McBurrows v. Commissioner of Social Security

928 F. Supp. 724, 1996 U.S. Dist. LEXIS 7805, 1996 WL 309383
CourtDistrict Court, E.D. Michigan
DecidedJune 5, 1996
DocketNo. 95-73591
StatusPublished

This text of 928 F. Supp. 724 (McBurrows v. Commissioner of Social Security) is published on Counsel Stack Legal Research, covering District Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McBurrows v. Commissioner of Social Security, 928 F. Supp. 724, 1996 U.S. Dist. LEXIS 7805, 1996 WL 309383 (E.D. Mich. 1996).

Opinion

MEMORANDUM AND ORDER DENYING CROSS MOTIONS FOR SUMMARY JUDGMENT AND REVERSING AND REMANDING FOR FURTHER CONSIDERATION

COHN, District Judge.

I.

This is a Social Security ease. Plaintiff, Hiram McBurrows (McBurrows), appeals the determination of the Commissioner of Social Security (Commissioner) that McBurrows is not entitled to disability insurance benefits. McBurrows applied for disability insurance benefits on August 9,1993, alleging disability from June 28, 1982. McBurrows’s application was denied initially and upon reconsideration. A hearing was held before an administrative law judge (ALJ) on December 13, 1994, at which McBurrows and Dr. Elaine Tripi, a vocational expert (VE), testified. On April 7, 1995, the ALJ denied McBurrows’s application, finding that though McBurrows could not perform his past relevant work, he could perform other jobs existing in the economy. The Appeals Council affirmed the ALJ’s determination, which then became the final decision of the Commissioner.

McBurrows instituted this action for judicial review of the determination pursuant to 42 U.S.C. § 405(g). The matter was re[726]*726ferred to a magistrate judge before whom both McBurrows and the Commissioner filed motions for summary judgment. On April 23, 1996, the magistrate judge issued a report and recommendation (MJRR) that the ALJ’s determination be upheld, to which McBurrows objects. For the reasons which follow, the MJRR will not be adopted, the cross motions for summary judgment will be denied, the Commissioner’s determination will be reversed, and the matter will be remanded to the Commissioner for determination of whether McBurrows has any skills transferable to new work.

II.

Judicial review of a Social Security disability benefits application is limited to determining whether the decision of the ALJ is supported by substantial evidence. Smith v. Secretary of HHS, 893 F.2d 106, 108 (6th Cir.1989). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). The substantiality of the evidence must be based upon the record taken as a whole. Futemick v. Richardson, 484 F.2d 647, 649 (6th Cir. 1973).

III.

McBurrows has a tenth grade education and his past employment was as a rubbish truck driver, which entailed nothing other than driving a truck along a required route. The ALJ found that McBurrows met the disability insured status requirements from the alleged date of disability, June 28, 1982, until September 30, 1990, on which date McBurrows was fifty-six years old. The ALJ also found that due to lower back injuries McBurrows had the residual functional capacity to perform a limited range of work in the light-exertion category, that McBurrows’s past work was semiskilled, and that McBurrows had acquired skills through his past work which, considering his residual functional capacity, could be applied to other work.

Performing the five-step sequential evaluation used to determine whether a claimant is disabled under the Social Security Act, 20 CFR § 404.1520, the ALJ found that 1) McBurrows had not engaged in substantial gainful activity since June 28, 1982; 2) McBurrows had a severe combination of impairments; 3) these impairments are not listed in, and are not medically equal to an impairment listed in 20 CFR Part 404, Sub-part P, App. 1; 4) McBurrows had proven he was unable to perform his past relevant work as a rubbish truck driver; and 5) the Commissioner had met her burden of proving that, considering McBurrows’s age, education, past relevant experience, and residual functional capacity, McBurrows had the ability to engage in other gainful activity. Therefore, the ALJ found McBurrows not disabled.

IV.

The sole issue before the Court is whether the ALJ correctly found that McBurrows had acquired work skills which could be transferred to other jobs.1 In finding that McBurrows had acquired transferable skills, the ALJ relied on Rule 202.03 of the Medical Vocational Guidelines (the “Grid”), 20 CFR Part 404, Subpart P, App. 2, for guidance. Rule 202.03 provides that an applicant limited to light work, of advanced age2, with limited3 or less education, and whose “previous work experience” was semiskilled with transferable skills is not disabled. Rule 202.02 of the Grid states that an applicant limited to light work, of advanced age, with limited or less education, and whose previous work experience was semiskilled but was without transferable skills is disabled. Therefore, whether McBurrows is disabled turns on whether his past work experience provided him with transferable skills.

[727]*727McBurrows says that his past relevant work was either unskilled or had no transferable skills that he could take to a new job. The Commissioner argues that McBurrows’s past work was semiskilled and McBurrows did have transferable skills that would allow him to perform a significant number of jobs aside from his past relevant work.

A.

“Unskilled work” is defined in the regulations as “work which needs little or no judgment to do simple duties that can be learned on the job in a short period of time---- [A] person can usually learn to do the job in 30 days....” 20 CFR § 404.1568(a). “Semiskilled work” is defined as “work which needs some skills but does not require doing ... more complex work duties____ A job may be classified as semi-skilled where coordination and dexterity are necessary, as when hands or feet must be moved quickly to do repetitive tasks.” 20 CFR § 404.1568(b).

Social Security Ruling 82-414 (SSR 82-41) was written to “further explain the concepts of ‘skills’ and ‘transferability of skills’ ” and contains the following:

[a] skill is knowledge of a work activity which requires the exercise of significant judgment that goes beyond the carrying out of simple job duties and is acquired through performance of an occupation which is above the unskilled level (requires more than 30 days to learn). § 2.a.
The regulations’ definition of semiskilled work ... states that semiskilled jobs “may require ... coordination and dexterity ... as when hands or feet must be moved quickly to do repetitive tasks.” These descriptive terms are not intended, however, to illustrate types of skills, in and of themselves. The terms describe worker traits (aptitudes or abilities) rather than acquired work skills.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
928 F. Supp. 724, 1996 U.S. Dist. LEXIS 7805, 1996 WL 309383, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcburrows-v-commissioner-of-social-security-mied-1996.