# Petition — Heckler v. Broz > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1158%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 461 U.S. 952 ## Text FILED Ro -816 NOV 15 162 eel : nae In the Supreme Court of the Gnited States OCTOBER TERM, 1982 RICHARD S. SCHWEIKER, SECRETARY OF HEALTH AND HUMAN SERVICES, PETITIONER ’ v. : JOHN BROZ, ET AL. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT Rex E. LEE Solicitor General J. PAUL McoGRATH Assistant Attorney General KENNETH S. GELLER Deputy Solicitor General JOHN H. GARVEY Assistant to the Solicitor General ROBERT 8S. GREENSPAN ANNE BUXTON SoBOL Attorneys Department of Justice Washington, D.C. 20530 (202) 6328-2217 QUESTION PRESENTED Whether the Secretary of Health and Human Services may rely upon medical-vocationa! guidelines, rather than individualized proof, to determine the effect of age on claims for disability benefits under the Social Security Act. PARTIES TO THE PROCEEDINGS John Broz, Richard D. Holmes, Corinne Little, Thomas O. Jones, and Fred Soesbe were appellees in the court of appeals and are respondents in this Court. (1) TABLE OF CONTENTS Page PTE ct ureccenganesedusenactetessacncess l Dt it is nevertheless true that “the claim- ant’s burden of proof is not insuperable.”*® V. Medical-Vocational Guidelines |“The Grid”|. The resolution of this case is inextricably interwoven with the applicability and validity of the new “Medical-Vocational Guidelines”?? or, more commonly, “the grid” and its attend- ant explanatory regulations. While plaintiff did not in his complaint specifically challenge the use of the grid, he did allege that the findings of the ALJ were not supported by substantial evidence. Since the conclusion of the ALJ is ap- parently based solely upon the grid, the decision of the ALJ 1% E.g., Chaney v. Califano, 588 F.2d 958, 960 (Sth Cir. 1979). 20 Brown v. Finch, 429 F.2d 80, 82 (5th Cir. 1970); Breaur v. Finch, 421 F.2d 687, 689 (5th Cir. 1970). 2! White v. Harris, 605 F.2d 867, 870 (Sth Cir. 1979). 22 42 U.S.C. § 405(g). 23 Chaney v. Califano, 558 F.2d 958, 959 (Sth Cir. 1979); Mims v. Califano, 581 F.2d 1211, 1213 (5th Cir. 1978); Rivas v. Weinberger, 576 F.2d 255, (Sth Cir. 1973). 24 Richardson v. Perales, 402 U.S. 389, 401 (1971), quoting Consoli- dated Edison Co. v. N.L.R.B., 350") .S. 197, 229 (1988). 25 Johnson v. Harris, 612 F.2d 993 (Sth Cir. 1980), quoting Williams v. Finch, 440 F.2d 613, 615 (5th Cir. 1971). 26 Simmons v. Harris, 602 F.2d 1233, 1236 (5th Cir. 1979), quoting Mims v. Califano, 581 F.2d 1211, 1213 (5th Cir. 1978). 27 20 C.F.R. § 404.1513 Subpart P. App. 2, § 200.00 et. seq. 3la is supported by substantial evidence only if the grid estab- lishes a system of adjudication not at variance with the statutes, Constitution, or decisional laws of the United States. A. The Medical-Vocational Guidelines |“The Grid” |. In the middle 1970's the Social Security Administration be- gan** an internal study of the possibility of adoption of reg- ulations providing increased use of administrative presump- tions and administrative notice, having a view toward both administrative efficiency and nationwide uniformity in So- cial Security Disability determinations. The new regula- tions became effective on February 26, 1979.2° Because parts are displayable as a simple chart or table, the Medi- cal-V ocational Guidelines are commonly called “the grid” a usage which, though technically limited to the tables them- selves, commonly includes the attendant explanatory matter. 1. The Grid in Perspective: Pre-Grid Analysis. There is a sequential analysis by which the agency determination reaches the level at which the grid is used, the entire proc- ess moving toward a determination of whether or not an ap- plicant is “disabled”’ within the meaning of 42 U.S.C. § 1382¢(3). Several preliminary steps are involved. The several steps are, in sum, these: First, the agency determines whether the person is actu- ally working.*° If so, the agency conclusively presumes that the applicant is not disabled and the claim must be denied;*' but if not, the agency moves to the second step. Second, the agency must determine whether the claimed impairment is “severe.’’? If not, the claim is denied on 28 The work was apparently at the prodding of certain congressional committees and the General Accounting Office. Since no statute was passed, however, the work should be treated as a pure executive branch effort. 2 The hearing in this case occurred six months later. 8 20 C.F.R. § 404.1503(b). 3! By comparison, judge-made law in other areas recognizes that a person, though injured, is often “required to work in order to survive.” Vaughn v. Atkinson, 369 U.S. 527, 5383 (1962) (maintenance and cure under the general maritime law). 32 20 C.F.R. § 404.153(c¢). 32a medical evidence alone; but if so, the agency moves to the third step. Third, the agency determines whether the applicant’s im- pairment equals or exceeds in severity a list of impair- ments.** If so, the applicant is entitled to benefits, but if not, the agency goes to the fourth step. Fourth, the agency determines whether the applicant is able to perform his or her past work. If so, the agency finds that the applicant is not disabled under the law,** but if not, the agency moves to the fifth step. At this point the burden shifts to the Secretary.*® Fifth, and last, the agency must determine whether the applicant is able—despite his or her inability to perform his or her prior work—to perform other substantial gainful ac- tivity considering his or ner age, education, and work expe- rience.** It must be co! inually recalled that by this point the burden has already shifted to the Secretary to rebut plaintiff's prima facie case. The grid system is designed to constitute the Secretary’s rebuttal to the claimant’s prima facie case, and the entire rebuttal is in the form of adminis- tratively-noticed facts systematized in the grid. We pro- ceed next to a summary analysis of the use of the grid. 2. Use of the Grid. The agency must first determine which of the three available grids or tables*’ to use, each dealing with a different level of exertional impairtment,** since obviously a person’s employability for many jobs may well depend upon the extent to which he can stand, move, or lift. Thus, the agency determines the person's residual functional capacity to perform certain levels of work. This determination is naturally an ersatz combination of medical and vocational factors. 33 20 C.F.R. § 404.1503(d). 34 20 C.F.R. § 404.1503(e). 35 See note 18 above. 96 42 U.S.C. § 1382e(a)(3)(B). 37 Table 1 is for applicants able to do only sedentary work, 2 for light, and 3 for medium. The terms sedentary, light, and medium are defined in 2v C.F.R. § 404.1510. 38 An “exertional impairment” limits the strength which an applicant can exert on the job. A non-exertional impairment might be, for exam- ple, the required use of a renal dialysis machine. 33a Finally, once the correct grid is selected, it is used. The grid contains in tabular form a series of rules which consti- tute the Secretary’s interpretation of the statutory phrase “age, education, work experience,”*® which are the deter- minant of ability to engage in substantial gainful activity other than the prior job which the impaired claimant can no longer perform. In essence the grid is a black box into which three variables are fed: age, education, and work ex- perience. When the agency determines the three variables in any particular case the black box is cranked—i.e., the fi- nal column on the grid [styled “decision” | is read—and the result spouts forth: either “disabled”, or “not disabled.” It is important to note that while there are of course situ- ations is which the particular applicant’s criteria simply do not fit the grid system for one reason or another and the grid is not used,*® where the grid does apply the agen- cy—and, in particular, the ALJ—is absolutely required to read and follow the decision in the grid column labeled “decision.” Factored into the grid system is a rule-based administra- tive notice of the existence of a number of available un- skilled jobs in the applicable economy. When the grid is used, therefore, the existence of such jobs in the economy “is established.’*' The rule does not provide for the consid- eration of contrary testimony on the point, and does not provide for the possibility that an applicant might offer evi- dence which, in fair litigation not limited by the conclusive rule, might be deemed to have overcome the administra- tively-noticed facts. VI. Holding of the ALJ. A. Prima Facie Case. The ALJ did not make an express finding upon the crucial qucstion of whether plaintiff was 99 42 U.S.C. § 1382¢(a)(3)(B). #° 20 C.F.R. § 404.1513 Subpart P, App. 2, § 200.00(a) (“Where any one of the findings of fact does not coincide with the corresponding cri- terion of a rule, the rule does not apply in that particular case... ."). The regulation suggests as an example a person who falls in the middle by being able to do more than light but less than medium work, in which event the grid is used simply for whatever use it may be. /d. at § 200.00(d). “7d. at § 200.00(b). 34a able to perform his prior occupation as a house painter. A fair reading of the opinion, however, indicates that the ALJ was proceeding on the unstated but apparently universally understood foundation that plaintiff was foreclosed by his condition from performing his prior work as a house paint- er. The contrary conclusion would not, in any event, have been supported by substantial evidence. Plaintiff having made out a prima facie case, therefore, the burden shifted to the Secretary to prove that plaintiff could perform other substantial gainful activity.44 We must next determine whether the Secretary carried that burden. B. Secretary's Rebuttal. The Secretary's “rebuttal” case could be viewed in two possible ways. In neither case is it sufficient—on the present record—to rebut the prima facie case. 1. If Grid Alone. A fair reading of the ALJ's opinion in- dicates that in his judgment the finding of “not disabled” was flatly compelled by the grid system. To the extent that the ALJ deemed the grid system to constitute the Secre- tary’s rebuttal, the decision of the ALJ is not supported by substantial evidence (as required by the statute) because the grid system itself and its use in this case violated the Administrative Procedure Act* in two particulars. a. Administrative Notice Deemed Conclusive. The grid has taken conclusive administrative notice of the existence of sedentary, light, and medium jobs “throughout” the na- tional economy; under the grid “the existence of such jobs is established.”** When the regulation states that the fact “is established,” it obviously means conclusively estab- lished. Certainly it does not say otherwise. Such conclusive administrative notice expressly violates 5 U.S.C. § 556(e), providing that: When an agency decision rests on official notice of a material fact not appearing in the evidence in the rec- ord, a party is entitled, on timely request, to an oppor- tunity to show the contrary. 42 See note 18 above. * 5 U.S.C. § 661 et seq. * 20 C.F.R. § 404.1513 Subpart P, App. 2 § 200.00(b). 35a Accordingly, the regulation being contrary to an act of Con- gress in that respect, the case should be remanded to allow plaintiff—should he so desire—to offer evidence pursuant to 5 U.S.C. § 556(e) that work of which he is capable does not in these times of high unemployment exist “through- out” the national economy.*® b. Administrative Notice by Rule. Administrative or ju- dicial notice in its traditional sense is ordinarily expressly taken at the hearing and, in fact, the Administrative Proce- dure Act—and arguably the Due Process Clause also—re- quires administrative notice to be expressly taken at the hearing. As the Court of Appeals for this Circuit recently wrote: The Administrative procedure Act provides in § 556(¢) Isic: § 556(e)|: When an agency decision rests on official notice of material fact not appearing in the evidence in the record, a party is entitled, on timely request, to an opportunity to show the contrary. The provision is unquestionably applicable to disability cases that are heard before ALJ’s, because the stat- ute, 42 U.S.C. § 405(b), requires disability decisions to be made “on the basis of evidence adduced at the hearing.” Unfairness may result when facts are noticed without precisely indicating the facts and their source. A quick remark by an ALJ that he takes official notice of avail- ability of jobs in the national economy that would be suitable for the claimant could be unfair for lack of suf- ficient specificity.*® The administrative notice of jobs taken here was pro- cedurally invalid because there was not even a “quick re- mark” at the hearing, there was nothing said at the hearing *5 The “throughout” term is in the grid regulation, 20 C.F.R. § 404.1513 Subpart P, App. 2 § 200.00(b). It is not clear whether that term is intended to supplant 20 C.F.R. § 404.150%a), but since under the grid the existence of jobs “throughout” the economy was noticed, that is what plaintiff is entitled to rebut. 46 White v. Harris, 605 F.2d 567, 870 (5th Cir. 1979), quoting K. DAVIS, ADMINISTRATIVE LAW § 15.11 (supp. 1978). 36a at all about administrative notice which was, then, procedurally improper by reason of 5 U.S.C. § 556(e) and “evidence adduced at the hearing” requirement of 42 U.S.C. § 405(b). The possibility that plaintiff can submit a rebuttal affida- vit on appeal in the Appeals Council does not change the result. The statute states that the decision must be based on evidence “adduced at the hearing’*?7—it does not say on appeal—and it is inconceivable that in passing 5 U.S.C. § 556(e) Congress meant that the rebuttal evidence should be first offered on appeal. Similarly, the right of the claimant to rebut the underly- ing findings of actual fact** (e.g., age) is not the same as the opportunity to rebut the administratively-noticed fact, namely, the existence of appropriate jobs in the appropri- ate economy. That administratively-noticed fact is irre- buttable under the grid. 2. If Medical Testimony. While the findings of fact indi- cate that the ALJ relied purely upon the grid to rebut the prima facie case, it is possible that—without saying it—the ALJ was relying upon the underlying medical evi- dence itself in his holding that plaintiff could perform other substantial gainful activity. If so, the most likely basis for such a conclusion would be the opinion of Dr. Bridges in March of 1979 that: This gentleman seems to have some residual from cer- vical dise disease as well as an injury to his right pero- neal nerve. I do believe he is employable, I see no rea- son why he could not perform lifting up to 50 lbs. with occasional lifting to 50 to 75 lbs. Extremely heavy ac- tivity that involves his neck and shoulders he would probably not be able to perform, however routine ac- tivities should be performed. I believe he will be able to climb stairs, perform reaching movements.