# RESPER v. BERRYHILL

> District Court, M.D. North Carolina · April 21, 2020

URL: https://www.frixlaw.com/law-library/cases/10253427

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** April 21, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10253427

## How later opinions describe it (automated extraction)

- 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
- noting that “generalized abilities . . . not linked to any particular tasks[] are merely traits or aptitudes, not job skills” (emphasis added)

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253427. Public record. Not legal advice.