Petition for Writ of Certiorari — Schmidt v. Sullivan
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No.
Supreme Court, U.S,
FILED
MAY 10 1991
QFFICE OF THE CLERK
In The
UNITED STATES SUPREME COURT
October Term 1990
GEORGE W. SCHMIDT,
Petitioner,
VS.
LOUIS W. SULLIVAN, M_D.,
Secretary of Health and Human Services,
Respondent.
On Petition for Writ of Cerrtiorari to the United
States Court of Appeals for the Seventh Circuit
PETITION FOR WRIT OF CERTIORARI
FREDERICK J. DALEY
Counsel of Record
FREDERICK J. DALEY LTD.
727 S. Dearborn Street
Suite 613
Chicago, Illinois 60605
(312) 987-9807
Attorney for Petitioner
ASAP Wordprocessing, Inc., Chicago 60601, (312) 558-9333
ll
QUESTION PRESENTED FOR REVIEW
1. Whether, once the Court of Appeals found that Plaintiff
could no longer perform his past work, it was error of law for
the Appellate Court to hold, sua sponte, that Plaintiff could
perform the job of "cashier in a retail store," despite the fact
that the Social Security regulations shift the burden of proof at
this point to the Secretary to determine what work the Plaintiff
can do considering his residual functional capacity, age,
education, and work experience.
TABLE OF CONTENTS
Page
QUESTION PRESENTED FOR REVIEW ..... i
SORE SF SPUUOUUU Sc Se cc eee sae saaas ii
FABLE OF AUTHIORITIES 2... ccc ccc ceces ili
ADMINISTRATIVE AND COURT
EL, 5s k's 6 4 le ba O68 Wa ON 4 Ae ee 1
nn EEOC TEER EPEC Te eS 2
STATUTES UNDER REVIEW ............. 3
STATEMENT OF THE CASE . ww... cc cece. 7
os eee er or 9
SEN 06s 0c ccisxtad uedeee nee 19
MR gk os So ec eee App. 1
TABLE OF AUTHORITIES
Cases Page
Bradshaw v. Heckler,
maw re wee cee Gt. 1SB7) 2. ww we wee 14
Christensen v. Bowen,
633 F. Supp. 1214 (N.D. Ca. 1986) ......... 17
Hall v. Secretary of Health, Education & Welfare,
Oe bums bare coe Ge. I979) 2 ww ees 17-18
Heckler v. Campbell, 461 U.S. 458, 103 S. Ct. 1952,
eee 9, 10
Kirk v. Secretary of Health and Human Services,
ey mame wae Coe GC, POSE) 2... wc cee 14
Kuwahara v. Sullivan,
677 F. Supp. 553 (N.D. Ill. 1988) .......... 13
Lanning v. Heckler,
ee Re Ga, BPD ww es 14
Lichter v. Bowen,
ae ae Ge Gye Get. ISBT) ww. ww ees 13
McNeil v. Califano,
Soe wume eee (rem Cer. ISBD) 2... 0. ees 10
O’Banner v. Secretary of Health, Education & Welfare,
mre mums mee Cem CO. ESTE) 2... ww eee 14
Rhoderick v. Heckler,
a 10
iv
Richardson v. Perales, 402 U.S. 410, 91 S. Ct. 1420,
Se Rees AD COED wives cece cccrcsess 10
Schmidt v. Sullivan, 914 F.2d 117
ole fo eee ee 1, 8, 12, 13, 15-17, 18
Smith v. Schweiker,
Gee ee ae I GG, BOD nc ccc cene 10, 15
Strittmatter v. Schweiker,
Van wane wer Cree Gm. TOPE) on www ccc ce 11
Terry v. Sullivan,
oe eee. Pe err 16
Tom v. Heckler,
roe BR Pe le a.) ree 10, 16
Walker v. Bowen,
S34 F.2d 635 (7th Cir. 1987) ............. 14
Warmoth v. Bowen,
oe F268 1969 (rm Cir. 1966) . 2... wc cee 10
Yuckert v. Bowen, 482 U.S. 137, 107 S. Ct. 2287,
Ee 8, ee er ee 10
STATUTES
ee LE ee ee eee ee 2
ee Mes SD EE nh os cece eeasndeccaca 1,8
GE Wits EOD vc cect ccivscance 9
Oe Cees GON UD Ga bce N ose ceeunews 14, 18
Vv
REGULATIONS
20 C.F.R. Section 404.1520 (a)-(f) ............ 7)
ropes ee 11
20 C.F.R. Section 404.1563 (d) .............. 13, 16
ae COP. Becta GOR ISES 4 ww ccc enee 12, 13, 14
20 CFR. Sectiom GOGISGHa) ow ccc ccc cee 11
20 C.F.R. Part 404, Subpart P, Reg. No. 4,
PE Ries hs NG as ba weea ke ease eee oak 10
20 C.F.R. Part 404, Subpart P, Reg. No. 4,
Appendix 2........... 9, 10, 11, 13, 15, 16, 17
ee Gr Ce GU es we ct enesese xs 13
RULINGS
SSR 82-41 (Cumulative Edition 1982) .......... 12, 16
SSR 83-10 (Cumulative Edition 1983) .......... 11
SSR 83-13 (Cumulative Edition 1983) .......... 13, 14
MISCELLANEOUS
U.S. Department of Labor, Selected Characteristics
of Occupations Defined in the Dictionary of
ae | ee ee 12
ike
ADMINISTRATIVE AND COURT DECISIONS
On January 29, 1988, Administrative Law Judge John L.
Mondi issued a written decision on Plaintiff's disability applica-
tion under Title II of the Social Security Act, finding Plaintiff
not disabled. Plaintiff requested review of the hearing decision
with the Secretary’s Appeals Council. On May 19, 1988, the
Appeals Council affirmed the decision of the ALJ causing it to
become the final administrative decision. Plaintiff thereafter
commenced an action in the United States District Court for
the Northern District of Illinois for judicial review of the
Secretary’s final decision. Plaintiff and the Secretary filed
cross-motions for Summary Judgment. On May 19, 1989, U. S.
District Judge James F. Holderman denied Plaintiff's Motion
for Summary Judgment and affirmed the decision of the
Secretary of Health and Human Services. On June 5, 1989,
Plaintiff filed a Motion to Alter or Amend Judgment pursuant
to Rule 59(e) of the Federal Rules of Civil Procedure.
Plaintiffs motion was denied on October 19, 1989.
Thereafter on December 22, 1989, Plaintiff filed an appeal
of the order affirming the Secretary’s denial of benefits with
the Seventh Circuit Court of Appeals pursuant to 28 U.S.C.
Section 1291. The Court dismissed the appeal because it was
filed after 60 days had expired. Plaintiff filed a motion with
the U. S. District Court explaining that he included 3 days for
mailing the decision in calculating the time to appeal pursuant
to Rule 6 (e) of the Federal Rules of Civil Procedure. Judge
Holderman found that this inadvertent error on Plaintiff's part
constituted “excusable neglect" and granted a three day
extension of time to file a notice of appeal. Plaintiffs Notice
of Appeal was therefore filed on December 22, 1989, in
accordance with Rules 4(a) and (d) of the Federal Rules of
Appellate Procedure. In a published opinion dated October 1,
1990, the Seventh Circuit affirmed the District Court’s decision.
Schmidt v. Sullivan, 914 F.2d 117 (7th Cir. 1990), Appendix, at
2.
1. Plaintiff filed a timely Petition for Rehearing with Sugges-
tion for Rehearing Jn Banc on October 15, 1990. The Seventh
Circuit denied this Petition on December 11, 1990.
JURISDICTION
Plaintiff seeks to have this Court review the Circuit Court's
final order of October 1, 1990, which affirmed the District
Court’s decision affirming the Secretary’s denial of social
security disability benefits. Plaintiff filed a timely Petition for
Rehearing with Suggestion for Rehearing Jn Banc. This
Petition was denied on December 11, 1990. On February 26,
1991, Plaintiff requested an extension of time to file his
Petition for Writ of Certiorari until May 10, 1991. The request
for an extension was granted by this Court in an Order dated
March 5, 1991. Petitioner brings this Petition pursuant to 28
U.S.C. Section 1254(1).
Section 205(g) of the Social Security Act, 42 U.S.C.
Section 405 (g) states:
Any individual, after any final decision of the Secretary
made after a hearing to which he was a party, irrespective
of the amount in controversy, may obtain a review of such
decision by a civil action commended within sixty days after
the mailing to him of a notice of such decision or within
such further time as the Secretary may allow. Such action
shall be brought in the district court of the United States
for the judicial district in which the plaintiff resides, or has
his principal place of business, or, if he does not reside or
have his principal place of business within any judicial
district, in the District Court of the United States for the
District of Columbia. As part of his answer the Secretary
shall file a certified copy of the record including the
evidence upon which the findings and decision complained
of are based. The court shall have power to enter, upon
the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the
Secretary with or without remanding the cause for a
rehearing. The findings of the Secretary as to any fact, if
supported by substantial evidence, shall be conclusive...
The Social Security Act, 42 U.S.C. Section 423(d)(1)(A)
and (2)(A) and (B), provides:
(1) The term "disability" means -
(A) inability to engage in any substantial gainful
activity by reason of any medically determinable
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 12 months;
a
(2) For purposes of paragraph (1)(A) -
(A) An individual shall be determined to be under a
disability only if his physical or mental impairment or
impairments are of such severity that he is not only
unable to do his previous work but cannot, considering
his age, education 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.
For purposes of the preceding sentence (with respect
to any individual), "work which exists in the national
economy" means work which exists in significant
numbers either in the region where such individual
lives or in several regions of the country.
(B) In determining whether an individual’s physical or
mental impairment or impairments are of a sufficient
medical severity that such impairment or impairments
could be the basis of eligibility under this section, the
Secretary shall consider the combined effect of all of
the individual’s impairments without regard to whether
any such impairment, if considered separately, would
be of such severity. If the Secretary does find a
medically severe combination of impairments, the
combined impact of the impairments shall be
considered throughout the disability determination
process.
The Secretary’s regulations at 20 C.F.R. Section 404.1520
(a)-(f) provide:
(a) Steps in evaluating disability.
We consider all material facts to determine
whether you are disabled. If you are doing substantial
gainful activity, we will determine that you are not
disabled. If your are not doing substantial gainful
, 4
activity, we will first consider your physical or mental
impairment(s). Your impairment(s) must be severe
and meet the duration requirement before we can find
you to be disabled. We follow a set order to
determine whether you are disabled. We review any
current work activity, the severity of your
impairment(s), your residual functional capacity and
your age, education and work experience. If we can
find that you are disabled or not disabled at any point
in the review, we do not review further.
(b) If you are working.
If you are working and the work you are doing is
substantial gainful activity, we will find that you are
not disabled regardless of your medical condition or
your age, education, and work experience.
(c) You must have a severe impairment.
If you do not have any impairment or combination
of impairments which significantly limits your physical
or mental ability to do basic work activities, we will
find that you do not have a severe impairment and
are, therefore, not disabled. We will consider your
age, education, and work experience. However, it is
possible for you to have a period of disability for atime
in the past even though you do not now have a severe
impairment.
(d) When your impairment(s) meets or equals a listed
impairment in Appendix 1.
If you have an impairment(s) which meets the
duration requirement and is listed in Appendix 1 or is
equal to a listed impairment(s), we will find you
disabled without considering your age, education, and
work experience.
(e) Your impairment(s) must prevent you from doing
past relevant work.
-6-
If we cannot make a decision based on your
current work activity or on medical facts alone, and
you have a severe impairment(s), we then review your
residual functional capacity and the physical and
mental demands of the work you have done in the
past. If you can still do this kind of work, we will find
that you are not disabled.
