IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

CYNTHIA RENAYE WALLACE, § 

 Plaintiff, § 

v. § Civil Action No. 3:22-CV-0820-X-BH 

 § 

KILOLO KIJAKAZI, § 

ACTING COMMISSIONER OF SOCIAL § 

SECURITY ADMINISTRATION, § 

 Defendant. § Referred to U.S. Magistrate Judge1

FINDINGS, CONCLUSIONS, AND RECOMMENDATION 

 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 disability 

insurance benefits (DIB) under Title II of the Social Security Act should be REVERSED, and the 

case should be REMANDED for further proceedings. 

I. BACKGROUND 

Cynthia Renaye Wallace (Plaintiff) filed her application for DIB on August 5, 2020, 

initially alleging disability beginning on April 25, 2018. (doc. 11-1 at 77, 200, 234.)2

 Her claim 

was denied initially on October 29, 2020, and upon reconsideration on March 17, 2021. (Id. at 78-

93, 95-114.) After requesting a hearing before an Administrative Law Judge (ALJ), she appeared 

and testified at a telephonic hearing on November 2, 2021, during which she amended her alleged 

onset date to May 23, 2020. (Id. at 48, 52, 128-29.) On November 12, 2021, the ALJ found her not 

disabled. (Id. at 15-32.) On December 14, 2021, Plaintiff appealed the ALJ’s decision to the 

Appeals Council, and submitted new evidence dated December 2, 2021, and December 8, 2021. 

1

 By Special Order 3-251, this social security appeal was automatically referred for proposed findings of fact 

and recommendation for disposition. 

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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(Id. at 6, 38-47, 197-98.) The Appeals Council denied her request for review on March 11, 2022, 

making the ALJ’s decision the final decision of the Commissioner. (Id. at 5-8.) 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.” (Id. at 6.) She 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 January 28, 1968; she was 52 years old on her amended alleged onset 

date. (doc. 11-1 at 52, 200, 234.) She had at least a high school education and could communicate 

in English. (Id. at 226, 228.) She had past relevant work as a bank teller, insurance claims 

representative/insurance agent, and claims adjuster. (Id. at 54-59, 228, 245, 301.) 

B. Medical Evidence 

In 2017, an MRI of Plaintiff’s cervical spine showed multilevel cervical spondylosis, no 

severe spinal canal stenosis, disc protrusions/extrusions at several levels, and potentially 

noteworthy narrowing of the left C5/C6 neural foramen, more so than to the left at C6/C7. (Id. at 

799.) A lumbar MRI showed a right foraminal protrusion of disc material at L4/L5 contacting the 

exiting right L4 nerve root and disc degeneration at L5/S1 with possible thin right eccentric soft 

disc protrusion abutting the proximal descending right S1 nerve root in a preferentially narrowed 

right subarticular recess. (Id. at 799-800.) 

On August 22, 2019, Plaintiff visited Mazahar Salma, M.D. (Internist), at Primary Care 

Clinic (Clinic), complaining of edema and swelling in the lower extremities. (doc. 11-2 at 648-

53.) She weighed 227 pounds, her body mass index (BMI) was 40.2, and she had a normal 

examination. (Id. at 648, 652.) Between November 25, 2019, and March 5, 2020, she returned to 

Clinic four times. (Id. at 739-45, 747-51, 753-57, 759-63.) Her weight and BMI remained around 

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the same. (Id. at 739, 747, 753, 759.) Despite having “reproducible” chest pain in January 2020, 

and a rash and shortness of breath in February 2020 and March 2020, she had a normal physical 

examination each time, including normal movement in all extremities and normal gait, station, and 

muscle strength. (Id. at 739, 742-43, 751, 756-77, 762.) She was assessed with morbid obesity 

and prescribed prednisone and topical ointments. (Id. at 744, 751, 757.) In March 2020, she was 

scheduled for a pulmonary function test. (Id. at 744.) At a telehealth visit later that month, she 

complained of congestion and body aches and was assessed with allergies and primary 

fibromyalgia; she was instructed on how to treat her symptoms. (Id. at 733-37.) 

Also on March 5, 2020, Plaintiff visited a psychiatrist, reporting fatigue, rashes, arthralgias, 

shortness of breath, and asthma. (doc. 11-1 at 704-08.) She weighed 227 pounds, her BMI was 

37.8, and she had normal gait, station, and muscle strength and tone. (Id. at 706.) At five telehealth 

visits with her psychiatrist3

, she had a normal physical examination and denied any physical 

symptoms. (Id. at 709, 711, 726, 728, 744, 752-53, 761-62.) In July 2020, she reported “mild” and 

“improving” insomnia, and she was diagnosed with fibromyalgia. (Id. at 726-27.) 

On April 3, 2020, a pulmonary function test revealed moderate restriction, mild diffusion 

impairment, reduced lung volumes, no obstruction, and no response to bronchodilators. (Id. at 

402.) Her post-bronchodilator FVC was 2.22 liters, her FEV1 was 1.79 liters, and her FEV1/FVC 

was 81% with a DL/VA of 109. (Id.) 

