Paris v. Commissioner of the Social Security Administration

Filing 24

AMENDED MEMORANDUM OPINION AND ORDER. The court reverses the decision of the Commissioner and remands the case for further proceedings consistent with this Opinion and Order. Signed by Magistrate Judge Suzanne Mitchell on 12/21/16. (lb)

IN THE UNITED STATES DISTRICT COURT FOR THE
THE WESTERN DISTRICT OF OKLAHOMA
CATHY JOANN PARIS,
Plaintiff,
v.
CAROLYN W. COLVIN, acting
Commissioner of Social
Security,
Defendant.

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Case No. CIV-16-363-SM

AMENDED MEMORANDUM OPINION AND ORDER
Cathy Joann Paris (Plaintiff) brings this action for judicial review of
the Defendant Acting Commissioner of Social Security’s (Commissioner) final
decision that she was not “disabled” under the terms of the Social Security
Act. See 42 U.S.C. §§ 405(g), 423(d)(1)(A). The parties have consented under
28 U.S.C. § 636(c) to proceed before a United States Magistrate Judge. Doc.
13.

Following a careful review of the parties’ briefs, the administrative

record (AR), and the relevant authority, the court reverses and remands the
Commissioner’s decision.
I.

Administrative determination.
A.

Disability standard.

The Social Security Act defines “disability” as the “inability to engage
in any substantial gainful activity by reason of any medically determinable

physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not less
than 12 months.” 42 U.S.C. § 423(d)(1)(A). “This twelve-month duration
requirement applies to the claimant’s inability to engage in any substantial
gainful activity, and not just h[er] underlying impairment.” Lax v. Astrue,
489 F.3d 1080, 1084 (10th Cir. 2007).
B.

Burden of proof.

Plaintiff “bears the burden of establishing a disability” and of “ma[king]
a prima facie showing that [s]he can no longer engage in h[er] prior work
activity.” Turner v. Heckler, 754 F.2d 326, 328 (10th Cir. 1985). If Plaintiff
makes that prima facie showing, the burden of proof then shifts to the
Commissioner to show Plaintiff retains the capacity to perform a different
type of work and that such a specific type of job exists in the national
economy. Id.
C.

Relevant findings.
1.

Administrative Law Judge (ALJ) findings.

The ALJ assigned to Plaintiff’s case applied the standard regulatory
analysis and concluded Plaintiff had not met her burden of proof. AR 14; see
20 C.F.R. § 404.1520(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th

2

Cir. 2009) (describing the five-step process).

Specifically, the ALJ found

Plaintiff:
(1)

was severely impaired by “hearing loss; degenerative joint
disease of bilateral knees; and hip pain,” AR 211;

(2)

had the residual functional capacity (RFC)2 “to perform sedentary
work . . . with some limitations,” id. at 22; and

(3)

had “acquired work skills from past relevant work” and could
perform representative occupations including data entry clerk,
check cashier, and sorter, all of which exist in significant
numbers in the national economy. Id. at 28.
2.

Appeals Council action.

The Social Security Administration’s (SSA) Appeals Council found no
reason to review that decision, so the ALJ’s decision is the Commissioner’s
final decision in this case. Id. at 4-8; see Krauser v. Astrue, 638 F.3d 1324,
1327 (10th Cir. 2011).
II.

Judicial review of the Commissioner’s final decision.
A.

Review standards.

A court reviews the Commissioner’s final “decision to determine
whether the factual findings are supported by substantial evidence and
whether the correct legal standards were applied.” Mays v. Colvin, 739 F.3d

1

Unless otherwise indicated, quotations are verbatim.

Residual functional capacity “is the most [a claimant] can still do
despite [a claimant’s] limitations.” 20 C.F.R. § 404.1545(a)(1).
3
2

569, 571 (10th Cir. 2014) (internal quotation marks omitted). Substantial
evidence is “more than a scintilla, but less than a preponderance.” Lax, 489
F.3d at 1084.

