Goforth V Commissioner, SSA

Filing 19

MEMORANDUM OPINION AND ORDER - It is therefore ORDERED that the decision of the Administrative Law Judge is hereby REMANDED for further proceedings consistent with this opinion. Signed by Magistrate Judge Christine A. Nowak on 9/2/2015. (baf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
CAROL ANN GOFORTH,
Plaintiff,
v.
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL
SECUIRTYADMINISTRATION,
Defendant.

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CIVIL ACTION NO. 4:14-CV-181ALM-CAN

MEMORANDUM OPINION AND ORDER
Plaintiff brings this appeal under 42 U.S.C. § 405(g) for judicial review of a final
decision of the Commissioner denying her claim for disability insurance benefits.

After

reviewing the Briefs submitted by the Parties, as well as the evidence contained in the
administrative record, the Court finds that the Commissioner’s decision should be
REMANDED.
BACKGROUND
I.

PROCEDURAL HISTORY OF THE CASE
Plaintiff filed an application for disability insurance benefits under Title II of the Social

Security Act on September 23, 2011, alleging disability beginning on December 24, 2010, due to
type II diabetes, neuropathy in hands and feet, and high blood pressure [TR 107, 125]. Plaintiff’s
application was initially denied by notice on November 16, 2011 [Id. at 53], and again upon
reconsideration on January 25, 2012 [Id. at 61]. On February 10, 2012, Plaintiff timely requested
a hearing before an Administrative Law Judge (“ALJ”) [Id. at 64], and a hearing was held on
ORDER  Page 1

June 6, 2013 [Id. at 22]. Plaintiff, represented by counsel, testified at the hearing [Id. at 27], and
vocational expert, Suzette Skinner (“Ms. Skinner”) also testified at the hearing [Id. at 27, 43].
The ALJ denied benefits on August 19, 2013 [Id. at 11], and Plaintiff’s request for review to the
Appeals Council was denied on February 4, 2014 [Id. at 1], making the decision of the ALJ the
final decision of the Commissioner.
II.

STATEMENT OF RELEVANT FACTS
1.

Age, Education, and Work Experience

Plaintiff was born on December 19, 1955, and was fifty-five (55) years of age when she
applied for disability benefits [Id. at 107]. Plaintiff has a high school education and obtained a
certified nurse’s aide certification in 2004 [Id. at 126]. Plaintiff’s relevant work experience
includes: packager, certified nurse’s aide, and machine operator [Id. at 126].
2.

Medical Record Evidence

Plaintiff’s medical records reflect that she has suffered and/or currently suffers from type
II diabetes mellitus, diabetic neuropathy, obesity, hypertension, hyperlipidemia, and depression
[Id. at 14, 178, 357]. Plaintiff also has a history of mononeuropathy in the left wrist, consistent
with carpal tunnel syndrome [Id. at 303]. Plaintiff previously suffered from depression, but has
not since October 11, 2011 [Id. at 183]. In October 2012, Plaintiff was noncompliant with her
diabetic diet, but her diabetes and hypertension were under control [Id. at 355, 360]. On June
18, 2013, Plaintiff experienced decreased sensation in the dorsum of her right foot and decreased
reflexes in her knees and ankles [Id. at 367].

ORDER  Page 2

3.

Hearing Testimony
a.

Plaintiff’s Testimony

Plaintiff testified that she was a machine operator and a certified nurse’s aide, but she
stopped working due to pain in her hands and feet [Id. at 28]. Plaintiff testified that her hands
and feet get swollen and stiff to the point that she cannot bend them [Id. at 29].

She

further testified that she had trouble clenching her fists and was unable to lift a gallon of
milk, often dropping things [Id. at 31]. Plaintiff also testified that her feet hurt and that
sometimes she lost feeling in them [Id. at 32]. She testified that she was on medication for this
and that she kept her feet elevated for approximately three hours a day [Id. at 33].
b.

Vocational Expert Testimony

At the hearing, Ms. Skinner testified as a vocational expert [Id. at 43]. The ALJ asked
Ms. Skinner a hypothetical question that incorporated Plaintiff’s age, work history, and
education, as well as the additional limitations of lifting up to twenty pounds occasionally, ten
pounds frequently, and only being able to sit for six hours out of an eight hour day [Id. at 44].
The hypothetical question also included the limitations of no climbing ladders, ropes, or
scaffolds, and avoiding exposure to unprotected heights, fast moving machinery, sharp objects,
open flames, extreme temperatures, and concentrated vibrations [Id.].

