Diers v. Commissioner of Social Security
MEMORANDUM AND OPINION.The Commissioner's final decision denying plaintiff's application for disability benefits is REVERSED and REMANDED to the Commissioner for rehearing and reconsideration of the evidence, pursuant to sentence four of 42 U.S.C. § 405(g).The Clerk of Court is directed to enter judgment in favor of plaintiff. Signed by Magistrate Judge Clifford J. Proud on 1/17/2019.(anb2)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KIMBERLY L. D., 1
COMMISSIONER OF SOCIAL
Civil No. 18-cv-00890-CJP 2
MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff seeks judicial review of the
final agency decision denying her application for Disability Insurance Benefits (DIB)
pursuant to 42 U.S.C. § 423.
Plaintiff applied for benefits in January 2015, alleging disability beginning on
November 26, 2014. After holding an evidentiary hearing, ALJ George M. Bock
denied the application on June 23, 2017.
The Appeals Council
denied review, and the decision of the ALJ became the final agency decision. (Tr.
1). Administrative remedies have been exhausted and a timely complaint was filed
In keeping with the court’s recently adopted practice, plaintiff’s full name will not be used in this
Memorandum and Order due to privacy concerns. See, Fed. R. Civ. P. 5.2(c) and the Advisory
Committee Notes thereto.
This case was assigned to the undersigned for final disposition upon consent of the parties
pursuant to 28 U.S.C. §636(c). See, Doc. 17.
in this Court.
Issue Raised by Plaintiff
Plaintiff raises the following issue:
Whether the ALJ erred in finding plaintiff was able to return to a
composite past job as generally performed.
Applicable Legal Standards
To qualify for DIB, a claimant must be disabled within the meaning of the
applicable statutes. In this context, “disabled” means the “inability to engage in
any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than 12 months.” 42
U.S.C. § 423(d)(1)(A).
A “physical or mental impairment” is an impairment resulting from
anatomical, physiological, or psychological abnormalities which are demonstrable
by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. §
“Substantial gainful activity” is work activity that involves doing
significant physical or mental activities, and that is done for pay or profit. 20
C.F.R. § 404.1572.
Social Security regulations set forth a sequential five-step inquiry to
determine whether a claimant is disabled. The Seventh Circuit Court of Appeals
has explained this process as follows:
The first step considers whether the applicant is engaging in
substantial gainful activity. The second step evaluates whether an
alleged physical or mental impairment is severe, medically
determinable, and meets a durational requirement. The third step
compares the impairment to a list of impairments that are considered
conclusively disabling. If the impairment meets or equals one of the
listed impairments, then the applicant is considered disabled; if the
impairment does not meet or equal a listed impairment, then the
evaluation continues. The fourth step assesses an applicant's residual
functional capacity (RFC) and ability to engage in past relevant work. If
an applicant can engage in past relevant work, he is not disabled. The
fifth step assesses the applicant's RFC, as well as his age, education,
and work experience to determine whether the applicant can engage in
other work. If the applicant can engage in other work, he is not
Weatherbee v. Astrue, 649 F.3d 565, 568-569 (7th Cir. 2011).
Stated another way, it must be determined: (1) whether the claimant is
presently unemployed; (2) whether the claimant has an impairment or combination
of impairments that is serious; (3) whether the impairments meet or equal one of
the listed impairments acknowledged to be conclusively disabling; (4) whether the
claimant can perform past relevant work; and (5) whether the claimant is capable of
performing any work within the economy, given his or her age, education and work
experience. 20 C.F.R. § 404.1520; Simila v. Astrue, 573 F.3d 503, 512-513 (7th
If the answer at steps one and two is “yes,” the claimant will automatically be
found disabled if he or she suffers from a listed impairment, determined at step
three. If the claimant does not have a listed impairment at step three and cannot
perform his or her past work (step four), the burden shifts to the Commissioner at
step five to show that the claimant can perform some other job. Rhoderick v.
Heckler, 737 F.2d 714, 715 (7th Cir. 1984). See also Zurawski v. Halter, 245
F.3d 881, 886 (7th Cir. 2001) (Under the five-step evaluation, an “affirmative
answer leads either to the next step, or, on Steps 3 and 5, to a finding that the
claimant is disabled…. If a claimant reaches step 5, the burden shifts to the ALJ to
establish that the claimant is capable of performing work in the national
This Court reviews the Commissioner’s decision to ensure that the decision
is supported by substantial evidence and that no mistakes of law were made. It is
important to recognize that the scope of review is limited. “The findings of the
Commissioner of Social Security as to any fact, if supported by substantial
evidence, shall be conclusive. . . .” 42 U.S.C. § 405(g). Thus, this Court must
determine not whether plaintiff was, in fact, disabled at the relevant time, but
whether the ALJ’s findings were supported by substantial evidence and whether
any errors of law were made. Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539
(7th Cir. 2003).
