                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          FEB 18 2005
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    MARY J. OGLE,

                Plaintiff-Appellant,

    v.                                                   No. 04-6129
                                                   (D.C. No. 01-CV-1104-L)
    JO ANNE B. BARNHART,                                 (W.D. Okla.)
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before BRISCOE , ANDERSON , and MURPHY , 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      This order and judgment is not binding precedent, except under the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.
      Plaintiff-appellant Mary J. Ogle appeals the district court’s order affirming

the Commissioner’s decision to deny her application for social security disability

benefits. She alleges disability as of the date she was last insured, December 31,

1998, due to fibromyalgia, thoracic outlet syndrome, anxiety, and pain in her

back, hip, legs, arms, shoulder, and neck. 1 At step five of the five-step sequential

evaluation process, see Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988)

(discussing five steps), an administrative law judge (ALJ) determined that

Ms. Ogle could perform a limited range of semi-skilled, sedentary work that

existed in significant numbers in the regional and national economies.

Accordingly, the ALJ held that Ms. Ogle was not disabled within the meaning of

the Social Security Act and was, therefore, not entitled to disability benefits. We

have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291. We reverse and

remand for further proceedings.

      On appeal, Ms. Ogle asserts that the ALJ erred (1) in determining that she

had transferable skills, (2) in considering as past relevant work her job as a dog

groomer, and (3) by relying on vocational testimony about the jobs she could

perform, even though the testimony was at odds with the Dictionary of

Occupational Titles (DOT).


1
        Ms. Ogle must establish the onset of disability prior to the date her insured
status expired. Henrie v. United States Dep’t of Health & Human Servs.      , 13 F.3d
359, 360 (10th Cir. 1993).

                                         -2-
                                 Standards of Review

      We review the Commissioner’s decision to determine whether the factual

findings are supported by substantial evidence and whether the correct legal

standards were applied. Threet v. Barnhart, 353 F.3d 1185, 1189 (10th Cir.

2003). “Substantial evidence is such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Hamlin v. Barnhart, 365 F.3d

1208, 1214 (10th Cir. 2004) (further quotation omitted). We conclude that the

Commissioner’s decision is not supported by substantial evidence, so we reverse

and remand for further proceedings.

                                  Transferable Skills

      Ms. Ogle first argues that the ALJ erred in determining that she had

acquired skills and in finding that those skills would transfer to other jobs that she

could perform. A claimant who has transferable skills has “a special advantage

over unskilled workers in the labor market.”      Dikeman v. Halter , 245 F.3d 1182,

1184 (10th Cir. 2001) (quotation omitted). As of the date she was last insured for

disability, Ms. Ogle was fifty-three years old, with a high-school education.

Therefore, the finding that she had transferable skills was critical to the ultimate

determination that she was not disabled.       Compare 20 C.F.R. Pt. 404, Subpt. P,

App. 2, § 201.14 (grid stating claimant aged 50-54 with high-school diploma but




                                           -3-
no transferable skills is “disabled”),   with id. § 201.15 (grid stating same claimant

with transferable skills is “not disabled”);     see also Dikeman , 245 F.3d at 1184.

       The ALJ apparently adopted the Vocational Expert’s (VE) testimony that

Ms. Ogle had acquired skills in her past work as a shipping clerk, distribution

clerk, and dog groomer that were transferable to other semi-skilled, sedentary

work. See Aplt. App. Vol. II, at 18. The VE testified that Ms. Ogle’s

transferable skills were “record keeping,” “computer operations,” and “customer

service, interpersonal type skills, working with the public on more than a

superficial basis.”   Id. at 39.

       Ms. Ogle’s testimony about her past work was almost nonexistent, but at

step five, the burden was not on her “to produce or develop vocational evidence.”

Haddock v. Apfel , 196 F.3d 1084, 1088 (10th Cir. 1999). Her only testimony

about her past work was her statement that on the last day she worked as a

shipping clerk, she “was working on the boxing machine, [and] prior to that [she]

was filling orders.” Aplt. App. Vol. II, at 30. The ALJ asked no questions about

Ms. Ogle’s past work. The documentary evidence in the record about her past

work is limited to her vocational report, which includes a very brief, general

statement about three of her past jobs. Her description of her “computer

operations,” was merely, “[t]ook orders from customers by computer or by hand.”

Id. at 93. As for her “record keeping” experience, she wrote, “I owned [dog


                                               -4-
grooming] shop, therefore, I kept daily and tax records.”   Id. at 95. These

“skeleton description[s]” of Ms. Ogle’s past jobs are insufficient “to document

[her] acquisition of skills.”   Dikeman , 245 F.3d at 1185 (quotation omitted).

