Bray v. Commissioner Social Security ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARY BRAY, 
Plaintiff-Appellant, No. 06-36072
v.
 D.C. No.
CV 05-1282 KI
COMMISSIONER OF SOCIAL SECURITY
ADMINISTRATION, OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding
Argued and Submitted
October 23, 2008—Portland, Oregon
Filed February 6, 2009
Before: A. Wallace Tashima and Milan D. Smith, Jr.,
Circuit Judges, and George H. Wu,* District Judge.
Opinion by Judge Tashima;
Concurrence by Judge Wu
*The Honorable George H. Wu, United States District Judge for the
Central District of California, sitting by designation.
1345
1348 BRAY v. SSA
COUNSEL
Betsy Stephens, Albuquerque, New Mexico, for the plaintiff-
appellant.
L. Jamala Edwards, Assistant Regional Counsel, Social
Security Administration, Seattle, Washington, for the
defendant-appellee.
OPINION
TASHIMA, Circuit Judge:
Mary Bray (“Bray”) appeals the district court’s judgment
affirming the Commissioner of Social Security’s
(“Commissioner”) final decision denying her application for
social security disability insurance benefits and supplemental
security income under Titles II and XVI of the Social Security
Act. 42 U.S.C. §§ 401-434, 1381-1383f. Bray contends that
the administrative law judge (“ALJ”) failed to make findings
BRAY v. SSA 1349
concerning whether she possesses “transferable skills” as
Social Security Ruling (“SSR”) 82-41 expressly requires.
Bray also argues that the ALJ erred in discounting her testi-
mony, disregarding a treating physician’s medical opinion,
and failing to account for her mental impairments in deter-
mining her residual functional capacity. Lastly, Bray contends
that the ALJ applied the governing Medical Vocational
Guidelines “mechanically” in a borderline situation in viola-
tion of 20 C.F.R. § 404.1563(b), by including her in the 50-54
age category even though she was less than a month from
turning 55 at the time of the ALJ’s decision.
We have jurisdiction under 28 U.S.C. § 1291, and we hold
that the ALJ erred by failing to make findings on the issue of
whether Bray possessed transferable skills. We thus reverse
and remand.
BACKGROUND
On March 25, 2003, Bray filed an application for disability
insurance benefits alleging that she had been disabled since
November 9, 2001. After her claim was denied initially and
on reconsideration, Bray requested a hearing before an ALJ.
On November 7, 2003, Bray protectively filed for supplemen-
tal social security income payments, and that application was
consolidated with her prior claim and expedited to the hearing
level.
On March 22, 2005, the date of her hearing, Bray was 54
years old and approximately a month from turning 55. She
has a high school education and one year’s vocational training
as a medical assistant. She suffers from chronic obstructive
pulmonary disease (“COPD”), asthma, hypertension, anxiety,
depression, and arthritis. Most recently, before filing her
application, Bray worked for an ill friend as a part-time care-
giver; before that she briefly worked at a call center handling
customer service inquiries, but was terminated after three
weeks on the job when she requested workplace accommoda-
1350 BRAY v. SSA
tions related to her difficulty breathing. Subsequently, she
enrolled in a custodial training program, but dropped out of
the program after three weeks due to difficulty keeping pace
and tolerating exposure to chemical fumes. Bray worked as a
grocery clerk from August 2002 to January 2003, as a medical
assistant from 1993 to 2001, and as an insurance underwriter
from 1986 to 1991. She has been unable to hold a full-time
job for more than six months since losing her medical assis-
tant position in 2001; thus, the ALJ determined that she had
not engaged in “substantial gainful activity” since the onset
date of her alleged disability.1
At her hearing, Bray testified that she cannot walk more
than half a block without stopping to catch her breath or mak-
ing use of an inhaler or nebulizer. She also offered a written
prescription from a treating physician, issued on May 13,
2004, limiting her to four hours of work per day, five days a
week. The physician wrote the prescription after Bray visited
the emergency room reporting a flare up of her COPD. A phy-
sician with the Oregon Disability Determination Service
(“DDS”) evaluated Bray’s physical condition and concluded
that she was capable of standing or walking for six hours out
of an eight-hour work day and sitting six hours out of an
eight-hour work day.
The ALJ found Bray’s testimony regarding her symptoms
to be “not entirely credible” due to inconsistencies with
record evidence of her daily activities, treatment history, and
objective medical condition. The ALJ also discounted the pre-
scription limiting Bray to four hours of work per day, con-
1
As the concurrence notes, the ALJ found that Bray worked as a grocery
clerk for less than six months and lost the job “due to her impairments.”
Concur. op. at 1374. Accordingly, the ALJ deemed Bray’s stint as a gro-
cery clerk “an unsuccessful work attempt” that did not amount to “sub-
stantial gainful activity.” As such, Bray’s time as a grocery clerk cannot
be considered “past relevant work.” See 20 C.F.R. § 404.1560(b)(1)
(explaining that “past relevant work” must involve “substantial gainful
activity”).
BRAY v. SSA 1351
cluding that the limitation was inconsistent with evidence in
Bray’s medical record. Relying in large part on the DDS phy-
sician’s assessment, the ALJ constructed Bray’s residual func-
tional capacity (“RFC”), i.e., her ability to work after
accounting for her verifiable impairments. The ALJ also
determined that Bray’s employment history had provided her
with “previous skilled work experience.” A vocational expert
(“VE”) testified that a person with Bray’s RFC, age, educa-
tion, and work experience could find work as a general clerk,
file clerk, or sales clerk (all “semiskilled” jobs), and that such
jobs were available in significant numbers in both the national
and regional economies.2 Relying on the VE’s opinion, the
ALJ determined that Bray was capable of performing a modi-
fied range of light work and found her not disabled.
The Social Security Administration (“SSA”) Appeals
Council denied Bray’s petition for review, making the ALJ’s
order the final agency order. Bray then commenced this action
in the district court, which affirmed the ALJ’s order. Bray
timely appealed.
STANDARD OF REVIEW
We review a district court’s judgment upholding the denial
of social security benefits de novo. Tackett v. Apfel, 180 F.3d
1094, 1097 (9th Cir. 1999). “We may set aside a denial of
benefits only if it is not supported by substantial evidence or
is based on legal error.” Robbins v. Soc. Sec. Admin., 466 F.3d
880, 882 (9th Cir. 2006). “Substantial evidence means more
than a mere scintilla but less than a preponderance; it is such
relevant evidence as a reasonable mind might accept as ade-
quate to support a conclusion.” Andrews v. Shalala, 53 F.3d
1035, 1039 (9th Cir. 1995). “Where the evidence as a whole
2
The VE testified that, although Bray could not return to her past work
as a medical assistant or insurance underwriter, she could transition to a
job as a general clerk (six-million jobs in the national economy), file clerk
(288,000 jobs), or sales clerk (500,000 jobs).