This Court uses the Supreme Court’s definition of substantial
evidence, i.e., “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
In reviewing for “substantial evidence,” the entire administrative record is
taken into consideration, but this Court does not reweigh evidence, resolve
conflicts, decide questions of credibility, or substitute its own judgment for that of
the ALJ. Murphy v. Colvin, 759 F.3d 811, 815 (7th Cir. 2014). However, while
judicial review is deferential, it is not abject; this Court does not act as a rubber
stamp for the Commissioner. See, Parker v. Astrue, 597 F.3d 920, 921 (7th Cir.
2010), and cases cited therein.
The Decision of the ALJ
ALJ Bock followed the five-step analytical framework described above. He
determined that plaintiff had not been engaged in substantial gainful activity since
the alleged onset date and that plaintiff was insured for DIB only through December
The ALJ found that plaintiff had severe impairments of history of
bilateral rotator cuff tears, status-post repair, and degenerative disc disease of the
He further determined that these impairments do not meet or
equal a listed impairment.
The ALJ found that plaintiff had the residual functional capacity (RFC) to
perform light work. Among other limitations, she cannot work overhead or reach
above shoulder level, bilaterally.
Based on the testimony of a vocational expert, the ALJ found that plaintiff
was not disabled because she was able to do her past relevant work as a fast food
manager as that job is generally performed in the national economy.
The Evidentiary Record
The Court has reviewed and considered the entire evidentiary record in
formulating this Memorandum and Order. In view of plaintiff’s arguments, the
Court will omit a discussion of the medical evidence.
In a written report submitted in January 2015, plaintiff detailed her past job
as a manager at McDonald’s. (Tr. 165-166). In that job, plaintiff supervised the
crew, but also prepared food, bagged food, prepared coffee, served customers,
cleaned the restaurant, counted money, surveyed wasted food, and picked up
money from the bank.
Plaintiff later completed a development
questionnaire in which she stated she “managed and worked side by side with
crew.” (Tr. 230).
Plaintiff was represented by an attorney at the evidentiary hearing in June
2017. (Tr. 30).
Plaintiff testified that she worked as a manager at McDonald’s in Cahokia,
Illinois from 2001 to November 2014. 3 (Tr. 33). As plaintiff detailed, she not
only supervised the crew, but also worked with them, addressing problems in food
production and service.
Plaintiff referred to these problem areas as “danger
zones.” Plaintiff stated, “wherever the danger zone was, that’s where I had to go
and work. And it didn’t matter if it was the grill area, the kitchen, putting meat on
the grill, backing up front counter, working the drive-through.
I had to go
wherever the problem was.” (Tr. 43).
A vocational expert (VE) also testified. The VE classified plaintiff’s job at
McDonald’s as a Manager, Fast Food Services, DOT 185.137-010. He described
the performance of that job as light exertional. (Tr. 38).
The ALJ asked a hypothetical question which corresponded to the RFC
assessment. The VE testified plaintiff was able to do her past job as a fast food
manager as that job is generally performed. (Tr. 39).
Plaintiff’s counsel then asked a few questions of the VE. Counsel asked if it
The record is not clear on whether plaintiff began employment with McDonald’s as a manager in
1977, or if she moved her way up to that position. See Tr. 33, 43, 165, 230.
is common for fast food managers to participate in the activities they are
supervising. The VE responded that managers will do some counter work and
Counsel then asked if fast food managers
typically assist in cooking. The VE replied, “[n]ot traditionally if it’s a very fast
time.” The VE also stated, “[w]ell, if they’re managing the employees, that’s what
they’re doing is making sure the employees are doing the work they’re supposed to
be doing.” (Tr. 42).
After the hearing, plaintiff’s counsel wrote a letter to the ALJ. (Tr. 232-33).
In it, counsel stated that there were further questions that needed to be addressed
by the VE. Counsel argued that further questions were necessary in consideration
of plaintiff’s statement that she “worked side by side with the crew” and her
testimony that “she performed all of the duties required in the restaurant including
cooking, grilling, and cleaning.”
Counsel argued that the ALJ should submit
additional questions to the VE that included whether plaintiff’s past relevant work
as a manager at McDonald’s was part of a composite job where she also performed
the duties of a fast food cook. (Tr. 232). The ALJ did not respond to the letter or
discuss the issue in his decision. Plaintiff was 56 years old on the date of the ALJ’s
decision. (Tr. 23, 161).
The VE testified that plaintiff’s past job as a manager at McDonald’s fit under
the DOT description of Manager, Fast Food Services. ALJ Bock agreed with the
VE’s testimony in his decision.
The ALJ further found that plaintiff was not
disabled because she could perform the functions of her past work as a fast food
manager as that job is usually performed in the national economy.
contends that her manager job was a composite job, and the ALJ erred in finding
that she could perform her past job as it is usually performed.
