Susan Scharber vs Commissioner of Social Security ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-11604 ELEVENTH CIRCUIT
Non-Argument Calendar JANUARY 31, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 8:08-cv-02049-MAP
SUSAN SCHARBER,
lllllllllllllllllllllPlaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
lllllllllllllllllllllDefendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(January 31, 2011)
Before BARKETT, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Susan Scharber appeals from the magistrate judge’s order affirming the
Commissioner’s denial of her application for a period of disability, disability
insurance benefits, and supplemental security income, 42 U.S.C. §§ 405(g),
1383(c)(3). Scharber argues that because her past relevant work was more like
that of a “child monitor” than a “teacher’s aide,” the Administrative Law Judge
(“ALJ”) should have classified her as a “child monitor,” which dictated a finding
that she was disabled.
We review the ALJ’s ruling, not the district court’s judgment. Shinn ex rel.
Shinn v. Comm’r of Soc. Sec., 391 F.3d 1276, 1282 (11th Cir. 2004). Where the
ALJ denies benefits and the Appeals Council denies review of that decision, we
review the decision of the ALJ as the Commissioner’s final decision. Doughty v.
Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). We do not reweigh evidence, decide
facts anew, or make credibility findings. Moore v. Barnhart, 405 F.3d 1208, 1211
(11th Cir. 2005). We review the entire record to determine whether the decision
was supported by substantial evidence. Id. Substantial evidence is more than a
scintilla, Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997), but less than a
preponderance, and is “such relevant evidence as a reasonable person would
accept as adequate to support a conclusion,” Moore, 405 F.3d at 1211.
The issue is whether substantial evidence supports the ALJ’s finding that
given Scharber’s residual functional capacity (“RFC”), Scharber could perform her
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past relevant work as a teacher’s aide as actually performed or as generally
performed in the national economy. The Social Security regulations set forth the
following five-step “sequential evaluation” process to determine whether a
claimant is disabled: (1) the disability examiner determines whether the claimant is
engaged in “substantial gainful activity”; (2) if not, the examiner decides whether
the claimant’s condition or impairment is “severe,” i.e., whether it significantly
limits the claimant’s physical or mental ability to do basic work activities; (3) if
so, the examiner decides whether the claimant’s impairment meets or equals the
severity of the specified impairments in the Listing of Impairments (“Listing”),
thereby precluding any gainful work activity; (4) if the claimant has a severe
impairment that does not meet or equal the severity of an impairment in the
Listing, the examiner assesses a claimant’s RFC, which measures whether a
claimant can perform past relevant work despite the impairment; (5) if the
claimant is unable to do past relevant work, the examiner determines whether, in
light of the claimant’s RFC, age, education, and work experience, the claimant can
perform other work. See Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir.
1997); 20 C.F.R. §§ 404.1520(c)-(f), 416.920(c)-(f).
A claimant seeking disability benefits bears the burden of proving that she
cannot perform her past relevant work either as she performed it or as it is
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generally performed in the national economy. 20 C.F.R. §§ 404.1520(f),
404.1560(b)(3). If the ALJ finds that the claimant cannot perform the functional
demands and duties of her past job as she actually performed it, he will consider
whether the claimant can perform the functional demands and duties of the
occupation as generally required by employers throughout the national economy.
See SSR 82-61, 1982 WL 31387 (1982). An ALJ may rely on information
contained in the Dictionary of Occupational Titles (“DOT”) to determine whether
a claimant can perform her past relevant work as it is generally performed in the
national economy. Id.The Dictionary of Occupational Titles describes the duties of the two jobs
that are at issue. A “teacher’s aide” is classified as light work, and involves any
combination of the following duties in a classroom to assist teaching staff in
elementary or secondary education: (1) taking attendance; (2) grading homework
and tests; (3) distributing teaching material to students; (4) maintaining order
within a school and on school grounds; (5) operating learning aids; (6) preparing
requisitions for library material and stockroom supplies; and (7) typing material
and operating duplicating equipment to reproduce instructional materials. See
Dictionary of Occupational Titles Listing No. 249.367-074. A “child monitor” is
classified as medium work, and involves any combination of the following duties
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to attend to children in a private home: (1) observing and monitoring play
activities; (2) amusing children by reading to or playing with them; (3) preparing
and serving meals or formulas; (4) sterilizing bottles; (5) dressing or assisting
children dress and bathe; (6) accompanying children on walks or other outings; (7)
washing and ironing clothing; (8) keeping children’s quarters clean and tidy; and
(9) cleaning other parts of the home. See Dictionary of Occupational Titles
Listing No. 301.677-010. A child monitor may also be classified as an infant’s
nurse or a babysitter. See id.As an initial matter, Scharber does not dispute the ALJ’s finding that she
had the RFC to perform a full range of light work. Rather, her sole contention on
appeal is that the ALJ should have examined her work duties and should have
concluded that she was a “child monitor” instead of a “teacher’s aide.” The
crucial difference between the two is that the child monitor is classified as medium
work while the teacher’s aide is classified as light work.
Substantial evidence supports the ALJ’s determination that Scharber could
perform her actual past relevant work as a teacher’s aide. In her work history
report, Scharber reported that she had to walk for 2 hours per day, stand for 4
hours per day, sit, kneel, and grab or grasp for 1 hours per day, and lift up to 20
pounds. The ALJ found, and Scharber does not contest, that Scharber had the
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RFC to occasionally lift and/or carry up to 20 pounds, frequently lift and/or carry
10 pounds, and sit and stand/walk for 6 hours out of an 8-hour workday. Although
Scharber’s work history report indicated that she frequently lifted 25 pounds,
substantial evidence supports the ALJ’s finding that Scharber’s past work, as
actually performed, could be done by someone with her RFC. Notably, although
she selected 25 pounds on her work history report, she did not have the option to
check a box for any amount of weight between 10 and 25 pounds. Moreover,
Scharber’s past relevant work matched the RFC of occasionally lifting 20 pounds,
given that she (1) only lifted in the 1- or 2-year-old room, but not when she was
with the 3- or 4-year-olds; (2) lifted the 1-year-olds only to put them in high chairs
for feeding, onto changing tables for changing diapers, or onto playground
equipment; and (3) lifted 2-year-olds only onto playground equipment.
We hold that substantial evidence supports the ALJ’s determination that
Scharber could perform her past relevant work as actually performed. Because
substantial evidence supports the ALJ’s finding that Scharber actually could
perform her past relevant work, we will not consider whether the ALJ properly
classified Scharber as a “teacher’s aide,” instead of as a “child monitor,” when
determining if Scharber could perform the job as generally performed in the
national economy.
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Accordingly, upon review of the record and consideration of the parties’
briefs, we affirm the Commissioner’s decision.
AFFIRMED.
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