Tutt v. Colvin, No. 4:2017cv02520 - Document 14 (S.D. Tex. 2018)

Court Description: MEMORANDUM AND ORDER denying 9 Plaintiff's Cross MOTION for Summary Judgment , and granting 7 Defendant's Cross MOTION for Summary Judgment . (Signed by Magistrate Judge Christina A Bryan) Parties notified.(cjan, 4)

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ntends that the ALJ’s decision at step 5 of the sequential analysis is not supported by substantial evidence because it conflicts with his decision at step 4 that she could not perform her past relevant work as a retail sales clerk. She further contends that the ALJ erred in applying Grid Rule 202.21 to find that she is not disabled. Contrary to Tutt’s contention, the ALJ’s disability determination was not based solely on Grid Rule 202.21, which governs disability determinations for individuals who can perform the full range of light, unskilled work. The ALJ noted that application of Grid Rue 202.21 would dictate a finding of “not disabled.” Dkt. 4-3 at 29. However, because Tutt has non-exertional limitations, the ALJ properly used the services of a vocational expert to make the step 5 determination. Id.; See Carey v. Apfel, 230 F.3d 131, 145 (5th Cir. 2000) (“When, as here, the claimant suffers from additional limitations that make the Medical–Vocational Guidelines inapplicable, the Commissioner must rely upon the services of a vocational expert or similar evidence. . . . The value of a vocational expert is that he [or she] is familiar with the specific requirements of a particular occupation, including working conditions and the attributes and skills needed.” (internal citations omitted)). The ALJ incorporated all of the limitations he found supported by the evidence into his RFC assessment. At the hearing, the ALJ presented a series of hypothetical questions to the vocational expert, Byron Pettingill, which incorporated all of the limitations contained in his 9 RFC assessment. Dkt. 4-3 at 90-96. An ALJ's hypothetical question to a vocational expert must reasonably incorporate all limitations recognized by the ALJ, and the claimant or his representative must be afforded the opportunity to correct any deficiencies in the question. Boyd v. Apfel, 239 F.3d 698, 707 (5th Cir. 2001); Masterson v. Barnhart, 309 F.3d 267, 273 (5th Cir. 2002). These conditions were met in this case. The ALJ’s ultimate finding that Tutt is not disabled under the Act is based on the Pettingill’s identification of jobs a person matching Tutt’s RFC can perform. Pettingill classified Tutt’s past work as a retail sales clerk as light, semiskilled work. Dkt. 4-3 at 28, 91. Tutt’s argument that the ALJ’s step 4 and step 5 findings are in conflict overlooks the fact that the ALJ found that Tutt could perform unskilled light work. In addition, the ALJ expressly asked the vocational expert if Tutt could perform her past work as a retail sales clerk if she were limited to frequent interaction with the public or coworkers. Id. at 95. Pettingill testified she could not, but that there other jobs available she could do with that limitation, such an office helper, clothing sorter, and small products assembler. Id. at 95-96. All of the jobs the vocational expert identified were light, unskilled jobs. Id. at 96. Thus, the ALJ’s step 4 decision that Tutt could not perform her past relevant work is not inconsistent with his step 5 decision that she could perform other available jobs. The ALJ did not err in finding that Tutt was not disabled within the meaning of the Social Security Act. 10 III. Conclusion The court concludes that the ALJ’s decision is supported by substantial evidence and is not based on a reversible error of law. Thus, Tutt’s motion is DENIED, the Commissioner’s motion is GRANTED, and the Commissioner’s decision denying benefits is AFFIRMED. Signed on August 22, 2018, at Houston, Texas. Christina A. Bryan United States Magistrate Judge 11

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