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Taylor v. Saul

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

September 25, 2019

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

          ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDG

          REED O'CONNOR, UNITED STATES DISTRICT JUDGE.

         Plaintiff filed this action on September 15, 2019, seeking judicial review of a final adverse decision of the Commissioner of Social Security (“Commissioner”), who denied her application for a period of disability and disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 405(g). See Compl., ECF No. 1. The Commissioner has filed an answer, see Answer, ECF No. 10, and a certified copy of the transcript of the administrative proceedings, see SSA Admin. R. (hereinafter, “Tr.”), ECF No. 12, including the hearing before the Administrative Law Judge (“ALJ”). The parties have briefed the issues. See Pl.’s Br., ECF No. 14; Def.’s Br., ECF No. 15; Pl.’s Reply, ECF No. 16. Pursuant to 28 U.S.C. § 636(b), the case was referred to United States Magistrate Judge Hal R. Ray, Jr., for review and submission of proposed findings of fact and recommendation for disposition. On September 6, 2019, the United States Magistrate Judge filed his Findings, Conclusions and Recommendation (“Report”), recommending that the Court reverse the final decision of the Commissioner and remand the action for further proceedings. Report, ECF No. 17. Defendant filed timely objections to the Report on September 13, 2019. Objections, ECF No. 19. Plaintiff filed a response to Defendant’s objections. Rep., ECF No. 20.

         For the reasons that follow, the Court accepts the Report after reviewing all relevant matters of record, including the pleadings, legal briefing, transcript of the administrative record, Report, the filed objections, and the Response, in accordance with 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b)(3).

         I. BACKGROUND

         Plaintiff alleges disability based on asthma, obesity, lumbar spondylolisthesis, hypertension, and obstructive sleep apnea. Tr. 17. After her application for disability insurance benefits was denied initially and on reconsideration, Plaintiff requested a hearing before an ALJ. Tr. 14. That hearing was held on January 3, 2017, in Fort Worth, Texas. Id. At the time of the hearing Plaintiff was sixty years old. She completed high school and one year of college, and she had past relevant work experience as an “Office Manager/Reception/Custome [sic].” Tr. 178. The ALJ found that Plaintiff was not disabled and, therefore, not entitled to disability insurance benefits. At step one of the five-step sequential process, [2] the ALJ found that Plaintiff had not engaged in substantial gainful activity since September 29, 2011, the alleged onset date. Tr. 17. At step two, the ALJ determined that Plaintiff had 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 an impairment listed in the social security regulations. Id. At step four, the ALJ concluded that Plaintiff retained the residual functional capacity (“RFC”)[3] to perform light work as defined in 20 C.F.R. 404.1567(b) with specified limitations, that Plaintiff was capable of performing past relevant work (“PRW”)[4] as an office manager and a documentation billing clerk, and that this work did not require the performance of work-related activities precluded by Plaintiff’s residual functional capacity. Tr. 19-25. Due to his determination at step four, that Plaintiff could return to her PRW as generally performed, the ALJ did not render a determination at step five. Tr. 26.

         Plaintiff appealed the ALJ’s decision to the Appeals Council, and the Council affirmed the ALJ’s decision on May 2, 2018. Tr. 6-7. Plaintiff then filed this action in federal district court and argues that both the ALJ and Appeals Council violated Social Security Administration (“SSA”) policy by using “as generally performed” as the standard in their step four determination despite the fact that Plaintiff’s PRW was a composite job. Plaintiff contends that remand is required for a proper vocational finding free of legal error.

         On September 6, 2019, the magistrate judge issued his Report accepting Plaintiff’s arguments that the ALJ committed legal error at step four when he determined that Plaintiff could return to her PRW “as generally performed, ” and recommending the Court reverse the Commissioner’s decision and remand the action for further proceedings. The magistrate judge found that Plaintiff’s PRW was a composite job, that the ALJ committed legal error at step four “when he determined that Plaintiff could return to her PRW ‘as generally performed’” even though he consulted a vocational expert, and that Plaintiff did not waive the error by not cross-examining the vocational expert on this topic. Report 5-6, 8, 11, ECF No. 17.

         On September 13, 2019 the Commissioner filed objections to the Report. See ECF No. 19. Plaintiff filed a response to the Commissioner’s objections on September 17, 2019. See ECF No. 20.

         II. LEGAL STANDARD

         The Court conducts a de novo review of the portions of the Report to which a party objects. Anything that the Commissioner did not specifically object to is reviewed for plain error. To be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge’s report and recommendation where the disputed determination is found. An objection that merely incorporates by reference, or refers to, the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1).

         Judicial review in social security cases is limited to determining whether the Commissioner’s decision is supported by substantial evidence on the record as a whole and whether the Commissioner applied the proper legal standards to evaluate the evidence. See 42 U.S.C. § 405(g); Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014) (citation omitted); Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995); Austin v. Shalala, 994 F.2d 1170, 1174 (5th Cir. 1993). “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); Richardson v. Perales, 402 U.S. 389, 401 (1977); accord Copeland, 771 F.3d at 923. It is more than a scintilla, but less than a preponderance. Boyd, 239 F.3d at 704; Perales, 402 U.S. at 401; Haywood v. Sullivan, 888 F.2d 1463, 1466 (5th Cir. 1989). The district court may not reweigh the evidence or substitute its own judgment for that of the Commissioner. Copeland, 771 F.3d at 923; Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000); Johnson v. Bowen, 864 F.2d 340, 343 (5th Cir. 1988). The Court must scrutinize the record, however, to ascertain whether substantial evidence supports the Commissioner’s findings. Hollis v. Bowen, 837, F.2d 1378, 1383 (5th Cir. 1988). “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) (citation omitted). A finding of no substantial evidence is appropriate only when there is no medical evidence or credible evidentiary choices in the record to support the Commissioner’s decision. Johnson, 864 F.2d at 343-44.

         A disabled worker is entitled to monthly benefits under the Social Security Act if certain conditions are met. 42 U.S.C. § 423(a). The Act defines “disability” as the inability to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or last for a continued period of twelve months. Id. § 423(d)(1)(A); see also Copeland, 771 F.3d at 923; Cook v. Heckler, 750 F.2d 391, 393 (5th Cir. 1985). To determine whether a claimant is disabled and thus entitled to disability benefits, the Commissioner employs a sequential five-step analysis. See n.2.

         III. ANALYSIS

         Defendant objects to the magistrate judge’s findings and conclusion that Plaintiff’s PRW as an office manager and documentation billing clerk was a composite job, and thereby, under the Program Operations Manual System (“POMS”), necessitated the standard of “as usually performed” rather than “as generally performed” when making a determination under step four of the five-step sequential process. After conducting a de novo review of the issues raised in the Commissioner’s objections, as required by 28 U.S.C. § 636(b)(1) and Rule 72(b)(3), the Court determines that the magistrate judge’s findings and conclusions are correct and accepts ...


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