Surkand v. Barnhart

U.S. Court of Appeals for the Fifth Circuit

Surkand v. Barnhart

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-31444 Summary Calendar

FLORENCE JOY SURKAND,

Plaintiff-Appellant,

versus

JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 00-CV-3175-C -------------------- September 30, 2002

Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Florence J. Surkand appeals the district court’s dismissal

of her

42 U.S.C. § 405

(g) complaint seeking review of the denial

of disability benefits. Surkand challenges the determination of

the Administrative Law Judge (“ALJ”) that she had transferable

skills.

This court’s review of the Commissioner’s decision “is

limited to determining whether that decision is supported by

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 01-31444 -2-

substantial evidence and whether the proper legal standards were

applied.” Ripley v. Chater,

67 F.3d 552, 555

(5th Cir. 1995).

For individuals of “advanced age” with impairments limiting

them to sedentary or light work, the Commissioner must show that

the individual acquired skills in his past work that are

transferable to skilled or semiskilled work. See

20 C.F.R. § 404.1568

(d)(4);

20 C.F.R. § 404

, Subpart P, App. 2, Rules

201-02 (Table No. 1). A claimant has transferable skills “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.”

20 C.F.R. § 404.1568

(d)(1).

The vocational expert (VE) considered the “extensive use of

the telephone, [and] being able to interact with individuals on

the telephone” as skills from Surkand’s prior work that were

transferable to a job as an appointment clerk or receptionist.

He additionally testified that the adjustment to such positions

would not be difficult for Surkand because the positions would

require a “more restricted use of [her] prior skill.” Based on

this testimony, the ALJ “concluded that considering Ms. Surkand’s

age, educational background, work experience, and residual

functional capacity, she is capable of making a successful

adjustment to work which exists in significant numbers in the

national economy.” The ALJ’s findings comport with the

applicable regulations and are supported by substantial evidence. No. 01-31444 -3-

See

20 C.F.R. § 404.1568

(d); Vaughan v. Shalala,

58 F.3d 129, 132

(5th Cir. 1995).

Surkand argues, however, that the ALJ was also required to

determine that the skill provides “an advantage so meaningful

that it outweighs [her] adversities in RFC, age, and/or education

when competing in the labor market.” Surkand’s argument is

without merit. Social Security Ruling 82-41 and the training

guide issued by the Regional Commissioner in Atlanta, upon which

Surkand’s argument is based, do not impose such a requirement on

the ALJ.

Although Surkand also challenges the VE’s determination,

adopted by the ALJ, that her ability “to interact with

individuals on the telephone,” is a skill, she fails to brief

this issue on appeal. See Yohey v. Collins,

985 F.2d 222, 225

(5th Cir. 1993). Therefore, the issue is deemed abandoned.

Based on the foregoing, the judgment of the district court

is AFFIRMED.

Reference

Status
Unpublished