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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LADARRAH W.,

Plaintiff,

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§ 

§ 

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§ 

§ 

§

v. Case No. 3:22-cv-00951-K-BT

KILOLO KIJAKAZI, ACTING 

COMMISSIONER OF SOCIAL 

SECURITY,

Defendant.

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Before the Court is Plaintiff Ladarrah W.’s1 civil action seeking judicial 

review, pursuant to 42 U.S.C. § 405(g), of a final adverse decision by the 

Commissioner of Social Security (ECF No. 1). The District Court referred the case 

to the United States Magistrate Judge for pretrial management under 28 U.S.C. 

§ 636(b) and a standing order of reference. For the reasons explained below, the 

Magistrate Judge recommends that the District Court REVERSE the 

Commissioner’s decision and REMAND the case to the Commissioner.

Background

Plaintiff alleges that she is disabled due to a variety of impairments, 

including migraines, knee pain, arthritis in her back, ringing in her ears, 

1 The Court uses only Plaintiff’s first name and last initial as instructed by the 

May 1, 2018, Memorandum Re: Privacy Concern Regarding Social Security and 

Immigration Opinions issued by the Committee on Court Administration and Case 

Management of the Judicial Conference of the United States.

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depression, anxiety, and panic disorders. Admin. R. 249 (ECF No. 14-1).2 Plaintiff 

was born in 1982, and she alleges that she has been disabled since July 1, 2019. 

Admin. R. 91, 229. Plaintiff has more than a high school education and past 

relevant work experience as a contact representative, a nursing assistant, and a 

physician’s assistant. Admin. R. 91, 250. 

Plaintiff applied for disability insurance benefits on June 24, 2020. Admin. 

R. 229-30. Her claim was denied initially and on reconsideration. Admin. R. 141, 

159. Thereafter, Plaintiff requested a hearing before an Administrative Law Judge 

(ALJ), who conducted a telephonic administrative hearing on December 9, 2021.3

Admin. R. 82, 99-122. 

The ALJ found Plaintiff was not disabled and thus not entitled to disability 

benefits. Admin. R. 93. Utilizing the five-step sequential evaluation,4 the ALJ first 

2 Citations to the record refer to the CM/ECF page number at the top of each page 

rather than page numbers at the bottom of each filing. 3 Because of the extraordinary circumstances presented by the COVID-19 

pandemic, the ALJ was unable to conduct the hearing by video. 4 “In evaluating a disability claim, the [ALJ] conducts a five-step sequential 

analysis to determine whether (1) the [plaintiff] is presently working; (2) the 

[plaintiff] has a severe impairment; (3) the impairment meets or equals an 

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

impairment prevents the [plaintiff] from doing past relevant work; and (5) the 

impairment prevents the [plaintiff] from doing any other substantial gainful 

activity.” Audler v. Astrue, 501 F.3d 446, 447-48 (5th Cir. 2007). The plaintiff 

bears the initial burden of establishing a disability through the first four steps of 

the analysis; at the fifth step, the burden shifts to the ALJ to show that there is 

other substantial work in the national economy that the plaintiff can perform. Id.

at 448; Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014) (citations omitted). 

A finding that the plaintiff is disabled or not disabled at any point in the five-step 

review is conclusive and terminates the analysis. Copeland, 771 F.3d at 923 (citing 

Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995)); Lovelace v. Bowen, 813 F.2d 

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found that Plaintiff had not engaged in substantial gainful activity since her alleged 

onset date, July 1, 2019. Admin. R. 84. At the second step, the ALJ noted that 

Plaintiff suffers from migraines, bilateral knee pain, degenerative disc disease, 

osteoarthritis, GERD, obesity, and anxiety, and that those impairments are 

“severe.” Admin. R. 84. At the third step, he determined that Plaintiff’s severe 

impairments do not meet or medically equal any listed impairment in appendix 1 

of the social security regulations. Admin. R. 87. 

Before proceeding to the fourth step, the ALJ found that Plaintiff retained 

the residual functional capacity (RFC) 

to perform sedentary work as defined in 20 CFR [§]404.1567(a), 

except she can lift and/or carry 10 pounds occasionally and less than 

10 pounds frequently (push/pull as much as she can lift/carry). She 

can operate foot controls with the left and right foot occasionally. She 

can occasionally reach overhead to the left and right. She can 

occasionally climb ramps and stairs, but never climb ladders, ropes, 

or scaffolds and balance. She is able to perform simple, routine, and 

repetitive tasks but not at a production rate pace (e.g. assembly line 

work). She is able to interact occasionally with supervisors, 

coworkers, and the public. She is able to tolerate few changes in a 

routine work setting.

Admin. R. 88.

