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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

 §

TIMOTHY J. BENDON, §

Plaintiff, §

 §

v. § NO. 3:04-CV-1420-M

 §

JO ANNE BARNHART, §

COMMISSIONER OF SOCIAL SECURITY, §

 §

Defendant. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. §636(b) and the District Court’s Order of Reference dated

November 19, 2004, came on to be considered Plaintiff Timothy J. Bendon’s action brought

under 42 U.S.C. §405 (g) seeking judicial review of the Defendant’s denial of Plaintiff’s

application for Supplemental security income (“SSI”) benefits under Title XVI of the Social

Security Act, 42 U.S.C. §1381a.

Procedural History: On June 10, 2002 Bendon filed an application for Social Security benefits.

(Administrative Record “Tr.” at 55). He alleged disability due to narcolepsy, bronchiectasis,

chronic renal failure, and “Learning Disability Processing Problem.” (Id. at 63). At the time of

the administrative hearing, Plaintiff also claimed to be disabled because of kidney failure, focal

segmental glomerulosclerosis, and high blood pressure. (Id. at 13).

An Administrative Law Judge (“ALJ”) conducted a hearing on July 29, 2003. (Tr. at

388). On October 31, 2003, the ALJ denied Plaintiff’s request for disability benefits. (Id. at 9). 

In pertinent part, the ALJ found that Plaintiff had the severe impairments of chronic renal failure,

narcolepsy, a reading disorder, and borderline intellectual functioning. (Id. at 17 ¶ 2). The ALJ

 

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Since Bendon had never had a job, the ALJ resorted to the fifth step in the five-step sequential

inquiry finding that the Plaintiff had the residual functional capacity to engage in substantial

gainful activity. (Id. at 17-18 ¶¶ 1 and 2).

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found that Plaintiff could perform “the nonexertional requirements of work activity, limited by

the need to perform unskilled work in a clean environment devoid of noxious fumes, gases,

inhalants and dust” and to jobs that did not involve work at unprotected heights or around

dangerous machinery. (Id. at 17-18 ¶ 5).1

Bendon timely requested review of the ALJ’s decision by the Appeals Council, and on

April 27, 2004 the Appeals Council denied his request. (Tr. at 8). Therefore, the ALJ’s decision

became the Commissioner’s final decision for purposes of judicial review. 

Plaintiff filed his complaint on June 30, 2004 and his opening brief on March 31, 2005. 

Respondent filed her brief on May 27, 2005. Bendon filed his reply on July 15, 2005.

Standard of Review – Social Security: In a Social Security Case, the scope of judicial review is

limited to a determination of whether the ALJ’s decision to deny benefits is (1) supported by

substantial evidence and (2) whether the proper legal standard was applied. E.g., Kinash v.

Callahan, 129 F.3d 736, 738 (5th Cir. 1997).

Substantial evidence means more than a scintilla, but less than preponderance. E.g.,

Haywood v. Sullivan, 888 F.2d 1463, 1466 (5th Cir. 1989). It is defined as relevant evidence

that a reasonable mind would accept as sufficient to support a conclusion. E.g., Greenspan v.

Shalala, 38 F.3d 232, 236 (5th Cir. 1994)(citing Richardson v. Perales, 402 U.S. 389, 401, 91

S.Ct. 1420, 1427 (1971)).

In determining whether substantial evidence exists, the court does not reweigh the

evidence, retry the issues, or substitute its own judgment. E.g., Bowling v. Shalala, 36 F.3d 431,

434 (5th Cir. 1994). The Commissioner’s decision is granted great deference. Leggett v. Chater,

 

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67 F.3d 558, 564 (5th Cir. 1995). Conflicts in evidence are resolved by the Commissioner, not

the courts. Martinez v. Chater, 64 F.3d 172, 174 (5th Cir 1995). Accordingly, the absence of

substantial evidence will be found only when there is a “conspicuous absence of creditable

choices” or “no contrary medical evidence.” Hames v. Heckler, 707 F.2d 162, 164 (5th Cir.

1983). Findings of fact which are supported by substantial evidence are conclusive. Martinez,

64 F.3d at 173.

Discussion: To prevail on a claim for disability benefits, a claimant must establish physical

and/or mental impairment(s) lasting at least twelve months that prevent him from engaging in

any substantial gainful activity. Cook v. Heckler, 750 F.2d 391, 393 (5th Cir. 1985)(citing 42

U.S.C. §§ 416(i)(1), 423 (d)(1)(A)). In determining whether a claimant can engage in substantial

gainful activity, the Commissioner uses a five-step sequential inquiry. E.g., Martinez, 64 F.3d at

173-74. Under the first four steps, a claimant has the burden of proving disability, but under the

fifth step, i.e. when a claimant is unable to perform his previous work, the burden shifts to the

