IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

 

ROBERT L. KIRKLAND, §

 §

Plaintiff, §

 §

v. § Civil Action No. 4:22-cv-759-O-BP

 § 

COMMISSIONER OF §

SOCIAL SECURITY, §

 §

Defendant. §

 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Robert L. Kirkland (“Kirkland”) applied for Title II Disability Insurance Benefits (“DIB”) 

and Title XVI Supplemental Security Income benefits (“SSI”) under the Social Security Act 

(“SSA”). The Commissioner denied his application, deciding that he was not disabled. Kirkland

appealed. At issue is whether substantial evidence supports this decision when the administrative 

record lacks a medical opinion addressing how Kirkland’s alleged severe impairments affect his

ability to work. Finding that substantial evidence does not support the decision, the undersigned

RECOMMENDS that United States District Judge Reed O’Connor REVERSE and REMAND 

this action for further proceedings.

I. BACKGROUND

Sixty-two-year-old Kirkland seeks disability benefits under Title II and Title XVI of the 

SSA, claiming disability status since September 28, 2019. Soc. Sec. Admin. R. (hereinafter “Tr.”), 

ECF No. 13-1 at 299. Kirkland claims that he suffers from vertigo, diabetes, stents placed for heart 

conditions, and lesions. Tr. 326. The Commissioner decided that he was not disabled and denied 

his application initially and upon reconsideration. Tr. 100-01; 132-33. Kirkland requested a 

Case 4:22-cv-00759-O Document 21 Filed 04/25/23 Page 1 of 13 PageID 3333
2

hearing before an Administrative Law Judge (“ALJ”) (Tr. 188-89), who conducted the hearing 

(Tr. 35-66) and affirmed the Commissioner’s denial in a twenty-page decision. Tr. 15-34. After 

the Appeals Council denied review (Tr. 1-7), Kirkland filed this civil action seeking judicial review

under 42 U.S.C. §§ 405(g) and 416(g). See ECF No. 1; Higginbotham v. Barnhart, 405 F.3d 332, 

334 (5th Cir. 2005) (citing 20 C.F.R. § 416.1400(a)(5)) (“[T]he Commissioner’s decision does not 

become final until after the Appeals Council makes its decision denying the claimant’s request for 

review.”). Kirkland argues that substantial evidence does not support the ALJ’s residual functional 

capacity (“RFC”) determination. ECF No. 18 at 9.

II. STANDARD OF REVIEW

Titles II and XVI of the SSA govern the DIB and SSI programs, respectively. See 42 U.S.C. 

§§ 401-434, 1381-1383f. Claimants seeking benefits under either program must prove that they 

are “disabled” within the meaning of the SSA. See Hollis v. Bowen, 837 F.2d 1378, 1382 n.3 (5th 

Cir. 1988) (stating the “relevant law and regulations governing the determination of disability 

under a claim for [DIB] are identical to those governing the determination under a claim for 

[SSI]”). 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.” 42 U.S.C. § 423(d)(1)(A); accord id. § 1382c(a)(3)(A). To determine whether a claimant 

is disabled and thus entitled to benefits, the Commissioner employs a sequential five-step 

evaluation process. 20 C.F.R. §§ 404.1520(a), 416.920(a). 

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

§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). “Substantial gainful activity” is work that “involves doing 

significant physical or mental activities” for pay or profit. Id. §§ 404.1572, 416.972. Second, the 

Case 4:22-cv-00759-O Document 21 Filed 04/25/23 Page 2 of 13 PageID 3334
3

claimant must have a severe impairment or combination of impairments. Id. §§ 404.1520(a)(4)(ii), 

416.920(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), 

416.920(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 RFC 

and considers his past relevant work (“PRW”). See id. §§ 404.1520(a)(4), (e)-(f), 416.920(a)(4), 

(e)-(f). RFC means “the most [a claimant] can still do despite his limitations.” Id.

§§ 404.1545(a)(1), 416.945(a)(1). 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), 416.960(b)(1). 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), 416.920(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), 416.920(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, 837 F.2d at 1382. “Substantial evidence 

Case 4:22-cv-00759-O Document 21 Filed 04/25/23 Page 3 of 13 PageID 3335
4

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 resolve.” Brown v. 

Apfel, 192 F.3d 492, 496 (5th Cir. 1999) (alteration in original) (quoting Selders v. Sullivan, 914 

F.2d 614, 617 (5th Cir. 1990)).

III. ANALYSIS

A. The ALJ included additional physical limitations in the RFC in concluding 

that Kirkland was not disabled.