(f) Your impairment(s) must prevent you from doing
any other work.
(1) If you cannot do any work you have done in
the past because you have a severe impairment(s), we
will consider your residual functional capacity and your
age, education, and past work experience to see if you
can do other work. If you cannot, we will find you
disabled.
a, 3
STATEMENT OF THE CASE
Plaintiff applied for social security disability insurance
benefits under sections 223 and 216(i) of the Social Security
Act on October 17, 1986, alleging disability since March 28,
1986, due to a cardiac condition, hypertension, and a blocked
carotid artery. This application was denied initially and upon
reconsideration. Plaintiff requested a hearing which was held
before Administrative Law Judge ("ALJ") John L. Mondi on
October 8, 1987. In addition to the Plaintiff, a Vocational
Expert ("VE"), Susan Entenberg, was called upon to testify at
the request of the ALJ.
Plaintiff testified that he was born on April 25, 1925 and
was 62 years of age at the time of the hearing. Until 1986,
Plaintif* held high-level executive positions with a variety of
companies. In 1977, Plaintiff suffered a myocardial infarction.
He had two lengthy stints with Montgomery Wards, eventually
working as a Senior Vice President in charge of over one
hundred retail outlets. His job was very stressful and required
working up to sixty hours a week. Plaintiff was experiencing
frequent episodes of angina and he testified that he was unable
to keep up with the demands of executive management. After
leaving Wards, he served as President of a Wick’s Furniture
subsidiary from January through November 1982, working up
to fifty hours a week. In order to slow down his work pace,
Plaintiff opened his own consulting firm which proved to be
very successful. However, on March 29, 1986, Plaintiff suffered
a transient cerebral ischemic attack ("TIA") and _ his
deteriorating health caused him to stop working.
On January 29, 1988, the ALJ denied Plaintiff's claim for
benefits, finding Plaintiff could return to his past relevant work
as a corporate executive. (Hearing Decision, Appendix, at 24).
Plaintiff filed a Request to Review Hearing Decision with the
Appeals Council and on May 19, 1988, the Appeals Council
denied the request, causing the ALJ’s decision to become the
-8-
final decision of the Secretary. Plaintiff then filed a Complaint
requesting judicial review in the District Court for the
Northern District of Illinois, Eastern Division, on June 7, 1988.
On May 19, 1989, Judge James F. Holderman denied Plaintiff's
Motion for Summary Judgment and affirmed the Secretary’s
denial of benefits. Schmidt v. Sullivan, 88 C 4964 (N.D. Iil.
1989). (Appendix, at 6). The District Court held that the
ALJ’s decision finding that Plaintiff could perform his past
work as a corporate executive was supported by substantial
evidence.
Thereafter Plaintiff filed an appeal of the Order affirming
the Secretary’s denial of benefits with the Seventh Circuit
Court of Appeals pursuant to 28 U.S.C. Section 1291. In a
decision dated October 1, 1990, the Seventh Circuit affirmed
the District Court and upheld the Secretary’s denial of disabili-
ty benefits. Schmidt v. Sullivan, 914 F.2d 117 (7th Cir. 1990).
(Appendix, at 1). However, in doing so, the Court reversed
the ALJ’s finding that Plaintiff could perform his past work as
a corporate executive. The Court held that the record
unequivocally showed that emotional stress precluded Plaintiff
from performing his past work because it provoked angina
pectoris. However, the Court then stated that Plaintiff could
perform "a variety of sedentary jobs, provided they are not
stressful." Schmidt v. Sullivan, supra, at 119. As an example
the Court named the job, sua sponte, of "cashier in a retail
store." Ibid. Plaintiff filed a timely Petition for Rehearing
with Suggestion for Rehearing Jn Banc and a supporting
memorandum arguing that at the fifth step of the Secretary’s
sequential evaluation, Plaintiff must be found disabled.
Without further opinion the Court of Appeals denied the
motion on December 11, 1990.
Plaintiff asserts that the Appellate Court’s finding that
Plaintiff cannot perform his past work requires, as a matter of
law, that the case be remanded for the next step in the
sequential evaluation. This case warrants review by this Court
under Supreme Court Rule 10.1 (a) and (c). The Circuit
Court’s decision departs greatly from the manner in which the
Secretary applies his own regulations and rulings, which shifts
the burden of proof from the claimant to the Secretary at Step
5 of the "sequential analysis." It also conflicts with this Court’s
decision in Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952,
76 L.Ed.2d 66 (1983), which upheld the Secretary’s Medical-
Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Reg.
No. 4, Appendix 2, ("Grid rules"). Moreover this decision,
which ignores the recognized application of Step 5, conflicts
with other circuit court decisions as well as cases within the
Seventh Circuit.
L The Circuit Court Misapplied the Secretary’s
Five Step “Sequential Analysis"
The Secretary is granted the statutory authority to
promulgate uniform standards, by regulation, to determine
when individuals are disabled. 42 U.S.C. Section 405(a) (1983).
In Heckler v. Campbell, this Court upheld the Secretary’s use
of the grid rules as a valid use of its rule-making authority.
Pursuant to this statutory authority, the Secretary has
prescribed a five-step sequential evaluation process for
determining disability. See 20 C.F.R. Section 404.1520(a)-(f).
First, the claimant must show that he is not performing
any substantial gainful activity ("SGA"). If the claimant is not
performing SGA, the second step requires the claimant to show
that his impairment is "severe." This severity test is a de
minimis one, requiring only a showing that the impairment
affects the claimant’s ability to perform past work more than
-10-
slightly. The de minimis standard has been upheld by the
Supreme Court in Yuckert v. Bowen, 482 U.S. 137, 107 S.Ct.
2287, 96 L.Ed.2d 119 (1987). If the impairment is more than
slight, the third step determines whether the impairment meets
or equals an impairment acknowledged by the Secretary as
being disabling. The Listing of Impairments is found at 20
C.F.R. Part 404, Subpart P, Reg. No. 4, Appendix 1. The
fourth step requires a determination as to whether the claimant
can return to his past work if the claimant’s impairment does
not meet or equal the step three listings. The claimant bears
the burden of showing that he can no longer perform his past
work. Rhoderick v. Heckler, 737 F.2d 714 (7th Cir. 1984). If
successful, the fifth and final step shifts the burden of proof to
the Secretary to establish that the claimant can perform other
work. Tom v Heckler, 779 F.2d 1250, 1252-53 (7th Cir. 1985);
McNeil v. Califano, 614 F.2d 142, 145 (7th Cir. 1980).
Ordinarily, the Secretary may refer to the Grid rules unless the
claimant suffers from a nonexertional impairment or
transferability of work skills is an issue. If so, the Secretary
must establish that, despite the claimant’s limitations, the
claimant can perform jobs which exist in significant numbers in
the national economy. Appendix 2, Section 200.00(c); Heckler
v. Campbell, supra, 461 U.S. at 462 n.S; Warmoth v. Bowen,
798 F.2d 1109 (7th Cir. 1986); Smith v. Schweiker, 735 F.2d
267 (7th Cir. 1984). The Secretary’s decision must be
supported by substantial evidence, that is, "such relevant
evidence as a reasonable mind might accept to support a
conclusion." Richardson v. Perales, 402 U.S. 401, 91 S.Ct. 1420,
28 L.Ed.2d 842 (1971).
In the present case the ALJ ended his inquiry at Step 4
when he found Plaintiff capable of performing his past work.
However, once the Seventh Circuit reversed the ALJ’s Step 4
finding, it was error for the Court to proceed to Step 5 rather
than remand to the Secretary for a de novo Step 5 determinati-
on as the law requires. As this Court noted in Heckler v.
Campbell, supra, 461 U.S. at 460-461, the regulations direct the
sh.
Secretary to consider the factors Congress has identified as
relevant: physical ability, age, education, and work experience.
The regulations state that the Secretary will inquire into
each of these factors and make an individualized assessment
of each claimant’s abilities and limitations. See 20 CFR
Sections 404.1545-404.1565 (1982); cf. 20 CFR Section
404.944. In determining a person’s physical ability, she will
consider, for example, the extent to which his capacity for
performing tasks such as lifting objects or his ability to
stand for long periods of time has been impaired. See
Section 404.1545.
Id. at 460-461, n.1. Thus the ALJ is required by regulation to
make a residual functional capacity ("RFC")' assessment in
order to ascertain the demands of claimant’s past work and to
compare these demands with the claimant’s present physical
abilities. See Strittmatter v. Schweiker, 729 F.2d 507, 509 (7th
Cir. 1974).
In the present case, the ALJ found at Step 4 that Plaintiff
could return to his past "sedentary" work.? The Court of
Appeals reversed the ALJ’s finding that Plaintiff could return
to his past work as a corporate executive but implicitly allowed
the ALJ’s comment, albeit "without elaboration,” that "[t]he
"Residual functional capacity is the maximum degree to which
the individual retains the capacity for sustained performance of the
physical-mental requirements of jobs. Appendix 2, Section 200.00(c);
20 C.F.R. Section 404.1545.
*Sedentary work involves lifting no more than 10 pounds at a
time and occasionally lifting or carrying small articles. While
sedentary jobs involve mostly sitting, walking and standing are
required occasionally. The definition of "occasionally" ranges from
very seldom to up to one-third of the time. Therefore, sedentary
work should not require standing or walking any more than about
two hours of an eight-hour workday and sitting should total
approximately six hours of the eight-hour workday. See 20 C.F.R.
404.1567(a) and Social Security Ruling 83-10 (Cumulative Edition
1983) at page 179.
-12-
vocational expert testified that he [Plaintiff] would have
transferable skills to somewhat less stressful jobs,” to satisfy the
Step 5 requirements. Schmidt at 119. The Court then
concluded, ipse dixit, that there must be sedentary low stress
jobs for educated claimants in their sixties and the Court
named the job of "cashier in a retail store" as an example of
such a job. The Court commented:
With support from the testimony given by a job expert, he
made a finding, although without elaboration, that Schmidt
could find employment in a less stressful white collar job.
There is little doubt that this is true.
Schmidt, at 119. Ironically, at bar, the VE’s testimony was not
supportive of a finding that Plaintiff could perform a variety of
sedentary jobs. At the hearing the VE testified that Plaintiff
has transferable skills but only to “lesser degrees of
management” and that stress is "inherent to management."
(Appendix, at page 37). No examples of low stress non-
managerial jobs were named by the VE, as they must to satisfy
Step 5 of the sequential evaluation. 20 C.F.R. Section
404.1566(e).
In reaching its decision the Court held that Plaintiff should
be capable of performing less stressful low-end work such as a
“cashier in a retail store." However, there is no such job
classification in the Dictionary of Occupational Titles as a
“cashier in a retail store.” A retail sales person is classified as
"light" in exertion and a "cashier" is classified as sedentary. See
U.S. Department of Labor, Selected Characteristics of Occupa-
tions Defined in the Dictionary of Occupational Titles (1981) at
pages 243 and 225, respectively. Even if Plaintiff has transfer-
able skills to a job in retail sales there must first be a finding
that he is capable of "light" exertion, a finding not made in this
case. See Social Security Ruling 82-41 at page 201, para. 4 a.
(Cumulative Edition 1982). While the job of "cashier" is
"sedentary" in exertion, in order to find Plaintiff not disabled
there must first be a finding, based upon testimony of a VE,
that Plaintiff has “highly marketable skills" that are “readily
«13.
transferable” to the job of cashier, also not done in this case.
20 C.F.R. 404.1563(d); Appendix 2, Sections 201.00(d), (e) and
(f). In fact the VE at the hearing testified that Plaintiff has
no transferable skills outside of management positions.
