Raney v. Berryhill, No. 3:2016cv03256 - Document 25 (N.D. Tex. 2018)
Court Description: Memorandum Opinion and Order: The final decision of the Commissioner is REVERSED and REMANDED for proceedings consistent with this Memorandum Opinion and Order. (Ordered by Magistrate Judge Rebecca Rutherford on 3/12/2018) (axm)
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Raney v. Berryhill Doc. 25 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION TERISA HICKS RANEY, Plaintiff, v. NANCY A. BERRYHILL, Acting Com m issioner of the Social Security Adm inistration, Defendant. § § § § § § § § § No. 3:16-CV-3256-BT MEMORAN D U M OPIN ION & ORD ER Plaintiff Terisa Hicks Raney brings this action for judicial review of the final decision of the Acting Com m issioner of the Social Security Adm inistration (the “Com m issioner”), denying Plaintiff’s claim s for a period of disability and disability insurance benefits under Title II of the Social Security Act, pursuan t to Title 42, United States Code, Section 40 5(g). For the following reasons, the final decision of the Com m issioner is REVERSED and REMANDED for proceedings consistent with this Mem orandum Opinion and Order. BACKGROU N D Plaintiff alleges that she is disabled due to a variety of ailm ents including constan t diarrhea, a learning disorder, an d asthm a. Tr. 126 [ECF No. 13-5]. After her application was denied initially and upon reconsideration, a hearing was held on March 19, 20 15, in Dallas, Texas, before an Adm inistrative Law J udge (the “ALJ ”). Tr. 61 [ECF No. 13-4]. Plaintiff was born on February 4, 1970 and was 45 years old at the tim e of the hearing. Tr. 61-62 [ECF No. 13-4]. Plaintiff has a high 1 Dockets.Justia.com school education and attended on e sem ester of college. Tr. 62 [ECF No. 13-4]. Plaintiff has past work experience as a food inspector, governm ent dispatcher, and a crossing guard. Tr. 50 [ECF No. 13-3]. On J un e 18, 20 15, the ALJ issued his decision finding that Plaintiff has n ot been under a disability within the m eanin g of the Social Security Act from Septem ber 11, 20 0 9, through the date of his decision. Tr. 51 [ECF No. 13-3]. The ALJ determ in ed that Plaintiff had the following severe im pairm ents: obesity, asthm a, varicose veins, diabetes m ellitus, history of hip fracture, a learning disorder, an d depression. Tr. 31 [ECF No. 13-3]. The ALJ stated that he agreed with the Disability Determ ination Services c0 nsultants that Plaintiff does not have an im pairm en t or a com bin ation of im pairm ents that m eets or m edically equals the severity of one of the listed im pairm ents in 20 C.F.R. Part 40 4, Subpart P, Appen dix 1. Tr. 36 [ECF No. 13-3]. However, the ALJ stated that he did not accept the opinion of the Medical Expert that Plaintiff m eets Listing 12.0 7 for a som atoform disorder. Tr. 36. The ALJ determ ined that Plaintiff had the residual functional capacity (“RFC”) for the following: (1) lift and carry 20 pounds occasionally and 10 pounds frequen tly; (2) stand and/ or walk for a com bined 2 hours and sit for 6 hours in an 8-hour workday; (3) occasion ally clim b ram ps and stairs, but n ever clim b ladders, ropes or scaffolds; and (4) occasionally balance with a cane, stoop, kneel, crouch, an d crawl. Tr. 41 [ECF No. 13-3]. The ALJ also determ ined that: (1) Plaintiff m ust avoid even m oderate exposure to pulm onary irritants, such as 2 fum es, dusts, and odors; (2) Plaintiff’s persistence an d pace is lim ited to 2-hour intervals; (3) Plaintiff is lim ited to work in volving sim ple one or two step instructions; and (4) Plaintiff can m ake decisions, accept instructions, and interact adequately with co-workers an d supervisors. Tr. 41. The ALJ determ ined that Plaintiff was unable to perform her past relevant work, but that she had the RFC to perform sedentary work at the unskilled level. Tr. 50 -51 [ECF No. 13-3]. The ALJ stated that although Plain tiff m ust avoid exposure to fum es an d odors, this lim itation appeared to have little or no effect on the occupational base of