Wilkes v. Colvin

Filing 19

MEMORANDUM OPINION AND ORDER that the decision of the Commissioner of the Social Security Administration is therefore AFFIRMED. Signed by Judge Andrew W. Austin. (klw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
WILLIAM HENRY WILKES
V.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION

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A-15-CV-1064-AWA

MEMORANDUM ORDER AND OPINION
Before the Court are: Plaintiff’s Brief, filed on February 19, 2016 (Dkt. No. 12); Defendant’s
Reply Brief, filed on March 4, 2016 (Dkt. No. 13); and Plaintiff’s Reply to the Commissioner’s
Brief, filed on March 14, 2016 (Dkt. No. 14). Also before the Court is the Social Security record
filed in this case (Cited as “Tr.”).1
I. GENERAL BACKGROUND
On March 11, 2014, Plaintiff William Henry Wilkes (“Wilkes”)2 filed his application for
disability insurance benefits under Title II of the Social Security Act alleging he became unable to
work beginning on March 31, 2012 due to degenerative joint disease of the knees, hypertension, and
sleep apnea. After the Agency denied his application initially and again on reconsideration, Wilkes
requested an administrative hearing.

Wilkes and his attorney, Shirley Vu, attended the

administrative hearing before Administrative Law Judge (“ALJ”) Tammy A. Thames on March 24,

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In a previous filing, the undersigned submitted a Report and Recommendation regarding
this action to the Honorable Sam Sparks, United States District Judge. Dkt. No. 18. The
Report and Recommendation was filed in error, as the parties had both consented to proceeding
before the undersigned Magistrate Judge, and the case had been transferred to the undersigned.
Dkt. No. 11. Accordingly, the Court now enters this Order and Opinion, which is substantially
similar to the Report and Recommendation.
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Wilkes was 62 years-old at the time of the ALJ’s decision.

2015. Wilkes testified that he completed two years of college and also that he was in school at the
time of the hearing. Wilkes’s past work experience included nearly twenty-four years in the United
States Army, the last seven years of which was spent working as an armament technical warrant
officer. After leaving the Army in 2007, Wilkes worked as a stock control clerk and instructor at
General Dynamics, a maintenance equipment technician for ITT Governmental Services, an
inventory clerk/analyst at Honeywell Technology, and a training instructor at Raytheon Technical
Services. On April 23, 2015, the ALJ issued a decision finding that Wilkes was not disabled under
the Act. The Appeals Council denied Wilkes’s request for review on September 28, 2015, and then,
after setting that action aside to consider additional information, again denied his request for review
on October 21, 2015. Wilkes has exhausted his administrative remedies and now seeks judicial
review of the administrative proceedings under 42 U.S.C. § 405(g).
II. STANDARD OF REVIEW
The Social Security Act defines “disability” as an “inability to engage in any 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). To determine if a claimant is able to engage in “substantial gainful activity” (and
therefore if she is disabled) the Social Security Commissioner uses a five-step analysis:
1.

a claimant who is working, engaging in a substantial gainful activity, will not be
found to be disabled no matter what the medical findings are;

2.

a claimant will not be found to be disabled unless he has a “severe impairment”;

3.

a claimant whose impairment meets or is equivalent to an impairment listed in
Appendix 1 of the regulations will be considered disabled without the need to
consider vocational factors;

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4.

a claimant who is capable of performing work that he has done in the past must be
found “not disabled”; and

5.

if the claimant is unable to perform his previous work as a result of his impairment,
then factors such as her age, education, past work experience, and residual functional
capacity must be considered to determine whether she can do other work.

