FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEFFERY J. BARNES,

Plaintiff-Appellant,

v.

NANCY A. BERRYHILL, Acting 

Commissioner Social Security,

Defendant-Appellee.

No. 16-35815

D.C. No.

3:15-cv-01424-

SI

OPINION

Appeal from the United States District Court

for the District of Oregon

Michael H. Simon, District Judge, Presiding

Argued and Submitted May 11, 2018

Portland, Oregon

Filed July 13, 2018

Before: Johnnie B. Rawlinson and Morgan Christen, 

Circuit Judges, and Frederic Block, District Judge.*

Opinion by Judge Block

 * The Honorable Frederic Block, Senior United States District Judge 

for the Eastern District of New York, sitting by designation.
2 BARNES V. BERRYHILL

SUMMARY**

Social Security

The panel reversed the district court’s judgment 

affirming the Commissioner of Social Security’s denial of 

an application for disability insurance benefits and 

supplemental security income under the Social Security Act, 

and remanded for further proceedings.

The panel held that the administrative law judge’s 

(“ALJ”) failure to make written findings regarding 

transferability of skills, required by Social Security Ruling 

82-41, prevented the panel from determining whether 

substantial evidence supported the ALJ’s determination at 

Step Five of the sequential evaluation process that claimant 

was able to perform other work and therefore was not 

disabled under the Act. The panel held that neither the ALJ 

nor the vocational expert stated what skills, if any, claimant 

had acquired from his past work and whether those skills 

were transferable to the semi-skilled jobs identified by the 

vocational expert. The panel concluded that SSR 82-41 

obligated the ALJ to make transferability of skills findings.

 ** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
BARNES V. BERRYHILL 3

COUNSEL

Lindsey Craven (argued) and Merrill Schneider, Schneider 

Kerr & Robichaux, Portland, Oregon, for PlaintiffAppellant.

Thomas M. Elsberry (argued), Special Assistant United 

States Attorney; Erin F. Highland, Assistant Regional 

Counsel; Matthew W. Pile, Acting Regional Chief Counsel,

Seattle Region X; Office of the General Counsel, Social 

Security Administration, Seattle, Washington; Janice E. 

Hebert, Assistant United States Attorney; Billy J. Williams, 

United States Attorney; United States Attorney’s Office, 

Seattle, Washington; for Defendant-Appellee.

OPINION

BLOCK, District Judge:

Jeffrey Barnes appeals the district court’s judgment 

affirming the Commissioner of Social Security’s 

(“Commissioner”) decision denying his application for 

disability insurance benefits (“DIB”) and supplemental 

security income (“SSI”). Barnes argues that the 

Administrative Law Judge (“ALJ”) erred at Step Five of his 

disability determination by failing to make specific written 

findings regarding transferability of skills as required by 

Social Security Ruling (“SSR”) 82-41. We last addressed 

the scope of SSR 82-41 in Bray v. Commissioner of Social 

Security Administration, 554 F.3d 1219, 1223–26 (9th Cir. 

2009).

We now revisit the subject to consider a question that did 

not arise in Bray: whether SSR 82-41 obligates the ALJ to 
4 BARNES V. BERRYHILL

make transferability of skills findings where, unlike Bray, no 

Grid rule states that a person with the claimant’s age, 

education, and work experience is disabled absent 

transferable skills.1 We hold that it does and reverse and 

remand for further proceedings.

Background

In March 2012, Barnes filed an application for DIB and 

SSI, alleging disability from multiple impairments, 

including chronic pain and swelling in his left leg and 

respiratory disease that required the use of supplemental 

oxygen. He has a high school education and worked 

previously as a machinist, a skilled position, and an offbearer, an unskilled position.2 The Social Security 

Administration (“the Administration”) denied Barnes’s 

application, and, on December 31, 2013, he had a hearing 

before an ALJ. At the time of the hearing, Barnes was 

47 years old.

The ALJ issued a written decision on January 15, 2014. 

Applying the familiar five-step process,3 the ALJ 

 1 The Medical-Vocational Guidelines, commonly known as the 

“Grids,” are listed at 20 C.F.R. Part 404, Subpart P, Appendix 2.

