Raney v. Colvin

Filing 25

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)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
TERISA HICKS RANEY,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of the Social
Security Administration,
Defendant.

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No. 3:16-CV-3256-BT

MEMORANDUM OPINION & ORDER
Plaintiff Terisa Hicks Raney brings this action for judicial review of the
final decision of the Acting Commissioner of the Social Security Administration
(the “Commissioner”), denying Plaintiff’s claims for a period of disability and
disability insurance benefits under Title II of the Social Security Act, pursuant to
Title 42, United States Code, Section 405(g). For the following reasons, the final
decision of the Commissioner is REVERSED and REMANDED for proceedings
consistent with this Memorandum Opinion and Order.
BACKGROUND
Plaintiff alleges that she is disabled due to a variety of ailments including
constant diarrhea, a learning disorder, and asthma. Tr. 126 [ECF No. 13-5]. After
her application was denied initially and upon reconsideration, a hearing was held
on March 19, 2015, in Dallas, Texas, before an Administrative Law Judge (the
“ALJ”). Tr. 61 [ECF No. 13-4]. Plaintiff was born on February 4, 1970 and was 45
years old at the time of the hearing. Tr. 61-62 [ECF No. 13-4]. Plaintiff has a high

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school education and attended one semester of college. Tr. 62 [ECF No. 13-4].
Plaintiff has past work experience as a food inspector, government dispatcher,
and a crossing guard. Tr. 50 [ECF No. 13-3].
On June 18, 2015, the ALJ issued his decision finding that Plaintiff has not
been under a disability within the meaning of the Social Security Act from
September 11, 2009, through the date of his decision. Tr. 51 [ECF No. 13-3]. The
ALJ determined that Plaintiff had the following severe impairments: obesity,
asthma, varicose veins, diabetes mellitus, history of hip fracture, a learning
disorder, and depression. Tr. 31 [ECF No. 13-3]. The ALJ stated that he agreed
with the Disability Determination Services c0nsultants that Plaintiff does not
have an impairment or a combination of impairments that meets or medically
equals the severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. Tr. 36 [ECF No. 13-3]. However, the ALJ stated that he
did not accept the opinion of the Medical Expert that Plaintiff meets Listing 12.07
for a somatoform disorder. Tr. 36.
The ALJ determined that Plaintiff had the residual functional capacity
(“RFC”) for the following: (1) lift and carry 20 pounds occasionally and 10 pounds
frequently; (2) stand and/or walk for a combined 2 hours and sit for 6 hours in an
8-hour workday; (3) occasionally climb ramps and stairs, but never climb
ladders, ropes or scaffolds; and (4) occasionally balance with a cane, stoop, kneel,
crouch, and crawl. Tr. 41 [ECF No. 13-3]. The ALJ also determined that: (1)
Plaintiff must avoid even moderate exposure to pulmonary irritants, such as

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fumes, dusts, and odors; (2) Plaintiff’s persistence and pace is limited to 2-hour
intervals; (3) Plaintiff is limited to work involving simple one or two step
instructions; and (4) Plaintiff can make decisions, accept instructions, and
interact adequately with co-workers and supervisors. Tr. 41.
The ALJ determined 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 Plaintiff must avoid
exposure to fumes and odors, this limitation 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 September 27, 2016,
the Appeals Council affirmed the ALJ’s decision. Tr. 1 [ECF No. 13-3]. Plaintiff
filed this action in federal district court on November 21, 2016. Compl. [ECF No.
1].
LEGAL STANDARDS
A claimant must 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. Bowen, 848 F.2d 638, 640 (5th Cir.
1988). The definition of disability under the Act is “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 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); Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir. 1992).

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The Commissioner utilizes a sequential five-step inquiry to determine
whether a claimant is disabled. Those steps are that:
(1)

an individual who is working and engaging in substantial
gainful activity will not be found disabled regardless of
medical findings;

(2)

an individual who does not have a “severe impairment”
will not be found to be disabled;

(3)

an individual who meets or equals a listed impairment in
Appendix 1 of the regulations will be considered disabled
without consideration of vocational factors;

(4)

if an individual is capable of performing the work the
individual has done in the past, a finding of “not disabled”
will be made; and

(5)

if an individual’s impairment precludes the individual
from performing the work the individual has done in the
past, other factors including age, education, past work
experience, and residual functional capacity must be
considered to determine if other work can be performed.

Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994) (citing Villa v. Sullivan,
895 F.2d 1019, 1022 (5th Cir. 1990); 20 C.F.R. § 404.1520(b)-(f)). The burden of
proof lies with the claimant to prove disability under the first four steps of the
five-step inquiry. Leggett, 67 F.3d at 564. The burden of proof shifts to the
Commissioner at the fifth step of the inquiry to prove that other work, aside from
the claimant’s past work, can be performed by the claimant. Bowling v. Shalala,
36 F.3d 431, 435 (5th Cir. 1994) (citing Anderson v. Sullivan, 887 F.2d 630, 63233 (5th Cir. 1989)).

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The Commissioner’s determination is afforded great deference. Leggett, 67
F.3d at 564. Judicial review of the Commissioner’s findings is limited to whether
the decision to deny benefits is supported by substantial evidence and to whether
the proper legal standards were utilized. Greenspan, 38 F.3d at 236 (citing 42
U.S.C. §§ 405(g), 1383(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 substantial evidence supports the conclusion that
was reached by the ALJ.” Corpany v. Colvin, 2014 WL 1255316, at *9 (N.D. Tex.
Mar. 26, 2014) (citing Dollins v. Astrue, 2009 WL 1542466, at *5 (N.D. Tex. June
2, 2009)). Substantial evidence is defined as “that which is relevant and sufficient
for a reasonable mind to accept as adequate to support a conclusion; it must be
more 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 novo,
or substitute” its own judgment, but rather scrutinizes the record as a whole to
determine whether substantial evidence is present. Greenspan, 38 F.3d at 236.
“Absent an error that affects the substantial rights of a party,
administrative proceedings do not require ‘procedural perfection.’” Wilder v.
Colvin, 2014 WL 2931884, at *5 (N.D. Tex. June 30, 2014) (quoting Taylor v.
Astrue, 706 F.3d 600, 603 (5th Cir. 2012)). “The ALJ is not required to discuss
every piece of evidence in the record nor must the ALJ follow formalistic rules of
articulation.” Hunt v. Astrue, 2013 WL 2392880, at *7 (N.D. Tex. June 3, 2013)
(citing Castillo v. Barnhart, 151 F. App’x 334, 335 (5th Cir. 2005)); see also Falco

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v. Shalala, 27 F.3d 160, 164 (5th Cir. 1994) (“That [the ALJ] did not follow
formalistic rules in her articulation compromises no aspect of fairness or
accuracy that her process is designed to ensure.”). “Procedural errors affect the
substantial rights of a claimant only when they ‘cast into doubt the existence of
substantial evidence to support the ALJ’s decision.’” Wilder, 2014 WL 2931884,
at *5 (quoting Morris v. Bowen, 864 F.2d 333, 335 (5th Cir. 1988)). “Remand 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, 400 F. App’x 929, 933 (5th Cir. 2010)).
ANALYSIS
Plaintiff argues that the ALJ’s reliance on the grids 1 to deny benefits was
erroneous because the ALJ’s RFC finding contained many non-exertional
limitations. 2 Pl.’s Br. 7 [ECF No. 18]. Plaintiff argues that, because the limitations
the ALJ found are not explicitly addressed in the definition of sedentary work, the

“The grids are generally a ‘shortcut that eliminates the need for calling in vocational experts.’
. . . The guidelines apply only when all of the claimant’s qualifications match those listed in the
guidelines exactly. . . . ‘To establish that work exists for a claimant, the [ALJ] may 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, 2009 WL 2886317, at *5 n.2 (S.D. Tex. Sept. 4, 2009) (citing 20 C.F.R. Pt.
404, Subpt. P, App. 2, § 200.00; Bowling v. Shalala, 36 F.3d 431, 435
(5th Cir. 1994); Scott v. Shalala, 30 F.3d 33, 34-35 (5th Cir. 1994)).
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“‘Nonexertional’ refers to work-related limitations and restrictions that are not exertional, such
as mental abilities, vision, hearing, speech, climbing, balancing, stooping, kneeling, crouching,
crawling, reaching, handling, fingering, and feeling. Environmental restrictions are also
considered to be nonexertional.” Allsbury v. Barnhart, 460 F. Supp. 2d 717, 721 n.7 (E.D. Tex.
2006) (citing S.S.R. 96-9P, 1996 WL 374185, at *5; 20 C.F.R. Pt. 404, Subpt. P, App. 2, §
200.00(e) (2005)).

