Draegert v. Barnhart

• Decision Date: 14 November 2002
• Docket Number: Docket No. 01-6185.
• Citation: 311 F.3d 468
• Parties: David A. DRAEGERT, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

311 F.3d 468

David A. DRAEGERT, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee.

Docket No. 01-6185.

United States Court of Appeals, Second Circuit.

Argued: June 4, 2002.

Decided: November 14, 2002.

Kenneth R. Hiller, Amherst, NY, for Plaintiff-Appellant.

Maria Fragassi Santangelo, Assistant Regional Counsel, New York, NY (Lisa de Soto, General Counsel, Washington, DC, Barbara L. Spivak, Chief Regional Counsel, New York, NY, on the brief) for Defendant-Appellee.

Before: KEARSE and McLAUGHLIN, Circuit Judges, and DANIELS, District Judge^*.

KEARSE, Circuit Judge.

Plaintiff David Draegert appeals from a judgment of the United States District Court for the Western District of New York, Richard J. Arcara, Judge, dismissing his complaint seeking disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401-432 (1994). The district court granted the motion of defendant Commissioner of Social Security ("Commissioner") for judgment on the pleadings, ruling that there was substantial evidence to support the Commissioner's denial of benefits on the ground that Draegert had transferable work skills acquired in his prior job, which enabled him to perform substantial gainful activity. On appeal, Draegert argues principally that the Commissioner did not meet her burden of proving that he possessed transferable "skills," within the meaning of the Social Security regulations, rather than merely certain abilities or aptitudes. For the reasons that follow, we agree that the Commissioner did not meet her burden. We therefore reverse and remand for the Commissioner to calculate Draegert's disability benefits.

I. BACKGROUND

The fundamental facts are not in dispute. Draegert had a general equivalency high school diploma and had received vocational training as a security safety officer. From 1980 until 1995, he worked as a security safety officer at a mental health facility. His responsibilities there included patrolling the grounds, on foot and in a vehicle, in order to protect the residents from trespassers and other hazards, and maintaining fire safety by checking fire-fighting equipment. On occasion, he extinguished small fires and made criminal arrests for trespassing and disorderly conduct.

In March 1995, Draegert retired. He was 55 years of age and suffered from coronary artery disease, for which he had undergone surgery. In March 1996, he applied to the Social Security Administration ("SSA") for disability benefits. His application was denied initially and on reconsideration, following which a hearing was held before an SSA administrative law judge ("ALJ"). At the hearing, Draegert described the responsibilities he had had as a security safety officer at the mental health facility, which included those described above, as well as a certain amount of lifting that required medium exertion. He testified that as a result of his heart condition and a debilitating arthritic condition, inter alia, he could no longer perform the duties of that position.

As Draegert was a person "of advanced age ([i.e.,] 55 or older)," 20 C.F.R. § 404.1568(d)(4) (2002), the ALJ called a vocational expert ("VE") to give an opinion not only as to whether Draegert could perform his old job but also as to the transferability of his work skills to new jobs. As the "skills [Draegert] acquire[d] from [his] past relevant work," Hearing Transcript ("Tr.") at 31, the VE listed the following:

The ability to learn and apply rules and procedures, which are sometimes hard to understand. The ability to use reason and judgement in dealing with all kinds of people. The ability to think clearly and react quickly in an emergency. The ability to keep physically fit. And the ability to make conclusions based on facts and on one's personal judgment....

....

.... [And] the ability to change easily and frequently from one activity to another.

Tr. 31, 37.

The ALJ asked the VE to assume that Draegert had the residual functional capacity either for sedentary work or for light work except that involving frequent climbing, balancing, stooping, kneeling, crouching, or crawling, see Tr. 34, and to opine (a) whether there were any jobs in the economy that Draegert could do, and (b) "whether the ... skills that [Draegert] acquired in his past relevant work are transferable to" the jobs identified by the VE, Tr. 31. The VE identified two such semi-skilled jobs, to wit, gate guard, a light-exertion position, and dispatcher, a sedentary position. For each of those positions, the VE testified that Draegert would require one-to-three months of training.

