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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

ABILENE DIVISION

SHARRON M.1

, §

 §

Plaintiff, § 

 § 

v. § Civil Action No. 1:22-CV-00147-BU

 § 

COMMISSIONER, SOCIAL SECURITY §

ADMINISTRATION §

 § 

Defendant. §

MEMORANDUM OPINION AND ORDER 

Plaintiff Sharron M. seeks judicial review of a final adverse decision of the 

Commissioner of Social Security (the Commissioner) under 42 U.S.C. § 405(g). Dkt. 

No. 1. This case was automatically referred to the undersigned with a designation to 

exercise the district court’s full jurisdiction and conduct all proceedings in this case upon 

the consent of the parties. See Dkt. No. 6. The parties have consented to proceed before a 

magistrate judge and this case has been reassigned to the undersigned for all further

proceedings. Dkt. No. 22. 

For the reasons explained below, the Court affirms the Commissioner’s decision. 

I. BACKGROUND

Plaintiff alleges a disability that began on May 1, 2019. Administrative Record, Dkt. 

No. 13-1 (Tr.) at 16. After her application for disability and disability insurance benefits 

under Title II of the Social Security Act was denied initially and on reconsideration, 

1 Due to concerns regarding the privacy of sensitive personal information available to the public through opinions in 

Social Security cases, Plaintiff is identified only by first name and last initial.

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Plaintiff challenged the denial and requested a hearing before an Administrative Law Judge 

(ALJ). Tr. at 16. The ALJ held a hearing on August 30, 2021, where Plaintiff appeared 

with counsel. Tr. at 35. 

Plaintiff was born on September 25, 1969. Tr. at 40. The last grade of education 

Plaintiff completed was the tenth grade, and she has not received a GED. Tr. at 41. Prior 

to the onset of her alleged disability, Plaintiff worked as a cashier, waitress, and school 

cook. Tr. at 41–43. 

The ALJ determined that Plaintiff was not disabled and therefore not entitled to 

disability benefits. Tr. at 28. At step one of the ALJ’s analysis, the ALJ found that Plaintiff 

had not engaged in substantial gainful activity since her disability-onset date of May 1, 

2019. Tr. at 18. At step two, the ALJ found that Plaintiff suffered from the following severe

impairments: degenerative disc disease of the lumbar and cervical spine and osteoarthritis 

and meniscus tear of the right knee. Tr. at 19. At step three, the ALJ found that none of the 

Plaintiff’s impairments, or combination of impairments, meet the severity requirements of 

a listed impairment in the Social Security regulations. Tr. at 21. Additionally, the ALJ 

determined that Plaintiff had the residual functional capacity (RFC) to perform light work 

except that she:

can stand or walk for a combined four hours in an eight-hour workday. The 

claimant can frequently reach, handle, and finger bilaterally. The claimant 

can occasionally climb ramps or stairs, balance, stoop, kneel, and crouch. 

The claimant can never climb ladders, ropes, and stairs and crawl.

Tr. at 21.

At step four, the ALJ concluded that Plaintiff could not perform past relevant work

as a restaurant cashier, waitress, or school cook. Tr. at 25–26. At step five, the ALJ found 

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that Plaintiff could perform the positions of marker, electronic worker, and mail clerk. Tr. 

at 26–28. Because Plaintiff could perform jobs that existed in significant numbers in the 

national economy, the ALJ ultimately determined that, per the definition in the Social 

Security Act, Plaintiff was not disabled. Tr. at 28. 

Plaintiff appealed the ALJ’s findings to the Appeals Council, but the Council denied 

her request for review. Tr. at 5. Plaintiff subsequently filed this action in federal district 

court. 

II. LEGAL STANDARDS

Judicial review of the Commissioner’s decision to deny benefits is limited to 

determining whether that decision is supported by substantial evidence and whether the 

proper legal standards were applied to evaluate the evidence. See 42 U.S.C. § 405(g); 

Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014); Ripley v. Chater, 67 F.3d 552, 555 

(5th Cir. 1995).

Substantial evidence means more than a scintilla, but less than a preponderance. 

Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is “such relevant 

evidence as a responsible mind might accept to support a conclusion.” Harris v. Apfel, 209 

F.3d 413, 417 (5th Cir. 2000). While a reviewing court must scrutinize the administrative 

record to ascertain whether substantial evidence supports the Commissioner’s findings, it 

may not reweigh the evidence, try issues de novo, or substitute its own judgment for that 

of the Commissioner. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994); Hollis v. 

Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988). “If the Commissioner’s findings are 

supported by substantial evidence, then the findings are conclusive and the 

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Commissioner’s decision must be affirmed.” Martinez v. Chater, 64 F.3d 172, 173 (5th 

Cir. 1995) (citing 42 U.S. § 405(g)). A reviewing court “may affirm only on the grounds 

that the Commissioner stated for [the] decision.” Copeland, 771 F.3d at 923.

