RESPER v. BERRYHILL

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

TANGA RESPER, )

)

Plaintiff, )

)

v. ) 1:19CV525

)

ANDREW M. SAUL, )

Commissioner of Social )

Security,1 )

)

Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Tanga Resper, brought this action pursuant to the

Social Security Act (the “Act”) to obtain judicial review of a

final decision of Defendant, the Commissioner of Social Security,

denying Plaintiff’s claim for Disability Insurance Benefits

(“DIB”). (Docket Entry 1.) Defendant has filed the certified

administrative record (Docket Entry 7 (cited herein as “Tr. __”)),

and both parties have moved for judgment (Docket Entries 10, 16;

see also Docket Entry 11 (Plaintiff’s Memorandum); Docket Entry 17

(Defendant’s Memorandum); Docket Entry 18 (Plaintiff’s Reply)).

For the reasons that follow, the Court should remand this matter

for further administrative proceedings.

1 The United States Senate confirmed Andrew M. Saul as the Commissioner of

Social Security on June 4, 2019, and he took the oath of office on June 17,

2019. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Andrew

M. Saul is substituted for Nancy A. Berryhill as the Defendant in this suit.

Neither the Court nor the parties need take any further action to continue this

suit by reason of the last sentence of section 205(g) of the Social Security

Act, 42 U.S.C. § 405(g).

I. PROCEDURAL HISTORY

Plaintiff applied for DIB, alleging a disability onset date

of August 25, 2010. (Tr. 170-71.) Upon denial of that application

initially (Tr. 71-84, 100-03) and on reconsideration (Tr. 85-99,

111-18), Plaintiff requested a hearing de novo before an

Administrative Law Judge (“ALJ”) (Tr. 119-20). Plaintiff, her

attorney, and a vocational expert (“VE”) attended the hearing

(Tr. 42-70), during which Plaintiff amended her onset date to

November 28, 2011 (see Tr. 46-47). The ALJ subsequently determined

that Plaintiff did not qualify as disabled under the Act. (Tr.

19-36.) The Appeals Council thereafter denied Plaintiff’s request

for review (Tr. 1-6, 14-18, 240-41), and Plaintiff filed a

Complaint in this Court seeking judicial review of the

Commissioner’s denial of benefits, see Resper v. Berryhill, No.

1:17CV128, Docket Entry 1 (M.D.N.C. Feb. 15, 2017). The Court

subsequently granted the Commissioner’s Consent Motion to Remand

under Sentence Four of 42 U.S.C. § 405(g), see Resper, Docket

Entries 14-16 (M.D.N.C. Oct. 17, 2017) and, in response, the

Appeals Council issued an order remanding the case to an ALJ for

a new hearing (Tr. 1167-71).

The same ALJ convened a new hearing, which Plaintiff, her

attorney, and a VE attended. (Tr. 1080-1125.) Following that

hearing, the ALJ ruled that Plaintiff did not qualify as disabled.

(Tr. 1030-53.) Plaintiff filed exceptions to the ALJ’s decision

(Tr. 1070-79), but the Appeals Council deemed them untimely and

declined to consider them (Tr. 1062-63), thereby making the ALJ’s

ruling the Commissioner’s final decision for purposes of judicial

review.

In rendering that decision, the ALJ made the following

findings:

1. [Plaintiff] last met the insured status

requirements of the . . . Act on December 31, 2015.

2. [Plaintiff] did not engage in substantial gainful

activity during the period from her [amended] alleged

onset date of November 28, 2011 through her date last

insured of December 31, 2015.

. . .

3. Through the date last insured, [Plaintiff] had the

following severe impairments: degenerative disc disease

of the lumbar spine; degenerative joint disease of the

right shoulder; and history of carpal tunnel of the right

hand.

. . .

4. Through the date last insured, [Plaintiff] did not

have an impairment or combination of impairments that

met or medically equaled the severity of one of the

listed impairments in 20 CFR Part 404, Subpart P,

Appendix 1.

. . .

5. . . . [T]hrough the date last insured, [Plaintiff]

had the residual functional capacity to perform

sedentary work . . . except she can lift and carry up to

10 pounds occasionally and less than 10 pounds

frequently. She can engage in occasional stooping,

crouching, kneeling, and climbing ramps and stairs, and

can perform occasional twisting at the waist, but no

climbing of ladders. She can frequently perform

fingering and handling with her right upper extremity.

She can sit for no more than 60 minutes at a time, and

stand for no more than 30 minutes at a time.

. . .

6. Through the date last insured, [Plaintiff] was

unable to perform any past relevant work.

. . .

9. [Plaintiff] has acquired work skills from past

relevant work.

The [VE] testified that [Plaintiff]’s past relevant work

as a Bakery Supervisor was skilled, was classified as

having a specific vocational preparation (“SVP”) code of

6, and required the following skills: provide

information to customers.