       We next consider the skills of “customer service, interpersonal type skills,

working with the public on more than a superficial basis.” As with the other

identified skills, the record does not support a finding that Ms. Ogle acquired

these skills. Moreover, because the record does not contain a description of the

work she performed, it is unclear whether Ms. Ogle’s past work in customer

service qualifies as a skill.

              The Commissioner has defined 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. This includes activities like making
       precise measurements, reading blueprints, and setting up and
       operating complex machinery.”

Dikeman , 245 F.3d at 1184-85 (quoting Soc. Sec. Rul. 82-41, 1982 WL 31389,

at *2); see also Frey v. Bowen , 816 F.2d 508, 518 (10th Cir. 1987) (deeming

“understanding,” “common sense,” and “logic” aptitudes or traits; ALJ’s reliance

on them as transferable skills was error of law). Therefore, after evaluating the

work Ms. Ogle did in the area of customer service, the ALJ should determine if

she acquired actual skills, and if so, whether they are transferable.

                                            -5-
                                      Dog-Groomer Job

       Ms. Ogle next asserts that the ALJ erred in considering her past work as a

dog groomer and owner of the dog-grooming business as past work experience

with transferable skills. She maintains that she had not done this work as

substantial gainful activity within the previous fifteen years, so it could not be

considered. “[W]ork experience applies when it was done within the last 15

years.” 20 C.F.R. § 404.1565(a). In addition, the work must have qualified as

substantial gainful activity.   Id.

       Ms. Ogle’s vocational report states that she did this job from April 1982

through November 1985 and that it was “seasonal work.” Aplt. App. Vol. II,

at 91. The years 1984 and 1985 fall within the covered period because they are

within fifteen years of her date last insured, December 31, 1998. Ms. Ogle

argues, however, that her income for the years 1984 and 1985 was too low to

qualify as substantial gainful activity. The only evidence of her income is a list

of her annual income for each year from 1977 through 1999, showing $3362 from

self-employment for 1984, and $2895 from self-employment for 1985.         Id. at

76-78. These figures alone are insufficient to determine that Ms. Ogle’s dog-

grooming work was substantial gainful activity.

       The record contains almost no information about Ms. Ogle’s work

experience as a dog groomer and business owner. The ALJ did not elicit any


                                            -6-
testimony on the topic. The only evidence is found in her brief statement, quoted

above, that she owned the shop and kept daily and tax records.      Id.at 95. This

scant evidence could not permit the ALJ to evaluate whether Ms. Ogle’s dog

groomer job qualified as substantial gainful activity, either as an employee or a

self-employed person.    See 20 C.F.R. § 404.1574(b)(6) (stating that where

employee’s earnings were too low to qualify as substantial gainful employment,

but too high to meet the presumption that the work did not qualify, other

information must be considered);       id. § 404.1575 (explaining how to evaluate self-

employment). On remand, the ALJ should develop the record sufficiently to

permit him to ascertain whether Ms. Ogle’s past work in the dog-grooming

business qualified as substantial gainful activity. If he determines it did qualify,

the ALJ should explain his analysis.      See Kepler v. Chater , 68 F.3d 387, 391 (10th

Cir. 1995) (holding “administrative agencies must give reasons for their

decisions”) (quotation omitted).

                        Conflict between the VE and the DOT

      Finally, Ms. Ogle contends that the vocational testimony about jobs she

could perform with the limitations found by the ALJ was at odds with the

descriptions given in the DOT. Because we have determined that the case must

be remanded to evaluate Ms. Ogle’s transferable skills and to determine if her

past experience in the dog-grooming business qualifies as substantial gainful


                                             -7-
activity, we need not decide whether the VE’s testimony conflicted with the DOT.

On remand, the ALJ should “ask the [VE] how his or her testimony as to the

exertional requirement of identified jobs corresponds with the [DOT], and elicit a

reasonable explanation for any discrepancy on this point.”    Hackett v. Barnhart ,

395 F.3d 1168, 1175, (10th Cir. 2005) (quoting     Haddock , 196 F.3d at 1087).

                                      Conclusion

      We REVERSE the judgment of the district court and REMAND the action

to the district court with directions to remand to the Commissioner for further

proceedings consistent with this order and judgment.



                                                       Entered for the Court



                                                       Stephen H. Anderson
                                                       Circuit Judge




                                           -8-
