Wolfe v. Shalala

• Decision Date: 24 June 1993
• Docket Number: No. 92-1257,92-1257
• Citation: 997 F.2d 321
• Parties: , Unempl.Ins.Rep. (CCH) P 17413A William E. WOLFE, Plaintiff-Appellant, v. Donna SHALALA, 1 Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 321

997 F.2d 321

41 Soc.Sec.Rep.Ser. 435, Unempl.Ins.Rep. (CCH) P 17413A

William E. WOLFE, Plaintiff-Appellant, v. Donna SHALALA, ¹ Secretary of Health and Human Services, Defendant-Appellee.

No. 92-1257.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 11, 1992.

Decided June 24, 1993.

Robert E. Francis (argued), Dennis B. Fentress, Francis Law Office, Cadiz, KY, for plaintiff-appellant.

Jill E. Zengler, Indianapolis, IN, Charles R. Goldstein (argued), Dept. of Health and Human Services, Region V, Office of Gen. Counsel, Chicago, IL, for defendant-appellee.

Before BAUER, Chief Judge, CUMMINGS, Circuit Judge, and GRANT, Senior District Judge. ²

GRANT, Senior District Judge.

In 1988, William Wolfe filed an application for disability insurance benefits under Title II of the Social Security Act ("Act"), 42 U.S.C. §§ 416(i), 423(d). When his application was denied by the Secretary of Health and Human Services ("Secretary"), he sought judicial review of the adverse decision under 42 U.S.C. § 405(g). The district court denied Mr. Wolfe's motion for summary judgment and affirmed the Secretary's decision, and this appeal followed.

I. BACKGROUND

Although Mr. Wolfe has suffered from a variety of ailments during his lifetime, he listed only two on his application for disability insurance benefits: an arthritic condition affecting his neck and osteoarthritis in both knees. Mr. Wolfe contends that these conditions made it impossible for him to continue working after November 16, 1987, the alleged onset date of his disability.

The Administrative Law Judge ("ALJ") who heard Mr. Wolfe's case disagreed. He found on the basis of evidence presented at an initial hearing on October 19, 1988 that Mr. Wolfe retained the residual functional capacity to perform his past relevant work as a part-time automobile salesman at Dick Leonard Ford and was therefore not disabled within the meaning of the Act. 20 C.F.R. § 404.1520(e). The Appeals Council, however, granted Mr. Wolfe's request for review and remanded the case for further proceedings. A second supplemental hearing was conducted on February 23, 1990, and on March 26, 1990 the ALJ found for a second time that Mr. Wolfe was not disabled because he was capable of performing the light work required of him at Dick Leonard Ford. When the Appeals Council denied Mr. Wolfe's second request for review, the ALJ's decision of March 26, 1990 became the final decision of the Secretary of Health and Human Services.

II. STANDARD OF REVIEW

Our review, like that of the district court, focuses on the Secretary's final decision--in this case, the ALJ's order of March 26, 1990. ³ We review the ALJ's factual findings to determine whether they are supported by substantial evidence in the record as a whole. Callaghan v. Shalala, 992 F.2d 692, 694-95 (7th Cir.1993); Micus v. Bowen, 979 F.2d 602, 604 (7th Cir.1992). If they are, and we find no error of law, the Secretary's decision must be affirmed. Kapusta v. Sullivan, 900 F.2d 94, 96 (7th Cir.1989); Garfield v. Schweiker, 732 F.2d 605, 607 (7th Cir.1984).

III. DISCUSSION

Mr. Wolfe contends that the ALJ failed to follow "prescribed legal procedures" in rendering his decision. More specifically, he contends that the ALJ failed to properly evaluate his past relevant work and his complaints of pain, or to consider the combined effect of his impairments on his ability to work. We discuss each of these issues in turn.

A. "Past Relevant Work"

In determining disability, the ALJ was required to address each of the following questions in sequential order: (1) Is the claimant presently employed? (2) Is the claimant's impairment or combination of impairments severe? (3) Do his or her impairments meet or exceed any of the specific impairments listed in 20 C.F.R. Pt. 404, Subpt.P., App. 1 which the Secretary acknowledges to be conclusively disabling? (4) Have the claimant's impairments limited his or her remaining or "residual" functional capacity to the point that he or she is no longer able to perform the demands and duties of a former occupation? (5) Is the claimant unable to perform any other work in the national economy given his or her age, education and work experience? 20 C.F.R. § 416.920(a)-(f); Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287, 2290-92, 96 L.Ed.2d 119 (1987); Young v. Secretary of Health and Human Services, 957 F.2d 386, 389 (7th Cir.1992); Prince v. Sullivan, 933 F.2d 598, 602 (7th Cir.1991).

A negative conclusion at any step (except for step three) precludes a finding of disability. An affirmative answer at steps one, two or four leads to the next step. An affirmative answer at step three or five results in a finding of disability.

