Leon Cunningham v. Margaret M. Heckler, Secretary of Health and Human Services

764 F.2d 911, 246 U.S. App. D.C. 278, 1985 U.S. App. LEXIS 30615
CourtCourt of Appeals for the D.C. Circuit
DecidedJune 21, 1985
Docket84-5755
StatusPublished
Cited by12 cases

This text of 764 F.2d 911 (Leon Cunningham v. Margaret M. Heckler, Secretary of Health and Human Services) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Leon Cunningham v. Margaret M. Heckler, Secretary of Health and Human Services, 764 F.2d 911, 246 U.S. App. D.C. 278, 1985 U.S. App. LEXIS 30615 (D.C. Cir. 1985).

Opinion

McGOWAN, Senior Circuit Judge:

We here review the decision of the District Court that an Administrative Law Judge (ALJ) properly found the appellant no longer disabled within the meaning of the Social Security Act after February 24, 1982. We reverse for lack of substantial evidence supporting the AU’s decision, and we instruct the District Court to remand the case to the agency for proceedings consistent with this opinion.

A number of relevant facts are undisputed. Appellant Leon Cunningham is a 49-year-old male with arthritic and other difficulties in his arms that make it impossible for him to work as a carpenter, his occupation for the last two decades. On or about January 10, 1981, the appellant suffered a stroke that immediately disabled him for purposes of the Social Security Act. The critical issue in this case is the duration of the appellant’s disability.

The appellant has a high-school education. On achievement tests administered after the stroke, Mr. Cunningham scored at the third- to sixth-grade level. His relevant Intelligence Quotient (IQ) is 70, 1 a single point above that which would by itself be likely to qualify him as disabled. 2 Appellant has been hospitalized for alcoholism and arrested for driving while intoxicated, although there is no indication that the appellant is currently suffering from alcoholism.

The procedural history of this case can be briefly recounted. When the appellant first applied for disability payments, the AU examined the medical evidence and consulted the “grid” regulations of the Social Security Administration (SSA). 3 The *914 ALJ ruled that the appellant had been disabled after his stroke until February 24, 1982, when the disability ceased. Opinion of AU at 9, Record on Appeal 38 [hereinafter cited as “R.”]. The Appeals Council of the SSA remanded the case to the AU for further proceedings on the cessation of disability, because “absent the testimony of a vocational expert, the record does not substantially support the administrative law judge’s finding that the claimant could engage in a wide range of sedentary and light work as of February 24, 1982.” Order of Appeals Council at 2, R. 20. The AU then took testimony from two vocational experts and reached the same conclusion as before. The District Court affirmed the decision as supported by substantial evidence.

We have examined the record to determine whether the AU considered “all the relevant facts” in making his decision. 4 In light of the Appeals Council’s decision, the testimony of the vocational experts in this case is especially important. Dr. Richard Lawrence appeared at the request of the AU and Dr. James Kuhagen testified at the request of the appellant’s counsel. Their qualifications as vocational experts are undisputed. 5

Dr. Lawrence specified five jobs available to the appellant in significant numbers in the local economy: 6 uniform supply *915 clerk, flagman, custodian, watchman, and light porter. Dr. Kuhagen disputed a number of Dr. Lawrence’s conclusions. We discuss in turn how each of three different characteristics of the appellant — his mental skills, his ability to walk or stand, and his involvement with alcohol — might affect the appellant’s prospects for employment. We conclude that the AU lacked substantial evidence for the determination that the appellant was capable of performing a wide range of light and sedentary work. We are constrained to do so primarily because there is no substantial evidence that the appellant can find employment in at least four of the five types of jobs whose listing by a vocational expert was the only record ■evidence that the appellant can hold down any job.

I

Our scope of review in cases involving disability determinations under the Social Security Act is a narrow one. See 42 U.S.C. § 405(g) (1982) (“The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive____”). It is clearly the duty of this court, however, as it is the duty of the District Court, to engage in a careful review of the record for substantial evidence to support the conclusions of the AU. See Vance v. Heckler, 757 F.2d 1324 (D.C.Cir. 1985). We note at the outset that discharging our duty in this case is made significantly more difficult by the poor quality of the transcript of the crucial hearing. We reproduce excerpts from the transcript exactly as they appear in the record to illustrate our point. 7

II

A. Appellant’s General Mental Skills

Mental skills may properly be considered as a non-exertional factor in determining disability. See 20 C.F.R. § 404.1505 (1984) (“The law defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.”) (emphasis added). Because the appellant’s mental skills, in light of his exertional limitations, border on those low enough to qualify him automatically for disability payments, 8 proper consideration of the effect of appellant’s mental skills upon the availability of employment is especially important.

Dr. Kuhagen performed two different types of intelligence tests on the appellant. The first type was an IQ test, which yielded IQ measures in the categories of “verbal IQ,” “performance IQ,” and “full-scale IQ.” The second type was a series of achievement tests, which yielded grade-equivalent scores in reading, spelling, and arithmetic. The findings of these tests are described above. See supra p. 911. A summary of the test results, dated March 21, 1983, was included as Exhibit 42 in the second hearing. See R. 158-60.

The AU appears to have asked Dr. Lawrence if the latter had seen Dr. Kuhagen’s report:

Q You’ve had an opportunity to review the prosed or not to propose the *916 exhibits which have been received in evidence?
A Yes.
Q And you had an opportunity to review in detail the report of Dr. Kuhagen, dated March 21, 1983?
A Yes.
Q With Phycological evaluation?
A Yes.

Tr. at 6, R. 49. The AU then asked Dr.

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Bluebook (online)
764 F.2d 911, 246 U.S. App. D.C. 278, 1985 U.S. App. LEXIS 30615, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leon-cunningham-v-margaret-m-heckler-secretary-of-health-and-human-cadc-1985.