Taylor v . SSA CV-12-442-JL 8/8/13
UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Charles D. Taylor
v. Civil N o . 12-cv-442-JL Opinion N o . 2013 DNH 106 Carolyn Colvin, Acting Commissioner, Social Security Administration
ORDER ON APPEAL
Charles Taylor appeals the Social Security Administration’s
(“SSA”) denial of his application for Supplemental Security
Income. An administrative law judge (“ALJ”) at the SSA ruled
that, despite Taylor’s severe impairments of seizure disorder and
alcohol dependence, he retains the ability to perform his past
relevant work as a store associate, and, as a result, is not
disabled. See 20 C.F.R. § 416.905(a). The Appeals Council later
denied Taylor’s request for review of the ALJ’s decision, see id.
§ 416.1467, with the result that the ALJ’s decision became the
SSA’s final decision on Taylor’s application, see id. § 416.1481.
Taylor then appealed the decision to this court, which has
jurisdiction under 42 U.S.C. § 405(g) (Social Security).
Taylor has filed a motion to reverse the decision. See L.R.
9.1(b)(1). Taylor’s motion attributes two errors to the ALJ: (1)
the failure to conclude that Taylor’s chronic lumbar pain was a
severe impairment, and (2) the conclusion that Taylor was capable of performing his past relevant work. The Commissioner of the
SSA has cross-moved for an order affirming the ALJ’s decision.
See L.R. 9.1(d). As explained below, the court agrees with
Taylor on his second assignment of error, and accordingly grants
his motion to reverse (and denies the Commissioner’s motion to
affirm) the ALJ’s decision.
As he was required to d o , the ALJ evaluated Taylor’s claim
of disability in accord with the five-step sequential process set
forth in 20 C.F.R. § 416.920(a)(4), the content of which has been
explored thoroughly elsewhere and need not be repeated here. At
step two of this analysis, the ALJ was called upon to determine
whether Taylor had “a severe medically determinable physical or
mental impairment.” Id. § 416.920(a)(4)(ii). And, as already
mentioned, the ALJ found that Taylor had two severe impairments:
seizure disorder and alcohol dependence. Admin. R. at 3 4 .
That the ALJ did not also find that Taylor suffered from a
severe impairment of chronic lumbar pain is immaterial. As the
Commissioner points out, this court has repeatedly held that an
ALJ commits no reversible error at step two by identifying only
some of a claimant’s impairments as “severe” so long as he
“consider[s] the limiting effects of all [the claimant’s]
impairment(s), even those that are not severe” in conducting his
analysis in the remaining steps. 20 C.F.R. § 416.945(e); see,
2 e.g., Santiago v . Astrue, N o . 11-cv-537, 2013 WL 1282524, at *2
(D.N.H. March 2 9 , 2013); Lawton v . Astrue, 2012 DNH 126, at 1 7 .
The ALJ did just that here, addressing Taylor’s subjective
complaints of “severe pain in the back, hips, and legs,” as well
as the medical evidence of record concerning Taylor’s back
condition, while evaluating Taylor’s residual functional
capacity. Admin. R. at 3 6 .
The ALJ did err, however, at step four of the analysis when
he concluded that Taylor was able to perform his past relevant
work despite his impairments. See 20 C.F.R. § 416.920(a)(4)(iv).
In reaching this conclusion, the ALJ found that Taylor was able
to perform his previous work as a “sales associate”–-a job Taylor
held at a Lowe’s home improvement store for about four months in
mid-2009. See Admin. R. at 3 7 . Based upon the record evidence,
however, Taylor’s job at Lowe’s did not qualify as “past relevant
work” under the SSA’s regulations.
The ALJ correctly observed that the regulations define “past
relevant work” as “work that [the claimant has] done within the
past 15 years, that was substantial gainful activity, and that
lasted long enough for [the claimant] to learn to do it.” 20
C.F.R. § 416.960(b)(1). To determine whether a job previously
held by a claimant qualifies as “past relevant work,” then, one
must examine whether that job was “substantial gainful activity.”
3 Although the ALJ’s written opinion is unclear on this point,
he appears to have considered Taylor’s job as a sales associate
to be “substantial gainful activity” because Taylor’s average
monthly earnings for that job were substantial (i.e., they
exceeded the amount set forth in 20 C.F.R. § 416.974(b)).1 The
ALJ’s conclusion therefore rested on the default rule set forth
in 20 C.F.R. § 416.974, which explains that “[g]enerally, in
evaluating [a claimant’s] work activity for substantial gainful
activity purposes, [the SSA’s] primary consideration will be the
earnings [the claimant] derive[s] from the work activity. . . .
Generally, if [the claimant has] worked for substantial earnings,
[the SSA] will find that [the claimant is] able to do substantial
gainful activity.” Id. § 416.974(a)(1).
