     Case: 14-30955         Document: 00512967607         Page: 1     Date Filed: 03/12/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit

                                        No. 14-30955                                    FILED
                                                                                  March 12, 2015
                                                                                      Lyle W. Cayce
TEISHA PRUDHOMME,                                                                          Clerk

                                                    Plaintiff-Appellant

v.

CAROLYN COLVIN, ACTING                       U.S.     COMMISSIONER             OF       SOCIAL
SECURITY ADMINISTRATION,

                                                    Defendant-Appellee


                     Appeal from the United States District Court
                        for the Western District of Louisiana
                              USDC No. 2:12-CV-03062


Before JONES and HAYNES, Circuit Judges, and CRONE, District Judge. *
PER CURIAM: **
      Plaintiff-Appellant         Teisha     Prudhomme        (“Prudhomme”),           a    Social
Security disability claimant, appeals the district court’s affirmance of the
Commissioner of Social Security’s denial of disability insurance benefits
under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g). We find the




      *   District Judge for the Eastern District of Texas, sitting by designation.

      ** Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.
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                                      No. 14-30955


Commissioner’s decision is not supported by substantial evidence. Therefore,
we REVERSE and REMAND for additional proceedings.
                                                 I.
       Prudhomme filed her application for disability insurance benefits on
March 5, 2010, alleging a disability onset date of February 2, 2010, due to
heart problems and diabetes mellitus. Her application was denied by the
Social Security Administration (“SSA”).               The case was referred to an
Administrative Law Judge (“ALJ”), who held a hearing and applied the
analytical framework for determining whether an individual is disabled. 1
       During the hearing, a vocational expert (“VE”) described Prudhomme’s
prior work as: “cashier . . . light-duty, unskilled occupation, SVP 2;” “[s]hort
order cook . . . Light duty, semi-skilled, SVP 3;” and Certified Nursing
Assistant (“CNA”), “Medium duty, semi-skilled, SVP 4.” In response to a
hypothetical question from the ALJ asking him to identify occupations a
person similarly situated to Prudhomme could perform, the VE testified:
       Yes, sir. There’s a variety of cashier positions that would be from
       the unskilled up to the semi-skilled occupational level at the
       sedentary level. And at the sedentary level, in the state of
       Louisiana – let’s see. DOT [Dictionary of Occupational Titles]

       1 The Commissioner generally employs a five-step process to determine whether a
claimant is disabled within the meaning of the SSA. See Copeland v. Colvin, 771 F.3d 920,
923 (5th Cir. 2014); Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002); see also 20
C.F.R. § 404.1520. “First, the claimant must not be presently working.” Copeland, 771
F.3d at 923. Second, the “claimant must establish that [she] has an impairment or
combination of impairments which significantly limit [her] physical or mental ability to do
basic work activities.” Id. Next, “a claimant must establish that [her] impairment meets or
equals an impairment in the appendix to the regulations” and show “that [her] impairment
prevents [her] from doing past relevant work.” Id. If these four elements are met, “the
burden shifts to the Secretary to establish that the claimant can perform the relevant work.
If the Secretary meets this burden, the claimant must then prove that [she] cannot in fact
perform the work suggested.” Id.; Waters, 276 F.3d at 718; see 20 C.F.R. § 404.1520. “If at
any step the Commissioner finds that the claimant is or is not disabled, the ALJ need not
continue the analysis.” Copeland, 771 F.3d at 923 (citing Leggett v. Chater, 67 F.3d 558,
564 (5th Cir. 1995)).

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      number of a cashier at the sedentary is 211.482-010. That’s part
      of a cashier category. In the state of Louisiana, you’re looking at
      10,800 occupations. National economy, 660,000. A second group
      of occupations would be receptionist and information clerk. And
      the DOT number for this one – an information clerk, information
      clerk, excuse me – 237.367-022. And these are all sedentary,
      semi-skilled occupations.      State of Louisiana has 1,900
      occupations. National economy, 142,000. And . . . interviewing
      clerk. It’s sedentary, SVP 4. This is an outpatient admin clerk.
      205.362-030. And in the state of Louisiana, an estimate [sic]
      number of 490 occupations. National economy, 73,000.