10. Considering [Plaintiff]’s age, education, work

experience, and residual functional capacity,

[Plaintiff] had acquired work skills from past relevant

work that were transferable to other occupations with

jobs existing in significant numbers in the national

economy.

. . .

11. [Plaintiff] was not under a disability, as defined

in the . . . Act, at any time from November 28, 2011,

the [amended] alleged onset date, through December 31,

2015, the date last insured.

(Tr. 1036-52 (bold font and internal parenthetical citations

omitted).)

II. DISCUSSION

Federal law “authorizes judicial review of the Social

Security Commissioner’s denial of social security benefits.”

Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However,

“the scope of . . . review of [such a] decision . . . is extremely

limited.” Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).

Even given those limitations, the Court should remand this case

for further administrative proceedings.

A. Standard of Review

“[C]ourts are not to try [a Social Security] case de novo.”

Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). Instead,

“a reviewing court must uphold the factual findings of the ALJ

[underlying the denial of benefits] if they are supported by

substantial evidence and were reached through application of the

correct legal standard.” Hines, 453 F.3d at 561 (internal brackets

and quotation marks omitted).

“Substantial evidence means ‘such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.’”

Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (quoting

Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of

more than a mere scintilla of evidence but may be somewhat less

than a preponderance.” Mastro v. Apfel, 270 F.3d 171, 176 (4th

Cir. 2001) (internal brackets and quotation marks omitted). “If

there is evidence to justify a refusal to direct a verdict were

the case before a jury, then there is substantial evidence.”

Hunter, 993 F.2d at 34 (internal quotation marks omitted).

“In reviewing for substantial evidence, the [C]ourt should

not undertake to re-weigh conflicting evidence, make credibility

determinations, or substitute its judgment for that of the [ALJ,

as adopted by the Social Security Commissioner].” Mastro, 270

F.3d at 176 (internal brackets and quotation marks omitted).

“Where conflicting evidence allows reasonable minds to differ as

to whether a claimant is disabled, the responsibility for that

decision falls on the [Social Security Commissioner] (or the ALJ).”

Id. at 179 (internal quotation marks omitted). “The issue before

[the Court], therefore, is not whether [the claimant] is disabled,

but whether the ALJ’s finding that [the claimant] is not disabled

is supported by substantial evidence and was reached based upon a

correct application of the relevant law.” Craig v. Chater, 76

F.3d 585, 589 (4th Cir. 1996).

When confronting that issue, the Court must take note that

“[a] claimant for disability benefits bears the burden of proving

a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),

and that, in this context, “disability” means 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,’” id.

(quoting 42 U.S.C. § 423(d)(1)(A)).2 “To regularize the

2 The Act “comprises two disability benefits programs. [DIB] . . . provides

benefits to disabled persons who have contributed to the program while employed.

The Supplemental Security Income Program . . . provides benefits to indigent

disabled persons. The statutory definitions and the regulations . . . for

determining disability governing these two programs are, in all aspects relevant

here, substantively identical.” Craig, 76 F.3d at 589 n.1 (internal citations

omitted).

adjudicative process, the Social Security Administration has . . .

promulgated . . . detailed regulations incorporating longstanding

medical-vocational evaluation policies that take into account a

claimant’s age, education, and work experience in addition to [the

claimant’s] medical condition.” Id. “These regulations establish

a ‘sequential evaluation process’ to determine whether a claimant

is disabled.” Id. (internal citations omitted).

This sequential evaluation process (“SEP”) has up to five

steps: “The claimant (1) must not be engaged in ‘substantial

gainful activity,’ i.e., currently working; and (2) must have a

‘severe’ impairment that (3) meets or exceeds the ‘listings’ of

specified impairments, or is otherwise incapacitating to the

extent that the claimant does not possess the residual functional

capacity to (4) perform [the claimant’s] past work or (5) any other

work.” Albright v. Commissioner of Soc. Sec. Admin., 174 F.3d

473, 475 n.2 (4th Cir. 1999).3 A finding adverse to the claimant

at any of several points in the SEP forecloses an award and ends

the inquiry. For example, “[t]he first step determines whether

the claimant is engaged in ‘substantial gainful activity.’ If the

claimant is working, benefits are denied. The second step

determines if the claimant is ‘severely’ disabled. If not,

3 “Through the fourth step, the burden of production and proof is on the

claimant. If the claimant reaches step five, the burden shifts to the

[government] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).

benefits are denied.” Bennett v. Sullivan, 917 F.2d 157, 159 (4th

Cir. 1990).

On the other hand, if a claimant carries his or her burden at

each of the first three steps, “the claimant is disabled.” Mastro,

270 F.3d at 177. Alternatively, if a claimant clears steps one

and two, but falters at step three, i.e., “[i]f a claimant’s

impairment is not sufficiently severe to equal or exceed a listed

impairment, the ALJ must assess the claimant’s residual functional

capacity (‘RFC’).” Id. at 179.4 Step four then requires the ALJ

to assess whether, based on that RFC, the claimant can “perform

past relevant work”; if so, the claimant does not qualify as

disabled. Id. at 179-80. However, if the claimant establishes an

inability to return to prior work, the analysis proceeds to the

fifth step, whereupon the ALJ must decide “whether the claimant is

able to perform other work considering both [the RFC] and [the

claimant’s] vocational capabilities (age, education, and past work

experience) to adjust to a new job.” Hall, 658 F.2d at 264-65.

