1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

ABILENE DIVISION

DONNA B. O.,

1 §

§

Plaintiff, §

§

v. § Civil Action No. 1:22-cv-00128-H-BU

§

KILOLO KIJAKAZI, §

Acting Commissioner of Social Security §

§

Defendant. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Plaintiff Donna B. O. seeks judicial review of a final adverse decision of the 

Commissioner of Social Security (Commissioner) under 42 U.S.C. § 405(g). Dkt. No. 1. 

United States District Judge Wesley Hendrix referred this case 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. Because the parties have not 

consented to proceed before a magistrate judge, the undersigned submits these Findings, 

Conclusions, and Recommendation.

For the reasons explained below, the undersigned recommends that the Court 

remand the Commissioner’s decision for further administrative proceedings. 

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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I. BACKGROUND

Plaintiff alleges that her disability began on June 2, 2019. See Administrative 

Record, Dkt. No. 13-1 (Tr.) 21. Plaintiff initially filed application under Title II for both a 

period of disability and disability insurance benefits. Tr. at 21. Both applications were 

denied initially on January 19, 2021, and then again upon reconsideration on April 1, 2021. 

Tr. at 21. Plaintiff then requested a hearing in front of an Administrative Law Judge (ALJ). 

Tr. at 21. Due to COVID, the ALJ held an online video hearing on November 19, 2021. 

Tr. at 21. Plaintiff and her attorney appeared at the hearing along with an impartial 

vocational expert (VE). Tr. at 21. 

At the time of the hearing, Plaintiff was 60 years old. Tr. at 41. Plaintiff completed 

two years of college. Tr. at 43. Her past work experience is as a school library assistant, 

school media room educator, classroom assistant, and data clerk. Tr. at 255–56, 278. 

The ALJ found that Plaintiff was not disabled and therefore not entitled to disability 

benefits. Tr. at 31. At step one of the analysis,2 the ALJ found that Plaintiff had not engaged 

in substantial gainful activity since June 2, 2019. Tr. at 23. At step two, the ALJ found that 

Plaintiff has the following severe impairments: neck pain secondary to degenerative disc 

disease at C5-C6, cervical spondylosis, and status-post cervical fusion; osteoarthritis; 

status-post left ankle fracture; low back pain secondary to lumbar degenerative disc 

disease, lumbosacral spondylosis without myelopathy or radiculopathy, and postlaminectomy syndrome; hemochromatosis; and hypertension. Tr. at 23. At step three, the 

2 As discussed further below, the Commissioner employs a five-step analysis in determining whether claimants are 

disabled under the Social Security Act.

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ALJ determined that none of the impairments or combination of impairments met or 

equaled the severity of one of the impairments listed in the Social Security regulations. Tr. 

at 24. The ALJ found that Plaintiff’s issues related to squamous cell carcinoma in situ and 

vitiligo created only a slight abnormality. Tr. at 24. Similarly, the ALJ found that Plaintiff’s 

depression and anxiety only established a slight abnormality with a minimal effect on 

Plaintiff’s “ability to perform basic mental work activities.” Tr. at 24. 

Also at step three, the ALJ found that Plaintiff has the residual functional capacity 

to:

perform sedentary work as defined in 20 CFR 404.1567(a) with the following 

additional limitations: She can occasionally climb ramps and stairs but never 

climb ladders, ropes, or scaffolds. She can occasionally balance (as defined 

in the Selected Characteristics of Occupations) and can occasionally stoop, 

kneel, crouch, and crawl. She can frequently reach overhead with the 

bilateral upper extremities. Tr. at 25. 

At step four, the ALJ reviewed the testimony of the vocational expert (VE) and gave 

consideration to Plaintiff’s age, education level, and transferable work skills in concluding

that Plaintiff is capable of performing past relevant work as an administrative assistant. Tr. 

at 29–31. Thus, the ALJ determined that Plaintiff does not have a disability as defined in 

the Social Security Act. Tr. at 31. 

