Unpublished Disposition, 844 F.2d 792 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 844 F.2d 792 (9th Cir. 1987)

Paul R. MUNSON, Plaintiff-Appellant,v.Otis R. BOWEN, Secretary of Health and Human Services,Defendant-Appellee.

No. 87-6112.

United States Court of Appeals, Ninth Circuit.

Submitted April 4, 1988.* Decided April 11, 1988.

Before Chief Judge JAMES R. BROWNING, NELSON and CANBY, Circuit Judges.


MEMORANDUM** 

Paul R. Munson appeals from the district court's grant of summary judgment for the Secretary of Health and Human Services ("the Secretary") upholding a denial of Supplemental Social Security Income ("SSI") benefits under Title XVI of the Social Security Act ("the Act"), 42 U.S.C. §§ 1381, et seq. Munson timely appealed. The district court had jurisdiction pursuant to 42 U.S.C. § 405(g), and we have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

Munson, age 58 at the time of the hearing, has completed high school and one year of college. Since 1958, he has worked as a produce clerk, produce manager and produce merchandiser. He last worked on April 29, 1983.

Munson applied for disability benefits on May 14, 1985. He claimed that degenerative arthritis of the spine, caused by a job-related injury on April 17, 1983, had prevented him from working since April 29, 1983. Munson's application was denied initially and on reconsideration. On June 4, 1986, an administrative law judge ("ALJ") held a hearing and subsequently denied Munson's claim. Although the ALJ found that Munson could not perform his past work as a produce clerk or merchandiser, the ALJ determined that Munson retained the residual functional capacity to perform a full range of sedentary work. The ALJ found that Munson must be allowed to stand and walk after prolonged sedentary work, and the ALJ placed limitations on Munson's ability to bend, lift and carry.

The Appeals Council affirmed the ALJ's decision. On appeal to the district court, a magistrate recommended affirming the Secretary's decision. The magistrate found that the ALJ had erroneously concluded that Munson had acquired skills transferable to a customer service clerk position. The magistrate determined that the customer service clerk position did not involve "directly transferable" skills because Munson would be required to enter another industry and undergo 30 days of retraining. The magistrate did find that the evidence supported the ALJ's determination that Munson's skills were transferable to other positions such as that of employment interviewer and information clerk. The magistrate determined that the ALJ made the required finding that the amount of vocational adjustment required by those positions was minimal and that the ALJ's determinations were supported by substantial evidence.

For purposes of this appeal, we accept Munson's summary of the medical evidence. The Secretary does not contest that Munson is unable to perform his past work or that he is severely impaired.

The district court reviewed and adopted the magistrate's recommendations on May 21, 1987. Munson seeks attorneys' fees pursuant to 28 U.S.C. § 2412(d) (3).

The only issue on appeal is whether the Secretary properly determined the transferability of Munson's work skills to other positions. We affirm a denial of benefits when the Secretary's decision is supported by substantial evidence and is free from legal error. Sanchez v. Secretary of Health and Human Servs., 812 F.2d 509, 510 (9th Cir. 1987).

The ALJ found that Munson had acquired skills in his past work which were transferable to the requirements of other skilled or semi-skilled sedentary positions existing in significant numbers in the national economy.

A vocational expert, Dr. Alexander D. Aloia, testified that Munson was vocationally of "advanced age" and had performed skilled, heavy work as a produce clerk. Dr. Aloia testified that Munson had specialized knowledge of food handling and had transferable skills such as "preparing" and "making out" reports, inventorying, supervising others and training new employees. Dr. Aloia testified that these skills would transfer into sedentary positions such as customer service clerk, employment interviewer or information clerk. Munson stipulated to the expert's qualifications and Munson's attorney cross-examined the vocational expert at the hearing.

The ALJ considered Munson's claim that his skills were not actually transferable because the new positions required too much vocational adjustment. The ALJ noted Dr. Aloia's observation that the new positions would involve more contact with people and might require adjustment to a new industry. Dr. Aloia testified that Munson's vocational adjustment would be "immediate" to 30 days. The ALJ determined that Munson had acquired specific skills he could utilize in the new positions, even if the positions were in a new industry. Those skills included preparing reports, making inventory studies, supervising personnel and training new employees. The ALJ concluded that "the vocational adjustment required of the claimant would not be so significant within the provisions of [20 C.F.R. Sec. 404.] 201.00(f) of Appendix 2 so as to bar his competitive employment in the jobs named by the vocational expert. Accordingly, his skills must be found to be 'transferrable.' "

This court recently discussed the transferability of skills necessary for a claimant of Munson's age.

"The regulations provide that skills will be considered transferable 'when the skilled or semi-skilled work activities you did in past work can be used to meet the requirements of skilled or semi-skilled work activities of other jobs ...' 20 C.F.R. Sec. 404.1568(d) (1) (1985). A finding of transferability is most probable among jobs that involve: (1) the same or lesser degree of skill; (2) a similarity of tools; and (3) a similarity of services or products. Id. Sec. 404.1568(d) (2). Complete similarity of skills, however, is not necessary. Id. Sec. 404.1568(d) (3).