A decision is not based on substantial evidence “if it is

overwhelmed by other evidence in the record.”
(internal quotation marks omitted).

Wall, 561 F.3d at 1052

The court will “neither reweigh the

evidence nor substitute [its] judgment for that of the agency.” Newbold v.
Colvin, 718 F.3d 1257, 1262 (10th Cir. 2013) (internal quotation marks and
citation omitted).
B.

Plaintiff’s claims of error.

Under “Points of Error,” Plaintiff lists two: (1) “[t]he ALJ erred, as a
matter of law, by failing to properly evaluate [Plaintiff’s] purported
transferable skills under the relevant heightened standard” and (2) “[t]he
ALJ’s findings regarding [Plaintiff’s] transferable skills are not supported by
substantial evidence.” Doc. 17, at 2, 13, 16. The court addresses the claims
together.
C.

Whether the ALJ legally erred in her evaluation of
transferable skills and whether her findings were
supported by substantial evidence.

At step five of the sequential evaluation, the ALJ must determine
whether a claimant can perform other work available in the national
economy, considering the claimant’s RFC, age, education, and past work
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experience. Dikeman v. Halter, 245 F.3d 1182, 1184 (10th Cir. 2001). The
burden of proof is on the ALJ, not the claimant, to develop the vocational
evidence. Thompson v. Sullivan, 987 F.2d 1482, 1491 (10th Cir. 1993).
At the time of the ALJ’s decision, Plaintiff was fifty-five years old,
possessed a high-school education (with attendance of special education
classes), and had worked as an inventory clerk, a medium semiskilled job,
SVP 4. AR 27. The ALJ found Plaintiff could not perform her past relevant
work, as she is limited to sedentary work. Id.; see 20 C.F.R., Pt. 404, Subpt.
P, App. 2, § 201.00(d).
As the Commissioner points out, where, like Plaintiff, a claimant is
over age 55, is limited to sedentary work, and has transferable skills to
sedentary occupations, “there must be very little, if any, vocational
adjustment required in terms of tools, work processes, work settings or the
industry.”

SSR 82-41, 1982 WL 31389, at *5 (1982); see Doc. 21, at 5-6;

Webster v. Barnhart, 187 F. App’x 857, 859-60 (10th Cir. 2006) (“[T]he ALJ’s
decision here [where claimant was 56 years old at the time of the ALJ’s
decision] cannot be upheld unless he appropriately put the burden on the
Commissioner to establish not only that Webster had skills that she could
transfer to the two jobs identified, but that the two jobs were so similar to her

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past work that she could be expected to perform them at a high degree of
proficiency with minimal job orientation.”).
“[U]nskilled jobs do not suffice to meet the Commissioner’s burden of
production at step five . . . .” in such an instance. Doc. 21, at 5. “When a
finding is made that a claimant has transferable skills, the acquired work
skills must be identified, and specific occupations to which the acquired work
skills are transferable must be cited in the State agency’s determination or
ALJ’s decision.” SSR 82-41, 1982 WL 31389, at *7.
The ALJ questioned Plaintiff regarding her past work history:
Q

What did you do there [in 2000]?

....
A

I was an auditor. I counted lots of different stuff - - grocery store,
hardware stores; have to pick up things - -

Q

So you’re doing inventory?

A

Yes ma’am.

AR 40-41. The ALJ then confirmed Plaintiff’s work encompassed the same
duties from 2000 through her November 1, 2011 alleged onset date. Id. at 4142.
The vocational expert (VE) examined Plaintiff’s past work history as
generally and actually performed. Id. at 59-60. He testified her work was as

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an inventory/auditor type position, consistent with the Dictionary of
Occupational Titles (DOT) position 222.[3]87-026. Id. at 60.
During the ALJ’s continued questioning of the VE, the ALJ noted
difficulties in hearing him and understanding his testimony.

The ALJ

inquired about Plaintiff’s transferable work skills, but getting a straight
answer proved difficult:
Q

All right. I’m having a hard time understanding you. So that’s
why I keep asking questions.
All right then. In connection with her past work, does the
claimant have transferrable work skills?

