COMBS v. BERRYHILL

Filing 25

ENTRY REVIEWING THE COMMISSIONER'S DECISION - Plaintiff Earnestine Combs applied for disability insurance benefits and supplemental security income from the Social Security Administration ("SSA") on May 20, 2013, alleging an onset date of March 29, 2013. [Filing No. #14 -6 at 9-14.] Her applications were initially denied on July 5, 2013, [Filing No. #14 -4 at 4-21], and upon reconsideration on August 21, 2013, [Filing No. #14 -4 at 22-35]. Administrative Law Judge Hortensia Haaversen (the "ALJ") held a hearing on January 22, 2015, [Filing No. #14 -2 at 43-59], and issued a decision on April 6, 2015, concluding that Ms. Combs was not entitled to receive disability insurance benefits or supplemental security income, [Filing No. #14 -2 at 23-42]. The Appeals Council denied review on August 18, 2016. [Filing No. #14 -2 at 2-7.] On September 6, 2016, Ms. Combs timely filed this civil action, asking the Court to review the denial of benefits pursuant to 42 U.S.C. 405 (g) and 42 U.S.C. 1383(c). [Filing No. #1 .] Ms. Combs also filed a Motion to Strike, [Filing No. #23 ], which the Court will consider herein. For the reasons stated in this Entry, Ms. Combs' Motion to Strike, [Filing No. #23 ], is GRANTED. As such, the Court did not consider the 2013 Transcript in its decision herein and disregarded all references to the document in the party's respective briefs. However, "[t]he standard for disability claims under the Social Security Act is stringent." Williams-Overstreet v. Astrue, 364 F. App'x 271, 274 (7th Cir. 2010). "Even claimants with substantial impairments are not necessarily entitled to benefits, which are paid for by taxes, including taxes paid by those who work despite serious physical or mental impairments and for whom working is difficult and painful." Id. at 274. Taken together, the Court can find no legal basis presented by Ms. Combs to reverse the ALJ's decision that she was not disabled during the relevant time period. Therefore, the decision below is AFFIRMED. Final judgment shall issue accordingly. (See Entry). Signed by Judge Jane Magnus-Stinson on 6/26/2017. (APD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
EARNESTINE D. COMBS,
Plaintiff,
vs.
NANCY BERRYHILL, 1 Acting Commissioner
of the Social Security Administration,
Defendant.

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No. 1:16-cv-02386-JMS-TAB

ENTRY REVIEWING THE COMMISSIONER’S DECISION
Plaintiff Earnestine Combs applied for disability insurance benefits and supplemental
security income from the Social Security Administration (“SSA”) on May 20, 2013, alleging an
onset date of March 29, 2013. [Filing No. 14-6 at 9-14.] Her applications were initially denied
on July 5, 2013, [Filing No. 14-4 at 4-21], and upon reconsideration on August 21, 2013, [Filing
No. 14-4 at 22-35]. Administrative Law Judge Hortensia Haaversen (the “ALJ”) held a hearing
on January 22, 2015, [Filing No. 14-2 at 43-59], and issued a decision on April 6, 2015, concluding
that Ms. Combs was not entitled to receive disability insurance benefits or supplemental security
income, [Filing No. 14-2 at 23-42]. The Appeals Council denied review on August 18, 2016.
[Filing No. 14-2 at 2-7.] On September 6, 2016, Ms. Combs timely filed this civil action, asking
the Court to review the denial of benefits pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c).
[Filing No. 1.] Ms. Combs also filed a Motion to Strike, [Filing No. 23], which the Court will
consider herein.

