Petition for Writ of Certiorari — Quillen v. Bowen

86 #5 40 r) 3 Supreme Court, U.S,

FILED

SEP 30 1986

JOSEPH F. SPANIOL, JR,

In The Supreme Court

of The GAnited States

October 1986 Term

GEODECKIE QUILLEN,

Petitroner,

Vv

SECRETARY OF HEALTH AND

HuMAN SERVICES,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT.

PETITION FOR CERTIORARI

MIcHAEL J. CANTOR

BERNSTEIN & BERNSTEIN, P.C.

3000 Town Center, 16th Floor

Suite 1601

Southfield, MI 48075-1298

(313) 350-3700

RENAISSANCE PRINTING, INC., 1133 GRISWOLD

DETROIT, MICHIGAN 48226 (313) 964-3185

1.

QUESTIONS PRESENTED FOR REVIEW

WHETHER THE COURT OF APPEALS HAS MIS-

USED AND MISAPPLIED THE SOCIAL SECURITY

VOCATIONAL RULES (‘‘GRIDS”’) IN SUCH A WAY

AS TO DENY PLAINTIFF FULL CONSIDERATION

OF STATUTORILY MANDATED REQUIREMENTS

(AGE, EDUCATION, WORK EXPERIENCE, AND

RESIDUAL FUNCTIONAL CAPACITY), AND IN

CONFLICT WITH 42 USCA 423(d)(2)(a) AND THIS

COURT’S DECISION IN HECKLER V CAMPBELL,

103 S. CT 1952 (1983).

. WHETHER ONE WHO HAS LOST THE TRANS-

FERABILITY OF HIS SKILLS DUE TO A NON-

EXERTIONAL IMPAIRMENT IS TO BE TREATED

DIFFERENTLY THAN ONE WHO SIMPLY HAS

NO TRANSFERABLE SKILLS.

. WHETHER THE GRIDS CAN BE APPLIED WHERE

NON-EXERTIONAL LIMITATIONS PRECLUDE

THE TRANSFERABILITY OF WORK SKILLS.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW .....

TABLE OF CONTENTS ... . 0.05 02 sass cecctunss

TABLE OF AUTHORITIES...........---+++:-

GROUNDS FOR JURISDICTION .........----

STATUTES AND REGULATIONS INVOLVED . .

STATEMENT OF THECASE ..........--+----

ARGUMENT ....04..0. +44 046 Sila ee

APPENDIX

PAGE

Hl

TABLE OF AUTHORITIES

CASES PAGI

FPC v. Texaco, Incs., 373 US 33 3 reine 6

Heckler v Campbell, 103 S Ct 1952 (1983) ........ 2,6, 8

STATUTES

a a l

EE |

EES Vv

REGULATIONS

20 CFR §404. | es Se en Vv

20 CFR §404, Subpart P, Appendix 2, 200.00

ee vi, 3

RULINGS

I ee ee, i xvil, 7

GROUNDS FOR JURISDICTION

1. Petitioner, GEODECKIE QUILLEN, petitions for

review of the unpublished decision of the Sixth Circuit Court

of Appeals, dated May 29, 1986.

2. Rehearing has been denied by Order of July 9, 1986.

3. Jurisdiction for review by this Court 1s conferred by 28

USC$1254(1).

STATUTES AND REGULATIONS INVOLVED

1. 42 USCA §423(d)(2)(A):

‘‘An individual...shall be determined to be under a

disability only if his physical or mental impairments are of

such severity that he is not only unable to do his previous work

but cannot, considering his age, education, and work ex-

perience, 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,

whether a specific job vacancy exists for him or whether he will

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 signifi-

cant numbers either in the region where such individual lives

or in several regions of the country.”’

2. 20 CFR §404.1505 (a):

‘“The law defines disability as the inability to do any sub-

stantial gainful activity by reason of any medically deter-

minable physical or mental impairment which can be ex-

pected to result in death or which has lasted or can be expected

to last for a continuous period of not less than 12 months. To

meet this definition, you must have a severe impairment,

which makes you unable to do your previous work or any

other substantial gainful activity which exists in the national

economy. To determine whether you are able to do any other

work, we consider your residual functional capacity and your

age, education, and work experience. We will use this defini-

tion of disability if you are applying for a period of disability,

or disability insurance benefits as a disabled worker, or child

insurance benefits based on disability before age 22.”’

V1

3. 20 CFR Pt. 404, subpart P, Appendix 2, 200.00

through 201.29:

200.00 Introduction.

‘(a) The following rules reflect the major functional and

vocational patterns which are encountered in cases which can-

not be evaluated on medical considerations alone, where an

individual with a severe medically determinable physical or

mental impairment(s) is not engaging in substantial gainful

activity and the individual’s impairment(s) prevents the per-

formance of his or her vocationally relevant past work. They

also reflect the analysis of the various vocational factors (1.e.,

age, education, and work experience) in combination with the

individual’s residual functional capacity (used to determine

his or her maximum sustained work capability for sedentary,

light, medium, heavy, or very heavy work) in evaluating the

individual’s ability to engage in substantial gainful activity in

other than his or her vocationally relevant past work. Where

the findings of fact made with respect to a particular in-

dividual’s vocational factors and residual functional capacity

coincide with all of the criteria of a particular rule, the rule

directs a conclusion as to whether the individual is or is not

disabled. However, each of these findings of fact is subject to

rebuttal and the individual may present evidence to refute

such findings. Where any one of the findings of fact does not

coincide with the corresponding criterion of a rule, the rule

does not apply in that particular case and, accordingly, does

not direct a conclusion of disabled or not disabled. In any in-

stance where a rule does not apply, full consideration must be

given to all of the relevant facts of the case in accordance with

the deiinitions and discussions of each factor in the ap-

propriate sections of the regulations.

