Talley v. Saul
Filing
16
MEMORANDUM OPINION. Signed by Magistrate Judge Deborah L. Boardman on 3/31/2021. (krs, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
DEBORAH L. BOARDMAN
UNITED STATES MAGISTRATE JUDGE
101 WEST LOMBARD STREET
BALTIMORE, MARYLAND 21201
(410) 962-7810
Fax: (410) 962-2577
MDD_DLBChambers@mdd.uscourts.gov
March 31, 2021
LETTER TO COUNSEL
RE:
Shirley T. v. Saul
Civil No. DLB-19-2837
Dear Counsel:
On September 26, 2019, plaintiff petitioned this Court to review the Social Security
Administration’s (“SSA’s”) final decision to deny her claim for Disability Insurance Benefits.
ECF 1. I have considered the parties’ cross-motions for summary judgment and plaintiff’s
response. ECF 12 (“Pl.’s Mem.”); ECF 14 (“Def.’s Mem.”); ECF 15 (“Pl.’s Reply.”). I find no
hearing necessary. See Loc. R. 105.6 (D. Md. 2018). This Court must uphold the denial if the
SSA employed correct legal standards in making findings supported by substantial evidence. See
42 U.S.C. § 405(g); Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). Under that standard, I will
deny both motions, reverse the Commissioner’s decision in part, and remand the case to the
Commissioner for further consideration. This letter explains my rationale.
Plaintiff filed her claim for benefits on February 8, 2016, alleging an onset date of
November 30, 2015. Administrative Transcript (“Tr.”) 153-55. The SSA denied her claims
initially and on reconsideration. Tr. 79, 92. An Administrative Law Judge (“ALJ”) held a hearing
on April 13, 2018. Tr. 32-58. Following the hearing, the ALJ determined plaintiff was not disabled
within the meaning of the Social Security Act during the relevant time frame. Tr. 12-31. Because
the Appeals Council denied plaintiff’s request for review, the ALJ’s decision constitutes the final,
reviewable decision of the SSA. Tr. 1-6; see Sims v. Apfel, 530 U.S. 103, 106-07 (2000); 20 C.F.R.
§ 422.210(a).
The ALJ found plaintiff severely impaired by “lumbar scoliosis, degenerative disc disease,
disc herniation, stenosis, facet hypertrophy and ligamentous hypertrophy, and right knee
osteoarthritis.” Tr. 17 (internal citation omitted). Despite these impairments, the ALJ determined
plaintiff retained the residual functional capacity (“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b) except occasionally climbing,
balancing, stooping, kneeling, crouching, crawling; occasionally push/pull with the
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Civil No. DLB-19-2837
March 31, 2021
Page 2
left lower extremity; occasional exposure to vibration and workplace hazards (e.g.,
unprotected heights and dangerous moving machinery); and requires a sit/stand
option where she can stand from a seated position while remaining on task at the
work station with normal breaks.
Tr. 20. The ALJ consulted a vocational expert (“VE”) and the Dictionary of Occupational Titles
(“DOT”). Tr. 47-57. The VE testified, apparently based on her own experience and the DOT, that
plaintiff acquired transferable skills from her past relevant work. Tr 48-57. After considering the
VE’s testimony, the ALJ determined plaintiff was unable to perform her past relevant work as a
school bus driver, certified nursing assistant (“CNA”) (DOT 355.674-014)1, or as a composite
CNA-bus driver. Tr. 25. The ALJ found plaintiff was an individual of advanced age because she
was 56 years old as of her alleged onset date, Tr. 25 (citing 20 C.F.R. § 404.1563); “ha[d] at least
a high school education[,] and could communicate in English,” Tr. 25 (citing 20 C.F.R. §
404.1564). The ALJ also found plaintiff “ha[d] acquired work skills from [her] past relevant
work.” Tr. 25 (citing 20 C.F.R. § 404.1568). The ALJ finally found that, considering plaintiff’s
“age, education, work experience, and [RFC] . . . [and] acquired work skills from past relevant
work,” plaintiff could perform jobs existing in significant numbers in the national economy. Tr.
25-27. Specifically, the ALJ gave great weight to the VE’s testimony and found plaintiff could
perform “the job of a companion,” Tr. 26 (citing DOT 309.677.010), a job which the VE testified
plaintiff could perform considering the “transferrable skills” plaintiff acquired in her previous
work as CNA. Tr. 47-57. The ALJ also found plaintiff could perform a number of unskilled
occupations. Tr. 26 (citing work as a marker, DOT 209.587.034; a ticket seller, DOT 211.467030; and a routing clerk, DOT 222.687-022). Therefore, the ALJ concluded plaintiff was not
disabled. Tr. 27.
On appeal, plaintiff argues the ALJ’s decision is unsupported by substantial evidence
because the ALJ erroneously found plaintiff acquired transferrable skills from her work as a CNA.