20 C.F.R. § 404.1520; Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994). A finding of disability
or no disability at any step is conclusive and terminates the analysis. Greenspan v. Shalala, 38 F.3d
232, 236 (5th Cir. 1994). The claimant has the burden of proof for the first four steps; at step five,
the burden initially shifts to the Commissioner to identify other work the applicant is capable of
performing. Selders v. Sullivan, 914 F.2d 614, 618 (5th Cir. 1990). Then, if the Commissioner
“fulfills [his] burden of pointing out potential alternative employment, the burden . . . shifts back to
the claimant to prove that he is unable to perform the alternate work.” Id. (citation omitted).
Judicial review of the Commissioner’s final decision under the Social Security Act, 42
U.S.C. § 405(g), is limited to two inquiries: (1) whether substantial evidence supports the
Commissioner’s decision, and (2) whether the Commissioner correctly applied the relevant legal
standards. Kinash v. Callahan, 129 F.3d 736, 738 (5th Cir. 1997). Substantial evidence is more than
a scintilla of evidence but less than a preponderance—in other words, “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Martinez v. Charter, 64 F.3d
172, 173 (5th Cir. 1995). The Court considers four elements of proof when determining whether
there is substantial evidence of a disability: (1) objective medical facts; (2) diagnoses and opinions
of treating and examining physicians; (3) the claimant’s subjective evidence of pain and disability;
and (4) the claimant’s age, education, and work history. Id. at 174. However, the reviewing court
may not reweigh the evidence, try the issues de novo, or substitute its judgment for that of the

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Commissioner. Greenspan, 38 F.3d at 236. The Court may only scrutinize the record to determine
whether it contains substantial evidence to support the Commissioner’s decision. Leggett v. Chater,
67 F.3d 558, 564 (5th Cir. 1995). If the Court finds substantial evidence to support the decision, the
Court must uphold the decision. See Selders, 914 F.2d at 617 (“If the . . . findings are supported by
substantial evidence, they are conclusive and must be affirmed.”); 42 U.S.C. § 405(g).
III. THE ALJ’s OPINION
The ALJ employed the regulations’ five-step sequential evaluation process to determine
whether Wilkes was disabled. 20 C.F.R. § 404.1520(a). See Tr. 19-24. At the first step, the ALJ
determined that Wilkes had not engaged in substantial gainful activity since March 31, 2012. At the
second step, the ALJ found that Wilkes suffered from the severe impairments of obesity,
degenerative joint disease of the knees, hypertension, and obstructive sleep apnea. At step three, the
ALJ found that, considered separately and in combination, Wilkes’s impairments did not meet or
medically equal the severity criteria for any of the impairments listed in 20 C.F.R. Pt. 404, Subpt.
P, App. 1, and thus his impairments were not presumptively disabling. After considering the entire
record, the ALJ determined that Wilkes has the residual function capacity to:
perform light work as defined in 20 C.F.R. § 404.1567(b) except this individual is
able to lift or carry twenty pounds occasionally, ten pounds frequently, perform
standing or walking for a total of four hours in an eight-hour workday, and sit for a
total of six hours in an eight hour workday, with normal breaks; No pushing and
pulling activities with the bilateral lower extremities; Occasionally performing
climbing of ramps or stairs; Never climbing ladders, ropes or scaffolds; Occasionally
perform, stooping, kneeling, crouching or crawling; Avoiding concentrated exposures
to hazards, including working near danger machinery and unprotected heights. [sic]
Tr. at 20.
At step four, the ALJ determined that Wilkes was capable of performing his past relevant

