Terrance GREENE, Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Appellee

923 F.2d 99, 1991 U.S. App. LEXIS 230, 1991 WL 1052
Court of Appeals for the Eighth Circuit·Decided January 9, 1991·No. 89-2785·Published·Cited by 34 cases

Opinion

JOHN R. GIBSON, Circuit Judge.

Terrance Greene appeals from the district court’s order affirming the Secretary of Health and Human Services’ decision denying him disability benefits under Title II of the Social Security Act. Greene argues that the administrative law judge erred in: (1) basing his decision on a vocational expert’s response to a hypothetical question that did not include all relevant impairments; (2) failing to explain why he disbelieved Greene’s testimony that he could not stand for longer than five minutes at a time; and (3) finding that Greene did not prove his impairment met certain listings contained in 20 C.F.R. Part 404, Subpart P, App. 1 (1990). We reverse and remand.

Mr. Greene suffers from a number of impairments, all resulting from a head injury suffered in a high school football game in 1973 which left him with spastic hemi-paresis (partial paralyzation) on his left side. He has no control over or use of his left hand; minimal use of his left arm; numbness of his left leg; and a speech impediment. He also has a seizure disorder, which is controlled to some extent by medication, and headaches, which are treated with medication. His injury has resulted in memory loss, mild difficulty in concentrating and mild inability to understand and carry out detailed instructions.

Greene worked briefly as an auto parts salesman and for a year as a maintenance man, ending in 1980. He testified that he believed he lost his job as a salesman due to his difficulty in making customers understand his speech.

The administrative law judge found that Mr. Greene had not been engaged in substantial gainful activity, that he had a severe impairment, but that his impairment did not meet or equal the requirements of the relevant listings, that he was not capable of performing past relevant work, and that he would not be capable of transferring previously acquired skills to work within his ability to perform. Terrance Greene, No. 483-72-2775, slip op. at 6 (April 19, 1988). Nevertheless, the ALJ concluded that Mr. Greene would be capable of working as a photographic process worker, a vehicle escort driver, a rental clerk or a sewing machine operator. Id.

Mr. Greene first argues that the AU erred in rejecting his testimony that he could not stand for longer than five minutes at a time without articulating any specific reason for disbelieving the testimony, as required by Polaski v. Heckler, 739 F.2d 1320 (8th Cir.1984) (subsequent history omitted). See Simons v. Sullivan, 915 *101 F.2d 1223, 1225 (8th Cir.1990). The Secretary concedes the AU’s written opinion did not satisfy the Polaski standards, but argues the failure was harmless error. We cannot agree that the error was harmless, since sustained disturbance of the claimant’s “station” (ability to stand) is key to a finding of disability under 20 C.F.R. Part 404, subpart P, App. 1, listings 11.04 and 11.18. Moreover, the vocational expert whose opinion was the foundation of the ALJ’s decision conceded that crediting Mr. Greene’s testimony about his ability to stand, the rental clerk and photo processing jobs would not be within Greene’s abilities. Tr. at 41.

Mr. Greene also argues that the AU erred in basing his decision about what work Mr. Greene could perform on the answer to a hypothetical question that lacked necessary information. The law is clear that “hypothetical questions posed to vocational experts in such circumstances should precisely set out the claimant’s particular physical and mental impairments.” Tennant v. Schweiker, 682 F.2d 707, 711 (8th Cir.1982). If the question is inadequate, the response to it is not substantial evidence sufficient to uphold the AU’s decision. Douglas v. Bowen, 836 F.2d 392, 396 (8th Cir.1987).

The AU asked the expert the following hypothetical question:

Q All right. Assuming the claimant to be a younger individual with a 12th plus grade education and past work history as stated in Exhibit 61, assuming the claimant has a severe impairment as a result of which he could lift and carry no more than 40 pounds occasionally and 20 pounds frequently, that he could [sic] no prolonged standing or walking and that he has loss of use of his left non-dominant arm and hand, that he should be in no unprotected heights nor working or moving around dangerous machinery or driving or climbing ladders, only occasionally would the claimant be able to do bending, balancing or kneeling, and he has a moderate inability to understand, remember and carry out detailed instructions, he can only handle jobs classified as low stress in nature, where this is related to the fact that he says that when being in a stressful situation his speech might be affected, I will ask you more about this later on but this, the stressful nature of the job would be a factor that has to be considered in light of the way he indicated his speech might be affected when subjected to stressful situations.

Tr. at 36-37 (emphasis added). In response, the vocational expert replied that such a person could do any of the four jobs listed above.

Though not raised by the parties, this court notes that one of the jobs the expert recommended for Greene (and the AU found Greene could do) was to drive escort vehicles; however, the hypothetical question expressly excluded driving from the range of activities possible for the claimant. Obviously, this part of the AU’s decision cannot stand.

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Terrance GREENE, Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Appellee, 923 F.2d 99, 1991 U.S. App. LEXIS 230, 1991 WL 1052 (8th Cir. 1991).

923 F.2d 99 (Terrance GREENE, Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Appellee) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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