(Appendix, at page 41).
The ALJ’s failure to “elaborate,” that is, name the jobs an
individual with claimant’s profile can perform, is precisely the
error in this case. Schmidt, at 119. The ALJ opined that
Plaintiff could work at less stressful management jobs. The
ALJ may have intended this to be a Step 5 determination;
however there is no doubt that as a Step 5 finding, the ALJ’s
mere reference to other management jobs was inadequate for
two reasons. First, according to the VE, for a person with
Schmidt’s personality characteristics, even lower level
management jobs would be too stressful. (Appendix, at page
42). Second, the VE failed to cite the incidence of such jobs
in the economy, which is required by the regulations and
rulings.’ 20 C.F.R. Section 404.1566; SSR 83-13 (Cumulative
Edition 1983) at pages 195-96. More importantly for purposes
of this Petition, it appears that the Appellate Court rejected
the notion that Plaintiff could perform lesser level management
jobs based on his reaction to stress as provoking angina attacks
because the Court named non-managerial jobs, such as cashier,
as an example of a job that Schmidt could perform.
ELITE
A reviewing court has no authority to make decisions on
vocational issues ab initio. Commenting on this the court in
Kuwahara v. Sullivan, 677 F. Supp. 553, 562 (N.D. Ill. 1988)
held:
Appellate courts properly frown on efforts to take judicial
notice of the availability of jobs with specific vocational
requirements (Kirk, 667 F.2d at 536-37 n.7; Wilson v.
Once published, a Social Security Ruling ("SSR") is binding on
all components on the Social Security Administration in accordance
with Section 422.408 of the Social Security Regulations. Lichter v.
Bowen, ®14 F.2d 430, 434, n.S (7th Cir. 1987).
lai iat eeeeeelll
-14-
Califano, 617 F.2d 1050, 1053-54 (4th Cir. 1980)). This
court has no desire to play armchair vocational expert.
In Kirk v. Secretary of Health and Human Services, 667 F.2d
524, 537 n.7 (6th Cir. 1981), the court quoted O’Banner v.
Secretary of Health, Education & Welfare, 537 F.2d 321, 323
(6th Cir. 1978) in stating:
“The scope of review requires that there be something more
than mere intuition or conjecture by the administrative law
judge’ before he concludes that jobs are available. This
same line of reasoning applies to the Appellate Court in
this case.
The decision at bar departs and conflicts not only with
longstanding decisions from other circuits but the Seventh
Circuit as well. In Walker v. Bowen, 834 F.2d 635, 640 n.3
(7th Cir. 1987), the Seventh Circuit stated: "This burden of
shifting at Step 5 is not statutory, ‘but is a long standing
judicial gloss on the Social Security Act.” The Eighth Circuit
has reaffirmed its position on this issue on a number of
occasions, see, e.g., Bradshaw v. Heckler, 810 F.2d 786, 789 (8th
Cir. 1987); Lanning v. Heckler, 777 F.2d 1316, 1316-17 (8th
Cir. 1985). Therefore, allowing Schmidt to stand as decided
departs greatly from established precedent as well as the
Secretary’s own regulations.
In its decision, the Seventh Circuit did not consider the
law applicable to Step 5 of the sequential analysis, which
requires VE testimony regarding transferability of the claimant’s
skills, consideration of the nonexertional impairment and the
incidence of jobs, if any, the claimant can perform. 20 C.F.R.
Section 404.1566 (d); SSR 83-13 (Cumulative Edition 1983) at
pages 195-96. The law is clear, a reviewing court may not go
outside of the record and name jobs a claimant may transfer to
sua sponte. 42 U.S.C. Section 405(g).
-15-
| IL A Significant Nonexertional Impairment
| Requires An Individualized Assessment
By naming a sedentary low-end job it believed Plaintiff
could perform, the Seventh Circuit recognized this case
required an individualized assessment rather than application of
the Grid rules at Step 5. Appendix 2, Section 200.00(e)(2).
In Smith v. Schweiker, supra, at 271, the Seventh Circuit stated:
The purpose of the Guidelines is to facilitate establishing
that there are a substantial number of jobs in the economy
which a person with the impaired capacity (and other
characteristics) can perform. It seems obvious that the
smaller the range of sedentary jobs a person is physically
able to perform, the less valid the proposition that the
Guidelines reflect a substantial number of jobs the person
can perform.
At bar, the Court focused primarily on Plaintiff's nonexert-
ional stress in making its determination. The Court noted that
the medical evidence demonstrating that Plaintiff suffered
angina pain from emotional stress was uncontradicted in the
record. The Court held:
Attacks of angina pectoris-the chest pains that are the
symptoms of coronary artery disease-can be brought on by
psychological stress as well as by physical exertion, The
Heart: Arteries and Veins 1174 (Hurst, et al., eds. 1978),
and people’s sensitivity to different forms of strain differs.
Id. Moreover, “angina pectoris provoked by emotional
tension will sometimes last longer than angina pectoris
provoked by effort because one cannot control emotions as
easily as one can control physical activity." Id. at 1175.
Apparently Mr. Schmidt reacts worse to the kind of
psychological stress that he experienced when he held
responsible managerial positions than he does to the
physical exertion involved in a slow game of handball. So
at least the evidence of his treating physician indicates, and
there is no contrary evidence. The award of benefits to a
person disabled because the emotional stress of working
tiene
-16-
would exacerbate his heart condition would not even be novel.
Stewart v. Heckler, 730 F.2d 1065 (6th Cir. 1984).
Schmidt, supra, at 118-19.
Thus the Court held that the unequivocal medical evidence
demonstrated that Plaintiff experienced angina pain from
emotional stress. The Court reversed the ALJ’s finding that
Plaintiff could perform his past work due to emotional stress,
making clear that Plaintiff has a significant nonexertional
impairment. This finding alone requires an individualized
assessment under the Medical-Vocational Guidelines. See
Appendix 2, Section 200.00(e)(1) and (2). Accordingly, under
the law, it becomes incumbent upon the Secretary, not the
Court, to produce evidence of sedentary jobs Plaintiff can
perform that exist in significant numbers.
III. Vocational Testimony Identifying Plaintiffs
Transferable Skills and Giving the Incidence
of Other Jobs He Could Perform are Critical
Components of a Step 5 Determination.
Social Security Ruling 82-41 requires the assistance of a
VE to determine whether Plaintiff has transferable skills to
other types of employment. The Ruling provides:
When a finding is made that a claimant has transferable
skills, the acquired work skills must be identified, and
specific occupations to which the acquired work skills are
transferable must be cited in the .. ALJ’s decision.
Id. at page 204, para. 6. In Plaintiffs case, the regulations
require a person of advanced age to have skills that are
"readily" transferable and “highly marketable" to jobs at the
skilled or semi-skilled levels. Skills which are readily transfer-
able or highly marketable require "very little, if any, vocational
adjustment. . .in terms of tools, work processes, work settings,
or the industry." Appendix 2, Sections 201.00(d), (e) and (f):
20 C.F.R. Section 404.1563(d). See also Tom v. Heckler, 779
F.2d 1250, 1255 (7th Cir. 1985) and Terry v. Sullivan, 903 F.2d
1273, 1275 (9th Cir. 1990).
x, 3
Social Security Ruling 82-41 also requires that medical
factors shall be considered when making decisions involving
transferability of skills:
All functional limitations included in the RFC (exertional
and nonexertional) must be considered in determining
transferability ... These factors [nonexertional] as well as the
general capacity to perform a broad category of work (e.g.
sedentary, light or medium) must be considered in assessing
whether or not a claimant has transferable work skills.
Id. at page 202, para. 4 b.
In its decision, the Seventh Circuit did not consider the
law applicable to Step 5 of the sequential analysis which
requires that jobs must first be identified by a vocational expert
for a proper Step 5 determination. This same scenario
occurred in Christensen v. Bowen, 633 F. Supp. 1214, 1221-22
(N.D. Ca. 1986). The court held:
In his memorandum decision, the ALJ found that, ‘[w]hile
ihe claimant’s depressive symptoms might be exacerbated by
a return to the level of responsibilities and pressures
involved in his most recent work for Sears, he could
perform other supervisory, managerial, or even lower level
work without the unusually high level of stresses and
pressures in his past work.’
Reversing the ALJ’s decision, the court commented:
Such a generalized finding, however, does not satisfy the
requirement, under the law of this Circuit, that the
Secretary make specific findings showing that there is other
substantial activity that the claimant can perform.
Id. at 1222. The court referred to the decision in Hail v.
Secretary of Health, Education & Welfare, 602 F.2d 1372, 1377
(9th Cir. 1979) wherein the Ninth Circuit opined that a VE,
not the ALJ, must testify to the incidence of jobs:
It is incumbent on the Secretary at a minimum, to come
forward with specific findings showing that the claimant
has the physical and mental capacity to perform specified
a
-18-
jobs, taking into consideration the requirements of the job
as well as the claimant’s age, education and background
(emphasis in the original).
This same rationale applies to the reviewing court, which must
render a decision on the record and not make de novo findings.
42 U.S.C. Section 405(g).
In the present case, the record did not contain evidence of
jobs that Plaintiff could be reasonably expected to transfer to
at his age and with his work experience and RFC.
Transferring to other jobs was not at issue on review. Only
the step 4 issue of whether substantial evidence supported the
Secretary’s finding that Plaintiffs impairment was exertional as
opposed to nonexertional, was before the Appellate Court. On
the merits, the ALJ held that Plaintiffs RFC permitted him to
perform his past sedentary work as a corporate executive.
Appendix, at page 37. The Court affirmed the finding that
Plaintiff was limited to "sedentary" work but reversed the ALJ
and held that Plaintiff did indeed suffer from a significant
nonexertional impairment rendering him incapable of returning
to his past work. However the Court reasoned that because
Plaintiff is am educated person, "[rJelatively little troubled by
physical exertion, he can work in a variety of sedentary jobs,
provided they are not stressful" and that "[o]f such jobs there
is no scarcity for educated people even in their sixties, at least
not so acute a scarcity as would support a finding that a person
was disabled from gainful employment”, is clearly erroneous.
Schmidt, supra, at 119. The Court held that Plaintiff does have
a significant nonexertional impairment and the VE testified
that Plaintiffs skills transferred only to other management
positions, all of which have some degree of stress. Hence, it
is clear that under the law this case must be remanded for an
individualized Step 5 assessment taking into consideration the
Appellate Court’s finding that Plaintiff has a nonexertional
impairment. Therefore, the Court’s analysis conflicts with the
Secretary’s sequential analysis at Step 5 and for this reason the
case must be remanded for a proper Step 5 determination.
-19-
CONCLUSION
The issue on review was whether Plaintiff's nonexertional
limitation, angina pain as the result of emotional rather than
physical stress, precluded him from performing stressful work
as a corporate executive. The Court agreed with Plaintiffs
position on this issue and reversed the ALJ’s finding. Once
this occurred the well-established law requires that the case
must be remanded for the Secretary to elicit further vocational
evidence as to whether there are jobs Plaintiff can transfer to
considering his RFC, age, education, past work, and
nonexertional impairment.
