Chanel Davis v. Frank Bisignano - Disability Benefits Remand

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March 9, 2026 Get Citation Alerts Download PDF Add Note

Chanel Davis v. Frank Bisignano, Commissioner, Social Security Administration

District Court, E.D. Texas

• Citations: None known
• Docket Number: 4:24-cv-00762

• Precedential Status: Unknown Status

• Opinion

• Authorities (15)

• Cited By (0)

• Summaries (0)

• Similar Cases (11.9K)

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Trial Court Document

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

CHANEL DAVIS §
§
v. § NO. 4:24-CV-00762-BD
§
FRANK BISIGNANO, §
Commissioner, Social Security §
Administration §

MEMORANDUM OPINION AND ORDER
Plaintiff Chanel Davis seeks judicial review under 42 U.S.C. § 405 (g) of a final decision of the
United States Social Security Administration Commissioner denying her claim for disability-
insurance benefits. Having reviewed the transcript of the administrative hearing, the parties’ briefs
to this court, and the evidence in the administrative record, the court will reverse the
Commissioner’s decision and remand the case for further administrative proceedings.
BACKGROUND
A “younger person” at the time of her application, see 20 C.F.R. § 404.1563 (c), Davis applied
for benefits based on her anxiety disorder, panic disorder, agoraphobia, and post-traumatic stress
disorder (“PTSD”). AR 223. The Commissioner denied her application and request for
reconsideration.
At a subsequent hearing before an administrative law judge (“ALJ”), Davis testified that she
had acquired a GED and had previously worked as a correctional officer, daycare worker,
customer-service provider, and insurance clerk. AR 72–73, 90. The hearing covered a range of
other topics, including her family, home life, and social life. See AR 80–84. The ALJ also heard
testimony regarding prior incidents of anxiety attacks, AR 84–85, and loss of concentration, AR 87.
Davis had returned to work since her original request for benefits. AR 68–69. Her
representative explained that, in January 2023, Davis started working from home “in a quiet
environment with no social interaction,” but that even that job was “not working out well for her.”
AR 69. Davis later testified that, between September and October 2023, she took a month-long
leave of absence. AR 69, 74.
At the time of the hearing, Davis was taking medications for her mental-health conditions,
AR 75, and exploring counseling options, AR 75, 85–86. She testified that her depression causes
her to feel tired and fatigued easily, especially when she is stressed out. AR 75–76. She also
explained that her anxiety comes and goes and that some days are more difficult than others. Id. When asked about how her mental-health conditions affect her work schedule, Davis testified
that she leaves work early at least three to four times each month, relying on her accumulated leave
to cover her missing hours. AR 75. She testified that she currently works from home between 9:00
a.m. and 5:30 p.m. AR 78. She noted that her employer allows two 15-minute breaks and a 30-
minute lunch. Id. In addition to her prescribed breaks, Davis testified that she works only 30–45
minutes at a time, after which, she takes a short break. Id. She testified that she pauses her work
about eight to twelve times a day to rest. AR 79. Davis testified that her anxiety and fatigue often
trigger her need for a break. Id. She reported that she would start crying, feel overwhelmed, and
lose her concentration. Id. When she did log off early, Davis testified that she would “go l[ie] in
bed the rest of the day and try to sleep.” AR 83.
The ALJ asked vocational expert Jerry Hildre about a hypothetical person of Davis’s age,
experience, and education who does not have any exertional limitations but has additional
restrictions of never climbing ladders, ropes, or scaffolds; avoiding extreme heat; avoiding
unprotected heights; being limited to performing simple, routine tasks and simple decision-making
with no more than occasional changes in a routine environment; and only occasional interaction
