Pass v. Chater

• Decision Date: 25 September 1995
• Docket Number: No. 94-1883,94-1883
• Parties: , Unempl.Ins.Rep. (CCH) P 14795B James E. PASS, Plaintiff-Appellant, v. Shirley S. CHATER, Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1200

65 F.3d 1200

49 Soc.Sec.Rep.Ser. 3, Unempl.Ins.Rep. (CCH) P 14795B

James E. PASS, Plaintiff-Appellant, v. Shirley S. CHATER, Commissioner of Social Security,

Defendant-Appellee.

No. 94-1883.

United States Court of Appeals, Fourth Circuit.

Argued March 10, 1995.

Decided Sept. 25, 1995.

ARGUED: H. Russell Vick, Greensboro, NC, for appellant. Malinda Caroline Hamann, Assistant Regional Counsel, Office of General Counsel, Department of Health & Human Services, Atlanta, GA, for appellee. ON BRIEF: Frank W. Hunger, Assistant Attorney General, Walter C. Holton, Jr., United States Attorney, Bruce R. Granger, Chief Counsel, Region IV, Mack A. Davis, Deputy Chief Counsel for Social Security Litigation and Programs, Mary Ann Sloan, Principal Regional Counsel, Social Security Disability Litigation, Haila Naomi Kleinman, Supervisory Assistant Regional Counsel, Office of General Counsel, Department of Health & Human Services, Atlanta, GA, for appellee.

Before MURNAGHAN, WILLIAMS, and MICHAEL, Circuit Judges.

Affirmed by published opinion, Judge MURNAGHAN wrote the opinion, in which Judge WILLIAMS and Judge MICHAEL joined.

OPINION

MURNAGHAN, Circuit Judge:

The appellant, James Pass, was denied Supplemental Security Income disability benefits by the Secretary of the Department of Health and Human Services, ¹ based on a finding that he was capable of fulfilling the requirements of his former job position. On review of the Secretary's final decision, the district court affirmed the denial of benefits. Pass now appeals to this Court, arguing that because the particular job position that he previously held no longer exists, his claim for benefits should not have been denied based upon his ability to perform that work. For the reasons stated below, we affirm.

I.

Pass applied for Supplemental Security Income on January 2, 1991, stating on his application that he had been unable to work since June 10, 1990 due to high blood pressure, heart trouble, an ulcerated stomach, and arthritis. The Social Security Administration denied Pass's application both initially and on reconsideration. Pass requested a hearing, which was held before an Administrative Law Judge ("ALJ") on January 28, 1992. The ALJ denied benefits to Pass on the basis that his impairments did not prevent him from performing the work in which he had engaged prior to June 1990.

The ALJ made detailed findings concerning Pass's claimed disability. The ALJ first acknowledged that Pass had not engaged in substantial gainful activity since June 10, 1990, and that he suffered from severe hypertension and arthritis. The ALJ discounted Pass's testimony concerning his other alleged ailments. After finding that Pass's hypertension and arthritis did not constitute or equal a listed impairment under the Social Security regulations, the ALJ proceeded to examine Pass's residual functional capacity and his employment history. Pass worked for a tobacco company on a seasonal basis in the early 1980s, and also farmed during that time. In 1989 and 1990, he grew tobacco as a sharecropper and maintained a vegetable garden. For five months in 1987, Pass worked full time as a gate guard at a construction site. His guard duties involved sitting on a chair in a booth and monitoring people coming through the gate; there was no strenuous activity involved in the work. It took him approximately one week to learn how to perform the job. Pass's employment as a gate guard ended after five months, when the construction site at which he was working was completed.

Based on an assessment of Pass's physical and mental condition, the ALJ concluded that Pass retained the capacity for sedentary work and was able to perform his past work as a gate guard. The ALJ therefore found that Pass was not disabled and was not eligible for Supplemental Security Income benefits.

