JAN ADLER, Magistrate Judge
Plaintiff Marvin E. Tella seeks judicial review of Social Security Commissioner Jo Anne B. Barnhart's ("the Commissioner") determination that Tella is not entitled to disability benefits. (Pl.'s Mem. at 2.) In his Motion for Summary Judgment, filed on July 18, 2005 [Doc. No. 13], Tella asks this Court to reverse Administrative Law Judge ("ALJ") James S. Carletti's finding on June 27, 2003 that Plaintiff possesses transferable skills to perform other work and is therefore not entitled to disability benefits. (Pl.'s Mem. at 2.) The ALJ's decision became the commissioner's final agency decision on January 7, 2005, when the Social Security Administration ("SSA") Appeals Council denied Plaintiff's request for review. (Tr. 140-142.) Tella seeks a reversal of the Commissioner's determination and remand for calculation of benefits. (Pl.'s Mem. at 2.)
Plaintiff filed a Motion for Summary Judgment on July 18, 2005. [Doc. No. 13.] The Commissioner filed a Cross-Motion for Summary Judgment on August 17, 2005. [Doc. No. 15.] Plaintiff filed an opposition on September 6, 2005. [Doc. No. 17.] After reviewing the record and the parties' memoranda, the Court finds the matter suitable for decision without oral argument. See S.D. Cal. Civ. L.R. 7.1 (d) (1).
For the reasons set forth below, the Court recommends that Plaintiff's Motion for Summary Judgment be DENIED, and that the Commissioner's Cross-Motion for Summary Judgment be GRANTED.
I. BACKGROUND
Tella was born on October 20, 1943. (Tr. 41.) He received a bachelor's degree in food technology in Baghdad and came to the United States in 1983. (Tr. 22.) From 1983 until 1993, he worked as a manager and stock person in a liquor store; as a manager of a video rental store; and as a stocker, cashier and laborer. (Tr. 12.)
On December 25, 1993, Tella was mugged and fell backward onto the ground. (Tr. 24.) As a result of this fall, Tella complained of pain, swelling, and instability in his right knee. (Tr. 24, 90, 94.) Tella made a few brief, unsuccessful attempts to return to work shortly after the assault. However, Tella has not worked since that time. (Tr. 24-25.)
Tella filed an application for disability insurance benefits ("DIB") on August 4, 1994 and an application for supplemental security income ("SSI") on January 18, 1995, alleging disability since December 26, 1993. (Tr. 41-45, 60-61.) Tella's applications were denied by the ALJ on June 14, 1996. (Tr. 8-17.) On June 24, 1996, Tella filed a request for review of the ALJ's decision with the Appeals Council, and on October 27, 1997, the Appeals Council denied review. (Tr. 5-7, 3-4.) Tella appealed the ALJ's decision to the District Court, and on August 29, 2001, Magistrate Judge Cynthia G. Aaron recommended that the case be remanded to the Commissioner for further proceedings, specifically, to determine whether Plaintiff was disabled under step five of the sequential evaluation process, and if so, the date of the onset of the disability. (Tr. 184-206.) On October 1, 2001, District Judge Judith N. Keep remanded this matter to the ALJ for further proceedings consistent with the magistrate judge's report. (Tr. 208-209.)
Subsequent to the order to remand, a hearing was held before the ALJ on February 14, 2003, at which Tella, a medical expert, and a vocational expert appeared and testified. (Tr. 171.) On June 27, 2003, the ALJ issued a decision denying Tella's applications. (Tr. 170.) The ALJ found that although Tella could not perform any of his past work, he possessed skills transferable to other work and was therefore not under a disability at any time through December 31, 1993 or through April 30, 2001. (Tr. 180-181.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied review on January 7, 2005. (Tr. 140-142.)
Based on a subsequent SSI application filed on May 31, 2001, Tella was found disabled and was granted SSI benefits as of May 1, 2001. Therefore, the period at issue in this case is from December 26, 1993 through April 30, 2001. (Tr. 171.)
Tella then commenced this action on February 28, 2005, when he filed a Complaint.
II. HEARING
The administrative hearing began on February 14, 2003. Tella; Dr. William Temple, the SSA's medical expert; and Mary Jesko, the SSA's vocational expert, all testified. (Tr. 449.)
