Bailey v. Saul ( 2021 )

Case: 20-60790 Document: 00515846528 Page: 1 Date Filed: 05/03/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 3, 2021
No. 20-60790 Lyle W. Cayce
Clerk
Josephine Bailey,
Plaintiff—Appellant,
versus
Andrew M. Saul, Commissioner of Social Security,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:19-CV-168
Before Jones, Clement, and Graves, Circuit Judges.
Per Curiam:*
This appeal concerns a denial of Social Security disability insurance
benefits. Finding no error below, we affirm.
I. Factual and Procedural Background
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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Appellant Josephine Bailey was approaching retirement age when she
applied for Title II disability insurance benefits on November 9, 2017,
asserting that her disability began on August 11, 2017. She claimed as her
primary disability headaches caused by a benign brain tumor, but she also
noted arthritis, hypertension, and a bone spur on her right foot. In her
application, Bailey listed her previous relevant job title as a “family
advocate” for Head Start Mississippi, a position she held from August 1999
to August 2017, when she stopped working due to headaches. Bailey
described her work as “checking classrooms, recruiting children, going to
parents’ homes for home visits, filing, entering data into computer systems,
and monitoring classrooms.” Bailey has a bachelor’s degree in social work.
The Social Security Administration (“SSA”) denied her application
initially and on reconsideration, so Bailey requested a hearing before an
Administrative Law Judge (“ALJ”), which was held by videoconference.
Bailey appeared with counsel, as well as an impartial vocational expert
(“VE”). At the hearing, Bailey agreed with the ALJ that she was a social
worker. Bailey then described debilitating headaches triggered by noise. She
said she stopped working because her “headaches were getting real bad and
[she] couldn’t remember and [she] was just getting sick, [so she] just
couldn’t stay there anymore.” Bailey also said that arthritis in her knee
interfered with her work and mobility.
At the hearing, the VE designated Bailey’s past relevant work as a
“family advocate, [Dictionary of Occupational Titles 1 (“DOT”)] Code
195.107-010,” which is skilled, sedentary work. Although the ALJ invited
Bailey’s counsel to object to this classification, no objection was offered. The
ALJ asked the VE whether a hypothetical individual of Bailey’s age,
education, work experience, and physical limitations could “perform the past
1
DEP’T OF LABOR, DICTIONARY OF OCCUPATIONAL TITLES (rev. 4th ed. 1991).
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relevant work.” The ALJ described Bailey’s hypothetical comparator as one
who “would be able to perform at the light exertional level . . . with the
exception that the individual would be able to stand and/or walk for four of
eight hours and would be able to sit for six of eight hours,” and who could
“occasionally clime ladders, ropes, or scaffolds, frequently balance,
occasionally stoop, kneel, crouch, and crawl.” Bailey did not object to this
hypothetical. The VE responded that such an individual would be able to
perform Bailey’s past relevant work. Although Bailey’s counsel asked that
the record be left open to allow Bailey to submit outstanding written medical
evidence, Bailey never submitted additional evidence.
On February 12, 2019, the ALJ issued a decision concluding that
Bailey is not disabled because she is able to perform her past relevant work as
a caseworker. The ALJ concluded that although Bailey suffers from a severe
impairment, she is capable of performing her past relevant work as a social
services caseworker as that position is defined in the DOT. The ALJ
reasoned that Bailey’s medical records reflected that, in the last ten years,
she only once complained to her doctors about headaches, which doctors
noted had substantially improved since diagnosis and treatment in 2003. The
ALJ also relied on the opinion of a doctor who had reviewed Bailey’s medical
records that Bailey’s condition did not preclude her from performing light
work, albeit with some limitations. Having concluded that Bailey was able to
perform her past relevant work, the ALJ affirmed the denial of disability
insurance benefits.
Bailey appealed the ALJ’s decision to the SSA Appeals Council,
which denied her request for review, leaving the ALJ’s decision as the
Commissioner’s final administrative action for the purposes of judicial
review. On November 18, 2019, Bailey requested judicial review in the
Northern District of Mississippi. Her primary argument was that the ALJ
misclassified her past relevant work under an incorrect DOT title. The
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parties consented to disposition before a magistrate judge, who affirmed the
ALJ’s decision. Bailey timely appealed to this court.
II. Standard of Review
Our review “is limited to determining whether the [ALJ’s] decision is
supported by substantial evidence in the record and whether the proper legal
standards were used in evaluating the evidence.” Bowling v. Shalala, 36 F.3d
431, 434 (5th Cir. 1994) (quoting Villa v. Sullivan, 895 F.2d 1019, 1021 (5th
Cir. 1990)). Substantial evidence means “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Biestek
v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal quotation marks omitted).