On four occasions between June 4, 2020, and August 25, 2020, Plaintiff returned to Clinic. 

(Id. at 445-53, 776-82, 783-89; doc. 11-2 at 719-24.) Each time, she was ambulating normally and 

had normal gait, station, and muscle strength. (doc. 11-1 at 452, 781, 787; doc. 11-2 at 722-23.) 

3

 Plaintiff saw her psychiatrist on April 8, 2020, July 1, 2020, August 12, 2020, September 9, 2020, and 

September 23, 2020. (doc. 11-1 at 709-13, 726-30, 742-46, 750-54, 759-64.) 

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She weighed around 230 pounds, and her BMI was around 40.7. (doc. 11-1 at 446, 776, 783; doc. 

11-2 at 719.) She was assessed with atopic dermatitis and given a dermatology referral at the first 

visit; at her fourth visit, she reported an upcoming dermatology appointment. (doc. 11-1 at 453, 

780-82.) At both visits, she reported “worsening” asthma with fatigue and cough that interfered 

with her daily activities, but she had not taken any medication for it; she was prescribed inhalers 

and prednisone for exacerbation. (Id.) At her second and third visits, she was prescribed antibiotics 

for an infection that presented with abdominal tenderness. (Id. at 787-88; doc. 11-2 at 722-23.) 

At a telehealth visit on August 27, 2020, Plaintiff saw Mei An Tonette Ty Arias, M.D. 

(Rheumatologist) for an initial evaluation. (doc. 11-1 at 799-803.) She reported a history of 

degenerative arthritis in her cervical and lumbar spines, and lower back pain that radiated to her 

right lower extremities and worsened with cold/rainy weather. (Id. at 799.) Her diagnosis was 

affirmed, she was started on pregabalin and a trial of Lyrica, and she was referred for physical 

therapy. (Id. at 802-03.) She declined injections and medications although she had been treated 

with them in the past, and she was advised she would “eventually” have to consider pain 

management and neurosurgery if conservative measures did not help her. (Id. at 799, 803.) 

On September 14, 2020, Plaintiff visited a dermatologist, complaining of joint pain and a 

mildly severe rash on her head and neck. (Id. at 766-68, 796.) She was not treating it with overthe-counter products, although she had in the past. (Id. at 766.) Her physical examination was 

normal except she had erythematous patches and generalized dryness. (Id. at 767.) She was 

diagnosed with xerosis and prescribed topical ointments. (Id.) 

At a telehealth visit on October 8, 2020, Rheumatologist noted that Plaintiff complained of 

neck and lower back pain, “hurt[ing] all over”, being unable to stand “too long”, such as to wash 

dishes, and sore feet in the mornings. (Id. at 791-95.) She had not attended physical therapy 

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because of the “high” co-pay for each session, but Naproxen had helped “a lot” with her pain. (Id.

at 791.) She had no cardiovascular, pulmonary, gastrointestinal, or neurological symptoms, and 

she had a full range of motion in her hands and wrists with no swelling, but she had a rash and felt 

fatigued. (Id. at 792-93.) She was diagnosed with degenerative disc disease of the lumbar spine, 

degenerative arthritis of the cervical spine, and back pain with radiculopathy; she was started on 

Naprosyn and Methocarbamol. (Id. at 793, 795.) She was advised that medication offered “limited 

benefit[s]” for her type of arthritis, but she again declined neurosurgery and pain management 

evaluations. (Id. at 795.) 

On October 28, 2020, state agency medical consultant (SAMC) Jeanine Kwun, M.D., 

completed a physical residual functional capacity (RFC) assessment based on Plaintiff’s medical 

records. (Id. at 86-89.) She limited Plaintiff to occasionally lifting 50 pounds, frequently lifting 25 

pounds, standing and/or walking for about 6 hours in an 8-hour workday, sitting about 6 hours in 

an 8-hour workday, unlimited pushing and/or pulling other than with the lift and/or carry weight 

restrictions, and avoiding concentrated exposure to pulmonary irritants due to her asthma. (Id. at 

86-87.) She found that Plaintiff’s limitations were not fully supported by evidence in the file, (id.

at 88), and that she could perform work at the medium exertional level, (id. at 91-92). 

On November 2, 2020, Plaintiff returned to Clinic, complaining of body aches. (Id. at 770-

75.) She weighed 232 pounds, and her BMI was 41.1. (Id. at 770.) She had abdominal tenderness 

but an otherwise normal physical examination. (Id. at 774.) She was assessed with acute cystitis, 

menopausal symptoms, and mild intermittent asthma. (Id. at 775.) She was prescribed 

ciprofloxacin, montelukast, Bupropion, and Seroquel, and she was started on Cymbalta, “hoping” 

it would help alleviate her body aches. (Id.) 

At a telehealth visit on November 24, 2020, Rheumatologist noted that Plaintiff appeared 

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“uncomfortable” and complained of fatigue, chills, and “pain all over”. (doc. 11-2 at 498-502.) 

