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 .

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

(a). The Appeals Council later

denied Taylor’s request for review of the ALJ’s decision, see

§ 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

(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

(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.”

§ 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.

(e); see,

2 e.g., Santiago v . Astrue, N o . 11-cv-537,

, at *2

(D.N.H. March 2 9 , 2013); Lawton v . Astrue,

, 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

(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.”

(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

(b)).1 The

ALJ’s conclusion therefore rested on the default rule set forth

in

, 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.”

§ 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,

, at *2 (S.S.A. 2005); see also

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”);

§ 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.,

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.

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