United States District Court, N.D. Texas, Fort Worth Division
DEBORAH T. , Plaintiff,
ANDREW M. SAUL, Commissioner of Social Security , Defendant.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Ray, Jr. UNITED STATES MAGISTRATE JUDGE
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.
STATEMENT OF THE CASE
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).
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.
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.").
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. \
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).
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).
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.
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).
Plaintiff's PRW as an Office Manager/Billing Clerk was a
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).
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).
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.
The ALJ Erred at Step Four of the Sequential Evaluation
Process when He Determined that Plaintiff Could Return to her
PRW "as Generally Performed."
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.
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).
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.