She was diagnosed with degenerative disc disease of the lumbar spine, fibromyalgia, degenerative 

arthritis of the cervical spine, and back pain with radiculopathy. (Id. at 502.) Her prescriptions of 

naproxen, methocarbamol, and Cymbalta were extended, and she again declined pain management 

and neurosurgery referrals. (Id.) 

On January 8, 2021, Plaintiff visited Clinic, complaining of rashes and difficulty sleeping. 

(Id. at 833-39.) She had a normal physical examination. (Id. at 837-38.) Two months later, she 

returned for an annual physical. (Id. at 817-24.) She weighed 234 pounds, and her BMI was 41.5. 

(Id. at 817.) She complained of “worsening”, “severe”, and “constant” joint pain “everywhere” 

with no relief, and she had “limited ambulation”, “irregular gait”, hypotonicity, abnormal motor 

strength, limited range of motion, and diffuse tenderness. (Id. at 820-22.) She was diagnosed with 

chronic pain syndrome and agreed to pain management. (Id. at 820-21, 824.) On April 8, 2021, 

Plaintiff returned to Clinic, complaining of stomach discomfort and psoriasis lesions with joint 

pain. (Id. at 810-15.) Her weight and BMI had improved, and she had normal gait, station, and 

motor strength; she also had a pain management appointment the next day. (Id. at 810, 814.) 

On March 13, 2021, SAMC Laurence Ligon, M.D., completed a physical RFC assessment 

based on Plaintiff’s medical record, concurring with SAMC Kwun’s opinions, but he found that 

her asthma and essential hypertension were non-severe. (doc. 11-1 at 102, 105-07.) 

On May 17, 2021, Plaintiff returned to Rheumatologist, complaining of morning stiffness 

and pain in her lower back, hip, and hands. (doc. 11-2 at 492.) Her BMI was 38.4, and she had a 

normal physical examination, but she had erythematous plaque on her scalp, head, and ear. (Id. at 

493-94.) An examination of 68 joints revealed no abnormality. (Id. at 495.) Her Rapid3 score was 

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22.7 out of 30. (Id. at 495-96.)4

 She was unable to walk two or three kilometers, participate in 

recreational activities and sports, or get a good night’s sleep, and her pain was at a level 8 after 

having been at a level 10 a week earlier. (Id. at 496.) X-rays of her sacroiliac joints, wrists, and 

hands were normal, but she had tenderness with mild swelling in her bilateral trochanteric bursa, 

wrists, and hands. (Id. at 492, 494.) She was diagnosed with polyarthritis, rash, fibromyalgia, 

degenerative disc disease of the lumbar spine, degenerative arthritis of the cervical spine, and back 

pain with radiculopathy. (Id. at 496-97.) Her prescriptions for naproxen, methocarbamol, and 

Cymbalta were extended, and she was started on methotrexate. (Id. at 497.) She had been to a pain 

management appointment and had been prescribed Robaxin and naproxen, but her insurance did 

not cover pain management procedures. (Id.) 

At a telehealth visit with a psychiatrist on April 1, 2021, Plaintiff complained of arthritis, 

asthma that was “not problematic”, and mild, chronic insomnia that was alleviated by rest and 

trazodone. (Id. at 471-72.) She weighed 225 pounds, her BMI was 37.4, and she had normal gait, 

station, and muscle strength. (Id. at 473-74.) 

On June 8, 2021, Plaintiff returned to Clinic for a follow-up, complaining of cough, fatigue, 

and rashes on her right shoulder. (Id. at 801-07.) She weighed 213 pounds, her BMI was 37.7, and 

her pain level was 8. (Id. at 801.) She reported that her sinusitis worsened with environmental 

exposure; her asthma interfered with her daily activities but had improved, and she was using her 

inhalers. (Id. at 805.) Three months later, she returned for a follow-up. (Id. at 792-98) Despite 

ongoing cough and fatigue, her asthma was still improving. (Id. at 796-97.) She still had rashes on 

4

 “RAPID3 (routine assessment of patient index data 3) is a pooled index of the 3 patient-reported 

American College of Rheumatology rheumatoid arthritis ... Core Data Set measures: function, pain, and patient 

global estimate of status.” Theodore Pincus et al., RAPID3, an index to assess and monitor patients with rheumatoid 

arthritis, without formal joint counts: similar results to DAS28 and CDAI in clinical trials and clinical care, 

National Library of Medicine, https://pubmed.ncbi.nlm.nih.gov/19962621/#:~:text=RAPID3%20(routine%20 

assessment%20of%20patientfor%20a%20total%20of%2030 (last visited Mar. 7, 2023). 

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her face, scalp, and right shoulder, but her right-hand rashes with joint pain had reportedly 

improved with medication. (Id. at 796, 798.) Her weight and BMI had also improved since the last 

visit, (id. at 792), and she had normal gait, station, and motor strength, (id. at 796). Her trazodone 

prescription for insomnia was refilled. (Id. at 797.) 

