Shelah COLE, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee

820 F.2d 768, 1987 U.S. App. LEXIS 6895, 18 Soc. Serv. Rev. 43

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 1, 1987
• Docket: 86-1146
• Status: Published

Opinions

WELLFORD, Circuit Judge.

Appellant Shelah Cole appeals from the district court order affirming the final decision of the Secretary of Health and Human Services denying his application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 423. For the reasons that follow, we REMAND the case to the Secretary for further consideration.

Appellant, bom on December 14, 1933, last worked as a material handler in the steel industry in 1974. Most of the material was lifted by hand, but some was transported by a hi-lo vehicle, which appellant operated approximately ten hours a week. Appellant stopped working in 1974 and was granted disability benefits in October 1974. The benefits were terminated in October 1981, and an AU affirmed the termination. Appellant never appealed that decision. In January 1984 appellant filed the current application for benefits, claiming disability on the basis of an enlarged heart, high blood pressure, asthma, arthritis, and a hernia. Although he alleged that he had been disabled since 1974, he conceded that this application was a “new application reflecting the period October 1981 through today.” The Secretary denied benefits.

Cole testified at the administrative hearing that he suffers from numerous impairments. First, he suffers from chest pains that are sharp pains radiating down his left arm (Cole is left handed) and into his neck. These pains occur approximately three times a week and may be brought on by exertion or, according to Cole, sometimes when he is sitting doing nothing. He also suffers from asthma, shortness of breath, gout, hypertension, headaches, dizziness, arthritis, and a hernia. He attributes the headaches and dizziness to the hypertension.

The medical evidence included reports from two doctors. Dr. Ganesh, plaintiff’s treating physician, stated in a report dated January 18, 1984 that Cole complained of chest pains, shortness of breath, severe headaches, and occasional nosebleeds. Dr. Ganesh noted blood pressure readings of 150/90 in December 1983; 150/110 in December 1983; and 150/90 in January 1984. Dr. Ganesh noted no reflex, sensory, or motor abnormalities and no limitation in the range of motion. Dr. Ganesh diagnosed uncontrolled hypertension, hypertensive cardiovascular disease, and arthritis. Dr. Ganesh concluded that “it is very difficult for the patient to perform any daily activity do [sic] to the nature of his illness.”

Dr. Patel, an internist who examined Cole on March 5, 1984 at the Secretary’s request, stated in his report that Cole complained of hypertension, headaches and dizziness, asthma, gout for which he takes Zyloprim, and low back pain. Cole indicated to Dr. Patel that he was taking Aldo-net, Inderal, a water pill, Nitroglycerin for chest pain, and Motrin for his back. An x-ray of the lumbosacral spine showed lumbar osteoarthritis with narrowing of the L-5, S-l disc space, but range of motion in lower back and knees was normal.

Dr. Patel determined that “clinically there was no evidence of congestive heart failure, asthma, or any peripheral vascular disease.” A funduscopic examination revealed Grade 1 hypertensive changes and blood pressure of 160/108 on the right and 150/104 on the left. A resting EKG showed no significant abnormalities. During a five-minute stress test, Cole reached a heart rate of 154, and there was no significant elevation of blood pressure or ST changes. The stress test was discontinued when Cole complained of fatigue and shortness of breath. On the basis of his examination, Dr. Patel diagnosed uncontrolled hypertension, mild to moderate exogenous obesity, history of gout and chest pains more often with exertion, and recurrent lumbar myofascitis. Dr. Patel ruled out the possibility of mild anxiety state and angina pectoris.

Samuel Goldstein, a vocational expert, testified that appellant’s prior work experience would be classified as somewhere between unskilled and semi-skilled, with an exertional level varying from light to heavy. Goldstein explained that the work as a hi-lo vehicle operator was the “skill” factor in the semi-skilled classification of the job. When asked if that work imparted “any skills which are transferable to any sedentary work,” Goldstein responded, “skills ... involved with the general vehicle operating area.” Two sedentary vehicle operating positions are in-plant jitney operator and messenger vehicle operator, the latter described as “people that basically drive a car all day.” Goldstein testified that 5,500 sedentary vehicle jobs existed in the area, but only 2,750 jobs did not require exposure to cold weather. Responding to a hypothetical question, Goldstein testified that if Cole were found to suffer from dizziness, sweats, shortness of breath, high blood pressure, gout, and chest pains, “those findings would rule out any and all vehicle operating.”

