United States Court of Appeals

for 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, we 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opinion should not be published and is not precedent except under the limited 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: 05/03/2021
No. 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 benign 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 August 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 systems, 

and monitoring classrooms.” Bailey has a bachelor’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 appeared 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 Titles1(“DOT”)] Code 

195.107-010,” which is skilled, sedentary work. Although the ALJ invited 

Bailey’s counsel to object to this classification, 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 DEP’T OF LABOR, DICTIONARY OF OCCUPATIONAL TITLES (rev. 4th ed. 1991).

Case: 20-60790 Document: 00515846528 Page: 2 Date Filed: 05/03/2021
No. 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 asked 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 is able to perform 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 

reasoned 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, 

which denied her request for review, leaving the ALJ’s decision as the 

Commissioner’s final administrative action for the purposes of judicial 

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: 05/03/2021
No. 20-60790

4

parties consented to disposition before 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 proper 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. 1983)). 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: 05/03/2021
No. 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 impairment 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 589, 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. Accordingly, 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 services 

caseworker, which the DOT lists as sedentary work, when in fact her 

Case: 20-60790 Document: 00515846528 Page: 5 Date Filed: 05/03/2021
No. 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 would 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 now 

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 between 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. Apfel, 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. We distinguished between “actual,” “direct,” “obvious,” and 

Case: 20-60790 Document: 00515846528 Page: 6 Date Filed: 05/03/2021
No. 20-60790

7

“facial” conflicts on the one hand (e.g., differences 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 ability 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, because 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 classification 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 determine [the] nature and degree of problem[s]” that 

children and their families face. DOT § 195.107-010. Alternatively, the DOT 

defines a child welfare caseworker as one who “[a]ids parents with child 

rearing problems and children and youth with difficulties in social 

adjustments,” and assists foster and adoption placements. DOT 195.107-

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

Mississippi 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 treatment 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 records 

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, nor substitute” its own 

judgment for that of the Commissioner 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. 1988)). 

Finally, that Bailey is unable “to perform certain requirements of [her]

past job does not mean that [s]he is unable to perform past relevant work as 

Case: 20-60790 Document: 00515846528 Page: 8 Date Filed: 05/03/2021
No. 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. The 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 with the DOT. See DOT 195.107.010. Accordingly, substantial 

evidence supports 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