# United States Court of Appeals

f or the Fifth Circuit

No. 20

- 60790

Josephine Bailey,

Plaintiff

— Appellant ,

versus

Andrew M. Saul, Commissioner of Social Security,

Defendant

— Appellee

.

Appeal from the United States District Court for the Northern District of Mississippi USDC No. 4:19

- CV

- 168

Before Jones, Clement, and Graves, Circuit Judges

. Per Curiam : *
This appeal concerns a denial of Social Security disability insurance
benefits

. Finding no error below, w e affirm.
I. Factual and Procedural Background

* Pursuant to 5th Circuit Rule 47 .5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED May 3, 2021
Lyle W. Cayce Clerk Case: 20-60790 Document: 00515846528 Page: 1 Date Filed: 05/03/2021No. 20

- 60790

2 Appellant Josephine Bailey was approaching retirement age when she applied for Title II disability insurance benefits on November 9, 2017, asserting that her disability began on August 11, 2017. She claimed as her primary disability headaches caused by a b enign brain tumor, but she also
noted arthritis, hypertension, and a bone spur on her right foot. In her application, Bailey listed her previous relevant job title as a “family advocate” for Head Start Mississippi, a position she held from August 1999
to A ugust 2017, when she stopped working due to headaches

. Bailey described her work as “checking classrooms, recruiting children, going to parents’ homes for home visits, filing, entering data into computer system s , and monitoring classrooms.” Bailey has a ba chelor’s degree in social work. The Social Security Administration (“SSA”) denied her application initially and on reconsideration, so Bailey requested a hearing before an Administrative Law Judge (“ALJ”), which was held by videoconference. Bailey appear ed with counsel, as well as an impartial vocational expert (“VE”). At the hearing, Bailey agreed with the ALJ that she was a social worker. Bailey then described debilitating headaches triggered by noise. She said she stopped working because her “headaches were getting real bad and [she] couldn’t remember and [she] was just getting sick , [so she] just couldn’t stay there anymore.” Bailey also said that arthritis in her knee
interfered with her work and mobility

. At the hearing, the VE designated Bailey ’s past relevant work as a “family advocate, [Dictionary of Occupational Titles 1 (“DOT”) ] Code

195.10 7

- 010,” which is skilled, sedentary work. Although the ALJ invited Bailey’s counsel to object to this classifi cation, no objection was offered. The ALJ asked the VE whether a hypothetical individual of Bailey’s age, education, work experience , and physical limitations could “perform the past

1 D EP ’ T OF L ABOR , D ICTIONARY OF O CCUPATIONAL T ITLES (rev. 4th ed. 1991). Case: 20-60790 Document: 00515846528 Page: 2 Date Filed: 05/03/2021No. 20

- 60790

3 relevant work.” The ALJ described Bailey’s hypothetical comparator as one who “would be able to perform at the light exertional level . . . with the exception that the individual would be able to stand and/or walk for four of eight hours and would be able to sit for six of eight hours,” and who could “occasionally clime ladders , ropes, or scaffolds, frequently balance, occasionally stoop, kneel, crouch, and crawl.” Bailey did not object to this hypothetical. The VE responded that such an individual would be able to perform Bailey’s past relevant work . Although Bailey ’s counsel a sked that the record be left open to allow Bailey to submit outstanding written medical evidence, Bailey never submitted additional evidence. On February 12, 2019, the ALJ issued a decision concluding that Bailey is not disabled because she i s able to pe rform her past relevant work as
a caseworker. The ALJ concluded that although Bailey suffers from a severe impairment , she is capable of performing her past relevant work as a social
services caseworker as that position is defined in the DOT . The ALJ

reaso ned that Bailey’s medical records reflected that, in the last ten years , she only once complained to her doctors about headaches, which doctors
noted had substantially improved since diagnosis and treatment in 2003. The ALJ also relied on the opinion of a doctor who had reviewed Bailey’s medical
records that Bailey’s condition did not preclude her from performing light work, albeit with some limitations. Having concluded that Bailey was able to perform her past relevant work, the ALJ affirmed the denial of disability
insurance benefits. Bailey appealed the ALJ’s decision to the SSA Appeals Council,