Pl.’s Mem. 9-25 (citing, in relevant part, SSR 82-41, 1982 WL 31389 (Feb. 26, 1979) (“Titles II
and XVI: Work Skills and Their Transferability as Intended by the Expanded Vocational Factors
Regulations Effective February 26, 2979”); 20 C.F.R. Pt. 404, Subpt. P, App. 2 (“the grids”);
Hirsch v. Colvin, No. CIV-14-1289-STE, 2017 WL 538489 (W.D. Okla. Feb. 9, 2016)); Pl.’s
Reply. The Commissioner disagrees but cites no case supporting his position. See Def.’s Mem. 510. The parties also dispute whether an apparent conflict exists between the occupations identified
by the VE and plaintiff’s capabilities. See id.; Pl.’s Mem. 9-25. I agree with plaintiff that the ALJ
erred in finding plaintiff had acquired transferable skills. Accordingly, I remand, but I express no
opinion as to plaintiff’s ultimate entitlement to benefits.
The grids “relieve the Secretary of the need to rely on [VEs] by establishing through
rulemaking the types and numbers of jobs that exist in the national economy.” Heckler v.
Campbell, 461 U.S. 458, 461 (1983). The grids organize physical ability, age, education, and work
experience into a matrix that contains rules establishing the existence of jobs in significant
numbers in the national economy for individuals with specific combinations of these four factors.
1
CNA, nurse assistant, and nurse aide—as used throughout this opinion and the materials cited therein—each refer to
the same occupation in the DOT found at 355.674-014 (Nurse Assistant, with the alternate title: “Nurse Aide”).
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Civil No. DLB-19-2837
March 31, 2021
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Id. at 461-62. When a claimant perfectly fits a combination of the four factors existing in the
matrix, the grids “direct a conclusion as to whether work exists that the claimant could perform.”
Id. at 462. In this case, the ALJ found plaintiff was an individual of advanced age with at least a
high school education and past relevant work that was semi-skilled, none of which plaintiff could
perform. Tr. 25. Additionally, the ALJ found plaintiff was limited to light work. Tr. 20. Plaintiff
argues her medical-vocational profile fits Rules 202.06 or 202.07, and the Commissioner does not
dispute the applicability of these rules. See 20 C.F.R. Pt. 404, Subpt. P, App. 2; see Def.’s Mem.
5-10. Rules 202.06 and 202.07 provide that plaintiff is not disabled if she has transferable skills
from her previous skilled or semi-skilled work, but she is disabled if she does not have such
transferable skills. 20 C.F.R. Pt. 404, Subpt. P, App. 2, Rules 202.06, 202.07.
Transferable skills are skills acquired from previous skilled or semi-skilled work activities
that “can be used to meet the requirements of skilled or semi-skilled work activities of other jobs
or kinds of work.” 20 C.F.R. § 404.1568(d). Transferability of skills is “most probable and
meaningful” between jobs (1) requiring the same or a lesser degree of skill; (2) using the same or
similar tools and machines; and (3) involving the same or similar raw materials, products,
processes, or services. Id. § 404.1568(d)(2); see id. § 404.1568(d)(4) (stating that this framework
applies to claimants with plaintiff’s profile). Similarities may be remote or incident, and “a
complete similarity of all three factors is not necessary for transferability.” Id. § 404.1568(d)(3).
SSR 82-41 “further explain[s] the concepts of ‘skills’ and ‘transferability of skills’ and . .
. clarif[ies] how these concepts are used in disability evaluation.” 1982 WL 31389, at *1. “[C]lose
attention must be paid to the actual complexities of the job in dealing with data, people, or objects
and to the judgments required to do the work.” Id. at *3. “The Secretary must show that specific
skills actually acquired in the [past relevant work] are transferable. . . .” Pyles v. Bowen, 849 F.2d
846, 848 (4th Cir. 1988) (citing Winn v. Schweiker, 711 F.2d 946, 948 (10th Cir. 1983)) (emphasis
added). Testimony from a VE may assist the ALJ in finding the “[s]kills, level of skills[,] and
potential occupations to which skills from [past relevant work] may be transferred,” but the ALJ
bears the ultimate responsibility for making the findings. 1982 WL 31389, at *4. And, like all an
ALJ’s findings, the ultimate determination must be supported by substantial evidence. 42 U.S.C.
§ 405(g).