Where a claimant is of advanced age (55 or over, id. Sec. 404.1563(d)), the regulations further require that for skills to be transferable to other jobs, there must be very little, if any, vocational adjustment required in terms of tools, work processes, work settings, or the industry. Id. Sec. 404, Appendix 2, Table I, Rule 201.00(f)."

Renner v. Heckler, 786 F.2d 1421, 1423 (9th Cir. 1986) (per curiam).

Renner is the only Ninth Circuit case construing the transferability required when persons are of advanced age. In Renner, this court remanded because the record was "silent as to the amount of 'vocational adjustment' required" for the claimant to transfer to other positions. Id. at 1424. The claimant's past work in Renner was as a grocery checker and drug store clerk. As here, the ALJ determined that Renner could not return to her past work, but had transferable skills enabling her to perform sedentary work. In Renner, " [t]he vocational expert noted only that the answering service operator [one of the possible new positions] requires some new skills ..." Id. This court noted that all the possible new positions involved some adjustment to new industries or work settings. Id. This court concluded that the ALJ's finding of transferable skills was legally erroneous because " [t]he vocational expert failed to demonstrate that Renner would be able to perform these jobs with very little, if any, vocational adjustment." Id. The ALJ in Renner apparently failed to take into consideration the claimant's age. Id. See also Weaver v. Secretary of Health and Human Servs., 722 F.2d 310, 311 (6th Cir. 1983) (ALJ failed to make specific findings on transferability).

In contrast, the ALJ here applied the correct legal standards and examined the amount of vocational adjustment demanded of Munson in the new positions. As noted above, the ALJ evaluated the medical evidence and the vocational expert's testimony, and concluded that the adjustment "would not be so significant" for purposes of 20 C.F.R. Sec. 404.201.00(f), requiring "very little, if any" adjustment for a person of Munson's age. Although the government does not address the age requirements in its brief, the ALJ clearly considered the regulations. The district court carefully examined the ALJ's findings and determined that the ALJ's conclusion that the vocational adjustment to the positions of employment interviewer and information clerk was minimal. The district court's reasoning is persuasive. The testimony of the vocational expert supports a conclusion that Munson's skills transfer easily to at least two positions considered by the ALJ. The information clerk position involves answering phones and giving instructions to others. The duties of the position are the same in all industries. The employment interviewer position involves the same skills acquired by Munson as a supervisor and in making reports. The vocational expert testified that 300 such positions exist in the local food industry. The position of customer service clerk (i.e., a retail clerk not specializing in produce) was rejected by the district court because the vocational expert testified that it might take Munson 30 days to become "really efficient" at the position in a new industry.

Munson concedes that the ALJ considered the appropriate advanced age regulation, but argues that his prior job experience involved contact with employees rather than customers. The ALJ and the district court noted the additional contact with the public required by the new positions, but determined that the vocational adjustment was minimal. The vocational expert testified that Munson had answered customer questions, conveyed information, and met with individual employees as well as the public in his prior jobs. We do not find that the transferability analysis should be altered because Munson would face more contact with the public than employees. The positions involve a very similar, if not the same, skill.

Munson also argues that the amount of writing required by the new positions makes the necessary adjustment significant. The vocational expert testified that the employment interviewer position would require him to write reports constantly during the day and the information clerk position would require sporadic writing. The expert also testified that Munson had spent 30-45 minutes per day writing reports at his previous experience. However, as the vocational expert noted, writing reports is the same skill, involving no new "tools" as envisioned by the transferability regulations. Munson has not demonstrated that the increased amount of report writing makes the vocational adjustment more than minimal.

Munson finally contends that he would be required to adjust to new industries and new work settings, two of the four factors considered in the transferability regulations. However, the district court rejected the ALJ's determination that the adjustment required to the customer service clerk position was minimal because it necessitated a new industry and training of 30 days. The district court did not reject the other two positions because the vocational expert testified that 300 local jobs existed for employment interviewers in the food industry, which would require minimal adjustment. Further, the information clerk position, even if in a new industry, involves no new skills. The vocational expert testified that all three potential positions involved no significant change in Munson's work processes. In addition to the more extensive contact with people, the only change noted was the elimination of heavy physical duties.

Munson has not supported his contention that a change to a new industry or work setting is necessary for all three positions. Further, such proof would not alter a determination that the vocational adjustment in the employment interviewer or information clerk positions would be anything more than minimal. The ALJ applied the correct legal standard. The Secretary's finding that Munson is able to perform sedentary work and has transferable skills to at least two positions existing in the economy is supported by substantial evidence. Munson's contentions focus on distinguishing the duties at the various positions, but the regulations note that " [c]omplete similarity of skills ... is not necessary."

Munson's claims and request for attorneys' fees are thus denied.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3