Jensen v. Barnhart

• Decision Date: 14 December 2005
• Docket Number: No. 05-4012.,05-4012.
• Citation: 436 F.3d 1163
• Parties: Brent JENSEN, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1163

436 F.3d 1163

Brent JENSEN, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee.

No. 05-4012.

United States Court of Appeals, Tenth Circuit.

Filed December 14, 2005.

Order Published February 2, 2006.

Ward Harper, Salt Lake City, UT, for Plaintiff-Appellant.

Paul M. Warner, United States Attorney, Salt Lake City, Utah, Deana R. Ertl-Lombardi, Regional Chief Counsel, Debra J. Meachum, Assistant Regional Counsel, Social Security Administration, Denver, Colorado, for Defendant-Appellee.

Before LUCERO, ANDERSON, and BRORBY, Circuit Judges.

LUCERO, Circuit Judge.

Claimant Brent Jensen appeals from the district court's order affirming the decision of the Commissioner of Social Security to deny his request for social security benefits. We have jurisdiction under 28 U.S.C. § 1291, and AFFIRM.^*

Jensen applied for disability insurance benefits on May 1, 2000, alleging disability since June 1, 1998, due to dizziness, disequilibrium, and back pain. He was fifty-eight years old as of June 30, 1998 — the date he was last insured. Jensen's initial request for disability benefits was denied. After a de novo hearing at which Jensen appeared pro se, the Administrative Law Judge (ALJ) affirmed the denial of his application. Because the Appeals Council ultimately denied his request for review, the decision of the ALJ became the final decision of the Secretary. Emory v. Sullivan, 936 F.2d 1092, 1093 (10th Cir.1991). Jensen filed this action in federal court, seeking review of the Secretary's decision. The case was referred to a magistrate judge, who concluded that Jensen's case should be remanded for an award of benefits if appropriate. The district court disagreed and affirmed the Secretary's decision.

We review the Commissioner's decision to determine "whether [her] findings are supported by substantial evidence in the record and whether [she] applied the correct legal standards." Emory, 936 F.2d at 1093. The "[f]ailure to apply the correct legal standard or to provide this court with a sufficient basis to determine that appropriate legal principles have been followed is grounds for reversal." Byron v. Heckler, 742 F.2d 1232, 1235 (10th Cir.1984) (quotation omitted).

In this case, the ALJ reached the fifth step of the familiar five-step evaluation process, see Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.1988), concluding that Jensen could perform a significant number of jobs in the national economy. As of his date last insured, Jensen was fifty-eight years old, had a high school education, and had worked as a supervisor for Western Union for six years and as an automobile salesman for two and one-half years. The ALJ concluded that Jensen retained the capacity to perform less than the full range of sedentary work, but that his skills were transferable to a significant number of jobs.

At fifty-eight years of age, Jensen was a person of "advanced age" under the Commissioner's regulations. See 20 C.F.R. § 404.1563(e). The Commissioner must overcome a higher burden at step five to deny benefits to claimants of advanced age. Emory, 936 F.2d at 1094. The regulations state: "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. . . ." 20 C.F.R. § 404.1568(d)(4). "Accordingly, it is not enough that persons of advanced age are capable of doing unskilled work; to be not disabled, they must have acquired skills from their past work that are transferable to skilled or semi-skilled work." Emory, 936 F.2d at 1094 (quotation omitted).

The ALJ concluded that Jensen is limited to sedentary work and is further limited to less than a full range of that type of work due to his inability to sit more than forty-five to sixty minutes without changing positions and his inability to walk more than ten to fifteen minutes at a time and two hours during an eight-hour day. Because Jensen is of advanced age and is limited to sedentary work, an additional regulation concerning transferability of skills comes into play: "If you are of advanced age and you have a severe impairment(s) that limits you to no more than sedentary work, we will find that you have skills that are transferable to skilled or semiskilled sedentary work only if the sedentary work is so similar to your previous work that you would need to make very little, if any, vocational adjustment in terms of tools, work processes, work settings, or the industry." 20 C.F.R. § 404.1568(d)(4); see also 20 C.F.R. Part 404, Subpt. P, App. 2, Rule 201.00(f). Section 4.c. of Social Security Ruling 82-41 further defines transferability of skills for persons of advanced age: "In order to establish transferability of skills for such individuals, the semiskilled or skilled job duties of their past work must be so closely related to other jobs which they can perform that they could be expected to perform these other identified jobs at a high degree of proficiency with a minimal amount of job orientation." 1982 WL 31389 at *5. The ruling further provides that when the ALJ determines that job skills are transferable, he or she must provide findings of fact to support that decision and must identify the acquired job skills and the positions to which those skills are transferable. Id. at *7.

The vocational expert (VE) who testified at the hearing before the ALJ determined that Jensen retained skills from his job as an automobile salesman that would transfer to other jobs in the national economy with very little if any vocational adjustment in terms of work processes, work settings, or tools. The VE also determined, however, that more than very little adjustment would be required for transfer to a different industry. With regard to Jensen's past job as a supervisor for Western Union, the VE found very little if any vocational adjustment would be required only for the criteria of work processes and tools. In summary, the VE concluded that overall Jensen could perform the jobs identified with very little if any vocational adjustment. Relying on this evidence, the ALJ concluded that Jensen was not disabled.

On appeal, Jensen argues that this evidence is inadequate to support a finding that he is not disabled because all four of the criteria in § 404.1568(d)(4) need to be satisfied in order to reach that conclusion. He further argues that there is no regulatory basis upon which an "overall" adjustment should be considered.

Jensen acknowledges that there is no authority on point supporting his position requiring that all four criteria of § 404.1568(d)(4) be met before skills can be deemed transferable. The district court concluded that "[t]he proper interpretation of the transferability rule as it applies to those of advanced age limited to sedentary work is that the claimant must experience very little adjustment in more than one of the criteria, and overall, the adjustment must be very little." Further, the court reasoned that, because the regulation is written in the disjunctive, Jensen's argument would simply read the "or" out of the regulation.¹ Noting that the agency has had at least four years to change the "or" in the regulation to an "and" and has not done so, the court similarly refused to take that step. The Commissioner urges us to affirm this conclusion, and her "interpretation must be given controlling weight unless it is plainly erroneous or inconsistent with the regulation." Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994).

Appellant fails to advance any argument rebutting the reasoning of the district court based on the disjunctive syntax of the regulation. Further, we find no error in the ALJ's reliance on the VE's opinion that Jensen would require very little adjustment overall to perform any of the identified jobs. The idea that an ALJ is not allowed to make an overall estimation of a claimant's ability to transfer skills to new employment is unsupported by case law and contrary to the regulations. See, e.g., 20 C.F.R. § 404.1569 (requiring agency to "give full consideration to all relevant facts in accordance with the definitions and discussions under...