Howen v. Kilolo
Filing
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OPINION AND ORDER granting 9 Howen's Motion for Summary Judgment and denying 12 Commissioner's Motion for Summary Judgment . "This case is REMANDED to the Commissioner for further proceedings consistent with this opinion." (Signed by Magistrate Judge Andrew M Edison) Parties notified. (RubenCastro, 3)
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
February 05, 2024
Nathan Ochsner, Clerk
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§ CIVIL ACTION NO. 3:23-cv-00123
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ANGELIQUE HOWEN,
Plaintiff.
V.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff Angelique Howen (“Howen”) seeks judicial review of an
administrative decision denying her application for disability and disability
insurance benefits under Title II of the Social Security Act (the “Act”). See Dkt. 1.
Before me are competing motions for summary judgment filed by Howen and
Defendant Martin O’Malley, the Commissioner of the Social Security
Administration (the “Commissioner”).1 See Dkts. 9, 12. After reviewing the
briefing, the record, and the applicable law, Howen’s motion for summary
judgment (Dkt. 9) is GRANTED, and the Commissioner’s motion for summary
judgment (Dkt. 12) is DENIED.
BACKGROUND
On December 15, 2017, Howen filed an application for Title II disability and
disability insurance benefits, alleging disability beginning November 27, 2017. Her
application was denied and denied again upon reconsideration. Subsequently, an
Administrative Law Judge (“ALJ”) held a hearing and found that Howen was not
disabled. Howen filed an appeal with the Appeals Council. The Appeals Council
Martin O’Malley became the Commissioner of Social Security on December 20, 2023.
O’Malley is “automatically substituted” as the defendant in this suit. FED. R. CIV. P. 25(d);
see also 42 U.S.C. § 405(g) (“Any action instituted in accordance with this subsection shall
survive notwithstanding any change in the person occupying the office of Commissioner
of Social Security or any vacancy in such office.”).
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denied review on September 3, 2019. Howen appealed, and on March 25, 2021,
Judge Peter Bray remanded this case to the Commissioner for further proceedings.
On April 27, 2021, the Appeals Council ordered Howen’s case remanded to the
ALJ. On September 7, 2021, the ALJ held a hearing at which Howen, a medical
expert, and a vocational expert (“VE”) testified. On November 24, 2021, the ALJ
found that Howen was not disabled. On December 1, 2021, Howen appealed again
to the Appeal Council. On March 10, 2022, the Appeals Council remanded the case,
this time to a different ALJ. On August 31, 2022, a new ALJ held a hearing at which
Howen, a medical expert, and a vocational expert (“VE”) testified. On November
2, 2022, the new ALJ also found that Howen was not disabled. Howen appealed
for a third time to the Appeals Council, which denied review on February 17, 2023,
making the Commissioner’s decision ripe for judicial review.
APPLICABLE LAW
The standard of judicial review for disability appeals is provided in 42 U.S.C.
§ 405(g). See Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002). Courts
reviewing the Commissioner’s denial of social security disability applications limit
their analysis to (1) whether the Commissioner applied the proper legal standards,
and (2) whether the Commissioner’s factual findings are supported by substantial
evidence. See Est. of Morris v. Shalala, 207 F.3d 744, 745 (5th Cir. 2000).
Addressing the evidentiary standard, the Fifth Circuit has explained:
Substantial evidence is 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. It
is the role of the Commissioner, and not the courts, to resolve conflicts
in the evidence. As a result, [a] court cannot reweigh the evidence, but
may only scrutinize the record to determine whether it contains
substantial evidence to support the Commissioner’s decision. A
finding of no substantial evidence is warranted only where there is a
conspicuous absence of credible choices or no contrary medical
evidence.
Ramirez v. Colvin, 606 F. App’x 775, 777 (5th Cir. 2015) (cleaned up). Judicial
review is limited to the reasons relied on as stated in the ALJ’s decision, and post
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hoc rationalizations are not to be considered. See SEC v. Chenery Corp., 332 U.S.
194, 196 (1947).
Under the Act, “a claimant is disabled only if she is incapable of engaging in
any substantial gainful activity.” Anthony v. Sullivan, 954 F.2d 289, 293 (5th Cir.
1992) (cleaned up). The ALJ uses a five-step approach to determine if a claimant
is disabled, including:
(1) whether the claimant is presently performing substantial gainful
activity; (2) whether the claimant has a severe impairment;
(3) whether the impairment meets or equals a listed impairment;
(4) whether the impairment prevents the claimant from doing past
relevant work; and (5) whether the impairment prevents the claimant
from performing any other substantial gainful activity.
Salmond v. Berryhill, 892 F.3d 812, 817 (5th Cir. 2018) (quoting Kneeland v.
Berryhill, 850 F.3d 749, 753 (5th Cir. 2017)).
The burden of proof lies with the claimant during the first four steps before
shifting to the Commissioner at Step 5. See id. Between Steps 3 and 4, the ALJ
considers the claimant’s residual functional capacity (“RFC”), which serves as an
indicator of the claimant’s capabilities given the physical and mental limitations
detailed in the administrative record. See Kneeland, 850 F.3d at 754. The RFC also
helps the ALJ “determine whether the claimant is able to do her past work or other
available work.” Id.
