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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

KIMBERLY P.,

Plaintiff,

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v. Case No. 3:22-cv-02436-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 Kimberly P.’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 brain degeneration that causes 

migraines, a bulging disc in the lower back with arthritis, and chronic migraines. 

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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Admin. R. 55, 230 (ECF No. 12-1).2 Plaintiff was born in 1980, and she alleges that 

she has been disabled since January 7, 2018. Admin. R. 216. Plaintiff has a high 

school education. Admin. R. 221, 231. She has past relevant work experience as an 

animal attendant. Admin. R. 50. 

Plaintiff applied for disability insurance benefits on October 29, 2019. 

Admin. R. 16. Her claim was denied initially and on reconsideration. Admin. R. 63, 

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

(ALJ), who conducted a telephonic administrative hearing on September 14, 

2021.3 Admin. R. 30-53. 

The ALJ found Plaintiff was not disabled from January 7, 2018, her alleged 

onset date, through March 31, 2020, her date last insured, and thus not entitled to 

disability benefits. Admin. R. 24-25. Utilizing the five-step sequential evaluation,4

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. Admin. R. 12.

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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the ALJ first found that Plaintiff’s earnings in 2018 exceeded substantial gainful 

activity but that she had not engaged in substantial gainful activity since the end of 

2018 through March 31, 2020. Admin. R. 18-19. At the second step, the ALJ found 

that Plaintiff suffered from the severe physical impairment of “degenerative disc 

disease,” and the non-severe impairments of headaches and obesity. Admin. R. 19. 

At the third step, the ALJ determined that, through her date last insured, Plaintiff

did not have an impairment or combination of impairments that met or medically 

equaled the severity of any listed impairment in appendix 1 of the social security 

regulations. Admin. R. 19-20. 

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

the residual functional capacity (RFC) to 

perform light work as defined in 20 CFR 404.1567(b), except this 

individual is able to frequently balance on flat surface. She is able to 

occasionally stoop, kneel, crouch, crawl and climb stairs and ramps. 

She cannot climb ladders, ropes, or scaffolds. She must avoid 

unprotected heights and unprotected moving mechanical parts. 

Admin. R. 20. 

Relying on the hearing testimony of a vocational expert (VE), at step four, 

the ALJ found that Plaintiff could not perform her past relevant work as an animal 

attendant. Admin. R. 23. At step five, the ALJ found, based on the VE’s hearing 

testimony, that Plaintiff was capable of performing the jobs of mail sorter, garment 

sorter, and office helper, and that these jobs existed in significant numbers in the 

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

(per curiam)).

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national economy. Admin. R. 24. Therefore, the ALJ found that Plaintiff had not 

been under a disability, as defined by the Social Security Act, and was not entitled 

to benefits. Admin. R. 25. 

Plaintiff appealed the ALJ’s decision to the Appeals Council. Admin. R. 8. 

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

the ALJ’s decision. Admin. R. 5-7. Plaintiff then filed this action in federal district 

court. 

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 

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 

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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 

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

omitted). 

Analysis

Among the arguments Plaintiff makes is a single ground that requires 

remand. Specifically, Plaintiff contends that the ALJ erred at step two in failing to 

address her brain atrophy and traumatic brain injury (TBI) or consider whether 

they were medically determinable impairments. Pl.’s Br. 13 (ECF No. 17). In 

response, the Commissioner frames Plaintiff’s argument as whether the ALJ 

“should have found that her severe impairments included . . . brain atrophy 

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(specifically cerebellar degeneration thought to be related to her childhood TBI 

and connected to speech, gait, and balance deficits.)” Def.’s Resp. Br. 5 (ECF No. 

20). The Commissioner goes on to argue that the “ALJ applied the correct standard 

for determining Plaintiff’s severe impairments[,]” and that the ALJ “also explained 

that she considered all of Plaintiff’s impairments, including those not found to be 

severe, when determining Plaintiff’s RFC.” Id. at 7. 

The Commissioner’s argument is misplaced. The issue here is not whether 

the ALJ erred in determining the “severity” of Plaintiff’s brain atrophy and TBI at 

step two, but whether the ALJ erred in failing to acknowledge or discuss these 

impairments anywhere in her decision, let alone consider whether they were 

medically determinable impairments. 

At step two, an ALJ considers whether the claimant suffers from any severe 

medically determinable physical or mental impairments. See 20 C.F.R. §§ 

404.1508, 404.1520(c). The ALJ is required to consider impairments a claimant 

alleges or those “about which [the ALJ] receive[s] evidence.” 20 C.F.R § 

404.1512(a)(1). The question of the existence of a medically determinable 

impairment is distinct from, and logically antecedent to, the question of its 

severity. Randall v. Astrue, 570 F.3d 651, 657-59 (5th Cir. 2009); see id. at 657-58

(examining the Act and pertinent regulations and reasoning that both “make it 

plain that the two inquiries are distinct”). To qualify as a medically determinable 

impairment, an impairment “must result from anatomical, physiological, or 

psychological abnormalities that can be shown by medically acceptable clinical or 

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laboratory diagnostic techniques. Therefore, a physical or mental impairment 

must be established by objective medical evidence from an acceptable medical 

source.” 20 C.F.R. §§ 404.1521, 416.921; §§ 404.1529, 416.929. If a medically 

determinable impairment or combination of impairments is found to exist, the 

regulations provide that it is severe if it “significantly limits [a claimant’s] physical 

or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c).