1

The Court has substituted Nancy Berryhill as the proper Defendant in this action, given that she
became the Acting Commissioner of the Social Security Administration on January 23, 2017. See
“Meet Our New Acting Commissioner,” Social Security Administration Blog, available at
http://blog.ssa.gov/meet-our-new-acting-commissioner (last visited June 23, 2017).
1

I.
STANDARD OF REVIEW
“The Social Security Act authorizes payment of disability insurance benefits and
Supplemental Security Income to individuals with disabilities.” Barnhart v. Walton, 535 U.S. 212,
214 (2002). “The statutory definition of ‘disability’ has two parts. First, it requires a certain kind
of inability, namely, an inability to engage in any substantial gainful activity. Second, it requires
an impairment, namely, a physical or mental impairment, which provides reason for the inability.
The statute adds that the impairment must be one that has lasted or can be expected to last . . . not
less than 12 months.” Id. at 217.
When an applicant appeals an adverse benefits decision, this Court’s role is limited to
ensuring that the ALJ applied the correct legal standards and that substantial evidence exists for
the ALJ’s decision. Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004) (citation omitted). For
the purpose of judicial review, “[s]ubstantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Id. (quotation omitted). Because the
ALJ “is in the best position to determine the credibility of witnesses,” Craft v. Astrue, 539 F.3d
668, 678 (7th Cir. 2008), this Court must afford the ALJ’s credibility determination “considerable
deference,” overturning it only if it is “patently wrong,” Prochaska v. Barnhart, 454 F.3d 731, 738
(7th Cir. 2006) (quotations omitted).
The ALJ must apply the five-step inquiry set forth in 20 C.F.R. § 404.1520(a)(4)(i)-(v),
evaluating the following, in sequence:
(1) whether the claimant is currently [un]employed; (2) whether the claimant has
a severe impairment; (3) whether the claimant’s impairment meets or equals one
of the impairments listed by the [Commissioner]; (4) whether the claimant can
perform [his] past work; and (5) whether the claimant is capable of performing
work in the national economy.

2

Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000) (citations omitted) (alterations in original). “If
a claimant satisfies steps one, two, and three, [he] will automatically be found disabled. If a
claimant satisfies steps one and two, but not three, then [he] must satisfy step four. Once step four
is satisfied, the burden shifts to the SSA to establish that the claimant is capable of performing
work in the national economy.” Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995).
After Step Three, but before Step Four, the ALJ must determine a claimant’s residual
functional capacity (“RFC”) by evaluating “all limitations that arise from medically determinable
impairments, even those that are not severe.” Villano v. Astrue, 556 F.3d 558, 563 (7th Cir. 2009).
In doing so, the ALJ “may not dismiss a line of evidence contrary to the ruling.” Id. The ALJ
uses the RFC at Step Four to determine whether the claimant can perform his own past relevant
work and if not, at Step Five to determine whether the claimant can perform other work. See 20
C.F.R. § 416.920(e), (g). The burden of proof is on the claimant for Steps One through Four; only
at Step Five does the burden shift to the Commissioner. Clifford, 227 F.3d at 868.
If the ALJ committed no legal error and substantial evidence exists to support the ALJ’s
decision, the Court must affirm the denial of benefits. Barnett, 381 F.3d at 668. When an ALJ’s
decision is not supported by substantial evidence, a remand for further proceedings is typically the
appropriate remedy. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 355 (7th Cir. 2005). An
award of benefits “is appropriate only where all factual issues have been resolved and the record
can yield but one supportable conclusion.” Id. (citation omitted).

3

II.
BACKGROUND
Ms. Combs was fifty-four years old when she filed for disability insurance benefits and
supplemental security income.

[Filing No. 14-6 at 9-14.] 2

Using the five-step sequential

evaluation set forth by the SSA in 20 C.F.R. § 404.1520(a)(4), the ALJ issued an opinion on April
6, 2015, determining that Ms. Combs was not entitled to receive disability insurance benefits or
supplemental security income. [Filing No. 14-2 at 36.] The ALJ found as follows:
•

At Step One of the analysis, the ALJ found that Ms. Combs had not engaged in
substantial gainful activity 3 since March 29, 2013, the alleged onset date.
[Filing No. 14-2 at 29.]

•

At Step Two of the analysis, the ALJ found that Ms. Combs suffers from the
following severe impairment: hypertension. [Filing No. 14-2 at 29-31.]

•

At Step Three of the analysis, the ALJ found that Ms. Combs did not have an
impairment or combination of impairments that met or medically equaled the
severity of one of the listed impairments. [Filing No. 14-2 at 31.]