At step four, the ALJ found that Plaintiff was unable to perform any of her 

past relevant work. Admin. R. 91. Finally, at step five, after considering the 

testimony of a vocational expert (VE), the ALJ found that jobs exist in the national 

economy which Plaintiff could perform. Admin. R. 107-08. Therefore, the ALJ 

55, 58 (5th Cir. 1987) (citing Barajas v. Heckler, 738 F.2d 641, 643 (5th Cir. 1984)

(per curiam)).

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found that Plaintiff was not disabled under the Social Security Act and not entitled 

to benefits. Admin. R. 108. 

Plaintiff appealed the ALJ’s decision to the Appeals Council. Admin. R. 6. 

The Appeals Council found that the appeal did not provide a basis for modifying 

the ALJ’s decision. Admin. R. 5-12. Plaintiff then filed this action in federal district 

court. 

In her brief, Plaintiff argues that the ALJ’s decision is not supported by 

substantial evidence and is the product of legal error because (1) the ALJ failed to 

address the medical opinion of Physician Assistant (PA) Daniel McIntyre—who 

performed a “Compensation and Pension Orthopedic Exam” for the Veterans 

Administration—in violation of 20 C.F.R. § 404.1520c; and (2) the ALJ failed to 

resolve the conflict identified by the VE at the hearing, whether by VE testimony 

or by an explanation in the decision. Pl.’s Br. 13-19 (ECF No. 18). Because remand 

is appropriate on the grounds presented in Plaintiff’s first argument, the Court 

pretermits discussion of Plaintiff’s remaining arguments.

Legal Standard

The Court’s “review of Social Security disability cases ‘is limited to two 

inquiries: (1) whether the decision is supported by substantial evidence on the 

record as a whole, and (2) whether the [ALJ] applied the proper legal standard.’” 

Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014) (quoting Perez v. Barnhart, 

415 F.3d 457, 461 (5th Cir. 2005)). Substantial evidence is “more than a mere 

scintilla. It means such relevant evidence as a reasonable mind might accept as 

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adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 

(1971); see Copeland, 771 F.3d at 923 (“Substantial evidence is more than a mere 

scintilla and less than a preponderance.”). 

The ALJ, and not the courts, resolves conflicts in the evidence; the Court 

may not “reweigh the evidence or try the issues de novo.” Martinez v. Chater, 64 

F.3d 172, 174 (5th Cir. 1995) (per curiam). Hence, the Court may not substitute its 

own judgment for the ALJ’s, and it may affirm only on the grounds that the 

Commissioner stated to support her decision. Copeland, 771 F.3d at 923. If the 

Commissioner’s findings are supported by substantial evidence, the findings are 

conclusive, and the Commissioner’s decision must be affirmed. Martinez, 64 F.3d 

at 173. 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 v. Chater, 67 F.3d 558, 564 (5th Cir. 1995). 

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

stamp” and requires “more than a search for evidence supporting the [ALJ’s] 

findings.” Hill v. Saul, 2020 WL 6370168, at *6 (N.D. Tex. Sept. 29, 2020) (quoting 

Martin v. Heckler, 748 F.2d 1027, 1031 (5th Cir. 1984)), adopted by 2020 WL 

6363878 (N.D. Tex. Oct. 29, 2020) (Lindsay, J.). 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. (quoting Martin, 748 F.2d at 1031). A 

no-substantial-evidence finding is appropriate only if there is a “conspicuous 

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absence of credible choices” or “no contrary medical evidence.” Id. (citation 

omitted). 

Analysis

Plaintiff urges reversal because the ALJ did not consider a medical opinion 

based on an orthopedic exam PA McIntyre performed on March 8, 2019. Pl.’s Br. 

13. In response, the Commissioner argues that the ALJ was not required to address 

PA McIntyre’s opinion because McIntyre’s evaluation predates the disability 

period at issue in this appeal (which runs from July 1, 2019) and, alternatively, any 

error was harmless. Def.’s Br. 4-5 (ECF No. 19). 

An ALJ’s RFC analysis determines 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 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.” Hill, 2020 WL 6370168, at *3 (cleaned up) (quoting Hollis v. Bowen, 837 

F. 2d 1378, 1386-87 (5th Cir. 1988)). 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.” SSR 96-8p, 61 Fed. Reg. 34474, 34475 (July 2, 

1996). An individual’s RFC should be based on all the relevant evidence in the case 

record, including opinions submitted by medical sources. 20 C.F.R. § 

404.1545(a)(3); SSR 96-8p, supra. 