In the hypothetical

question posed to Ms. Skinner, she was to assume that the individual could understand,
remember, and carry out detailed but not complex instruction [Id.]. The ALJ then asked Ms.
Skinner if such an individual would be able to perform Plaintiff’s prior jobs, to which Ms.
Skinner replied no [Id.]. The ALJ then asked Ms. Skinner if there are other jobs in the regional
and national economy that could be performed using transferable skills from Plaintiff’s prior jobs

ORDER  Page 3

[Id. at 45].1 Ms. Skinner testified that the jobs available to such an individual include medical
caring, caring for people with physical or mental problems, companion, and day care worker
[Id.].
III.

FINDINGS OF THE ALJ
1.

Sequential Evaluation Process

Pursuant to the statutory provisions governing disability determinations, the
Commissioner has promulgated regulations that establish a five-step process to determine
whether a claimant suffers from a disability. 20 C.F.R. § 404.1520. First, a claimant who is
engaged in substantial gainful employment at the time of her disability claim is not disabled.
20 C.F.R. § 404.1520(b). Second, the claimant is not disabled if her alleged impairment is not
severe, without consideration of her residual functional capacity, age, education, or work
experience. 20 C.F.R. § 404.1520(c). Third, if the alleged impairment is severe, the claimant is
considered disabled if her impairment corresponds to a listed impairment in 20 C.F.R., Part 404,
Subpart P, Appendix 1. 20 C.F.R. § 404.1520(d). Fourth, a claimant with a severe impairment
that does not correspond to a listed impairment is not considered to be disabled if she is capable
of performing his past work.2 20 C.F.R. § 404.1520(e). Finally, a claimant who cannot return to
her past work is not disabled if she has the residual functional capacity to engage in work
available in the national economy. 20 C.F.R. § 404.1520(f). Under the first four steps of the
analysis, the burden lies with the claimant to prove disability and at the last step the burden shifts

1

Transferable skills are defined in Social Security Regulations as skills “you did in past work [that] can be used to
meet the requirements of…other jobs or kinds of work.” 20 C.F.R. § 404.1568(d)(1). Transferability “depends
largely on the similarity of occupationally significant work activities among different jobs.” Id.
2
Before evaluating step four of the sequential evaluation analysis, the Administrative Law Judge must determine the
claimant’s residual functional capacity, which is her ability to do physical and mental work activities on a sustained
basis despite limitations from her impairment. See 20 CFR 404.1520(e).
ORDER  Page 4

to the Commissioner. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995). If at any step the
Commissioner finds that the claimant is or is not disabled, the inquiry terminates. Id.
2.

ALJ’s Disability Determination

After the prescribed five-step sequential analysis, the ALJ denied Plaintiff’s request for
benefits on August 19, 2013 [Id. at 18]. At step one, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since December, 24, 2010, the alleged onset date [Id. at
13]. At step two, the ALJ found that Plaintiff has the severe impairments of diabetes mellitus,
mild carpal tunnel syndrome, and hypertension [Id.]. However, at step three, the ALJ found that
these impairments, or combination of impairments, did not meet or medically equal the severity
of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 [Id. at 15]. At step
four, the ALJ found that Plaintiff has the residual functional capacity to sit up to six hours and
stand up to six hours in an eight-hour day, and to lift ten pounds frequently and twenty pounds
occasionally, but he found that Plaintiff cannot climb ladders, ropes, or scaffolds [Id. at 15].
Plaintiff can also understand, remember, carry out, and make judgments related to detailed but
not complex tasks, but she must be able to change from a sitting to a standing position every
thirty minutes [Id.]. Plaintiff can occasionally balance, climb, stoop, and kneel, but she must
avoid temperature extremes, open flames, unprotected heights, sharp objects, fast moving
machinery, and extreme vibrations [Id.].

Continuing the step four analysis, the ALJ then

determined that Plaintiff is unable to perform any past relevant work [Id. at 17]. Finally, at step
five, the ALJ found that Plaintiff acquired work skills from past relevant work that are
transferable to other jobs which exist in significant numbers in the national economy [Id.].
Accordingly, the ALJ concluded Plaintiff was not disabled from December 24, 2010, through
August 19, 2013.