At a telehealth visit on August 19, 2021, Rheumatologist noted that Plaintiff complained 

of joint pain, fatigue, occasional chills, and a rash. (Id. at 485-91.) Her diagnoses and Rapid3 score 

remained unchanged. (Id. at 490-91.) Her muscle relaxer and pain medications were adjusted 

and/or continued, she would begin Skyrizi treatment for her skin condition the following month, 

and she was advised to lose weight to alleviate her back pain. (Id. at 491.) 

On October 20, 2021, Mitch Winn, OTR (Occupational Therapist) examined Plaintiff in 

person for a functional capacity evaluation (FCE) and found that she could not perform exertional 

work at the sedentary level. (Id. at 575-85.) She reported 6/10 lower back pain, and she had 51 to 

81 percent of the “normal” lumbar range of motion. (Id. at 576-77.) She was unable to “tolerate” 

the tests on sitting, standing, dynamic lifting/carrying, and reaching due to severe, right lower back 

discomfort; she reportedly had the same discomfort during the tests that she did complete. (Id. at 

575, 578-83.) Plaintiff’s heartrate was monitored throughout the evaluation, and Occupational 

Therapist found that it was “consistent” with a positive 6/10 pain response. (Id. at 584.) He noted 

that her coefficient of variation remained always below the levels of “inconsistent” or 

“submaximal” effort, and he rated her effort and cooperation as “good”. (Id. at 575, 578-84.) He 

cited several sources throughout the FCE summary, including the American Medical Association 

Guides to the Evaluation of Permanent Impairment. (Id. at 577-79, 582.) 

The same day, Occupational Therapist completed an arthritis RFC questionnaire, 

referencing the FCE summary for support. (Id. at 586-89.) He opined that Plaintiff could sit 10 

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minutes at once and less than 2 hours in an 8-hour workday, stand 10 minutes at once and less than 

2 hours in an 8-hour workday, walk half a block at once and less than 2 hours in an 8-hour workday; 

never lift or carry 10 pounds; grasp, turn, and twist objects, perform fine manipulations, and reach 

in all directions (including overhead) 10 percent of the workday with her right side and 20 percent 

of the workday with her left side; and rarely twist and never stoop, bend, crouch, squat, or climb 

ladders. (Id. at 587-89.) She would need to walk 3 minutes every 10 minutes, and she would need 

to take a break about every 10 minutes. (Id. at 588.) Occupational Therapist also opined that she 

would likely miss more than 4 workdays per month. (Id. at 589.) He found that her impairments 

were “reasonably consistent” with her symptoms and functional limitations. (Id. at 587.) 

On December 8, 2021, Rheumatologist completed a physical RFC questionnaire, noting 

that Plaintiff weighed about 222 pounds and that her disabling limitations began “approximately” 

in November 2020. (doc. 11-1 at 39-41.) She could sit, stand/walk, or lie/recline for less than 1 

hour in an 8-hour workday; sit or stand for 10 minutes at a time; occasionally lift up to 20 pounds 

due to “pain, weakness”; and occasionally reach in all directions, handle objects, and perform fine 

manipulation. (Id. at 39-40.) She also required a cane, the ability to alternate positions, being off 

task more than 15 minutes per hour, frequent breaks, and she would miss 4 or more workdays per 

month. (Id. at 39, 41.) 

C. November 2, 2021 Hearing 

On November 2, 2021, Plaintiff and an impartial VE testified at a hearing before the ALJ. 

(Id. at 48-76.) Plaintiff was represented by an attorney. (Id.)

5

 

1. Plaintiff’s Testimony 

Plaintiff testified that she was 53 years old, weighed 205 pounds, and was right-handed. 

5

 The attorney stated that Plaintiff was amending her onset date to May 23, 2020. (doc. 11-1 at 52.) 

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(Id. at 52-53.) She had a high school education and had completed one year of college. (Id. at 54.) 

She had worked as a bank teller from 2006 to 2008; in 2009, she worked in a call center recording 

requests for mortgage modifications. (Id. at 54-55.) She then worked as an insurance agent meeting 

clients in their homes to sell them policies and submitting any information to the corporate office; 

she would go into the office if she needed to fax, copy, or print any document. (Id. at 56.) At the 

time, she had a life and health insurance license, as well as an adjuster’s license. (Id. at 54.) She 

subsequently worked as a bank teller, cashed checks, and helped customers open accounts; she 

would sit 5 hours and stand and walk the rest of the workday on a daily basis. (Id. at 56-59.) She 

had not worked or volunteered after leaving her job in May 2020. (Id. at 58.) 

Plaintiff was still being treated by Rheumatologist. (Id. at 59.) There had not been any 

changes to her rheumatology medication in the previous 6 months. (Id.) 