*® The difficulty is that there was no evidence in the record bridging the gap between this medical finding and the vo- cational finding that plaintiff was able to perform other 47 42 U.S.C. § 405(b). +* 20 C.F.R. § 404.1513, Subpart P, Appendix 2, § 200.00(a). **° Record at 128. 37a available substantial gainful activity. As previously dis- cussed the grid cannot bridge the gap and, aside from the grid, the ALJ took no administrative notice of vocational factors, even assuming arguendo that such an approach would be sufficient under the law. And last, of course, no vocational expert testified to translate the medical findings into vocational capacity.*”° The absence of any such evi- denee in the record compels the conclusion that the finding of the ALJ is not supported by substantial evidence. VII. Propriety of Remand. The Social Security Disabili- ty Amendments of 19805! amend 42 U.S.C. § 405(g) to pro- vide that: The Court ... may at any time order additional evi- dence to be taken before the Secretary, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorpo- rate such evidence into the record in a prior proceed- ing. 52 A fair reading of the statute indicates that it pertains only to remands to allow the plaintiff to offer additional testimony. If the statute does apply to remands to allow the Secre- tary to offer additional testimony, however, it does not for- bid remand here because: A. “there is new evidence which is material,” namely, there should be vocational testimony, and; B. “there is good cause for the failure to incorporate such evidence into the record in a prior proceeding,” name- ly, reliance by the ALJ upon an existing regulation. Surely the new provision does not simply compel entry of judgment against the Secretary in this circumstance, which is the alternative to remand. 5° See McGill v. Harris, 615 F.2d 365 (Sth Cir. 1980); Johnson v. Harris, 612 F .2d 998 (5th Cir. 1980) (vocational expert used). See also Wilson v. Califano, __._ F.2d ____ (4th Cir. March 17, 1980) (voca- tional expert required). 5! Pub.L. No. 96-265; 49 U.S.L.W. 7 (July 15, 1980). 52 Jd. at § 307. 38a CONCLUSION When the ALJ found—or ought to have found—that plaintiff was unable to perform his former job, the burden shifted to the Secretary to prove her defense, namely, that plaintiff was able to do other work in the other economy. The Secretary failed to carry her burden on rebuttal because: 1. There was no oral testimony explaining what work plaintiff could do, given the medical findings; 2. No vocational evidence outside the grid was adminis- tratively noticed, even assuming that such a procedure would be valid; 3. The grid cannot serve as the requisite rebuttal testi- mony because: A. the regulation precluding plaintiffs adducing con- trary rebuttal employment evidence at the hearing violates 5 U.S.C. § 556(e) in that it was improperly conclusive administrative notice, and; B. the administrative notice taken violated 42 U.S.C. § 405(b)’s “adduced at the hearing” requirement and 5 U.S.C. § 556(e) because the ALJ did not even mention at the hearing that he was administratively noticing anything. Accordingly, this case must be remanded to give the Sec- retary an opportunity to offer valid evidence contrary to plaintiff's prima facie case or, if none, to award benefits to plaintiff. DONE this 20th day of August, 1980. /s/ Davip A. BAGWELL United States Magistrate 39a IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION Civil Action No. 79-0730-H RICHARD D. HOLMES, PLAINTIFF v. PATRICIA ROBERTS HARRIS, Secretary of Health and Human Services, DEFENDANT. ORDER AND JUDGMENT After due and proper consideration,’ and upon the rec- ommendation of the Magistrate, which is adopted as the opinion of this Court, it is ORDERED, ADJUDGED and DECREED that the Administrative decision be and is hereby VACATED, and that this cause be REMANDED to the Secretary of Health and Human Resources for addition- al proceedings not inconsistent with the opinion of this Court, no costs to be taxed. DONE this 11th day of December, 1980. /s/ W. B. HAND UNITED STATES District JUDGE 'To the cases cited by the Magistrate the Court adds Fruge v. Harris, No. 80-3476 (5th Cir. Dee. 4, 1980). 40a IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION Civil Action No. 79-0730-H RICHARD D. HOLMES, PLAINTIFF v. PATRICIA ROBERTS HARRIS, Secretary of Health and Human Services, DEFENDANT. RECOMMENDATION OF MAGISTRATE Plaintiff filed suit in this Court as provided by 42 U.S.C. § 405(g) for review of an adverse decision of an Administra- tive Law Judge |“ALJ”| on a Social Security Disability Claim. The Court referred this matter to the Magistrate for preliminary review of the administrative record! and rec- ommendation. The matter is submitted upon the basis of the pleadings, record, and highly instructive briefs and oral argument of the parties and an amicus curiae.? Congress provided that in such a case the Court shall have power to enter judgment upon the pleadings and tran- script, or to remand the case.* The Magistrate recommends that this cause be remanded for the taking of additional evi- dence, since the Secretary's only rebuttal to plaintiff's prima facie case was in the form of matter administratively noticed in a manner violating the Administrative Procedure Act,* the Social Security Act,® the applicable decisional law in this Circuit,® and the terms of the administrative notice regulation itself? and, therefore the decision of the ALJ 128 U.S.C. § 636(b)(3); Mathews v. Weber, 423 U.S. 261 (1976). * Legal Services Corporation of Alabama, an organization whose at- torneys have substantial day-to-day experience with the conduct of all phases of Social Security disability work. $42U.S.C. § 405g). *5 U.S.C. § 556(e). 542 U.S.C. § 405(b). ® White v. Harris, 605 F.2d 867 (5th Cir. 1979). 720 C.F.R. § 404.1513 Subpart P Appendix 2 (hereafter “the grid” | at § 200.00(e)(2). 4la was not supported by substantial evidence as required by 42 U.S.C. § 405K g). I. Procedural History. A. Prior Claims. Plaintiff has filed three separate appli- cations for Social Security benefits. The first application was filed in May of 1977, claiming disability from a 1976 back injury. The application was denied and no further ac- tion was taken. In September of 1977, plaintiff filed his second applica- tion, claiming disability for the same back injury. The appli- cation was denied, and the denial was taken to an Adminis- trative Law Judge, who found the plaintiff entitled to an award of disability from October, 1976 through October, 1977. The plaintiff filed an untimely appeal from the ALJ's decision; no further action was taken. The third (and present) application was filed in December of 1978, claiming disability for back surgery, headaches and a stiff neck, dating back to October, 1976. The Social Secu- rity Administration denied the claim, the ALJ denied the claim, and the Appeals Council declined to review the deci- sion of the ALJ. The ALJ found in substance that: i. The clainiant met the threshold requirements; 2. Claimant would be defined as a “younger individual”; 3. Claimant completed the twelfth grade but could nei- ther read nor write, and was therefore illiterate; 4. Claimant had worked as a “co-layer” |sic: collator* in the plywood industry and as a laborer in the construction industry; 5. Medical evide’ ce revealed that claimant had a prior period of disability :«.om August of 1976 to October of 1977, because of a back injury and a laminectomy. Claimant's physician indicated that as of November 1, 1977, claimant could return to substantial gainful activity; 6. Considering the claimant’s maximum sustained work capacity, age, education, and work experience, he was not disabled after November 1, 1977. *A “collator” in a plywood mill takes the thin sheets of wood and puts them together until the plywood reaches the appropriate thickness. 42a II. Evidence of Record. A. Employment Background. Plaintiff is a thirty-seven year old man who, though he somehow completed high school, is quite illiterate. His last in a series of laborer’s jobs was in 1976, when he worked in a plywood mill. He, his wife, and four children live on $144 per month from the Aid for Dependent Children program, and Supplemental Security income. B. Alleged Medical Problems. Plaintiff claims that he is disabled because of a back injury sustained in October, 1976. He complains of headaches, a stiff neck and numbness on his right side. C. Medical Testimony. The ALJ found that plaintiff was not disabled after November 1, 1977. In order to under- stand the background of the case, however, it is appropri- ate to review the medical treatment prior to that time. 1. Prior to November 1, 1977. Plaintiff has had back trouble since late 1972, from an injury. Pain increased thereafter, and a Pensacola doctor in April of 1974 diag- nosed lumbosacral strain and probable intervertabral disc disease in the lumbosacral area, recommending a back brace, traction, and muscle-relaxing drugs.® By early 1975 the same doctor opined that plaintiff could not perform con- tinued heavy lifting or back-straining activity.” In August, 1976 plaintiff hurt his back again and, follow- ing a diagnosis of herniated disc and lumbosacral strain, was hospitalized for conservative treatment." For the next several months plaintiff's back was treated in a variety of methods by a variety of doctors, both in and out of the hos- pital. !? 2. After November 1, 1977. In March, 1978, a Montgomery neurosurgeon treated plaintiff for his neck, shoulder, arm and back pain, sleeping problems in certain positions, stumbling, and decreased libido.** A myelogram showed a vertebral defect and inflammation of the root of ® Record at 142. 1” Td. at 140. Jd. at 106. 12 Jd. at 113-14, 116, 117-18, 127, 131, 133-34. 13 Id. at 233. 43a the spinal nerve," resulting in a diagnosed medical disabili- ty of 15% and work disability of 30%.'* By the summer of 1978 one doctor opined that plaintiff could not return to his regular job and would have to do sedentary work,'® and by the end of 1978 plaintiff's diagnosis was for permanent disa- bility without recovery.'? In early 1979 an orthopedic sur- geon opined that plaintiff could only carry 25 pounds fre- quently and 50 occasionally, and could only sit or stand for six hours out of a work day, and could not climb, bend, or stoop. In August, 1979, the last analysis, plaintiff remained permanently disabled. '* D. Plaintiffs Testimony. Plaintiff testified that he feels bad all day long and that when he tries to get up and do things he feels considerable pain,'® and can walk only a short distance.2° He has headaches and a very stiff neck?! and numbness on his right side in his shoulder, arm and leg.22 He has problems with constipation and with his kid- neys.?°> He does not remember things as well as he did be- fore he got hurt,* he could not operate machinery when he is taking his medications,*° he wears a back support,*® and is in traction for four hours a day.?? The plaintiff is on a va- riety of medications for pain, nervousness, and constipation.** III. Applicable Law in General. The Social Security Act: sets forth a two-part test for determining “disability” under the Act: First, there must be a “medically de terminable physical or mental impairment which can 44 Jd. at 220, 227. 15 Jd. at 230. 16 Jd. at 235. 17 Jd. at 238. 18 Jd. at 256. 19 Td. at 39. 20 Jd. at 38. 21 Jd. at 36. 22 Jd. at 40. 23 Jd. at 46. 24 Id. at 46. 25 Jd. at 46. 26 Jd. at 37. 27 Id. at 49. 28 Jd. at 255. 44a be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months....” 42 U.S.C. § 1382¢(a)(3)(A). Second, this impairment must be so severe that the claimant is “not only unable to do his previous work but cannot, considering his age, educa- tion, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.” /d. § 1382¢(a)(3)(B).?9 If plaintiff shows that he cannot now perform his former job, the burden shifts to the Secretary to show both that the claimant is able to perform othc« work, and that such other work is in fact available in the economy.*® The availa- bility of work is normally proven either by the testimony of a vocational expert*®' or by administrative notice*? if prop- erly taken.** IV. Standard of Review. Congress has clearly provided that in a Social Security case the administrative findings “as to any fact, if supported by substantial evidence, shall be conclusive. . . ."*4 This Court’s function is strictly limit- ed; we may only determine whether the administrative findings are supported by “substantial evidence” consider- ing the record as a whole.*® The term “substantial evidence” in this circumstance means: 29 Chaney v. Califano 588 F . 2d. 958, 959 (5th Cir. 1979). 30 McGill v. Harris, 615 F.2d 365 (5th Cir. 1980); Johnson v. Harris, 612 F.2d 998 (5th Cir. 1980); White v. Harris, 605 F.2d 867, 869 (5th Cir. 1979); Knott v. Califano, 559 F.2d 279, 280 (5th Cir. 1977). 31 £.g., Chaney v. Califano, 588 F.2d 958, 960 (5th Cir. 1979). 32 Brown v. Finch, 429 F.2d 80, 82 (5th Cir. 1970); Breaux v. Finch 421 F.2d 687, 689 (5th Cir. 1970). 33 White v. Harris, 605 F .2d 867, 870 (Sth Cir. 1979). % 42 U.S.C. § 405 (g). 35 Chaney v. Califano, 588 F.2d 958, 959 (5th Cir. 1979); Mims v. Califano, 581 F. 2d 1211, 1213 (5th Cir. 1978); Rivas v. Weinberger, 576 F.2d 255, (Sth Cir. 1973). 45a more than a mere scintilla. It means such relevant evi- dence as a reasonable mind might accept as adequate to support a conclusion.*® The test is undoubtedly quite strict. Though it may be “so stringent that it has been described as bordering on the unrealistic,”*’ it is nevertheless true that “the claimant's burden of proof is not unsuperable.”