Decker v. Harris (647 F.2d 291, 1981)

FEINBERG, Chief Judge:

James Decker appeals from a judgment of the United States District Court for the Western District of New York, Harold P. Burke, J., affirming a decision of the Secretary of Health and Human Services that denied Decker’s application for social security disability benefits. We find that the record on which the Secretary’s determination rests, including the decision of the administration law judge who heard the claim, is inadequate in critical respects and accordingly remand for further proceedings.

I

Appellant, who is now fifty years old, filed an application in February 1978 for disability insurance benefits under Title II of the Social Security Act and for Supplemental Security Income (SSI) disability benefits under Title XVI of the Act. The application was initially reviewed by the Bureau of Disability Determinations (BDD), an agency of New York State under contract to the Social Security Administration. The BDD in turn arranged for a medical examination of appellant by Dr. R. William Brand, a Board-certified internist. As a result of his examination, Dr. Brand concluded that appellant suffered from chronic asthmatic bronchitis, chronic nasal congestion, and probable early emphysema. Based on a pulmonary examination, Dr. Brand predicted that dyspnea (shortness of breath) would result from the exertion required for ascending “[a] flight of stairs, carrying groceries, [or] any kind of hurrying.” The pulmonary function test revealed “severe airways obstruction with partial reversibility after inhaled bronchodi-lator. Compatible with chronic bronchitis with superimposed bronchospastic components.”

The BDD also had before it a report from appellant’s physician, Dr. Vincas Sirmenis, who had been treating him since June 1977. Dr. Sirmenis diagnosed appellant’s illness as pulmonary fibrosis, emphysema, and bronchial asthma, with associated “mental apprehension when in respiratory trouble.” His report was essentially conclusory, however, lacking detailed discussion or evaluation of the scope of appellant’s disability. It also reported a “fair” response to treatment by a variety of medications.

On the basis of these two medical reports, the BDD concluded that appellant had failed to establish the requisite period of disability. The Bureau’s examiner gave the following “rationale” for the adverse decision:

Medical evidence shows this claimant to have chronic asthmatic bronchitis, and probable early emphysema. Breathing tests performed April 1978 indicated that the claimant has the capacity to perform light work, but not medium or heavy work. The claimant is a young worker whose past customary work was as a laborer, carpentry, which was heavy work. Although this claimant cannot perform his past customary work, the claimant would be able to do sedentary and light work such as: soldering machine operator, 706.887; tester, eclectronic [sic] components, 726.687; or cable worker, 739.-687. These jobs and similar jobs exist in the national economy in significant numbers, therefore, this claim is denied. ,

Presumably acting on the basis of the BDD report, the Administration notified appellant in May 1978 that he had been found not entitled to disability benefits. After appellant’s requests for reconsideration were denied, he asked for a hearing before an administrative law judge (ALJ); this was held in December 1978.

During the hearing, at which appellant was represented by counsel, appellant testified that he had left school after the seventh grade, served in the Army for four years (1948-52), and worked thereafter principally as a laborer and carpenter. He said he had stopped working in 1976 as the result of worsening problems caused by asthma and emphysema. He had difficulty walking long distances or lifting weights for more than five minutes, and while he was able to help his wife with household tasks and to drive his car on local trips, his breathing problems had compelled him to give up his hobbies of hunting and fishing.

In addition to Decker’s testimony, the ALJ considered the reports from Drs. Sir-menis and Brand and the BDD determination based on them. Dr. Sirmenis also submitted, immediately prior to the hearing, another report “certifying” that Decker had been disabled since June 7, 1977, from any substantial gainful work, and that he would continue to be disabled for at least a year. Finally, Decker submitted a handwritten report from a Veterans Administration officer, dated October 27, 1978, stating that he had been rated “permanently and totally disabled for VA pension purposes from 7/14/78.”

In January 1979, the ALJ concluded that Decker had “a mild to moderate obstructive pulmonary disease for which he has not been hospitalized and which has not resulted in any substantial restrictions in his ability to work in a sedentary job or engage in routine daily activities.” Finding that Decker had “the residual functional capacity to engage in sedentary and light work,” the AU concluded that Decker was capable of working “as a tester of electronic components, cable worker, or a soldering machine operator” — the occupations identified by the BDD — and took administrative notice of the existence of these jobs “in substantial numbers in the regional economy.” Therefore, the ALJ concluded, Decker was not disabled within the meaning of either Title II or Title XVI and thus not entitled to disability benefits.

Decker’s request for review by the Administration’s Appeals Council was denied in June 1979, making the ALJ’s decision the final determination of the Secretary in this case. Decker subsequently brought this action for review, pursuant to 42 U.S.C. §§ 405(g), 1353(c)(3), in federal district court. Acting on cross-motions for summary judgment, the district judge affirmed the Secretary’s determination in June 1980, finding that the denial of benefits was reasonable and supported by substantial evidence. This appeal followed.

