United States Court of Appeals

for the Fifth Circuit

No. 21-50455

Summary Calendar

Larry E. Webster, Jr., 

Plaintiff—Appellant,

versus

Kilolo Kijakazi, Acting Commissioner of Social 

Security, 

Defendant—Appellee.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:20-CV-98

Before Smith, Stewart, and Graves, Circuit Judges.

Per Curiam:*

Plaintiff-Appellant filed this pro se appeal of the district court’s order 

affirming the Administrative Law Judge’s (“ALJ”) final administrative 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 29, 2021

Lyle W. Cayce

Clerk

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decision denying his claim for disability insurance benefits under Title II of 

the Social Security Act (“the Act”). We AFFIRM.

I. Background

On October 5, 2016, Plaintiff-Appellant Larry E. Webster, Jr. 

protectively filed an application for disability insurance benefits under Title 

II of the Social Security Act. He alleged that he became disabled on March 8, 

2016, due to a “broken back,” “upper extremities,” neck, lung, leg, and 

breathing problems. The Social Security Commissioner denied Webster’s 

application initially and on reconsideration. Webster requested a hearing 

before an ALJ. On June 26, 2018, the ALJ held an administrative hearing and

evaluated Webster’s claim using a five-step sequential process.1 The ALJ 

concluded that Webster was not disabled within the meaning of the Act. 

At step one of the sequential process, the ALJ found that Webster had 

not engaged in substantial gainful activity since March 8, 2016, the alleged 

disability onset date. At step two, the ALJ determined that Webster’s mild 

lumbar and cervical degenerative disc disease, minimal thoracic degenerative 

disc disease, persistent somatic symptom disorder with predominant pain,

conversion disorder with speech symptoms, and adjustment disorder with 

1 The ALJ uses a sequential five-step process to evaluate whether the claimant is 

disabled under the Act. The ALJ determines whether the claimant (1) is working; (2) has a 

severe impairment; (3) has an impairment listed in or medically equivalent to those in 20 

C.F.R. Part 404, Subpart P, Appendix 1; (4) is unable to do the kind of work she did in the 

past; and (5) can perform any other type of work. See 20 C.F.R. § 404.1520. The claimant 

bears the burden of proof at Steps 1 through 4. If the claimant is found too impaired to 

perform her past work at Step 4, the burden shifts to the Commissioner at Step 5 to produce 

“evidence about the existence of work in the national economy.” See 20 C.F.R. § 

404.1512(b)(3). “If the Commissioner identifies such employment, the burden shifts back 

to the claimant to prove that she could not perform the alternative work identified.” 

Morgan v. Colvin, 803 F.3d 773, 776 n.1 (5th Cir. 2015) (citing Fraga v. Bowen, 810 F.2d 

1296, 1302 (5th Cir. 1987)).

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depressive symptoms constituted severe impairments. At step three, the ALJ 

concluded that Webster’s impairments, or combination of impairments, did 

not satisfy or medically equate to a listed impairment for presumptive 

disability. 

Before the fourth step, the ALJ was required to assess Webster’s 

residual function capacity (“RFC”).2 A person’s RFC is his ability to

perform physical and mental work activities on a sustained basis despite 

limitations from his impairments.3 Work activities are classified as sedentary, 

light, medium, heavy, or very heavy. At step four, the ALJ found that

Webster retained the RFC for light work as defined under 20 C.F.R. § 

404.1567(b). In making this determination, the ALJ specified that he:

can lift and/or carry twenty pounds occasionally 

and ten pounds frequently; can stand and/or 

walk six hours in an eight-hour workday and sit 

for six hours in an eight-hour workday; can never 

climb ladders, ropes, or scaffolds; can 

occasionally climb ramps and stairs, balance, 

stoop, crouch, kneel, and crawl; can understand, 

remember, and carry out detailed but not 

complex instructions, make decisions, attend 

and concentrate for extended periods, and 

respond appropriately to changes in a routine 

work setting; and should have no interaction 

with the public and no more than occasional 

interaction with coworkers and supervisors.

2 See 20 C.F.R. § 404.1520(a)(4)(iv), (e).

3 20 C.F.R. § 404.1545(a)(1) (“Your residual functional capacity is the most you 

can still do despite your limitations.”).

