Locklear v. Colvin

Filing 17

ORDER DENYING 10 Plaintiff's Motion for Judgment on the Pleadings, and GRANTING 12 Defendant's Motion for Judgment on the Pleadings. The decision of the Commissioner is affirmed. Signed by US District Judge Terrence W. Boyle on 11/19/2014. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:14-CV-154-BO
VANESSA C. LOCKLEAR,

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Plaintiff,

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CAROLYN COLVIN,
Acting Commissioner of Social Security,
Defendant.

ORDER

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This matter is before the Court on the parties' cross motions for judgment on the
pleadings [DE 10, 12]. A hearing on this matter was held in Elizabeth City, North Carolina on
November 13, 2014 at 10:30 a.m. For the reasons detailed below, plaintiffs motion is DENIED
and defendant's motion is GRANTED. The decision of the Commissioner is AFFIRMED.

BACKGROUND
On March 22, 2011, plaintiff protectively filed an application for a period of disability
and disability insurance benefits under Title II of the Social Security Act, alleging disability
beginning on July 1, 2010, due to physical and mental impairments. Plaintiffs claim was denied
initially and upon reconsideration. On October 25, 2012, an administrative law judge ("ALJ")
held a hearing during which plaintiff, who was represented by an attorney, and a vocational
expert ("VE") testified. On November 27, 2012, the ALJ denied plaintiffs application for
benefits. The Appeals Council then denied plaintiff's request to review the ALJ' s decision
making it the final decision of the Commissioner. Petitioner now requests judicial review
pursuant to 42 U.S.C. § 405(g).

Plaintiff was 52 years old on her alleged onset date and has completed college. [Tr. 24].
Plaintiffs past relevant work was as a middle school teacher, which the VE testified was light,
skilled work with a specific vocational preparation of 7. [Tr. 32, 49-50, 177]. Plaintiff last
worked as a teacher in June 2010, at which time she retired, and currently receives a pension
from the State of North Carolina. [Tr. 43, 156-57, 177, 189]. Plaintiff also has past relevant work
as a babysitter, which the VE characterized as medium, semi-skilled work (with a SVP of 3). [Tr.
49-50]. After plaintiff retired as a teacher, her daughter began paying her $800 per month to
babysit her two-year old granddaughter. [Tr. 34-36]. Plaintiff typically babysat "all week" and
carried, dressed, fed, and sometimes bathed her granddaughter. [Tr. 34-36, 187].
Plaintiff alleges that she suffers from bilateral lower extremity arthritis with crepitus of
the knees, obstructive sleep apnea, hypertension, and obesity. [Tr. 18, 176].
DISCUSSION

Pursuant to the Social Security Act, 42 U.S.C. § 405(g), this Court's review of the
Commissioner's decision is limited to determining whether the Commissioner's decision, as a
whole, is supported by substantial evidence and whether the Commissioner employed the correct
legal standards. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (citing Richardson v.
Pearles, 402 U.S. 389, 390 (1971)). "'[S]upported by substantial evidence' means 'such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion."' !d. (quoting
Pearles, 402 U.S. at 401 ). Regulations establish a five-step sequential evaluation process to be

followed when determining whether a claimant is disabled. 20 C.F .R. §§ 404.1520 and 416.920.
"The claimant bears the burden of proof at steps one through four, but the burden shifts to the
Commissioner at step five." Rogers v. Barnhart, 216 Fed. App'x 345, 348 (4th Cir. 2007) (citing
Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987)).

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Here, the ALJ found that plaintiff was not disabled under the Social Security Act. [Tr.
13-25]. The ALJ gave plaintiff a residual functional capacity ("RFC") of a range of sedentary
work. [Tr. 19-24]. The ALJ found that plaintiff could not return to her past relevant work, but
that she was able to perform other jobs existing in significant numbers in the national economy.
[Tr. 24-25]. In making this finding, the ALJ relied on VE testimony, and found that plaintiff
acquired work skills from her past work (keeping records, reading, writing, counting, planning,
supervising, and delegating at high levels), and that such skills were transferable to sedentary
work. [Tr. 24.]. The plaintiff alleges that the ALJ erred as a matter of law in finding that the
plaintiff's traits were skills transferrable to other work and by failing to properly apply the
regulations pertaining to transferability of skills. Specifically, plaintiff asserts that the skills
identified by the VE were not actually skills, but rather were traits or aptitudes that do not
support a finding of transferability. [DE 11 at 6].
Skills are defined as "knowledge of a work activity which requires the exercise of
significant judgment .... It is practical and familiar knowledge of the principles and processes
of an art, science or trade, combined with the ability to apply them in practice in a proper and
approved manner." SSR 82-41, 1982 WL 31389 at *2 (S.S.A.). Traits or aptitudes, on the other
hand, are "an inclination, a natural ability, talent, or capacity for learning." Anglin v. Massanari,
18 F. App'x 551, 553 (9th Cir. 2001) (citing Webster's New World Dictionary 68 (3d ed. 1998))
(finding that the abilities identified by the vocational expert "constitute vocational assets learned
at [the plaintiff's] past job and, thus, were properly classified as transferrable skill"); see also
Draegert v. Barnhart, 311 F.3d 468, 476 (2d Cir. 2002) (noting that the "generalized abilities,"

"when not linked to any particular tasks, are merely traits or aptitudes, not job skills"); Weaver v.
Sec'y of Health & Human Servs., 722 F.2d 310, 311-12 (6th Cir. 1983) (defining skills as

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"learned abilities" and noting that "aptitudes" are "innate abilities, such as intelligence, form
relations, and manual dexterity"). However, "basic abilities to read, write, and count are not
skills within the meaning of the Social Security Act" because they "were not acquired through
work experience or through education providing for direct entry into skilled work." Ingles v.
Heckler, 763 F.2d 169, 170 (4th Cir. 1985) (per curiam) (citing 20 C.F.R. § 404.1568( d)).

Here, it was clearly error for the ALJ to rely on VE testimony listing reading, writing,
and counting as transferable skills. However, this error was harmless as the other transferable
skills the VE listed (keeping records, planning, supervising, and delegating at high levels) are
properly considered skills within the meaning of the Social Security Act. It is clear to the Court
that these abilities are not innate and can be gained from a teacher's experience handling and
coordinating different classes of students. They are developed and honed over time. Therefore,
because the ALJ could properly rely on the VE's testimony regarding these transferable skills,
the ALJ' s decision is supported by substantial evidence and must be affirmed.
CONCLUSION

For the reasons outlined above, defendant's motion for judgment on the pleadings is
GRANTED and plaintiffs motion is DENIED. The final decision of the Commissioner is
AFFIRMED. The clerk is directed to close the file.

SO ORDERED.
This, the ____{j_ day ofNovember, 2014.

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