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Deborah T. v. Saul

United States District Court, N.D. Texas, Fort Worth Division

September 6, 2019

DEBORAH T. [1], Plaintiff,
v.
ANDREW M. SAUL, Commissioner of Social Security [2], Defendant.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          Hal R. Ray, Jr. UNITED STATES MAGISTRATE JUDGE

         Plaintiff filed this action under 42 U.S.C. §§ 405(g) seeking judicial review of the unfavorable decision of the Commissioner of the Social Security Administration ("Commissioner") regarding her application for disability insurance benefits ("DIB") under Title II of the Social Security Act ("SSA"). (ECF No. 1 at 1; Tr. 14). After considering the pleadings, briefs, and the administrative record, the undersigned RECOMMENDS that United States District Judge Reed O'Connor REVERSE the Commissioner's decision and REMAND this action for further proceedings.

         I. STATEMENT OF THE CASE

         Plaintiff applied for DIB on July 14, 2015, alleging disability based on asthma, obesity, lumbar spondylolisthesis, hypertension, and obstructive sleep apnea. (Tr. 17). The Commissioner initially denied her DIB application on September 29, 2015 and again upon reconsideration on January 13, 2016. (Tr. 14). Plaintiff timely filed a request for a hearing. (Id. at 26). She attended and testified at the hearing before Administrative Law Judge ("ALJ") Brock Cima on January 3, 2017 in Fort Worth, Texas. (Id. at 14). Also present were Plaintiffs non-attorney representative, Andrew S. Youngman; her attorney, Candra Stewart; and a vocational expert ("VE"), Michelle M. Aliff (Id.). On January 26, 2017, the ALJ rendered a decision finding that Plaintiff was not disabled. (Id. at 14-26).

         Specifically, the ALJ employed the statutory five-step analysis and established during step one that Plaintiff had not engaged in substantial gainful activity since September 29, 2011. (Id. at 17). At step two, the ALJ determined that she had the severe impairments of asthma, obesity, lumbar spondylolisthesis, hypertension, and obstructive sleep apnea. (Id.). At step three, the ALJ found that her impairments did not meet or medically equal one of the impairments listed in 20 C.F.R. Pt. 4O4(p). (Id.). The ALJ concluded that she retained the residual functional capacity ("RFC") to perform light work as defined in 20 C.F.R. § 404.1567(b) except that she can only tolerate occasional exposure to dust, odors, fumes, and pulmonary irritants. (Id. at 19). At step four, the ALJ determined that she could return to her past relevant work as generally performed. (Id. at 25). Given his determination at step four, the ALJ did not render a determination at step five.

         The Appeals Council denied review on May 2, 2018. (Tr. 1-7). Therefore, the ALJ's decision is the Commissioner's final decision and is properly before the Court for review. Higginbotham v. Barnhart, 405 F.3d 332, 334 (5th Cir. 2005) ("[T]he Commissioner's 'final decision' includes the Appeals Council's denial of [a claimant's] request for review.").

         II. FACTUAL BACKGROUND

         According to Plaintiffs pleadings, testimony at the administrative hearing, and administrative record, she was 55 years old on the alleged disability onset date of September 29, 2011, and 60 years old at the time of the administrative hearing. (ECF No. 14 at 3; Tr. 14). She completed high school, and her employment history includes work as an "Office Manager/Reception/Custome [sic]." (Tr. 178). Plaintiff asserts that her physical impairments render her disabled under the SSA. \

         III. LEGAL STANDARD

         Title II, 42 U.S.C. § 404 et seq., of the SSA governs the disability insurance program in addition to numerous regulations concerning disability insurance. See 20 C.F.R. Pt. 404. The SSA defines a disability as a "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" that prevents the claimant from engaging in substantial gainful activity. 42 U.S.C. § 423(d); McQueen v. Apfel, 168 F.3d 152, 154 (5th Cir. 1999).