The AU concluded that Cole had not engaged in substantial gainful activity since 1974 and was unable to perform his past relevant work. He also concluded that Cole has severe chest pains and hypertension, but that Cole’s testimony was exaggerated and Cole did not have an impairment or combination of impairments listed in the regulations. The AU determined that Cole had the residual functional capacity for the full range of sedentary work and that he had acquired transferable work skills that can be applied to the sedentary jobs of in-plant jitney driver or messenger vehicle operator. For these reasons, the AU found that Cole was not entitled to benefits.

Cole requested review by the Appeals Council and submitted reports from Mary Ann Johnson, a rehabilitation specialist, and Dr. Ganesh. Ms. Johnson characterized the job of material handler as “basically heavy, unskilled work,” and noted that “operating a vehicle such as a high low would ... be generally considered within the semi-skilled range.” Based on Cole’s complaints of chest pain and dizziness, however, Ms. Johnson concluded that Cole would be precluded from operating a vehicle because of safety considerations.

Dr. Ganesh’s report reflected examinations performed from December 1983 to June 1984. Dr. Ganesh observed that Cole was experiencing chest pains and dizziness. Blood pressure levels were 150/100 in December 1983, 160/110 in January 1984, and 140/100 in February 1984. Cole was taking various medications and prescriptions for gout, for high blood pressure, and for his other complaints. An EKG, dated June 14,1984, showed sinus bradycardia and left ventricular hypertrophy, and a chest x-ray, dated March 6, 1984, showed left ventricular enlargement. Dr. Ganesh diagnosed hypertensive cardiovascular disease, uncontrolled hypertension, hernia, and gout. He concluded that Cole “is totally disabled and cannot work or be engaged in any gainful operation.”

After considering these two reports, the Appeals Council affirmed the AU’s decision, which became the final decision of the Secretary. The magistrate, on referral of the case, recommended that the Secretary’s decision be reversed, finding that “the ALJ’s determination that plaintiff had transferable skills is erroneous as a matter of law” because the qualities involved in operating a hi-lo are aptitudes rather than skills. The district court rejected the magistrate’s recommendation, finding substantial evidence to support the Secretary’s decision.

Pursuant to 42 U.S.C. § 405(g), judicial review of the Secretary’s decision is limited to determining whether substantial evidence exists in the record as a whole to support the decision. The reviewing court “may not try the case de novo, nor resolve conflicts in evidence, nor decide questions of credibility.” Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.1984). The Secretary is charged with finding the facts relevant to an application for disability benefits, and the Secretary’s findings, if supported by substantial evidence, are conclusive. 42 U.S.C. § 405(g).

Substantial evidence is “ ‘more than a mere scintilla. It means 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) (quoting Consolidated Edison v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). “Substantiality of the evidence must be based upon the record as a whole” and “ ‘must take into account whatever in the record fairly detracts from its weight.’ ” Garner, 745 F.2d at 388 (quoting Beavers v. Secretary of Health, Education & Welfare, 577 F.2d 383, 387 (6th Cir.1978)).

Once the claimant establishes that he cannot perform his past relevant work, the burden shifts to the Secretary to establish that the claimant retains the residual functional capacity to perform “substantial gainful work which exists in the national economy.” Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir.1986); see also Francis v. Heckler, 749 F.2d 1562, 1566 (11th Cir.1985). Substantial evidence must support a finding that the claimant has the vocational qualifications to perform specific jobs. Richardson v. Secretary of Health & Human Services, 735 F.2d 962, 964 (6th Cir.1984) (per curiam). The Secretary may meet this burden by reference to the medical vocational guidelines (“the grids”) unless the claimant suffers from nonexertional limitations that significantly limit the range of work permitted by his exertional limitations. Damron v. Secretary of Health & Human Services, 778 F.2d 279, 281-82 (6th Cir.1985).