Here, the ALJ’s step two analysis was brief. As previously noted, the ALJ 

found that Plaintiff’s degenerative disc disease was a severe medically 

determinable impairment which significantly limited Plaintiff’s ability to perform 

basic work activities, and that she suffered from the non-severe impairments of 

headaches and obesity. Admin. R. 19. The ALJ did not provide any explanation or 

justification for the omission of other medical conditions, including Plaintiff’s 

brain atrophy and TBI, from the limited discussion. See id. Furthermore, in the 

ALJ’s analysis of Plaintiff’s medical treatment history, there is no reference to 

Plaintiff’s brain atrophy or TBI. Admin. R. 19-23.

The ALJ’s failure to consider Plaintiff’s brain atrophy and TBI and to assess 

whether they were medically determinable impairments at step two is at odds with 

the record. Plaintiff claimed disability based, in part, on “brain degeneration” in 

her application for benefits. Admin R. 230. Her brain atrophy, as well as a 2017

MRI reflecting brain degeneration, were referenced by Plaintiff’s counsel at the 

administrative hearing. Admin. R. 36. At the reconsideration level, the state agency 

medical consultant included Plaintiff’s TBI in the list of medically determinable 

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impairments (although he ultimately found it “non-severe”). Admin. R. 71. The 

record includes an August 2017 diagnostic MRI showing “advanced atrophy of the 

bilateral cerebellar hemispheres” and likely “hypertrophic olivary degeneration.” 

Admin. R. 415. The record also includes Dr. Charles Tuen’s treatment notes during 

the alleged period of disability. Admin. R. 284-88. He states: “Old head injury at 3 

years old, mild dysarthric and mild clumsiness, very mild unsteady gait”; “MRI 

head Aug. 2017 showed bilateral, cerebellar degeneration. Also possible idiopathic 

cerebellar degeneration.” Admin. R. 284. 

The evidence cited above is inconsistent with the ALJ’s omission of any 

discussion of whether Plaintiff’s brain atrophy and TBI rose to the level of 

medically determinable impairments. The ALJ failed to include any explanation 

for why she did not include any discussion at step two, despite the evidence of 

record. 

Moreover, the ALJ’s error was not harmless. Audler v. Astrue, 501 F.3d 446, 

448 (5th Cir. 2007) (citing Morris v. Bowen, 864 F.2d 333, 334 (5th Cir. 1988)). 

Generally, “‘[p]rocedural perfection in administrative proceedings is not required’” 

as long as “‘the substantial rights of a party have not been affected.’” Id. (citing 

Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988)). But in this case the error was 

not harmless because the ALJ was required to consider all medically determinable 

impairments, determine their severity, and evaluate their impact at each step of 

the disability analysis. See 20 C.F.R. §§ 404.1545(a)(2)(3), 416.945(a)(2)-(3); 

Cherelyn F. v. Saul, 2022 WL 524226, at *4 (N.D. Tex. Feb. 22, 2022) (Horan, J.) 

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(“The Commissioner unquestionably must consider all potential impairments”) 

(citation omitted); Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000). 

And, even if the ALJ would have found Plaintiff’s brain atrophy and TBI to 

be non-severe at step two, the ALJ would nonetheless have been required to 

proceed to step three considering whether these non-severe impairments 

combined with her severe impairments to meet or medically equal a listing; and to 

step four, taking into account the impact of these impairments on her RFC. See id.

(The ALJ is “required to consider the combined effects of all impairments without 

regard to whether any such impairment, if considered separately, would be of 

sufficient severity”). 

Because it is not inconceivable that the ALJ would have reached a different 

determination absent her step two error, the error was not harmless. See, e.g.,

Sullivan v. Colvin, 2014 WL 1320098, at *13-14 (N.D. Tex. Mar. 31, 2014)

(Ramirez, J.) (finding ALJ’s step two error, omitting without explanation any 

mention of Plaintiff’s medically documented COPD, was not harmless, as it was 

unclear whether he considered the effects that the alleged impairment might have 

on her ability to work at step five); Tipler v. Berryhill, 2019 WL 2233627, at *15 

(N.D. Tex. May 3, 2019) (Ramirez, J.), adopted by 2019 WL 2234707 (N.D. Tex. 

May 23, 2019) (finding ALJ’s step two error, failing without explanation to discuss 

claimant’s cervical radiculopathy, was not harmless, because the ALJ did not 

reference evidence of this impairment in assessing the claimant’s RFC, and it is 

unclear whether he accounted for the effects of cervical radiculopathy on 

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claimant’s ability to perform work-related functions at step five); see also John B. 

v. Kijakazi, 2022 WL 813829, at *5 (N.D.N.Y. Mar. 16, 2022) (finding ALJ’s step 

two error, omitting any consideration of claimant’s chronic kidney disease, was not 

harmless, as the error impacted the subsequent steps of the disability 

determination process); Fontanez v. Colvin, 2017 WL 4334127, at *15 (E.D.N.Y. 

Sept. 28, 2017) (internal citation omitted) (finding the ALJ’s failure to 

acknowledge or discuss the claimant’s neck pain at step two or anywhere in the 

decision was not harmless error and remand was warranted); compare to Adams 

v. Bowen, 833 F.2d 509, 512 (5th Cir. 1987) (finding “no ground” for remand where 

“the ALJ acknowledged” the claimant’s alleged “significant impairment” at step 

two but found it to be non-severe, and “went on to find, pursuant to the fourth step 

of the sequential evaluation analysis, that [the] impairment did not disable [her] 

from performing her past sedentary work”); Boothe v. Colvin, 2013 WL 3809689, 

at * 5-6 (N.D. Tex. July 23, 2013) (Fitzwater, C.J.) (finding that any step two error 

was “harmless because the ALJ considered [the alleged] conditions in his RFC 

analysis”).

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).

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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.

October 13, 2023. 

____________________________ 

REBECCA RUTHERFORD

UNITED STATES MAGISTRATE JUDGE

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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