C/A No. 0:16-872-BHH-PJG.

Debra Anne Eklund, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

United States District Court, D. South Carolina.

Editors Note
Applicable Law: 42 U.S.C. § 405
Cause: 42 U.S.C. § 405 Review of HHS Decision (DIWC)
Nature of Suit: 863 Social Security: DIWC / DIWW
Source: PACER

Attorney(s) appearing for the Case

Debra Anne Eklund, Plaintiff, represented by Nowell Stanley Lesser , Nowell S Lesser Attorney at Law.

Commissioner of Social Security Administration, Defendant, represented by Marshall Prince , US Attorneys Office.


PAIGE J. GOSSETT, Magistrate Judge.

This social security matter is before the court for a Report and Recommendation pursuant to Local Civil Rule 83.VII.02 (D.S.C.). The plaintiff, Debra Anne Eklund, brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the defendant, Acting Commissioner of Social Security ("Commissioner"), denying her claims for Disability Insurance Benefits ("DIB"). Having carefully considered the parties' submissions and the applicable law, the court concludes that the Commissioner's decision should be reversed and the case remanded.


Under 42 U.S.C. § 423(d)(1)(A) and (d)(5), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do 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." 20 C.F.R. § 404.1505(a); see also Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1973). The regulations require the Administrative Law Judge ("ALJ") to consider, in sequence:

(1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a "severe" impairment; (3) whether the claimant has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("the Listings"), and is thus presumptively disabled; (4) whether the claimant can perform her past relevant work; and (5) whether the claimant's impairments prevent her from doing any other kind of work.

20 C.F.R. § 404.1520(a)(4).2 If the ALJ can make a determination that a claimant is or is not disabled at any point in this process, review does not proceed to the next step. Id.

Under this analysis, a claimant has the initial burden of showing that she is unable to return to her past relevant work because of her impairments. Once the claimant establishes a prima facie case of disability, the burden shifts to the Commissioner. To satisfy this burden, the Commissioner must establish that the claimant has the residual functional capacity, considering the claimant's age, education, work experience, and impairments, to perform alternative jobs that exist in the national economy. 42 U.S.C. § 423(d)(2)(A); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983).


In March 2013, Eklund applied for DIB, alleging disability beginning September 21, 2005.3 Eklund's application was denied initially and upon reconsideration, and she requested a hearing before an ALJ. A hearing was held on August 21, 2014, at which Eklund appeared and testified, and was represented by Nowell S. Lesser, Esquire. The ALJ issued a decision on October 24, 2014 finding that Eklund was not disabled. (Tr. 13-19.)

Eklund was born in 1960 and was fifty years old on her amended disability onset date. (Tr. 29.) She has a high school education and has past relevant work experience as a customer service supervisor/assistant bookkeeper at a grocery store. (Tr. 149.) Eklund alleged disability due to back problems and neuropathy, diabetic neuropathy in her hands and feet, heart disease, numerous back ailments, diabetes, and high blood pressure. (Tr. 148.)

In applying the five-step sequential process, the ALJ found that Eklund had not engaged in substantial gainful activity since her alleged onset date of June 1, 2010 through her date last insured of December 31, 2010. The ALJ also determined that, through the date last insured, Eklund's degenerative disc disease, coronary artery disease status post stenting, peripheral neuropathy, and history of discectomy and decompression were severe impairments. However, the ALJ found that, through the date last insured, Eklund did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (the "Listings"). The ALJ further found that, through the date last insured, Eklund retained the residual functional capacity to

perform sedentary work as defined in 20 CFR 404.1567(a) except she is precluded from climbing ladders, ropes and scaffolds, but may frequently balance and occasionally stoop, kneel, crouch, crawl, and climb ramps and stairs. She must avoid concentrated exposure to extreme cold, extreme heat, humidity, fumes, dusts, gas, and other respiratory irritants.