Plaintiff appealed the ALJ’s decision to the Appeals Council. The Council affirmed. 

Plaintiff then timely filed this action in federal district court. Tr. at 5. 

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 

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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); see also 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). “If the 

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

conclusive and the Commissioner’s decision must be affirmed.” Martinez v. Chater, 64 

F.3d 172, 173 (5th Cir. 1995) (citing 42 U.S.C § 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 they are

disabled within the meaning of the Act. Leggett v. Chater, 67 F.3d 558, 563‒64 (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). 

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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 (2017); see also Audler v. 

Astrue, 501 F.3d 446, 447‒48 (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 their 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 

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).

III. DISCUSSION 

Plaintiff objects to the ALJ’s decision, claiming that the ALJ committed legal error 

in her analysis of physician Michael Roffers’s opinion. Dkt. No. 17 at 13. As a result of 

not properly analyzing Dr. Roffers’s opinion, Plaintiff claims that the ALJ’s RFC was not 

supported by substantial evidence. Id.

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Dr. Roffers offered an assessment on Plaintiff’s mental and physical capacity. Tr. at

29. Regarding Plaintiff’s mental capacity, Dr. Roffers found that Plaintiff had mild 

limitations in her ability to work at an appropriate and consistent pace, complete tasks in a 

timely manner, and manage psychologically based symptoms. Tr. at 29; Dkt. No. 13-2. Dr. 

Roffers’s found that Plaintiff had a marked limitation in her ability to work a full day 

without needing more than the allotted number or length of rest periods during the day. Tr. 

at 29; Dkt. No. 13-2. Regarding Plaintiff’s physical capacity, Dr. Roffers found Plaintiff 

“able to sit for 8 hours per day; is able to stand/walk for 2 hours per day; will need to take 

unscheduled breaks during an 8-hour workday; can occasionally lift up to 10 pounds; has 

limitations doing repetitive reaching, handling, or fingering; and is likely to be absent from 

work as a result of her impairments once or twice a month.” Tr. at 29; Dkt. No. 13-2. 

The ALJ found Dr. Roffers’s marked limitation regarding Plaintiff’s ability to work 

a full day without breaks to be “without support in the record.” Tr. at 29. Regarding 

Plaintiff’s physical capacity, the ALJ found Dr. Roffers’s opinion on Plaintiff’s exertional 

limitations to be somewhat supported. Tr. at 29. However, the ALJ found Dr. Roffers’s 

other physical limitations to be without support in the record or medical findings. Tr. at 29. 

Plaintiff argues that the ALJ’s explanation for rejecting parts of Dr. Roffers’s 

opinion is insufficient and fails to consider the required factors set out in 20 C.F.R. § 

404.1520. Dkt. No. 17 at 14–19. Plaintiff points out that the new regulations “require that 

the ALJ explain her findings regarding the supportability and consistency for each of the 

medical opinions,” but argues that “the ALJ did not do so here, as she merely provided a 

conclusion in the guise of analysis.’ Id. at 18. Plaintiff argues that the ALJ “failed to assign 

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a level of persuasiveness” to Dr. Roffers’s opinions, and “cherry picked” what parts of his 

opinion to find supported. Id. at 14–15. Plaintiff states that the ALJ was not specific 

regarding the physical limitations that she found unsupported in Dr. Roffers’s physical

assessment. Id. at 15. Similarly, Plaintiff states that the ALJ’s explanation as to why Dr. 

Roffers’s mental limitation was not supported is deficient. Id. 

Lastly, Plaintiff argues that the “ALJ mischaracterized the relevant evidence in 

making the blanket finding that Dr. Roffers did not offer findings to support his assessed 

physical limitations.” Id. at 17. 