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At the fifth and final step, the ALJ considers the individual’s RFC, 

age, education, and work experience to determine if he can transition to other 

work.4 If so, the individual is not disabled. After consulting with a vocational 

expert, the ALJ determined that even though Webster could no longer 

perform any of his past work, he could still perform other jobs that fell into 

the light work category. The ALJ ultimately concluded that Webster was not 

disabled at any time from March 8, 2016 through October 5, 2016. The 

Appeals Council denied Webster’s request for review on November 13, 2019.

On January 24, 2020, Webster appealed the ALJ’s decision. While his 

appeal was pending, Webster subsequently filed five motions for default 

judgment. He also filed two motions for recusal on the grounds that the

district court improperly granted the Commissioner an extension to file his

answer. The district court denied all of Webster’s motions and affirmed the 

final decision of the ALJ. 

On appeal, Webster argues that: (1) the district court abused its 

discretion when it denied his five motions for default judgment, (2) 

substantial evidence does not support the ALJ’s RFC determination, (3) the 

Commissioner failed to timely adjudicate Webster’s claim, and (4) the 

Commissioner engaged in fraud.

II. Standard of Review

We apply the abuse of discretion standard when reviewing a district 

court’s denial of a default judgment. Lewis v. Lynn, 236 F.3d 766, 767 (5th 

Cir. 2001). Our review of the ALJ’s denial of disability benefits is limited to 

determining (1) whether the decision is supported by substantial evidence in 

the record and (2) whether the proper legal standards were used in evaluating 

4 20 C.F.R. § 404.1520(a)(4)(v).

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the evidence. Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). 

“Substantial evidence is more than a scintilla, less than a preponderance, and 

is such relevant evidence as a reasonable mind might accept as adequate to 

support a conclusion.” Id. at 1021–22. Under the substantial evidence 

standard, “[t]he agency’s ‘findings of fact are conclusive unless any 

reasonable adjudicator would be compelled to conclude to the contrary.’” 

Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020). We review the entire record 

to determine if such evidence is present, but “may neither reweigh the 

evidence in the record nor substitute our judgment for the [ALJ’s].” Villa, 

895 F.2d at 1022. A finding of “no substantial evidence” will be made “only 

where there is a conspicuous absence of credible choices or no contrary 

medical evidence.” Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983).

III. Discussion

A. Webster’s motions for default judgment

Webster argues that the magistrate judge “overlooked” his filing of a 

summons and complaint as well as the fact that the Commissioner “had no 

response” and then filed an answer after the deadline. We disagree.

A default occurs when the defendant fails to plead or otherwise 

respond to the complaint within the time required. N.Y. Life Ins. Co. v. 

Brown, 84 F.3d 137, 141 (5th Cir. 1996). When a plaintiff fails to properly 

serve process on a defendant, the district court lacks personal jurisdiction 

over the defendant and any default judgment would be void. See Rogers v. 

Hartford Life & Accident Ins. Co., 167 F.3d 933, 940 (5th Cir. 1999). 

Here, the district court denied Webster’s first motion for default 

judgment because Webster had not effected service on the Commissioner.

The district court denied Webster’s second motion for default judgment 

because it was filed before the expiration of the Commissioner’s sixty-day 

deadline for filing an answer. On July 17, 2020, as permitted under Federal 

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Rule of Civil Procedure 6(b), the district court granted the Commissioner’s 

motion for extension of time to file his answer, setting a new deadline of 

September 15, 2020. In the meantime, Webster filed two motions for recusal, 

which the district court denied. The Commissioner filed his answer on 

September 2, 2020. Webster subsequently filed three motions for default 

judgment, all of which were denied because no default occurred.

The district court properly denied Webster’s motions for default 

judgment because the Commissioner filed his answer within the time 

required. Further, under these circumstances, Webster would likely not have

been entitled to a default judgment even if default had occurred. See Ganther 

v. Ingle, 75 F.3d 207, 212 (5th Cir. 1996) (“A party is not entitled to a default 

judgment as a matter of right . . . .”). For these reasons, we hold that the 

district court did not abuse its discretion in denying Webster’s motions for 

default judgment.

B. ALJ’s RFC determination

Although not entirely clear from his brief, Webster appears to argue

that the ALJ’s RFC determination is not supported by substantial evidence. 

