Case: 17-14937 Date Filed: 07/26/2018 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-14937 Non-Argument Calendar ________________________
D.C. Docket No. 8:12-cv-00285-AAS
LEONARD SMITH,
Plaintiff - Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant - Appellee.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(July 26, 2018)
Before WILLIAM PRYOR, JILL PRYOR and ANDERSON, Circuit Judges.
PER CURIAM: Case: 17-14937 Date Filed: 07/26/2018 Page: 2 of 8
Leonard Smith appeals the district court’s order affirming the decision of the
Commissioner of Social Security to deny his application for disability benefits. On
appeal Smith argues that the administrative law judge (“ALJ”) erred in classifying
his past relevant work and as a result incorrectly concluded that he could perform
such work. After careful consideration, we affirm the district court’s judgment in
favor of the Commissioner.
I. FACTUAL BACKGROUND
Smith applied for social security disability insurance benefits. After his
application was denied, he received a hearing before an ALJ. At the hearing, the
ALJ heard testimony from Smith about, among other things, his previous work
experience and from William Harvey, a vocational expert. Smith testified that he
spent most of his career working in television repair but also had worked for a
property management company. While working for the property management
company, Smith was responsible for answering phones and hanging rent notices on
doors.
Harvey testified about how to classify Smith’s previous work. Relying on
the Dictionary of Occupation Titles (“DOT”), Harvey opined that Smith’s work for
the property management company most closely resembled the position of
telephone clerk, which is a semi-skilled, sedentary position. Harvey acknowledged
that, unlike other telephone clerks, Smith was required to hang rent notices. But
2 Case: 17-14937 Date Filed: 07/26/2018 Page: 3 of 8
Harvey nonetheless concluded that a telephone clerk most resembled Smith’s
position because there was no description in the DOT for a position that involved
hanging rent notices. Harvey noted that the DOT included a position for real estate
clerk, which was a skilled job that involved sending rent notices, but found that it
did not fit Smith’s position, which involved hanging rent notices on the doors of
apartments.
The ALJ then asked Harvey whether a hypothetical person with Smith’s age,
education level, and past work experience who was limited to, among other things,
walking or standing for only two hours a day could perform any of Smith’s past
work. Harvey responded that this hypothetical person could work as a telephone
clerk.
After considering the evidence, the ALJ issued a written decision applying
the five-step sequential evaluation process and determining that Smith was not
disabled. At the first step, the ALJ found that Smith was not engaged in substantial
gainful activity during the relevant time period. At the second step, the ALJ
concluded that he had severe impairments. At the third step, the ALJ found that
Smith did not have an impairment or combination of impairments that met or
medically equaled the severity of a listed impairment. The ALJ then assessed
Smith’s residual functional capacity and found that he had certain exertional
3 Case: 17-14937 Date Filed: 07/26/2018 Page: 4 of 8
limitations, including that he could stand or walk for only two hours in an eight
hour work day.
At step four, the ALJ found that Smith was capable of performing his past
work. The ALJ classified Smith’s past work for the property management
company as telephone clerk. Relying on Harvey’s testimony about the duties of a
telephone clerk, the ALJ found that Smith could perform the job both as he
actually performed it and as it generally is performed in the national economy.
Because Smith could perform his past relevant work, the ALJ concluded that he
was not disabled.
Smith challenged in district court the ALJ’s finding that he was not
disabled. The district court affirmed the Commissioner’s determination. This is
Smith’s appeal.
II. STANDARD OF REVIEW
We review the Commissioner’s decision to determine whether it is
supported by substantial evidence, but we review de novo the legal principles upon
which the decision is based. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir.
2005). “Even if we find that the evidence preponderates against the
[Commissioner’s] decision, we must affirm if the decision is supported by
substantial evidence.” Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991).
Substantial evidence refers to “such relevant evidence as a reasonable person
4 Case: 17-14937 Date Filed: 07/26/2018 Page: 5 of 8
would accept as adequate to support a conclusion.” Moore, 405 F.3d at 1211. Our
limited review precludes us from “deciding the facts anew, making credibility
determinations, or re-weighing the evidence.” Id.
III. LEGAL ANALYSIS
A person who applies for disability insurance benefits must prove, among
other things, that he is disabled. See 42 U.S.C. § 423(a)(1). To determine whether
a claimant is “disabled,” an ALJ applies a sequential evaluation process to
determine whether the claimant: (1) is engaged in substantial gainful activity;
(2) has a severe and medically determinable impairment or combination of
impairments; (3) has an impairment or combination of impairments that satisfies
the criteria of a “listing[]”; (4) can perform his or her past relevant work in light of
his or her residual functional capacity; and (5) can adjust to other work in light of
his or her residual functional capacity, age, education, and work experience.
