UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
May 28, 1985
ROBERT THORNTON, Plaintiff
MARGARET M. HECKLER, Secretary of Health and Human Services, Defendant.
The opinion of the court was delivered by: GLASSER
GLASSER, United States District Judge:
This challenge to the defendant Secretary's denial of plaintiff's claim for disability insurance benefits is before me for the second time, following a remand to the Secretary. At this juncture the parties have cross-moved for judgment on the pleadings. For the reasons set forth below, plaintiff's motion is granted and defendant's motion is denied. This action is remanded to the Secretary for the sole purpose of calculating benefits due to the plaintiff.
Plaintiff, who is now 60 years old and has a limited education, alleges disability due to a heart condition. On December 9, l980, the Administrative Law Judge ("ALJ") rendered a decision that plaintiff was not entitled to receive benefits because he could perform his former work as the operator of a vacuum cleaner repair business. The decision of the ALJ became the final decision of the Secretary when it was affirmed by the Appeals Council on March 13, 1981.
Plaintiff thereafter timely commenced an action in the district court. In a Report and Recommendation dated May 4, 1983, Magistrate Chrein found that the medical evidence in the record supported the conclusion that plaintiff was severely impaired, but retained the residual functional capacity to perform sedentary work. However, the Magistrate recommended that this action be remanded to the ALJ for a determination of the exertions requirements of plaintiff's past work, which were not specified at all in the record originally before the ALJ.
By Memorandum and Order dated February 2, 1984, I accepted the Magistrate's Report and Recommendation in its entirety, notwithstanding the timely objection of the plaintiff.
At the hearing on remand on June 20, 1984, the ALJ received testimony from the plaintiff and from David Vandergoot, a vocational expert ("VE"). The ALJ accepted the VE's conclusion that the plaintiff's past work was heavy and skilled
in nature, Tr. 152, and the ALJ thus concluded that plaintiff could not return to his former work. Tr. 130. However, the ALJ went on to complete the sequential analysis,
i.e., to determine whether plaintiff possessed the residual functional capacity to engage in any other form of substantial gainful activity. The ALJ found that plaintiff could perform the semi-skilled sedentary job of electrical inspector.
At this point it is relevant to note that in evaluating whether this plaintiff can perform any type of work, transferability of skills is the determinative factor. This requirement is dictated by the relevant medical-vocational guidelines ("the grid") promulgated by the Secretary which are set forth in the margin.
Section 201.00(f) accompanying the grid regulations further limits the Secretary's ability to determine that a claimant such as Mr. Thornton can perform substantial gainful activity. That section provides:
In order to find transferability of skills to skilled sedentary work for individuals who are of advanced age (55 and over), there must [sic] be very little, if any, vocational adjustment required in terms of tools, work processes, work settings, or the industry.
(emphasis added). See infra at 5. With respect to these factors, VE Vandergoot testified at several points that this plaintiff would likely have more than "very little" vocational adjustment to the sedentary occupation of electrical inspector. Specifically, the VE felt that plaintiff would require some adjustment with respect to two aspects of that position: (1) plaintiff would require approximately 30 days of training to adjust to the different types of products and different skills necessary for that job, and (2) plaintiff would experience more than very little psychological adjustment to (a) being an employee and co-worker, instead of an employer, (b) production and time requirements, and the inability to control his time and activities. Tr. 155, 156, 159, 161-2, 168, 169.
In the terms of § 201.00(f) supra note 3, the VE described the areas where plaintiff would need more than very little adjustment to be "industry" and "work settings."
Tr. 156, 168-69.
The ALJ received no other testimony or documentary evidence regarding the transferability of plaintiff's skills to the occupation of electrical inspector. However, he rejected the VE's opinion that plaintiff would require more than "very little" adjustment to such work within the meaning of § 201.00(f). The ALJ therefore concluded that plaintiff was not under a disability because he could perform that job.
Plaintiff asserts two bases for his appeal from the Secretary's denial of benefits on remand. First, he asserts that the abilities which the VE and ALJ determined him to have, supra note 3, are not "skills" but are merely "aptitudes;" thus, plaintiff urges, he cannot be found to have transferable skills. Second, plaintiff contends that even if his abilities are deemed to be skills, he should be found disabled under § 201.00(f) because he would require more than very little vocational adjustment within the meaning of that regulation.
The only issue to be decided by this Court is whether the Secretary's determination that plaintiff is not disabled because he can perform sedentary, semi-skilled work as an electrical inspector is supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971). It is well settled that once a claimant has established that he is severely impaired, the burden of proof shifts to the Secretary to demonstrate that there is other work which the plaintiff can perform. Parker v. Harris, 626 F.2d 225 (2d Cir. 1980). I will address the two bases of plaintiff's argument seriatim.
