Thomas F. Frady v. Patricia Roberts Harris, Secretary of Health and Human Services

646 F.2d 143, 1981 U.S. App. LEXIS 14431

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 9, 1981
• Docket: 80-1449
• Status: Published

Opinions

MURNAGHAN, Circuit Judge:

Once again we confront the reality that the scope of our review of a decision of the Secretary of Health and Human Services holding an applicant for social security benefits not to have qualified is extremely limited. If there is substantial evidence to support the decision, it is our duty to affirm without regard to what result we would have preferred to reach ourselves, were we dealing with the issue afresh. 42 U.S.C. § 405(g).

The medical evidence, while conflicting, supported the conclusion that the applicant Frady was possessed of capabilities sufficient to permit him to perform “sedentary work” as that term is defined in the Secretary’s regulations, 20 C.F.R. § 404.1510(b).¹

The record also contains evidence permitting the Secretary’s finding that the applicant’s previous employment, especially as the owner of a tree service and right-of-way contractor,² imparted skills that were transferable. See 20 C.F.R. § 404.1513, Rule 201.03, Table No. 1 of Appendix 2, Subpart P; 20 C.F.R. § 404.1511(e).

That being so, and the existence in the economy of jobs which a person with such qualifications could fill being established by administrative notice, see 20 C.F.R. § 404.-1509, we are left with no alternative but to affirm the Secretary’s determination that the applicant was not disabled, for purposes of determining his eligibility for regular disability benefits.³ Stephens v. Harris, 628 F.2d 1353 (5th Cir. 1980) (unpublished opinion); Smith v. Harris, W.D.Tex. No. MO-80-CA-27 (Nov. 7, 1980); Lowery v. Secretary of Health, Education and Welfare, D.S. Car. No. 79-1715-8 (Oct. 24, 1980); Melvin v. Harris, M.D.Tenn. No. 79-3552 (July 15, 1980); Stallings v. Harris, 493 F.Supp. 956, 959 (W.D.Tenn.1980); cf. McLamore v. Weinberger, 538 F.2d 572 (4th Cir. 1976); but see Schmidt v. Harris, N.D.Iowa, No. C 79-2080 (June 19, 1980) (“The Secretary should not be permitted to, in effect, manufacture her own evidence.”); Williams v. Harris, W.D.N.Car., 500 F.Supp. 214 (1980); Santise v. Harris, D.N.J. No. 80-131, 501 F.Supp. 274 (1980); Ockunzzi v. Secretary of Health, Education and Welfare, M.D.Pa. No. 79-1292 (Nov. 18, 1980); Broz v. Harris, S.D.Ala. No. 80-0156-H (Dec. 1, 1980) (appeal pending); Holmes v. Harris, S.D.Ala. No. 79-0730-H (Dec. 11, 1980) (appeal pending).⁴

It is understandable that, in an individual case like that of Thomas Frady, the use of administrative tables (commonly called the “grid”), in lieu of live testimony from a vocational expert, may appear to the claimant a lessening of attention, a lowering of quality in the services performed by the agency, uniformly to the detriment of applicants. That overlooks, however, that measurement by the regulations may, in fact, in many cases enhance the likelihood of qualification by applicants for benefits. E. g. Hicks v. Califano, 600 F.2d 1048, 1050 (4th Cir. 1979); Vega v. Harris, 636 F.2d 900 (2d Cir. 1981) (“But the Secretary cannot have it both ways. She cannot escape what may be the conclusive effect of the rules in this case while depending on them to guide and control the discretion of the ALJs in other cases.”).

It is important to realize that the decision of the Secretary proceeds from broadly based regulatory “medical vocational guidelines” ⁵ dealing with what constitutes capacity to perform and with the availability of particular types of employment. A decision such as the present one is not, therefore, to be confused with one where the attempt to rely on administrative notice in lieu of expert testimony antedated adoption of the new regulatory guidelines, see Taylor v. Weinberger, 512 F.2d 664, 668 (4th Cir. 1975), contrast Terry v. Harris, S.D.Ohio No. C-2-80-145 (Dec. 15, 1980); Vincent v. Harris, W.D.Ky. No. 79-0050 — BG (Dec. 24, 1980). Nor is the present case one where the administrative notice was attempted, not on the basis of the broad regulations, but in reliance on some nonspecific knowledge of the ALJ, see Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980).

AFFIRMED.

1 . Sedentary work. Sedentary work entails lifting 10 pounds maximum and occasionally lifting or carrying such articles as dockets (e. g., files), ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.

2 . The previous employment involved supervising the work of numerous employees (in excess of 100).

3 . We do not mean to suggest that in every case the Secretary can altogether dispense with vocational expert testimony to establish the existence of work in the national economy which an applicant was capable of performing. See Gillstrap v. Harris, N.D.Ga. No. C 79-1684A (Dec. 5, 1980); Moguez v. Harris, D.Colo. No. 80-A-170 (Oct. 20, 1980); Cannon v. Harris, M.D.N.Car. No. C-79-723S (Sept. 25, 1980); Phillips v. Harris, 488 F.Supp. 1161 (W.D.W. Va.1980) (holding the Secretary’s determination unsupported by substantial evidence, but specifying: “The opinion of the court should not be read to indicate that testimony of vocational experts is always necessary.... ”); Long v. Harris, W.D.Va. No. 79-0214R (Nov. 28, 1979). We decide only the case immediately before us.

4 . The two Alabama district court cases, closely interrelated, rely, to a prominant degree, on a supposed failure of the Secretary’s regulations to comply with Administrative Procedure Act requirements. No such attack was mounted in the present case. Nor did Frady argue that notice by the ALJ of an intention to rely on administrative notice was insufficient. Cf. Fruge v. Harris, 631 F.2d 1244 (5th Cir. 1980); Mason v. Harris, N.D.Tex. No. 3-80-0873-H (Dec. 23, 1980).

5 . Adopted February 26, 1979.