If, at this step, the government cannot carry its “evidentiary

4 “RFC is a measurement of the most a claimant can do despite [the claimant’s]

limitations.” Hines, 453 F.3d at 562 (noting that administrative regulations

require RFC to reflect claimant’s “ability to do sustained work-related physical

and mental activities in a work setting on a regular and continuing basis . . .

[which] means 8 hours a day, for 5 days a week, or an equivalent work schedule”

(internal emphasis and quotation marks omitted)). The RFC includes both a

“physical exertional or strength limitation” that assesses the claimant’s

“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as

“nonexertional limitations (mental, sensory, or skin impairments).” Hall, 658

F.2d at 265. “RFC is to be determined by the ALJ only after [the ALJ] considers

all relevant evidence of a claimant’s impairments and any related symptoms

(e.g., pain).” Hines, 453 F.3d at 562-63.

burden of proving that [the claimant] remains able to work other

jobs available in the community,” the claimant qualifies as

disabled. Hines, 453 F.3d at 567.5

B. Assignment of Error

In Plaintiff’s sole assignment of error, she contends that

“[t]he ALJ erred in her evaluation of Plaintiff’s [past relevant

work (‘PRW’)] and transferability of skills to other work.”

(Docket Entry 11 at 4 (bold font and single-spacing omitted).)

More specifically, Plaintiff challenges the ALJ’s finding that

Plaintiff acquired transferable skills from her PRW as a Bakery

Supervisor that enabled her to perform other jobs existing in

significant numbers in the national economy (see Tr. 1050-51) on

three grounds: 1) “the VE did not testify that there were any

transferable skills from the [B]akery [S]upervisor or [F]ront

[D]esk [C]lerk positions – the only two positions which the ALJ

found to constitute PRW in her decision” (Docket Entry 11 at 5-6

(citing Tr. 1122-23)); 2) “‘dealing with the public and providing

information to customers’ – the skill which the ALJ found

transferable to semi-skilled sedentary jobs in the economy – is

not a skill, but rather a trait of the job” (id. at 6 (internal

5 A claimant thus can qualify as disabled via two paths through the SEP. The

first path requires resolution of the questions at steps one, two, and three in

the claimant’s favor, whereas, on the second path, the claimant must prevail at

steps one, two, four, and five. Some short-hand judicial characterizations of

the SEP appear to gloss over the fact that an adverse finding against a claimant

on step three does not terminate the analysis. See, e.g., Hunter, 993 F.2d at

35 (“If the ALJ finds that a claimant has not satisfied any step of the process,

review does not proceed to the next step.”).

citation omitted) (citing Tr. 1051)); and 3) although the VE

testified that Plaintiff’s PRW as a Department Manager provided

the transferable skill of providing information to customers, “the

VE likely misclassified th[at] work,” as “there [wa]s little

indication . . . that [Plaintiff] was engaged in providing

information to customers” (id. at 8 (citing Tr. 96-97, 205, 1085-

86)). For the reasons discussed below, Plaintiff’s first

subcontention has merit and warrants remand.

At step five of the SEP, the Commissioner bears the burden of

providing evidence of a significant number of jobs in the national

economy that a claimant could perform considering his or her age,

education, work experience, and RFC. See Walls v. Barnhart, 296

F.3d 287, 290 (4th Cir. 2002). “The Commissioner may meet this

burden by relying on the Medical–Vocational Guidelines (Grids) or

by calling a [VE] to testify.” Aistrop v. Barnhart, 36 F. App’x

145, 146 (4th Cir. 2002) (citing 20 C.F.R. § 404.1566). “The Grids

categorize jobs by their physical-exertion requirements, namely,

sedentary, light, medium, heavy, and very heavy. There are

numbered tables for the sedentary, light, and medium level (tables

1, 2, and 3, respectively), and a specific rule for the heavy and

very heavy levels. Based on the claimant’s RFC, the ALJ must first

determine which table to apply, i.e., if the claimant’s RFC limits

him to a sedentary exertional level, then Table No. 1 is the

appropriate table. Next, based on the claimant’s age, education,

and previous work experience, the [table or] rule directs a finding

of ‘disabled’ or ‘not disabled.’” Black v. Astrue, No. 3:09CV599,

2010 WL 2306130, at *4 (E.D. Va. Apr. 26, 2010) (unpublished)

(internal citations and footnotes omitted), recommendation

adopted, 2010 WL 2306136 (E.D. Va. June 3, 2010) (unpublished).