He complains that the magistrate judge failed to address the opinions of 

several specialists and the severity of his injuries. He specifically names Dr. 

Stephen Gist, Dr. Shamonica Trunell, Dr. Susan Frensley, Dr. Richard 

Brunn, Dr. Calvin Bradley, Dr. Martin Solomon, and Dr. Jesse Cover as 

doctors whose findings were “overlooked” by the magistrate judge and the 

Commissioner. He also takes issue with the findings of Dr. Murray Duren, 

Dr. John Sacha, and Dr. John Burris. We are not persuaded by Webster’s 

arguments.

Under the Act, disability is defined as the “inability to engage in any 

substantial gainful activity by reason of any medically determinable physical 

or mental impairment which can be expected to result in death or which has 

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lasted or can be expected to last for a continuous period of not less than 12 

months.” 42 U.S.C. § 423(d)(1)(A). In determining whether there is 

substantial evidence of disability, we weigh four elements of proof: (1) 

objective medical facts; (2) diagnoses and opinions of treating and examining 

physicians; (3) the claimant’s subjective evidence of pain and disability; and 

(4) the claimant’s age, education, and work history. Martinez v. Chater, 64 

F.3d 172, 174 (5th Cir. 1995). 

The record demonstrates that the district court appropriately 

considered the findings of Webster’s doctors. First, the district court 

properly determined Dr. Gist’s report was immaterial to the case because it 

was issued in March 2019, a month past the relevant time period. Second, 

Dr. Trunell’s report similarly concerned a time frame outside of the 

adjudicated period and had not been issued at the time the ALJ rendered her 

decision. Third, although the district court did not reference Dr. Frensley, it 

affirmed the ALJ’s decision, which assigned “great weight” to Dr. 

Frensley’s opinion and determined that Webster could perform semiskilled 

work due to his average intelligence, good academic ability and 

concentration, and excellent memory.5 Fourth, as she was permitted to do, 

the ALJ accorded “some weight” to the opinion of consultative examiner Dr. 

Brunn and “little weight” to the opinions of Dr. Bradley and Dr. Cover on 

the grounds that their opinions were inconsistent with record evidence. See

Martinez, 64 F.3d at 176 (“[T]he ALJ is free to reject the opinion of any 

physician when the evidence supports a contrary conclusion.”). Fifth, the 

district court concluded that the ALJ did not err in her review of Dr. 

Solomon’s assessment. Finally, as to the findings of doctors Duren, Burris, 

5 The ALJ’s consideration of Dr. Frensley’s opinion is further evidenced by her 

determination that Webster should have no interactions with the public and only limited 

interaction with coworkers and supervisors.

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and Sacha, the district court found that the ALJ’s determinations were 

“based on enough relevant evidence that a reasonable mind would accept the 

evidence as adequate to support the decision.” Accordingly, we hold that 

substantial evidence supports the ALJ’s evaluation of the findings of the 

various doctors and specialists.

C. Commissioner’s timely adjudication

Webster claims that the Commissioner violated Heckler v. Day by 

failing to adjudicate his claim within a specified time frame. This argument 

has no merit. There is no statute or case law that requires the Commissioner 

to resolve a social security claim within a certain number of days. See Heckler 

v. Day, 467 U.S. 104, 119 (1984) (“[I]t it would be an unwarranted judicial 

intrusion into this pervasively regulated area for federal courts to issue 

injunctions imposing deadlines with respect to future disability claims.”); see 

also Jimenez v. Halter, No. 00-50366, 2001 WL 300646, at *1 (5th Cir. Feb. 

28, 2001) (“There are no deadlines for resolving Social Security cases.”).

D. Fraud argument

Finally, Webster argues that the Commissioner engaged in fraud by 

relying on a false and misleading Maximum Medical Improvement report by 

Dr. Burris when Dr. Solomon had already conducted an impairment rating

on two occasions. Because this issue is inadequately briefed, however, we will 

not consider it. See United States v. Charles, 469 F.3d 402, 408 (5th Cir. 2006)

(“Inadequately briefed issues are deemed abandoned.”).

In sum, we hold the ALJ’s decision is supported by substantial 

evidence, and proper legal standards were used in evaluating that evidence.

IV. Conclusion

For the foregoing reasons, we AFFIRM the order of the district 

court.

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