RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0049p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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ANGELA WRIGHT-HINES,
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Plaintiff-Appellant,
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No. 08-5830
v.
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Defendant-Appellee. -
COMMISSIONER OF SOCIAL SECURITY,
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Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 07-02422—Jon Phipps McCalla, Chief District Judge.
Submitted: January 13, 2010
Decided and Filed: February 23, 2010
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Before: MARTIN and WHITE, Circuit Judges; ZOUHARY, District Judge.
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COUNSEL
ON BRIEF: Janice E. Barnes-Williams, OFFICE OF THE GENERAL COUNSEL,
SOCIAL SECURITY ADMINISTRATION, Kansas City, Missouri, for Appellee.
Angela Wright-Hines, Memphis, Tennessee, pro se.
ZOUHARY, D. J., delivered the opinion of the court, in which MARTIN, J.,
joined. WHITE, J. (pp. 7-9), delivered a separate opinion concurring in part and
dissenting in part.
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OPINION
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ZOUHARY, District Judge. Pro se appellant Angela Wright-Hines appeals from
the Commissioner of Social Security’s denial of her claims for supplemental security
*
The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio,
sitting by designation.
1
No. 08-5830 Wright-Hines v. Comm’r of Soc. Sec. Page 2
income (SSI) and disability insurance benefits (DIB). The ALJ found Wright-Hines was
not disabled because her residual functional capacity allowed her to perform past
relevant work as a cashier. The district court adopted the magistrate judge’s Report and
Recommendation (R&R) and upheld the decision of the ALJ.
Liberally construed, Wright-Hines’ appeal raises four arguments: (1) the
Vocational Expert (VE) relied on by the ALJ had prior contact with Wright-Hines, and
the VE’s testimony was therefore improper; (2) the ALJ’s hypothetical question to the
VE failed to include all of Wright-Hines’ physical limitations; (3) there was no evidence
that Wright-Hines had performed past work as a cashier for more than three months; and
(4) the district court erred in denying Wright-Hines’ motion for default judgment. We
affirm.
BACKGROUND
In April and May 2004, Wright-Hines applied for SSI and DIB, alleging she
became disabled on December 31, 2002. Her claims were denied, and she appeared at
a hearing before an ALJ on May 3, 2006. She was represented by counsel at the hearing.
The ALJ issued an opinion upholding the denial of benefits on November 14, 2006.
The ALJ used the familiar five-step disability analysis provided by the social
security regulations. At step one, the ALJ determined that Wright-Hines had not
engaged in substantial gainful activity since December 31, 2002. At step two, the ALJ
found that Wright-Hines suffered from the following “severe impairments”: herniated
nucleus pulposus, chronic pain syndrome, bilateral carpal tunnel syndrome, paranoid
schizophrenia, depressive disorder, and cocaine abuse. At step three, the ALJ found that
Wright-Hines did not have an impairment or combination of impairments that met listed
regulatory criteria.
The ALJ then defined Wright-Hines’ residual functional capacity (RFC):
[Wright-Hines] has the residual functional capacity to lift 50 pounds
occasionally and 25 pounds frequently as well as stand, walk, or sit for
six hours in an eight-hour workday. She also has nonexertional postural
limitations that restrict her to occasional climbing, balancing, stooping,
No. 08-5830 Wright-Hines v. Comm’r of Soc. Sec. Page 3
kneeling, crouching, and crawling. Additionally, she has nonexertional
mental limitations that restrict her to understanding, remembering, and
carrying out simple and low-level detailed job instructions.
(ROA 21).
At step four, the ALJ determined that Wright-Hines’ RFC allowed her to perform
past relevant work as a cashier. The ALJ noted that “[w]ork as a cashier requires
sustained unskilled work activity at the light exertional level.” The ALJ also noted that
“[t]his conclusion is consistent with the longitudinal record, including the assessment
from Rebecca Allen, a State agency vocational expert.” The state VE’s assessment was
part of the written record, and it listed “cashier” as a “past relevant occupation.”
However, Wright-Hines did not testify about her previous work as a cashier during the
hearing before the ALJ, nor was she asked about her cashier position. Nevertheless,
based on the conclusion that Wright-Hines was capable of working as a cashier, the ALJ
found that Wright-Hines was not disabled. The ALJ did not reach step five of the
analysis.
