Abbott v. Sullivan

Decision Date08 June 1990
Docket NumberNo. 89-2119,89-2119
Parties, Unempl.Ins.Rep. CCH 15533A Eddie W. ABBOTT, Plaintiff-Appellant, v. Louis M. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Mark W. Viel, Walz, Stanton & Viel, Big Rapids, Mich., for plaintiff-appellant.

Ayrie Moore, Dept. of Health and Human Services, Office of the Gen. Counsel, Region V, Chicago, Ill., Michael L. Shiparski, Asst. U.S. Atty., Grand Rapids, Mich., for defendant-appellee.

Before MERRITT, Chief Judge, and GUY and NORRIS, Circuit Judges.

RALPH B. GUY, Jr., Circuit Judge.

The claimant, Eddie W. Abbott, appeals a district court judgment affirming the final decision of the Secretary of Health and Human Services (the Secretary) denying his application for disability insurance benefits 42 U.S.C. Sec. 401 et seq., and supplemental security income, 42 U.S.C. Sec. 1382 et seq. We find merit in the claimant's argument that the Secretary misapplied the Medical-Vocational Guidelines to direct a finding of "not disabled" despite the presence of a severe nonexertional impairment. In addition, the record reveals that the Secretary has improperly failed to consider Abbott's eligibility for benefits under the listing for mental retardation contained in appendix 1 of the Social Security Administration Regulations (the Regulations). 20 C.F.R. Part 404, Subpt. P, App. 1 Sec. 12.05. Accordingly, we remand to the Secretary for reconsideration of Abbott's claims.

I.

Abbott filed an application for disability insurance benefits (DIB) and supplemental security income (SSI) in July of 1986, alleging that he had been disabled since November 1984 due to a damaged left knee and pain in his right ankle. His applications were denied initially and again upon reconsideration. Abbott then sought a hearing before an administrative law judge (ALJ), which was held in March of 1988.

At the time of the hearing, Abbott was 35 years old and living with his wife and four children. He had formerly worked as a janitor, a night watchman, and, for a short time, as a welder, but had not performed any substantial gainful activity since November 1981. Although he had passed a high school equivalency test, Abbott claimed that he was unable to read the questions and that he had merely guessed at the answers. Abbott testified that he generally had difficulty with reading and writing, and was unable to perform even simple calculations.

At the hearing, Abbott complained of injuries to his left knee, right shoulder, and right ankle. In addition, he described a painful lower back condition consisting of a steady ache turning to sharp pain upon the application of pressure. He also related that his fingers often became swollen and painful, restricting manipulation.

The only one of the claimant's physical impairments discussed in any detail at the hearing was his knee injury. According to his testimony, Abbott damaged his left knee when he fell from a horse in 1982 and again while operating a floor buffer in 1984. He underwent surgery both times. A knee brace was prescribed after the first operation, but Abbott found it ineffective, and has since used a cane instead.

Abbott claimed that pain in his back and cramps in his legs prevented him from sitting or standing for more than 15 or 20 minutes at a time and compelled him to lie down two or three times per day. According to his testimony, Abbott could walk on a level surface for one city block at the most and could not walk on uneven ground at all.

The claimant related several attempts to work since the onset of his alleged disability. He stated that he had attempted a job unloading trucks but had been unable to perform the lifting required. He also tried work as a parts assembler, but claimed that weakness in his back prevented him from remaining at the job. When asked if he felt able to perform sedentary work, he responded that he did not, pointing out that he was unable to sit for long periods without moving or lying down due to his backache and leg cramps.

Finally, Abbott indicated that he had several times contemplated taking his own life, and related one incident in which he had attempted to kill himself by swallowing an overdose of pills.

At the conclusion of Abbott's testimony, the ALJ interviewed a vocational expert (VE). The VE testified that all of the claimant's past work had been unskilled and very heavy. Upon being instructed to assume that Abbott had the capacity for sedentary work, had a limited education with borderline literacy, and required a job with a "sit/stand option," the VE testified that the claimant could perform entry level employment involving simple routine tasks such as small parts assembly or packaging light articles. The VE estimated that 23,000 such jobs existed in Michigan's lower peninsula.