SSR 82-41 explains Social Security policy by way of example. The ruling uses plaintiff’s
past relevant work at issue to illustrate that while some workers may acquire skills from a particular
job, other workers in that same occupation might not:
Slightly more complex, at a higher level of semiskilled work, are jobs like that of a nurse
aide, who may also serve food to people. A nurse aide ordinarily performs other tasks
which do not provide a special advantage over unskilled workers, such as dusting and
cleaning rooms, changing bed linens, and bathing, dressing, and undressing patients. The
only duties which suggest transferable skills are those related to “nurse” rather than
“aide”—taking and recording the rates of temperature, pulse and respiration; and recording
food and liquid intake and output. However, these occasional or incidental parts of the
overall nurse aide job, which are a small part of a higher skilled job (nurse), would not
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Civil No. DLB-19-2837
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ordinarily give a meaningful vocational advantage over unskilled work. The extent of such
duties, however, may vary with individual nurse aides.
SSR 82-41, 1982 WL 31389, at *3 (emphasis in original).
Significantly, a claimant’s acquisition of transferable skills is appropriately considered at
step five of the sequential analysis. Id. at *1 (“Transferability of skills is an issue only when an
individual’s impairment(s), though severe, does not meet or equal [a listing] . . . but does prevent
the performance of past relevant work . . . that . . . has been determined to be skilled or semiskilled.”); Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016). The Commissioner bears the
burden of proof at step five. Monroe, 826 F.3d at 180. Plaintiff met her initial burden at steps one
through four by demonstrating her severe, medically determinable impairments prevented her from
performing her past relevant work. See id.; Tr. 25.
In Hirsch, a factually analogous case, the Court remanded for an ALJ’s failure to support
his finding that the plaintiff acquired transferable skills from her previous jobs as a nurse’s aide,
DOT 355.674-014, and a home health aide, DOT 354.377-014. 2016 WL 538489, at *2, *4. The
plaintiff reported that, in these positions, “she was required to: do laundry, clean, and cook; help
patients bathe, shower, eat, walk, and get into their wheelchairs; and hand out medications.” Id.
at *2 (internal citations omitted). At the hearing, the plaintiff testified that she “helped the residents
with their personal care” and cooked, cleaned, baked—“[t]hings like, of that nature.” Id. at *3
(internal citation omitted). The VE testified that the plaintiff “had obtained skills . . . [including]
patient care, charting, basic record keeping, taking vitals, and scheduling.” Id. (internal citation
omitted). The Court noted that “[a] lack of correlation exists between the VE’s testimony
regarding [the plaintiff’s] transferable skills and [the plaintiff’s] testimony regarding what skills
she had actually obtained from the past work.” Id. The Court also “assume[d] that the VE had
consulted the DOT for the information because: (1) the VE had cited the DOT regarding the skill
and exertional levels of the past work and (2) the skills identified by the VE correlated with skills
listed in the DOT job listings.” Id. (internal citations omitted). The Court found that “though the
VE properly consulted the DOT, the dictionary alone cannot provide substantial evidence
regarding a claimant’s transferable skills.” Id. (citing Dikeman v. Halter, 245 F.3d 1182, 1185
(10th Cir. 1993)).
Similarly, in Hutchison v. Cmm’r, Soc. Sec. Admin., No. 2:17-cv-1140, 2018 WL 3386310
(S.D. Ohio July 12, 2018), the ALJ found the plaintiff had acquired transferable skills from her
job as a CNA (or nurse aide, as the DOT refers to the position) but failed “to conduct a transferable
skills analysis that includes paying close attention to ‘the actual complexities of the job.’” 2018
WL 3386310, at *7 (citing SSR82-41(2)(d)); Barr v. Berryhill, No. 2:16-cv-42, 2017 WL 2803176,
at *10 (N.D. W. Va. June 13, 2017)). The VE testified the plaintiff acquired the transferable skills
of “effective verbal communication, knowledge of medical terminology, and basic
recordkeeping.” Id. at *8. The plaintiff indicated only that she gave “hands-on personal care” in
clients’ homes, which entailed lifting and transferring clients, bathing them, moving them, running
some of their errands, cleaning their homes, and lifting their groceries. Id. The Court found the
“[p]laintiff’s work mirrored the example in SSR 82-41(2)(d), which indicated that, ‘absent
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Civil No. DLB-19-2837
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extraordinary circumstances,’ a nurse aide position ‘ would not provide a meaningful vocational
advantage over unskilled work’ and thus does not give rise to ‘transferable skills.’” Id. (citing
Barr, 2017 WL 2803176, at *12 (emphasis in original)). Accordingly, the Court remanded for
want of substantial evidence supporting the ALJ’s finding that the plaintiff acquired transferable
skills. Id. at *9.
Here, plaintiff indicated in her work history report that she “took blood pressure;” fed,
bathed, and dressed patients; assisted patients with walking; assisted with transporting patients
from their beds to wheelchairs and back; lifted patients; carried laundry and trays of food; cleaned
patients’ homes; fixed patients breakfast; shaved patients; took patients on outings; and put patients
in wheelchairs and vans. Tr. 191-96. She testified she stopped working because she “was at [her]
client’s house, and [she] went downstairs and brought her [client’s] clothes up from downstairs,
and [her] back gave out, and [she] had to crawl up the steps.” Tr. 38. She testified that she
transported “patients from the bed to the living room, into the wheelchair, out to the van.” Tr. 39.
