Preslar v. Secretary of Health and Human Services

• Decision Date: 21 January 1994
• Docket Number: No. 92-2371,92-2371
• Parties: , Unempl.Ins.Rep. CCH (P) 17698A, 1994 Fed.App. 14P Walter PRESLAR, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1107

14 F.3d 1107

43 Soc.Sec.Rep.Ser. 495, Unempl.Ins.Rep. CCH (P) 17698A,

1994 Fed.App. 14P

Walter PRESLAR, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.

No. 92-2371.

United States Court of Appeals, Sixth Circuit.

Argued Aug. 12, 1993.

Decided Jan. 21, 1994.

John B. Bieske (argued and briefed), Warren, MI, for plaintiff-appellant.

Donna Morros Weinstein, Chief Counsel, Leslye E. Jones (briefed), Edward J. Kristof (argued), Department of Health and Human Services, Office of Gen. Counsel, Region V, Chicago, IL, William L. Woodard, Office of U.S. Atty., Detroit, MI, for defendant-appellee.

Before: MERRITT, Chief Judge; BOGGS, Circuit Judge; and ENGEL, Senior Circuit Judge.

MERRITT, Chief Judge.

Claimant Walter Preslar appeals the District Court's final judgment denying his summary judgment motion and granting summary judgment in favor of the defendant ("Secretary"). The District Court's judgment affirmed the Secretary's denial of Preslar's application for Social Security Disability Insurance Benefits. The main question before us is whether Preslar's skills as a light truck driver are "highly marketable" within the meaning of a Social Security regulation that prohibits disability benefits from being paid to 60-64 year old claimants if they "have skills which are highly marketable." Because the Secretary applied an improper legal standard when evaluating Preslar's application for benefits, and on that basis denied Preslar's application for benefits, we reverse.

I.

Walter Preslar applied for Disability Insurance Benefits and Supplemental Security Income on April 30, 1989, claiming that he was unable to work due to hip and back injuries, osteoarthritis and the late effects of musculoskeletal and connective tissue injuries. Preslar was 61 years old at the time of his application and had an eleventh grade education. The Social Security Administration denied his application initially and upon reconsideration.

On June 19, 1990, Preslar requested a de novo hearing before an Administrative Law Judge ("ALJ"). On December 11, 1990, the ALJ held a hearing at which Preslar appeared with counsel. Numerous medical reports and tests were made part of the record, along with testimony from Preslar and a vocational expert. Preslar testified that he was unable to work due to pain in his shoulders, back and right hip. The relevant medical evidence indicated that Preslar had been treated for several years for problems with the left shoulder, right hip and back. The vocational expert testified that Preslar could not perform any of his past relevant work, which included food truck driving, custodial work, and bartending. Nevertheless, she testified that approximately 7,000 light truck driving jobs existed in the Michigan economy which Preslar could obtain and perform with no significant vocational adjustment.

The ALJ then asked the expert to assess whether Preslar's truck driving skills were "highly marketable." The expert testified:

A Your honor, I think that one way of looking at marketability is the notion of whether or not driving occupations go lacking in terms of their, their need to be filled by competent employees. The answer to that is, at this particular time there does not appear to be a huge need for drivers in terms of--the occupations are filled. So, the answer is, yes, they're marketable. Are they highly marketable in terms of his particular--this gentleman in terms of his age? The way I would answer it, Your Honor, is that an employer would not be forced to take someone with potential health problems, and/or the age factor that is included in this particular gentleman's situation.

Q So, what are you saying? That, most likely, an employer would hire a younger person?

A That is correct, Your Honor.

Q Of course, that is a hiring practice--

A That is correct, Your Honor.

Q --consideration. Not exactly legal consideration.

A That is correct, Your Honor.

Q So then your answer is that the, the driving skills, the operative driving skills are, in fact, highly marketable?

A They are, in fact, marketable, Your Honor. And, again, if we're, if we're simply looking at the occupation, in terms of one has--a person has the skill, and an opening is available for driving, it is clear that this, this claimant has had a lot--many years of experience in driving. So from his ability to perform the occupation, it is marketable in that sense. He has the skills. If the opening is there, he could perform the occupation easily.

Q Okay. Very good. I think you've answered my question now.