“Generally,” however, does not mean “always.” A claimant’s
“substantial work may, under certain conditions, be disregarded
if it is discontinued or reduced to the [non-substantial gainful
activity] level after a short time because of [the claimant’s]
impairment.” Social Security Ruling 05-02, Titles II and XVI:
Determination of Substantial Gainful Activity if Substantial Work
Activity is Discontinued or Reduced–-Unsuccessful Work Attempt,
2005 WL 6491604, at *2 (S.S.A. 2005); see also 20 C.F.R. §
1 That i s , at any rate, the basis on which the Commissioner defends the ALJ’s conclusion.
4 416.974(a)(1) (a claimant’s “earnings from an unsuccessful work
attempt will not show that [he is] able to do substantial gainful
activity”); id. § 416.974(c)(1) (similar).
Section 416.974(c) sets forth those conditions. Where, as
here, a claimant held a job for longer than three months, the
regulation explains that the job should not be considered
substantial gainful activity if (1) “it ended, or was reduced
below the substantial gainful activity earnings level, within 6
months because of [the claimant’s impairment]”; and (2) the
claimant was “frequently absent from work because of [his]
impairment.”2 Id. § 416.974(c)(4)(i). That was the case here.
Taylor testified that after only a month of employment at Lowe’s,
he had a seizure that prevented him from returning to work for a
month, and that this period of idleness was immediately followed
by another month out of work due to other health problems.
Admin. R. at 53-54. This testimony, which the ALJ did not
question, was consistent with other evidence of record. See,
e.g., id. at 123, 439-92. While Taylor was able to then return
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Taylor v . SSA CV-12-442-JL 8/8/13
UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Charles D. Taylor
v. Civil N o . 12-cv-442-JL Opinion N o . 2013 DNH 106 Carolyn Colvin, Acting Commissioner, Social Security Administration
ORDER ON APPEAL
Charles Taylor appeals the Social Security Administration’s
(“SSA”) denial of his application for Supplemental Security
Income. An administrative law judge (“ALJ”) at the SSA ruled
that, despite Taylor’s severe impairments of seizure disorder and
alcohol dependence, he retains the ability to perform his past
relevant work as a store associate, and, as a result, is not
disabled. See 20 C.F.R. § 416.905(a). The Appeals Council later
denied Taylor’s request for review of the ALJ’s decision, see id.
§ 416.1467, with the result that the ALJ’s decision became the
SSA’s final decision on Taylor’s application, see id. § 416.1481.
Taylor then appealed the decision to this court, which has
jurisdiction under 42 U.S.C. § 405(g) (Social Security).
Taylor has filed a motion to reverse the decision. See L.R.
9.1(b)(1). Taylor’s motion attributes two errors to the ALJ: (1)
the failure to conclude that Taylor’s chronic lumbar pain was a
severe impairment, and (2) the conclusion that Taylor was capable of performing his past relevant work. The Commissioner of the
SSA has cross-moved for an order affirming the ALJ’s decision.
See L.R. 9.1(d). As explained below, the court agrees with
Taylor on his second assignment of error, and accordingly grants
his motion to reverse (and denies the Commissioner’s motion to
affirm) the ALJ’s decision.
As he was required to d o , the ALJ evaluated Taylor’s claim
of disability in accord with the five-step sequential process set
forth in 20 C.F.R. § 416.920(a)(4), the content of which has been
explored thoroughly elsewhere and need not be repeated here. At
step two of this analysis, the ALJ was called upon to determine
whether Taylor had “a severe medically determinable physical or
mental impairment.” Id. § 416.920(a)(4)(ii). And, as already
mentioned, the ALJ found that Taylor had two severe impairments:
seizure disorder and alcohol dependence. Admin. R. at 3 4 .
That the ALJ did not also find that Taylor suffered from a
severe impairment of chronic lumbar pain is immaterial. As the
Commissioner points out, this court has repeatedly held that an
ALJ commits no reversible error at step two by identifying only
some of a claimant’s impairments as “severe” so long as he
“consider[s] the limiting effects of all [the claimant’s]
impairment(s), even those that are not severe” in conducting his
analysis in the remaining steps. 20 C.F.R. § 416.945(e); see,
2 e.g., Santiago v . Astrue, N o . 11-cv-537, 2013 WL 1282524, at *2
(D.N.H. March 2 9 , 2013); Lawton v . Astrue, 2012 DNH 126, at 1 7 .
The ALJ did just that here, addressing Taylor’s subjective
complaints of “severe pain in the back, hips, and legs,” as well
as the medical evidence of record concerning Taylor’s back
condition, while evaluating Taylor’s residual functional
capacity. Admin. R. at 3 6 .
The ALJ did err, however, at step four of the analysis when
he concluded that Taylor was able to perform his past relevant
work despite his impairments. See 20 C.F.R. § 416.920(a)(4)(iv).