We have held that substantial evidence “must do more than create a
suspicion of the existence of the fact to be established, but ‘no substantial
evidence’ will be found only where there is a ‘conspicuous absence of
credible choices’ or ‘no contrary medical evidence.’” Harrell v. Bowen, 862
F.2d 471, 475 (5th Cir. 1988) (quoting Hames v. Heckler, 707 F.2d 162, 164
(5th Cir. 1983)). Evidentiary conflicts are for the ALJ to decide, and if a
decision is supported by substantial evidence, it must be affirmed even if
there is contrary evidence. See Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir.
1990). We will, however, reverse the ALJ’s decision if Bailey shows “(1) that
the ALJ failed to fulfill [her] duty to adequately develop the record, and (2)
that [Bailey] was prejudiced thereby.” Brock v. Chater, 84 F.3d 726, 728 (5th
Cir. 1996). We will find prejudice only where an error has affected a
claimant’s substantial rights. Audler v. Astrue, 501 F.3d 446, 448 (5th Cir.
2007) (“‘Procedural perfection in administrative proceedings is not
required’ as long as ‘the substantial rights of a party have not been
affected.’” (quoting Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988))).
III. The ALJ’s decision is permissible under this
court’s caselaw and supported by substantial
evidence
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A claimant is not entitled to disability benefits unless she “is unable
‘to engage in any substantial gainful activity by reason of [a] medically
determinable physical or mental impairment . . . which has lasted or can be
expected to last for a continuous period of not less than 12 months.’”
Bowling, 36 F.3d at 435 (alteration and ellipsis in original) (quoting 42 U.S.C.
§§ 416(i), 423(d)(1)(A)). The SSA follows a sequential five-step process to
make this determination:
(1) An individual who is working and engaging in substantial
gainful activity will not be found disabled regardless of the
medical findings[;] (2) An individual who does not have a
“severe impairment” will not be found to be disabled[;] (3) An
individual who meets or equals a listed impairment in
Appendix 1 of the regulations will be considered disabled
without consideration of vocational factors[;] (4) If an
individual is capable of performing the work he has done in the
past, a finding of “not disabled” must be made[;] (5) If an
individual’s impairment precludes him from performing his
past work, other factors including age, education, past work
experience, and residual functional capacity must be
considered to determine if other work can be performed.
Villa, 895 F.2d at 1022 (5th Cir. 1990) (paraphrasing 20 C.F.R.
§ 404.1520(b)-(f)). “The burden of proof is on the claimant for the first four
steps but shifts to the agency at step five; a finding at any step that a claimant
is or is not disabled ends the analysis.” Graves v. Colvin, 837 F.3d 589, 592
(5th Cir. 2016) (citing Bowling, 36 F.3d at 435). Here, the ALJ concluded that
Bailey: (i) is not working; (ii) suffers from a severe impairment not listed in
Appendix 1 of the regulations; and (iii) is capable of performing her previous
work. Accordingly, the parties’ dispute pertains to the ALJ’s decision at Step
IV, where Bailey retained the burden of proof.
Bailey makes two primary arguments on appeal. First, she argues that
the VE and the ALJ misclassified her previous job as a social services
caseworker, which the DOT lists as sedentary work, when in fact her
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previous job more closely resembles that of a child welfare caseworker, which
the DOT lists as light work. She argues that, had the ALJ properly classified
her past relevant work, she would have been found disabled because, as the
ALJ concluded, she is incapable of light work without limitations. Second,
she argues that the ALJ erroneously classified Bailey’s residual functioning
capacity as falling between light and sedentary work.
A. Bailey forfeited her misclassification argument, and the
ALJ did not misclassify Bailey’s past relevant work.
Although the VE, and later the ALJ, classified Bailey’s past relevant
work as a social services caseworker over no objection from Bailey, she now
argues that her past relevant work more closely resembles the DOT’s
description of a child welfare caseworker. We must first determine whether
Bailey has forfeited this argument. She argues that this argument is preserved
on appeal under Social Security Ruling 00-4p. That rule provides that, before
relying on a VE’s opinion, an ALJ must ensure that the VE’s opinion does
not conflict with the DOT. See SSR 00-4p, 2000 WL 1898704, at *2 (Dec. 4,
2000). An ALJ thus “has an affirmative responsibility to ask about ‘any
possible conflict’ between VE evidence and the DOT . . . before relying on
VE evidence to support a determination of not disabled.” Graves, 837 F.3d
at 592 (quoting Kemp ex rel. Kemp v. Colvin, 743 F.3d 630, 633 (8th Cir. 2014)
(footnote omitted in Graves)). Relying on SSR 00-4p, Bailey argues that the
VE misclassified her past relevant work, and that therefore the ALJ was
required to resolve this conflict before relying on the VE’s opinion.
