LUFKIN v. O'MALLEY

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

NILDA I. L., )

)

Plaintiff, )

)

v. ) 1:24CV303

)

FRANK BISIGNANO, )

Commissioner of Social Security,! )

)

Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff Nilda I. L. (“Plaintiff”) brought this action pursuant to Section 205(g) of the

Social Security Act (the “Act”), as amended (42 U.S.C. § 405(g)), to obtain judicial review of a

final decision of the Commissioner of Social Security denying her claim for Disability

Insurance Benefits (“DIB”) under Title H of the Act. The parties have filed cross-motions

for judgment, and the administrative record has been certified to the Court for review.

I. PROCEDURAL HISTORY

Plainuff protectively filed her application for DIB on August 11, 2021, alleging a

disability onset date of September 21, 2019. (Tr. at 19, 176-77)? Her application was denied

* The United States Senate confirmed Frank Bisignano as the Commissioner of Social Security on May 6, 2025,

and he took the oath of office on May 7, 2025. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure,

Frank Bisignano should be substituted as the Defendant in this suit. Neither the Court nor the parties need

take any further action to continue this suit by reason of the last sentence of section 205(g) of the Social Security

Act, 42 U.S.C. § 405(9).

* Transcript citations refer to the Sealed Administrative Record [Doc. #3].

initially (Tr. at 79-85, 102-06) and upon reconsideration (Tr. at 86-92, 108-12). Thereafter,

Plaintiff requested an administrative hearing de novo before an Administrative Law Judge

(“ALJ”). (Tt. at 124-25.) On April 28, 2023, Plaintiff, along with her attorney, attended the

subsequent telephone hearing, at which Plaintiff and an impartial vocational expert testified.

(Tr. at 19.) Following the hearing, the ALJ concluded that Plaintiff was not disabled within

the meaning of the Act (Tr. at 33-34), and, on February 9, 2024, the Appeals Council denied

Plaintiffs request for review, thereby making the ALJ’s ruling the Commissionet’s final

decision for purposes of judicial review (Ir. at 1-6).

II. LEGAL STANDARD

Federal law “authorizes judicial review of the Social Security Commissioner’s denial of

social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cit. 2006). However, the

scope of review of such a decision is “extremely limited.” Frady v. Harris, 646 F.2d 143, 144

(4th Cir. 1981). “The courts ate not to try the case de novo.” Oppenheim v. Finch, 495 F.2d

396, 397 (4th Cir. 1974). Instead, “a reviewing court must uphold the factual findings of the

AL] if they ate supported by substantial evidence and were reached through application of the

correct legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal

quotation omitted).

“Substantial evidence means ‘such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.”’ Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992)

(quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of more than a mete

scintilla of evidence but may be somewhat less than a preponderance.” Mastro v. Apfel, 270

F.3d 171, 176 (4th Cir. 2001) Gnternal citations and quotation marks omitted). “If there is

evidence to justify a refusal to direct a verdict were the case before a jury, then there is

substantial evidence.” Hunter, 993 F.2d at 34 (internal quotation marks omitted).

“In reviewing for substantial evidence, the court should not undertake to re-weigh

conflicting evidence, make credibility determinations, or substitute its judgment for that of the

[AL]].” Mastro, 270 F.3d at 176 (internal brackets and quotation marks omitted). “Where

conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the

responsibility for that decision falls on the ALJ.” Hancock, 667 F.3d at 472. “The issue before

[the reviewing court], therefore, is not whether [the claimant] is disabled, but whether the

ALJ’s finding that [the claimant] is not disabled is supported by substantial evidence and was

reached based upon a cortect application of the relevant law.” Craig v. Chater, 76 F.3d 585,

589 (4th Cir. 1996).

In undertaking this limited review, the Court notes that “[a] clatmant for disability

benefits beats the burden of proving a disability.” Hall v. Harris, 658 F.2d 260, 264 (4th Cir.

1981). In this context, “disability” means the “inability to engage in any substantial gainful

activity by reason of any medically determinable physical or mental impairment which can be

expected to result in death or which has lasted or can be expected to last for a continuous

period of not less than 12 months.” Id. (quoting 42 U.S.C. § 423(d)(1)(A)).?

