Kelley v. Apfel

• Decision Date: 25 August 1999
• Docket Number: DEFENDANT-APPELLEE,No. 98-2763,PLAINTIFF-APPELLANT,98-2763
• Citation: 185 F.3d 1211
• Parties: (11th Cir. 1999) STEPHEN A. KELLEY, JR.,, v. KENNETH S. APFEL, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,Non-Argument Calendar
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1211

185 F.3d 1211 (11th Cir. 1999)

STEPHEN A. KELLEY, JR., PLAINTIFF-APPELLANT, v. KENNETH S. APFEL, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT-APPELLEE.

No. 98-2763

Non-Argument Calendar.

U.S. Court of Appeals, Eleventh Circuit

August 25, 1999

Appeal from the United States District Court for the Northern District of Florida. (No. 1:96cv197MMP), Maurice M. Paul, Judge.

Before Anderson, Chief Judge, and Carnes and Hull, Circuit Judges.

Per Curiam

We VACATE our earlier opinion in this matter, published at 173 F.3d 814, and substitute in its place the following, thus granting the government's motion for clarification. Stephen A. Kelley, Jr. appeals the district court's order affirming the Commissioner of Social Security's ("Commissioner") denial of his application for disability benefits under the Social Security Act. On appeal, Kelley asserts that the administrative law Judge ("ALJ") erred in finding him not disabled. He contends that the ALJ incorrectly (1) assumed that part-time employment could constitute substantial gainful work; (2) discredited his subjective complaints of pain; and (3) used the testimony of a vocational expert, in lieu of the Medical-Vocational Guidelines, 20 C.F.R. pt. 404, subpt. P, app. 2 (also known as the "Grids"), to determine his ability to engage in substantial gainful activity.

This Court affirms the Commissioner's decision on a disability benefits application if it is supported by substantial evidence and the correct legal standards were applied. Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir.1997). The record reflects that Kelley suffers from degenerative joint disease of the left knee, asbestosis, obesity, progressive arthritic disease, rheumatoid arthritis, and osteoarthritis. The controlling issue with respect to the instant application is whether those impairments caused Kelley to be disabled within the meaning of the Social Security Act during a narrow window of time between September 26, 1991, and December 31, 1991. ¹ Kelley's occupation prior to the onset of his medical problems was as a welder. During the relevant time period, Kelley did not work at all, but the ALJ found that Kelley had the residual functional capacity to perform sedentary work, because he could lift 10 pounds occasionally, could frequently lift and carry objects such as docket files, ledgers, and small tools, could sit for 6 hours in an 8-hour workday, could stand or walk for 2 hours in an 8-hour workday, and had transferable skills from his prior occupation as a welder. The ALJ also found that taking into account this ability to do sedentary work and these transferable skills, there were a significant number of jobs in the national economy which Kelley could have performed during the relevant time period, and thus Kelley was not entitled to benefits.

I. KELLEY'S FIRST ARGUMENT: PART-TIME WORK

A. Resolution of this Issue in Light of the Clarification that the ALJ did not Rely on the Ability to Work Part-Time

The government's motion for clarification has now demonstrated that-contrary to our erroneous assumption in our prior, now-vacated opinion, see Part I.B infra-the ALJ did not rely on an ability to do part-time work in finding that Kelley had the residual functional capacity to perform jobs existing in significant numbers in the national economy. We note that the ALJ found that Kelley had the residual functional capacity to stand and/or walk for up to 2 hours during an 8-hour workday, and to sit for up to 6 hours during an 8-hour workday. ALJ Opinion at 8. These findings, coupled with other findings-e.g., that Kelley retained the capacity to lift 10 pounds occasionally, and to frequently lift and carry objects such as docket files, ledgers, and small tools-equate to a finding of capacity to perform full-time sedentary work. ² All of the ALJ's determinations in this regard are supported by substantial evidence. Thus, we reject Kelley's first argument because it erroneously assumes that the ALJ's finding of capacity to perform sedentary work depends upon an ability to do part-time work, and because the ALJ's finding of capacity to perform full-time sedentary work is supported by substantial evidence. Accordingly, there is no need for us to address the relevance of part-time work.

B. The Confusion in our Prior, Now-Vacated Opinion, and a Note as to the Relevance of Part-Time Work at Steps One and Five of the Sequential Analysis

As indicated above, our prior, now-vacated opinion erroneously assumed that the ALJ had relied on an ability on Kelley's part to do part-time work. Our prior opinion directly confronted Kelley's first argument-i.e., that the ALJ incorrectly assumed that part-time work could constitute substantial gainful employment. We rejected that argument and held that part-time employment may constitute substantial gainful work. We distinguished some of our case law that may appear to suggest the contrary. In so holding, we relied on 20 C.F.R. § 404.1572(a), which provides that "[y]our work may be substantial even if it is done on a part-time basis." In a motion for clarification of our prior opinion, the government now apologizes that its panel brief to this Court was misleading,³ and concedes that the above-cited regulation does not apply to Step Five. The government also concedes, based on certain Social Security Rulings, that the ability to perform part-time work does not preclude a finding of disability at Step Five of the sequential analysis.

The confusion over the role of part-time work in this regard stems from the fact that work, or the ability to work, is relevant in at least two distinct steps of the sequential analysis for determining entitlement to disability benefits, i.e., Steps One and Five. Step One asks whether the claimant is currently engaging in "substantial gainful activity." See 20 C.F.R. § 404.1520(a). If the claimant is so engaged, he is not disabled. Id. At Step One, there is no per se rule that part-time work cannot constitute substantial gainful activity. The regulation upon which we relied in our prior opinion (and which was cited by the government in its brief), 20 C.F.R. § 404.1572(a) ("Substantial work activity is work activity that involves doing significant physical or mental activities. Your work may be substantial even if it is done on a part-time basis ...."), pertains specifically to Step One.

The ability to work is relevant at Step Five, which "considers [the claimant's] residual functional capacity and [his] age, education, and past work experience to see if [he] can do other work [besides his past work]." 20 C.F.R. § 404.1520(f)(1). If the claimant can do other work in this regard, he is not disabled. Id. Although the issue is not totally clear, according to the government's present stance, an ability to do part-time work does not preclude a finding of disability at Step Five. In other words, at Step Five, the government's present representation is that only an ability to do full-time work will permit the ALJ to render a decision of not disabled. The government extracts this interpretation from Social Security Ruling 96-8p. That ruling provides that the relevant concept at Step Five is the residual functional capacity to perform work on a "regular and continuing basis." Social Security Ruling 96-8p. "A 'regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule." Id. Thus, if the government is correct in its interpretation, a claimant could pass Step Five and be entitled to benefits even though capable of working on a part-time basis.

We emphasize that the instant case was a Step Five case, not a Step One case. Kelley did not work during the relevant time period. Rather, the sequential analysis proceeded to the question of whether Kelley had the residual functional capacity to perform jobs existing in significant numbers the national economy, i.e., Step Five. The government's motion for clarification has now made clear that the ALJ never found that Kelley had the residual functional capacity to do only part-time work; rather, his findings equated to a finding that Kelley had the ability to do full-time sedentary work. Thus, it is not necessary for us to confront the issue of whether part-time work, as opposed to full-time work, will prevent a claimant...