Flossie L. Taylor v. Louis Sullivan, Secretary of the Department of Health and Human Services

951 F.2d 878

• Court: Court of Appeals for the Eighth Circuit
• Decided: January 28, 1992
• Docket: 90-2361
• Status: Published

Opinions

BOWMAN, Circuit Judge.

The District Court¹ denied Flossie L. Taylor’s claims for disability insurance benefits and Supplemental Security Income (SSI) under Titles II and XVI of the Social Security Act. Having carefully considered the record in this case, we affirm. The administrative law judge properly relied on the testimony of a vocational expert that Taylor has transferable skills, and the denial of her claims is based on correct legal standards and is supported by substantial evidence on the record as a whole.

The concurring and dissenting opinion of Judge Gibson, which expresses disagreement with the administrative decision denying SSI benefits to Taylor, takes the position that a vocational expert, in determining that a claimant has transferable skills, cannot consider prior work experience unless it constituted substantial gainful activity. We do not understand this to be the law. The only authority Judge Gibson cites on this point is 20 C.F.R. § 416.965(a), which gives some support to his position but, as we read it, does not have the preclu-sive effect he would assign to it. The provision reads in its entirety as follows:

(a) General. Work experience means skills and abilities you have acquired through work you have done which show the type of work you may be expected to do. Work you have already been able to do shows the kind of work that you may be expected to do. We consider that your work experience applies when it was done within the last 15 years, lasted long enough for you to learn to do it, and was substantial gainful activity. We do not usually consider that work you did 15 years or more before the time we are deciding whether you are disabled applies. A gradual change occurs in most jobs so that after 15 years it is no longer realistic to expect that skills and abilities acquired in a job done then continue to apply. The 15-year guide is intended to insure that remote work experience is not currently applied. If you have no work experience or worked only off-and-on or for brief periods of time during the 15-year period, we generally consider that these do not apply. If you have acquired skills through your past work, we consider you to have these work skills unless you cannot use them in other skilled or semi-skilled work that you can now do. If you cannot use your skills in other skilled or semi-skilled work, we will consider your work background the same as unskilled. However, even if you have no work experience, we may consider that you are able to do unskilled work because it requires little or no judgment and can be learned in a short period of time.

20 C.F.R. § 416.965(a) (1991). (Emphasis in original.) We do not perceive anything in this general language that precludes an administrative law judge, in the exercise of his or her discretion in a particular case, from propounding a hypothetical question that includes past work experience that fell short of substantial gainful employment, or that bars a vocational expert from considering such past work experience in determining a claimant’s ability to do other work using skills acquired in the past work.

Here, based on a hypothetical that included, inter alia, Taylor’s work experience during the preceding fifteen years (including past relevant work that did not amount to substantial gainful employment), a vocational expert testified that plaintiff could perform her former work as a mail sorter and short order cook “as she [had] performed them.” Hearing Transcript at 34, reprinted in Record on Appeal at 60. The vocational expert also testified, based on the same hypothetical and the skills Taylor acquired as a short order cook, that she additionally had the ability to work as a short order cook II, food assembler, and deli cutter-slicer.² Id. at 35, reprinted in Record on Appeal at 61.

As Taylor’s former work as a mail sorter and short order cook did not constitute substantial gainful employment, and as the vocational expert opined that Taylor could not perform those jobs as generally performed in the national economy, the AU found, applying 20 C.F.R. § 416.965(a), that she could not perform those jobs. However, considering the vocational expert’s testimony as to the other jobs Taylor could do, the AU further found that she had acquired transferable skills and had the ability to perform the other jobs identified by the vocational expert as being within her capacity. We see no flaw in the AU’s reasoning, and we find it to be consistent with our reading of section 416.965(a). See also 20 C.F.R. § 416.968(d)(1) (1991). In short, we are satisfied this Court has no proper basis for setting aside the AU’s determination that Taylor has the ability to do work as a short order cook II, food assembler, and deli cutter-slicer.

Accordingly, the decision of the District Court sustaining the Secretary’s denial of Taylor’s claims is affirmed.

1 . The Honorable Charles R. Wolle, United States District Judge for the Southern District of Iowa.

2 . According to the Department of Labor, the preparation time required to learn the jobs identified by the vocational expert is from thirty days to three months. U.S. Department of Labor, Selected Characteristics of Occupations Defined in the Dictionary of Occupational Titles at 84, 96, 330-31, 473 (1981). As Taylor worked as a short order cook for approximately five months, Work Activity Report (May 14, 1987), reprinted in Record on Appeal at 372, the vocational expert's testimony is consistent with the Dictionary of Occupational Titles.