In reviewing the ALJ’s decision, the Seventh Circuit failed
to properly apply the law. In fact, the analysis that Plaintiff
can perform other "sedentary" work, citing as an example the
job of "cashier in a retail store," is expressly contrary to the
law. The Court, having failed to properly apply the sequen-
tial analysis after reversing the ALJ’s decision that Plaintiff
could perform his past work, committed reversible error that
requires remand for further development by the Secretary at
Step 5. It was legal error for the Court to misapply the
sequential evaluation process instead of remanding to the
Secretary for a proper Step 5 analysis. Obviously, both the
Secretary and the courts must follow the directives of the
Secretary’s own rules. While the parties did dispute the issue
of nonexerticnal stress, which the Court overturned, the Step
5 issue of transferring skills to other jobs that exist in
significant numbers was not before the Court and was not
argued by the parties. Nevertheless, once the Court made it
an issue, the appropriate remedy under the law was to remand
this case to the Secretary for de novo Step 5 development.‘
‘Following its own regulations is the least Mr. Schmidt can
expect from his government. Plaintiff is a decorated soldier
(continued...)
-20-
Accordingly, the Circuit Court’s finding, ipse dixit, that the
evidence pointed to a conclusion that Plaintiff could perform
the job of "cashier in a retail store" is at odds with decisions by
this Court, all circuit courts that have dealt with the issue,
including the Seventh Circuit, and the Secretary’s sequential
analysis at Step 5. It is clear the Court committed legal error
and remand is the appropriate remedy.
Respectfully submitted,
Frederick J. Daley
Counsel of Record
Frederick J. Daley Ltd.
727 S. Dearborn Street
Suite 613
Chicago, Illinois 60605
(312) 987-9807
Attorney for Petitioner
‘(...continued)
who fought in two wars for his country. (Appendix, at page
39). He was a contributing member of society his whole adult
life until forced to stop working due to his deteriorating health
at age 62. The Secretary must agree to voluntarily remand this
case to properly apply his own regulations. A voluntary
remand would demonstrate that the Secretary is interested in
justice and fair-play in these nonadversarial matters.
— >
APPENDIX
INDEX TO APPENDIX
Decision of the Seventh Circuit Court of Appeals,
dated October 1, 1990, affirming the order of
the District Court - Schmidt v. Sullivan,
ke Bree, Le 3 Se
Decision of the Seventh Circuit Court of Appeals,
dated December 11, 1990, denying Plaintiffs
Petition for Rehearing with Suggestion for
PEST eee ee Ce eee
Decision of the United States District Court
dated May 19, 1989 denying Plaintiff's
application for a period of disability
and disability insurance benefits ............
Decision of the Administrative Law Judge
dated January 29, 1988 denying Plaintiff's
application for a period of disability
and disability insurance benefits ............
Selected portions of testimony from the
Transcript of Plaintiff's Social Security
hearing held on October 8, 1987 in
Chicago, Illinois before the Administrative
Law Judge
APP.
PAGE
24
37
App. 1
3n the
United States Court of Appeals
For the Seventh Circuit
No. 89-3766
GEORGE W. SCHMIDT,
Plaintiff-Appellant,
Vv.
Louis W. SULLIVAN, Secretary of Health
and Human Services,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 88 C 4964—James F. Holderman, Judge.
ARGUED JULY 12, 1990—DeEcIDED OcToBER 1, 1990
Before CUDAHY and POSNER, Circuit Judges, and PELL,
Senior Circuit Judge.
POSNER, Circuit Judge. This is an appeal from the
judgment of the district court refusing to disturb the de-
nial of social security disability benefits to the plaintiff.
The plaintiff, who is now 65 years old, suffers from coro-
nary artery disease. (Because of his age, his entitlement
to disability benefits, if any, is limited to the period be-
tween filing the application for benefits and reaching age
65, the social security retirement age. 42 U.S.C. §§ 416(1),
423(1XB).) Schmidt had a mild heart attack in 1976. At
App. 2
No. 89-3766
the time he was a senior vice president of Montgomery
Ward, supervising more than a hundred retail outlets and
earning in excess of $125,000 a year. Wanting a less stress-
ful job, he took early retirement from Montgomery Ward
in 1981. Between 1982 and 1986 he first was president
of a subsidiary of another retail enterprise and then op-
erated his own consulting business. He stopped working
in 1986 after being hospitalized for symptoms caused by
his arterial problems. Although he continues to be physi-
cally active and even plays handball, he has mild angina
pectoris which his doctor believes would become frequent
and severe if he returned to a high-stress executive job.
The administrative law judge who ruled that the plain-
tiff is not disabled was persuaded that the plaintiff could
return to the sorts of job he held before he stopped work-
ing in 1986. The fact that the plaintiff continues to play
handball appears to have weighed heavily with the admin-
istrative law judge. It is indeed difficult for a lay person
to understand how a person could suffer from disabling
heart disease yet play handball for forty minutes every
week. But judges, including administrative law judges of
the Social Security Administration, must be careful not
to succumb to the temptation to play doctor. Wilkins v.
Sullivan, 889 F.2d 135, 140 (7th Cir. 1989); Bauzo v.
Bowen, 803 F.2d 917, 926 (7th Cir. 1986); Smith v. Direc-
tor, 843 F.2d 1053, 1058 (7th Cir. 1988) (dissenting opin-
ion); Williams v. Bowen, 664 F. Supp. 1200, 1208 n. 17,
1209 n. 18 (N.D. Ill. 1987). The nolan expertise of the
Social Security Administration is reflected in regulations;
it is not the birthright of the lawyers who apply them.
Common sense can mislead; lay intuitions about medical
phenomena are often wrong. Attacks of angina pectoris—
the chest pains that are symptoms of coronary artery dis-
ease—can be brought on by go Same ore stress as well
as by physical exertion, The Heart: Arteries and Veins
1174 (Hurst, et al., eds. 1978), and people’s sensitivity to
different forms of strain differs. Jd. Moreover, ‘‘angina
pectoris provoked by emotional tension will sometimes last
App. 3
No. 89-3766
longer than angina pectoris provoked by effort because
one cannot control emotions as easily as one can control
physical activity.” Jd. at 1175. Apparently Mr. Schmidt
reacts worse to the kind of psychological stress that he
experienced when he held responsible managerial positions
than he does to the physical exertion involved in a slow
game of handball. So at least the evidence of his treating
physician indicates, and there is no contrary evidence. The
award of benefits to a person disabled because the emo-
tional stress of working would exacerbate his heart con-
dition would not even novel. Stewart v. Heckler, 730
F.2d 1065 (6th Cir. 1984).
So if the administrative law judge had put all his eggs
in the basket labeled not disabled from doing previous
work, we would have to reverse the denial of benefits.
But he did not. With support from testimony given by
a job expert, he made a finding, although without elabora-
tion, that Schmidt could find employment in a less stress-
ful white collar job. There is little doubt that this is true.
Schmidt is an experienced executive with a college degree
in business administration. As he is relatively little trou-
bled by physical exertion, he can work in a variety of
sedentary jobs, provided they are not stressful. Of such
jobs there is no scarcity for educated people even in their
sixties, at least not so acute a scarcity as would support
a finding that a person was disabled from gainful employ-
ment. Warford v. Bowen, 875 F.2d 671, 674 (8th Cir. 1989).
It is true that white collar jobs that do not involve n-
sibility and hence are not stressful are, by the same token,
not highly remunerative. We are speaking of such jobs
as cashier in a retail store, which would be quite a come-
down for a former senior vice president of one of the na-
tion’s largest retail chains. But a person is not disabled
within the meaning of the Social Security Act merely be-
cause the only jobs he can obtain pay much less than his
former work. The job need only exist; it need not be a
job that the applicant would find attractive. 20 C.F.R.
§ 404.1566(cX8). That is Mr. Schmidt’s position, as ade-
App. 4
No. 89-3766
quately if scantily found by the administrative law judge
as an alternative ground for his decision, and on that
ground the judgment of the district court affirming the
denial of benefits must be
AFFIRMED.
A true Copy:
Teste:
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA 79004—Midwest Law Printing Co., Inc., Chicago—10-1-90—500
App. 5
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
CHICAGO, ILLINOIS 60604
December 11, 1990
BEFORE
Hon. Richard J. Cudahy, Circuit Judge
Hon. Richard A. Posner, Circuit Judge
Hon. Wilbur F. Pell, Jr., Senior Circuit Judge
GEORGE W. SCHMIDT, Appeal from the United
States District Court for
the Northern District of
Illinois, Eastern Division.
Plaintiff-Appellant,
No. 89-3766 _v.
LOUIS W. SULLIVAN,
Secretary of Human Services James F. Holderman, Judge.
)
)
)
) No. 88 C 4964
)
)
)
)
Defendant-Appellee.
ORDER
On October 15, 1990, plaintiff-appellant filed a petition
for rehearing with suggestion for rehearing en banc. All of the
judges on the original panel have voted to deny the petition,
and none of the active judges has requested a vote on the
suggestion for rehearing en banc. The petition is therefore
DENIED.
The motion by the plaintiff-aypellant to file a response to
the defendant-appellee’s reply is DENIED as moot.
App. 6
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GEORGE SCHMIDT, )
)
Plaintiff, )
)
v. ) No. 88 C 4964
)
OTIS R. BOWEN, M.D., )
Secretary of Health and ) Dated,
Human Services ) May 19, 1989
)
Defendant. )
MEMORANDUM OPINION AND ORDER
JAMES F. HOLDERMAN:
Plaintiff George W. Schmidt instituted this action
pursuant to 42 U.S.C. Sec. 1383(c)(3) for review of the final
decision of the Secretary of the Department of Health and
Human Services (the "Secretary") denying plaintiff's application
for a period of disability and disability insurance benefits. The
parties have filed cross-motions for summary judgment. For
the reasons set forth below, the Secretary’s motion is granted.
BACKGROUND FACTS
Plaintiff filed his application for disability benefits on
October 17, 1986, claiming that he had been unable to work
since March 28, 1986 due to a cardiac condition, high blood
pressure, and an 80%-blocked right carotid artery. (A.R. 89).
The Social Security Administration denied the application
initially and on reconsideration after determining that, although
plaintiff does suffer from higher-than-normal blood pressure
App. 7
and an 80%-blocked right carotid artery, he was able to return
to his past job as a corporate executive. Plaintiff exercised his
right to a de novo review of his claim at a hearing before an
administrative law judge. The plaintiff, represented by counsel,
and a vocational expert testified at the hearing. On January
29, 1988 the ALJ affirmed the previous denial of disability
benefits. The ALJ found that plaintiff could perform his past
relevant work and, even if he could not return “to prior
executive jobs, the vocational expert testified that he would
have transferable skills to somewhat less stressful jobs." (A.R.
21.)
Plaintiff appealed the decision of the ALJ to the Appeals
Council, which denied his request on May 17, 1988. The
ALJ’s decision thereby became the final decision of the
Secretary in this matter. Plaintiff filed his complaint in this
court on June 7, 1988.
A. Medical Evidence.
Plaintiff began to experience chest pain in 1976. In
March of 1986 plaintiff was hospitalized for a transient cerebral
ischemia attack and angina pectoris. (A.R. 140.) A cerebral
angiogram performed on April 7, 1986 revealed approximately
70% stenosis in the proximal right internal carotid artery.
(A.R. 163.) An ultrasound revealed a 90% occlusion of the
right carotid artery. (A.R. 143.)
On September 19, 1986 plaintiff underwent a treadmill
stress test because of chest discomfort. The report from
Northwestern Universitys McGaw Medical Center concluded
that the state of plaintiffs physical fitness was normal. (A.R.
165.) Plaintiff was able to achieve 90% of his maximum heart
rate and the report concluded that his functional capacity was
above average by more than 20%. (Id.) A medical report
from plaintiffs treating physician Martin Brandfronbrener,
M.D., dated November 2, 1986 stated that plaintiff suffered
angina two or more times a week; the angina pain would last
from five to fifteen minutes. A report by another of plaintiff's
App. 8
treating physicians, Charles Nadler, M.D., dated April 16, 1987
stated that plaintiff suffers from anxiety-depression, angina and
possible transient ischemia attacks. Regarding plaintiffs heart
condition, Dr. Nadler wrote that plaintiff has experienced
"several years of angina but [patient] plays handball actively.”