unskilled and sedentary work. Tr. 51. Plaintiff appealed the ALJ ’s decision to the Appeals Council, and, on Septem ber 27, 20 16, the Appeals Council affirm ed the ALJ ’s decision. Tr. 1 [ECF No. 13-3]. Plain tiff filed this action in federal district court on Novem ber 21, 20 16. Com pl. [ECF No. 1]. LEGAL STAN D ARD S A claim an t m ust prove that she is disabled for purposes of the Social Security Act to be entitled to social security benefits. Leggett v. Chater, 67 F.3d 558, 563-64 (5th Cir. 1995); Abshire v. Bow en, 848 F.2d 638, 640 (5th Cir. 198 8). The definition of disability under the Act is “the inability to engage in any substantial gainful activity by reason of an y m edically-determ in able physical or m ental im pairm ent 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 m onths.” 42 U.S.C. § 423(d)(1)(A); Anthon y v. Sullivan, 954 F.2d 28 9, 292 (5th Cir. 1992). 3 The Com m issioner utilizes a sequential five-step in quiry to determ ine whether a claim ant is disabled. Those steps are that: (1) an individual who is working an d en gagin g in substantial gainful activity will not be found disabled regardless of m edical findings; (2) an individual who does not have a “severe im pairm ent” will not be found to be disabled; (3) an individual who m eets or equals a listed im pairm en t in Appendix 1 of the regulations will be considered disabled without consideration of vocation al factors; (4) if an individual is capable of perform in g the work the individual has don e in the past, a finding of “not disabled” will be m ade; and (5) if an individual’s im pairm ent precludes the individual from perform ing the work the individual has don e in the past, other factors including age, education, past work experience, and residual functional capacity m ust be considered to determ ine if other work can be perform ed. Greenspan v . Shalala, 38 F.3d 232, 236 (5th Cir. 1994) (citing Villa v. Sullivan , 895 F.2d 10 19, 10 22 (5th Cir. 1990 ); 20 C.F.R. § 40 4.1520 (b)-(f)). The burden of proof lies with the claim an t to prove disability un der the first four steps of the five-step in quiry. Leggett, 67 F.3d at 564. The burden of proof shifts to the Com m issioner at the fifth step of the in quiry to prove that other work, aside from the claim ant’s past work, can be perform ed by the claim ant. Bow ling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994) (citing An derson v. Sullivan, 8 87 F.2d 630 , 63233 (5th Cir. 1989)). 4 The Com m issioner’s determ in ation is afforded great deferen ce. Leggett, 67 F.3d at 564. J udicial review of the Com m issioner’s findings is lim ited to whether the decision to deny benefits is supported by substantial evidence an d to whether the proper legal stan dards were utilized. Greenspan, 38 F.3d at 236 (citing 42 U.S.C. §§ 40 5(g), 138 3(c)(3)). An “ALJ ’s decision is not subject to reversal, even if there is substantial evidence in the record that would have supported the opposite conclusion, so long as substan tial evidence supports the conclusion that was reached by the ALJ .” Corpany v. Colv in, 20 14 WL 1255316, at *9 (N.D. Tex. Mar. 26, 20 14) (citing Dollins v. Astrue, 20 0 9 WL 1542466, at *5 (N.D. Tex. J une 2, 20 0 9)). Substantial evidence is defined as “that which is relevant and sufficient for a reason able m ind to accept as adequate to support a con clusion; it m ust be m ore than a scintilla, but it need not be a preponderance.” Leggett, 67 F.3d at 564. The reviewing court does “not reweigh the evidence, try the issues de nov o, or substitute” its own judgm en t, but rather scrutinizes the record as a whole to determ ine whether substantial evidence is present. Greenspan , 38 F.3d at 236. “Absent an error that affects the substantial rights of a party, adm inistrative proceedings do n ot require ‘procedural perfection.’” W ilder v. Colvin, 20 14 WL 29318 84, at *5 (N.D. Tex. J une 30 , 20 14) (quoting Tay lor v. Astrue, 70 6 F.3d 60 0 , 60 3 (5th Cir. 20 12)). “The ALJ is not required to discuss every piece of eviden ce in the