, and gave him a neurology referral, a blood pressure check in no more than 2 weeks, 

and a 4-month follow-up. (Id. at 334.) She specifically stated that she was unable to complete the 

handicap parking form because she had not physically evaluated him. (Id.)

11

On July 21, 2020, Plaintiff presented to Parkland for management of his seizures. (Id. at 

331-32, 351-52.) He reported amnestic seizures that presented with an “aura” of nausea, blacking 

out, and “shaking” of his whole body. (Id. at 331-32, 351-52.) His seizures had decreased from 

twice weekly to 2 or 3 times yearly since adjusting his medication. (Id.) Based on a personal 

evaluation by Rabia Jamy, M.D. (Epilepsy Fellow), Kan Ding, M.D. (Neurologist) found that 

Plaintiff had no prior “workup”, had been on PHT for 40 years, was taking 300 milligrams twice 

a day, and had experienced seizures since he was 8 years old. (Id.) Neurologist assessed him with 

“seizure disorder with unknown etiology”, ordered a PHT level check and continuation of his 

medication regimen, and agreed with Epilepsy Fellow’s finding regarding his “EEG and MRI for 

seizure classification”. (Id.) Plaintiff’s PHT level was less than 1.8, and he had blood pressure of 

181/96, weighed 181 pounds, was 6 foot and 1 inch tall, and had a BMI of 23.88. (Id. at 355, 360.) 

On August 20, 2020, an MRI of Plaintiff’s brain revealed: 

1. Asymmetric prominence of the right lateral ventricle without hydrocephalus, 

obstructive lesion ..., or other structural abnormality, likely developmental. 

2. No evidence of structural brain abnormalities to account for [Plaintiff]’s reported 

seizures. 

3. Chronic microvascular ischemic white matter changes. 

(Id. at 43, 355.) Hippocampi and mesial temporal lobe structures, as well as midline structures, 

11 Plaintiff reported that, on an undisclosed date, he had visited the emergency room (ER) for 

“uncontrolled” hypertension and was treated with Clonidine; no medical records could be located per PA HawkinsFrost. (doc. 8-1 at 333.) 

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were within normal limits. (Id. at 354.) 

On September 28, 2020, Plaintiff presented to Fort Worth Internal Medicine for a 

consultative physical examination by Adebola Olatunji, M.D. (Examiner). (Id. at 342-44.) He 

reported high blood pressure, diabetes, seizures, and prior surgeries on his head and left arm. (Id.

at 342.) The whole left side of his body, including his face and neck, suffered burns in a fire when 

he was 8 months old, his left arm was amputated below the elbow, and he had trouble finding a 

job despite being right-handed. (Id. at 343.) He also reported that his first seizure occurred at the 

age of 7, his “absent” seizures had developed into “Grand Mal” seizures, and they presented with 

jerky movements, urinary incontinence, and loss of consciousness, but no tongue biting. (Id.) He 

had experienced 5 seizures the year before, his last seizure had occurred a week earlier while he 

was in a car, and he had suffered some bruises to his face. (Id.) Plaintiff denied any cardiovascular, 

respiratory, gastrointestinal, genitourinary, musculoskeletal, neurologic, or hematologiclymphatic pain. (Id.) His blood pressure was 161/104, he weighed 176 pounds and was 73 inches 

tall, and his BMI of 23.22 was noted as “[h]ealthy [w]eight”. (Id.) He had “multiple” burn scars 

“predominantly” on the left side of his body and his left arm “stump” was “well healed”; he 

“independently” climbed onto and off the examination table and walked unassisted but he was 

unable to tandem walk. (Id.) He had normal gait, no abnormal movements, normal muscle tone 

and bulk, normal sensation, power 5/5 in all limbs, and normal back curvature, but mild tenderness 

on palpation of right paraspinous group of muscles in upper lumbar area. (Id. at 343-44.) Examiner 

diagnosed him with left below elbow forearm amputation, severe burn wound scars on the left side 

of his body, and epileptic seizures. (Id. at 344.) 

On October 1, 2020, SAMC Roberta Herman, M.D., completed a physical RFC assessment 

based on a review of Plaintiff’s record. (Id. at 86-96.) She noted his allegation that his medical 

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conditions had worsened around December 1, 2019, and denial of any new conditions. (Id. at 87.) 

She opined that a consultative examination was required because the evidence “as a whole, both 

medical and non-medical” was not sufficient to support a decision on the claim. (Id. at 90.) She 

considered Plaintiff’s physical examination days earlier, which reflected his burn scars, left 

forearm amputation, inability to tandem walk, normal gait, 5/5 muscle strength in all extremities, 

mild tenderness to palpation on right paraspinous group of muscle in upper lumbar area, and 

straight leg raise at 90 degrees. (Id.) She found Plaintiff’s burns and amputation were both severe 

impairments. (Id.) She affirmed SAMC Rowley’s physical RFC assessment but opined that 

Plaintiff could perform light (not medium) exertional work. (Id. at 95.) She also opined that he had 

environmental limitations, such as avoiding “concentrated exposure” of extreme cold, heat, 

wetness, humidity, noise, pulmonary irritants and avoiding “all exposure” to “hazards (machinery, 

heights, etc.)”, specifically “unprotected heights, open bodies or containers of water or other 

liquids, open flame or sources of high temperatures.” (Id. at 91-93.) 

On December 15, 2020, Plaintiff had a virtual visit with Epilepsy Fellow for management 

of his seizures. (Id. at 42-44, 349-50.) He reported that his amnestic seizures were “much worse” 

than in July 2020 and had included a couple of “full body” convulsions lasting 5 minutes and at 

least 5 blackouts lasting 3 to 4 minutes.12 (Id. at 43, 349.) They presented with tightening of 

bilateral leg muscles, blurred vision in both eyes for a few minutes, headaches in the back of his 

head/neck, tiredness, and “affected” hearing. (Id.) His HgA1c level was 6.1 and his PHT level of 

1.8 was “subtherapeutic” despite his reported medication compliance. (Id.) Epilepsy Fellow 

considered his most recent work-up, including his August 2020 MRI findings and an 

electroencephalogram (EEG) that was “normal awake/sleep”. (Id. at 43, 349, 355.) She gave him 

12 Plaintiff reported that his last convulsion had occurred 2 weeks earlier. (doc. 8-1 at 349.) 

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a three-month follow-up, advised safety precautions such as not driving, recommended an epilepsy 

monitoring unit (EMU) for “characterization” if “frequent” spells persisted, prescribed Keppra, 

and instructed him to discontinue PHT after taking Keppra for 2 weeks. (Id. at 43-44, 350.) Rodrigo 

Zepeda, M.D. (Neurology Specialist), signed the treatment note and expressly agreed with 

Epilepsy Fellow’s findings and recommendations. (Id. at 42, 350.) 

On March 29, 2021, Plaintiff called Parkland to request a primary care appointment for a 

follow-up and referrals. (Id. at 348.) On April 9, 2021, his HgA1c level was 5.6. (Id. at 46.) 

2. Post-hearing 

On May 4, 2021, Plaintiff presented to Epilepsy Fellow at Parkland for management of 

seizures. (Id. at 45-51, 55.) His PHT levels were subtherapeutic despite reported compliance, and 

his last seizure occurred 1 or 3 weeks earlier. (Id. at 46-47.) Although he reported being unaware 

that he had been prescribed Keppra in December 2020, the medical records showed that he had 

picked it up on December 16, 2020. (Id. at 47.) Epilepsy Fellow noted that Plaintiff’s seizure 

frequency had “relatively” improved with Dilantin, from 3 to 5 per month to 1 per month. (Id. at 

46.) She again advised EMU for “characterization” but opined that it was “reasonable” for him to 

try another anti-epileptic drug, or AED. (Id.) She again prescribed Keppra, instructed him to 

discontinue PHT after taking Keppra for 2 weeks, and proscribed driving for at least 3 months, 

given his recent seizure. (Id. at 46-47.) 