II

We start by recognizing the basic principle that the burden of proving disability rests on the person claiming disability benefits, a principle established by statute, see 42 U.S.C. § 423(d)(5), regulation, see 20 C.F.R. § 404.1502 (1980), and case law, see, e. g., Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980). In this case, there is no serious dispute that appellant met his initial burden of proof by making a prima facie showing of physical impairment sufficiently severe to preclude his return to his prior employment as a laborer or carpenter. The report of the BDD expressly found that “this claimant cannot perform his past customary work.” The ALJ was less specific, stating only obliquely that “[t]he fact that the claimant may be precluded from returning to his past employment is not determinative” in evaluating a disability claim. In any event, we are persuaded that any contrary conclusion — that Decker was capable of resuming work as a laborer or carpenter — would be without support in the record.

After a claimant has made this initial showing, “the burden shifts to the Secretary, who must produce evidence to show the existence of alternative substantial gainful work which exists in the national economy and which the claimant could perform, considering not only his physical capability, but as well his age, his education, his experience and his training.” Parker v. Harris, supra, 626 F.2d at 231. The showing required of the Secretary has two principal components. See McLamore v. Weinberger, 538 F.2d 572, 574 (4th Cir. 1976). First, the Secretary must show that the claimant’s impairment is of a kind that still permits certain types of activity, such as lifting or walking, necessary for other occupations, and that the claimant’s experience involves skills transferable to other work. Second, the Secretary must present evidence showing the existence of specific types of jobs, available in the national economy, suitable for a claimant with these capabilities and skills. See, e. g., Bastien v. Califano, 572 F.2d 908, 912-13 (2d Cir. 1978). In an attempt to attain greater consistency in decisions on both of these issues, the Social Security Administration has promulgated a set of detailed regulations, codified at 20 C.F.R. Subpart P, §§ 404.1501-1539 and Apps. 1 & 2 (1980). See generally Vega v. Harris, 636 F.2d 900, 903-904 (2d Cir. 1981) (per curiam); Goldhammer, The Effect of New Vocational Regulations on Social Security and Supplemental Security Income Disability Claims, 32 Ad.L.Rev. 501 (1980).

A. Decker’s “Residual Functional Capacity■ ”

The Administration’s new regulations approach the first element of the Secretary’s showing as a question of determining “residual functional capacity,” measured primarily, insofar as physical impairments are concerned, in terms of strength and exer-tional capabilities. Id. § 404.1505(b). Exer-tional capabilities in turn are defined in terms of ability to perform “sedentary,” “light,” “medium,” “heavy,” and “very heavy” work. Id. § 404.1510. For example, the regulations define “sedentary” and “light” work as follows:

(b) Sedentary work. Sedentary work entails lifting 10 pounds maximum and occasionally lifting or carrying such articles as dockets (e. g., files), ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.

(c) Light work. Light work entails lifting 20 pounds maximum with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be only a negligible amount, a job is in this category when it requires walking or standing to a significant degree, or when it involves sitting most of the time with a degree of pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, an individual must be capable of performing substantially all of the foregoing activities. The functional capacity to perform light work includes the functional capacity to perform sedentary work.

Id. § 404.1510(b)-{c).

In light of these definitions, we do not believe the record supports the ALJ’s conclusion that appellant has a residual capacity to perform “light” work. Decker’s own testimony was that he could lift “up to 10 or 15 pounds” for “maybe 5 — for a few minutes, you know, but I mean I couldn’t keep doing it.” He testified as well that “if I try walking far, I — you know, I just got to stop and rest.” The record contains little beyond this with respect to Decker’s exertional abilities, other than the BDD’s conelusory interpretation of the April 1978 breathing tests. Of course, Decker’s potentially self-serving statements need not be given conclusive effect, but on this record there is neither any evidence to the contrary nor any indication by the ALJ that he discredited Decker’s testimony. The record does, however, support the ALJ’s finding that Decker is capable of “sedentary” work.

B. Decker’s Skill Level.

Neither the BDD nor the ALJ made any explicit finding with respect to the skills required by appellant’s prior work experience, even though this is, under the regulations, a basic element in determining whether suitable alternative work exists in the national economy. See id. §§ 404.1508, 404.1511. The regulations categorize an applicant’s work experience as “unskilled,” “semi-skilled,” or “skilled,” setting out a definition in each instance. The two terms of particular concern in this case are defined as follows:

(b) Unskilled work. Unskilled work denotes work which requires little or no judgment in the performance of simple duties that can be learned on the job in a short period of time. Considerable strength may or may not be required. As an example, where the primary work function of occupations consists of handling, feeding and off-bearing (i. e., placing or removing materials from machines which are automatic or operated by others), or machine tending, and average successful job performance can ordinarily be achieved within 30 days, such occupations are considered unskilled. Other types of jobs requiring little specific vocational preparation and little judgment are likewise unskilled. No acquired work skills can be attributed to individuals who have performed only unskilled work.

(c) Semi-skilled work. Semi-skilled work denotes work in which some skills are involved but the more complex work functions are not required. Semi-skilled jobs may require alertness and close attention to watching machine processes; or inspecting, testing or otherwise detecting irregularities; or tending or guarding equipment, property, materials, or persons against loss, damage or injury; or other types of activities involving work functions of similar complexity. A job may be classified as semi-skilled where coordination and dexterity are necessary as in the use of the hands or feet for the rapid performance of repetitive tasks.

Id. § 404.1511(b)-