record nor m ust the ALJ follow form alistic rules of articulation.” Hun t v. Astrue, 20 13 WL 23928 8 0 , at *7 (N.D. Tex. J une 3, 20 13) (citing Castillo v. Barnhart, 151 F. App’x 334, 335 (5th Cir. 20 0 5)); see also Falco 5 v. Shalala, 27 F.3d 160 , 164 (5th Cir. 1994) (“That [the ALJ ] did not follow form alistic rules in her articulation com prom ises no aspect of fairness or accuracy that her process is designed to en sure.”). “Procedural errors affect the substantial rights of a claim an t only when they ‘cast into doubt the existen ce of substantial evidence to support the ALJ ’s decision.’” W ilder, 20 14 WL 29318 84, at *5 (quoting Morris v. Bow en, 864 F.2d 333, 335 (5th Cir. 1988)). “Rem and is required only when there is a realistic possibility that the ALJ would have reached a different conclusion absent the procedural error.” Id. (citing January v. Astrue, 40 0 F. App’x 929, 933 (5th Cir. 20 10 )). AN ALYSIS Plaintiff argues that the ALJ ’s relian ce on the grids 1 to den y ben efits was erroneous because the ALJ ’s RFC finding contained m any non-exertion al lim itations. 2 Pl.’s Br. 7 [ECF No. 18]. Plain tiff argues that, because the lim itations the ALJ found are not explicitly addressed in the definition of sedentary work, the 1 “The grids are generally a ‘shortcut that elim inates the need for calling in vocational experts.’ . . . The guidelines apply only when all of the claim ant’s qualifications m atch those listed in the guidelines exactly. . . . ‘To establish that work exists for a claim ant, the [ALJ ] m ay rely on the Grid, only if the guidelines’ evidentiary underpinnings coincide exactly with the evidence of disability appearing in the record.’ . . . ‘Where any one of the findings of fact does not coincide with the corresponding criterion of a rule [within the Grid], the rule does not apply in that particular case and, accordingly, does not direct a conclusion to disabled or not disabled.’” Trevino v. Astrue, 20 0 9 WL 2886317, at *5 n.2 (S.D. Tex. Sept. 4, 20 0 9) (citing 20 C.F.R. Pt. 40 4, Subpt. P, App. 2, § 20 0 .0 0 ; Bow ling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994); Scott v. Shalala, 30 F.3d 33, 34-35 (5th Cir. 1994)). 2 “‘Nonexertional’ refers to work-related lim itations and restrictions that are not exertional, such as m ental abilities, vision, hearing, speech, climbing, balancing, stooping, kneeling, crouching, crawling, reaching, handling, fingering, and feeling. Environm ental restrictions are also considered to be nonexertional.” Allsbury v. Barnhart, 460 F. Supp. 2d 717, 721 n.7 (E.D. Tex. 20 0 6) (citing S.S.R. 96-9P, 1996 WL 374185, at *5; 20 C.F.R. Pt. 40 4, Subpt. P, App. 2, § 20 0 .0 0 (e) (20 0 5)). 6 ALJ could not use the grids at step 5 to take adm inistrative notice of jobs in the nation al econom y an d was required to obtain guidance from a vocational expert regarding the im pact of the com bination of Plaintiff’s non -exertional lim itations before issuing an un favorable decision. Pl.’s Br. 8. In response, the Com m issioner argues that because substantial evidence set forth in the ALJ ’s decision supports the ALJ ’s determ ination that Plain tiff had the RFC for sedentary work with addition al non -exertion al lim itations that did not significan tly affect her RFC, the ALJ properly relied on the grids to find that Plaintiff was not disabled. Def.’s Br. 9 [ECF No. 19]. The Com m issioner argues that the Fifth Circuit has held that where a claim ant experiences only exertion al lim itations or n on-exertion al lim itations that do not significan tly affect the claim ant’s RFC, the ALJ can properly rely on the grids to determ ine that there is other work that the claim an t can perform . Def.’s Br. 9 (citing Selders v. Sullivan, 914 F.2d 614, 618 (5th Cir. 1990 )). The Com m issioner states that the ALJ set forth the non -exertional lim itations, relied on the grids to find that Plain tiff was not disabled at step five, and discussed how neither the sim ple instructions restriction nor the restriction on exposure