w hich denied her request for review, leaving the ALJ’s decision as the
Commissioner’s final administrative action for the purposes of ju dicial review. On November 18, 2019, Bailey requested judicial review in the Northern District of Mississippi. Her primary argument was that the ALJ misclassified her past relevant work under an incorrect DOT title. The Case: 20-60790 Document: 00515846528 Page: 3 Date Filed: 05/03/2021No. 20

- 60790

4 parties consented to disposition bef ore a magistrate judge , who affirmed the ALJ’s decision . Bailey timely appealed to this court.
II. Standard of Review
Our review “is limited to determining whether the [ALJ’s] decision is supported by substantial evidence in the record and whether the pr oper legal standards were used in evaluating the evidence.” Bowling v. Shalala , 36 F.3d 431, 434 (5th Cir. 1994) (quoting Villa v. Sullivan , 895 F.2d 1019, 1021 (5th Cir. 1990)). Substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill , 139 S. Ct. 1148, 1154 (2019) (internal quotation marks omitted)

. We have held that substantial evidence “must do more than create a suspicion of the existence of the fact to be established , but ‘no substantial evidence’ will be found only where there is a ‘conspicuous absence of credible choices’ or ‘no contrary medical evidence.’” Harrell v. Bowen , 862 F.2d 471, 475 (5th Cir. 1988) (quoting Hames v. Heckler , 707 F.2d 162, 164 (5th Cir. 198 3)). Evidentiary conflicts are for the ALJ to decide, and if a decision is supported by substantial evidence , it must be affirmed even if there is contrary evidence. See Selders v. Sullivan , 914 F.2d 614, 617 (5th Cir. 1990). We will, however, reverse the ALJ’s decision if Bailey shows “(1) that the ALJ failed to fulfill [her] duty to adequately develop the record, and (2) that [Bailey] was prejudiced thereby.” Brock v. Chater , 84 F.3d 726, 728 (5th Cir. 1996). We will find prejudice only where an error has affected a claimant’s substantial rights. Audler v. Astrue , 501 F.3d 446, 448 (5th Cir. 2007) (“‘Procedural perfection in administrative proceedings is not required’ as long as ‘the substantial rights of a party have not been affected.’” (quoting Mays v. Bowen , 837 F.2d 1362, 1364 (5th Cir. 1988))).
III. The ALJ’s decision is permissible under this court’s caselaw and supported by substantial

evidence Case: 20-60790 Document: 00515846528 Page: 4 Date Filed: 05/03/2021No. 20

- 60790

5 A claimant is not entitled to disability benefits unless she “is unable ‘to engage in any substantial gainful activity by reason of [a] medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months.’” Bowling , 36 F.3d at 435 (alteration and ellipsis in original) (quoting 42 U.S.C. §§ 416( i ), 423(d)(1)(A)). The SSA follows a sequential five

- step process to make this determination: (1) An individual who is working and engaging in substantial gainful activity will not be found disabled regardless of the medical findings[;] (2) An individual who does not have a “severe impairment” will not be found to be disabled[;] (3) An individual who meets or equals a listed impairmen t in Appendix 1 of the regulations will be considered disabled without consideration of vocational factors[;] (4) If an individual is capable of performing the work he has done in the past, a finding of “not disabled” must be made[;] (5) If an individual’s impairment precludes him from performing his past work, other factors including age, education, past work experience, and residual functional capacity must be considered to determine if other work can be performed. Villa , 895 F.2d at 1022 (5th Cir. 1990) (paraphrasing 20 C.F.R. § 404.1520(b)