Grid Rules 201.14 and 201.15 apply to an individual, like

Plaintiff, limited to sedentary work, closely approaching advanced

age (aged 50-54) during the relevant period, with a high school

education (or more) that does not provide for direct entry into

skilled work, with skilled or semi-skilled past work experience.

See 20 C.F.R. Pt. 404, Subpt. P, App’x 2, §§ 201.14, 201.15. If

that individual acquired “transferable skills” from his or her

past work experience, Grid Rule 201.15 applies and directs a

conclusion of “[n]ot disabled.” Id., § 201.15. In contrast, if

the individual’s past work did not result in “transferable” skills,

Rule 201.14 deems the individual “[d]isabled.” Id., § 201.14.

Thus, resolution of Plaintiff’s claim for DIB ultimately turns on

whether the ALJ correctly concluded that Plaintiff acquired

transferable skills from her previous work experience that enabled

her to perform other semi-skilled jobs existing in significant

numbers in the national economy. (See Tr. 1051.)

1. Transferable Skills from Bakery Supervisor Job

Plaintiff first faults the ALJ for finding that Plaintiff

acquired transferable skills from her PRW as a Bakery Supervisor

that enabled her to perform other jobs existing in significant

numbers in the national economy, because “the VE did not testify

that there were any transferable skills from the [B]akery

[S]upervisor or [F]ront [D]esk [C]lerk positions – the only two

positions which the ALJ found to constitute PRW in her decision.”

(Docket Entry 11 at 5-6 (citing Tr. 1122-23, and referencing Tr.

1050-51).) According to Plaintiff, “the VE testified that there

was a transferable skill from the [D]epartment [M]anager job which

[Plaintiff] had performed in the past[, b]ut [] the ALJ did not

find that [the Department Manager] position met the requirements

of PRW.” (Id. at 6 (internal citation omitted) (citing Tr. 1122-

23, 1050); see also Docket Entry 18 at 1-2.)

During the hearing, the following colloquy took place

between the ALJ and the VE:

[ALJ:] [VE], would you describe [Plaintiff]’s past

work, please.

[VE:] Yes. Manager, [D]epartment, [Dictionary of

Occupational Titles (‘DOT’)] code 299.137-010, SVP of 7,

medium exertional level, performed at light. Manager,

[B]akery, [DOT code] 189.117-046, SVP of 8, sedentary

exertion, performed at light. And [F]ront [D]esk

[C]lerk, or could be called [H]otel [C]lerk, [DOT code]

238.367-038, SVP of 4, light exertion, performed at

light.

[ALJ:] Now with respect to the manager of the bakery

department at a Walmart, that’s clearly not sedentary,

and it’s clearly not an eight SVP. Do you not have

anything a little more – a little closer to that job,

something in a retail department store, or is the

[M]anager, [D]epartment – the [M]anager title just not

appropriate according to the [DOT]?

[VE:] I will take a look at that. I know, I used to

work in a bakery, so I know that’s actually more like

medium. Let me take a look at this other code here.

Okay. I’m thinking that it’s still – hold on a moment.

Okay. This one is still an [SVP of] eight, but it’s

medium, so this might better fit. It’s [B]akery

[S]upervisor, [DOT code] 526.131-010, SVP of 8, and

medium.

[ALJ:] Okay. And in terms of the SVP, as it was

actually performed, what would your estimation be on

that?

[VE:] I am not sure about that.

[ALJ:] How long would – do you think that it would

take to learn the job of a bakery department manager?

[VE:] Well, the SVP is eight, is four to ten years.

So I’m really – I’m thinking maybe a six would be more

appropriate, because that would be like a one to two-

year. And working at a bakery is a lot to consider.

You have to know a lot about making sure the directions

are followed about bread, and whatever it is you’re

producing there. So it still takes some skill.

. . .

[ALJ:] In her work, did [Plaintiff] acquire any

skills transferable to sedentary work?

[VE:] Let’s see. The [D]epartment [M]anager

position would have, according to the [DOT], some – a

transferable skill of like working with the public, and

sustained people [sic] with information that might be

sedentary work.

[ALJ:] In terms of working with the public, that

obviously is something that one does require – acquire,

even from unskilled work, is there a particular type of

skill involved in working with the public that would be

transferable to jobs within the second hypothetical?

[VE:] The jobs that I’ve cited in the second

hypothetical, is that what you’re saying, ma’am?

[ALJ:] Are there sedentary jobs that – well, I said,

in the second hypothetical, can sit up to 60 minutes at

a time. Can stand up to 30 minutes. Are there sedentary

jobs within that hypothetical to which skills would be

transferable?

[VE:] I had identified three jobs that might have

some transferability from the department manager job.

Would you like those three?

[ALJ:] Yes, please.

[VE:] Okay. Appointment [C]lerk, [DOT] code

237.367-010, that is an SVP of 3, sedentary exertion,

and approximately 73,000 average jobs in the national

economy. Referral and [I]nformation [A]ide, [DOT code]

237.367-042, SVP of 3, sedentary, approximately 73,000

average jobs in the national economy. And [S]cheduler,

[DOT code] 238.367-034, SVP of 3, sedentary, and

approximately 73,000 average jobs in the national

economy.