STANDARD OF REVIEW
Our review is limited to whether the ALJ applied the correct legal standards and
whether the findings of the ALJ are supported by substantial evidence. Blakley v.
Comm’r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009). We must affirm the ALJ’s
decision if his findings and inferences are reasonably drawn from the record or supported
by substantial evidence even if that evidence could support a contrary decision. Id. at
406.
DISCUSSION
VE’s Prior Contact With Claimant
Wright-Hines argues the ALJ erred in relying on the testimony of a state VE who
had prior contact with Wright-Hines. The premise of this argument is mistaken, as the
ALJ never presented a hypothetical question to the VE or heard any other testimony
from the VE. Rather, the ALJ noted that a written report from the VE was consistent
No. 08-5830 Wright-Hines v. Comm’r of Soc. Sec. Page 4
with his conclusion that Wright-Hines was capable of performing past relevant work as
a cashier. Moreover, the ALJ was not required to solicit testimony from a VE in
reaching his conclusion. See 20 C.F.R. § 404.1560(b)(2) (“We may use the services of
vocational experts . . . to help us determine whether you can do your past relevant
work[.]”) (emphasis added); see also Griffeth v. Comm’r of Soc. Sec., 217 F. App’x 425,
429 (6th Cir. 2007) (“The regulations permit an ALJ to use the services of a vocational
expert at step four to determine whether a claimant can do his past relevant work, given
his RFC.”) (emphasis added). Thus, Wright-Hines’ argument is unavailing.
Hypothetical Question to VE
Wright-Hines next argues the ALJ’s hypothetical question to the VE did not
include all of her relevant limitations. Specifically, she argues the hypothetical failed
to mention her carpal tunnel syndrome. Again, the premise of this argument is mistaken,
because the ALJ never posed a hypothetical question to the VE, nor was he required to
do so.
Past Relevant Work as Cashier
Wright-Hines claims her work as a cashier lasted only two to three months,
which is too short to qualify as past relevant work. Wright-Hines does not cite any
supporting legal authority, but she may be relying on the “unsuccessful work attempt”
provision of the regulations, which provides that some jobs of short duration will not be
considered past relevant work. 20 C.F.R. § 404.1574(c); see also Carreno v. Comm’r
of Soc. Sec., 99 F. App’x 594, 596 (6th Cir. 2004) (applying the “unsuccessful work
attempt” regulation). Generally, “past relevant work” is defined as “work that you have
done within the past 15 years, that was substantial gainful activity, and that lasted long
enough for you to learn to do it.” 20 C.F.R. § 404.1560(b)(1). “Substantial gainful
activity” is in turn defined as work that involves “significant physical or mental
activities” done for “pay or profit.” 20 C.F.R. § 404.1572(a)-(b).
We conclude the ALJ’s determination that Wright-Hines had past relevant work
as a cashier was supported by substantial evidence. Two independent sources in the
No. 08-5830 Wright-Hines v. Comm’r of Soc. Sec. Page 5
written record support such a finding: the Social Security Administration’s Explanation
of Decision, which states “You performed the job of cashier for 3 month(s). Based on
your description of this job, we concluded that you are able to perform it” (AR 32); and
a Vocational Assessment from the Tennessee Department of Human Services, which
lists “cashier” as a “past relevant occupation” (AR 50). In addition, a medical
consultation report notes that Wright-Hines had worked as a cashier, though it does not
indicate the length of her employment (AR 108).
Those sources were part of the record prior to the hearing before the ALJ; one
of those sources was the Social Security Administration’s explanation of the very
decision Wright-Hines asked the ALJ to review. Thus, Wright-Hines (who was
represented by counsel at the ALJ hearing) should have been fully aware of the record’s
indication of her past relevant work as a cashier, and it was her burden to rebut that
conclusion in order to prevail before the ALJ. Yet she never introduced any evidence
that her work as a cashier lasted less than three months. Indeed, the first time she
mentioned this point was in her Objection below to the Magistrate’s R&R, and then only
in passing.1 The ALJ therefore was presented with uncontradicted evidence that Wright-
Hines had past relevant work as a cashier.