** V. Medical-Vocational Guidelines |“The Grid” |. The res- olution of this case is inextricably interwoven with the ap- plicability and validity of the new “Medical-Vocational Guidelines”®® or, more commonly, “the grid” and its attend- ant explanatory regulations. While plaintiff did not in his complaint specifically challenge the use of the grid, he did allege that the findings of the ALJ were not supported by substantial evidence. Since the conclusion of the ALJ is based upon the grid, the decision of the ALJ is supported by substantial evidence only if the grid is to be applied, if it was properly applied, and if the grid establishes a system of adjudication not at variance with the statutes, Constitu- tion, or decisional laws of the United States. A. The Medical-Vocational Guidelines |“The Grid”|. In the middle 1970’s the Social Security Administration be- gan*® an internal study of the possibility of adoption of reg- ulations providing increased use of administrative presump- tions and administrative notice, having a view toward both administrative efficiency and nationwide uniformity in So- cial Security Disability determinations. The new regula- tions became effective on February 26, 1979.4! Because parts are displayable as a simple chart or table, the 36 Richardson v. Perales, 402 U.S. 389, 401 (1971), quoting Consoli- dated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938). 37 Johnson v. Harris, 612 F.2d 993, (5th Cir. 1980), quoting Williams v. Finch, 440 F.2d 613, 615 (5th Cir. 1971). %8 Simmons v. Harris, 602 F.2d 1233, 1236 (Sth Cir. 1979), quoting Mims v. Califano, 581 F.2d 1211, 1213 (5th Cir. 1978). 39 20 C.F.R. § 404.1513 Subpart P. App.2, § 200.00 et seq. 40 The work was apparently at the prodding of certain congressional committees and the General Accounting Office. Since no statute was passed, however, the work should be treated as a pure executive branch effort. *! The hearing in this case occurred six months later. 46a Medical-Vocational Guidelines are commonly called “the grid” a usage which, though technically limited to the ta- bles themselves, commonly includes the attendant explana- tory matter. 1. The Grid in Perspective: Pre-Grid Analysis. There is a sequential analysis by which the agency determination reaches the level at which the grid is used, the entire proc- ess moving toward a devermination of whether or not an ap- plicant is “disabled” within the meaning of 42 U.S.C. § 1382 ¢(3). Several preliminary steps are involved. The several steps are, in sum, these: First, the agency determines whether the person is actu- ally working.*? If so, the agency conclusively presumes that the applicant is not disabled and the claim must be denied;** but if not, the agency moves to the second step. Second, the agency must determine whether the claimed impairment is “severe.’** If not, the claim is denied on medical evidence alone; but if so, the agency moves to the third step. Third, the agency determines whether the applicant's im- pairment equals or exceeds in severity a list of impair- ments.*® If so, the applicant is entitled to benefits, but if not, the agency goes to the fourth step. Fourth, the agency determines whether the applicant is able to perform his or her past work.*® If so, the agency finds that the applicant is not disabled under the law, but if not, the agency moves to the fifth step. At this point the burden shifts to the Secretary.*7 Fifth, and last, the agency must determine whether the applicant is able—despite his or her inability to perform his or her prior work—to perform other substantial gainful ac- tivity considering his or her age, education, and work #2 20 C.F.R. § 404. 1503(b). *3 By comparison, judge-made law in other areas recognizes that a person, though injured, is often “required to work in order to survive.” Vaughn v. Atkinson, 369 U.S. 527, 533 (1962) (maintenance and cure under the general maritime law). 44 20 C.F.R. § 404. 153(¢). #5 20 C.F.R. § 404. 1503(d). #6 20 C.F.R. § 404. 1503(e). 47 See note 30 above. 47a experience.*® It must be continually recalled that by this point the burden has already shifted to the Secretary to re- but plaintiffs prima facie case. The grid system is de- signed to constitute the Secretary’s rebuttal to the claim- ant’s prima facie case, and the entire rebuttal is in the form of administratively-noticed facts systematized in the grid. We proceed next to a summary analysis of the use of the grid. 2. Use of the Grid. The agency must first determine which of the three available grids or tables*® to use, each dealing with a different level of exertional impairment,*” since obviously a person’s employability for many jobs may well depend upon the extent to which he can stand, move, or lift. Thus, the agency determines the person's residual functional capacity to perform certain levels of work. This determination is naturally an ersatz combination of medical and vocational factors. Finally, once the correct grid is selected, it is used. The grid contains in tabular form a series of rules which consti- tute the Secretary’s interpretation of the statutory phrase “age, education, work experience”,®! which are the deter- minates of ability to engage in substantial gainful activity other than the prior job which the impaired claimant can no longer perform. In essence the grid is a black box into which three variables are fed: age, education, and work ex- perience. When the agency determines the three variables in any particular case the black box is cranked—i.e., the fi- nal column on the grid (styled “decision”| is read—and the result spouts forth: either “disabled”, or “not disabled.” It is important to note that while there are of course situ- ations in which the particular applicant’s criteria simply do not fit the grid system for one reason or another and the #® 42 U.S.C. § 1382¢e(a)(3)(B). ** Table 1 is for applicants able to do only sedentary work, 2 for light, and 3 for medium. The terms sedentary, light, and medium are defined in 20 C.F.R. § 404.1510. 5° An “exertional impairment” limits the strength which an applicant can exert on the job. A non-exertional impairment might be, for exam- ple, the required use of a renal dialysis machine. 5142 U.S.C. § 1382c(a)(3)(B). 48a grid is not used,®? where the grid does apply the agency—and, in particular, the ALJ—is absolutely re- quired to read and follow the decision in the grid column labelled “decision.” Factored into the grid system is a rule-based administra- tive notice of the existence of a number of available un- skilled jobs in the applicable economy. When the grid is used, therefore, the existence of such jobs in the economy “is established.”® ‘The rule does not provide for the consid- eration of contrary testimony on the point, and does not provide for the possibility that an applicant might offer evi- dence which, in fair litigation not limited by the conclusive rule, might be deemed to have overcome the administratively-noticed facts. 3. Propriety of the Application of the Grid System to this Case. The grid system is designed for the analysis of purely exertional limitations. Here. plaintiff testified that he had not only exertional limitations (7.e., he was not strong), but also had at least one and possibly two non-exertional limita- tions; namely, he had to undergo traction four hours a day™ and he took medicine which affected his ability to operate machinery® and at least arguably affected his mental abili- ty.5* The grid regulation provides that: Where an individual has both strength limitations and nonexertional limitations, the rules in this subpart are considered in determining first whether a finding of disabled may be possible based on the strength limita- tions alone and, if not, the rule(s) reflecting the indi- vidual’s maximum residual strength capabilities, age, education, and work experience provide a framework for consideration of how much the individual's work 52 20C.F.R. § 404.1513 Subpart P, App.2, § 200.00(a) (“Where any one of the findings of fact does not coincide with the corresponding cri- terion of a rule, the rule does not apply in that particular case ...”). The regulation suggests as an example a person who falls in the middle by being able to do more than light but less than medium work, in which event the grid is used simply for whatever use it may be. Jd. at § 200.00(d). 53 Jd. at § 200.00(b). * Record at 49. 55 Jd. at 46. 56 Jd. 49a capability is further diminished in terms of any types of jobs that would be contraindicated by the nonexertional limitations.57 Thus, the case should not be squarely governed by the grid, though the ALJ applied the grid pure and simple. Four hours of traction and dulling medication obviously have at least some effect upon a person’s employability,™ and the ALJ either did not consider its effect or, if he did, did not explain why it had no effect. Accordingly, upon this ground, the case is required to be remanded for determina- tion after due consideration of the non-exertional limita- tions and other factors outside the grid system. 4. Repugnancy of Grid System to the Administrative Procedure Act. Alternatively, even if the ALJ were correct under the regulation in applying the grid, the grid system itself is void for repugnancy to the Administrative Proce- dure Act®® in two particulars, both relating to the use of administrative notice. a. Administrative Notice Deemed Conclusive. The grid has taken conclusive administrative notice of the existence of sedentary, light, and medium jobs “throughout” the na- tional economy; under the grid “the existence of such jobs is established.”®° When the regulation states that the fact “is established,” it obviously means conclusively estab- lished. Certainly it does not say otherwise. Such conclusive administrative notice expressly violates 5 U.S.C. § 556(e), providing that: When an agency decision rests on official notice of a material fact not appearing in the evidence in the rec- ord, a party is entitled, on timely request, to an oppor- tunity to show the contrary. Accordingly, the regulation being contrary to an act of Con- gress in that respect, the case should be remanded to allow plaintiff—should he so desire—to offer evidence pursuant to 5 U.S.C. § 556(e) that work of which he is capable does not in these times of high unemployment exist “through- 57 20 C.F.R. § 404.1513 Subpart P, App. 2 § 200.00 (e)(2). 5 See Harrell v. Harris, 610 F .2d 355 (5th Cir. 1980) (pre-grid case in which regimen of traction and drugs required finding of disability). 595, U.S.C. $661 ef seq. 6° 20 C.F.R. § 404.1513 Subpart P, App. 2 § 200.00(b). a 50a out” the national economy® for a middle-aged illiterate with back trouble requiring a daily regimen of hours of traction and constant dulling drugs. b. Administrative Notice by Rule. Administrative or ju- dicial notice in its traditional sense is ordinarily expressly taken at the hearing and, in fact, the Administrative Proce- dure Act—and arguably the Due Process Clause also—requires administrative notice to be expressly taken at the hearing. As the Court of Appeals for this Circuit re- cently wrote: The Administrative Procedure Act provides in § 556 (ce) [sie: § 556(e)|: When an agency decision rests on official notice of material fact not appearing in the evidence in the record, a party is entitled, on timely request, to an opportunit’ to show the contrary. The provision is unquestionably applicable to disability cases that are heard before ALJs, because the statute, 42 U.S.C. § 405(b), requires disability decisions to be made “on the basis of evidence adduced at the hearing.” Unfairness may result when facts are noticed without precisely indicating the facts and their source. A quick remark by an ALJ that he takes official notice of avail- ability of jobs in the national economy that would be suitable for the claimant could be unfair for lack of suf- ficient specificity.® The administrative notice of jobs taken here was procedurally invalid because there was not even a “quick remark” at the hearing, there was nothing said at the hear- ing at all about administrative notice which was, then, procedurally improper by reason of 5 U.S.C. § 556(e) and “evidence adduced at the hearing” requirement of 42 U.S.C. § 405(b). 6! The “throughout” term is in the grid regulation, 20 C.F.R. § 404.1513 Subpart P, App. 2 § 200.00(b). It is not clear whether that term was intended to supplant 20 C.F.R. § 404.150%a), but since un- der the grid the existence of jobs “throughout” the economy was no- ticed, that is what plaintiff is entitled to rebut. 62 White v. Harris, 605 F.2d 867, 870 (Sth Cir. 1979), quoting K. DAVIS, ADMINISTRATIVE LAW § 15.11 (Supp. 1978). 5la The Secretary contends that there is no such violation because plaintiff can submit a rebuttal affidavit on appeal in the Appeals Council. The statute, however, states that the decision must be based on evidence “adduced at the hearing’’®’—it does not say on appeal—and it is inconceiva- ble that in passing 5 U.S.C. § 556(e) Congres meant that the rebuttal evidence should be first offered on appeal. Similarly, the right of the claimant to rebut the uiaderly- ing findings of actual fact™ (e¢.g., age) is not the same as the opportunity to rebut the administratively-noticed fact, namely, the existence of appropriate jobs in the appropri- ate economy. That administratively-noticed fact is irrebuttable under the grid. It is not necessary to reach the other contentions.® CONCLUSION When the ALJ found that plaintiff was unable to perform his former job, the burden shifted to the Secretary to prove her defense, namely, that plaintiff was able to do other work in the economy. The on/y way the Secretary tried to do so was by the taking of rule-based administrative notice under the Medical-Vocational Guidelines. That administra- tive notice was improper because: 1. The grid ought not to have been applied in a Procrus- tean fashion because plaintiff had non-exertional limitations which limited his employability, and; 2. The regulation precluding plaintiff's adducing contrary rebuttal employment evidence at the hearing violates 5 U.S.C. § 556(e) in that it was improperly conclusive administrative notice, and; 63 42 U.S.C. § 405(b). 4 20 C.F.R. § 404.1513, Subpart P, Appendix 2, § 200.00(a). *5 For example, plaintiff contended that if he had been slightly older the grid would have required a finding of disability, and that therefore the grid effects a constitutionally-improper irrebutable presumption on the effects of age on different individuals. Having determined the case on statutory grounds, we need not reach the constitutional issue. Ash wander v. Tennessee Valley Authority, 297 U.S. 288, 346-48 (1986) (Brandeis, J., concurring). The grid has, however, survived constitu- tional challenge elsewhere on this point. Stallings v. Harris, Civ. No. 79-1051 (U.S.DIST.CT.W.D. Tenn. July 10, 1980) (op. at p.8-9). 