Professional Documents
Culture Documents
James E. Olsen v. Richard S. Schweiker, Secretary of Health and Human Services, 703 F.2d 751, 3rd Cir. (1983)
James E. Olsen v. Richard S. Schweiker, Secretary of Health and Human Services, 703 F.2d 751, 3rd Cir. (1983)
2d 751
1 Soc.Sec.Rep.Ser. 343
In this case plaintiff appeals from a district court order reviewing a decision of
the Secretary of Health and Human Services (Secretary) denying plaintiff
disability benefits after October 16, 1980. The principal issue to be decided by
this Court is whether substantial evidence supports the Secretary's decision. We
believe that the Secretary's decision denying benefits after October 16, 1980
was supported by substantial evidence, and therefore will affirm the judgment
of the district court.
I. Statement of Case
Plaintiff then sought review of the ALJ's decision in the United States District
Court for the Eastern District of Pennsylvania. The parties filed cross-motions
for summary judgment. After evaluating the record and findings of the ALJ,
the magistrate recommended that the ALJ's decision be affirmed. The
magistrate stated:
The claimant apparently does not argue that the ALJ's findings and evaluation
of his residual functional capacity for sedentary work were fundamentally
wrong, but that they were incomplete because the ALJ did not give due
consideration to his mental retardation as an impairment which, added to this
physical impairments, effectively precluded him from engaging in the "full
range" of sedentary work.
6 findings of Dr. Spergel indicate that the limitations imposed by the claimant's
The
mental retardation were not sufficiently restrictive to prevent him from engaging in
several forms of sedentary work. (Tr. 189). Moreover, it appears that the ALJ gave
due consideration to Dr. Spergel's report, in particular noting that Dr. Spergel did not
believe that the claimant's limited mental ability would prevent him from engaging
in a number of sedentary jobs. (Tr. 21-22).
7
(App. B-15).
The district court granted defendant's Motion for Summary Judgment and
adopted the Magistrate's Report. (App. E-1).
At the time of the administrative hearing plaintiff was 34, had completed a
sixth grade education, and was considered illiterate. His employment history
included limited work as a trash collector, mover, dishwasher, janitor and
grounds keeper. (Tr. 87). He worked as a grounds keeper at St. Agnes Hospital
in Philadelphia until his accident, which occurred during the course of his
employment. Plaintiff was injured when he slipped and fell down a number of
wet steps on September 19, 1979. (Tr. 48).
10
11
12
Dr. Philip Spergel, a psychologist and vocational expert, also interviewed the
claimant. Dr. Spergel found that the claimant was not only illiterate, but that he
possessed a "borderline range of intelligence." (Tr. 188). Dr. Spergel
nevertheless found plaintiff capable of performing "all activities of daily living
(dressing, bathing, etc.)." (Id. at 187). He also concluded that plaintiff had a
good range of motion in his hands, and that plaintiff could sit comfortably for
several hours so long as he shifts positions. (Id.). Finally, Dr. Spergel reported
that plaintiff admitted that he could lift up to ten pounds. (Id.).
13
14
Despite
Mr. Olson's physical limitations resulting from his lumbosacral discomfort
and his educational deficits, he still retains transferable skills. His upper extremity
psychomotor functions are intact and his gross manipulative skills aren't impaired.
In addition, his visual organization is acceptable. He stated that he is able to sit and
stand for reasonable periods of time.
15
(Id. at 190).
III. Discussion
16
The issue in this case is whether substantial evidence supports the Secretary's
decision finding plaintiff not disabled after October 16, 1980. 42 U.S.C. Sec.
405(g) promulgates that "[t]he findings of the Secretary as to any fact, if
supported by substantial evidence, shall be conclusive." Courts have defined
"substantial evidence" as " 'such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion,' " Richardson v. Perales, 402 U.S.
389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); see also, Cotter v.
Harris, 642 F.2d 700, 704 (3d Cir.1981), pet. for reh. den., 650 F.2d 481 (3d
Cir.1981); Lewis v. Califano, 616 F.2d 73, 76 (3d Cir.1980); Smith v. Califano,
637 F.2d 968, 970 (3d Cir.1981). Substantial evidence has also been defined as
"enough [evidence] to justify, if the trial were to a jury, a refusal to direct a
verdict when the conclusion sought to be drawn from it is one of fact for the
jury," NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59
S.Ct. 501, 505, 83 L.Ed. 660 (1939).
17
18
There is a two-pronged test for social security act disability: (1) determination
of the extent of disability; and (2) determination whether that impairment
results in inability to engage in substantial gainful activity. A claimant satisfies
[his] initial burden of proof by showing that [he] is unable to return to [his]
customary occupation. E.g., Stark v. Weinberger, 497 F.2d 1092 (7th
Cir.1974); Baker v. Gardner, 362 F.2d 864 (3d Cir.1966). Once [he] has made
such a demonstration, the burden of proof shifts to the Secretary to show that
the claimant given [his] age, education and work experience, has the capacity to
perform specific jobs that exist in the national economy. E.g., Lewis v.
