46 F.3d 552 (6th Cir. 1995), 93-4252, Garcia v. Secretary of Health and Human Services

Docket Nº:93-4252.
Citation:46 F.3d 552
Party Name:Carlos GARCIA, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
Case Date:February 07, 1995
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 552

46 F.3d 552 (6th Cir. 1995)

Carlos GARCIA, Plaintiff-Appellant,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.

No. 93-4252.

United States Court of Appeals, Sixth Circuit

February 7, 1995

Submitted Nov. 18, 1994.

Page 553

Marcia W. Margolius (briefed), Brown & Margolius, Cleveland, OH, for plaintiff-appellant.

Suzanne Duman (briefed), Dept. of Health and Human Services, Office of the Gen. Counsel, Region V, Chicago, IL, and Marlon A. Primes, Office of the U.S. Atty., Cleveland, OH, for defendant-appellee.

Page 554

Before: WELLFORD, RYAN, and BATCHELDER, Circuit Judges.

BATCHELDER, J., delivered the opinion of the court, in which RYAN, J., joined. WELLFORD, J. (pp. 559-60), delivered a separate concurring opinion.

BATCHELDER, Circuit Judge.

The appellant appeals the district court's decision affirming the denial of social security disability benefits and supplemental security income by the Secretary of Health and Human Services ("Secretary"). The central issue of this appeal is whether the Secretary, in determining a claimant's ability to perform past relevant work, may refuse to consider a claimant's inability to communicate in English. For the reasons stated below, we think the Secretary may do so. Therefore, we affirm.

I.

Carlos Garcia, the appellant, is from Puerto Rico. His native language is Spanish, and his ability to speak and understand English is quite limited. From 1978 to 1980, Garcia worked as a car salesman in Puerto Rico. After moving to the United States in 1980, he worked as a welder and a laborer. Garcia has not worked since 1984, when the back pain he first experienced in 1983 allegedly became unbearable.

Garcia applied for disability insurance benefits (DIB) and supplemental security income (SSI) under the Social Security Act ("Act"). For purposes of both DIB and SSI, the Act defines "disability" by, in part, providing that an individual

shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C.A. Sec. 423(d)(2)(A) (West 1991); 42 U.S.C.A. Sec. 1382c(a)(3)(B) (West Supp.1994). 1

To aid in making disability determinations under the Act's definition, the Secretary has established a five-step sequential analysis. 2 Step four of the analysis denies benefits to a claimant whose impairment does not prevent him from performing the duties of his previous work. 20 C.F.R. Secs. 404.1520(e), 416.920(e) (1994). In interpreting the disability definition, the Secretary has provided that vocational factors, such as education, will not be considered at step four. Id. Secs. 404.1560(b), 416.960(b). The inability to communicate in English is an element of the vocational factor of education, see id. Secs. 404.1564(b)(5), 416.964(b)(5), which the Secretary's sequential analysis reserves for step five. Id. Secs. 404.1520(f)(1), 416.920(f)(1).

Garcia's applications for benefits were denied initially and upon reconsideration. After the hearing, the administrative law judge (ALJ) found that Garcia could perform light work and that his past work as a car salesman required no more than light work. Accordingly, the ALJ found Garcia "not disabled" at step four because he could perform

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his past work as a car salesman. The Appeals Council denied review, and the ALJ's opinion became the final decision of the Secretary. In affirming the Secretary's decision, the district court rejected Garcia's contention that his inability to communicate in English rendered him incapable of performing his past work as a car salesman.

On appeal, Garcia challenges the Secretary's determination that Garcia retains the residual functional capacity (RFC) for light work. Garcia also launches a two-pronged attack on the Secretary's decision to deny benefits despite Garcia's virtual inability to communicate in English. 3

II.

To begin, we address Garcia's challenge to the Secretary's determination that Garcia retains the RFC for light work. See 20 C.F.R. Secs. 404.1567(b), 416.967(b) (1994) (providing definition of light work). If the record as a whole contains substantial evidence to support the Secretary's determination, we must affirm. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). "Substantial evidence" is " 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Id. (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)); Stanley v. Secretary of Health & Human Servs., 39 F.3d 115, 117 (6th Cir.1994).

