Hanson v. Astrue

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 12-1417
ALLEN DONALD HANSON,
Plaintiff, Appellant,
v.
MICHAEL J. ASTRUE, Commissioner, Social Security Administration,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Torruella, Howard and Thompson,
Circuit Judges.
G. Bradley Snow and Tanous, Snow & Lufkin, LLC on brief for
appellant.
Thomas E. Delahanty II, United States Attorney and Timothy A.
Landry, Special Assistant U.S. Attorney on brief for appellee.
April 11, 2013
Per Curiam. Claimant appeals from the denial, at step
5 of the sequential evaluation process, of his application for
Social Security disability benefits. Although we think that the
Commissioner's decision is supported by substantial evidence, we do
not rest this conclusion on the ground given by the magistrate
judge in her Report and Recommendation -- i.e., that claimant’s
recent education, a 2005 Bachelor of Science degree, provides for
direct entry into skilled work and that one of the semiskilled jobs
cited by the vocational expert (VE) satisfies the Commissioner’s
burden of showing the availability of such work. Rather, we find
that substantial evidence supports the conclusion that claimant's
prior job as a store clerk provides him with skills that are
transferable to the semiskilled, light job of general office/file
clerk. This conclusion stands even viewing claimant, who was 58
years old at the time of the administrative hearing, as a person of
advanced age.
I. Direct Entry into Skilled Work
The applicable regulation provides as follows:
If you are of advanced age (age 55
or older), and you have a severe
impairment(s) that limits 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 .
. . or you have recently completed
education which provides for direct
entry into skilled work.
-2-
20 C.F. R. § 404.1568(d)(4) (emphasis altered). Despite this clear
language, which shows that the regulations refer to “skilled or
semiskilled” work when that is what is meant, the magistrate judge
found, and the Commissioner argues, that direct entry into
semiskilled will suffice. Since we are not deciding the case on
this ground, we only note that this position is doubtful.
II. Transferable Skills
Under the usual standard, transferability of skills is
considered to be most likely 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.
20 C.F.R. § 404.1568(d)(2). "A complete similarity of all three
factors" nonetheless is not required in order to find
transferability. Id. § 404.1568(d)(3).
In addition to the foregoing, age plays a factor in
determining transferability, and the regulations describe two
different standards. First, if a claimant (1) is limited to light
work, (2) is of advanced age (age 55 or older), (3) but is not yet
60 years old, the usual standard applies. Id. § 404.1568(d)(4).
However, if a claimant is limited to light work and is "closely
approaching retirement age (age 60 or older)," such a person will
-3-
be found to have skills that are transferable to other light work
"only if the light work is so similar to [the person's] previous
work that [he or she] would need to make very little, if any,
vocational adjustment in terms of tools, work processes, work
settings, or the industry." Id. (emphasis in original).
The magistrate judge thought that the question concerning
the applicable standard was open to dispute because (1) the ALJ had
made his decision when claimant was 58 years old and (2) claimant's
RFC fell "a hair below the full range of light work due to the
occasional [climbing] restriction placed on ramps, ladders, stairs,
and the like." Hanson v. Social Sec. Admin. Comm'r, No. 11-cv-
00008, 2011 WL 6888642, at *7 (D. Me. December 28, 2011) (internal
quotation marks omitted). We disagree.
First, claimant fits squarely within the terms of the
usual standard because although he is of advanced age, he had not
yet turned 60 at the time of the ALJ's decision. And, while the
regulations provide that the age categories are not to be applied
"mechanically in a borderline situation," 20 C.F.R. § 404.1563(b),
claimant's age of 58 is not borderline. That is, claimant was
about two years away from turning 60 at the relevant time, and it
is only if a claimant is "within a few days to a few months of
reaching an older age category" that such category might apply.
Id. (emphasis added). The second problem with the magistrate
judge’s view is that claimant simply does not dispute that his
-4-
climbing limitations do NOT affect his ability to perform the
duties of a general office/file clerk.
Turning to the merits, then, claimant’s argument is that
the VE did not engage in the proper analysis when applying the
factors listed in § 404.1568(d)(2). In particular, claimant
contends that the VE was required to have followed the procedures
set out in The Revised Handbook for Analyzing Jobs. Claimant,
however, cites no authority for such a requirement – statutory,
regulatory, or judicial. In any event, even using the analysis
that claimant suggests, the ALJ’s decision that claimant possesses
skills that are transferable to the job of general office/file
clerk still is adequately supported.
