Tillery v. Schweiker, 81-2044

• Decision Date: 01 August 1983
• Docket Number: No. 81-2044,81-2044
• Parties: Calvin C. TILLERY, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Jr., Secretary, Department of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 601

713 F.2d 601

2 Soc.Sec.Rep.Ser. 391

Calvin C. TILLERY, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Jr., Secretary, Department of Health and Human Services, Defendant-Appellee.

No. 81-2044.

United States Court of Appeals Tenth Circuit.

Aug. 1, 1983.

Earl W. Arnold, Tulsa, Okl., for plaintiff-appellant.

Gabriel L. Imperato, Social Sec. Admin., Baltimore, Md. (Stuart E. Schiffer, Acting Asst. Atty. Gen., Washington, D.C., Frank Keating, U.S. Atty., Tulsa, Okl., Frank V. Smith, III, Regional Atty., Dept. of Health and Human Services, Dallas, Tex., with him on brief), for defendant-appellee.

Before SETH, Chief Judge, and McWILLIAMS and SEYMOUR, Circuit Judges.

McWILLIAMS, Circuit Judge.

This is a social security disability insurance case. Pursuant to the Social Security Act, Calvin C. Tillery filed a claim for disability insurance benefits. His claim was administratively denied. Tillery sought, and obtained, a de novo hearing before an Administrative Law Judge, who also denied his claim on the basis that Tillery was not disabled within the meaning of the Act. The ALJ's determination became the decision of the Secretary of Health and Human Services when the Appeals Council approved the decision of the ALJ. Tillery then sought, and obtained, judicial review of the Secretary's decision in the United States District Court for the Northern District of Oklahoma. The district court affirmed the Secretary's decision. Tillery now asks that we reverse the judgment of the district court. We affirm.

Tillery, age 47 at the time of the hearing before the ALJ, was formerly employed as an air-conditioning repairman. He quit that employment, claiming that he was unable to continue working because of tinnitus, severe headaches and back pain, and arthritis. Accordingly, he made claim for social security disability benefits.

Regulations direct the Secretary to sequentially evaluate a claim of disability. 20 C.F.R. § 404.1520 sets forth the steps to be followed in evaluating a disability claim. The first step is to determine whether the claimant is currently engaged in "substantial gainful activity." §§ 404.1520(b) and 404.1571-1575. If he is so engaged, he is not disabled within the meaning of the Act, even though he may in fact have some physical or mental impairment.

The second step under the regulations is to determine whether a claimant is "severely impaired" within the meaning of the Act. § 404.1520(c). A person is "severely impaired" if he has a physical or mental impairment which significantly limits his ability to perform "basic work-related functions." § 404.1521. If the claimant is not so limited, he is not disabled within the meaning of the Act, and the matter need not be pursued further.

If the claimant's impairment does significantly limit his or her capacity to perform "basic work-related functions," and such impairment meets the duration requirement and is listed in Appendix 1, the claimant will be found disabled within the meaning of the Act, and the matter not pursued further. §§ 404.1520(d) and 404.1525-1530.

If the claimant suffers from an impairment which does significantly limit his or her capacity to perform "basic work-related functions," but the impairment is not listed in Appendix 1, the administrative search continues and inquiry is made concerning the claimant's "residual functional capacity" and the "physical and mental demands of the work ... done in the past." §§ 404.1520(e) and 404.1545. If the claimant can do the type of work he has done in the past, he is not disabled within the meaning of the Act and his claim will be denied. If the claimant is unable to perform the kind of work he has done in the past, inquiry is next made to determine whether the claimant is able to perform some other form of gainful work in the national economy, considering the claimant's "residual functional capacity," along with his age, education and past work experience. §§ 404.1520(b) and 404.1560-1569. In making such determination, reference is made to the Secretary's promulgated medical-vocational guidelines, which now appear as 20 C.F.R. Pt. 404. Subpt. P, Appendix 2. By use of such guidelines, determination is made as to whether a claimant is, or is not, disabled within the meaning of the Act.

In the instant case, the ALJ conducted a rather thorough hearing, receiving numerous medical reports and taking the oral testimony of Tillery. Tillery, incidentally, was represented by counsel at the hearing before the ALJ. The decision of the ALJ, which was later adopted by the Secretary, is commendably detailed and forms a solid basis for judicial review. The ALJ fully discharged his "duty of inquiry," as referred to by Justice Brennan in his concurring opinion in Heckler v. Campbell, --- U.S. ----, 103 S.Ct. 1952, 1959, 76 L.Ed.2d 66 (1983).

As we understand it, the ALJ made "alternative" findings, each of which supported the ALJ's ultimate finding that Tillery was not disabled within the meaning of the Act. First, the ALJ found that Tillery's impairments, which he admittedly had, were not sufficiently severe to significantly limit his ability to perform basic work activities, as provided for in § 404.1520. In addition, the ALJ found, by reference to Appendix 2, mentioned above, that, after considering Tillery's maximum work capacity, age, education, and past work experience, Tillery was not disabled. The present appeal will be disposed of on the basis of the ALJ's second, or alternative finding.

The ALJ found, in effect, that Tillery could perform light work, notwithstanding his medically determinable impairments. The ALJ then took into consideration four factors, i.e., Tillery's ability to perform light work, his age, education and work history, and then...