Tella testified that he had not worked since 1993. (Tr. 454.) He indicated that the top of his head was the area most affected by his headaches. (Tr. 459.) He indicated that he had previously worked as a store manager at a video rental store; as an owner/manager of a dry-cleaning business; and as a manager, cashier and stocker of a liquor store. (Tr. 462, 465.) Tella testified that he had operated a cash register at the liquor store, which mainly operated in cash. (Tr. 469.) He also cashed customers' checks upon the authorization of the manager. (Tr. 470.)
Dr. Temple, the medical expert, testified that although Tella had experienced problems with his cervical spine, right knee and lumbar spine, none of those problems met or equaled an impairment listed in the Social Security Regulations. (Tr. 457.) He further testified that Tella could lift up to 20 pounds occasionally and up to 10 pounds frequently and could stand and walk for two out of eight hours, but should not be required to use foot controls with his right foot. (Tr. 458.) He also suggested that Tella not be required to be on ramps, since that would put extra stress on Tella's knee. (Tr. 458.) Dr. Temple further stated that Tella should be limited to occasional use of stairs; refrain from using ladders, scaffolding, or ropes; be limited to occasional bending, stooping and crouching; refrain from crawling; and refrain from looking above eye level. (Tr. 458.)
Mary Jesko, the vocational expert ("VE"), testified that Plaintiff could perform other work as a "check cashier." (Tr. 473.) In response to a request by Tella's attorney, the VE prepared a handwritten list in which she assigned various codes and definitions to Tella's past relevant work and to the check cashier position. (Tr. 243.) The information provided by the VE is summarized as follows: Tella's Past DOT SVP Work Field MPSMS Relevant Work Dry Cleaner 361.137-010 6 031 906 Drop-Off Supervisor, Laundry Video Rental 185.167-046 7 292 881 Store, Part Time Manager, Retail Manager Store 211.462.014 3 221 881 Cashier-Checker Liquor Store 185.167-046 7 292 881 Manager/Cashier/ Manager, Retail Stock Store 211.462-014 3 221 881 Cashier-Checker 299.367.014 4 221 881 Stock Clerk Stocker and 299.367-014 4 221 881 Cashier Stock Clerk 211.462-014 3 221 881 Cashier-Checker Other Work That Tella Can Perform Check Cashier 211.462-026 3 232 899 Check Cashier The VE testified that nationally, about 400,000 sedentary check cashier positions exist, and locally, between 450 and 550 positions exist. (Tr. 474.)
On June 27, 2003, the ALJ issued a written opinion, finding that: (1) Tella met the disability insured status requirements from December 26, 1993 to December 31, 1994, but not thereafter; (2) Tella had not worked since December 26, 1993; (3) Tella had severe degenerative disc disease of the cervical spine, back strain, and right knee strain, but did not have an impairment or combination of impairments listed in the Social Security Regulations; (4) Tella's allegations of debilitating pain for the period in question were not fully credible; (5) Tella had the residual functional capacity to perform the physical exertion and nonexertional requirements of work, with the limitation of lifting and carrying up to 20 pounds occasionally or up to 10 pounds frequently and standing/walking for no more than two hours in an eight-hour work day; (6) Tella could not perform his past relevant work as a dry cleaner manager, video rental store manager, liquor store manager and cashier, or stocker/cashier; (7) Tella's future work was limited in that he cannot use foot controls with the right foot and cannot climb ladders, ropes, or scaffolds; should climb stairs and crouch only occasionally; should not crawl; and cannot perform overhead work; (8) Tella had acquired work skills, such as receiving and disbursing money/recording transactions, use of cash registers, knowledge and skill associated with U.S. currency standards; processes associated with cash handling and disbursement of cash, receiving and making change, use of tools/processes to record transactions and receiving payment for goods, which he demonstrated in past work, and which, considering his residual functional capacity, could be applied to meet the requirements of sedentary work activities of other work; (9) Tella was not disabled; (10) although Tella could not perform the full range of sedentary work, there were a significant number of jobs he could perform, such as check cashier; and (11) Tella was not under a disability, as defined in the Social Security Act, at any time through December 31, 1993 or through April 30, 2001. (Tr. 180-181.)
The ALJ concluded that Tella was not entitled to disability benefits or SSI payments from his alleged onset date of December 26, 1993 through his date last insured of December 31, 1993, or through April 30, 2001. (Tr. 179.) Tella appealed the ALJ's decision to the Social Security Administration, which declined to assume jurisdiction. (Tr. 140.)
