Abbott v. Astrue

391 F. App'x 554
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 28, 2010
DocketNo. 09-3897
StatusPublished
Cited by16 cases

This text of 391 F. App'x 554 (Abbott v. Astrue) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Abbott v. Astrue, 391 F. App'x 554 (7th Cir. 2010).

Opinion

ORDER

Clark Abbott, born in 1947, filed his second application for Social Security disability benefits, claiming that heart disease, high blood pressure, and arthritis in his knee left him unable to work by the end of 2004, his last date insured. The administrative law judge determined that Abbott was not disabled because, he found, Abbott had acquired skills from his past work that he could transfer to a new job within his residual functional capacity. That ruling forms the heart of this appeal: Abbott argues that the ALJ erred in finding that he had transferable skills. Because the ALJ did not make the required findings of fact about what skills Abbott had acquired or how they would transfer [556]*556to another position, we remand to the agency for further findings of fact.

I. Background

Abbott suffers from numerous ailments, including an arthritic knee, heart disease, high blood pressure, high cholesterol, peripheral vascular disease, and kidney disease. He had knee surgery in 1991 following an injury to his arthritic knee, and afterwards he reported continued swelling and pain. By 2005 a doctor recommended a total knee replacement, which Abbott underwent the following year. Adding to his health problems, he had multiple heart attacks, two in 1998 and another in 2004 that led to a triple bypass. Additionally, his high blood pressure and high cholesterol contributed to his peripheral vascular disease, which narrowed the arteries leading to his legs and to one kidney, causing poor renal function, blue-colored feet, and toenail loss. In his disability application, Abbott claimed that these conditions prevented him from walking or standing for more than 10 to 20 minutes before having to rest. He also said that he could not sit for more than two hours at a time because his knee would start to throb.

In advance of his hearing before the ALJ, Abbott (who was represented by counsel) submitted a brief arguing that he should be found disabled as a direct application of the Medical-Vocational Guidelines (“the grids”). See 20 C.F.R. Pt. 404, Subpt. P, App. 2. The grids reflect the Social Security Administration’s determination that certain combinations of age, education, work experience, and exertional limitations direct a finding of either disabled or not disabled at step five of the disability analysis. 20 C.F.R. § 404.1569; id. Pt. 404, Subpt. P., App. 2 § 200.00(a); see Haynes v. Barnhart, 416 F.3d 621, 627-30 (7th Cir.2005). Abbott rested his hopes on Rule 201.06 of the grids, a rule affecting claimants 55 years or older who are limited to sedentary work and whose education does not provide them with the ability for skilled work. That rule directs a finding of disabled if a claimant acquired no skills from his past work that would transfer easily to another skilled or semiskilled job. If, however, the Commissioner proved that the claimant had transferable skills, he would not be deemed disabled.

Abbott detailed his past work experience in his 2000 and 2004 disability applications. He explained that he had held several positions at a special education school from 1985 to 1999. He started as a “job coach,” but in 1991 he switched to the position of “teacher’s aide,” which he held only for a few months until he injured his knee while restraining a student. After the injury Abbott could no longer restrain students, and so the school created for him the position of “transporter,” which, he explained, consisted of driving students to their jobs and classes. He performed these duties from 1992 until he lost his job in 1999, and did not work again.

At the hearing a conflict developed between Abbott and the vocational expert (“VE”) about the nature of Abbott’s past work. The VE attributed to Abbott more responsibilities that would lead to transferable skills than Abbott reported having. For example, Abbott testified that as a teacher’s aide, he would monitor the students to make sure that they behaved but was not involved in any teaching activities. The VE, on the other hand, testified that based on his general understanding of what a teacher’s aide did, Abbott would have helped the teachers implement their lesson plans and would have learned how to deal with students with emotional problems. Abbott also testified that as a job coach, he would accompany students to their jobs and monitor them to ensure that [557]*557they did not misbehave, but that he did not place students at jobsites, evaluate their performances, or train them except for an occasional demonstration of simple tasks, like how to mop. The VE, however, believed that Abbott gained experience training students with behavioral or emotional problems on how to do their jobs and would interact with employers to evaluate a student’s performance and create work goals. The VE stated that his testimony was based on his personal knowledge of the job-coach position at the school where Abbott had worked, as reflected in the grant proposal when the program was created, and through past work he had done with other job coaches at the school when he worked in the mental health field.

The VE then testified that Abbott’s acquired skills would be directly transferable to the job of caseworker. That job, the VE added, was performed at the sedentary level and could accommodate the additional restrictions identified by the ALJ in his hypothetical questions. But if Abbott’s job tasks were as narrow as he described them, the VE said, Abbott would have no transferable skills.

To bolster his testimony about his limited job duties, after the hearing Abbott submitted an affidavit from the teacher in whose classroom his desk was located when he was a transporter. The teacher asserted that Abbott would help monitor student behavior when he was not driving, but that he was not involved in any academic work. The teacher did not know what Abbott did as a job coach.

The ALJ concluded that Abbott was not disabled by the end of 2004, his date last insured. Following the familiar five-step analysis, see 20 C.F.R. § 404.1520(a)(4), the ALJ found that Abbott had not performed substantial gainful activity from the alleged onset date (step one), and he identified coronary artery disease and arthritis of the left knee as impairments that were severe (step two) but did not meet or equal a listed impairment (step three). The ALJ then turned to Abbott’s residual functional capacity (“RFC”) and concluded that Abbott could still perform sedentary work with additional restrictions to accommodate his medical impairments. Based on these restrictions, the ALJ determined that Abbott could not perform his past work as either a job coach or a teacher’s aide (step four). The ALJ then proceeded to step five, at which the Commissioner bore the burden to prove that Abbott could perform other jobs, which, because of the grids, were limited to skilled sedentary work that could accommodate his additional restrictions and that utilized his acquired work skills.

At step five, the ALJ found that as a job coach Abbott had acquired skills that would transfer to the job of caseworker with no adaptation.

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Bluebook (online)
391 F. App'x 554, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abbott-v-astrue-ca7-2010.