IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

 

ALVIN O. BREWER, §

 §

Plaintiff, §

 §

v. § Civil Action No. 4:22-cv-00238-O-BP

 § 

KILIO KIJAKAZI, §

ACTING COMMISSIONER OF §

SOCIAL SECURITY, §

 §

Defendant. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Alvin Brewer (“Brewer”) applied for Disability Insurance Benefits (“DIB”) under the 

Social Security Act (“SSA”). The Commissioner denied his application, deciding he was not 

disabled. Brewer appeals. Because the Commissioner applied the correct legal standards in 

assessing Brewer’s medical limitations, the undersigned RECOMMENDS that United States 

District Judge Reed O’Connor AFFIRM the Commissioner’s decision and DISMISS this case

with prejudice.

I. BACKGROUND

Brewer seeks disability benefits under Title II of the SSA, claiming disability since April 

1, 2019. Soc. Sec. Admin. R. [hereinafter “Tr.”], ECF No. 15-1 at 11. Brewer’s DIB application 

specified several medical conditions that limit his ability to work, including depression, anxiety, 

and hypertension. Tr. 14. The Commissioner denied his application initially and upon 

reconsideration. Tr. 11. 

Brewer challenged the Commissioner’s denial before an Administrative Law Judge 

(“ALJ”) who conducted a telephonic hearing and later affirmed the Commissioner’s denial. Tr. 11, 

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22. After the Social Security Appeals Council denied Brewer further administrative review, he 

filed this civil action seeking judicial review under 42 U.S.C. § 405(g). ECF No. 1 at 1; see also

Higginbotham v. Barnhart, 405 F.3d 332, 337 (5th Cir. 2005) (“[T]he Commissioner’s decision 

does not become final until after the Appeals Council makes its decision denying the claimant’s 

request for review.”). Brewer claims he is disabled and thus entitled to DIB. ECF No. 1.

II. STANDARD OF REVIEW

Title II of the SSA, 42 U.S.C. §§ 401-434, governs the disability insurance program. A 

person is disabled if he is unable “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.” Id.

§ 423(d)(1)(A). To determine whether a claimant is disabled and thus entitled to DIB, the 

Commissioner employs a sequential five-step evaluation process. 20 C.F.R. § 404.1520. 

First, the claimant must not be presently doing any substantial gainful activity. Id.

§ 404.1520(a)(4)(i). “Substantial gainful activity” is work that “involves doing significant physical 

or mental activities” for pay or profit. Id. § 404.1572. Second, the claimant must have a severe 

impairment or combination of impairments. Id. § 404.1520(a)(4)(ii). Third, disability exists if the 

impairment or combination of impairments meets or equals an impairment in the federal regulatory 

list. See id. § 404.1520(a)(4)(iii) (referencing 20 C.F.R. pt. 404, subpt. P, app. 1). Before 

proceeding to steps four and five, the Commissioner assesses the claimant’s residual functional 

capacity (“RFC”) and considers his past relevant work (“PRW”). See Id. § 404.1520(a)(4), (e)-(f). 

RFC means “the most [a claimant] can still do despite his limitations,” id. § 404.1545(a)(1), while 

PRW means work the claimant has done “within the past 15 years, that was substantial gainful 

activity, and that lasted long enough for [the claimant] to learn to do it.” Id. § 404.1560(b)(1).

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Fourth, if the claimant’s medical status alone does not constitute a disability, the 

impairment or impairments must prevent the claimant from returning to his PRW considering his

RFC. Id. § 404.1520(a)(4)(iv). Fifth, the impairment must prevent the claimant from doing any 

other relevant work, considering the claimant’s RFC, age, work experience, and education. Id.

§ 404.1520(a)(4)(v); Crowley v. Apfel, 197 F.3d 194, 197-98 (5th Cir. 1999). “A finding that a 

claimant is disabled or 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). “The claimant bears 

the burden of showing [he] is disabled through the first four steps of the analysis; on the fifth, the 

Commissioner must show that there is other substantial work in the national economy that the 

claimant can perform.” Audler v. Astrue, 501 F.3d 446, 448 (5th Cir. 2007). 