(A.R. 189.) Doctor Nadler also noted that plaintiff suffers
light chest pain with stress, that nitroglycerin offers him some
relief, and that plaintiff can play handball with few symptoms.
He stated that plaintiff suffers from "job burn out” and has
trouble dealing with stress, leading to exhaustion. (A.R. 190.)
The doctor stated that plaintiff can do work-related activities
such as sitting, standing, lifting and travelling “except for
extreme exertion.” (Id.)
Plaintiff was evaluated on June 9, 1987 for tingling and
pain in the right arm. A report by Dr. Howard Simon, M.D.
indicated that plaintiff suffers from carpel tunnel syndrome in
his right arm. He was treated conservatively with a splint for
his hand. (Plaintiff was reexamined a month later and was
"somewhat improved” at that time.) (A.R. 22.)
Plaintiff also has cervical osteoarthritis. (Id.) A x-ray of
plaintiff's cervical spine shows "degenerative changes at C3-C4
with minimal narrowing of the disc space and some
degenerative anterior spur formation at CS5-C6 with no
significant narrowing of the disc space. There is no
compression deformity.” (A.R. 259.)
On July 30, 1987 plaintiff underwent a thallium stress test
and was again able to achieve greater than 90% of maximum
predicted heart rate. (A.R. 222.)
Finally, plaintiff was referred by his attorney to William
P. Reich, Ph.D., a clinical psychologist for an evaluation of Mr.
Schmidt’s intellectual and emotional functioning. Mr. Schmidt
spent 90 minutes with Dr. Reich and took standardized
intelligence and personality tests. Dr. Reich determined that:
Mr. Schmidt’s overall intelligence falls in
the normal range. His practical judgment
App. 9
and understanding are well above average.
The significant difference in Mr. Schmidt’s
Verbal and Performance scores, however,
is suggestive of brain disfunction. He
appears to be mild[ly] to moderately
impaired in tasks involving coordination of
visual-spatial and motor functions.
(A.R. 239.)
Dr. Reich further observed:
Mr. Schmidt’s MMPI results indicate a
rather severe emotional disturbance
centering around a strong somatic reactivity
to stress. He tends, in other words, to
express emotional problems through
physical distress. ... Mr. Schmidt is very
concerned with his physical problems. . . .
He is more concerned with physical
problems than 93% of the population. In
addition, he shows strong obsessive compul-
sive symptoms... .
(A.R. 240.)
Dr. Reich concluded:
Mr. Schmidt is an individual who has had
a lifelong compulsive need to excel in all
endeavors, and to demonstrate strength and
resilience in the face of all challenges. He
is a classic "Type A personality” .. . It
appears that Mr. Schmidt has suffered
some mild brain damage, possibly as a
result of the transient cerebral ischemia he
suffered in 1986. The degree of difficulty
indicated in the WAIS-R and the TRAILS
tests is not sufficient in itself to cause any
marked impairment in his practical
App. 10
functioning. However, given his need to
excel and demonstrate the ability to rise
above all challenges, his reaction to his
subjective awareness of even a subtle
decrement in performance is to become
frustrated and anxious. The frustration
and anxiety further impair his performance,
and a vicious cycle ensues resulting in
impaired concentration and memory,
increased anxiety and stress. . . . If he were
to return to work, it is quite possible his
compulsive style would emerge even more
strongly, causing a serious threat to his
health.
(A.R. 240-41.)
B. The Hearing Testimony.
Mr. Schmidt was 62 years old at the time of the
administrative hearing. He has a college degree in business
administration. (AR. 37.) He has served extensively in the
armed services. From 1974 through 1981, plaintiff worked six
days a week as a senior corporate executive in retailing,
earning in excess of $125,000 per year. (A.R. 102.) Plaintiff
stated that he left this position because of feelings of "personal
inadequacy for the responsibilities that I had at that time....”
(ALR. 38.) He wanted to "slow [his] pace through consulting"
and took advantage of an early retirement program. After
leaving retailing, plaintiff worked from January through
November 1982 as president of a Wick’s subsidiary. (A.R. 41.)
At this job he would sometimes work very long house and
would consequently experience "severe angina pains and very
severe fatigue.” (A.R. 43.) Plaintiff then did independent
consulting from 1983 until 1986. On March 29, 1986 plaintiff
experienced a transient cerebral ischemia attack, i.e. stroke, and
stopped working at that time.
App. 11
Mr. Schmidt testified that when he left retailing in 1981
he was experiencing angina. At his hearing plaintiff testified
that he currently suffers from "very severe angina, which comes
on very quickly with modest work, or what I call modest
decision making,” osteoarthritis, headaches, and carpal tunnel
syndrome in his right arm. (AR. 47, 55.) Mr. Schmidt
testified: "[I]n my life, if there’s conflict, I’ll have angina pains,
angina.” (A.R. 48.) Plaintiff gets relief from the angina with
nitroglycerin pills, and takes Naprosyn for relief from- the
osteoarthritis.
Plaintiff testified that he is "physically quite strong. . .”
(A.R. 52.) Mr. Schmidt does passive exercises, rides a
stationary bicycle three times per week for between fifteen and
twenty-five minutes per session, and goes to the YMCA for
water exercises. (A.R. 197.) He can stand for one to two
hours at a time. Plaintiff testified that he can walk several
miles, or "it may be, if I’ve got a lot on my mind, I may be
only [able] to [get as far as] the post office, 2 blocks away.”
(A.R. 49.) Plaintiff is able to play handball, albeit at a
reduced level of exertion, once or twice a week for thirty to
forty minutes per session. (A.R. 59.)
The ALJ questioned plaintiff about memory and
concentration:
Q. Do you have any problems with
memory or concentration?
A. Very much with concentration.
And when did those problems start?
My memory is pretty good.
When did you have the--when did
the concentration problem start?
A. Oh, that started back in, in ’76, ’77,
‘78. And it became increasingly more
difficult. That’s why I made the conscious
OP”
App. 12
decision to leave a very fine and high
paying job. . . . (A.R. 57-58.)
In this regard plaintiff testified further:
When you ask me mental, I didn’t finish it.
I, I remember big, certain things, but I
can’t find, sometimes, my pencil. Or I, I
can’t find where I put my checkbook, or I
lose the bank box key, and then I blame
her for it, and that’s absurd. I never did
that in my life.
* * *
I’ve usually been pretty orderly. You have
to be organized. But if I lost a pencil or
a key, I’d just get another one. It didn’t
bother me. I, I'd skip it. What’s the dif-
ference. If I didn’t catch one plane, I’d
catch the next one. Now if I don’t, if I
miss a plane, it’s the end of the world.
* * *
I was very good--you have to be in
business--at skipping over the miniscule
and getting to the important part and
establishing priorities, and I no longer do
that. My priorities are all out of whack.
* * *
I don’t know whether I’m avoiding work
that I think may bring on the angina,
because it is painful, or whether it’s mental
that I don’t organize it well. I don’t know
the answer to that. I would like someone
to help me.
The ALJ queried plaintiff about his alleged need to "hold to a
very restricted activity level or suffer the consequences of
App. 13
rapidly declining capacity to cope mentally and physically."
(A.R. 68.) Plaintiff responded:
Well, if I just work at something for, for
half an hour or 45 minutes or something,
it turns, it kind of turns into a blur. And
it’s like, I guess it relates back to when I
say I used to, I'd be a voracious reader and
could read a book in a night, and now it
takes me 2 or 3 weeks, because I forget
where I was or what happened, and I have
to go back and reread it. Same thing
happens in my work. I have to--things that
I could have instant recall on, I have to
goback and say, where was I, and did I
finish this.
(A.R. 68.) Plaintiff testified that his loss of reading speed is
partially attributable to his need to get up and rest his back
every 20 to 30 minutes.
The ALJ asked plaintiff whether he believed he could
return to retailing with a reduced amount of stress. Plaintiff
explained why he believed that he could not:
I, I just, I just know if I did and were
assigned something, it would be a problem
situation, people would depend on me, and
I wouldn’t want to let them down. I could
do an av--I, I just have never been able to
do an average job. . . . I said I’m either
incompetent or excelient, I’m not average
(AR. 63.)
Later, the ALJ questioned plaintiff about his compulsive
nature:
App. 14
Q. I just wanted to ask one other
thing. | With--when you find yourself
working at a job, do you have what they
call a compulsion about things, not only
your own work, but other people’s?
A. I’m told I do. I, I, I have, I can’t-
-have trouble suffering mediocrity from
people who can do better. I can deal with
mediocre people in mediocre jobs. I think
they’re marvelous. They can, capable,
they’re giving me 100% of what they’ve
got. But somebody who has got 100% and
only gives me 70%, I have no tolerance
a
Q. Was there an expression that they
used with you about doing your own work
and other people’s?
A. ...I1 was a vacuum filler.
The ALJ then questioned the vocational expert about
plaintiff's ability to work. The vocational expert testified that
plaintiff's previous work would be classified under the generic
title of corporate executive, a sedentary and highly skilled
occupation. Stress is "[p]Jart of the animal" of corporate
executiveship. (A.R. 80.) The ALJ asked the vocational
expert whether, given Mr. Schmidt’s angina and carpal tunnel
syndrome, he could return to his past work. The vocational
expert responded:
Well, I really don’t feel I have enough
information in that hypothetical to give an
opinion, because well, if I could break it
down, I don’t believe the carpal tunnel
would interfere at all. But in terms of the
angina, strictly from a physical functional
point of view, I, I, I don’t know if I have
enough information to be able to given an
App. 15
opinion. From, from just an exertional
point of view, it appears from that
hypothetical that he’d be able to do that.
But I really don’t think I have enough
information to give a good opinion.
(AR. 81.)
The ALJ queried:
Q. Alright. Would that--if we were to
find for the moment that, that the current
frequency of 4 or 5 times a week [is
correct, but] . . . in the light of the
testimony that it does not interfere with
the, does not preclude the handball, would
that be enough to answer the question?
A. Well, again, I don’t really have a
clear understanding from that hypothetical
as to what kind of symptomology the
angina brings on. I don’t, I still don’t
think I can answer it. . . . [But,] I could
answer it in that if the angina brings on
pain, and that it reduces his ability to
concentrate, and then I would say no, he
would not be able to perform those jobs.
Q. Alright. And then what if it does
not significantly reduce the ability to con-
centrate, and it is, and at the frequency--
and at that frequency?
A. Well, I would say again, I don’t
really know the symptomology, but if it was
just short pain, chest pain several times a
week, I would have to say he would be
able to do that job.
Q. Alright. what if it’s 4-5 times a
week?
App. 16
A. And it was not of a severity to
interfere?
Q. And does not significantly reduce
concentration?
A. Then I would have to say he would
be able to do the work.
(AR. 82.)
The ALJ then questioned the vocational expert about Mr.
Schmidt’s residual functional capacity to perform other work:
Q. Alright. If I were to find that Mr.
Schmidt is unable to do the prior work
because it was extraordinarily or highly
stressful, would he have any skills or semi-
skills transferable to other work?
A. Well, yes, he has many skills that
[are] transferable to other work. But all
of it would be in the, the business area.
I would say to lesser degrees of
management. It’s a little hard to explain,
but the same type of work, but not to the
degree in which he was performing it, not
at the level.
Q. Alright. Would there be jobs of
that nature, and also. taking into
consideration all the other hypothetical
findings, that he could do and exist in
significant numbers?
