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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

ABILENE DIVISION

JULIE H.1, §

 §

Plaintiff, § 

 § 

v. § Civil Action No. 1:22-CV-00145-H-BU

 § 

COMMISSIONER OF SOCIAL §

SECURITY, §

 § 

Defendant. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Plaintiff Julie H. 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. Under Special Order No. 3-251 of this Court, this case was automatically referred for 

the determination of non-dispositive motions and the issuance of findings, conclusions, and 

recommendation of dispositive matters. See Dkt. No. 4. The parties have not consented to 

proceed before a magistrate judge. For the reasons explained below, the undersigned 

recommends that the Court affirm the Commissioner’s decision.

I. BACKGROUND

Plaintiff alleges a disability that began on June 16, 2020. Administrative Record, 

Dkt. No. 10-1 (Tr.) at 18. After her application for disability insurance benefits under Title 

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

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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challenged the denial and requested a hearing before an Administrative Law Judge (ALJ). 

Tr. at 18. The ALJ held a hearing on December 6, 2021, where Plaintiff appeared with a 

non-attorney representative. Tr. at 35. 

Plaintiff was born on July 4, 1957. Tr. at 180. She completed high school and took 

some college courses but did not complete the program. Tr. at 39. Prior to the onset of her

alleged disability, Plaintiff worked as a payroll and human resources clerk. Tr. at 40–46. 

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 onset date of June 16, 2020. Tr. at 

20. At step two, the ALJ found that Plaintiff suffered from the following severe

impairments: “degenerative disc disease of the lumbar spine with radiculopathy, obesity, 

major depressive disorder, post-traumatic stress disorder.” Tr. at 20. 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 listed 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 she:

can only stand and walk for three hours in an eight-hour day, can perform no 

climbing, can occasionally balance, stoop, kneel, crouch and crawl, and can 

maintain attention, concentration and pace to perform detailed, but not 

complex, tasks.

Tr. at 23.

At step four, the ALJ concluded that Plaintiff could perform past relevant work as 

payroll clerk and as a receptionist because “[t]his work does not require the performance 

of work-related activities precluded by the claimant’s residual functional capacity.” Tr. at 

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27–28. As a result of Plaintiff being able to perform past work, 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 upheld 

the ALJ’s decision. Tr. at 7. 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 

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

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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, 563‒64 (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). 

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, 447‒48 (5th Cir. 2007).

III. DISCUSSION

Plaintiff argues that the ALJ’s decision was erroneous because: (1) the ALJ

committed legal error in failing to either adopt the limitations found by the state agency 

consultants or explain her rejection of those limitations; (2) the ALJ’s RFC failed to 

properly address Plaintiff’s mental impairments and how they impact her ability to sustain 

work; and (3) the ALJ and appeals council judges had no legal authority to adjudicate this 

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case because they were not properly appointed. Dkt. No. 13 at 1. The undersigned takes 

each issue in turn. 

A. The ALJ properly considered the opinions of the state agency consultants.

Plaintiff claims the ALJ committed legal error by finding the administrative 

opinions of the stage agency consultants persuasive without considering, discussing, or 

resolving an inconsistency in those opinions. Dkt. No. 13 at 3–6. Specifically, Plaintiff 

complains that the state agency consultants, in their administrative findings, have 

conflicting limitations in their PRT and MRFC explanations. See id. at 3–4. Additionally, 

Plaintiff argues that the ALJ committed legal error by relying on the state agency consultant 

opinions because the consultants “did not review all of the evidence available to them.” 

See id. at 4–6.

1. The ALJ was not required to explain an inconsistency in the administrative findings.

Plaintiff argues that the ALJ committed legal error by finding the prior 

administrative opinions of state agency psychological consultants, Ben Kessler, Psy.D.,2

and Julian Lev, Ph.D.,

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“partially persuasive” without reconciling an inconsistency in the 

opinions. See Dkt. No. 13 at 3–6. Specifically, Plaintiff claims that the ALJ was required 

to explain why the consultants included a different limitation between the psychological 

review technique (PRT) and mental residual functional capacity (MRFC). See id.

