Ernest E. NOLEN, Plaintiff-Appellant, v. Louis W. SULLIVAN, Secretary, Department of Health and Human Services, Defendant-Appellee

939 F.2d 516, 1991 U.S. App. LEXIS 18397, 1991 WL 152427
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 13, 1991
Docket90-1161
StatusPublished
Cited by51 cases

This text of 939 F.2d 516 (Ernest E. NOLEN, Plaintiff-Appellant, v. Louis W. SULLIVAN, Secretary, Department of Health and Human Services, Defendant-Appellee) 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
Ernest E. NOLEN, Plaintiff-Appellant, v. Louis W. SULLIVAN, Secretary, Department of Health and Human Services, Defendant-Appellee, 939 F.2d 516, 1991 U.S. App. LEXIS 18397, 1991 WL 152427 (7th Cir. 1991).

Opinion

CUDAHY, Circuit Judge.

Ernest Nolen applied for disability insurance benefits in 1986, claiming that he was disabled before his insured status expired in 1985. After a hearing, the administrative law judge (AU) concluded that Nolen could have returned to his previous job at the end of his insured status. The Appeals Council denied Nolen’s petition for review, and the district court affirmed. Nolen’s appeal contends that the AU erred in finding him able to perform his former work and in selecting November 10, 1986 — the date of his application — as the onset date of his disability.

I.

Nolen worked from 1954 to October 1980 at A.O. Smith Company, a manufacturer of car frames. Fifty-nine years old at the time of his hearing, he has endured many problems with his legs and feet. As a child, he contracted polio. In 1973 his doctors conducted two operations to fuse his left ankle; he missed work and received disability insurance benefits (DIB) from March 1973 to August 1974 and from February 1975 to August 1976. Arthritis developed in both knees, for which Nolen began seeing an orthopedic surgeon, Dr. Hayes, in the spring of 1984. In May 1984 he underwent an arthroscopic evaluation, an intra-articular debridement and a removal of loose bodies on his right knee. Similar problems developed in the left knee, and Nolen endured surgery again in March 1985. He began a therapy program, but in October 1986 another operation was required on the left knee.

Nolen’s doctors recorded his condition in a series of examination reports following the surgeries. After the first surgery, reports on May 25, June 22 and August 17, 1984, by Dr. Punnoose, Nolen’s attending physician, indicated Nolen to be doing “reasonably well” and able to lift weights up to ten pounds for exercise. R. 200-02. Following the second surgery, Dr. Punnoose’s reports of March 15, 18 and 22, 1985, reported Nolen to be “doing reasonably well” and also suggested lifting weights. R. 193-95. The medical reports do not indicate that either Dr. Hayes or Dr. Punnoose considered Nolen fit to return to his job.

By 1978, foot and leg problems led to Nolen’s transfer at A.O. Smith from welding to the “loan out” crew and then to the paint house. Nolen testified that the painting job reduced his pay by at least a dollar an hour. He also testified that even the less demanding painting position proved difficult because it included climbing ladders and working in slippery conditions. 1 The A.O. Smith plant closed in 1980, and Nolen did not work thereafter.

*518 Nolen’s insured status for DIB expired on December 31, 1985. AU Decision at 3. He applied for benefits in 1986, claiming a disability onset date of June 1, 1981. The AU found that he was disabled as of the date of his application — November 10, 1986 —but not before, entitling him to Supplemental Security Insurance benefits (SSIB) but not DIB.

Nolen then sought review by the Appeals Council, which was denied on May 26, 1988. Nolen supplemented the record with a March 7, 1988, letter from Dr. Hayes, which contends that Nolen was disabled and unable to return to work as of 1984. On August 10, 1988, the Council notified Nolen that the letter did not affect its decision. The district court, affirming, found the letter inconsistent with Dr. Hayes’ evaluations following the March 1985 surgery, citing 20 CFR §§ 404.1527, 416.927. The judge apparently concluded that the earlier notes, documenting Nolen’s recovery from surgery, indicated Nolen was not disabled.

II.

A. Demands of Previous Job.

One step in the Secretary’s review of a DIB or SSIB claim is assessing whether a claimant can perform the demands of his prior job. 20 CFR §§ 404.1520(e) & 416.920(e) (1987). 2 Even if the claimant is unemployed and his disability is severe, an ability to perform the claimant’s previous job disqualifies him from receiving DIB. In Strittmatter v. Schweiker, 729 F.2d 507 (7th Cir.1984), we held that an ALJ cannot describe a claimant’s job in a generic way— there, “sedentary” — and conclude, on the basis of the claimant’s residual capacity, that she can return to her previous work. Instead, the AU must list the specific physical requirements of the previous job and assess, in light of the available evidence, the claimant’s ability to perform these tasks. Id. at 509; see also S.S.R. 82-62 (1982) (“Past work experience must be considered carefully to assure that the available facts support a conclusion regarding the claimant’s ability or inability to perform the functional activities required in this work.”).

Nolen contends that the AU did not evaluate the specific demands of his previous job in determining that he was able to return to work. Initially, we note that Nolen may not have presented this claim adequately to the AU or the district *519 court. His original benefits application did not mention ladder climbing. Nonetheless, the claim is here cognizable for three reasons. First, the Secretary has “waived the waiver” issue by not mentioning until oral argument Nolen’s possible failure to raise the issue correctly below. United States v. Rodriguez, 888 F.2d 519, 524 (7th Cir.1989). Second, the requirement of ladder climbing emerged clearly from Nolen’s testimony before the AU. See supra n. 1. And third, the claim appeared in some form before the district court, which noted, “Plaintiff testified that he occasionally was required to climb ladders at work to clean out the paint nozzles and that such work was dangerous due to the paint making the floor extremely slippery.” Order at 4.

With respect to his claim, Nolen is right; the AU’s decision does not list the demands involved in Nolen’s paint mixing job. The AU classified Nolen’s previous job as “unskilled at the light exertional level, as provided by 20 CFR 404.1567 and 416.967.” Decision at 3. There is no description of the tasks the job entailed. In deciding that Nolen was able to return to such work, the AU relied on the absence of complaints by Nolen to his doctor about his knees during 1985. For example, the AU thought important Dr. Punnoose’s note that “the claimant’s knee condition was rather stable prior to December 31, 1985.” Decision at 3. The AU concluded that Nolen retained the residual functional capacity “to return to his past relevant work” and that, had the plant not closed, Nolen would have been able to return to work. Id. These findings fall short of Strittmatter’s demand for facts describing Nolen’s previous duties and an assessment of Nolen’s ability to perform them.

We reiterate that the AU must specify the duties involved in a prior job and assess the claimant’s ability to perform the specific tasks. Strittmatter clearly states:

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939 F.2d 516, 1991 U.S. App. LEXIS 18397, 1991 WL 152427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ernest-e-nolen-plaintiff-appellant-v-louis-w-sullivan-secretary-ca7-1991.