* * *
A. Well, I would have to give the same
answer I’ve given before with that. I
stated that he would be able to perform
that work, given that hypothetical.
* * *
Piiinis. ,
App. 17
Q. There’s a--in other words, if the
testimony is fully credited, there is a per-
sonality trait here. . . such that the indi-
vidual cannot do as much as paint a wall
in his house without getting obsessed with
doing it perfectly?
A. Exactly. There’s quite a compulsion
there to do an excellent job, and even a,
a simple task would, would be stressful in
terms of wanting to do it perfectly.
Q. Alright. Finally if I were to credit
all of the testimony fully, would you have
an opinion as to whether or not he could
either do any of the prior work, or transfer
skills to other work that existed in
significant numbers?
A. Yes, I do.
Q. And what would that opinion be?
A. No, he would not be able to.
(A.R. 84-85.)
Finally, Mr. Schmidt’s attorney also questioned the
vocational expert:
Q. If you include in hypothetical
number 1 that the angina occurs 4 or 5
times a week, but it lasts for, as he
testified, 8 minutes now, and he has to go
lay down or stop whatever he’s doing,
would it be reasonably expected that a
person in, in a management position who
has to deal with boards of directors and
clients and deal on the phone and in
App. 18
person with people, be reasonably expected
that he could perform substantial gainful
activity, taking 4 or 5 8 minute breaks a
week? Just saying to the board of
directors excuse me, but I’m getting chest
pain, I’ve go to go lie down for 8 minutes.
I'll be back in 8 or 10 minutes.
A. Well, exactly. That would be the
problem, even though it’s not a long
period of time over the amount of a week,
the fact that it comes and goes and you
don’t know when it’s coming, and you’re
constantly in a position where you could
be in a very, very important meeting or
whatever, I would say yes, that would
definitely interfere with the ability for that
job.
Q. And let’s assume instead of 4 or 5
times a week, as he testified that when he
was working, it was 4 or 5 times a day,
although it didn’t last for 8 minutes, it was
more like 2 or 3 or 4 minutes. Would
your answer be--
A. It would be the same.
(A.R. 85-86.)
DISCUSSION
At issue in this appeal is whether the ALJ's
determination that plaintiff can return to his past relevant work
is supported by substantial evidence. As the Seventh Circuit
has stated, a determination of whether a claimant is able to
perform his or her former occupation requires the factfinder to
decide whether the claimant retains the residual functional
capacity to perform either the actual functional demands in job
App. 19
Cuties of a particular past relevant job; or the functional
demands and job duties of the occupation as generally required
by employers throughout the national economy. Arbogast v.
Bowen, 860 F.2d 1400, 1403 (7th Cir. 1988). Plaintiff asserts
that the ALJ (1) made selective use of the evidence before
him; (2) made selective credibility determinations without
adequately articulating the reasons therefor; and (3) improperly
discounted the effect of stress and pain on plaintiff's ability to
work. "As a collective result of these errors," plaintiff submits
that the Secretary failed to compare his past relevant work to
his present capabilities. Arbogast, supra, 860 F.2d at 1404.
1. Selective Use and Distortion of the Evidence.
First, plaintiff claims that the ALJ made selective use of
the evidence, in some cases distorting the record, in making his
determination that plaintiff is able to return to work. For
example, plaintiff argues, the ALJ "misstates the testimony
regarding the frequency of claimant’s angina pains,” incorrectly
"states that the claimant is not limited to any significant degree
in concentration,” and misconstrues Dr. Nadler’s statements in
the cardiac reports. (Plaintiffs Mem. in Support, pp. 14-15.)
The court concludes that the opinion of the ALJ does
not reveal any distortion of the medical evidence or the
testimony presented to the ALJ. On the contrary, the ALJ
"considered and discussed the important evidence, including all
medical evidence that is credible, supported by clinical findings
and relevant to the question at hand. .. ." Anderson v. Bowen,
868 F.2d 921, 924 (7th Cir. 1989) (citations and internal
punctuation omitted).
2. Selective Credibility Determination.
Next, plaintiff argues that:
[T]he ALJ selectively credits testimony
throughout his decision to reach the
conclusion that Plaintiff can return to his
prior job as a high level executive, an
obviously stressful position. While the ALJ
App. 20
states in his "Findings" that “claimant’s
testimony was not full credible, "he fails to
articulate what is credible and what is
incredible, let alone state any reason for
his distinction.
(Plaintiffs Mem. in Support, p. 16.)
The court believes that the ALJ’s opinion adequately
states the reasons why the ALJ did not fully credit plaintiffs
testimony. For example, the ALJ did not completely believe
plaintiffs complaints about lack of concentration. The ALJ
reasoned that "[t]he claimant’s testimony of reading
complicated books and assisting people in financial planning
belie this." (A.R. 21.)
The court believes, moreover, that the medical evidence,
reviewed at length by the ALJ, supports the ALJ’s credibility
determination. Both of the plaintiff's stress tests demonstrated
that plaintiff's functional capacity was above average by greater
than 20%. Dr. Nadler, one of plaintiffs own treating
physicians, noted that plaintiff has experienced "several years
of angina but [the patient] plays handball actively." (A.R. 189.)
The inference that the ALJ obviously drew from Dr. Nadler’s
report--an inference that this court believes was justified in
light of the record--is that plaintiffs complaints of physical
distress were exaggerated to some degree. The report of the
consulting psychologist Dr. Reich, also supports the ALJ’s
conclusion to discount plaintiffs testimony. Dr. Reich’s
diagnostic impression of plaintiff was "[u]ndifferentiated
somatoform disorder . . . involving chiefly an exaggerated
reaction to physical complaints beyond that which would be
expected on the basis of physical findings alone." (A.R. 24.)
Dr. Reich stated that "Mr. Schmidt might profit from
psychotherapy aimed at the exploration of his need to excel
and his difficulty in expressing anger and frustration." Id.
In short, the court finds that the ALJ adequately stated
the reasons why he did not find plaintiffs testimony fully
credible. The ALJ’s reasoning is apparent from his decision:
a
i
App. 21
an extended discussion of the reasons for his credibility
determination was therefore unnecessary. Arbogast, supra, 860
F.2d at 1406, citing Imani v. Heckler, 797 F.2d 508, 511 (7th
Cir.) cert. denied, 479 U.S. 988 (1986).
3. Effect of stress and pain.
Plaintiff argues that the ALJ erred by improperly
discounting the effect of stress and pain on plaintiffs ability to
work. Plaintiff argues:
Here, where the angina was well
documented and the treating doctors
agreed that stress would be harmful,
Plaintiff clearly met his burden of showing
that he could not return to his past work.
Following the sequential analysis, the
Secretary must prove that the Plaintiff
could nevertheless perform other jobs in
the national economy despite his disability.
Since, plaintiff argues, he "must avoid all stress, it is highly
unlikely that he could work even in sedentary and low-stress
jobs, since some stress would be encountered." (Plaintiff's
Mem. in Support, p. 21.) In support of his argument, plaintiff
relies substantially on the opinion stated by Dr. Reich that:
given [plaintiffs] need to excel and demon-
Strate the ability to rise above all challenges,
his reaction to his subjective awareness of even
a subtle decrement in performance is to
become frustrated and anxious. The frus-
tration and anxiety further impair his perfor-
mance, and a vicious cycle ensues resulting in
impaired concentration and memory.
Mr. Schmidt’s lifelong style has been to work
compulsively. The more severe the challenge,
the harder he pushed. Unhappily, that
approach has probably contributed to his
health problems. He continues that approach
App. 22
today, despite his awareness that the stress he
places on himself may further endanger his
health. If he were to return to work, it is
quite possible his compulsive style would
emerge even more strongly, causing a serious
threat to his health.
(ALR. 241.)
The court concludes that the ALJ’s determination that
plaintiff can return to his past relevant work--despite the effect
of stress--is supported by substantial evidence.
Dr. Nadler’s cardiac report of November 13, 1986
indicated that plaintiff's angina pains are experienced as a “dull
ache" and “heaviness” for less than 15 minutes several times
per week. (AR. 185.) His cardiac report of April 16, 1987
indicated that plaintiffs angina is "pressure-like,” lasting a "few
seconds.” In this second report Dr. Nadler twice noted that
despite his angina, plaintiff plays handball "with few symptoms”
and can do all work-related activities except for extreme
exertion. (A.R. 189-190.)
The most substantial medical evidence in the record
regarding the effect of stress on plaintiffs ability to work is
Dr. Reich’s speculative statement: "If he were to return to
‘work, it is quite possible his compulsive style would emerge
even more strongly, causing a serious threat to his health.”
(A.R. 23.) The court believes that the ALJ properly decided
that plaintiff could return to his previous work in light of the
absence of any medical evidence establishing more than a
possibility that stress was likely to lead to disabling angina.
Fizially, the court notes that the plaintiff's own testimony
supports the ALJ’s conclusion. When the ALJ asked plaintiff
if he could return to work as a corporate executive, plaintiff
responded:
I could do an av--I, I just have never been
able to do an average job... . I’m not
average.
App. 23
The social security regulations do not consider a person
disabled if he can do only an "average" job at his work rather
than an excellent job. Plaintiffs compulsion to be the best at
what he does not render him disabled.
CONCLUSION
Because the decision of the ALJ, adopted by the
Secretary as his final decision in this matter, is supported by
substantial evidence, the defendant’s motion for summary
judgment is GRANTED. Plaintiff's cross-motion for summary
judgment is DENIED.
ENTER:
[s/ James F. Holderrian
JAMES F. HOLDERMAN
United States District Judge
DATED: May 19, 1989
App. 24 ©
DEPARTMENT OF
HEALTH AND HUMAN SERVICES
Social Security Administration
OFFICE OF HEARINGS AND APPEALS
DECISION
IN THE CASE OF:
CLAIM FOR:
Period of Disability and George Schmidt Disability Insurance
Benefits
(Claimant)
489-24-0186
Dated: January 29, 1988
(Social Security Number)
This case is before the Administrative Law Judge on a request
for hearing. The Administrative Law Judge has carefully
considered all the documents identified in the record as
exhibits, the testimony at the hearing and arguments presented.
ISSUES
The general issues are whether the claimant is entitled to a
period of disability and disability insurance benefits under
sections 216(i) and 223, respectively, of the Social Security Act,
as amended. The Social Security Act defines "disability" as the
inability to engage in any substantial gainful activity due to
physical or mental impairment(s) which can be expected to
either result in death or last for a continuous period of not
less than 12 months.
The specific issues are whether the claimant was under a
“disability” and, if so, when such disability commenced and the
duration thereof; and whether the disability insured status
requirements of the Act are met for the purpose of
entitlement.
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App. 25
APPLICABLE REGULATIONS
AND EVALUATION OF THE EVIDENCE
Pursuant to the Act, the Secretary has established Social
Security ;
Administration Regulations No. 4. The regulations provide
steps for evaluating disability (20 CFR 404.1520(a)). In
addition, a claimant’s impairment must meet the 12 month
duration requirement before being found disabling. A set
order is followed to determine whether an individual is
disabled. /f it is determined that a claimant is or is not disabled
at any point in the review, further review is not necessary.
