Smith v. Apfel

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 1, 1999
• Docket: 98-5100
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS APR 1 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

VIVIAN S. SMITH,

Plaintiff-Appellant,

v. No. 98-5100 (D.C. No. 96-CV-1155-EA) KENNETH S. APFEL, Commissioner, (N.D. Okla.) Social Security Administration,

Defendant-Appellee.

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Claimant Vivian S. Smith applied for Social Security disability insurance

benefits alleging disability since 1988 because of pain in her back, shoulder and

hip, poor vision due to glaucoma, and sleepiness, nausea and dizziness resulting

from post-mastectomy medication. The administrative law judge (ALJ)

determined at step five of the sequential evaluation process that claimant was not

disabled. The district court affirmed the Commissioner’s decision, and claimant

appeals. Applying the same standard of review as the district court, we review

the Commissioner’s decision to determine whether his factual findings are

supported by substantial evidence and whether he applied the correct legal

standards. See Nguyen v. Shalala , 43 F.3d 1400, 1402 (10th Cir. 1994).

The ALJ determined that claimant was impaired by right arm pain and that

she was limited to sedentary work. See Appellant’s App. at 20. The ALJ further

found that this impairment and claimant’s residual functional capacity prevented

her from performing her past relevant work as a doctor’s receptionist which was

characterized by the vocational expert as light work. Because claimant was

fifty-four years old when her insured status expired (closely approaching

advanced age), had no education which would provide her direct entry into skilled

work, and was limited to sedentary work, she would be presumptively disabled

under the Medical-Vocational Guidelines if she did not have any skills which

would be transferable to another job. See 20 C.F.R. Pt. 404, Subpt. P, App. 2,

-2- § 201.14. If she had transferable skills, she would not be presumptively disabled.

See id. § 201.15.

The ALJ found that claimant has transferrable clerical and filing skills

which would enable her to work as an order clerk. The vocational expert,

however, testified that the majority of order clerk jobs require computer skills,

see Appellant’s App. at 58-59. There was no evidence regarding the number of

order clerk jobs not requiring computer skills that exist either in the regional or

national economy, although the vocational expert testified that those jobs would

be at a minimum, see Appellant’s App. at 58-59, and later testified that

“everything involves computers as far as clerical anymore. If you don’t have

computer skills you really are out of the job market,” id. at 60. 1

Claimant testified that in her receptionist job she worked with a computer

for one hour per day for one week. See Appellant’s App. at 49. Thus, claimant

had acquired five hours of computer experience sometime between 1981 and

1988.

1 We also note that, because claimant was “closely approaching advanced age,” agency regulations require consideration of whether her age “may seriously affect [her] ability to adjust to a significant number of jobs in the national economy.” 20 C.F.R. § 404.1563(c). The vocational expert testified that claimant would have to make a “considerable adjustment” to any job requiring computer use. See Appellant’s App. at 58-59.

-3- The Social Security regulations define a skill as

knowledge of a work activity which requires the exercise of significant judgment that goes beyond the carrying out of simple job duties and is acquired through performance of an occupation which is above the unskilled level (requires more than 30 days to learn). It is practical and familiar knowledge of the principles and processes of an art, science or trade, combined with the ability to apply them in practice in a proper and approved manner.

Soc. Sec. R. 82-41, 1982 WL 31389 at *2. Applying this definition, it is clear

that five hours of experience on a computer could not result in claimant having

acquired computer “skills.” The ALJ’s conclusion that claimant had transferable

skills which would enable her to work as an order clerk is thus unsupported by

substantial evidence.

“‘In reversing the [Commissioner’s] determination, it is within our

discretion to remand to the [Commissioner] for a further hearing or direct the

district court to award benefits.’” Emory v. Sullivan , 936 F.2d 1092, 1095

(10th Cir. 1991) (quoting Dixon v. Heckler , 811 F.2d 506, 511 (10th Cir. 1987)).

The Commissioner has not articulated any reason why the presumption of

disability established by the Medical-Vocational Guidelines should not determine

the outcome of this case. Claimant applied for benefits on May 19, 1994, nearly

five years ago, and is now fifty-nine years old, or “a person of advanced age”

under the regulations. See 20 C.F.R. § 404.1563(d). A remand at this juncture

for a hearing is unnecessary and would be judicially inefficient. See Nielson v.

-4- Sullivan , 992 F.2d 1118, 1122 (10th Cir. 1993) (refusing to remand for a hearing

where ALJ failed to make required findings targeted at the level of vocational

adjustment needed for fifty-nine-year-old claimant, claimant had made prima

facie case of entitlement, and record was fully developed). Accordingly,

we direct the district court to award benefits. 2

The judgment of the United States District Court for the Northern District

of Oklahoma is REVERSED and REMANDED.

Entered for the Court

Mary Beck Briscoe Circuit Judge

2 Because of our disposition of this appeal, it is unnecessary for us to reach claimant’s contention that the Commissioner did not adequately consider her nonexertional impairments.

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