Ogle v. Barnhart ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 18 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
MARY J. OGLE,
Plaintiff-Appellant,
v. No. 04-6129
(D.C. No. 01-CV-1104-L)
JO ANNE B. BARNHART, (W.D. Okla.)
Commissioner, Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before BRISCOE , ANDERSON , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff-appellant Mary J. Ogle appeals the district court’s order affirming
the Commissioner’s decision to deny her application for social security disability
benefits. She alleges disability as of the date she was last insured, December 31,
1998, due to fibromyalgia, thoracic outlet syndrome, anxiety, and pain in her
back, hip, legs, arms, shoulder, and neck. 1 At step five of the five-step sequential
evaluation process, see Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988)
(discussing five steps), an administrative law judge (ALJ) determined that
Ms. Ogle could perform a limited range of semi-skilled, sedentary work that
existed in significant numbers in the regional and national economies.
Accordingly, the ALJ held that Ms. Ogle was not disabled within the meaning of
the Social Security Act and was, therefore, not entitled to disability benefits. We
have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291. We reverse and
remand for further proceedings.
On appeal, Ms. Ogle asserts that the ALJ erred (1) in determining that she
had transferable skills, (2) in considering as past relevant work her job as a dog
groomer, and (3) by relying on vocational testimony about the jobs she could
perform, even though the testimony was at odds with the Dictionary of
Occupational Titles (DOT).
1
Ms. Ogle must establish the onset of disability prior to the date her insured
status expired. Henrie v. United States Dep’t of Health & Human Servs. , 13 F.3d
359, 360 (10th Cir. 1993).
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Standards of Review
We review the Commissioner’s decision to determine whether the factual
findings are supported by substantial evidence and whether the correct legal
standards were applied. Threet v. Barnhart, 353 F.3d 1185, 1189 (10th Cir.
2003). “Substantial evidence is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Hamlin v. Barnhart, 365 F.3d
1208, 1214 (10th Cir. 2004) (further quotation omitted). We conclude that the
Commissioner’s decision is not supported by substantial evidence, so we reverse
and remand for further proceedings.
Transferable Skills
Ms. Ogle first argues that the ALJ erred in determining that she had
acquired skills and in finding that those skills would transfer to other jobs that she
could perform. A claimant who has transferable skills has “a special advantage
over unskilled workers in the labor market.” Dikeman v. Halter , 245 F.3d 1182,
1184 (10th Cir. 2001) (quotation omitted). As of the date she was last insured for
disability, Ms. Ogle was fifty-three years old, with a high-school education.
Therefore, the finding that she had transferable skills was critical to the ultimate
determination that she was not disabled. Compare 20 C.F.R. Pt. 404, Subpt. P,
App. 2, § 201.14 (grid stating claimant aged 50-54 with high-school diploma but
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no transferable skills is “disabled”), with id. § 201.15 (grid stating same claimant
with transferable skills is “not disabled”); see also Dikeman , 245 F.3d at 1184.
The ALJ apparently adopted the Vocational Expert’s (VE) testimony that
Ms. Ogle had acquired skills in her past work as a shipping clerk, distribution
clerk, and dog groomer that were transferable to other semi-skilled, sedentary
work. See Aplt. App. Vol. II, at 18. The VE testified that Ms. Ogle’s
transferable skills were “record keeping,” “computer operations,” and “customer
service, interpersonal type skills, working with the public on more than a
superficial basis.” Id. at 39.
Ms. Ogle’s testimony about her past work was almost nonexistent, but at
step five, the burden was not on her “to produce or develop vocational evidence.”
Haddock v. Apfel , 196 F.3d 1084, 1088 (10th Cir. 1999). Her only testimony
about her past work was her statement that on the last day she worked as a
shipping clerk, she “was working on the boxing machine, [and] prior to that [she]
was filling orders.” Aplt. App. Vol. II, at 30. The ALJ asked no questions about
Ms. Ogle’s past work. The documentary evidence in the record about her past
work is limited to her vocational report, which includes a very brief, general
statement about three of her past jobs. Her description of her “computer
operations,” was merely, “[t]ook orders from customers by computer or by hand.”
Id. at 93. As for her “record keeping” experience, she wrote, “I owned [dog
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grooming] shop, therefore, I kept daily and tax records.” Id. at 95. These
“skeleton description[s]” of Ms. Ogle’s past jobs are insufficient “to document
[her] acquisition of skills.” Dikeman , 245 F.3d at 1185 (quotation omitted).