(Tr. 1119-23 (emphasis added).)

In turn, the ALJ found at step four of the SEP that

“[Plaintiff] had [PRW] as a [F]ront [D]esk [C]lerk and as a

[B]akery [S]upervisor” but did not include the job the VE

characterized as “Department Manager” in Plaintiff’s PRW. (Tr.

1050.) At step five, the ALJ found “[Plaintiff] ha[d] acquired

work skills from [PRW],” and purportedly based that finding on

“[t]he [VE’s] testi[mony] that [Plaintiff]’s [PRW] as a Bakery

Supervisor was skilled, was classified as having a[n SVP] code of

6, and required the following skills: provide information to

customers” (Tr. 1051).

As the above-emphasized language makes clear, the VE

testified that Plaintiff’s PRW as a Department Manager provided

Plaintiff with the transferable skill of “working with the public”

and did not identify any transferable skills arising from

Plaintiff’s PRW as a Bakery Supervisor (or as a Front Desk Clerk).

(Tr. 1122.) Accordingly, no vocational evidence of record

supports the ALJ’s finding that Plaintiff acquired transferable

skills from her PRW as a Bakery Supervisor (see Tr. 1050), let

alone skills that would transfer to the three semi-skilled jobs to

which the VE testified (see Tr. 1123).

The Commissioner deems “the mere fact that the ALJ did not

identify Plaintiff’s [D]epartment [Ma]anager [job] . . . as [PRW]

in h[er] decision [] irrelevant,” because “[t]he VE[’s] testimony

unequivocally confirms that Plaintiff’s [D]epartment [M]anager job

also qualifies as [PRW].” (Docket Entry 17 at 6-7 (citing Tr.

1119-20).) However, the Commissioner’s argument oversimplifies

the ALJ’s error – the ALJ did not merely neglect to include

Plaintiff’s prior work as a “Department Manager” among her PRW at

step four but then otherwise correctly analyze the VE’s testimony

at step five. Rather, the ALJ omitted the Department Manager job

from Plaintiff’s PRW (see Tr. 1050), despite the VE’s testimony

including that job in Plaintiff’s PRW (see Tr. 1119), and neglected

to provide any explanation for the omission (see Tr. 1050).6

6 The exchange between the ALJ and the VE at the hearing reveals that the ALJ

doubted whether the VE properly classified Plaintiff’s prior job as the bakery

department manager at Walmart as the Manager, Bakery job in the DOT, because

the DOT rated that job at the sedentary level of exertion and at SVP 8 (over

four years and up to and including 10 years to learn the job, see DOT, App’x C

Notably, the ALJ then additionally attempted to bootstrap the VE’s

testimony regarding transferable skills from the Department

Manager job to the Bakery Supervisor job, without any accompanying

explanation or justification for doing so. (See Tr. 1051.)7 That

combination of errors by the ALJ render her finding at step five

that Plaintiff acquired work skills that transferred to other semi-

skilled jobs in significant numbers nationally unsupported by

substantial evidence, warranting remand.

2. Transferable Skills Involving the Public and/or Customers

Plaintiff additionally maintains “that ‘dealing with the

public and providing information to customers’ – the skill which

the ALJ found transferable to semi-skilled sedentary jobs in the

economy – is not a skill, but rather a trait of the job.” (Docket

(“Components of the Definition Trailer”), § II (“Specific Vocational

Preparation”), 1991 WL 699702 (G.P.O. 4th ed. rev. 1991)). (See Tr. 1119-20.)

Those circumstances strongly suggest that the ALJ omitted the Department Manager

job from Plaintiff’s PRW because the ALJ also doubted whether the VE properly

classified Plaintiff’s prior work as the department manager for the impulse

department at Walmart as the Manager, Department job in the DOT which, according

to the VE, carried an SVP of 7 (over two years up to and including four years

to learn the job, see DOT, App’x C, § II, 1991 WL 699702)) (see Tr. 1119).

7 The DOT’s job descriptions for Department Manager and Bakery Supervisor each

contain a cross-reference to the Guide for Occupational Exploration (“GOE”).

See DOT, No. 299.137-010 (Manager, Department), 1991 WL 672616 (cross-

referencing GOE § 11.11.05); DOT, No. 526.131-010 (Bakery Supervisor), 1991 WL

674471 (cross-referencing GOE § 6.01.01). The GOE categorizes the Department

Manager job as part of the “Leading-Influencing” group and “Business Management”

subgroup of occupations, and the “skills and abilities . . . need[ed] for th[at]

kind of work” include “deal[ing] with the general public[ and] customers[] with

tact and courtesy.” GOE, 310-13 (U.S. DOL 1979). In contrast, the GOE places

the Bakery Supervisor job in the “Industrial” group and “Production Technology”

subgroup of occupations, and the “skills and abilities . . . need[ed] for th[at]

kind of work” do not include working with (or providing information to) the

public. GOE, 136-40. These differences underscore the significance of the

ALJ’s error in attributing, without accompanying explanation, transferable

skills from the Department Manager job to the Bakery Supervisor job.