      Regarding the first four steps of the process, the ALJ found that
Prudhomme:      (1) “has not engaged in substantial gainful activity since
February 2, 2010;” (2) has the severe impairments of “severe cardiomyopathy
and diabetes mellitus;” (3) “does not have an impairment or combination of
impairments that meets or medically equals one of the listed impairments in
20 CFR Part 404, Subpart P, Appendix 1;” and (4) “has the residual
functional capacity to perform sedentary work . . . with the additional
nonexertional limitations of occasional balancing, stooping, kneeling,
crouching, and crawling, less than occasional climbing ramps and stairs, no
climbing of ladders, ropes or scaffolds, avoiding all exposure to fumes, odors,
dust, and gases, and avoiding concentrated exposure to temperature
extremes, wetness, humidity and vibration,” and is “unable to perform any
past relevant work.”
      At step five, however, the ALJ concluded that “there are jobs that exist
in significant numbers in the national economy that the claimant can
perform” and found the transferability of job skills immaterial to the
determination of disability. Accordingly, the ALJ found Prudhomme not to
be disabled at step five.



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      Thereafter, the Appeals Council denied Prudhomme’s request for
review, and the ALJ’s ruling became the final decision of the Commissioner.
Prudhomme sought judicial review, complaining that the ALJ posed a
defective hypothetical question to the VE, the VE gave defective step five
testimony, and the ALJ failed to comply with SSR 00-4p.
      The district court rejected Prudhomme’s arguments and affirmed the
ALJ’s decision. 2 The magistrate judge stated that the ALJ’s finding that the
transferability of job skills was immaterial to the disability determination
meant that “the ALJ found that Prudhomme is effectively unskilled.” The
magistrate judge noted that “the VE identified three semi-skilled jobs for
Prudhomme, despite the fact that the ALJ found she was effectively
unskilled.” 3   Nonetheless, the magistrate judge recommended affirmance,
holding that substantial evidence supported the Commissioner’s finding that
Prudhomme is not disabled because “the job of sedentary cashier is listed as
unskilled work, as well as semi-skilled, so Prudhomme should be able to do
that work” and because “Prudhomme’s prior work as a cashier afforded her
the skills necessary to perform work as a sedentary cashier.” Prudhomme
timely appealed.
                                                II.
      “Our review of Social Security disability cases ‘is limited to two
inquiries: (1) whether the decision is supported by substantial evidence on
the record as a whole, and (2) whether the Commissioner applied the proper
legal standard.’” Copeland, 771 F.3d at 923 (quoting Perez v. Barnhart, 415


      2  A United States magistrate judge issued a report recommending that the
Commissioner’s decision be affirmed by the district court, which the district court adopted
on June 16, 2014.

      3  The magistrate judge stated that this finding was error but that Prudhomme was
not prejudiced by the error.
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F.3d 457, 461 (5th Cir. 2005)). Substantial evidence is “more than a mere
scintilla and less than a preponderance,” and it refers to “such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.” Perez, 415 F.3d at 461 (citation and internal quotation marks
omitted).   This court “may not reweigh the evidence or substitute [our]
judgment for the Commissioner’s.” Id. (internal citation omitted). Rather,
“[we] may affirm only on the grounds that the Commissioner stated for his
decision.” Copeland, 771 F.3d at 923 (citing Cole v. Barnhart, 288 F.3d 149,
151 (5th Cir. 2002) (per curiam)).
      As noted, only step five of the sequential analysis is at issue here.
Prudhomme asserts that because the ALJ essentially found her unskilled, he
erroneously concluded that she could perform the semi-skilled jobs identified
by the VE. The Commissioner counters that any such error was harmless
because “the totality of the evidence indicates Prudhomme could perform the
semi-skilled jobs” and “the record supports a finding that Prudhomme was
not disabled even if restricted to unskilled work.” We disagree.
      Although it is not entirely clear that the ALJ specifically found
Prudhomme to be unskilled, this appears to be his conclusion.          First, 20
C.F.R. § 404.1565(a) provides that “[i]f you cannot use your skills in other
skilled or semi-skilled work, we will consider your work background the same
as unskilled.” Second, this court has previously said that, at least “[i]n light
of [the Secretary’s] selection of Rule 202.10 to decide [a plaintiff’s] case, the
Secretary’s finding of non-materiality apparently means that [the plaintiff]
effectively was unskilled because his auto mechanic skills were not
transferable.” Albritton v. Sullivan, 889 F.2d 640, 642 & n.1 (5th Cir. 1989)
(citation omitted). The ALJ determined that Prudhomme could not perform
her past relevant work. See SSR 82-41, 1982 WL 31389 (Jan. 1, 1982).