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ALJ could not use the grids at step 5 to take administrative notice of jobs in the
national economy and was required to obtain guidance from a vocational expert
regarding the impact of the combination of Plaintiff’s non-exertional limitations
before issuing an unfavorable decision. Pl.’s Br. 8.
In response, the Commissioner argues that because substantial evidence
set forth in the ALJ’s decision supports the ALJ’s determination that Plaintiff had
the RFC for sedentary work with additional non-exertional limitations that did
not significantly 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 Commissioner argues
that the Fifth Circuit has held that where a claimant experiences only exertional
limitations or non-exertional limitations that do not significantly affect the
claimant’s RFC, the ALJ can properly rely on the grids to determine that there is
other work that the claimant can perform. Def.’s Br. 9 (citing Selders v. Sullivan,
914 F.2d 614, 618 (5th Cir. 1990)). The Commissioner states that the ALJ set
forth the non-exertional limitations, relied on the grids to find that Plaintiff was
not disabled at step five, and discussed how neither the simple instructions
restriction nor the restriction on exposure to pulmonary irritants eroded the
occupational 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. 2005); Tr. 49, 51).
In her reply, Plaintiff argues that the case on which the Commissioner
relies, Guillory v. Barnhart, did not make the findings the Commissioner
represents. Plaintiff further argues the Commissioner’s response failed to address

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Plaintiff’s argument that the ALJ failed to properly evaluate the unique
combination of Plaintiff’s non-exertional impairments. Reply 2 [ECF No. 20].
Plaintiff contends that no agency authority suggests that the combined effects of
the postural, environmental, and mental limitations set forth in the ALJ’s RFC do
not significantly impact the job base. Reply 3.
“[W]hen nonexertional limitations are shown, a disability decision cannot
be made solely on the basis of the vocational guidelines.” See Martin, 748 F.2d
1027, 1034-35 (5th Cir. 1984); Pl.’s Br. 7. However, under Fifth Circuit precedent,
“the mere presence of a nonexertional impairment does not preclude the use of
the Grid Rules. . . . If those impairments do not have a significant effect on [the
claimant’s] residual functional capacity, use of the Grid Rules is appropriate.”
Guillory, 129 F. App’x at 874 (citing Fraga v. Bowen, 810 F.2d 1296, 1304 (5th
Cir. 1987)); Def.’s Br. 10. Here, the ALJ observed that the “need to avoid exposure
to fumes and odors appears to have little or no effect on the occupational base of
unskilled, sedentary work.” Def.’s Br. 9; Tr. 51. However, the ALJ did not address
the effect of the simple instructions restriction on the occupational base; nor did
the ALJ explain the combined effects of Plaintiff’s postural, environmental, and
mental non-exertional limitations on the occupational 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 limitations, or the combined effects of those limitations,
on the occupational base, such that the ALJ’s reliance on the grids was
appropriate. The ALJ acknowledged in his decision that reliance on the grids is

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proper only where the occupational base is not significantly eroded by Plaintiff’s
non-exertional limitations. Tr. 49.
“The ALJ’s decision must stand or fall with the reasons set forth in the
ALJ’s decision[.]” Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000) (citing
Knipe v. Heckler, 755 F.2d 141, 149 n.16 (10th Cir. 1985); Dong Sik Kwon v.
Immigration & Naturalization Serv., 646 F.2d 909, 916 (5th Cir. 1981)); see also
Cole v. Barnhart, 288 F.3d 149, 151 (5th Cir. 2002) (“It is well-established that
[the Court] may only affirm the Commissioner’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
combination of non-exertional limitations found by the ALJ. There is a realistic
possibility that, if the ALJ considered the effect of all of Plaintiff’s non-exertional
limitations, the ALJ would have reached a different conclusion because he would
not have relied on the grids. Therefore, a remand is warranted. See Wilder, 2014
WL 2931884, at *5. 3
CONCLUSION
For the foregoing reasons, the final decision of the Commissioner is
REVERSED and REMANDED for proceedings consistent with this Memorandum
Opinion and Order.

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Because the Court finds that remand is warranted, the Court pretermits consideration of
Plaintiff’s alternative argument for reversal, as she can raise that argument before the ALJ on
remand. See 20 C.F.R. § 404.983 (providing that when a case is remanded from federal court,
the ALJ may consider any issues relating to the claim).

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SO ORDERED.
March 12, 2018.
____________________________
REBECCA RUTHERFORD
UNITED STATES MAGISTRATE JUDGE

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