2 Ben Kessler, Psy.D., was the state agency psychological consultant for Plaintiff’s disability determination 

explanation at the initial level. See Tr. at 53.

3

Julian Lev, Ph.D., was the state agency psychological consultant for Plaintiff’s disability determination explanation 

at the reconsideration level. See Tr. at 75.

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The state agency consultants found that Plaintiff had mild limitations in: (1) 

understanding, remembering, and applying information; (2) interacting with others; (3) 

concentrating persisting and maintain pace; and (4) adapting or managing oneself. Tr. 62, 

86. Additionally, Kessler opined in his PRT analysis at the initial level that Plaintiff’s 

“cognitive abilities and functioning is consistent with limits to simple and routine 

tasks/instructions.” Tr. at 63. However, Kessler also opined in his MRFC additional 

explanation that Plaintiff “can understand, remember, and carry out detailed but not 

complex instructions, make decisions, attend and concentrate for extended periods, accept 

instructions, & respond appropriately to changes in routine work setting.” Tr. at 70. Lev 

opined in his PRT analysis at the reconsideration level that “[i]nitial mental assessment 

remains current and is affirmed.” Tr. at 86. 

The ALJ considered the prior administrative findings of the state agency 

consultants. See Tr. at 27. The ALJ found the administrative findings “partially 

persuasive,” but determined that Plaintiff was more limited in her ability to sustain 

concentration, persistence, and pace than the consultants. Tr. at 27. Accordingly, the ALJ 

only limited Plaintiff to performing detailed, but not complex tasks. Tr. at 23. 

Plaintiff argues that the ALJ committed legal error when she “inexplicably” 

restricted Plaintiff to “‘detailed, but not complex’ work.” Dkt. No. 13 at 3–4. Plaintiff 

asserts that this finding conflicts with the state agency consultant prior administrative 

findings, which the ALJ found partially persuasive, because Kessler and Lev restricted 

Plaintiff to simple and routine instruction in their PRT assessments. Id. at 4. The 

Commissioner responds to Plaintiff’s argument by noting that the state agency consultants 

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actually restricted Plaintiff to detailed tasks in their MRFC assessment, and that it is the 

MRFC, not the PRT, that the ALJ considers. See Dkt. No. 16 at 10–12. In her Reply brief, 

Plaintiff claims that the ALJ “was absolutely required to resolve th[e] inconsistencies” 

between the state agency consultants PRT and MRFC. Dkt. No. 17 at 2. 

Plaintiff’s argument that the ALJ was required to resolve inconsistencies between 

the state agency consultants PRT and MRFC lacks merit. 

The PRT is used to rate the severity of mental impairments at step 2 of a claimant’s 

sequential evaluation process. See Holmes v. Astrue, No. 3:11-CV-2634-G BH, 2013 WL 

638830, at *11 (N.D. Tex. Jan. 25, 2013) (citing 20 C.F.R. § 404.1520a), report and rec.

adopted, 2013 WL 646510 (N.D. Tex. Feb. 20, 2013). In comparison, MRFC is used to 

steps 4 and 5 of the sequential evaluation process and “requires a more detailed assessment 

by itemizing various functions.” Martha L. v. Saul, No. 1:20-CV-00003-H-BU, 2021 WL 

3610316, at *4 (N.D. Tex. July 27, 2021), report and rec. adopted, 2021 WL 3604082 

(N.D. Tex. Aug. 13, 2021). “Although the ALJ must consider the claimant’s paragraph B 

functional limitations when determining mental RFC,” the ALJ is not “required to 

incorporate them into [the] RFC assessment ‘word-for-word.’” Holmes, 2013 WL 638830 

at *13 (internal citations and quotations omitted).

