Cole v. Secretary of Health and Human Services

• Decision Date: 01 June 1987
• Docket Number: No. 86-1146,86-1146
• Citation: 820 F.2d 768
• Parties: , Unempl.Ins.Rep. CCH 17,390 Shelah COLE, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 768

820 F.2d 768

18 Soc.Sec.Rep.Ser. 43, Unempl.Ins.Rep. CCH 17,390

Shelah COLE, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.

No. 86-1146.

United States Court of Appeals Sixth Circuit.

Argued Feb. 17, 1987.

Decided June 1, 1987.

A. Michael Jaffe, Southfield, Mich., Philip Chris Corts (argued), Cincinnati, Ohio, for plaintiff-appellant.

Ross I. MacKenzie, Asst. U.S. Atty., Detroit, Mich., Blanca Bianchi de la Torre (argued), Dept. of Health and Human Services, Office of the Gen. Counsel, Chicago, Ill., for defendant-appellee.

Before MERRITT, WELLFORD and MILBURN, Circuit Judges.

WELLFORD, Circuit Judge.

Appellant Shelah Cole appeals from the district court order affirming the final decision of the Secretary of Health and Human Services denying his application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. Sec. 423. For the reasons that follow, we REMAND the case to the Secretary for further consideration.

Appellant, born on December 14, 1933, last worked as a material handler in the steel industry in 1974. Most of the material was lifted by hand, but some was transported by a hi-lo vehicle, which appellant operated approximately ten hours a week. Appellant stopped working in 1974 and was granted disability benefits in October 1974. The benefits were terminated in October 1981, and an ALJ affirmed the termination. Appellant never appealed that decision. In January 1984 appellant filed the current application for benefits, claiming disability on the basis of an enlarged heart, high blood pressure, asthma, arthritis, and a hernia. Although he alleged that he had been disabled since 1974, he conceded that this application was a "new application reflecting the period October 1981 through today." The Secretary denied benefits.

Cole testified at the administrative hearing that he suffers from numerous impairments. First, he suffers from chest pains that are sharp pains radiating down his left arm (Cole is left handed) and into his neck. These pains occur approximately three times a week and may be brought on by exertion or, according to Cole, sometimes when he is sitting doing nothing. He also suffers from asthma, shortness of breath, gout, hypertension, headaches, dizziness, arthritis, and a hernia. He attributes the headaches and dizziness to the hypertension.

The medical evidence included reports from two doctors. Dr. Ganesh, plaintiff's treating physician, stated in a report dated January 18, 1984 that Cole complained of chest pains, shortness of breath, severe headaches, and occasional nosebleeds. Dr. Ganesh noted blood pressure readings of 150/90 in December 1983; 150/110 in December 1983; and 150/90 in January 1984. Dr. Ganesh noted no reflex, sensory, or motor abnormalities and no limitation in the range of motion. Dr. Ganesh diagnosed uncontrolled hypertension, hypertensive cardiovascular disease, and arthritis. Dr. Ganesh concluded that "it is very difficult for the patient to perform any daily activity do [sic] to the nature of his illness."

Dr. Patel, an internist who examined Cole on March 5, 1984 at the Secretary's request, stated in his report that Cole complained of hypertension, headaches and dizziness, asthma, gout for which he takes Zyloprim, and low back pain. Cole indicated to Dr. Patel that he was taking Aldonet, Inderal, a water pill, Nitroglycerin for chest pain, and Motrin for his back. An x-ray of the lumbosacral spine showed lumbar osteoarthritis with narrowing of the L-5, S-1 disc space, but range of motion in lower back and knees was normal.

Dr. Patel determined that "clinically there was no evidence of congestive heart failure, asthma, or any peripheral vascular disease." A funduscopic examination revealed Grade 1 hypertensive changes and blood pressure of 160/108 on the right and 150/104 on the left. A resting EKG showed no significant abnormalities. During a five-minute stress test, Cole reached a heart rate of 154, and there was no significant elevation of blood pressure or ST changes. The stress test was discontinued when Cole complained of fatigue and shortness of breath. On the basis of his examination, Dr. Patel diagnosed uncontrolled hypertension, mild to moderate exogenous obesity, history of gout and chest pains more often with exertion, and recurrent lumbar myofascitis. Dr. Patel ruled out the possibility of mild anxiety state and angina pectoris.