- (f)). “The burden of proof is on the claimant for the first four steps but shifts to the agency at step five; a finding at any step that a claimant is or is not disabled ends the analysis.” Graves v. Colvin , 837 F.3d 5 89, 592 (5th Cir. 2016) (citing Bowling , 36 F.3d at 435). Here, the ALJ concluded that Bailey: (i) is not working; (ii) suffers from a severe impairment not listed in Appendix 1 of the regulations; and (iii) is capable of performing her previous
work. Acco rdingly, the parties’ dispute pertains to the ALJ’s decision at Step IV, where Bailey retained the burden of proof. Bailey makes two primary arguments on appeal . First, she argues that the VE and the ALJ misclassified her previous job as a social service s caseworker, which the DOT lists as sedentary work, when in fact her Case: 20-60790 Document: 00515846528 Page: 5 Date Filed: 05/03/2021No. 20

- 60790

6 previous job more closely resembles that of a child welfare caseworker, which the DOT lists as light work. She argues that, had the ALJ properly classified her past relevant work, she wo uld have been found disabled because , as the ALJ concluded, she is incapable of light work without limitations . Second, she argues that the ALJ erroneously classified Bailey’s residual functioning capacity as falling between light and sedentary work

. A

. Bailey forfeited her misclassification argument, and the ALJ did not misclassify Bailey’s past relevant work

. Although the VE, and later the ALJ, classified Bailey’s past relevant work as a social services caseworker over no objection from Bailey, she n ow argues that her past relevant work more closely resembles the DOT’s description of a child welfare caseworker. We must first determine whether Bailey has forfeited this argument. She argues that this argument is preserved on appeal under Social Security Ruling 00

- 4p. That rule provides that, before relying on a VE’s opinion, an ALJ must ensure that the VE’s opinion does
not conflict with the DOT. See SSR 00

- 4p, 2000 WL 1898704, at *2 (Dec. 4, 2000)

. An ALJ thus “has an affirmative responsibility to ask about ‘ any possible conflict ’ between VE evidence and the DOT . . . before relying on VE evidence to support a determination of not disabled.” Graves , 837 F.3d

at 592 (quoting Kemp ex rel. Kemp v. Colvin , 743 F.3d 630, 633 (8th Cir. 2014) (footnote omitted in Graves )). Relying on SSR 00

- 4p, Bailey argues that the VE misclassified her past relevant work, and that therefore the ALJ was required to resolve this conflict before relying on the VE’s opinion

. However, SSR 00

- 4p pertains to conflicts betwee n a VE’s opinion and the DOT, and no such conflict exists here, because the VE correctly summarized the DOT listing which he concluded describes Bailey’s past
relevant work . SSR 00

- 4p is therefore inapposite. Instead, we turn to our
decision in Carey v. Ap

fel , 230 F.3d 131 (5th Cir. 2000) . In Carey , we held that a claimant cannot later point to a conflict that he or she did not press before an ALJ

. W e distinguished between “actual,” “direct,” “obvious,” and Case: 20-60790 Document: 00515846528 Page: 6 Date Filed: 05/03/2021No. 20

- 60790

7 “facial” conflicts on the one hand ( e.g. , differen ces between the DOT and the VE’s testimony with regard to skill or exertional level of a job), and “alleged,” “indirect,” and “implied” conflicts on the other hand ( e.g. , the vocational expert’s testimony that Carey could perform jobs that required
“some a bility to finger and handle things[,]” notwithstanding the fact that he had only one hand). Id. We concluded that “claimants should not be permitted to scan the record for implied or unexplained conflicts between the specific testimony of an expert witness and the voluminous provisions of the DOT, and then present that conflict as reversible error[.]” Id. at 146

- 47.
Under Carey , Bailey has forfeited her misclassification argument. The purported conflict is not direct or obvious because the VE did not
mischaracterize the DOT’s description of a social services caseworker. See Carey , 230 F.3d at 146

