Armstrong v. Commissioner of Social Security

Filing 24

MEMORANDUM OPINION AND ORDER The court REVERSES and REMANDS the Commissioner's decision. (fully set out in Order). Signed by Magistrate Judge Suzanne Mitchell on 11/4/2016. (sr)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
RENEE MARIE ARMSTRONG,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner, Social Security
Administration,
Defendant.

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MEMORANDUM OPINION AND ORDER
Renee Marie Armstrong (Plaintiff) brings this action for judicial review
of the Defendant Acting Commissioner of Social Security’s (Commissioner)
final decision that she was not “disabled” under the terms of the Social
Security Act.

See 42 U.S.C. §§ 405(g), 423(d)(1)(A).

The parties have

consented under 28 U.S.C. § 636(c) to proceed before a United States
Magistrate Judge. Doc. 12. Following a careful review of the parties’ briefs,
the administrative record (AR), and the relevant authority, the court reverses
and remands the Commissioner’s decision.
I.

Disability determination.
The Social Security Act defines “disability” as 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). The Commissioner applies a fivestep inquiry to determine whether a claimant is disabled. See 20 C.F.R. §
404.1520(a)(4); see also Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.
1988) (describing the five steps). Under this sequential procedure, Plaintiff
bears the initial burden of proving she has one or more severe impairments.
See 20 C.F.R. § 404.1520(a)(4)(ii); Turner v. Heckler, 754 F.2d 326, 328 (10th
Cir. 1985).

If she succeeds, the ALJ will conduct a residual functional

capacity (RFC)1 assessment at step four to determine what Plaintiff can still
do despite her impairments. See 20 C.F.R. § 404.1520(a)(4)(iv); Andrade v.
Sec’y of Health & Human Servs., 985 F.2d 1045, 1048 (10th Cir. 1993). Then,
if Plaintiff shows she can no longer engage in prior work activity, the burden
of proof shifts to the Commissioner at step five to show Plaintiff retains the
capacity to perform a different type of work and that such a specific job exists
in the national economy. See Turner, 754 F.2d at 328; Channel v. Heckler,
747 F.2d 577, 579 (10th Cir. 1984).

Residual functional capacity “is the most [a claimant] can still do
despite [a claimant’s] limitations.” 20 C.F.R. § 404.1545(a)(1).
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II.

Administrative proceedings.
Plaintiff protectively filed for disability insurance benefits (DIB) under

Title II of the Social Security Act, 42 U.S.C. §§ 401-434, alleging disability
since July 1, 2012. After the Social Security Administration (SSA) denied
Plaintiff’s claims for disability insurance benefits, she requested and received
a hearing before an Administrative Law Judge (ALJ). AR. 105-21, 130-31,
63-104.
The ALJ subsequently found Plaintiff: (1) was severely impaired by
“colitis, orthostatic hypotension, osteoarthritis, fibromyalgia and obesity”; (2)
had the RFC “to perform a wide range of light work” with

a variety of

limitations; (3) could perform her past relevant work as a nursery school
attendant and daycare supervisor, with “a 50% reduction of the job base” for
the former position; (4) could also perform the following occupations:
residential supervisor, child support worker, and social service caseworker;
and (5) was not disabled. Id. at 47-56. The SSA’s Appeals Council found no
reason to review the ALJ’s decision, which then became the Commissioner’s
final decision. Id. at 1-6.
III.

Standard for review.
This Court’s review is limited to whether substantial evidence supports

the ALJ’s factual findings and whether the ALJ applied the correct legal
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standards.

See Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010).

“Substantial evidence is ‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’”

Id. (citation omitted).

In

determining whether substantial evidence exists, the court “will not reweigh
the evidence.” Howard v. Barnhart, 379 F.3d 945, 947 (10th Cir. 2004). As
the Tenth Circuit has cautioned, “common sense, not technical perfection, is
[the court’s] guide.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1167 (10th Cir.
2012).
IV.

Claimed error.
Under “Points of Error,” Plaintiff lists two errors:

(1) “[t]he ALJ

committed reversible legal error by failing to properly evaluate [plaintiff’s]
ability to perform her composite past relevant work at step four of the
sequential evaluation,” and (2) “[t]he ALJ’s findings regarding Mrs.
Armstrong’s transferable skills at step five of the sequential evaluation were
legally flawed and not supported by substantial evidence.” Doc. 15, at 7, 10.
V.