Young, 957 F.2d at 389. In Mr. Wolfe's case, the inquiry stopped at step four. Our discussion begins there.

Under the fourth step of the evaluation, a claimant must be found "not disabled" if he retains the residual functional capacity to perform either:

1. The actual functional demands and job duties of a particular past relevant job; or

2. The functional demands and job duties of the occupation as generally required by employers throughout the national economy.

Social Security Ruling 82-61; Arbogast v. Bowen, 860 F.2d 1400, 1403 (7th Cir.1988); Steward v. Bowen, 858 F.2d 1295, 1301 (7th Cir.1988); Veal v. Bowen, 833 F.2d 693, 697 (7th Cir.1987). The ALJ employed only the first of these two tests. He found on the basis of the evidence presented at both hearings that Mr. Wolfe was capable of performing the actual duties and demands required of him as an automobile salesman at Dick Leonard Ford, and was therefore not disabled.

Mr. Wolfe disagrees. He contends that his past work at Dick Leonard Ford was not relevant because he worked only part-time under special circumstances and did not perform the full range of duties generally required of an automobile salesperson. Such a job, he argues, could not be considered "substantial gainful activity." ⁴

The Department of Labor's Dictionary of Occupational Titles (DOT) sets the general standard by which Mr. Wolfe's job may be compared. It describes the mental and physical requirements of a variety of jobs as those jobs are generally performed in the national economy. Section 273.353-010 of the DOT is relevant in Mr. Wolfe's case and provides:

SALESPERSON, AUTOMOBILES

(retail trade)

Sells new or used automobiles, trucks, and vans on premises of vehicle sales establishment: Explains features and demonstrates operation of car in showroom or on road. Suggests optional equipment for customer to purchase. Computes and quotes sales price, including tax, trade-in allowance, license fee, and discount, and requirements for financing payment of vehicle on credit. Performs other duties as described under SALESPERSON (retail trade; wholesale tr.) Master Title. ⁵ May be designated Salesperson, New Cars (retail trade); Salesperson, Used Cars (retail trade).

Dictionary of Occupational Titles, Vol. 1, § 273.353-010 (4th Ed.1991).

Mr. Wolfe's description of his job at Dick Leonard Ford conforms substantially with the DOT description. The only exception involved the actual financing of the sale once a car was sold. Mr. Wolfe testified that, once a sale was made, he turned the buyer over to someone else who made the financial arrangements. He contends on appeal that his job was therefore different from the norm and that the ALJ failed to take this "special circumstance" into consideration. We disagree. There is no indication in the record that other salespeople at Dick Leonard Ford were required to handle the closing transactions, or that Mr. Wolfe lacked the mental or physical capacity to do that job if it had been required of him.

The only other "special circumstance" to which Mr. Wolfe refers is the fact that he got the job because he knew the owner, Dick Leonard. There is no evidence to suggest, however, that Mr. Wolfe's association with Mr. Leonard rendered his job any less substantial. He was required to perform virtually all of the duties required of a full-time employee, although only on a part-time basis, and was paid accordingly.

The mere fact that Mr. Wolfe may have worked only part-time, two afternoons a week, would not have rendered his previous employment any less substantial. Although the time a claimant spends on the job is important in determining whether he or she is engaged in "substantial gainful activity," it alone is not dispositive. 20 C.F.R. § 404.1573(e). See also Social Security Ruling 83-33; Keller v. Sullivan, 928 F.2d 227, 232 (7th Cir.1991); Pitts v. Sullivan, 923 F.2d 561, 565 (7th Cir.1991). Work is "substantial" if it involves significant physical and mental activities, and "gainful" if it is usually done for pay or profit, even though a profit may not actually be realized. 20 C.F.R. § 404.1572(a) and (b); Social Security Ruling 83-33; Callaghan, 992 F.2d at 695. A claimant may be presumed to have been engaged in "substantial gainful activity" based on his earnings. 20 C.F.R. § 404.1574(a) and (b); Dugan v. Sullivan, 957 F.2d 1384, 1390 (7th Cir.1992); Pitts, 923 F.2d at 565. Under the earnings guidelines established by the Administration, a claimant whose earnings averaged more than $300 a month in calendar years after 1979 and before 1990 is ordinarily presumed to have engaged in substantial gainful activity. 20 C.F.R. § 404.1574(b)(2)(vi). It is undisputed that Mr. Wolfe's earnings while at Dick Leonard Ford fell within those guidelines.

The only evidence presented in rebuttal came from the vocational expert, Dr. Joel Dill. When asked at the first hearing whether there were a significant number of jobs available to Mr. Wolfe if he could work only two to three hours a day, Dr. Dill responded, "No, the numbers would be drastically cut and I wouldn't consider it substantial gainful activity." (A.R. 71). At the second hearing, Dr. Dill opined that Mr. Wolfe would need to be able to work on a full-time basis...