We next consider the skills of “customer service, interpersonal type skills,
working with the public on more than a superficial basis.” As with the other
identified skills, the record does not support a finding that Ms. Ogle acquired
these skills. Moreover, because the record does not contain a description of the
work she performed, it is unclear whether Ms. Ogle’s past work in customer
service qualifies as a skill.
The Commissioner has defined 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). It is practical and
familiar knowledge of the principles and processes of an art, science
or trade, combined with the ability to apply them in practice in a
proper and approved manner. This includes activities like making
precise measurements, reading blueprints, and setting up and
operating complex machinery.”
Dikeman , 245 F.3d at 1184-85 (quoting Soc. Sec. Rul. 82-41, 1982 WL 31389,
at *2); see also Frey v. Bowen , 816 F.2d 508, 518 (10th Cir. 1987) (deeming
“understanding,” “common sense,” and “logic” aptitudes or traits; ALJ’s reliance
on them as transferable skills was error of law). Therefore, after evaluating the
work Ms. Ogle did in the area of customer service, the ALJ should determine if
she acquired actual skills, and if so, whether they are transferable.
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Dog-Groomer Job
Ms. Ogle next asserts that the ALJ erred in considering her past work as a
dog groomer and owner of the dog-grooming business as past work experience
with transferable skills. She maintains that she had not done this work as
substantial gainful activity within the previous fifteen years, so it could not be
considered. “[W]ork experience applies when it was done within the last 15
years.” 20 C.F.R. § 404.1565(a). In addition, the work must have qualified as
substantial gainful activity. Id.Ms. Ogle’s vocational report states that she did this job from April 1982
through November 1985 and that it was “seasonal work.” Aplt. App. Vol. II,
at 91. The years 1984 and 1985 fall within the covered period because they are
within fifteen years of her date last insured, December 31, 1998. Ms. Ogle
argues, however, that her income for the years 1984 and 1985 was too low to
qualify as substantial gainful activity. The only evidence of her income is a list
of her annual income for each year from 1977 through 1999, showing $3362 from
self-employment for 1984, and $2895 from self-employment for 1985. Id. at
76-78. These figures alone are insufficient to determine that Ms. Ogle’s dog-
grooming work was substantial gainful activity.
The record contains almost no information about Ms. Ogle’s work
experience as a dog groomer and business owner. The ALJ did not elicit any
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testimony on the topic. The only evidence is found in her brief statement, quoted
above, that she owned the shop and kept daily and tax records. Id.at 95. This
scant evidence could not permit the ALJ to evaluate whether Ms. Ogle’s dog
groomer job qualified as substantial gainful activity, either as an employee or a
self-employed person. See 20 C.F.R. § 404.1574(b)(6) (stating that where
employee’s earnings were too low to qualify as substantial gainful employment,
but too high to meet the presumption that the work did not qualify, other
information must be considered); id. § 404.1575 (explaining how to evaluate self-
employment). On remand, the ALJ should develop the record sufficiently to
permit him to ascertain whether Ms. Ogle’s past work in the dog-grooming
business qualified as substantial gainful activity. If he determines it did qualify,
the ALJ should explain his analysis. See Kepler v. Chater , 68 F.3d 387, 391 (10th
Cir. 1995) (holding “administrative agencies must give reasons for their
decisions”) (quotation omitted).
Conflict between the VE and the DOT
Finally, Ms. Ogle contends that the vocational testimony about jobs she
could perform with the limitations found by the ALJ was at odds with the
descriptions given in the DOT. Because we have determined that the case must
be remanded to evaluate Ms. Ogle’s transferable skills and to determine if her
past experience in the dog-grooming business qualifies as substantial gainful
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activity, we need not decide whether the VE’s testimony conflicted with the DOT.
On remand, the ALJ should “ask the [VE] how his or her testimony as to the
exertional requirement of identified jobs corresponds with the [DOT], and elicit a
reasonable explanation for any discrepancy on this point.” Hackett v. Barnhart ,
395 F.3d 1168, 1175, (10th Cir. 2005) (quoting Haddock , 196 F.3d at 1087).
Conclusion
We REVERSE the judgment of the district court and REMAND the action
to the district court with directions to remand to the Commissioner for further
proceedings consistent with this order and judgment.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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