To be entitled to Social Security benefits, a claimant must show that she is disabled 

within the meaning of the Act. Leggett v. Chater, 67 F.3d 558, 563‒564 (5th Cir. 1995); 

Villa v. Sullivan, 895 F.2d 1019, 1022 (5th Cir. 1990). Disability is defined as the inability 

to engage in any substantial gainful activity by reason of any medically determinable 

physical or mental impairment that can be expected to last for a continuous period of not 

less than twelve months. 42 U.S.C. § 423(d)(1)(A). 

In evaluating a disability claim, the Commissioner has promulgated a five-step 

sequential process to determine whether: (1) the claimant is presently working; (2) the 

claimant 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 claimant 

from doing past relevant work; and (5) the impairment prevents the claimant from doing 

any other substantial gainful activity. See 20 C.F.R. § 404.1520; Audler v. Astrue, 501 F.3d 

446, 447‒448 (5th Cir. 2007).

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

disability. Leggett, 67 F.3d at 564. Once the claimant satisfies his or her initial burden, the 

burden shifts to the Commissioner at step five to show that there is other gainful 

employment in the national economy that claimant is capable of performing. Greenspan, 

38 F.3d at 236. If the Commissioner shows that other jobs are available to the claimant, the 

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

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F.2d 614, 618 (5th Cir. 1990). “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); see also 20 C.F.R. § 404.1520(a)(4).

The ALJ has a duty to fully and fairly develop the facts relating to a claim for 

disability benefits. See Ripley, 67 F.3d at 557 (citing Pierre v. Sullivan, 884 F.2d 799, 802 

(5th Cir. 1989) (per curiam)); Kane v. Heckler, 731 F.2d 1216, 1219 (5th Cir. 1984). If the 

ALJ does not satisfy this duty, the resulting decision is not substantially justified. See id.

However, the Court does not hold the ALJ to procedural perfection and will reverse the 

ALJ’s decision as not supported by substantial evidence where the claimant shows that the 

ALJ failed to fulfill the duty to adequately develop the record only if that failure prejudiced 

Plaintiff, see Jones v. Astrue, 691 F.3d 730, 733 (5th Cir. 2012)—that is, only if Plaintiff’s 

substantial rights have been affected, see Audler, 501 F.3d at 448. Put another way, Plaintiff 

“must show that he could and would have adduced evidence that might have altered the 

result.” Brock v. Chater, 84 F.3d 726, 728‒729 (5th Cir. 1996).

III. DISCUSSION

Plaintiff argues that the ALJ’s decision was erroneous because the ALJ failed to 

sufficiently develop the record concerning Plaintiff’s mental health, and the ALJ failed to 

properly evaluate the opinion of Physician Assistant Chelsea Britto. Dkt. No. 18 at 2. 

A. The ALJ had no obligation to further develop the record.

Plaintiff claims that the ALJ failed to adequately develop the record concerning 

Plaintiff’s mental health. Id. at 12. However, Plaintiff’s argument relies on her

“encourage[ing] the Court to adopt a two-prong test for determining whether the ALJ 

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appropriately developed the record with opinion evidence.” Id. at 13. Specifically, Plaintiff 

alleges that an ALJ can only satisfy their duty under 42 U.S.C § 421(d) by assuring the 

Commissioner complies with 42 U.S.C. § 421(h). See id. at 12–16. 

Plaintiff believes that the ALJ should be required to comply with 42 U.S.C. 

§ 421(h), which states that “[a]n initial determination” of disability “shall not be made until 

the Commissioner of Social Security has made every reasonable effort to ensure—in any 

case where there is evidence which indicates the existence of a mental impairment, that a 

qualified psychiatrist or psychologist has completed the medical portion of the case review 

and any applicable residual functional capacity assessment . . . .” Id. at 12–13 (citing 42 

U.S.C. 42(h)). Thus, Plaintiff asks the Court to adopt the following test: 

Has the ALJ sufficiently assured the Agency’s compliance with 42 U.S.C. 

§ 421(h) pursuant to the ALJ’s duty under 42 U.S.C. § 421(d)? If the ALJ 

satisfies the first prong, the second prong would be: Does the ALJ have either 

i) sufficient guidance from opinions concerning the claimant’s impairments 

or ii) evidence that the relevant impairment(s) is(are) sufficiently simple for 

the ALJ to evaluate them as a layperson? Id. at 13. 