with supervisors, coworkers, and the public. AR 91. Hildre testified that such a person could not
perform Davis’s past work but could work as a cleaner, assembler, or laundry folder. AR 91–92.
When the hypothetical person’s exertional range was limited to sedentary, Hildre testified that
such a person could work as an optical-lens inserter, optical-goods assembler, and a household
patcher. AR 93. The ALJ also asked Hildre about a hypothetical person who needed unscheduled
breaks that resulted in being off task for more than 15% of the workday or workweek or who missed
work more than two days per month. AR 94. Hildre testified that there were no unskilled jobs
available with those restrictions. Id. After the hearing, the ALJ issued a decision, AR 33–45, concluding that, even though “[s]he
[wa]s still working” and reported income for 2023 in amounts above the threshold for substantial
gainful activity, Davis “has not engaged in substantial gainful activity since December 2, 2020, the
alleged onset date.” AR 35–36; see AR 41 (recognizing that Davis “has been working for what
appears to be the past year”). Her decision went on to find that Davis met several other
requirements for obtaining benefits, including establishing the severe impairments of bipolar
disorder, attention deficit hyperactivity disorder, PTSD, anxiety disorder, and panic disorder.
AR 36–37. But it found that Davis: (1) did “not have an impairment or combination of impairments
that me[t] or medically equal[ed] the severity of one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1”; (2) “ha[d] the residual functional capacity [“RFC”] to perform a full
range of work” with certain non-exertional limitations; and (3) could perform “jobs that exist[ed]
in significant numbers in the national economy.” AR 37–44; see 20 C.F.R. § 404.1545 (a) (defining
RFC and explaining its assessment and use); id. §§ 404.1545(a)(3), 404.1546(c) (reflecting that an
ALJ is responsible for determining a claimant’s RFC at a disability hearing based on all of the
relevant medical and other evidence); Social Security Ruling (“SSR”) 96-8p (providing policy
guidance regarding assessment of RFC).
In reaching her conclusion, the ALJ stated that Davis’s impairments “could reasonably be
expected to cause some of the alleged symptoms; however, [her] statements concerning the
intensity, persistence and limiting effects of these symptoms are not entirely consistent with the
medical evidence and other evidence in the record.” AR 40. The ALJ also considered the opinions
of state-agency consultants Lisette Constantin and Pauline Hightower, treating physician Daniel
Fox, and nurse practitioner Theresia Tabe. The ALJ found the opinions persuasive to varying
degrees. AR 42–43.
Constantin examined the record and found that Davis could perform simple work. AR 98–105.
The ALJ found that opinion persuasive because, in her view, it was consistent with the overall
evidence and was supported by the record as a whole. AR 42. Hightower also reviewed the record
but opined that Davis could perform detailed tasks. AR 106–14. The ALJ found that opinion
unpersuasive because it was not supported by “the variably abnormal mental status exam findings”
and was inconsistent with Constantin’s opinion. AR 42.
Fox opined that Davis could understand simple tasks and maintain social interaction but could
not sustain concentration or “persist in work related activity.” Id. The ALJ found Fox’s opinion
“not entirely persuasive” because it was “not entirely supported by [his] own mental status
findings, especially regarding her ability to concentrate.” Id. The ALJ found Fox’s opinion to be
“[in]consistent with the longitudinal record where at times her concentration was deficient but on
other instances no abnormalities were noted.” AR 42–43.
Finally, the ALJ considered Tabe’s opinion. The paragraph of the decision addressing that
opinion reads, in full:
In December 2023, Theresia Tabe, APRN, PMHNP opined the claimant has some
loss of ability to perform several different work-related mental activities with no loss
in her ability to maintain attention and concentration for 2 hours or perform at a