2 The parties do not dispute the nature of Barnes’s work experience.

3 The five-step inquiry entails the following questions: “(1) whether 

the claimant presently works in substantial gainful activity; (2) whether 

the claimant’s impairment, or a combination of impairments, qualifies as 

severe; (3) whether the impairment, or combination of impairments, 

equals an impairment listed in the regulations; (4) whether the claimant’s 

residual functional capacity allows her to perform her past relevant work; 

and (5) whether significant numbers of jobs exist in the national 

economy that the claimant can perform.” Popa v. Berryhill, 872 F.3d 

901, 905–06 (9th Cir. 2017) (citing 20 C.F.R. § 416.920). The claimant 
BARNES V. BERRYHILL 5

determined that (1) Barnes had not engaged in substantial 

gainful activity since the alleged onset date; (2) his morbid 

obesity, respiratory diseases, disorders affecting his leg, 

alcohol abuse, hypertension, and mental disorders were 

severe impairments; but (3) those impairments did not meet 

or medically equal the criteria of a listing.

Before reaching Step Four, the ALJ found Barnes had 

the residual functional capacity (“RFC”) to perform 

sedentary work with several restrictions. For example, he 

needed to “sit or stand for 2 to 3 minutes at a time at 30 to 

45 minute intervals, during which period he may remain on 

task,” could never climb ladders, ropes, or scaffolds, and had 

to avoid even moderate exposure to potential respiratory 

irritants. Applying that RFC, the ALJ concluded at Step 

Four that Barnes was unable to perform his past relevant 

work as a machinist and an off-bearer.

At Step Five, the ALJ stated that Grid rules 201.21 and 

201.28 would direct a finding of “not disabled” based on 

Barnes’s age, education, and work experience. However, he 

acknowledged that the Grids could be used only as 

framework because “additional limitations” made Barnes 

unable to perform the full range of sedentary work. The ALJ 

therefore called upon a vocational expert (“VE”), who 

testified that someone with Barnes’s age, education, work 

experience, and RFC could perform two representative jobs 

that existed in significant numbers in the national economy: 

“semi-conductor assembler” and “production clerk.” Both 

are semi-skilled positions.

 bears the burden of proof at Steps One through Four, but the burden shifts 

to the Commissioner at Step Five. Tackett v. Apfel, 180 F.3d 1094, 1098 

(9th Cir. 1999).
6 BARNES V. BERRYHILL

Neither the ALJ nor the VE stated what skills, if any, 

Barnes had acquired from his past work and whether those 

skills were transferable to the semi-skilled jobs identified. 

The ALJ simply stated, “Transferability of job skills is not 

material to the determination of disability because using the 

Medical-Vocational Rules as a framework supports a finding 

that the claimant is ‘not disabled,’ whether or not the 

claimant has transferable job skills.”

Based on the VE’s testimony, the ALJ concluded Barnes 

was able to perform other work and therefore was not 

disabled. The Appeals Council denied Barnes’s request for 

review, making the ALJ’s decision final. The district court 

affirmed, concluding: “Because the Grids direct a finding of 

‘not disabled’ regardless of whether Plaintiff has 

transferable skills, the ALJ was not required to decide 

whether Plaintiff’s job skills were transferable.” Barnes v. 

Colvin, 2016 WL 8674616, at *5 (D. Or. Aug. 12, 2016). 

Barnes timely appealed.

STANDARD OF REVIEW

We review a district court’s affirmance of the 

Commissioner’s disability determination de novo, asking 

whether the decision was “supported by substantial evidence 

and a correct application of the law.” Lamear v. Berryhill, 

865 F.3d 1201, 1204 (9th Cir. 2017) (quoting Valentine v. 

Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 

2009)).

DISCUSSION

SSR 82-41 states:

When the issue of skills and their 

transferability must be decided, the . . . ALJ 
BARNES V. BERRYHILL 7

is required to make certain findings of fact 

and include them in the written decision. 

Findings should be supported with 

appropriate documentation.

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 . . . ALJ’s 

decision. . . . It is important that these 

findings be made at all levels of adjudication 

to clearly establish the basis for the 

determination or decision for the claimant 

and for a reviewing body including a Federal 

district court.

SSR 82-41, 1982 WL 31389, at *7. “SSRs do not carry the 

‘force of law,’ but they are binding on ALJs nonetheless.” 

Bray, 554 F.3d at 1224 (quoting Quang Van Han v. Bowen, 

882 F.2d 1453, 1457 & n.6 (9th Cir. 1989)).

Here, transferability of skills was a dispositive issue. 