On May 13, 2021, Plaintiff presented to Parkland Sleep Center for an obstructive sleep 

apnea evaluation. (Id. at 31-41.) He denied using any sleep aids, complained of “[i]ncreased” 

snoring, “unrefreshed” sleep, difficulty falling asleep and staying asleep, and fatigue; he reported 

witnessed apneas for more than 10 years and seizure activity the prior month. (Id. at 31-32.) He 

endorsed a “little” difficulty watching a movie and “extreme” difficulty being active in the morning 

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due to sleepiness or tiredness. (Id. at 34.) He was positive for congestion, claudication and leg 

swelling, falls, myalgias, back, joint, and neck pain, dizziness, tremors, sensory change, speech 

change, focal weakness, seizures, and headaches. (Id. at 36-37.) His blood pressure was 157/88, 

his BMI was 24.7, he weighed 186 pounds, and he had a normal physical examination, including 

normal range of motion and heart rate and rhythm. (Id. at 37.) He was assessed with “[p]ossible 

[obstructive sleep apnea] symptoms”, referred for a home sleep apnea study, and advised not to 

drive. (Id. at 39.) He was also diagnosed with obstructive sleep apnea, insomnia due to medical 

condition, vitamin D deficiency, hypertension, hyperlipidemia, seizure, and type 2 diabetes 

without complication, without long-term current use of insulin. (Id.) 

On September 12, 2021, Plaintiff presented to Parkland Memorial Hospital for a lumbar 

spine MRI, which revealed “[m]ultilevel degenerative changes of the lumbar spine”, findings that 

were “most prominent” at L4-5 and L5-S1, and stenosis of the left neural foramina at L4-5 and 

L5-S1 with contact of the exiting left L4 and left L5 dorsal nerve root ganglia. (Id. at 29-30.) 

C. April 28, 2021 Hearing 

On April 28, 2021, Plaintiff and an impartial VE testified at a hearing before the ALJ. (Id.

at 55-75.) Plaintiff appeared personally without representation by an attorney or a non-attorney 

representative.13 (Id. at 55-56.) 

1. Plaintiff’s Testimony14

Plaintiff testified that he was born on June 9, 1971, and he had obtained a GED. (Id. at 59.) 

Since January 2021, he had been employed by All City Management Service as a school crossing 

13 After the ALJ noted that Plaintiff was present but was not represented, he informed Plaintiff of his rights 

to representation, and Plaintiff responded, “I want to go ahead and represent myself.” (doc. 8-1 at 55-56.) 

14 Before he testified, Plaintiff stated he had no objections to the exhibits admitted into evidence but noted 

that Examiner determined that his vision was “right” but “never” tested it. (Id. at 57.) 

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guard for $10.25 an hour; he worked about 10 hours a week, from 7:00 a.m. until 8:00 a.m. and 

from 3:00 p.m. until 4:00 p.m. (Id. at 59-60.) He got the job through his sister, who had the job 

and knew he needed “some type of income”. (Id. at 60.) It was a “strenuous” job at times due to 

his “bad” back and leg and because he had to go “up and down”. (Id. at 60-61.) Although it was 

the longest employment he had ever had, he was claiming disability because he could not “really 

survive” off that job. (Id. at 60.) It was also hard for him to find a long-term job with his conditions, 

including high blood pressure and seizures, which required him to avoid exposure to chemicals, 

direct sunlight, machines, and moving parts. (Id.) He had tried “all kind[s] of things”, but “[he] 

never last[ed] long”, at most maybe a month or two. (Id.) 

Plaintiff’s two main issues were seizures and high blood pressure. (Id. at 61.) Since his 

December 2020 seizure, he had another seizure in March 2021, while he was home; he was taken 

by ambulance to Methodist Hospital but was discharged less than two hours later. (Id. at 62.) He 

consented to release of those treatment records so they could be added to the record. (Id. at 66-67.) 

Despite his compliance with Keppra, his levels were low, so his dosage was increased from 100 

milligrams three times a day to 600 milligrams three times a day. (Id. at 62-63.) He planned to tell 

his doctor at his next appointment that the new dosage made him feel “jumpy”, “trembly”, “shaky”, 

“jittery”, and like his nerves were “bad”. (Id. at 64.) He had taken Dilantin in the past, but “after a 

while” it no longer “d[id] a lot for [him]”. (Id.) 

A week earlier, Plaintiff’s blood pressure had been 185/110 despite his medication 

compliance. (Id. at 61.) He had tried to “work” with his increased dosage, but it made him dizzy 

and did not allow him to “really do much”. (Id.) After asking his doctor for referrals, he was 

scheduled for a sleep study on May 13, 2021, and a second visit with Neurologist. (Id.) 

Plaintiff lived with his girlfriend, who worked. (Id. at 64-65.) He mostly stayed home 

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during the day, took out the trash, mopped, and swept “a little bit every now and then”; he did not 

cook because he could not hold pots. (Id.) He had re-applied for the SSI benefits he had received 

since around 1972, when he got burned; he lost them while he was incarcerated. (Id. at 61-62.) 

Although a physical examination showed his vision was unlimited, Plaintiff stated that he 

could “hardly” see “good at all” and needed glasses. (Id. at 61.) He referenced his TDCJ medical 

records to show his eyesight had been tested and he had been prescribed glasses, even if he never 

received them because he was released before they were picked up, and the facility was too far 

away for him to do that. (Id. at 65-66.) Since he lacked insurance and “finances” to buy prescription 

glasses, he used “readers”. (Id. at 66.) He had started to receive care at Parkland, including 

laboratory testing, a primary care appointment, and neurology and sleep apnea referrals. (Id.) 

Plaintiff was right-handed and was able to lift 10 pounds at most because anything heavier 

than that would require him to use two hands. (Id. at 65, 69-70.) 

2. VE’s Testimony15

The VE first considered a hypothetical individual of Plaintiff’s age and education who 

could perform light exertional activity, i.e., lift and/or carry 20 pounds occasionally and 10 pounds 

frequently; sit for 6 hours during the workday; stand and/or walk for 6 hours during the workday; 

push and pull as much as he could lift and/or carry; never use the left hand to handle, finger, and 

feel, operate hand controls, and reach in all directions including overhead; never crawl, climb 

ladders, ropes, and scaffolds; and never work at unprotected heights, move mechanical parts, and 

operate a motor vehicle. (Id. at 68.) 

At the ALJ’s request, the VE then considered four light exertional jobs.16 (Id. at 69-74.) 

15 At the outset, the ALJ announced he had found that Plaintiff had no past relevant work. (doc. 8-1 at 68.) 

16 The VE initially testified that “when one is working one handed, the pace of work is far less”, but she 

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The VE testified that an escort (DOT 359.367-010, SVP-2)17, of which there were 1,400 jobs 

nationally, performed occasional reaching, handling, and fingering, which the DOT typically 

considered as performed bilaterally, but she opined that the job could be performed one-handed. 

(Id. at 69-71.) In response to whether it required “much by way of lifting or carrying” or whether 

it was light because of the “long standing and walking”, the VE testified that the escort job was 

defined as “driving visitors and industrial [sic], who are coming to certain destinations in industrial 

establishments” and “escorting somebody to an office [or] a department”. (Id. at 73.) Noting that 

an escort was a “stand-alone occupation”, the VE added, “[t]hat is what I’m questioning”. (Id.) 

She opined that an employee who escorts visitors “might very well be” what a receptionist or 

another employee does “as part of [his] duties”, which could include issuing visitor identification 

badges and safety devices or “collecting and delivering” messages and mail, the latter of which 

might require lifting and/or carrying more than 10 pounds. (Id.) 

The VE next testified that the job of a page (SVP-2)18, of which there were “no numbers 

nationally”, performed “no more than occasional” bilateral reaching, handling, and fingering; she 

did not specify whether it could be performed one-handed. (Id. at 70.) She “sincerely doubted” 

that a page job existed in the national economy. (Id.) 