III. RELEVANT LAW
The Social Security Regulations employ a five-step process to determine whether an applicant is disabled under the Act. The only step at issue in this case is step five, because Tella only disputes the ALJ's finding that he possesses transferable skills. (Pl.'s Mem. at 2.) At step five, the burden of proof shifts to the Commissioner. See Federal Old-Age, Survivors and Disability Insurance (1950-1999), 20 C.F.R. § 404.1520 (1999). Step five considers the following questions and factors:
Step 5. Is the claimant able to do any other work? If not, then the claimant is "disabled" and therefore entitled to disability insurance benefits. If the claimant is able to do other work, then the Commissioner must establish that there are a significant number of jobs in the national economy that claimant can do. There are two ways for the Commissioner to meet the burden of showing that there is other work in "significant numbers" in the national economy that claimant can do: (1) by the testimony of a vocational expert, or (2) by reference to the Medical-Vocational Guidelines . . . If the Commissioner meets this burden, the claimant is "not disabled" and therefore not entitled to disability insurance benefits. If the Commissioner cannot meet this burden, then the claimant is "disabled" and therefore entitled to disability insurance benefits.
Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999) (footnotes and citations omitted).
Unsuccessful applicants may seek judicial review of a final agency decision of the Commissioner. 42 U.S.C. §§ 405(g), 421, 1383b(a) (West Supp. 2001). The scope of judicial review is limited. The Commissioner's denial of benefits "will be disturbed only if it is not supported by substantial evidence or it is based on legal error." Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988) (citing Green v. Heckler, 803 F.2d 528, 529 (9th Cir. 1986)).
Substantial evidence means "more than a mere scintilla" but less than a preponderance of the evidence. Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) (citation omitted). "[I]t is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). The court must consider the record as a whole, weighing both the evidence that supports and detracts from the Commissioner's conclusions. See Desrosiers v. Secretary of Health Human Services, 846 F.2d 573, 576 (9th Cir. 1988). If the evidence supports more than one rational interpretation, one of which is the ALJ's, the court must uphold the ALJ's decision. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). When the evidence is inconclusive, "questions of credibility and resolution of conflicts in the testimony are functions solely of the Secretary." Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). Even if the reviewing court finds that substantial evidence supports the ALJ's conclusions, the court must set aside the decision if the ALJ failed to apply the proper legal standards in weighing the evidence and reaching his or her decision. See Benitez v. Califano, 573 F.2d 653, 655 (9th Cir. 1978).
A court may enter a judgment affirming, modifying, or reversing the Commissioner's decision. See 42 U.S.C. § 405(g); see also 42 U.S.C. § 1383(c) (3) (making § 405(g) applicable to SSI). The reviewing court may also remand the matter to the Social Security Administrator for further proceedings. Id.
IV. DISCUSSION
Tella claims that he does not possess transferable skills, and that Ms. Jesko, the VE, used an incorrect methodology to determine that he has skills that are transferable to meet the requirements of other work. (Pl.'s Mem. at 7.) Specifically, Tella argues that the VE erred because the "work field" codes and the "MPSMS" codes of Tella's past work do not exactly match those of the check cashier work identified by the VE as other work that Tella could perform. (Pl.'s Mem. at 5-11.)
To support his argument, Tella cites several articles, none of which carries the force of law in this Court.
An ALJ can find a claimant's acquired skills are transferable to other jobs "when the skilled or semi-skilled work activities [the claimant] did in past work can be used to meet the requirements of skilled or semi-skilled work activities of other jobs or kinds of work. This depends largely on the similarity of occupationally significant work activities among different jobs." 20 C.F.R. § 404.1568 (d) (1). The Code of Federal Regulations instructs that in order to determine whether someone possesses transferable skills, i.e., whether someone has skills that can be used in other work, the ALJ must consider whether the other work involves: (1) the same or a lesser degree of skill; (2) the same or similar tools and machines; and (3) the same or similar raw materials, products, processes, or services. 20 C.F.R. § 404.1568 (d) (2); Soc. Sec. Ruling 82-41, 1982 WL 31389, at *5 (1982). In determining whether a claimant's past skills sufficiently match up to other kinds of work, the Regulations specifically state that "a complete similarity of all three factors is not necessary for transferability." 20 C.F.R. § 404.1568 (d) (3). Social Security Ruling 82-41 also provides that "close attention must be paid to the actual complexities of the job in dealing with data, people, or objects and to the judgments required to do the work," and that "in evaluating the skill level of [prior relevant work] or potential occupations, work activities are the determining factors." Soc. Sec. Ruling 82-41, 1982 WL 31389, at *2, 3. Notably, neither the Regulations nor the pertinent Social Security Ruling on transferability of work skills make any mention of work field or MPSMS codes. See 20 C.F.R. § 404.1568; Soc. Sec. Ruling 82-41.
