Sumaray v. Commissioner of Social Security

Filing 17

MEMORANDUM OPINON AND ORDER: Before the Court is Plaintiff Jamilah S.'s2 civil action seeking judicial review pursuant to 42 U.S.C. § 405(g) of a final adverse decision by the Commissioner of Social Security. For the reasons explained below, the Court REVERSES the Commissioners decision and REMANDS the case to the Commissioner. (Ordered by Magistrate Judge Rebecca Rutherford on 3/5/2025) (wxc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
JAMILAH S.,
Plaintiff,
v.
MICHELLE KING,
ACTING COMMISSIONER
OF SOCIAL SECURITY1,
Defendant.

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§ Case No. 4:23-cv-01048-BT
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MEMORANDUM OPINON AND ORDER
Before the Court is Plaintiff Jamilah S.’s2 civil action seeking judicial review
pursuant to 42 U.S.C. § 405(g) of a final adverse decision by the Commissioner of
Social Security. For the reasons explained below, the Court REVERSES the
Commissioner’s decision and REMANDS the case to the Commissioner.
Background
Plaintiff was born in 1981. Admin. R. 204 (ECF No. 11-4). She has a GED,
and she has worked as a phlebotomist. Admin. R. 229, 248 (ECF No. 11-4). Plaintiff

In January 2025, Michelle King became the Acting Commissioner of Social
Security. Acting Commissioner Michelle King, Soc. Sec. Admin.,
https://www.ssa.gov/agency/commissioner
[https://perma.cc/Q2ZD-DP4G].
She is “automatically substituted” as the defendant here. Fed. R. Civ. P. 25(d).
1

2 The Court uses only Plaintiff’s first name and last initial as instructed by the May

1, 2018, Memorandum Re: Privacy Concern Regarding Social Security and
Immigration Opinions issued by the Committee on Court Administration and Case
Management of the Judicial Conference of the United States.
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alleges that she is disabled due to a variety of physical and mental impairments,
including bilateral knee pain, right heel pain, back pain, panic attacks, anxiety,
depression, diabetes, and obesity. See Admin. R. 223 (ECF No. 11-4); Pl.’s Brief 2
(ECF No. 14). She applied for disability insurance benefits under Title II of the
Social Security Act alleging disability beginning in 2014. Pl.’s Brief 1 (ECF No. 14).
In connection with her most recent administrative hearing 3, Plaintiff requested a
closed period of benefits from April 8, 2014 to September 6, 2019. Admin. R. 195
(ECF No. 11-4).
After hearing testimony from Plaintiff and a Vocational Expert (VE), the
Administrative Law Judge (ALJ) found Plaintiff was not disabled during the
relevant period, and thus she was not entitled to disability benefits. Utilizing the
five-step sequential evaluation4, the ALJ first found that Plaintiff had not engaged

3 Plaintiff’s claim was denied initially on April 30, 2015. Pl.’s Brief 1 (ECF No. 14).

She thereafter filed a written request for a hearing and an Administrative Law
Judge held a hearing in August 2017. Id. The ALJ issued an unfavorable decision
on December 7, 2017. Id. Plaintiff exhausted her administrative remedies, and the
case was ultimately remanded by the Western District of New York in June 2019.
Id. Another hearing was held in January 2020. Id. The ALJ issued a Notice of
Recommended Decision on March 9, 2020, again denying benefits. Id. at 2. The
Appeals Council assumed jurisdiction and remanded for further proceedings. Id.
A third hearing was held on October 12, 2022. Id. The ALJ issued a third
unfavorable decision on June 20, 2023, which Plaintiff appealed directly to this
Court. Id.; Admin R. 206 (ECF No. 11-4).
“In evaluating a disability claim, the [ALJ] conducts a five-step sequential
analysis to determine whether (1) the [plaintiff] is presently working; (2) the
[plaintiff] has a severe impairment; (3) the impairment meets or equals an
impairment listed in appendix 1 of the social security regulations; (4) the
impairment prevents the [plaintiff] from doing past relevant work; and (5) the
impairment prevents the [plaintiff] from doing any other substantial gainful
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in substantial gainful activity during the closed period of disability. Admin. R. 197
(ECF No. 11-4). At the second step, the ALJ found that Plaintiff suffered from the
severe impairments of “diabetes mellitus, obesity, anxiety disorder, and depressive
disorder” which “significantly limit the ability to perform basic work activities.”
Admin R. 198 (ECF No. 11-4). At the third step, the ALJ determined that Plaintiff
did not have an impairment or combination of impairments that met or medically
equaled the severity of any listed impairment in appendix 1 of the social security
regulations. Admin R. 198 (ECF No. 11-4).
Before proceeding to the fourth step, the ALJ found that Plaintiff retained
the residual functional capacity (RFC) to
perform light work as defined in 20 CFR 404.1567(b) with exceptions.
She can never tolerate exposure to moving mechanical parts or high
exposed places. The claimant can understand, remember, and carry
out simple instructions. She can use judgment to make simple workrelated decisions. She cannot perform work that requires specific rate
production, such as assembly line work, or work that requires hourly
quotas. She can tolerate occasional interaction with coworkers and
supervisors but no tandem tasks. She can never directly interact with
the general public. She can tolerate occasional changes in routine
work setting.