Commissioner responds by stating that “the ALJ properly addressed the November 

2020 opinions of Dr. Roffers . . . per the relevant guidelines, and explained why she found 

the opinions partially persuasive.” Dkt. No. 18 at 6. Specifically, Commissioner argues that 

the ALJ considered both medical and non-medical evidence to determine the RFC. Id. at 

6–11. Commissioner states that given Plaintiff’s lack of hospitalizations for mental health 

treatment, companion dog, and medical records indicating that Otwell’s mental health 

“medication was helpful,” “the ALJ disagreed with Dr. Roffers’ one assessment of marked 

limitation as being without support in the record.” Id. at 7. 

In further support of Commissioner’s argument that the ALJ considered 

supportability and consistency, Commissioner states that “as to supportability, the ALJ 

analyzed Dr. Roffers’ treatment records along with his opinion.” Id. at 8. Commissioner

claims that the ALJ addressed the consistency of Dr. Roffers’s opinion by discussing the 

various medical evidence related to Plaintiff’s physical symptoms—indicating that 

Plaintiff had many normal assessments. Id. at 9. Commissioner then argues that the opinion 

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of Dr. Stark contradicts Dr. Roffers’s opinion,3 that the ALJ found Dr. Roffers’ opinions 

partially persuasive, and that Plaintiff essentially just disagrees with “the ALJ’s evaluation 

of Dr. Roffers’ forms.” Id. at 10. Plaintiff did not file a reply.

The Court now analyzes whether the ALJ properly considered Dr. Roffers’s 

opinions. 

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, 705 n.7 (5th Cir. 2018) (quoting 

Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000)). An ALJ must consider a number of 

factors when rejecting a medical opinion. Webster v. Kijakazi, 19 F.4th 715, 719 (5th Cir. 

2021) (“For claims filed after March 27, 2017, an ALJ . . . considers a list of factors in 

determining what weight, if any, to give a medical opinion.”). 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. These factors are commonly referred to as supportability and 

consistency. See id. When rejecting a medical source’s opinion, an ALJ’s explanation 

should show consideration of these two factors. Id.

“There is little authority discussing what an ALJ must do to adequately ‘explain’ 

supportability and consistency.” Benavidez v. Comm'r of Soc. Sec., No. 7:22-CV-058-BP, 

2023 WL 3105100, at *4 (N.D. Tex. Apr. 26, 2023) (quoting Moore v. Saul, No. 3:20-cv48-DPJ-MTP, 2021 WL 754833, at 3* n.1 (S.D. Miss. Feb. 26, 2021)). And there are no

3 Although Plaintiff and the Commissioner both reference Dr. Stark’s opinion, the ALJ never discussed Dr. Stark’s 

opinion in her decision. 

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“magic words or [a] specific amount of explanation [that is] required.” Anthony D. v. 

Comissioner, Soc. Sec. Admin., No. 3:19-CV-2900-X-BK, 2022 WL 2900999, at *3 (N.D. 

Tex. July 22, 2022) However, the ALJ’s discussion on supportability and consistency must 

be ample enough “to permit meaningful judicial review.” Lara v. Kijakazi, No. 3:21-cv1032-L-BH, 2022 WL 4486085, at *13 (N.D. Tex. Aug. 29, 2022) (quoting Dominick v. 

Kijakazi, No. 3:20-CV-03473-E-BT, 2022WL 2874705, at *4 (N.D. Tex. May 12, 2022)), 

report and rec. adopted, 2022 WL 448526, (N.D. Tex. Sept. 27, 2022). When the ALJ’s 

“decision reflects consideration of these two factors as well as a review and analysis of the 

objective record,” this is generally deemed sufficient. Lara, 2022 WL 4486085, at *13. 

Here, the ALJ failed to address the supportability and consistency of Dr. Roffers’s 

opinion in a way that allows for meaningful review. The ALJ stated the following when 

analyzing Dr. Roffers’s opinion on Plaintiff’s mental limitations:

I considered the mental capacity assessment completed by the claimant’s 

own source Michael Roffers, D.O., on November 10, 2020, in which Dr. 