A

The skills that she basically has --

Q

Okay. Is that yes or no?

A

Oh. It’s basically no, it’s lateral.

Q

Okay. I can’t understand you.
transferrable work skills?

A

Only lateral.

Q

Okay. It’s a yes or no question. Does the claimant have --

A

No. No.

Q

-- transferrable work skills?

A

No.

Q

All right. Please don’t talk when I’m talking. Everything’s being
recorded. I can’t understand what you’re saying.

Does the claimant have

All right. Now then. please – there are no transferrable work
skills.
7

A

Correct.

Q

Okay. Earlier you said that there were but they were lateral.
That’s not my question.

A

That is --

Q

My question is are there transferrable work skills?

A

Okay. I think what happens is there’s a delay.
didn’t know I was talking over you.

That’s why I

But when I say transferrable skills, I am saying, basically, she
does have skills as far as being able to record information -Q

Okay.

Mr. Johnson, you’re getting off track.

A

Okay.

Q

All I want you to do is answer my question within the -- within all
the rules and regulations and case law regarding this application
for disability.
Now, my question is: Does she have transferrable work skills?

A

I would say yes.

Q

Now, then here’s my next question: Identify the precise exact
skills.

A

Okay. Thank you.
All right.
Those skills that I’m looking at is her ability to
record -- identify and record information, such as quantities, the
type of item, and to -- like I said, again, to record information.
That is the skills that I -- I have identified.

Q

Okay. Since she’s reached the age of 55, do they transfer with
very little or no vocational adjustment to sedentary work for the
time period of age 55 and beyond?

A

I would say yes.
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Id. at 60-62.
Unquestionably, this colloquy (among others) involved considerable
confusion, and required the ALJ to ask and re-urge questions regarding
transferable skills. See also id. at 64 (ALJ correcting the VE: “It’s not a
transferable-skill job within the concept of transferable-skill work.

It’s

unskilled work to begin with.”); id. at 65-66 (ALJ to the VE: “I’m concerned
that you don’t understand my questions.”; “Do you understand what
transferable work skills are Mr. Johnson?”; “You’re not making any sense.”).
When the ALJ first inquired as to whether Plaintiff has “transferrable work
skills,” the VE responded “it’s basically no, it’s lateral.”

Id. at 60.

Not

understanding, the ALJ inquired again whether Plaintiff has “transferrable
work skills,” and the VE responded “Only lateral.” Id. When asked again,
and instructed “It’s a yes or no question,” the VE responded “No” three times.
Id. at 60-61. After some back and forth, the ALJ asked again, and the VE
responded, “I would say yes.” Id. at 61-62.
When the ALJ instructed the VE to “[i]dentify the precise exact skills,”
the VE responded “Those skills that I’m looking at is her ability to record -identify and record information . . . .” Id. at 62. When asked if these skills
would “transfer with very little or no vocational adjustment to sedentary

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work for the time period of age 55 and beyond,” the VE stated “I would say
yes.” Id.
The Commissioner argues Plaintiff places form over substance. Doc.
21, at 6-7. She contends Plaintiff seeks an exact methodology and order to
the ALJ’s questioning of the VE. Id. at 7-8. While the court agrees a precise
order and verbiage are not required, the questioning and findings must be
adequate to meet the Commissioner’s burden to prove the existence of other
work in significant numbers that Plaintiff can perform.

See Jensen v.

Barnhart, 436 F.3d 1163, 1168 (10th Cir. 2005) (“[T]he ALJ carefully led the
VE through the regulatory requirements for transferability of skills for a
person of advanced age.”) (emphasis added).
The ALJ recapped her understanding of the VE’s testimony:
Q
You’ve -- I’m going to recite what you said. I asked you
to -- I asked you the question, does the claimant have
transferrable work skills; your answer was yes. I asked you to
specific identify the specific skills, and you did. I asked you if
they transfer with very little or no vocational adjustment to
sedentary work since the claimant has reached the age of 55;
your answer was yes. I then posed a hypothetical. I’m asking
you, in response to the hypothetical, are there other jobs in the
U.S. and regional economies and would you please identify
any transferrable work skill jobs as part of your response to
my question to the hypothetical.
Now we’re all sitting here waiting on you.
AR 66-67.
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After considerable confusion, the VE identified three jobs each with
a light exertional level, despite Plaintiff’s having “changed ages.” Id. at
67-69.

