United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. Lungstrum United States District Judge.
seeks review of a decision of the Commissioner of Social
Security denying Disability Insurance Benefits (DIB) pursuant
to sections 216(i) and 223 of the Social Security Act, 42
U.S.C. §§ 416(i) and 423 (hereinafter the Act).
Finding error in the Administrative Law Judge's (ALJ)
findings of past relevant work, the court ORDERS that the
decision below shall be REVERSED and that judgment shall be
entered pursuant to the fourth sentence of 42 U.S.C. §
405(g) REMANDING the Commissioner's final decision for
further proceedings consistent with this decision.
argues that the ALJ erroneously concluded that her past work
as a marketing director, as a marketing representative, and
as an admissions director qualified as past relevant work
(PRW) within the meaning of the Act and regulations. (Pl.
Brief 16-18). She also argues that the residual functional
capacity (RFC) assessed is not supported by the record
evidence, and that the ALJ committed additional errors in
evaluating the case. Id. at 18-21.
court's review is guided by the Act. Wall v.
Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Section
405(g) of the Act provides that in judicial review
“[t]he findings of the Commissioner as to any fact, if
supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). The court must
determine whether the ALJ's factual findings are
supported by substantial evidence in the record and whether
he applied the correct legal standard. Lax v.
Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007);
accord, White v. Barnhart, 287 F.3d 903,
905 (10th Cir. 2001). “Substantial evidence”
refers to the weight of the evidence. It requires more than a
scintilla, but less than a preponderance; it is “such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971); see also,
Wall, 561 F.3d at 1052; Gossett v. Bowen,
862 F.2d 802, 804 (10th Cir. 1988).
court may “neither reweigh the evidence nor substitute
[its] judgment for that of the agency.” Bowman v.
Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting
Casias v. Sec'y of Health & Human Servs.,
933 F.2d 799, 800 (10th Cir. 1991)); accord,
Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir.
2005); see also, Bowling v. Shalala, 36
F.3d 431, 434 (5th Cir. 1994) (The court “may not
reweigh the evidence in the record, nor try the issues de
novo, nor substitute [the Court's] judgment for the
[Commissioner's], even if the evidence preponderates
against the [Commissioner's] decision.”) (quoting
Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir.
1988)). Nonetheless, the determination whether substantial
evidence supports the Commissioner's decision is not
simply a quantitative exercise, for evidence is not
substantial if it is overwhelmed by other evidence or if it
constitutes mere conclusion. Gossett, 862 F.2d at
804-05; Ray v. Bowen, 865 F.2d 222, 224 (10th Cir.
Commissioner uses the familiar five-step sequential process
to evaluate a claim for disability. 20 C.F.R. §
404.1520; Wilson v. Astrue, 602 F.3d 1136, 1139
(10th Cir. 2010) (citing Williams v. Bowen, 844 F.2d
748, 750 (10th Cir. 1988)). “If a determination can be
made at any of the steps that a claimant is or is not
disabled, evaluation under a subsequent step is not
necessary.” Wilson, 602 F.3d at 1139 (quoting
Lax, 489 F.3d at 1084). In the first three steps,
the Commissioner determines whether claimant has engaged in
substantial gainful activity since the alleged onset, whether
she has a severe impairment(s), and whether the severity of
her impairment(s) meets or equals the severity of any
impairment in the Listing of Impairments (20 C.F.R., Pt. 404,
Subpt. P, App. 1). Williams, 844 F.2d at 750-51.
After evaluating step three, the Commissioner assesses
claimant's RFC. 20 C.F.R. § 404.1520(e). This
assessment is used at both step four and step five of the
sequential evaluation process. Id.
Commissioner next evaluates steps four and five of the
process-determining at step four whether, considering the RFC
assessed, claimant can perform her past relevant work; and at
step five whether, when also considering the vocational
factors of age, education, and work experience, she is able
to perform other work in the economy. Wilson, 602
F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In
steps one through four the burden is on Plaintiff to prove a
disability that prevents performance of past relevant work.
Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir.
2006); accord, Dikeman v. Halter, 245 F.3d
1182, 1184 (10th Cir. 2001); Williams, 844 F.2d at
751 n.2. At step five, the burden shifts to the Commissioner
to show that there are jobs in the economy which are within
the RFC previously assessed. Id.; Haddock v.
Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).
determined at step four of the sequential evaluation process
that Plaintiff had PRW as a marketing director, as a
marketing representative, and as an admissions director and
was able to perform this work, and he did not continue to
step five of the evaluation process and did not decide
whether there was other work in the economy of which
Plaintiff was capable. (R. 63-64). The court finds that the
ALJ did not properly evaluate whether the work Plaintiff
performed in the past was “past relevant work”
within the meaning of the Act and regulations. Therefore, the
step four findings cannot stand and there are no alternative
step five findings upon which the decision may be reviewed.
Consequently, remand is necessary, and in the present
circumstances of this case it is irrelevant whether Plaintiff
is capable of the RFC assessed. On remand the Commissioner
must evaluate this case again, and the court will not provide
an advisory opinion regarding the ALJ's consideration of
the earlier steps in the process or regarding his assessment
of Plaintiff's RFC.
argues that a marketing director job is an SVP (specific
vocational preparation) level 8 which requires “over 4
years and up to and including 10 years” to learn the
job, but that Plaintiff performed the job at most two years,
and the job does not qualify as past relevant work. (Pl. Br.
16-17) (quoting, without attribution Dictionary of
Occupational Titles (DOT), Appendix C (4th ed., Rev.
1991), available online at
(last viewed, August 2, 2019). She argues that the jobs of
marketing representative and admissions director are SVP
level 7, requiring “over 2 years and up to and
including 4 years” to learn. Id. at 17 (once
again quoting, without attribution DOT, Appendix C). She
argues that she performed the admissions director job
individually for only eleven months and the marketing
representative job individually in 2006 and 2008, so neither
job can qualify as PRW. Id. She also argues
alternatively that she performed the jobs of admissions
director and marketing representative “in
combination” at Plaza Manor from January 2005 through
February 2008, that the Social Security Administration's
(SSA) Program Operations Manual System (POMS) prohibits
considering a combination job as generally performed in the
economy, and that the ALJ failed adequately to develop the
record or to consider the record regarding how Plaintiff
actually performed the combination job. Id. at
Commissioner concedes that the marketing director job and the
admissions director job do not qualify as PRW because they
were not performed sufficient time for Plaintiff adequately
to learn them. (Comm'r Br. 6). He argues however,
“Because Plaintiff performed the marketing
representative job for more than two years, ” it
qualifies as PRW. Id. He argues that Plaintiff
performed the marketing representative job for three years,
and that is long enough for an SVP 7 job to qualify as PRW.
Id. at 7. He argues, “while Plaintiff's
testimony about when she performed the two jobs may have been
vague ([R]. 83), her work history report showed that she
performed the admissions director job at a ‘long term
care facility' from January 2004 through January 2005,
and the marketing representative job at a ‘health
care' company from January 2005 through February 2008,
” and they were therefore not a combination job.
Id. at 7-8 (citing R. 256).
Reply Brief, Plaintiff argues that even if the
Commissioner's argument that Plaintiff performed the
marketing representative job for three years, that is
insufficient time for an SVP 7 job to qualify as PRW. (Reply
1-2). This is so, in Plaintiff's view, because the DOT
requires an SVP 7 job to be performed “for
‘including 4 years'” to qualify as PRW.
Id. at 2 (again quoting without citation DOT, App.
C). She reiterates her argument that the ALJ did not properly
develop the record or consider the combination job.
Id. at 2-4.
court finds the ALJ did not properly consider whether
Plaintiff's past work qualified as PRW within the meaning
of the Act and the regulations. As the Commissioner concedes,
the jobs of marketing director and of admissions director
cannot qualify as PRW because Plaintiff performed the
marketing director job for only one of the required 4 to 10
years needed to qualify as PRW and performed the admissions
director job for only one of the required 2 to 4 years needed
to qualify as PRW. Review of the decision reveals that the
ALJ noted that in order to qualify as PRW a past job must be
performed “for a period of time sufficient to learn the
occupations, ” but did not so much as mention the time
required to learn an SVP 7 or SVP 8 job. (R. 64). This fact
when considered with the fact that the ALJ found two jobs
qualified as PRW which the record clearly reveals do not meet
the required ...