1352 BRAY v. SSA
can support either a grant or a denial, we may not substitute
our judgment for the ALJ’s.” Massachi v. Astrue, 486 F.3d
1149, 1152 (9th Cir. 2007) (internal quotation marks omitted).
DISCUSSION
ALJs are to apply a five-step sequential review process in
determining whether a claimant qualifies as disabled.3 Bowen
v. Yuckert, 482 U.S. 137, 140-42 (1987); 20 C.F.R.
§§ 404.1520, 416.920. The burden of proof is on the claimant
at steps one through four, but shifts to the Commissioner at
step five. See Tackett, 180 F.3d at 1099. If the ALJ deter-
mines that a claimant is either disabled or not disabled at any
step in the process, the ALJ does not continue on to the next
step. See 20 C.F.R. § 416.920(a)(4).
The first step is not at issue. Both Bray and the Commis-
sioner agree that Bray is not currently performing substantial
gainful work. See 20 C.F.R. § 416.920(a)(4)(i). At steps two
and three, the ALJ found that Bray’s COPD and her depres-
sion and anxiety were severe impairments, but that neither
corresponded to the listed impairments in the regulations. See
20 C.F.R. § 404.1520(d). Bray does not challenge this find-
ing.
Between steps three and four, the ALJ must, as an interme-
diate step, assess the claimant’s RFC. See 20 C.F.R.
§ 416.920(e). Bray contests the ALJ’s construction of her
RFC. At step four the ALJ must determine whether, in light
of the claimant’s RFC, she can return to substantial gainful
activity performed in the past. 20 C.F.R. § 404.1520(e). The
ALJ determined that Bray was not capable of returning to her
3
The Social Security Act defines “disability” as the inability to engage
“in any substantial gainful activity by reason of any medically determin-
able 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.” 42 U.S.C. § 1382c(a)(3)(A).
BRAY v. SSA 1353
past relevant work as a medical assistant or insurance under-
writer, and neither party disputes that finding. At step five, the
Commissioner must establish that the claimant is capable of
performing substantial gainful work.4
The ALJ stated Bray’s RFC in this way:
The claimant has the [RFC] to lift 20 pounds occa-
sionally and 10 pounds frequently. She can stand and
walk 6 hours out of an 8-hour day and sit 6 hours out
of an 8-hour day. She can occasionally climb. She
should avoid concentrated exposure to respiratory
irritants. She is able to carry out, attend and concen-
trate on all but the most detailed and complex tasks.
The ALJ presented the above statement to the VE, who then
considered whether an individual burdened with the stated
limitations could obtain gainful work in the national econ-
omy. The VE testified that Bray could not return to gainful
work in her former capacity as a medical assistant or under-
writer, but that she had transferable skills and could transition
to work as a general clerk, file clerk, or sales clerk. Accord-
ingly, the ALJ determined that Bray is not disabled.
4
In making a step five determination, the ALJ may rely on the deci-
sional grids listed at 20 C.F.R. Part 404, Subpart P, Appendix 2, or alter-
natively, the ALJ can present a hypothetical question that describes the
claimant’s limitations to a VE. See Tackett, 180 F.3d at 1101. The grids
are used to determine whether a claimant can transition to substantial gain-
ful activity with respect to substantially uniform levels of impairment.
Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000). Where the claimant is
not capable of performing the entire range of work included in one of the
categories on the grids (as in this case), further consideration must be
given to types of work that may be precluded. Tackett, 180 F.3d at 1101.
In such cases, the ALJ may use the grids as a framework, and make a
determination of what work the claimant is capable of performing. Hoopai
v. Astrue, 499 F.3d 1071, 1075 (9th Cir. 2007).
1354 BRAY v. SSA
I. The ALJ’s Failure to Follow SSR 82-41
[1] Relying on SSR 82-41, Bray contends that the ALJ
committed reversible error when he assumed that Bray pos-
sessed transferable skills without making specific findings in
support of that assumption. SSR 82-41 states, in relevant part:
When the issue of skills and their transferability
must be decided, the . . . ALJ is required to make
certain findings of fact and include them in the writ-
ten decision. Findings should be supported with
appropriate documentation.
When a finding is made that a claimant has transfer-
able skills, the acquired work skills must be identi-
fied, and specific occupations to which the acquired
work skills are transferable must be cited in the . . .
ALJ’s decision . . . . It is important that these find-
ings be made at all levels of adjudication to clearly
establish the basis for the determination or decision
for the claimant and for a reviewing body including
a Federal district court.
SSR 82-41, 1982 WL 31389, at *7. The ALJ found that Bray
has “previous skilled work experience,” but made no finding
as to the transferability of any acquired skills. The decision
does not identify the particular skills that Bray possesses, nor
does it explain the basis for the determination that she pos-
sesses skilled work experience.
At Bray’s hearing, the VE testified that Bray’s experience
as an insurance underwriter — approximately fifteen years
prior to the hearing date — had exposed her to computers,5
customer service, and possibly some data entry, and that her
5
The ALJ made no finding whether any skills Bray acquired by being
“exposed to computers” fifteen years ago were still current, much less that
they were transferable.
BRAY v. SSA 1355
work as a medical assistant may also have exposed her to sim-
ilar skills. It is impossible to discern whether the VE’s brief
commentary represents the sole basis for the ALJ’s assump-
tion that Bray had transferable skills. The decision is similarly
silent on the issue of whether the particular skills that the VE
identified would be transferable in Bray’s case given her age
and medical impairments. See SSR 82-41, at *2 (“[A] person
has no special advantage if he or she is skilled or semiskilled
but can qualify only for an unskilled job because his skills
cannot be used to any significant degree in other jobs.”).
[2] Moreover, the Guidelines state that “[i]n order to find
transferability of skills to skilled sedentary work for individu-
als who are of advanced age (55 and over), there must be very
little, if any, vocational adjustment required in terms of tools,
work processes, work settings, or the industry.” 20 C.F.R. pt.
404, subpt. P, app. 2 § 201.00(f). The skills that the VE cited
at the hearing derived from Bray’s work as an insurance
underwriter more than fifteen years earlier. Neither the ALJ’s
decision nor the VE’s testimony addresses whether Bray —
who was one month from turning 55 at the time of her hearing
— would have to undergo more than minimal “vocational
adjustment” to perform successfully the tasks required of a
file clerk, general clerk, or sales clerk, or otherwise deter-
mined whether the skills required of an insurance underwriter
are substantially similar to those required of a general, file, or
sales clerk.
[3] SSRs, according to the governing regulations, “are
binding on all components of the Social Security Administra-
tion” and “represent precedent final opinions and orders and
statements of policy and interpretations” of the SSA.6 20
C.F.R. § 402.35(b)(1); see also Heckler v. Edwards, 465 U.S.
870, 873 n.3 (1984) (noting the function of SSRs). “SSRs
reflect the official interpretation of the [SSA] and are entitled
6
SSRs are published in the Federal Register, although their publication
therein is not statutorily compelled. See 20 C.F.R. § 402.35(b)(1).
