Gallegos v. Colvin

Filing 17

ORDER ADOPTING 16 Memorandum and Recommendations, GRANTING IN PART, DENYING IN PART 8 Cross MOTION for Summary Judgment , GRANTING IN PART, DENYING IN PART 10 Motion for summary judgment.(Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)

United States District Court
Southern District of Texas

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SYLVIA GALLEGOS,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner
of the Social Security Administration,
Defendant.

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ENTERED
February 23, 2018
David J. Bradley, Clerk

CIVIL ACTION H-17-201

ORDER
Pending before the court is a Memorandum and Recommendation (“M&R”) in which the
Magistrate Judge recommends that the court grant in part and deny in part both the plaintiff’s and
the defendant’s motions for summary judgment. Dkt. 16. After reviewing the M&R, related
documents in the record, and the applicable law, the court is of the opinion that there is no clear error
and that the M&R should be ADOPTED IN FULL. See Fed. R. Civ. P. 72, Advisory Committee
Notes (“When no timely objection is filed, the court need only satisfy itself that there is not clear
error on the face of the record in order to accept the recommendation.”). The court therefore
ADOPTS the M&R (Dkt. 16) IN FULL.
Accordingly, plaintiff Sylvia Gallegos’s motion for summary judgment (Dkt. 10) is
GRANTED IN PART AND DENIED IN PART. It is GRANTED to the extent Gallegos seeks
remand because the Administrative Law Judge (“ALJ”) failed to assess the transferability of skills
according to the standard applicable to persons closely approaching retirement age.1 It is otherwise
DENIED.

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To address this issue on remand, the ALJ should, in accordance with the instructions in the
M&R, “consult a Vocational Expert on: (1) the degree of transferability between the skills [Gallegos]
acquired in her past relevant work and the requirements of the cited potential occupations; and (2)
the vocational adjustment required for [Gallegos] to transition to those occupations. The ALJ must
explain his determinations on transferability and vocational adjustment.” Dkt. 16 at 21.

Additionally, Defendant Nancy A. Berryhill, Acting Commissioner of the Social Security
Administration’s motion for summary judgment (Dkt. 8) is GRANTED IN PART AND DENIED
IN PART. It is GRANTED to the extent Berryhill argues that substantial evidence supports the
ALJ’s finding that Gallegos is capable of lifting and carrying requirements of the identified jobs
despite her reliance on a cane to ambulate. It is otherwise DENIED.
In accordance with these rulings and the analysis in the M&R, the judgment of the Social
Security Commissioner, which denied review of the ALJ’s decision and thus fully adopted it, is
AFFIRMED IN PART AND REVERSED IN PART. This case is REMANDED to the Social
Security Administration for further consideration in light of the reasoning set forth in the M&R.
The court will issue a final judgment concurrently with this order.
Signed at Houston, Texas on February 23, 2018.

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Gray H. Miller
United States District Judge

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