Analysis.
A.

Past relevant work determination.

Plaintiff maintains the ALJ erred at her step-four determination that
Plaintiff could “perform her composite past relevant work.” Id. at 7. The
vocational expert (VE) testified that Plaintiff “actually has two job titles for
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the one job.” AR 69. She was a child care provider nursery school attendant
(Dictionary of Occupational Titles (DOT) 359.677-018), “also known as” Day
Care Worker, and “was the Director and took care of all the business part, as
well as, and the planning and that kind of thing.” AR 68-69; 55, 82; see DOT
092.167.010. The ALJ’s questioning to the VE focused on splitting out those
two jobs.

AR 100, 68-69, 81-82.

For example, the VE testified Plaintiff

actually performed the nursery school attendant position at a medium,
“semiskilled” level, SVP of 4. Id. at 82. The DOT categorizes the exertional
level as light. See id. As to the day care supervisor, position “since [Plaintiff]
did multiple jobs it’s skilled, per description of that work with medium,” SVP
7. Id.
The ALJ formulated a proper hypothetical for the VE. Id. at 99-100.
The following colloquy then took place:
ALJ: Under this hypothetical only could such a person perform
the past jobs or if you want to have that split out because even
though it was a combo job, could the person do that work?
VE: Such an individual could do the Day Care Center Director
position, that was the 092 job. The Day Care Worker maybe 50
percent of the occupational base would remain with that sit/stand
reduction, but the entire occupational base would not.
ALJ: Okay, so the Day Care Supervisor would have about 50
percent of the jobs then?
VE: Yes, as described by the DOT, not as performed by the
claimant.
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ALJ: Okay.
Id. at 100 (emphasis added). The ALJ found Plaintiff “able to perform each of
the jobs of nursery school attendant [DOT 359.677-018] and daycare
supervisor/director [DOT 092.167.010] as generally performed, with a 50%
reduction in jobs available for nursery school attendant.” Id. at 55. The ALJ
then moved on to step five. Id. The Commissioner does not dispute the ALJ’s
step-four error, but argues it is harmless. Doc. 22, at 6 n.7.
In POMS DI 25005.020(B), 2011 WL 4753471, the Commissioner
clarified that because composite jobs have no counterpart in the DOT, Agency
adjudicators must not evaluate such jobs “at the part of step 4 considering
work ‘as generally performed in the national economy.’” In other words, an
adjudicator can deny a claim at step four where the claimant remains capable
of performing a composite job “as actually performed,” but is not permitted to
make an adverse step-four finding that the claimant remains capable of
performing a composite job “as generally performed.”

Id.; see SSR 82-61,

1982 WL 31387, *2 (“Composite jobs” are jobs that require the performance of
significant elements of two or more jobs, and “have no counterpart in the
DOT.”); Kawelo v. Colvin, No. CV 15-223 DKW-KSC, 2016 WL 3983223, at *9
(D. Haw. July 25, 2016) (“Under the Agency’s pertinent interpretive
guidance, the ALJ is not to utilize the DOT to conclude a plaintiff can perform
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a past relevant composite job, since those jobs are, given their specialized
nature, not ‘generally performed’ as contemplated by the applicable rules and
regulations.”) (unpublished order) (emphasis added) (citation omitted)
Comeau v. Comm’r of Soc. Sec., No. 15-10650, 2016 WL 1253315, at *9 (E.D.
Mich. March 30, 2016) (unpublished opinion and order) (“A claimant is only
capable of performing a past relevant composite job if he can perform each of
the separate components of the position.”); see also Neikirk v. Massanari, 13
F. App’x 847, 849 (10th Cir. 2001) (noting that while “the POMS lacks the
force of law, it is persuasive”).
Neither the ALJ nor the VE explicitly mentioned the term “composite,”
but a fair reading of the evidence of record supports the conclusion that
Plaintiff’s past job, one she held for 28 years, was a composite one.
POMS DI 25005.020(B), 2011 WL 4753471; AR 55, 68-69, 81-82.

See
Here,

because the ALJ split the “two job titles for the one job” and, relying on the
VE’s testimony, concluded she could perform both as generally performed she
committed legal error.