Judicial review is limited to determining whether the Commissioner applied correct legal 

standards and whether substantial evidence in the record supports the Commissioner’s decision. 

Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995); Hollis v. Bowen, 837 F.2d 1378, 1382 (5th 

Cir. 1988). “Substantial evidence is such relevant evidence as a reasonable mind might accept to 

support a conclusion.” Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995) (quoting Greenspan v. 

Shalala, 38 F.3d 232, 236 (5th Cir. 1994)). “It is more than a mere scintilla and less than a 

preponderance.” Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001) (quoting Harris v. Apfel, 209 

F.3d 413, 417 (5th Cir. 2000)). 

“A finding of no substantial evidence is appropriate only if no credible evidentiary choices 

or medical findings support the decision.” Id. (quoting same). The Court may neither reweigh 

evidence in the record nor substitute its judgment for the Commissioner’s, but it will carefully 

scrutinize the record to determine if substantial evidence is present. Harris, 209 F.3d at 417; Hollis, 

837 F.2d at 1383. “Conflicts in the evidence are for the [Commissioner] and not the courts to 

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resolve.” Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999) (quoting Selders v. Sullivan, 914 F.2d 

614, 617 (5th Cir. 1990)).

III. ANALYSIS

The Commissioner, acting through the ALJ, completed the five-step evaluation process 

here. See Tr. 13-22. First, the ALJ found Brewer has not engaged in substantial gainful activity 

since April 1, 2019. Tr. 14. Second, he found four medically determinable impairments: 

hypertension, depression, anxiety, and gout. Id. The ALJ found the gout to be nonsevere. Id. Third, 

he identified no impairment or combination of impairments that qualify under the federal 

regulatory list. Id. The ALJ then assessed Brewer’s RFC:

After careful consideration of the entire record, I find that the claimant has the 

[RFC] to perform medium work as defined in 20 CFR 404.1567(c) except for 

frequent balancing, stooping, kneeling, and crouching; and never climbing ladders, 

ropes, or scaffolds, and crawling. He is able to understand, remember, and carry 

out detailed but not complex tasks and instructions.

Id. at 16. Using this RFC determination and hearing testimony from a vocational expert (“VE”), 

the ALJ determined at step four that Brewer could perform PRW, specifically as a hand packer, 

kitchen helper, or warehouse worker. Id. at 21. The step-four finding meant Brewer was ineligible 

for DIB because he was not disabled. Id.; see Lovelace, 813 F.2d at 58. After finding that Brewer’s

age, education, work experience, and RFC with additional limitations still allowed him to perform 

the requirements of other jobs, the ALJ then found Brewer “not disabled” under Sections 216(i) 

and 223(d) of the SSA. Id. at 22. 

Brewer argues that the ALJ made three errors that warrant reversal. ECF No 18 at 5. First, 

he asserts that the ALJ found mild to moderate limitations in step three, but neither incorporated

them into the RFC nor explained their rejection. Second, he argues that the ALJ mentioned Dr. 

Meyer’s medical limitations without explaining why he rejected them in his RFC analysis. Third, 

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he claims that the ALJ did not account for Brewer’s mental limitations in his hypothetical question 

to the VE. The Commissioner responds that substantial evidence in the record supports the 

limitation that the ALJ incorporated into his RFC finding and that the finding and hypothetical 

question track the language in both the earlier analysis and Dr. Meyer’s medical opinion. ECF No. 

19 at 8-9.

A. The ALJ incorporated the mild and moderate mental limitations he 

found in Step Three into his RFC decision. 

Prior to determining a plaintiff’s RFC, an ALJ assesses a plaintiff’s mental impairments. 