In his January 7, 1991 decision, the ALJ concluded that Preslar was unable to perform his past relevant work, but that Preslar retained the capacity to do a full range of light work with only minor limitations, and that based on the vocational expert's testimony, Preslar had "highly marketable work skills," including truck driving, the ability to use hand and power tools, and the ability to use a cash register. Based on that finding, the ALJ concluded that Preslar was not disabled. The Appeals Council denied Preslar's request for review of the ALJ's decision, which became the final decision of the Secretary.

On November 21, 1991, Preslar sought judicial review of the Secretary's decision by filing this action in the United States District Court for the Eastern District of Michigan. Upon cross motions for summary judgment, the Magistrate found that the Secretary's decision was supported by substantial evidence, and recommended that the Secretary's motion be granted. The Magistrate rejected Preslar's argument that there was not substantial evidence to support the ALJ's finding that he possessed highly marketable truck driving skills. On September 30, 1992, the District Court approved the Magistrate's Report and Recommendation and entered judgment in favor of the Secretary. Preslar now appeals.

II.

Preslar's arguments on appeal center on the Secretary's finding that his skills as a truck driver are "highly marketable." He contends that the vocational expert's testimony is not substantial evidence supporting that finding, and that an incorrect definition of the term was applied by the lower tribunals. We will affirm the Secretary's decision to deny benefits as long as the Secretary applied correct legal standards in reaching the decision, and as long as the Secretary's findings of fact are supported by substantial evidence. 42 U.S.C.A. Sec. 405(g) (West Supp.1993); Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Brainard v. Secretary of Health and Human Services, 889 F.2d 679, 681 (6th Cir.1989).

A.

To establish a compensable disability under the Social Security Act, a claimant must demonstrate that he is unable to engage in any substantial gainful activity because he has a medically determinable physical or mental impairment that can be expected to result in death or has lasted, or can be expected to last, for at least 12 continuous months. 42 U.S.C.A. Sec. 1382c(a)(3)(A) (West 1992); 20 C.F.R. Sec. 416.905(a) (1992). If a claimant establishes that he cannot perform his past relevant work, the burden is on the Secretary to establish that the claimant is not disabled by showing that the claimant has transferable skills which enable him to perform other work in the national economy. Kirk v. Secretary of Health and Human Services, 667 F.2d 524, 529 (6th Cir.1981), cert. denied, 461 U.S. 957, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983).

The regulations provide a five-step sequential process to evaluate disability claims. The burden of proof is on the claimant throughout the first four steps of this process to prove that he is disabled. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5, 107 S.Ct. 2287, 2293 n. 5, 96 L.Ed.2d 119 (1987). If the analysis reaches the fifth step without a finding that the claimant is not disabled, the burden transfers to the Secretary. The steps are as follows:

1. An individual who is working and engaging in substantial gainful activity is not disabled, regardless of the claimant's medical condition.

2. An individual who is working but does not have a "severe" impairment which significantly limits his physical or mental ability to do basic work activities is not disabled.

3. If an individual is not working and has a severe impairment which "meets the duration requirement and is listed in appendix 1 or is equal to a listed impairment(s)", then he is disabled regardless of other factors.

4. If a decision cannot be reached based on current work activity and medical facts alone, and the claimant has a severe impairment, then the Secretary reviews the claimant's residual functional capacity and the physical and mental demands of the claimant's previous work. If the claimant is able to continue to do this previous work, then he is not disabled.

5. If the claimant cannot do any work he did in the past because of a severe impairment, then the Secretary considers his residual functional capacity, age, education, and past work experience to see if he can do other work. If he cannot, the claimant is disabled.

See 20 C.F.R. Sec. 404.1520 (1982). See also Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 1953, 76 L.Ed.2d 66 (1983); Tyra v. Secretary of Health and Human Services, 896 F.2d 1024, 1028-29 (6th Cir.1990).

There is no dispute that Preslar satisfied his burden under the first four steps. The question before us is whether the Secretary applied proper legal standards under step five, and if so, whether there is substantial evidence to support the Secretary's finding under step five that Preslar is not disabled. Because we conclude that an improper legal standard was applied, we do not reach the substantial evidence question.

B.

Step five requires the Secretary to show that the claimant is able to do other work available in the national economy, considering among other factors, the claimant's age. 20 C.F.R. Secs. 404.1520(f)(1), 404.1563, 416...