United States District Court, N.D. Texas, Fort Worth Division
DEBORAH L. TAYLOR, Plaintiff,
ANDREW M. SAUL, Commissioner of Social Security, Defendant.
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDG
O'CONNOR, UNITED STATES DISTRICT JUDGE.
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.
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).
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,  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”) 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”) 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.
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.
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.
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.
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.
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.
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.
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 ...