20 C.F.R. § 404.1545(c). The ALJ considers evidence of the claimant's abilities to understand, 

remember, and carry out instructions, as well as respond appropriately to supervision, co-workers, 

and pressures in a work setting. Id. The ALJ uses the “paragraph B criteria” to rate the severity of 

a plaintiff’s mental limitations in the following functional areas: (1) understanding, remembering, 

or applying information; (2) interacting with others; (3) concentrating, persisting, or maintaining 

pace; and (4) adapting or managing oneself. Id. at § 404.1520a(c)(3). Additionally, the ALJ 

considers limitations and restrictions that affect other work-related abilities. Id. at § 404.1545(d).

Before determining Brewer’s RFC, the ALJ concluded at step two that Brewer suffered 

from severe depression and anxiety. Tr. 14. He then analyzed Brewer's mental functional 

limitations using the “paragraph B criteria.” Id. The ALJ found Brewer had no limitations in 

interacting with others and adapting or managing himself. Tr. 15-16. The ALJ found Brewer had 

a moderate limitation in understanding, remembering, or applying information and a mild 

limitation in concentrating, persisting, or maintaining pace. Id. 

Having made these findings, the ALJ made a disability determination. “The well-settled 

rule in this Circuit is that in making a determination as to disability, the ALJ must analyze both 

the disabling effect of each of the claimant's ailments and the combined effects of all of these 

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impairments.” Fraga v. Bowen, 810 F.2d 1296, 1305 (5th Cir. 1987) (citation and quotation marks 

omitted). Moreover, the ALJ must base his RFC assessment on “all of the relevant evidence in the 

case record,” including, but not limited to, “medical history, medical signs, and laboratory 

findings; the effects of treatment; and reports of daily activities, lay evidence, recorded 

observations, and work evaluations.” Athena G. v. Kijakazi, No. 1:20-CV-00051-BU, 2021 WL 

3729033, at *9 (N.D. Tex. Aug. 2, 2021), rec. adopted, 2021 WL 3726741 (N.D. Tex. Aug. 23, 

2021); Eastham v. Comm'r of Soc. Sec. Admin., No. 3:10-CV-2001-L, 2012 WL 691893, at *6 

(N.D. Tex. Feb. 17, 2012) (citing SSR 96-8p), rec. adopted 2012 WL 696756 (N.D. Tex. Mar. 5, 

2012). As a part of this assessment, the ALJ must adequately discuss and consider the limiting 

effects of a plaintiff’s mental impairments in formulating his RFC. Athena, 2021 WL 3729033 at 

*11; Gonzales v. Colvin, No. 3:15-CV-0685-D, 2016 WL 107843, at *6, 8 (N.D. Tex. Jan. 11, 

2016).

The ALJ properly considered the limiting effects and restrictions of Brewer’s mental 

impairments in his RFC decision and included specific mental limitations. Tr. 16-20. In his FCR, 

the ALJ discussed the mental status exams conducted by providers during the relevant period, 

stating that the providers consistently found normal recent and remote memory, mood, and affect. 

Tr. 18, 282, 299. The medical providers also found that Brewer was oriented to time, place, and 

person, and that he exhibited good judgment. Id. The ALJ also discussed at length an October 2020 

consultative psychological exam in which Brewer complained of depression, suicidal ideation, 

deterioration in his memory, and difficulty concentrating. Tr. 18-19, 313. The ALJ then analyzed 

the medical opinion of Dr. Auguste, the doctor responsible for Brewer’s psychological exam. The 

ALJ noted that Dr. Auguste found Brewer to have some difficulties with short term memory, 

limited concentration, and dysphoric mood, which led to a diagnosis of depression and anxiety, 

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but he also found that Brewer was successful in a variety of different mental exercises, 

demonstrated an appropriate range of emotional expression and judgment and insight, and had no 

difficulty focusing on requested tasks. Tr. 18-19, 315-316. Finally, the ALJ discussed both 

Brewer’s relationships with others, noting that Brewer denied problems getting along with other 

people, and the limitations proposed in a Psychiatric Review Technique evaluation and Mental 

Residual Functional Capacity assessment completed by Dr. Meyer. Tr. 19-20. 