According to the Dictionary of Occupational Titles, the job of Manager, Fast
Food Services (DOT 185.137-010) involves the following:
Manages franchised or independent fast food or wholesale prepared
food establishment: Directs, coordinates, and participates in
preparation of, and cooking, wrapping or packing types of food served
or prepared by establishment, collecting of monies from in-house or
take-out customers, or assembling food orders for wholesale
customers. Coordinates activities of workers engaged in keeping
business records, collecting and paying accounts, ordering or
purchasing supplies, and delivery of foodstuffs to wholesale or retail
customers. Interviews, hires, and trains personnel. May contact
prospective wholesale customers, such as mobile food vendors,
vending machine operators, bar and tavern owners, and institutional
personnel, to promote sale of prepared foods, such as doughnuts,
sandwiches, and specialty food items. May establish delivery routes
and schedules for supplying wholesale customers. Workers may be
known according to type or name of franchised establishment or type
of prepared foodstuff retailed or wholesaled.
The DOT classifies the job of Manager, Fast Food Services as light. Light
work requires lifting no more than 20 pounds, frequently carrying objects weighing
up to 10 pounds, and a good deal of walking or standing. 20 C.F.R. §404.1567(a).
The job of Cook, Fast Food (DOT 313.374-010) is medium, and has the
Prepares and cooks to order foods requiring short preparation time:
Reads food order slip or receives verbal instructions as to food
required by patron, and prepares and cooks food according to
instructions. Prepares sandwiches [SANDWICH MAKER (hotel & rest.)
317.664-010]. Prepares salads and slices meats and cheese, using
slicing machine, [PANTRY GOODS MAKER (hotel & rest.)
317.684-014]. Cleans work area and food preparation equipment. May
prepare beverages [COFFEE MAKER (hotel & rest.) 317.684-010].
May serve meals to patrons over counter.
In determining whether a claimant can perform the functional demands and
job duties of her past job, the “Dictionary of Occupational Titles (DOT)
descriptions can be relied upon--for jobs that are listed in the DOT--to define the job
as it is usually performed in the national economy.” SSR 82–61, 1982 WL 31387,
*2 (emphasis in original). However, “composite jobs have significant elements of
two or more occupations and, as such, have no counterpart in the DOT. Such
situations will be evaluated according to the particular facts of each individual
case.” Ibid. Under the agency’s Program Operations Manual, a composite job
may not be considered in determining whether the claimant can perform her past
job as it is generally performed in the economy.
POMS DI 25005.020,
https://secure.ssa.gov/apps10/poms.nsf/lnx/0425005020 (visited Jan. 15, 2019).
Plaintiff stated in her written report that her job as manager required that
she supervise the crew, count money, survey wasted food, and pick up money from
the bank. These functions are solely within the DOT description of Manager, Fast
Food Services. Her reports and testimony, however, primarily emphasize her
seemingly frequent work with the crew, going right into the danger zones that she
needed to address as manager for the store to run efficiently. Plaintiff prepared
food, bagged food, prepared coffee, served customers, and cleaned the restaurant.
(Tr. 166). As plaintiff stated in her testimony, “wherever the danger zone was,
that’s where I had to go and work. And it didn’t matter if it was the grill area, the
kitchen, putting meat on the grill, backing up front counter, working the
drive-through. I had to go wherever the problem was.” (Tr. 43).
The Commissioner argues that plaintiff’s job was not, in fact, a composite
Rather, plaintiff’s assertions merely reflect the duties of the DOT job
description for Manager, Fast Food Services. Yet this argument ignores plaintiff’s
reports and testimony about the requirements of her job as a manager at
McDonald’s. It seems evident that the job required plaintiff to perform functions
outside of the broad bounds of the Manager, Fast Food Services job description,
including preparing coffee and cleaning the store. Interestingly, those duties are
found in the Cook, Fast Food job description in the DOT.
Even ignoring these extraneous functions, the Commissioner appears to
consider overlapping duties of the two categories squarely as evidence that
plaintiff’s job was correctly viewed as Manager, Fast Food Services, when these
functions just as easily describe the Cook, Fast Food job. Obfuscating plaintiff’s
claim even further, the Commissioner next throws in a hefty helping of doubt about
the frequency with which plaintiff completed such tasks, calling into question their
significance. Despite this, plaintiff’s reports and testimony tend to indicate that
these tasks appeared to occur with some degree of regularity.