THE ALJ’S DECISION
The ALJ found at Step 1 that Howen “has not engaged in substantial gainful
activity since November 27, 2017, the alleged onset date.” Dkt. 5-3 at 22.
The ALJ found at Step 2 that Howen “has the following severe impairments:
Chronic Persistent Asthma; Chronic Obstructive Pulmonary Disease (COPD);
Liver Cirrhosis with Portal Hypertension; Disorders of the Thoracic Spine;
Hypertensive Heart Disease/Hypertension Without Heart Failure; Reversible
Ischemia/Ischemic Heart Disease with Arrythmia; Obesity; Obstructive Sleep
Apnea; Major Depressive Disorder; Mixed Anxiety Disorder; Post-Traumatic
Stress Disorder.” Id. at 23.
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At Step 3, the ALJ found that Howen “does not have an impairment or
combination of impairments that meets or medically equals the severity of one of
the listed impairments.” Id. at 24.
Prior to consideration of Step 4, the ALJ determined Howen’s RFC as
follows:
[Howen] has the residual functional capacity to perform a reduced
range of light work. Specifically, due to [Howen]’s physical
impairments, that is, asthma, COPD, liver disease, disorders of the
thoracic spine, heart disease, hypertension, obesity and obstructive
sleep apnea, she is limited as follows: [Howen] can lift and/or carry
20 pounds occasionally and 10 pounds frequently and sit for six hours
in an eight-hour workday with normal breaks. However, [she] is
limited to merely hours of standing and/or walking combined in an
eight-hour workday. Pushing and pulling is limited to no more than
only occasional. [She] can only occasionally stoop, crouch and
negotiate stairs and ramps. In addition, she should never be required
to climb ropes, ladders and scaffolds or work in proximity to hazards.
Further, she should never be required to work in environments with
concentrated exposure to pulmonary irritants or in extreme
temperatures. Due to her mental impairments, [Howen] is limited to
understanding, remembering and carrying out detailed and simple
repetitive but not complex tasks. Due to [Howen]’s adaptational
limitation that have resulted from her mental impairments, she
should never be subjected to more than only occasional changes in the
work setting. Further, due to [Howen]’s social limitations caused by
her mental impairments, she should be limited to no more than only
occasional interactions with the public and coworkers, and [she]
should never be required to work in proximity to crowds.
Id. at 30.
At Step 4, the ALJ found that “[Howen] is unable to perform any past
relevant work.” Id. at 39.
Nevertheless, at Step 5, relying on the Medical-Vocational Guidelines, the
ALJ found that Howen is not disabled because “there are jobs that exist in
significant numbers in the national economy that [Howen] can perform.” Id.
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DISCUSSION
Howen is representing herself in this appeal and raises a number of issues.
I do not reach those issues, however, because my own review of this case reveals
that the ALJ’s decision is not supported by substantial evidence. Specifically, “the
ALJ relied on vocational expert testimony given in response to a hypothetical
question that included an RFC different from the RFC the ALJ recognized in his
decision.” Montalbo v. Saul, No. 3:20-cv-00038, 2020 WL 6947256, at *4 (S.D.
Tex. Nov. 10, 2020) (cleaned up).
In his decision, the ALJ found that Howen “is limited to merely hours of
standing and/or walking combined in an eight-hour workday.” Dkt. 5-3 at 30
(emphasis added). Yet, the only hypothetical the ALJ posed to the VE regarding
standing and/or walking limitations was whether jobs existed if “the amount of
standing and/or walking [was reduced] to four out of eight hours.” Id. at 133
(emphasis added). Perhaps the ALJ meant to say that Howen was limited to merely
four hours of standing and/or walking. Indeed, the omission of “four” is likely a
regrettable typographical omission. But “I’m unwilling to go down that rabbit hole
because it would require me to speculate about what the ALJ meant” when crafting
the RFC. Montalbo, 2020 WL 6947256, at *4. “[M]erely hours” could mean four
hours, but it could also mean two or three hours. I cannot and will not speculate
what the ALJ meant when placing an indefinite limitation of “merely hours” on
Howen’s ability to stand and/or walk in an eight-hour workday.
The VE’s testimony, which was “based on [the VE’s] experience” was limited
to “reducing the amount of standing and/or walking to four hours.” Dkt. 5-3 at
134 (emphasis added). Because I cannot know how many hours of standing and/or
walking in an eight-hour workday the ALJ meant to limit Howen to with his use of
“merely hours,” this case must be remanded to the Commissioner so the ALJ can
clarify the limits of the RFC in his decision.
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CONCLUSION
For the reasons discussed above, Howen’s motion for summary judgment
(Dkt. 9) is GRANTED, and the Commissioner’s motion for summary judgment
(Dkt. 12) is DENIED. This case is REMANDED to the Commissioner for further
proceedings consistent with this opinion.
SIGNED this ____ day of February 2024.
______________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE
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