Social Security Administration Regulations No. 4 requires the
Administrative Law Judge to consider the following in
sequence’
1. An individual who is working and engaging in
substantial gainful activity will not be found to be
"disabled" regardless of medical findings (20 CFR
404.1520(b));
2. An individual who does not have a "severe
impairment" will not be found to be "disabled" (20
CFR 404.1520(c));
3. If an individual is not working and is suffering from
a severe impairment which meets the duration
requirement and which "meets or equ 's a listed
impairment in Appendix 1 of Subpart P of
Regulations No. 4, a finding of "disabled" will be
made without consideration of vocational factors (20
CFR 404.1520(d));
4. If an individual is capable of performing work he or
she has done in the past, a finding of "not disabled"
must be made (20 CFR 404.1520(e));
5. If an individual’s impairment is so severe as to
preclude the performance of past work, other factors
App. 26
including age, education, past work experience and
residual functional capacity must be considered to
determine if other work can be performed (20 CFR
404.1520(f)).
The rules set out in Appendix 2 of Subpart P of Regulations
No. 4 are considered in determining whether a claimant with
exertional impairments is or is not disabled. The regulations
also provide that if an individual suffers from a nonexertional
impairment as well as an exertional impairment, both are
considered in determining residual functional capacity (20 CFR
404.1545). If a finding of disabled cannot be made based on
strength limitations alone, the rules established in Appendix 2
are used as a framework in evaluating "disability." In cases
where the individual has solely a nonexertional impairment, a
determination as to whether disability exists shall be based on
the principles in the appropriate sections of the regulations,
giving consideration to the rules for specific case situations in
Appendix 2.
The preceding paragraphs reflect the current provisions of the
Social Security Act and Regulations. However, as the result of
a decision issued July 30, 1985 by the United States Court of
Appeals for the Seventh Circuit in the case of Edna Johnson,
et al. v. Heckler, 769 F. 2d. 1202 (7th Cir, 1985), the
undersigned will not employ step 2 (the not severe test) of the
sequential evaluation process in evaluating the claimant’s
alleged disability.
SUMMARY OF THE EVIDENCE
AND EVALUATION THEREOF
On October 17, 1986, the claimant filed an application for
period of disability and disability insurance benefits under
Section 216(i) and 223 of the Social Security Act, alleging he
became disabled on March 28, 1986 due to a cardiac condition,
hypertension and a blocked right carotid artery. After the
application was administratively denied, the claimant filed a
se cal S SIND
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App. 27
timely request for a hearing. A hearing was held on October
8, 1987. The claimant appeared and testified and was
represented by attorney Frederick Daley. Also present and
testifying was vocational expert Susan Entenberg, appearing at
the request of the Administrative Law Judge.
The claimant testified that he was born on April 12, 1925. He
completed college and has a B.S. degree in Business
Administration. He fought in both World War II and Korea.
Testimony regarding occupational history reveals that from
1972 to 1974, the claimant was a business executive in charge
of sales and profits for seventeen retail stores. Exertionally,
he was required to walk four hours, stand three hours, sit two
hours and lift up to ten pounds. From 1974 to 1981 he
worked at Wards as a Senior Vice President and Regional
General Manager in charge of sales and profits of
approximately one hundred retail stores. This job was very
stressful and required working up to sixty hours a week. He
quit assertedly due to "personal inadequacy” for responsibility,
angina, and the company having offered an early out. From
January 1982 to November 1982 the claimant worked as a
manager in a retail food and drug chain, forty to fifty hours a
week. He was in charge of the operations of three hundred
and forty six supermarkets. Chest pain was not a problem.
Exertionally, he was required to do a lot of walking and
standing and lift. The claimant states that he was fired from
this job. In 1983 to March 1986 the claimant worked as an
independent consultant, assisting executive management in
venture capital troubled companies. He quit due to a hospital-
ization.
The claimant further testified that he suffers from chest pains
four to six hours a week both with work and at rest. They are
sharp and never occur at night. They do occur with decision
making. He also has osteoarthritis but commented that if this
was his only impairment, he would be able to work. He also
had a transient cerebral ischemic attack immediately prior the
hospitalization. He also suffers from headaches and backaches.
App. 28
He stated that he can stand only one to two hours. He can
walk several miles before he experiences angina pain. He can
sit twenty to forty minutes. (However, the Administrative Law
Judge notes that the claimant sat for an hour and half at the
hearing). Bending and stooping is very painful. He stated
that he was not able to do things with the same effect and
speed as in the past. He has trouble balancing his checkbook.
If he works on something for half an hour to forty-five minutes
it turns into a blur. Currently, he is reading a complicated
book, however, he cannot sit still due to his back pain. He
does not have as many headaches as he had when he worked.
However, if he feels frustrated or let down, he will experience
a headache. Recently, he has had a lot on his mind--such as
getting things in order. He does not fear dying, he explained,
but he does fear dying quickly within the next year. He states
that his blood pressure fluctuates and is not under control.
Last Monday it was 180/116. He stated that he is quiet strong.
However, he experiences left arm pain with exertion and his
right hand has carpal tunnel syndrome. He is nervous and
must take a sleeping pill at night.
The claimant further testified that he lives in a townhouse with
a companion who is ill. He is separated from his wife who is
a ex-alcoholic. He cannot keep up with the yardwork. During
the day he tries to read but loses concentration. He is
interested in the news. He is trying to get a will and do things
to take care of his personal life. His memory is good but he
has concentration problems. He gets along with people. He
plays handball once or twice a week for thirty to forty minutes.
He was told that he was depressed by his doctor. He has
helped elderly neighbors and friends with financial problems.
He is irritable. He recently turned down a good job offer due
to his health.
The medical evidence reveals that on June 9, 1976, the
claimant was admitted to Ingalls Memorial Hospital due to
chest pain. An EKG revealed only repolarization changes.
App. 29
The diagnosis upon discharge on June 13, 1976 was angina
pectoris (Exhibit 13).
On December 21, 1984 the claimant underwent a selective
coronary angiography. The right arteries had less than a thirty
percent narrowing. In the left anterior descending artery the
proximal segment had less than thirty percent narrowing,
however, the mid segment revealed fifty to sixty percent
narrowing. This suggested a left ventricular hypertrophy
(Exhibit 14).
On March 29, 1986 the claimant was admitted into
Northwestern Memorial Hospital due to numbness and tingling
of the right arm. The claimant had a normal EEG both in
awake and asleep. The CT scan was negative. A bilateral
carotid left vertebral angiogram revealed approximately seventy
percent stenosis in the proximal right internal carotid artery.
The Echocardiogram revealed evidence of concentrically
hypertrophied left ventricle, with dilation of the aorta at the
level of the sinuses and ascending aorta. The left atrium was
of normal size. Ultrasound revealed ninety percent occlusion
of the right carotid artery. The claimant was discharged on
April 2, 1986 with a diagnosis of transient cerebral ischemia
attack and angina pectoris (Exhibit 15).
hb Aap
siete Reise tae os ix ae
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SW aa Ate tai Sac alk pa ON RR lec alten SA hed
On June 9, 1986 the claimant was examined by Dr. Simon due
to a tingling pain in his right arm. The neurological
examination revealed signs of carpal tunnel syndrome. An
EMG reveal cervical radiculopathy in the right at the levels of
C8-Ti. The EEG was within normal limitations. The claimant
was treated conservatively and improved. The diagnosis was
carpal tunnel syndrome on the right, improved with treatment;
cervical radiculopathy secondary to cervical arthritis; and
significant carotid stenosis on the right. The prognosis was
guarded (Exhibit 30).
On August 12, 1986, an x-ray of the cervical spine revealed
degenerative changes at the C3-C4 with minimal narrowing of
the disc space and some degenerative anterior spur formation
PSA 5S OEE irr
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App. 30
at C5-C6. There was also small, bilateral posterior osteophytes
at C5-C6 and C6-C7 and some posterior osteophytes at C3-
C4 on the left. There was calcification of the ligamentum
nuchae at C4-CS5 (Exhibit 32).
On September 19, 1986 the claimant had a treadmill thallium
stress test. He was able to complete 12 minutes of exercise.
His functional capacity was rated above average and the
impression was possible ischemia (Exhibit 16).
After a examination on September 4, 1986, Dr.
Brandfronbrener filled out a cardiac report. The diagnosis was
coronary arthrosclerosis. The last three blood pressure
readings were 160/100 on September 4, 1986; 128/90 on April
10, 1986; and 110/70 on February 11, 1985. The doctor
indicated that the claimant had a myocardial infarction in 1976
and in December 1984, a balloon angioplasty. The claimant
has chest pains twice a week at rest and upon exertion. The
pain is a substernal pressure which lasts 5 to 15 minutes. The
doctor indicated that the claimant was limited to mild activity
(Exhibit 17).
After an examination on September 29, 1986, Dr. Nadler filled
out a cardiac report. His diagnosis was angina pectoris and
mild hypertension. The last three blood pressure readings
were 140/90 on September 29, 1986; 120/90 on May 12, 1986;
and 120/86 on June 24, 1986. He indicated that the claimant
has not had a myocardial infarction. He has chest pains
located in the substernal with exertion and relieved by rest or
nitroglycerin. The claimant has left arm pain with exertion
and some pain with walking and driving. An EKG revealed
ST/T wave changes (Exhibits 18 and 19).
After a examination on February 19, 1987 Dr. Nadler filled
out a cardiac report. His diagnosis was anxiety depression,
angina, and possible transient ischemic attack. The claimant’s
last three blood pressure reading were 130/90 on February 19,
1987; 104/70 on November 24, 1986; and 150/100 in March
1986. An angiogram in December 1984 revealed sixty percent
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App. 31
narrowing of LAD. The claimant has chest pain with stress
which is relied with nitroglycerin. He is able to play handball
with few symptoms. The doctor indicated that the claimant
could do most activity except for extreme exertion (Exhibit 21).
On June 3, 1987 the claimant was visited by a psychiatric social
worker in his home. The claimant indicated that he is
separated from his wife and currently lives with a female
companion who suffers from cancer. Daily, he walks six to
twenty blocks. He does passive exercises and three times a
week rides a stationary bicycle from 15 to 45 minutes. He
goes to the YMCA for water exercises and the steam room.
He cooks, watches television, reads and takes care of his
companion (Exhibit 23).
On July 30, 1987 a thallium stress test revealed no definite
evidence of exercise induced ischemia, however, there was
diminished perfusion in the apical region. The claimant was
able to exercise for eleven minutes. This indicated that since
the stress test in September 1986 that the claimant’s functional
capacity has diminished and ST deviations have been
accentuated (Exhibit 31).
On September 11, 1987, Dr. Nadler filled out a physical
capability evaluation. He indicated that the claimant could sit
six hours, stand one hour, walk one hour and lift/carry twenty-
five pounds. He could perform simple grasping and find
manipulations with both his hands, however, he could not use
his hands to push or pull arm controls. The doctor indicated
that the claimant has angina pectoris at rest and with moderate
exertion. He indicated that stressful situation precipitate his
angina (Exhibit 32).
On October 7, 187 the claimant had a_ psychological
examination at the request of his attorney. The psychologist
reported that the claimant was cooperative and pleasant, but
demonstrated considerable anxiety over his physical and
intellectual impairments. He was oriented and his memory was
normal. On testing, the claimant received a verbal IQ of 121,
App. 32
performance I.Q. 95, and a full scale I.Q. 110. This indicated
functioning within the normal range of intelligence. It further
indicated, according to this psychologist, that the claimant was
mildly to moderately impaired with tasks involving coordination
of visual-spatial and motor functions. His memory functioning
was well above average. The personality testing reportedly
revealed severe emotional disturbance centering around a
strong somatic reactivity to stress. The psychologist stated that
if the claimant returned to work, it was quite possible that his
compulsive style would emerge causing serious threat to his
health. The impressions were personality disorder with
obsessive and compulsive features and undifferentiated
somatoform disorder.