In this case Cole testified that he suffers chest pain and hypertension accompanied by shortness of breath, dizziness, and headaches. The AU, however, described Cole’s complaints of chest pain as exaggerated, explaining that “[wjhile [appellant] stated that chest pain occurs not only upon exertion or excitement, but at rest also, [Dr. Ganesh’s] report indicated that [appellant] experiences chest pain upon exertion or excitement only.” Dr. Ganesh’s report indicated that Cole’s chest pains may be “brought on” by activity or exertion, but did not mention that Cole suffers chest pain while resting. Moreover, Dr. Patel indicated that Cole has a “[h]istory of chest pains, more often with exertion.”

The AU further found appellant’s testimony generally not persuasive, explaining that while appellant testified that he does minimal driving, he also testified that his car, a 1979 vehicle, has 28,000 miles on it. The AU does not seem to have considered, however, that three other individuals in appellant’s family could have driven the car. The record, moreover, does not indicate the mileage of the car when it was purchased. On remand, the Secretary should analyze the amount of driving customarily done by Cole more carefully and whether there is any inconsistency in Cole’s testimony in this respect. The extent to which Cole is able to drive a car may indicate whether he can perform the sedentary job of messenger vehicle operator.

In light of Judge Milburn’s dissent, the Secretary should reconsider whether Cole has the residual functional capacity to perform any sedentary vehicle operation position. In determining whether Cole has residual functional capacity to perform specific jobs, the Secretary may not apply the “grids” if Cole suffers from “nonexertional” impairments. See, e.g., Damron, 778 F.2d at 282; Kirk v. Secretary of HHS, 667 F.2d 524, 528 (6th Cir.1981). A nonguideline determination is required only if “the nonexertional limitation restricts a claimant’s performance of a full range of work at the appropriate residual functional capacity level____” Kirk, 667 F.2d at 528-29; see also Kimbrough v. Secretary of HHS, 801 F.2d 794, 796 (6th Cir.1986). A mere allegation of a nonexertional limitation is not sufficient to preclude application of the grid; the determining factor is whether the alleged nonexertional impairment is severe enough to alter the conclusion that the claimant could do a full range of sedentary work. Kimbrough, 801 F.2d at 796; Kirk, 667 F.2d at 537. In this ease, the Secretary must determine on remand whether Cole has nonexertional impairments and, if so, whether they are significant enough to prevent Cole from performing a full range of sedentary work at a designated level. We note that we have traditionally considered the term “nonexertional” to encompass mental, sensory, or environmental limitations. See, e.g., Kimbrough, 801 F.2d at 795 (mental); Damron, 778 F.2d at 282 (environmental); see also 20 C.F.R. § 404, Subpart P, Appendix 2 (referring to nonexertional limitations as mental, sensory, or environmental).¹

The plaintiff would seem to maintain that mere assertions of pain or dizziness, if supported in any fashion by objective medical evidence, should be considered as indicating a nonexertional limitation, precluding application of the grid. This court has not adopted this position. See Kimbrough, 801 F.2d at 796, 797. The claim of nonexertional impairment must indicate a significant or severe limitation precluding the ability (in this case) to do sedentary work. Pain can be disabling, but only if it is found to be a credible claim and if it establishes an inability to be gainfully employed.²

If Cole’s medical conditions do not preclude the sedentary work at issue, the question whether he has “transferable skills” arises. A person of advanced age who is limited to sedentary work is considered disabled even if his prior work were semi-skilled if he has no transferable skills. Richardson v. Secretary of Health & Human Services, 735 F.2d 962, 964 (6th Cir. 1984) (citing Rule 201.02). The ALJ found that Cole’s experience operating the hi-lo gave him acquired, transferable skills applicable to the in-plant vehicle and messenger jobs. The magistrate disagreed, ruling this finding erroneous as a matter of law.