The Appeals Council denied Pass's request for review, establishing the ALJ's decision as the final decision of the Secretary. Pass then filed a complaint in the United States District Court for the Middle District of North Carolina pursuant to 42 U.S.C. Sec. 405(g), seeking judicial review of the Secretary's final decision. The magistrate judge to whom the case was referred issued a report recommending that the Secretary's decision denying benefits be affirmed. After Pass filed objections, the district court reviewed de novo the magistrate judge's determination. On May 17, 1994, the district court adopted the magistrate judge's recommendation and affirmed the decision of the Secretary. Pass appeals from the district court's decision.

II.

We review the Secretary's denial of Supplemental Security Income benefits to determine whether the Secretary's decision is supported by substantial evidence and whether the correct law was applied. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.1990); see also Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir.1992) (per curiam).

The Social Security Act, 42 U.S.C. Sec. 301 et seq., provides the following definition of "disability":

[I]nability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months....

42 U.S.C. Sec. 423(d)(1)(A). In determining whether a claimant is disabled, the ALJ follows a sequential five-step process outlined in the Social Security regulations. See 20 C.F.R. Sec. 416.920. If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps. Hunter, 993 F.2d at 35. The inquiry proceeds as follows:

(b) If you are working. If you are working and the work you are doing is substantial gainful activity, we will find that you are not disabled regardless of your medical condition or your age, education, and work experience.

(c) You must have a severe impairment. If you do not have any impairment or combination of impairments which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are, therefore, not disabled. We will not consider your age, education, and work experience.

(d) When your impairment(s) meets or equals a listed impairment in appendix 1. If you have an impairment(s) which meets the duration requirement and is listed in appendix 1 or is equal to a listed impairment(s), we will find you disabled without considering your age, education, and work experience.

(e) Your impairment(s) must prevent you from doing past relevant work. If we cannot make a decision based on your current work activity or on medical facts alone, and you have a severe impairment(s), we then review your residual functional capacity and the physical and mental demands of the work you have done in the past. If you can still do this kind of work, we will find that you are not disabled.

(f) Your impairment(s) must prevent you from doing other work. (1) If you cannot do any work you have done in the past because you have a severe impairment(s), we will consider your residual functional capacity and your age, education, and past work experience to see if you can do other work. If you cannot, we will find you disabled.

20 C.F.R. Sec. 416.920. The applicant bears the burden of production and proof during the first four steps of the inquiry. Hunter, 993 F.2d at 35. If he or she is able to carry this burden through the fourth step, the burden shifts to the Secretary in the fifth step to show that other work is available in the national economy which the claimant could perform. Id.

The instant case involves step four in the sequential evaluation, 20 C.F.R. Sec. 416.920(e), which addresses past relevant work. After considering the evidence of Pass's physical and mental condition, the ALJ determined that Pass "retain[ed] the residual functional capacity for sedentary work activity with limitations that he not be exposed to unprotected heights or dangerous machinery." The ALJ then examined Pass's employment history and concluded that the gate guard position previously held by Pass was sedentary, unskilled work which did not require the performance of activities that violated the foregoing limitations. The ALJ thus denied Pass's claim of disability at the fourth step of the sequential evaluation, based on the finding that Pass remained able to perform his past relevant work. Pass contends on appeal, however, that he is not able to perform his past work because the particular gate guard position that he formerly held no longer exists, and because he is unable to perform the job of gate guard as it is defined in the national economy. He argues that once he demonstrated that his past job no longer existed, the ALJ should have proceeded to the fifth step in the sequential evaluation, at which point the Secretary would have had the burden of proving the availability of other work in the national economy which Pass would be capable of performing. We must decide whether the nonexistence of Pass's former position as a gate guard has any relevance to the determination at step four of the sequential evaluation that Pass is not disabled. ²

Disability, as defined by the Social Security Act, involves a determination that a claimant is unable to perform substantial gainful activity "by reason of any medically determinable physical or mental impairment...." 42 U.S.C. Sec. 423(d)(1)(A) (emphasis added). In other words, a finding of disability under the statute must be based upon a lack of physical or mental capabilities on the part of the claimant, not upon other factors which prevent the claimant from obtaining work. The Social Security regulations addressing past relevant work reflect the statute's focus on the functional capacity retained by the claimant. 20 C.F.R. Sec. 416.960, entitled "When your vocational background will be considered," states the following regarding past relevant work:

We...