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Tucker v. Berryhill

United States District Court, D. Maine

June 11, 2017

DANIEL GEORGE TUCKER, Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant

          MEMORANDUM DECISION [2]

          John H. Rich III United States Magistrate Judge.

This Social Security Disability (“SSD”) and Supplemental Security Income (“SSI”) appeal raises the question of whether the administrative law judge supportably found the plaintiff capable of returning to his past relevant work as a salesperson. The plaintiff seeks remand on the bases that the administrative law judge erred in failing to recognize that the past relevant work at issue constituted a “composite job” and in failing to evaluate an opinion of treating nurse practitioner Shelley Moore-Littlefield, RN-FNP, in accordance with Social Security Ruling 06-03p (“SSR 06-03p”). See Plaintiff's Statement of Errors in Support of a Social Security Appeal (“Statement of Errors”) (ECF No. 12) at 10-15.[3] I find no reversible error and, accordingly, affirm the commissioner's decision.

         Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. §§ 404.1520, 416.920; Goodermote v. Secretary of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the administrative law judge found, in relevant part, that the plaintiff met the insured status requirements of the Social Security Act through March 31, 2017, Finding 1, Record at 19; that he had severe impairments of degenerative disc disease with a history of laminectomy in 2011, left elbow crepitus, and right hand injury, Finding 3, id. at 20; that he had the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except that, due to the combination of his impairments, he could only climb, balance, stoop, crouch, kneel, or crawl occasionally, could only occasionally finger or feel, and needed to avoid irregular terrain, Finding 5, id. at 21; that he was capable of performing past relevant work in sales, general merchandise, which sales work did not require the performance of work-related activities precluded by his RFC, Finding 6, id. at 25; and that he, therefore, had not been disabled from October 1, 2012, his alleged onset date of disability, through the date of the decision, February 21, 2015, Finding 7, id. at 26. The Appeals Council declined to review the decision, id. at 1-4, making the decision the final determination of the commissioner, 20 C.F.R. §§ 404.981, 416.1481; Dupuis v. Secretary of Health & Human Servs., 869 F.2d 622, 623 (1st Cir. 1989).

         The standard of review of the commissioner's decision is whether the determination made is supported by substantial evidence. 42 U.S.C. §§ 405(g), 1383(c)(3); Manso-Pizarro v. Secretary of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In other words, the determination must be supported by such relevant evidence as a reasonable mind might accept as adequate to support the conclusion drawn. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Secretary of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).

         The administrative law judge reached Step 4 of the sequential evaluation process, at which stage the claimant bears the burden of proving inability to return to past relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). At this step, the commissioner must make findings of the plaintiff's RFC and the physical and mental demands of past work and determine whether the plaintiff's RFC would permit performance of that work. 20 C.F.R. §§ 404.1520(f), 416.920(f); Social Security Ruling 82-62 (“SSR 82-62”), reprinted in West's Social Security Reporting Service Rulings 1975-1982, at 813.

         I. Discussion

         A. Failure To Recognize Composite Job

         Relying on the testimony of a vocational expert at hearing, the administrative law judge found the plaintiff capable of returning to past relevant work as a salesperson, general merchandise, Dictionary of Occupational Titles (“DOT”) § 279.357-054 (U.S. Dep't of Labor 4th Ed. 1991). See Record at 25, 56, 59. The plaintiff contends that in doing so, he erred in failing to recognize that this was a composite job. See Statement of Errors at 10-12.

         As this court has explained:

“[C]omposite jobs have significant elements of two or more occupations and, as such, have no counterpart in the DOT.” Social Security Ruling 82-61, reprinted in West's Social Security Reporting Service Rulings 1975-1982 (“SSR 82-61”), at 838. “Such situations will be evaluated according to the particular facts of each individual case.” Id.
***
“A claimant is not disabled at step four if the claimant can perform [her] past relevant work either as the claimant actually performed it or as generally performed in the national economy.” Malusa v. Astrue, No. CV 07-655-TUC-CKJ (CRP), 2009 WL 2707219, at *14 (D. Ariz. Aug. 25, 2009) (citations and internal quotation marks omitted). That is true of composite jobs, as well, except that each job, within a composite job, must be taken into consideration. See, e.g., SSR 82-61 at 838 (composite jobs must be “evaluated according to the particular facts of each individual case”). An administrative law judge may not deem a claimant capable of performing past relevant work by dividing the demands of a composite job into two separate jobs and finding him or her capable of performing the less demanding of the two jobs. See, e.g., Roberts v. Astrue, No. 8:08-CV-120-T-17EAJ, 2009 WL 722550, at *3 (M.D. Fla. Mar. 18, 2009) (“In deciding whether claimant can perform [her] past relevant work, an ALJ [administrative law judge] may not separate a composite job into two jobs and fail to focus on all the demands of the composite job.”); see also, e.g., Valencia v. Heckler, 751 F.2d 1082, 1086 (9th Cir. 1985) (“Every occupation consists of a myriad of tasks, each involving different degrees of physical exertion. To classify an applicant's ‘past relevant work' according to the least demanding function of the claimant's past occupations is contrary to the letter and spirit of the Social Security Act.”).

Gallant v. Astrue, Civil No. 09-357-P-S, 2010 WL 2927263, at *5 (D. Me. July 20, 2010) (rec. dec., aff'd Aug. 10, 2010) (emphasis in original).

         The plaintiff notes that he provided reports to the Social Security Administration indicating that he worked at Wal-Mart for almost eight years, from 1997 through 2005, as a “truck unloader, ” “sales associate, ” and “Dep[artment] Manager[, ]” and testified at hearing that he worked at Wal-Mart as an overnight receiver unloading trucks, then worked “on the sales floor, ” before becoming “department manager.” Statement of Errors at 10-11; Record at 55, 201, 221. Yet, he complains, at no point did the administrative law judge seek clarification as to the amount of time spent in each position, the skills acquired in each, how the work was actually or generally performed, or the overlapping duties of each. See Statement of Errors at 11.

         He argues that the administrative law judge, thus, committed the reversible error of relying on the least demanding of the three composite positions without analyzing the demands of each and any overlap in responsibilities between them. See Id. He asserts that, because a claimant is the “primary source” of evidence regarding past work, the administrative law judge “could have easily inquired about his past work or issued an interrogatory to him or his counsel asking [him] to elaborate on the duties of each position, the overlapping nature of those duties, ” and so forth. Id. at 12 (citations omitted).

         However, as the commissioner observes, see Defendant's Opposition to Plaintiff's Statement of Errors (“Opposition”) (ECF No. 14) at 8-9, this case is distinguishable from Gallant in that there is no evidence that the sales job was a composite job. In Gallant, the claimant testified that, “in performing the job of laundry worker, she not only bagged and handled clothing but also did cashiering[.]” Gallant, 2010 WL 2927263, at *5.

         In this case, by contrast, the plaintiff indicated in a form that he “worked for Wal[-]Mart for 7 years, started as truck unloader, sales floor, Inventory control, Dept. manager.” Record at 221. He added: “[A]s a truck unloader and Inventory control specialist I would move a lot of heavy inventory, less as a sales associate and Dept[.] manager.” Id. This report most reasonably is read as indicating that he performed a series of separate jobs for Wal-Mart. To the extent there is doubt, when the administrative law judge inquired at hearing what the plaintiff did at Wal-Mart, he testified:

I started out unloading trucks. I was an overnight receiver. . . . And then I moved to working on the sales floor. . . . ...

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