774 F.2d 685 (6th Cir. 1985), 85-1073, Salmi v. Secretary of Health and Human Services

Docket Nº:85-1073.
Citation:774 F.2d 685
Party Name:Jan M. Sexton SALMI, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
Case Date:September 19, 1985
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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774 F.2d 685 (6th Cir. 1985)

Jan M. Sexton SALMI, Plaintiff-Appellant,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.

No. 85-1073.

United States Court of Appeals, Sixth Circuit

September 19, 1985

Dolores M. Coulter, argued, Michigan Protection & Advocacy Service of Developmentally Disabled Citizens, Inc., Lansing, Mich., for plaintiff-appellant.

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Martin F. Palus, argued, Asst. U.S. Atty., Grand Rapids, Mich., for defendant-appellee.

Before KENNEDY and KRUPANSKY, Circuit Judges, and WEICK, Senior Circuit Judge.

CORNELIA G. KENNEDY, Circuit Judge.

Plaintiff appeals the District Court judgment affirming the finding of the Administrative Law Judge ("ALJ") that plaintiff does not suffer from an impairment or combination of impairments, which significantly limits her ability to perform basic work-related functions. The appellant, Jan Sexton Salmi, was born July 24, 1962 and was eighteen-years old when she filed an application for supplemental security income benefits on May 7, 1981. Plaintiff alleged disability from birth because of mental retardation.

Plaintiff's parents enrolled her in a special education program for the mentally retarded in the third grade. After the eighth grade, plaintiff was transferred briefly to regular education classes. On February 5, 1979, plaintiff's parents filed a petition in Ontonagon County Probate Court seeking to have plaintiff declared a ward of the court. The Probate Court adjudicated plaintiff a ward of the court on February 8, 1979 and placed her in a foster care home. In January 1980, school authorities re-enrolled plaintiff in special education classes. Plaintiff graduated with a special education diploma in 1981.

Plaintiff has no relevant work experience. Plaintiff's school referred her to a work experience program in March 1980. For three months, plaintiff worked eight hours per week in the kitchen at a senior citizens center. During the summer of 1980, plaintiff worked ten hours per week in a St. Vincent de Paul store sorting clothes. During the spring of 1981, plaintiff worked fifteen hours per week cleaning cages for the Humane Society. The Comprehensive Employment and Training Act youth programs provided the funding for these three programs. Plaintiff also unsuccessfully attempted babysitting. Plaintiff worked for several weeks during the summer of 1982 in a restaurant. At the time of the administrative hearing, plaintiff had agreed to work eighty-nine hours per month in another senior citizens center for the Michigan Department of Social Services as a requirement for receiving general assistance benefits.

Plaintiff underwent IQ testing four times during the ten-year period from 1972-1981. In 1972, plaintiff received a verbal score of 71, a performance score of 82, and a full scale score of 74 on the Wechsler, Bender Gestalt and Human Figure Drawing Tests. In 1976, plaintiff received a verbal score of 65, a performance score of 90, and a full scale score of 75 on the Wechsler Intelligence Scale for Children-Revised. The Wide Range Achievement Test indicated that plaintiff was functioning at a second grade academic skill level and the Bender Gestalt Test indicated a visual perceptual motor age of approximately eight and a half years. In 1979, plaintiff achieved a verbal score of 76, a performance score of 90, and a full scale score of 81 on the Wechsler Adult Intelligence Scale ("WAIS"). In 1981, in connection with her application for supplemental security income benefits, plaintiff received a verbal score of 73, a performance score of 105, and a full scale score of 86 on the WAIS. The examiner noted, however, that plaintiff's high score on the performance section might not be valid because plaintiff had taken the test more than once.

Defendant-appellee, the Secretary of the Department of Health and Human Services ("the Secretary") denied plaintiff's application for supplemental security income benefits initially and again on reconsideration. Plaintiff requested a hearing before an ALJ. The ALJ decided that plaintiff was not entitled to supplemental security income because plaintiff did not suffer from a severe impairment. The ALJ's determination became the final decision of the Secretary when the Appeals Council refused to grant review. Plaintiff brought suit in the United States District Court for the Western

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District of Michigan. The District Court issued an opinion and order denying plaintiff's motion for summary judgment, affirming the Secretary's findings, and dismissing the complaint.