Plaintiff’s counsel concedes that this Court “has previously disagreed with 

Plaintiff’s application of 42 U.S.C. § 421(h)” at the ALJ level—as opposed to the “initial 

determination”—but asks the Court to reconsider Plaintiff’s argument because the other 

decisions in this Court “did not rely on binding legal precedent” and did not adopt the 

reasoning of an out-of-district case that supports Plaintiff’s argument. Id. at 14. Plaintiff 

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offers no argument in her opening brief that the ALJ failed to comply with this Court’s 

precedent in Ripley related to developing the record.2 See id. at 12–16. 

The Commissioner responds by arguing that the ALJ sufficiently developed the 

record and substantial evidence supportsthe Commissioner’s finding that Plaintiff’s mental 

impairments were not severe. Dkt. No. 21 at 4. Plaintiff briefly alleges, in her reply brief

for the first time, that the ALJ failed to follow this Court’s precedent in Ripley concerning

development of the record. Dkt. No. 23 at 1–3. Specifically, Plaintiff argues that the 

Commissioner, through their briefing, “has not offered a sufficient basis for concluding 

that the ALJ complied with 42 U.S.C. § 421(d).” See id. 

The Court declines Plaintiff’s invitation to apply her proposed test for determining 

whether the ALJ has sufficiently developed the record. This Court has previously found 

that 42 U.S.C. § 421(h) is “inapplicable at the ALJ level as such directives only apply to 

an ‘initial determination.’” Cobb v. Berryhill, No. 4:17-CV-00106-A, 2017 WL 6492078, 

at *5 (N.D. Tex. Nov. 29, 2017), report and rec. adopted, 2017 WL 6493237 (N.D. Tex. 

Dec. 15, 2017) (citing Martinez v. Comm’r of Soc. Sec., No. 1:15-cv-289-RHW, 2017 WL 

738496, at *2 (S.D. Tex. Feb. 24, 2017)). Thus, undersigned agrees with other Courts that 

“a plain reading of the regulation” precludes Plaintiff’s argument. McKinney v. Colvin, No. 

3:13-CV-900HTW-LRA, 2014 WL 652948, at *2 (S.D. Miss. Feb. 19, 2014).

2 Although Plaintiff cites to and explains the Court’s precedent in Ripley in her opening brief, Plaintiff’s counsel fails 

to argue how the ALJ failed to comply with the Court’s precedent. See Dkt. No. 18 at 12–13. Citations to the Court’s 

precedent devoid of any allegations of how the ALJ failed to comply with their duty is insufficient for Plaintiff to set 

forth a basis of error. 

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Additionally, the Court rejects Plaintiff’s argument in her reply brief that the 

Commissioner “has not offered a sufficient basis for concluding that the ALJ complied 

with 42 U.S.C. § 421(d).” Dkt. No. 23 at 1. It was Plaintiff’s burden, not the 

Commissioner’s, to establish that the ALJ’s decision was not supported by substantial 

evidence or contained legal error. Mary C. R. v. Kijakazi, No. 3:20-CV-00286-BT, 2021 

WL 4476764, at *5 (N.D. Tex. Sept. 30, 2021).

3 Thus, Plaintiff fails to demonstrate the 

ALJ erred in not further developing the record. 

B. The ALJ properly evaluated the medical opinion of physician assistant Britto.

Plaintiff claims that the ALJ failed to properly consider the opinion of PA Britto. 

Dkt. No. 18 at 16. Britto opined that Plaintiff “had knee and lumbar pain with standing for 

greater than five minutes a difficulty ambulating supporting a diagnosis of right knee 

osteoarthritis.” Tr. at 24. Britto limited Plaintiff to “standing and walking for two hours in 

an eight-hour workday.” Tr. at 24. The ALJ found that Britto’s opinion had “limited 

persuasive value.” Tr. at 24. 

Plaintiff claims that the ALJ failed to sufficiently evaluate Britto’s opinion because 

the “ALJ cursorily concludes that the opinion is not well explained.” Dkt. No. 18 at 16. 

Plaintiff argues that the “ALJ’s simple assertion that PA Britto’s opinion was not well 

3 Even if the Court was to consider Plaintiff’s argument that the ALJ failed to develop the record, thus rendering the 

ALJ’s decision unsupported by substantial evidence, the Plaintiff’s argument would fail. Plaintiff claims that the ALJ 

substituted his lay opinion concerning Plaintiff’s mental impairments for the medical opinions of experts. See Dkt. 

