Torres v. Social Security Administration
Filing
30
MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen B. Molzen denying 24 Plaintiff's Motion to Remand. (KBM)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MARIA C. TORRES,
Plaintiff,
v.
CIV 20-0683 KBM
ANDREW SAUL,
Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff’s Motion to Reverse and Remand
for Rehearing, with Supporting Memorandum (Doc. 24), filed on February 26, 2021.
Pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73(b), the parties have consented to
me serving as the presiding judge and entering final judgment. See Docs. 3; 6; 7.
Having considered the record, submissions of counsel, and relevant law, the Court finds
Plaintiff’s motion is not well-taken and will be denied.
I.
Procedural History
Ms. Maria C. Torres (Plaintiff) filed an application with the Social Security
Administration for Disability Insurance Benefits (DIB) under Title II of the Social Security
Act on January 5, 2017. Administrative Record1 (AR) at AR 225-28. She alleged a
disability onset date of December 29, 2016. See AR at 225.
Document 19-1 comprises the sealed Administrative Record. See Doc. 19-1. The Court cites
the Administrative Record’s internal pagination, rather than the CM/ECF document number and
page.
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Disability Determination Services determined that Plaintiff was not disabled both
initially (AR at 98-110) and on reconsideration (AR at 111-24). Plaintiff requested a
hearing with an Administrative Law Judge (ALJ) on the merits of her application. AR at
136-37. Both Plaintiff and a vocational expert (VE) testified during the de novo hearing.
See AR at 65-97. ALJ Eric Weiss issued an unfavorable decision on May 20, 2019. AR
at 14-36. Plaintiff submitted a Request for Review of Hearing Decision/Order to the
Appeals Council (AR at 221-24), which the council denied on May 12, 2020 (AR at 1-6).
Consequently, the ALJ’s decision became the final decision of the Commissioner. Doyal
v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003).
II.
Applicable Law and the ALJ’s Findings
A claimant seeking disability benefits must establish that she is unable “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); see also 20 C.F.R. § 404.1505(a). The Commissioner must use a
five-step sequential evaluation process to determine eligibility for benefits. 20 C.F.R.
§ 404.1520(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).
The claimant has the burden at the first four steps of the process to show: (1) she
is not engaged in “substantial gainful activity”; (2) she has a “severe medically
determinable . . . impairment . . . or a combination of impairments” that has lasted or is
expected to last for at least one year; and (3) her impairment(s) meet or equal one of
the listings in Appendix 1, Subpart P of 20 C.F.R. Pt. 404; or (4) pursuant to the
assessment of the claimant’s residual functional capacity (RFC), she is unable to
2
perform her past relevant work (PRW). 20 C.F.R § 404.1520(a)(4)(i-iv); see also Grogan
v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005) (citations omitted). “RFC is a
multidimensional description of the work-related abilities [a claimant] retain[s] in spite of
her medical impairments.” Ryan v. Colvin, Civ. 15-0740 KBM, 2016 WL 8230660, at *2
(D.N.M. Sept. 29, 2016) (citing 20 C.F.R. § 404, Subpt. P, App. 1 § 12.00(B); 20 C.F.R.
§ 404.1545(a)(1)). If the claimant meets “the burden of establishing a prima facie case
of disability[,] . . . the burden of proof shifts to the Commissioner at step five to show
that” the claimant retains sufficient RFC “to perform work in the national economy, given
[her] age, education, and work experience.” Grogan, 399 F.3d at 1261 (citing Williams v.
Bowen, 844 F.2d 748, 751 & n.2 (10th Cir. 1988)); see also 20 C.F.R.
§ 404.1520(a)(4)(v).
At Step One of the process,2 ALJ Weiss found that Plaintiff “has not engaged in
substantial gainful activity since” her alleged onset date. AR at 17 (citing 20 C.F.R.
§§ 404.1571-1576). At Step Two, the ALJ concluded that Plaintiff “has the following
severe impairments: cervical spine facet arthrosis, lumbar spondylolisthesis,
fibromyalgia, bilateral hip trochanteric bursitis and early degenerative changes and
bilateral hand osteoarthritis.” AR at 17 (citing 20 C.F.R. § 404.1520(c)). ALJ Weiss also
noted that there is “medical evidence of obesity, hypertension, hyperlipidemia, plantar
fasciitis, undifferentiated connective tissue disease, keratoconjunctivitis sicca, eye
pseudoexfoliation, bilateral age related nuclear cataract, ankle mild osteoarthritic
degenerative changes, osteopenia, bilateral carpal tunnel syndrome, hematuria and
ALJ Weiss first found that Plaintiff “meets the insured status requirements of the Social
Security Act through June 30, 2019.” AR at 17.