The ALJ altered the hypothetical and the VE identified three

sedentary jobs with transferable skills. Id. at 69-70 (identifying jobs of
data entry clerk, check cashier, and sorter). As to the similarity of the
jobs, the VE only stated that the position of check cashier “is semi-skilled,
just like her former position was . . . .” Id. at 70.
First, although the ALJ’s question to the VE regarding the overarching
vocational adjustment included the appropriate boiler plate language, that
“little or no vocational adjustment” would be required, id. at 66, the court
finds no meaningful discussion in terms of comparing the tools, processes,
settings, or the industry of Plaintiff’s past relevant work and the other jobs
the VE identified.

See SSR 82-41, 1982 WL 31389, at *7; 20 C.F.R. §

404.1568(d)(2) (“Transferability is most probable and meaningful among jobs
in which – (i) The same or a lesser degree of skill is required; (ii) The same or
similar tools and machines are used; and (iii) The same or similar raw
materials, products, processes, or services are involved.”); Jensen, 463 F.3d at
1166-67 (affirming the ALJ’s reliance on the VE’s opinion where VE testified
there would be “little if any vocational adjustment in terms of work processes,
work settings, or tools,” where the ALJ “solicited information from both the
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VE and [plaintiff] about the characteristics of [plaintiff’s] former jobs” and the
VE testified as to “compatib[ility]” of skills between previous work and the
“new jobs identified”). The ALJ’s concern over the VE’s understanding of
transferability only bolsters the need for a more detailed inquiry.

See

Webster, 187 F. App’x at 861 (holding “the VE’s testimony itself fails to
support the ALJ’s findings [because t]he VE’s testimony about vocational
adjustment was both minimal and circular”).
Next, Plaintiff “has a good work history,” working steadily in the same
field for the same employer, with minor exceptions, through 2011. AR 40-44;
25-26; 159.

She attained her skills to identify and record information

through this employment.

Id. at 61-62.

But the Commissioner does not

argue Plaintiff’s past relevant work was in fact similar to the jobs of data
entry clerk, check cashier, and sorter. See Doc. 22, at 5 n.3 (noting this “is
not surprising given that the former job’s worker functions, work field codes,
and materials, products, subject matter, and services . . . codes all differed
from [those three jobs] under the DOT”); see also Jensen, 463 F.3d at 1167.
Third, the ALJ did not inquire and made no specific findings regarding
the vocational adjustment involved in transferring Plaintiff’s skills to the
three jobs of data entry clerk, check cashier, or sorter. AR 28, 69-70. She
stated broadly that the VE testified Plaintiff could perform these occupations
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as she had acquired skills “in her past relevant work” and these occupations
required “no additional skills.” Id. at 28; see Jensen, 463 F.3d at 1166-67;
Johnson v. Barnhart, No. CIV-04-1328-T, Doc. 21, at 9, 8 (W.D. Okla. Oct. 14,
2005) (unpublished report and recommendation) (rejecting