3 “The Social Security Act comprises two disability benefits programs. The Social Security Disability Insurance

Program (SSDI, established by Title II of the Act as amended, 42 U.S.C. § 401 et seq., provides benefits to

disabled persons who have contributed to the program while employed. ‘The Supplemental Security Income

Program (SSD), established by Title XVI of the Act as amended, 42 U.S.C. § 1381 et seq., provides benefits to

indigent disabled persons. The statutory definitions and the regulations promulgated by the Secretary for

determining disability, see 20 C.F.R. pt. 404 (SSDI); 20 CER. pt. 416 (SSD, governing these two programs are,

in all aspects relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1.

“The Commissioner uses a five-step process to evaluate disability claims.” Hancock,

667 F.3d at 472 (citing 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4)). “Under this process, the

Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period

of disability; (2) had a severe impairment; (3) had an impairment that met or equaled the

requirements of a listed impairment; (4) could return to her past relevant work; and (5) if not,

could perform any other work in the national economy.” Id.

A finding adverse to the claimant at any of several points in this five-step sequence

forecloses a disability designation and ends the inquity. For example, “[t]he first step

determines whether the claimant is engaged in ‘substantial gainful activity.’ If the claimant is

working, benefits are denied. The second step determines if the claimant is ‘severely’ disabled.

If not, benefits are denied.” Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).

On the other hand, if a claimant carries his or her burden at the first two steps, and if

the claimant’s impairment meets or equals a “listed impairment” at step three, “the claimant

is disabled.” Mastro, 270 F.3d at 177. Alternatively, if a claimant clears steps one and two,

but falters at step three, ie., “[i]fa claimant’s impairment is not sufficiently severe to equal or

exceed a listed impairment,” then “the AL} must assess the claimant’s residual functional

capacity (RFC’).” Id. at 179.4 Step four then requires the ALJ to assess whether, based on

+ “REC is a measurement of the most a claimant can do despite [the claimant’s] limitations.” Hines, 453 F.3d

at 562 (noting that administrative regulations require RFC to reflect clatmant’s “ability to do sustained work-

related physical and mental activities in a work setting on a regular and continuing basis . . . [which] means 8

hours a day, for 5 days a week, or an equivalent work schedule” (internal emphasis and quotation marks

omitted)). The RFC includes both a “physical exertional or strength limitation” that assesses the claimant’s

“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as “nonexertional limitations

(mental, sensory, or skin impaitments).” Hall, 658 F 2d at 265. “RFC is to be determined by the AL] only after

[the ALJ] considers all relevant evidence of a claimant’s impairments and any related symptoms (¢.g., pain).”

Hines, 453 F.3d at 562-63.

that REC, the claimant can “perform past relevant work”; if so, the claimant does not qualify

as disabled. Id. at 179-80. However, if the claimant establishes an inability to return to prior

work, the analysis proceeds to the fifth step, which “requires the [Government] to prove that

a significant number of jobs exist which the claimant could perform, despite the claimant’s

impairments.” Hines, 453 F.3d at 563. In making this determination, the AL] must decide

“whether the claimant is able to perform other work considering both [the claimant’s RFC]

and [the claimant’s] vocational capabilities (age, education, and past work experience) to adjust

to a new job.” Hall, 658 F.2d at 264-65. If, at this step, the Government cannot carry its

“evidentiaty burden of proving that [the claimant] remains able to work other jobs available

in the community,” the claimant qualifies as disabled. Hines, 453 F.3d at 567.

Il. DISCUSSION

In the present case, the AL] found that Plaintiff had not engaged in substantial gainful

activity between September 21, 2019, her alleged onset date, and September 30, 2020, which

was her Date Last Insured for purposes of DIB. The AL] therefore concluded that Plainuff

met her burden at step one of the sequential evaluation process. (Ir. at 22.) At step two, the

ALJ further determined that Plaintiff suffered from the following severe impairments:

rheumatoid arthritis; asthma; irritable bowel syndrome; umbilical hernia; and

Raynaud’s disease[.]

(Tr. at 22.) The ALJ found at step three that none of these impairments, individually or in

combination, met or equaled a disability listing. (Tr. at 24-26.) Therefore, the AL] assessed

Plaintiffs RFC and determined that she could perform light work with the following,

additional limitations:

[Plaintiff] can frequently reach, handle, finger, and feel. [She] can occasionally

climb, and can frequently stoop, balance, kneel, crouch, and crawl. [Plaintiff]

can tolerate no exposute to extreme cold. [She] can tolerate occasional exposure

to pulmonary irritants.