Roffers stated the claimant had none to mild limitations across multiple 

mental domains of functioning except the claimant has marked limitation in 

the ability to work a full day without needing more than the allotted number 

or length of rest periods during the day (Exhibit 10F). Similar to the State 

agency psychological consultant opinions, I found Dr. Roffers opinion to be 

supported by the claimant’s largely unremarkable mental status findings and 

conservative treatment history except I disagreed with Dr. Roffers’s the one 

assessment of marked limitation as being without support in the record and

instead found that the claimant’s mental impairments result in no more than 

mild limitation.

Tr. at 29. Regarding Plaintiff’s physical limitations, the ALJ stated:

I also considered the physical assessment completed by Dr. Roffers on 

November 10, 2020, in which he stated, among other things, that the claimant 

is able to sit for 8 hours per day; is able to stand/walk for 2 hours per day; 

will need to take unscheduled breaks during an 8-hour workday; can 

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occasionally lift up to 10 pounds; has limitations doing repetitive reaching, 

handling, or fingering; and is likely to be absent from work as a result of her 

impairments once or twice a month (Exhibit 9F). I found Dr. Roffers to be 

somewhat supported, particularly with regard to the claimant’s exertional 

limitations, but I disagreed that the claimant’s mild to moderate objective and 

clinical findings or her treatment history supported that level of limitation, 

nor did Dr. Roffers offer findings in support of those limitations.

Tr. at 29.

The ALJ’s explanation is inadequate for both Plaintiff’s physical and mental 

limitations. While the ALJ is not required to specify every piece of evidence that 

contradicts a medical opinion, an explanation referencing the internal and external support 

for a medical opinion, or lack thereof, is necessary. See Ray v. Comm’r of Soc. Sec., No. 

4:21-cv-1709, 2022 WL 3566844, at *4 (S.D. Tex. Aug. 17, 2022) (holding that the ALJ’s 

analysis of a medical opinion was sufficient although the ALJ did not specify which pieces 

of evidence in the record or at the hearing the opinion was inconsistent with, because the 

ALJ “made specific reference to both the consistency and supportability factors when 

discounting” the doctor’s opinion). Here, the ALJ fails to provide any reasons as to why 

she finds Dr. Roffers’s marked mental limitation without support in the record, nor does 

the ALJ reference whether that limitation is inconsistent with the record. Moreover, the 

ALJ does not discuss whether Dr. Roffers’s marked limitation is supported by his own 

findings or treatment history. See Dkt. No. 13-2 at 30–32. This leaves the Court unable to 

conduct a meaningful review of Dr. Roffers’s marked mental limitation.

Although the ALJ provides a more ample explanation for rejecting Dr. Roffers’s 

physical limitations, she still fails to provide sufficient reasons as to why Dr. Roffers’s 

physical limitations are not supported by Dr. Roffers’s history of treatment with Plaintiff.

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Importantly, the ALJ fails to identify the specific physical limitations that she believes are 

not supported by the record. The ALJ describes Dr. Roffers’s opinion, and then states that 

she found “the claimant’s exertional limitations” to be “somewhat supported,” but goes on 

to say she “disagreed that the claimant’s mild to moderate objective and clinical findings 

or her treatment history supported that level of limitation.” Tr. at 29. This explanation fails 

to identify the specific physical limitation that the ALJ disagrees with, and the Court is left 

to assume that the ALJ disagreed with any physical limitation not deemed exertional. Tr. 

at 29. The Court should not be required to infer which limitations the ALJ finds 

unsupported and inconsistent with the record. 