         To determine whether a claimant is disabled and thus entitled to disability benefits, the Commissioner employs a sequential five-step analysis. 20 C.F.R. § 404.1520. First, the claimant must not be presently working at any substantial gainful activity. 20 C.F.R. § 4O4.l52O(a)(4)(i). "Substantial gainful activity" means work activity involving the use of significant physical or mental abilities for pay or profit. Masterson v. Barnhart, 309 F.3d 267, 271 n.2 (5th Cir. 2002). Second, the claimant must have an impairment or combination of impairments that is severe. 20 C.F.R. § 404.1520(c); see Stone v. Heckler, 752 F.2d 1099, 1100-03 (5th Cir. 1985). Third, disability exists if the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments ("Listing"), 20 C.F.R. Pt. 404, Subpt. P, App. 1. 20 C.F.R. § 404.1520(d). Fourth, if the claimant's medical status alone does not constitute a disability, the impairment or impairments must prevent the claimant from returning to her past relevant work. 20 C.F.R. § 404.1520(e). Fifth, the impairment must prevent the claimant from doing any work, considering the claimant's RFC, age, education, and past work experience. Crowley v. Apfel, 197 F.3d 194, 197-98 (5th Cir. 1999); 20 C.F.R. § 404.1520(g). "The claimant bears the burden of showing that [she] is disabled through the first four steps of the analysis; on the fifth, the Commissioner must show that there is other substantial work in the national economy that the claimant can perform." Audler v. Astrue, 501 F.3d 446, 448 (5th Cir. 2007). Before proceeding to steps four and five, the Commissioner must assess a claimant's RFC- "the most [a claimant] can still do despite [her] limitations." Perez v. Barnhart, 415 F.3d 457, 461-62 (5th Cir. 2005); 20 C.F.R. § 416.945(a)(1).

         The Court's decision is limited to a determination of whether the Commissioner applied the correct legal standards and whether substantial evidence in the record supports the decision. Leggett v. Chafer, 67 F.3d 558, 564 (5th Cir. 1995); Hollis v. Bowen, 837 F.2d 1378, 1382 (5th Cir. 1988). "Substantial evidence is such relevant evidence as a responsible mind might accept to support a conclusion." Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001). "It is more than a mere scintilla and less than a preponderance." Id. "A finding of no substantial evidence is appropriate only if no credible evidentiary choices or medical findings support the decision." Id. The Court may neither reweigh the evidence in the record nor substitute its judgment for the Commissioner's, but it will scrutinize the record to determine if evidence is present. Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000); Hollis, 837 F.2d at 1383. "Conflicts in the evidence are for the Commissioner and not the courts to resolve." Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000) (quoting Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990)).

         IV. ANALYSIS

         Plaintiff argues that the ALJ's decision must be reversed because he made an impermissible "as generally performed" determination in step four of his analysis even though Plaintiffs past relevant work ("PRW") as an office manager/document billing clerk was a composite job. (ECF No. 14 at 2).

         A. Plaintiff's PRW as an Office Manager/Billing Clerk was a Composite Job.

         Plaintiff argues that "[t]here is no question" that her PRW was a composite job. (ECF No. 14 at 6). Plaintiff claims that "[e]veryone, including [herself], the State Agency disability adjudicator, the VE, the ALJ, and the AC, characterized [her] past work as involving more than one job." (Id.). In response, the Commissioner argues that "the vocational expert and the ALJ both stated that [Plaintiff] performed two separate jobs (Tr. 26, 51), and not a composite job." (ECF No. 15 at 7). In her Reply, Plaintiff reiterates that her PRW as office manager/billing clerk constituted a composite job. (ECF No. 16 at 2-4).

         A composite job has significant elements of two or more occupations and, consequently, has no counterpart in the Dictionary of Occupational Titles ("DOT"). See SSR 82-61, 1982 WL 31387 at *2 (eff Aug. 20, 1980). Here, Plaintiffs past work included a position as an "Office Manager/Reception/Custome [sic]" for a hide-shipping company. (Tr. 37-38; Tr. 178). At the administrative hearing, the ALJ questioned Plaintiff about her PRW and referred to her job as an "office manager/receptionist." (Tr. 37). Plaintiff testified that she "had many duties" during her PRW, including "preparation] [of] letters of credit to the banks." (Id.). Likewise, the state agency adjudicator listed Plaintiffs PRW as "OFFICE MANAGER/RECEPTION/CUSTO [sic]" (Tr. 80). The VE classified her PRW as involving "two different type jobs," "office manager" and "documentation billing clerk," both of which qualified as sedentary (Tr. 51).

