Smith v. Heckler

• Citation: 782 F.2d 1176
• Decision Date: 03 February 1986
• Docket Number: No. 84-2134,84-2134
• Parties: , Unempl.Ins.Rep. CCH 16,604 Thomas W. SMITH, Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1176

782 F.2d 1176

12 Soc.Sec.Rep.Ser. 215, Unempl.Ins.Rep. CCH 16,604

Thomas W. SMITH, Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Appellee.

No. 84-2134.

United States Court of Appeals, Fourth Circuit.

Argued June 7, 1985.

Decided Feb. 3, 1986.

Charles T. Hall, Raleigh, N.C., for appellant.

R.A. Renfer, Jr. (Richard K. Willard, Asst. Atty. Gen., Samuel T. Currin, U.S. Atty., Donald A. Gonya, Asst. Gen. Counsel, Randolph W. Gaines, Deputy Asst. Gen. Counsel for Litigation, Debra Hollis, Atty., Office of Gen. Counsel, Social Sec. Div., Dept. of Health and Human Services, Baltimore, Md., on brief), for appellee.

Before SPROUSE and WILKINSON, Circuit Judges, and HOFFMAN, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

WALTER E. HOFFMAN, Senior District Judge:

Thomas W. Smith appeals from a judgment of the United States District Court for the Eastern District of North Carolina affirming the decision of the Secretary of Health and Human Services ("Secretary"), which denied Smith's application for a period of disability and disability insurance benefits. Concluding that the Secretary's decision is deficient in a pivotal finding, we vacate the judgment of the district court and remand this case to that court with instructions to remand it to the Secretary for further proceedings consistent with this opinion.

I. FACTS

Smith was the owner and operator of a small appliance store in Oriental, North Carolina. He was aided by his wife in handling the store and occasionally employed outside help. As a routine part of his business, Smith served as a television repairman, often requiring him to go to a customer's home, remove the television set, and haul it to his repair shop where he was required to lift it to his work table. Similarly, he delivered appliances such as refrigerators, which he would load and unload into a truck and carry with a dolly into homes. This work required heavy lifting, ¹ given the reality that television sets weigh anywhere from 150 pounds to 300 pounds, as Smith testified, and that refrigerators weigh even more.

Smith was born on January 30, 1924, and completed one year of college. He suffered his first heart attack on August 30, 1981. After a few days in the hospital, he remained at home until he returned to work in October 1981. After about an hour and twenty minutes on the job, Smith had his second heart attack. Other than this brief period before his second heart attack, he has not worked in any business since his first attack. The record shows that he is able to drive his car "short distances"; that he goes to church "about twice a month"; and that he can mow the lawn with a riding mower if he rests periodically. While his business has ended, he still receives calls from customers regarding problems with their television sets. Basically, however, he sits or lies around the house, watches television, and has washed breakfast dishes "a couple of times" and "would probably do more if [his wife would] let him."

Smith was examined by three doctors after his second heart attack. Dr. Thomas W. Coffman, a physician with the Veterans Administration, stated his belief that Smith ultimately would be able to return to work at least part time but would have to avoid straining or lifting heavy objects. Dr. Andrew Tse, hired by the Secretary to examine Smith, reached a similar if not more guarded conclusion. He observed Smith's performance on a treadmill test. Based on this test, Dr. Tse stated that he considered Smith's condition to be within Class III of the New York Heart Association classification system, meaning that he would be comfortable at rest and that less than ordinary The claimant's family physician, Dr. George Nashick, submitted two reports. The first is dated January 25, 1982, and states that the claimant was suffering typical angina pectoris with minimal exertion. The second report, dated August 23, 1982, states Dr. Nashick's diagnosis of arteriosclerotic heart disease with a history of myocardial infarction and persistent angina pectoris and weakness upon exertion. His opinion was that Smith could not engage in any strenuous activity and that the claimant therefore could not continue doing the same work that he had been doing for the appliance business. No physician, however, expressed the opinion that Smith was totally disabled from performing any and all types of work.

physical activity would cause severe symptoms. ²

On November 30, 1981, Smith filed his claim for disability and disability insurance benefits, alleging onset of disability on August 30, 1981. The claim was denied at the initial level on March 2, 1982, based on a determination by Dr. Dong Lim Cho, who reviewed Smith's records but never examined him. This determination, embodied in the disability determination rationale, expressed the opinion that Smith was capable of "medium work," one of the five classifications ³ of work specified in 20 C.F.R. Sec. 404.1567, which "involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds...."

