Allen v. Bowen, 89-1085

• Decision Date: 25 July 1989
• Docket Number: No. 89-1085,89-1085
• Citation: 881 F.2d 37
• Parties: , Unempl.Ins.Rep. CCH 14810A ALLEN, William H., Appellant, v. BOWEN, Otis, R., Secretary of Health and Human Services.
• Court: U.S. Court of Appeals — Third Circuit

Page 37

881 F.2d 37

26 Soc.Sec.Rep.Ser. 494, Unempl.Ins.Rep. CCH 14810A

ALLEN, William H., Appellant, v. BOWEN, Otis, R., Secretary of Health and Human Services.

No. 89-1085.

United States Court of Appeals Third Circuit.

Argued June 8, 1989.

Decided July 25, 1989.

James M. Lafferty (argued), Community Legal Services, Inc., Philadelphia, Pa., for appellant.

Michael M. Baylson, U.S. Atty., Richard Mentzinger, Jr., Asst. U.S. Atty., E.D.Pa., Beverly Dennis, III, Chief Counsel, Region III, Charlotte Hardnett, Chief, Social Sec., Litigation Div., Victor J. Pane (argued), Asst. Regional Counsel, Office of General Counsel, Dept. of Health and Human Services, Philadelphia, Pa., for appellee.

Before BECKER, STAPLETON and GARTH, Circuit Judges.

OPINION OF THE COURT

STAPLETON, Circuit Judge:

This case involves the review of a denial of Supplemental Security Income ("SSI") benefits by the Secretary of Health and Human Services ("Secretary"). The Secretary determined that the claimant was able to perform light work and had transferable skills, and that accordingly, pursuant to the applicable regulations, he was not disabled. The district court found that the claimant was able only to perform sedentary work but because of his transferable skills, was not disabled. We agree that the Secretary erred in finding the claimant able to perform light work, but additionally conclude that the Secretary failed to establish that the claimant possessed transferable skills. Accordingly, we will reverse the Secretary's determination and direct that benefits be provided.

I.

William H. Allen, the appellant in this case, is a fifty year old man with a tenth grade education. He worked for approximately eighteen years as a meat cutter and foreman at a meat company. Allen applied for disability benefits in December 1986, alleging that he was unable to engage in any substantial gainful activity because of a combination of several impairments, including abdominal injuries from a gunshot wound and a stab wound, poor vision, a heart condition and a breathing problem, which have resulted in extended hospital care since 1985. Specifically, from July 1985 to November 1987, Allen underwent the following hospitalizations: surgery for repair of a mandible fracture at Misericordia Hospital (July, 1985); treatment for alcoholism at Eagleville Hospital (November--December, 1985); treatment for repair of a stab wound in the abdomen at Misericordia Hospital (February, 1986); surgery for bowel obstruction and adhesions at the Giuffre Medical Center (April, 1986); follow-up surgeries for multiple bowel adhesions at the Giuffre Medical Center (April--July, 1986); surgery for cataracts at the Wills Eye Hospital (February, 1987); and surgery for hernia repair at the Giuffre Medical Center (July, 1987).

Allen's claim was denied initially and on reconsideration by the Social Security Administration. Allen subsequently requested and obtained a hearing on the issue of his disability, which was held on November 17, 1987 before an Administrative Law Judge ("ALJ"). Allen submitted for consideration medical reports from his treating physician indicating, inter alia, that as a result of his multiple surgeries in his abdomen, he was not to perform any heavy lifting. ¹ Another medical report, compiled at the request of the Pennsylvania Bureau of Disability Determination, confirmed the history of multiple surgeries to the abdomen; indeed, the consulting physician noted that "the patient's abdomen looked like a roadmap. There were multiple scars in all areas." Tr. at 152.

At the hearing, Allen testified that he had been told not to lift anything over ten pounds. He reported that walking five or six blocks brought on dizziness and shortness of breath and that sometimes he experienced headaches and loss of balance. He further testified that he continued to experience pain from his hernias. A vocational expert nonetheless testified that considering Allen's prior job experience and his physical limitations, there were jobs available in the national economy that he could perform.

On December 21, 1987, the ALJ found that, although Allen had established that he could no longer perform his past employment as a meat cutter, he nevertheless had the residual functional capacity to perform the full range of "light work" as specified in 20 C.F.R. Sec. 416.967(b). The ALJ further found Allen to possess transferable skills and to be a "younger person." Accordingly, pursuant to Rule 202.19 of 20 C.F.R. Part 404, Subpart P, Appendix 2, Table 2, which directs that an individual who has the residual functional capacity for light work, is a younger person, has a limited education with transferable work skills is "not disabled," the ALJ denied benefits. The ALJ's decision became final on July 14, 1988 after the Appeals Council denied Allen's request for review. This action seeking judicial review of the Secretary's decision followed. 42 U.S.C. Sec. 405(g).