The VE further testified that a chaperone (DOT 359.667-010, SVP-2), of which there were 

1,900 jobs nationally and did not require any reaching, handling, or fingering, was defined as one 

recalled Plaintiff’s crossing guard job and stated, “I can bring that up.” (doc. 8-1 at 68-69.) The ALJ informed her 

that it could not be considered because Plaintiff worked part-time in that position, but stated, “And just so you know, 

[VE], I’m going to—you may come up with jobs on your own or not, but there are some jobs that [the SAMCs] 

identified and I’m going to run those by you to see if, in your opinion, the person could perform these positions.” 

(Id. at 69.) 

17 SVP stands for Specific Vocation Preparation. 

18 Although neither the ALJ nor the VE provided a DOT code for a page job during the hearing, (doc. 8-1 at 

69-74), the SAMCs identified it as DOT code 353.367-022 (id. at 83, 95). 

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who “[c]haperones young people to social functions held in hotels or restaurants, greets guests, 

answers questions regarding programs, arranges for entertainment such as games, concert[s], 

motion pictures, asks guests to observe rules of establishment and report[s] to vendors [and] 

officer[s]” and “may collect tickets for admission to events”. (Id. at 70-71.) While noting the job’s 

consistency with the first hypothetical individual, she testified that she “really question[ed] 

whether it exists in the national economy”, and that she didn’t “think [she had] ever seen a job title 

for [chaperone] in terms of placement for purposes of placement.” (Id.)

19

Lastly, the VE testified that an usher job (DOT 344.677-014, SVP-2), of which there were 

4,500 jobs nationally and which required occasional “manual dexterity”, could be performed onehanded because it involved “more standing and walking” than “holding programs”. (Id. at 73.) 

The VE considered a second hypothetical individual with the same limitations as the first, 

except with a sedentary level of exertion for lifting and carrying. (Id. at 71.) He could not perform 

the non-sedentary jobs of escort, page, chaperone, or usher. (Id. at 71-72.) At the ALJ’s request, 

the VE considered a surveillance system monitor (DOT 379.367-010, sedentary), of which there 

were 2,900 jobs nationally, which was classified as “unskilled”. (Id. at 72-73.) Although it existed 

in the national economy, for example at casinos, the VE “did not consider” it performed at an 

unskilled level and opined that it “tend[ed]” to be “a little bit more semiskilled” (i.e., SVP-3 or 

SVP-4). (Id.) There were no sedentary jobs available to the second hypothetical individual without 

special accommodation, such as a one-handed keyboard or voice-activated software. (Id. at 72.) 

The VE’s testimony relied in part on the DOT. (Id. at 73-74.) Where it was “silent”—i.e., 

the limitation of reaching, handling, and fingering with one hand instead of two, the existence of 

19 In response to her testimony, the ALJ orally stated, “I mean, yeah, but we’re familiar with people who, 

you know, ushers, and that kind of thing. I don’t know if usher is the same thing or if it’s different.” (doc. 8-1 at 71.) 

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jobs in the current national labor market, and the way that surveillance system monitor jobs were 

currently performed—she had instead relied on her professional experience and on-site job 

analysis, labor market research, and job placement. (Id.) 

D. ALJ’s Findings 

The ALJ issued an unfavorable decision on June 30, 2022. (Id. at 24.) At step one, he found 

that Plaintiff had not engaged in substantial gainful activity since the application date of November 

5, 2019. (Id. at 18.) At step two, he found that Plaintiff had the severe impairments of left arm 

amputation, seizure disorder, and hypertension, and the non-severe impairment of diabetes, and he 

did not have the medical determinable impairments of vision, sleep, or back issues. (Id. at 18-19.) 

At step three, the ALJ concluded that Plaintiff’s impairments did not singularly or in combination 

meet or medically equal the required criteria for any of the listed impairments in 20 C.F.R. § 404, 

Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925-416.926). (Id. at 19.) He expressly 

considered Listings 1.20 (amputation due to any cause) and 11.02 (seizures) in his findings. (Id.) 

Next, the ALJ determined that Plaintiff retained the physical residual functional capacity 

(RFC) to perform less than the full range of light work, as defined in 20 C.F.R. § 416.967(b), i.e., 

lift and carry 20 pounds occasionally and 10 pounds frequently; stand, walk, and sit 6 hours in an 

8-hour workday; push/pull as much as lift/carry; never crawl, climb ladders, ropes, or scaffolds; 

never use the left hand to handle, finger, feel, operate hand controls or reach in all directions 

(including overhead); and never work at unprotected heights, move mechanical parts, and operate 

a motor vehicle. (Id. at 19-20.) At step four, he determined that Plaintiff had no past relevant work. 

(Id. at 22.) At step five, the ALJ found that transferability of job skills was not an issue in the 

determination of disability because the Medical-Vocational Rules supported a finding that he was 

not disabled regardless of whether he had transferable job skills, but considering his age, education, 

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work experience, and RFC, there were jobs that existed in significant numbers in the national 

economy that he could perform. (Id.) Accordingly, the ALJ determined that Plaintiff had not been 

under a disability, as defined by the Social Security Act, since his application was filed on 

November 5, 2019. (Id. at 23.) 

II. STANDARD OF REVIEW 

Judicial review of the Commissioner’s denial of benefits is limited to whether the 

Commissioner’s position is supported by substantial evidence and whether the Commissioner 

applied proper legal standards in evaluating the evidence. Greenspan v. Shalala, 38 F.3d 232, 236 

(5th Cir. 1994); 42 U.S.C. §§ 405(g), 1383(C)(3). Substantial evidence is defined as more than a 

scintilla, less than a preponderance, and as being such relevant and sufficient evidence as a 

reasonable mind might accept as adequate to support a conclusion. Leggett v. Chater, 67 F.3d 558, 

564 (5th Cir. 1995). In applying the substantial evidence standard, the reviewing court does not 

reweigh the evidence, retry the issues, or substitute its own judgment, but rather, scrutinizes the 

record to determine whether substantial evidence is present. Greenspan, 38 F.3d at 236. A finding 

of no substantial evidence is appropriate only if there is a conspicuous absence of credible 

evidentiary choices or contrary medical findings to support the Commissioner’s decision. Johnson 

v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). 

The scope of judicial review of a decision under the supplemental security income program 

is identical to that of a decision under the social security disability program. Davis v. Heckler, 759 

F.2d 432, 435 (5th Cir. 1985). Moreover, the relevant law and regulations governing the 

determination of disability under a claim for disability insurance benefits are identical to those 

governing the determination under a claim for supplemental security income. See id. The court 

may therefore rely on decisions in both areas without distinction in reviewing an ALJ’s decision. 

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See id.

To be entitled to social security benefits, a claimant must prove that he or she is disabled 

as defined by the Social Security Act. Leggett, 67 F.3d at 563-64; Abshire v. Bowen, 848 F.2d 638, 

640 (5th Cir. 1988). The definition of disability under the Social Security Act is “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); Anthony v. 

Sullivan, 954 F.2d 289, 292 (5th Cir. 1992). 

The Commissioner utilizes a sequential five-step inquiry to determine whether a claimant 

is disabled: 

1. An individual who is working and engaging in substantial gainful activity will not be 

found disabled regardless of medical findings. 

2. An individual who does not have a “severe impairment” will not be found to be 

disabled. 

3. An individual who “meets or equals a listed impairment in Appendix 1” of the 

regulations will be considered disabled without consideration of vocational factors. 

4. If an individual is capable of performing the work he has done in the past, a finding of 

“not disabled” must be made. 

5. If an individual’s impairment precludes him from performing his past work, other 

factors including age, education, past work experience, and residual functional capacity 

must be considered to determine if work can be performed. 

Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991) (summarizing 20 C.F.R. § 404.1520(b)-(f)). 

Under the first four steps of the analysis, the burden lies with the claimant to prove 

disability. Leggett, 67 F.3d at 564. The analysis terminates if the Commissioner determines at any 

point during the first four steps that the claimant is disabled or is not disabled. Id. Once the claimant 

satisfies his burden under the first four steps, the burden shifts to the Commissioner at step five to 

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show that there is other gainful employment available in the national economy that the claimant is 

capable of performing. Greenspan, 38 F.3d at 236. This burden may be satisfied either by reference 

to the Medical-Vocational Guidelines of the regulations or by expert vocational testimony or other 

similar evidence. Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987). A finding that a claimant 

is not disabled at any point in the five-step review is conclusive and terminates the analysis. 

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

III. ISSUES FOR REVIEW 

Plaintiff presents the following issues for review: 

1. The ALJ impermissibly relied on his own lay interpretation of the medical evidence to 

develop an RFC that is unsupported by substantial evidence. 

2. The ALJ’s failure to develop the record and order a consultative examination was 

prejudicial error because the examination would have provided the evidence that 

Plaintiff suffered from impairments that the ALJ excluded from the RFC analysis, 

reasoning that there was insufficient evidence to find that they were medically 

determinable impairments. 

(doc. 14 at 1.) 

A. Ripley Error 

In Ripley v. Chater, 67 F.3d 552 (5th Cir. 1995), the claimant argued that the ALJ failed to 

develop the record fully and fairly by finding that he could perform sedentary work even though 

there was no medical testimony to support that conclusion. See 67 F.3d at 552. The Fifth Circuit 

noted that although an ALJ should usually request a medical source statement describing the types 

of work that the applicant was still capable of performing, the absence of such a statement did not 

necessarily make the record incomplete. Id. Rather, the court had to consider whether there was 

substantial evidence in the record to support the ALJ’s decision. Id. The record contained “a vast 

amount of medical evidence” establishing that the claimant had a back problem, but it did not 

clearly establish the effect of that problem on his ability to work, so the ALJ’s RFC determination 

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was not supported by substantial evidence. Id. The Fifth Circuit remanded the case with 

instructions to the ALJ to obtain a report from a treating physician. Id. at 557-58. Notably, it 

rejected the Commissioner’s argument that the medical evidence discussing the extent of the 

claimant’s impairment substantially supported the ALJ’s RFC assessment, finding that it was 

unable to determine the effects of the claimant’s condition on his ability to work absent reports 

from qualified medical experts. Id. at 558 n.27; see also Browning v. Barnhart, No. 1:01-CV-637, 

2003 WL 1831112, at *7 (E.D. Tex. Feb. 27, 2003). 

Here, after making a credibility finding regarding Plaintiff’s alleged symptoms and 

limitations, and reviewing the evidence of record, the ALJ determined that Plaintiff had the RFC 

to perform less than the full range of light work, as defined in 20 C.F.R. § 416.967(b), i.e., lift and 

carry 20 pounds occasionally and 10 pounds frequently; stand, walk, and sit 6 hours in an 8-hour 

workday; “push/pull” as much as lift/carry; never crawl, climb ladders, ropes, or scaffolds; never 

use the left hand to handle, finger, feel, operate hand controls or reach in all directions (including 

overhead); and never work at unprotected heights, move mechanical parts, and operate a motor 

vehicle. (doc. 8-1 at 19-20.) 

The ALJ considered Plaintiff’s left forearm amputation due to a house fire when he was 8 

months old, seizures since childhood, diagnoses of hypertension and diabetes prior to the relevant 

period, and alleged problems with sight, sleep, and his back. (Id. at 18-19 (citing id. at 200-07, 

260-328, 331-35, 341-63.)) Although Plaintiff had reported phantom pain related to his left 

forearm amputation (id. at 201), the ALJ found that “acute complaints and clinical deficits” were 

absent from the record (id. at 20). He specifically pointed to a September 2020 physical evaluation 

by Examiner and his findings that Plaintiff had no additional upper extremity deficits, could 

“independently” climb on and off the examination table, and had “normal” neurologic findings, 

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including unassisted ambulation and normal gait, although unable to tandem walk. (Id. at 20-21 

(citing id. at 342-44.)) He considered the treatment records by Neurology Fellow, Neurologist, and 

Neurology Specialist, including a July 2020 visit in which Plaintiff reported that his seizures had 

decreased from twice weekly to two or three times yearly since adjusting his medication, and a 

March 2021 non-overnight hospital visit due to a seizure that indicated low levels of Keppra. (Id.

(citing id. at 42-44, 61, 66, 331-32, 349-52.)) The ALJ also considered Plaintiff’s elevated high 

blood pressure readings despite medication compliance and his reported dizziness and trembling 

secondary to increased dosages. (Id. at 20 (citing id. at 37, 39, 43, 207, 261, 264, 266-73, 275, 281, 

283, 285, 288, 331, 334, 342-44, 349, 351, 355, 360.)) 

The ALJ further considered the December 2019 and October 2020 opinions of SAMCs 

Rowley and Herman, respectively, and their findings that Plaintiff had the RFC for light exertional 

work20, except he could never crawl or climb ladders, ropes, or scaffolds, and never use the left 

upper extremity to lift and/or carry, push and/or pull, reach in all directions, handle, finger, and 

feel. (Id. at 21 (citing id. at 76-84, 86-96.)) He also noted that SAMC Herman further limited 

Plaintiff to avoiding “all exposure” to hazards such as machinery and heights and avoiding 

“concentrated exposure” to extreme cold and heat, wetness, humidity, noise, and “pulmonary 

irritants”, such as fumes, odors, dusts, gases, poor ventilation.21 (See id. at 21 (citing id. at 93.)) 

The ALJ expressly found the SAMCs’ opinions “generally persuasive” to the extent that: 

[T]hey are commensurate with this determinable because a range of light exertion with 

non-exertional limitations of the left upper extremity as [] postural limitations are 

20 Although SAMC Rowley expressly Plaintiff to “medium” exertional activity, she also specifically 

limited him to lifting and/or carrying 20 pounds occasionally and 10 pounds frequently, which is substantially 

consistent with the definition of light work under the regulations. (Compare doc. 8-1 at 83, with id. at 80); see 20 

C.F.R. § 404.1567(b), 416.967(b) (defining “light work”, in part, as “lifting no more than 20 pounds at a time with 

frequent lifting or carrying of objects weighing up to 10 pounds”). 

21 Although the ALJ’s decision states that SAMC Herman also limited Plaintiff to avoiding exposure to 

vibration, she specifically rated his vibration limitation as “unlimited”. (Compare doc. 8-1 at 21, with id. 93.) 

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consistent with the evidence of record showing left arm amputation below the elbow, 

generally well-controlled seizure disorder, unremarkable physical examinations in the 

treatment record, and minimal treatment overall for [Plaintiff]’s impairments. Based upon 

[his] seizure disorder and inability to use the left upper extremity, the record supports 

additional environmental limitations regarding hazards as a safety precaution against 

injury. 

(Id. at 21.) Finding that the record did not include “acute complaints, abnormal clinical findings, 

or medical recommendation to support additional environmental limitations as to temperature, 

noise, and pulmonary irritants”, the ALJ rejected those environmental limitations, however. (Id.) 

Plaintiff contends that “it was error for the ALJ to develop the RFC in this particular case 

without an opinion from an examining medical professional” because “[t]he only medical opinions 

of record were provided by [SAMCs Rowley and Herman]”. (doc. 14 at 9, 12.) “To the extent that 

[Plaintiff] is arguing that the ALJ may not rely on a non-examining physician’s evaluation of a 

claimant’s claims of disability, []he is incorrect.” Hill v. Berryhill, 718 F. App’x 250, 255 (5th Cir. 