(Tt. at 26.) At step four of the analysis, the ALJ determined that Plaintiffs past relevant work

did not exceed her RFC. Specifically, the AL] found that Plaintiff remained capable of

performing her “past relevant work as a Customer Service Representative (DOT #239.362-

014; sedentary; SVP 5; skilled)”. (Tr. at 33.) Therefore, the AL] concluded that Plaintiff was

not disabled under the Act. (Ir. at 33-34.)

Plaintiff now challenges the ALJ’s step four finding, contending that her work as a

Customer Service Representative did not qualify as past relevant work because the Customer

Service Representative position was (1) not performed at substantial gainful activity levels and

(2) not performed long enough for her to learn the job. Specifically, Plaintiff first contends

that her “earnings record establishes a presumption that her [past] work was not performed at

substantial gainful activity levels” and that the ALJ did not make sufficient findings to rebut

that presumption. Second, Plaintiff notes that the Customer Service Representative position

has a Specific Vocational Preparation (“SVP”) of 5, requiting “over 6 months and up to an

including 1 year” to learn the job, but at the schedule and rate cited by the ALJ, she would

have been in the Customer Service Representative position less than six months.

In considering these contentions, the Court notes that under the regulations, past work

experience is only considered “relevant” when it is (1) work that was done within the past 15

years, (2) was substantial gainful activity, and (3) lasted long enough for [the claimant] to learn

to do it. 20 C.F.R. § 404.1560(b)(1).5 The 15-year requirement encompasses the earlier of (1)

the 15 years immediately prior to the disability hearing or (2) the 15 years prior to the date the

claimant last met the disability insured status requirements. Social Security Ruling (“SSR”) 82-

62, Titles II and XVI: A Disability Claimant’s Capacity to do Past Relevant Work, in General,

1982 WL 31386, at *2 (1982). ‘Thus, in the present case, the relevant period would cover

September 30, 2020 (the Date Last Insured) back to September 30, 2005 (15 years prior).°

When evaluating the second requirement, whether Plaintiffs work activity qualifies as

substantial gainful activity (“SGA”), the regulations provide that the claimant’s earnings

teptesent the “primary consideration.” 20 C.F.R. § 404.1574(a)(1). To assist in this inquiry,

the regulations further establish earnings thresholds below which work generally does not

qualify as SGA. See 20 C.F.R. § 404.1574(b)(2); see also POMS § DI 10501.015B (providing

table of monthly SGA eatnings thresholds for calendar years 1978 through 2025). In other

5 The current version of 20 C.F.R. 404.1560(b)(1) provides that past work experience is work that was done

within the past 5 years, rather than the past 15 years. That regulation went into effect in June 2024. See 89

Fed. Reg. 27653 (April 18, 2024). Because the decisions in Plaintiff's case were entered before June 2024, the

Court considers the regulations in effect at the time of the decisions in this case.

6 SSR 82-62 was tescinded and replaced by SSR 24-2p on June 22, 2024. See SSR 24-2p: Titles TI and XVI:

How We Evaluate Past Relevant Work, 89 Fed. Reg. 48479, 2024 WL 2846571 (June 6, 2024). Again, because

Plaintiff's case was decided prior to that date, the Court considers the case under SSR 82-62 in effect at the

time of the decision in her case. See SSR 24-2p at n.1 (“We will use this SSR beginning on its applicable date.

We will apply this SSR to new applications filed on or after the applicable date of the SSR and to claims that

ate pending on and after the applicable date. This means that we will use this SSR on and after its applicable

date in any case in which we make a determination or decision. We expect that Federal courts will review our

final decisions using the rules that were in effect at the time we issued the decisions. If a court reverses our final

decision and remands a case for further administrative proceedings after the applicable date of this SSR, we will

apply this SSR to the entire period at issue in the decision we make after the court’s remand.”).

