Blake v. Secretary of Health & Human Services

• Decision Date: 16 December 1981
• Docket Number: Civ. No. 80-74622.
• Citation: Blake v. Secretary of Health & Human Services, 528 F. Supp. 881 (W.D. Mich. 1981)
• Parties: Ida L. BLAKE, Plaintiff, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.
• Court: U.S. District Court — Western District of Michigan

528 F. Supp. 881

Ida L. BLAKE, Plaintiff, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.

Civ. No. 80-74622.

United States District Court, E. D. Michigan, S. D.

December 16, 1981.

Bruce L. Jerris, Levine & Benjamin, P. C., Detroit, Mich., for plaintiff.

Leonard R. Gilman, U.S. Atty., Hayward L. Draper, Asst. U.S. Atty., Detroit, Mich., for defendant.

MEMORANDUM OPINION AND ORDER

COHN, District Judge.

I.

This Social Security disability case is before the Court on plaintiff's objections to the Magistrate's Report and Recommendation that summary judgment be granted in favor of defendant Secretary. 28 U.S.C. § 636(b)(1).

Plaintiff filed an application for disability benefits in January 1979 alleging a disability commencing March 1, 1975; at the administrative hearing she changed her disability onset date to January 23, 1978 to avoid possible overlap with an earlier claim denial. After her application was administratively denied initially and on reconsideration, she requested a de novo hearing which was held before an administrative law judge (ALJ) on July 17, 1980. The ALJ held that plaintiff had not been under a disability at any time on or before the date of his decision. The Appeals Council affirmed on November 17, 1980 and this action followed. 42 U.S.C. § 405(g).

A.

Plaintiff was born January 30, 1919 and has a fifth grade education. Her work history consists of inspection and assembly work from 1953 to 1975 in an automobile plant; only the past fifteen years are considered relevant to this eligibility determination. 20 C.F.R. § 404.1565 (1981). From 1964-1967 plaintiff's job consisted of examining partially assembled car frames as they passed on the assembly line to check if the shocks and springs were properly fastened. She marked frames with nuts or washers loose or missing. She was not responsible for correcting the problems she marked, nor did she use any tools on the job. (Tr. 52-54).

From 1967-1975 plaintiff inspected cars at the end of the assembly line. Her job was to get into the assembled car and turn on the headlights, interior lights, radio, blower fan, and push the horn. If any of these items did not work she circled an appropriate symbol on a card and left it in the car. As in her prior job, she made no repairs herself and used no tools. (Tr. 55-58). Plaintiff took an early retirement in 1975 because, according to her testimony, her back problems made it impossible for her to get in and out of a car and thus precluded her continued employment as an inspector. (Tr. 52).

B.

The ALJ concluded, after hearing the testimony of plaintiff and a vocational expert and reviewing the medical evidence of record, that plaintiff suffered from degenerative arthritis of the lumbosacral and cervical spine and nephrolithiasis with recurrent kidney infections. These impairments prevent her from performing work requiring heavy lifting, prolonged standing and walking, and repetitive bending, stooping, squatting and kneeling, thus disabling her from her former work as a car inspector. However, the ALJ found plaintiff capable of at least sedentary work and possessed of transferable skills from her semi-skilled employment experience as an inspector. Applying the medical-vocational guidelines set forth at 20 C.F.R. Subpart P, Appendix 2, Table 1, the ALJ determined that plaintiff, although a person of advanced age and limited education, was capable of sedentary work and possessed of transferable skills and therefore was not disabled.

II.

Plaintiff first objects to the Magistrate's conclusion that the finding plaintiff could do sedentary work was supported by substantial evidence. She points to the report of Dr. MacNeil, an orthopedic surgeon. She claims that the ALJ ignored MacNeil's findings which were favorable to her in favor of the report of Dr. Juliar, an internist.

The statute requires the Court to accept the ALJ's factual findings as conclusive if supported by substantial evidence. Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion". Richardson v. Perales, 402 U.S. 389, 402, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). Dr. Juliar reported after examining plaintiff in April 1980 that although she suffered from chronic degenerative arthritic disease she was "certainly" capable of sedentary work not involving much bending, pulling or stooping. (Tr. 209). Dr. MacNeil's report is not to the contrary; he also noted "a serious impairment in her spine" but ventured no opinion as to her ability to work. (Tr. 202). A 1976 report by Dr. Maitra concluded that plaintiff's degenerative disc disease was only minor and she had no impairment of function. (Tr. 139-140). Plaintiff's family physician, Dr. Silvani, according to two very cursory letters dated 1975 and 1977 (Tr. 136, 155), advised her to stop working in 1975 because of her arthritis. However, a disability determination form filled out by Dr. Silvani in March 1979 only indicated an inability to stand, stoop, or bend for prolonged periods. (Tr. 197).

