Lauer v. Bowen

• Decision Date: 07 May 1987
• Docket Number: No. 86-1748,86-1748
• Citation: 818 F.2d 636
• Parties: , Unempl.Ins.Rep. CCH 17,368 Albert LAUER, Jr., Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 636

818 F.2d 636

17 Soc.Sec.Rep.Ser. 765, Unempl.Ins.Rep. CCH 17,368

Albert LAUER, Jr., Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services Defendant-Appellee.

No. 86-1748.

United States Court of Appeals Seventh Circuit.

Argued Jan. 28, 1987.

Decided May 7, 1987.

James Ramsier, Fort Wayne, Ind., for plaintiff-appellant.

Steven Plotkin, Dept. of Health and Human Services, Chicago, Ill., for defendant-appellee.

Before WOOD, POSNER and RIPPLE, Circuit Judges.

PER CURIAM.

Plaintiff-appellant appeals from the denial by defendant Secretary of Health and Human Services ("Secretary") of appellant's application for the establishment of a period of disability and for disability benefits as provided for by the Social Security Act, 42 U.S.C. Secs. 416(i) and 423, respectively. For the reasons set forth below, we reverse the decision of the district court and remand for further proceedings.

I.

The instant appeal arises out of repeated attempts by appellant, who at the time of his hearing was 53 years old and the recent recipient of an associates degree in accounting, to receive disability benefits. From 1964 to 1975, appellant was employed as a machine operator at a meat packing plant but was forced to leave that position due to persistent lower back pain. Appellant subsequently undertook a part-time job as a credit union loan processor from 1975 until early 1983--a position previously determined by the Social Security Administration not to have constituted substantial gainful activity ¹--and in that capacity worked approximately 8 hours a week.

Appellant's most recent application for benefits--the one presently in issue--was filed in June 1983 and stated that he had become disabled as of January 1975. In his application, appellant contended that his inability to work resulted from conditions affecting his heart, lungs, left eye, right wrist, left leg and back. ² As had been the case with his previous applications, the Social Security Administration denied appellant's application after appropriate review at both the initial and reconsideration stages. Appellant then requested and received a hearing at which he was represented by counsel and at which he testified at some length. A supplemental hearing was subsequently convened by the administrative law judge ("ALJ") for the purpose of further examining evidence produced by a vocational expert whose opinions as to appellant's employment suitability had earlier been solicited only via interrogatories.

At the conclusion of these hearings, the ALJ on res judicata grounds dismissed appellant's request for a determination of disability prior to November 16, 1982. ³ Next, the ALJ considered and then denied appellant's disability claim for the previously unadjudicated period subsequent to November 1982. Appellant's claim was denied by the ALJ on the basis of a finding that appellant was not disabled because he could still perform his past relevant work as a loan processor. The Appeals Council refused appellant's request for review and thereby adopted the ALJ's findings as the final decision of the Secretary.

Appellant filed a civil action in which he sought judicial review of the Secretary's decision. Both appellant and the Secretary filed motions for summary judgment and, on March 20, 1986, after examination of the administrative record, the district court granted summary judgment in favor of the Secretary. Appellant timely appealed.

II.

Appellant raises three issues on appeal: (i) that the ALJ's finding that appellant could return to his past relevant work as a loan processor, which work had previously been determined not to be substantial gainful activity, violates applicable regulations and requires reversal; (ii) that the ALJ's decision to re-examine a prior favorable determination concerning appellant's work as a loan processor, either with or without formal notice to appellant, constitutes reversible procedural error; and (iii) that the ALJ's decision is not supported by substantial evidence as required by 42 U.S.C. Sec. 405(g). Because we agree with appellant's first argument, we need not consider his other claims.

This court has recently summarized the procedures required by the Social Security Act to be undertaken when the Secretary seeks to determine whether a claimant for disability benefits is entitled to such relief. The following five-step inquiry is mandated:

The following steps are addressed in order:

(1) Is the claimant presently unemployed? (2) Is the claimant's impairment "severe"? (3) Does the impairment meet or exceed one of a list of specific impairments? (4) Is the claimant unable to perform his or her former occupation? (5) Is the claimant unable to perform any other work within the economy? An affirmative answer leads either to the next step or, on steps 3 and 5, to a finding that the claimant is disabled. A negative answer at any point, other than step 3, stops inquiry and leads to a determination that the claimant is not disabled.