52a 3. The administrative notice taken violated 42 U.S.C. § 405(b)’s “adduced at the hearing” requirement and 5 U.S.C. § 556(e) because the ALJ did not even mention at the hearing that he was administratively noticing anything. Because the only evidence offered against plaintiff's prima facie case was improper for three different reasons, the decision of the ALJ is not based upon substantial evidence. Accordingly, this case must be remanded to give the Sec- retary an opportunity to offer valid evidence contrary to plaintiff's prima facie case or, if none, to award benefits to plaintiff. DONE this 15th day of August, 1980. /s/ Davibp A. BAGWELL United States Magistrate Ba IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION Civil Action No. 80-0500-H CORINNE LITTLE, PLAINTIFF v. PATRICIA ROBERTS HARRIS Secretary of Department of Health and Human Services, DEFENDANT. ORDER AND JUDGMENT After due and proper consideration, and upon the recom- mendation of the Magistrate, which is adopted as the opin- ion of this Court, it is ORDERED, ADJUDGED and DE- CREED that the Administrative decision be and is hereby VACATED, and that this cause be REMANDED to the Secretary of Health and Human Resources for additional proceedings not inconsistent with the opinion of this Court, no costs to be taxed. DONE this 10th day of Feb., 1981. ———EEE W. B. HAND United States District Judge U.S. District CoURT Sou. Dist. ALA. FILED AND EXAMINED THIS THE 10th Day of Feb. 1981 Minute Entry No. 52,293 William J. O’Connor, Clerk By G. Walter Deputy Clerk hda IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION Civil Action No, 80-0500-H CORINNE LITTLE, PLAINTIF «’ v. PATRICIA ROBERTS HARRIS, Secretary of Department of Health and Human Services, DEFENDANT. RECOMMENDATION OF MAGISTRATE Plaintiff filed suit in this Court as provided by 42 U.S.C. § 405(g) for review of an adverse decision of the Adminis- trative Law Judge |“ALJ”] on a Social Security claim. The Court referred the case to the Magistrate for preliminary review of the administrative record! and recommendation. Congress provided that in such a case the Court shall have power to enter judgment upon the pleadings and tran- script, or to remand the case. 42 U.S.C. § 405(g). I. Procedural History. On October 17, 1978, plaintiff filed a claim with the Social Security Administration seek- ing an entitlement to a “period of disability” under 42 U.S.C. §416(i), and Social Security Disability Insurance benefits as provided by 42 U.S.C. § 423. The application was denied and no further action was taken. The plaintiff filed a second claim for disability benefits and an application for Supplemental Security Income as provided by 42 U.S.C. §§ 1381-1383(¢c) on June 30, 1979. The applications were denied initially and on reconsideration by the Agency, and plaintiff thereupon sought a hearing before an ALJ. The ALJ held a 31-minute hearing on February 15, 1980, at which plaintiff was represented by an attorney, and the nlaintiff and two witnesses testified. The ALJ denied the claim, finding in substance that: 1. Claimant met the threshold requirements; 128 U.S.C. § 636(b)(3); Mathews v. Weber, 423 U.S. 261 (1976). 55a 2. Claimant had the following impairments: gastrointes- tinal complaints and carcinoma of the lungs; 3. Claimant’s allegations of stomach discomfort and nerv- ousness were not credible; 4. Claimant’s impairments did not prevent her from per- forming work requiring lifting ten or less pounds frequently and walking and/or standing for two or three hours of the work day; 5. Claimant was unable to perform her past relevant work as a barmaid; this work required such movement as pushing, pulling, climbing, fine manipulation and reaching; 6. Claimant had the residual functional capacity for sed- entary work as defined by the regulations; 7. Claimant was 44 years old, which was defined as a younger individual; 8. Claimant had an eighth-grade education (limited); 9. The issue of transferability of work skills was not material; 10. Regulations directed that claimant, considering her maximum sustained work capability, age, education, and work experience, be found “not disabled”; 11. Claimant was not under a “disability” as defined in the Social Security Act. The Appeals Council refused the request to review the decision of the ALJ and plaintiff thereupon sought review in this Court of the decision of the ALJ, the final adminis- trative decision. II. Evidence of Record. A. Employment Background. Plaintiff is a 45-year-old unmarried woman with an eighth-grade education. She worked from 1959 until October, 1978, as a barmaid; she worked the last five months as an assistant manager, which the bar owner let her do because she needed to be sitting down. She has had no income, except help from her sisters and friends, since October 1978. B. Alleged Medical Problems. Plaintiff claims that she has been disabled since October 13, 1978, because of her stomach and lung.* 2 Record at 30-33, 43-4, 90. 3Jd. at GA. 56a C. Medical Evidence. The medical records reveal that, at the request of the Vocational Rehabilitation Center, plaintiff was examined by Dr. Russell March, a Mobile in- ternist with a specialty in cardiovascular disease. On Octo- ber 26, 1979, Dr. March wrote the vocational counselor that plaintiff was complaining of abdominal pain and was diag- nosed as having a large hiatus hernia (the protrusion of any structure through the esophageal hiatus of the diaphragm) but with no reflux esophagitis (inflammation of the esopha- gus). He did not feel that surgery was needed and recom- mended adjusting the plaintiff's medications.* On May 31, 1979, plaintiff was admitted to the Provi- dence Hospital by Dr. E. H. Borak, a gastroenterologist, for evaluation of gastrointestinal complaints and, while she was in the hospital, it was found that she had a lesion in the right upper lobe of her right lung. A right upper lung lobec- tomy (excision of a lobe) was performed by Dr. Phillip Snodgrass, a general surgeon, and the pathological diagno- sis was adenocarcinoma (carcinoma derived from glandular tissue or in which the tumor cells form recognizable glandu- lar structures). Plaintiff's post-operative course was de- scribed as fairly benign except for her gastrointestinal com- plaints which were symptomatic of a hiatus hernia. She was discharged on June 25, 1979, with a guarded prognosis and an estimated total and permanent disability.® Dr. Snodgrass filed a report on October 15, 1979 with the Agency, indicating that following plaintiff's discharge from the hospital on June 25, 1979, he had seen her in the office on July 3, September 5, and September 25, 1979. He stated that plaintiff had a very restrictive chronic obstructive pul- monary disease in addition to her carcinoma which was static at that time. He recommended total and permanent disability.® Dr. Raymond Bell, an internist with a specialty in gastroenterology, wrote to the Disability Determination Unit that on October 31, 1979, he had examined the plain- *Jd. at 126. 5Jd. at 130-31. 87d. at 124. 57a tiff with complaints of hyperventilation, weakness and ab- dominal pain. Plaintiff's history included cancer of the uter- us which required a hysterectomy eight years earlier and cancer of the lung which required a right upper lobectomy. Plaintiff told the doctor that she had chronic abdominal pain which was located diffusely throughout the abdomen. She was on medication to relieve the pain. She also complained of becoming very excited rather easily, which, she said, was followed by tingling and strange sensations in her hands, shortness of breath, and sometimes chest pains. X-rays taken in consultation by Dr. Charles Shopfner, a radiologist, indicated that plaintiff had moderate general- ized pulmonary emphysema.’ Dr. Bell completed a Physical Capacities Evaluation form indicating that in his opinion, plaintiff could be expected to lift and/or carry ten pounds or less frequentiy; stand and walk up to three hours in a normal day; and could not be ex- pected to sit and work as much as six out of eight hours a day. He indicated that the plaintiff should be restricted from pushing and pulling movements, climbing and balanc- ing, fine manipulation, and reaching. He stated that she had a weakness in her right hand and that he did not think that she could mentally function in any stressful situation.® On December 28, 1979, Dr. David Clarkson, an internist, hemotologist and oncologist, wrote To Whom It May Con- cern that the plaintiff was under his care for a variety of so- matic (pertaining to or characteristic of the soma or body) complaints; and while under his care, had been unable to return to work. The doctor stated that the plaintiff was scheduled for a biopsy of a new mass lesion to rule out breast carcinoma.® Dr. Snodgrass wrote to the plaintiff's lawyer on January 30, 1980, stating that a lesion removed from plaintiffs breast on December 28, 1980, was found to be a benign dis- ease. He noted that plaintiff still had epigastric distress. Although a favorable prognosis was expected for plaintiff and no recurrence had been identified, it was Dr. 11d. at 164, 168. ® Jd. at 171. *Id. at 175. 58a Snodgrass’ opinion that any patient who had carcinoma of the lung should be considered totally and permanently dis- abled. He also stated that plaintiff should not be considered disabled because of her breast disease or her epigastric dis- tress. '° D. Plaintiffs Testimony. Plaintiff testified that she is not presently able to drive because of her vision, her nerves, and because she is not alert. She said that in March of 1978, she did go to Vocational Rehabilitation and that they paid some of the doctor’s bills but she never got started in a job because she went into the hospital. Her hobby was working in the garden but she is not able to do that because she feels like she has the flu, she runs a tem- perature and is in pain. She says her body will not let her stay up to work; she is not even able to clean house. Plain- tiff said that her stomach feels like it is inflammed, and that it is sore and painful; she never has a normal bowel move- ment. At the time of the hearing, she was taking four dif- ferent medications for pain, nerves, and her stomach.!! E. Witnesses. 1. Dennis Simmons testified that he had been a friend of the plaintiff for years and had seen her frequently since Oc- tober, 1978. He has helped take care of the plaintiff during the period when she was not able to care for herself at all. In his opinion, she is so weak that she is not physically able to do anything. He stated that it is hard for her to get from the bed to the kitchen table. He does not think she would be able to do the work required of a waitress. '? 2. Irene Simmons testified that the plaintiff can move around but that she cannot stay up for very long because she is weak. When she tries to do something like grocery shopping, she exhausts herself very quickly. In her opinion, the plaintiff is not able to perform her former job as a wait- ress.'5 117d. at 31-33, 37-40. 12 Jd. at 46-8. 13 Jd. at 49-50. 59a III. Applicable Law in General. The Social Security Act: sets forth a two-part test for determining “disability” under the Act: First, there must be a “medically de terminable 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 twelve months ....” 42 U.S.C. § 1382¢e(a)(3)(A). Second, this impairment must be so severe, that the claimant is “not only unable to do his previous work but cannot, considering his age, educa- tion, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regarc.-ss of whether a specific job vacancy exists for him, or whether he would be hired if he ap- plied for work.” Jd. § 1382¢(a)(3)(B)."4 If plaintiff shows that she cannot now perform her former job, the burden shifts to the Secretary to show both that the claimant is able to perform other gainful work, and that such other work is in fact available in the applicable economy.'> The availability of work is normally proven ei- ther by the testimony of a vocational expert’® or perhaps by administrative notice!’ if properly taken. '* IV. Standard of Review. Congress has clearly provided that in a Social Security case the administrative findings “as to any fact, if supported by substantial evidence, shall be conclusive....”'® This Court’s function is strictly 4 Chaney v. Califano, 588 F.2d 958, 959 (Sth Cir. 1979). 18 McGill v. Harris, 615 F.2d 365 (Sth Cir. 1980); Johnson v. Harris, 612 F.2d 993 (5th Cir. 1980); White v. Harris, 605 F.2d 867, 859 (5th Cir. 1979); Knott v. Califano, 559 F.2d 279, 280 (5th Cir. 1977). 16 B.g., Chaney v. Califano, 588 F.2d 958, 960 (5th Cir. 1979). 17 Brown v. Finch, 429 F.2d 80, 82 (Sth Cir. 1970); Breaur v. Finch, 421 F.2d 687, 689 (5th Cir. 1970). 18 White v. Harris, 605 F.2d 867, 870 (Sth Cir. 1979). 1942 U.S.C. § 405(g). 60a limited; we may only determine whether the administrative findings are supported by “substantial evidence” consider- ing the record as a whole.?° The term “substantial evidence in this circumstance means: more than a mere scintilla. It means such relevant evi- dence as a reasonable mind might accept as adequate to support a conclusion.?! The test is undoubtedly quite strict. Though it may be “so stringent that it has been described as bordering on the unrealistic,”2? it is nevertheless true that “the claimant’s burden of proof is not insuperable.”?* V. Analysis. Since the ALJ found that plaintiff was no longer able to perform her former employment the burden fell to the Secretary to rebut plaintiff's prima facie case.™4 In sum, the burden rested upon the Secretary to introduce evidence that plaintiff could perform gainful work. Even assuming arguendo®® that there is medical evi- dence in the record based upon which a vocational expert could render an opinion both as to plaintiffs vocational abil- ity and the availability of appropriate work, no such voca- tional evidence was adduced. Thus, when the burden shifted to the Secretary, the only evidence of the availability of other gainful employment or of plaintiffs vocational capacity to do it came from the Medical-V ocational Guidelines, or the grid. As discussed in the next section, the grid does not suffice in this case to re- but plaintiffs prima facie case. 2° Chaney v. Califano, 588 F.2d 958, 959 (5th Cir. 1979); Mims v. Califano, 581 F.2d 1211, 1213 (5th Cir. 1978); Rivas v. Weinberger, 576 F.2d 255, (5th Cir. 1973). 21 Richardson v. Perales, 402 U.S. 389, 401 (1971), quoting Consoli- dated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938). 22 Johnson v. Harris, 612 F.2d 998 (5th Cir. 1980), quoting Williams v. Finch, 440 F .2d 612, 615 (5th Cir. 1971). 23 Simmons v. Harris, 602 F.2d 1233, 1236 (5th Cir. 1979), quoting Mims v. Califano, 581 F.2d 1211, 1213 (5th Cir. 1978). 24 See note 15 above. 25 This assumption is quite likely to be incorrect, though we need not so find. 6la VI. Medical-Vocational Guidelines |“The Grid”|. The resolution of this case is inextricably interwoven with the applicability and validity of the new “Medical-Vocational Guidelines”?