1356 BRAY v. SSA
to ‘some deference’ as long as they are consistent with the
Social Security Act and regulations.” Avenetti v. Barnhart,
456 F.3d 1122, 1124 (9th Cir. 2006) (quoting Ukolov v. Barn-
hart, 420 F.3d 1002, 1005 n.2 (9th Cir. 2005)). SSRs do not
carry the “force of law,” but they are binding on ALJs none-
theless. See Quang Van Han v. Bowen, 882 F.2d 1453, 1457
& n.6 (9th Cir. 1989).
The Commissioner concedes that the ALJ did not follow
the express requirements of SSR 82-41, but argues that the
SSR is not applicable in this case. Citing a Sixth Circuit opin-
ion for support, the Commissioner argues that SSR 82-41
does not require specific findings when the ALJ relies on the
testimony of a VE to determine whether a claimant has trans-
ferable skills. See Wilson v. Comm’r of Soc. Sec., 378 F.3d
541, 549-50 (6th Cir. 2004). In Wilson, the Commissioner
argued that SSR 82-41 requires specific findings only when
the ALJ relies exclusively on the grids to reach a determina-
tion. See id. at 549. The court concluded that the Commis-
sioner’s reading of SSR 82-41 was entitled to substantial
deference and that the proffered interpretation was reasonable.
Id. at 549-50.
[4] For the reasons set forth below, however, we believe the
Second Circuit’s opinion in Draegert v. Barnhart, 311 F.3d
468 (2d Cir. 2002), offers a sounder approach. In Draegert,
the court held that specific findings on transferable skills are
necessary even where the ALJ relies on the testimony of a
VE. See id. at 475-77; see also Botefur v. Heckler, 612 F.
Supp. 973, 976-77 (D. Or. 1985) (concluding that specific
findings under SSR 82-41 are required when the ALJ relies on
a VE’s testimony).
In Auer v. Robbins, the Supreme Court held that an agen-
cy’s interpretation of its own regulations, even when the inter-
pretation is adopted as a position in litigation, is entitled to
substantial deference. 519 U.S. 452, 462-63 (1997). The Auer
opinion implies that, in order to receive substantial deference,
BRAY v. SSA 1357
an agency’s interpretation must represent its “fair and consid-
ered judgment,” rather than a position that is merely conve-
nient in a given dispute. See 519 U.S. at 462 (citing Bowen
v. Georgetown Univ. Hosp., 488 U.S. 204, 212 (1988)); Bige-
low v. Dep’t of Def., 217 F.3d 875, 878-79 (D.C. Cir. 2000)
(Tatel, J., dissenting) (stating that no deference is due “where
there is reason to suspect” that an agency’s interpretation of
its own regulation represents a “convenient litigation posi-
tion” rather than an expression of the agency’s “fair and con-
sidered judgment”).
Even granting a large measure of interpretive deference, the
Commissioner’s reading of SSR 82-41 strains credulity. The
SSR does not qualify its application, stating only that “[w]hen
the issue of skills and their transferability must be decided,
the . . . ALJ is required to make certain findings of fact and
include them in the written decision. Findings should be sup-
ported with appropriate documentation.” SSR 82-41, 1982
WL 31389, at *7 (emphasis added); see also Christensen v.
Harris County, 529 U.S. 576, 588 (2000) (holding that no def-
erence is due under Auer where the underlying regulation is
unambiguous). Further, the SSR states that “[c]onsultation
with a [VE] may be necessary to ascertain” whether a given
skill or set of skills are transferable in a claimant’s particular
case. SSR 82-41, 1982 WL 31389, at *4. Thus, the SSR pre-
sumes that ALJs will be relying on expert testimony to deter-
mine whether a claimant has transferable skills, and it makes
little sense to interpret the SSR’s provision requiring specific
written findings as inapplicable whenever an expert is
involved. It is the ALJ, and not the VE, who is responsible for
making findings.
According to the district court, the ALJ’s assumption that
Bray had transferable skills was sufficiently reviewable.
Adopting the Sixth Circuit’s logic, the district court explained
that “in the absence of supplementary testimony from a voca-
tional expert, the ALJ would be obligated to specifically
include a finding related to transferable skills” but where the
1358 BRAY v. SSA
ALJ relies on an expert, “the source of evidence regarding
transferable skills is apparent and reviewable by the court.”
The district court then concluded that “it was correct for the
[VE] to assume that Bray had some degree of computer skill.”
This is precisely the sort of finding, however, that SSR 82-41
requires the ALJ, and not the court, to make. Long-standing
principles of administrative law require us to review the
ALJ’s decision based on the reasoning and factual findings
offered by the ALJ — not post hoc rationalizations that
attempt to intuit what the adjudicator may have been thinking.
See SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (“[I]n
dealing with a determination or judgment which an adminis-
trative agency alone is authorized to make, [courts] must
judge the propriety of such action solely by the grounds
invoked by the agency. If those grounds are inadequate or
improper, the court is powerless to affirm the administrative
action by substituting what it considers to be a more adequate
or proper basis.”); Snell v. Apfel, 177 F.3d 128, 134 (2d Cir.
1999) (“The requirement of reason-giving exists, in part, to let
claimants understand the disposition of their cases . . . .” ).
[5] The ALJ’s departure from established SSA procedure
thwarts this court’s ability to determine whether or not Bray
posesses transferable skills — a dispositive issue for her
claim. Cf. Chiappa v. Sec’y of Dep’t of Health, Educ. & Wel-
fare, 497 F. Supp. 356, 358 (S.D.N.Y. 1980) (“The failure of
ALJs to make [specific] findings in disability cases is among
the principal causes of the delay and uncertainty . . . in this
area of the law.”). The district court chose to review the trans-
ferable skills finding based on what it assumed the ALJ to
have determined, but meaningful review of an administrative
decision requires access to the facts and reasons supporting
that decision. See Chenery, 332 U.S. at 196. SSR 82-41 artic-
ulates this principle in a clear form. The ALJ erred in disre-
garding the regulation and the district court erred in
disregarding the underlying principle.
BRAY v. SSA 1359
[6] We thus remand this case to the Commissioner so that
the ALJ can further develop the record and make specific
findings on whether Bray has transferable skills.7 See Terry v.
Sullivan, 903 F.2d 1273, 1280 (9th Cir. 1990) (holding that
this Court has discretion to remand for further fact finding, if
the record is unclear as to a claimant’s entitlement to disabil-
ity benefits).
II. The Residual Functional Capacity Determination
The ALJ’s non-disability finding flowed from the presenta-
tion of a hypothetical RFC to a VE, who then identified spe-
cific jobs Bray could perform. Bray contests the
representativeness of the ALJ’s hypothetical by challenging
three predicate findings: 1) that Bray’s testimony regarding
the severity of her symptoms was not entirely credible; 2) that
a treating physician’s prescription note was not entirely credi-
ble; and 3) that severe, medically determinable mental impair-
ments notwithstanding, Bray is “able to carry out, attend and
concentrate on all but the most detailed and complex tasks.”