The Magistrate properly concluded that substantial evidence supported the ALJ's finding that plaintiff retained the ability to do sedentary work.

III.

A.

Plaintiff also objects to the findings that she is semi-skilled and has transferable skills. Because the ALJ determined that plaintiff was disabled from doing her former work, the burden shifted to the Secretary to show that there is work in the national economy which plaintiff can perform. Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980). Where an individual's claimed disability consists entirely of limited functional capacity caused by a severe, medically determinable impairment, as is the case here, the Secretary sustains his burden by taking administrative notice of the existence of jobs in relation to functional capacity, age, education, and prior work experience. Application of these factors through a table or "grid" dictates a determination of disabled or not disabled.¹ Plaintiff argues that the ALJ in applying the table incorrectly classified her prior work experience as semi-skilled and as imparting transferable skills.

B.

The vocational expert testified that plaintiff's work as a car inspector was semi-skilled because it required the use of judgment. (Tr. 88). The Magistrate noted that the regulations give as an example of semi-skilled work: "inspecting, testing or otherwise looking for irregularities".² The Court agrees that the ALJ's finding that plaintiff's prior work was semi-skilled is supported by substantial evidence.

C.

The Magistrate, however, failed to address the issue of whether plaintiff's prior work gave her transferable skills. Under the medical-vocational guidelines, a person limited to sedentary work, of advanced age³ and limited education or less⁴ is considered disabled even if prior work experience is semi-skilled if no transferable skills exist.⁵ The vocational expert testified that plaintiff's primary transferable work skill was "good visual acuity" and that other transferable skills were "good general intelligence, good hand-eye-foot coordination, good manual dexterity". (Tr. 88).

On cross-examination, plaintiff's counsel asked the expert if the "skills" he had described were in fact merely aptitudes. The expert conceded that what he had described were aptitudes but maintained that the words "skill" and "aptitude" were synonymous.

"I've indicated in my opinion the terms aptitudes and skills are synonymous and that an individual who functions as an inspector, in order to function in those jobs and perform them, one has to have a certain level of intelligence, manual dexterity, visual acuity and I've described those as transferable work skills."

(Tr. 96).

The vocational expert blurred an important difference between "skill" and "aptitude". Webster defines "skill" as the "learned power of doing something competently: a developed or acquired aptitude or ability".⁶ A skill, unlike a simple aptitude, is acquired and relates to doing a specific act. Although the regulations never explicitly define either skill or aptitude, this distinction is implicit. The regulations repeatedly assume that skills are acquired.⁷ Skills relates to specific "vocationally significant work activities",⁸ while aptitudes involve only "basic work activities ... necessary to do most jobs".⁹

The requirements that a skill relate to specific work activities and be acquired were satisfied in Kurkowski v. Secretary of Health and Human Services, No. 80-72398 (E.D.Mich. May 26, 1981), where this Court found that making assignments, coordinating activities and training employees were transferable skills acquired from work as a delivery supervisor. Cf. Holcomb v. Harris, No. 80-74621 (E.D.Mich. October 13, 1981) (prior experience in operating molding machine, welding, burring and spray painting demonstrated skills in working with machines and materials); Pettway v. Secretary of Health and Human Services, No. 79-70238 (E.D.Mich. June 27, 1980) (experience as machine operator imparted skills of gross and fine manipulation).¹⁰

The vocational expert testified in general terms that a person who performs inspection work needs visual acuity and intelligence, but failed to identify these basic aptitudes with specific "vocationally significant work activities" relating either to plaintiff's past or potential future employment. (Tr. 95).¹¹ Although stating that aptitudes become skills "as a result of the practice that an individual applies to specific jobs" (Tr. 95), he did not claim, nor could he have, that plaintiff's eyesight and intellect were acquired, or even enhanced, by her specific work experience.

Hand-eye-foot coordination and manual dexterity might be considered skills if acquired from work activity requiring rapid, repetitive or fine manipulation. 20 C.F.R. § 404.1568(b) (1981).¹² See Holcomb, supra; Pettway, supra. However, here the evidence showed that plaintiff simply marked...