United States District Court, N.D. Texas, Dallas Division
DEVIRRIE U. W., Plaintiff,
ANDREW SAUL, Commissioner of the Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
REBECCA RUTHERFORD, UNITED STATES MAGISTRATE JUDGE.
Devirrie U. W. filed a civil action seeking judicial
review pursuant to 42 U.S.C. § 405(g) of a final adverse
decision by the Commissioner of Social Security. For the
reasons explained below, the Commissioner’s decision is
REVERSED and REMANDED.
alleges that she is disabled due to several physical
impairments, including hypertension, hypotension, muscle
weakness in the legs, bilateral hand pain, Sjogren’s
syndrome, hip pain, rheumatoid arthritis, pain and numbness
in the upper extremities, COPD, abdominal pain, neck pain,
and low back pain. Pl.’s Br. 3-4 (ECF No. 15);
Administrative Record 60 (“A.R.”) (ECF No. 12-1).
She alleges disability beginning January 22, 2016. A.R. 11.
After her applications for disability insurance benefits and
supplemental security income were denied initially, and on
reconsideration, Plaintiff requested a hearing before an
administrative law judge (“ALJ”). That hearing
took place in Dallas, Texas, on October 23, 2017. A.R. 55. At
the time of the hearing, Plaintiff was 59 years old.
Id. at 62. She turned 60 on January 15, 2018.
See Id . She has a high school education, can
communicate in English, and has past work experience as a
bartender and as a certified nurse assistant
(“CNA”). Id. at 79.
issued his written decision on January 16, 2018. Id.
at 20. The ALJ found that Plaintiff was not disabled and,
therefore, not entitled to disability insurance benefits or
supplemental security income. Id. at 19. At step one
of the five-step sequential evaluation,  the ALJ found
Plaintiff had not engaged in substantial gainful activity
since January 22, 2016. Id. at 13. At steps two and
three, the ALJ found that Plaintiff had the severe
impairments of history of a left hip replacement, back pain,
COPD, and essential hypertension; nonetheless, the ALJ found
that her impairments, or combination of impairments, did not
meet or equal the severity of any listed impairment in the
social security regulations. Id. at 14-15. At step
four, the ALJ found Plaintiff had the residual functional
capacity (“RFC”) to perform light work, except
that she can only “lift and carry 20 pounds
occasionally and 10 pounds frequently, stand and walk 6 hours
in an 8-hour workday, sit 6 hours in an 8-hour
workday.” Id. at 15. At step five, relying on
the testimony of a vocational expert (“VE”), the
ALJ found that Plaintiff could work as a companion (at an SVP
of 3) or a blind aide (also at an SVP of 3)-jobs that exist
in significant numbers in the national economy. Id.
appealed the ALJ’s decision to the Appeals Council. The
Council denied Plaintiff’s request for review.
Id. at 1. Plaintiff then filed this action in
federal district court, arguing that the ALJ erred in finding
her not disabled because he erroneously assumed
Plaintiff’s ability to dress, bathe, and maintain the
hygiene of others constitute “skills, ” and even
if those abilities are skills the ALJ failed to established
they would transfer to other work with “very little, if
any, ” vocational adjustment. Pl.’s Br. 7; 14. As
a result, Plaintiff contends that the denial of benefits
constitutes legal error and is contrary to substantial
evidence. Id. at 1.
“review of Social Security disability cases ‘is
limited to two inquiries: (1) whether the decision is
supported by substantial evidence on the record as a whole,
and (2) whether the Commissioner applied the proper legal
standard.’” Copeland, 771 F.3d at 923
(quoting Perez v. Barnhart, 415 F.3d 457, 461 (5th
Cir. 2005)); see also Ripley v. Chater, 67 F.3d 552,
555 (5th Cir. 1995) (citation omitted). Substantial evidence
is “more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales,
402 U.S. 389, 401 (1971) (internal quotation marks and
citation omitted); see also Copeland, 771 F.3d at
923 (“Substantial evidence is ‘more than a mere
scintilla and less than a preponderance.’”)
(quoting Perez, 415 F.3d at 461). The Commissioner,
and not the courts, resolves conflicts in the evidence;
thereafter, the Court may not “reweigh the evidence or
try the issues de novo.” Martinez v. Chater,
64 F.3d 172, 174 (5th Cir. 1995) (per curiam) (citing
Cook v. Heckler, 750 F.2d 391, 392-93 (5th Cir.
1985); Patton v. Schweiker, 697 F.2d 590, 592 (5th
Cir. 1983) (per curiam)). Accordingly, the Court may not
substitute its own judgment for the Commissioner’s, and
it may affirm only on the grounds that the Commissioner
stated to support his decision. Copeland, 771 F.3d
at 923 (citing Cole v. Barnhart, 288 F.3d 149, 151
(5th Cir. 2002) (per curiam)).
determined that Plaintiff is not disabled because, given her
age, education, work experience, and residual functional
capacity, she had acquired skills from her past relevant work
as a CNA that are transferable to other occupations with jobs
existing in significant numbers in the national economy-
namely, the jobs of companion and blind aide. A.R. 18-19.
