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Horsley v. Colvin

United States District Court, N.D. Mississippi, Aberdeen Division

March 24, 2014

CAROLYN COLVIN, Acting Commissioner Social Security Administration, Defendant.


DAVID A. SANDERS, Magistrate Judge.

This case involves an application pursuant to 42 U.S.C. § 405(g) for judicial review of the decision of the Commissioner of Social Security ("Commissioner") denying the application of the claimant Robert Issac Horsley for disability benefits. The parties have consented to entry of final judgment by the United States Magistrate Judge under the provisions of 28 U.S.C. § 636(c), with any appeal to the Court of Appeals for the Fifth Circuit.

After consideration of the briefs of the parties and argument made before the court on February 5, 2014, the court finds that this case should be remanded to the Social Security Administration.


On December 8, 2009, Robert Horsley filed his application for a period of disability and disability insurance benefits, alleging onset of disability on November 15, 2009. After the applications were denied at the lower levels, a hearing was held before an administrative law judge (ALJ) on November 3, 2011. An unfavorable decision was issued on November 12, 2011. Horsley's date last insured was December 31, 2011.

Mr. Horsley was fifty-two years old on the alleged date of onset. He was fifty-four years and about seven and one-half months of age at the time of the ALJ's decision. He has a limited education, having failed to complete high school. The ALJ found his sole severe impairment is a back disorder. Mr. Horsley testified he could perform a wide range of activities of daily living, but that he could not perform them on a sustained basis because of the resulting pain. The ALJ found him a credible witness, except to the extent that his testimony was inconsistent with her finding a residual functional capacity (RFC) to perform a limited range of light work. The ALJ found Horsley could lift, carry, push and pull a maximum of twenty pounds occasionally and ten pounds frequently. He could stand and walk six hours of an eight-hour day, and sit six out of eight hours in a workday. The ALJ found Horsley could occasionally balance, stoop, crouch, kneel or crawl.

The ALJ only considered Medical Vocational Guideline Rule 202.11, 20 C.F.R. Pt 404, Subpt P, App. 2, which addresses individuals "closely approaching advanced age, " - persons fifty to fifty-four years old. The vocational expert (VE) testified that Horsley could not return to his past relevant work experience, but that there were other jobs in the national economy which he could perform. Accordingly, the ALJ found Horsley was not disabled. On November 13, 2012 the Appeals Council denied Horsley's request for review.


In determining disability, the Commissioner, through the ALJ, works through a five-step sequential process.[1] The burden rests upon the claimant throughout the first four steps of this five-step process to prove disability. If the claimant is successful in sustaining the burden at each of the first four levels, the burden then shifts to the Commissioner at step five.[2] First, the claimant must prove she is not currently engaged in substantial gainful activity.[3] Second, the claimant must prove her impairment is "severe" in that it "significantly limits her physical or mental ability to do basic work activities...."[4] At step three the ALJ must conclude the claimant is disabled if she proves that her impairments meet or are medically equivalent to one of the impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1, § § 1.00-114.02 (2011).[5] Fourth, the claimant bears the burden of proving she is incapable of meeting the physical and/or mental demands of his past relevant work.[6] If the claimant is successful at all four of the preceding steps, the burden shifts to the Commissioner to prove, considering the claimant's residual functional capacity, age, education and past work experience, that she is capable of performing other work.[7] If the Commissioner proves other work exists which the claimant can perform, the claimant is given the chance to prove that she cannot, in fact, perform that work.[8]

This court's review of the Commissioner's decision is limited to an inquiry into whether there is substantial evidence to support the findings of the Commissioner, Richardson v. Perales, 402 U.S. 389, 401 (1971), and whether the correct legal standards were applied. 42 U.S.C. § 405 (g.); Falco v. Shalala, 27 F.3d 160, 162 (5th Cir. 1994); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). Substantial evidence has been defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Perales, 402 U.S. at 401 (quoting Consolidated Edison v. NLRB, 305 U.S. 197, 229 (1938)). The Fifth Circuit has further held that substantial evidence "must do more than create a suspicion of the existence of the fact to be established, but no substantial evidence' will be found only where there is a conspicuous absence of credible choices' or no contrary medical evidence.'" Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988) (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)). Conflicts in the evidence are for the Commissioner to decide, and if substantial evidence is found to support the decision, the decision must be affirmed even if there is evidence on the other side. Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990). The court may not reweigh the evidence, try the case de novo, or substitute its own judgment for that of the Commissioner, Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988), even if it finds that the evidence preponderates against the Commissioner's decision. Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994); Harrell, 862 F.2d at 475. If the Commissioner's decision is supported by the evidence, then it is a conclusive and must be upheld. Richardson, 402 U.S. at 390.


Horsley claims the ALJ erred when she mechanically applied the Medical-Vocational guidelines, commonly called the grids. The guidelines are used when a claimant is found to be unable to return to past relevant work. These rules assist the Social Security Administration with its burden at Step Five to show whether a claimant is capable of significant gainful activity, without the necessity of individualized, expert vocational testimony. Where a claimant's RFC and other vocational factors fall precisely within one of the grids, the rules will dictate either a finding of "disabled" or "not disabled."

The Social Security Administration has recognized through its regulations the adverse vocational impact of advancing age, and the grids reflect this determination. In fact, the age of a claimant may be determinative of the outcome of an application for disability. An older worker may be deemed "disabled" by the grids, where a younger worker, with an otherwise identical vocational profile may be deemed "not disabled." Based on this reality, the Social Security Administration has, by regulation, mandated that the age categories in the guidelines shall not be mechanically applied in borderline situations. 20 C.F.R § 404.1563(a). The regulation provides:

If you are within a few days to a few months of reaching an older age category, and using the older age category would result in a determination or decision that you are disabled, we will consider whether to use the older age category after ...

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