The disability determination rationale also evaluated the nature of Smith's work:

The work as an owner and operator of an appliance store was performed for 25 years from 1956 to 1981. This job has current vocational relevance because it was performed for a significant period of time in the relevant past and was performed for substantial wages. The claimant indicates that this work required the claimant to be responsible for the full operation of the store, including the selling, servicing, and repairing of televisions and appliances. The claimant had to stand and walk 5 hours in a day and sit 3 hours a day. He had to lift tool boxes weighing 40 to 50 pounds. Since the demands of the claimant's past work, as described by the claimant, do not exceed current residual capacity, the claimant can be expected to return to this work.

(Tr. 86-87).

The disability determination rationale stated that this evaluation was based on the Form SSA-3369 prepared by Smith in bringing his claim.

Smith requested reconsideration of his claim but again was denied benefits on June 9, 1982. Subsequently, he sought an administrative hearing, which he received on September 16, 1982. The Administrative Law Judge ("ALJ") denied the claim on January 20, 1983, essentially adopting the conclusions in the disability determination rationale. The ALJ's opinion recited Smith's present ability to do "medium work." Then, in the following passage that tracks the wording of the disability determination rationale, the ALJ concluded This work as an owner and operator of a television and appliance store was performed for approximately twenty-five years and has current vocational relevance because it was performed for a significant period of time in the relevant past and was performed for substantial wages. The claimant indicates that this work required him to be responsible for the full operation of the store, including selling, servicing, and repairing televisions and appliances. As the claimant performed this job, he had to stand and walk five hours a day and sit about three hours a day. He had to lift tool boxes weighing forty to fifty pounds. Since the demands of the claimant's past work do not exceed his current residual capacity, the claimant can be expected to return to this work....

that Smith's past job involved medium work:

(Tr. 15).

Smith requested review by the Social Security Appeals Council on February 1, 1983. The request was denied on April 11, 1983, and the ALJ's decision was adopted as the Secretary's final administrative decision. Smith filed the complaint beginning this civil action on June 10, 1983. He filed a motion for summary judgment on December 16, 1983; the Secretary filed a cross-motion for summary judgment on March 20, 1984.

Having been referred the matter by the District Judge, the United States Magistrate issued a memorandum, recommendation, and order that Smith's motion for summary judgment be denied and that the Secretary's motion be granted. The magistrate felt that, as owner and operator of the store, Smith could control the amount of work that he did. ⁴ Relying on a supplement to the 1966 edition of the Dictionary of Occupational Titles, the magistrate decided that, because a store manager was listed as "sedentary work" in this source, the ALJ's decision finding Smith able to return to his former work was supported by substantial evidence. The district court accepted the magistrate's recommendation and entered judgment for the Secretary on August 23, 1984. Smith filed a notice of appeal on October 9, 1984.

II. STANDARD OF REVIEW

This Court must determine, after reviewing the entire record, whether substantial evidence supports the Secretary's findings. 42 U.S.C. Sec. 405(g). Substantial evidence has been defined as "more than a scintilla and [it] must do more than create a suspicion of the existence of a fact to be established. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971).

III.

DISCUSSION

To recover disability benefits, a claimant bears the burden of proving that he is disabled within the meaning of the Social Security Act ("the Act"). See 42 U.S.C. Sec. 423(d)(5); Hall v. Harris, 658 F.2d 260, 264 (4th Cir.1981). Disability, as defined by the Act, is the "inability 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 not less than 12 months." 42 U.S.C. Sec. 423(d)(1)(A). A claimant meets this burden, and will be considered disabled,

only if his physical or mental impairment or impairments are of such severity that he is...