activity.” Audler v. Astrue, 501 F.3d 446, 447-48 (5th Cir. 2007). The plaintiff
bears the initial burden of establishing a disability through the first four steps of
the analysis; at the fifth step, the burden shifts to the ALJ to show that there is
other substantial work in the national economy that the plaintiff can perform. Id.
at 448; Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014) (citations omitted).
A finding that the plaintiff is disabled or not disabled at any point in the five-step
review is conclusive and terminates the analysis. Copeland, 771 F.3d at 923 (citing
Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995)); Lovelace v. Bowen, 813 F.2d
55, 58 (5th Cir. 1987) (citing Barajas v. Heckler, 738 F.2d 641, 643 (5th Cir. 1984)
(per curiam)).
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Admin R. 200 (ECF No. 11-4).
At step four, the ALJ found that Plaintiff was unable to perform any past
relevant work as a phlebotomist. Admin. R. 204 (ECF No. 11-4). Relying on the
VE’s testimony, at step five, the ALJ found that Plaintiff could perform other jobs
that exist in significant numbers in the national economy, such as hand packager,
assembler-small products, and final assembler, as those jobs are described in the
Dictionary of Occupational Titles (DOT). Admin. R. 205 (ECF No. 11-4). Therefore,
the ALJ found that Plaintiff had not been under a disability as defined by the Social
Security Act, and was not entitled to benefits. Admin. R. 205-06 (ECF No. 11-4).
Plaintiff appealed the ALJ’s decision directly to this Court. Pl.’s Brief 2 (ECF
No. 14). In two grounds, Plaintiff argues (1) the ALJ erred in assessing her RFC
because the ALJ rejected a treating physician’s opinion and (2) the ALJ erred in
accepting VE testimony that conflicted with the assessed RFC.
Legal Standard
Judicial review of the Commissioner’s findings is limited to whether the
decision to deny benefits is supported by substantial evidence and whether the
proper legal standards were utilized. Greenspan v. Shalala, 38 F.3d 232, 236 (5th
Cir. 1994) (citing 42 U.S.C. §§ 405(g), 1383(c)(3)). 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
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scrutinizes the record as a whole to determine whether substantial evidence is
present. Greenspan, 38 F.3d at 236. 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)).
“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 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

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procedural error.” Id. (citing January v. Astrue, 400 F. App’x 929, 933 (5th Cir.
2010)).
Analysis
Plaintiff's appeal raises a single ground for relief that compels remand: the
ALJ erred in accepting VE testimony that conflicted with Plaintiff’s assessed RFC.
See Pl.’s Brief 16-19 (ECF No. 14).
The burden of proof shifts to the Commissioner at step five 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, 632-33 (5th Cir. 1989)). In establishing the existence of
a significant number of jobs available, the ALJ may rely on VE testimony in
response to hypothetical questions—as he did in this case—or on the “the Grids,”
the Medical-Vocational Guidelines promulgated for this determination. See
Newton v. Apfel, 209 F.3d 448, 458 (5th Cir. 2000); 20 C.F.R. Pt. 404, Subpt. P,
App. 2.
When a VE gives inherently inconsistent, conflicting, or contradictory
testimony, such testimony is insufficient to carry the Commissioner's step-five
burden. See, e.g., Osborne v. Berryhill, 2017 WL 4342127, at * 6 (N.D. Tex. Sept.
12, 2017) (holding that the VE's “contradictions and/or ambiguous statements”
were “not adequate” to meet the Commissioner's burden); Goode v. Comm'r of
Soc. Sec., 966 F.3d 1277, 1282–83 (11th Cir. 2020) (“The vocational expert's
testimony was internally inconsistent, and created a critical void in the record. It
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is not our job or duty to speculate on what the testimony would have been without
the error.”); Kimbra L. v. Acting Comm'r of Soc. Sec., 2021 WL 3088713, at *4
(W.D. Wash. July 22, 2021) (“The Court is not persuaded that the ALJ met his
burden . . . by relying on VE testimony that was internally inconsistent.”); see also
Fister v. Astrue, 2012 WL 4685358, at *26 (N.D. Cal. Sept. 30, 2012) (finding that
an ALJ's step-four determination that the plaintiff could perform his past relevant
work was flawed because the ALJ relied on “internally inconsistent” VE
testimony); Duran v. Astrue, 654 F. Supp. 2d 1298, 1304 (D. Colo. 2009) (same
regarding an ALJ's step-five finding).
In determining Plaintiff’s RFC in this case, the ALJ determined that Plaintiff
“cannot perform work that requires specific rate production, such as assembly line
work, or work that requires hourly quotas.” Admin R. 200 (ECF No. 11-4).
Specifically, the ALJ explained that Plaintiff’s anxiety disorder and depressive
disorder were severe impairments which he accounted for by limiting Plaintiff to,
among other things, “work in a low stress job, defined as having no fixed
production quotas.” Admin R. 203 (ECF No. 11-4).
At the administrative hearing, the VE testified that a hypothetical person of
Plaintiff’s age, education, work experience, and limitations—including a limitation
that the individual “would not be able to perform work requiring specific rate
production”—could work as a hand packager, an assembler of small products, and
a final assembler. Admin R. 248 (ECF No. 11-4). But when Plaintiff’s attorney

