Geoffroy v. Secretary of Health and Human Services, 80-1798

• Decision Date: 28 September 1981
• Docket Number: No. 80-1798,80-1798
• Parties: William P. GEOFFROY, Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 315

663 F.2d 315

William P. GEOFFROY, Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee.

No. 80-1798.

United States Court of Appeals First Circuit.

Submitted April 10, 1981.

Decided Sept. 28, 1981.

Edward M. Altman, Cambridge, Mass., on brief for plaintiff, appellant.

Robert J. Triba, Asst. Regional Atty. Dept. of Health and Human Services, Boston, Mass., on brief for defendant, appellee.

Before CAMPBELL, BOWNES and BREYER, Circuit Judges.

BREYER, Circuit Judge.

This is an appeal from a judgment of the district court upholding the final decision of the Secretary of Health and Human Services ("Secretary") which denied appellant's request for Social Security disability benefits and supplemental security income. 42 U.S.C. §§ 423(a) and 1381-1383(c). It is argued that the Secretary's decision is not supported by substantial evidence on the record as a whole; that the Secretary improperly shifted the burden of proving the existence of alternate types of employment to the claimant; and that the district court erred in summarily adjudicating the appeal from the Secretary's decision on the basis of the Secretary's "Motion For Order Affirming the Decision of the Secretary."

Appellant, William Geoffroy, injured his back in an accident in January 1978. At the time he was twenty-one years old and had worked as a printer for about three years. On July 12, 1978 he filed an application for Social Security disability benefits and supplemental security income claiming that he was suffering from a "ruptured lumbar disc at L5 and probable disc herniation at L5 and S1 accompanied by low back pain and strain." The medical advice given to Geoffroy indicated, and the administrative law judge (ALJ) who conducted a hearing on his claim specifically found, that he should avoid any type of activity which required constant lifting, bending, stooping and standing. Because this type of activity was inherent in Geoffroy's occupation as a printer the ALJ determined that Geoffroy would not be able to return to this type of employment. However, the ALJ determined that Geoffroy could engage in light work activity. ¹ He also concluded that he was a younger individual, had a high school education, was a skilled worker and had skills which would be transferable to other jobs. Because these findings coincided with the criteria set out in Rule 202.22, 20 C.F.R. Part 404, Subpart P (Determining Disability and Blindness) §§ 404.1501-.1598, App. 2 (Medical-Vocational Guidelines) (1980), ² Social Security regulations permitted the ALJ to take administrative notice of the existence of other jobs which Geoffroy could perform, 20 C.F.R. § 404.1566(d); App. 2, § 200.00(b), and required him to reach the ultimate conclusion that he was not disabled within the meaning of the Social Security Act, 20 C.F.R. § 404.1569, App. 2 § 200.00(a).

On appeal Geoffroy claims that the ALJ misconstrued the record and that there is no support for his medical factual conclusions. He also contends that it was improper for the ALJ to take administrative notice of alternate employment and that the only method that could establish such evidence was the testimony or report of a vocational expert. Because our review of the record reveals that the ALJ's factual findings are amply supported, see infra, the critical question is, therefore, whether the administrative notice, taken here under 20 C.F.R., Part 404, Subpart P, App. 2, could properly satisfy the Secretary's burden.

Under 42 U.S.C. § 423(d)(1) and (d)(2) once it was accepted that Geoffroy could not perform his previous work the critical question became whether "(c) onsidering his age, education, and work experience, (he could) engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work." § 423(d)(2)(A). See also § 1382c(a)(3)(B). While we acknowledge that the new regulations which the Secretary uses to assess a claimant's ability to engage in substantial gainful activity, where he or she can no longer perform at their past employment, have been the subject of much recent litigation, ³ in the present case we can discern no reason why the notice taken, and the role these regulations played in the taking of such notice, were improper.