2
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depression.” AR at 18. Her obesity does not, however, “meet the requirements of SSR
02-1p” and her other conditions are properly controlled with treatment and/or do not
cause more than minimal limitations in her ability to perform work activities. See AR at
18 (citations omitted).
At Step Three, the ALJ found that Plaintiff “does not have an impairment or
combination of impairments that meets or medically equals the severity of one of the
listed impairments in 20 [C.F.R.] Part 404, Subpart P, Appendix 1.” AR at 19 (citing 20
C.F.R. §§ 404.1520(d), 404.1525, 404.1526). The ALJ determined that:
[Plaintiff] has the [RFC] to perform light work as defined in 20 [C.F.R.
§] 404.1567(b) except [she] is able to lift twenty pounds occasionally, lift and
carry ten pounds frequently and push and pull the same. [She] is able to
walk and stand six hours per eight-hour workday and sit for six hours per
eight-hour workday with normally scheduled breaks. [She] is able to
occasionally climb ramps and stairs, but never climb ladders, ropes and
scaffolds. [She] is able to occasionally balance, stoop, crouch, kneel and
crawl, but must avoid more than occasional exposure to unprotected
heights.
AR at 20. The VE testified, and the ALJ determined, that Plaintiff is capable of
performing her PRW as an assistant manager, retail sales and manager, retail sales.
AR at 23-24. Ultimately, the ALJ found that Plaintiff “has not been under a disability, as
defined in the Social Security Act, from December 29, 2016, through the date of [the
ALJ’s] decision.” AR at 24 (citing 20 C.F.R. § 404.1520(f)).
III.
Legal Standard
The Court must “review the Commissioner’s decision to determine whether the
factual findings are supported by substantial evidence in the record and whether the
correct legal standards were applied.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.
2007) (quoting Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005)). A deficiency
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in either area is grounds for remand. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161,
1166 (10th Cir. 2012) (citation omitted). “Substantial evidence is ‘such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.’” Lax, 489
F.3d at 1084 (quoting Hackett, 395 F.3d at 1172). “It requires more than a scintilla, but
less than a preponderance.” Id. (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th
Cir. 2004) (alteration in original)). The Court will “consider whether the ALJ followed the
specific rules of law that must be followed in weighing particular types of evidence in
disability cases, but [it] will not reweigh the evidence or substitute [its] judgment for the
Commissioner’s.” Id. (quoting Hackett, 395 F.3d at 1172 (internal quotation marks
omitted)).
“The possibility of drawing two inconsistent conclusions from the evidence does
not prevent an administrative agency’s findings from being supported by substantial
evidence.” Id. (quoting Zoltanski, 372 F.3d at 1200). The Court “may not ‘displace the
agenc[y’s] choice between two fairly conflicting views, even though the [C]ourt would
justifiably have made a different choice had the matter been before it de novo.’” Id.
(quoting Zoltanski, 372 F.3d at 1200).
IV.
Discussion
In Winfrey v. Chater, the Tenth Circuit described Step Four of the sequential
evaluation process as occurring in three distinct phases. See 92 F.3d 1017, 1023 (10th
Cir. 1996).
In phase one, the ALJ evaluates a claimant’s physical and mental [RFC]. In
phase two, the ALJ assesses the physical and mental demands of the
claimant's past relevant work. Last, the ALJ applies the phase one findings
to the phase two findings to determine whether, given the claimant’s RFC,
she could meet the physical and/or mental demands of her past relevant
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work.
Baca v. Saul, No. CV 20-225 WJ/GJF, 2021 WL 1390776, at *3 n.7 (D.N.M. Apr. 13,
2021), R&R adopted, 2021 WL 1753947 (D.N.M. May 4, 2021) (citing Winfrey, 92 F.3d
at 1023). Plaintiff couches her motion in terms of Winfrey. See Doc. 24. She contends
that: (1) the ALJ failed to properly consider the combined effect of Plaintiff’s impairments
and her statements about their intensity; and (2) the ALJ made erroneous findings
concerning her PRW. Doc. 24 at 5-22. The Court finds no reversible error.
A.
