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STEWART v. HARRIS

February 27, 1981

Edward STEWART, Plaintiff,
v.
Patricia Roberts HARRIS, Secretary of Health and Human Services, Defendant



The opinion of the court was delivered by: COHEN

Claimant, Edward Stewart, seeks review under § 205(g) of the Social Security Act (the Act), 42 U.S.C. § 405(g) (1974) of a final decision by the Secretary of Health and Human Services, which denied claimant's application for a period of disability and disability insurance benefits.

On February 27, 1979 claimant filed an application for disability insurance benefits (Tr. 52-55). The application was denied initially (Tr. 56-58), and on reconsideration. (Tr. 60-61). Claimant requested a hearing which was held on January 14, 1980. (Tr. 26-51). The Administrative Law Judge (ALJ), before whom claimant appeared, considered the case de novo and on February 5, 1980 found that claimant was not under a disability. (Tr. 11-20). The decision of the ALJ became the final decision of the Secretary when it was approved by the Appeals Council on March 13, 1980. (Tr. 7). After receipt of new evidence submitted by claimant's attorney on April 7, 1980 (Tr. 6), the Appeals Council, in its decision of May 15, 1980 (Tr. 3-4), found no basis to vacate its earlier decision.

 In a recent decision, the Third Circuit questioned whether the burden actually shifts to the Secretary. Livingston v. Califano, 614 F.2d 342, 345 (3d Cir. 1980). But, "(w)hether or not the burden actually shifts to the Secretary once the claimant has met his burden, there is no doubt that the Secretary must establish that the claimant has the ability to engage in alternative substantial gainful employment activity." Id. (Emphasis Supplied).

 In the instant case, the ALJ determined that claimant retained a residual functional capacity sufficient to engage in sedentary work. If this determination had been made in a manner consistent with that prescribed by existing case law, then claimant's ability to engage in alternative substantial gainful employment activity would have been established. However, the determination was not made in such a manner. Consequently, this case must be remanded for a proper determination as to whether claimant can in fact engage in alternative substantial gainful employment activity.

 This Court is aware of the fact that the ALJ also found support for his decision through the application of Appendix II to Subpart P of the Administrative Regulations No. 4. Under Appendix II the ALJ makes findings of fact as to four factors, namely claimant's residual functional capacity, age, education and previous work experience. These factors are then lined up on a grid set forth in Appendix II which specifies whether or not claimant is disabled. In the matter presently before the Court, after lining up the factors on the appropriate grid, the ALJ determined that the grid directed a finding of "not disabled." See 20 C.F.R. § 404.1513. However application of Appendix II was dependent upon the ALJ's preliminary determination that claimant retained the residual functional capacity necessary for sedentary work. Said determination was erroneous. Hence, reliance upon Appendix II was inappropriate. In addition, even if the ALJ's finding that claimant could do sedentary work was properly reached, usage of the grid as the ultimate decision-maker has been questioned. Santise v. Harris, 501 F. Supp. 274 (D.N.J.1980) (Ackerman, J.)

 Although the ALJ's excessive reliance on the grid may possibly be grounds for remand, we need not decide that question here because the erroneous method the ALJ used to determine that claimant could do sedentary work is alone sufficient reason to reverse and remand this case. However, the potential effect that Judge Ackerman's decision may have on the use of Appendix II is of such significance that the decision merits attention later in this opinion.

 The record discloses the following facts. Claimant alleges disability due to a back injury and left lung problem caused by an accidental blow to the back. Claimant is 35 years of age and has a seventh grade education. (Tr. 30, 43). Claimant stated that he can read and write a little, and although unable to understand "big words" he can read traffic signs, count change and tell time. (Tr. 30).

 All of his prior work experience involved "heavy" construction and "laboring work." (Tr. 14). He has no experience working on an assembly line or in an office setting.

 Claimant stated that he is taking percodan three or four times a day as well as valium (Tr. 39-40), and that if he sits too long he is in pain. (Tr. 47). Claimant also indicated he wears a back brace, uses a cane (Tr. 37), is not able to push or pull, and was told by his doctor to rest as much as possible. (Tr. 48).

 Claimant was also examined by Dr. Thomas Obade, an orthopedic surgeon, on behalf of the Secretary on May 18, 1979. (Tr. 85-88). The examination revealed that claimant had 25 percent normal range of motion in his back with a mild amount of spasm, his hips moved well without pain, and claimant was neurologically intact with no evidence of atrophy. The report further stated that x-rays of the lumbosacral spine revealed a minimal compression fracture of L-1 and that claimant suffered chronic lumbosacral strain.

 Dr. Obade also evaluated claimant's residual functional capacity. He found claimant was able to walk for six hours, and stand and sit for four hours each. Claimant could lift up to 10 pounds and operate controls with his hands but not with his feet. Finally, Dr. Obade found that claimant could not bend or stoop at all and could only occasionally climb stairs, but could use his hands for pushing, pulling and gross and fine manipulations. Dr. Obade then concluded that claimant was capable of performing sedentary work. (Tr. 88).

 Relying upon Dr. Obade's belief that claimant was capable of performing sedentary work, and upon claimant's testimony and demeanor at the hearing, the ALJ decided that claimant retained the residual functional capacity to do sedentary work. As aforementioned, once claimant demonstrates an inability to return to his former job, benefits cannot be denied unless the Secretary establishes claimant is capable of engaging in alternative substantial gainful employment activity. Thus, the issue presented herein is whether the ALJ's conclusion that claimant is capable of doing sedentary work was arrived at in a manner ...


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