Terry v. Sullivan

• Decision Date: 24 May 1990
• Docket Number: No. 89-35477,89-35477
• Citation: 903 F.2d 1273
• Parties: , Unempl.Ins.Rep. CCH 15441A Verna B. TERRY, Plaintiff-Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health & Human Services, * Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1273

903 F.2d 1273

30 Soc.Sec.Rep.Ser. 15, Unempl.Ins.Rep. CCH 15441A

Verna B. TERRY, Plaintiff-Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health & Human

Services, ^* Defendant-Appellee.

No. 89-35477.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 11, 1990.

Decided May 24, 1990.

Angelo Gomez, Ginsburg, Gomez & Neal, Hillsboro, Or., for plaintiff-appellant.

Richard Wetmore, Sp. Asst. U.S. Atty., Dept. of Health and Human Services, Seattle, Wash., for defendant-appellee.

Appeal from the United States District Court for the District of Oregon.

Before BROWNING, ALARCON and KOZINSKI, Circuit Judges.

KOZINSKI, Circuit Judge:

Social Security regulations require that disability benefits be paid to a claimant whose impairments prevent her from doing her previous work, unless the Secretary can identify other types of work she can perform. Where the claimant is close to retirement age, the Secretary's burden is particularly heavy; he must identify jobs that are less demanding than the claimant's previous work, but not so easy as to require no skill at all. We consider whether the jobs identified by the Secretary in this case fall within the proper range.

Facts

Verna Terry is sixty-four years old and has a high school education. For twenty-five years, she worked as a teller and clerk at Fred Meyer, Inc., a retail department store. In July 1985, her impairments forced her to stop working; she has had no substantial gainful employment since then. Terry suffers from osteoarthritis in her feet, degenerative arthritis in her neck and lower back, tendinitis in both shoulders, chronic back pain and a variety of gastrointestinal problems, including irritable bowel syndrome. At least one doctor has concluded that she is disabled. Terry applied for disability benefits in July 1986.

The ALJ, after carefully considering the medical evidence, concluded that Terry is almost disabled, but not quite. While her impairments prevent her from doing light work, including her previous job as a retail clerk, she is still capable of doing sedentary work, although less than the full range of such work because she can sit or stand for only one hour at a time. Based on the written testimony of a vocational expert, the ALJ determined that Terry has acquired skills from her past work that, despite her severe limitations, enable her to perform four jobs that exist in substantial numbers in the national economy: Cashier II (parking lot, ticket sales, etc.), Ticket Seller, Hand Bookkeeper and Hotel/Motel Clerk. The ALJ's determination became the final decision of the Secretary of Health and Human Services when the Appeals Council denied Terry's request for review on June 14, 1988.

Terry appealed to the district court. The district judge affirmed the Secretary's decision for the most part, but ruled out one of the four jobs identified by the ALJ. The district court explained that Hotel/Motel Clerk is "light work," which the ALJ expressly found Terry cannot do. Still, because the court agreed that Terry can perform the three other identified jobs, it upheld the denial of benefits. Terry appeals.

Discussion

I

Federal statutes, administrative regulations and Social Security rulings ¹ together form a comprehensive scheme of legal standards that ALJs must follow in determining whether a claimant is entitled to disability benefits. The basic requirement is that the claimant be "disabled," as that term is defined by statute. This requires that she suffer from a physical or mental impairment (or impairments) that is expected to result in death or to last for a continuous twelve-month period, and that prevents her from engaging in substantial gainful work. 42 U.S.C. Secs. 423(d)(1)(A), 1382c(a)(3)(A) (1982).

The burden of establishing disability is initially on the claimant, who must prove that she is unable to return to her former type of work. Villa v. Heckler, 797 F.2d 794, 797-98 (9th Cir.1986). Once she does so, the burden shifts to the Secretary to identify other jobs that the claimant is capable of performing. Id. at 797. In doing so, the Secretary must take into account the claimant's residual functional capacity, as well as her age, education and last fifteen years of work experience. 20 C.F.R. Secs. 404.1520(f)(1), 404.1565(a) (1989). ²

As age is one of the factors that must be considered, it should surprise no one that the Secretary faces a more stringent burden when denying disability benefits to older claimants. Thus, while the Secretary can find younger claimants not disabled so long as they can perform unskilled work, see 20 C.F.R. Sec. 404.1565(a), the same is not true of claimants of advanced age (fifty-five or over). Agency regulations consider this "the point where age significantly affects a person's ability to do substantial gainful activity." 20 C.F.R. Sec. 404.1563(d). 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 semiskilled work. 20 C.F.R. Sec. 404, Subpart P, App. 2, Rules 201.04-.08 (Table No. 1). See also 20 C.F.R. Sec. 404.1568(d). In addition, before the Secretary can find the claimant's skills transferable to sedentary work, he must show that "very little, if any, vocational adjustment [is] required." 20 C.F.R. Sec. 404, Subpart P, App. 2, Sec. 201.00(f).