(Tr. 16.) The ALJ found that, through the date last insured, Eklund was capable of performing past relevant work as a head cashier, and that this work did not require the performance of work-related activities precluded by Eklund's residual functional capacity. Therefore, the ALJ found that Eklund was not disabled from the alleged onset date of June 1, 2010 through the date last insured of December 31, 2010.

The Appeals Council denied Eklund's request for review on January 14, 2016, making the decision of the ALJ the final action of the Commissioner. (Tr. 1-5.) This action followed.


Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also 42 U.S.C. § 405(g); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Thus, the court may review only whether the Commissioner's decision is supported by substantial evidence and whether the correct law was applied. See Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Craig, 76 F.3d at 589. In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Id. Accordingly, even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock, 483 F.2d at 775.


Eklund raises the following issues for this judicial review:

I. The Administrative Law Judge (ALJ) did not perform an adequate assessment of Plaintiff's credibility. II. The ALJ erred in classifying Plaintiff's past relevant work as "head cashier," as the evidence of record establishes that Plaintiff's past relevant work at Bi-Lo was not performed at the sedentary exertional level. III. The ALJ did not comply with the provisions of Social Security Ruling 82-62 in her assessment of Plaintiff's past relevant work. IV. The ALJ did not comply with the provisions of Social Security Ruling 00-4P, as she failed to make a finding in her decision as to whether the vocational expert's testimony was consistent with the Dictionary of Occupational Titles. V. The ALJ erred in finding that Plaintiff was not disabled prior to her DLI, as the Defendant failed to carry her burden of proof at Step Five of the sequential evaluation process that there were a significant number of jobs in the national economy that she could have performed.

(Pl.'s Br., ECF No. 18.)


The court agrees with the plaintiff that remand is warranted on the second issue; accordingly, the court addresses this issue first.

As stated above, a claimant has the initial burden of showing that she is unable to return to her past relevant work because of her impairments. "Past relevant work" is defined by the regulations as "work that you have done within the past 15 years, that was substantial gainful activity, and that lasted long enough for you to learn to do it." 20 C.F.R. § 404.1560(b)(1); see also 20 C.F.R. § 404.1574 (discussing substantial gainful activity). In determining whether a claimant can perform her past relevant work, the Commissioner "will ask [the claimant] for information about work you have done in the past" and "may also ask other people who know about your work" and "may use the services of vocational experts or vocational specialists, or other resources, such as the `Dictionary of Occupational Titles' and its companion volumes and supplements, published by the Department of Labor, to obtain evidence [she] need[s] to help [her] determine whether [a claimant] can do [her] past relevant work, given [her] residual functional capacity." 20 C.F.R. § 404.1560(b)(2). Further, Social Security Ruling 82-62 provides:

In finding that an individual has the capacity to perform a past relevant job, the determination or decision must contain among the findings the following specific findings of fact: 1. A finding of fact as to the individual's [residual functional capacity]. 2. A finding of fact as to the physical and mental demands of the past job/occupation. 3. A finding of fact that the individual's [residual functional capacity] would permit a return to his or her past job or occupation.

SSR 82-62, 1982 WL 31386, at *4. A claimant is generally not disabled if she can return to her past relevant work as she performed it or as it is customarily performed throughout the economy. 20 C.F.R. § 404.1560(b)(2); SSR 82-61, 1982 WL 31387.

Although the ALJ relied on the vocational expert's classification of Eklund's past relevant work, the court agrees based on persuasive case law that because the DOT classification selected by the vocational expert involved a sedentary exertional level when the plaintiff's clear description of her past relevant work was at the medium exertional level, the ALJ's adoption of that classification is unsupported. Here, the ALJ adopted the vocational expert's opinion that Eklund's past relevant work at Bi-Lo grocery store could be appropriately categorized as "head cashier," DOT 211.362-010. Consequently, the ALJ found that Eklund was capable of performing her past relevant work as the job of head cashier is generally performed in the national economy.