The ALJ adequately assessed Plaintiff’s RFC.
Plaintiff contends that the ALJ failed to consider or incorporate her non-severe
limitations in the RFC and inadequately assessed her subjective symptoms. Doc. 24 at
5-11. The Court will consider each of these arguments in turn.
Plaintiff begins by arguing that the ALJ failed to discuss any of her non-severe
impairments in the RFC. Id. at 6. She presents a laundry list of evidence to show that
her impairments caused limitations greater than those the ALJ assessed.3 Id. at 6-8.
She particularly points to limitations attributable to the non-severe impairment of plantar
fasciitis in combination with her other impairments and its effect on her abilities to stand
or walk for prolonged periods of time. Id. at 8.
The ALJ found Plaintiff’s plantar fasciitis to be a non-severe impairment because
it was properly treated. AR at 18 (citing, e.g., AR at 382, 406-07, 417, 491, 569). The
Plaintiff mentions that the record contains medical evidence showing that she began taking
escitalopram for a “severe episode of major depressive disorder” in a period that post-dated the
initial and reconsideration decisions. Doc. 24 at 8 (citing AR at 99-124, 622). She does not,
however, develop any argument to show that the ALJ committed reversible error in his
consideration of this record or any related diagnosis. See id.; Doc. 28.
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ALJ noted Plaintiff’s testimony that she has difficulties standing and walking and relies
on her husband and grandchildren to help with daily activities. AR at 21. The ALJ’s
summary of the medical evidence was brief, but not so meager that it was inadequate.
In finding that her plantar fasciitis is non-severe, the ALJ referenced medical records
that established Plaintiff experienced pain in both her plantar fasciae but did not have
synovitis, that she was prescribed conservative measures for treatment (ibuprofen
600mg and exercises such as rolling a frozen bottle of water on her heels and gentle
massage), and that she reported pain with weight bearing. AR at 18 (citing AR at 382,
406-07, 417, 491). He noted that medical evidence sometimes revealed a normal gait
and other times showed that Plaintiff walked slowly on her heels and had limited
balance. AR at 21 (citing, e.g., AR at 494, 558, 574, 622, 661, 665, 675), AR at 22. One
of the 2018 records ALJ Weiss referenced notes that her plantar fasciitis had “resolved.”
AR at 21 (citing AR at 569). He also referenced records that recorded her problems
standing and walking. See, e.g., AR at 21 (citing AR at 665).
In analyzing the medical opinions, the ALJ noted that the state agency
consultants “failed to properly limit [Plaintiff] to no work around hazards, despite
evidence of limited balance and decreased sensation in [her] right lower extremity . . . .”
AR at 22 (discussing AR at AR at 99-110, 112-24). The ALJ gave some weight to the
opinion of Tatyana Guerrero, MD, the physical consultative examiner. AR at 22, 491-98.
He found that “Dr. [Guerrero] properly noted [Plaintiff] as able to walk, sit, rise, bend and
squat, which are consistent with her examination findings.” AR at 22. Dr. Guerrero
opined that Plaintiff had “no limitations” in her abilities “to stand, sit, walk, bend or stoop,
reach, handle, lift, carry, see, hear or with memory or understanding.” AR at 496. ALJ
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Weiss only gave “some weight” to this opinion, as Dr. Guerrero did not assign enough
limitations given Plaintiff’s treatment records and symptoms. See AR at 22. In sum,
having thoroughly reviewed the record and the decision, the Court finds that Plaintiff has
not demonstrated evidence sufficient to establish that her non-severe impairments,
considered together with her severe impairments, result in more severe limitations than
those the ALJ determined.
Plaintiff next argues that the ALJ did not adequately consider her statements
concerning the limiting effects of her impairments under SSR 16-3p, 2017 WL 5180304
(Oct. 25, 2017). Doc. 24 at 8. Specifically, she refers to her “alleged symptoms of low
back pain, difficulty walking, standing, squatting, bending, kneeling, and using her
hands.” Id. at 11. Social Security Ruling 16-3p defines the two-step process an ALJ
must use to evaluate a claimant’s symptoms. SSR 16-3p, 2017 WL 5180304. At the first
step, the ALJ “consider[s] whether there is an underlying medically determinable
physical or mental impairment[] that could reasonably be expected to produce [the]
individual’s symptoms, such as pain.” Id. at *3. At the second step, after the ALJ has
found such an impairment, the ALJ “evaluate[s] the intensity and persistence of those
symptoms to determine the extent to which the symptoms limit [the] individual’s ability to
perform work-related activities . . . .” Id.