We agree with the district court that substantial evidence sup-
ports the ALJ’s construction of Bray’s RFC.
1. Bray’s Testimony
The ALJ found that Bray’s description of her symptoms
was not entirely credible. Specifically, the ALJ discounted
Bray’s statement that she is incapable of walking more than
half a block without stopping to catch her breath and using a
nebulizer or inhaler, that she is unable to lift twenty pounds,
and that she cannot carry as much as ten pounds “very far.”
Substantial evidence supports the ALJ’s decision to give lim-
ited weight to Bray’s characterization of her symptoms.
7
The concurrence identifies an additional ground for reversal based on
an inconsistency in the ALJ’s factual findings. See concur. op. at 1374-76.
This argument, however, was not made in Bray’s opening brief; thus, we
deem it waived. See Rattlesnake Coal. v. U.S. EPA, 509 F.3d 1095, 1100
(9th Cir. 2007).
1360 BRAY v. SSA
[7] If an ALJ finds a claimant’s characterization of his or
her own symptoms unreliable, the ALJ must make a credibil-
ity determination backed up by specific findings. See Bunnell
v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991). “[O]nce the
claimant produces objective medical evidence of an underly-
ing impairment, an adjudicator may not reject a claimant’s
subjective complaints based solely on a lack of objective
medical evidence to fully corroborate” the claimant’s allega-
tions. Id. In reaching a credibility determination, an ALJ may
weigh inconsistencies between the claimant’s testimony and
his or her conduct, daily activities, and work record, among
other factors. See Light v. Soc. Sec. Admin., 119 F.3d 789, 792
(9th Cir. 1997).
[8] The ALJ made specific findings in support of his deci-
sion to discount Bray’s testimony, noting that: 1) Bray contin-
ued to smoke cigarettes up until one month before her
hearing, despite complaining of debilitating shortness of
breath and acute chemical sensitivity; 2) she leads an active
lifestyle, including cleaning, cooking, walking her dogs, and
driving to appointments; 3) she recently worked as a personal
caregiver for two years, and has sought out other employment
since then; 4) she reported to an evaluating physician that she
only becomes wheezy when engaging in heavy exertion, and
on other occasions reported that her COPD was “going fine”;
and 5) Bray’s statements at her hearing do not comport with
objective evidence in her medical record. The above findings
are supported by the record, and belie Bray’s claim of debili-
tating respiratory illness.
[9] Bray maintains that it was improper for the ALJ to cite
her continued smoking as adversely impacting her credibility.
See Shramek v. Apfel, 226 F.3d 809, 812-13 (7th Cir. 2000)
(noting, in dicta, that nicotine’s addictive properties made it
“extremely tenuous” to discredit a claimant’s description of
her impairments based on the claimant’s continued smoking).
The ALJ reasoned that if Bray’s respiratory ailments were as
severe as she claimed, she would likely refrain from smoking.
BRAY v. SSA 1361
It is certainly possible that Bray was so addicted to cigarettes
that she continued smoking even in the face of debilitating
shortness of breath and acute chemical sensitivity. Even so,
the ALJ presented four other independent bases for discount-
ing Bray’s testimony, and each finds ample support in the
record. Thus, the ALJ’s reliance on Bray’s continued smok-
ing, even if erroneous, amounts to harmless error. See Batson
v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir.
2004) (concluding that, even if the record did not support one
of the ALJ’s stated reasons for disbelieving a claimant’s testi-
mony, the error was harmless).
2. The Treating Physician
Bray contends that the ALJ erred in elevating contrary evi-
dence above the opinion of a treating physician. At her hear-
ing, Bray introduced a prescription written by Dr. Seyer,
limiting her daily work activity to four hours per day, five
days a week. In contrast, the DDS physician that evaluated
Bray’s physical impairments reported that Bray was capable
of occasionally lifting twenty pounds, frequently lifting ten
pounds, standing or walking for six hours out of an eight-hour
work day, and sitting six hours out of an eight-hour work day.
The ALJ gave several reasons for granting Dr. Seyer’s pre-
scription note “little weight”: 1) the note was written at Bray’s
specific request; 2) Bray’s medical records reveal that she
only experiences severe shortness of breath after heavy exer-
tion and not in conjunction with the usual activities of daily
living; 3) Dr. Seyer’s prescription was written after an exacer-
bation of her COPD; and 4) Bray did not seek medical treat-
ment again for eight months after Dr. Seyer wrote the
prescription, suggesting a lack of need for a continued limita-
tion of her work hours.
A treating physician’s opinion is entitled to “substantial
weight.” Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988).
When evidence in the record contradicts the opinion of a
1362 BRAY v. SSA
treating physician, the ALJ must present “specific and legiti-
mate reasons” for discounting the treating physician’s opin-
ion, supported by substantial evidence. Lester v. Chater, 81
F.3d 821, 830 (9th Cir. 1995).8 However, “[t]he ALJ need not
accept the opinion of any physician, including a treating phy-
sician, if that opinion is brief, conclusory, and inadequately
supported by clinical findings.” Thomas v. Barnhart, 278 F.3d
947, 957 (9th Cir. 2002).
[10] Bray argues that the ALJ’s stated reasons are neither
legitimate nor sufficient to justify discounting Dr. Seyer’s
prescription note. Specifically, Bray contends that the fact that
Dr. Seyer wrote the note at her request is not a legitimate rea-
son for disbelieving it, because a treating physician would not
prescribe medically unwarranted restrictions. As the district
court noted, however, the treating physician’s prescribed
work restrictions were based on Bray’s subjective character-
ization of her symptoms. As the ALJ determined that Bray’s
description of her limitations was not entirely credible, it is
reasonable to discount a physician’s prescription that was
based on those less than credible statements.
3. Consideration of Bray’s Mental Impairments
If an ALJ finds a severe impairment at step two, that
impairment must be considered in the remaining steps of the
sequential analysis. 20 C.F.R. §§ 404.1523, 416.923. The ALJ
found that Bray possessed two severe impairments — COPD
and an adjustment disorder (i.e., symptoms of anxiety and
depression). Bray argues that the ALJ failed to account for her
adjustment disorder in the final construction of her RFC, and
8
Where a treating physician’s medical opinion is not contradicted by the
opinion of another physician, the ALJ must set forth “clear and convinc-
ing” reasons for disbelieving the treating physician. Thomas, 278 F.3d at
956-57. Here, the report of a DDS physician who examined Bray contra-
dicts the opinion reflected in Dr. Seyer’s prescription note; thus, the ALJ
need only provide “specific and legitimate” reasons for discounting Dr.
Seyer’s prescription note. Lester, 81 F.3d at 830.
