IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-30955

TEISHA PRUDHOMME,

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not be published and is not precedent except under the limited circumstances set forth in 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.

United States Court of Appeals

Fifth Circuit

FILED

March 12, 2015

Lyle W. Cayce

Clerk

 

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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 semiskilled, 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

4 To 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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