KAREN L. HAYES, Magistrate Judge.
Before the court is plaintiff's petition for review of the Commissioner's denial of social security disability benefits. The district court referred the matter to the undersigned United States Magistrate Judge for proposed findings of fact and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and (C). For the reasons assigned below, it is recommended that the decision of the Commissioner be
Ophelia Blackmon protectively filed the instant applications for Title II Disability Insurance Benefits and Title XVI Supplemental Security Income payments on November 10, 2008. (Tr. 12, 87-91). She alleged disability (amended) as of September 10, 2007, because of pain and swelling in her legs, high blood pressure, diabetes, and "fluid." (Tr. 25, 112, 147). The claims were denied at the initial stage of the administrative process. (Tr. 48-54). Thereafter, Blackmon requested and received a May 7, 2009, hearing before an Administrative Law Judge ("ALJ"). (Tr. 22-47). However, in a November 4, 2009, written decision, the ALJ determined that Blackmon was not disabled under the Act, finding at step five of the sequential evaluation process that she was able to make an adjustment to other work that exists in significant numbers in the national economy. (Tr. 9-20). Blackmon appealed the adverse decision to the Appeals Council. On July 15, 2011, however, the Appeals Council denied Blackmon's request for review; thus the ALJ's decision became the final decision of the Commissioner. (Tr. 1-3).
On August 18, 2011, Blackmon sought review before this court. Succinctly restated, she contends that the ALJ erred in her step five analysis, and thus, her determination is not supported by substantial evidence.
This court's standard of review is (1) whether substantial evidence of record supports the ALJ's determination, and (2) whether the decision comports with relevant legal standards. Villa v. Sullivan, 895 F.2d 1019, 1021 (5
Pursuant to the Social Security Act ("SSA"), individuals who contribute to the program throughout their lives are entitled to payment of insurance benefits if they suffer from a physical or mental disability. See 42 U.S.C. § 423(a)(1)(D). The SSA defines a 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). Based on a claimant's age, education, and work experience, the SSA utilizes a broad definition of substantial gainful employment that is not restricted by a claimant's previous form of work or the availability of other acceptable forms of work. See 42 U.S.C. § 423(d)(2)(A). Furthermore, a disability may be based on the combined effect of multiple impairments which, if considered individually, would not be of the requisite severity under the SSA. See 20 C.F.R. § 404.1520(a)(4)(ii).
The Commissioner of the Social Security Administration has established a five-step sequential evaluation process that the agency uses to determine whether a claimant is disabled under the SSA. See 20 C.F.R. §§ 404.1520, 416.920. The steps are as follows,
See Boyd v. Apfel, 239 F.3d 698, 704-705 (5
The ALJ determined at step one of the sequential evaluation process that Blackmon had not engaged in substantial gainful activity during the relevant period. (Tr. 14). At step two, she found that Blackmon suffers severe impairments of mild osteoarthritis of the right knee; hypertension; diabetes mellitus; and obesity. Id. She concluded, however, that the impairments were not severe enough to meet or medically equal any of the impairments listed in Appendix 1, Subpart P, Regulations No. 4, at step three of the process. (Tr. 14-15).
The ALJ next determined that Blackmon retained the residual functional capacity to perform light work, reduced by the ability to only occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs. (Tr. 16).
Plaintiff does not challenge the ALJ's residual functional capacity assessment ("RFC"). Moreover, the RFC is supported by substantial evidence. See Tr. 187-189.
The ALJ determined at step four of the sequential evaluation process that plaintiff could not return to her past relevant work as a home health aide because it was performed at the medium exertional level. (Tr. 17). Accordingly, she proceeded to step five. At this step, the ALJ determined that plaintiff was an individual of advanced age, with a limited education, and with transferrable work skills from her past relevant work. (Tr. 17-20). With the assistance of a vocational expert, the ALJ identified transferrable skills of "communication with the elderly; observing difficulty; light cooking; housekeeping chores; and keeping small records." (Tr. 17, 40-42). The vocational expert opined that these skills would transfer to the position of companion, Dictionary of Occupational Titles Code 309.677-010, with 497,556 jobs nationally and 8,851 jobs in Louisiana. (Tr. 39-42, 18). Because plaintiff was unable to perform the full range of light work, the ALJ relied upon the medical-vocational guidelines as a framework to conclude that she was not disabled pursuant to Rule 202.03. 20 C.F.R. § 404.1569; Rule 202.03, Table 2, Appendix 2, Subpart P, Regulations No. 4. (Tr. 19-20).