As part of the step two evaluation, the ALJ considers the record evidence,
the claimant’s statements, medical and non-medical source statements,
and the non-exhaustive list of factors in 20 C.F.R. § [404].1529(c)(3), which
include:
1. Daily activities;
2. The location, duration, frequency, and intensity of pain or other
symptoms;
3. Factors that precipitate and aggravate the symptoms;
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4. The type, dosage, effectiveness, and side effects of any medication an
individual takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, an individual receives or has received
for relief of pain or other symptoms;
6. Any measures other than treatment an individual uses or has used to
relieve pain or other symptoms (e.g., lying flat on his or her back, standing
for 15 to 20 minutes every hour, or sleeping on a board); and
7. Any other factors concerning an individual’s functional limitations and
restrictions due to pain or other symptoms.
Ramirez v. Berryhill, No. CIV 17-0781 KBM, 2018 WL 4915830, at *8 (D.N.M. Oct. 10,
2018) (quoting SSR 16-3p, 2017 WL 5180304 at *7-8).
Under these guidelines, the ALJ discussed the following:
“Daily activities”: ALJ Weiss noted Plaintiff’s testimony that her husband and
grandchildren help with chores because her back and hip pain limits her abilities to walk,
clean, and mop. AR at 21. He also observed that Plaintiff reported to her physical therapist
that she is able to walk with her family due to progress made in physical therapy. AR at
23 (citing, e.g., AR at 629).
“Location, duration, frequency, and intensity of pain or other symptoms”: The ALJ
discussed Plaintiff’s testimony regarding her pain: that she cannot work due to back and
hip pain and fibromyalgia, which causes burning pain in her arms, upper back, and
lower legs three times a week. AR at 21. Plaintiff testified her back pain causes daily
pain of seven to eight out of ten despite attempts to remedy it. AR at 21. ALJ Weiss
commented that in contrast to this testimony, Plaintiff “more recently reported that her
pain was mostly mild in her lower back” and medical records revealed “improvements in
strength and range of motion in her lower back” along with her self-reports that she can
walk “with her family, further supporting greater functioning than alleged.” AR at 23
(citing AR at 580, 629).
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The ALJ summarized medical records that showed Plaintiff “complained of hip and
back pain that radiates to her legs and limits her standing and walking.” AR at 21 (citing,
e.g., AR at 374, 476-77, 499, 555, 658). “[D]espite these complaints, examinations
generally showed an ability to remove socks, sit and rise normally, perform a full squat,
bend to touch toes, normal strength, normal reflexes, normal straight leg tests and a
normal gait.” AR at 21. Other times her providers noted a “decreased range of motion in
her lower back, back spasms, lumbar and hip tenderness, slowly walking on heels,
limited balance, decreased sensation in right lower extremity and positive straight leg
tests.” AR at 21 (citations omitted). Plaintiff also complained of neck and shoulder pain
and was observed to have “neck tenderness, spasms and decreased range of motion[,]”
but at other times had “normal range of motion, normal strength and normal reflexes.”
AR at 21-22 (citing, e.g., AR at 495, 562, 569, 614, 622). Finally, the ALJ recounted
Plaintiff’s complaints of hand and wrist pain. AR at 22 (citing, e.g., AR at 492). Some
records indicated “normal fine and gross manipulative skills, normal sensation and
normal range of motion[,]” while others revealed “less optimal findings, including at
times mildly decreased grip strength, hand tenderness and positive Tinel and Phalen
tests.” AR at 22 (citing, e.g., AR at 377, 495, 562, 622). Finally, while Plaintiff
complained of widespread pain due to fibromyalgia and examinations sometimes
revealed tender points, “examinations generally showed normal strength, normal range
of motion, normal reflexes and a normal gait. AR at 22 (citing, e.g., AR at 374, 378, 38283, 477, 491, 495, 558, 569, 574-75, 592-93, 611, 614, 661, 665, 675).
“Type, dosage, effectiveness, and side effects of any medication”: The ALJ noted
Plaintiff’s testimony that her back pain remains at a seven to eight out of ten “despite
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her use of pain medications[,]” which include Celecoxib and Gabapentin. AR at 21-22
(citing, e.g., AR at 331). He also observed that Plaintiff’s “fibromyalgia was noted as
generally well controlled with her use of Gabapentin.” AR at 23 (citing, e.g., AR at 563).