Weinberger, 541 F.2d 417 (4th Cir.1976); Hernandez v. Weinberger, 493 F.2d
1120 (1st Cir.1976).
19
Id. at 57.
20
establishing disability from September 19, 1979 to October 16, 1980 as defined
by the Social Security Act, 42 U.S.C. Sec. 423(d)(5). In short, it is agreed that,
at the very least, the plaintiff is a "younger (age 18-44)," illiterate and unskilled
individual who is unable to return to his past work.
21
Once plaintiff met the above threshold requirement, the burden fell upon the
Secretary to show claimant, considering age, education, mental and physical
limitations and work experience "has the capacity to perform specific jobs that
exist in the national economy." Rossi v. Califano, 602 F.2d at 57.
22
23
Appellant makes two arguments. First, he argues that in completing the fifth
step of the evaluation process the ALJ applied an incorrect legal standard.
Second, he insists that the ALJ's finding of no disability beyond October 16,
1980 was not supported by substantial evidence.
24
2520 C.F.R. Section 404.1569 and Rule 201.23 Table No. 1 of Appendix 2, Subpart
...
P, Regulations No. 4, direct that, as of October 16, 1980, the claimant, considering
his maximum sustained work capability, age, education, and work experience, be
found "not disabled" from that date ... (emphasis added).
26
(Tr. 23). Appellant suggests that the ALJ failed to make any finding with regard
to plaintiff's non-exertional impairment1 which would have precluded the use of
grids found in Section 404.1569 and Rule 201.23, Table No. 1 of Appendix 2,
Subpart P, Regulation No. 4.2 The existence of plaintiff's non-exertional
impairment, appellant suggests, would operate to place plaintiff in between the
various grids, and therefore the ALJ's use of the word "directed" with regard to
the effect of the regulations evidences a clear error.
27
We disagree with appellant's contention. The ALJ in the instant case considered
"all of the testimony given at the hearing and the documents contained in the
exhibit file" (Tr. 20) and made a decision supported by substantial evidence as
required by law. (Tr. 20). Based upon a detailed and express evaluation of that
evidence, the ALJ made twelve specific findings:
FINDINGS
28
1. That the claimant met the specific earnings requirements for disability
insured status under the Act on September 19, 1979;
29
2. That the medical evidence of record establishes that the claimant has been
treated for orthopedic impairment of the low back with surgery on February 18,
1979, and a later bout of thrombophlebitis of the right leg;
30
3. That, based on credibility and evidence of record, I do not find that the
claimant's subjective symptoms, including those of pain, would have prevented
him from engaging in substantial gainful work activity from October 16, 1980;
31
32
5. That the greater weight of the medical evidence establishes that these
significant impairments lasted for a period of 12 months at a level of severity so
as to cause the inability of the claimant to engage in substantial gainful activity;
33
34
7. That, as of October 16, 1980, the claimant had the maximum sustained work
capability for sedentary work, as defined in section 404.1567 of Subpart P,
Regulations No. 4;
35
8. That the claimant was born on December 16, 1945, and is a younger
individual;9. That the claimant completed the sixth grade in school, but is
illiterate;
36
10. That the claimant's past work activities did not impart skills that are
transferable to work other than that previously performed;
37
11. That section 404.1569 and Rule 201.23, Table No. 1 of Appendix 2,
Subpart P, Regulations No. 4, direct that, as of October 16, 1980, the claimant,
considering his maximum sustained work capability, age, education, and work
experience, be found "not disabled" from that date, and through the date of this
decision;
38
12. That the claimant was not under a "disability" as defined in the Social
Security Act, as amended, after October 16, 1980, and through the date of this
decision.
39
(Tr. 22-23).
40
These findings indicate that the ALJ considered competing medical evidence,
(see Finding # 5) as well as other evidence and resolved any conflict in
evidence in favor of finding a 12-month closed period of disability instead of a
period in excess of 12 months. Moreover, the ALJ's Report indicates that
several doctors found plaintiff capable of performing sedentary work, one of
whom, Dr. Spergel, identified specific sedentary jobs, existing in the national
economy, for which plaintiff retained the residual functional capacity to
perform. (Tr. 190). In short, these Findings and other evidence in the record
constitute substantial evidence.