Plaintiff had not been recently treated with injections or physical therapy for her neck or 

back, no surgery had been recommended, and she had not been to the emergency room within the 

past year. (Id. at 60-61.) She took arthritis medication in the form of a pill. (Id. at 61.) She would 

not have been able to stand or walk for 3 hours per workday within the past year, as in her prior 

bank teller job; she would, however, be able to walk up to one-third of a mile. (Id. at 61-62.) She 

was in “so much pain trying to walk and do [home]exercises.” (Id. at 62.) She rated her pain at a 

level 10 even while taking medication; besides her arthritis medication, she took naproxen three 

times per day, or as needed, and a muscle relaxer three times per day. (Id. at 62-63.) She would lie 

on a heating pad to relieve the pain. (Id. at 63.) 

Plaintiff could stand or walk for 10 to 15 minutes at most before she began to feel pain in 

her lower back, hip, and leg. (Id.) She could sit for about 20 to 30 minutes before she would “stiffen 

up” and needed a 3-minute break to get up and move. (Id. at 64.) She could lift and carry no more 

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than about 3 pounds, but she could lift an 8-pound gallon of milk from the refrigerator and carry 

it to the counter. (Id. at 64-65.) 

She could not drive 30 or 40 minutes, but she could drive around the block for no more 

than 10 minutes to get to her medical appointments “right down the street” from her. (Id. at 66.) 

She was able to regularly keep up with her personal care, but it was “hard” and a “chore” for her. 

(Id.) She had stayed in bed “a lot”, or about 4 days per week, over the previous year. (Id. at 66-

67.) She was able to prepare small or quick meals for herself. (Id. at 67.) Her husband took care of 

the household chores. (Id.) 

On cross-examination, Plaintiff testified that she had pain in both hands and wrists, 

although more on the right side. (Id. at 68.) Her doctors attributed it to arthritis, they prescribed 

her methotrexate for joint pain and naproxen for swelling, and they advised her to wear a 

compression glove, which she wore on her right hand. (Id. at 67-68.) She had taken Lyrica for 

fibromyalgia, but she was taken off it because it did not help her. (Id. at 69.) She would not be able 

to live in her house and maintain it all by herself. (Id. at 70.) She dealt with chronic pain and 

stiffness “every day all day”. (Id. at 71.) 

2. VE’s Testimony 

The VE testified that Plaintiff had past work as a bank customer service representative 

(DOT 205.362-026, light, SVP-6)6

, insurance sales agent (DOT 250.257-010, light, SVP-6), bank 

teller (DOT 211.362-018, light, SVP-5), mortgage modification department customer service 

representative (DOT 241. 367-014, sedentary, semi-skilled, SVP-5), and claims clerk I (DOT 

241.362-010, sedentary, semi-skilled, SVP-4). (Id. at 72.) 

The VE first considered a hypothetical individual with Plaintiff’s age, education, and past 

6

 DOT stands for Dictionary of Occupational Titles; SVP stands for Specific Vocation Preparation. 

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work experience who could perform work at the light exertional level, as defined in the regulations, 

except that she could have frequent but not constant exposure to temperature extremes of cold, and 

frequent but not constant exposure to pulmonary irritants such as fumes, odors, dust, and gases. 

(Id. at 72-73.) The individual could understand, remember, and carry out simple tasks with short 

simple instructions; make simple work-related decisions or judgments; maintain attention, 

concentration and pace sufficient to perform simple work tasks; and have frequent but not constant 

interaction with coworkers and supervisors. (Id. at 73.) The VE testified that the individual could 

not perform past work, but she could still perform work in the light exertional level, such as a 

merchandise marker (DOT 209.587-034, unskilled, SVP-2), with 129,000 jobs nationally; mail 

clerk (DOT 209.687-026, unskilled, SVP-2), with 19,000 jobs nationally; and cashier II (DOT 

211.462-010, unskilled, SVP-2), with 569,000 jobs nationally. (Id. at 73-74.) 

The VE next considered a second hypothetical individual with the same exertional level 

and limitations as the first hypothetical individual, except that due to pain and a combination of 

impairments, she would need at least two more 15-minute breaks. (Id. at 74.) The individual would 

not be competitive among coworkers or other applicants for any work. (Id.) 

The VE’s testimony was consistent with the DOT and SCO as well as her education and 

experience. (Id.) 

On cross-examination, the VE opined that the individual could not perform the identified 

jobs at a competitive level if she could sit, stand, and walk less than 2 hours in a workday, or if 

she was limited to occasional grasping, turning, twisting, and fine manipulation. (Id. at 74-75.) 

D. ALJ’s Findings 

The ALJ issued an unfavorable decision on November 12, 2021. (Id. at 15-32.) At step one, 

she found that Plaintiff had not engaged in substantial gainful activity between her alleged onset 

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date of May 23, 2020, through her date last insured of December 31, 2025. (Id. at 17.) At step two, 

she found that Plaintiff had the severe impairments of degenerative disc disease of the cervical and 

lumbar spines, polyarthritis, asthma, obesity, major depressive disorder, generalized anxiety 

disorder, and PTSD, and the non-severe impairments of hypertension, hyperlipidemia, OSA, and 

psoriasis; she found that Plaintiff’s fibromyalgia and prolapsed uterus were not medically 

determinable impairments. (Id. at 20-22.) 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. 