The Court notes, however, that under SSR 24-2p, past relevant work must be performed within 5 years,

tather than 15 years, prior to the Date Last Insured (or the adjudication date if the DLI is still in the future),

which in this case would cover the five year period from September 30, 2020 (the Date Last Insured) back to

September 30, 2015 (5 years prior). Plaintiffs work as a Customer Service Representative for the City occurred

in 2014, which would appear to raise an additional issue for Defendant if SSR 24-2p were applied here. The

Court need not consider the issue further, given the analysis set out above.

wotds, the agency’s earnings guidelines set out the minimum amount a claimant must have

eatned to create a presumption that she performed substantial gainful activity during that year.

Finally, regarding the last of the three past relevant work requirements, whether the

wotk lasted long enough for the claimant to learn to do it, this requirement “refers to the

length of time during which the person gained job experience. It should have been sufficient

for the worker to have learned the techniques, acquired information, and developed the facility

needed for average performance in the job situation.” SSR 82-62 at *2. The job identified in

this case, Customer Service Representative, involves an SVP level of 5, meaning that the job

takes “over 6 months and up to and including 1 year” to learn. DOT #239.362-014, 1991 WL

672224.

In analyzing Plaintiff's past relevant work in light of these factors and requirements,

the ALJ found as follows:

Through the date last insured, the claimant was capable of performing past

relevant work as a Customer Service Representative (DOT # 239.362-014;

sedentaty; SVP 5; skilled). This work did not requite the performance of work-

related activities precluded by the claimant’s residual functional capacity (20

CFR 404.1565). At the heating before the undersigned, the vocational expert

testified that the claimant has past relevant work as a Customer Service

Representative (DOT # 239.362-014; sedentary; SVP 5; skilled). This work

qualifies as past relevant work because it was performed during the last fifteen

yeats, it was performed at substantial gainful activity levels, and it was

performed for a long enough period of time for the claimant to learn the jobs.

The claimant reported work as an Admin Assistant/Customer Service with a

staffing agency and city from 1999 through 2017, stating that she earned $10 an

hour and worked 8 hours a day, 5 days a week. (Exhibit B2E; B3E). The

claimant reported this work, performed within the last 15 years, was performed

well in excess of the amount of time needed to learn the job skills, as skilled

work at the Special Vocational Preparation Level of 5 requites no mote than 1

yeat to learn. (Dictionary of Occupational Titles Fourth Ed., Appendix C). The

wages and houts worked reported by the claimant support the determination

that this work was performed at the substantial gainful activity level. (Exhibit

B2E; B3E). Therefore, this work qualifies as past relevant work. Furthermote,

this work was identified as past relevant work in a prior, administratively final

decision by the Commissioner. (Exhibit B1A).

(Tr. at 33.)

Notably, the record in this case includes three pieces of evidence relevant to the analysis

of these requitements: Plaintiff's own testimony regarding her past work (Tr. at 44-45), the

Work History Report completed by Plaintiff prior to her hearing (Tr. at 197-207), and

Plaintiffs earnings records for the years at issue (Ir. at 179-92).

In the Work History Report, Plaintiff entered the following description in a single

entry:

Admin Assist/customer service Staffing agency, city 1999 — 2017

197.) As to that entry, Plaintiff reported that she worked 8 hours per day, 5 days per week,

eatning $10.00 per hour. However, Plaintiffs earnings record reflects that in the years 2002,

2003, 2007, 2008, 2009, and 2015, Plaintiff earned no income at all. The earnings record also

teflects that she only worked for the City in 2014, and that she worked for a staffing agency

in 2013. At the hearing, the AL} questioned Plaintiff as follows regarding her work:

Q Okay. Now, one of the things that I’m supposed to do is to ask you some

questions about work that you’ve done in the past. And I noticed that oh, back

in I guess 2014 or so, you’te listed as having worked with the City of Salisbury,

is that rightp

A Yes, Your Honor.

Q And what did you do there?

A I did process like for, I had to be sitting down and taking customers overt

the phone or in person, they could be taking, you know, payments for a setvice.

Q Okay. What kind of service wete you taking payments for?

A Water service and the new contracts, water bills.

Q So, really, it was an office job, you wete sitting down, and you took a lot

of phone calls, did you make phone calls?

A Very rately, it would be up there with a client that needed help or take

the questions.

Q Okay. And did you have a title? Did your employer give you a name to

desctibe what it was that you did

A If I’m not mistaken, it was clerk.