41
As in many other social security cases which come before us, the instant
claimant made a compelling argument about his disability; it could have
persuaded some fact finders to rule in his favor. Where the record establishes
beyond dispute that the claimant had a serious injury, has a "borderline range of
intelligence" and is illiterate, and where an orthopedic specialist testified that
claimant was incapable of performing his past maintenance work, certainly
there is sufficient evidence to justify an award in his favor. But in view of the
ALJ's specific findings and his detailed consideration of all of the evidence,
including the combined effect of several impairments, we cannot say that as a
matter of law the ALJ erred in resolving every major conflict in evidence
against the claimant. Such is the nature of administrative adjudications and the
constraints on our appellate review process. Thus, we will affirm the district
court in upholding the ALJ's decision as supported by substantial evidence.
42
43
44
I cannot agree that the Secretary's decision in this case is based on substantial
evidence. In my view, the Secretary has failed to acknowledge, much less come
to grips with, serious inconsistencies in the record. The Secretary has ignored
critical evidence. He has misinterpreted both the medical and vocational
evidence. He has even misapplied the governing provisions of his "grid"
regulations. Under these circumstances, I believe that the majority has erred in
affirming the district court's judgment in the Secretary's favor. See Cotter v.
Harris, supra, 642 F.2d at 704-06. I therefore dissent.
45
46
At the core of this case is the question whether substantial evidence supports
the Secretary's conclusion that the appellant nevertheless retained a residual
functional capacity to perform sedentary work--in particular, certain sedentary
jobs existing in the national economy. The majority's affirmative conclusion
depends primarily on the testimony of the Secretary's vocational expert, Philip
The Secretary also focuses on Dr. Spergel's assertion that appellant retains a
residual functional capacity to perform twelve specific sedentary jobs existing
in the national economy. These jobs include base brander, ampoule examiner,
coil winder, marker, solderer-assembler, thermostat assembler, and electricalaccessories assembler. But this conclusion is at odds with the medical report of
Samuel P. Ivins, M.D., the Secretary's own neurologist and psychiatrist, who
opined that appellant, because of his condition, should be totally restricted from
activities that would bring him in contact with moving machinery. The above
jobs appear to involve such activity. The Secretary has not addressed this
apparent inconsistency in the evidence.2
48
49 evidence of record does not show that the claimant's impairments and
The
symptoms, including those of pain, continued at a level of severity so as to preclude
him from performing work activity beyond October 16, 1980.
50
This off-hand dismissal of subjective pain does not pass muster under the
decisions of this Court. Smith v. Califano, 637 F.2d 968, 972 (3d Cir.1981)
(failure seriously to consider subjective evidence of pain can itself constitute
grounds for reversal); see Cotter v. Harris, supra, 642 F.2d at 704
("administrative decision should be accompanied by a clear and satisfactory
The Secretary relies heavily on the reports of Dr. Doman and Dr. Schmidt. Dr.
Schmidt, a member of the Department of Orthopedic Surgery at the Hospital of
the University of Pennsylvania, is appellant's treating physician. Dr. Doman's
report, dated December 10, 1980, concludes that appellant can perform
sedentary (though not light) work.3 Although neither Dr. Schmidt's report of
October 16, 1980, nor his "functional assessment" of January 21, 1981, is
inconsistent with Dr. Doman's conclusion, these reports must be considered in
light of Dr. Schmidt's subsequent report dated March 18, 1981, less than two
months later. That report, which was submitted to the Appeals Council, states
that "Mr. James Olsen is continuing under medical care [and] is totally disabled
for any work, even sedentary. He is being admitted to a rehabilitation center in
the very near future for further care." (Emphasis added.) The Appeals Council
totally disregarded this last report, stating only that Dr. Schmidt's assessment
was "not supported by clinical findings." This pronouncement, however,
completely ignores the fact (of record) that Dr. Schmidt was appellant's treating
physician and that he had examined appellant a number of times. It also ignores
the precept that a treating physician's opinion is entitled to substantial weight.
Cotter v. Harris, supra, 642 F.2d at 704; cf. Bastien v. Califano, 572 F.2d 908,
912 (2d Cir.1978) (expert opinions of treating physician as to existence of
disability are binding on factfinder unless contradicted by substantial evidence
to the contrary). The Secretary, therefore, without any basis in fact, has utterly
disregarded critical evidence relating to appellant's inability to work on account
of his back condition.4
52
Finally, there are serious problems with the Secretary's application of the grids.
In Santise v. Schweiker, 676 F.2d 925, 934 (3d Cir.1982) (emphasis added),
this Court wrote:
53 must be kept in mind that the grids do not govern--and indeed were not intended
[I]t
to govern--all disability cases. For example, the regulations specifically dictate that
"a conclusion of disabled or not disabled is not directed " if an individual's
vocational profile is not precisely contained in Appendix 2. 20 C.F.R. Sec. 404.1569
& Appendix 2, Sec. 200.00(d); see Thomas v. Schweiker, 666 F.2d 999, 1004 (5th
Cir.1982) ("use of the Guidelines is inappropriate where their evidentiary
underpinnings do not coincide exactly with the evidence of disability appearing on
The Santise Court explained further that, "[i]f a claimant's characteristics do not
fit neatly into one of the many categories defined by the tables, the ALJ is
permitted to arrive at a conclusion as to disability independent of, but consonant
with, the regulations." Id. at 928 (footnotes omitted) (emphasis added).