However, courts in this circuit have recognized that when a plaintiff's past relevant work does not properly fall within a DOT classification, either because the plaintiff performed a so-called "composite" job with duties crossing over various DOT classifications or because she did not perform the main duties of the DOT classified job identified by the vocational expert, then the ALJ should not consider whether a plaintiff can perform her past relevant work as it is generally performed in the national economy based on a DOT classification. Rather, some courts have suggested that an ALJ in such cases is limited to determining whether the claimant can perform her past relevant work as she performed it. See, e.g., Shealy v. Colvin, Civil Action No. 8:13-2383-RMG, 2015 WL 467726, at *11-*13 (D.S.C. Feb. 4, 2015) (discussing "composite jobs" and concluding that substantial evidence did not support the ALJ's finding that the plaintiff could return to work as an "order clerk" where her past relevant work actually appeared to be a composite job requiring the duties of order clerk, material handler, and/or store's laborer). This seems especially to be the case when the DOT classification used by the vocational expert is at a less strenuous exertional level than the actual job performed by the plaintiff as she describes it. See Turrentine v. Colvin, C/A No. 1:15CV00256, 2016 WL 225699 (M.D.N.C. Jan. 19, 2016) (finding that because, among other reasons, the plaintiff's past relevant work as she described it was at the light exertional level, including walking up to six hours per day and seldom sitting at a computer, whereas the DOT occupation used by the vocational expert and the ALJ qualified as sedentary, substantial evidence failed to support the ALJ's use of that DOT classification in analyzing the plaintiff's past relevant work); Shealy, 2015 WL 467726, at *13 (noting that in finding that the plaintiff could perform her past relevant work of order clerk, which is classified as sedentary, the ALJ appeared to have based his conclusion on the least demanding aspect of the plaintiff's actual job); see also DeLoatche v. Heckler, 715 F.2d 148, 151 (4th Cir. 1983) (recognizing that the duties associated with job labels used by employers may not correspond to labels used by the DOT or other administrative categorization system and that a claimant may overcome the presumption that the Commissioner's generalization applies by demonstrating that her duties were not those envisaged by the framers of the Commissioner's category).

Here, the ALJ's reliance on the vocational expert's use of the DOT classification for "head cashier" does not appear to be supported by substantial evidence in light of Eklund's testimony regarding her actual job duties. See SSR 82-62, 1982 WL 31386, at *3 ("The claimant is the primary source for vocational documentation, and statements by the claimant regarding past work are generally sufficient for determining the skill level; exertional demands and nonexertional demands of such work."). Eklund testified that she did not have a chair to sit on in the customer service area where she performed her job, that her job involved "constantly moving" and sitting for "zero" hours during an eight-hour workday. Based on this testimony, which the regulations require be treated as the "primary source" for vocational documentation, skill level, and exertional and nonexertional demands of the plaintiff's work, use of a sedentary DOT classification is unsupported.4

In light of the court's recommendation that this matter be remanded for further consideration, the court need not address Eklund's remaining issues, as they may be rendered moot on remand. See Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on other grounds and declining to address claimant's additional arguments). Moreover, if necessary, Eklund may present her remaining arguments concerning the ALJ's alleged errors on remand.


Based on the foregoing, the court recommends that the Commissioner's decision be reversed pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be remanded to the Commissioner for further consideration as discussed above.


1. Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is substituted as the named defendant because she became the Acting Commissioner of Social Security on January 23, 2017.
2. The court observes that effective August 24, 2012, ALJs may engage in an expedited process which permits the ALJs to bypass the fourth step of the sequential process under certain circumstances. 20 C.F.R. § 404.1520(h).
3. Eklund later amended her alleged onset date to June 1, 2010. (Tr. 195-96.)
4. Additionally, Eklund's job description and title provided by her employer included significant conflicts with the sedentary classification and DOT listing for "head cashier." (See Tr. 194.) Further, Eklund testified that just before she left her employment with Bi-Lo, her employer changed the title of her position to assistant bookkeeper from customer service supervisor without altering her duties, which including sweeping floors and stocking shelves on "a daily, regular basis." (Tr. 37.)


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