* or, more commonly, “the grid” and its attend- ant explanatory regulations. Since the vocational conclusion of the ALJ is at bottom based solely upon the grid, the de cision of the ALJ is supported by substantial evidence only if the grid is to be applied, if it was properly applied, and if the grid establishes a system of adjudication not at variance with the statutes, Constitution, or decisional laws of the United States. A. The Medical-Vocational Guidelines |“The Grid” |. In the Middle 1970's the Social Security Administration be- gan?’ an internal study of the possibility of adoption f reg- ulations providing increased use of administrative presump- tions and administrative notice, having a view toward both administrative efficiency and nationwide uniformity in So- cial Security Disability determinations. The new regula- tions become effective on February 26, 1979.78 Because parts are displayable as a simple chart or table, the Medi- cal-V ocational Guidelines are commonly called “the grid,” a usage which, though technically limited to the tables them- selves, commonly includes the attendant explanatory matter. 1. The Grid in Perspective: Pre-Grid Analysis. There is a sequential analysis by which the agency determination reaches the level at which the grid is used, the entire proc- ess moving toward a determination of whether or not an ap- plicant is “‘disabled”’ within the meaning of 42 U.S.C. § 1382¢(3). Several preliminary steps are involved. The several steps are, in sum, these: 26 20 C.F.R. § 404.1513 Subpart P, App. 2, § 200.00 et seq. 27 The work was apparently at the prodding of certain congressional committees and the General Accounting Office. Since no statute was passed, however, the work should be treated as a pure executive branch effort. 28 The hearing in this case occurred one year later, on February 15, 1980. 62a First, the agency determines whether the person is actu- ally working.?® If so, the agency conclusively presumes that the applicant is not disabled and the claim must be denied;*” but if not, the agency moves to the second step. Second, the agency must determine whether the claimed impairment is “severe.”*' If not, the claim is denied on medical evidence alone; but if so, the agency moves to the third step. Third, the agency determines whether the applicant's im- pairment equals or exceeds in severity a list of impair- ments.*? If so, the applicant is entitled to benefits, but if not, the agency goes on to the fourth step. Fourth, the agency detemines whether the applicant is able to perform his or her past work.** If so, the agency finds that the applicant is not disabled under the law, but if not, the agency moves to the fifth step. At thir point the burden shifts to the Secretary.™ Fifth, and last, the agency must determine whether the applicant is able—despite his or her inability to perform his or her pr:or work—to perform other substantial gainful ac- tivity considering his or her age, education, and work expe- rience.*> It must be continually recalled that by this point the burden has already snifted to the Secretary to rebut plaintiff's prima facie case. The grid system is designed to constitute the Secretary's rebuttal to the claimant's prima facie case, and the entire rebuttal is in form of adminis- tratively-noticed facts systematized in the grid. We pro- ceed next to the summary analysis of the use of the grid. 29 20 C.F.R. § 404. 1503(b). 3° By comparison, judge-made law in other areas recognizes that a person, though injured, is often “required to work in order to survive.” Vaughn v. Atkinson, 369 U.S. 527 533 (1962) (maintenance and cure under general maritime law). 31 20 C.F.R. § 404. 1503(c). 32 20 C.F.R. § 404. 1503(d). 33 20 C.F.R. § 404. 1503(3). % See note 15 above. $5 42 U.S.C. § 1382e(a)(3)(B). 63a 2. Use of the Grid. The agency must first determine which of the three available grids or tables*® to use, each dealing with a different level of exertional impairment ,°7 since obviously a person’s employability for many jobs may well depend upon the extent to which he can stand, move, or lift. Thus, the agency determines the person’s residual functional capacity to perform certain levels of work. This determination is naturally an ersatz combination of medical and vocational factors. Finally, once the correct grid is selected, it is used. The grid contains in tabular form a series of rules which consti- tute the Secretary’s interpretation of the statutory phrase “age, education, work experience,”** which are the deter- minants of ability to engage in substantial gainful activity other than the prior job which the impaired claimant can no longer perform. In essence the grid is a black box into which three variables are fed: age, education, and work ex- perience. When the agency determines the three variables in any particular case the black box is cranked—i.e., the fi- nal column on the grid [styled “decision” | is read—and the required result spouts forth: either “disabled,” or “not disabled.” It is important to note that while there are «" course situ- ations in which the particular applicant’s cri.cia simply do not fit the grid system for one reason or another the grid is not used,®® where the grid does apply the agency—and, in %6 Table 1 is for applicants able to do only sedentary work, 2 for light, and 3 for medium. The terms sedentary, light and medium are defined in 20 C.F.R. § 404.1510. 3° An “exertional impairment” limits the strength which an applicant can exert on the job. A non-exertional impairment might be, for exam- ple, the required use of a renal dialysis machine. 38 42 U.S.C. § 1382e(a)(3)(B). 3° 20 C.F.R. § 404.1513 Subpart P, App. 2 § 200.00(a) (“Where any one of the findings of fact does not coincide with the corresponding cri- terion of a rule, the rule does not apply in that particular case ...”). The regulation suggests as an example a person who falls in the middle by being able to do more than light but less than medium work, in which event the grid is used simply for whatever use it may be. /d. at § 200.00(d). 6Aa particular, the ALJ—is absolutely required to read and foi- low the decision in the grid column labelled “decision.” Factored into the grid system is a rule-based administra- tive notice of the existence of a number of available un- skilled jobs in the applicable economy. When the grid is used, therefore, the existence of such jobs in the economy “is established.”*” The rule does not provide for the consid- eration of contrary testimony on the point, and does not provide for the possibility that an applicant might offer evi- dence which, in fair litigation not limited by the conclusive rule, might be deemed to have overcome the adminis- tratively-noticed facts. 3. Validity of Grid System. The grid system cannot re- but the prima facie case, since the grid’s use here is invalid for two reasons. a. Administrative Notice Deemed Conclusive. The grid has taken conclusive administrative notice of the ex- istence of sedentary, light, and medium jobs “throughout” the national economy; under the grid “the existence of such jobs is established.”*' When the regulation states that the fact “is established,” it obviously means conclusively estab- lished. Certainly it does say otherwise. Such conclusive administrative notice expressly violates 5 U.S.C. § 556(e), providing that: When an agency decision rests on official notice of a material fact not appearing in the evidence in the rec- ord, a party is entitled, on timely request, to an oppor- tunity to show the contrary. Accordingly, the regulation being contrary to an act of Congress in that respect, even if judgment should not be rendered in favor of plaintiff the case should be remanded to allow plaintiff—should she so desire—offer evidence pursuant to 5 U.S.C. § 556(e) that work of which she is ca- pable does in these times of high unemployment exist “throughout” the national economy.*? *° Id. at § 200.00(b). 41 20 C.F.R. § 404.1513 Subpart P, App. 2 § 200.00(b). 42 The “throughout” term is in the grid regulations, 20 C.F.R. § 404.1513 Subpart P, App. 2 § 200.00(b). It is not clear whether that term is intended to supplant 20 C.F.R. § 404.150%a), but since under 65a b. Administrative Notice by Rule. Administrative or judicial notice in its traditional sense is ordinarily expressly taken at the hearing and, in fact, the Administrative Proce- dure Act—and arguably the Due Process Clause also—requires administrative notice to be expressly taken at the hearing. As the Court of Appeals for this Circuit re- cently wrote: The Administrative Procedure Act provides in § 556(¢) Isic: § 556(e)|: When an agency decision rests on official notice of material fact not appearing in the evidence in the record, a party is entitled, on timely request, to an opportunity to show the contrary. The provision is unquestionably applicable to disability cases that are heard before AL,Js, because the statute, 42 U.S.C. § 405(b), requires/disability decisions to be made “on the basis of evidence adduced at the hearing.” Unfairness may result when facts are noticed without precisely indicating the facts and their source. A quick remark by an ALJ that he takes official notice of avail- ability of jobs in the national economy that would be suitable for the claimant could be unfair for lack of suf- ficient specificity.** The administrative notice taken here was procedurally invalid because there was not even a “quick remark” at the hearing, there was nothing said at the hearing at al/ about administrative notice which was, then, procedurally im- proper by reason of 5 U.S.C. § 556(e) and the “evidence ad- duced at the hearing” requirement of 42 U.S.C. § 405(b). The possibility that plaintiff can submit a rebuttal affida- vit on appeal in the Appeals Council does not change the result. The statute states that the decision must be based on evidence “adduced at the hearing’**—it does not say on appeal—and it is inconceivable that in passing 5 U.S.C. the grid the existence of jobs “throughout” the economy was noticed, that is what plaintiff is entitled to rebut. “3 White v. Harris, 605 F.2d 867, 870 (Sth Cir. 1979), quoting K. DAVID, ADMINISTRATIVE LAW § 15.11 (Supp. 1978). #442 U.S.C. § 405(b). 66a § 556(e) Congress meant that the rebuttal evidence should be first offered on appeal. Similarly, the right of the claimant to rebut the underly- ing findings of factual fact*® (e.g., age) is not the same as the opportunity to rebut the administratively-noticed fact, namely, the existence of appropriate jobs in the appropri- ate economy. That administratively-noticed fact is irrebuttable under the grid. Accordingly, use of the grid does not constitute the req- uisite rebuttal. VII. Propriety of Remand. The Social Security Disabili- ty Amendments of 1980** amend 42 U.S.C. § 405(g) to pro- vide that: The Court ... may at any time order additional evi- dence to be taken before the Secretary, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorpo- rate such evidence into the record in a prior proceed- ing. A fair reading of the statute indicates that it pertains only to remands to allow the plaintiff to other additional testimony; it does not say so, however. If the Court decides not to simply enter judgment in favor of plaintiff and if the statute does apply to remands to allow the Secretary to of- fer additional testimony, the statute does not forbid re- mand here because: A. “there is new evidence which is material,” namely, there should be vocational testimony, and; B. “there is good cause for the failure to incorporate such evidence into the record in prior proceeding,” namely, reliance by the ALJ upon an existing regulation. CONCLUSION When the ALJ found that plaintiff was unable to perform her former job, the burden shifted to the Secretary to prove her defense, namely, that plaintiff was able to do - 45.20 C.F.R. § 404.1513, Subpart P, App. 2, § 200.00(a). 46 Pub.L. No. 96-265, 49 U.S.L.W. 7 (July 15, 1980). 47 Jd. at § 307. 67a other work in the economy, and that such work was avail- able. The secretary failed to carry her burden on rebuttal because: 1. There was no vocational testimony explaining what work plaintiff could do, given her limitations; 2. No vocational evidence outside the grid was adminis- tratively noticed even assuming that such a procedure would be valid; 3. The grid cannot serve as the requisite rebuttal testi- mony because: A. the regulation precluding plaintiffs adducing con- trary rebuttal employment evidence at the hearing violates 5 U.S.C. § 556(e) in that it was improperly conclusive administrative notice, and; B. the administrative notice taken violated 42 U.S.C. § 405(b)’s “adduced at the hearing” requirement and 5 U.S.C. § 556(e) because the ALJ did not even mention at the hearing that he was administratively noticing anything. Accordingly, this case must be remanded to give the Sec- retary an opportunity to offer valid evidence contrary to plaintiff's prima facie case, or if none, to award benefits to plaintiff. DONE this 21st day of November, 1980. /s/ Davip A. BAGWELL United States Magistrate IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION Civil Action No. 80-0638-P THOMAS QO. JONES, PLAINTIFF Vv. RICHARD SCHWEIKER, Secretary of Department of Health and Human Services, DEFENDANT. ORDER AND JUDGMENT After due anc. proper consideration, and upon the recom- mendation of the Magistrate, which is adopted as the opin- ion of this Court, it is ORDERED, ADJUDGED and DE- CREED that the Administrative decision be and is hereby VACATED, and that this cause be REMANDED to the Secretary of Health and Human Resources for additional proceedings not inconsistent with the opinion of this Court, no costs to be taxed. DONE this 23d day of February, 1981. /s/ ViRGIL PITTMAN UNITED STATES DISTRICT JUDGE U.S. Dis: rict CouRT Sou. Dist. ALA. FILED AND EXAMINED THIS THE 23d Day of Feb. 1981 Minute Entry No. 52,341 William J. O’Connor, Clerk By G. Waiter Deputy Clerk 69a IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION Civil Action No. 80-0638-P THOMAS O. JONES, PLAINTIFF v. RICHARD SCHWEIKER, Secretary of Department of Health and Human Services, DEFENDANT. RECOMMENDATION OF MAGISTRATE Plaintiff filed suit in this Court as provided by 42 U.S.C. § 405g) for review of an adverse decision of the Adminis- trative Law Judge (“ALJ”] on a Social Security claim. The Court referred the case to the Magistrate for preliminary review of the administrative record’ and recommendation. Congress provided that in such a case the Court shall have power to enter judgment upon the pleadings and tran- script, or to remand the case. 42 U.S.C. § 405(g). I. Procedural History. On May 27, 1975, plaintiff filed a claim with the Social Security Administration seeking an entitlement to a “period of disability” under 42 U.S.C. § 416(i), and Social Security Disability Insurance benefits as provided by 42 U.S.C. § 423. The application was denied initially and on reconsideration by the Agency, and plaintiff thereupon sought a hearing before an ALJ. The ALJ found, in substance, that: 1. Claimant met the threshold requirements; 2. Claimant was 48 years old, had completed ten years of school, and had worked for the telephone company in- stalling and maintaining telephones; 3. Claimant had no medically determinable physical or mental impairment which would prevent him from doing many light sedentary jobs such as work as a bench assem- bler in a multitude of industries; 128 U.S.C. § 636(b)(3); Mathews v. Weber, 423 U.S. 261 (1976). 