Jock v. Harris

• Citation: 651 F.2d 133
• Decision Date: 05 June 1981
• Docket Number: No. 1414,No. 81-6040,D,1414,81-6040
• Parties: Irene JOCK, Plaintiff-Appellant, v. Patricia HARRIS, Secretary of Health and Human Services, Defendant-Appellee. ocket
• Court: U.S. Court of Appeals — Second Circuit

Page 133

651 F.2d 133

Irene JOCK, Plaintiff-Appellant, v. Patricia HARRIS, Secretary of Health and Human Services,

Defendant-Appellee.

No. 1414, Docket No. 81-6040.

United States Court of Appeals, Second Circuit.

Argued May 27, 1981.

Decided June 5, 1981.

Maurie Heins, Onondaga Neighborhood Legal Services, Inc., Syracuse, N. Y., for plaintiff-appellant.

Gregory A. West, Asst. U. S. Atty., Syracuse, N. Y. (George H. Lowe, U. S. Atty., for the Northern District of New York, Syracuse, N. Y., of Counsel), for defendant-appellee.

Before FEINBERG, Chief Judge, LUMBARD and MANSFIELD, Circuit Judges.

FEINBERG, Chief Judge:

Irene Jock appeals from an order of the United States District Court for the Northern District of New York, Howard G. Munson, Ch. J., granting the motion of the Secretary of Health and Human Services (Secretary) for judgment on the pleadings in appellant's action, which challenges the Secretary's determination that she was not eligible to receive Supplemental Security Income (SSI), disability benefits, or widow's benefits. We affirm the decision of the district court.

Appellant applied for the benefits mentioned above on August 1, 1978. After her application was denied, appellant requested a de novo hearing before an administrative law judge (ALJ), which was conducted in July 1979. At the hearing, appellant testified that she had worked as a cashier in a supermarket from 1965 until the store closed in 1975, after which time she had not been employed. Appellant also testified that she suffered from extreme dizziness, pain due to arthritis, and fatigue. The medical evidence submitted at the hearing indicated that appellant received treatment for, inter alia, diabetes with autonomic neuropathy, hypertension, and hyperlipoproteinemia. The medical record before the ALJ also contained a statement from appellant's treating physician that appellant was unable to stand or ambulate for prolonged periods, but could sit and perform fine and gross hand movements without restriction. The treating physician went on to conclude that appellant could "function in a sedentary type of job only."

Based on this evidence, the ALJ held that appellant's "residual functional capacity has been reduced only insofar as she has been unable to engage in work involving extensive walking or carrying or strenuous exertion," and that accordingly she "possesses the residual functional capacity to return to her former job as a cashier." The ALJ noted that appellant's prior position as a supermarket cashier "could be performed in either the sitting or the standing position," although he acknowledged that "(t)he typical supermarket cashier performs work in the standing position." The ALJ then explained:

However, there are numerous cashier jobs existing in the national economy as well as in the claimant's region of residence which can be performed in the sitting position. This type of work is sedentary in nature and involves only minimal lifting in the sense of handling change.

Since appellant was capable of sedentary work, the ALJ concluded that he was "constrained to find that the claimant can return to her former type of job."

The ALJ's findings were approved by the Social Security Administration's Appeals Council in December 1979. Appellant then commenced this proceeding in the district court, where the matter was referred to a magistrate. The latter, in a report filed in October 1980, recommended that the Secretary's determination be affirmed. In January 1981, Chief Judge Munson adopted the magistrate's findings.

Appellant contends that it was improper for the ALJ to take administrative notice of the existence of "sedentary" cashier positions. We disagree. Appellant's argument appears to rest on an assumption that her initial burden, in making a prima facie case of disability, was merely to show an inability to return to her prior job as a "supermarket cashier." But this view rests on too narrow a construction of the standard of eligibility for benefits. The relevant provision of the Social Security Act requires that an applicant for disability benefits demonstrate that "his physical or mental impairment or impairments are of such severity that he is ... unable to do his previous work...." 42 U.S.C. § 423(d)(2)(A). ¹ See Parker v. Harris, 626 F.2d 225, 230-31 (2d Cir. 1980). In this case, appellant's burden was to show an inability to return to her ...