Smith v. Secretary of Health and Human Services

• Decision Date: 17 April 1989
• Docket Number: No. 88-1576,88-1576
• Citation: 893 F.2d 106
• Parties: , Unempl.Ins.Rep. CCH 15164A Velma R. SMITH, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 106

893 F.2d 106

28 Soc.Sec.Rep.Ser. 195, Unempl.Ins.Rep. CCH 15164A

Velma R. SMITH, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.

No. 88-1576.

United States Court of Appeals Sixth Circuit.

Submitted March 30, 1989.

Decided April 17, 1989.

Edgar Jerome Dew, Goodman, Eden, Millender & Bedrosian, Detroit, Mich., for plaintiff-appellant.

Donna Morros Weinstein, Chief Counsel, Ayrie Moore, Dept. of Health and Human Services, Office of the General Counsel, Region V, Chicago, Ill., Victoria A. Roberts, Asst. U.S. Atty., Detroit, Mich., for defendant-appellee.

Before MERRITT and NELSON, Circuit Judges, and LIVELY, Senior Circuit Judge.

MERRITT, Circuit Judge.

In this social security case, claimant Velma R. Smith appeals from the denial of disability benefits under the Social Security Act, 42 U.S.C. Secs. 416(i), 423. She was denied benefits by an Administrative Law Judge, and the Appeals Council refused her request for review. The Secretary has thus adopted the decision of the ALJ. Smith then filed an appeal in United States District Court for the Eastern District of Michigan. Judge Hackett referred the matter to a magistrate, who recommended that the Secretary's motion for summary judgment be granted. Judge Hackett accepted that recommendation, adopted the magistrate's report, and issued an order dismissing this case. This appeal followed.

At the time Smith made her application she was 58 years old and unemployed; she had not held a job since 1979. She based her claim of total disability on an injury to her foot, on arthritis in her right arm and hand, and on alcoholism. Her previous work experience included a job as an assembler for a four-year period during the late 1960s and a job as a trim-press operator from 1969 to 1979. She completed high school, but has never been given further job-related training.

The Secretary, by adopting the ALJ's decision, determined that Smith was not disabled because she was capable of performing work she has done in the past. 20 C.F.R. Sec. 404.1520(e). According to the analytic scheme set up in Section 404, this determination resolves Smith's claim against her at the fourth of five analytic steps. The Secretary thus never reached the fifth step, at which the question is whether, inasmuch as the claimant's impairment is so severe as to preclude her doing her past work, other factors such as age, education, past work experience and residual functional capacity would allow her to do some other kind of work. 20 C.F.R. Sec. 404.1520(f).

We discern four separate challenges to the Secretary's disposition of Smith's claim. First, Smith challenges the determination that the work she performed during the 1960s as an assembler can be considered past relevant work. Second, she attacks the Secretary's determination that she can perform sedentary work. Third, she argues that the relevant regulations establish a presumption that a person of her age, education and work experience who is limited to sedentary work is disabled. Fourth, she asserts that the Secretary improperly failed to find that she was disabled by alcoholism from 1979 to 1982 and thus improperly failed to grant her a "closed period" of benefits for that disability.

In reviewing these arguments, we are bound to a very narrow scope of review. The question before us is whether the Secretary's decision, as reflected in the decision of the ALJ and the Appeals Council, is supported by substantial evidence. 42 U.S.C. Sec. 405(g); Mullen v. Secretary of Health and Human Servs., 800 F.2d 535 (6th Cir.1986). If the answer to that question is "Yes," we may not even inquire whether the record could support a decision the other way. Crisp v. Secretary of Health and Human Servs., 790 F.2d 450, 453 n. 4 (6th Cir.1986). Substantial evidence has been defined as evidence that a reasonable mind might accept as adequate to support the challenged conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971).

We find, upon a review of the record, that the challenged determinations of the ALJ were all supported by substantial evidence.

First, the record provides evidence which, under existing legal standards, would allow a reasonable mind to conclude that Smith's work as an assembler is past relevant work. Smith testified that she worked at Hall Lamp Company for several years in the latter part of the 1960s. Tr. 45. She was unable to remember the exact dates. Smith objects, on the grounds of 20 C.F.R. Sec. 404.1565, that work done fifteen years before her insured status expired (on October 1, 1984) cannot be considered past relevant work.

Though the ALJ did not specifically analyze the applicability of Smith's assembly experience in light of 20 C.F.R. Sec. 404.1565(a), his finding that it was past relevant work was reasonable whether or not he found it to have ended more than 15 years before her insured status expired. The regulations permit the Secretary, and thus the ALJ, to conclude that work performed before the 15-year period is nevertheless past relevant work, and in this case such a conclusion would be reasonable; and it was equally reasonable to conclude that the work in question did not end before the 15-year period. The record amply supports either reasoning.

First, even if the ALJ found that Smith's assembly work ended fifteen years before her insured status expired--i.e., before 1969--he was not therefore bound, as Smith asserts he was, to conclude that that work experience could not be "past relevant work" for the purpose of answering the question posed by 20 C.F.R. Sec. 404.1520(a). Smith has overread this provision:

We consider that your work experience applies when it was done within the last 15 years, lasted long enough for you to learn to do it, and was substantial gainful activity. We do not usually consider that work you did 15 years or more before the time we are deciding whether you are disabled (or when the disability insured status requirement was last met, if earlier) applies. A gradual change occurs in most jobs so that after 15 years it is no longer realistic to expect that skills and abilities acquired in a job done then continue to apply. The 15-year guide is intended to insure that remote work experience is not currently applied.... However, even if you have no work experience, we may consider that you are able to do unskilled work because it requires little or no judgment and can be learned in a short period of time.

20 C.F.R. Sec. 404.1565(a) (emphasis added). By the very terms of this regulation, fifteen years is not a bright-line rule but a "guide" intended to help the Secretary avoid concluding that a claimant who has worked in a job requiring certain marketable skills retains marketable skills after the workplace has changed in its requirements. The regulation states that the Secretary does not "usually" consider work beyond the 15-year period to be applicable: giving the conventional meaning to the word "usually" means that the Secretary sometimes does look to work done before the 15-year period. As the last sentence quoted just above suggests, the rationale of the 15-year guide does not apply where the question concerns unskilled work. On this question the Fifth Circuit has concluded: "In deciding whether to pretermit such dated work experience, ... the Secretary is entitled to consider the particular kind of work involved and the extent to which the skills and abilities required have in fact changed over the years." Bowman v. Heckler, 706 F.2d...