Davis v. Schweiker
| Decision Date | 08 February 1982 |
| Docket Number | No. C 80-4490 TEH.,C 80-4490 TEH. |
| Citation | 536 F. Supp. 90 |
| Parties | Philip L. DAVIS, Plaintiff, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant. |
| Court | U.S. District Court — Northern District of California |
David W. Sternberg, San Mateo, Cal., for plaintiff.
John F. Barg, Asst. U. S. Atty., San Francisco, Cal., for defendant.
Plaintiff brought this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking review of the final decision of the Secretary of Health, Education and Welfare denying his claim for disability benefits. Both parties have moved for summary judgment. Having considered the papers of both counsel and the applicable law, the Court remands this case to the Appeals Council for further consideration in accordance with the rulings set forth below.
Plaintiff Phillip Davis claims to have become disabled on February 22, 1979 due to increasing back and neck problems and persistent pain. Prior to his alleged disability, Davis had been employed for eighteen years as a forklift operator, and his injuries are, for the most part, work-related. He incurred neck and back injuries in an automobile accident in 1964 and lower back injuries in 1971. His back injuries necessitated disc surgery in 1972 and many months of convalescence. These injuries also have triggered calf problems in his left leg.
In November 1975, Davis ran his forklift into a pole and suffered serious neck injuries which prevented him from working for three weeks. This neck injury led to complications in his left arm, and in combination with his previous back injuries, required numerous hospitalizations and periods of inactivity which have continued until the present time.
Based on this history, plaintiff filed an application for disability benefits on May 22, 1979, which the Secretary denied both initially and upon reconsideration. Plaintiff then filed a request for a de novo hearing before an administrative law judge (ALJ), which took place on April 29, 1980.
At the hearing, plaintiff presented a series of medical reports in support of his claim. The report of Dr. Isadore Shapiro is particularly significant. In his report, Dr. Shapiro explained that plaintiff had injuries both to his lumbar and cervical spines. His diagnosis indicated that lumbar spine disability precludes heavy work and the cervical spine disability has become permanent, stationary, and ratable. Dr. Shapiro stated that plaintiff's work as a forklift operator was causing his condition to deteriorate and that Davis should be assigned to some other type of work which would not involve repeated twisting and turning of his cervical spine. He added that further periods of hospitalization for traction and physiotherapy might be required.
Dr. Troy also completed the "Physical Capacities Evaluation" form supplied by the Social Security Administration. On that form, he circled items which indicate that plaintiff can sit for four, stand for three, and walk for two hours in an eight-hour workday; that he can occasionally carry up to 10 pounds, use both his hands for simple grasping, pushing and pulling and fine manipulations; that he can use both feet to operate foot controls; and that he cannot bend, squat, crawl, climb, or reach above shoulder level.
Plaintiff also testified on his own behalf at the hearing. He described the subjective pain associated with his injuries and testified that his condition had worsened since he stopped working. Significantly, the ALJ failed to present witnesses or evidence on behalf of the Secretary.
Based on this evidence, the ALJ applied the five-step sequential evaluation process provided by the new Social Security Regulations, 20 C.F.R. § 404.1503, for determining whether a claimant is disabled.1 Finding that claimant's physical impairment is "severe" and that he is unable to perform his past relevant work as a forklift operator, the ALJ went on to make the required specific findings with respect to claimant's residual functional capacity, age, education, and work experience. See, § 404.1505-1508. The ALJ concluded that based on the uncontroverted medical findings and the claimant's subjective complaints as to pain, which the ALJ accepted as "generally credible," claimant is restricted to sedentary work. Furthermore, he concluded that claimant is forty years old, a younger individual; has a limited, tenth grade education; and is unskilled.2 Having made these findings, the ALJ held that Rule 201.24, 20 C.F.R. § 404, Subpart P, Appendix 2, Table No. 1 — the Secretary's new "Medical-Vocational Guidelines" — "direct(s) a conclusion that the claimant ... is not disabled." Therefore, the ALJ denied plaintiff's claim. The Appeals Council affirmed this decision on November 4, 1980, making that the final decision of the Secretary.
