Scott v. Commissioner of Social Security , 440 F. App'x 726 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEP 07, 2011
No. 11-10606
JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 8:09-cv-01025-EAJ
KAREN SCOTT,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 7, 2011)
Before HULL, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Karen Scott appeals the district court’s order affirming the denial of her
claim for disability insurance benefits and Supplemental Security Income (“SSI”).
Scott argues that the administrative law judge (“ALJ”) erred by failing to consider
the mental demands of her past relevant work. After thorough review, we affirm.
We review the agency’s legal conclusions de novo and its factual findings
to determine whether they are supported by substantial evidence. Lewis v.
Barnhart, 285 F.3d 1329, 1330 (11th Cir. 2002); Dyer v. Barnhart, 395 F.3d 1206,
1210 (11th Cir. 2005). Substantial evidence is “less than a preponderance, but
rather such relevant evidence as a reasonable person would accept as adequate to
support a conclusion.” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).
We may not reweigh the evidence or substitute our judgment for that of the ALJ.
Dyer, 395 F.3d at 1210.
When determining a claimant’s eligibility for benefits, an ALJ must
consider whether the claimant: (1) is performing substantial gainful activity; (2)
has a severe impairment; (3) has a severe impairment that meets or equals an
impairment specifically listed in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4)
can perform her past relevant work; and (5) based on her age, education, and work
experience, can perform other work of the sort found in the national economy.
See Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004); see also 20 C.F.R.
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§ 404.1520. “At the fourth step, the ALJ must assess: (1) the claimant’s residual
functional capacity (“RFC”); and (2) the claimant’s ability to return to her past
relevant work.” Phillips, 357 F.3d at 1238 (citing 20 C.F.R. § 404.1520(a)(4)(iv)).
Residual functional capacity is the claimant’s remaining ability to work despite
her impairments. See Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).
“If the claimant can return to her past relevant work, the ALJ will conclude that
the claimant is not disabled.” Phillips, 357 F.3d at 1237.
Under this court’s interpretation of the regulations, the claimant bears the
burden to prove that she is unable to “perform h[er] past kind of work, not that
[s]he merely be unable to perform a specific job [s]he held in the past.” Jackson v.
Bowen, 801 F.2d 1291, 1293 (11th Cir. 1986) (emphasis added) (holding that
while claimant was unable to perform his previous job as a link belt operator at a
pipe manufacturing facility, which required him to climb and descend stairs, he
did not establish that he was unable to perform his “past relevant work” because
he failed to show that working as a link belt operator in other settings would also
require him to climb and descend stairs).
Scott’s sole argument on appeal is that the ALJ erred by denying her claim
for relief without considering the mental demands of her past work as a teacher’s
aide. We conclude that the ALJ properly considered Scott’s residual functional
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capacity and her ability to return to her past relevant work in assessing her
eligibility for benefits. Scott’s primary impairments include depression,
degenerative joint and disc disease, fibromyalgia, as well as chronic pain in the
neck, lower back, hands and feet. The ALJ reported that Scott’s residual
functional capacity is only “slightly limited” as a result of her physical
impairments. Specifically, the ALJ found that in light of Scott’s treatment records
she has the residual functional capacity to perform “light work,” as defined in 20
C.F.R. §§ 404.1567(b) and 416.967(b). Under § 404.1567(b), light work
“involves lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds.” Further, “light work” jobs generally
“require[] a good deal of walking or standing, or . . . involve[] sitting most of the
time with some pushing and pulling of arm or leg controls.” See 20 C.F.R.
§ 404.1567(b). The ALJ noted that Scott’s past relevant work involved serving as
a teacher’s aide, which is categorized as “light work” in the Dictionary of
Occupational Titles (“DOT”). The DOT’s description of the tasks that a teacher’s
aide typically performs matches Scott’s own account of the tasks she completed
while working as a teacher’s aide. These tasks include grading papers, developing
lesson plans, and assisting teachers.
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Scott argues that when the ALJ concluded that she could perform her past
work, the ALJ failed to take into account the fact that the students with whom she
worked as a teacher’s aide were “emotionally disturbed” and “abusive” towards
her. The claimant, however, bears the burden to prove that she is unable to
perform her past relevant work as that job is performed in the general economy,
not merely as it is performed in the specific circumstances in which the claimant
worked in the past. See Jackson, 801 F.2d at 1293-94. Scott does not argue that
she is unable to work as a teacher’s aide as that job is generally performed and has
therefore waived that argument. See Greenbriar, Ltd. v. City of Alabaster, 881
F.2d 1570, 1573 n.6 (11th Cir. 1989) (explaining that issues not argued on the
merits in the parties’ briefs are waived); see also Fed. R. App. P. 28(a)(5).
Further, an ALJ may rely on information contained in the Dictionary of
Occupational Titles to determine whether a claimant can perform her past relevant
work as it is generally performed in the national economy. See Jones v. Apfel,
190 F.3d 1224, 1230 (11th Cir. 1999) (explaining that while the DOT is not
dispositive, the ALJ may “take administrative notice of reliable job information
available from various governmental and other publications, such as the DOT”);
see also 20 C.F.R. § 404.1560(b)(2) (explaining that the Social Security
Administration “may use . . . resources, such as the Dictionary of Occupational
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Titles . . . published by the Department of Labor, to obtain evidence . . . to help . . .
determine whether you can do your past relevant work, given your residual
functional capacity”).
We conclude that substantial evidence supports the ALJ’s determination
that Scott is able to work as a teacher’s aide. The DOT indicates that working as a
teacher’s aide requires only light exertion. See DOT Listing No. 099.327-010,
available at DICOT § 099.327-010. In addition, the ALJ found that Scott’s RFC
allows for light exertion. The ALJ reported that none of Scott’s treating or
examining physicians placed limitations on her ability to function or precluded
Scott from work activity. Substantial evidence thus supports the ALJ’s
determination that Scott could perform her past relevant work as a teacher’s aide.
For these reasons, we AFFIRM the denial of benefits.
AFFIRMED.
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