2018). Rather, “[t]he ALJ may rely on [the SAMCs’] assessments so long as the[y] ... [are] not 

‘the sole medical evidence presented’ and as long as the [SAMCs] do[] not draw ‘specific medical 

conclusions that either contradict or are unsupported by findings made by an examining 

physician’”. See id. (citing Villa v. Sullivan, 895 F.2d 1019, 1023-24 (5th Cir. 1990)). Here, the 

SAMCs’ assessments were not the “sole medical evidence” presented and did not contradict the 

findings by examining physicians, including Examiner, who found that Plaintiff had a normal 

physical evaluation with normal range of motion, sensation, and gait, and was independently able 

to get on and off the examination table despite mild tenderness in the back and an inability to 

tandem walk. (doc. 8-1 at 21 (citing id. at 341-44)). The SAMCs’ assessments also did not 

contradict the findings of the TDCJ and Parkland providers who, despite noting Plaintiff’s “severe” 

burns, seizure disorder, and elevated blood pressure, found that he had normal physical 

examinations as early as April 2019 and as late as May 2021, and advised him to perform 30 

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minutes of aerobic on “most” days in August and September 2019, and to exercise “regularly” in 

December 2019. See doc. 8-1 at 37, 261, 273, 278, 307, 331; see also Hill, 718 F. App’x at 255 

(finding that “the reports of [plaintiff]’s non-examining physicians were not the ‘sole medical 

evidence presented’ nor were they inconsistent with Dr. Gary’s reported findings”). In addition, 

both SAMCs based their assessments upon a review of Plaintiff’s medical records. See doc. 8-1 at 

77-78, 81-82, 87-90, 93-94 (listing every medical record reviewed by each physician and her 

specific finding as to each record); see also Nauman v. Comm’r of Soc. Sec., No. 1:20-cv-00144-

HSO-JCG, 2021 WL 4096547, at *7 (S.D. Miss. Sept. 8, 2021) (noting that the SAMCs stated that 

their opinions were based upon a diligent review of Plaintiff’s medical records and they did not 

contradict the reports of the examining physicians), appeal dismissed sub nom. Nauman v. 

Kijakazi, No. 21-60854, 2022 WL 1421052 (5th Cir. Feb. 24, 2022). 

Because his RFC determination was based on specific medical opinions, the ALJ did not 

rely on his own lay opinion in violation of Ripley. See Nauman, 2021 WL 4096547, at *8 (finding 

that “the Magistrate Judge was correct in finding that the ALJ’s denial was supported by substantial 

evidence because the ALJ properly relied on the non-examining physicians’ opinions”). Remand 

is not required on this basis.

B. Physical RFC Determination22

Plaintiff contends that the ALJ’s decision is unsupported by substantial evidence, requiring 

remand. (doc. 14 at 12.) 

Residual functional capacity, or RFC, is defined as the most that a person can still do 

despite recognized limitations. 20 C.F.R. § 404.1545(a)(1). The RFC determination is a combined 

22 Although Plaintiff does not list this issue, he briefs it within the section relating to his first issue. (doc. 14 

at 10-12.) 

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“medical assessment of an applicant’s impairments with descriptions by physicians, the applicant, 

or others of any limitations on the applicant’s ability to work.” Hollis v. Bowen, 837 F.2d 1378, 

1386-87 (5th Cir. 1988) (per curiam). It “is an assessment of an individual’s ability to do sustained 

work-related physical and mental activities in a work setting on a regular and continuing basis.” 

Social Security Ruling (SSR) 96-8p, 1996 WL 374184, at *1 (S.S.A. July 2, 1996). An individual’s 

RFC should be based on all of the relevant evidence in the case record, including opinions 

submitted by treating physicians or other acceptable medical sources. 20 C.F.R. § 404.1545(a)(3); 

SSR 96-8p, 1996 WL 374184, at *1. 

The ALJ “is responsible for assessing the medical evidence and determining the claimant’s 

[RFC].” Perez v. Heckler, 777 F.2d 298, 302 (5th Cir. 1985). The ALJ may find that a claimant 

has no limitation or restriction as to a functional capacity when there is no allegation of a physical 

or mental limitation or restriction regarding that capacity, and no information in the record 

indicates that such a limitation or restriction exists. See SSR 96-8p, 1996 WL 374184, at *1. The 

ALJ’s RFC decision can be supported by substantial evidence even if he does not specifically 

discuss all the evidence that supports his decision or all the evidence that he rejected. Falco v. 

Shalala, 27 F.3d 160, 163-64 (5th Cir. 1994). A reviewing court must defer to the ALJ’s decision 

when substantial evidence supports it, even if the court would reach a different conclusion based 

on the evidence in the record. Leggett, 67 F.3d at 564. 

Nevertheless, the substantial evidence review is not an uncritical “rubber stamp” and 

requires “more than a search for evidence supporting the [Commissioner’s] findings.” Martin v. 

Heckler, 748 F.2d 1027, 1031 (5th Cir. 1984) (citations omitted). The court “must scrutinize the 

record and take into account whatever fairly detracts from the substantiality of the evidence 

supporting the” ALJ’s decision. Id. Courts may not reweigh the evidence or substitute their 

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judgment for that of the Commissioner, however, and a “no substantial evidence” finding is 

appropriate only if there is a “conspicuous absence of credible choices” or “no contrary medical 

evidence.” See Johnson, 864 F.2d at 343 (citations omitted). 

Plaintiff contends that the ALJ’s RFC determination was not supported by substantial 

evidence because he rejected SAMC Herman’s environmental limitations, which were supported 

by the record. (doc. 14 at 9-10.) He points to his hearing testimony that he should, among other 

things, avoid exposure to direct sunlight and chemicals because of his high blood pressure and 

seizures. (Id. (citing doc. 8-1 at 60.)) The ALJ did incorporate some of SAMC Herman’s 

environmental limitations, specifically “hazards (machinery, heights, etc.)”, into his RFC finding: 

Considering th[e] evidence in favor of [Plaintiff] supports a reduced but greater than basic 

range of exertional demands such as light work with no non-exertional use of the left upper 

extremity as well as postural and environmental restrictions such as precluded vertical 

climbing as well as hazards or motor vehicle operation to accommodate the loss of 

function as well as a safety precaution against dizziness and seizures. 

(Compare doc. 8-1 at 21, with id. at 93.) Even if his testimony supports SAMC Herman’s other 

environmental limitations, Plaintiff’s “burden is not to highlight evidence contrary to the ALJ’s 

ruling, but to show that there is no substantial evidence supporting the ALJ’s decision”. Jones v. 

Saul, 2021 WL 2895867, at *5 (N.D. Tex. July 9, 2021). An ALJ is not required to wholly adopt 

every limitation identified in a medical opinion, such as SAMC Herman’s opinions relating to 

temperature, noise, and pulmonary irritants, if they are not supported by the evidence or are 

inconsistent with the medical evidence of record. See Webster v. Kijakazi, 19 F.4th 715, 719 (5th 

Cir. 2021). Here, the ALJ specifically noted that “the record does not include acute complaints, 

abnormal clinical findings, or medical recommendation to support additional environmental 

limitations as to temperature, noise, and pulmonary irritants.” (doc. 8-1 at 21); see Webster, 19 

F.4th at 719 (“Though the ALJ neither adopted the state agency report verbatim nor accepted the 

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testimony of Dr. Small, it cannot be said that his decision was not based on substantial evidence 

or that he improperly applied the relevant legal standards.”). The ALJ did not err when assessing 

Plaintiff's ability to perform work because he was entitled to weigh the evidence against other 

objective findings, including the opinion evidence available and the record as a whole. See Walker 

v. Barnhart, 158 F. App’x 534, 535 (5th Cir. 2005) (quoting Newton v. Apfel, 209 F.3d 448, 458 

(5th Cir. 2000)). 