§§ 404.1520(d), 404.1525-404.1526). (Id. at 22.) She expressly considered Listings 1.15, 1.16, 

3.03, and 14.09. (Id. at 22-24.) 

Next, the ALJ determined that Plaintiff retained the physical RFC to perform light work, 

as defined in 20 C.F.R. § 416.1567(b), with some mental and environmental limitations. (Id. at 24-

25.) At step four, she found, based on the VE’s testimony, that Plaintiff could not perform her past 

work. (Id. at 30.) At step five, she found that transferability of job skills was not material to the 

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

was not disabled regardless of whether she had transferable job skills, but considering her age, 

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

national economy that she could perform. (Id. at 30-31.) The ALJ determined that Plaintiff had not 

been under a disability, as defined by the Social Security Act, at any time from the amended alleged 

onset date of May 23, 2020, through the date of her decision of November 12, 2021. (Id. at 32.) 

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 

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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. 

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. 

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15 

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 [s]he has done in the past, a finding 

of “not disabled” must be made. 

5. If an individual’s impairment precludes h[er] from performing h[er] 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 her burden under the first four steps, the burden shifts to the Commissioner at step five to 

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

capable of performing. Greenspan, 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). 

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III. ISSUES FOR REVIEW 

Plaintiff presents the following issues for review: 

1. Section 404.1520c requires the ALJ to assess the supportability and consistency of 

opinions from “medical source(s),” including licensed healthcare workers. In this case, 

the ALJ rejected a functional capacity evaluation and medical opinion because they 

were not from an “acceptable medical source” and were “based on the claimant’s 

subjective symptoms.” Do the ALJ’s remarks comply with Section 404.1520c when 

the evidence was provided by a licensed occupational therapist who attributed his 

opinion to objective findings rather than Plaintiff’s allegations? 

2. A claimant’s submission of new evidence requires remand when the evidence raises a 

“reasonable probability” of changing the outcome. In this case, Plaintiff submitted to 

the Appeals Council a questionnaire from her treating rheumatologist, who reported 

disabling limitations similar to those previously reported by her occupational therapist. 

Does this raise a reasonable probability of changing the outcome when the ALJ rejected 

the prior opinion, in part, because an occupational therapist was not an “acceptable 

medical source”? 

(doc. 16 at 7.) 

A. Medical Source Opinion Evidence 

The Commissioner is entrusted to make determinations regarding disability, including 

weighing inconsistent evidence. 20 C.F.R. §§ 404.1529, 416.929. Every medical opinion is 

evaluated regardless of its source, but the Commissioner “will not defer or give any specific 

evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative 

medical finding(s), including those from h[er] medical sources.” 20 C.F.R. §§ 404.1520c(a), 

416.920c(a).7

 A medical opinion is a statement from a medical source about what the claimant can 

still do despite her impairments and whether she has one or more impairment-related limitations 

or restrictions in the ability to perform common demands of work. 20 C.F.R. §§ 404.1513(a)(2), 

7

 On January 18, 2017, the Administration updated the rules on the evaluation of medical evidence. See

Fed. Reg. 5844, 5853 (Jan. 18, 2017). For claims filed on or after March 27, 2017, the rule that treating sources be 

given controlling weight was eliminated. See Winston v. Berryhill, 755 F. App’x 395, 402 n.4 (5th Cir. 2018) (citing 

20 C.F.R. § 404.1520c(a)) (“We will not defer or give any specific evidentiary weight, including controlling weight, 

to any medical opinion(s)”). Plaintiff filed her application after the effective date, so the new regulations apply. 

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416.913(a)(2). 

The guidelines provide that the ALJ’s determination or decision will explain how 

persuasive she finds “all of the medical opinions and all of the prior administrative medical 

findings in [the] case record.” 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b). “The measuring stick 

for an ‘adequate discussion’ is whether the ALJ’s persuasiveness explanation enables the court to 

undertake a meaningful review of whether h[er] finding with regard to the particular medical 

opinion was supported by substantial evidence, and does not require the [c]ourt to merely speculate 

about the reasons behind the ALJ’s persuasiveness finding or lack thereof.” Cooley v. Comm’r of 

Soc. Sec., No. 2:20-CV-46-RPM, 2021 WL 4221620, at *6 (S.D. Miss. Sept. 15, 2021) (citations 

omitted). Five factors are considered in evaluating the persuasiveness of medical opinion(s): (1) 

supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and (5) other 

factors which “tend[s] to support or contradict the opinion.” 20 C.F.R. §§ 404.1520c(c)(1)-(5), 

416.920c(c)(1)-(5). The most important factors are supportability and consistency. 20 C.F.R. 

§§ 404.1520c(a), 416.920c(a). Supportability concerns the degree to which the objective medical 

evidence and supporting explanations of the medical source support his own opinions, while 

consistency concerns the degree to which the medical source’s opinion is consistent with the 

evidence from other medical sources and nonmedical sources within the record. See 20 C.F.R. 