“Treatment other than medication” and “Any measures other than treatment an
individual uses or has used to relieve pain or other symptoms”: The ALJ discussed
Plaintiff’s attempt at relief through injections, physical therapy, and home exercise. See
AR at 21 (citing, e.g., AR at 340-69, 615). He also noted that surgery is “being
considered in the future.” AR at 21. The ALJ observed that physical therapy resulted in
“improvements in strength and range of motion in [Plaintiff’s] lower back[,]” which
allowed Plaintiff to walk with her family and “tolerate standing . . . with repeated
movements . . . .” AR at 23 (citing AR at 580, 629). Finally, treatment notes showed that
Plaintiff’s hip function improved with injections, “with no medical evidence as to why
such injections stopped, beyond the indications of overall improved functioning.” AR at
23 (citing AR at 592-93).
Plaintiff argues that the ALJ used boilerplate language to dismiss her alleged
symptoms and references treatment records that she believes support her allegations of
pain. Doc. 24 at 8-11. The Court finds, however, that the ALJ adequately evaluated
Plaintiff’s statements pursuant to SSR 16-3p and summarized the record in light of
Plaintiff’s statements. The Court may not reweigh the record evidence; it may only
review the ALJ’s “decision to ensure that [he] applied the correct legal standard and that
[his] findings are supported by substantial evidence.” Kayser v. Berryhill, No. 16-cv0978 SMV, 2017 WL 4857442, at *3 (D.N.M. Oct. 25, 2017) (citing Clifton v. Chater, 79
F.3d 1007, 1009 (10th Cir. 1996)). The Court finds that the ALJ’s findings regarding
11
Plaintiff’s subjective complaints of her symptoms are supported by and linked to
substantial evidence in the record. See id. at *4 (citing Kepler v. Chater, 68 F.3d 387,
391 (10th Cir. 1995)). Plaintiff’s motion is denied on this issue.
B.
The ALJ did not err in making findings related to Plaintiff’s PRW.
Plaintiff next argues that ALJ Weiss erred in failing to find that her past work was
not “composite work” and by finding that she could return to her PRW as it is generally
performed. Doc. 24 at 11-22.
1.
Composite Work
The ALJ determined that Plaintiff “is capable of performing [PRW] as assistant
manager, retail sales and manager, retail sales.” AR at 23. Plaintiff argues that her past
positions as Management Trainee and Manager (Retail Store) were actually “composite
jobs,” because they entailed duties performed at different exertional levels. Doc. 24 at
12. The DOT descriptions for her PRW read as follows.
Performs assigned duties, under direction of experienced personnel, to gain
knowledge and experience required for promotion to management
positions: Receives training and performs duties in several departments,
such as credit, customer relations, accounting, or sales, to become familiar
with line and staff functions, operations, management viewpoints, and
company policies and practices that affect each phase of business.
Observes experienced workers to acquire knowledge of methods,
procedures, and standards required for performance of departmental
duties. Workers are usually trained in functions and operations of related
departments to facilitate subsequent transferability between departments
and to provide greater promotional opportunities. May be required to attend
company-sponsored training classes.
DOT, Code 189.167-018, Management Trainee (any industry), https://occupationalinfo.
org/18/189167018.html (last visited July 2, 2021).
Manages retail store engaged in selling specific line of merchandise . . .
performing following duties personally or supervising employees performing
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duties: Plans and prepares work schedules and assigns employees to
specific duties. Formulates pricing policies on merchandise according to
requirements for profitability of store operations. Coordinates sales
promotion activities and prepares, or directs workers preparing,
merchandise displays and advertising copy. Supervises employees
engaged in sales work, taking of inventories, reconciling cash with sales
receipts, keeping operating records, or preparing daily record of
transactions for ACCOUNTANT (profess & kin.) 160.162-018, or performs
work of subordinates, as needed. Orders merchandise or prepares
requisitions to replenish merchandise on hand. Ensures compliance of
employees with established security, sales, and record keeping procedures
and practices. May answer customer's complaints or inquiries. May lock and
secure store. May interview, hire, and train employees. May be designated
according to specific line of merchandise sold, such as women's apparel or
furniture; related lines of merchandise, such as camera and photographic
supplies, or gifts, novelties, and souvenirs; type of business, such as mail
order establishment or auto supply house; or general line of merchandise,
such as sporting goods, drugs and sundries, or variety store.