We agree with the dissent that the ALJ has an inquisitorial duty to seek
clarification on material facts, and that the ALJ would have been well-advised to confirm
Wright-Hines’ past work as a cashier at the hearing. But we cannot excuse Wright-
Hines’ failure to provide us with the factual record we need to find in her favor. To do
so would be to treat Wright-Hines differently than other Social Security claimants for
no other reason than that she proceeded pro se in the district court and on appeal.
However, the focus of our inquiry is what occurred in the administrative proceedings,
when she was represented by counsel. On this record, we cannot say that the ALJ
1
This issue was not addressed in the magistrate’s R&R because Wright-Hines did not raise it in
her initial briefs during the district court proceedings. Wright-Hines did briefly note this argument in her
objections to the R&R, but it was not clearly presented as a separate issue, and the district court did not
address it in its decision adopting the R&R. Nevertheless, keeping in mind the liberal standard accorded
to pro se pleadings, we will address her contention here.
No. 08-5830 Wright-Hines v. Comm’r of Soc. Sec. Page 6
utilized an incorrect legal standard or that substantial evidence did not support the ALJ’s
conclusions.
Default Judgment
Wright-Hines also argues the district court erred in denying her motion for
default judgment under Federal Civil Rule 55. This argument is likewise without merit.
Wright-Hines’ request for default judgment was based on the extra time requested by the
Commissioner to file a response brief during the district court proceedings. The district
court concluded there was no basis for entering a default judgment because the
Commissioner had timely filed all necessary pleadings. The record supports the district
court’s conclusion: both parties requested and were granted additional time for briefing,
and the Commissioner filed his brief within the extended deadline.
CONCLUSION
For the foregoing reasons, we AFFIRM the decision of the district court.
No. 08-5830 Wright-Hines v. Comm’r of Soc. Sec. Page 7
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CONCURRING IN PART, DISSENTING IN PART
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HELENE N. WHITE, Circuit Judge, concurring and dissenting. I join the
majority’s discussion and disposition of Wright-Hines’ first, second and fourth claims.
I would, however, remand to the ALJ to fully develop the record with regard to Wright-
Hines’ past relevant work.
Social security proceedings, unlike judicial ones, are inquisitorial, not
adversarial. See, e.g., Sims v. Apfel, 530 U.S. 103, 110-11 (2000) (plurality).
Consequently, the ALJ has a “duty to investigate the facts and develop the arguments
both for and against granting benefits.” Id. at 111 (citing Richardson v. Perales, 402
U.S. 389, 400-401 (1971)). This court has also long recognized an ALJ’s obligation to
fully develop the record. Lashley v. Sec’y of Health & Human Servs., 708 F.2d 1048,
1051 (6th Cir. 1983) (noting that an ALJ has “the ultimate responsibility for ensuring
that every claimant receives a full and fair hearing. . . .”) (citing Richardson, 402 U.S.
at 411).1
In the instant case, the ALJ denied Wright-Hines benefits on the basis that she
could perform past relevant work as a cashier, which required a determination that her
past work as a cashier was substantial gainful activity. 20 C.F.R. § 404.1520(e); SSR
82-62. However, the administrative record contains minimal evidence that she had been
a cashier, and no evidence that her work as a cashier met the regulatory criteria to be
considered substantial gainful activity. While the majority is correct that a claimant has
the burden of demonstrating an inability to perform past relevant work, logically there
1
In Lashley, the claimant was unrepresented at the hearing before the ALJ. This court held that
the obligation to fully develop the record rose to “a special duty” in such cases. 708 F.2d at 1051-52. In
the present case, Wright-Hines, who is presently litigating pro se, was represented by an attorney before
the ALJ. While there is thus no “special duty” on the part of the ALJ, its decision must still be supported
by substantial evidence in the record. Blakely v. Comm’r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009).
No. 08-5830 Wright-Hines v. Comm’r of Soc. Sec. Page 8
must first be substantial evidence that a claimant has past relevant experience in the
particular employment category.2
At her hearing, Wright-Hines testified at length about past work experience in
various clerical and janitorial jobs. She did not mention any work experience as a
cashier. AR 294-297. Nor was a cashier position listed on her Work History Report.
