Smith v. Shalala, 94-1399
| Decision Date | 30 January 1995 |
| Docket Number | No. 94-1399,94-1399 |
| Citation | 46 F.3d 45 |
| Parties | , Unempl.Ins.Rep. (CCH) P 14389B John R. SMITH, Appellant, v. Donna E. SHALALA, Secretary of Health and Human Services, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
John August Bowman, Davenport, IA, argued (Michael DePree, on the brief), for appellant.
John Beamer, Asst. U.S. Atty., argued, for appellee.
Before WOLLMAN, Circuit Judge, HEANEY, Senior Circuit Judge, and HANSEN, Circuit Judge.
In this Social Security disability case, John R. Smith appeals the denial of benefits for the period from June 16, 1991, to May 5, 1993, the date on which he was awarded disability benefits under his second application for such benefits. We reverse and remand for an award of benefits.
Smith's first argument is that he qualifies as a worn-out worker under 20 C.F.R. Sec. 404.1562. That rule in pertinent part provides that "[i]f you have only a marginal education and work experience of 35 years [at] arduous unskilled physical labor, and you are ... no longer able to do this kind of work ... we will consider you ... disabled." Section 1562. 20 C.F.R. Sec. 404.1564(b)(2) (section 1564). The regulations make clear, however, that classroom years are not the final word in determining education level: Section 1564(b).
The regulations provide that the ALJ must develop information concerning a claimant's education by asking about school attendance, oral and written verbal skills, and ability to do simple calculation. Section 1564(b)(6). Here, the ALJ made such inquiries; Smith testified that he attended school at least through the eighth grade. Smith in essence argues that even when the inquiries mandated by section 1564(b)(6) result in no evidence of the difficulty in basic daily activities that might be expected in a person with marginal education, a claimant's school attendance can be discounted. We disagree.
Smith testified that he can read and do simple calculations. Nowhere in the record is there any evidence that Smith does not have the skills expected from a limited education; therefore, Smith's grade level controls. Section 1564(b). Smith has a limited rather than a marginal education. For this reason, the worn-out worker rule of section 1562 does not apply.
Smith next contends that he could not in fact perform the work that the ALJ said he could. The ALJ determined Smith could do jobs such as hand packager and production assembler. This determination was based on a vocational expert's testimony. The expert identified each job by its listing in the Dictionary of Occupational Titles, a Labor Department guide to job ability levels which has been approved for use in Social Security disability cases. Section 1566(d)(1).
Smith points out that the hand packager job is categorized as a medium job, EMPLOYMENT AND TRAINING ADMIN., U.S. DEPT. OF LABOR, DICTIONARY OF OCCUPATIONAL TITLES Sec. 920.587-018 (Fourth Ed., Rev. 1991) (hereafter DOT ), and that the DOT establishes that medium jobs require the ability to lift 20 to 50 pounds occasionally, id., Appendix C at 1013. The ALJ determined that Smith could not lift more than 20 pounds, and so we find the hand packaging job as defined by the DOT is beyond Smith's capacity.
The job of production assembler, DOT Sec. 706.687-010, is within the lifting capacity assigned to Smith by the ALJ. See EMPLOYMENT AND TRAINING ADMIN., U.S. DEPT. OF LABOR, SELECTED CHARACTERISTICS OF OCCUPATIONS DEFINED IN THE REVISED DOT, Part A at 281 (1993) (SCO ) (listing functional requirements for production assembler). A review of the SCO shows that the production assembly job, contrary to Smith's arguments, requires no kneeling and only occasional stooping and crouching, (SCO at 281); these limitations are consistent with those outlined in the ALJ's hypothetical questions to the vocational expert.
However, careful review of the SCO listing for the production assembly job shows...
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