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

See Tr. 20-28. First, the ALJ found that Kirkland has not engaged in substantial gainful activity 

since September 28, 2019. Id. at 20. Second, he found four medically severe impairments: coronary 

artery disease, with arteriosclerosis of the native coronary artery, angina pectoris, and status post 

catheterization and stenting; type II diabetes mellitus, with diabetic polyneuropathy, and mild-tomoderate non-proliferative diabetic retinopathy; central vestibular vertigo/benign positional 

vertigo; and obesity. Id. at 21. Third, he identified no impairment or combination of impairments 

that qualify under the federal regulatory list. Id. at 22. He then assessed Kirkland’s RFC: 

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

claimant has the [RFC] to perform light work defined as in 20 C.F.R. 

[§§] 404.1567(b) and 416.967(b) except he can frequently balance 

Case 4:22-cv-00759-O Document 21 Filed 04/25/23 Page 4 of 13 PageID 3336
5

on uneven surfaces or terrain, can frequently stoop, kneel, crouch, 

or crawl; can frequently climb stairs or ramps, can never climb 

ladders, ropes, or scaffolds, can never be exposed to unprotected 

heights or moving machinery parts, can never operate a motor 

vehicle or heavy equipment, and can occasionally be exposed to 

vibrations.

Tr. 24. Using this RFC determination and hearing testimony from a vocational expert (“VE”), the 

ALJ determined at step four that Kirkland could perform PRW, specifically as a Construction 

Superintendent. Id. at 27-28. The step four finding meant that Kirkland was ineligible for DIB or

SSI because he was not disabled, a finding that terminated the ALJ’s evaluation. Id. at 20; see 

Lovelace, 813 F.2d at 58. Kirkland urges reversal because the ALJ provided insufficient medical 

evidence to support his RFC evaluation.

B. Reversal and remand are necessary because substantial evidence does not 

support the ALJ’s RFC determination. 

Determining a claimant’s RFC is the ALJ’s responsibility. 20 C.F.R. § 404.1546(c); Taylor 

v. Astrue, 706 F.3d 600, 602–03 (5th Cir. 2012). Even if the ALJ errs, reversal is only proper if 

prejudice results. See Morris v. Bowen, 864 F.2d 333, 335 (5th Cir. 1988). Here, the ALJ’s decision 

proceeded through the five-step evaluation process. Tr. 20-28. The ALJ determined Kirkland’s 

RFC after step three. Id. at 24. In arriving at the RFC, the ALJ analyzed two medical opinions of 

record, provided by state agency medical consultants (“SAMC”) who each opined that Kirkland

was “capable of performing work requiring light exertion, and must avoid even moderate exposure 

to hazards.” See Id. at 26. Hazards could include operating machinery and working at elevated 

heights. Id. at 85. The ALJ found their opinions “only somewhat persuasive” and determined that 

“a reading of the record in the light most favorable to the claimant can support additional 

limitations.” Id. at 26. The additional postural and environmental limitations, previously 

unaccounted for, included balancing on uneven surfaces, frequent stooping, kneeling, crouching, 

Case 4:22-cv-00759-O Document 21 Filed 04/25/23 Page 5 of 13 PageID 3337
6

crawling, or climbing stairs or ramps, and occasional exposure to vibrations. Id. at 27. The ALJ 

concluded that the “evidence and the record as a whole, establishes that the claimant’s impairments 

have generated the limitations included in this [RFC].” Id.

Kirkland contends that substantial evidence does not support the ALJ’s formulation of his 

RFC, as the ALJ “constructed the RFC out of whole cloth.” ECF No. 18 at 9. He alleges that the 

ALJ relied on no medical opinion to guide him while addressing how Kirkland’s severe 

impairments limited his ability to work. ECF No. 18 at 10. He claims that this was harmful error.

See Williams v. Astrue, 355 F. App’x 828, 832 (5th Cir. 2009); Frank v. Barnhart, 326 F.3d 618, 

622) (5th Cir. 2003) (The medical expertise of the SSA is reflected in regulations; it is not the 

“birthright of the lawyers who apply them.”). The Commissioner responds that because the ALJ 

reviewed all relevant evidence in the record, he properly assessed Kirkland’s RFC. ECF No. 19 at

4-5. The Commissioner argues in her brief that the ALJ is solely responsible for determining a 

claimant’s RFC, but a few sentences later also recognizes that he must “assess all the objective 

and subjective evidence and formulate the RFC from that analysis.” Id. at 5; Taylor, 706 F.3d at 

602-03. Because Williams applied the Fifth Circuit’s holding in Ripley, 67 F.3d at 552, the inquiry 

begins there.