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work as an inventory clerk/analyst. Accordingly, the ALJ found that Wilkes was not disabled as
defined in the Social Security Act.
IV. ANALYSIS
Wilkes argues that the Court should reverse the ALJ’s decision because it does not comply
with Social Security Ruling (“SSR”) 82-62. Specifically, Wilkes argues that the ALJ’s step four
analysis is inherently unclear and also fails to reconcile a significant discrepancy in the facts. The
relevant portion of SSR 82-62 reads:
The rationale for a disability decision must be written so that a clear picture of the
case can be obtained. The rationale must follow an orderly pattern and show clearly
how specific evidence leads to a conclusion. . . . The explanation of the decision
must describe the weight attributed to the pertinent medical and nonmedical factors
in the case and reconcile any significant inconsistencies. Reasonable inferences may
be drawn, but presumptions, speculations and suppositions must not be used.
SSR 82-62, 1982 WL 31386.
Wilkes’s argument that the ALJ’s step four analysis is inherently unclear is rooted in the
following language from the ALJ’s decision:
Karyl L. Kuuttila, an impartial vocational expert testified that the claimant’s past
relevant work as an inventory clerk/analyst, as [Wilkes] described it and as it is
described in the DOT, is a medium, semi-skilled job. The claimant testified that the
job of an inventory clerk/analyst required him to be at a desk for six hours of the day.
He did not perform a lot of lifting and the remainder of the day he would attend
briefing. Ms. Kuuttila testified that the inventory clerk/analyst was defined as
sedentary.
Tr. at 23. However, Wilkes’s claim that these apparently conflicting statements render the opinion
impermissibly vague is challenged by language that appears later in the ALJ’s step-four
determination:
Based on the [ALJ’s] determination of the claimant’s residual functional capacity,
the vocational expert testified that the claimant would be able to perform the
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requirements of [the inventory clerk/analyst job], based either on his own description
of the duties of the job or those that appear in the DOT. Therefore, in comparing the
claimant’s residual functional capacity with the physical and mental demands of his
work as an inventory clerk/analyst, the undersigned finds that the claimant is able to
perform this work as actually performed, per the vocational expert’s testimony.
Tr. at 24. While the ALJ’s description of Kuuttila’s testimony as regards the work level required by
an inventory clerk/analyst position is less than elegant, her analysis as a whole “shows clearly how
specific evidence”–here, the vocational expert’s testimony–“leads to a conclusion”–here, that Wilkes
is able to perform the work as an inventory clerk/analyst as actually performed. SSR 82-62, 1982 WL
31386. Therefore, the ALJ’s step-four analysis was not inherently unclear, and the decision was
issued in compliance with SSR 82-62.
Wilkes’s argument that the ALJ failed to reconcile a significant discrepancy stems from
testimony given by Wilkes at the administrative hearing following Kuuttila’s testimony. After
Kuuttila testified that Wilkes defined the work level required for the inventory clerk/analyst position
as “sedentary,” Wilkes was reexamined by his attorney and gave the following testimony :
[ATTY.:]

Mr. Wilkes, in respect to your Honeywell job . . . [w]hat was the
percentage of the day that you were sitting, what was the percentage
of the day that you were on your feet? And what were you, what were
you doing?

[WILKES:]

The Honeywell job was probably about six hours at the desk. . . .

[ATTY.:]

And what’s the heaviest weight that you lifted at that job?

[WILKES:]

That was–

[ATTY.:]

And what were you lifting and carrying?

[WILKES:]

It wasn’t a whole lot. If I had to lift anything at all, it would have to
be going down to the motor pool, just maybe help somebody move
some new cases that had been issued, or something like that. But
not–
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[ATTY.:]

How much–

[WILKES:]

–a whole lot. A lot of that was–the other few hours would be going
to brief some military personnel on the equipment that they were
going to receive, what they needed to do as far as hand receive
transactions.

[ATTY.:]

And what–you said you lifted cases though at times.

[WILKES:]

Yeah.

[ATTY.:]

How much were those cases? How much did those cases weigh?

[WILKES:]

I’m thinking the cases are probably around 50 pounds and up,
depending on what was being issued. If it was tools for a track, those
are usually heavy if it came in a wooden crate. . . . Electronic
equipment was probably 40 pounds.