Because “[t]he ALJ is solely responsible for determining a claimant’s RFC, including 

whether to accept or reject medical opinions on a claimant’s ability to perform work-related 

activities”, he was free to discount SAMC Herman’s opinions relating to temperature, noise, and 

pulmonary irritants based on a lack of supporting medical evidence of record. See McCool v. Saul, 

No. 3:19-CV-00393, 2020 WL 4905501, at *3 (S.D. Tex. Aug. 20, 2020), report and 

recommendation adopted, No. 3:19-CV-00393, 2020 WL 5518626 (S.D. Tex. Sept. 14, 2020) 

(citing Taylor v. Astrue, 706 F.3d 600, 602-03 (5th Cir. 2012)). Ultimately, substantial evidence 

in the record supports the ALJ’s finding that Plaintiff’s medical conditions, including his left 

forearm amputation, restricted his RFC to light work with additional postural and manipulative 

limitations, as well as environmental limitations relating to unprotected heights, moving 

mechanical parts, and operating a motor vehicle. See Greenspan, 38 F.3d at 236 (noting that in 

applying the substantial evidence standard, a reviewing court does not reweigh the evidence, retry 

the issues, or substitute its own judgment). Remand is not required on this basis. 

C. Duty to Develop the Record 

Plaintiff contends that the ALJ’s failure to develop the record and order a consultative 

examination was prejudicial error. (doc. 14 at 12.) The Commissioner responds that the ALJ 

assessed Plaintiff’s RFC based on a “fully and fairly” developed record, including a physical 

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consultative examination. (doc. 16 at 15.) 

The ALJ has a duty to fully and fairly develop the facts relative to a claim for benefits. 

Newton, 209 F.3d at 458 (citing Ripley, 67 F.3d at 557). When the ALJ fails in this duty, he does 

not have before him sufficient facts upon which to make an informed decision, and his decision is 

not supported by substantial evidence. Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996); Kane v. 

Heckler, 731 F.2d 1216, 1219 (5th Cir. 1984). For this reason, a reviewing court “will reverse the 

ALJ’s decision ... if the claimant shows that (1) the ALJ failed to fulfill his duty to develop the 

record adequately and (2) that failure prejudiced the plaintiff.”23 Jones v. Astrue, 691 F.3d 730, 

733 (5th Cir. 2012) (citing Brock, 84 F.3d at 728). The duty to obtain medical records generally 

belongs to the claimant, however. See Gonzalez v. Barnhart, 51 F. App’x 484 (5th Cir. 2002); 

Hawkins v. Astrue, No. 3:09-CV-2094-BD, 2011 WL 1107205 at *7 (N.D. Tex. Mar. 25, 2011). 

“The decision to order a consultative examination is within the ALJ’s bailiwick.” Harper 

v. Barnhart, 176 F. App’x 562, 566 (5th Cir. 2006). “An ALJ’s duty to develop the record further 

is triggered only when there is ambiguous evidence or when the record is inadequate to allow for 

proper evaluation of the evidence.” Mayes v. Massanari, 276 F.3d 453, 459-60 (5th Cir. 2001) 

(emphasis added). A consultative examination is required “only if ‘the record establishes that such 

an examination is necessary to enable the [ALJ] to make the disability decision’”. Barrett v. 

Berryhill, 906 F.3d 340, 344-45 (5th Cir. 2018), as revised (Oct. 16, 2018) (emphasis in original) 

(citing Hardman v. Colvin, 820 F.3d 142, 148 (5th Cir. 2016) (quoting Jones v. Bowen, 829 F.2d 

524, 526 (5th Cir. 1987) (per curiam); see Hardine v. Kijakazi, No. 21-60226, 2022 WL 2070399, 

at *2 (5th Cir. 2022) (citing 20 C.F.R. § 404.1519a(b) to hold a consultative examination “may be 

23 “To establish prejudice, a claimant must show that he could and would have adduced evidence that might 

have altered the result.” Hardine v. Kijakazi, No. 21-60226, 2022 WL 2070399, at *2 (5th Cir. 2022) (citing Brock, 

84 F.3d at 728 (quotation omitted)). 

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required ‘to try to resolve an inconsistency in the evidence, or when the evidence as a whole is 

insufficient to allow [the agency] to make a determination or decision on [a] claim’”). 

In the Fifth Circuit, a consultative evaluation is not necessary when the record supports a 

conclusion that the claimant is not disabled. See Brock, 84 F.3d at 728 (citing Turner v. Califano, 

563 F.2d 669, 671 (5th Cir. 1977)). Further, it is not required unless the record raises a “suspicion” 

concerning an impairment. See Jones, 829 F.2d at 526 (citing 20 C.F.R. § 416.1444). Isolated 

comments in the record about a claimant’s impairment are not sufficient to raise a suspicion of an 

impairment. See Pierre v. Sullivan, 884 F.2d 799, 802-03 (5th Cir. 1989) (per curiam) (holding 

that “[a] few instances in the record noting diminished intelligence” were insufficient to raise 

suspicion that claimant was intellectually disabled) (citations omitted); Brock, 84 F.3d at 728 

(holding claimant’s references amounted to isolated comments because he did not mention nonexertional impairments in his original request for benefits, never sought medical treatment for such 

impairments, and did not mention these impairments at his hearing). Moreover, the duty to develop 

the record can be effectuated by the ALJ’s questioning of the claimant regarding his education, 

training, past work history, the circumstances of his injury, daily routine, pain, and physical 

limitations, and providing an opportunity to add anything else to the record. See Sun v. Colvin, 793 

F.3d 502, 509 (5th Cir. 2015) (“Consistent with that description, the court often focuses on the 

ALJ’s questioning of the claimant in order to determine whether the ALJ gathered the information 

necessary to make a disability determination.”) (citing Brock, 84 F.3d at 728). 

Plaintiff contends that had the ALJ ordered a consultative examination, the record would 

have included “conclusive evidence” to show that his diabetes, sleep apnea, and vision and back 

issues were not only medically determinable impairments, but “possibly” severe impairments that 

“should have been incorporated into the [ALJ’s] RFC analysis and finding.” (doc. 14 at 13.) In 

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reaching his decision at step two that Plaintiff’s diabetes was non-severe and that his vision, sleep, 

and back issues were not medically determinable impairments, the ALJ expressly noted that 

despite Plaintiff’s “longstanding medical history of diabetes” and treatment predating his 

application date, the record showed “the absence of acute diabetic complaints”, which “suggest[ed] 

an asymptomatic impairment”. (doc. 8-1 at 18-19; see id. at 260-363.) The ALJ also noted that 

Plaintiff’s conservative and routine treatment had been limited to outpatient visits, medication 

management, and no ER visits or hospitalizations for “diabetic urgency” during the relevant 

period. (Id. at 19; see id. at 260-363.)) He noted the treatment notes and laboratory studies showing 

HgA1c levels “within the treatment goal” and found that they indicated “adequate control” and 

not “significant functional interference”. (Id. at 19; see id. 260-363.) Although Plaintiff alleged 

poor vision, needing glasses, and an inability to purchase them because he lacked insurance, the 

ALJ noted that Plaintiff’s medical records showed that he denied vision symptoms, had normal 

eye findings, and complained of blurry vision only during seizures. (Id. (citing id. at 57, 61, 305-

06, 349.)) As to his sleep issues, the ALJ found that “[r]elated acute complaints, treatment, and 

abnormal findings” were absent from the record. (Id. at 19.) The Appeals Council considered his 

additional medical evidence, including a May 2021 visit with Parkland Sleep Center during which 

he was assessed with “[p]ossible [obstructive sleep apnea] symptoms” and referred for a home 

sleep apnea study, and found that it did not show a “reasonable” probability that it would have 

changed the outcome of the ALJ’s decision. (Id. at 5, 39.) Furthermore, while he alleged back 

issues and use of a back brace on the second function report, he did not mention it at the hearing 

or on his first function report and had only one documented instance of mild tenderness in the back 

during the relevant time period. (See id. at 200-07, 220-27, 260-363.) Notably, he alleged left 

amputated arm, high blood pressure, seizures, and diabetes as a basis for disability, but not sleep 

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apnea or problems with his vision or back. (See id. at 193.) 