•

After Step Three but before Step Four, the ALJ found that Ms. Combs had the
RFC to perform the full range of light work as defined in 20 C.F.R. §
404.1567(b) and 20 C.F.R. § 416.967(b). [Filing No. 14-2 at 32-36.]

•

At Step Four of the analysis, the ALJ found that Ms. Combs is able to perform
past relevant work as a service clerk and a book distributor and that this work
does not require the performance of work-related activities precluded by her
RFC. [Filing No. 14-2 at 36.]

2

Both Ms. Combs and the Commissioner detailed pertinent facts in their briefs, and the opposing
party did not dispute those facts. [Filing No. 16; Filing No. 21.] Because those facts implicate
sensitive and otherwise confidential medical information concerning Ms. Combs, the Court will
simply incorporate those facts by reference herein. Specific facts will be articulated as needed.
3

Substantial gainful activity is defined as work activity that is both substantial (i.e., involves
significant physical or mental activities) and gainful (i.e., work that is usually done for pay or
profit, whether or not a profit is realized). 20 C.F.R. § 404.1572(a); 20 C.F.R. § 416.972(a).
4

III.
DISCUSSION
Several of Ms. Combs’ challenges to the ALJ’s decision involve a prior social security
application that was denied in March 2013, (the “2013 Decision”), and the transcript of the related
hearing, (the “2013 Transcript”). Specifically, Ms. Combs challenges the ALJ’s decision in the
present case on three grounds, arguing that: (1) the administrative record includes improper extrarecord evidence by including the 2013 Transcript, [Filing No. 16 at 7]; (2) the ALJ failed to
develop an adequate record or provide a full and fair hearing by failing to provide Ms. Combs with
a copy of the 2013 Decision and by ruling that it did not include relevant evidence, [Filing No. 16
at 7-10]; and (3) the ALJ’s findings at Step Four are not supported by substantial evidence, [Filing
No. 16 at 10-15]. In addition, Ms. Combs filed a Motion to Strike the 2013 Transcript from the
administrative record, and all references thereto from the Memorandum in support of the
Commissioner’s Decision. [Filing No. 23.]
A. Ms. Combs’ Motion to Strike [Filing No. 23]
At the outset, the Court will consider Ms. Comb’s Motion to Strike. [Filing No. 23.] In
support of her motion, Ms. Combs asserts that the 2013 Transcript was improperly included in the
administrative record that the Commissioner filed in this Court. [Filing No. 24 at 1-4.] In addition,
Ms. Combs highlights portions of the Commissioner’s reply brief wherein the Commissioner cites
to the 2013 Transcript. [Filing No. 24 at 2 (citing Filing No. 21 at 8; Filing No. 21 at 11).] Ms.
Combs argues that because there is no legal basis to consider the 2013 Transcript, “the Court
should order stricken the hearing transcript at issue and all references thereto in [the
Commissioner’s] Memorandum.” [Filing No. 24 at 5.]
The Commissioner did not respond to Ms. Comb’s Motion to Strike.

5

The Social Security Act provides that as part of her answer, “the Commissioner of Social
Security shall file a certified copy of the transcript of the record including the evidence upon which
the findings and decision complained of are based.” 42 U.S.C. § 405(g). Neither party alleges
that the ALJ considered or relied upon the 2013 Transcript in arriving at her decision in the present
case. There is also no reference to the 2013 Transcript in the ALJ’s list of exhibits attached to her
opinion. [Filing No. 14-2 at 37-42.] As such, the 2013 Transcript is not properly part of the record
upon which the ALJ’s findings and decision are based and should not have been filed with the
Commissioner’s answer pursuant to 42 U.S.C. §405(g). Accordingly, Ms. Combs’ Motion to
Strike, [Filing No. 23], is GRANTED. The Court will not consider the 2013 Transcript, and will
disregard references to the document in Ms. Combs’ 4 and the Commissioner’s briefs.
B. Failure to Develop an Adequate Record or Provide a Full and Fair Hearing
Having granted Ms. Combs’ Motion to Strike, [Filing No. 23], the Court will not consider
her argument on appeal concerning the impropriety of the administrative record, [Filing No. 16 at
17]. Instead, the Court will examine Ms. Combs’ second argument—that the ALJ failed to develop
an adequate record or provide a full and fair hearing. [Filing No. 16 at 7-10.] First, Ms. Combs
argues that the ALJ failed to develop the record “when she ruled that the prior claim file does not
include relevant evidence.” [Filing No. 16 at 8.] Ms. Combs goes on to allege that the ALJ failed
to provide a full and fair hearing when she refused to provide Ms. Combs with her prior claim file.
[Filing No. 16 at 7-9.]