In a Decision dated December 7, 1997 ("ALJ Decision"), the ALJ ruled that Draegert was not entitled to disability benefits. The ALJ found that "the medical evidence establishes the existence of severe impairments, to wit, status post bypass surgery, arthritis in his left hip, coronary artery disease, and hypertension," ALJ Decision at 2, and that "[b]ecause of the job's prolonged standing and walking, the claimant is unable to perform his past relevant work, as it exceeds his residual functional capacity," ALJ Decision at 7. See also id. at 8, ¶ 8 (Draegert "cannot perform his past relevant work as a security safety officer").

However, the ALJ found that the record did not support Draegert's position that those impairments "prevented him from engaging in substantial gainful activity." Id. at 5. Relying on the VE's "testi[mony] that there were jobs within the claimant's maximum residual functio[na]l capacity to which the claimant's acquired work skills could be transferred with very little adjustment," the ALJ concluded that Draegert had "transferable skills and the residual functional capacity for light work," id. at 7, although he was "limited [in his] ability to climb, balance, stoop, kneel, crouch and crawl," id. at 6. The ALJ found that

[t]he claimant has acquired work skills that are transferable to the semiskilled work functions of other work....

12. Although the claimant's additional nonexertional postural limitations and his ability to do prolonged walking or continuous standing may not allow him to perform the full range of light work, using Vocational Rule 202.07 as a framework for decisionmaking, there are nonetheless a significant number of jobs in the national economy and in the [sic] western New York which he could perform, using skills acquired from his past relevant work. Examples of such jobs are: gate guard, there being 950,000 such jobs in the national economy, and 5,600 in the region and dispatcher, there being 1.2 million such jobs in the national economy, and 790 such jobs in the western New York region.

13. Considering the claimant's residual functional capacity for light work, his age, education, and work experience within the framework of Section 404.1569 of Regulations No. 4 and Rule 202.07, Table No. 2, of Appendix 2, Subpart P, Regulations No. 4, the undersigned finds that the claimant is not disabled.

ALJ Decision at 8-9, ¶¶ 11-13. The ALJ concluded that Draegert "was not under a `disability,' as defined in the Social Security Act, at any time through the date of this decision," id. at 9, ¶ 14, and denied his claim for benefits. The SSA Appeals Counsel denied review.

Draegert commenced the present action in the district court seeking review of the denial of benefits, contending principally that the Commissioner erred in considering the "abilit[ies]" identified by the VE as vocational "skills." The parties stipulated that, from an exertional standpoint, Draegert retained the residual functional capacity to perform the full range of either light or sedentary work, except for his inability to walk for prolonged periods, to stand continuously, or to climb, balance, stoop, kneel, crouch, and crawl; they conceded that the only issue was whether the Commissioner had properly found that Draegert possessed transferable skills that enabled him to perform other substantial gainful activity existing in the national economy. Each side moved for judgment on the pleadings; the motions were referred to Magistrate Judge Leslie G. Foschio for report and recommendation.

In a Report and Recommendation dated March 20, 2001 ("Magistrate's Report" or "Report"), the magistrate judge recommended that the district court grant the motion of the Commissioner and deny that of Draegert. The Report stated that

Draegert's skills identified by the Vocational Expert include the abilities to (1) learn and apply rules and procedures which are sometimes hard to understand; (2) use reason and judgment in dealing with all kinds of people, (3) think clearly and react quickly in an emergency; (4) keep physically fit; and (5) make conclusions based on facts and on one's personal judgment. The regulations do not define the terms "skills," "abilities," "aptitudes" or "traits." However, some guidance is provided in Social Security Ruling 82-41 ..., which defines 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 proper and approved manner. This includes activities like making precise measurements, reading blueprints, and setting up and operating complex machinery. A skill gives a person a special advantage over unskilled workers in the labor market.

Magistrate's Report at 16-17 (footnote omitted). Stating further that "what may otherwise be considered as abilities or aptitudes may constitute skills if they are enhanced by specific work experience," id. at 17 (internal quotation marks omitted), the magistrate judge stated that

Draegert's "abilities" ... are neither so...