AR 67. Indeed, the three passing references in the record to Wright-Hines’ experience
as a cashier are all third-hand. The ALJ asked no questions about Wright-Hines’ past
work as a cashier. Notwithstanding the cursory nature of the references to cashier work
in the record and Wright-Hines’ failure to testify at all regarding any cashier work, the
ALJ based his denial of benefits on Wright-Hines’ ability to perform this work.
This conclusion is particularly troubling because there is a presumption against
finding that a claimant engaged in substantial gainful activity if the claimant’s average
monthly earnings from the work falls below a specified amount.3 20 C.F.R.
§ 404.1574(b)(2). See also Carreno v. Comm’r of Soc. Sec., 99 F. App’x 594, 596 (6th
Cir. 2004) (unpublished). The few references in the record to Wright-Hines’ work as a
cashier are silent as to how much she may have earned in that position.4 In addition,
employment of three months or less is considered an unsuccessful work attempt, and
thus not substantial gainful activity, if the claimant “stopped working, or [] reduced [his
or her] work and earnings below the substantial gainful activity earnings level because
of [an] impairment . . .” 20 C.F.R. § 404.1574(c)(3). Because the record mentioning
2
Indeed, the fact that Wright-Hines never claimed to have experience as a cashier makes this case
unusual. This court routinely affirms the Commissioner where the relevant inquiry is whether there was
a fully developed record with regard to the ability to perform past work. See, e.g., Wilson v. Comm’r of
Soc. Sec., 280 F. App’x 456, 459 (6th Cir. 2008)(unpublished). However, here, Wright-Hines did not
claim experience as a cashier and the ALJ did not question her to ascertain whether she had such
experience before relying on what amounts to passing references in the record to support a decision to deny
benefits.
3
The amount of earnings that will trigger a presumption is adjusted on a yearly basis to account
for national average wage growth. As there is no indication in the record as to when Wright-Hines worked
as a cashier, the relevant amount for this case is unclear. In December 2000, that amount was $700.
4
In her reply brief, Wright-Hines implies that the cashier position relates to her work at Fred’s
Dollar Store. On her Work History Report, Wright-Hines indicated that she worked as a “clerk” for four
days a week, six hours a day earning $6.00 per hour (the form is marked $6.00 per week, however that
appears to be a mistake). AR 67. The amount of her earnings would therefore not qualify as substantial
gainful activity.
No. 08-5830 Wright-Hines v. Comm’r of Soc. Sec. Page 9
cashier work also refers to work of a three-month duration, the ALJ should have inquired
into whether the employment was sufficient to qualify as substantial gainful activity.
Given the investigatory nature of Social Security proceedings and the ALJ’s duty to
develop the record, an inquiry into Wright-Hines’ prior work history as a cashier should
have been made. The ALJ’s failure to do so coupled with the lack of substantial
evidence to support the conclusion that Wright-Hines performed past relevant work as
a cashier warrants a remand.
Finally, I respectfully disagree with the majority’s conclusion that Wright-Hines’
counsel’s failure to address her work experience as a cashier relieved the ALJ of all
responsibility to inquire into the matter. Although the initial Explanation of
Determination denied benefits on the basis that Wright-Hines had been a cashier and was
still able to perform the job, there was nothing in the record about the nature or duration
of that employment. Nor did Wright-Hines ever mention work as a cashier when she
testified at length about past experience at her hearing before the ALJ. Before relying
on the conclusory statements in the record, the ALJ should have at least inquired into the
discrepancy between Wright-Hines’ testimony and the statements on which he intended
to rely. Had the ALJ simply asked Wright-Hines at her hearing whether she had
previously worked as a cashier, she could have presented her arguments against a finding
that any such work constituted past relevant work. The failure to do so contravened the
ALJ’s basic obligation to develop the record.
I reiterate that this is an unusual case, and I do not believe that granting a remand
would treat Wright-Hines differently from other claimants. All claimants deserve a full
and fair hearing; Wright-Hines did not receive one.
Thus, I respectfully dissent.