A. Applicability of § 201.00(f)
Although not raised by either party to this action, I must first address the applicability of § 201.00(f) to the plaintiff here. As indicated supra at 3, that provision sets forth a standard for the determination of transferability of skills to skilled sedentary work. The position of electrical inspector, which the ALJ found that plaintiff could perform, is semi -skilled sedentary work. The courts have differed as to whether § 201.00(f) is applicable when the issue presented is whether the plaintiff's skills are transferable to other than "skilled" work. Compare Richardson v. Secretary of Health & Human Services, 735 F.2d 962, 964 (6th Cir. 1984) (discussion of applicability of § 201.00(f) to "other" sedentary work) with Brown v. Secretary of Health & Human Services, Unempl. Ins. Rep. (CCH) P 17,025 (E.D.Mich. 1980) (cited in Blake v. Secretary of Health & Human Services, 528 F. Supp. 881, 887 n.15 (E.D. Mich. 1981)) (holding § 201.00(f) to be applicable only "if skills are to be transferred to skilled sedentary work").
In the instant case, however, the Secretary has applied § 201.00(f) to plaintiff Thornton at both the administrative level and before this Court. See, e.g., Tr. 131; Defendant's Brief at 7. Because of this position and because the Secretary has apparently interpreted § 201.00(f) to apply to sedentary work generally,
I find that application of that regulation to plaintiff is appropriate in this case.
B. Skills vs. Aptitudes
The scant legal authority interpreting § 201.00(f) for the most part addresses whether certain abilities are skills or aptitudes under that provision. See, e.g., Ellington v. Secretary of Health & Human Services, 738 F.2d 159 (6th Cir. 1984) (capacity to exercise "independent judgment" not a transferable skill); Richardson, supra (abilities to maintain a production standard and to use hand tools not skills); Weaver v. Secretary of Health & Human Services, 722 F.2d 310 (6th Cir. 1983) ("average intelligence, high average space relations, average form relations, above average finger dexterity, and manual dexterity in terms of the tools he used" held to be aptitudes [sic] and not transferable skills); Pfalz v. Heckler, 589 F. Supp. 653, 656 (S.D.Ohio 1984) (where ALJ made no finding as to transferability of plaintiff's skills and there was no evidence that plaintiff had a "particular learned ability" to perform a specific job, Secretary had not met burden of proving that plaintiff was not disabled); Blake, supra, 528 F. Supp. at 884-85 (good visual activity, general intelligence, hand-eye-foot coordination and manual dexterity held to be aptitudes and not skills).
Perhaps the most clear comparison between aptitudes and skills is that set forth in Blake, supra :
Webster defines "skill" as the "learned power of doing something competently; a developed or acquired aptitude or ability." A skill, unlike a simple aptitude, is acquired and relates to doing a specific act. Although the regulations never explicitly define either skill or aptitude, this distinction is implicit. The regulations repeatedly assume that skills are acquired. Skills relates [sic] to specific "vocationally significant work activities," while aptitudes involve only "basic work activities . . . necessary to do most jobs."
528 F. Supp. at 885 (emphasis in original) (footnotes omitted). Accord, Weaver, supra, 722 F.2d at 311 ("an aptitude is an innate ability while a skill is a learned ability").
At the hearing on remand, plaintiff testified [sic] that his former activities as manager of his vacuum cleaner and sewing machine repair business included doing all of the repair work (mostly electrical), selling, preparing advertisements and keeping the books of the company. Tr. 141-46. Plaintiff also testified that prior to going into that business, he apprenticed for one and one half years in order to learn specifically how to repair vacuum cleaners and sewing machines. Tr. 141, 146. While not all of plaintiff's activities at his former work may be "skills" within the meaning of the Social Security Act and case law, I find that the extensive training and managerial and technical aspects of his work would be best characterized as skills and not aptitudes.
C. "Very Little" Vocational Adjustment
As discussed supra, the uncontradicted opinion of VE Vandergoot was that the plaintiff here would require more than "very little" vocational adjustment to adapt to the position of electrical inspector. Although the ALJ disregarded the VE's assessment of the degree of plaintiff's adjustment under § 201.00(f), the rejection of that part of the VE's opinion is not based upon any other evidence considered by the ALJ. It is well settled that a vocational expert's opinion may be a reliable assessment of a claimant's ability to perform substantial gainful activity if his evaluation is based upon substantial evidence present in the record. See, e.g., Dumas v. Schweiker, 712 F.2d 1545, 1553-54 (2d Cir. 1983). The parties here do not dispute the evidence relied upon by VE Vandergoot, but do disagree with respect to Vandergoot's assessment of the transferability of plaintiff's skills under § 201.00(f). Where the uncontraverted testimony of the VE supports the conclusion that a claimant's skills are not transferable with the minimal degree of adjustment specified in § 201.00(f), a finding of disability is appropriate. See Piechucki v. Heckler, 613 F. Supp. 45, slip op. at 6-7 (E.D.N.Y. 1985). The Secretary has clearly failed to meet her burden of proving that plaintiff possesses the residual functional capacity to perform substantial gainful activity.
Parker v. Harris, supra.
For the reasons set forth above, plaintiff's motion for judgment on the pleadings is granted and defendant's motion is denied. This case is remanded to the Secretary solely for the computation of benefits due to the plaintiff.