Commissioner to prove that there is other substantial gainful activity which he can perform. E.g.,

Bowen v. Yuckert, 482 U.S. 137, 147 n.5, 107 S.Ct. 2287, 2294 n.5 (1987); Anderson v. Sullivan,

887 F.2d 630, 632-33 (5th Cir. 1989). As noted above, the ALJ decided Bendon’s claim at Step

5. See note 1, supra.

In his brief Bendon contends that there is no substantial evidence to support the ALJ’s

determination that he did not suffer from an impairment meeting Listing 12.05 at Step 3 of the

sequential inquiry and that the ALJ’s finding that he suffers from a “severe” mental impairment

prevented the ALJ from relying on the Medical-Vocational Guidelines (“Grid Rules”) in

addressing Step 5 of the sequential inquiry. 

With a few exceptions noted in Plaintiff’s brief, the ALJ’s decision accurately

 

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Upon remand the Commissioner may reevaluate Bendon’s mental impairments and/or obtain

further medical expert assessments of such impairments.

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summarized the evidence considered in deciding the claim for benefits. (Tr. 13-15). Therefore,

because the exceptions are not material to the recommended disposition, the magistrate judge

does not reiterate the evidence presented. Additionally because I am of the opinion that it was

error for the ALJ to rely on the Grid Rules, this case must be remanded to the Commissioner for

further proceedings for the reasons stated hereinafter. Accordingly it is unnecessary to address

Bendon’s claim that the ALJ’s decision that his mental impairment did not meet Listing 12.05C

(20 C.F.R. Pt. 404, Subpt. P, Appx. 1 § 12.05C) was not supported by substantial evidence.2

In his decision the ALJ found that determination of the claim “must be made in light of

the Medical-Vocational Guidelines ...” (Tr. 17 ¶ 3; see also 18, finding 9). The ALJ further

found that the medical evidence established that the impairments alleged by Bendon constituted

severe impairments although none separately or in combination met or equaled any C.F.R.

listing. (Id. at 17, finding 2; see also id. at 15 ¶ 4).

In arguing that the ALJ could not rely on the Medical-Vocational Guidelines, Plaintiff

cites the Fifth Circuit’s unpublished opinion in Hearne v. Barnhart, 111 Fed. Appx. 256 (5th

Cir. Sept. 30, 2004). As in the present case the ALJ in Hearne found that the claimant’s

nonexertional impairment (depression) in conjunction with her physical impairments constituted

a “severe” impairment at Step 2 of the sequential inquiry. The court relied on the opinion in

Loza v. Apfel, 219 F.3d 378, 391, 398-99 (5th Cir. 2000), and held reliance solely on the Grid

Rules at Step 5 to be inappropriate.

In Loza, an ALJ had found that the “claimant [was] at most, slightly restricted by his

mental impairment.” 219 F.3d at 392. The court proceeded to find that this determination was

 

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Aside from the specific impairment at issue, the ALJ’s finding in Newton v. Apfel, 209 F.3d

448, 454 (5th Cir. 2000), is identical to the ALJ’s findings in this case and in Hearne.

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not supported by substantial evidence. Id. at 398. After making the determination that the

ALJ’s decision could not stand, the court concluded by observing “if it should be determined on

remand that the claimant’s mental impairments were not merely a slight abnormality of minimal

effect on ability to do work, the ALJ’s reliance on the Grid Rules at the fifth level [would

constitute] error.” Id. at 399 (case citations omitted).

Defendant argues that the ALJ’s reliance on the Grid Rules was not improper, citing

Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987). However, as distinguished from the

“severe” finding in the present case and that found in the Hearne case3

 the ALJ in Fraga found

“that the medical evidence failed to demonstrate that [he] suffered pain of such severity and

duration to prevent him from engaging in all substantial activity.” Id. at 1300-01.

Having found that Bendon had significant severe impairments which “[had] more than a

minimal effect on [his] ability to perform basic work related activities,” the ALJ was precluded

from relying on the Grid Rules in determining Plaintiff’s claim at Step 5.

 

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RECOMMENDATION:

For the foregoing reasons it is recommended that Plaintiff’s claim be remanded to the

Commissioner for further proceedings in light of the preceding findings.

A copy of this recommendation shall be sent to counsel for both parties.

SIGNED this 5th day of August, 2005

 

 Wm. F. Sanderson Jr.

United States Magistrate Judge

NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that you

must file your written objections within ten (10) days after being served with a copy of this

recommendation. Pursuant to Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415 (5th Cir.

1996)(en banc), a party’s failure to file written objections to these proposed findings of fact and

conclusions of law within such ten (10) day period may bar a de novo determination by the

district judge of any finding of fact and conclusion of law and shall bar such party, except upon

grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and

conclusions of law accepted by the district court. 

 

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