Semi-skilled work requires “some skills.” See 20 C.F.R. 

§§ 404.1568(b), 416.968(b). The issue of skills and their 

transferability therefore needed to be decided before the ALJ 

could find Barnes not disabled based on his ability to 

perform semi-skilled work.4

 4 The ALJ’s finding that Barnes could perform two semi-skilled jobs 

does not support the inference that he could also perform unskilled jobs. 

See SSR 83-12, 1983 WL 31253, at *4 (“Unskilled types of jobs are 

particularly structured so that a person cannot ordinarily sit or stand at 

will.”).
8 BARNES V. BERRYHILL

Although Barnes’s past relevant work included a skilled 

job, the ALJ made no finding regarding what skills, if any, 

Barnes had acquired from that work and whether his skills 

were transferable to semi-skilled work as a “semi-conductor 

assembler” or “production clerk.” The ALJ therefore erred 

by failing to make the written findings required by SSR 82-

41.

The Commissioner argues transferability of skills was 

not material because the Grids “directed a finding of ‘not 

disabled’ whether or not Barnes had transferable skills.”5 In 

addition to the two Grid rules cited by the ALJ, she relies on 

Grid rules 201.22 and 201.29. Together, these four rules 

provide that a “younger individual age 45–49” or a “younger 

individual age 18–44” with the ability to perform the full 

range of sedentary work, a high school education, and skilled 

or semi-skilled past relevant work is not disabled whether he 

has transferable skills or no transferable skills. See 20 C.F.R. 

Part 404, Subpart P, App’x 2, rules 201.21–.22 (“younger 

individual age 45–49”) and 201.28–.29 (“younger individual 

age 18–44”). The argument is without merit. To explain 

why, we consider how the Grids apply in the case of an 

 5 An agency’s interpretation of a statute it administers may be 

entitled deference even when it appears in a legal brief. See Auer v. 

Robbins, 519 U.S. 452, 462–63 (1997). However, the Commissioner’s 

present position departs from the agency’s statement in Bray that 

“[t]ransferability of skills is an issue whenever a vocational expert 

identifies any semiskilled or skilled jobs which a claimant can perform.” 

Brief for Comm’r at 24, Bray v. Comm’r of Soc. Sec. Admin, 554 F.3d 

1219 (9th Cir. 2009), 2007 WL 1577347. The unexplained shift provides 

reason to believe that the Commissioner’s present interpretation is a 

“post hoc rationalization” rather than a “fair and considered judgment.” 

Auer, 519 U.S. at 462. Deference is therefore unwarranted.
BARNES V. BERRYHILL 9

individual who, like Barnes, is unable to perform the full 

range of sedentary work.

The Grids were designed to relieve the Commissioner of 

the need to rely on a vocational expert in every case to 

establish the number of jobs available to a person with the 

claimant’s physical ability, age, education, and work 

experience. See Heckler v. Campbell, 461 U.S. 458, 461 

(1983) (describing the history of the Grids). Reasoning that 

individuals with similar characteristics could perform 

similar work, the Administration took notice of specific jobs 

that exist in significant numbers in the national economy and 

could be performed by claimants who fit a standard pattern. 

Id. at 465–68.

The Grids are organized into three tables corresponding 

to sedentary, light, and medium work. Each table has five 

columns. The first column contains a rule number, and the 

second through the fourth delineate the claimant’s age, 

education, and work experience (for example, unskilled, 

none, skilled, semi-skilled, and “skills transferable” or 

“skills not transferable”). The fifth column renders a 

conclusion of either “disabled” or “not disabled.” In Table 

No. 1, for sedentary work, a rule’s conclusion of “not 

disabled” means that a claimant with those characteristics 

can perform the approximately 200 sedentary, unskilled jobs 

that the Administration has determined exist in significant 

numbers in the national economy. See SSR 96-9P, 1996 WL 

374185, at *3; 20 C.F.R. Pt. 404, Subpt. P, App’x 2 

§ 201.00(a).