4

The Court notes that, notwithstanding her Motion to Strike, Ms. Combs’ own brief appears to cite
to and rely upon the transcript that she now seeks stricken. [Filing No. 16 at 12 (citing Filing No.
14-2 at 66); Filing No. 16 at 14 (same).] To the extent that Ms. Combs’ own brief(s) cite to the
2013 Transcript, the Court will disregard all references thereto.
6

In response, the Commissioner contends that Ms. Combs has not shown a basis for
reviewing the issue of reopening her prior applications. [Filing No. 21 at 6.] In addition, the
Commissioner notes that Ms. Combs’ current claim is for a different period of time than her prior
claim. [Filing No. 21 at 7.]
On reply, Ms. Combs argues that the Commissioner “misstated, even grossly misstated,”
her arguments regarding reopening her prior case. [Filing No. 22 at 2.] Ms. Combs states that she
“never cited any legal authority that pertains to reopening,” and that her argument before this Court
“has nothing to do with reopening.” [Filing No. 22 at 3.] She maintains that the ALJ should have
provided her with her prior claim file. [Filing No. 22 at 5.] In addition, Ms. Combs argues that
because the prior adjudication and the current adjudication are both based on her prior work, “of
necessity the prior claim file includes relevant evidence.” [Filing No. 22 at 8.]
The Court accepts Ms. Combs’ assertions that she is not seeking a reopening of her prior
social security claim and, accordingly, will not analyze this issue. Instead, the Court will focus on
Ms. Combs’ arguments in support of her contention that the ALJ failed to develop an adequate
record and deprived her of a full and fair hearing.
The Social Security Act gives those claiming disability benefits a right to a hearing, in
which the Commissioner may “examine witnesses, and receive evidence.” 42 U.S.C. § 405(b)(1).
Due process requires that this hearing be “full and fair.” Davenport v. Astrue, 417 F. App’x 544,
546 (7th Cir. 2011). During the hearing “a claimant bears the burden of proving disability,”
however, “the ALJ in a Social Security hearing has a duty to develop a full and fair record.” Nelms
v. Astrue, 553 F.3d 1093, 1098 (7th Cir. 2009). In reviewing whether the ALJ did so, this Court
may not “reweigh evidence, resolve conflicts in the record, decide questions of credibility, or, in

7

general, substitute our own judgment for that of the Commissioner.” Young v. Barnhart, 362 F.3d
995, 1001 (7th Cir. 2004).
Additional information regarding hearings can be found in Social Security manuals,
including the Social Security Hearings, Appeals, and Litigation Law Manual, (“HALLEX”), and
the Social Security Program Operations Manual System, (“POMS”). Ms. Combs relies upon the
HALLEX Manual in support of her argument that evidence in a prior claim file is necessary for a
full adjudication of the issues. [Filing No. 16 at 8.] However, the Seventh Circuit has explicitly
declined to decide whether the HALLEX Manual “creates rights that litigants can enforce in
court.” Dean v. Colvin, 585 Fed. App’x. 904, 905 (7th Cir. 2014). This Court joins other courts in
this circuit in declining to find that the HALLEX Manual creates legally enforceable rights. See,
e.g., Jarman v. Colvin, 2015 WL 225448, at *5 (S.D. Ill. Jan. 15, 2015). Ms. Combs also cites to
the POMS Manual but, here again, the Seventh Circuit has held that “[t]he POMS manual has no
legal force” and cannot be “controlling.” Parker for Lamon v. Sullivan, 891 F.2d 185, 190 (7th
Cir. 1989).
Yet, even accepting the HALLEX and POMS Manuals as persuasive authority, neither
subsection that Ms. Combs identifies requires an ALJ to consider a prior claim file. HALLEX
states that an ALJ “will generally find” evidence from a prior claim file relevant, [Filing No. 16 at
8 (citing HALLEX)], and POMS provides that evidence from a prior file “may have” adjudicative
significance, [Filing No. 16 at 8 (citing POMS)]. Here, the ALJ determined that the prior case file
did not have adjudicative significance. In so doing, she adequately built a logical bridge to her
conclusion, reasoning that “the Administrative Law Judge decision of March 28, 2013 is final and
binding throughout the date of that decision. The focus of this decision is the period of time from
March 29, 2013 to the present.” [Filing No 14-2 at 26-27.] Because the ALJ was not required to