The in-depth discussion of the relevant medical opinions demonstrates that the ALJ’s 

analysis contained a thorough discussion of Brewer’s mental limitations. Substantial evidence in 

the record shows that the ALJ considered Brewer’s mild and moderate limitations when making 

his RFC assessment. Thus, the ALJ’s conclusion in limiting Brewer to “detailed but not complex 

information and tasks” in the RFC incorporates the step two and three mental limitations and is 

consistent with his findings at those steps. See Mary C.R. v. Kijakazi, 2021 WL 4476764, at *6 

(N.D. Tex. Sept. 30, 2021) (collecting cases holding that limiting a plaintiff to carrying out 

“detailed but not complex tasks” is consistent with a determination that a plaintiff had moderate 

limitations with regard to the above mentioned qualities.); see also Jones v. Saul, 2021 WL 

2895867, at *1, 5 (N.D. Tex. July 9, 2021) (affirming a mental RFC where the ALJ determined

the plaintiff had “moderate limitation with regard to concentrating, persisting, or maintaining 

pace” and the RFC permitted “detailed, but not complex tasks”); see also McDaniel v. Saul, 2020 

WL 7687128, at *1, 3 (N.D. Tex. Oct. 23, 2020), rec. adopted, 2020 WL 7395382 (N.D. Tex. Dec. 

17, 2020).

Accordingly, the ALJ properly incorporated the mental limitations he found in steps two 

and three into the RFC. The ALJ did not err, and reversal is not necessary on this point. 

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B. The ALJ did not err by not discussing Dr. Meyer’s limitations of 

Brewer’s mental capabilities in the RFC. 

Dr. Meyer was the state agency psychological consultant who completed Brewer’s

Psychiatric Review Technique evaluation and the Mental Residual Functional Capacity 

assessment. Tr. 20. Dr. Meyer concluded that Brewer had moderate limitations in understanding, 

remembering, or applying information; interacting with others; concentrating, persisting, and 

maintaining pace; or adapting or managing himself. ECF No. 18 at 6. The ALJ mentioned these 

limitations in his RFC, along with other aspects of her report, and eventually concluded that Dr. 

Meyer’s overall opinion was generally persuasive. Tr. 20. However, prior to determining the RFC 

in step three, the ALJ only found a moderate limitation in understanding, remembering, or applying 

information and a mild limitation in concentrating, persisting, and maintaining pace. Tr. 15-16. 

The ALJ found no limitations in Brewer’s interacting with others or adapting or managing himself. 

Id. 

Although the ALJ’s finding contradicts Dr. Meyer’s opinion, the ALJ was not required to 

describe why he did not agree with Dr. Meyer’s limitations in his RFC analysis. As noted above, 

the ALJ’s assessment of a plaintiff’s moderate, mild, or lack of limitation, comes at step two and 

three, not in the RFC assessment. See Social Security Ruling (SSR) 96-8p, 1996 WL 374184, at 

*1, 3–5 (S.S.A. July 2, 1996); see also 20 C.F.R. § 404.1545(a)(1) (RFC is not an assessment of 

an individual’s mental impairments, but what an individual can do despite his limitations or 

restrictions). The RFC “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.” SSR 96-8, 1996 

WL 374184, at *1. The analysis of limitations at steps two and three merely provides substantial 

evidence for the later RFC analysis, as one has to do with impairments and the other with function.

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Bauer v. Berryhill, No. 7:17-cv-00128-M-BP, 2018 WL 3999687, at *7 (N.D. Tex. July 27, 2018), 

rec. adopted, 2018 WL 3993812 (N.D. Tex. Aug. 21, 2018).

Nevertheless, Brewer argues that the ALJ should have assessed and discussed his mental 

limitations in his RFC analysis. ECF No. 18 at 7. Specifically, Brewer asserts that the ALJ’s RFC 

analysis should have explained why he rejected Dr. Meyer’s moderate limitations conclusion for 

less severe limitations in step three. Id. Brewer’s argument is not persuasive. In the RFC, the

mental limitations merely aid the ALJ in developing the broad categories found in step three in the 

subsequent analysis. Thus, in the RFC portion, the ALJ need only articulate the persuasiveness of 

the medical opinions in the claimant’s record. 20 C.F.R. § 404.1520c(b); Guy v. Comm'r of Soc.

