James D. WEAVER, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee

722 F.2d 310, 1983 U.S. App. LEXIS 14708, 3 Soc. Serv. Rev. 268

• Court: Court of Appeals for the Sixth Circuit
• Decided: December 7, 1983
• Docket: 82-1505
• Status: Published

Opinions

ALLEN, District Judge.

James D. Weaver appeals the denial of his application for Social Security disability benefits. The Secretary denied Weaver’s application for disability benefits and the District Court affirmed the Secretary’s decision, overruling the recommendations of the United States Magistrate. Weaver raises several arguments on appeal, including the argument that the Secretary erroneously found that his work skills were “transferable” under the “grid,” Rule 201.-03, Table 1 of Appendix 2, Subpart P, Regulation 4. After due consideration, we agree that the Secretary’s decision is not supported by substantial evidence and that the Secretary failed to apply the correct section of the “grid.”

A series of injuries left Weaver with a condition requiring “a total laminectomy at the L4-L5 level.” Tr. at 86. A laminecto-my is an “excision of the posterior arch of a vertebra.” Dorlands Illustrated Medical Dictionary at 84 (25th Ed.1974). After a period of rehabilitation, Weaver attempted to return to work but was unable to remain on the job. His inability to return to his former employment is undisputed.

Weaver was employed as a mechanic on boxmaking machines. His work involved the use of “cutting torches, welders, pipe threading machines, grinders, drills and drill presses, saws, torches, arc welders, pipe wrenches, various other wrenches, screw drivers, hammers, chain falls, jacks (hydraulics), fork lifts and lifting machines [on occasion].” Tr. at 60, 94. A vocational expert found that Weaver’s skills were transferable to such jobs as “inspection, bench assembly and repair, and processing (machine inspection). The jobs would be found in the related automobile industry, plastics industry, and electronic industry. Adjustment would be minimal in view of the light machine repair he was assigned in 1/3/77.” Tr. at 137. We note in passing that although the job described is mentioned in the transcript at pp. 101 and 104, we find no evidence of what skills this “light machine repair” job required; and the expert does not disclose where he learned that Weaver possessed such skills.

The vocational expert appears to have relied on Weaver’s work history as given in his disability application, Tr. 101-04, for his analysis. Tr. at 135-37. The vocational expert lists a number of job-related skills which he considers transferable. Those skills are “average intelligence, high average space relations, average form relations, above average finger dexterity, and manual dexterity in terms of the tools he used.” Tr. at 136. The expert then found the jobs listed above as prospective jobs for Weaver.

Transferability of skills is the subject of 20 C.F.R. Subpart P, Appendix 2, Sec. 201.-00(f). “In order to find transferability of skills to skilled sedentary work for individuals who are of advanced age (55 and over), there must be little, if any, vocational adjustment required in terms of tools, work processes, work settings, or the industry.” The Administrative Law Judge (ALJ) found that Weaver was capable of doing sedentary work and that he was over 55, but made absolutely no reference to whether his skills were transferable to another prospective position. Instead, the ALJ appeared to rely on the vocational expert’s finding that Weaver’s skills as a mechanic were transferable to the new jobs envisioned by the vocational expert.

The only case discussing transferability of skills under 201.00(f) is Blake v. Secretary, 528 F.Supp. 881 (E.D.Mich.1981). The Blake court held that although “[h]and-eye-foot coordination and manual dexterity might be considered skills if acquired from work activity requiring rapid, repetitive or fine manipulation ..., [plaintiff’s prior work experience [pulling and pushing knobs and buttons] has conferred no ‘substantial vocational asset’ to overcome the vocational limitations due to her age, limited education and medical impairments. ... ” 528 F.Supp. at 886.

Initially, Blake stands for the proposition that there is an inherent difference between “aptitudes” and “skills.” An “aptitude” is an “inclination, a natural ability, talent, or capacity for learning.” A “skill” is a “learned power for doing something competently.” Webster’s Ninth New Collegiate Dictionary. In short, an aptitude is an innate ability while a skill is a learned ability. Compare 20 C.F.R. 404.1521(b) with 20 C.F.R. 404.1565 and 404.1568. While a person may have natural talents including dexterity, general coordination, space relations, etc., that same person may not have the particular learned ability to do a specific job. In this case, the vocational expert dealt with Weaver’s “aptitudes” rather than with Weaver’s “skills.”

Furthermore, Blake stands for the proposition that a person who fits into this category on the “grid” is presumed disabled unless they have a particularly transferable skill, or “vocational asset.” We find this presumption defensible. At an advanced age, a person has little time to learn a new skill and apply it to a new job, especially if that person is restricted to sedentary work by a medical disability. Rule 201.00(f) requires the Secretary to show that the disabled person has skills which are directly transferable in order to overcome the presumption. Here, neither the ALJ nor the vocational expert made any showing that Weaver needed “very little, if any, vocational adjustment .... ” Rather, the ALJ adopted the vocational expert’s findings which confused aptitudes and skills. We agree that the “presumption would be effectively negated if such basic aptitudes as the ability to see, think and uses ones [sic] hands, common to most persons, are considered transferable skills.” 528 F.Supp. at 886. Therefore, we reverse.

Additionally, we find that the ALJ did not deal correctly with the issue of pain. The ALJ discounted Weaver’s complaints of pain, as we read the ALJ’s opinion, solely on the basis of his own observation of Weaver at the hearing. While we recognize that observation and credibility are factors in this complicated equation, and as such are material, relevant, and admissible, we cannot allow the dismissal of a claim for pain solely on the ALJ’s observations at the hearing. This procedure amounts to the infamous and thoroughly discredited “sit and squirm” test. We do not imply that there was no evidence in the record from which the ALJ could not draw the inference of a lack of pain. However, the ALJ must cite some other evidence for denying a claim for pain in addition to personal observation.

The decision is reversed and remanded to the District Court for an award of benefits.