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       Thus, the question becomes whether the ALJ erred in finding
Prudhomme capable of performing semi-skilled jobs. In this instance, the VE
neither identified skills or semi-skills that Prudhomme possessed nor did he
testify that she had skills or semi-skills that were transferable to other or
alternate step five occupations. The Commissioner concedes as much, stating
that “the VE did not articulate transferable skills,” but asserts that the error
was harmless. The court disagrees. The VE never explained how or why
Prudhomme would be able to perform the suggested semi-skilled jobs as an
unskilled claimant, and the issue of transferability of skills was not
discussed. See Rice v. Astrue, 609 F.3d 831, 833 (5th Cir. 2010) (stating in
the facts section that the Commissioner acknowledged “error in the
administrative process:    the Commissioner had not proven that Rice had
transferable skills needed to engage in the type of semi-skilled work available
to her”); Jeansonne v. Astrue, No. CV07-1329-A, 2008 WL 2073996, at *12
(W.D. La. Apr. 25, 2008), (Mag. op.), rec. adopted, (W.D. La. May 13, 2008).
Without such information in the record, there is not substantial evidence
upon which to base the denial of benefits. See G.C. v. Astrue, No. 11-cv-1524,
2013 WL 701201, at *3 (W.D. La. Jan. 29, 2013) (Mag. op.), rec. adopted, 2013
WL 701171 (W.D. La. Feb. 26, 2013); Jeansonne, 2008 WL 2073996, at *11-
12.
       Additionally, during the hearing, the VE testified that Prudhomme
would be able to perform “a variety of cashier positions that would be from
the unskilled up to the semi-skilled occupational level at the sedentary level.”
Nonetheless, he listed only a specific DOT cashier job that is semi-skilled—
DOT No. 211.482-010—and did not state the number of unskilled, sedentary
cashier jobs that are available in the state or national economy. Moreover, it
does not appear that the ALJ explicitly relied on the availability of an

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unskilled cashier job to support his finding. Indeed, neither the VE nor the
ALJ listed a named and numbered, unskilled cashier position that existed in
substantial numbers in the national economy. See Scott v. Shalala, 30 F.3d
33, 35 (5th Cir. 1994) (reversing and remanding, stating that although the
ALJ improperly “considered the [VE’s] testimony given only the ALJ’s vague
and confusing reference to the testimony in his findings”); G.C., 2013 WL
701201, at *3 (reversing and remanding upon concluding that the ALJ failed
to rely on testimony from the VE that claimant could perform “unskilled jobs
such as motel housekeeper and parking lot signaler”); see also Cole, 288 F.3d
at 151 (“It is well-established that we may only affirm the Commissioner’s
decision on the grounds which he stated for doing so.”).
      Furthermore, it is unclear from the VE’s testimony as well as the ALJ’s
decision whether the 10,800 and 660,000 numbers mentioned refer to semi-
skilled, sedentary cashier jobs or to all sedentary cashier jobs. Without an
indication of what portion of those jobs is unskilled, it cannot be inferred that
the unskilled cashier job exists in significant numbers in the national
economy.     See Quintanilla v. Astrue, No. SA:11-CV-1040-DAE, 2013 WL
4046371, at *12 (W.D. Tex. Aug. 8, 2013) (finding that while the claimant
could work as a sorter/grader, the record “does not indicate whether this
particular job exists in significant numbers in the national economy”). In
short, the ALJ’s decision is not supported by substantial evidence in the
record as a whole. Further, because the record does not indicate whether
sedentary, unskilled cashier jobs exist in significant numbers in the national
economy, the court is unable to conclude in this instance that there is no
realistic possibility that the ALJ would have reached a different result. 4 See


      4To the extent the Commissioner claims Prudhomme waived this issue, that
argument is rejected, as Prudhomme raised the issue in her objections to the magistrate
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Ellis v. Astrue, No. 11-2121, 2013 WL 595071, at *4 (W.D. La. Jan. 17, 2013)
(Mag. op.), rec. adopted, 2013 WL 596245 (W.D. La. Feb. 14, 2013).
Accordingly, the error is not harmless. 5
                                               III.
      Consistent with the foregoing, the decision of the district court is
REVERSED, and this case is REMANDED for further administrative
proceedings.




judge’s report and recommendation. See Armstrong v. Massanari, No. 00-31479, 2001 WL
1068137, at *1 n.** (5th Cir. 2001) (per curiam) (unpublished).

      5 Because the ALJ’s decision is not supported by substantial evidence in the record
and the error is not harmless, Prudhomme’s remaining grounds for reversal need not be
addressed.
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