Courts have held that an ALJ is not required to account for inconsistencies in state 

agency consultants PRT and MRFC limitations. See, e.g., Lull v. Colvin, 535 F. App’x 683, 

686 (10th Cir. 2013). In Lull, a medical source at the administrative level opined in the 

PRT section of the disability determination that the claimant’s ability to maintain 

concentration, persistence, or pace was moderate. Id. at 685. In comparison, the MRFC 

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assessment, completed by the same medical source on the same day, opined that the 

claimant was not significantly limited in their ability to maintain attention and 

concentration. Id. at 685–86. Lull argued that “the ALJ erred in using the MRFCA because 

it was inconsistent with the PRT.” Id. at 686. The Court held that Lull’s argument was 

without merit because a PRT is used to assess the severity of impairments while a MRFC 

is more detailed and “relevant to the vocational determinations required at steps four and 

five.” Id.

However, an ALJ’s decision may lack substantial evidence when the ALJ expressly 

gives weight to the prior administrative findings in both the PRT and MRFC assessment, 

and the PRT and MRFC are inconsistent with each other. Herd v. Comm’r of the Soc. Sec. 

Admin., No. 3:11-CV-2847-N, 2012 WL 4512494, at *11 (N.D. Tex. Aug. 27, 2012),

report and rec. adopted sub nom. Herd v. Comm’r of Soc. Sec. Admin., 2012 WL 4512530 

(N.D. Tex. Sept. 28, 2012). In Herd, a PRT performed by a state agency consultant reported 

that claimant had mild difficulties in maintaining concentration, persistence, and pace. Id.

In comparison, the MRFC assessment, conducted by the same consultant as the PRT, found 

that the claimant had moderate limitations in maintaining attention and concentration for 

extended periods, and moderate limitations to perform at a consistent pace. Id. The ALJ 

gave “significant weight” to the PRT review and “some weight” to the MRFC assessment. 

Id. (internal quotations omitted). The Court found that the ALJ’s reliance on the state 

agency consultants with “inconsistent assessments created ambiguities,” which rendered 

the “ALJ’s MRFC conclusions unsupported by substantial evidence.” Id.

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Here, the ALJ adopted limitations provided by the state agency consultants MRFC 

assessments—that Plaintiff could perform detailed, but not complex tasks. See Tr. at 23. 

The ALJ did not specifically refer to limitations referenced in the state agency consultants

PRT analysis, nor was the ALJ required to. See Tr. at 27; Lull, 535 F. App’x at 686. And 

because the ALJ did not rely on the opinions of the PRT, the ALJ was not required to 

explain any inconsistencies between the administrative level PRTs and the MRFCs. See 

Herd, 2012 WL 4512494, at *11. Thus, the undersigned finds that the ALJ did not commit 

legal error, and the inconsistency between the state agency consultants PRT and MRFC 

did not create an inconsistency that demonstrates that the ALJ’s decision was not supported 

by substantial evidence. 

2. The state agency consultants considered the opinion of Flanagan. 

Plaintiff argues that “the ALJ’s reliance on the state agency medical findings is 

legally flawed because the state agency experts did not review all the evidence available to 

them.” Dkt. No. 13 at 4. Plaintiff alleges that the state agency consultants ignored the 

consultative examination of Dr. Flanagan. Id. Dr. Flanagan consultative examination was 

allegedly ignored by the state agency consultants because the initial disability 

determination stated there was “no indication that there is a medical opinion from any 

medical source” under the “evaluating medical opinions” portion of the “assessment of 

policy issues.” See id. at 4–5 (citing Tr. at 64).

The Commissioner responds by asserting that both consultative examiners “noted 

that the consultative examination was kept” because their disability determinations 

reference Flanagan’s report from her consultative examination. Dkt. No. 16 at 12 (citing 

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Tr. at 55, 60–62, 78, 84, 86). And the Commissioner argues that the ALJ was only required 

to address the supportability and consistency of Flanagan’s report, which the ALJ properly 

did. Id. at 12–14. 

In her Reply, Plaintiff clarifies her argument, stating that she “does not argue that 

the state agency experts were unaware of the consultative examiner’s report.” Dkt. No. 17 

at 3. Instead, Plaintiff alleges that the state agency experts did not properly consider 

Flanagan’s report because their disability determinations noted that there was “‘no 

indication that there is a medical opinion from any medical source.’” Id. (citing Tr. at 55–

56, 71, 78). And Plaintiff argues that the state agency experts’ failure to note that Flanagan 

rendered a medical opinion makes “it impossible to know on this record how Dr. 

