Welchance v. Bowen

• Decision Date: 26 October 1989
• Docket Number: No. 3:87-0070.,3:87-0070.
• Citation: 731 F. Supp. 806
• Parties: Dorothy WELCHANCE v. Otis R. BOWEN, Secretary, Health and Human Services.
• Court: U.S. District Court — Middle District of Tennessee

731 F. Supp. 806

Dorothy WELCHANCE v. Otis R. BOWEN, Secretary, Health and Human Services.

No. 3:87-0070.

United States District Court, M.D. Tennessee, Nashville Division.

October 26, 1989.

COPYRIGHT MATERIAL OMITTED

D.C. Daniel, Jr., Murfreesboro, Tenn., for plaintiff.

Darryl Stewart, Asst. U.S. Atty., Nashville, Tenn., for defendant.

MEMORANDUM

MORTON, Senior District Judge.

I. THE MAGISTRATE'S REPORT

In this case, parts I and II of the Report and Recommendation of the United States Magistrate are adopted in full as if copied verbatim herein. Likewise, the court adopts that portion of part III which discusses the appropriate standards of judicial review.

II. THE RULES

The plaintiff/claimant in this matter unquestionably established a prima facie case of disability by proving that she had a severe impairment which, while not meeting a listing, did prevent her from performing her past work. After having done so, it then became the Secretary's burden to prove that the claimant could nevertheless perform other substantial gainful activity in the national economy. The Secretary now argues to this court that it met the burden through use of rule 201.19 of the "grids." The plaintiff, on the other hand, argues that 201.19 is inapplicable and that 201.17 should have been applied. Not surprisingly, rule 201.17 dictates a conclusion of "disabled." Because all parties involved in this case appear to have misinterpreted or misapplied the grids, some background discussion is appropriate.

As noted above, the burden of proof shifts to the Secretary after the plaintiff establishes a prima facie case of disability. Once the burden shifts, the Secretary must prove that the plaintiff can still perform substantial gainful activity in the national economy despite the fact that she has a severe impairment which prevents her from performing her past type of work. This effort by the Secretary is the fifth and final step of the disability evaluation process. If the Secretary cannot prove the claimant's ability to perform other substantial gainful activity, the claimant must be deemed disabled.

The Secretary can often meet his burden at step five through the use of the "grids" rather than presenting testimony from a vocational expert. Basically, the grids are a series of tables consisting of rules which direct a conclusion of "disabled" or "not disabled" after taking four factors into consideration. These four factors are the claimant's age, education, work experience, and "maximum sustained work capability." Each individual rule addresses whether a certain combination of these factors renders a person disabled or not. As is logical and experientially sound, a low age works in favor of a finding of "not disabled." On the other hand, low levels of education, work experience, and work capability push toward a finding of "disabled" since they are to a person's disadvantage when trying to adapt to a new job.

The underlying premise of the rules is that a person at certain levels of these factors may be presumed to be disabled, while persons with some different combination of levels of these factors may be presumed to be not disabled. In essence, the rules simply consist of evidentiary based assumptions that a vocational expert would come to the conclusion expressed by a rule if faced with a person sharing the characteristics described by that rule. Of course, this mechanism can only function properly if a rule accurately describes the person in question. Otherwise, the whole network of assumptions and presumptions fall apart. Therefore, the grids cannot be used to dictate a conclusion of "not disabled" when "the characteristics of the claimant do not identically match the description in the grid." Kirk v. Secretary of Health and Human Services, 667 F.2d 524 (6th Cir.1981), cert. denied 461 U.S. 957, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983). However, if the disparity between the condition of the claimant and the description of the rule is not significant, the rule may still be used as a guide or framework to reaching a conclusion. As the disparity grows, of course, the usefulness of the rule as a framework declines proportionally. Since the grids do not consider nonexertional impairments in the calculation of maximum sustained work capability, the existence of a nonexertional impairment often accounts for the failure of any grid rule to accurately describe a claimant. If the nonexertional impairment is significant, it is not even appropriate to use the grids as a framework for a decision. Rather, the Secretary will need vocational testimony to meet his burden of proof.