ORDER  Page 5

STANDARD OF REVIEW
In an appeal under § 405(g), this Court must review the Commissioner’s decision to
determine whether there is substantial evidence in the record to support the Commissioner’s
factual findings and whether the Commissioner applied the proper legal standards in evaluating
the evidence. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994); 42 U.S.C. § 405(g).
Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion. Cook v. Heckler, 750 F.2d 391, 392 (5th Cir. 1985); Jones v. Heckler, 702
F. 2d 616, 620 (5th Cir. 1983). This Court cannot reweigh the evidence or substitute its
judgment for that of the Commissioner. Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1995).
Additionally, any conflicts in the evidence, including the medical evidence, are resolved by the
ALJ, not the reviewing court. Carry v. Heckler, 750 F.2d 479, 484 (5th Cir. 1985).
The legal standard for determining disability under Titles II and XVI of the Act is
whether the claimant is unable to perform substantial gainful activity for at least twelve months
because of a medically determinable impairment. 42 U.S.C. §§ 423(d), 1382c(a)(3)(A); see also
Cook, 750 F.2d at 393. “Substantial gainful activity” is determined by a five-step sequential
evaluation process, as described above. 20 C.F.R. § 404.1520(a)(4).
ANALYSIS
On appeal, Plaintiff asserts a single issue; she argues that Defendant’s final disability
determination is not supported by substantial evidence because new evidence was submitted to
the Appeals Council that contradicts the ALJ’s findings [Dkt 12 at 4]. The ALJ issued a decision
on August 19, 2013 [TR 18], and Plaintiff submitted new evidence on February 4, 2014
[Id. at 5]. The new evidence is a report from vocational expert Tammy Donaldson [Id. at 373].
Plaintiff alleges Ms. Donaldson’s report contradicts Ms. Skinner’s hearing testimony regarding

ORDER  Page 6

Plaintiff’s acquired transferable work skills [Dkt 12 at 10].

Plaintiff alleges that

Ms. Donaldson’s report raises a conflict between the two vocational experts and the Appeals
Council’s “boilerplate denial failed to resolve” such conflict [Id.].
At the hearing, Plaintiff’s past relevant work history was classified by Ms. Skinner into
four occupations: packager, certified nurse’s aide, machine tender, and surgical dressing maker
[TR 43-44]. Ms. Skinner testified that Plaintiff acquired transferable skills during these past jobs
including health caring, medical caring, and taking care of people with physical or mental
problems [Id. at 45]. Ms. Skinner further testified that these skills transferred to jobs that fall
within Plaintiff’s residual functional capacity, such as a companion, blind aide, and daycare
worker [Id.]. Based on Ms. Skinner’s testimony, the ALJ found, at step five of the sequential
analysis, that Plaintiff could perform these representative occupations making her eligible for a
significant number of jobs in the national economy [Id. at 17-18]. This finding resulted in the
ALJ’s determination that Plaintiff is not disabled [Id.].
In contrast to Ms. Skinner’s testimony, Ms. Donaldson’s report states that Plaintiff’s past
relevant work did not yield any transferable skills that would transfer to jobs falling within
Plaintiff’s residual functional capacity [Id. at 375]. In support of this conclusion, Ms. Donaldson
referenced a transferable skills analysis she performed, which indicates that the closest
transferable jobs were either medium or heavy in exertion, and thus beyond Plaintiff’s residual
functional capacity [Id. at 375, 377]. In Ms. Donaldson’s opinion, Plaintiff could not return to
any of her previous work, “nor does she have any skills that would transfer to limitations posed
by [the ALJ]” [Id. at 375].
Defendant claims that Ms. Skinner’s testimony provides substantial support for the ALJ’s
disability determination, and Plaintiff should not be rewarded for procuring another vocational

ORDER  Page 7

expert’s opinion after the hearing; particularly where, as here, Plaintiff has failed to show good
cause for the failure to incorporate the new evidence in a prior proceeding [Dkt. 13 at 5, 13].3
Defendant further contends that the Appeals Council properly declined review of the ALJ’s
decision, and is not required to include a detailed analysis of new evidence [Id. at 8].4
Under the Social Security Act, courts may review the final decision of the Commissioner.
42 U.S.C. § 405(g). The final decision encompasses the Appeals Council’s denial of review, as
well as new evidence submitted to the Appeals Council. Williams v. Astrue, No. 4:11-cv-483,
2013 WL 1282517, at *3 (E.D. Tex. Mar. 27, 2013) (citing Higginbotham v. Barnhart, 405 F.3d
332, 337 (5th Cir. 2005)). The Appeals Council considers all evidence in the record, as well as
any new and material evidence it receives which relates to the period on or before the date of the
ALJ’s decision, in deciding whether to grant a claimant’s request for review of the ALJ’s
decision. 20 C.F.R. § 404.976(b); see also Williams, 2013 WL 1282517, at *3. The Appeals
Council accepted and acknowledged receipt of the new evidence but decided not to change the
ALJ’s decision [TR 1]. Therefore, this Court must consider the new evidence as part of the
record to determine if the ALJ’s decision is supported by substantial evidence. Williams, 2013
WL 1282517, at *3.
The Social Security Act requires the Appeals Council to consider new evidence presented
for the first time in a request for review. Id. (citing Rodriguez v. Barnhart, 252 F. Supp. 2d 329,
3

