Allen v. Sullivan

• Decision Date: 23 June 1989
• Docket Number: No. 88-8680,88-8680
• Parties: , Unempl.Ins.Rep. CCH 14863A Margaree ALLEN, Plaintiff-Appellant, v. Louis SULLIVAN, Secretary of Health and Human Services, Defendant-Appellee. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1200

880 F.2d 1200

26 Soc.Sec.Rep.Ser. 317, Unempl.Ins.Rep. CCH 14863A

Margaree ALLEN, Plaintiff-Appellant, v. Louis SULLIVAN, Secretary of Health and Human Services Defendant-Appellee.

No. 88-8680

Non-Argument Calendar.

United States Court of Appeals Eleventh Circuit.

June 23, 1989.

Charles L. Martin, Decatur, Ga., for plaintiff-appellant.

Nina L. Hunt, Asst. U.S. Atty., Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before TJOFLAT, FAY and KRAVITCH, Circuit Judges.

PER CURIAM:

Appellant asks us to vacate the district court's judgment, which affirmed the Secretary's decision denying her application for social security benefits, and to remand the case to the Secretary for further proceedings. She makes two points: (1) the Administrative Law Judge (ALJ) erred in relying on the Medical Vocation Guidelines, the "Grids," rather than the opinion of a vocational expert in deciding the question of appellant's disability; and (2) the ALJ erred in rejecting as incredible appellant's complaints of pain. We find no merit in appellant's second point. We do believe, however, that the ALJ should have sought the opinion of a vocational expert and accordingly vacate the district court's judgment and order the case remanded to the Secretary for further proceedings.

Appellant, who has a high school education, was fifty-two years old at the time of her administrative hearing and had not worked in over fifteen years. She could not work, she said, because of almost constant pain. Appellant had a history of back injury, with chronic intermittent low back pain and degenerative disc disease, degenerative disease of the right hip joint, and chronic anxiety and depression. According to a clinical psychologist, appellant's academic achievement was much lower than that of a high school graduate; in fact, she was functioning intellectually as a person of borderline mental retardation. In addition, appellant was experiencing many somatic problems that affected her judgment and ability to cope with everyday stress. In the "Medical Assessment of Ability to Do Work-related Activities (Mental)," the psychologist rated appellant's ability to function in the following areas as seriously limited but not precluded: exercising judgment in making occupational adjustments; dealing with work stresses; maintaining attention and concentration; and understanding, remembering, and carrying out detailed but not complex job instructions.

The ALJ found that appellant has a severe dysthymic disorder, degenerative disc disease, arthritis in the right hip, and borderline intellectual functioning, but that she does not have "an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4." Appellant, according to the ALJ, has "the residual functional capacity to perform the physical exertion and non-exertional requirements of work except for lifting and carrying exceeding the light exertional level, performing complex tasks and tolerating extraordinary stress." He found that appellant's residual functional capacity for the full range of light work was reduced only slightly by her non-exertional limitations and, applying the grids, concluded that she was not disabled.

Appellant contends that the ALJ's use of the grids to arrive at a conclusion of not disabled was inappropriate because her pain, inability to tolerate stress, reduced ability to pay attention, concentrate, and exercise judgment, and her borderline mental retardation significantly compromise her ability to perform a full range of light work. The Secretary, in response, contends that appellant's exertional and non-exertional limitations, even when viewed in combination, are not severe enough to prevent a full range of light work; therefore, the ALJ did not err in applying the grids.

The claimant has no relevant work history. Thus, if the Secretary is able successfully to point to work in the national economy that appellant can perform and appellant cannot demonstrate her inability to perform such work, disability will not be found. See Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir.1987).

An ALJ has the obligation of developing a full and fair record regarding the vocational opportunities available to a claimant. See Welch v. Bowen, 854 F.2d 436, 440 (11th Cir.1988). The ALJ must articulate specific jobs that the claimant is able to perform, and this finding must be supported by substantial evidence, not mere intuition or conjecture. See Cowart v. Schweiker, 662 F.2d 731, 736 (11th Cir.1981). In appropriate circumstances, the grids may be used in lieu of vocational testimony. See Gibson v. Heckler, 762 F.2d 1516, 1520 (11th Cir.1985). However, " '[e]xclusive reliance on the grids is not appropriate either when the claimant is unable to perform a full range of work at a given residual functional level or when a claimant has a non-exertional impairment that significantly limits basic work skills.' " Walker v. Bowen, 826 F.2d 996, 1002-03 (11th Cir.1987); (quoting Francis v. Heckler, 749 F.2d 1562, 1566 (11th Cir.1985)). Ordinarily, when non-exertional limitations are alleged, vocational testimony is used. See Cowart v. Schweiker, 662 F.2d at 736; see also MacGregor v. Bowen, 786 F.2d 1050, 1054 (11th Cir.1986) ("When there have been non-exertional factors (such as depression and medication side effects) alleged, the preferred method of demonstrating that the claimant can...