Kathy Swedberg v. Andrew Saul ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 19-2916
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Kathy Swedberg
Plaintiff - Appellant
v.
Andrew Saul, Commissioner, Social Security Administration
Defendant - Appellee
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Appeal from United States District Court
for the District of North Dakota - Fargo
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Submitted: October 21, 2020
Filed: March 16, 2021
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Before COLLOTON, GRASZ, and STRAS, Circuit Judges.
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GRASZ, Circuit Judge.
Kathy Swedberg appeals the district court’s 1 order upholding the Social
Security Administration’s denial of her benefits claim. We affirm.
1
The Honorable Alice R. Senechal, United States Magistrate Judge for the
District of North Dakota, to whom the case was referred for final disposition by
consent of the parties pursuant to 28 U.S.C. § 636(c).
I. Background
In March 2015, Swedberg filed an application for disability insurance benefits
and disabled widow’s benefits. 2 Before seeking those benefits, Swedberg worked
for the Army Reserve for twenty-six years. There, her job combined the duties of
an administrative clerk and a combat rifle crewmember.
The SSA initially denied Swedberg’s application and denied it a second time
upon reconsideration. At Swedberg’s request, an SSA Administrative Law Judge
conducted a hearing to address her claim. At the hearing, the ALJ received
testimony from Swedberg and James Miller, a vocational expert (the “Vocational
Expert”).
The Vocational Expert testified that Swedberg’s physical limitations
prevented her from performing her past work. The ALJ asked the Vocational Expert
to respond to a hypothetical about possible jobs for Swedberg. In doing so, the ALJ
asked the Vocational Expert to assume Swedberg’s age, education, and work
experience, as well as limitations including (1) lifting or carrying “ten pounds
occasionally and less than ten pounds frequently”; (2) sitting “for about six hours in
an eight-hour workday”; (3) standing or walking “for about four hours in an eight-
hour workday;” (4) frequently, but not constantly, fingering and feeling bilaterally
with her hands; and (5) requiring no exposure to “extreme cold, extreme heat, high
humidity, vibration” or “hazards such as unprotected heights and fast and dangerous
moving machinery.” The Vocational Expert replied that, with the given limitations,
Swedberg could work as (1) an appointment clerk, with 35,000 jobs available
nationally; (2) a receptionist, with 140,000 jobs available nationally; or (3) an order
clerk, with 50,000 jobs available nationally.
2
The health issues underlying Swedberg’s application are not disputed on
appeal.
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The ALJ upheld the denial of Swedberg’s claim. Relying on the Vocational
Expert’s testimony and other evidence in the record, the ALJ concluded that
Swedberg’s health limitations prevented her from performing the tasks associated
with her former Army Reserve job. But, the ALJ found that Swedberg possessed
relevant work skills that were transferable to the clerk and receptionist jobs listed by
the Vocational Expert.
Swedberg appealed the ALJ’s decision, and the Appeals Council declined
review. She then appealed to the district court, and, on cross-motions for summary
judgment, the district court granted summary judgment in favor of the SSA,
concluding that substantial evidence supported the ALJ’s decision. Swedberg now
appeals and argues the ALJ’s decision is not supported by substantial evidence in
the record as a whole because there was no foundation for the Vocational Expert’s
testimony.
II. Discussion
We review de novo the district court’s decision upholding the SSA’s denial
of benefits and will affirm the ALJ’s decision if it is supported by substantial
evidence in the record as a whole. Renfrow v. Astrue, 496 F.3d 918, 920 (8th Cir.
2007); Pickney v. Chater, 96 F.3d 294, 296 (8th Cir. 1996).
The SSA uses a five-step “sequential evaluation process” for determining
disability. 20 C.F.R. § 404.1520(a)(4). The five steps are (1) whether the claimant
is engaged in any substantial gainful activity; (2) whether the claimant has a severe
impairment; (3) whether the claimant’s impairment meets or equals an impairment
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) whether the claimant can
return to the claimant’s past relevant work; and (5) whether the claimant can perform
other work in the national economy. Id. § 404.1520(a)(4)(i)–(v). Step five is at issue
in this appeal.
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A. Vocational Expert Testimony
First, we address Swedberg’s main argument that the Vocational Expert based
his opinion on insufficient information because he did not consider the complexities
of Swedberg’s past relevant work when opining about the skills she possessed for
future suitable employment.
The role of a vocational expert is “to take into account medical limitations,
including opinions as to work time limits, and offer an opinion on the ultimate
question whether a claimant is capable of gainful employment.” Smallwood v.
Chater, 65 F.3d 87, 89 (8th Cir. 1995). We have held a vocational expert’s opinion
is valid when based on listening to a claimant’s earlier testimony. Tucker v.
Barnhart, 130 F. App’x 67, 68 (8th Cir. 2005) (unpublished per curiam) (“Because
the [vocational expert] was present when [claimant] testified about her age, past
work, and educational level, it was not necessary for the ALJ to specify those in his
hypothetical.”).