The psychologist also filled out a psychiatric review technique
form indicating an organic mental disorder under Listing 1.02,
a somatoform disorder under 112.07, and a personality disorder
under 1.08. However, according to the psychologist, the
claimant did not fully meet the listed disorders because he did
not meet the functional limitations to the degree required.
The psychologist indicated that the claimant has no restrictions
of activity of daily living; no difficulty in maintaining social
functioning; frequent deficiencies of concentration persistence
or pace resulting in failure to complete tasks in a timely
manner; and insufficient evidence as to episodes of
deteriorations or decompensation in work or work-like settings.
Therefore, the claimant did not have the functional limitations
necessary to meet the listings (Exhibit 32).
The Administrative Law Judge called the vocational expert to
testify. She testified that she had review the medical evidence
and listed to the testimony. The Administrative Law Judge
first asked the vocational expert to assess the claimant’s past
relevant work in terms of skill and exertion levels. The
vocational expert testified that the claimant was a corporate
executive, which is a highly skilled job, with a high amount of
stress, and which is sedentary in exertion. The Administrative
Law Judge then asked the vocational expert to consider a
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App. 33
hypothetical 62 year old man with this experience, a college
education, left handed, who has right carpal tunnel syndrome
which does not limit his functioning, and angina but having the
ability to play handball as testified to at the hearing. Given
these findings would the individual be able to perform the job
of corporate executive? The vocational expert opined that if
the angina does not significantly reduce his concentration, he
could.
The Administrative Law Judge then added an addition finding:
that if due to the high stress the individual could not perform
the job, were there other jobs in the economy that the person
could perform? The vocational expert opined that a lesser
degree of manager would be within the individual’s capabilities
as he would have highly marketable skills.
Lastly, the vocational expert was asked to assume it were
found that all of the claimant’s impairments and limitations
that he testified to were found true. The vocational expert
opined that if the claimant had angina 4-5 hours a week lasting
eight minutes, it would so interfere with his ability to work that
he could not perform any work activity.
The evidence reveals that the claimant has not engaged in
substantial gainful activity since March 28, 1986. He alleged
the inability to work due to a cardiac condition, hypertension
and a blocked right carotid artery. These impairments as well
as the mental impairment, however, do not meet or equal the
severity of any impairment listed in Appendix |. to Subpart P,
Regulation No. 4, whether considered singularly or in
combination. Because of the evidence of a mental impairment,
the Administrative Law Judge has attached hereto and filled
out the Psychiatric Review Technique form. The record shows
that the claimant has a disturbance of mood, accompanied by
a depressive syndrome as evidenced by a sleep disturbance,
decreased energy, feelings of guilt and difficulty concentrating
or thinking. However, the affective disorder does no
significantly limit the claimant’s functioning which includes a
wide range of activities, including reading a complicated novel,
App. 34
weekly handball games, and helping people with financial —
planning.
The evidence reveals that the claimant has been hospitalized
for angina pectoris on several occasions (Exhibits 13, 15). A
coronary angiogram on December 21, 1984 suggested left
ventricular hypertrophy (Exhibit 14) on March 29, 1986 the
claimant had a transient cerebral ischemia attack (Exhibit 15).
He also has been diagnosis as having right carpal tunnel
syndrome on June 9, 1986, but it improved with conservative
treatment (Exhibit 30). The claimant was able to exercise
twelve minutes on September 19, 1986 (Exhibit 16). Dr.
Brandfronbrener limited the claimant to mild activity on
September 4, 1986 (Exhibit 17). On February 19, 1987 Dr.
Nadler noted that the claimant was able to play handball with
few symptoms and restricted the claimant only from work
requiring extreme exertion (Exhibit 21). A stress test on July
30, 1987 revealed no evidence of exercise induced ischemia
(Exhibit 31). Dr. Nadler on September 11, 1987 indicated that
the claimant can sit six hours, stand one hour, walk one hour
and lift/carry up to twenty-cive pounds. However, he added
that stressful situations precipitate angina (Exhibit 32). A
psychologist who examined the claimant’s at counsel's request,
on October 7, 1987 opined that if the claimant worked, it
could be a serious threat to his health due to his
compulsiveness (Exhibit 32).
The record indicates that the claimant has arthritis (Exhibit 32)
but that it does not limit his ability to perform his past
relevant work. He also has right carpal tunnel syndrome, but
it does not limit the claimant who is left handed. The
Administrative Law Judge does not agree with the assessment
by the psychologist who claimant saw at the request of counsel
that the claimant is limited to any meaningful degree in
concentration (Exhibit 32). The claimant’s testimony of
reading complicated books and assisting people in financial
planning belie this. The Administrative Law Judge finds that
| ve
a ee ee roa ee
App. 35
the claimant can perform his past relevant work. Further,
even if he could no longer return to prior executive jobs, the
vocational expert testified that he would have transferrable
skills to somewhat less stressful jobs.
Since the claimant has the ability to perform his past relevant
work, he is not disabled for Social Security purposes.
FINDINGS
After careful consideration of the entire record, the
Administrative Law Judge makes the following findings:
1. The claimant met the disability insured status
requirements of the Act on March 28, 1986, the date the
claimant stated he became unable to work, and continues to
meet them through December 31, 1989.
2. The claimant has not engaged in substantial gainful
activity since March 28, 1986.
3. The medical evidence establishes that the claimant
has right carpal tunnel syndrome, arthritis, angina pectoris and
an affective disorder, but that he does not have an impairment
or combination of impairments listed in, or medically equal to
one listed in Appendix |, Subpart P, Regulations No. 4.
4. The claimant’s testimony was not fully credible.
5. The claimant has the residual functional capacity to
perform work-related activities except for work involving
extreme exertion (20 CFR 404.1545).
6. The claimant’s past relevant work as corporate
executive did not require the performance of work-related
activities precluded by the above limitation (20 CFR 404.1565).
7. The claimant’s impairments do not prevent him from
performing his past relevant work.
—
App. 36
8. The claimant was not under a "disability" as defined
in the Social Security Act, at any time through the date of the
decision (20 CFR 404.1520(e)).
DECISION
It is the decision of the Administrative Law Judge that, based
on the application filed on October 17, 1986, the claimant is
not entitled to a period of disability or disability insurance
benefits under sections 216(i) and 223, respectively, of the
Social Security Act.
ls/ John L. Mondi
John L. Mondi
Administrative Law Judge
January 29, 1988
worn eT ee
NS ee
App. 37
Portions of the Transcript of Plaintiff's Social Security hearing
held on October 8, 1987 in Chicago, Illinois before the
Administrative Law Judge
Questions asked by Plaintiffs counsel and answers given by
Plaintiff (located in Administrative Record at page 65).
Q. Over the past 2 years, have you
noticed any changes in yourself as far as
controlling your temper or--
A. Yeah. I don’t--
Q. --being impatient--
A. I was very controlled. I was always
a very, very controlled. I was called the
iceberg. And you have to be controlled in
a major situation or in combat. I was in
very severe combat.
Q. You’ve always been--prided yourself
on being a very, kind of cool, collected,
kind of controlled person?
A. Yes. I, I was given that, going back
in service. I got the combat patrols. I do
have, I’m not bragging, complaining, I have
the Silver Star, I have a Bronze Star, I
have other commendations. And, and I
didn’t earn it, the guys with me earned it,
but I was called upon to take patrols out,
because the other--some of the other
officers didn’t--they’d goof off, to tell you
the truth. They wouidn’t do the job.
Q. Over the past 2 years has that
changed, that control?
A. I don’t have _ control. I'm
concerned. I’m concerned about holding
my family together. I, I, I say things to
"BEST AVAILABLE COP\
App. 38
my, my legal wife that I don’t mean. I did
the other night. I say things to the woman
I adore, she has her severe problems with
cancer. Mayo has told her 9 years ago she
wouldn’t live a year. And since then, she’s
gotten additional cancers, had bone
marrow transplants, has leukemia, and still
going. She’s the last person in the world
I should scream at because I can’t find
something.
Questions asked by Administrative Law Judge and answers
given by Vocational Expert (located in Administrative Record
at pages 82-84).
A. --as being sedentary, but yes, of
course, there was a lot of moving around.
But because you tend to be at a desk and
using your mind more than anything, they
tend to say that it is sedentary.
Q. Alright.
ATTY: Judge, with the angina, could I just make a
statement? I think he said when he was working it was about
4 or 5 times a day, the latter few years. And now it’s 4 or 5
times a week, with the lower stress.
Q. Alright. Would that--if we were to
find for the moment that, that the current
frequency of 4 or 5 times a week, except-
-but with the also in the light of the
testimony that it does not interfere with
the, does not preclude the handball, would
that be enough to answer the question?
App. 39
A. Well, again, I don’t really have a
clear understanding from that hypothetical
as to what kind of symptomology the
angina brings on. I don’t, I still don’t
think I can answer it.
Q. Well, it’s somewhat difficult to pose
a question--
A. Yes, I know.
Q. --because I’m, the testimony of the
angina was that it can be at rest, it can be
with exertion.
A. Right. I, I, I could answer--
Q. And also that it was aggravated in
non-exertional situations.
A. Right. I could answer it in that if
the angina brings on pain, and that it
reduces his ability to concentrate, and then
I would say no, he would not be able to
perform those jobs.
Q. Alright. And then what if it does
not significantly reduce the ability to
concentrate, and it is, and at the
frequency--and at that frequency?
A. Well, I would say again, I don’t
really know the symptomology, but if it was
just short pain, chest pains several times a
week, I would have to say he would be
able to do that job.
Q. Alright. What if it’s 4-5 times a
week?
A. And it waz not of a severity to
interfere?
§
App. 40
Q. And does not significantly reduce
concentration?
A. Then I would have to say he would
be able to do the work.
Q. Alright. If I were to find that Mr.
Schmidt is unable to do the prior work
because it was extraordinarily or highly
stressful, would he have any skills or semi-
skills transferable to other work?
A. Well, yes, he has many skills that is
transferable to other work. But all of it
would be in the, the business area. I
would say to lesser degrees of
management. It’s a little hard to explain,
but the same type of work, but not to the
degree in which he was performing it, not
at the level.
Q. Alright. Would there be jobs of
that nature, and also taking into
consideration all the other hypothetical
findings, that he could do and exist in
significant numbers?
A. Given--I’m not sure.
Q. Alright. Well, the finding, it would
be age, college as we indicated before, left-
handed, right-handed carpal tunnel
syndrome --syndrome, angina such that it
does not significantly reduce the ability to
concentrate, even though it occurs, and
which occurs 4-5 times a week.
A. Well, I would have to give the same.
answer I’ve given before with that. I, I
stated that he would be able to perform
that work, given that hypothetical.
ee
App. 41
Q. And then with the additional
limitation that he could not do work that-
-as highly stressful?
A. Oh. It’s very difficult to answer,
because highly stressful is such a subjective
statement. I--
Q. Okay.
A. --in hearing the testimony, I, I
believe that there would be stress in any
position. Mr. Schmidt wants to take on,
even if it were a manager of a smaller
store, there would still be the stress that
would, that is just inherent to management.
Q. There’s a--in other words, if the
testimony is fully credited, there is a
personality trait here--
A. Of--
Q. --such that the individual carx i do
as much as paint a wall in his house
without getting obsessed with doing it
perfectly?
A. Exactly. There’s quite a compulsion
there to do an excellent job, and even a,
a simple task would, would be stressful in
terms of wanting to do it perfectly.
Q. Alright. Finally if I were to credit
all of the testimony fully, would you have
an opinion as to whether or not he could
either do any of the prior work, or transfer
skills to other work that existed in
significant numbers?
A. Yes, I do.
App. 42
Q. And what would that opinion be?
A. No, he would not be able to.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.