Nielson v. Sullivan

• Decision Date: 05 May 1993
• Docket Number: No. 92-4099,92-4099
• Citation: 992 F.2d 1118
• Parties: , Unempl.Ins.Rep. (CCH) P 17260A Dick NIELSON, Plaintiff-Appellant, v. Louis W. SULLIVAN, in his capacity as Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1118

992 F.2d 1118

41 Soc.Sec.Rep.Ser. 122, Unempl.Ins.Rep. (CCH) P 17260A

Dick NIELSON, Plaintiff-Appellant, v. Louis W. SULLIVAN, in his capacity as Secretary of Health and Human Services, Defendant-Appellee.

No. 92-4099.

United States Court of Appeals Tenth Circuit.

May 5, 1993.

Maureen L. Cleary, Salt Lake City, UT, for plaintiff-appellant.

David J. Jordan, U.S. Atty., Carlie Christensen, Asst. U.S. Atty., Salt Lake City, UT (Ronald S. Luedemann, Chief Counsel, Region VIII, Thomas A. Nelson, Jr., Deputy Chief Counsel, Region VIII, Deana R. Ertl-Lombardi, Asst. Regional Counsel, Dept. of Health & Human Services, Denver, CO), for defendant-appellee.

Before SEYMOUR and ANDERSON, Circuit Judges, and RUSSELL, ^* District Judge.

SEYMOUR, Circuit Judge.

Claimant Dick Nielson appeals from the district court's order affirming the decision of the Secretary of Health and Human Services to deny his request for social security benefits. ¹ We reverse.

Mr. Nielson applied for disability insurance benefits on October 6, 1988, alleging disability since May 10, 1987, due to lower spinal disc deterioration. Aplt.App. at 110. He was 56 years old at the alleged onset of disability. His request for benefits was denied administratively. After a de novo hearing, the administrative law judge (ALJ) denied his application. Id. at 69. The Appeals Council denied his request for review. Id. at 63. The decision of the ALJ therefore became the final decision of the Secretary. Emory v. Sullivan, 936 F.2d 1092, 1093 (10th Cir.1991). Mr. Nielson filed this action in federal court, seeking review of the Secretary's decision. The case was referred to a magistrate judge, who concluded that Mr. Nielson should be awarded benefits. Aplt.App. at 24. The district court disagreed and affirmed the Secretary's decision. Id. at 5.

Our review of the Secretary's decision is limited to "whether his findings are supported by substantial evidence in the record and whether he 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) (quoting Smith v. Heckler, 707 F.2d 1284, 1285 (11th Cir.1983)).

The Secretary has established a five-step evaluation process under the Social Security Act for determining whether a claimant is disabled within the meaning of the Act. See Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.1988) (describing five steps in detail). The claimant bears the burden of proof through step four of the analysis. Once it is determined at step four that a claimant cannot perform his past relevant work, the claimant has established a prima facie case of disability. At step five, the burden shifts to the Secretary to show that a claimant can perform work that exists in the national economy. See id. at 751. The Secretary must consider a claimant's residual functional capacity, age, education, and work experience. Emory, 936 F.2d at 1094.

In this case, the ALJ reached the fifth step of the pertinent analysis, concluding that Mr. Nielson could perform a significant number of jobs in the national economy. Aplt.App. at 75. At the time of the ALJ's decision, Mr. Nielson was fifty-nine years old, had a limited education, and had worked as a truck-tire service manager for over twenty-seven years before the claimed onset date of disability. The ALJ concluded that Mr. Nielson 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. Id.

At fifty-nine years of age, Mr. Nielson was a person of "advanced age" according to the Secretary's regulations. See 20 C.F.R. § 404.1563(d). The Secretary 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: "We consider that advanced age (55 or over) is the point where age significantly affects a person's ability to do substantial gainful activity. If you are severely impaired and of advanced age and you cannot do medium work, you may not be able to work unless you have skills that can be used in (transferred to) less demanding jobs which exist in significant numbers in the national economy." 20 C.F.R. § 404.1563(d) (emphasis added). " '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 (quoting Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir.1990)).

The ALJ concluded that Mr. Nielson is limited to sedentary work and is limited further to less than a full range of that type of work due to his inability to sit more than forty-five minutes without changing positions. Aplt.App. at 75. Where a claimant of advanced age is limited to sedentary work, the regulations further discuss transferability: "In order to find transferability of skills to skilled sedentary work for individuals 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. Part 404, Subpt. P, App. 2, Rule 201.00(f) (emphasis added). Section 4.c. of Social Security Ruling 82-41, Disability--Transferable skills; applicability under the Medical-Vocational Guidelines [March 1982-Feb. 1983 Transfer Binder] Unempl.Ins.Rep. (CCH) p 14,168 at 2199-43 (July 1982), 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." Id. at 2199-46 (emphasis added). Section 6 of that ruling requires the ALJ to make supporting findings of fact in determining whether a claimant's job skills are transferable, including identifying the acquired job skills and the positions to which those skills are transferable. Id. at 2199-47 to 2199-48. The agency's rulings are binding on an ALJ. Terry, 903 F.2d at 1277 (citing Service v. Dulles, 354 U.S. 363, 388, 77 S.Ct. 1152, 1165, 1 L.Ed.2d 1403 (1957)).

At step five, therefore, the Secretary had the burden to demonstrate that Mr Nielson had skills which were transferable to closely related skilled or semi-skilled work with little or no vocational adjustment. The Secretary meets the applicable burden if the ALJ's decision is supported by substantial evidence in the record. See Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir.1988). Substantial evidence is " 'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). "We examine the record as a whole, including whatever in the record fairly detracts from the weight of the Secretary's decision and, on that basis, determine if the substantiality of the evidence test has been met." Casias v. Secretary of Health & Human Servs., 933 F.2d 799, 800-01 (10th Cir.1991). Moreover, where a claimant of advanced age is concerned, we review the record for specific findings identifying the claimant's acquired job skills and the positions to which those skills are easily transferable.

Our review of the record as a whole convinces us that the Secretary failed in his burden. During the hearing before the ALJ, a vocational expert identified Mr. Nielson's skills in his past work as a "truck-tire service manager" as including product knowledge, selling, supervising, record keeping, and dispatching. She was then given the following hypothetical by the ALJ:

If a person were 53 years of age and had pretty much done the same job all his life, that is, a truck service manager, male, with an educational level of tenth grade--he was able to lift a maximum of 15 pounds and 10 pounds repeatedly. He could only walk four blocks, stand for 45 minutes, sit for 45 minutes at a time without changing positions. Could that person do his past relevant work?

Aplt.App. at 99. She testified that, because Mr. Nielson was limited in his lifting ability to sedentary work, he could not return to his previous work as performed in the national economy. Id. at 100-01. She further testified that only Mr. Nielson's skill as a dispatcher was transferable, and that approximately 83,000 dispatching jobs existed in the national economy. Id. at 100. Significantly, however, the ALJ had misstated Mr. Nielson's age in the hypothetical as 53 instead of 59, which was...