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subsequently examined the VE, the VE acknowledged that the identified jobs are
“production jobs”:
Q: So the [identified jobs], those all sound like production jobs. Is that
correct?
A: You have to produce at the end of the day. It’s not piecework. It’s
not per piece, and it’s not an assembly line.
Q: So they have a quota. Correct?
A: At the end-of-day quota[.]
Admin R. 250 (ECF No. 11-4). The ALJ relied on the VE’s testimony to determine
that Plaintiff could work as a hand packager, assembler-small products, and final
assembler. Admin. R. 205 (ECF No. 11-4).
Plaintiff argues that a conflict exists between the ALJ’s RFC finding that
Plaintiff could not perform work requiring “specific rate production” or “fixed
production quotas” and his finding that Plaintiff could perform the identified jobs,
which the VE testified required at least daily quotas. Pl.’s Brief 18. Plaintiff argues
that the ALJ’s failure to address this conflict warrants remand. Id.
In response, the Commissioner argues that the VE’s testimony that the
identified jobs were not piecework, per piece, or an assembly line is consistent with
the ALJ’s RFC finding as incorporated into the pertinent hypothetical question.
Comm’r.’s Brief 9. The Commissioner contends that Plaintiff’s attorney questioned
the VE with a hypothetical about an individual who would not be able to maintain
pace a third of the day, see Comm’r.’s Brief 10, and that “an ALJ cannot be bound
by VE testimony based on hypothetical assumptions that the ALJ did not
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ultimately adopt, see id. (citing Owens v. Heckler, 770 F.2d 1276, 1282 (5th Cir.
1985)). However, Plaintiff’s argument does not have to do with the hypothetical
posed by her attorney. The VE testified that the identified jobs are “production
jobs” that have an “end-of-day quota” prior to Plaintiff’s attorney asking the
hypothetical question about a person who has issues keeping pace. See Admin R.
250 (ECF No. 11-4).
The Court agrees with Plaintiff that the VE gave contradictory testimony—
asserting initially that a hypothetical individual with a limitation of no work
requiring specific rate production could work as a hand packager, an assembler
of small products, and a final assembler, as described by the DOT; but then
recognizing that these identified jobs were “production jobs” that would have an
end-of-day quota. And the ALJ incorporated this conflict into the written decision
without explanation. The VE’s contradictory testimony is insufficient to carry the
Commissioner's step-five burden. See, e.g., Osborne, 2017 WL 4342127, at * 6;
Goode, 966 F.3d at 1282–83; Kimbra L., 2021 WL 3088713, at *4; Fister, 2012
WL 4685358, at *26; Duran, 654 F. Supp. 2d at 1304.
Plaintiff can also show that she was prejudiced by the ALJ's failure to
accord his step-five finding with the VE's testimony. See Mays v. Bowen, 837 F.2d
1362, 1364 (5th Cir. 1988) (because “[p]rocedural perfection in administrative
proceedings is not required,” a court “will not vacate a judgment unless the
substantial rights of a party are affected”). To establish prejudice, Plaintiff must
show this failure of the ALJ to properly consider the VE's testimony casts doubt
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onto

the

existence

of

substantial

evidence

supporting

the

disability

determination. See McNair v. Comm'r of Soc. Sec., 537 F. Supp. 2d 828, 827
(N.D. Tex. 2009) (“Procedural errors in the disability determination process are
considered prejudicial when they cast doubt onto the existence of substantial
evidence in support of the ALJ's decision.”) (citing Morris v. Bowen, 864 F.2d
333, 335 (5th Cir. 1988)).
Here, the contradiction between the ALJ’s step-five finding and the VE’s
testimony is material. Critically, the burden is on the Commissioner at step five
to identify gainful employment available in the national economy that Plaintiff
can perform. Jeff Ivan M. v. Berryhill, 2019 WL 3847992, at *6 (N.D. Tex. July
26, 2019) (citing Myers v. Apfel, 238 F.3d 617, 621-22 (5th Cir. 2001)).
Accordingly, because the ALJ was required to rely on the testimony of a VE and
failed to reform or even address the VE's contradictory testimony, the ALJ did
not carry the Commissioner's step-five burden, and his opinion is not supported
by substantial evidence. The ALJ's decision must thus be reversed.
Conclusion
For these reasons, the final decision of the Commissioner is REVERSED and
REMANDED for further proceedings consistent with this opinion.
SO ORDERED.
March 5, 2025.
____________________________
REBECCA RUTHERFORD
UNITED STATES MAGISTRATE JUDGE
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