BRAY v. SSA 1363
thus ran afoul of the governing regulations. Hypothetical
questions posed to a VE must “set out all the limitations and
restrictions of the particular claimant . . . .” Russell v. Sulli-
van, 930 F.2d 1443, 1445 (9th Cir. 1991). If an ALJ’s hypo-
thetical does not reflect all of the claimant’s limitations, then
“the expert’s testimony has no evidentiary value to support a
finding that the claimant can perform jobs in the national
economy.” DeLorme v. Sullivan, 924 F.2d 841, 850 (9th
Cir.1991).
The ALJ adequately accounted for Bray’s adjustment disor-
der in his construction of her RFC and in the hypothetical he
presented to the VE. He asked the VE to assume that Bray
could “carry out, attend [sic] and concentrate on all but the
most detailed and complex tasks.” Bray argues that this state-
ment contradicts the ALJ’s earlier finding at step two that
Bray’s mental impairments were “severe.” She posits that a
severe impairment, by definition, inhibits a claimant from
engaging in “basic work activities,” and the ALJ’s statement
of her RFC does not capture that limitation. Bray offers no
authority to support the proposition that a severe mental
impairment must correspond to limitations on a claimant’s
ability to perform basic work activities.
[11] More importantly, the medical record supports the
ALJ’s conclusions that Bray’s mental impairments prevented
her from completing only the most complex tasks. In con-
structing Bray’s RFC, the ALJ relied on the opinion of Dr.
Krishnan, a psychiatrist who evaluated Bray in August of
2003. Dr. Krishnan concluded that:
The claimant can accept instructions from supervi-
sors and interact with coworkers and the public. The
claimant will be able to perform work activities on
a consistent basis without special or additional
supervision. The claimant would likely be able to
maintain regular attendance in the workplace, as she
is currently working. She is able to complete a nor-
1364 BRAY v. SSA
mal workday/workweek without interruptions from
her psychiatric condition. She also would be able to
deal with the usual stress encountered in competitive
work.
Bray does not offer evidence to controvert Dr. Krishnan’s
assessment, and the ALJ’s conclusion that Bray can “carry
out, attend and concentrate on all but the most detailed and
complex tasks” represents a reasonable finding, grounded in
the administrative record.
CONCLUSION
The ALJ assumed that Bray had transferable skills, but
failed to articulate a clear basis to support that assumption,
contrary to the requirement of SSR 82-41. As a result, this
Court cannot properly determine whether substantial evidence
supports the ALJ’s decision finding Bray not disabled. The
issue of transferability of skills is dispositive, as Bray is now
58 years old, and thus should be considered in the “advanced
age” category. According to the grids, a 58-year-old with
Bray’s limitations who lacks transferable skills qualifies as dis-
abled.9
9
Because Bray is now 58 years old, the issue of which age category she
should be placed in is moot, i.e., her age category is no longer a borderline
case (although the ALJ should determine whether Bray became disabled
before turning 55). On remand, the ALJ should consider Bray in the 55-60
category for the purpose of determining whether she is disabled. See
Moore v. Apfel, 216 F.3d 864, 868 (9th Cir 2000) (noting that ALJ
adjusted age category determination on remand because claimant’s age
had advanced); Brouwers v. Bowen, 823 F.2d 273, 275 (8th Cir. 1987)
(noting that ALJ awarded claimant disability benefits on remand, in part,
because the claimant’s age had advanced during the proceedings). A
claimant over the age of 55, limited to light work (as the ALJ determined
Bray to be), and unable to perform past relevant work qualifies as disabled
unless the ALJ finds the claimant possesses skills that are “readily trans-
ferable to a significant range of semi-skilled or skilled work that is within
the individual’s functional capacity.” 20 C.F.R. pt. 404, subpt. P, app. 2
§ 202.00(c).
BRAY v. SSA 1365
We reverse the judgment of the district court and remand
the case with instructions that it further remand this case to
the Commissioner for further proceedings consistent with this
opinion.
REVERSED and REMANDED.
WU, District Judge, concurring:
I am in agreement with the holdings and reasoning in the
Discussion — Part II (“The Residual Functional Capacity
Determination”) of the Opinion. Likewise, I concur with the
result reached in the Discussion — Part I (“The ALJ’s Failure
to Follow SSR 82-41”), i.e., that the decision below should be
reversed and remanded to the Commissioner for further pro-
ceedings. However, I arrive at that conclusion by an entirely
different approach. The problem here was not fundamentally
due to a failure of the ALJ to make a specific finding regard-
ing transferable skills,1 but to the inconsistent and erroneous
findings actually made by the ALJ in his written decision and
adopted by the district court.2
I. ADDITIONAL BACKGROUND
At the March 25, 2005 hearing, the VE’s testimony was
1
I concur with the majority in rejecting the holding in Wilson v. Comm’r
of Soc. Sec., 378 F.3d 541, 549 (6th Cir. 2004), that, under SSR 82-41
(1982 WL 31389 at *7), that a finding in regards to a claimant’s transfer-
able skills is only required “when an ALJ relies solely on the grid, in
which cases the ALJ must ascertain whether the claimant has transferable
skills in order to apply the grid.”
2
While the majority finds the ALJ’s failure to specifically identify
Bray’s transferable skills to be a sufficient basis for reversing and remand-
ing for further findings, as discussed in this concurrence that failure would
not constitute grounds for such reversal but for the ALJ’s underlying erro-
neous findings which are delineated herein.
1366 BRAY v. SSA
specifically based in part upon the “Dictionary of Occupa-
tional Titles” (“DOT”).3 The VE summarized Bray’s relevant
work history as follows:
Her most recent [job] was telemarketing, sedentary
exertion level. That is defined in the DOT as an SVP
three . . . . in my opinion vocationally it goes
between a two and a three depending on where you
work in the telemarketing field.
* * * *
And her date of employment was March of 2004 for
I guess a duration of three weeks. Caregiver, light
exertional level, SVP three, semi-skilled, 8 of ‘02 to
some period in 2004. Grocery clerk, meat depart-
ment, medium exertional level[,] SVP two,
unskilled, 8 of ‘02 to 1 of ‘03. Medical assistant[,]
light exertional level, SVP six, skilled, 3 of 1993 to
3
As noted in Massachi v. Astrue, 486 F.3d 1149, 1153 n.8 (9th Cir.
2007), “The Social Security Administration has taken administrative
notice of the Dictionary of Occupational Titles, which is published by the
Department of Labor and gives detailed physical requirements for a vari-
ety of jobs.” The DOT can be utilized by the ALJ and/or the VE in deter-
mining whether a claimant, given his or her residual functional capacity,
can perform his or her past relevant work. 20 C.F.R. § 404.1560(b)(2).