70a 4. Claimant was not prevented from engaging in substan- tial gainful activity for any continuous period which had lasted or could be expected to last for at least twelve months; 5. Claimant was not under a “disability” as defined by the Act. No further action was taken. On January 18, 1979, plain- tiff filed a second claim with the Social Security Adminis- tration which was denied initially and on reconsideration by the Agency and plaintiff sought a hearing before an ALJ. The ALJ held a 19-minute hearing on April 1, 1980, at which plaintiff was represented by an attorney, and denied the claim, finding in substance that: 1. Claimant met the threshold requirements; 2. Claimant was 52 years old (approaching advanced age), had a tenth grade education (a limited education), could read, write, and handle his own financial affairs; 3. Medical evidence established that claimant nad suf- fered from an old compression fracture of the 12th thoracic vertebra, degenerative dise disease of the lumbar spine, and allergic rhinitis and sinusitis; 4. Claimant was unable to »erform his former job as a telephone repairman, which was semi-skilled, but did not have transferable job skills; 5. Claimant had the residual functional capacity for light work; 6. Regulations required that claimant be found “not disabled”; 7. Evidence established that claimant was not precluded from engaging in substantial gainful activity by an impair- ment or impairments which could be expected to result in death or which had lasted or could be expected to last for twelve months. The Appeals Council refused the request to review the decision of the ALJ, and plaintiff thereupon sought review in this Court of the decision of the ALJ, the final adminis- trative decision. Il. Evidence of Record. A. Employment Background. Plaintiff is a 52 year old man who has been married to his second wife for twenty Tla years, and has two children from his first marriage. He has a tenth grade education. He worked for the telephone com- pany installing and maintaining lines from 1947 until No- vember of 1974, then did light jobs for the phone company until he was placed on disability retirement in November of 1975. Since retiring, he has had income from property which he sold; from an insurance policy that paid $200 a month until November of 1979; from a disability pension from the phone company that pays approximately $300 a month; and from his wife’s job as a registered nurse which pays her approximately $10,000 a year.* B. Alleged Medical Problems. Plaintiff claims that he has been disabled because of his back condition since Au- gust 2, 1974.8 C. Medical Evidence. The medical records reveal that plaintiff was examined on August 11, 1975, by Dr. M.A. Acinno, an orthopedic surgeon in Birmingham, with the chief complaints of pain in the low back and painful hips. The history taken by Dr. Acinno revealed that plaintiffs back problem began in 1965 when he was injured by falling off a telephone pole while doing his regular job as a lineman for the telephone company. He saw a chiropractor until 1973, when he went to Dr. James T. Morgan, a general sur- geon in Birmingham, because of progressively worse pain. Dr. Morgan treated him with medication and in September of 1974, referred him to Dr. William Tarpley, an orthopedic surgeon in Birmingham, who advised him to continue on medication. Plaintiff told the doctor that he was tired and sore in the mornings, but after moving around, he would feel more comfortable. Dr. Acinno stated that the plaiatiff could not perform his job as aWineman, but that he could work on a level floor and perform)sedentary to moderate type work that did not involve lifting. The diagnosis was osteoarthritis of the lumbar spine and degenerative disc disease.* Dr. John E. Foster, a general practitioner im Foley, re- ported to the agency on November 20, 1975, that the plain- 2 Record at 24-7. 3 Jd. at 99. 4 Jd. at 778. feo 72a tiff had several central dise herniatiens of the lumbar spine as well as nypertrophic (enlargement or overgrowth of an organ or part due to an increase in size of its constituent cells) changes. His diagnosis was vertebral body disease with dise syn¢rome.> On January 15, 1976, Dr. Haydee Kimmich, an orthope- dic surgeon in Mobile, wrote to the Disability Determina- tion Unit that x-rays of the plaintiff's back revealed osteoarthritic and degenerative changes of the lower disc interspace between L5-S1. He stated that since there was no clear neurological deficit, there was no reason to consid- er surgery. Dr. Kimmich recommended that since the plain- tiff could not perform his former job, he could be sent to Vocational Rehabilitation for testing and physical therapy.® On a form titled “Functional Capacity Evaluation Based on 8 Hours Work Day,” Dr. Kimmich indicated that in his opinion the plaintiff could perform sedentary work if it in- volved oniy 3-5 hours of sitting a day; and plaintiff could possibly perform light work if it involved only 3-5 hours of walking or standing a day and if the plaintiff could operate arm and leg controls. Dr. Kimmich indicated that the plain- tiff would not be able to do moderate or heavy work.’ Dr. Foster wrote “To Whom It May Concern” on April 23, 1976, that the plaintiff had been in the South Baldwin Hospital from April 17 through April 23, 1976, for lumbar dise syndrome.® The records from the plaintiffs April, 1976 stay at the Soutn Baldwin Hospital indicated that he was admitted by Dr. Foster with a history of severe and constant pain in the low back area. Since the pain had not been controlled with medication at home, plaintiff was admitted for further eval- uations. The examinations revealed a recurrent low 5 Jd. at 80, 83. ® Id. at 84. 7 Id. at 85. ® Id. at 90. 73a back syndrome and plaintiff was treated with rest, diet, physical therapy and medication. He was discharged in an improved condition to be followed at the office.® On April 11, 1979, the plaintiff was examined by Dr. H.C. George, an orthopedic surgeon in Fairhope, for evalu- ation of his complaint of chronic back problems. Plaintiff told Dr. George that he was rarely free of pain and that any type of activity aggravated the back ache. Dr. George diag- nosed an old compression fracture at the 12th thoracic vertebra and degenerative disc disease at L3-4."° Dr. George completed a Physical Capacities Evaluation form indicating that in his opinion the p «tiff could be ex- pected to lift and/or carry twenty poun | occasionally to ten pounds frequently; stand and walk as mucii as six or more hours a day; and sit and work as much as six out of eight hours a day. He did not restrict the plaintiff from any of the activities listed on the form."' Dr. John Gewin, an _ otorhinelaryngologist in Birmingham, wrote to the Disability Determination Unit on June 30, 1979, at the request of plaintiff, to state that the plaintiff had been seen in his office complaining of sinus problems. Plaintiff was found to have an allergic rhinitis (inflammation of the mucous membrane of the nose) and si- nusitis (inflammation of the sinus) and was treated with medication. !? On July 3, 1979, Dr. Foster reported to the agency that he had last seen plaintiff on May 7, 1979, with a severe backache. His diagnosis was disc syndrome, vertebral body disease and low back syndrome. Dr. Foster stated that plaintiff had several central disc herniations of the lumbar spine as well as hypertrophic changes, and he recom- mended total disability." Dr. Preston Daugherty, an orthopedic surgeon in Mobile, wrote to the Disability Determination Unit on August 21, 1979, with the results of his examination of the plain- * Jd. at 132, 141. Td. at 142. "Jd. at 143. 2 Id. at 144. 3 Id. at 145, 148. 74a ti.’. Dr. Daugherty stated that based on his physical find- ings, he could not substantiate the severity of plaintiffs complaints. He said that plaintiff did have some degenera- tive changes present in the L5-S1 intervertebral disc space but that he could not verify by physical findings whether there was a herniated disc. ** Dr. Daugherty completed a Physical Capacities Evalua- tion form indicating that in his opinion the plaintiff could be expected to lift and/or carry twenty pounds occasionally to ten pounds frequently; stand and walk six or more hours in a day; and sit and work as much as six out of eight hours a day. He restricted the plaintiff from working around haz- ardous machinery and from being in places with environ- mental problems.'® D. Plaintiffs Testimony. Plaintiff testified that his big- gest problem is his back but that he also has sinus trouble and “a lot of little things” such as arthritis. The doctors have told him that it will get worse instead of better and that he will have to learn to live with it. Plaintiff said that in a normal day he will try to de odd jobs around the house and yard. He said that he tries not to lift ten to twenty pounds on a regular basis because if he does lift anything heavy, his back will begin to hurt and he will have to lie down flat and relax for about a day before he can move around again. He can sit if he’s in a comfortable position, but if it’s less-than-comfortable he will be in a lot of pain. Some of the medicines he takes are narcot's and affect the way he functions. Plaintiff said that he was contacted one time by Vocational Rehabilitation but they told him that if the phone company didn’t have a job for him, then it was doubtful that Vocational Rehabilitation had anything he could do. To receive disability payments from the phone company, he has to have a check-up every three months and if the check-ups showed him to be capable of returning to work, the payments would cease and he would be re- quired to return to work. He has been going to Dr. Foster 4 Jd. at 149-50. 'S Td. at 151. 75a for these check-ups for the last five years and Dr. Foster has not removed him from disability.'® III. Applicable Law in General. The Social Security Act: sets forth a two-part test for determining “disability” under the Act: First, there must be a “medically de- terminable 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 twelve months....” 42 U.S.C. § 1382¢(a)(3)(A). Second, this impairment must be so severe, that the claimant is “not only unable to do his previous work but cannot, considering his age, educa- tion, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether a specific job vacancy exists for him, or whether he would be hired if he ap- plied for work.” Id. § 1382¢(a)(3)(B).*7 If plaintiff shows that he cannot now perform his former job, the burden shifts to the Secretary to show that the claimant is able to perform other gainful work available in the applicable economy."* The Secretary's burden is nor- mally carried either by the testimony of a vocational ex- pert’? or perhaps by administrative notice?’ if properly taken.?! IV. Standard of Review. Congress has clearly provided that in a Social Security case the administrative findings “as to any fact, if supported by substantial evidence, shall be conclusive. .. .”2 This Court’s function is strictly limited; 16 Id. at 26, 28-32. ? Chaney v. Califano, S88 F.2d 958, 959 (Sth Cir. 1979). % McGill v. Harris, 615 F.2d 365 (Sth Cir. 1980); Johuson v. Har- ris, 612 F.2d 998 (5th Cir. 1980); White v. Harris, 605 F.2d 867, 869 (5th Cir. 1979); Kuott v. Califano, 559 F.2d 279, 280 (5th Cir. 1977). "% B.q., Chaney v. Califano, 538 F.2d 958, 960 (5th Cir. 1979). * Brown v. Finch, 429 F.2d 80, 82 (5th Cir. 1970); Breaur v. Finch, 421 F.2d 687, 689 (Sth Cir. 1970). 2! White v. Harris, 605 F.2d 867, 870 (Sth Cir. 1979). #2 42 U.S.C. § 405 (g). 76a we may only determine whether the administrative find- ings are supported by “substantial evidence” considering the record as a whole.?* The term “substantial evidence” in this circumstance means: more than a mere scintilla. It means such relevant evi- dence as a reasonable mind might accept as adequate to support a conclusion.*4 The test is undoubtedly quite strict. Though it may be “so stringent that is has been described as bordering on the unrealistic,”*> it is nevertheless true that “the claimant's burden of proof is not insuperable.”?¢ V. Analysis. Since the ALJ found that plaintiff was no longer able to perform his former employment the burden fell to the Secretary to rebut plaintiff's prima facie case.2” In sum, the burden rested upon the Secretary to introduce evidence that plaintiff could perform gainful work. According to the testimony of Drs. George and Daugherty,”* the testimony most favorable to the Secre- tary, plaintiff was able to lift and/or carry twenty pounds occasionally to ten pounds frequently; stand and walk six or more hours in a day; and sit and work six out of eight hours a day. That testimony, however, does not bridge the gap to an actual job. There is not one drop of testimony in the rec- ord about what kind of job someone with that medical ca- pacity can do. For example, no vocational expert testified that a person with that medical capacity could take up mon- ey at a parking lot for the period of a normal shift. The Secretary's on/y rebuttal evidence on that point was attempted administrative notice under the grid. As dis- 23 Chaney v. Califano, 588 F.2d 958, 959 (Sth Cir. 1979; Mims v. Califano, 581 F.2d 1211, 1213 (5th Cir. 1978); Rivas v. Weinberger. 576 F 2d 255 (5th Cir. 1973). * Richardson v. Perales, 402 U.S. 389, 401 (1971), quoting Consoli- dated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1988). 28 Johnson v. Harris, 612 F.2d 993 (5th Cir. 1980, quoting Williams v. Finch, 440 F.2d 612, 615 (5th Cir. 1971). 26 Simmons v. Harris, 602 F.2d 1233, 1236 (5th Cir. 1979), quoting Mims v. Califano, 581 F.2d 1211, 1213 (5th Cir. 1978). 2? See note 18 above. 28 See text at notes 10 and 15 above. 77a cussed in the next section, the grid does not suffice to rebut the prima facie case. VI. Medical-Vocational Guidelines |“The Grid”|. The resolution of this case is inextricably interwoven with the applicability and validity of the new “Medical-Vocational Guidelines”?