consistent pace (10F [AR 608–11]). She would likely be absent from work 2-3 times
monthly for 4-6 hours a day. The undersigned finds this opinion partially persuasive
as it is partially supported by the objective clinical findings and treatment history
and is partially consistent with the reported daily activities.
AR 43. Based on “[Davis’s] subjective statements to treatment providers, the longitudinal
treatment history, and the objective evidence,” id., the ALJ made the following RFC assessment:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform a full range of work at all
exertional levels but with the following nonexertional limitations: she can never
climb ladders, ropes, or scaffolds. She needs to avoid exposure to extremes of heat
and to other unprotected heights. She is limited to performing simple, routine tasks
and simple decision-making, with no more than occasional changes in a routine
environment. She can have occasional interaction with supervisors, coworkers, and
the public.
AR 39.
The Administration’s appeals council denied review of the ALJ’s decision. AR 1–6. Davis
timely sought judicial review. Dkt. 1; see 42 U.S.C. § 405 (g).
RELEVANT LAW AND STANDARD OF REVIEW
The Social Security Act governs, among other things, disability insurance and supplemental
security income benefits. See 42 U.S.C. §§ 423, 1381. To be entitled to either, a claimant must have
a “disability,” a term principally defined in this context as an “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 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); accord id. § 1382c(a)(3)(A).
At a hearing before an ALJ, a claimant generally bears “the burden of proving she has a
medically determinable physical or mental impairment lasting at least twelve months that prevents
her from engaging in substantial gainful activity.” Newton v. Apfel, 209 F.3d 448, 452 (5th Cir.
2000). The ALJ must determine whether: “(1) the claimant is not working in substantial gainful
activity; (2) the claimant has a severe impairment; (3) the claimant’s impairment meets or equals
a listed impairment in Appendix 1 of the Regulations; (4) the impairment prevents the claimant
from doing past relevant work; and (5) the impairment prevents the claimant from doing any other
work.” Id. at 453 (citing 20 C.F.R. § 404.1520). The burden shifts to the Commissioner only at the
fifth step of that analysis. See id. But if the Commissioner “fulfills his burden of pointing out
potential alternative employment, the burden then shifts back to the claimant to prove that he is
unable to perform the alternate work.” Selders v. Sullivan, 914 F.2d 614, 618 (5th Cir. 1990)
(quotation marks omitted).
Under § 405(g), a court’s review of an ALJ’s decision is “highly deferential.” Perez v.
Barnhart, 415 F.3d 457, 464 (5th Cir. 2005). The court’s role is limited to “ascertain[ing] whether
(1) the final decision is supported by substantial evidence and (2) . . . the Commissioner used the
proper legal standards to evaluate the evidence.” Newton, 209 F.3d at 452. “Substantial evidence”
is more than a scintilla but less than a preponderance. Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir.
2001). “A finding of no substantial evidence is appropriate only if no credible evidentiary choices
or medical findings support the decision.” Id. And although a court “must carefully scrutinize the
record to determine if, in fact, [substantial] evidence is present,” Hollis v. Bowen, 837 F.2d 1378,
1383 (5th Cir. 1988), it “may not re-weigh the evidence or substitute [its] judgment for that of the
Commissioner,” Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000).
It is the ALJ’s job, not the court’s, to resolve any evidentiary conflict. Carry v. Heckler, 750
F.2d 479, 482 (5th Cir. 1985). For that reason, “a reviewing court must affirm the Commissioner,
even when the court disagrees with the Commissioner’s decision, so long as it is supported by some
evidence that any reasonable fact finder might accept.” Washington v. Barnhart, 413 F. Supp. 2d
784, 791 (E.D. Tex. 2006); see Carey v. Apfel, 230 F.3d 131, 135 (5th Cir. 2000). An ALJ’s failure