§§ 404.1520c(c)(1), (2), 416.920c(c)(1), (2). The ALJ’s determination or decision must explain 

how she “considered the supportability and consistency factors for a medical source’s medical 

opinions or prior administrative medical findings.” 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). 

She may, but is not required to, explain how she considered the remaining factors. Id.

When a medical source provides multiple medical opinions, the ALJ will articulate how 

she “considered the medical opinions or prior administrative medical findings from that medical 

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source together in a single analysis using the factors,” but she is not required to articulate how she 

considered each medical opinion or prior administrative medical finding from one medical source 

individually. 20 C.F.R. §§ 404.1520c(b)(1), 416.920c(b)(1). The ALJ evaluates the persuasiveness 

of the opinions when determining disability, and the sole responsibility for a disability 

determination rests with her. See Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000) (citation 

omitted). 

Here, Occupational Therapist physically examined Plaintiff on October 20, 2021, and 

provided an arthritis RFC questionnaire on her limitations based on an FCE summary. (doc. 11-2 

at 575-89.) Plaintiff reported a lower back pain rating of 6/10 throughout the examination; it 

prevented her from completing the tests evaluating her ability to sit, stand, lift, carry, and reach. 

(Id. at 575-79, 580-81, 583.) Occupational Therapist found that her heartrate was consistent with 

her subjective pain rating of 6/10 and that her effort was always below the inconsistent or 

submaximal level. (Id. at 575, 578-81, 584.) He also found that she could sit or stand 10 minutes 

at once and less than 2 hours in an 8-hour workday and walk half a block at once and less than 2 

hours in an 8-hour workday; needed to alternate positions and take a break every 10 minutes; could 

never lift or carry 10 pounds; could never stoop, bend, crouch, squat, or climb ladders, and rarely 

twist; and could finger, grasp, turn, and twist objects, and reach in all directions 10 percent of the 

time with her right side and 20 percent of the time with her left side. (Id. at 587-89.) He also noted 

that she would likely miss more than 4 workdays per month and that her impairments were 

“reasonably consistent” with her symptoms and functional limitations. (Id. at 587, 589.) 

The ALJ specifically “acknowledged” Occupational Therapist’s FCE summary and RFC 

questionnaire and found them “not persuasive” because: 

[Occupational Therapist’s] opinion and findings are based on [Plaintiff]’s subjective 

complaints and she is specifically noted to have not completed several portions of the 

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evaluation and was noted [to] complain of severe pains in various areas (14F/10, 8, 6, 5, 

2). He is also not an acceptable medical source. However, his findings and opinion were 

considered with the totality of the evidence. 

(doc. 11-1 at 30.)8

 

The ALJ’s evaluation of Occupational Therapist’s opinion fails to comply with the 

requirements 20 C.F.R. §§ 404.1520c(b), 416.920c(b). Although she considered it, she “was also 

required to explain how persuasive [s]he found [the] opinion, at least with respect to the factors of 

supportability and consistency.” William T. v. Comm’r of Soc. Sec., No. 6:18-CV-0055-BU, 2020 

WL 6946517, at *6 (N.D. Tex. Nov. 25, 2020) (citing 20 C.F.R. § 404.1520c(b)(2)) (emphasis 

original). The ALJ failed to sufficiently explain “consistency”; she never discussed how 

Occupational Therapist’s opinion on Plaintiff’s physical limitations was not consistent with other 

medical evidence. See Cardenas v. Kijakazi, No. 7:21-CV-0135, 2022 WL 2719044, at *7 (S.D. 

Tex. June 3, 2022), adopted sub nom. by 2022 WL 2715204 (S.D. Tex. July 12, 2022) (finding 

ALJ’s failure to expressly address supportability factor “at all” was an error of law). Notably, 

Rheumatologist’s May 2021 treatment note indicated that Plaintiff complained of pain in her lower 

back, hip, and hands, she was unable to walk two or three kilometers, and she reported having a 

10/10 pain rating a week earlier. (doc. 11-2 at 492, 496-97.) Rheumatologist specifically diagnosed 

her with polyarthritis, fibromyalgia, degenerative disc disease of lumbar spine, degenerative 

arthritis of cervical spine, and back pain with radiculopathy. (Id. at 496-97.) While her physical 

examinations were generally normal, a May 2021 Clinic treatment note indicated that she 

complained of joint pain everywhere and had “limited ambulation”, “irregular gait”, hypotonicity, 

8

 The parties appear to agree that Occupational Therapist is a “medical source” whose opinion constitutes a 

“medical opinion”, which required an analysis under 20 C.F.R. §§ 404.1520c(b), 416.920c(b), as to its supportability 

and consistency with the record. (doc. 16 at 14-16; doc. 17 at 4-5.) As noted, the ALJ is required to “evaluate every

medical opinion [she] receive[s],” regardless of its source. 20 C.F.R. § 404.1527(c) (emphasis added) 

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abnormal motor strength, limited range of motion, and diffuse tenderness. (Id. at 820-22.) In 

November 2020, Rheumatologist specifically noted that Plaintiff appeared uncomfortable and 

complained of fatigue, chills, and pain all over. (Id. at 498-502.) Because Occupational Therapist’s 

limitations appear consistent with other medical evidence, the ALJ’s failure to provide any 

discussion of the consistency of Occupational Therapist’s opinion “makes it impossible to 

determine whether [she] properly considered and weighed that opinion.” See Cardenas, 2022 WL 

2719044, at *8. 

