Rater v. Chater

Decision Date10 January 1996
Docket NumberNo. 95-1654,95-1654
Citation73 F.3d 796
Parties, Unempl.Ins.Rep. (CCH) P 15079B Kenneth C. RATER, Appellant, v. Shirley S. CHATER, Commissioner of Social Security, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Robert W. Pratt, Des Moines, Iowa, argued (Max Schott, on the brief), for appellant.

Sally Renee Johnson, Assistant U.S. Attorney, Omaha, Nebraska, argued (Jamie G. Crawford, Assistant Regional counsel, on the brief), for appellee.

Before McMILLIAN, BRIGHT and LOKEN, Circuit Judges.

McMILLIAN, Circuit Judge.

Kenneth Rater appeals from a final order entered in the United States District Court 1 for the District of Nebraska affirming the final decision of the Commissioner of Social Security (Commissioner). Rater v. Shalala, No. 8CV-555, 1995

WL 811933 (D.Neb. Jan. 19, 1995) (Memorandum and Order). Rater applied for disability insurance benefits in March 1992, alleging that he suffered from persistent low back and leg pain stemming from workplace injuries. The district court found that substantial evidence in the record as a whole supported the decision of the administrative law judge (ALJ) that Rater was not disabled and was therefore not entitled to disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. Secs. 401-433. For reversal, Rater argues the ALJ erred in concluding that his former position as "incinerator operator/watcher" constituted "past relevant work" under step four of the sequential evaluation process. For the reasons discussed below, we affirm the order of the district court.

Background

Rater was fifty-eight years old at the time of the administrative hearing. He had completed high school and had attended business school for approximately eleven months. He has worked as a laborer at the Firestone Tire & Rubber (Firestone) plant in Des Moines, Iowa, since April 1968. After injuring his back in a 1981 workplace injury, Firestone placed Rater in a department composed primarily of light-dutied individuals where he operated a machine to "re-roll" cloth banners. In 1983, Rater again injured his back. By the time he returned to work in May 1984, Firestone had substantially eliminated the light-dutied department. Thus, Rater was assigned the position of "incinerator operator/watcher," a job which primarily entailed watching the incinerator and shutting it down if the operator were injured or experienced any other difficulty. Firestone had developed this position to address safety concerns regarding the incinerator. Rater held this position for eleven months, until the company's industrial engineering department restructured the job duties in the incinerator area, thereby eliminating the watcher position.

Rater applied for disability benefits in March 1992, alleging he suffered from persistent low back and leg pain. After his application was administratively denied twice, Rater requested and obtained a hearing. At the hearing, a vocational expert classified Rater's past relevant work as an incinerator operator/watcher as unskilled and sedentary. The vocational expert also stated that Rater could perform his past relevant work as an incinerator operator/watcher. When asked whether that job existed in the national economy, the vocational expert replied, "[i]t's very unusual and I don't think there would be ten people in Nebraska that did it." After the hearing, the ALJ denied Rater's application for disability benefits, concluding that he was not disabled because he has the residual functioning capacity to perform his past relevant work as an incinerator operator/watcher. The Appeals Council denied Rater's request for review and the ALJ's decision became the final decision of the Commissioner. Rater sought judicial review and the district court entered judgment in favor of the Commissioner. Rater then perfected this appeal.

Discussion

The Commissioner has established a five-step sequential evaluation process to determine whether claimants are eligible for Social Security disability benefits. 2 See Bowen v. City of New York, 476 U.S. 467, 470-73, 106 S.Ct. 2022, 2024-26, 90 L.Ed.2d 462 (1986) (Bowen ); Martin v. Sullivan, 901 F.2d 650, 652 (8th Cir.1990) (Martin ). At step four, the ALJ must determine whether or not the claimant is able to return to his or her past relevant work. The Social Security regulations define "past relevant work" as "work experience [which] ... was done within the last fifteen years, lasted long enough for [the claimant] ... to learn to do it, and was substantial gainful activity." 20 C.F.R. Sec. 404.1565(a). If the claimant is found to be able to perform the duties of his [or her] past relevant work, then he or she is considered not disabled and therefore ineligible for benefits. Bowen, 476 U.S. at 471, 106 S.Ct. at 2025; Martin, 901 F.2d at 652.

On appeal, Rater concedes that he is able to perform the duties of an incinerator operator/watcher. He argues, however, that the Commissioner erred in determining that this position constituted past relevant work under step four because the Commissioner failed to prove that it exists in significant numbers within the national economy. Although acknowledging that the Secretary's regulations do not expressly require a claimant's past relevant work to exist in significant numbers, he argues that the "plain language of the Social Security Act [the Act] itself ... would appear to require that a claimant's previous work must still exist in significant numbers in order for it to interrupt the sequential evaluation process at step four with a finding of 'not disabled.' " Brief for Appellant at 18-19. The Act provides in pertinent part:

An individual shall be determined to be under a disability only if [the individual's] ... impairments are of such severity that he [or she] is not only unable to do his [or her] previous work but cannot engage in any other kind of substantial gainful work which exists in the national economy.... For purposes of the preceding sentence ... "work which exists in the national economy" means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.

42 U.S.C. Sec. 423(d)(2)(A). Rater argues that the quoted language contemplates "previous work" as representing one "kind of substantial gainful work which exists in the national economy;" he therefore contends that the term "previous work" is modified by the qualifying phrase "which exists in the national economy." Relying on the definition of "work which exists in the national economy" in the second sentence of the quoted language, Rater argues that a claimant's "previous work" must exist in significant numbers in the national economy in order to constitute past relevant work. In support of this view, he cites Kolman v. Sullivan, 925 F.2d 212, 213-14 (7th Cir.1991) (Kolman ). In Kolman, the Seventh Circuit held that a "nonexistent makework training job" that had been created under the auspices of a federal vocational program no longer in operation was not past relevant work because it did not exist in significant numbers within the national economy. Id. Characterizing his previous...

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    • United States
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4 books & journal articles
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    • United States
    • James Publishing Practical Law Books Bohr's Social Security Issues Annotated - Volume II
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    ..., 942 F.2d 1320, 1322-23 (8th Cir. 1991), § 204.11 Rashad v. Sullivan , 903 F.2d 1229, 1231 (9th Cir. 1990), § 204.1 Rater v. Chater , 73 F.3d 796, 798 (8th Cir. 1996), §§ 106.2, 106.5, 106.7 Ratliff v. Astrue , 540 F.3d 800 (8th Cir. 2008) ( Rehearing and Rehearing En Banc Denied Dec. 5, 2......
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