to follow an applicable legal standard, however, requires remand when the error is harmful. See
Newton, 209 F.3d at 452; Lacher v. Comm’r, SSA, No. 4:23-CV-00551-ALM-AGD, 2024 WL
4206749, at *6 (E.D. Tex. Aug. 26, 2024), report and recommendation adopted, 2024 WL 4205585 (E.D. Tex. Sept. 16, 2024).
THE PARTIES’ ARGUMENTS
In a single issue, Davis argues that the ALJ erred by crediting Tabe’s opinion as “partially
persuasive” but failing to include in the RFC determination Tabe’s conclusion that Davis would
experience workplace absences two to three times per month. Pl. Br. 5. Davis argues that the ALJ
failed to reconcile the vocational expert’s testimony that “no work would be available for a person
with more than two absences” with the omission of an RFC absenteeism limitation. Id. In Davis’s view, the ALJ’s RFC finding is not supported by substantial evidence because the
ALJ did not find Tabe’s opinion completely unpersuasive. See id. at 10–11. According to Davis, the
ALJ was unjustified in failing either to note Davis’s workplace absences in the RFC or explain why
doing so was not appropriate. See id. Davis relies on the ALJ’s decision not to discard Tabe’s opinion as unpersuasive. Id. at 11. She
argues that, by considering Tabe’s opinion but not explaining what parts of it she agreed with, the
ALJ “deprive[d] the court of meaningful review.” Id. at 13. She further asserts that remand is
necessary because “it’s uncertain whether the ALJ was persuaded that absenteeism was a
legitimate limitation.” Id. In response, the Commissioner argues that the ALJ’s review of the record was sufficient under
the applicable law. He asserts that the ALJ properly considered the record evidence and explained
how persuasive she found it. Def. Br. 5. He points out that the ALJ found “Tabe’s opinion that
[Davis] would be absent from work two to three days per month was not fully supported by the
objective medical evidence and was not consistent with [Davis]’s ability to work after her disability
onset date and her daily activities.” Id. (citing AR 35–36, 40–43).
According to the Commissioner, the ALJ considered Tabe’s records and found Davis’s course
of treatment “routine and conservative in nature.” AR 41; Def. Br. 5. He further notes that Tabe
“did not opine that [Davis] would be absent from work two to three times per month” in her
treatment notes. Def. Br. 5. He argues that the ALJ properly considered Tabe’s opinion and that
Tabe’s “treatment notes support the ALJ’s finding that [Davis] had the RFC to perform simple,
routine work.” Id. He also argues that Tabe’s “opinion regarding [Davis]’s absenteeism was
inconsistent with other evidence” and that the ALJ concluded that “[Davis] was not as limited as
she alleged.” Id. at 6. Finally, he notes that the ALJ “was not required to adopt a specific medical
provider’s assessment, and the ALJ has the responsibility to determine a claimant’s RFC.” Id. at
7.
In reply, Davis re-urges her argument that “the ALJ embraced, not rejected, nurse Tabe’s
opinion” by labeling it partially persuasive. Pl. Reply Br. 1. She argues that the ALJ was required
to explain why she declined to adopt Tabe’s opinion and failed to include the absentee limitation
in her RFC finding. Id. at 2–3.
ANALYSIS
Under the applicable regulations, an ALJ “will not defer or give any specific evidentiary weight,
including controlling weight, to any medical opinion(s) or prior administrative medical finding(s),
including those from [a claimant’s] medical sources.” 20 C.F.R. § 404.1520c(a); see Webster v.
Kijakazi, 19 F.4th 715, 718–19 (5th Cir. 2021) (comparing § 404.1520c with its predecessor and
citing a Social Security Administration final rule for its explanation that the current regulations
allow “courts to focus on the content of the evidence rather than on the source” (cleaned up)).
The regulations instead require the ALJ to “articulate . . . how persuasive [he or she] find[s] all of
the medical opinions and all of the prior administrative medical findings in [a claimant’s] case
record.” 20 C.F.R. § 404.1520c(b).
When evaluating whether a medical provider’s opinion is persuasive, the ALJ must consider