® or, more commonly, “the grid” and its attend- ant explanatory regulations. Since the vocational conclusion of the ALJ is at bottom based in important part upon the grid, the decision of the ALJ is supported by substantial evidence only if the grid is to be applied, if it was properly applied, and if the grid establishes a system of adjudication not at variance with the statutes, Constitution, or decisiona! laws of the United States. A. The Medical-Vocational Guidelines |“The Grid”|. In the middle 1970's the Social Security Administration be- gan*® an internal study of the possibility of adoption of reg- ulations providing increased use of administrative presump- tions and administrative notice, having a view toward both administrative efficiency and nationwide uniformity in So- cial Security Disability determinations. The new regula- tions becarne effective on February 26, 1979.°' Because parts are displayable as a simple chart or table, the Medical-V ocational Guidelines are commonly called “the grid,” a usage which, though technically limited to the ta- bles themselves, commonly includes the attendant explana- tory matter. 1. The Grid in Perspective: Pre-Grid Analysis. There is a sequential analysis by which the agency determination reaches the level at which the grid is used, the entire proc- ess moving toward a determination of whether or not an ap- plicant is “disabled”’ within the meaning of 42 U.S.C. § 1382 (3). Several! preliminary steps are involved. The several steps are, in sum, these: 2° 20 C.F.R. § 404.1513 Subpart P, App. 2, § 200.00 ef seq. %° The work was apparen'ly at the prodding of certain congressional committees and the General Accounting Office. Since no statute was passed, however, the work should be treated as a pure executive branch effort. ** The hearing in this case occurred 14 months later, on April 1, 1980. 78a First, the agency determines whether the person is actu- ally working.*? If so, the agency conclusively presumes that the applicant is not disabled and the claim must be denied;** but if not, the agency moves to the second step. Second, the agency must determine whether the claimed impairment is “severe.”™* If not, the claim is denied on medical evidence alone; but if so, the agency moves to the third step. Third, the agency determines whether the applicant's im- pairment equals or exceeds in severity a list of impair- ments.*® If so, the applicant is entitled to benefits, but if not, the agency goes on to the fourth step. Fourth, the agency determines whether the applicant is able to perform his or her past work.** If so, the agency finds that the applicant is not disabled under the law, but if not, the agency moves to the fifth step. At this point the burden shifts to the Secretary.*” Fifth, and last, the agency must determine whether the applicant is able—despite his or her inability to perform his or her prior work—to perform other substantial gainful ac- tivity considering his or her age, education, and work expe- rience.** It must be continually recalled that by this point the burden has already shifted to the Secretary to rebut plaintiff's prima facie case. The grid system is designed to constitute the Secretary's rebuttal to the claimant’s prima facie case, and the entire rebuttal is in form of administra- tively-noticed facts systematized in the grid. We proceed next to a summary analysis of the use of the grid. 32 20 C.F.R. § 404.1503(b). 33 By comparison, judge-made law in other areas recognizes that a person, though injured, is often “required to work in order to survive.” Vaughn v. Atkinson, 369 U.S. 527 583 (1962) (maintenance and cure under general maritime law). * 20 C.F.R. § 404. 15038(¢). 35 20 C.F.R. § 404. 1503(d). 96 20 C.F.R. § 404. 1503(3). 5? See note 18 above. 38 42 U.S.C. § 1382e(a)(3)(B). 79a 2. Use of the Grid. The agency must first determine which of the three available grids or tables*® to use, each dealing with a different level of exertional impairment,*’ since obviously a person’s employability for many jobs may well depend upon the extent to which he can stand, move, or lift. Thus, the agency determines the person's residual functional capacity to perform certain levels of work. This determination is naturally an ersatz combination of medical and vocational factors. Finally, once the correct grid is selected, it is used. The grid contains in tabular form a series of rules which consti- tute the Secretary's interpretation of the statutory phrase “age, education, work experience,”*' which are the deter- minants of ability to engage in substantial gainful activity other than the prior job which the impaired claimant can no longer perform. In essence the grid is a black box into which three variables are fed: age, education, and work ex- perience. When the agency determines the three variables in any particular case the black box is cranked—i.e., the fi- nal column on the grid |styled “decision”| is read—and the required result spouts forth: either “disabled,” or “not disabled.” It is important to note that there are of course situations in which the particular applicant’s criteria simply do not fit the grid system for one reason or another and the grid is not used.4? Where the grid does apply the ageney—and, in %* Table 1 is for applicants able to do only sedentary work, 2 for light, and 3 for medium. The terms sedentary, light and medium are defined in 20 C.F .R. § 404.1510. * An “exertional impairment” limits the strength which an applicant can exert on the job. A non-exertional impairment might be, for exam- ple, the required use of a renai dialysis machine. #142 U.S.C. § 1382e(ay(3)(B). #2 20 C.F.R. § 404.1513 Subpart P, App.2 § 200.00(a) (“Where any one of the findings of fact does not coincide with the corresponding cri- terion of a rule, the rule does not apply in that particular case ...”). The regulation suggests as an example a person who falls in the middle by being able to do more than light but less than medium work, in which event the grid is used simply for whatever use it may be. /¢. at § 200.00(d). 80a particular, the ALJ—is absolutely required to read and fol- low the decision in the grid column labelled “decision.” Factored into the grid system is a rule-based administra- tive notice of the ability of people with certain attributes to perform certain jobs in the applicable economy. Vhen the grid is used, therefore, whatever it says “is established.”** The rule does not provide for the consideration of contrary testimony on the point, and does not provide for the possi- bility that an applicant might offer evidence which, in fair litigation not limited by the conclusive rule, might be deemed to have overcome the administratively-noticed facts. 3. Validity of Grid System. The grid system cannot pro- vide administratively-noticed vocational testimony to rebut the prima facie case, since the grid’s use here is invalid for two reasons. a. Administrative Notice Deemed Conclusive. The grid has taken conclusive administrative notice that a person with plaintiffs attributes is able to perform certain avail- able jobs. Such conclusive administrative notice expressly violates 5 U.S.C. § 556(e), providing that: When an agency decision rests on official notice of a material fact not appearing in the evidence in the ree- ord, a party is entitled, on timely request, to an oppor- tunity to show the contrary. Accordingly, the regulation being contrary to an act of Con- gress in that respect, even if judgment should wot be rend- ered in favor of plaintiff the case should be remanded to al- low plaintiff to offer testimony contrary to the facts administratively noticed and to allow the ALJ to make a factual finding unhindered by a conclusive presumption. b. Administrative Notice by Rule. Administrative or ju- dicial notice in its traditional sense is ordinarily expressly taken at the hearing and, in fact, the Administrative Proce- dure Act—and arguably the Due Process Clause also—requires administrative notice to be expressly taken at the hearing. As the Court of Appeals for this Circuit re- cently wrote: #3 Id. at § 200.00Kb). 8la The Administrative Procedure Act provides in § 556(¢) Isic: § 556(e) |: When an agency decision rests on official notice of material fact not appearing in the evidence in the record, a party is entitled, on timely request, to an opportunity to show the contrary. The provision is unquestionably applicable to disability cases that are heard before ALJs, because the statute, 42 U.S.C. § 405(b), requires disability decisions to be made “on the basis of evidence adduced at the hearing.” Unfairness may result when facts are noticed without precisely indicating the facts and their source. A quick remark by an ALJ that he takes official notice of avail- ability of jobs in the national economy that would be suitable for the claimant could be unfair for lack of suf- ficient specificity.“ The administrative notice taken here was procedurally invalid because there was not even a “quick remark” at the hearing, there was nothing said at the hearing af a// about administrative notice which was, then, procedurally im- proper by reason of 5 U.S.C. § 556(e) and the “evidence ad- duced at the hearing” requirement of 42 U.S.C. § 405(b). The possibility that plaintiff can submit a rebuttal affida- vit on appeal in the Appeals Council does not change the result. The statute states that the decision must be based on evidence “adduced at the hearing’*°—it does not say on appeal—and it is inconceivable that in passing 5 U.S.C. § 556(e) Congress meant that the rebuttal evidence should be first offered on appeal. Similarly, the right of the claimant to rebut the underly- ing findings of actual fact** (¢.9., age) is not the same as the opportunity to rebut the administratively-noticed ulti- mate fact, namely, the vocational! ability of plaintiff to per- 4 White v. Harris, 605 F.2d 867, 870 (Sth Cir. 1979), quoting K. DAVIS, ADMINISTRATIVE LAW § 15.11 (Supp. 1978). Accord, Fruge v. Harris, F.2d (5th Cir. Dee. 4, 1980) (No. 80-3476). #542 U.S.C. § 405). #6 20 C.F_R. § 404.1513, Subpart P, App. 2, § 200.00(a). 82a form certain jobs. That administratively-noticed ultimate fact is irrebuttable under the grid. Accordingly, use of the grid does not constitute the req- uisite rebuttal. VIL. Propriety of Remand. The Social Security Disabili- ty Amendments of !980*7 amend 42 U.S.C. § 405(g) to pro- vide that: The Court ... may at any time order additional evi- dence to be taken before the Secretary, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorpo- rate such evidence into the record in a prior proceed- ing.** A fair reading of the statute indicates that it pertains only to remands to allow the plaintiff to offer additional testimony; it does not say so, however. If the Court decides not to simply enter judgment in favor of plaintiff and if the statute does apply to remands to allow the Secretary to of- fer additional testimony, the statute does not forbid re- mand here because: A. “there is new evidence which is material,” namely, there should be vocational testimony, and; B. “there is good cause for the failure to incorporate such evidence into the record in prior proceeding,” namely, reli- ance by the ALJ upon an existing regulation. CONCLUSION When the ALJ found that plaintiff was unable to perform his former job, the burden shifted to the Secretary to prove his defense, namely, thai plaintiff was able to do other work in the economy. The Secretary failed to carry his bur- den on rebuttal because: 1. There was no vocational testimony explaining what type work plaintiff could do, given his limitations; 2. No vocational evidence outside the grid was adminis- tratively noticed even assuming that such a procedure would be valid; *7 Pub. L. No. 96-265, 49 U.S.L.W. 7 (July 15, 1980). Id. at § 307. 83a 3. The grid cannot serve as the requisite rebuttal testi- mony because: A. the reguiation precluding plaintiff's adducing contrary rebuttal employment evidence at the hearing violates 5 U.S.C. § 5956(e) in that it was improperly conclusive administrative notice, and; B. the administrative notice taken violated 42 U.S.C. § 405(b)’s “adduced at the hearing” requirement and 5 U.S.C. § 556(e) because the ALJ did not even mention at the hearing that he was administratively noticing anything. Accordingly, this case must be remanded to give the Sec- retary an opportunity to offer valid evidence contrary to plaintiff's prima facie case, or if none, to award benefits to plaintiff. DONE this 26th day of January, 1981. /s/ Davip A. BAGWELL United States Magistrate 84a IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION Civil Action No: 80-0651-H FRED SOESBE, PLAINTIFF v. RICHARD SCHWEIKER, Secretary of Department of Health and Human Services, DEFENDANT. ORDER AND JUDGMENT After due and proper consideration, and upon the recom- mendation of the Magistrate, which is adopted as the opin- ion of this Court, it is ORDERED, ADJUDGED and DE- CREED that the Administrative determination be and is hereby VACATED and REVERSED, that judgment be and is hereby ENTERED in favor of Plaintiff, that this cause be REMANDED to the Secretary of Health and Hu- man Resources for Administrative action in conformity with this judgment. DONE this 24th day of March, 1981. /s/ W. B. HAND UNITED STATES DISTRICT JUDGE U.S. District COURT Sou. Dist. ALA. FILED AND EXAMINED THIS THE 24th Day of March 1981 Minute Entry No. 52,476 William J. O'Connor, Clerk By G. Walter Deputy Clerk 85a IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION Civil Action No. 80-0651-H FRED SOESBY, PLAINTIFF v. RICHARD SCHWEIKER, Secretary of Department of Health and Human Services, DEFENDANT. RECOMMENDATION OF MAGISTRATE Plaintiff filed suit in this court as provided by 42 U.S.C. § 405(g) for review of an adverse decision of the Adminis- trative Law Judge |“ALJ”| on a Social Security claim. The Court referred the case to the Magistrate for preliminary review of the administrative record! and recommendation. Congress provided that in such a case the Court shall have power to enter judgment upon the pleadings and tran- script, or to remand the case. 42 U.S.C. § 405(g). I. Procedural History. On August 1, 1977, plaintiff filed a claim with the Social Security Administration seeking an entitlement to a “period of disability” under 42 U.S.C. § 416(i) and Social Security Disability insurance benefits as provided by 42 U.S.C. § 423. The applications were denied initially and on reconsideration. A hearing before an ALJ was requested and scheduled but both plaintiff and his at- torney