The ALJ considered a medical record that was over 300 pages and included over 3 years 

of treatment notes from Plaintiff’s treating and examining physicians, the medical records from 

TDCJ, Fort Worth Internal Medicine, and Parkland, and the opinions of the SAMCs. (Id. at 260-

363.) There is no indication that the evidence before him was ambiguous, inadequate, inconsistent, 

or that he lacked sufficient facts upon which to make a disability decision. See Hardine, 2022 WL 

2070399, *2; Mayes, 276 F.3d at 459-60. Instead, “[a]fter careful consideration of all the 

evidence”, the ALJ concluded that Plaintiff could perform “a range of light exertion[al] [work]” 

with postural, manipulative, and environmental limitations, which he found were “consistent with 

the evidence of record” showing a left forearm amputation, “generally well-controlled” seizure 

disorder, “unremarkable” physical examinations, and “minimal treatment overall” for his 

impairments. (doc. 8-1 at 21.) In addition, the ALJ expressly asked at the hearing whether he 

wanted to add anything else, and Plaintiff declined. (Id. at 67.) Although Plaintiff argues that a 

consultative examination was required, (doc. 14 at 13 (citing doc. 8-1 at 90)), the ALJ was not 

required to order one because substantial evidence supports his RFC determination. See Smith v. 

Berryhill, No. CV H-18-2490, 2019 WL 3557586, at *9 (S.D. Tex. July 11, 2019), report and 

recommendation adopted, No. CV H-18-2490, 2019 WL 3548850 (S.D. Tex. Aug. 5, 2019) 

(finding that the ALJ was not obligated to order a consultative examination). 

Because Plaintiff has not alleged that the record raises a “suspicion” concerning any other 

impairment, (see doc. 14), he has not shown that a consultative examination was necessary, see 

Jones, 829 F.2d at 526. As noted, the burden lies with the claimant to prove disability. Leggett, 67 

F.3d at 564. The ALJ fulfilled his duty to fully and fairly develop the record, and a consultative 

examination was not required. 

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D. Conflict with the DOT24

Lastly, Plaintiff contends that the VE’s testimony on the less than 8,000 jobs that he “may” 

be able to perform “conflict[ed] with the [DOT]”. (doc. 14 at 11.) He specifically argues that there 

was “no testimony” on the impact that environmental limitations would have on the availability of 

the “already limited number of jobs.” (Id.) 

To be considered disabled, a claimant must have a severe impairment that makes him 

unable to perform his previous work or any other substantial gainful activity existing in the national 

economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. § 404.1505(a). According to the Code of Federal 

Regulations, “[w]ork exists in the national economy when there is a significant number of jobs (in 

one or more occupations) having requirements [that a claimant is] able to meet with his physical 

or mental abilities and vocational qualifications.” 20 C.F.R. § 404.1566(b). It is the 

Commissioner’s burden at step five to show that a claimant is capable of performing other gainful 

employment in the national economy. See 20 C.F.R. § 404.1520(a)(4)(i); Greenspan, 38 F.3d at 

236. Once the Commissioner finds that jobs in the national economy are available to a claimant, 

the burden of proof shifts back to the claimant to rebut this finding. See Selders v. Sullivan, 914 

F.2d 614, 618 (5th Cir. 1990) (citing Fraga, 810 F.2d at 1302). 

The Commissioner may consult several different sources of evidence, including the DOT 

(and its supplement, the SCO25) and VEs, to determine when presumptively-disabled claimants 

can perform alternative and available work. See Veal v. Soc. Sec. Admin., 618 F. Supp. 2d 600, 

608 (E.D. Tex. May 21, 2009). The DOT and the SCO “comprise a comprehensive listing of job 

24 Although Plaintiff does not list this issue, he briefs it within the section titled “Relevant Hearing 

Testimony” and within the section relating to his first issue. (doc. 14 at 4, 11.) 

25 SCO stands for Selected Characteristics of Occupations Defined in the Revised Dictionary of 

Occupational Titles. 

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titles in the United States, along with detailed descriptions of requirements for each job, including 

assessments of exertional levels and reasoning abilities necessary for satisfactory performance of 

those jobs.” Duncan v. Saul, No. 3:19-CV-1333-S-BH, 2020-WL 6120472, at *13 n.8 (N.D. Tex. 

Sept. 10, 2020), report and recommendation adopted, No. 3:19-CV-1333-S-BH, 2020 WL 

6064359 (N.D. Tex. Oct. 14, 2020). The Commissioner recognizes the DOT/SCO publications as 

authoritative, and routinely relies on them “for information about the requirements of work in the 

national economy.” See SSR 00-4p, 2000 WL 1898704, at *2. She may also rely on VEs, who 

assess whether jobs exist for a person with the claimant’s precise abilities and help to determine 

complex issues, such as whether a claimant’s work skills can be used in other work and the specific 

occupations in which they can be used. See 20 C.F.R. §§ 404.1566(e), 416.966(e). The ALJ may 

rely on the testimony of a VE in response to a hypothetical question26 or other similar evidence. 

Newton, 209 F.3d at 458; Bowling v. Shalala, 36 F.3d 431, 436 (5th Cir. 1994). SSR 00-4p27

requires that prior to relying upon evidence from a VE to support a determination of disability, the 

ALJ must identify and obtain a reasonable explanation for any apparent conflicts between 

occupational evidence provided by a VE and information in the DOT. See 2000 WL 1898704, at 

*1-2. As part of his duty to fully develop the record, the ALJ has an “affirmative responsibility” 

26 “The ALJ relies on VE testimony in response to a hypothetical question because the VE ‘is familiar with 

the specific requirements of a particular occupation, including working conditions and the attributes and skills 

needed.’” Benton ex rel. Benton v. Astrue, 3:12-CV-874-D, 2012 WL 5451819, at *7 (N.D. Tex. Nov. 8, 2012) 

(quoting Carey v. Apfel, 230 F.3d 131, 145 (5th Cir. 2000)). A hypothetical question posed to a VE must reasonably 

incorporate all the claimant’s disabilities recognized by the ALJ, and the claimant must be afforded a fair 

opportunity to correct any deficiencies in the hypothetical question. Bowling, 36 F.3d at 436. 

27 Because conflict between VE testimony and the DOT occurred with some frequency, the Commissioner 

issued SSR 00-4p to ensure that ALJs would expose and reconcile such conflict before relying on VE testimony. See

SSR 00-4p, 2000 WL 1898704 (S.S.A. 2000). SSRs represent “statements of policy and interpretations” adopted by 

the SSA that are “binding on all components” of the SSA. See 20 C.F.R. § 402.35(b)(1). While binding on the SSA, 

these interpretive rulings are not binding on the courts and need not be given the force and effect of law. Batterton v. 

Francis, 432 U.S. 416, 425 n.9 (1977) (noting the varying degrees of deference the rulings may be afforded); Myers 

v. Apfel, 238 F.3d 617, 620 (5th Cir. 2001) (per curiam). Courts may “rel[y] upon the rulings in evaluating ALJs’ 

decisions”, however. Myers, 238 F.3d at 620. 

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to inquire of the VE on the record whether there is such an inconsistency. Id. at 4; see Graves v. 

Colvin, 837 F.3d 589, 592 (5th Cir. 2016) (citations omitted). 

As discussed, the ALJ asked the VE whether the first hypothetical individual of Plaintiff’s 

age, education, and RFC (i.e., light work limited by postural, manipulative, and environmental 

limitations, such as never working at unprotected heights, moving mechanical parts, and operating 

a motor vehicle) could perform other work in the national economy. (doc. 8-1 at 68.) The VE 

initially responded that “when one is working one handed, the pace of work is far less”, but at the 

ALJ’s request, she testified about the light, unskilled jobs of escort (DOT 359.367-010), chaperone 

(DOT 359.667-010), and usher (DOT 344.677-014). (Id. at 68-74.) 