20 C.F.R. § 404.1520(a)(4).
On appeal, Smith challenges the ALJ’s conclusion that he could perform his
past relevant work. In considering whether a claimant can return to past work, the
ALJ must (1) consider all the duties of the past relevant work and (2) evaluate the
claimant’s ability to perform the duties in light of his impairments. Lucas v.
Sullivan, 918 F.2d 1567, 1574 n.3 (11th Cir. 1990). The claimant must show that
he can no longer “perform his past kind of work, not that he merely [is] unable to
5 Case: 17-14937 Date Filed: 07/26/2018 Page: 6 of 8
perform a specific job he held in the past.” Jackson v. Bowen, 801 F.2d 1291,
1293 (11th Cir. 1986) (citing 20 C.F.R. §§ 404
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Case: 17-14937 Date Filed: 07/26/2018 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-14937 Non-Argument Calendar ________________________
D.C. Docket No. 8:12-cv-00285-AAS
LEONARD SMITH,
Plaintiff - Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant - Appellee.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(July 26, 2018)
Before WILLIAM PRYOR, JILL PRYOR and ANDERSON, Circuit Judges.
PER CURIAM: Case: 17-14937 Date Filed: 07/26/2018 Page: 2 of 8
Leonard Smith appeals the district court’s order affirming the decision of the
Commissioner of Social Security to deny his application for disability benefits. On
appeal Smith argues that the administrative law judge (“ALJ”) erred in classifying
his past relevant work and as a result incorrectly concluded that he could perform
such work. After careful consideration, we affirm the district court’s judgment in
favor of the Commissioner.
I. FACTUAL BACKGROUND
Smith applied for social security disability insurance benefits. After his
application was denied, he received a hearing before an ALJ. At the hearing, the
ALJ heard testimony from Smith about, among other things, his previous work
experience and from William Harvey, a vocational expert. Smith testified that he
spent most of his career working in television repair but also had worked for a
property management company. While working for the property management
company, Smith was responsible for answering phones and hanging rent notices on
doors.
Harvey testified about how to classify Smith’s previous work. Relying on
the Dictionary of Occupation Titles (“DOT”), Harvey opined that Smith’s work for
the property management company most closely resembled the position of
telephone clerk, which is a semi-skilled, sedentary position. Harvey acknowledged
that, unlike other telephone clerks, Smith was required to hang rent notices. But
2 Case: 17-14937 Date Filed: 07/26/2018 Page: 3 of 8
Harvey nonetheless concluded that a telephone clerk most resembled Smith’s
position because there was no description in the DOT for a position that involved
hanging rent notices. Harvey noted that the DOT included a position for real estate
clerk, which was a skilled job that involved sending rent notices, but found that it
did not fit Smith’s position, which involved hanging rent notices on the doors of
apartments.
The ALJ then asked Harvey whether a hypothetical person with Smith’s age,
education level, and past work experience who was limited to, among other things,
walking or standing for only two hours a day could perform any of Smith’s past
work. Harvey responded that this hypothetical person could work as a telephone
clerk.
After considering the evidence, the ALJ issued a written decision applying
the five-step sequential evaluation process and determining that Smith was not
disabled. At the first step, the ALJ found that Smith was not engaged in substantial
gainful activity during the relevant time period. At the second step, the ALJ
concluded that he had severe impairments. At the third step, the ALJ found that
Smith did not have an impairment or combination of impairments that met or
medically equaled the severity of a listed impairment. The ALJ then assessed
Smith’s residual functional capacity and found that he had certain exertional
3 Case: 17-14937 Date Filed: 07/26/2018 Page: 4 of 8
limitations, including that he could stand or walk for only two hours in an eight
hour work day.
At step four, the ALJ found that Smith was capable of performing his past
work. The ALJ classified Smith’s past work for the property management
company as telephone clerk. Relying on Harvey’s testimony about the duties of a
telephone clerk, the ALJ found that Smith could perform the job both as he
actually performed it and as it generally is performed in the national economy.
Because Smith could perform his past relevant work, the ALJ concluded that he
was not disabled.
Smith challenged in district court the ALJ’s finding that he was not
disabled. The district court affirmed the Commissioner’s determination. This is
Smith’s appeal.
II. STANDARD OF REVIEW
We review the Commissioner’s decision to determine whether it is
supported by substantial evidence, but we review de novo the legal principles upon
which the decision is based. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir.
2005). “Even if we find that the evidence preponderates against the
[Commissioner’s] decision, we must affirm if the decision is supported by
substantial evidence.” Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991).
Substantial evidence refers to “such relevant evidence as a reasonable person
4 Case: 17-14937 Date Filed: 07/26/2018 Page: 5 of 8
would accept as adequate to support a conclusion.” Moore, 405 F.3d at 1211. Our
limited review precludes us from “deciding the facts anew, making credibility
determinations, or re-weighing the evidence.” Id.