In reaching this conclusion, the ALJ found that Taylor was able
to perform his previous work as a “sales associate”–-a job Taylor
held at a Lowe’s home improvement store for about four months in
mid-2009. See Admin. R. at 3 7 . Based upon the record evidence,
however, Taylor’s job at Lowe’s did not qualify as “past relevant
work” under the SSA’s regulations.
The ALJ correctly observed that the regulations define “past
relevant work” as “work that [the claimant has] done within the
past 15 years, that was substantial gainful activity, and that
lasted long enough for [the claimant] to learn to do it.” 20
C.F.R. § 416.960(b)(1). To determine whether a job previously
held by a claimant qualifies as “past relevant work,” then, one
must examine whether that job was “substantial gainful activity.”
3 Although the ALJ’s written opinion is unclear on this point,
he appears to have considered Taylor’s job as a sales associate
to be “substantial gainful activity” because Taylor’s average
monthly earnings for that job were substantial (i.e., they
exceeded the amount set forth in 20 C.F.R. § 416.974(b)).1 The
ALJ’s conclusion therefore rested on the default rule set forth
in 20 C.F.R. § 416.974, which explains that “[g]enerally, in
evaluating [a claimant’s] work activity for substantial gainful
activity purposes, [the SSA’s] primary consideration will be the
earnings [the claimant] derive[s] from the work activity. . . .
Generally, if [the claimant has] worked for substantial earnings,
[the SSA] will find that [the claimant is] able to do substantial
gainful activity.” Id. § 416.974(a)(1).
“Generally,” however, does not mean “always.” A claimant’s
“substantial work may, under certain conditions, be disregarded
if it is discontinued or reduced to the [non-substantial gainful
activity] level after a short time because of [the claimant’s]
impairment.” Social Security Ruling 05-02, Titles II and XVI:
Determination of Substantial Gainful Activity if Substantial Work
Activity is Discontinued or Reduced–-Unsuccessful Work Attempt,
2005 WL 6491604, at *2 (S.S.A. 2005); see also 20 C.F.R. §
1 That i s , at any rate, the basis on which the Commissioner defends the ALJ’s conclusion.
4 416.974(a)(1) (a claimant’s “earnings from an unsuccessful work
attempt will not show that [he is] able to do substantial gainful
activity”); id. § 416.974(c)(1) (similar).
Section 416.974(c) sets forth those conditions. Where, as
here, a claimant held a job for longer than three months, the
regulation explains that the job should not be considered
substantial gainful activity if (1) “it ended, or was reduced
below the substantial gainful activity earnings level, within 6
months because of [the claimant’s impairment]”; and (2) the
claimant was “frequently absent from work because of [his]
impairment.”2 Id. § 416.974(c)(4)(i). That was the case here.
Taylor testified that after only a month of employment at Lowe’s,
he had a seizure that prevented him from returning to work for a
month, and that this period of idleness was immediately followed
by another month out of work due to other health problems.
Admin. R. at 53-54. This testimony, which the ALJ did not
question, was consistent with other evidence of record. See,
e.g., id. at 123, 439-92. While Taylor was able to then return
to work for another month, he was ultimately discharged due to
the lengthy absences attributable to his impairments. Id. at 5 4 .
2 The regulation also identifies other circumstances in which a job that provided substantial earnings may qualify as an unsuccessful work attempt,” and thus not constitute “substantial “subs gainful activity.” The court need not explore those here. 5 Taylor’s job at Lowe’s, then, did not constitute substantial
gainful activity, and hence did not qualify as “past relevant
work” for purposes of step four of the ALJ’s analysis. The ALJ
erred in considering it as such.
The Commissioner urges this court to nonetheless affirm the
SSA’s denial of benefits, arguing that the ALJ’s “application of
the correct legal standard could lead to only one conclusion”–-
i.e., a denial of benefits. Memo. in Supp. of Deft.’s Mot. to
Affirm (document n o . 9-1) at 10 (quoting Ward v . Comm’r of Soc.
Sec., 211 F.3d 6 5 2 , 656 (1st Cir. 2000)). The record is not
quite so clear-cut. The ALJ may certainly conclude on remand
that Taylor is not disabled, and again deny benefits. He may
even conclude his analysis at step four, since it appears that
Taylor has other past relevant work that the ALJ did not consider
in his analysis. The outcome is not, however, a foregone
conclusion, and assessing the record evidence on these points i s ,
in the first instance, a task for the ALJ.
Based on the foregoing, Taylor’s motion to reverse the
Commissioner’s decision3 is GRANTED, and the Commissioner’s
motion to affirm that decision4 is DENIED. See 42 U.S.C.
3 Document n o . 7 . 4 Document n o . 9.
6 § 405(g). The clerk shall enter judgment accordingly and close
the case.
SO ORDERED.
AT n Joseph N. Laplante United States District Judge
Dated: August 8 , 2013
cc: Raymond J. Kelly, Esq. Robert J. Rabuck, Esq.