1. Ripley and the Court.

Substantial evidence did not support the ALJ’s RFC determination in Ripley, thus 

warranting remand, because the record “d[id] not clearly establish...the effect [the claimant’s] 

condition had on his ability to work.” Ripley, 67 F.3d at 557. The ALJ found Ripley not disabled 

because he could perform sedentary work. Id. Even though the record included “a vast amount of 

medical evidence,” including “reports discussing the extent of Ripley’s injuries,” no reports from 

Case 4:22-cv-00759-O Document 21 Filed 04/25/23 Page 6 of 13 PageID 3338
7

“qualified medical experts” showed how Ripley’s condition affected his ability to perform

sedentary work. Id. at 557 & n.27. 

The Court recognizes Ripley’s proposition that reversible error lies where the “record does 

not clearly establish” how an applicant’s condition affects his ability to work. Thornhill v. Colvin, 

No. 3:14-cv-335-M, 2015 WL 232844, at *10 (N.D. Tex. Dec. 15, 2014) (quoting Ripley, 67 F.3d 

at 557), rec. adopted, 2015 WL 232844 (N.D. Tex. Jan. 16, 2015). The claimant in Thornhill

alleged disability from depression but was found “not disabled.” Id. at *1. Finding the claimant’s 

symptoms mild, the ALJ determined than the claimant was less limited than did a registered nurse, 

physician, and licensed professional counselor, but more limited than did two SAMCs. Id. at *9. 

The RFC determination reflected an ability to work, but was erroneous to the extent that it “added 

mental limitations . . . to accommodate for [the claimant’s] mild symptoms.” Id. at *10. Even 

though adding mental limitations suggested that the ALJ was “simply giving [the claimant] the 

benefit of the doubt as to what limitations might apply,” the only supporting evidence was progress 

notes that did not address the claimant’s ability to work. Id. While the ALJ could depart from the 

relevant medical opinions, it then “became incumbent upon the ALJ to obtain an expert medical 

opinion” to fill the gap. Id. (citing Ripley, 67 F.3d at 557). 

The Court again found reversible error where an ALJ determined a mental RFC after 

rejecting the only medical opinions that could support the determination. Fitzpatrick v. Colvin, No. 

3:15-cv-3202-D, 2016 WL 1258477, at *7–8 (N.D. Tex. Mar. 31, 2016). Two SAMCs found the 

claimant’s alleged mental impairment not severe, creating only mild issues with daily living; social 

functioning; and “maintaining concentration, persistence, or pace.” Id. at *7. The ALJ rejected 

their opinions and found the claimant “more limited.” Id. at *7 & n.6. The RFC provided that the 

claimant could function in a “simple work environment” featuring “simple routine instructions” 

Case 4:22-cv-00759-O Document 21 Filed 04/25/23 Page 7 of 13 PageID 3339
8

and “occasional contact with coworkers and supervisors.” Id. at *7. But only the rejected 

consultants’ opinions supported such an RFC. Id. at *8. Applying Ripley and Thornhill, the Court 

construed the ALJ’s RFC determination as an improper attempt to address the claimant’s mental 

impairments without relying on a supporting medical opinion. Id. at *7–8. 

In Ripley, Thornhill, and Fitzpatrick, the ALJ’s failure to obtain a medical opinion 

addressing how the respective claimants’ impairments affected their ability to work warranted 

reversal and remand in each instance. See Ripley, 67 F.3d at 557–58; Thornhill, 2015 WL 232844, 

at *11; and Fitzpatrick, 2016 WL 1258477, at *12. The undersigned’s recommendations in 

Alexander v. Saul, No. 7:19-cv-00127-M-BP, 2020 WL 4573847 (N.D. Tex. July 9, 2020), rec. 

adopted, 2020 WL 4569034 (N.D. Tex. Aug. 7, 2020) and Bowles v. Comm'r of Soc. Sec., No.

7:20-cv-00112-O-BP, 2021 WL 7451148, at *3 (N.D. Tex. Oct. 19, 2021), rec. adopted, 2022 WL 

768546 (N.D. Tex. Mar. 14, 2022) reached similar conclusions in cases with similar facts.

2. There is no substantial evidence to support Kirkland’s severe

impairments finding.

The record does not clearly establish the effects of Kirkland’s severe impairments on his

ability to work. Just as in Fitzpatrick and Thornhill, the ALJ departed from the SAMCs’ opinions 

(Tr. 67, 78, 89, 102, 117) and determined that Kirkland’s impairments required more limitations.

Tr. 27. As in Fitzpatrick, the SAMCs’ opinions support the RFC determination to some extent. Tr. 

