Hirst v. Barnhart

* 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that this opinion should not be published and is not precedent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
F I L E D
June 6, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-11133
Summary Calendar
SABRINA HIRST,
Plaintiff-Appellant,
versus
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:01-CV-102-C
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Before JONES, STEWART and DENNIS, Circuit Judges.
PER CURIAM:*
Sabrina Hirst appeals the district court’s dismissal of her
42 U.S.C. § 405(g) lawsuit seeking review of the Commissioner of
Social Security’s final administrative decision denying her Title
II disability insurance benefits. Hirst argues in part that the
Administrative Law Judge (ALJ) failed to consider and address
whether she had the ability to sustain and maintain employment in
light of the evidence that her impairments and treatments would
cause her to be absent from work for more than three days a

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No. 02-11133
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month, and in light of other factors such as side-effects of
medication, increased pain and activity, good and bad days,
adverse reaction to stress, and a need for regular and ongoing
chiropractic treatment. Hirst notes that this court’s recent
opinion in Watson v. Barnhart, 288 F.3d 212, 217 (5th Cir. 2002)
requires the ALJ to determine whether a disability claimant is
not only capable of obtaining employment but also of maintaining
employment over time.
The Commissioner of Social Security has filed a motion
requesting that this court reverse her final administrative
decision and remand the case for further administrative
proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g)
in light of Watson. The Commissioner states that there is
evidence indicating that Hirst’s physical impairment of
fibromyalgia does impact her ability to maintain employment over
time, and the Commissioner requests a remand so that this issue
may be specifically considered.
A review of the ALJ’s decision shows that he did not
consider whether Hirst could maintain employment over time in
determining her residual functional capacity or what jobs she
could perform, despite the evidence that she would miss three or
more days of work a month due to her impairment or treatment. We
hereby GRANT the Commissioner’s motion, VACATE the judgment of
the district court affirming the Commissioner’s decision, and
REMAND to the district court with instructions to the district

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court to reverse the Commissioner’s final administrative decision
and to remand the case for further administrative proceedings in
light of Watson.

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