Entry 11 at 6 (internal citation omitted) (quoting Tr. 1051).) In

support of that argument, Plaintiff points to what she deems “the

ALJ’s “skepticism” (id. at 7) at the hearing that dealing with the

public/providing information to customers constituted a skill,

because she “acknowledge[ed] that [working with the public] was

something an individual could be required to do as part of an

unskilled job” (id. at 6 (citing Tr. 1122)). Plaintiff notes that

“[t]he VE d[id] not the[reafter] explain how there is a particular

type of skill related to working with the public that is

transferable to the jobs of [A]ppointment [C]lerk, [Referral and

I]nformation [A]ide and [S]cheduler.” (Id. at 7 (citing Tr.

1123).) According to Plaintiff, “individuals working in many

unskilled jobs provide information to customers,” and “[i]t does

not take an individual more than 30 days to learn how to provide

information to customers . . . particularly [] when the information

is not specialized in any way.” (Id. (internal quotation marks

omitted) (citing, inter alia, Program Operations Manual System

(“POMS”), § DI 25015.017(C)(2) (deeming “[a]nswering a standard

telephone” and “[g]reeting customers” as “[u]nskilled [t]asks”)).)

Plaintiff’s arguments in this regard fail to carry the day.

The SSA defines a “skill” as “knowledge of a work activity

which requires the exercise of significant judgment that goes

beyond the carrying out of simple job duties and is acquired

through performance of an occupation which is above the unskilled

level (requires more than 30 days to learn).” Social Security

Ruling 82–41, Titles II and XVI: Work Skills and Their

Transferability as Intended by the Expanded Vocational Factors

Regulations Effective February 26, 1979, 1982 WL 31389, at *2

(1982) (“SSR 82-41”). That Ruling differentiates skills and worker

traits by noting that skills involve “experience and demonstrated

proficiency with work activities in particular tasks or jobs,” id.

at *3 (emphasis added), as well as the “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,” id. at *2. SSR 82-41 further

emphasizes that descriptive terms, such as “alertness and close

attention” and “coordination and dexterity” contained in the

regulations’ definition of semi-skilled jobs, do not “illustrate

types of skills, in and of themselves,” but rather “describe worker

traits (aptitudes or abilities).” Id. (citing 20 C.F.R.

§ 404.1568(b)). Thus, “[w]orker traits to be relevant must have

been used in connection with a work activity,” and “the acquired

capacity to perform the work activities with facility (rather than

the traits themselves) gives rise to potentially transferable

skills.” Id. (emphasis added); see also Draegert v. Barnhart, 311

F.3d 468, 476 (2d Cir. 2002) (noting that “generalized abilities

. . . not linked to any particular tasks[] are merely traits or

aptitudes, not job skills” (emphasis added)); Anglin v. Massanari,

18 F. App’x 551, 553 (9th Cir. 2001) (defining trait as “an

inclination, a natural ability, talent, or capacity for learning”

(citing Webster’s New World Dictionary 68 (3d ed. 1998)); Ingles

v. Heckler, 763 F.2d 169, 170 (4th Cir. 1985) (per curiam) (deeming

“basic abilities to read, write, and count [] not skills,” because

they “were not acquired through work experience or through

education providing for direct entry into skilled work” (emphasis

added)); Weaver v. Secretary of Health & Human Servs., 722 F.2d

310, 311–12 (6th Cir. 1983) (defining skills as “learned abilities”

and “aptitudes” as “innate abilities” (emphasis added)).

In light of Plaintiff’s vocational information regarding her

past work and the above-referenced authority, the Court should

conclude that the ALJ did not err by treating dealing with the

public and/or providing information to customers as possible

transferable skills. (See Tr. 1051.)8 Plaintiff’s Work History

Report reflects that she worked at Walmart as a department manager

from June 1997 to August 2010, a period of over 13 years. (See

Tr. 204-05.) In that job, Plaintiff indicated that her duties

involved “customer service[,] stocking, merchand[is]ing, ordering,

cleaning, [and] inventory.” (Tr. 205 (emphasis added).) Moreover,

Plaintiff’s reliance on POMS falls short, because providing

“service” to customers at a managerial level involves more skill

8 As discussed above, the Court should find, however, that the ALJ erred by

finding that Plaintiff acquired such skills from the Bakery Supervisor job.

(See Tr. 1051.)

than the “unskilled task” of simply “greeting” customers. (See

id. at 7 (citing POMS, § DI 25015.017(C)(2)).)