More specifically, the ALJ found, based on VE testimony, that
Plaintiff acquired the following transferrable work skills:
“assisting patients, . . . assuring [patient] comfort,
laundry, bathing, hygiene assistance, and dressing.”
Id. Plaintiff argues that the ALJ erroneously
assumed she acquired work skills in her past work as a CNA.
Pl.’s Br. 7-14. According to Plaintiff, the activities
identified by the VE do not constitute “skills”
because they are merely tasks that do not provide a special
advantage over unskilled workers. Id. at 9.
Alternatively, to the extent that Plaintiff did acquire
skills, she argues that the ALJ failed to demonstrate that
those skills would transfer to other work with “very
little, if any, vocational adjustment”-the legal
standard required given Plaintiff’s age at the time of
the ALJ’s decision. Id. at 19. As a result of
these alleged errors, Plaintiff contends that the ALJ’s
decision is not supported by substantial evidence and remand
is required. Id.
for the purposes of this decision that the activities
identified by the VE constitute skills for purposes of the
social security regulations, the Court agrees that the
ALJ’s failure to acknowledge that a heightened standard
of skill transferability applies to Plaintiff due to her age
constitutes error. Further because the record is devoid of
any indication that the ALJ considered whether Plaintiff
could perform the companion and blind aide jobs with very
little, if any, vocational adjustment, the Court concludes
that the ALJ applied the wrong legal standard and the
ALJ’s decision is not supported by substantial
evidence. Therefore, remand is required.
fifth step in the disability evaluation process, the ALJ
considers the claimant’s age as a relevant vocational
factor. See 20 C.F.R. § 404.1563. Based on the
claimant’s age, she is placed in a category. See Id
. § 404.1563(c)-(e). A person aged 60 or older is
considered part of the “closely approaching retirement
age” category. 20 C.F.R. § 404.1563(e). There are
special rules under the regulations that apply when a
claimant falls in this category. Id. For example, if
an individual is closely approaching retirement age and has
severe impairments that limit her to no more than light work,
her skills are only transferable to skilled or semiskilled
light work if the light work is so similar to her previous
work that she would need to make “very little, if any,
vocational adjustment.” 20 C.F.R. §404.1568(d)(4).
An occupation with an SVP of three is semiskilled work. SSR
00-4P, 2000 WL 1898704 (Dec. 4, 2000).
the issue of skills and their transferability must be
decided, the ALJ must make certain findings and include them
in the written decision such that the basis for the decision
is “clearly establish[ed].” SSR 82-41, 1982 WL
31389, at *7 (Jan. 1, 1982). Moreover, when a claimant falls
within the “closely approaching retirement age”
category, the ALJ must, at the very least, acknowledge the
applicability of the heightened standard for vocational
adjustment. Gallegos v. Berryhill, 2018 WL 1069585,
at *7 (S.D. Tex. Jan 22, 2018) rec. adopted, 2018 WL
1035717 (S.D. Tex. Feb. 23, 2018); Webster v.
Barnhart, 187 F. App’x 857, 860-61 (10th Cir.
2006). See also Homer v Astrue, 2011 WL 824690, at
*9 (N.D. Tex. Feb. 17, 2011) (recommending reversal and
remand, in part, because ALJ failed to properly elicit VE
testimony regarding vocational adjustment where it was
relevant) rec. adopted, 2011 WL 781887, at *1 (N.D.
Tex. Mar. 7, 2011); Abbot v. Astrue, 391 F.
App’x 554, 558 (7th Cir. 2010) (remanding because ALJ
failed to identify claimant’s work skills and explain
vocational adjustment required); Renner v. Heckler,
786 F.2d 1421, 1424 (9th Cir. 1986) (“The ALJ must
either make a finding of ‘very little vocational
adjustment’ or otherwise acknowledge that a more
stringent test is being applied which takes into
consideration [the claimant’s] age.”)
Plaintiff’s insured status will expire in December
2020. A.R. 13. The ALJ rendered his decision on January 16,
2018. Id. at 20. Because Plaintiff’s last date
insured had not yet passed on the date the ALJ rendered his
decision, the relevant date for determining Plaintiff’s
age is January 16, 2018.See Manning, 2014 WL 266417,
at *3. Plaintiff turned 60 years old just the day before-on
January 15, 2018. See A.R. 62. Plaintiff is
therefore 60 years old for the purpose of applying the
regulations and is a member of the “closely approaching
retirement age” category. Moreover, the jobs the ALJ
proposes that Plaintiff can do- companion or blind aide-are
classified as semiskilled requiring light work. See Id
. at 19. Because Plaintiff is closely approaching
retirement age, and the ...