Plaintiff contends that the ALJ erred insofar as she purported to rely upon vocational expert testimony to circumvent a finding of disabled that was otherwise mandated by application of the medical-vocational guidelines. Plaintiff correctly sets forth the rule that
Rule 200.00(e)(2), Table 2, Appendix 2, Subpart P, Regulations No. 4. Thus, if plaintiff retained the residual functional capacity for the full range of light work, and the guidelines dictate a finding of disabled, then further consultation with a vocational expert to establish the ability to adjust to other work would be precluded.
Applying the foregoing principle here, the court observes that given plaintiff's RFC and vocational factors, the medical-vocational guidelines would compel a finding of disabled unless she had skilled or semi-skilled skills that were transferrable to other work. See Rules 202.01-202.03. Of course, that it was the ALJ found in this case.
Rule 202.00(c), Appendix 2, Subpart P, Regulations No. 4 (in pertinent part) (emphasis added). Plaintiff argues that the single occupation identified by the vocational expert, as relied upon by the ALJ, does not represent a significant range of work, notwithstanding the incidence of such work available in the national and regional economies.
To support her argument, plaintiff relies upon the Ninth Circuit's decision in Lounsburry v. Barnhart, 468 F.3d 1111, 1117 (9
The court observes that the claimant in Lounsburry enjoyed a high school education, whereas, in this case, the claimant had a limited education. Thus, here, Rule 202.03 is potentially at issue, versus Rule 202.07 in Lounsburry. In addition, the footnote to Rule 202.03 references Rule 202.00 (f), rather than Rule 202.00(c). See Table 2, Appendix 2, Subpart P, Regulations No.
4. Nonetheless, nothing in Rule 202.00(c) limits its scope to high school graduates or their equivalent. Furthermore,
Rule 202.00(e), Appendix 2, Subpart P, Regulations No. 4 (emphasis added). In short, the court does not discern any cognizable basis to distinguish Lounsburry's interpretation of Rule 202.00(c), merely because the instant claimant had a limited education. If anything, a claimant with a limited education should have an even more difficult time adjusting to other skilled or semi-skilled work than a claimant with a high school education.
The court finds further support for plaintiff's argument in the applicable Social Security Rulings.
SSR 82-41, TITLES II AND XVI: WORK SKILLS AND THEIR TRANSFERABILITY AS INTENDED BY THE EXPANDED VOCATIONAL FACTORS REGULATIONS EFFECTIVE FEBRUARY 26, 1979. (emphasis added).
SSR 83-10, TITLES II AND XVI: DETERMINING CAPABILITY TO DO OTHER WORK—THE MEDICAL-VOCATIONAL RULES OF APPENDIX 2. (emphasis added).
Finally, it makes sense that the regulations require that skills be transferable to a significant range of work for an individual of advanced age because
SSR 82-41 (citing 20 C.F.R. §§ 404.1568(d)(1)-(4)) (emphasis added).
Indeed, the regulations acknowledge that advanced age significantly affects ability to transfer to other work. 20 C.F.R. § 404.1563(e).
In sum, in the absence of evidence that plaintiff's acquired skills from her past relevant work are readily transferrable into a significant range of other work (i.e., at least several other identified occupations), the court is compelled to find that the ALJ's step five determination that plaintiff is not disabled under the framework of Medical-Vocational Rule 202.03 is not supported by substantial evidence. See Lounsburry, supra.
Plaintiff urges the court to enter a judgment awarding benefits. The courts have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. §405(g). When reversal is warranted, the matter is remanded with instructions to make an award only if the record enables the court to conclusively determine that the claimant is entitled to benefits. See Ferguson v. Heckler, 750 F.2d 503, 505 (5th Cir. 1985); see also Rini v. Harris, 615 F.2d 625, 627 (5th Cir.1980) (reversing and remanding with direction to enter judgment where the evidence was not substantial and the record clearly showed the claimant's right to benefits).
The instant record is not so disposed. The vocational expert was not asked at the hearing whether plaintiff's skills would transfer readily into a significant range of other occupations. Thus, this possibility is not foreclosed upon remand. Nevertheless, it is a close question in the first instance whether the skills learned by Ms. Blackmon from her past relevant work are the type of skills that would give her a vocational advantage over an unskilled person. See SSR 82-41.
Under the provisions of 28 U.S.C. §636(b)(1)(C) and FRCP Rule 72(b), the parties have
THUS DONE AND SIGNED in chambers at Monroe, Louisiana, this 11
20 C.F.R. § 404.1567(b).