- 47 (concluding that that the claimant forfeited a purported conflict by not raising it, bec ause the conflict did “not involve the type of direct and obvious conflict at issue when the [VE’s] characterization of the exertional or skill level required for a particular job is facially different
from . . . the DOT” ). Further, the VE’s classificati on does not obviously conflict with the job duties that Bailey described in her application for disability benefits , and the absence of such a conflict supports the ALJ’s classification . The DOT
describes a social services caseworker as one who “[c]ounsels and aids individuals and families requiring [the] assistance of [a] social service agency: Interviews clients with problems, such as personal and family adjustments, finances, employment, food, clothing, housing, and physical and mental impairments to det ermine [the] nature and degree of problem[s]” that
children and their families face. DOT § 195.10 7

- 010. Alternatively, the DOT defines a child welfare caseworker as one who “[a]ids parents with child rearing problems and children and youth with difficultie s in social adjustments,” and assists foster and adoption placements. DOT 195.10 7

- Case: 20-60790 Document: 00515846528 Page: 7 Date Filed: 05/03/2021No. 20

- 60790

8 014. Bailey described her work as checking classrooms, recruiting children for the Head Start program, visiting parents’ homes, and filing and entering
data

. These responsibi lities more closely resemble the DOT’s definition of a social services caseworker because they do not involve work on adoptive or foster home placements. DOT 195.107

- 014. Absent any discernible conflict between the job duties Bailey described and the dutie s the DOT lists for a social services caseworker, the ALJ did not err in classifying Bailey’s past
relevant work , and Bailey has forfeited this argument by failing to raise it
below. See Carey , 230 F.3d at 146

- 47

. B

. Substantial evidence supports the ALJ’s description of Bailey’s residual functioning capacity. Although Bailey argues that the ALJ erroneously placed her residual functioning capacity as falling between light and sedentary work, t he ALJ
could properly rely on Bailey’s medical records and a doctor’s opinion in classifying Bailey’s residual functioning capacity. A doctor employed by
Mi ssissippi Disability Determination Services reviewed Bailey’s medical records and concluded that she can perform light work with some limitations. Bailey offered no medical opinion rebutting the doctor’s conclusion. Further, Bailey’s medical records showed that t reatment had caused her tumor to shrink by ninety

- one percent, and her record reflected only one instance in which Bailey had complained to her doctor about headaches , in 2014

. The ALJ therefore could permissibly conclude that Bailey’s medical recor ds belied her description of her headaches ’ severity . Although Bailey now objects to the ALJ’s capacity finding, this court is not permitted to “reweigh the evidence in the record, try the issues de novo, n or substitute” its own judgment for that of the Co mmissioner or of the testifying witnesses. See Brown v. Apfel , 192 F.3d 492, 496 (5th Cir. 1999) (quoting Johnson v. Bowen , 864 F.2d 340, 343 (5th Cir. 198 8 )). Finally , that Bailey is unable “to perform certain requirements of [her] past job does not mea n that [s] he is unable to perform past relevant work as Case: 20-60790 Document: 00515846528 Page: 8 Date Filed: 05/03/2021No. 20

- 60790

9 that phrase is used in the regulations.” Leggett v. Chater , 67 F.3d 558, 564

- 65 (5th Cir. 1995) (quoting Jones v. Bowen , 829 F.2d 524, 527 n.2 (5th Cir. 1987) (per curiam) and citing Villa v. Sullivan , 895 F.2d 1019, 1022 (5th Cir. 1990)) (internal quotation marks omitted). Instead, on Step IV of the analysis the Commissioner may also consider the description of the claimant’s past work as such work is generally performed in the national economy. Id. T he ALJ
could thus properly rely on the VE’s opinion that Bailey is able to perform the duties of a social services caseworker as that job is generally performed in the national economy, see id. , because the VE’s description of that job did not
conflict wit h the DOT

. See DOT 195.107.010. Accordingly, substantial evidence support s the ALJ’s decision, and the magistrate judge did not clearly err in affirming the denial of benefits. We therefore AFFIRM the
decisions below. Case: 20-60790 Document: 00515846528 Page: 9 Date Filed: 05/03/2021