Q So, an office clerk, okay. Now, the yeat before then, you're listed as

having done some work for Debbie’s Staffing Services, in Winston Salem, do

you temember what you did for Debbie’s Staffing Services?

A It was an office coordinator. Taking calls and doing a lot of paperwork

fot people would desire to get hired.

Q Okay. So, it was another sort of office clerk type job?

A Correct.

(Tr. at 44-45.) The AL] did not ask Plaintiff about any work other than these two positions

from 2013 and 2014. Later in the hearing, the AL] questioned the vocational expert regarding

the classifications of these jobs. The expert stated that Plaintiffs job “for the City of

Salisbury” was classified by the Dictionary of Occupational Titles (“DOT”) “as customer

setvice representative, DOT #239.362 014, that’s sedentary, SVP 5, skilled.” The vocational

expert provided a separate classification for the job with Debbie’s Staffing Services, testifying

that “for the job office for staffing, ’m going to use employment clerk, DOT #205.362 014,

also sedentary, also SVP 5, and that’s skilled.” (I't. at 58.) Plaintiffs earnings record reflects

a total income in 2014 of $9707.50, all for her work with the City, and a total income in 2013

of $8612.35, all for her work with Debbie’s Staffing Services. As Plaintiff correctly notes, the

AL] only relied upon Plaintiffs job as a Customer Service Representative at step four (see Tt.

10

at 33), which was her work for the City in 2014 with earnings of $9707.50 total, based on the

testimony of the vocational expert and the earnings record.

Notably, however, the ALJ’s analysis did not consider Plaintiff's earnings records when

determining whether Plaintiffs work constituted SGA, despite the regulatory directive that a

claimant’s eatnings must be the “primary consideration” at this step. 20 C.F.R.

§ 404.1574(a)(1). Even a cursory glance at Plaintiff's earnings from 1999 to 2017 reveals that

she did not work as a Customer Service Representative throughout that time, as most years

have no earnings at all, and 2014 was the only year with earnings from the City, which was the

only Customer Service Representative job identified by the vocational expert. Although

Plaintiff's earnings in 2014, the only year she performed this work, ate the highest of any year

in consideration, they still only amount to $9707.50. (T'r. at 182.) Defendant concedes that

this amount, when averaged over 12 months, falls below the level of SGA for that year.’

The ALJ failed to acknowledge, let alone reconcile, this evidence with his finding that

Plaintiffs job as a Customer Service Representative was performed at SGA levels. See Olivia

O'Malley, 2024 WL 3043187, 1:23CV422 (M.D.N.C. June 18, 2024) (Auld, MJ.)

(compiling the following cases: Klemens v. Berryhill, 703 F. App’x 35, 38 (2d Cir. 2017)

(“T]he ALJ merely assetted—without any discussion—that [the plaintiff] performed the job

as a cleanet with sufficient earnings to raise the presumption of [SGA]. The AL] did not, for

example, find (or even allude) that [the plaintiffs] certified earnings record omitted certain

income, not did the ALJ expressly recognize the existence of (much less reconcile) the various

7 For 2014, the SGA level was $1,070 per month, which would translate to $12,840.00 for the year. See POMS

§ DI 10501.015B (providing table of monthly SGA earnings thresholds for calendar years 1978 through 2025).

11

pieces of contradictory evidence. Moreover, the ALJ did not provide a record citation to any

of the pertinent [conflicting] evidence... , which would have at least provided some indication

that he had considered the contrary evidence. In short, based on our review of the certified

administrative record, the ALJ simply failed to acknowledge relevant evidence or explain his

implicit rejection of the conflicting evidence.” (internal quotation marks and citation omitted));

Michael L. v. Kijakazi, No. 2:20CV6440, 2021 WL 5868326, at *4 (C.D. Cal. Dec. 9, 2021)

(“Plaintiffs Earnings Statements indicate that . . . his earnings fell far below the level required

to constitute [SGA]. The SSA’s Earnings Report is probative evidence bearing directly on the

amount of a claimant’s wages. The ALJ was not permitted to disregard such evidence without

explanation. The AL]’s failure to discuss why she discounted earnings evidence reported from

outside government agencies in favor of Plaintiffs self-reports prevents this Court from

effectively reviewing whether the AL]’s decision to do so was supported by substantial

evidence and free of legal error.” (internal footnote, citations, quotation marks, and brackets

omitted)); Parrott _v. Berryhill, No. 6:17CV558, 2019 WL 2578713, at *4 (E.D. Tex. June 24,