8

consider Ms. Combs’ prior case file, and because she adequately explained her reasoning in
declining to consider the same, the Court finds no grounds for remand on the basis that the ALJ
failed to develop an adequate record. See Brown v. Colvin, 845 F.3d 247, 251 (7th Cir. 2016)
(noting that the ALJ “must build a logical bridge from evidence to conclusion.”).
The Court also finds no grounds for remand due to the ALJ’s and the Appeals Council’s
refusal to provide Ms. Combs with the claim file relating to the 2013 Decision. She cites two cases
in support of her contention, Goldberg v. Kelly, 397 U.S. 254, 267-68 (1970) and Mullane v. Cent.
Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Neither case compels remand. Goldberg
holds that “the evidence used to prove the Government’s case must be disclosed to the individual
so that he has an opportunity to show that it is untrue.” Goldberg, 397 U.S. at 270 (citation
omitted). However, as Ms. Combs concedes, the ALJ “did not base her decision” on evidence
from the 2013 Decision. [Filing No. 16 at 7.] Therefore, Ms. Combs’ prior case file does not
constitute evidence used by the Commissioner to prove her case under Goldberg. Mullane
concerns a beneficiary’s right to be heard in a hearing “appropriate to the nature of the case.”
Mullane, 339 U.S. at 313. There is no dispute in this case that Ms. Combs was given an opportunity
to be heard at the January 22, 2015 hearing at which she appeared, was represented by counsel,
and testified concerning her past relevant work. [Filing No. 14-2 at 47-49.] The Court, therefore,
finds that Ms. Combs was provided with a full and fair hearing consistent with the requirements
of the Social Security Act.
C. The ALJ’s Findings at Step Four
The Court next turns to Ms. Combs’ third argument—that substantial evidence does not
support the ALJ’s findings at Step Four of her analysis. [Filing No. 16 at 10.] In particular, Ms.
Combs takes issue with the ALJ’s determination that Ms. Combs “was not disabled because she

9

could perform two past relevant jobs—service clerk and book distributor—both as actually
performed and as generally performed.” [Filing No. 16 at 10.] The Court will consider each of
Ms. Combs’ arguments in turn.
1. Ms. Combs’ Past Work As Generally Performed
With regard to the ALJ’s findings that Ms. Combs could perform her past relevant work as
generally performed, Ms. Combs argues that her past work constitutes a “composite” job, which
has “no analog in the national economy.” [Filing No. 16 at 13.] As such, Ms. Combs argues that
the ALJ erred in failing to acknowledge and apply “the composite-job rule.” [Filing No. 16 at 1415.]
In response, the Commissioner contends that during the hearing, Ms. Combs’ counsel did
not ask the vocational expert whether Ms. Combs’ past work was a composite job and, on appeal,
Ms. Combs has not identified evidence establishing that her past work was a composite job. [Filing
No. 21 at 12.] The Commissioner also contends that even if the ALJ erred in concluding that Ms.
Combs could perform her past work as generally performed, the error is harmless because
“substantial evidence supports the ALJ’s finding that [Ms. Combs] could perform the job as she
actually performed it.” [Filing No. 21 at 13.]
On reply, Ms. Combs maintains that the ALJ’s failure to apply the composite-job rule
resulted in vocational expert testimony that is legally incorrect. [Filing No. 22 at 15.] Finally, Ms.
Combs refutes the Commissioner’s argument concerning her failure to raise the composite job
issue during the hearing, pointing out that she raised the issue to the Agency before the ALJ’s
decision became final in the form of an affidavit that she sent to the Appeals Division two days