five factors: (1) supportability; (2) consistency; (3) the provider’s relationship with the claimant;
(4) specialization; and (5) other factors that tend to support or contradict the provider’s opinion. 20 C.F.R. § 404.1520c(c). The first two are “the most important factors”; the regulations state
that the ALJ “will explain” how he or she considered them. Id. § 404.1520c(b)(2). But the ALJ
need not explain how he or she considered the three remaining factors. Id.; Hepburn v. O’Malley,
No. 6:24-CV-540-SJH, 2024 WL 4647948, at *5 (M.D. Fla. Nov. 1, 2024).
The regulations define the primary factors as follows:
(1) Supportability. The more relevant the objective medical evidence and
supporting explanations presented by a medical source are to support his or her
medical opinion(s) or prior administrative medical finding(s), the more persuasive
the medical opinions or prior administrative medical finding(s) will be.
(2) Consistency. The more consistent a medical opinion(s) or prior administrative
medical finding(s) is with the evidence from other medical sources and nonmedical
sources in the claim, the more persuasive the medical opinion(s) or prior
administrative medical finding(s) will be. 20 C.F.R. § 404.1520c(c)(1)–(2).
The regulatory text does not impose a “magic words” requirement. Keel v. Saul, 986 F.3d 551,
556 (5th Cir. 2021). That is to say, “there are no formalistic rules governing how an ALJ must
articulate his decision.” Hubbard v. Comm’r of Soc. Sec., No. 4:20-CV-00588-BP, 2022 WL 196297,
at *4 (N.D. Tex. Jan. 21, 2022). Remand is appropriate only if there is no indication that the ALJ
applied the correct standard. Keel, 986 F.3d at 556. “[T]erse” findings may suffice. Miller v.
Comm’r of Soc. Sec., No. 120-CV-00194-HSO-RPM, 2022 WL 566175, at *6 (S.D. Miss. Feb. 24,
2022).
Generally, the RFC is an assessment based on relevant evidence of a claimant’s maximum
ability to work on a sustained basis in an ordinary work setting despite her impairments. 20 C.F.R.
§ 404.1545 (a); Myers v. Apfel, 238 F.3d 617, 620 (5th Cir. 2001). The RFC is the most a claimant
can do despite her limitations. The ALJ “is responsible for assessing the medical evidence and
determining the claimant’s [RFC].” Perez v. Heckler, 777 F.2d 298, 302 (5th Cir. 1985).
As noted, Davis argues that the ALJ’s failure to address Tabe’s absenteeism opinion in her
RFC assessment renders her decision “so vague as to preclude meaningful judicial review.” Pl.
Br. 11. She is correct. Remand is required here because the ALJ’s analysis was insufficient and the
error was prejudicial. On remand, the ALJ should also reconsider whether Davis cleared the first
hurdle on her path toward a benefits award by meeting her burden to show that she was not engaged
in substantial gainful activity during the relevant time period.
A. The ALJ’s failure to conduct a proper persuasiveness analysis of Tabe’s opinion
An ALJ need not incorporate limitations in an RFC that she finds unsupported by the record.
See Muse v. Sullivan, 925 F.2d 785, 790 (5th Cir. 1991); Kozlowski v. Colvin, No. 4:13-cv-020-A, 2014 WL 948653, at *7 (N.D. Tex. Mar. 11, 2014). But if she finds a medical opinion unpersuasive,
she must explain why. 20 C.F.R. § 404.1520c(b)(2).
In particular, although “ALJs need not exhaustively explain their reasoning, they must explain
how they considered the supportability and consistency factors for medical opinions in [a
claimant’s] determination or decision.” Lacher, 2024 WL 4206749, at *7 (cleaned up). Boilerplate
explanations do not suffice. See Erlandsen v. O’Malley, No. 4:23-cv-83-ALM-KPJ, 2024 WL
898915, at *6 (E.D. Tex. Feb. 14, 2024) (collecting cases), report and recommendation adopted, 2024
WL 897598 (E.D. Tex. Mar. 1, 2024); Cooley v. Comm’r of Soc. Sec., 587 F. Supp. 3d 489, 501 (S.D.
Miss. 2021). Instead, the ALJ must cite “specific evidence in the record supporting his
supportability and consistency determination.” Erlandsen, 2024 WL 898915, at *4 (cleaned up).
Courts in the Fifth Circuit require an ALJ to “articulate ʻa discernible logic bridge between the