The Commissioner points out that the VE characterized plaintiff’s past job as
Manager, Fast Food Services, and not a composite job. The Commissioner argues
that plaintiff’s failure to point out a conflict with the DOT at the hearing precludes
her from relying on that conflict here. The ALJ is required to identify and obtain
an explanation for any conflicts between a VE’s testimony and information in the
DOT. SSR 00-4p, 2000 WL 1898704, *2. However, where plaintiff has failed to
identify a conflict at the hearing, she cannot demonstrate error unless the conflict
was “obvious enough that the ALJ should have picked up on [it] without any
assistance.” Terry v. Astrue, 580 F.3d 471, 478 (7th Cir. 2009), citing Overman v.
Astrue, 546 F.3d 456, 463 (7th Cir. 2008).
The Commissioner’s argument fails for two reasons. First, in the Court’s
view, the conflict between the VE’s testimony and the DOT was obvious, at least to a
person familiar with the DOT descriptions of the Manager, Fast Food Services job
and the Cook, Fast Food job. Secondly, plaintiff’s counsel did raise a question as
to whether the DOT description of Manager, Fast Food Services accurately
described plaintiff’s job.
At the hearing, plaintiff’s counsel asked the VE whether it is common for fast
food managers to participate in the activities they are supervising. The VE testified
that managers will do some counter work and supervise employees, but he did not
address the question fully. (Tr. 41). Counsel then asked if fast food managers
typically assist in cooking. The VE replied, “[n]ot traditionally if it’s a very fast
time.” When pressed, the VE explained, “if they’re managing the employees, that’s
what they’re doing is making sure the employees are doing the work they’re
supposed to be doing.” (Tr. 42).
Admittedly, counsel did not use the phrase “composite job.” Still, he did
raise the general issue of the DOT description of the Manager, Fast Food Services
job and plaintiff’s description of her job as a manager at McDonald’s. The obvious
conflict between the job as described in the DOT and the duties required of plaintiff
at McDonald’s was sufficient to alert the ALJ that the VE’s testimony conflicted with
the DOT. Additionally, counsel sent a letter to the ALJ further stating his point on
the issue to no avail.
The parties have not cited any Seventh Circuit cases that directly touch on the
composite job issue, and the Court’s own research has not identified any such
cases. Plaintiff and the Commissioner both cite a case from this Court holding that
a remand is appropriate where testimony during the hearing should have alerted
the ALJ that the claimant’s past work is made up of more than one job. Barnett v.
Colvin, 2014 WL 7450077, at *6-*7 (S.D. Ill. Dec. 30, 2014). Other courts in this
Circuit have come to a similar conclusion. See, e.g., Michalski v. Berryhill, No. 16
CV 1590, 2017 WL 4081905, at *5-*7 (E.D. Wis. Sept. 14, 2017); Cabaniss v.
Colvin, No. 13 CV 4244, 2014 WL 7450435, at *12 (N.D. Ill. Dec. 30, 2014); Lipke
v. Astrue, 575 F. Supp. 2d 970, 982–83 (W.D. Wis. 2007). The Court finds the
reasoning of these cases to be persuasive. Considering the questions raised by
plaintiff about the specific nature of the job she performed, and evidence showing
overlap in duties between two DOT jobs, it was incumbent for the ALJ to identify
the conflicts and resolve them before finding that plaintiff performed a particular
job. Simply put, if the plaintiff’s manager job was indeed a composite job, the ALJ
erred in finding at step four that plaintiff could do the job as it is usually performed.
The error at step four is case dispositive. Plaintiff was 56 years old on the
date of the ALJ’s decision. If she can do a full range of light work, but cannot do
her past relevant work, the Grids dictate that she is disabled unless she has
20 C.F.R. Part 404, Subpart P, Appendix 2, § 200.00(g);
Rules 201.12–201.16. 4 The VE identified some unskilled jobs that she could do,
but did not testify about whether she had transferrable skills. So, if she is unable
to do her past work, she may well be entitled to DIB.
The Court wishes to stress that this Memorandum and Order should not be
construed as an indication that the Court believes that plaintiff is disabled, or that
she should be awarded benefits. On the contrary, the Court has not formed any
opinions in that regard and leaves those issues to be determined by the
Commissioner after further proceedings.
The Commissioner’s final decision denying plaintiff’s application for
disability benefits is REVERSED and REMANDED to the Commissioner for
rehearing and reconsideration of the evidence, pursuant to sentence four of 42
U.S.C. § 405(g).
The Clerk of Court is directed to enter judgment in favor of plaintiff.
IT IS SO ORDERED.
January 17, 2019.
The Grids (20 C.F.R. Part 404, Subpart P, Appendix 2) are appropriate where the claimant has no
nonexertional limitations and has the RFC to do a full range of work at a specified exertional level. 20
C.F.R. Part 404, Subpart P, Appendix 2, § 200.00(e). See also, Haynes u. Barnhart, 416 F.3d 621,
628–629 (7th Cir. 2005).
s/ Clifford J. Proud
CLIFFORD J. PROUD
U.S. MAGISTRATE JUDGE
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