plaintiff’s

argument regarding adequacy of VE’s testimony and ALJ’s finding where
“the record reflects that the VE described with adequate specificity the skills
which Plaintiff acquired in her previous nursing jobs that would be
transferable to other jobs at the sedentary level” and where the ALJ made an
“implicit finding that Plaintiff has acquired the transferable skills identified
by the VE” where “Plaintiff’s attorney questioned the VE concerning a
comparison between the work processes, work settings, tools, and industry
between her past work” and the VE testified specifically to each job
identified); adopted, Doc. 25 (W.D. Okla. Jan. 23, 2006) (unpublished order);
cf. Huhn v. Astrue, No. 508-CV-16-OC-GRJ, 2009 WL 804646, at *17 (M.D.
Fla. Mar. 26, 2009) (unpublished order) (affirming ALJ’s finding Plaintiff was
not disabled where the ALJ “questioned the VE regarding the degree of
vocational adjustment that would have to be made, in terms of tools, work
processes, and work settings for the industry, from his past relevant work to”
each identified job and the VE testified as to each); Greenwood v. Chater, No.
CV 94-4718 CBM (JG), 1996 WL 945021, at *8 (C.D. Cal. Mar. 29, 1996)
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(unpublished report and recommendation) (reversing and remanding ALJ’s
finding Plaintiff was not disabled where the VE “never addressed in any
substantive fashion whether, or to what extent, there would be changes in
‘tools, work processes, work settings or industry’” given Plaintiff had worked
in one field for twenty years), adopted, id., Doc. 20 (C.D. Cal. Apr. 12, 1996)
(unpublished order).
Fourth, neither the ALJ nor the VE drew any comparisons between
plaintiff’s past work and the identified other work, with the exception of
discussing each position’s SVP. AR 69-70. The VE testified the check cashier
position had “a SVP of 3, which is the semi-skilled, just like [Plaintiff’s]
former position . . . .” Id. at 70; cf. Johnson, No. CIV-04-1328-T, Doc. 21, at 8.
“SVP,” which stands for “Specific Vocational Preparation,” identifies “the
amount of lapsed time required by a typical worker to learn the techniques,
acquire the information, and develop the facility needed for average
performance in a specific job-worker situation.” DOT App. C § II, 1991 WL
688702 (4th rev. ed. 1991). SVPs thus serve as an aid in classifying work, not
as a specific measurement of what any one individual is capable of
performing.
Fifth, the ALJ failed to even mention vocational adjustment in her
decision, much less explicitly find little or no adjustment was required.
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Furthermore, although the ALJ recounts in her decision the transferable
skills identified by the VE (the skills to identify and record information), AR
28, 62, she does not specify which of the skills apply to the other jobs the VE
identified. The ALJ is tasked with the duty to make such findings, not the
VE. SSR 82-41, 1982 WL 31389, at *7 (“When the issue of skills and their
transferability must be decided, the . . . ALJ is required to make certain
findings of fact and include them in the written decision. Findings should be
supported with appropriate documentation.”); Webster, 187 F. App’x at 860-61
(“We have held that an ALJ must make findings specifically targeted at the
level of vocational adjustment needed for [the claimant] to enter potential
[identified] positions, as required by Social Security Ruling 82-41 . . . . That
the record contains evidence that may support a specific factual finding
cannot substitute for the finding itself.”) (citing Nielson v. Sullivan, 992 F.2d
1118, 1121-22 (10th Cir. 1993)). The court may not make such a finding for
the ALJ. See, e.g., Drapeau v. Massanari, 255 F.3d 1211, 1214 (10th Cir.
2001) (A reviewing court is “not in a position to draw factual conclusions on
behalf of the ALJ.”) (citation omitted).
“Accordingly, the ALJ’s decision here cannot be upheld” because she did
not
appropriately put the burden on the Commissioner to establish
not only that [Plaintiff] had skills that she could transfer to the
[three] jobs identified, but that the [three] jobs were so similar to
15

her past work that she could be expected to perform them at a
high degree of proficiency with minimal job orientation. Neither
the record nor the ALJ’s decision reflect that [s]he appropriately
placed this more stringent burden on the Commissioner at step
five.
Webster, 187 F. App’x at 859-60. And, there is not substantial evidence in the
record to support the Commissioner’s decision that the jobs identified by the
VE and relied on by the ALJ satisfy the vocational requirement established
by the agency’s regulations for a person of Plaintiff’s advanced age.
III.

CONCLUSION
The court reverses the decision of the Commissioner and remands the

case for further proceedings consistent with this Opinion and Order.
ENTERED this 21st day of December, 2016.

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