Flanagan’s opinion might have impacted the state agency experts’ findings and, ultimately, 

how their findings would have impacted the ALJ’s consideration of the state agency 

limitations.” Id. at 4. Thus, Plaintiff appears to claim, without any reference to supporting 

legal authority, that remand is required because the state agency experts failed to note that 

Flanagan rendered a medical opinion. See id. at 3–4. 

Plaintiff’s argument that the ALJ committed legal error is without merit. The Court 

reviews the Commissioner’s disability determinations for substantial evidence and legal 

error. See Copeland, 771 F.3d at 923. Here, the ALJ applied the proper legal standards by

addressing the supportability and consistency of Dr. Flanagan’s opinion, which Plaintiff 

does not appear to dispute. See Tr. at 27; See Webster v. Kijakazi, 19 F.4th 715, 719 (5th 

Cir. 2021).

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The ALJ explained how Flanagan’s opinion was “supported by citations to objective 

medical findings” but noted “testing showing generally normal intellectual and memory 

functioning is not consistent with a restriction of no more than one or two step tasks.” Tr. 

at 27. Accordingly, the undersigned rejects Plaintiff’s unsupported argument that remand 

was required because the state agency consultants failed to classify Flanagan’s consultative 

exam as a medical opinion in their disability determinations. 

B. The ALJ’s RFC is supported by substantial evidence.

Plaintiff argues that the ALJ’s RFC is erroneous because: (1) her severe 

impairments of major depressive disorder and PTSD limit her to simple work; and (2) the 

ALJ’s RFC failed to include limitations for mild impairments; and (3) the evidence that the 

ALJ relied upon does not support a finding that Plaintiff can perform her past work. Dkt. 

No. 13 at 6–11. 

1. The ALJ properly considered Plaintiff’s severe mental impairments in determining 

the RFC. 

Plaintiff alleges that the ALJ’s RFC failed to adequately account for her severe

impairments of major depressive disorder and PTSD. Id. at 6. Plaintiff argues that a severe 

impairment limits a claimant’s ability to perform the basic “work activities required for 

unskilled work.” Id. Plaintiff asserts that “[b]y definition, that means that [her] . . . mental 

ability to perform even the minimal demands of unskilled work was compromised.” Id. at 

7. Accordingly, Plaintiff believes that “the ALJ should have limited her to unskilled work 

and explained to what extent [her] . . . ability to perform unskilled work was limited by her 

severe impairments.” Id. at 7. 

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To support her argument, Plaintiff notes that despite the ALJ’s finding of severe 

limitations, “the only mental limitation” provided by the ALJ was that she “could perform 

detailed but not complex tasks.” Id. Plaintiff argues that given her limitations, she should 

have been limited to unskilled work. Id. Thus, the RFC is erroneous because the ALJ 

limited her to “detailed but not complex tasks” and the “ability to perform detailed tasks is 

actually . . . the ability to perform semi-skilled, not unskilled work.” Id. at 7. 

The Commissioner responds by arguing that “limitations identified in the paragraph 

B criteria are not a residual functional capacity assessment but are used to rate the severity 

of mental impairments at steps 2 and 3 of the sequential evaluation process.” Dkt. No. 16 

at 14 (internal quotations omitted). And the Commissioner argues that “[o]nce the ALJ 

proceeds past step two . . . the labeling of an impairment as ‘severe’ or ‘non-severe’ has no 

legal significance.” Id. at 14–15. In her Reply, Plaintiff alleges, without further 

explanation, that the “ALJ made no real attempt to explain how [Plaintiff] . . . was capable 

of performing this work.” Dkt. No. 17 at 5. 

Plaintiff’s argument, that the ALJ was required to limit Plaintiff to simple work after 

finding that Plaintiff had a severe mental impairment, is without merit. Plaintiff provides 

no legal authority, and the Court is unaware of any, that requires a claimant to be limited 

to unskilled work if the ALJ determines that the claimant suffers from a severe impairment

at steps 2 and 3 of the sequential evaluation process. 