Likewise, the Social Security Administration (“SSA”) classifications of
the physical exertion requirements of various jobs as being “sedentary,
light, medium, heavy, [or] very heavy” have the same meaning as in the
DOT. 20 C.F.R. § 404.1567. In designating the skill requirements of par-
ticular occupations as being “unskilled, semi-skilled, [or] skilled,” the
SSA also uses the materials (such as the DOT) published by the Depart-
ment of Labor. 20 C.F.R. § 404.1568. The DOT “includes information
about jobs (classified by their exertional and skill requirements) that exist
in the national economy.” 20 C.F.R. § 404.1569. The DOT is considered
to be the “best source for how a job is generally performed.” Carmickle
v. Comm’r, SSA, 533 F.3d 1155, 1166 (9th Cir. 2008) (quoting Pinto v.
Massanari, 249 F.3d 840, 845 (9th Cir. 2001)). “The DOT creates a rebut-
table presumption as to the job classification.” Tommasetti v. Astrue, 533
F.3d 1035, 1042 (9th Cir. 2008).
BRAY v. SSA 1367
11 of ‘01. Underwriter, sedentary exertional level[,]
SVP seven, skilled, 8 of ‘86 through 10 of 1991.[4]
In response to the ALJ’s hypothetical which included Bray’s
age at onset of disability, education, work experience, residual
functional capacity, and ability to “attend and concentrate on
all but the most detailed and complex tasks,” the VE indi-
cated:
That individual could perform the care giving job or
what they call companion. This individual would be
able to perform telemarketing types of work. I do not
believe this person with a limitation on the detail you
mentioned could handle the underwriter or the medi-
cal assistant. And by the way, medical assistant, that
many times is at the medium exertional level . . . .
As to the underwriter and medical assistant jobs, the VE
opined that:
4
“SVP” refers to the “specific vocational preparation” level which is
defined in the DOT as “the amount of lapsed time required by a typical
worker to learn the techniques, acquire the information, and develop the
facility needed for average performance in a specific job-worker situa-
tion.” Dictionary of Occupational Titles, Appendix C, page 1009 (4th ed.
1991). SVP 2 means “anything beyond a short demonstration up to and
including 1 month;” SVP 3 means “over 1 month up to and including 3
months;” SVP 6 means “over 1 year up to and including 2 years” and SVP
7 means “over 2 years up to and including 4 years.” Id.As stated in SSR 00-4p, 2000 WL 1898704 at *3:
The DOT lists a specific vocational preparation (SVP) time for
each described occupation. Using the skill level definitions in 20
C.F.R. 404.1568 and 416.968, unskilled work corresponds to an
SVP of 1-2; semi-skilled work corresponds to an SVP of 3-4; and
skilled work corresponds to an SVP of 5-9 in the DOT. Although
there may be a reason for classifying an occupation’s skill level
differently than in the DOT, the regulatory definitions of skill
levels are controlling.
1368 BRAY v. SSA
There are skills transferable in relationship to office
clerical responsibility. In our underwriting job even
as a medical assistant, she was exposed to comput-
ers, filing, typing, customer service, possibly some
data entry, those kinds of skills. [Emphasis added.]
Ultimately, the VE concluded that Bray could work as a gen-
eral clerk, file clerk or sales clerk, and there was available
employment in those fields.5
The ALJ found that Bray “has the residual functional
capacity to perform a significant range of light work . . . .” He
noted that:
The vocational expert testified that given the claim-
ant’s residual functional capacity, she is incapable of
performing her past relevant work as a grocery clerk,
medical assistant and insurance underwriter. She
would be capable of performing her past work as a
telemarketer and caregiver. However, these jobs
were not performed at the substantial gainful activity
level and thus are not considered past relevant work.
The claimant is incapable of returning to her past rel-
evant work.[6]
The ALJ ultimately decided that:
Based on the credible testimony of the vocational
expert, the undersigned concludes that considering
the claimant’s age, educational background, work
5
At the hearing, Bray testified that in February/March of 2004, she was
seeking employment involving “customer service, office work, medical
office receptionist, scheduler, phones.”
6
Contrary to the ALJ’s finding, the VE never expressly stated that Bray
was incapable of performing her past relevant work as a grocery clerk.
The ALJ may have assumed that conclusion because of the VE’s testi-
mony that the grocery clerk job required a “medium” exertional level.
However, as discussed below, that testimony was erroneous.
BRAY v. SSA 1369
experience and residual functional capacity, she is
capable of making a successful adjustment to work
that exists in significant numbers in the national
economy. A finding of “not disabled” is therefore
reached within the framework of Medical-
Vocational Rule 202.15.[7]
7
“Medical-Vocational Rule ___” is a reference to one of the rules/
categories found in the tables in 20 C.F.R. Part 404, Subpart P, Appendix
2, which indicates “whether an individual is or is not disabled” based on
the person’s age, education, residual functional capacity and previous
work experience. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00. The tables
with their concomitant rules/categories are sometimes referenced as “the
grids.”
As to the use of the grids, Lounsburry v. Barnhart, 468 F.3d 1111, 1115
(9th Cir. 2006), cautions that:
[T]he grids are predicated on a claimant suffering from an
impairment which manifests itself by limitations in meeting the
strength requirements of jobs (“exertional limitations”); they may
not be fully applicable where the nature of a claimant’s impair-
ment does not result in such limitations (“non-exertional limita-
tions”). 20 C.F.R. Part 404, Subpart P, Appx. 2 § 200.00(e)
[citation omitted]. The reason for this limitation on the grids’
application is that, despite having the residual functional capacity
to perform a full range of unskilled occupations at a given exer-
tional level, a claimant may not be able to adjust to these jobs
because of non-exertional limitations. Soc. Sec. Rul. 83-10 (Janu-
ary 1983). In particular, non-exertional impairments — including
postural and manipulative limitations such as difficulty reaching,
handling, stooping, climbing, crawling, or crouching — may, if
sufficiently severe, limit a claimant’s functional capacity in ways
not contemplated by the grids. 20 C.F.R. § 404.1569 [citation
omitted]. Thus, the Tackett court held that “[t]he grids should be
applied only where a claimant’s functional limitations fall into a
standardized pattern ‘accurately and completely’ described by the
grids.” [Tackett v. Apfel, 180 F.3d 1094, 1103 (9th Cir. 1999).]
1370 BRAY v. SSA
II. DISCUSSION
A. Applicable Law
The concept of transferability of skills is delineated in 20
C.F.R. § 404.1568(d) as follows:
(1) . . . . We [the SSA] consider you [the claimant]
to have skills that can be used in other jobs, when the
skilled or semi-skilled work activities you did in past
work can be used to meet the requirements of skilled
or semi-skilled work activities of other jobs or kinds
of work. This depends largely on the similarity of
occupationally significant work activities among dif-
ferent jobs.
(2) . . . . Transferability is most probable and
meaningful among jobs in which -
(i) The same or a lesser degree of skill is
required;
(ii) The same or similar tools and machines
are used; and
(iii) The same or similar raw materials,
products, processes, or services are
involved.
