Bapp v. Bowen, 1477

• Citation: 802 F.2d 601
• Decision Date: 25 September 1986
• Docket Number: D,No. 1477,1477
• Parties: , Unempl.Ins.Rep. CCH 17,066 Charles BAPP, Plaintiff-Appellee, v. Otis R. BOWEN, Secretary Health and Human Services, Defendant-Appellant. ocket 86-6084.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 601

802 F.2d 601

15 Soc.Sec.Rep.Ser. 169, Unempl.Ins.Rep. CCH 17,066

Charles BAPP, Plaintiff-Appellee, v. Otis R. BOWEN, Secretary Health and Human Services Defendant-Appellant.

No. 1477, Docket 86-6084.

United States Court of Appeals Second Circuit.

Argued June 24, 1986.

Decided Sept. 25, 1986.

Christopher B. Baril, Asst. U.S. Atty., Dist. of Vermont, Rutland, Vt. (George W.F. Cook, U.S. Atty., Rutland, Vt., of counsel), for defendant-appellant.

Vincent Illuzzi, Orleans, Vt., submitted a brief for plaintiff-appellee.

Before MANSFIELD, NEWMAN and CARDAMONE, Circuit Judges.

CARDAMONE, Circuit Judge:

The question before us on this appeal is whether the Secretary of Health and Human Services (Secretary) must produce a vocational expert to testify as to a disability claimant's alternative vocational capacity whenever the claimant presents proof that he suffers from a nonexertional impairment in addition to his exertional impairment. The United States District Court for the District of Vermont (Billings, J.) held on February 18, 1986 that the testimony of a vocational expert was always required in these circumstances. The Secretary appeals.

We do not adopt the district court's fixed rule. Instead, we believe that the mere existence of a nonexertional impairment does not automatically require the production of a vocational expert nor preclude reliance on the guidelines. A more appropriate approach is that when a claimant's nonexertional impairments significantly diminish his ability to work--over and above any incapacity caused solely from exertional limitations--so that he is unable to perform the full range of employment indicated by the medical vocational guidelines, then the Secretary must introduce the testimony of a vocational expert (or other similar evidence) that jobs exist in the economy which claimant can obtain and perform.

Because the record does not adequately explain or determine the extent to which Bapp's nonexertional impairment would further diminish his capacity to perform "light work", the category into which the claimant would otherwise have been placed, see 20 C.F.R. Pt. 404, Subpt. P, App. 2, Sec. 202.00 (1986), we remand this case to the Secretary to make that determination, consistent with the standards we now set forth.

I

On September 15, 1983 claimant Charles Bapp filed an application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. Secs. 401-433 (1982), and for Supplemental Security Income Benefits under Title XVI of the Social Security Act, 42 U.S.C. Secs. 1381-1383 (1982). He alleged an inability to work dating back to November 13, 1982 due to coronary artery disease, chest pains, a hiatal hernia, chronic fainting and blackouts, poor circulation, and arthritis of the spine.

The application for disability benefits was denied initially and again upon reconsideration. An Administrative Law Judge (ALJ) considered the case de novo, and on July 18, 1984 found Bapp "not disabled" within the meaning of the Social Security Act. Bapp, who was then 49 years old with a seventh-grade education, had previously worked as a furniture set-up operator which required some heavy lifting. It is undisputed that he cannot resume this employment. After hearing medical testimony the ALJ found that the evidence established that claimant had severe coronary artery disease (an exertional impairment). Taken alone, this exertional impairment would restrict claimant to "light work". The ALJ did not wholly credit Bapp's additional allegations of blackouts and coughing spells (nonexertional impairments) and found that "claimant's capacity for the full range of light work has not been significantly compromised by his additional nonexertional limitations." The ALJ concluded therefore that under the applicable medical vocational guidelines, 20 C.F.R. Sec. 404.1569 (1986) et seq., Bapp was not disabled. Nonetheless, the ALJ gave enough credence to claimant's claims of blackouts to state that he should not work at heights or around dangerous machinery:

The claimant and his wife have recently testified as to the occurrence and the frequency of his blackout spells; however, again it is noted that the objective medical evidence cannot demonstrate a physical impairment which could reasonably be expected to cause such symptoms. It is felt by the undersigned that the claimant's diagnosis of tussive syncope is difficult to objectively establish and although the claimant should avoid working around dangerous machinery and heights because of the possibility to [sic] being injured, there would not be sufficient restriction in his residual functional capacity so as to prevent him from performing any substantial gainful activity.

The district court reversed holding that whenever a nonexertional impairment is presented the Secretary must introduce a vocational expert to testify that jobs in the workplace exist for a person with that particular disability. Rather than remanding to allow the Secretary an opportunity to introduce such an expert, the district court believed that since the Secretary lacked good cause for not producing its expert earlier, it had lost that opportunity. As a consequence, the case was remanded by the district court to the ALJ merely for the calculation of claimant's benefits.

II

Because the question of whether expert testimony is necessary presents a question of law, we examine the district court's determination in light of the pertinent regulations and decisions. The Secretary has promulgated a five-step sequence for evaluating disability claims. See 20 C.F.R. Secs. 404.1520, 416.920 (1986). Because Bapp is not currently engaged in substantial gainful activity, has a severe impairment that significantly limits his physical or mental ability to perform work, and cannot perform past relevant work, his impaired condition satisfies the majority of these steps. Only the fifth step is disputed--whether there is other work that claimant could perform. See Berry v. Scheiker, 675 F.2d 464, 467 (2nd Cir.1982).

Once a disability claimant proves that his severe impairment prevents him from performing his past work, the Secretary then has the burden of proving that the claimant still retains a residual functional capacity to perform alternative substantial gainful work which exists in the national economy. Id. See also Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980). In the ordinary case the Secretary satisfies his burden by resorting to the applicable medical vocational guidelines (the grids), 20 C.F.R. Pt. 404, Subpt. P, App. 2 (1986).

Here, if claimant only suffered from exertional impairments, the grids would require a conclusion that he was not disabled based upon his age, education and prior work experience. According to the grids, Bapp would then have the residual functional capacity to perform "light work". But if a claimant suffers from additional "nonexertional" impairments, the grid rules may not be controlling. Section 200.00(e)(2) provides:

[W]here an individual has an impairment or combination of impairments resulting in both strength limitations and nonexertional limitations, the rules in this subpart are considered in determining first whether a finding of disabled may be possible based on the strength limitations alone and, if not, the rule(s) reflecting the individual's maximum residual strength capabilities, age, education, and work experience provide a framework for consideration of how much the individual's work capability is further diminished in terms of any types of jobs that would be contraindicated by the nonexertional limitations. Also, in these combinations of nonexertional and exertional limitations which cannot be wholly determined under the rules in this Appendix 2, full consideration must be given to all of the relevant facts in the case in accordance with the definitions and discussions of each factor in the appropriate sections of the regulations, which will provide insight into the adjudicative weight to be accorded each factor.

20 C.F.R., Pt. 404, Subpt. P, App. 2 Sec. 200.00(e)(2)(1986) (emphasis added).

Similarly, Sec. 200.00(a), Introduction to the Guidelines, provides that "[w]here any one of the findings of fact does not coincide with the corresponding criterion of a rule, the rule does not apply in that particular case and, accordingly, does not direct a conclusion of disabled or not disabled." Id. at Sec. 200.00(a). Consequently, the language...