Under the current regulations, an ALJ need “not defer or give any specific 

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

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administrative medical finding(s).” 20 C.F.R. § 404.1520c(a); Webster v. Kijakazi, 

19 F.4th 715, 719 (5th Cir. 2021) (“ALJs are no longer required to give controlling 

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

and our caselaw in the past.”). However, the ALJ must consider all “medical 

opinions” for their “persuasiveness” using the factors outlined in the rule. 20 

C.F.R. § 404.1520c(a). These factors include supportability, consistency, 

relationship with the claimant, length of the treatment relationship, frequency of 

examinations, purpose of the treatment relationship, examining relationship, 

specialization, and other factors such as whether the medical source has familiarity 

with the other evidence in the claim. Id. § 404.1520c(c). The most important 

factors are supportability and consistency. Id.

The ALJ also must “articulate in [his] decision how persuasive [he] finds all 

of the medical opinions and all of the prior administrative medical findings in [the 

claimant’s] case record.” Id. § 404.1520c(b). Further, the ALJ must “explain how 

[he] considered the supportability and consistency factors for a medical source’s 

medical opinions or prior administrative medical findings.” Id. § 404.1520c(b)(2). 

He may, but need not, explain how he considered the remaining factors. Id. An ALJ 

commits legal error when he fails to address or even mention a medical opinion in 

the record without explanation. Kneeland v. Berryhill, 850 F.3d 749, 759 (5th Cir. 

2017); see also Webster, 19 F.4th at 718 (“An ALJ usually cannot reject a medical 

opinion without some explanation.”); Amanda J. v. Saul, 2020 WL 4697880, at *3 

(N.D. Tex. Aug. 13, 2020) (Boyle, J.) (“[A]n ALJ commits error when he fails to 

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address or mention a medical opinion—irrespective of whether the ALJ could have 

rejected it.”). 

Here, Plaintiff, a veteran, alleges that she injured her back while lifting 

patients as a U.S. Navy hospital corpsman. Admin. R. 1560, 1728. Record medical 

evidence exists that she has complained of chronic lower back pain since at least 

2005, when she was on active military duty. Admin. R. 495. On March 8, 2019, 

approximately four months prior to her alleged disability onset date, PA McIntyre 

performed an orthopedic exam for the VA and provided a medical opinion in a 

disability benefits questionnaire.5 Admin. R. 411-15. Specifically, PA McIntyre 

opined that Plaintiff’s back impairments had an impact on her ability to work and 

that her impairments “limited prolonged sitting/standing/twisting/pulling.”

Admin. R. 415. PA McIntyre rated Plaintiff’s pain as 4-10/10 and opined that it was 

made worse with standing/sitting/walking/pulling or lifting more than 15 pounds. 

Admin. R. 411. The ALJ rejected PA McIntyre’s medical opinion and found Plaintiff 

had the RFC for sedentary work, Admin. R. 88, which involves sitting 

“approximately 6 hours of an 8-hour workday,” SSR 96-9p, 1996 WL 374185, at *3 

(1996); 20 C.F.R. § 404.1567(a). 

The ALJ either rejected PA McIntyre’s medical opinion without explanation, 

or he gave it no consideration. Indeed, the ALJ fails to mention PA McIntyre’s 

medical opinion at all, even though it is listed as evidence of record in the written 

5 Under the current regulations, a PA is an “acceptable medical source” who may 

provide a medical opinion. 20 C.F.R. § 404.1502.

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opinion’s appendix. See Admin. R. 96. As noted above, this is error. The social 

security regulations require an ALJ to “articulate . . . how persuasive [he] find[s] 

all of the medical opinions . . . in [the claimant’s] case record.” 20 C.F.R. § 

404.1520c; see also Wallace v. Kijakazi, 2023 WL 2795854, at *8 (N.D. Tex. Mar. 

20, 2023) (“Every medical opinion is evaluated regardless of its source[.]”), 

adopted by 2023 WL 2801207 (N.D. Tex. Apr. 5, 2023) (Starr, J.). Moreover, the 

ALJ cannot reject any medical opinion of record “without an explanation.” 

Kneeland, 850 F.3d at 761. 

The Commissioner argues that the ALJ was not required to address PA 

McIntyre’s medical opinions because his March 8, 2019 evaluation predates the 

disability period at issue in this appeal (which runs from July 1, 2019) and, 

alternatively, any error was harmless. Def.’s Br. 4-5. The Court rejects the 

Commissioner’s arguments.

Section 404.1520c’s “command is not temporally limited—the ALJ must 

articulate ‘how persuasive’ he finds ‘all of the medical opinions’ in the case record.” 