Of course, not all claimants fit neatly into the categories 

established by the Grids. In particular, each of the three Grid 

tables encompasses specific strength requirements, or 

“exertional limitations.” Lounsburry v. Barnhart, 468 F.3d 

1111, 1115 (9th Cir. 2006). However, significant “non-
10 BARNES V. BERRYHILL

exertional limitations” such as “pain, postural limitations, or 

environmental limitations” that do not result in strength 

limitations may “limit the claimant’s functional capacity in 

ways not contemplated by the guidelines.” Tackett, 180 F.3d 

at 1102. Reliance on the Grids alone will then be 

inappropriate. Instead, the ALJ must determine, in 

consultation with a VE, which jobs a claimant can still 

perform “considering his or her age, education, and work 

experience, including any transferable skills or education 

providing for direct entry into skilled work.” 20 C.F.R. Pt. 

404, Subpt. P, App’x 2 § 201.00(h)(3).

The unskilled jobs contemplated by the Grids provide a 

“framework,” or starting point, for that inquiry. See SSR 96-

9P, 1996 WL 374185, at *2–5. In that sense, the Grids may 

assist the ALJ by establishing a universe of unskilled 

positions for consideration. If the claimant does have 

transferable skills from past work or relevant education, 

skilled and semi-skilled jobs also may be considered. But 

the Grids can never direct a conclusion of not disabled for a 

claimant with significant additional limitations not 

contemplated by the Grids. Lounsburry, 468 F.3d at 1116 

(citing Tackett, 180 F.3d at 1102).

Here, as the ALJ acknowledged, Barnes had additional 

limitations not contemplated by the Grids. For example, his 

need to alternate sitting and standing at frequent intervals is 

a “significant non-exertional limitation not contemplated by 

the grids.” Tackett, 180 F.3d at 1103–04. Given these 

additional limitations, the ALJ could not rely on the Grids to 

direct a finding of not disabled. And because the Grids did 

not direct a conclusion regarding disability, they did not 

permit the ALJ to conclude that transferability of skills was 

immaterial under SSR 82-41.
BARNES V. BERRYHILL 11

Nothing we said in Bray supports a contrary view. Bray 

shares two important features with this case. First, the Grids 

were appropriately used as a framework in both cases. See 

554 F.3d at 1223 n.4. Second, the ALJ found, both here and 

in Bray, see id. at 1222, that the claimant was not disabled 

because he or she could perform semi-skilled work that 

existed in significant numbers in the national economy.

However, Bray had a third feature that this case lacks. A 

Grid rule stated that a person with Bray’s age, education, and 

work experience was disabled without transferable skills. 

554 F.3d at 1229. Bray was a few weeks shy of 55 at the 

time of her ALJ hearing, had a high school education, id. at 

1221, and had past relevant work that was skilled or semiskilled, id. at 1230 (Wu, J., concurring). Her RFC limited 

her to light work with additional restrictions. Id. at 1222 

(majority opinion). Grid rule 202.06 states that a person of 

“advanced age” who has a high school education and skilled 

or semi-skilled work experience but no transferable skills is 

disabled.6 On the other hand, rule 202.07 states that a person 

of the same age, education, and work experience who has

transferable skills is not disabled. If the ALJ had found no 

transferable skills, rule 202.06 would have directed a finding 

of disability. For that reason, we stated that transferability 

of skills was “dispositive” under SSR 82-41, and the ALJ 

therefore erred by failing to make the requisite findings. 

554 F.3d at 1229.

 6 “Advanced age” means an individual who is 55 or older. See 

20 C.F.R. §§ 404.1563(e), 416.963(e). We gave Bray the benefit of that 

category because she turned 55 less than a month after her ALJ hearing, 

see 554 F.3d at 1224 (applying rule applicable to claimants of advanced 

age), and, in any event, she was 58 at the time of remand, id. at 1229.
12 BARNES V. BERRYHILL

Here, by contrast, no Grid rule directed that a person with 

Barnes’s age, education, and work experience was disabled 

absent transferable skills. Barnes was 47 at the time of his 

ALJ hearing, had a high school education, and had past 

relevant work that was skilled and unskilled. His RFC 

limited him to less than the full range of sedentary work. 

Grid rule 201.21 states that a “younger individual age 45–

49” with a high school education, skilled or semi-skilled 

work experience, and no transferable skills is not disabled. 

Rule 201.22 states that a person of the same age who has the 

same education and work experience but also has 

transferable skills is likewise not disabled. Under either rule, 

the result is no different. Thus, for Barnes, unlike Bray, a 

lack of transferable skills could not trigger a Grid rule that 

directed a conclusion of disabled.