Thus, in identifying other work a claimant can perform such that she is not disabled, the range of jobs the Secretary can point to narrows substantially when the claimant reaches age fifty-five. The work must be "less demanding" than that previously performed by the claimant, see 20 C.F.R. Sec. 404.1563(d); at the same time, though, it cannot require so little skill that anyone at all could do it, as older people are at a competitive disadvantage for such jobs. Where the claimant is, as in this case, close to retirement age (sixty to sixty-four), there is an additional requirement: the Secretary must find her disabled unless her skills make her "highly marketable"for the sedentary jobs she is capable of doing. Id.

These are the legal standards applicable in this case. We must affirm the Secretary's decision if these legal standards were properly applied and the factual determinations resulting therefrom are supported by substantial evidence. See Villa, 797 F.2d at 796. The Secretary found that Terry's skills are transferable to four other jobs. One of these, Hotel/Motel Clerk, was ruled out by the district court because it is too physically demanding. ³ Terry maintains that we should rule out the other three because they don't comply with the legal standards set out above. Specifically, she contends that: (1) her skills ⁴ are not transferable to Cashier II and Ticket Seller because they are unskilled jobs and, as a matter of law, acquired skills are not transferable to unskilled jobs; (2) her skills are not transferable to Hand Bookkeeper because that job requires a higher level of skill than her past work; and (3) even if her skills are otherwise transferable, a significant vocational adjustment would be required and, even then, she would not be "highly marketable" as a Hand Bookkeeper. We address these contentions in turn.

II

A. First, Terry contends that two of the three jobs identified by the ALJ (and approved by the district court)--Cashier II and Ticket Seller--qualify as unskilled work. Her argument is persuasive because it relies entirely on the Secretary's own resources. Both jobs are defined in the Dictionary of Occupational Titles, U.S. Dep't of Labor (4th ed. 1977) (DOT ), as well as Selected Characteristics of Occupations Defined in the Dictionary of Occupational Titles, U.S. Dep't of Labor (1981) (Selected Characteristics ). The Secretary routinely relies on these publications in determining the skill level of a claimant's past work, and in evaluating whether the claimant is able to perform other work in the national economy. See Villa v. Heckler, 797 F.2d 794, 798 (9th Cir.1986) ("The Secretary may rely on the general job categories of the [DOT ], with its supplementary Selected Characteristics, as presumptively applicable to a claimant's prior work."). See also 20 C.F.R. Sec. 404.1566(d)(1) (DOT is the Secretary's primary source of reliable job information); 20 C.F.R. Sec. 404.1568 (the Secretary uses these publications to classify occupations as skilled, semiskilled and unskilled); 20 C.F.R. Sec. 404.1569 (DOT classifies jobs by their exertional and skill requirements).

One feature of Selected Characteristics is that it assigns to each job a number that reflects its specific vocational preparation (SVP) time--i.e., how long it generally takes to learn the job. It assigns both Cashier II and Ticket Seller an SVP time of 2, defined as "[a]nything beyond short demonstration up to and including 30 days." Selected Characteristics at 225, 473. Terry correctly points out that this corresponds precisely to the definition of unskilled work embodied in SSA regulations. See 20 C.F.R. Sec. 404.1568(a) ("Unskilled work is work which needs little or no judgment to do simple duties that can be learned on the job in a short period of time.... [W]e consider jobs unskilled if ... a person can usually learn to do the job in 30 days, and little specific vocational preparation and judgment are needed.").

The Secretary "does not agree that the distinction of skilled or unskilled depends entirely on this 30-day factor." Appellee's Brief at 17. He points to other language in the definition of unskilled work suggesting that the term pertains only to work involving "one type of repetitive job function," such as assembly line work. Id. at 18. This argument is not without some basis in the language of section 404.1568(a), ⁵ but we cannot accept it, as the Secretary has bound himself to the thirty day requirement in a variety of other regulations and official rulings, most...