84, 109. Each acknowledges that Kirkland had some exertional limitations involving his ability to 

lift and carry and the number of hours in a day that he could spend sitting, standing, or walking. 

Id. They did not discuss much about Kirkland’s PRW other than to list those jobs and write that 

he did have the RFC to perform his PRW, stating that “the evidence shows that the individual has 

some limitations in the performance of certain work activities; however, these limitations would 

not prevent the individual from performing PRW as [a] Superintendent.” Id. at 87, 112. 

Case 4:22-cv-00759-O Document 21 Filed 04/25/23 Page 8 of 13 PageID 3340
9

While the ALJ was free to reject these medical opinions in the record, he then had to obtain

a medical opinion supporting which work tasks Kirkland could perform despite his impairments. 

Fitzpatrick, 2016 WL 1258477, at *7 (applying Thornhill, 2015 WL 232844, at *10, and Ripley, 

67 F.3d at 557–58). The ALJ did not do so, but instead, as in Thornhill and Fitzpatrick, adjusted

the RFC determination for slightly modified postural and environmental limitations. Tr. 25-27; 84-

88; 109-116. Because the ALJ did not cite a medical opinion that supported his conclusion, the 

Court must conclude that he improperly used his lay interpretation of raw medical data to 

accommodate Kirkland’s severe impairments. See Williams, 355 F. App’x at 832, & n.6. Reversal 

is thus proper, even if the ALJ was giving Kirkland more limitations than otherwise would have 

been required. See Thornhill, 2015 WL 232844, at *10. 

The ALJ “has a duty to develop the facts fully and fairly” when the record lacks “reports 

from qualified medical experts” explaining how a claimant’s condition affects his ability to work, 

“no matter how ‘small’” the effects may be. Ripley, 67 F.3d at 557 & n.27. The Commissioner 

claims that a fair reading of the ALJ’s decision is that “the ALJ was properly interpreting the 

medical evidence to determine Kirkland’s capacity for work.” ECF No. 19 at 5. However, because 

medical opinions do not support the narrative to explain how Kirkland’s severe impairments affect 

his ability to work, the Commissioner’s argument falls short. 

The ALJ’s decision cites many medical reports supporting his finding that Kirkland was 

not disabled. The ALJ could tell from Kirkland’s treatment records that there were only “few signs 

consistent with functional limitations.” Tr. 26, 469, 606; ECF No. 19 at 6. He also noted that 

although some November 2019 reports showed that Kirkland exhibited tenderness and decreased

ranges of motion in his hip, “physical examinations dated after this reflect even fewer signs 

consistent with functional limitation.” Tr. 849-49, 2493, 2855; ECF No. 19 at 6. 

Case 4:22-cv-00759-O Document 21 Filed 04/25/23 Page 9 of 13 PageID 3341
10

The ALJ’s decision also cited examples where the records conflicted and where he believed

some limitations were warranted, aligning more closely with the SAMCs’ findings. For example, 

the ALJ noted that 

although Kirkland infrequently exhibited signs consistent with 

significant dizziness or instability, his consistent complaints of 

vertigo, the above-described vestibular abnormalities, and his 

emergency room visits for apparently related symptoms indicate that 

he did experience this symptom, and that it has likely limited his 

ability to perform work requiring him to lift or carry objects that 

might generate significant injury if dropped, and to work in areas 

with even moderate exposure to hazards. 

Tr. 26-27; ECF No. 19 at 7. He also observed that “although treating and examining providers 

infrequently observed signs consistent with cardiovascular or diabetic limitation, Kirkland’s 

consistently and occasionally extremely high A1c readings, and the necessity during the relevant 

period for cardiovascular stenting indicates that these impairments have also likely generated some 

level of exertional limitation.” Tr. 27; ECF No. 19 at 7. 

The SAMCs’ opinions, which the ALJ rejected in relevant part, addressed Kirkland’s 

ability to perform his PRW and his overall disability status. Tr. 27. However, the ALJ 

acknowledged that the SAMCs’ opinions were only somewhat persuasive and that further 

limitations were warranted. Id. Once the ALJ made these incremental changes, he was left with no 

medical assessment to show how Kirkland’s medical conditions would translate to these new 

postural and environmental limitations. See Tr. 97, 111; see also Winston v. Berryhill, 755 F. 

App’x 395, 403 (5th Cir. 2018) (citing 20 C.F.R. § 404.1527(a)(2)) (“[T]he definition of a ‘medical 

opinion’ requires both an evaluation of symptoms and an expression of judgment regarding a 

claimant’s capabilities and restrictions.”).