The purpose of an RFC is to determine the most an individual can do despite their 

limitations. SSR 96-8P, 1996 WL 374184, at *1 (1996). To determine an individual’s RFC, 

an ALJ will consider all evidence, and then determine what evidence is consistent, and if 

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that evidence is sufficient to determine disability. 20 C.F.R. § 404.1520b(a) (2017). The 

ALJ will also determine what evidence is incomplete or inconsistent and how to best 

evaluate and manage that evidence or whether to use that evidence at all. Id. at (b)–(c). An 

RFC must be based on all relevant evidence and consistent with both objective medical 

evidence and other evidence. 20 C.F.R. §§ 404.1529, 416.920c (2017). 

Here, as discussed above, the ALJ found that the state agency experts’

determinations that Plaintiff could perform detailed but not complex tasks was partially

persuasive because they were consistent with the medical evidence of record. Tr. at 27. 

Additionally, the ALJ addressed the opinion of Dr. Flanagan, and rejected the restriction 

that Plaintiff should be restricted to one or two step tasks. Tr. at 27. The ALJ explained that 

“testing showing generally normal intellectual and memory functioning is not consistent 

with a restriction of no more than one or two step tasks.” Tr. at 27. Thus, the ALJ’s RFC 

limiting plaintiff to detailed but not complex tasks, was supported by substantial evidence. 

Plaintiff’s argument amounts only to a disagreement with the ALJ’s RFC 

assessment that Plaintiff could perform detailed tasks and an attempt to have the Court 

reevaluate this finding. See Dkt. Nos. 13, 17. However, this Court may not “re-weigh the 

evidence, try the questions de novo, or substitute [its] judgment for the Commissioner’s.” 

Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002). 

2. The ALJ properly evaluated Plaintiff’s mild limitations. 

Plaintiff argues that the ALJ erred in her RFC determination because 

“there is still absolutely no discussion in the decision about [Plaintiff’s] . . . mild limitations 

in understanding, remembering, or applying information; interacting with others; and 

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adapting or managing herself.” Dkt. No. 13 at 8. Plaintiff argues that the ALJ was required 

to account for these limitations in the RFC finding. Id. at 9. Plaintiff claims that this error 

was harmful because it resulted in the Plaintiff being found capable of performing her past 

employment. Id. at 10. 

The Commissioner responds by arguing that the ALJ’s opinion accounted for those 

limitations but made no further restrictions to Plaintiff’s RFC finding because any further 

restrictions were not supported by the record. Dkt. No. 16 at 15–18. 

The Social Security Administration regulations, which are controlling and relevant 

authority, require an ALJ to determine the severity of a mental impairment by “assess[ing] 

an individual’s limitation and restrictions from a mental impairment(s) in categories 

identified in ‘paragraph B’ and ‘paragraph C’ criteria,” and then conduct “a more detailed 

assessment” at the mental RFC used at steps 4 and 5. Pamela Joyce B. v. Kijakazi, No. 

1:21-CV-00087-H-BU, 2022 WL 3161941, at *6 (N.D. Tex. July 21, 2022), report and 

rec. adopted sub nom. Pamela B. v. Kijakazi, 2022 WL 3159273 (N.D. Tex. Aug. 8, 2022)

(citing SSR 96-8p, 1996 WL 374184, at *4). And “[t]he ALJ is not required to include 

RFC limitations or discussion for mental functional limitations found to be none or mild at 

step two and step three of the evaluation process.” Id. (quoting 20 C.F.R. § 404.1520a(d)(3) 

(“If we rate the degrees of your limitation as ‘none’ or ‘mild,’ we will generally conclude 

that your impairment(s) is not severe . . . ” and once a severe impairment is found, then the 

ALJ will then assess the severity of the impairment as part of the RFC.).

Here, at step 2 and 3 of the sequential evaluation process, the ALJ found that 

Plaintiff suffered from the following mild impairments: (1) understanding, remembering, 

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or applying information; (2) interacting with others; and (3) adapting or managing oneself. 