10

before they issued their decision denying her benefits. [Filing No. 22 at 16 (citing Filing No. 147 at 74 5).]
Composite jobs are those that “have significant elements of two or more occupations.”
Soc. Sec. Rul. 82-61, 1982 WL 31387. 6 Although ALJs can typically rely upon descriptions in
the Dictionary of Occupational Titles (“DOT”) to define a job as it is usually performed in the
national economy, “composite jobs . . . have no counterpart in the DOT.” Id. Instead, Social
Security guidance provides that “[s]uch situations will be evaluated according to the particular
facts of each individual case” and “it may be necessary to utilize the services of a vocational
specialist or vocational expert.” Id.
Courts in this circuit have only dealt with cases involving composite jobs a handful of
times. See Barnett v. Colvin, 2014 WL 7450077, at *7 (S.D. Ill. Dec. 30, 2014) (noting the lack
of Seventh Circuit cases regarding composite jobs). Cases considered by district courts in this
circuit consist of two broad categories—cases where a claimant’s job was clearly a composite job,
and cases where the record is less clear. Where a claimant’s past work was clearly a composite
job, an ALJ “may not find a claimant capable of performing [her] past relevant work on the basis
that [she] can meet some of the demands of [her] previous position, but not all of them.” Peterson
v. Astrue, 2010 WL 3219293, at *6 (N.D. Ind. Aug. 12, 2010) (citations omitted) (reversing and
remanding the Commissioner’s decision where the ALJ failed to examine whether a claimant could
perform the more demanding component of her past work).

5

The Court notes that Ms. Combs cites to her affidavit at Filing No. 14-7 at 74. Ms. Combs’
affidavit can in fact be found at Filing No. 14-7 at 84.
6

Social Security Rulings are binding on all components of the Social Security Administration,
including ALJs. See 20 C.F.R. § 402.35 (providing that Social Security Rulings are published
“under the authority of the Commissioner” and are “binding on all components of the Social
Security Administration”); Sample v. Shalala, 999 F.2d 1138, 1142 n.5 (7th Cir. 1993) (stating
that Social Security Rulings are binding upon ALJs).
11

Where the record does not clearly demonstrate that a claimant’s past job was a composite
job, courts in this circuit have examined several factors in reviewing an ALJ’s determination,
including: (1) whether a claimant was represented by counsel during the hearing before the ALJ,
Oskey v. Colvin, 2015 WL 629005, at *5 (N.D. Ind. Feb. 12, 2015) (noting that the ALJ’s duty to
develop a full and fair record is “enhanced” when the claimant appears at the hearing without
counsel); (2) whether a claimant raised the issue of a composite job at the hearing, Barnett, 2014
WL 7450077, at *6; and (3) whether a claimant characterized her past relevant work as a composite
job in her testimony before the ALJ, Polchow v. Astrue, 2011 WL 1900065, at *20 (N.D. Ill. May
19, 2011).
The Court’s limited role in reviewing the ALJ’s decision does not permit it to reweigh the
evidence or make a determination regarding whether Ms. Combs’ job was, in fact, a composite
job. Moore v. Colvin, 743 F.3d 1118, 1121 (7th Cir. 2014); see also Wiggins v. Colvin, 2015 WL
2398478, at *7 (N.D. Ill. May 18, 2015) (citations omitted) (“At the end of the day, it is not the
court’s job to decide how to draw the line between a composite and a non-composite job.”).
Instead, the Court will examine the factors that other courts in this circuit have used. First, Ms.
Combs was represented by counsel during her January 2015 hearing before the ALJ. Second,
during the hearing, neither she nor her counsel raised the issue of whether her job constituted a
composite job. Finally, throughout her testimony, Ms. Combs made no statements describing her
past relevant work as a composite job. [Filing No. 14-2 at 48-49.] Weighing the factors other
courts in this circuit have used in cases involving composite jobs, the Court cannot say that the
ALJ erred in declining to consider Ms. Combs’ prior work as a composite job. Accordingly,
remand on this issue is not warranted.