Social Security Ruling 82-41 provides further:
When a finding is made that a claimant has transferable skills, the acquired work skills must be identified, and specific occupations to which the acquired work skills are transferable must be cited in the State agency's determination or ALJ's decision. Evidence that these specific skilled or semiskilled jobs exist in significant numbers in the national economy should be included. This evidence may be . . . based on expert personal knowledge or substantiation by information contained in the publications listed in regulations sections 404.1566 (d) and 416.966 (d).
Soc. Sec. Rul. 82-14, 1982 WL 31389, at *7. An ALJ "may take administrative notice not only of the [DOT], but also of various publications issued by the Bureau of the Census, the Social Security Administration, and state employment agencies." See 20 C.F.R. § 404.1566.
In conducting its review of the relevant authorities, the Court found no published federal social security decision that included any requirement that the work field codes or the MPSMS codes of a claimant's past work exactly match those of other work that the claimant can perform. Rather, courts in the Ninth Circuit have conducted transferability analyses by considering DOT definitions and the SVP time, along with the actual job skills and activities themselves, just as was done by the ALJ in the current case.See, e.g., Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990); Saulsberry v. Chater, 959 F.Supp. 1247, 1251 (C.D. Cal. 1997); Vertigan v. Halter, 260 F.3d 1044, 1052 (9th Cir. 2001). See also Villa v. Heckler, 797 F.2d 794, 798 (9th Cir. 1986) ("The Secretary may rely on the general job categories of the [DOT], with its supplementary Selected Characteristics, as presumptively applicable to a claimant's prior work."); 20 C.F.R. § 404.1566 (d) (1) (DOT is the Secretary's primary source of reliable job information).
In determining that Tella's skills were transferable in this case, the ALJ relied on the VE's testimony that the skills Tella acquired from his past work were transferable to a position as a check cashier. The VE compared Tella's past work with the check cashier position as follows:
Past work involves total 4 year 7 month work exposure as manager and manager/owner-retail. Duties as manager included significant cashier (receiving and dispersing [sic] money/recording transactions) and use of cash registers, knowledge and skill associated with U.S. currency standards (forms and values of U.S bills/coins) and processes associated with cash handling disbursement of cash, receiving and making change and use of tools/process to record transactions. Receives payment for goods. Additionally, claimant worked as a retail casher 2 years and 9 months (nonmanagement). Both cashier positions (checker-cashier and check cashier) use similar tools (cash register) and utilize similar material (cash), process (cash disbursement) and qualify for transfer because they contain the same or lesser degree of skill (both SVP-3), requiring very little vocational adjustment. Both jobs contain very close similarity in this regard.
(Tr. 245.)
According to the DOT, a check cashier "cashes checks, prepares money orders, receives payment for utilities bills, and collects and records fees charged for check-cashing service. May receive payment and issue receipts for such items as license plates."DOT, 211.462-026. The SVP for the check cashier position is 3, which means it takes between thirty and ninety days to learn the job. DOT at 167; Selected Characteristics at 225. The SVP rankings for Tella's past relevant work ranged from 3 to 7, and thus took the same amount of time, or longer, to learn. (Tr. 243.) Although the work field and MPSMS numbers of Tella's past relevant work and the check cashier position do not match exactly, there is no requirement that they do so. It is clear under the applicable law that Tella's relevant past work and the check cashier position, identified as other work that Tella can perform, require the same or a lesser degree of skill; use of the same or similar tools and machines; and use of the same or similar raw materials, products, processes, or services. See 20 C.F.R. § 404.1568 (d) (2). Therefore, Tella possessed skills transferable to other work.
The Court accordingly concludes that the ALJ applied the proper legal standards, and that the ALJ's finding that Tella possessed transferable skills is supported by substantial evidence. See Brawner, 839 F.2d at 433.
VII. CONCLUSION
For the reasons set forth above, Plaintiff's Motion for Summary Judgment or Remand should be DENIED, and The Commissioner's Cross-Motion for Summary Judgment should be GRANTED.
This report and recommendation will be submitted to the Honorable Roger T. Benitez, United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b) (1). Any party may file written objections with the Court and serve a copy on all parties on or before February 17, 2006. The document should be captioned "Objections to Report and Recommendation. "Any reply to the objections shall be served and filed on or before March 3, 2006. The parties are advised that failure to file objections within the specified time may waive the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.