No. 23 at 2. Plaintiff’s argument is without merit because the ALJ found a state agency psychological examiner’s 

finding persuasive that the Plaintiff did not have a severe impairment. Tr. at 20. Although a different state agency 

psychological consultant found that Plaintiff had a severe mental impairment, the ALJ explained why that opinion 

was not persuasive. Tr. at 20. Additionally, Plaintiff argues the ALJ’s reliance on Plaintiff’s ability to perform daily 

activities was not indicative of her ability to work. See Dkt. No. 23 at 2. However, Plaintiff fails to explain how her

daily activities are inconsistent with the ALJ’s finding that Plaintiff has the capacity to perform light work, and the 

ALJ may consider Plaintiff’s daily activities in making their RFC determination. See id. 

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explained is insufficient to facilitate review of the ALJ’s decision.” Id. Additionally, 

Plaintiff asserts that the ALJ’s reference to “certain negative exam findings . . . neglects 

the positive exam findings from 2019 . . . and 2020.” Id. at 17. The Commissioner responds 

by arguing that the ALJ’s finding that Britto’s opinion is less persuasive is free of legal 

error and supported by substantial evidence because the ALJ considered the supportability 

and consistency of the opinion. Dkt. No. 20 at 5–6. Plaintiff replies that the ALJ’s 

“consistency analysis was one-sided” when addressing Britto’s opinion. Dkt. No. 23 at 3.

An ALJ “is free to reject the opinion of any physician when the evidence supports 

a contrary conclusion.” Garcia v. Berryhill, 880 F.3d 700, 706 n.7 (5th Cir. 2018) (quoting 

Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000)). Prior to March 27, 2017, ALJ’s were 

required to give controlling weight to a treating physician’s opinion. Webster v. Kijakazi, 

19 F.4th 715, 719 (5th Cir. 2021). But for claims filed after March 27, 2017, an ALJ 

“instead considers a list of factors in determining what weight, if any, to give a medical 

opinion.” Id. “The most important factors for the ALJ to consider are whether an opinion 

is based on objective medical evidence and supporting explanations,” and is consistent with 

“other medical and nonmedical sources” in the record. Id. (internal quotations omitted). 

When rejecting a medical source’s opinion, an ALJ’s explanation should show 

consideration of these two factors. See id. Some of the other factors that an ALJ may 

consider are the medical provider’s relationship with the claimant, the length and frequency 

of the treatment provided, and the specialization of the medical source. 20 C.F.R. § 404. 

1520c. 

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Here, Plaintiff’s argument that the ALJ improperly evaluated the medical opinion 

of Britto is without merit because the ALJ explained why the opinion was only partially 

supported by objective medical evidence and inconsistent with other medical and 

nonmedical sources. See Webster, 19 F.4th at 719. The ALJ expressly evaluated the 

supportability of Britto’s opinion by finding that her opinion was “supported . . . with 

diagnostic imaging and examination findings and the recommendation of right knee 

arthroscopy, but the opinion was not well explained, [and] not based on an examination 

. . . .” Tr. at 24. Although the ALJ did not provide specific detail on why Britto’s opinion 

was not well explained, the ALJ subsequently explains that Britto’s opinion did not 

consider evidence such as other physical examination findings and straight leg raising tests. 

Tr. at 24–25. Accordingly, the ALJ properly addressed the supportability of Britto’s 

opinion. Sharon H. v. Kijakazi, No. 5:21-CV-167-H, 2022 WL 3951488, at *3 (N.D. Tex. 

Aug. 31, 2022) (explaining that an ALJ may find an opinion unsupported because the 

physician did not “consider certain evidence, did not examine the claimant, or did or did 

not provide a detailed explanation for the opinion.”). 

The ALJ then expressly explains why Britto’s opinion was “not consistent with the 

overall medical evidence of record including physical examination findings showing the 

claimant had a normal gait and stance with normal movement of all extremities, normal 

range of motion of her cervical, thoracic, and lumbar spine, normal motor strength, intact 

cranial nerves, intact sensation, normal deep tendon reflexes, and negative straight leg 

raising tests.” Tr. at 24–25. 

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The Court rejects Plaintiff’s assertion that the ALJ erred in finding Britto’s opinion 

inconsistent with the medical record solely because the ALJ noted that Plaintiff had 

negative straight leg tests when the Plaintiff also had positive straight leg tests from 2019 

and 2020. The Court cannot substitute its judgment for that of the ALJ’s. And the ALJ’s 

consideration of the medical record as a whole satisfied the ALJ’s duty to evaluate the 

consistency of Britto’s opinion. See Sharon H., 2022 WL 3951488, at *4 (finding that the 

ALJ satisfies their duty of addressing consistency when the ALJ addresses the discrepancy 

of the opinion with test results and opinions from other medical professionals). 

IV. CONCLUSION

For the reasons explained above, the Court AFFIRMS the Commissioner’s decision 

in all respects. 

ORDERED this 6th day of October, 2023. 

 ___________________________________

 JOHN R. PARKER

 UNITED STATES MAGISTRATE JUDGE

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