In the last sentence of his reply brief, Garcia asserts his inability to perform light work, but marshals no arguments in support of that assertion. Nevertheless, we have reviewed the record, and we conclude that substantial evidence supports the Secretary's determination regarding Garcia's RFC for light work.

III.

Next, we address Garcia's claim that the Secretary's refusal, at step four of the sequential analysis, to consider a claimant's inability to speak English is inconsistent with the language of the Act. In support, Garcia offers two arguments.

A.

We construe the first of these two arguments as a direct challenge to the Secretary's regulation excluding the vocational factor of education (and thus the inability to communicate in English) from the assessment of a claimant's ability to perform past work. See 20 C.F.R. Secs. 404.1560(b), 416.960(b).

Where a statute is unambiguous, no deference is due the Secretary; the regulation must follow the plain meaning of the statute. In the words of the Supreme Court, "[i]f the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984); see also Good Samaritan Hosp. v. Shalala, --- U.S. ----, ----, 113 S.Ct. 2151, 2157 (1993); Sullivan v. Everhart, 494 U.S. 83, 88-89 (1990).

We think the Act speaks directly to the validity of the regulation excluding vocational factors from step four of the sequential analysis. Congress clearly intended the Secretary to consider education when determining whether the claimant can perform other substantial gainful work which exists in the national economy, but not when considering the claimant's ability to do his previous work. This intent is borne out by the structure of the disability definition. See 42 U.S.C.A. Secs. 423(d)(2)(A), 1382c(a)(3)(B). The phrase "considering his age, education, and work experience" interrupts and therefore exclusively modifies the phrase "but cannot ... engage in any other kind of substantial gainful work which exists in the national economy." Id. Accordingly, the phrase "considering

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his age, education, and work experience" does not modify the phrase "not only unable to do his previous work." The inevitable reading is that Congress intended a claimant's ability to perform previous work to be assessed apart from the considerations of age, education, and work experience. As the Secretary's regulation, found at 20 C.F.R. Secs. 404.1560(b) and 416.960(b), mirrors the plain meaning of the disability definition, see 42 U.S.C.A. Secs. 423(d)(2)(A), 1382c(a)(3)(B), the regulation will be upheld. Martinez v. Bowen, 685 F.Supp. 70, 71 (S.D.N.Y.1988) (holding that the Secretary's interpretation declining to consider vocational factors in step four is consistent with the statute). 4

Although we need go no farther than the statutory language itself, we note that the legislative history supports our reading of the disability definition. In 1967, Congress amended the Act to contain the definition of disability now appearing in Secs. 423(d)(2)(A) and 1382c(a)(3)(B). The Senate and House reports that accompanied the amendment explained the substance of the amendment in this way:

The bill would provide that ... an individual would be disabled only if it is shown that he has a severe medically determinable physical or mental impairment or impairments; that if, despite his impairment or impairments, an individual still can do his previous work, he is not under a disability; and that if, considering the severity of his impairment together with his age, education, and experience, he has the ability to engage in some other type of substantial gainful work that exists in the national economy even though he can no longer do his previous work, he also is not under a disability....

S.Rep. No. 744, 90th Cong., 1st Sess. 48-49 (1967), reprinted in 1967 U.S.C.C.A.N. 2834, 2882; see also H.R.Rep. No. 544, 90th Cong., 1st Sess. 30 (1967). The separation of the phrases by semicolons in this legislative history confirms that, under the congressional scheme, considerations of age, education, and work experience have no bearing on the analysis of a claimant's ability to perform past work.

B.

Essentially, Garcia's second argument is but a peripheral attack on the Secretary's decision not to consider English language skills at step four. However, on its face, Garcia's second argument challenges the Secretary's refusal to require that past work actually performed by a claimant be available in significant numbers in the national economy. As framed, this second argument implicates two social security rulings, both of which interpret the disability definition, see 42 U.S.C.A. Secs. 423(d)(2)(A), 1382c(a)(3)(B), and the Secretary's...

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