Tr. at 54-55. Wilkes notes that the ALJ found that Wilkes’ had the residual functional capacity to
could lift or carry twenty pounds occasionally and ten pounds frequently. Tr. at 20. But this
testimony shows that the inventory clerk/analyst position as actually performed required lifting “50
pounds and up.” As such, Wilkes argues, his residual functional capacity renders him incapable of
performing his prior work. Moreover, he argues, because the ALJ did not explicitly refer to this
testimony in her decision, the ALJ failed to reconcile a significant disparity in the record, which
renders the decision deficient under the terms of SSR 82-62.
As Wilkes notes, irrespective of this Court’s determination as to whether this testimony
introduced a significant inconsistency requiring reconciliation by the ALJ, an ALJ’s ruling will be
reversed and remanded only where the aggrieved party demonstrates prejudice. Hall v. Schweiker,
660 F.2d 116, 119 (5th Cir. Unit A Sept. 1981). To properly demonstrate prejudice, a party must
show that the error was harmful because it resulted in a determination by the ALJ that is unsupported
by substantial evidence. See Morris v. Bowen, 864 F.2d 333, at 336 (5th Cir. 1988) (per curiam).
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In other words, an error in this context is harmless if, “had the ALJ explicitly addressed this issue,
the ALJ’s conclusion would not have changed.” Foster v. Astrue, No. A-06-CA-852 AWA, 2007
WL 2729363, at *2 (W.D. Tex. Sept. 18, 2007).
The fact that the ALJ did not explicitly address Wilkes’s later testimony that he occasionally
helped to lift boxes of 50 pounds or more did not result in prejudice against Wilkes because the
ALJ’s disability determination is amply supported by substantial evidence. Vocational expert
Kuuttila’s determination that Wilkes had the residual functional capacity to work as an inventory
clerk/analyst as the position was actually performed–which the ALJ relied upon in making her
decision–went unchallenged by Wilkes’s attorney at his hearing. Furthermore, Wilkes’s Work
History Report explicitly noted that his job as an inventory clerk/analyst did not require any lifting.
Tr. at 164. Finally, Wilkes’s own testimony indicates that the inventory clerk/analyst job was mostly
dedicated to working at a computer and briefing military personnel on the equipment they were about
to receive: if he lifted anything at all, it was to “help somebody move some new cases” which he
“thought” were “probably around 50 pounds and up.” Id. at 55.
Given the strength of the evidence supporting the ALJ’s determination, as well as the
imprecise nature of Wilkes’s testimony, the ALJ likely implicitly dismissed Wilkes’s later testimony
as not credible. Thus, as the decision was supported by substantial evidence, and explicitly
addressing the issue would not have changed the ALJ’s determination, even if the ALJ failed to
reconcile a significant inconsistency in the record, such failure did not result in prejudice to Wilkes.
The Court therefore recommends that the Commissioner’s determination be affirmed.
Finally, Wilkes’s arguments that the Chenery doctrine precludes this court from considering
evidence in the record not explicitly mentioned in the ALJ’s decision—specifically Wilkes’s Work
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History Report—is meritless, for two reasons. First, Chenery stands for the proposition that “a
reviewing court, in dealing with a determination or judgment which an administrative agency alone
is authorized to make, must judge the propriety of such action solely by the grounds invoked by the
agency.” Securities and Exchange Commission v. Chenery Corp., 332 U.S. 194, 196 (1947)
(emphasis added). The grounds invoked by the ALJ in reaching her decision—that Wilkes was not
disabled because he had the requisite residual functional capacity to work as an inventory
clerk/analyst—are identical to the grounds invoked by this Court in reaching its decision. This
Court’s use of additional evidence from the record, by itself, does not differentiate the grounds
invoked by the Court from the grounds invoked by the ALJ. Chenery’s admonitions against post-hoc
rationalizations are therefore inapposite.
Second, the standard of review endorsed by Wilkes runs contrary to the statutory
requirements outlined by 42 U.S.C. § 405(g), which gives this Court the power to enter a judgment
based “upon the pleadings and transcript of the record.” 42 U.S.C. § 405(g). Furthermore, this
standard would preclude this Court from adhering to its common-law duty to affirm the
Commissioner’s decision where it is supported by substantial evidence in the record simply because
the ALJ did not explicitly mention this evidence in her decision. See Sedler, 914 F.2d at 617. As
such, Wilkes’s claim that this Court may base its decision solely on the evidence used in the ALJ’s
decision is rejected.
V. CONCLUSION
For the reasons set forth above, the Court finds that the ALJ applied the proper legal
standards to Wilkes’s case, and that her findings are supported by substantial evidence in the record.
The decision of the Commissioner of the Social Security Administration is therefore AFFIRMED.
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SIGNED this 18 day of August, 2016.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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