Valverde v. Berryhill
MEMORANDUM OPINION AND ORDER. Signed by Judge Anne T. Berton. (mc4)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
NANCY A. BERRYHILL,
Acting Commissioner of the
Social Security Administration,
MEMORANDUM OPINION & ORDER
This is a civil action seeking judicial review of an administrative decision. Jurisdiction is
predicated upon 42 U.S.C. § 405(g). Both parties having consented to trial on the merits before a
United States Magistrate Judge, the case was transferred to this Court for trial and entry of
judgment pursuant to 28 U.S.C. § 636(c) and Rule CV-72 and Appendix C to the Local Court
Rules for the Western District of Texas.
Plaintiff appeals from the decision of the Commissioner of the Social Security
Administration (“Commissioner”) denying his applications for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income (“SSI”). For the reasons set forth below, the Court
orders that the Commissioner’s decision be AFFIRMED.
On January 13, 2014, Plaintiff filed an application for DIB and SSI, alleging an amended
disability onset date of August 14, 2013. (R. 44, 63, 207-209, 212-217). His applications were
denied initially and denied upon reconsideration. (R. 138-149, 156-159). Plaintiff then filed a
request for a hearing, which was held on October 26, 2015.
(R. 58-95, 160-161).
Administrative Law Judge (“ALJ”) issued a decision on January 12, 2016, denying benefits. (R.
41-57). Subsequently, the Appeals Council denied review. (R. 1-4). Therefore, the ALJ’s
decision stands as the final decision of the Commissioner.
Plaintiff presents the following issue for review:
Whether the ALJ’s determination that Plaintiff is not disabled is erroneous
and against agency rules and regulations warranting remand.
(ECF. No. 17, p. 2).
Plaintiff’s sole argument is that the ALJ erroneously categorized Plaintiff’s exertional
level as light, rather than sedentary. (Id. at 3-6). Specifically, Plaintiff argues that an exertional
level of light work with a two hour stand/walk limitation is correctly categorized as sedentary
work under the grids. (Id.). Accordingly, Plaintiff alleges that the ALJ applied the wrong grid,
and therefore, that the ALJ’s step five findings and the testimony of the Vocational Expert
(“VE”) are erroneous. (Id. at 3-4). Due to this alleged error, Plaintiff seeks a remand for the
award of benefits or additional proceedings. (Id. at 6).
Standard of Review
This Court’s review is limited to a determination of whether the Commissioner’s
decision is supported by substantial evidence, and whether the Commissioner applied the proper
legal standards in evaluating the evidence. See 42 U.S.C. § 405(g); Masterson v. Barnhart, 309
F.3d 267, 272 (5th Cir. 2002) (citations omitted); Martinez v. Chater, 64 F.3d 172, 173 (5th Cir.
1995) (citation omitted). “Substantial evidence ‘is more than a mere scintilla, and less than a
preponderance.’” Masterson, 309 F.3d at 272 (citation omitted). The Commissioner’s findings
will be upheld if supported by substantial evidence. Id. (citation omitted). A finding of no
substantial evidence will be made only where there is a conspicuous absence of credible choices
or no contrary medical evidence. Abshire v. Bowen, 848 F.2d 638, 640 (5th Cir. 1988) (per
curiam) (internal quotation marks and citation omitted).
In applying the substantial evidence standard, the court may not reweigh the evidence, try
the issues de novo, or substitute its own judgment for the Commissioner’s, even if it believes the
evidence weighs against the Commissioner’s decision. Masterson, 309 F.3d at 272 (citation
omitted). Conflicts in the evidence are for the Commissioner and not the courts to resolve. Id.
(citation omitted); Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993) (citation omitted).
The ALJ evaluates disability claims according to a sequential five-step process: (1)
whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant
has a severe medically determinable physical or mental impairment; (3) whether the claimant’s
impairment(s) meet or equal the severity of an impairment listed in 20 C.F.R. Part 404, Subpart
P, Appendix 1; (4) whether the impairment prevents the claimant from performing past relevant
work; and (5) whether the impairment prevents the claimant from doing any other work. 20
C.F.R. § 404.1520. Once the claimant satisfies his burden under the first four steps, the burden
shifts to the Commissioner at step five to show that there is other gainful employment available
in the national economy that the claimant is capable of performing. Greenspan v. Shalala, 38
F.3d 232, 236 (5th Cir. 1994). This burden may be satisfied either by reference to the Medical
Vocational Guidelines of the regulations, by VE testimony, or by other similar evidence. Fraga
v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987). Once the Commissioner makes the requisite
showing at step five, the burden shifts back to the Plaintiff to rebut the finding that there are jobs
that exist in significant numbers that the Plaintiff could perform. Perez v. Barnhart, 415 F.3d
457, 461 (5th Cir. 2005).
In the present case, the ALJ found that Plaintiff suffered from the severe impairments of
Degenerative Disc Disease, Obesity, Osteoarthritis, and a Positive Antinuclear Antibody
(“ANA”) Test. (R. 46-47). Next, the ALJ determined that Plaintiff did not have an impairment
or combination of impairments that met or medically equaled the listed impairments. (R. 47-48).