failed to appear at the hearing. The ALJ found that the plaintiff did not show good cause for failure to appear at the hearing and dismissed the request for the hearing. The Appeals Council affirmed the decision of the ALJ and no further action was taken. On February 8, 1979, plaintiff filed a second set of appli- cations which were denied initially and on reconsideration. On March 17, 1980, plaintiff filed an application for Supple- mental Security Income pursuant to 42 U.S.C. 128 U.S.C. § 636(b)(3); Mathews v. Weber, 423 U.S. 261 (1976). Sta § 1381-1383(c) and it was denied initially and on reconsideration. On April 24, 1980, the ALJ held a 68 minute hearing at which the plaintiff was represented by an attorney, and the plaintiff, two witnesses and a vocational expert testified. The ALJ denied the claim, finding in substance that: 1. Claimant met the threshold requirements; 2. Claimant had the following impairments: a. hypertension that caused numbness, pain in the left shoulder, neck, arm and hand, and b. visual disturbances; 3. Claimant’s allegation of severe disabling pain and dis- comfort due to his alleged impairments was not credible; 4. Claimant’s impairments did not prevent him from per- forming work which did not require heavy lifting; 5. Claimant was unable to perform his past relevant work as maintenance and automobile mechanic which was moder- ate to heavy; 6. Claimant had the residual functional capacity for sed- entary work; 7. Claimant was 52 years old which was defined as closely approaching advanced age; 8. Claimant had a limited education (eleventh grade); 9. Claimant’s work as a mechanic imparted skills which were transferable to work other than that previously performed; 10. Regulations directed that the claimant, considering his maximum sustained work capability, age, education and work experience, be found “not disabled”; 11. Claimant was “ot under a “disability” as defined by the Act. The Appeals Council refused the request to review the decision of the ALJ and plaintiff thereupon sought review in this Court of the decision of the ALJ, the final adminis- trative decision. II. Evidence of Record. A. Employment Background. Plaintiff is a 58-year old married man with an eleventh grade education. He worked as a maintenance mechanic in the textile industry from 1961 until 1977 and, prior to that, from 1948 until 1961, he 87a worked as an auto mechanic. He receives $100 a month from an insurance policy, his wife receives a small amount of money from baby sitting, and they receive food stamps.? B. Alleged Medical Problems. Plaintiff claims that he became disabled on June 24, 1977, because of hypertension which causes visual disturbances, urinary complications, loss of equilibrium, dizziness and fainting.* C. Medical Evidence. The medical records reveal that plaintiff was admitted to the Baptist Hospital in Pensacola on July 22, 1975, by Dr. F. D. Kimbell, a neurologist. Plaintiff was admitted because of numbness on the left side of his body, trouble with the use of the left side of his body, and pain in his left neck, shoulder and arm. Plaintiff also complained of numbness and weakness in his left hand which affected his writing (plaintiff is left-handed). Plaintiff stated that three months earlier he had been doing some heavy lifting at work when he felt something pull in the back of his neck and shoulder. He was treated for this by Dr. Marvin Taylor, a general surgeon in Foley. Dr. Kimbell noted that he had previously seen the plaintiff in 1972 with left-sided visual scotomata (an area of depressed vision within the visual field surrounded by an area of normal vi- sion) and left sided numbness associated with hypertension. On examination, plaintiff's chest x-ray, ¢-spine and myelogram were all within normal limits. He was treated conservatively with traction, physiotherapy, deep heat therapy and analgesics with rather striking improvements of symptoms. Plaintiff was discharged on July 26, 1975, with the diagnoses of cervical myositis (inflammation of a voluntary muscle of the neck), chronic hypertension and vascular migraine disorder. Dr. Kimbell saw the plaintiff on August 1, 1975, with epi- sodes of visual blurring, and recommended that plaintiff have his eyes and glasses checked. Plaintiff was seen again on August 26, 1975, with complaints of severe pain in the left neck, shoulder and arm which radiated into his left hand. Plaintiff stated that he had gone back to work but 2 Record at 26-8, 177. ® Jd. at 156. 4 Jd. at 114-15. 88a simply could not handle the work because he had to write and had significant responsibility. Dr. Taylor was treating him for high blood pressure and Dr. Kimbell did not think surgical treatment was necessary. On the plaintiffs re- quest, Dr. Kimbell prescribed cervical traction for home use.® On September 5, 1975, Dr. John Axley, a neurologist in Pensacola who had seen the plaintiff on a referral from Dr. Kimbell, wrote that his impressions were cervical arthritis, cervical neuralgia (paroxysmal pain which extends along the course of one or more nerves), pain in the left neck and shoulder secondary to the arthritis and with apparent weakness relating to the neuralgia, tingling of the left third and fourth fingers, significant hypertension, and possibly early left hemiplegia (paralysis of one side of the body).® Plaintiff was admitted to the South Baldwin Hospital in Foley by Dr. Taylor on February 5, 1977, with complaints of intermittent episodes of sharp left groin and left lower quadrant abdominal pain. Plaintiff also complained of nau- sea, hematuria (blood in the urine), and slight dysuria (painful or difficult urination). Dr. Taylor stated that plain- tiffs condition was complicated by his history of hyperten- sion. Examination revealed left renal lithiasis (kidney stone) with spontaneous expulsion. Plaintiff was treated with diet, rest, observation and medication and was dis- charged on February 14, 1977.7 On July 13, 1977, Dr. Taylor wrote that the plaintiff was “unable to work—severe hypertension and cervical neural- gia.”® Dr. C.R. Barksdale, an internist in Fairhope, reported to the Disability Determination Unit that he had examined the plaintiff on November 3, 1977, with complaints of loss of vision and dizziness. Plaintiff stated that his problems are worse with stress or strain and that he had had no problems since he stopped working. Dr. Barksdale stated that plaintiff had a major problem with high blood pressure 5 Jd. at 110-11. ® Id. at 106-07. 7 Id. at 125, 132. * Id. at 142. 89a for which he has been on medication for five years. Dr. Barksdale summarized that plaintiff had some neurologic symptomatology which seemed to be a type of migraine sit- uation and that he had chronic myositis which was compati- ble with the changes on his cervical spine x-rays. Dr. Barksdale stated that he did not find any joint or back im- pairments or genito-urinary impairments.® On April 11, 1978, plaintiff was admitted to the South Baldwin Hospital with a history of shortness of breath and left anterior chest pain. An immediate examination in the emergency room indicated hypertension. Plaintiff also com- plained of pain in the left arm and left side of the neck. Fol- lowing examination and evaluation, Dr. Taylor diagnosed hypertensive cardiovascular disease with angina pectoris and stated that plaintiff's condition was complicated by dys- pepsia (impairment of the power or function of digestion, usually applied to epigastric discomfort following meals). Plaintiff was treated with rest, diet and medication and was discharged on April 14, 1978.'° Plaintiff was admitted to the South Baldwin Hospital on August 8, 1978, with a history of sudden onset of severe pain of the left flank radiating to the scrotum and accom- panied by nausea. Diagnosis was left renal lithiasis which was expelled spontaneously. Plaintiff was discharged on August 9, 1978, with instructions for a low salt diet." On October 8, 1978, plaintiff was again admitted to the South Baldwin Hospital with a diagnosis of renal lithiasis and two small stones were expelled several hours after ad- mission. Dr. Taylor stated that plaintiff's condition was complicated by hypertensive cardiovascular disease. Plain- tiff was discharged on October 9, 1978. '? On May 14, 1979, plaintiff was examined by Dr. Gordon Spafford, a family practitioner in Mobile, at the request of the Disability Determination Unit. Dr. Spafford reported that the plaintiff's chief complaint was pain located in the left chest area radiating into the left arm, which he said * Id. at 133-34. © Td. at 207, 209. 1 Jd. at 218, 222. 12 Jd. at 224-25. 90a was difficult to evaluate because he could find no objective abnormalities. Dr. Spafford stated that the plaintiff's blood pressure was slightly elevated and that plaintiff had a long history of hypertension. Plaintiff told Dr. Spafford that his other problems were episodes of dizziness, some urinary in- continence, impotence, and arthritis in the right knee."® Dr. Spafford completed a “Physical Capacities Evalua- tion” form indicating that in his opinion plaintiff could be expected to lift and/or carry twenty pounds occasionally to ten pounds frequently; stand and walk six or more hours in a normal work day; and sit and work as much as six out of eight hours a day. Dr. Spafford restricted the plaintiff from pushing and pulling movements, climbing and balancing, operating motor vehicles and working with or around haz- ardous machinery because of recurrent episodes of verti- go." Dr. Barksdale wrote to the Disability Determination Unit that he examined the plaintiff on February 8, 1980, with multiple complaints. Plaintiff stated that his main problem was that his left arm was numb and became painful when he tried to use it. He also has problems with his left leg. Plaintiff said that the use of a neck brace had relieved a great deal of the problem but that he had never been given a reason for the numbness in his leg and arm. Plaintiff said he had shortness of breath on exertion and stated that he had passed out twice in the past, usually preceded by dizzy spells. Plaintiff said that he had been told that he had high blood pressure for which he was on medication. Dr. Barksdale summarized that plaintiff had rather severe hy- pertension, but that he could find no evidence of peripheral vascular disease, no documented pulmonary impairment, and no significant neurological findings. Dr. Barksdale stat- ed that plaintiff had very little disease that could be docu- mented with the exception of the cervical spine disease which he had documented in 1$77, and which continued to be plaintiff's main problem as a cause of his 9la Dr. Barksdale completed a “Physical Capacities Evalua- tion” form indicating that in his opinion plaintiff could be expected to lift and/or carry ten pounds or less frequently; stand and walk six or more hours in a normal work day; and sit and work as much as six out of eight hours a day. Dr. Barksdale restricted the plaintiff from climbing and balanc- ing because of severe hypertension. '® D. Plaintiffs Testimony. Plaintiff testified that he started having problems with his left hand and arm in 1975, and that his condition has gotten worse since then. He has lost much of the use his left hand and, without medication, he has constant pain. Plaintiff can do some walking (maybe a hundred yards or so) before he gets out of breath. Sitting does not generally bother him but he does tire easily. Sometimes when he stands, he gets numbness in his legs. He has chest pain five out of seven days for which he takes nitroglycerin when the pain is severe. Plaintiff has prob- lems with shortness of breath and wheezing at night and has “spells” which occur mostly in the daytime. When he has a spell, he has nausea, dizziness, and loss of vision in the left eye and “can’t tell whether he is up or down.” The spells usually begin when he exerts himself or is under a strain. If he tried to mow the lawn, that would probably bring on a spell. He has different degrees of spells and when he has a bad one, he goes to the emergency room at the hospital or to the doctor’s ofice where he gets a shot and rests until he feels better. In a normal day, plaintiff said that he sits around the house and tries to breathe. Fishing was his only hobby but he hasn't fished in two years because of the pain in his arm, shoulder neck and chest. When he quit working in 1977, it was because his doctor told him he should not try to work anymore."? E. Witnesses. 1. Diann Soesbe Cain, the plaintiff's daughter and a reg- istered nurse, testified that since 1977 her father’s symp- toms have progressed in that he has more blurred vision, dizziness, loss of equilibrium, and shortness of breath. His "© Id. at 247. "7 Id. at 29-20, 34-9, 45-6. complaints of pain in the shoulder and arm have increased since 1977. Her father cannot sleep at mght and can walk only a short period of time before getting shortness of breath and dizziness. '* 2. Eva Soesbe, the plaintiffs wife, testified that her hus- band’s condition has gotien worse since July of 1977, and that the doctor cannot get her husband's blood pressure un- der control. She said the doctor has told her that her hus- band could have a heart attack at any time and that she should stay with him at all times.'’® 3. Roger C. DuMars, a professor of rehabilitation coun- seling at the University of South Alabama, testified as the vocational expert. He stated that the plaintiff's former jobs involved skilled labor and were moderate with respect to exertional requirements. He listed the plaintiff's transfera- ble job skills as the use of a wide variety of hand tools, abil- ity to keep records and make bills, ability to read blue prints, ability to supervise others, and ability to under- stand and use testing equipment.?° III. Applicable Law in General. The Social Security Act: sets forth a two-part test for determining “disability under the Act: First, there must be a “medically de terminable 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 twelve months....” 42 U.S.C. § 1382c(a)(3)(A). Second, this impairment must be so severe, that the claimant is “not only unable to do his previous work but cannot, considering his age, educa- tion, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether a specific job vacancy exists for him, or whether he would be hired if he ap- plied for work.”/d. § 1382c¢(a)(3)(B).?" If plaintiff shows that he cannot now perform his former job, the burden shifts to the Secretary to show that the claimant is able to perform other gainful work available in Id. at 50-2. [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1158%3A1. Public record. Not legal advice.