Kelly v. Berryhill

Filing 12

OPINION on Summary Judgment. The commissioner's decision denying Kelly's claim for disability benefits is supported by substantial evidence and will be affirmed. Antwana Kelley will take nothing from Nancy Berryhill. (Signed by Judge Lynn N Hughes) Parties notified. (ghassan, 4)

United States District Court

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OFSouthern District of Texas
TEXAS

ENTERED
March 27, 2019
David J. Bradley, Clerk

Antwana Kelly,
Plaintiff,

v.
Nancy Berryhill,
Defendant.

§
§
§
§
§
§
§
§
§

Civil Action H-17-3596

Opinion on Summary Judgment

1.

Introduction
Antwana

Kelly brought this action for judicial reVIew of the

commissioner's final decision to deny her disability insurance benefits. The
question is whether substantial evidence supports the commissioner's decision. It
does.

2.

Background
Kelly applied for disability benefits on December 9, 2013. She was thirty-

two years old. Kelly claimed to suffer from several physical and mental
conditions, including carpal tunnel syndrome, depression, anxiety, and problems
with her shoulders and ankle.

Kelly graduated high school and attended some college. She worked as a
security guard and an auto parts delivery driver. She claimed to be disabled
starting on March 1, 2013.
The hearing officer found that Kelly suffers from severe impairments,
including carpal tunnel syndrome, but that none of her impairments prevents her
from working. He found that she could work as a photocopy operator, a garment
sorter, or a surveillance system operator.

3.

Legal Framework
a. Standard of Review
This court's review is limited to determining whether commissioner's

decision is supported by substantial evidence and whether the correct legal
standards were employed. Garcia v. Berryhill, 880 F.3d 700, 704 (5th Cir. 2018).
The court "does not reweigh the evidence in the record, try the issues de novo, or
substitute its judgment for the Commissioner's, even if the evidence weighs
against the Commissioner's decision." Newton v. Apfel, 209 F.3d 448, 452 (5th
Cir. 2000). "Conflicts in the evidence are for the Commissioner and not the
courts to resolve." ld. "A decision is supported by substantial evidence if credible
evidentiary choices or medical findings support the decision." Salmond v.

Berryhill, 892 F.3d 812, 817 (5th Cir. 2018).
b. Statutory Criteria

The Social Security Act provides disability insurance benefits to people
who have contributed to the program and have a physical or mental disability.

See 42 U.S.C. § 423. It defines disability as the "inability to engage in any

2

substantial gainful activity by reason of any medically determinable physical or
mental impairment . . . 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).
The Commissioner uses a sequential, five-step approach to determine
whether the claimant is disabled. The claimant bears the burden of proof on the
first four steps, but the Commissioner bears the burden on the fifth step. Newton,
209 F.3d at 455. First, a person who is working and engaging in substantial
gainful activity is not disabled. Second, a person who does not have a severe
impairment is not disabled. Third, a person whose severe impairments meet or
equal an impairment in appendix 1 of the regulations is deemed disabled. The
commissioner must determine the person's residual functional capacity ("RFC"),
which is a determination of the most the claimant can still do despite her physical
and mental limitations. The RFC is used in the fourth and fifth steps of the
analysis to determine whether the claimant can perform past relevant work or
any other work that is significant in the national economy.

4.

Analysis
The hearing officer followed the correct legal rules, and his findings are

supported by substantial evidence.
Although Kelly worked during the period she claims to have been disabled,
the hearing officer determined that it was not enough to constitute substantial
gainful employment in the first step of the analysis. At the second step, the
hearing officer found that Kelly has severe impairments from carpal tunnel
syndrome, depression, and anxiety. None of those impairments meet one in the
listings, however. The hearing officer found, based on her RFC, that Kelly could
3

not work in her previous jobs, but could find other work available in the national
economy.
The officer considered a wide array of testimonial and documentary
evidence before reaching his conclusion. In addition to Kelly, two physicians Drs. Amusa and Khushalani - testified at the hearing. The documentary evidence
included records from two hospitals, and Kelly's treating physician - Dr.
Simpson-White.
The officer's RFC determination was based largely on the hearing
testimony from the medical experts. It is also consistent with the medical
evidence. The decision denying benefits cites records of medical examinations
concluding that the strength, range of motion, and sensation in Kelly's
extremities were normal. Kelly's treating physician, Dr. Simpson-White, noted in
her records that she did not believe Kelly suffered from sufficient ailments to
obtain disability benefits. The RFC is supported by the evidence in the record.
Kelly argues that the hearing officer did not sufficiently account for Kelly's
carpal tunnel syndrome in the RFC determination. Kelly also argues that the
hearing officer placed too much weight on her decision not to obtain surgery to
repair her hands. The court declines Kelly's invitation to re-evaluate the evidence,
as that is the function of the commissioner. The hearing officer analyzed and
discussed the records relating to Kelly's carpal tunnel syndrome throughout his
decision. At the hearing, Dr. Amusa discussed the medical records and the
hearing officer relied heavily on Dr. Amusa to derive the RFC. The RFC is based
on Kelly's impairments and does not rely on her decision not to have surgery. The

4

record shows that the hearing officer considered all of Kelly's impairments and
determined that she is capable of working.
Kelly points out that the Dictionary of Occupational Titles defines garment
sorter and photocopying-machine operator to require frequent handling and
fingering. Kelly argues she cannot perform these jobs because her RFC permits
only occasional gross and fine manipulation with her right hand. Kelly's RFC
permits frequent gross and fine manipulation with her left hand, however. The
regulations do not require use of both hands for these jobs. There is no conflict
between the RFC and these jobs as defined in the regulations. The vocational
expert heard the hearing testimony and knew about Kelly's limitations. The
hearing officer was entitled to rely on the vocational expert.
Kelly argues that she cannot work as a surveillance-system monitor
because the job is not simple and requires more public contact than her RFC
permits. The court disagrees. The job requires that she be able to use
commonsense and carry out written, verbal and diagrammatic instructions.
Nothing in her RFC prevents Kelly from doing this. While the job does require
significant contact with people, it does not require frequent public contact. The
job requires Kelly to sit in a room, watch closed-circuit monitors, and report any
incidents she sees.
The Dictionary of Occupational Titles is not a comprehensive list of every
skill or qualification for every job. Vocational experts must fill in the gaps. See

Carey v. Apfel, 230 F.3d 131, 145 (5th Cir. 2000). The hearing officer's
determination that Kelly can perform other jobs was not in error.

5

5.

Conclusion
The commissioner's decision denying Kelly's claim for disability benefits is

supported by substantial evidence and will be affirmed. Antwana Kelly will take
nothing from Nancy Berryhill.

Signed on Marchqq-,

2019,

at Houston, Texas.

6