She testified she would “take them places.” Tr. 39. The ALJ asked whether plaintiff took the
patients to “doctor visits, that type of thing.” Tr. 39. Plaintiff replied, “No, I had to take them up
to the mall, or if there was [an] event, any kind of activity. I would take them in the van, take them
to church and stuff like that.” Tr. 39.
The VE classified plaintiff’s past work as, in relevant part, a nurse assistant. Tr. 48. The
ALJ asked whether plaintiff acquired transferrable skills form her former employment. Tr. 48.
The VE testified plaintiff had, including “[p]atient care, charting, taking vitals, following a
treatment plan, basic medical terminology, [and] anatomy.” Tr. 48-49. The ALJ asked to which
jobs at the light and sedentary exertional levels plaintiff’s “acquired skills” would transfer. Tr. 49.
The VE testified those skills would transfer to no jobs at the sedentary level and only one job at
the light level: companion. Tr. 49; see DOT 309.677-010. The VE further testified a hypothetical
individual identical to plaintiff could perform three unskilled positions. Tr. 51. 2 Plaintiff’s
representative asked the VE, “[I]f I indicated to you that Social Security’s regulations consider
that a nursing aide is a position where skills generally do not transfer to other work, does that have
any impact on your opinion today.” Tr. 56-57. The VE replied:
No, because I’ve personally done both jobs, and the skills would transfer. Those jobs are
usually work [sic] in tandem with each other. They’re complimentary—nursing home,
convalescent home or end of life hospice or home healthcare. And those are typically
complimentary services, and therefore they share much of the same skills.
Tr. 57.
Here, as in Hirsch, “[a] lack of correlation exists” between the VE’s statement of plaintiff’s
acquired skills and plaintiff’s own characterization of her work as a CNA. 2016 WL 538489, at
*3. Plaintiff’s primary responsibilities seem to involve “tasks which do not provide a special
2
The Court does not analyze these jobs because the grids instruct that plaintiff should be found disabled if the ALJ
found she had no transferable skills, regardless of her ability to do unskilled work. 20 C.F.R. Pt. 404, Subpt. P, App.
2, Rules 202.06, 202.07.
Shirley T. v. Saul
Civil No. DLB-19-2837
March 31, 2021
Page 6
advantage over unskilled workers, such as dusting and cleaning rooms, changing bed linens, and
bathing, dressing[,] and undressing patients.” SSR 82-41, at *3. The only reference plaintiff made
to anything resembling “charting, taking vitals, following a treatment plan, basic medical
terminology, [and] anatomy” is to her duty in one job to “take blood pressure.” See Tr. 48-49,
192. Plaintiff indicated no other work that involved the “nurse” component of “nurse aide.”
Indeed, plaintiff testified she did not even take patients to medical appointments. Tr. 39. Rather,
she would “take them to church and stuff like that.” Tr. 39. Even if taking blood pressure can
stand in for taking the entire category of “vitals,” which according to the DOT also includes taking
“and recording temperature, . . . pulse and respiration rates, and food and fluid intake and output,”
plaintiff never mentioned “charting, . . . following a treatment plan, basic medical terminology,
[and] anatomy.” DOT.355.674-014; see Tr. 48-49, 191-96. The VE’s statement that she herself
had acquired these skills in her job as a CNA does not provide substantial evidence for the “specific
skills [plaintiff] actually acquired” in plaintiff’s past relevant work. Pyles, 849 F.2d at 848
(emphasis added). Neither had plaintiff provided evidence of most of the transferable skills the
VE identified. Accordingly, remand is appropriate because the ALJ’s finding is unsupported by
substantial evidence. Patterson, 846 F.3d 656, 658 (4th Cir. 2017) (citing Meyer v. Astrue, 662
F.3d 700, 707 (4th Cir. 700, 707 (4th Cir. 2011); Shinseki v. Sanders, 556 U.S. 396, 407 (2009))
(“Where an insufficient record precludes a determination that substantial evidence supported the
ALJ’s denial of benefits, this court may not affirm for harmless error.”).
For the reasons set forth herein, plaintiff’s motion for summary judgment, ECF 12, is
denied, and the Commissioner’s motion for summary judgment, ECF 14, is denied. Pursuant to
sentence four of 42 U.S.C. § 405(g), the SSA’s judgment is reversed in part due to inadequate
analysis. The case is remanded for further proceedings in accordance with this opinion.
Despite the informal nature of this letter, it should be flagged as an opinion. A separate
order follows.
Sincerely yours,
/s/
Deborah L. Boardman
United States Magistrate Judge
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