Tr. at 22. Then, contrary to Plaintiff’s arguments, the ALJ analyzed Plaintiff’s severe and 

non-severe impairments in the RFC analysis. Tr. at 23–27. The ALJ conducted a detailed 

review of Plaintiff’s mental health records, testimony, and daily activities and found that 

the “medical evidence was not fully consistent with the claimant’s symptoms and 

limitations.” Tr. at 27. The ALJ explained why, after considering all the evidence in the 

record, the evidence did not “provide a basis for limitations greater than those determined 

in the residual functional capacity.” Tr. at 27. 

The ALJ noted that “cognitive tests showed the claimant cognition was intact and 

objective memory testing showed normal memory abilities.” Tr. at 26. The ALJ states that 

“[o]ther exams noted findings such as the claimant having a good mood and affect, normal 

insight and judgment and intact memory.” Tr. at 26. The ALJ listed the claimants “wide 

range of daily activities”4and reasoned that “[s]ome of the physical and mental abilities 

and social interactions required to in order to perform these activities are the same as 

necessary for obtaining and maintaining employment.” Tr. at 26. Accordingly, the ALJ’s 

RFC addressed Plaintiff’s ability to understand, remember, and apply information, as well 

as her ability to interact with others, and her capacity to adapt and manage herself. 

4 ALJ noted that Plaintiff’s daily activities include caring for her husband and mother, washing dishes, driving, 

shopping in stores, playing games, socializing, making her bed, ordering items online, and handling her finances. Tr. 

at 26. 

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3. The ALJ properly considered evidence in the record to support her finding that 

Plaintiff could perform past relevant work. 

Plaintiff argues that the ALJ’s RFC was erroneous because the RFC “largely rested” 

on Plaintiff’s “ability to engage in daily activities.” Dkt. No. 13 at 10. Plaintiff alleges that 

the ALJ relied upon her ability to perform tasks such as caring for her husband and mother, 

washing dishes, driving, shopping in stores, playing games, socializing, making her bed, 

ordering items online, and handling her finances “as the basis for her conclusions that 

[Plaintiff] . . . was not disabled.” Id. at 11. Plaintiff claims that the ALJ’s reliance on these 

activities was harmful because the tasks are not similar to the tasks that she would perform 

in her previous employment as a payroll clerk and receptionist. Id. at 10–11. Additionally, 

Plaintiff claims that the RFC was incorrect because “the ALJ did not even consider 

[Plaintiff’s] . . . testimony that she was fired from her past relevant work . . . because, 

among other reasons, she could not grasp information.” Dkt. No. 13 at 11.

Plaintiff’s argument lacks merit. The ALJ did not state that Plaintiff could perform 

her previous employment solely because of her daily activities. See Tr. at 25–27. In fact, 

the ALJ expressly noted that only “[s]ome of the physical and mental abilities and social 

interactions required in order to perform these activities are the same as those necessary 

for obtaining and maintaining employment.” Tr. at 26. And as the undersigned addressed 

above, the ALJ explained why the medical evidence does not support a finding that Plaintiff 

is more limited than the given RFC. Tr. at 27. Thus, the ALJ did not improperly rely on 

Plaintiff’s daily activities to find that she could perform the detailed tasks required by her 

previous employment. 

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Regarding Plaintiff being fired from her previous employment, the ALJ noted that 

“objective memory testing showed normal memory abilities” and “testing showing 

generally normal intellectual and memory functioning is not consistent with a restriction 

of no more than one or two step tasks.” Tr. at 27. Thus, unlike Plaintiff claims, the ALJ 

explained why the Plaintiff has the ability to “grasp information” required for her previous 

employment. See Tr. at 27. Plaintiff fails to provide any support showing legal error and 

the undersigned finds that the ALJ properly applied the statutes and regulations to 

determine the Plaintiff’s RFC encompasses her functional limitations. 

C. The ALJ and the Appeals Council Judges were properly appointed and had authority to 

adjudicate Plaintiff’s claims.