Sec., No. 4:20-CV-01122-O-BP, 2022 WL 1008039, at *3 (N.D. Tex. Mar. 14, 2022), rec. adopted

2022 WL 1004241 (N.D. Tex. Apr. 4, 2022). 

The ALJ stated in the RFC how persuasive he found Dr. Meyer’s opinion and provided a 

reasoning behind this determination. Tr. 20. The ALJ then relied on Dr. Meyer’s RFC assessment 

recommendation to reach his conclusion. Id. This analysis of Dr. Meyer’s opinion was all that was 

needed in the RFC analysis portion of the ALJ’s decision. The ALJ’s mere mention of the moderate 

limitations in Dr. Meyer’s opinion in the RFC analysis, in the context of a complete evaluation of 

all the information that Dr. Meyer provided the court, does not necessitate a discussion of those 

limitations in the RFC conclusion.

Therefore, because the ALJ was only required to explain the persuasiveness of the medical 

opinions in forming the RFC, and not the reasoning behind his severity determinations, the ALJ 

did not err in not explaining why he rejected some of Dr. Meyer’s severity findings in the RFC. 

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C. The ALJ properly accounted for Brewer’s mental limitations in his 

hypothetical question to the VE. 

Although Brewer challenges the ALJ’s formulation of the hypothetical question, "[t]he 

hypothetical question that an ALJ poses to a VE need only incorporate the disabilities that the ALJ 

recognizes.” Gardner v. Massanari, 264 F.3d 1140 (5th Cir. 2001). The hypothetical question here 

was not defective because it did incorporate the mental limitations the ALJ identified. When the 

ALJ asked the VE about potential jobs for Brewer, the ALJ included a limitation “to understanding, 

remembering and carrying out detailed but not complex tasks and instructions.”. Tr. 44. This 

limitation was enough to incorporate Brewer’s mental limitations into the hypothetical without 

specifically stating that that Brewer had mild and moderate limitations. See Bauer, 2018 WL 

3999687, at *6 (holding a restriction to “simple tasks and routine tasks consistent with unskilled 

work involving no interaction with the general public” reasonably incorporated a moderate 

limitation of concentration, persistence, and pace without specifically asking about the limitation). 

Additionally, even if the hypothetical question was defective, Brewer waived his right to 

complain by not suggesting a reformulation at the administrative hearing. If a hypothetical 

question “omits a recognized limitation and the ‘claimant or his representative is afforded the 

opportunity to correct deficiencies in the ALJ’s question by mentioning or suggesting to the [VE]

any purported defects in the hypothetical questions,’ there is no reversible error.” Id. (quoting 

Bowling v. Shalala, 36 F.3d 431, 436 (5th Cir. 1994)). Brewer’s representative had a fair 

opportunity to correct any deficiencies in the ALJ’s hypothetical and declined to do so. Tr. 45-46. 

Thus, even if the ALJ failed to adequately assess Brewer’s mental limitations in his question to 

the VE, which he did not, that error would be harmless. 

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The ALJ did not err in the hypothetical question he asked the VE because he properly 

incorporated the disabilities he recognized into the hypothetical question. Reversal is not required 

on this point.

IV. CONCLUSION 

Because the Commissioner applied the correct legal standards in evaluating Brewer’s 

medical limitations and substantial evidence supports his conclusions, the undersigned 

RECOMMENDS that Judge O’Connor AFFIRM the Commissioner’s decision and DISMISS 

this case with prejudice.

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 fourteen days after being served 

with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). To be specific, an objection must 

identify the particular finding or 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 Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th 

Cir. 1996) (en banc).

SIGNED on October 13, 2022.

______________________________________

Hal R. Ray, Jr.

UNITED STATES MAGISTRATE JUDGE

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