However, Bray did not purport to identify the only 

situation in which transferability of skills will be dispositive. 

In light of the applicable Grid rules there, we did not need to 

decide whether a finding that the claimant could perform 

semi-skilled work was itself sufficient to require written 

findings under SSR 82-41.

Moreover, the Commissioner ignores an important 

consequence of using the Grids as a framework. “[A] 

finding of disability [under the Grids] . . . must be accepted 

by the [Commissioner] . . . .” Lounsburry, 468 F.3d at 1116 

(quoting Cooper v. Sullivan, 880 F.2d 1152, 1157 (9th Cir. 

1989)). That is, if a person who lacks the claimant’s 

additional, non-exertional limitations is disabled, then the 

claimant is certainly disabled and “there is no need to 

examine the effect of the non-exertional limitations.” Id. 

But the opposite is not true: the Grids as a framework “may 

not be used to direct a conclusion of nondisability.” Id. 

Thus, in the case of a claimant with additional limitations not 
BARNES V. BERRYHILL 13

contemplated by the Grids, a rule stating that the claimant is 

disabled will be dispositive, while one stating that the 

claimant is not disabled will not. In Bray, the former type of 

rule would have bound the ALJ if Bray lacked transferable 

skills. Here, the latter type applied, and the ALJ went on to 

find Barnes not disabled based on his ability to perform 

semi-skilled work. Because semi-skilled work requires 

skills, that made transferability of skills dispositive.7

Finally, the Commissioner argues that the VE’s 

testimony was sufficient to show Barnes had the skills to 

perform the semi-skilled jobs identified. However, the VE 

gave no testimony whatsoever regarding Barnes’s skills or 

their transferability. Assuming the VE took transferable 

skills into account is precisely what SSR 82-41 prohibits, for 

the explicit reason that it makes the ALJ’s Step Five 

determination unreviewable. SSR 82-41, 1982 WL 31389, 

at *7 (emphasizing the importance of written findings “to 

clearly establish the basis for the determination or decision 

for the claimant and for a reviewing body including a Federal 

district court”). In any event, the argument is foreclosed by 

Bray’s holding that an ALJ does not satisfy his duty under 

SSR 82-41 to make written findings regarding transferability 

 7 The Commissioner’s reliance on Bell-Shier v. Astrue, 312 F. App’x 

45, 50 (9th Cir. 2009)—a nonbinding, unpublished decision, see 9th Cir. 

Rule 36-3(a)—is equally misplaced. There, we held that written findings 

on transferability of skills were unnecessary under SSR 82-41 because 

the ALJ found the claimant “not disabled” under two Grid rules that did 

not require transferable skills. Critically, our analysis did not state or 

imply that additional limitations of the claimant made full reliance on the 

Grids inappropriate. Where a Grid rule fully describes a claimant’s 

physical ability, the ALJ is entitled to rely on the Grids alone. Heckler 

v. Campbell, 461 U.S. 458, 465-68 (1983). Here, he was not.
14 BARNES V. BERRYHILL

of skills by relying on the testimony of the VE. See 554 F.3d 

at 1225–26.

CONCLUSION

The ALJ’s failure to make the written findings required 

by SSR 82-41 prevents the Court from determining whether 

substantial evidence supports his Step Five determination. 

We REVERSE the district court’s judgment and REMAND

with instructions to remand to the Commissioner for further 

proceedings.8

 8 On remand, Barnes is entitled to application of the Grid rule 

appropriate to his age at the time of the remand hearing. See Bray, 

554 F.3d at 1229 n.9 (instructing the ALJ to consider the claimant’s age 

at the time of the remand hearing). He is now over 50 years old and 

classified under the Grids as a person “closely approaching advanced 

age.” 20 C.F.R. §§ 404.1563(d), 416.963(d). Therefore, under the

relevant rules, he will be disabled based on exertional limitations alone 

unless he has transferable skills. See 20 C.F.R. Part 404, Subpart P, 

App’x 2, Rules 201.14-.15. The ALJ will also determine, in accordance 

with this opinion, whether Barnes was disabled before he reached the age 

of 50 because it will affect the amount of benefits, if any, that he is 

entitled to receive. See Bray, 554 F.3d at 1229 n.9 (directing the ALJ to 

consider whether Bray became disabled before turning 55).