evidence and the ALJ’s persuasiveness finding,’” Morgan v. Kijakazi, No. 4:22-cv-631-ALM-KPJ, 2023 WL 6238052, at *6 (E.D. Tex. Aug. 31, 2023) (quoting Nunley v. Kijakazi, No. 4:22-cv-0625, 2023 WL 2386747, at *4 (S.D. Tex. Mar. 6, 2023)), report and recommendation adopted, 2023 WL
6221773 (E.D. Tex. Sept. 25, 2023). “At a minimum, the ALJ’s discussion must give enough
reasons to permit meaningful judicial review.” Hubbard, 2022 WL 196297, at *4.
As noted, the ALJ stated the following when explaining the persuasiveness of Tabe’s opinion:
In December 2023, Theresia Tabe, APRN, PMHNP opined the claimant has some
loss of ability to perform several different work-related mental activities with no loss
in her ability to maintain attention and concentration for 2 hours or perform at a
consistent pace (10F [AR 608–11]). She would likely be absent from work 2-3 times
monthly for 4-6 hours a day. The undersigned finds this opinion partially persuasive
as it is partially supported by the objective clinical findings and treatment history
and is partially consistent with the reported daily activities.
AR 43. When determining whether the ALJ’s decision is supported by substantial evidence, the
court is not limited to reviewing only that paragraph. It may consider the entire RFC discussion
and the evidence discussed in it. See Garner v. Kijakazi, No. 1:22-CV-0563-DH, 2023 WL 1976713,
at *5 (W.D. Tex. Feb. 13, 2023); Teixeira v. Comm’r, SSA, No. 4:21-CV-00003-SDJ-CAN, 2022
WL 3130859, at *11 (E.D. Tex. July 12, 2022), report and recommendation adopted, No. 4:21-CV-3, 2022 WL 3107856 (E.D. Tex. Aug. 4, 2022).
Here, however, the ALJ’s RFC discussion says nothing about Davis’s potential absenteeism
limitation. See AR 39–45. The ALJ did refer to some of Tabe’s medical records, AR 40–41, but she
did not connect any of those findings to her decision to omit Tabe’s absenteeism opinion. The ALJ
noted Tabe’s opinion that Davis would be absent from work multiple times each month. AR 43;
see AR 610–11 (form completed by Tabe stating: “2–3 X monthly for 4–6 hrs per day” and selecting
“about 3 days per month” in response to the question “On the average, how often do you
anticipate your patient’s impairments/symptoms or treatment would cause your patient to be
absent from work?”). And at the hearing, the ALJ asked vocational expert Hildre questions relating
to that possible limitation. See AR 88–94. One of the questions was whether a hypothetical person
could hold an unskilled job if she was absent more than two days a month. AR 94. Hildre
responded: “No.” Id. Although the ALJ determined that Tabe’s opinion was “partially persuasive,” AR 43, she did
not explain what part of Tabe’s multi-part opinion was persuasive and therefore did not provide
the logic bridge necessary for the court to conduct a meaningful review. And even though the ALJ
discussed the medical evidence in her RFC finding, she did not explain how Tabe’s absenteeism
opinion conflicted with that evidence. See AR 43.
The Commissioner reads “partially persuasive” to indicate that the ALJ found Tabe’s opinion
on Davis’s absenteeism not fully supported or consistent. Def. Br. 5. He points to the ALJ’s
findings regarding substantial gainful activity and impairments, AR 35–36, and the part of the RFC
discussion offered in support of that conclusion, AR 40–43. Although the ALJ’s report mentioned
Davis’s workplace absences, it just recounted Davis’s testimony. See AR 36. The ALJ did not
discredit Davis’s testimony or address how Tabe’s opinion fit into the picture. The
Commissioner’s argument that “[t]he ALJ found Ms. Tabe’s opinion that [Davis] would be absent
from work two to three days per month was not fully supported by the objective medical evidence
and was not consistent with [Davis]’s ability to work after her disability onset date and her daily
activities,” Def Br. 5, lacks support in the record.
The ALJ never stated that she found Tabe’s opinion lacking for the reasons the Commissioner
now identifies. In fact, she did not explain her thoughts behind Tabe’s opinion at all; she just
labeled the opinion “partially persuasive” without specifying which part was persuasive and which