However, SSR 00-4p pertains to conflicts between a VE’s opinion and
the DOT, and no such conflict exists here, because the VE correctly
summarized the DOT listing which he concluded describes Bailey’s past
relevant work. SSR 00-4p is therefore inapposite. Instead, we turn to our
decision in Carey v. Apfel, 230 F.3d 131 (5th Cir. 2000). In Carey, we held that
a claimant cannot later point to a conflict that he or she did not press before
an ALJ. We distinguished between “actual,” “direct,” “obvious,” and
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“facial” conflicts on the one hand (e.g., differences between the DOT and
the VE’s testimony with regard to skill or exertional level of a job), and
“alleged,” “indirect,” and “implied” conflicts on the other hand (e.g., the
vocational expert’s testimony that Carey could perform jobs that required
“some ability to finger and handle things[,]” notwithstanding the fact that he
had only one hand). Id. We concluded that “claimants should not be
permitted to scan the record for implied or unexplained conflicts between the
specific testimony of an expert witness and the voluminous provisions of the
DOT, and then present that conflict as reversible error[.]”Id. at 146-47.
Under Carey, Bailey has forfeited her misclassification argument. The
purported conflict is not direct or obvious because the VE did not
mischaracterize the DOT’s description of a social services caseworker. See
Carey, 230 F.3d at 146-47 (concluding that that the claimant forfeited a
purported conflict by not raising it, because the conflict did “not involve the
type of direct and obvious conflict at issue when the [VE’s] characterization
of the exertional or skill level required for a particular job is facially different
from . . . the DOT”).
Further, the VE’s classification does not obviously conflict with the
job duties that Bailey described in her application for disability benefits, and
the absence of such a conflict supports the ALJ’s classification. The DOT
describes a social services caseworker as one who “[c]ounsels and aids
individuals and families requiring [the] assistance of [a] social service agency:
Interviews clients with problems, such as personal and family adjustments,
finances, employment, food, clothing, housing, and physical and mental
impairments to determine [the] nature and degree of problem[s]” that
children and their families face. DOT § 195.107-010. Alternatively, the DOT
defines a child welfare caseworker as one who “[a]ids parents with child
rearing problems and children and youth with difficulties in social
adjustments,” and assists foster and adoption placements. DOT 195.107-
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014. Bailey described her work as checking classrooms, recruiting children
for the Head Start program, visiting parents’ homes, and filing and entering
data. These responsibilities more closely resemble the DOT’s definition of a
social services caseworker because they do not involve work on adoptive or
foster home placements. DOT 195.107-014. Absent any discernible conflict
between the job duties Bailey described and the duties the DOT lists for a
social services caseworker, the ALJ did not err in classifying Bailey’s past
relevant work, and Bailey has forfeited this argument by failing to raise it
below. See Carey, 230 F.3d at 146-47.
B. Substantial evidence supports the ALJ’s description of
Bailey’s residual functioning capacity.
Although Bailey argues that the ALJ erroneously placed her residual
functioning capacity as falling between light and sedentary work, the ALJ
could properly rely on Bailey’s medical records and a doctor’s opinion in
classifying Bailey’s residual functioning capacity. A doctor employed by
Mississippi Disability Determination Services reviewed Bailey’s medical
records and concluded that she can perform light work with some limitations.
Bailey offered no medical opinion rebutting the doctor’s conclusion. Further,
Bailey’s medical records showed that treatment had caused her tumor to
shrink by ninety-one percent, and her record reflected only one instance in
which Bailey had complained to her doctor about headaches, in 2014. The
ALJ therefore could permissibly conclude that Bailey’s medical records
belied her description of her headaches’ severity. Although Bailey now
objects to the ALJ’s capacity finding, this court is not permitted to “reweigh
the evidence in the record, try the issues de novo, nor substitute” its own
judgment for that of the Commissioner or of the testifying witnesses. See
Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999) (quoting Johnson v. Bowen,
864 F.2d 340, 343 (5th Cir. 1988)).
Finally, that Bailey is unable “to perform certain requirements of [her]
past job does not mean that [s]he is unable to perform past relevant work as
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that phrase is used in the regulations.” Leggett v. Chater, 67 F.3d 558, 564-65
(5th Cir. 1995) (quoting Jones v. Bowen, 829 F.2d 524, 527 n.2 (5th Cir. 1987)
(per curiam) and citing Villa v. Sullivan, 895 F.2d 1019, 1022 (5th Cir. 1990))
(internal quotation marks omitted). Instead, on Step IV of the analysis the
Commissioner may also consider the description of the claimant’s past work
as such work is generally performed in the national economy. Id. The ALJ
could thus properly rely on the VE’s opinion that Bailey is able to perform
the duties of a social services caseworker as that job is generally performed in
the national economy, see id., because the VE’s description of that job did not
conflict with the DOT. See DOT 195.107.010. Accordingly, substantial
evidence supports the ALJ’s decision, and the magistrate judge did not
clearly err in affirming the denial of benefits. We therefore AFFIRM the
decisions below.
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