Plaintiff alleges that “the ALJ and Appeals Council members were not properly 

appointed by former Acting Commissioner Nancy Berryhill nor by any subsequent 

Commissioner or Acting Commissioner.” Dkt. No. 13 at 12. Plaintiff contends that 

Berryhill began serving as Acting Commissioner on January 20, 2017, and that under the 

Federal Vacancies Reform Act’s (FVRA), which limited her term to 210 days, her term 

ended on November 16, 2017. Id. And Plaintiff argues that Berryhill remained 

Commissioner until Andrew Saul became Commissioner on June 7, 2019, and that her 

“actions after that date had no legal validity.” Id. Plaintiff cites two out of district cases to 

support her argument and claims that she “offers the exact same arguments . . . as the 

claimants in those cases.” Id. at 13 (citing Brian T. D. v. Kijakazi, 580 F. Supp. 3d 615 (D. 

Minn. 2022), rev'd and remanded sub nom. Dahle v. Kijakazi, 62 F.4th 424 (8th Cir. 

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2023)); Richard J. M. v. Kijakazi, No. 19-CV-827 (KMM), 2022 WL 959914, at *9 (D. 

Minn. Mar. 30, 2022). 

The Commissioner responds by noting that the “FVRA . . . establishes two timelines 

for acting service.” Dkt. No. 16 at 20. The Commissioner explains that the first timeline 

allows an acting official to serve in the office for no longer than 210 days after the vacancy 

occurs, and the second timeline allows the officer to serve “once a first or second 

nomination for the office is submitted to the Senate, from the date of such nomination for 

the period that the nomination is pending in the Senate.” Id. (quoting 5 U.S.C. §3346(a)). 

The Commissioner notes that Berryhill served as Acting Commissioner until 

November 16, 2017, when the initial 210-day period of service expired. Id. at. 19. Then, 

on April 17, 2018, Andrew Saul was nominated to serve as Commissioner, and “[u]pon 

submission of the nomination, Ms. Berryhill resumed her service as Acting Commissioner 

. . . and served until Mr. Saul was sworn in as Commissioner.” Id. And the Commissioner 

states that “Berryhill ratified the appointments of all SSA ALJs and approved them as her 

own.” Id. (citing SSR 19-1, 2019 WL 120236). Thus, the Commissioner argues that the 

FVRA did not prohibit Berryhill from resuming her role as Acting Commissioner after 

Andrew Saul was nominated in April 2018. Id. at 22. Plaintiff did not address this issue, or 

the Commissioner’s arguments in her Reply Brief. See Dkt. No. 17.

Plaintiff’s argument that Berryhill could not resume her position of Acting 

Commissioner after Andrew Saul was nominated is without merit. The undersigned notes 

that the out-of-district authority that Plaintiff relied upon is “no longer good law following 

the Eighth Circuit’s decision” in Dahle v. Kijakazi. See 64 F.4th 424, 427–28 (8th Cir. 

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2023). Additionally, Courts in this District have rejected Plaintiff’s counsel’s argument in 

other decisions. Tamara G. v. Comm’r of Soc. Sec. Admin., No. 3:22-CV-631-D-BK, 2023 

WL 2504912, at *1 (N.D. Tex. Feb. 13, 2023) (finding that Berryhill properly ratified

Judge’s appointments after Saul was nominated as Commissioner and “had the requisite 

authority to serve as Acting Commissioner under the FRVA until Saul was subsequently 

confirmed”), report and rec. adopted, 2023 WL 2518840 (N.D. Tex. Mar. 14, 2023). 

Accordingly, the undersigned finds that the ALJ and the Appeals Council Judges 

were properly appointed and had authority to adjudicate Plaintiff’s claims.

IV. RECOMMENDATION

For the reasons explained above, the undersigned RECOMMENDS that the decision

of the ALJ be AFFIRMED. 

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 

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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).

ORDERED this 2nd day of August, 2023.

 ___________________________________

 JOHN R. PARKER

 UNITED STATES MAGISTRATE JUDGE

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