was not. See AR 43.
The Commissioner also argues that Tabe “did not opine that [Davis] would be absent from
work two to three times per month” in her treatment notes. Def. Br. 5. But as noted, the form Tabe
filled out stated that her absences would be “2–3 X monthly for 4–6 hrs per day,” and it has a
checkmark beside “about 3 days per month.” AR 610–11. That is presumably why the ALJ did not
raise the concern that the Commission asserts now—which, in any event, would be a post hoc
rationalization incapable of supporting the Commissioner’s argument. See Newton, 209 F.3d at 455 (explaining that “[t]he ALJ’s decision must stand or fall with the reasons set forth in the ALJ’s
decision”); Furr v. Comm’r, SSA, No. 4:16-CV-00821-CAN, 2018 WL 1457318, at *6 (E.D. Tex.
Mar. 23, 2018) (finding the Commissioner’s argument “an impermissible post hoc rationalization
of the ALJ’s decision”).
Without any elaboration of what “partially persuasive” means, the court is left to speculate
about the reasons underlying the ALJ’s analysis of Tabe’s opinion. See Hearn v. Kijakazi, No. 4:21-
cv-562-SDJ-KPJ, 2022 WL 4477340, at *6 (E.D. Tex. Aug. 30, 2022), report and recommendation
adopted, 2022 WL 4474251 (E.D. Tex. Sept. 26, 2022). Because the court cannot conduct a
meaningful review, it must remand the case if the error was prejudicial. See Mays v. Bowen, 837
F.2d 1362, 1364 (5th Cir. 1988).
B. Prejudice
Even though the ALJ erred by failing to explain her persuasiveness determination, the court
may reverse her decision only if those errors prejudiced Davis. See id. The ALJ’s failure to apply
the proper legal standard “does not require an automatic reversal.” Keel, 986 F.3d at 556.
“Harmless error exists when it is inconceivable that a different administrative conclusion would
have been reached even if the ALJ did not err.” Id. The court must take the ALJ at her word. She found Tabe’s opinion partially persuasive, but
she did not explain what parts she adopted and what parts she disagreed with. The ALJ concluded
that Davis could perform a full range of work with some non-exertional limitations, but she did not
include Tabe’s recommended limitation of absenteeism. AR 39. Yet Hildre testified that there
would not be any unskilled labor for Davis to perform if that limitation were present. AR 94. It is
therefore “[]conceivable that a different administrative conclusion would have been reached even
if the ALJ did not err,” Keel, 986 F.3d at 556, so Davis has done enough to show that the error is
not harmless.
C. The need to reconsider step one on remand
The ALJ’s decision correctly explained that, “[i]f an individual engages in [substantial gainful
activity], she is not disabled regardless of how severe her physical or mental impairments are and
regardless of her age, education, and work experience,” recognizing that “the analysis proceeds to
the second step” only “[i]f the individual is not engaging in [substantial gainful activity].” AR 34;
see 20 C.F.R. § 404.1520 (a)(4), (b). It nevertheless went on to find facts suggesting that Davis had,
in fact, engaged in substantial gainful activity during the relevant time, AR 35–36, then stated:
“Despite these findings and given that the [ALJ] finds [Davis] not disabled based on other grounds,
the [ALJ] will proceed onto the next step in the sequential evaluation process.” AR 36.
If Davis cannot pass step one, the analysis should not proceed further. See 20 C.F.R. § 404.1571 (explaining that, if a claimant is “able to engage in substantial gainful activity, [the Commission]
will find that [she is] not disabled”). On remand, the ALJ should therefore reconsider whether
Davis can pass step one even though she “has been working for what appears to be the past year.”
AR 41; see Merendino v. Comm’r of Soc. Sec., No. 15-3900(NLH), 2016 WL 3041849, at *6 (D.N.J.
May 27, 2016); Rollins Kiddy v. Colvin, No. 13-CV-674-GKF-TLW, 2015 WL 898270, at *18 (N.D.
Okla. Mar. 3, 2015).
CONCLUSION
It is ORDERED that the Commissioner’s decision is REVERSED and that the case is
REMANDED to the Commissioner for further proceedings consistent with this opinion.