Defendant cites Leggett v. Chater in support of the proposition that remand is justified only if the new evidence is
new, material and good cause is shown for the failure to incorporate the evidence into the record in a prior
proceeding [Dkt. 13 at 9]. Leggett v. Chater, 67 F.3d 558, 567 (5th Cir. 1995). However, the standard in Leggett is
for evidence newly submitted to the district court, and not to the Appeals Council. See Schaff v. Colvin, No. 3:13cv-304, 2014 WL 1462153 (N.D. Tex. Apr. 15, 2014) (citing Rodriguez v. Barnhart, 252 F. Supp. 2d 329, 333-36
(N.D. Tex. 2003)). Therefore any argument by Defendant that good cause must be shown by Plaintiff will be
disregarded.

4

The Court agrees that the Appeals Council is not required to prepare a detailed opinion. Notwithstanding, if the
evidence is material, this Court is required to determine whether there was substantial evidence to support the
decision after including the new evidence. Although the Court finds that remand is required here, the Court cannot
reweigh the evidence to determine whether the new evidence should and/or could be rejected for some additional
basis. See Williams v. Astrue, No. 4:11-cv-483, 2013 WL 1282517, at n.2 (E.D. Tex. Mar. 27, 2013).
ORDER  Page 8

336 (N.D. Tex. 2003)). When reviewing new evidence, the Appeals Council must follow the
same rules as the ALJ.

20 C.F.R. § 404.1527(e); Williams, 2013 WL 1282517, at *3.

Specifically, the Appeals Council must follow the same rules governing the weight given to
these opinions as required by the ALJ. Williams, 2013 WL 1282517, at *3.
The only explanation the Appeals Council provided for disregarding the newly submitted
evidence is that they “considered whether the [ALJ’s] actions, findings, or conclusion is contrary
to the weight of evidence of record” and “found that this [new evidence] does not provide a basis
for changing the [ALJ’s] decision” [TR 2]. This Court has previously considered the Appeals
Council’s use of such boilerplate language to deny a claimant’s request for review of an ALJ’s
disability determination. Williams, 2013 WL 1282517, at *3-4. In Williams, the Court found
remand necessary because such boilerplate language “does not show good reason for the
determination of the weight given by the Appeals Council to the new evidence.” Id. at *4 (citing
Stewart v. Astrue, No. 7-07-cv-052, 2008 WL 4290917, at *4 (N.D. Tex. Sept. 18, 2008)).
Additionally, the new evidence in Williams was “so inconsistent that it undermine[d] the ultimate
disability determination and review [was] necessary to properly consider the evidence.” Id. at
*4; see also Standford v. Astrue, No. 4:11-cv-106, 2013 U.S. Dist. LEXIS 26470, at *16-17
(E.D. Tex. Feb. 26, 2013) (remanding the case because a vocational expert report submitted to
the Appeals Council contradicted prior vocational expert testimony).
Here, as in Williams, the standard boilerplate language the Appeals Council used in
denying Plaintiff’s request for review does not show good reason for the determination of the
weight given by the Appeals Council to Ms. Donaldson’s report. Furthermore, the new evidence
is inconsistent with Ms. Skinner’s vocational expert testimony given at the hearing. Ms. Skinner
testified that, due to Plaintiff’s transferable skills, Plaintiff is capable of performing a significant

ORDER  Page 9

number of jobs in the national economy. However, Ms. Donaldson’s report contradicts the
assertion that Plaintiff has transferable skills that qualify her to perform a significant number of
jobs in the national economy. Remand is appropriate when the new evidence is so inconsistent
with the residual functional capacity finding of the ALJ and no good reason is given as to the
weight accorded by the Appeals Council. The Court cannot weigh the evidence, try the issue de
novo, or substitute its judgment on the ultimate issue of disability for that of the Commissioner.
Id. at *4 (citing Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000)). Accordingly, this case
should be remanded for further review.
It is therefore ORDERED that the decision of the Administrative Law Judge is hereby
REMANDED for further proceedings consistent with this opinion.

SIGNED this 2nd day of September, 2015.

___________________________________
Christine A. Nowak
UNITED STATES MAGISTRATE JUDGE

ORDER  Page 10