The VE testified that an escort existed with 1,400 jobs nationally and was defined by the 

DOT as “driving visitors and industrial [sic], who are coming to certain destinations in industrial 

establishments” and “escorting somebody to an office [or] a department”. (Id. at 69-70, 73.) She 

also testified that she “question[ed]” whether an escort was a “stand-alone occupation” because 

driving and escorting visitors could be performed by a receptionist or another employee as “part 

of his duties”, including delivering messages or mail, which may require carrying and/or lifting 

more than 10 pounds. (Id. at 73.) She further testified that the DOT defined a chaperone as an 

individual who “[c]haperones young people to social functions held in hotels or restaurants, greets 

guests, answers questions regarding programs, arranges for entertainment such as games, 

concert[s], motion pictures, asks guests to observe rules of establishment and report[s] to vendors 

[and] officer[s]” and “may collect tickets for admission to events”. (Id. at 70-71.) Although she 

confirmed the DOT’s national number of chaperone jobs and the job’s consistency with the 

hypothetical, she added, “I really question whether it exists in the national economy”, and “I don’t 

think I’ve ever seen a job title for that in terms of placement for purposes of placement.” (Id.) After 

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the ALJ likened a chaperone to an usher and asked whether the two were the same position, the 

VE responded that an usher (DOT 344.677-014, light, SVP-2), of which there were 4,500 jobs 

nationally and which performed occasional “manual dexterity”, could be performed one-handed 

because it involved “more standing and walking” than “holding programs”. (Id. at 71, 73.) Relying 

exclusively on the VE’s testimony, the ALJ found that, despite Plaintiff’s limitation to one upper 

extremity, he was “capable of making a successful adjustment to other work that exists in 

significant numbers in the national economy”, including as an escort, chaperone, and usher. (Id. at 

23; see id. at 68-74.) 

Although the ALJ specifically asked the VE whether there was a conflict between the DOT 

and her testimony, he neither identified nor obtained a reasonable explanation for the various 

“apparent conflicts” between the two relating to Plaintiff’s ability to perform as an escort or as a 

chaperone. (See id. at 22-24.) There appears to be conflict between the DOT’s description of an 

escort and the VE’s questioning of whether it was still a stand-alone occupation, as well as the 

DOT’s number of chaperone jobs nationally and the VE’s questioning of whether it existed in the 

national economy and not recalling having ever seen it for purposes of placement. (Id. at 68-74.) 

There is also an inconsistency between Plaintiff’s RFC environmental limitation that precluded 

him from operating a motor vehicle and the DOT’s description of an escort as driving visitors. (See 

id. at 20, 68-74.) Courts have recognized that when an ALJ elicits testimony from a VE, he cannot 

ignore it without explanation. See Avalos v. Colvin, No. EP-14-CV-97-ATB, 2016 WL 1583677, 

at *5 (W.D. Tex. Apr. 19, 2016) (citing cases); Elders v. Apfel, No. 3-98-CV-1602-BD, 1999 WL 

61398, at *6 n.2 (N.D. Tex. Jan. 28, 1999) (noting that the ALJ could not ignore the VE’s testimony 

that the plaintiff could not perform past work or other work after eliciting testimony on the issue); 

see also Rodriguez v. Barnhart, No. Civ.A. SA01CA1101FB(N), 2003 WL 1956230, at *9 (W.D. 

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Tex. Mar. 21, 2003) (finding that the ALJ erred in failing to discuss the VE’s testimony that the 

plaintiff would have problems performing other work after the plaintiff’s attorney “cast serious 

doubts” on the “plaintiff’s ability to maintain employment and properly perform in those jobs”). 

While the ALJ relied on the VE’s testimony in determining the existence of other work, he did not 

discuss the several instances that her testimony cast doubt on Plaintiff’s ability to perform as an 

escort or chaperone. (See doc. 8-1 at 23-24.); see Rodriguez, 2003 WL 1956230, at *9. 

The Commissioner does not dispute Plaintiff’s contention or argue that he waived it by not 

listing it. (See doc. 16.) Even though the VE did not testify that either the escort or chaperone jobs 

would be impossible, she specifically “question[ed]” several aspects of the escort and chaperone 

jobs. (See id. at 23-24.) Notably, the ALJ, not the VE, suggested all the job titles that the VE 

discussed; at best the VE opined that Plaintiff could perform as an usher, and at worst, she cast 

doubt on his ability to perform as an escort or a chaperone. (Id.) Without explanation, it is unclear 

why the ALJ did not consider those portions of the VE’s testimony in determining that Plaintiff 

could perform other work, and his “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. 

Because the ALJ relied on the VE’s testimony but did not explain why he did not consider 

the VE’s statements relating to the definition and/or existence of escort and chaperone jobs in 

making his step five determination, his decision was not based on substantial evidence. Elders, 

1999 WL 61398, at *6 (finding that the ALJ's decision was not supported by substantial evidence, 

in part, because it provided no explanation for ignoring the VE’s testimony). 

E. Harmless Error 

The Fifth Circuit has held that “[p]rocedural perfection in administrative proceedings is 

not required” and a court “will not vacate a judgment unless the substantial rights of a party are 

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affected.” Mays v. Bowen, 837 F.2d 1362, 1363-64 (5th Cir. 1988). “[E]rrors are considered 

prejudicial when they cast doubt onto the existence of substantial evidence in support of the ALJ’s 

decision.” Morris v. Bowen, 864 F.2d 333, 335 (5th Cir. 1988). In the Fifth Circuit, harmless error 

exists when it is inconceivable that a different administrative conclusion would have been reached 

absent the error. Bornette v. Barnhart, 466 F. Supp. 2d 811 (E.D. Tex. Nov. 28, 2006) (citing 

Frank v. Barnhart, 326 F.3d 618, 622 (5th Cir. 2003)). Accordingly, to establish prejudice that 

warrants remand, Plaintiff must show that the VE’s testimony was “actually inconsistent with the 

DOT” and could have resulted in a different decision. See Graves, 837 F.3d at 592-93 (applying a 

harmless-error standard when the ALJ erred by failing to ask the VE if her testimony was 

consistent with the DOT). 

Here, the ALJ determined that Plaintiff could work as an escort, chaperone, and usher 

exclusively based on the VE’s testimony. (doc. 8-1 at 23.) As discussed, there was a lack of 

substantial evidence to support the determination because the VE specifically stated that she 

questioned whether the chaperone job existed in the national economy and whether the escort job 

existed as a stand-alone occupation, and the ALJ failed to obtain her testimony on whether Plaintiff 

could perform work as an escort despite his preclusion from driving. (Id. at 70.) Plaintiff was 

prejudiced by the ALJ’s reliance on the VE’s testimony in finding that he could perform other 

work without discussing or explaining why he disregarded these portions of the VE’s testimony; 

if he had considered that testimony or requested the necessary testimony, it is possible that he 

might have determined that Plaintiff could not perform other work. As noted above, without 

explanation, it is unclear why the ALJ did not consider this position of the VE’s testimony or what 

affect its consideration would have had on the decision. It is possible that consideration of the VE’s 

testimony would have caused the ALJ to make a different determination regarding Plaintiff’s 

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ability to perform other work that existed in significant numbers in the national economy. The 

ultimate determination, however, will be made on remand. Accordingly, Plaintiff has demonstrated 

that he was prejudiced and that a substantial right has been affected. The error is therefore not 

harmless, and remand is warranted on this issue. 

IV. CONCLUSION 

The Commissioner’s decision is REVERSED in part, and the case is REMANDED for 

further proceedings consistent with this opinion. 

SO ORDERED on this 28th day of November, 2022. 

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