See AR 69, 55; POMS DI 25005.020(B), 2011 WL

4753471.
B.

Transferable skills error.

The ALJ’s step-four error might be harmless if the Commissioner meets
her burden to prove the existence of other work in significant numbers.
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Plaintiff argues the ALJ’s findings in this regard were “legally flawed and not
supported by substantial evidence.”

Doc. 15, at 10.

The VE testified

Plaintiff’s “transferable skills of attending to the needs of others and the
supervisory skills developed in the Director position or supervisor position”
resulted in three jobs available in significant numbers. AR 99-101. The ALJ
agreed and concluded Plaintiff could perform the sedentary, skilled jobs of
residential supervisor, DOT 187.167-186; child support worker, DOT 195.267022; and social services caseworker, DOT 195.107-010. AR 56-57.
Plaintiff was under age 55 when she applied for benefits, but was 55
and of advanced age at the time of the ALJ’s decision. See 20 C.F.R., pt. 404,
subpt. P, app. 2, § 201.00(d). As the Commissioner points out, where, like
Plaintiff, a claimant is over age 55, is limited to sedentary work, and has
transferable skills to sedentary occupations, “there must be little, if any
vocational adjustment required in terms of tools, work processes, work
settings or the industry.” SSR 82-41, 1982 WL 31389, at *5; see Doc. 22, at
11.
The VE testified that for each position there would be “very little if any
adjustment” in the Materials Products Services and the Methods area,
because these “are in the same coding group. . . .” AR 101. And, “the work
activity is accommodating code 291,” the “same” as Plaintiff’s “past work.”
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Id. As to industry, the VE testified “you’re going from a home-based industry
to private sector industry. . . . That’s somewhat different but if you look at
the coding, the coding is described by the DOT as that these skills can be
used in any industry. . . . So I think that there might be some moderate
amount of adjustment in the industry area . . . .” Id. (emphasis added). The
ALJ asked no follow-up question but moved on to a more restrictive
hypothetical. Id. at 102.
The Commissioner argues that “[a] complete similarity of [all of the
SSR 82-41] factors is not necessary.” Doc. 22, at 11 (quoting SSR 82-41, 1982
WL 31389, at *5). This sentence refers to the similarity of tools, and work
processes and settings—it says nothing about industry. See SSR 82-41, 1982
WL 31389, at *5-6. The Commissioner suggests a court may overlook the
industry transferability issue—emphasizing the use of the conjunction “or” in
the regulation. Doc. 22, at 11 (quoting SSR 82-41, 1982 WL 31389, at *5). As
Plaintiff argues, the Commissioner provides no case law to support this
construction.

Doc. 23, at 5.

While the Court agrees the ALJ may take

administrative notice of reliable government publications, the similarity of
work codes is not dispositive. See Doc. 22, at 10-11; AR 101-02. Only one
position, residential supervisor, had the identical work field code for
accommodating as did that of nursery school attendant. And as the court has
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concluded, the ALJ’s step-four determination addressed only that job as
generally performed. Further, the other jobs entail additional skills such as
investigation, counseling, litigation, and analytical skills. See DOT 195.267022; DOT 195.107-010.
The Commissioner also argues SSR 82-41’s special provisions for an
individual age 55 anticipate that some job skills “have universal applicability
across industry lines” like those at issue here. Doc. 22, at 11, 12. While this
may be true, the VE did not testify Plaintiff’s adjustment would be “very
little, if any . . . .” in terms of industry as she had done regarding other
aspects of transferable skills. SSR 82-41, 1982 WL 31389, at *5. The VE
testified “there might be some moderate amount of adjustment” required
“going from a home-based industry to private sector industry.” AR 101. The
Commissioner bears the burden at step five and the ALJ did not follow up to
have the VE clarify her testimony.

Id.; see id. at 56-57 (ALJ’s decision

crediting VE’s testimony to be “consistent” with the DOT and considering
Plaintiff’s “transferable work skills”). The ALJ’s conclusion is not supported
by substantial evidence with regard to the transferability of skills.

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VI.

Conclusion.
The court REVERSES and REMANDS the Commissioner’s decision.
ENTERED this 4th day of November, 2016.

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