The Secretary argues that substantial evidence supports his decision that Davis failed to meet his burden of establishing that he is disabled within the meaning of the Act. The contention that the burden of proving disability rests upon plaintiff, however, is misleading. Under the Ninth Circuit cases, as well as those of the vast majority of Circuits,3 claimant establishes a prima facie case of disability upon a showing that claimant's impairment prevents him or her from engaging in his or her previous occupation. See, Hall v. Secretary of Health, Education, and Welfare, 602 F.2d 1372, 1375 (9th Cir. 1979). Once established, the burden then shifts to the Secretary to produce evidence which shows that given the claimant's age, education, work experience, and physical capacity, he or she can perform specified jobs in the national economy. See, Id. at 1377. Although this burden can be discharged by any reliable evidence of claimant's suitability for such jobs, the courts have repeatedly emphasized their preference for testimony of a vocational expert:
Hall, supra, at 1377; O'Banner v. Secretary of Health, Education, and Welfare, 587 F.2d 321, 323 (6th Cir. 1978); Wilson v. Califano, 617 F.2d 1050, 1053-54. Additionally, subsequent Ninth Circuit cases expressly affirm Hall's continuing vitality. See, Giampaoli v. Califano, 628 F.2d 1190, 1192 (9th Cir. 1980); Johnson v. Harris, 625 F.2d 311, 312 (9th Cir. 1980) (); and Lopez v. Califano, 481 F.Supp. 392, 396 (N.D.Cal.1979).
In the case at hand, the ALJ simply made the finding that "the claimant has the residual functional capacity confined to sedentary work." He failed to call a vocational expert to testify or to present any other evidence of the specific sedentary jobs claimant can perform, given his physical capacity, age, education, and work experience. Thus, under the express dictates of Hall, it appears that this case must be remanded.
We cannot, however, dispose of it so easily. Recently, the Secretary has promulgated new regulations for determining disability claims, see 20 C.F.R. §§ 404.1502-1513, which include the new "Medical-Vocational Guidelines" ("Guidelines") or "grid system." See, § 404, Subpart P, Appendix 2 (effective February 26, 1979). The Secretary designed these Guidelines as a means of more efficiently determining disability cases. The Guidelines specify that if claimant establishes that he or she is unable to perform his or her past relevant work, the ALJ must determine claimant's 1) "residual functional capacity," i.e., whether claimant is limited to sedentary, light, medium, heavy, or very heavy work; 2) age; 3) education; and 4) work experience. See, Appendix 2, Rule 200.00(c). The ALJ must then match these four variables with the appropriate corresponding category in the Tables provided in Appendix 2, and if the ALJ's findings coincide with all the criteria of a rule, the Table will direct a finding of either disabled or not disabled. Under this system, the ALJ is bereft of any discretion:
Where the findings of fact made with respect to a particular individual's vocational factors and residual functional capacity coincide with all of the criteria of a particular rule, the rule directs a conclusion as to whether the individual is or is not disabled.
Appendix 2, Rule 200.00(a). (Emphasis supplied)
If the ALJ determines that claimant is restricted to sedentary work, as in the instant case, then Table 1 applies:
TABLE NO. 1. — RESIDUAL FUNCTIONAL CAPACITY: MAXIMUM SUSTAINED WORK CAPABILITY LIMITED TO
SEDENTARY WORK AS A RESULT OF SEVERE MEDICALLY DETERMINABLE IMPAIRMENT(S)
Rule Age Education Previous work experience Decision
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Talbot v. Heckler
...& Human Servs., 667 F.2d 524, 537 (6th Cir.1981), cert. denied, 461 U.S. 957, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983); Davis v. Schweiker, 536 F.Supp. 90, 100 (N.D.Cal.1982).4 The record does not mention whether these activities would be considered light work, but if they required lifting tw......
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Channel v. Heckler, 83-2322
...Human Services, 667 F.2d 524, 537 (6th Cir.1981), cert. denied, 461 U.S. 957, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983); Davis v. Schweiker, 536 F.Supp. 90, 100 (N.D.Cal.1982). In addition, because the grids consider only impairments that result in exertional or strength limitations, they may ......
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Sample v. Schweiker
...and cases cited therein construing 20 C.F.R., Part 404, Subpart P, App. 2 (effective February 26, 1979). But see Davis v. Schweiker, 536 F.Supp. 90, 97 (N.D.Cal.1982) and authorities cited therein. Resolution in this Circuit will necessarily await an appropriate case.6 Dr. Peterson held a P......
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Christensen v. Bowen, C-85-3326 SC.
...See Allen v. Schweiker, 546 F.Supp. 623, 625 (N.D.Cal. 1981); Ibarra v. Schweiker, 543 F.Supp. 49, 52 (N.D.Cal.1981); Davis v. Schweiker, 536 F.Supp. 90, 95 (N.D.Cal.1982). I. Plaintiff in this case filed an application for DIB on November 17, 1983, alleging inability to work since May 6, 1......