55
56
57
58
The ALJ's error is even more obvious in light of our holding in Burnam v.
Schweiker, 682 F.2d 456 (3d Cir.1982). Building upon Santise, Burnam
declared:
59
Having determined on the basis of the grid that Burnam was not disabled based
on his exertional impairments, the administrative law judge failed to follow the
regulatory directive that he then consider "how much [Burnam's] work
capability [was] further diminished in terms of any types of jobs that would be
contraindicated by [his] nonexertional limitations." 20 C.F.R. pt. 404, subpt. P,
app. 2, Sec. 200.00(e)(2) (1981).
60
....
61
The administrative law judge thus erred in treating Burnam's exertional and
nonexertional impairments separately and in then determining on the basis of
the medical-vocational grid that substantial gainful work existed in the national
economy that Burnam could perform. The administrative law judge instead
should have considered whether work existed for a person with the
combination of impairments Burnam possessed. See Gagnon v. Secretary of
Health & Human Servs., 666 F.2d 662 (1st Cir.1981). Because the
administrative law judge failed to consider Burnam's physical and mental
condition as a whole, the Secretary's decision is not supported by substantial
evidence.
62
Id. at 457-58. The ALJ here did not follow the teachings of Burnam. The
closest that he came was in observing that Dr. Spergel had considered the
combined effect of appellant's physical and mental impairments and in
ultimately concluding that appellant could perform sedentary work. But even
these statements are in derogation of Burnam's requirement that the ALJ (rather
than the Secretary's witness) consider the claimant's physical and mental
condition as a whole.
63
Moreover, I note that appellant's profile fits almost four-square into a grid
guideline that would mandate a finding of disability. Like the person in the
example set forth in the margin,6 appellant (who was 34 years old at the time of
the 1980 administrative hearing) cannot perform a full range of sedentary work.
64
Appellant asserts that the non-exertional impairments which the ALJ failed to
Appellant asserts that the non-exertional impairments which the ALJ failed to
consider were enumerated in Dr. Spergel's report which states:
Mr. Olsen is presently functioning within the borderline range of intelligence
(Full Scale I.Q. 75). There is a marked discrepancy between his verbal (I.Q. 82)
and performance (I.Q. 69) scores suggestive of a moderate depressive reaction.
Intersubtest scatter and pattern analysis reflect marked personal adjustment
difficulties characterized by considerable anxiety. [Tr. 188].
Quoted in, Appellant's brief at 16.
This would be the case primarily in either of two situations: an applicant falls
between the various definitional categories established by the regulations (e.g.,
the individual can perform more than light but less than medium work), ... or an
applicant has certain non-exertional impairments (e.g., a psychotic headache; a
sensory or skin disorder) in addition to exertional limitations
Santise v. Schweiker, 676 F.2d 925, 928, n. 9 (3d Cir.1982).
The Secretary contends that Dr. Spergel's finding of "transferable skills" does
not conflict with the ALJ's finding because a "fair reading" of Dr. Spergel's
report demonstrates that he is using the phrase "transferable skills" to refer to
skills retained despite appellant's impairments rather than to skills acquired and
retained from past work activities. I find this attempted distinction
unconvincing
Nor has the Secretary addressed the conflict in Dr. Spergel's assertions (1) that
"SEPTA [public transportation] is available and is approximately 15 minutes
from [appellant's] home," and (2) (on the very next page of the report) that "Mr.
Olson [sic] is able to walk for two city blocks and then notes a burning
sensation in his right leg. When this occurs, he must stop to rest." This conflict
relates directly to the question whether appellant could maintain employment at
any of the twelve jobs listed by Dr. Spergel
"Sedentary" and "light" work are terms of art, defined in 20 C.F.R. Sec.
404.1567. "Sedentary work" involves "lifting no more than 10 pounds at a time
and occasionally lifting or carrying articles like docket files, ledgers, and small
tools." Id. Sec. 404.1567(a). "Light work," by contrast, "involves lifting no
more than 20 pounds at a time with frequent lifting or carrying of objects
weighing up to 10 pounds." Id. Sec. 404.1567(b)
Nor has the Secretary even begun to evaluate the impact upon employability of
the condition known as arachnoiditis (inflammation of the spinal cord), from
which appellant concededly suffers
The majority suggests that, because the ALJ stated that he had considered "all
the testimony given at the hearing and documents contained in the exhibit file,"
he was not "directed" with regard to the effect of the regulations. With all
respect, I believe that the ALJ's language speaks for itself