As in Ripley, the Commissioner points to other parts of the ALJ’s decision suggesting that 

the treatment records, consultative examination reports, SAMCs findings, and Kirkland’s 

Case 4:22-cv-00759-O Document 21 Filed 04/25/23 Page 10 of 13 PageID 3342
11

subjective self-reports, all support the ALJ’s findings. ECF No. 19 at 6-8; see Ripley, 67 F.3d at 

557. The Commissioner argues that “the ALJ considered all of the objective and subjective 

evidence of record, and substantial evidence supports the RFC assessment” ECF No. 19 at 8. The 

Commissioner is correct that the ALJ considered and cited this evidence in his decision. Tr. 25-

27. Nevertheless, the ALJ may not rely on his own unsupported opinion as to what limitations 

Kirkland’s medical conditions require, which is what the ALJ did here. Williams, 355 F. App’x at 

832 n.6; see also Graves v. Kijakazi, No. 3:22-cv-0107-L-BH, 2023 WL 2025247 at *16-17 (N.D. 

Tex. January 31, 2023). 

ALJs enjoy complete discretion regarding whether to order a consultative examination. 

Jones v. Bowen, 829 F.2d 524, 526 (5th Cir. 1987). But in circumstances like this, if the ALJ elects 

not to do so, he must refer to expert opinion evidence to support the limitations that he imposes. 

ALJs have discretion as to the means, but not the ends. Id; see also Thornhill, 2015 WL 232844, 

at *10 (recognizing Ripley’s principle that reversible error lies where “the record does not clearly 

establish” a basis for the vocational limitations imposed). 

Developing the record prevents judges from playing the role of doctor, a role for which 

they are generally ill-equipped. See Frank, 326 F.3d at 622. This is true even if in cases like this, 

where it appears that the ALJ “generously provided for additional limitations” simply to give the 

claimant “the benefit of the doubt” when expert opinions found the claimant’s conditions less 

limiting. Thornhill, 2015 WL 232844, at *10; ECF No. 19 at 8. “While the ALJ could depart from 

the relevant medical opinions, it then ‘became incumbent upon the ALJ to obtain an expert medical 

opinion’ to fill the gap.” Bowles, 2021 WL 7451148, at *3 (quoting Thornhill, 2015 WL 232844, 

at *10); see also Silves H. v. Kijakazi, No. 3:22-cv-286-K-BN, 2022 WL 17345924, at *4 (N.D. 

Case 4:22-cv-00759-O Document 21 Filed 04/25/23 Page 11 of 13 PageID 3343
12

Tex. Nov. 14, 2022) (no supporting substantial evidence where no medical opinions supported the 

ALJ’s additional limitations).

The Court will not reverse the Commissioner’s decision where “the substantial rights of a 

party have not been affected.” Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988). But the ALJ’s

imposition of additional limitations without the benefit of expert medical opinion necessarily 

affected Kirkland’s substantive rights. Bowles, 2021 WL 7451148, at *3-4; see also Ripley, 67 

F.3d at 557 & n.27 (noting ALJs have “a duty to develop the facts fully and fairly” when the record 

lacks “reports from qualified medical experts” explaining how a claimant’s condition would 

impact his ability to work, “no matter how small” the effects may be). The absence of a medical 

opinion addressing Kirkland’s ability to work casts doubt on the ALJ’s decision. In similar cases 

where a medical opinion did not support the ALJ’s limitations, courts have found reversible error. 

See Williams, 355 F. App’x at 832; Thornhill, 2015 WL 232844, at *10-11. Further, because of 

his age and level of transferrable skills, if he had been unable to perform his PRW due in part to 

his postural limitations, Kirkland would automatically be found disabled. See 20 C.F.R. Part 404, 

Subpart P, App’x § 202.1 Thus, the Court must reverse the Commissioner’s decision no matter 

how understandable and reasonable the imposed limitations may be. Mays, 837 F.2d at 1364.

IV. CONCLUSION

Substantial evidence in the record does not support the ALJ’s findingsregarding Kirkland’s 

RFC due to a lack of supporting medical evidence. The undersigned thus RECOMMENDS that 

Judge O’Connor REVERSE and REMAND this action for further administrative proceedings. 

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 

Case 4:22-cv-00759-O Document 21 Filed 04/25/23 Page 12 of 13 PageID 3344
13

with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). 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) (en banc).

SIGNED on April 25, 2023. 

____________________________________

Hal R. Ray, Jr.

UNITED STATES MAGISTRATE JUDGE

Case 4:22-cv-00759-O Document 21 Filed 04/25/23 Page 13 of 13 PageID 3345