(3) . . . . There are degrees of transferability of
skills ranging from very close similarities to remote
and incidental similarities among jobs. A complete
similarity of all three factors is not necessary for
transferability.
* * * *
(4) . . . . If you are of advanced age (age 55 or
older), and you have a severe impairment(s) that lim-
BRAY v. SSA 1371
its you to sedentary or light work, we will find that
you cannot make an adjustment to other work unless
you have skills that you can transfer to other skilled
or semiskilled work . . . that you can do despite your
impairment(s).
SSR 82-41 states that “[w]hen the issue of skills and their
transferability must be decided,” the “ALJ is required to make
certain findings of fact and include them in the written deci-
sion.” 1982 WL 31389 at *7; see also Jensen v. Barnhart, 436
F.3d 1163, 1165 (10th Cir. 2005). Also, “[w]hen a finding is
made that a claimant has transferable skills, the acquired work
skills must be identified, and specific occupations to which
the acquired work skills are transferable must be cited in the
. . . ALJ’s decision.” 1982 WL 31389 at *7. However, SSR
82-41 additionally indicates that:
Transferability of skills is an issue only when an
individual’s impairment(s), though severe, does not
meet or equal the criteria in the Listing of Impair-
ments in Appendix 1 of the regulations [20 C.F.R.
Pt. 404, Subpt. P, App. 1] but does prevent the per-
formance of past relevant work (PRW), and that
work has been determined to be skilled or semi-
skilled. (PRW is defined in regulations sections
404.1565 and 416.965.) When the table rules in
Appendix 2 [20 C.F.R. Pt. 404, Subpt. P, App. 2] are
applicable to a case, transferability will be decisive
in the conclusion of “disabled” or “not disabled” in
only a relatively few instances because, even if it is
determined that there are no transferable skills, a
finding of “not disabled” may be based on the ability
to do unskilled work.
Id. at *1. Further, SSR 82-41 recognizes that on occasion, in
situations involving similar types of jobs, certain skills may
be readily transferable.
1372 BRAY v. SSA
. . . where job skills have universal applicability
across industry lines, e.g., clerical, professional,
administrative, or managerial types of jobs, transf-
erability 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 [residual functional capacity].
Id. at *6.8
SSR 00-4p states that the SSA relies “primarily on the DOT
(including its companion publication the SCO [the Revised
Dictionary of Occupational Titles]) for information about the
requirements of work in the national economy. We use these
publications at Steps 4 and 5 of the sequential evaluation pro-
cess.” 2000 WL 1898704 at *2. The occupational evidence
provided by a VE should generally be consistent with the
occupational information supplied by the DOT. Id. When
there is a conflict between the VE evidence and the DOT, it
is a duty of the ALJ to inquire on the record as to the reason
for the inconsistency before relying on the VE’s evidence. Id.B. Analysis
The VE’s testimony (that Bray’s prior job as a “grocery
clerk, meat department” had a physical exertion level of “me-
dium” and an SVP level of “two, unskilled”) is contrary to
8
An example given in SSR 82-41 is:
[A] semiskilled general office clerk (administrative clerk), doing
light work, ordinarily is equally proficient in, and spends consid-
erable time doing, typing, filing, tabulating and posting data in
record books, preparing invoices and statements, operating
adding and calculating machines, etc. These clerical skills may be
readily transferable to such semiskilled sedentary occupations as
typist, clerk-typist and insurance auditing control clerk.
1982 WL 31389 at *3.
BRAY v. SSA 1373
both the DOT classification and the only evidence on the
topic in the administrative record. The DOT lists the strength
rating for the occupation of a “sales clerk, food (retail trade)”
as “L” or “light” and an SVP level of “3” or “semi-skilled.”9
Dictionary of Occupational Titles § 290.477-018 (4th ed.
1991). The DOT notes that the “sales clerk, food (retail
trade)” job classification also covers “grocery clerk (retail
trade)” and “meat counter clerk (retail trade).” Id. In the
“Work History Report” which she filled out and submitted to
the SSA in April of 2003, Bray described her grocery clerk
job as requiring her to occasionally lift 20 lbs, to frequently
lift 10 lbs and to stand and/or walk up to 8 hours. Her descrip-
tion of that job places it within the “light work” category. See
20 C.F.R. § 404.1567(b).
Because the VE’s testimony as to the requirements of the
grocery clerk position was in conflict with the DOT’s specifi-
cations, the ALJ had “an affirmative responsibility” to inquire
as to the reasons and evidentiary basis for the VE’s deviation.
See SSR 00-4p, 2000 WL 1898704 at *2; Tommasetti, 533
F.3d at 1042; Massachi, 486 F.3d at 1153. The ALJ did not
make any such inquiry, which constitutes error.
The ALJ in his conclusion stated that “given the claimant’s
9
The Dictionary of Occupational Titles, Appendix C, page 1013 (4th ed.
1991), states that “L-Light work” indicates a capacity for:
Exerting up to 20 pounds of force occasionally, and/or up to 10
pounds of force frequently, and/or a negligible amount of force
constantly (Constantly: activity or condition exists 2/3 or more of
the time) to move objects. Physical demand requirements are in
excess of those for Sedentary Work. Even though the weight
lifted may be only a negligible amount, a job should be rated
Light Work: (1) when it requires walking or standing to a signifi-
cant degree; or (2) when it requires sitting most of the time but
entails pushing and/or pulling of arm or leg controls; and/or (3)
when the job requires working at a production rate pace entailing
the constant pushing and/or pulling of materials even though the
weight of those materials is negligible.
1374 BRAY v. SSA
residual functional capacity, she is incapable of performing
her past relevant work as a grocery clerk, medical assistant
and insurance underwriter.” First, it is noted that in the begin-
ning of his decision, the ALJ wrote that:
After the date of alleged onset of disability, the
claimant worked as a grocery clerk. The work was
performed during a temporary period of remissions
from symptoms and ended after less than 6 months
due to her impairments. This job is considered an
unsuccessful work attempt.
It is questionable whether the grocery clerk job, if it had been
correctly characterized as an “unsuccessful work attempt,”
could later be considered part of Bray’s past relevant work.10
However, assuming arguendo that it can be, the ALJ’s con-
clusion - that Bray’s residual functional capacity (which the
ALJ later found allowed her to do “light work” in the general,
file or sales clerk occupations) barred her from performing
her past work as a grocery clerk — is based upon the VE’s
erroneous testimony that the grocery clerk job requires “medi-
um” physical exertion requirements.11
In addition, the ALJ’s conclusion — that Bray was incapa-
ble of performing her past work as a grocery clerk and yet that
she could perform work as a sales clerk — is on its face
inconsistent. The duties of a grocery clerk/sales clerk, food
(retail trade) are described in the Dictionary of Occupational
Titles § 290.477-018 (4th ed. 1991) as follows:
10
20 C.F.R. § 404.1560(b)(1) defines “past relevant work” as “work that
you [the claimant] have done within the past 15 years, that was substantial
gainful activity, and that lasted long enough for you to learn to do it.”