The question is whether Cole has “transferable skills” or merely an aptitude for the jobs of in-plant vehicle operator or messenger. An aptitude is an inclination, natural ability, or capacity to learn; a “skill” is a learned ability to do a specific job. See, e.g., Ellington v. Secretary of HHS, 738 F.2d 159, 161 (6th Cir.1984); Richardson, 735 F.2d at 964; Weaver v. Secretary of HHS, 722 F.2d 310, 311 (6th Cir.1983). We have found, for example, that independence of judgment, responsibility for a work product or production standard, ability to use hand tools, and manual dexterity are aptitudes rather than transferable skills. See Ellington, 738 F.2d at 161; Richardson, 735 F.2d at 964; Weaver, 722 F.2d at 311.

The hi-lo vehicle Cole operated before leaving work in 1974 has both hand controls and pedals, with forks on the front for lifting materials. The vocational expert testified that operating a hi-lo is considered semi-skilled activity. The vocational expert’s response to whether the skills involved were “transferable” does not clearly set out the problem of separating “skill” from “aptitude.” He only stated that the skills present are “those involved with the general vehicle operating area.” Whether operating a hi-lo vehicle imparts transferable skills was discussed in Morgan v. Secretary of HHS, 664 F.Supp. 273, No. 85-CV-74290-DT (E.D.Mich.1986). The Morgan court determined that “knowledge of how to operate a hi-lo” is a “skill,” but not a skill that is transferable to any job other than another hi-lo job. Slip op. at 277. The other abilities involved in driving a hi-lo— hand-foot-eye coordination and moving materials — were not considered “skills” but “aptitudes.” Id. Accord, Stamps v. Secretary of HHS, 633 F.Supp. 101, 108 (E.D.Mich.1985).

In this case, the skills necessary to operate an in-plant vehicle are not clear from the record. If only hand-foot-eye coordination, moving materials, and general responsibility are involved, no “skills” are involved. If, on the other hand, Cole learned a specific skill or skills as a hi-lo operator that are particularly applicable to the in-plant vehicle, then Cole may be considered to have “transferable skills.” We REMAND this case for the Secretary to determine whether Cole’s job imparted transferable “skills” or merely aptitudes, as these terms have been defined in this Circuit.

Finally, the Secretary must determine on remand the date on which eligibility for benefits, if Cole were determined eligible, begins. The record presented on this appeal indicates that benefits, if awarded, should begin no earlier than January 1983, because the record contains no medical evidence of disability before 1983. Cole has the burden of presenting evidence of his medical condition establishing eligibility for benefits before that date.

For the foregoing reasons we REMAND to the Secretary for further consideration and determination of eligibility, if any, consistent with this opinion.

1 . We are not prepared to accept the Third Circuit’s conclusory characterization of dizziness and chest pains in the particular context of the case before it as "nonexertional.” See Green v. Schweiker, 749 F.2d 1066, 1072 (3d Cir.1984).

Warmoth v. Bowen, 798 F.2d 1109, 1112 (7th Cir.1986), cited as authority for plaintiffs nonexertional pain contention, acknowledged that the grid was to be used "as a framework" in cases involving a nonexertional claim unless this kind of impairment would "substantially reduce a range of work.” The plaintiff there acknowledged his capacity to do sedentary work.

Bellamy v. Secretary, 755 F.2d 1380 (9th Cir.1985), involved dizziness, fainting spells, and pain accompanying a severely fractured leg. Channel v. Heckler, 747 F.2d 577 (10th Cir.1984), involved similar claims, and in addition, skin impairments and "postural/manipulative disability”, which are specifically listed in the regulations as constituting nonexertional impairments. See id. at 578, 580; 20 C.F.R. § 404.1545(d). Allen v. Secretary, 726 F.2d 1470, 1472 (9th Cir.1984), refers to a "significant non-exertional limitation, such as a mental impairment or the inability to tolerate certain work environments.” These claims of nonexertional limitation expressed in the cases above (except Green) are of the usual mental, sensory or environmental limitation type, and go well beyond Cole’s claims in this case of pain and dizziness.

2 . A prior panel has determined that "we do not consider pain alone to be a nonexertional limitation that defeats the application of the grid..,. A nonexertional limitation must be severe enough to restrict a full range of gainful employment at the designated level.” Marcano v. Secretary, 812 F.2d 1407 (6th Cir.1987) (unpublished per curiam), citing Kirk v. Secretary of HHS, 667 F.2d 524, 538 (6th Cir.1981).