In a persuasively reasoned case, the United States Court of

Appeals for the Sixth Circuit rejected the plaintiff’s argument

that “abilities [such as dealing with the public we]re not

sufficiently complicated to rise to the level of a skill[, because]

they encompass an inherent sociability that a worker either has or

lacks,” explaining as follows:

This argument fails on its own terms. While a person

may be innately gregarious, this does not necessarily

mean that she will be effective at dealing with the

public, delivering information, or operating the

telephone. It is not difficult to imagine a sociable

person performing these duties in a lackluster fashion.

Moreover, a substantial amount of authority undermines

[the plaintiff’s] argument. In Atwater v. Astrue, for

example, the Second Circuit affirmed the denial of

disability benefits based on a finding of

transferability where the claimant’s “past employment

involved clerical duties, light typing, filing,

answering the phone, providing information to callers,

and directing people to assistance.” 512 [F. App’x] 67,

69 (2d Cir. 2013). Numerous other decisions within th[e

Sixth] Circuit and elsewhere have reached similar

outcomes. See, e.g., Kyle[ v. Commissioner of Soc. Sec.,

609 F.3d 847, 857 (6th Cir. 2010)] (referencing “the

learned skill of interacting with people”); Deneweth v.

Astrue, No. 10–11657, 2010 WL 5330490, at *1 (E.D. Mich.

Dec. 21, 2010) [(unpublished)] (upholding the ALJ’s

determination that the claimant, who suffered from

advanced arthritis in her right knee, “acquired skills

transferable to sedentary work such as public contact,

office administration, data entry, phone answering,

general clerical, and record keeping”); Bjornholm v.

Shalala, 39 F.3d 888, 890 (8th Cir. 1994) (holding that

the claimant’s abilities “to handle money, to deal with

the public, and to record routine information” in her

prior job as a waitress were transferable skills); Loy

v. Sec[retar]y of Health & Human Servs., 901 F.2d 1306,

1309–10 (6th Cir. 1990) (holding that “dealing with

customers” was a transferable skill); . . . Taylor v.

Sec[retar]y of Health & Human Servs., [] No. 89–1260,

[891 F.2d 292 (table)], 1989 WL 150763, at *4 (6th Cir.

Dec. 14, 1989) (unpublished []) (holding that the

ability to “deal with the general public” was a

transferable skill).

Harris v. Commissioner of Soc. Sec., 598 F. App’x 355, 363 (6th

Cir. 2015) (emphasis added); see also Janeczek v. Commissioner of

Soc. Sec., No. 1:18CV629, 2018 WL 6419995, at *3 (W.D. Mich. Dec.

6, 2018) (unpublished) (relying on Harris to reject the plaintiff’s

argument that ability to deal with public did not constitute

skill); Joy R. v. Commissioner of Soc. Sec., No. 5:17CV66, 2018 WL

6191036, at *4 (D. Vt. Nov. 28, 2018) (unpublished) (finding that,

“[t]aken out of any practical context, a generic aptitude for

dealing with [the] public would not constitute a transferrable job

skill,” but holding that, in the plaintiff’s case, “the VE’s

testimony contemplate[d] more than a generic social or

communication ability,” because the plaintiff’s duties of

“communicating information to people and receiving office visitors

[we]re specific work activities that require[d] dealing with the

public”); Huff v. Shalala, No. 1:91CV499, 1994 WL 776889, at *4

(S.D. Miss. Sept. 30, 1994) (unpublished) (determining that “the

ability to deal with the public is more fairly described as a

skill, having been acquired through performance of an occupation

which is above the unskilled level” (internal quotation marks

omitted)).

In Plaintiff’s Reply, she argues that, even if dealing with

the public and/or providing information to customers qualify as a

transferable skill, “the ALJ’s decision still cannot be upheld by

this Court” (Docket Entry 18 at 3), because none of the jobs cited

by the VE (and adopted by the ALJ) “require supervisory skills to

which the ‘supervisory’ skills from the work classified as

‘department manager’ would transfer” (id. at 4 (responding to

Commissioner’s argument that “[s]upervisory skills are highly

likely to transfer to other sedentary or light work” (Docket Entry

17 at 8 (internal citation omitted))). Plaintiff further contends

“that th[e] jobs [cited by the VE and adopted by the ALJ] bear

little to no resemblance to the duties involved in [Plaintiff]’s

past work.” (Id.)

Although Plaintiff would have acquired the skills of dealing

with the public and/or providing information to customers while

working in a managerial capacity for Walmart, SSA policy does not

require that the jobs to which those skills transfer must also

qualify as “supervisory” or involve “supervisory” skills. See SSR

82-41, 1982 WL 31389, at *5 (noting that, “transferability is . . .

most probable and meaningful among jobs in which[ ] the same or a

lesser degree of skill is required, because people are not expected

to do more complex jobs than they have actually performed”

(emphasis added)). Furthermore, despite Plaintiff’s observation

that the jobs of Appointment Clerk, Referral and Information Aide

and Scheduler “bear little to no resemblance to the duties involved

in [Plaintiff]’s past work” (Docket Entry 18 at 4), “where job

skills have universal applicability across industry lines, e.g.,

clerical, professional, administrative, or managerial types of

jobs, transferability of skills to industries differing from past

work experience can usually be accomplished with very little, if

any, vocational adjustment where jobs with similar skills can be

identified as being within an individual’s RFC,” SSR 82-41, 1982

WL 31389, at *6 (emphasis added).