From the Vocational Expert’s testimony, it is clear he relied on a “Past Work
Summary” and Swedberg’s testimony as the basis for his opinion. Swedberg
testified that she worked in an “administrative clerk type position” and engaged in
some mild lifting of groceries and mail. She did not object when the ALJ
characterized an administrative clerk position as “someone sitting at a nice desk just
typing on the computer or filing papers.” And, Swedberg indicated in a disability
report that she “had administrative duties, contracting, reserve center, unloaded
freight, security, mail duties and payroll.”
Our review of the record convinces us the Vocational Expert relied on
sufficient evidence, such as Swedberg’s own testimony, when he formed his expert
opinion. He considered Swedberg’s statements about coordinating meetings,
scheduling training sessions, and performing inventory when he determined that she
was qualified to perform jobs requiring data entry, record keeping, and
administrative skills. Further, the Vocational Expert’s testimony and opinion are
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consistent with Swedberg’s admissions. Thus, we hold that the Vocational Expert’s
testimony relied on sufficient information to provide substantial support for the
ALJ’s denial of benefits. 3
B. SSA’s Burden of Proving Skill and Transferability
1. Proving Evidence of Skill
Swedberg first argues that the Vocational Expert’s testimony does not create
substantial evidentiary support for the ALJ’s finding that Swedberg is qualified to
perform work based on her limitations and skills. Because the Vocational Expert’s
opinion is supported by Swedberg’s testimony, we disagree.
An ALJ can rely on a vocational expert’s testimony to find a claimant has
acquired skills that are transferable to another position. Fines v. Apfel, 149 F.3d 893,
895 (8th Cir. 1998) (citing 20 C.F.R. § 404.1566(e)). “Testimony from a vocational
expert constitutes substantial evidence only when based on a properly phrased
hypothetical question.” Pickney, 96 F.3d at 296 (citing Cruze v. Chater, 85 F.3d
1320, 1323 (8th Cir. 1996)). If “a hypothetical question does not encompass all
relevant impairments, the vocational expert’s testimony does not constitute
substantial evidence.” Id.The ALJ specifically asked the Vocational Expert if Swedberg possessed “any
transferable skills that would transfer to any occupations within the parameters of
th[e] hypothetical[.]” In response, the Vocational Expert stated that Swedberg had
acquired several basic administrative skills, including data entry, record keeping,
and office administrative skills. He also stated that Swedberg could perform
positions with a specific vocational preparation level of three or four, meaning jobs
3
Swedberg argues the Vocational Expert’s testimony is unreliable because the
expert improperly defined the term “skill” in his testimony. However, we conclude
any purported error is harmless because the ALJ applied the proper SSA definition
of skill in her decision.
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that would require one-to-three or three-to-six months of training, respectively.
Swedberg did not challenge the hypothetical question the ALJ posed to the
Vocational Expert. On this basis alone, we can conclude substantial evidence in the
record exists to support the denial of Swedberg’s claim. Pickney, 96 F.3d at 296(“Testimony from a vocational expert constitutes substantial evidence only when
based on a properly phrased hypothetical question.”).
However, other evidence in the record demonstrates that Swedberg possessed
basic administrative skills. In a self-assessment, Swedberg indicated that her work
duties included “administrative duties, contracting, reserve center, unload[ing]
freight, security, mail duties and payroll.” And, in a consultative examination,
Swedberg stated her previous job duties included “inventory, personnel records,
logistics, facility management, contract retention, managing safety concerns in the
building, manag[ing] mail[,] . . . writ[ing] specs/guidelines, coordinat[ing] the lawn
service. . . . She said she wore many hats and had to do a variety of tasks.” In light
of this evidence, we hold there is substantial evidence in the record to demonstrate
that the SSA met its burden of demonstrating Swedberg derived the job skills listed
above during her twenty-six-year career with the Army Reserve.
2. Skill Transferability
Swedberg also challenges the ALJ’s reliance on the Vocational Expert’s
testimony stating that Swedberg’s job skills were transferable to other sedentary
positions that could accommodate her limitations. Because the Vocational Expert’s
opinion was properly rooted in Swedberg’s testimony, we uphold the ALJ’s
decision.
“An ALJ may rely on a vocational expert’s testimony as long as some of the
identified jobs satisfy the claimant’s residual functional capacity.” Grable v. Colvin,
770 F.3d 1196, 1202 (8th Cir. 2014). Here, the Vocational Expert testified that
Swedberg’s transferable skills qualified her for sedentary jobs. The Vocational
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Expert also opined that Swedberg would be qualified to perform positions using her
data entry and recordkeeping skills.
This evidence supports the ALJ’s finding that Swedberg can transfer her job
skills to new sedentary positions, such as the suggested positions of order clerk,
receptionist, or appointment clerk. There is also sufficient evidence in the record to
show that Swedberg possessed job skills that would transfer to other sedentary
occupations. Accordingly, we hold substantial evidence supports the finding that
the SSA met its burden.
The judgment of the district court is affirmed.
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