     Case: 18-30308      Document: 00514644204         Page: 1    Date Filed: 09/17/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                    No. 18-30308                               FILED
                                  Summary Calendar                     September 17, 2018
                                                                          Lyle W. Cayce
                                                                               Clerk
TERRENCE PAUL GUILLORY,

              Plaintiff - Appellant

v.

NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL
SECURITY,

              Defendant - Appellee



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:16-CV-1721


Before REAVLEY, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       The district court dismissed with prejudice Terrence Guillory’s appeal
from the Appeals Council’s decision denying him social security disability
status. For the reasons given below, we reverse and remand.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 18-30308
      The ALJ found that Guillory had severe impairments, including asthma,
eczema, and anxiety/PTSD. The ALJ also found that Guillory was unable to
perform his former work as a Navy seaman, National Guard gunner, Navy
mess cook, road laborer, or flagger. It did find, however, that Guillory had “the
residual functional capacity to perform sedentary work . . . that does not entail
exposure to heat, odors, gases, fumes, or poorly ventilated areas.” Guillory
submitted a “vocational assessment” to the appeals board that was dated
July 28, 2016 (3 days after the ALJ’s decision). The Appeals Council held that
this evidence was “about a later time” and did not “affect the decision about
whether [he was] disabled beginning on or before July 25, 2016.”
      The magistrate judge disagreed with the Appeals Council’s reasoning,
but determined that the appeal should be denied. It found that the vocational
assessment was based on the same records as the ALJ’s decision, and
“specifically discussed Guillory’s ability to work in 2015.” The Appeals Council
had clearly erred when it held that the assessment did not concern Guillory’s
ability to work before July 25, 2016. Spurred by the Commissioner’s briefing,
the magistrate judge held, however, that the assessment should be disregarded
because there was no evidence to establish the evaluator as “an expert in
vocational rehabilitation” (for instance, there was no CV attached to the
report). The magistrate judge disregarded the assessment under Federal Rule
of Evidence 702. The district court held that the magistrate judge’s report and
recommendation was correct. On appeal, Guillory argues that the district
court should have remanded this case in order for the new report to be
considered. He does not respond to the district court’s reasoning that Guillory
failed to present evidence that the evaluator for his assessment was qualified.
      “We review the Commissioner’s denial of social security benefits ‘only to
ascertain whether (1) the final decision is supported by substantial evidence
and (2) whether the Commissioner used the proper legal standards to evaluate
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                                 No. 18-30308
the evidence.’” Whitehead v. Colvin, 820 F.3d 776, 779 (5th Cir. 2016) (citation
omitted). The Appeals Council must “evaluate the entire record including new
and material evidence” but is not required “to discuss the newly submitted
evidence.” Id. at 780 (citation omitted). We agree with the district court that
the Appeals Council clearly erred when it held that the vocational assessment
did not concern Guillory’s ability to work before July 25, 2016. However, it is
a fundamental rule of administrative law that “in dealing with a determination
or judgment which an administrative agency alone is authorized to make, [a
reviewing court] must judge the propriety of such action solely by the grounds
invoked by the agency.”        SEC v. Chenery Corp., 332 U.S. 194, 196,
67 S. Ct. 1575, 1577 (1947); see also SEC v. Chenery Corp., 318 U.S. 80, 87,
63 S. Ct. 454, 459 (1943); Scott v. Shalala, 30 F.3d 33, 35 (5th Cir. 1994).
      The Commissioner’s brief attacks the vocational expert’s qualifications,
but this argument was not the basis for the agency’s decision.         We must
therefore REVERSE and REMAND, with instructions to remand to the
Appeals Council for proceedings consistent herewith.




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