The medical evidence before the ALJ consisted of several medical reports on the condition of the claimant's left knee, x-rays of his right shoulder and ankle, and a consultative psychological examination. Dr. Dunstan, the physician who performed the first operation on the claimant's knee in July of 1983, diagnosed "[i]nternal derangement of the left knee, medial meniscus laceration and medial femoral condyle articular damage." This diagnosis was confirmed by at least seven other doctors whose examinations of the claimant are included in the record. 1 The general consensus of these opinions was that Abbott's knee was markedly unstable and incapable of supporting his weight without the aid of a brace. An x-ray of the plaintiff's spine revealed a mild scoliosis and an inflamed back muscle. There was no medical evidence supporting any of Abbott's other claims of physical impairment. 2 Three of the seven doctors who examined Abbott expressed an opinion as to his physical capacity to work; all three indicated that the claimant would be able to perform a sedentary job with the aid of a knee brace.

Because of Abbott's attempted suicide, the Secretary referred him to Dr. Lawrence Probes for a psychological examination. Dr. Probes noted that his interview with the claimant was "difficult because of [Abbott's] psychomotor retardation, as well as his slow, pressured speech." Dr. Probes wrote that the claimant often appeared to be speaking past him, a response "typical of that seen in the passive aggressive individual." The report indicates impaired memory and concentration, and below average intelligence. Abbott was incapable of making change for a dollar, even after a concerted effort, and seemed unable to understand the concept of direction.

Dr. Probes noted symptoms of "major depression which very likely will require an antidepressant medication." He concluded his report in the following language:

[Abbott] may well be exhibiting some mild organic brain syndrome, possibly a chronic and residual effect of alcohol and a combination of other substances abused over time. He may very well have learning disabilities which hamper him educationally. Because of his overal [sic] combination of severe character disorder and prolonged disability, I think his prognosis is quite poor.

In his final decision, the ALJ determined that Abbott's testimony regarding his pain and restriction of activity was exaggerated in relation to the medical evidence on record. He found that Abbott's combination of physical impairments prevented him from returning to his job as a janitor, but left him with the residual functional capacity to perform the unskilled sedentary employment described by the VE. After discussing the claimant's mental impairments as revealed by Dr. Probes, the ALJ noted that the psychiatric review contained no indication that Abbott had suffered from depression for more than a brief period of time. He was therefore "unable to interpret the report as indicating the claimant would have been precluded because of his depression or personality difficulties from performing full-time work for a significant period of time." Accordingly, the ALJ found that Abbott's mental impairments did not prevent him from performing the jobs suggested by the VE, and that he was therefore not disabled under the terms of the Act. The ALJ also indicated that rule 201.24, contained in the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpt. P, App. 2, directed such a finding.

The Appeals Council granted Abbott's request for review of the ALJ's decision because the ALJ had failed to explain that, after Abbott had demonstrated his inability to perform past employment, the Secretary bore the burden of proving that Abbott could perform a significant number of other jobs then existing in the national economy. See 20 C.F.R. Secs. 404.1520 and 416.920. The Appeals Council invited Abbott to submit additional evidence of disability, which he did in the form of a psychological report by Dr. Forrest Braack, Ph.D.

Dr. Braack administered an intelligence test in which he "specifically utilized the Stanford-Binet Intelligence Scale because it has been shown to be the most accurate instrument for measuring global level of intellectual functioning, especially at the middle to lower end of the intelligence range." Dr. Braack found that Abbott had attained an overall mental age of 9.3 years, resulting in a "deviation IQ (1972 Binet L-M normed tables) of 56, which places the client's intellectual skills within the mildly retarded level of intellectual functioning." In his summary, Dr. Braack found that, "[i]n general, Mr. Abbott showed relative strengths in vocabulary and verbal fluency and general comprehension. Most notable weaknesses were in memory and concentration and visual-motor ability."

The report also includes Abbott's scores on the Slosson Oral Reading Test (SORT), which indicate that he possesses the reading skills of a third grade child. Dr. Braack explained: "From the SORT it appeared that Mr. Abbott has little or...

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