to pulm on ary irritan ts eroded the occupation al based so that he could not properly rely on the grids. Def.’s Br. 9-10 (citing Guillory v. Barnhart, 129 F. App’x 873 (5th Cir. 20 0 5); Tr. 49, 51). In her reply, Plaintiff argues that the case on which the Com m issioner relies, Guillory v. Barnhart, did n ot m ake the findings the Com m issioner represents. Plaintiff further argues the Com m issioner’s respon se failed to address 7 Plaintiff’s argum ent that the ALJ failed to properly evaluate the unique com bination of Plain tiff’s n on-exertion al im pairm ents. Reply 2 [ECF No. 20 ]. Plaintiff contends that n o agency authority suggests that the com bined effects of the postural, environ m ental, and m ental lim itations set forth in the ALJ ’s RFC do not significan tly im pact the job base. Reply 3. “[W]hen non exertion al lim itations are shown, a disability decision cann ot be m ade solely on the basis of the vocational guidelines.” See Martin, 748 F.2d 10 27, 10 34-35 (5th Cir. 1984); Pl.’s Br. 7. However, under Fifth Circuit preceden t, “the m ere presence of a n onexertional im pairm en t does not preclude the use of the Grid Rules. . . . If those im pairm ents do not have a significant effect on [the claim ant’s] residual function al capacity, use of the Grid Rules is appropriate.” Guillory , 129 F. App’x at 874 (citing Fraga v. Bow en, 810 F.2d 1296, 130 4 (5th Cir. 198 7)); Def.’s Br. 10 . Here, the ALJ observed that the “need to avoid exposure to fum es and odors appears to have little or no effect on the occupational base of unskilled, sedentary work.” Def.’s Br. 9; Tr. 51. H owever, the ALJ did not address the effect of the sim ple instructions restriction on the occupational base; n or did the ALJ explain the com bined effects of Plaintiff’s postural, environm en tal, an d m ental non -exertion al lim itations on the occupation al base. Reply 3; Tr. 41, 49, 51. Thus, it is not clear from the ALJ ’s decision that the ALJ considered all of Plaintiff’s non-exertional lim itations, or the com bined effects of those lim itations, on the occupational base, such that the ALJ ’s reliance on the grids was appropriate. The ALJ acknowledged in his decision that relian ce on the grids is 8 proper only where the occupational base is not significan tly eroded by Plaintiff’s non-exertion al lim itations. Tr. 49. “The ALJ ’s decision m ust stand or fall with the reasons set forth in the ALJ ’s decision[.]” N ew ton v. Apfel, 20 9 F.3d 448, 455 (5th Cir. 20 0 0 ) (citing Knipe v. Heckler, 755 F.2d 141, 149 n.16 (10 th Cir. 1985); Don g Sik Kw on v . Im m igration & N aturalization Serv., 646 F.2d 90 9, 916 (5th Cir. 198 1)); see also Cole v. Barnhart, 28 8 F.3d 149, 151 (5th Cir. 20 0 2) (“It is well-established that [the Court] m ay only affirm the Com m issioner’s decision on the grounds which [s]he stated for doing so.”). In this case, the ALJ ’s decision does not establish that Plaintiff could be found disabled based on the grids, in consideration of the com bination of non-exertion al lim itation s found by the ALJ . There is a realistic possibility that, if the ALJ considered the effect of all of Plaintiff’s non -exertion al lim itations, the ALJ would have reached a differen t con clusion because he would not have relied on the grids. Therefore, a rem and is warranted. See W ilder, 20 14 WL 29318 84, at *5. 3 CON CLU SION For the foregoing reasons, the final decision of the Com m issioner is REVERSED and REMANDED for proceedings consistent with this Mem orandum Opinion and Order. 3 Because the Court finds that rem and is warranted, the Court preterm its consideration of Plaintiff’s alternative argum ent for reversal, as she can raise that argum ent before the ALJ on rem and. See 20 C.F.R. § 40 4.983 (providing that when a case is rem anded from federal court, the ALJ m ay consider any issues relating to the claim ). 9 SO ORDERED. March 12, 20 18 . ____________________________ REBECCA RUTHERFORD UNITED STATES MAGISTRATE J UDGE 10
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