The parties filed cross-motions for summary judgment in the district court, and the Secretary's motion was granted. The court found the ALJ's conclusion that Allen was not disabled to be supported by substantial evidence. The court further found, however, that the ALJ committed two errors in arriving at its conclusion. First, the court determined that Allen is not a "younger person," defined in 20 C.F.R. Sec. 416.963(b) to be a person under the age of fifty, as so found by the ALJ. Since Allen was born on November 12, 1937, the district court reasoned that at the time of the hearing on November 17, 1987, Allen was fifty years old and, accordingly, was a "person approaching advanced age." 20 C.F.R. Sec. 416.963(c). ² Second, the court determined that the ALJ's finding that Allen could perform "light work" was not supported in the record; rather, according to the treating physician's reports, he was able only to undertake "sedentary work." The district court concluded, however, that both these errors were harmless because under the applicable regulations an individual who has the residual functional capacity for sedentary work, is approaching advanced age, and has a limited education with transferable work skills is "not disabled." Rule 201.11 of 20 C.F.R. Part 404, Subpart P, Appendix 2, Table 1. Allen appeals.

Our standard of review, as was the district court's, is whether the Secretary's decision is supported by substantial evidence in the record. See, e.g., Woody v. Secretary of Health and Human Services, 859 F.2d 1156, 1159 (3d Cir.1988).

II.

An entitlement to SSI disability benefits is established when a medically determinable impairment of such severity as to prevent an individual from engaging in any kind of "substantial gainful work which exists in the national economy," for a minimum statutory twelve-month period, is demonstrated. 42 U.S.C. Sec. 423(d)(2)(A). In proving such a disability, the claimant is required to show that he is unable to return to his former job because of physical or mental impairments. See Heckler v. Campbell, 461 U.S. 458, 103 S.Ct 1952, 76 L.Ed.2d 66 (1983); Kangas v. Bowen, 823 F.2d 775 (3d Cir.1987). Once a claimant has proved that he is unable to perform his former job, however, the burden shifts to the Secretary to prove that there is some other kind of substantial gainful employment that the individual is able to perform. Kangas, 823 F.2d at 777; Chicager v. Califano, 574 F.2d 161 (3d Cir.1978). The Secretary is to consider such factors as the claimant's physical ability, age, education and work experience. 42 U.S.C. 423(d)(2)(A); 20 C.F.R. Sec. 404.1520(f).

In this case the Secretary does not contest the ALJ's finding that Allen carried his initial burden under the regulations of proving that he no longer could engage in his past relevant occupation as a foreman at a meat company because of the heavy exertional demands of that job. Allen testified that it was necessary for him to lift weights ranging from 45 to 120 pounds, and the vocational expert confirmed that Allen's former job would be classified as "heavy" work.

Rather, the issues in this case involve whether the Secretary met his burden of proving that the claimant could nevertheless perform some other job in the national economy. ³ More specifically, Allen challenges the sufficiency of the evidence on two critical findings made by the ALJ, first, that he could perform "light work," and second that he possessed transferable skills. ⁴ In response, the Secretary suggests that there is ample evidence in the record to support the ALJ's findings on these two issues. Alternatively, the Secretary argues that even if we should find that the Secretary failed to carry his burden, the appropriate relief is a remand to the agency for further development of the record. We agree with Allen that the Secretary's findings in these two respects are not supported by substantial evidence and moreover conclude, in light of the Secretary's failure to adduce sufficient proof, that remand to the agency is not appropriate. We find that a direction for an award of benefits is in order.

a. Residual Work Capacity.

Allen's treating physician, Dr. Giuffre, in a letter summarizing Allen's medical history, explained that "because of his multiple surgeries and poor tissue and because of the mesh graft holding his incision [for treatment of his hernia] together, he has been advised to permanently not do any heavy lifting of any kind." App. at 112. Dr. Giuffre further noted that, although Allen "will be partially physically incapacitated for the rest of his life," App. at 113, his prognosis is "excellent except for the previously mentioned physical limitations." App. at 112. The parties in this case agree that a treating physician's report must be accorded great weight, especially when their opinion "reflects expert judgment based upon continuing observation of the patient's condition over a prolonged period of time." Rocco v. Heckler, 826 F.2d 1348, 1350 (...