11
If the grocery clerk job is held to be part of Bray’s past relevant work
and if her residual functional capacity (when correctly evaluated) would
allow her to perform that past occupation, then she could be found “not
disabled” at step four of the five step evaluation of disability analysis. See
20 C.F.R. § 404.1520(a)(4)(iv).
BRAY v. SSA 1375
Obtains or prepares food items requested by custom-
ers in retail food store, totals customer bill, receives
payment, and makes change: fills customer order,
performing duties such as obtaining items from
shelves, freezers, coolers, bins, tables, or containers;
cleaning poultry; scaling and trimming fish; slicing
meat or cheese, using slicing machine; preparing
take-out sandwiches and salads; dispensing bever-
ages; and warming food items in oven. Weighs
items, such as produce, meat, and poultry to deter-
mine price. Lists and totals prices, using paper and
pencil, calculator, or cash register. Informs customer
of total price of purchases. Receives payment from
customer for purchases and makes change. Bags or
wraps purchases for customer. Cleans shelves, bins,
tables, and coolers. Stamps, marks, or tags price on
merchandise. Sets up displays and stocks shelves,
coolers, counter, bins, tables, freezers, containers, or
trays with new merchandise. May make deliveries to
customer home or place of business . . . . May write
orders, decorate cakes, or describe available spe-
cialty products, such as birthday cakes. May order
merchandise from warehouse or supplier. May be
designated according to type of food sold as Grocery
Clerk (retail trade); Meat Counter clerk (retail trade);
Produce Clerk (retail trade) I; Sales Clerk, Fish
(retail trade).
The duties of a sales clerk (retail trade) are substantially the
same as those of a grocery clerk/sales clerk, food (retail trade)
and are delineated in Section 290.477-014 as:
Obtains or receives merchandise, totals bill, accepts
payment, and makes change for customers in retail
store such as tobacco shop, drug store, candy store,
or liquor store: Stocks shelves, counters, or tables
with merchandise. Sets up advertising displays or
arranges merchandise on counters or tables to pro-
1376 BRAY v. SSA
mote sales. Stamps, marks, or tags price on merchan-
dise. Obtains merchandise requested by customer or
receives merchandise selected by customer. Answers
customer’s questions concerning location, price, and
use of merchandise. Totals price and tax on mer-
chandise purchase by customer, using paper and pen-
cil, cash register, or calculator, to determine bill.
Accepts payment and makes change. Wraps or bags
merchandise for customers. Cleans shelves, counters,
or tables. Removes and records amount of cash in
register at end of shift. May calculate sales discount
to determine price. May keep record of sales, prepare
inventory of stock, or order merchandise. May be
designated according to produce sold or type of
store.
A finding (without any explanation or reasoning) that Bray
could do the work required of a sales clerk but not the job of
a grocery clerk is in error.
Finally, as to the issue of transferability of skills, the ALJ
placed Bray in Rule 202.15 of the grids and found her to be
“not disabled.” 20 C.F.R. Pt. 404, Subpt. P, App. 2, Table No.
2. Rule 202.15 covers claimants who are “closely approaching
advanced age,” 20 C.F.R. § 404.1563(d) (age 50-54), who are
at a minimum high school graduates, and who have had past
skilled or semi-skilled jobs where their skills are transferable.
Under SSR 82-41, by placing Bray in a rule/category of the
grids which contains a requirement of transferable skills, the
ALJ should have made a finding identifying the work skills
involved and the occupations to which they applied. The ALJ
did not do so here, which constitutes error. However, that
omission was not significant at that time or the source of
reversible error. Even if one were to conclude that the ALJ’s
failure to identify the transferable skills should be treated as
if Bray had no transferrable skills, Bray would then fall within
Rule 202.14 of the grids which would still place her in the
“not disabled” category. See 20 C.F.R. Pt. 404, Subpt. P, App.
BRAY v. SSA 1377
2, Table No. 2. Consequently, the fundamental problem here
was not the ALJ’s failure to identify the transferable skills but
rather whether placement of Bray into Rule 202.15 (or for that
matter into Rules 202.13 or 202.14) was correct.12 This issue
concerns whether the ALJ properly considered the require-
ments of 20 C.F.R. § 404.1563(b) and 20 C.F.R. Pt. 404,
Subpt. P, App. 2, § 202.00(c) and (d).13 However, in light of
footnote 9 of the majority’s opinion, the ALJ’s placement of
Bray into Rule 202.15 becomes moot and the issue of transf-
erability of skills is moved from the backburner to the front.14
12
In addition, because the VE erroneously categorized Bray’s prior gro-
cery clerk job as being “unskilled” (which the ALJ accepted), the ALJ
could not find that Bray had acquired any transferable skills from that
occupation because “[a] person does not gain work skills by doing
unskilled jobs.” 20 C.F.R. § 404.1568(a). However, because the DOT
classifies the grocery clerk job as being “semi-skilled,” Bray could be
found to have obtained transferable skills while employed in that occupa-
tion. Although the ALJ characterized Bray’s five plus months of grocery
clerk employment as an “unsuccessful work attempt,” the DOT treats that
position as having an SVP of 3, which means that a typical worker could
“learn the techniques . . . and develop the facility needed for average per-
formance” in that job after one to three months.
13
In the grids, where a claimant is found to have a residual functional
capacity which is limited to light work, the treatment of persons who are
“closely approaching advanced age” (i.e. 50 to 54) differs greatly from
those who are of “advanced age” (i.e. 55 or over). The former will gener-
ally not be considered to be disabled when they cannot return to their past
relevant work unless they are illiterate and have had only unskilled or no
previous work experience. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, Table
No. 2, Rules 202.09 through 202.15. Therefore, transferability of skills is
not particularly relevant to that category of claimants. However, for indi-
viduals who are of advanced age and limited to light work, they will gen-
erally be considered to be disabled when they cannot return to their past
relevant work unless they have transferable skills or some education which
provides for direct entry into skilled work. Id. at Rules 202.01 through
202.08. Thus, the decision as to whether to treat Bray as a person who is
closely approaching advanced age rather than a person of advanced age
was of paramount importance. 20 C.F.R. § 404.1563(b) provides that the
age categories are not to be applied “mechanically in a borderline situa-
tion.”
14
As noted by the SSA when it amended 20 C.F.R. § 404.1563(b):
The new paragraph explains that, if a person’s age category
1378 BRAY v. SSA
III. CONCLUSION
For the reasons stated above, I concur that the decision of
the district court should be reversed and the case remanded to
the Commissioner for further proceedings.
changes during the period for which we are adjudicating a dis-
ability claim, we will use each of the age categories that is appli-
cable to the person during the period for which we are deciding
if the person is disabled.
65 Fed. Reg. 17994, 17995 (April 6, 2000).