Bauzo v. Bowen, 803 F.2d 917, 920 n. 1 (7th Cir.1986); Zalewski v. Heckler, 760 F.2d 160, 162 n. 2 (7th Cir.1985); 20 C.F.R. Sec. 404.1520. But see Johnson v. Heckler, 769 F.2d 1202, 1208-1212 (7th Cir.1985) (A negative answer at step 2 need not necessarily foreclose further inquiry). As both parties recognize, the ALJ's finding at step four of the inquiry proved dispositive (fatal to appellant) in the present case.

The law is well-settled that a claimant seeking disability benefits under the Social Security Act has the initial burden of proving the existence of a disability. Whitney v. Schweiker, 695 F.2d 784, 787 (7th Cir.1982); McNeil v. Califano, 614 F.2d 142, 145 (7th Cir.1980). Equally settled is the proposition that once a claimant proves the existence of a disability which precludes a return by that claimant to his previous work ⁴ the burden then shifts to the Secretary to prove that there is some "other" kind of substantial gainful employment which the claimant is able to perform. Id. Appellant argues that he need only demonstrate that his impairments preclude his returning to his previous full-time job as a machine operator at a meat packing plant in order to establish his entitlement to benefits. Both the Secretary and the district court, however, take the position that the statutory reference to "previous work" has the effect of requiring a claimant to demonstrate an impairment-related inability to return to any job the claimant has held since the onset of the alleged disability so long as such employment was neither extremely remote in time nor brief in duration.

In essence, appellant contends that a part-time loan processor position he held subsequent to his allegedly becoming disabled cannot be considered by the Secretary as "past relevant work" ⁵ to which he can presently return. The basis for this contention is, according to appellant, a prior determination by the Social Security Administration that his loan processing position did not constitute substantial gainful activity. ⁶ While our analysis of the Social Security regulations furnishes us with precious little guidance as to the proper resolution of the question at issue, we have found persuasive support for appellant's position in the Secretary's own interpretive rulings of the Social Security regulations. We thus conclude that appellant is correct and that "previous work", in order to be considered "past relevant work", must first be found to rise to the level of substantial gainful activity. ⁷

Social Security Ruling 82-62 (PPS-80: A Disability Claimant's Capacity to Do Past Relevant Work) clearly and unequivocally states:

Capacity to do past work may be indicative of the capacity to engage in SGA [substantial gainful activity] when that work experience constituted SGA and has current relevance considering duration and recency.

This interpretive ruling by the Secretary (published under the auspices of the Social Security Administration) is referred to as recently as April 1986 in Social Security Ruling 86-8 and directly contradicts the interpretation of the disability regulations posited by the Secretary in the instant case. We are thus at pains to see how the Secretary can consider appellant's past work as a loan processor as "past relevant work" when the Secretary has interpreted past relevant work to be only that employment which when previously performed was performed at the substantial gainful activity level and when the Secretary actually determined that appellant's loan processor job as performed did not constitute substantial gainful activity.

It is well-established that courts will routinely and for good reason accord considerable deference to an agency's interpretation of its own regulations, United Fire Insurance Co. v. Commissioner of Internal Revenue, 768 F.2d 164, 169 (7th Cir.1985), as it is most often the agency itself that is charged with fashioning and promulgating any regulations authorized by statute. Interpretive rulings issued by government agencies are designed primarily to provide both practitioners and laymen alike with explanations and clarifications of what are often the very intricate and complex operating procedures embodied in agency regulations. ⁸ These rulings, however, are intended not solely to be enlightening but are binding on the Social Security Administration, see Johnson v. Heckler, 769 F.2d 1202, 1205 (7th Cir.1985); 20 C.F.R. Sec. 422.408, and also capable of being relied upon as precedent until they are either expressly superseded, modified, or revoked by later legislation, regulations, court decisions or rulings. ⁹

The Secretary has brought to our attention a recent case in which the same issue at stake here was resolved adversely to the Secretary and in favor of a claimant whose application for benefits was denied. In Vaughn v. Heckler, 727 F.2d 1040 (11th Cir.1984), the court held that it was an error of law for the ALJ to have concluded that...