12

Even if Ms. Combs’ past work were a composite job, the ALJ’s analysis did not improperly
classify her “‘past relevant work’ according to the least demanding function of [her] past
occupations.” Peterson, 2010 WL 3219293, at *7. Instead, the ALJ found Ms. Combs capable of
performing all aspects of her past relevant work, both “as a service clerk and a book distributor.”
[Filing No. 14-2 at 36 (emphasis added).] The ALJ’s decision did not, therefore, violate the rule
set forth in Peterson.
2. Ms. Combs’ Past Work as Actually Performed
With regard to the ALJ’s findings that Ms. Combs could perform her past relevant work as
actually performed, Ms. Combs argues that the ALJ improperly separated her past job into two
jobs, failed to perform the required function-by-function comparison of her past work, and
improperly considered the vocational expert’s testimony. [Filing No. 16 at 10-13.]
In response, the Commissioner argues that the ALJ was entitled to rely upon the vocational
expert’s testimony that Ms. Combs could perform her past relevant work because Ms. Combs’
counsel did not question the expert’s foundation or reasoning during the hearing. [Filing No. 21
at 10-11.]
On reply, Ms. Combs argues that the Commissioner was “largely unresponsive” to her
contentions that substantial evidence does not support the ALJ’s findings that she could perform
her past relevant work as actually performed. [Filing No. 22 at 12.]
The Court will not consider Ms. Combs’ first argument—that the ALJ improperly
separated her past job into two jobs—due to the fact that she cites to evidence that she subsequently
sought stricken from the record. [Filing No. 16 at 12.] Neither of her other two arguments provide
grounds for remand. With regard to the function-by-function comparison, a Social Security Ruling
cautions that the failure to make such a comparison, “could result in the adjudicator overlooking

13

some of an individual’s limitations or restrictions.” Soc. Sec. Rul. 96-8p, 1996 WL 374184. This,
however, falls far short of Ms. Combs’ characterization that SSR 96-8p “requires” a function-byfunction comparison. [Filing No. 16 at 12.] In addition to mischaracterizing SSR 96-8p, Ms.
Combs’ argument ignores guidance from the Seventh Circuit indicating that “the expression of a
claimant’s RFC need not be articulated function-by-function; a narrative discussion of a claimant’s
symptoms and medical source opinions is sufficient.” Knox v. Astrue, 327 F. App’x 652, 657–58
(7th Cir. 2009).
Finally, Ms. Combs argues that the vocational expert’s testimony was legally incorrect and,
therefore, irrelevant. [Filing No. 16 at 13.] Her argument specifically concerns the testimony of
Vocational Expert Salek. [Filing No. 16 at 12.] However, the ALJ based her finding at Step Four
on the testimony of Vocational Expert Thompson. [Filing No. 14-2 at 35 (stating that the ALJ
accepted the testimony of the “vocational expert at the first hearing held in June 2014”); Filing
No. 14-2 at 25 (“Joseph Thompson, an impartial vocational expert, testified by telephone at the
first hearing held June 2, 2014.”).] Accordingly, any error in Vocational Expert Salek’s testimony
is outside of this Court’s review of the ALJ’s findings at Step Four.
IV.
CONCLUSION
Ms. Combs’ Motion to Strike, [Filing No. 23], is GRANTED. As such, the Court did not
consider the 2013 Transcript in its decision herein and disregarded all references to the document
in the party’s respective briefs.
However, “[t]he standard for disability claims under the Social Security Act is stringent.”
Williams-Overstreet v. Astrue, 364 F. App’x 271, 274 (7th Cir. 2010). “Even claimants with
substantial impairments are not necessarily entitled to benefits, which are paid for by taxes,
including taxes paid by those who work despite serious physical or mental impairments and for
14

whom working is difficult and painful.” Id. at 274. Taken together, the Court can find no legal
basis presented by Ms. Combs to reverse the ALJ’s decision that she was not disabled during the
relevant time period. Therefore, the decision below is AFFIRMED. Final judgment shall issue
accordingly.

Date: June 26, 2017

Distribution via ECF only to all counsel of record

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