In short, Plaintiff has not shown error with respect to the

ALJ’s finding that dealing with the public and/or providing

information to customers could constitute transferable skills in

this case.

3. Department Manager Job as PRW

Lastly, Plaintiff contends that, although the VE classified

Plaintiff’s previous work as the manager of the impulse department

at Walmart as the DOT job “Department Manager” and testified that

such job provided the transferable skills of dealing with the

public and/or providing information to customers, “the VE likely

misclassified th[at] work,” as “there [wa]s little indication from

either [Plaintiff’s] testimony or [her W]ork [H]istory [R]eport

that she was engaged in providing information to customers.”

(Docket Entry 11 at 8 (citing Tr. 205, 1085-86).) Plaintiff

additionally points out that “Disability Determination Services

(‘DDS’) classified [Plaintiff’s prior work as a manager at Walmart]

as a composite job with significant elements from two or more

occupations that did not have a [DOT] counterpart – manager at

retail store and stock clerk – [and] also found that [Plaintiff]

did not have transferable skills from th[at] job.” (Id. (citing

Tr. 96-97); see also Docket Entry 18 at 1.) Plaintiff’s

contentions miss the mark.

As discussed above, Plaintiff indicated on a Work History

Report that her duties as a department manager at Walmart involved

“customer service[,] stocking, merchand[is]ing, ordering,

cleaning, [and] inventory.” (Tr. 205 (emphasis added).)

Plaintiff’s inclusion of “customer service” as a duty of that prior

job (and especially as the first such listed duty (see Tr. 205))

undercuts her argument that “there is little indication from . . .

her [W]ork [H]istory [R]eport that she was engaged in providing

information to customers” (Docket Entry 11 at 8). Moreover,

Plaintiff did not provide any testimony contradicting her earlier

statement on the Work History Report that her job involved customer

service (see Tr. 1085-87, 1116).

Contrary to Plaintiff’s assertions, DDS’s determination that

Plaintiff’s prior work at Walmart qualified as a composite of two

different DOT jobs and provided no transferable skills (see Tr.

96-97) does not compel the conclusion that the ALJ erred by relying

instead on the VE’s testimony. Notably, the VE had the benefit of

Plaintiff’s hearing testimony expounding on the duties of her past

work at Walmart (see Tr. 1085-87, 1116), which DDS personnel

lacked. Furthermore, where “the record contain[s] substantial

evidence that will support two contrary conclusions,” Wines v.

Commissioner of Soc. Sec., 268 F. Supp. 2d 954, 960 (N.D. Ohio

2003), the ALJ (and not the Court) bears the responsibility to

resolve conflicts in the record, see Hays v. Sullivan, 907 F.2d

1453, 1456 (4th Cir.1990) (“Ultimately, it is the duty of the [ALJ]

reviewing a case, and not the responsibility of the courts, to

make findings of fact and to resolve conflicts in the evidence.”).

Simply put, Plaintiff’s third issue on review fails as a

matter of law.

III. CONCLUSION

Plaintiff has established errors warranting remand.9

9 Plaintiff’s Memorandum asks for “summary judgment in her favor with reversal

of the ALJ’s decision for an award of benefits, or alternatively, with a remand

of the matter for a new hearing.” (Docket Entry 11 at 8.) In support of her

argument for reversal with an award of benefits, Plaintiff maintains that

Plaintiff’s “claim for [DIB] should have been approved pursuant to [Rule 201.14

of] the [G]rids as she had an RFC for sedentary work, was 50 years old as of

the [amended] alleged onset date of November 28, 2011 (and 54 years old at the

date last insured of December 31, 2015), has a high school education, is unable

to perform her PRW as a [B]akery [S[upervisor and [F]ront [D]esk [C]lerk and

possesses no transferable skills from those two jobs to a sedentary job.” (Id.

at 6.) The Court should opt for remand because, as discussed above, the record

does not conclusively foreclose the possibility that Plaintiff acquired

transferable skills from her PRW.

IT IS THEREFORE RECOMMENDED that the Commissioner’s decision

finding no disability be vacated and that the matter be remanded

under sentence four of 42 U.S.C. § 405(g) for further

administrative proceedings to include reevaluation of Plaintiff’s

PRW and whether she acquired any skills from her previous work

that would transfer to other jobs within her RFC that exist in

significant numbers in the national economy. As a result,

Plaintiff’s Motion for Judgment on the Pleadings (Docket Entry 10)

should be granted in part, i.e., to the extent it requests remand,

and Defendant’s Motion for Judgment on the Pleadings (Docket Entry

16) should be denied.

/s/ L. Patrick Auld_______

L. Patrick Auld

United States Magistrate Judge

April 21, 2020