2019) (remanding where, as here, the plaintiff's statements on her Disability Report conflicted

with her Earnings Statement, and noting that the “record contain[ed] conflicting evidence

concerning whether [the p]laintiff’s job as a housekeepet was SGA.” “Despite the conflict, the

AL] simply stated that [the p]laintiff worked as a housekeeper at SGA levels” and “made no

attempt to cleat the ambiguity in the record or provide evidentiary support for his decision.”);

Gonzales v. Colvin, No. CV 14-835, 2016 WL 10592219, at *6 (D.N.M. Feb. 24, 2016)

(“[Gl]iven [the plaintiff's] short work periods and limited earnings as a document specialist, the

ALJ had a responsibility to evaluate whether [the plaintiff's] past work as a document specialist

12

was [SGA].... The AL} did not do so. Instead, he appeated to have relied solely on [the

plaintiffs] Work History Form and testimony that she worked full time as a document

specialist. Had the ALJ thoroughly reviewed the record, he would have uncovered that [the

plaintiff's] reported work history and testimony failed to align with her actual earnings and, as

such, his evaluation required more, including developing the record.” (internal citation

omitted))). Given that the AL] failed to address or reconcile the evidence from the earnings

tecord, it is not cleat whether or how the ALJ considered that evidence, even though the

earnings tecord should be the “primary consideration” under the applicable regulations. See

Olivia S. v. O’Malley, 2024 WL 3043187, 1:23CV422 (M.D.N.C. June 18, 2024).

Defendant nevertheless contends that Plaintiff could have worked for a shorter period

of time such that her earnings of $9707.50 for the yeat would translate to a monthly amount

that exceeds the SGA. For example, Defendant hypothetically posits that Plaintiff could have

worked 9 months at $1,078.61 per month, which would exceed the $1,070 per month SGA

and total $9707.50 for the year. Defendant faults Plaintiff for failing to raise this issue at the

heating so that the record could be developed on this point. However, the Court must rely

on the reasoning provided by the AL]. See Olivia S., 2024 WL 3043187. In this case, the ALJ

explained only that “[t]he wages and hours worked reported by the [Plaintiff] support the

determination that this work was performed at the substantial gainful activity level.” Looking

at the record regarding “the wages and hours worked reported by” Plaintiff, Plaintiff reported

working 8 houts per day, 5 days per week, at $10.00 per hour, which would total $400.00 pet

week. Given the $9707.50 reflected in the earnings statement, that would mean she worked

for 24.25 weeks at $400.00 per week. This would indeed exceed the monthly SGA level of

13

$1,070.00 per month, and could provide a possible basis for following the ALJ’s reasoning

regarding the SGA amounts. However, even if the Court accepts that reasoning, 24.25 weeks

is less than 6 months. As discussed above, the ALJ also found that the job “was performed

well in excess of the amount of time needed to learn the job skills”, but the work was at SVP

5 requiring at least 6 months and no mote than 1 year to learn. If the work was performed at

the SGA level based on the wages and hours worked, as indicated by the ALJ, the record

would not provide substantial evidence to support the conclusion that Plaintiff had worked at

the position over 6 months, and the ALJ failed to include any other explanation or analysis

that would allow the Court to follow his reasoning.

The Coutt also notes that in the briefing, Defendant combines Plaintiffs 2013 position

at the staffing agency and 2014 position at the City, repeatedly referring to Plaintiff's work as

a customer setvice tepresentative “for a city staffing agency.” (Def.’s Br. at 4, 9.) However,

the Vocational Expert clearly identified two separate positions, the Customer Service

Representative at the City, and the Employment Clerk at Debbie’s Staffing, and the vocational

expert did not provide any testimony regarding the transferability of skills from one to anothet.