Samuel Goldstein, a vocational expert, testified that appellant's prior work experience would be classified as somewhere between unskilled and semi-skilled, with an exertional level varying from light to heavy. Goldstein explained that the work as a hi-lo vehicle operator was the "skill" factor in the semi-skilled classification of the job. When asked if that work imparted "any skills which are transferable to any sedentary work," Goldstein responded, "skills ... involved with the general vehicle operating area." Two sedentary vehicle operating positions are in-plant jitney operator and messenger vehicle operator, the latter described as "people that basically drive a car all day." Goldstein testified that 5,500 sedentary vehicle jobs existed in the area, but only 2,750 jobs did not require exposure to cold weather. Responding to a hypothetical question, Goldstein testified that if Cole were found to suffer from dizziness, sweats, shortness of breath, high blood pressure, gout, and chest pains, "those findings would rule out any and all vehicle operating."

The ALJ concluded that Cole had not engaged in substantial gainful activity since 1974 and was unable to perform his past relevant work. He also concluded that Cole has severe chest pains and hypertension, but that Cole's testimony was exaggerated and Cole did not have an impairment or combination of impairments listed in the regulations. The ALJ determined that Cole had the residual functional capacity for the full range of sedentary work and that he had acquired transferable work skills that can be applied to the sedentary jobs of in-plant jitney driver or messenger vehicle operator. For these reasons, the ALJ found that Cole was not entitled to benefits.

Cole requested review by the Appeals Council and submitted reports from Mary Ann Johnson, a rehabilitation specialist, and Dr. Ganesh. Ms. Johnson characterized the job of material handler as "basically heavy, unskilled work," and noted that "operating a vehicle such as a high low would ... be generally considered within the semi-skilled range." Based on Cole's complaints of chest pain and dizziness, however, Ms. Johnson concluded that Cole would be precluded from operating a vehicle because of safety considerations.

Dr. Ganesh's report reflected examinations performed from December 1983 to June 1984. Dr. Ganesh observed that Cole was experiencing chest pains and dizziness. Blood pressure levels were 150/100 in December 1983, 160/110 in January 1984, and 140/100 in February 1984. Cole was taking various medications and prescriptions for gout, for high blood pressure, and for his other complaints. An EKG, dated June 14, 1984, showed sinus bradycardia and left ventricular hypertrophy, and a chest x-ray, dated March 6, 1984, showed left ventricular enlargement. Dr. Ganesh diagnosed hypertensive cardiovascular disease, uncontrolled hypertension, hernia, and gout. He concluded that Cole "is totally disabled and cannot work or be engaged in any gainful operation."

After considering these two reports, the Appeals Council affirmed the ALJ's decision, which became the final decision of the Secretary. The magistrate, on referral of the case, recommended that the Secretary's decision be reversed, finding that "the ALJ's determination that plaintiff had transferable skills is erroneous as a matter of law" because the qualities involved in operating a hi-lo are aptitudes rather than skills. The district court rejected the magistrate's recommendation, finding substantial evidence to support the Secretary's decision.

Pursuant to 42 U.S.C. Sec. 405(g), judicial review of the Secretary's decision is limited to determining whether substantial evidence exists in the record as a whole to support the decision. The reviewing court "may not try the case de novo, nor resolve conflicts in evidence, nor decide questions of credibility." Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.1984). The Secretary is charged with finding the facts relevant to an application for disability benefits, and the Secretary's findings, if supported by substantial evidence, are conclusive. 42 U.S.C. Sec. 405(g).

Substantial evidence is " 'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). "Substantiality of the evidence must be based upon the record as a whole" and " 'must take into account whatever in the record fairly detracts from its weight.' " Garner, 745 F.2d at 388 (quoting Beavers v. Secretary of Health, Education & Welfare, 577 F.2d 383, 387 (6th Cir.1978)).

Once the claimant establishes that he cannot perform his past relevant work, the burden shifts to the Secretary to establish that the claimant retains the residual functional capacity to perform "substantial gainful work which exists in the national economy." Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir.1986); see also Francis v. Heckler, 749 F.2d 1562, 1566 (11th Cir.1985). Substantial evidence must support a finding that the claimant has the vocational qualifications to perform specific jobs. Richardson v. Secretary of Health & Human Services, 735 F.2d 962, 964 (6th Cir.1984) (per curiam). The Secretary may meet this burden by reference to the medical vocational guidelines ("the grids") unless the claimant suffers from nonexertional...