Plaintiff raises five issues on appeal: (1) Whether the District Court erred by using the standards for mental retardation found in the Listing of Impairments, 20 C.F.R. Sec. 404, Subpart P, Appendix 1, Section 12.05 in determining whether plaintiff's impairment qualified as severe under the meaning of 20 C.F.R. Sec. 416.920(c); (2) Whether 20 C.F.R. Sec. 416.920(c), the severity regulation which allows the Secretary to deny a claim for supplemental security income benefits when an claimant does not suffer from a severe impairment based on medical evidence alone and without considering a claimant's age, education, and work experience, conflicts with the definition of disability in 42 U.S.C. Sec. 1382c(a)(3)(B); (3) Whether, assuming the severity regulation does not conflict with the definition of disability, this Court should construe the severity regulation narrowly to eliminate from further consideration only those claimants who suffer from such slight impairments that the impairments could not affect the claimant's ability to work regardless of the claimant's age, education, or prior work experience; (4) Whether substantial evidence supports the Secretary's finding that the plaintiff does not suffer from a severe impairment; and (5) Whether the ALJ improperly substituted her own medical opinion for the testimony of medical experts to support her finding that plaintiff did not have a severe impairment, by making conclusions regarding plaintiff's mental impairments based on her own observations of plaintiff at the hearing.

For the reasons set forth below, we hold that although the regulation does not conflict with the statute, an impairment qualifies as non-severe only if, regardless of a claimant's age, education, or work experience, the impairment could not affect the claimant's ability to work. Under this standard, substantial evidence does not support the Secretary's finding that plaintiff did not suffer from a severe impairment. Accordingly, we reverse the District Court's judgment and remand the case to the District Court with instructions to remand this case to the Secretary for completion of the sequential evaluation process. In light of this disposition, we do not consider plaintiff's first and fifth issues.

I.

Appellant asserts that the severity requirement of the sequential evaluation process in 20 C.F.R. Sec. 416.920 conflicts with 42 U.S.C. Sec. 1382c(a)(3)(B), the statutory definition of disability. Title 42 U.S.C. Sec. 1382c(a)(3)(B) provides in pertinent part:

[A]n 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.

The Social Security Administration has promulgated 20 C.F.R. Sec. 416.920, which establishes a sequential process for evaluating a disability claim. 1 Under this five-step sequential

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evaluation process, 2 the Secretary initially determines whether a claimant currently engages in substantial gainful activity. If so, the claimant does not qualify as disabled. Second, the Secretary examines the severity of the claimant's impairment. If the claimant does not have a severe impairment which significantly limits the claimant's ability to do basic work activities, the claimant cannot qualify as disabled. Third, the Secretary compares the claimant's impairment to the "Listing of Impairments" in 20 C.F.R. Sec. 404, Subpart P, Appendix 1. The Secretary will find the claimant disabled if Appendix 1 lists the claimant's impairment or the claimant's impairment qualifies as the medical equivalent of a listed impairment. Fourth, if the claimant's impairment does not meet or equal a listed impairment, the Secretary next determines whether the claimant can perform the claimant's past work. If so, the claimant does not qualify as disabled. Finally, if the claimant cannot perform past work, the Secretary considers the claimant's residual functional capacity and the transferability of any skills the claimant may possess to determine whether the claimant qualifies as disabled.

In this case, the ALJ terminated the evaluation process when she determined that plaintiff did not have an impairment or combination of impairments, which significantly limited plaintiff's ability to do basic work related functions. Title 20 C.F.R. Sec. 416.921 (1985) defines and explains a non-severe impairment as follows:

(a) Non-severe impairment(s). An impairment or combination of impairments is not severe if it does not significantly limit your physical or mental ability to do basic work activities.

(b) Basic work activities. When we talk about basic work activities, we mean the abilities and aptitudes necessary to do most jobs. Examples of these include--

(1) Physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling;

(2) Capacities for seeing, hearing, and speaking;

(3) Understanding, carrying out, and remembering simple instructions;

(4) Use of judgment;

...

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