James Zimmer v. Commissioner of Soc. Security , 211 F. App'x 819 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 1, 2006
No. 06-12386 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-02149-CV-T-MSS
JAMES ZIMMER,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 1, 2006)
Before TJOFLAT, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
James Zimmer appeals the district court’s order affirming the
Commissioner’s denial of his applications for disability insurance benefits, 42
U.S.C. § 405(g), and supplemental security income, 42 U.S.C. §1383(c)(3).
Zimmer asserts the administrative law judge (ALJ) erred in finding he acquired
transferable skills in his past relevant work as a fine dining waiter. The ALJ did
not err, and we affirm the Commissioner’s denial of benefits.
We review a social security case to determine whether the Commissioner’s
decision is supported by substantial evidence and whether the correct legal
standards were applied. Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997).
“Substantial evidence is defined as more than a scintilla, i.e., evidence that must do
more than create a suspicion of the existence of the fact to be established, and such
relevant evidence as a reasonable person would accept as adequate to support the
conclusion.” Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citations
omitted).
“Disability” is defined as the “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment
which . . . can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A). A claimant applying for benefits must prove
he is disabled. 20 C.F.R. §§ 404.1512, 416.912; Jones v. Apfel, 190 F.3d 1224,
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1228 (11th Cir. 1999). The Social Security Regulations outline a five-step
sequential evaluation process for determining whether a claimant is disabled. 20
C.F.R. §§ 404.1520, 416.920; Jones, 190 F.3d at 1228. First, the claimant must
show he has not engaged in substantial gainful activity. Jones, 190 F.3d at 1228.
Second, he must prove he has a severe impairment or combination of impairments.
In step three, if his impairment meets or equals a listed impairment, he is
automatically found disabled. If it does not, he moves on to step four, where he
must prove he is unable to perform his past relevant work. Finally, if the claimant
cannot perform past relevant work, the burden shifts to the Commissioner in the
fifth step to show there is other work available in significant numbers in the
national economy that the claimant can perform. Id.In determining alternative jobs the claimant can perform in the fifth step, an
ALJ must consider the claimant’s residual functional capacity and vocational
factors, including the claimant’s age, education, and work experience. 20 C.F.R.
§§ 404.1520(a)(4)(v), 416.920(a)(4)(v). The ALJ must also determine what level
of skill the claimant achieved in his past relevant work. 20 C.F.R. § 416.968. The
Social Security Administration (SSA) defines 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
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occupation which is above the unskilled level (requires more than 30 days to
learn).” S.S.R. 82-41 at 2.
Whether an individual of advanced age (over age 55) has transferable skills
“depends largely on the similarity of occupationally significant work activities
among different jobs.” 20 C.F.R. §§ 404.1568(d)(1), 416.968(d)(1).
Transferability is most likely among jobs that require the same or a lesser degree of
skill, utilize the same or similar tools, and use the same or similar products,
processes, or services. §§ 404.1568(d)(2), 416.968(d)(2). Complete similarity
among all these factors is not necessary for transferability. §§ 404.1568(d)(3),
416.968(d)(3).
An ALJ relies on the testimony of a vocational expert (VE) to determine
what level of skill the claimant achieved in his past work, whether the claimant has
transferable skills, and whether the claimant can perform other jobs. Jones, 190
F.3d at 1229. An ALJ relies on a VE once the claimant has proven he “cannot
perform a full range of work at a given level of exertion.” Id. The VE provides the
ALJ with the additional data he needs to make a disability determination. Id. at
1230. The VE’s testimony “trumps” other sources of information with regard to
skill level and alternative jobs. Id. at 1229-30. Unless the VE is proven incorrect,
the ALJ may rely on the VE’s testimony. See id. at 1230.
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Here, substantial evidence supports the ALJ’s finding Zimmer could
perform other work in the national economy based on the VE’s testimony because
the skills he acquired during his past relevant work are transferable to other semi-
skilled jobs. According to the VE, Zimmer acquired the skills of money handling
and customer service while he was a waiter.1 Unless Zimmer can show the VE was
wrong in her assessment of his skills, the VE’s assessment is deemed correct.
Zimmer does not argue he did not learn these behaviors as a waiter. Instead, he
argues these behaviors are not skills at all. This argument does not show the VE
was incorrect because these behaviors fall within the SSA’s definition of skill.
S.S.R. 82-41 at 2. Zimmer testified during the hearing that he needed a “certain
skill level” to perform his past job that required knowledge of cuisine, wine, and
drinks “in a lot of detail.” Zimmer’s own testimony shows he acquired the skills of
customer service and money handling. Even though unskilled workers perform
these same behaviors, Zimmer performed them at such a high degree as to make
them skills. Zimmer failed to show the VE was incorrect in classifying these
behaviors as skills and in determining Zimmer had acquired them. Therefore, the
ALJ did not err in relying on the VE’s assessment to find Zimmer acquired skills.
1
The Eighth Circuit held these exact behaviors were transferable skills acquired from past
relevant work as a waitress. Bjornholm v. Shalala, 39 F.3d 888, 890 (8th Cir. 1994).
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According to the regulations, the alternative jobs in the national economy
need not be completely similar to past relevant work for skills to transfer.
§§ 404.1568(d)(3), 416.968(d)(3). Here, the alternative jobs proposed were order
clerk, laundry pricing clerk, and check cashier. These jobs are not completely
similar to Zimmer’s past work as a waiter. However, they require the same or a
lesser degree of each skill Zimmer acquired, utilize the same or similar tools, and
use the same or similar products, processes, or services. See §§ 404.1568(d)(2),
416.968(d)(2). In any of the alternative jobs, Zimmer would have to perform
customer service and handle money, just as he did as a waiter. Therefore,
Zimmer’s skills are transferable because the method in which they would be used
in the alternative jobs is sufficiently similar to how he used them as a waiter.
Substantial evidence supports the ALJ’s finding of transferable skills, and we
affirm the Commissioner’s denial of benefits.
AFFIRMED.
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