The ALJ also did not include any discussion or analysis regarding the 2013 position of

Employment Clerk with the staffing agency, and the Court cannot make the initial

determination of whether or how that position might impact Plaintiffs subsequent 2014

position as Customer Service Representative for the City.6 The Court also cannot find the

® With respect to the Employment Clerk position, Plaintiffs earnings record from 2013 reflects total annual

earnings of $8612.35, which would likewise be below the SGA for 2013. In addition, at $10 per hour for 8

hours per day for 5 days per week, or $400.00 per week, Plaintiffs earnings would exceed SGA, but the total

earnings of $8612.35 would reflect only 21.5 weeks of work at those wages and houts. That is also less that the

time needed to learn the job of Employment Clerk, which is also SVP 5, requiring over six months but no more

than 1 year to learn. The Court need not consider this further, as the ALJ did not rely on the Employment

14

failure harmless, as the ALJ did not include other past relevant work or an alternative step five

finding on which the Coutt could rely.

Finally, to the extent Defendant contends that Plaintiff cannot raise this issue because

she failed to raise it explicitly at the hearing, Plaintiff notes that there was no way for her to

know at the hearing what past relevant work the ALJ might rely on or what the ALJ’s analysis

of the evidence might be, and it is the ALJ’s obligation to adequately develop the record.

Moteover, Plaintiff also notes that the Commissioner has previously “concede[d] that there

ate no statutes or regulations requiting issue exhaustion in Social Security proceedings.”

Probst v. Saul, 980 F.3d 1015, 1020 (4th Cir. 2020). Plaintiff further notes that she was not

given any notice that she would forfeit issues not raised before the ALJ, not was thete any

feasible way for her to raise challenges to issues not yet decided by the ALJ. In this context,

failing to raise the issue at the hearing does not result in a waiver or forfeiture of the ability to

challenge the ALJ’s determination regarding past relevant work.?

Ultimately, the analysis of past relevant work is a decision for the ALJ, and the Court

considers whether there is substantial evidence in the record to support the AL]’s decision,

based on the reasoning provided by the ALJ. Hete, the regulatory presumption would indicate

Clerk position in any event, but the Court notes again that it is for the ALJ in the first instance to explain the

analysis based on the evidence in the record.

9 Defendant also points to the fact that a prior ALJ decision also determined that at least one of Plaintiff's prior

jobs constituted past relevant work. However, as the ALJ in the current decision acknowledged, he was

required to “consider [the prior disability determination] as evidence and give it appropriate weight in light of

all relevant facts and circumstances.” (Tr. at 31.) This directive required him, among other matters, to consider

all evidence relating to Plaintiff's past relevant work. That analysis required more than just the determination

from the prior proceeding. Moreover, the prior determination included other positions as past relevant work,

including Pharmacy Tech, such that any error regarding the Customer Service Representative position may

have been harmless in the prior determination but was no longer harmless when it was the only position relied

upon by the ALJ. Most importantly, the ALJ did not explain this analysis in a way that would allow the Court

to trace his reasoning.

15

that Plaintiff's 2014 work as a Customer Service Representative for the City was below SGA

based on the annual amount shown in the eatnings record. The ALJ found that the work

exceeded SGA based on the report of wages and hours worked, without addressing the

eatnings record. To the extent the ALJ concluded that Plaintiff worked 8 hours per day, 5

days per week, from 1999 to 2017 as a Customer Service Representative, the record clearly

contradicts that conclusion, based on the earnings records showing no earnings for most years,

and only limited earnings in 2014 for the one job identified as a Customer Setvice

Representative position. The ALJ did not explain or reconcile that conflict. Moreover, to the

extent the ALJ relied on “[t]he wages and hours worked reported,” of 8 hours per day 5 days

per week at $10 per hour, that tecotd could reflect monthly income of $400/week in 2014,

above the SGA, but in that case the record would not support a finding that Plaintiff worked

at the position for over 6 months, long enough to learn the SVP 5 job. There certainly may

be a way to teconcile and explain the determination, but that is for the ALJ to address in the

first instance. Given the lack of explanation, and the evidence in the earnings record that

directly contradicted the ALJ’s conclusions, the Court cannot follow the ALJ’s analysis, and

the Court cannot find substantial evidence to support the AL]’s decision as presented.

IT IS THEREFORE RECOMMENDED that the Commissionet’s decision finding

no disability be REVERSED, that Defendant’s Dispositive Brief [Doc. #9] be DENIED, that

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Plaintiff's Dispositive Brief [Doc. #6] be GRANTED, and that this action be REMANDED

for further consideration in accordance with the directives set out herein.

This, the 12% day of September, 2025.

h on Peake

nited States Magistrate Judge

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