In addition, the ALJ did not expressly address the supportability of Occupational 

Therapist’s opinion, which constitutes an error of law. See William T., 2020 WL 6946517, at 

*6 (“[T]he [Social Security] regulations do not appear to contemplate a scenario where an ALJ 

fulfil[l]s h[er] legal obligation to consider a medical opinion without also explicitly discussing how 

[s]he did so.”). While the ALJ’s reference to Plaintiff’s incomplete examination and her subjective 

complaints as the basis of Occupational Therapist’s opinion could be construed as relating to 

supportability, she offers no explanation for these statements, and “[t]he ALJ’s decision must stand 

or fall with the reasons set forth in [her] decision, as adopted by the Appeals Council.” Newton, 

209 F.3d at 455 (citations omitted); (doc. 11-2 at 30). Moreover, Occupational Therapist’s RFC 

questionnaire references the FCE summary, which was specifically based on a two-hour physical 

examination of Plaintiff completed the same day, three times. (doc. 11-2 at 586-89.) The FCE 

summary, which accompanied the RFC questionnaire, describes the various tests performed 

(although Plaintiff was unable to complete some), rates her effort as “good” and as always less 

than the inconsistent and submaximal level, and cites several medical sources. (Id. at 775-89.) 

Although the ALJ may find that an opinion is unsupported by the medical evidence, “the ALJ must 

consider all the record evidence and cannot ‘pick and choose’ only the evidence that supports his 

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position.” Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000). Because the ALJ only questioned the 

basis of Occupational Therapist’s limitation findings without a substantive discussion of 

supportability, there is no “discernible logic bridge between the evidence and the ALJ’s 

persuasiveness finding.” Pearson v. Comm’r of Soc. Sec., No. 1:20-CV-166-HSO-RPM, 2021 WL 

3708047, at *5 (S.D. Miss. Aug. 11, 2021), adopted by 2021 WL 3663073 (S.D. Miss. Aug. 18, 

2021); see, e.g., Ramirez v. Saul, No. SA-20-CV-00457-ESC, 2021 WL 2269473, at *6 (W.D. 

Tex. June 3, 2021) (“The ALJ failed to build a ‘logical bridge’ between the evidence on Plaintiff’s 

ability to stand and walk, his rejection of the SAMCs opinions to that effect, and his ultimate 

determination that Plaintiff suffers from no limitations in this area.”). Accordingly, the ALJ erred 

in failing to adequately explain how he specifically considered the factors of supportability and 

consistency in deciding the persuasiveness of Occupational Therapist’s opinion. 

B. 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 

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, 816 (E.D. Tex. Nov. 28, 2006) (citing 

Frank v. Barnhart, 326 F.3d 618, 622 (5th Cir. 2003)). To establish prejudice that warrants remand, 

Plaintiff must show that the ALJ’s decision might have been different had she properly considered 

Occupational Therapist’s opinion regarding her functional limitations. See id. at 816 (citing 

Newton, 209 F.3d at 458). 

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Here, had the ALJ properly evaluated Occupational Therapist’s opinion regarding 

Plaintiff’s limitations, she could have found additional limitations that would have affected her 

RFC determination, or that precluded her from performing the jobs identified by the VE. The 

ALJ’s error was not harmless because it is not inconceivable that she would have reached a 

different decision had she found Occupational Therapist’s opinion as to Plaintiff’s physical 

limitations persuasive. See Ramirez, 2021 WL 2269473, at *7 (concluding reversal and remand 

was required where ALJ failed to explain the persuasiveness of medical opinions as to standing 

and walking limitations as it was impossible to determine whether ALJ’s decision was supported 

by substantial evidence); Cardenas, 2022 WL 2719044, at *8 (concluding that ALJ’s failure to 

sufficiently explain his consistency and supportability findings was prejudicial and required 

remand). Remand should be required on this basis.9

 

IV. CONCLUSION 

The Commissioner’s decision should be REVERSED, and the case should be 

REMANDED for further proceedings. 

SO ORDERED on this 20th day of March, 2023. 

9

 Because the ALJ’s determination of Plaintiff’s RFC on remand will likely affect the remaining issue, it is 

not addressed. 

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INSTRUCTIONS FOR SERVICE AND 

NOTICE OF RIGHT TO APPEAL/OBJECT 

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

the manner provided by law. Any party who objects to any part of these findings, conclusions and 

recommendation must file specific written objections within 14 days after being served with a 

copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In order to be specific, an objection must 

identify the specific finding or 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). 

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