         Based upon the evidence in the record, the undersigned finds that Plaintiffs PRW was a composite job because it involved significant elements of the two different occupations of office manager and documentation billing clerk. Plaintiff did not merely perform one of these jobs or one more than the other. When she worked for the hide-shipping company, her duties required her to accomplish the responsibilities of both office manager and documentation billing clerk. For instance, she "prepared letters of credit to the banks;" "set up the trucking;" "prepare[d] all the documents which is health certificates, bill of lading and et cetera;" prepared bank documentation; and managed customer accounts. This substantial evidence supports a finding that Plaintiff s PRW was a composite job.

         B. The ALJ Erred at Step Four of the Sequential Evaluation Process when He Determined that Plaintiff Could Return to her PRW "as Generally Performed."

         Plaintiff argues that because her prior work was a composite job, Social Security Administration policy required the ALJ to not evaluate her PRW "as generally performed in the national economy." (ECF No. 16 at 4). Consequently, Plaintiff asserts that the ALJ violated Program Operations Manual System ("POMS") DI 25005.020(B) because he should not have evaluated her PRW "at the part of step 4 considering work 'as generally performed in the national economy.'" (Id. at 4-5 (citing POMS DI 25005.020(B), 2011 WL 4753471 (eff Apr. 13, 2017))). In support of this argument, Plaintiff cites SSR 13-2P, which states "[a]lthough SSRs do not have the same force and effect as statutes or regulations, they are binding on all of our components." 20 C.F.R. 402.35(b)(1). SSR 13-2P also requires "adjudicators at all levels of administrative review to follow agency policy, as set out in the Commissioner's regulations, such as the . . . POMS . . . ." SSR 13-2P, 2013 WL 621536 at *15.

         The Commissioner asserts that the ALJ properly relied upon the VE's testimony that Plaintiff could generally perform her PRW as an office manager and documentation billing clerk. (ECF No. 15 at 7). To support this conclusion, the Commissioner explains that Plaintiff "actually performed" "[t]he office manager and documentation billing clerk" jobs, and that these jobs "do not constitute a blend of tasks from several different occupations." (Id. at 8). The Commissioner argues that "the ALJ did not divide Plaintiffs past relevant job requirements and considered only the least demanding job in finding she could perform her [PRW]." (Id.). The Commissioner also asserts that even if Plaintiff s PRW is a composite job, the ALJ did not have to adhere to POMS because it has no legal effect or force. (Id. at 10 citing Schweiker v. Hansen, 450 U.S. 785, 789 (1981) (per curiam), Greenspan v. Shalala, 38 F.3d 232, 239 (5th Cir. 1994), and Hickman v. Bowen, 803 F.2d 1377, 1380-81 n.6 (5th Cir. 1986)). Therefore, the Commissioner argues that the ALJ did not commit error at step four. (Id. at 4-8).

         "In disability determinations and decisions made at step four of the sequential evaluation process outlined in 20 CFR 404.1520, and at which the individual's ability to do past relevant work must be considered, Social Security Administration Rulings require the ALJ's analysis to consist of three distinct findings." Piccolella v. Astrue, No. 3:09-CV-696-M, 2010 WL 1051045, at *8-9 (N.D. Tex. Mar. 18, 2010) (citing SSR 82-62, 1982 WL 31386 at *3 (eff Aug. 20, 1980)). "The ALJ must first evaluate a claimant's RFC in light of the claimant's physical and/or mental limitations." Id. "Next, the ALJ must determine the physical and mental demands of the claimant's past relevant work." Id. ...


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