Our previous cases teach that where a claimant presents a prima facie case of disability-i. e., that he can not engage in his previous type of employment-it is the Secretary's responsibility to establish that the claimant can engage in alternate employment and that such employment exists. See Small v. Califano, 565 F.2d 797, 800-01 (1st Cir. 1977); Pelletier v. Secretary of Health, Education and Welfare, 525 F.2d 158, 160 (1st Cir. 1975); Hernandez v. Weinberger, 493 F.2d 1120, 1122-23 (1st Cir. 1974); Torres v. Celebrezze, 349 F.2d 342, 345 (1st Cir. 1962). However, we have never held it to be a set rule that the report or testimony of a vocational expert is the only evidence which can establish the existence of alternate employment. Although in most, if not all, cases this would appear to be the most complete evidence in this respect, we have indicated that there may be occasions where a lesser showing would suffice and have left open this possibility. Thus, for example, in Hernandez v. Weinberger, supra at 1123, we stated that "once evidence of capacity to do specific jobs named are commonly known to 'exist in the national economy' it is permissible for the Secretary to take notice of this fact." Similarly, in Small v. Califano, supra, at 800-01, we indicated that where proper findings on actual physical constraints are made, and proper conclusions as to capability of alternate work are reached, a limited use of administrative notice was proper. In each of these cases, however, we found that the Secretary did not show that the claimant could perform at the type of work, the existence of which was being administratively noticed. Compare McLamore v. Weinberger, 538 F.2d 572, (4th Cir. 1976), (notice of existence of light and sedentary jobs properly taken); Taylor v. Weinberger, 512 F.2d 664, 668-69 (4th Cir. 1975) (although Secretary may administratively notice the existence of jobs, "facts pertaining to the capacity of a specific individual can be supplied only by particularized proof"); Chavies v. Finch, 443 F.2d 356, 357-58 (9th Cir. 1971) (use by vocational expert of "Dictionary of Occupational Titles" sufficient to establish existence of alternate employment); Breaux v. Finch, 421 F.2d 687, 689-90 (5th Cir. 1970) (Secretary can take notice that light work exists in national economy).

In contrast to the situation in Small and Hernandez, review of the uncomplicated record in the present case reveals adequate basis for a finding that the claimant is able to perform the work at issue. First, although it is conceded that Geoffroy suffers from a back condition, there is little indication in the record that it is of any severity. The record indicates that Geoffroy continued working for some three months after the accident. In one of the reports of record his treating physician, Dr. Joseph Dorsey, July 24, 1978, informed Geoffroy that he could return to his previous work. Further, clinical testing proved inconclusive as to any severe impairment; x-rays of the lumbosacral spine were "entirely within normal limits," February 24, 1978; a myelogram proved normal, April 24, 1978; a lumbar discogram proved normal, April 26, 1978; ⁴ and treatment throughout the period covered by the record has been conservative consisting principally of heat pads, massage and exercises. ⁵ The only other medical evidence of record, the reports of Dr. John Grady, although consistent in stating that Geoffroy was "still disabled from returning to work at this time", also only prescribed conservative treatment and never really described specific limits to his functional ability. ⁶ In light of this medical record the ALJ's conclusion that Geoffroy retained the functional residual capacity to perform light work, see note 1 supra, is amply supported. Since the ALJ's further findings as to age, work experience and education are essentially undisputed, the ALJ's conclusion that Geoffroy met all the characteristics of the profile presented by Rule 202.22 of Table 2 was correct.

Within this framework of amply supported specific physical limitations and residual vocational capabilities we see no reason why the Secretary could not, under the "Medical-Vocational Guidelines", take administrative notice that substantial gainful work existed in the national economy for a person with Geoffroy's impairment, background, age and education. Certainly the taking of official notice has long been part of the administrative adjudicative process. See 5 U.S.C. § 556(e) (the taking of notice permitted by Administrative Procedure Act); 3 K. Davis, Administrative Law Treatise, 133-217 (2d ed. 1980). Moreover, the Secretary's regulations specifically inform claimants, such as Geoffroy, beforehand, that where certain facts are found to exist the Secretary will automatically take official notice of one particular matter, viz., whether jobs existed in the national economy, in accordance with the information categorized in the "Medical-Vocational Guidelines." 20 C.F.R. §§ 404.1566(d), 404.1569; App. 2, § 200.00(a). Further, the facts on which the Secretary premised his taking of notice are "subject to rebuttal" evidence and "other evidence to refute such findings." App. 2, § 200.00(a). Geoffroy, who was assisted by counsel at the administrative hearing, does not complain that he has been precluded from presenting all the medical evidence he has in his favor. Therefore, we think this procedure is reasonable. It balances the Secretary's legitimate interest in being able efficiently to consider...