First, claimant concedes that § 404.1568(d)(2)(i) has
been satisfied since the general office/file clerk job has “a
lesser degree of skill” than his prior work. Claimant's Brief, at
21-22. Claimant also concedes that his job as a store clerk
involves the same or similar “raw materials, products, . . . or
services” as the general office/file clerk job, see §
404.1568(d)(2)(iii). Id. at 26. As a result, the remaining
dispute concerns (1) whether the two jobs have the same or similar
“processes,” and (2) whether the jobs use the same or similar
“tools and machines.”
Beginning with the issue of processes, claimant refers to
The Revised Handbook and its use of "method verbs" to describe the
-5-
activities of a particular job. Claimant’s Brief, at 24. In this
respect, claimant reports that his past work as a store clerk
involves 18 method verbs (unspecified) and the proposed job of
general office/file clerk involves 23 method verbs (also
unspecified). Id. at 24-25. Out of the total of 41 such verbs,
claimant continues, the jobs have only five in common: (1) marking;
(2) posting; (3) punching; (4) routing; and (5) selecting. Id. at
25. Claimant thus concludes, without further argument or any
suggestion of how many common verbs are required before similarity
can be found, that the two jobs do not have the requisite
similarity of processes. There are two problems with claimant's
position.
First, the two jobs have more than five processes in
common. In this respect, claimant ignores his own, and the VE’s,
description of the activities involved in the job of store clerk:
(1) logging newly received materials into the computer; (2)
handling requests for supplies, presumably via telephone or
computer; (3) delivering supplies to others; (4) record keeping;
and (5) performing basic office skills, such as filing. Addendum
to the Commissioner's Brief, at 75-76, 240. Claimant also does not
dispute the Commissioner's description, taken from the Dictionary
of Occupational Titles (DOT), of the activities performed by a
general office/file clerk: (1) typing on and entering information
into a computer; (2) answering the telephone and conveying
-6-
messages; (3) running errands; (4) record keeping; and (5) filing.
Commissioner’s Brief, at 9. Therefore, in addition to the five
activities cited by claimant, the two jobs also have in common the
following: (1) using computers; (2) taking messages, such as
orders; (3) running errands, such as making deliveries; (4) record
keeping; and (5) basic filing.
Second, of course, “complete similarity” of factors is
not required, see § 404.1568(d)(3), and claimant acknowledges, as
noted, that the store clerk job and the position of general
office/file clerk already share three out of the four factors cited
in § 404.1568(d)(2)(iii). As a result, the two jobs not only use
the same or similar raw materials, products, or services, they also
have in common the ten processes described above. Given this,
there plainly is substantial evidence to support the conclusion
that § 404.1568(d)(2)(iii) has essentially been satisfied.
Turning to the issue of tools and machines, claimant
states that, according to The Revised Handbook, his prior job as a
store clerk involved using measuring devices, price guns, hole
punches, computers, and forklifts. Clamant's Brief, at 22-23. As
for the job of general office/file clerk, claimant reports that
such a job involves using calculators, adding machines, hole
punches, postage meters, typewriters, and dictating equipment. Id.
at 23. Based on this, claimant concludes, again without any
-7-
analysis, that the tools and machines used in the two jobs are not
the same or similar. Id. at 24.
We disagree. Given the prevalence of computers, which
often take the place of calculators, adding machines, and
typewriters, the two jobs clearly have a major machine in common.
Claimant also ignores the VE’s description of the additional tools
and/or machines that the positions of store clerk and general
office/file clerk share: (1) office equipment such as
photocopiers; (2) record books; (3) report forms; and (4)
telephones. Addendum to the Commissioner's Brief, at 84. As a
result, we do not think that the Commissioner was required to find
insufficient similarity of tools and machines between the two jobs.
Given the foregoing, we conclude that substantial
evidence supports the Commissioner' decision that claimant has
skills that are transferable to the job of general office/file
clerk and that, as a result, he is not disabled.
The judgment of the district court therefore is affirmed.
-8-