DOT, Code 185.167-046, Manager, Retail Store, https://occupationalinfo.
org/18/185167046.html (last visited July 2, 2021).
Composite jobs are jobs that ‘have significant elements of two or more
occupations, and, as such, have no counterpart’ in the [DOT].” Newberry v. Berryhill,
No. CV 16-192 CG, 2017 WL 3602036, at *9 (D.N.M. Feb. 23, 2017) (quoting SSR 8261, 1982 WL 31387 *2 (Jan. 1, 1982)). “The Social Security Administration Programs
Operations Manual (‘POMS’) states that if a job can only be accurately described by
considering multiple DOT occupations, the job may be a composite job.” Id. (citing
POMS DI 25005.020(B)). Plaintiff asserts that the two relevant jobs are composite
because neither of the DOT descriptions contain several duties that she performed. See
Doc. 24 at 18. As an assistant manager, she sometimes stocked items up to 50 lbs. See
AR at 71-73. As a manager, she would mop or clean restrooms “when necessary” and
“sometimes” had to measure trucks by hand. See AR at 79-80. The Commissioner
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argues that the positions as performed are not composite jobs, because the VE “did not
have to identify elements of two or more occupations in order to accurately characterize
Plaintiff’s [PRW] . . . .” Doc. 27 at 12. Further, that Plaintiff “described her work as she
actually performed the jobs[,]” as opposed to how they are generally performed, does
not transform them into composite jobs. Id. at 13 (citing SSR 82-61, 1982 WL 31387, at
*2).
The Court agrees with the Commissioner. First, Plaintiff did not describe these
duties as comprising a significant portion of her positions. Moreover, while the job
descriptions do not specifically delineate the duties Plaintiff mentions, both descriptions
may be construed to cover the responsibilities. The Assistant Manager position involves
“training and perform[ing] duties in several departments . . . to become familiar with line
and staff functions, operations, management viewpoints, and company policies and
practices that affect each phase of business.” See DOT, Code 189.167-018. And the
Manager position includes “perform[ing] work of subordinates, as needed.” See DOT,
Code 185.167-046. The Court finds that these descriptions cover occasional stocking,
mopping, cleaning restrooms, or measuring trucks. Remand is not warranted on this
issue.
Plaintiff next argues that the ALJ erred by relying on the VE’s conclusion that
Plaintiff could perform her PRW as the positions are generally performed in the national
economy, rather than as she actually performed them. See Doc. 24 at 20-21. This
argument largely hinges on her assertion that her past positions were composite jobs.
“ALJs should not consider composite jobs ‘as generally performed in the national
economy.’” Newberry, 2017 WL 3602036, at *9 (quoting POMS DI 25005.020(B)). As
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the Court has found that Plaintiff’s past positions were not composite jobs, however,
remand is unnecessary on this point.
Moreover, the Court finds no error at this step. The DOT classifies the positions
of assistant manager and manager (retail store) as light in exertion. See AR at 23. The
ALJ considered Plaintiff’s testimony regarding how she actually performed her previous
positions and found, after considering the VE’s testimony, that Plaintiff performed her
PRW at medium exertion. See AR at 23. The ALJ then found that given her RFC,
Plaintiff could perform the positions as they are generally performed—not as she
performed them previously. See AR at 23-24. This was not error. The Regulations
provide that an ALJ may use VE expertise as evidence “concerning the physical and
mental demands of a claimant’s [PRW], either as the claimant actually performed it or
as generally performed in the national economy. 20 C.F.R. § 404.1560(b)(2). The Court
declines to remand on this issue.
C.
The ALJ’s decision is supported by substantial evidence.
Finally, Plaintiff contends that due to the ALJ’s errors alleged above, the ultimate
determination of disability is incorrect as a matter of law. Doc. 24 at 22-23. As Plaintiff
has not shown reversible error, however, this last argument is moot.
V.
Conclusion
Plaintiff fails to show that the ALJ committed any reversible error in considering
the effects of her non-severe impairments in combination with her severe impairments
or her subjective symptoms. Plaintiff has also not established that the ALJ erred in
considering her PRW.
Wherefore,
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IT IS ORDERED that Motion to Reverse and Remand for Rehearing, with
Supporting Memorandum (Doc. 24) is DENIED.
________________________________________
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent
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