Of course, a rule can be used to dictate a conclusion of "disabled" if a claimant suffers from a nonexertional impairment in addition to having the characteristics listed by a rule which states a "disabled" conclusion. This is only logical. The theory behind the rules which state that a person is disabled is that any claimant described by that rule would not be able to perform any substantial gainful activity that exists in significant numbers in the national economy. If a claimant's exertional impairment renders her disabled when viewed in conjunction with her other vocational factors such as age, education, and experience, then naturally she would also be disabled if she suffered from a nonexertional impairment in addition to the exertional. The instant plaintiff argues that such is her case. She asserts that rule 201.17 describes her and therefore dictates a conclusion of "disabled" even without resorting to an examination of her nonexertional impairment.

The Secretary, on the other hand, contends that the claimant's nonexertional impairment is insignificant and that rule 201.19 so closely describes the claimant that the rule can be used as a framework for concluding that the claimant is not disabled. If substantial evidence within the record supports the Secretary's conclusion, it must be upheld by this court. If not, the court must determine whether substantial evidence allows only for one other rule to apply. If it does, then the conclusion of that rule will dictate the conclusion of this court concerning disability. On the other hand, if substantial evidence supports application of no rule, or two or more rules reaching opposite conclusions, the court must then decide whether to remand the case for further findings or to simply find in favor of the claimant on the ground that the Secretary cannot seek another bite of the apple after failing to meet his burden of proof.

III. RULE 201.19

Rule 201.19 directs a conclusion of "not disabled" when the claimant has: (1) an age ranging from age 45 through 49, (2) a "limited or less" education, (3) work experience classified as skilled or semiskilled but not involving transferable skills, and (4) a maximum sustained work capacity to do sedentary work. Thus, the first basic question for the court is whether there is substantial evidence to support the Secretary's conclusion that each of these four classifications accurately describe the claimant.

The most obvious problem with applying rule 201.19 concerns the age classification. Rule 201.19 only governs individuals of ages 45 through 49. The plaintiff, however, did not turn 45 until October of 1987 — long after the alleged onset of disability. Naturally, this is not a problem which damages the Secretary's position since a younger age presumably makes a claimant more able to adapt to some other line of work, but clarity nevertheless demands that this court divide its analysis into the time periods before and after reaching age 45. The court will first examine the period after reaching age 45, and consequently the next step must be to determine whether the other three classifications listed in rule 201.19 accurately portray the claimant's condition.

The thrust of the plaintiff's attack against application of 201.19 is that the plaintiff is illiterate and that 201.19 cannot apply to persons who are illiterate. Interestingly, the Secretary now also appears to view the question of literacy as critical to whether 201.19 should be applied. While the literacy question is important, as will be discussed later, it is actually irrelevant to the application of rule 201.19. All parties appear to have failed to distinguish between the grid education classification of "limited or less" and the classification of "limited or less — at least literate and able to communicate in English."

Regulation § 404.1564 lists four education classifications plus the sometimes overlapping classification of "inability to communicate in English." Those four classifications in ascending order of level of education are: "illiteracy," "marginal education," "limited education," and "high school education and above." The plain language of rule 201.19 therefore conveys the idea that "limited or less" refers to the category of "limited education" and the two lower levels of education — "marginal" and "illiteracy," as well as anything which might conceivably fall between those descriptions. Cf. Kirk, supra at 540. The fact that neighboring rule 201.18 refers to an education component of "limited or less — at least literate and able to communicate in English" further supports the proposition that "illiteracy" was intended to be included in the education component of 201.19. If such had not been the intent, the drafters would have used the same language they used in rule 201.18.

Finally, this construction is also in accord with the general pattern of the rules in Table 1 of the grids. As one moves down the table, rule 201.19 markes the beginning of a group of rules assuming a higher level of work experience for individuals of ages 45 through 49. At this point of a higher level of work experience, the thrust of 201.19 and subsequent rules is to say that all other factors are so favorable to the claimant that she can be declared "not disabled" regardless of her educational background. Thus, the court...