Shedrick M. v. Kijakazi, 2022 WL 4134786, at *3 (N.D. Tex. Aug. 18, 2022)

(Rutherford, J.) (quoting 20 C.F.R. § 404.1520c), adopted by 2022 WL 4133308 

(N.D. Tex. Sept. 12, 2022) (Lynn, J.). That is, “an ALJ is required to consider all 

medical opinions in the record [and] [t]he regulations do not provide any 

exception to that requirement for relevant opinions that pre-date a claimant’s 

onset date.” Morris v. Kijakazi, 2022 WL 10177703, at *5 (N.D. Tex. Sept. 29, 

2022) (emphasis in original) (citations omitted), adopted by 2022 WL 10198818 

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(N.D. Tex. Oct. 17, 2022) (O’Connor, J.); see also Knapp v. Saul, 2020 WL 

3516130, at *6 (N.D. Tex. June 12, 2020) (finding that ALJ erred in failing to 

discuss medical opinion that predated alleged onset date of disability because ALJ 

must consider all medical opinions in the record), adopted by 2020 WL 3510732 

(N.D. Tex. June 29, 2020) (O’Connor, J.). 

Moreover, “even if the Court can intuit [the ALJ’s] reasons for discrediting 

[PA McIntyre’s] opinion, it must remand the case so the ALJ can make explicit that 

which is currently implicit in [his] findings.” Guy v. Comm’r of Soc. Sec. Admin., 

2022 WL 1008039, at *5 (N.D. Tex. Mar. 14, 2022) (citation omitted), adopted by

2022 WL 1004241 (N.D. Tex. Apr. 4, 2022) (O’Connor, J.). Accordingly, because 

PA McIntyre’s medical opinion was in the case record, it was error for the ALJ not 

to articulate in his decision how persuasive he found it, much less for him to reject 

it without an explanation or ignore it. 

Nevertheless, because “[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,” Plaintiff must show she was prejudiced 

by the ALJ’s failure to explain his consideration of PA McIntyre’s opinion. See 

Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988). In other words, Plaintiff must 

demonstrate that the ALJ’s error was not harmless. “In the Fifth Circuit, harmless 

error exists when it is inconceivable that a different administrative conclusion 

would have been reached absent the error.” Davidson v. Colvin, 164 F. Supp. 3d 

926, 944 (N.D. Tex. 2015) (Ramirez, J.).

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The Commissioner contends that the ALJ’s failure to consider PA McIntyre’s 

medical opinion was harmless because “it appears that PA McIntyre did not 

quantify the number of hours Plaintiff could sit, stand, twist or pull, meaning that 

his restrictions could still fit within the definition of sedentary work that the ALJ 

found Plaintiff capable of performing.” Def.’s Br. 4-5. The Court disagrees. 

The ALJ found Plaintiff capable of the full sitting requirements of sedentary 

work. See Admin. R. 88. As noted, sedentary work requires an individual to sit for 

approximately six hours in an eight-hour workday. See SSR 96-9p, 1996 WL 

374185, at *3 (1996). PA McIntyre stated in his opinion that Plaintiff was limited 

in that she could not sit for “prolonged” periods of time. Admin. R. 415. The Court 

concludes that it is not “inconceivable” that the ALJ would have reached a different 

conclusion had he considered PA McIntyre’s medical opinion. Had the ALJ 

considered PA McIntyre’s opinion, he may have included different limitations in 

his RFC determination or found her unable to do sedentary work. 

Whether the ALJ rejected PA McIntyre’s medical opinion without 

explanation, or he failed to consider it at all, his “root error was failing to address—

or even mention—[PA McIntyre’s] opinion in his decision.” Kneeland, 850 F.3d at 

761. Remand is appropriate for consideration of PA McIntyre’s opinion in the first 

instance. Or, even if the ALJ considered PA McIntyre’s medical opinion and 

rejected it, remand is appropriate for an explanation of why he rejected that

opinion. Id. Unless the ALJ explains why he rejected PA McIntyre’s medical 

opinion, the Court can never determine whether he applied correct legal standards 

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and reached a decision substantial evidence supports. Accordingly, because the 

Court cannot meaningfully review the ALJ’s decision without an explanation for 

his rejection of PA McIntyre’s medical opinion, this case should be remanded for 

further proceedings after which the ALJ may provide this mandatory explanation. 

And because remand is appropriate on the grounds presented in Plaintiff’s 

first argument, the Court pretermits discussion of Plaintiff’s remaining arguments. 

Plaintiff can raise these arguments before the ALJ on remand. See 20 C.F.R. § 

404.983 (providing that when a case is remanded from federal court, the ALJ may 

consider any issues relating to the claim).

Recommendation

For these reasons, the Magistrate Judge recommends that the District Court 

REVERSE the Commissioner’s decision and REMAND the case to the 

Commissioner for further proceedings. 

SO RECOMMENDED.

July 20, 2023. 

____________________________ 

REBECCA RUTHERFORD

UNITED STATES MAGISTRATE JUDGE

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation shall be served on all parties in 

the manner provided by law. Any party who objects to any part of this report 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 report 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 

Svcs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).

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