III. LEGAL ANALYSIS
A person who applies for disability insurance benefits must prove, among
other things, that he is disabled. See 42 U.S.C. § 423(a)(1). To determine whether
a claimant is “disabled,” an ALJ applies a sequential evaluation process to
determine whether the claimant: (1) is engaged in substantial gainful activity;
(2) has a severe and medically determinable impairment or combination of
impairments; (3) has an impairment or combination of impairments that satisfies
the criteria of a “listing[]”; (4) can perform his or her past relevant work in light of
his or her residual functional capacity; and (5) can adjust to other work in light of
his or her residual functional capacity, age, education, and work experience.
20 C.F.R. § 404.1520(a)(4).
On appeal, Smith challenges the ALJ’s conclusion that he could perform his
past relevant work. In considering whether a claimant can return to past work, the
ALJ must (1) consider all the duties of the past relevant work and (2) evaluate the
claimant’s ability to perform the duties in light of his impairments. Lucas v.
Sullivan, 918 F.2d 1567, 1574 n.3 (11th Cir. 1990). The claimant must show that
he can no longer “perform his past kind of work, not that he merely [is] unable to
5 Case: 17-14937 Date Filed: 07/26/2018 Page: 6 of 8
perform a specific job he held in the past.” Jackson v. Bowen, 801 F.2d 1291,
1293 (11th Cir. 1986) (citing 20 C.F.R. §§ 404.1520(e), 416.920(e) (1986)).
Our decision in Jackson illustrates the distinction between the duties
generally involved in a type of work and those required in a specific job. In
Jackson, the claimant, who previously had worked as a belt operator in a pipe
manufacturing factory, asserted that he was unable to return to his past work
because he could no longer climb and descend stairs as required in the job that he
had held. Id. at 1293-94. We held that the claimant failed to show that he was
unable to return to his previous type of work because there was no evidence that
belt operator jobs generally required a worker to climb and descend stairs. Id.
Under Jackson, when a claimant’s prior job involved functional demands and
duties significantly in excess of those generally required for that type of work by
employers in the national economy, it is not enough for the claimant to show that
he cannot perform the demands and duties actually involved in the job. Instead, he
must show that he cannot perform the functional demands and job duties of the
position generally required by employers nationwide. See id.; SSR 82–61, 1982
WL 31387 (Jan. 1 1982).
We acknowledge that the analysis is somewhat different when the claimant’s
past relevant work qualifies as a composite job. A composite job is one that has
“significant elements of two or more occupations and, as such, [has] no counterpart
6 Case: 17-14937 Date Filed: 07/26/2018 Page: 7 of 8
in the DOT.” SSR 82-61 at *2. Past relevant work may qualify as a composite job
“if it takes multiple DOT occupations to locate the main duties of the [past relevant
work] as described by the claimant.” Program Operations Manual System
(“POMS”) DI 25005.020.* When the claimant’s previous work qualifies as a
composite job, the ALJ must consider the particular facts of the individual case to
consider whether the claimant can perform his previous work as actually
performed. See SSR 82-61 at *2.
Smith argues that the ALJ erred in refusing to classify his position with the
property management company as a composite job. He contends that the position
qualifies as a composite job because he was required to hang rent notices, which is
a duty beyond the usual responsibilities of a telephone clerk. But we conclude that
substantial evidence supports the ALJ’s finding that the position was not a
composite job. To establish that his position was a composite job, Smith had to
prove that hanging rent notices was one of the “main duties” of his position with
the property management company. POMS DI 25005.020; see SSR 82-61
(requiring that a composite job has “significant elements of two or more
occupations”). Although Smith bore the burden of proof on this issue, he
* The Social Security Administration’s POMS is the publicly available operating instructions for processing Social Security claims. Wash. State Dep’t of Soc. & Health Servs. v. Keffeler, 537 U.S. 371, 385 (2003). While the “administrative interpretations” contained within the POMS “are not products of formal rulemaking, they nevertheless warrant respect.” Id.; see Stroup v. Barnhart, 327 F.3d 1258, 1262 (11th Cir. 2003) (“While the POMS does not have the force of law, it can be persuasive.”).
7 Case: 17-14937 Date Filed: 07/26/2018 Page: 8 of 8
introduced no evidence about how much time he spent hanging rent notices or
otherwise establishing that this duty was a significant element of the job.
Furthermore, Smith has not identified what other occupation listed in the DOT he
contends that he was performing when he hung the rent notices. See POMS DI
25005.020. We thus conclude that the ALJ did not err in concluding that Smith’s
past work with the property management company was not a composite job.
In addition, substantial evidence supports the ALJ’s conclusion that Smith
could perform the functional demands and duties of a telephone clerk as generally
required by employers nationwide. Indeed, Smith has offered no argument that
was unable to perform the demands and duties of that position.
IV. CONCLUSION
For the reasons set forth above, we affirm the Commissioner’s decision to
deny benefits.
AFFIRMED.