After considering the entire record, the ALJ determined that Plaintiff retained the Residual
Functional Capacity (“RFC”)1 to perform light work2 with the following limitations:
the [Plaintiff] can only stand and walk for two hours in an eight-hour workday.
The [Plaintiff] can occasionally climb ramps and stairs, but cannot climb ladders,
ropes, or scaffolds. The [Plaintiff] can frequently balance, but can occasionally
stoop, kneel, crouch, and crawl.
(R. 48-50) (emphasis added). The ALJ then determined that Plaintiff was unable to perform his
past relevant work.
However, after considering Plaintiff’s age, education, work
experience, and RFC, the ALJ found that jobs exist in significant numbers in the national
economy that Plaintiff can perform. (R. 51-52). Accordingly, the ALJ found that Plaintiff was
not disabled within the meaning of the Social Security Act through the decision date. (R. 52).
The Court rejects Plaintiff’s position that the inability to perform the full range of light
work required the ALJ to find that Plaintiff could only perform sedentary work. (See ECF. No.
17, p. 3-6). “To determine the physical exertion requirements of work in the national economy,
Residual Functional Capacity (“RFC”) is the most an individual can still do despite his or her limitations.
20 C.F.R. §404.1545; SSR 96-8p.
20 C.F.R. § 404.1567(b) (“Light work involves lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in
this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with
some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of
light work, you must have the ability to do substantially all of these activities. If someone can do light work, we
determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine
dexterity or inability to sit for long periods of time.”).
[the Social Security Administration] classif[ies] jobs as sedentary, light, medium, heavy, and
very heavy.” 20 C.F.R. § 404.1567. These definitions describe the requirements for a full range
of work at a particular exertional level. Malley v. Astrue, 2012 U.S. Dist. LEXIS 18543, at *1920 (E.D. La. 2012) (emphasis in original); see generally, SSR 83-10. In order to perform the full
range of light work, an individual “must have the ability to do substantially all of [the] activities
[required].” 20 C.F.R. § 404.1567(b); see also SSR 83-10.
However, the social security
regulations specifically contemplate a situation where an RFC may be “somewhere in the
middle” in terms of the regulatory criteria for exertional ranges of work. See SSR 83-12. In
such cases, the ALJ shall consult a VE, who “can assess the effect of any limitation on a given
range of work and then advise [the ALJ] whether the impaired person’s RFC permits him or her
to perform substantial numbers of occupations within the range of work at issue . . . .”
See Gravel v. Barnhart, 360 F. Supp. 2d 442, 448 (N.D.N.Y. 2005) (internal quotations omitted);
Malley v. Astrue, 2012 U.S. Dist. LEXIS 18543, at *21 (E.D. La. 2012) (“Where exertional
limitations prevent the claimant from doing the full range of work specified in his assigned
residual function category, . . . the grids do not direct a conclusion of disabled or not disabled. In
such a case, vocational expert testimony is required to determine whether jobs exist for someone
with the claimant's precise disabilities.”) (internal citations omitted).
inability to perform the full range of light work does not mean that [Plaintiff] is capable only of
sedentary work.” Conaway v. Astrue, 2008 U.S. Dist. LEXIS 91012, at *10 (N.D. Tex. 2008).
Here, the ALJ made the RFC determination that Plaintiff retained the ability to do light
work with some limitations. (R. 48-50). While Plaintiff’s standing and walking limitations fall
within the sedentary category, Plaintiff’s RFC was above the category of sedentary work in
various areas, including lifting and carrying at full light exertional levels. (R. 50). Thus,
Plaintiff’s RFC fell between light work and sedentary work as contemplated by SSR 83-12.
Torres v. Berryhill, 2017 U.S. Dist. LEXIS 48591, at *7-8 (D. Minn. 2017) (“In fact, numerous
courts have found that a two hour standing or walking limitation is consistent with the definition
of a reduced range of light work.”) (collecting cases). Therefore, as he was required to do so, the
ALJ consulted a VE, and included all of Plaintiff’s limitations in his hypotheticals. (R. 51-52,
91-95); see Conaway, 2008 U.S. Dist. LEXIS 91012, at *10 (holding that, where Plaintiff’s RFC
did not precisely fit into a light or sedentary category, the ALJ properly relied on testimony of
the VE); Malley, 2012 U.S. Dist. LEXIS 18543, at *36 (holding that the ALJ’s RFC
determination was supported by substantial evidence where the ALJ found that the plaintiff was
limited in his ability to perform light work by, among other things, the ability to stand and/or
walk for only two hours per day). Similarly, because Plaintiff’s RFC was between sedentary and
light, and the ALJ included all of Plaintiff’s limitations in his hypothetical to the VE, the VE’s
testimony was consistent with the grids. See id; Logerman v. Colvin, 2014 U.S. Dist. LEXIS
137072 (E.D. Mo. 2014) (affirming the decision of the ALJ where he relied on VE testimony
that plaintiff could perform specific light work occupations which limited plaintiff to standing or
walking for two hours). Accordingly, the Court finds that the ALJ’s decision is free from legal
error in this respect.
Based on the foregoing, the Court HEREBY ORDERS that the decision of the
Commissioner be AFFIRMED consistent with this opinion.
SIGNED and ENTERED this 25th day of October, 2017.
ANNE T. BERTON
UNITED STATES MAGISTRATE JUDGE
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