While the ALJ is only required to show consideration of supportability and 

consistency in rejecting parts of a medical expert’s opinion, the ALJ must do this in such a 

way that the Court understands the ALJ’s reasons for rejecting an opinion. Lara, 2022 WL 

4486085, at *13. Here, the ALJ’s conclusory discussion of supportability and consistency 

leaves the Court incapable of properly reviewing her decision.4

Further, the undersigned cannot conclude that this error was harmless, that is, that 

the failure to adequately explain the rejection of parts of Dr. Roffers’s opinion did not affect 

Plaintiff’s substantial rights. See Audler, 501 F.3d at 448. Harmless error exists when it is 

inconceivable that a different administrative conclusion would have been reached absent 

4 The Commissioner points to evidence throughout the ALJ’s decision that supports mild mental limitations and 

improved physical symptoms. See generally Dkt. No. 18. Some cases allow for a more cursory discussion of the 

supportability and consistency of an opinion when it follows a more detailed discussion of the medical evidence. But 

here, the ALJ fails to discuss the consistency of Dr. Roffers’s mental assessment entirely, and she fails to identify the 

specific physical limitations she finds unsupported and inconsistent with the record. As a result, the ALJ’s discussion 

of the medical evidence prior to her discussion of Dr. Roffers’s opinion does not make her explanation sufficient. 

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the error. Bornette v. Barnhart, 466 F. Supp. 2d 811, 816 (E.D. Tex. 2006) (citing Frank 

v. Barnhart, 326 F.3d 618, 622 (5th Cir. 2003)). “Procedural perfection in administrative 

proceedings is not required” as long as “the substantial rights of a party have [not] been 

affected.” Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988).

The Court is unable to find that it is inconceivable that the ALJ would have reached 

a different conclusion had she properly discussed Dr. Roffers’s opinion. Without a proper 

discussion of supportability and consistency, it is “impossible to determine whether the 

ALJ properly considered and weighed that opinion.” Cardenas v. Kijakazi, No. 7:21-CV0135, 2022 WL 2719044, at *8 (S.D. Tex. June 3, 2022) (citing Martinez v. Saul, No. 3:19-

CV-1904-B-BH, 2020 WL 5536814, at *17 (N.D. Tex. Aug. 31, 2020), report and rec. 

adopted sub nom. 2020 WL 5531485 (N.D. Tex. Sept. 15, 2020)), report and rec. adopted 

sub nom. 2022 WL 2715204 (S.D. Tex. July 12, 2022). If the ALJ had found Dr. Roffers’s 

opinion persuasive, the ALJ would have found that Plaintiff needs to take breaks outside 

of the scheduled breaks included in a regular workday, which could have impacted 

Plaintiff’s ability to perform past work.5

For the stated reasons, the undersigned RECOMMENDS that the hearing decision 

be REMANDED for a sufficient discussion of Dr. Roffers’s opinion. Because all parties 

have not consented to proceed before a United States Magistrate Judge, the undersigned 

5 The Court notes that it is unclear whether questions asked specifically referencing information provided in Dr. 

Roffers’s opinion would result in an inability to perform work in the national economy. Although the VE said that if 

someone missed three or more days of work in a month and was off task 15% of the time no work in the national 

economy would exist, it is unclear whether work in the national economy exists for someone who needs two days off 

a month from work and would need unscheduled breaks every four to six hours for between 8 and 15 minutes. See Tr. 

at 68. 

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directs the Clerk of Court to REASSIGN this case to United States District Judge James 

Wesley Hendrix in accordance with normal procedures. 

IV. RECOMMENDATION

The undersigned RECOMMENDS that the hearing decision be REVERSED, and 

this case REMANDED to the Commissioner of Social Security for further proceedings 

consistent with these findings and conclusions as to the issue of evaluating Dr. Roffers’s 

opinion. 

V. RIGHT TO 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 or sufficient. Failure to file 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 on grounds of 

plain error. See Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 

1996).

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ORDERED this 18th day of July, 2023.

 ___________________________________

 JOHN R. PARKER

 UNITED STATES MAGISTRATE JUDGE

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