(b) The existence of jobs in the national economy 1s

Vil

reflected in the ‘‘Decisions’’ shown in the rules; i.e., in pro-

mulgating the rules, administrative notice has been taken of

the numbers of unskilled jobs that exist throughout the na-

tional economy at the various functional levels (sedentary,

light, medium, heavy, and very heavy) as supported by the

‘‘Dictionary of Occupational Titles’’ and the ‘‘Occupational

Outlook Handbook,’’ published by the Department of Labor;

the “‘County Business Patterns’’ and ‘‘Census Surveys’’

published by the Bureau of the Census; and occupational

surveys of light and sedentary jobs prepared for the Social

Security Administration by various State employment agen-

cies. Thus, when all factors coincide with the criteria of a rule,

the existence of such jobs is established. However, the ex-

istence of such jobs for individuals whose remaining func-

tional capacity or other factors do not coincide with the criteria

of a rule must be further considered in terms of what kinds of

jobs or types of work may be either additionally indicated or

precluded.

(c) In the application of the rules, the individual’s residual

functional capacity (i.e., the maximum degree to which the

individual retains the capacity for sustained performance of

the physical-mental requirements of jobs), age, education,

and work experience must first be determined.

(d) The correct disability decision (i.e., on the issue of

ability to engage in substantial gainful activity) is found by

then locating the individual’s specific vocational profile. If an

individual’s specific profile is not listed within this Appendix 2,

a conclusion of disabled or not disabled is not directed. Thus,

for example, an individual’s ability to engage in substantial

gainful work where his or her residual functional capacity falls

between the ranges of work indicated in the rules (e.g., the in-

dividual who can perform more than light but less than

medium work), is decided on the basis of the principles and

definitions in the regulations, giving consideration to the rules

for specific case situations in this Appendix 2. These rules

Vill

represent various combinations of exertional capabilities, age,

education and work experience and also provide an overall

structure for evaluation of those cases in which the judgments

as to each factor do not coincide with those of any specific rule.

Thus, when the necessary judgments have been made as to

each factor and it is found that no specific rule applies, the rules

still provide guidance for decisionmaking, such as in cases in-

volving combinations of impairments. For example, if strength

limitations resulting from an individual’s impairment(s) con-

sidered with the judgments made as to the individual’s age,

education and work experience correspond to (or closely

approximate) the factors of a particular rule the adjudicator

then has a frame of reference for considering the jobs or types of

work precluded by other, nonexertional impairments in terms

of numbers of jobs remaining for a particular individual.

(e) Since the rules are predicated on a individual’s having

an impairment which manifests itself by limitations in

meeting the strength requirements of jobs, they may not be

fully applicable where the nature of an individual’s impair-

ment does not result in such limitations, e.g., certain mental,

sensory, or skin impairments. In addition, some impairments

may result solely in postural and manipulative limitations or

environmental restrictions. Environmental restrictions are

those restrictions which result in inability to tolerate some

physical feature(s) of work settings that occur in certain in-

dustries or types of work, e.g., an inability to tolerate dust or

fumes.

(1) In the evaluation of disability where the individual

has solely a nonexertional type of impairment, determina-

tion as to whether disability exists shali be based on the

principles in the appropriate sections of the regulations,

giving consideration to the rules for specific case situations

in this Appendix 2. The rules do not direct factual conclu-

sions of disabled or not disabled for individuals with solely

nonexertional types of impairments.

(2) However, where an individual has an impairment or

combination of impairments resulting in both strength

limitations and nonexertional limitations, the rules in this

subpart are considered in determining first whether a find-

ing of disabled may be possible based on the strength limita-

tions alone and, if not, the rules(s) reflecting the

individual's maximum residual strength capabilities, age,

education, and work experience provide a framework for

consideration of how much the individual’s work capability

is further diminished in terms of any types of jobs that

would be contraindicated by the nonexertional limitations.

Also, in these combinations of nonexertional and exertional

limitations which cannot be wholly determined under the

rules in this Appendix 2, full consideration must be given to

all of the relevant facts in the case in accordance with the

definitions and discussions of each factor in the appropriate

sections of the regulations, which will provide insight into

the adjudicative weight to be accorded each factor.

201.00 MAXIMUM SUSTAINED WORK CAPA-

BILITY LIMITED TO SEDENTARY WORK AS A

RESULT OF SEVERE MEDICALLY DETERMINA-

BLE IMPAIRMENT(S).

(a) Most sedentary occupations fall within the skilled,

semi-skilled professional, administrative, technical, clerical,

and benchwork classifications. Approximately 200 separate

unskilled sedentary occupations can be identified, each

representing numerous jobs in the national economy.

Approximately 85 percent of these jobs are in the machine

trades and benchwork occupational categories. These jobs

(unskilled sedentary occupations) may be performed after a

short demonstration or within 30 days.

(b) These unskilled sedentary occupations are standard

within the industries in which they exist. While sedentary

work represents a significantly restricted range of work, this

range in itself is not so prohibitively restricted as to negate

work capability for substantial gainful activity.

(c) Vocational adjustment to sedentary work may be ex-

pected where the individual has special skills or experience

relevant to sedentary work or where age and basic educational

competences provide sufficient occupational mobility to adapt

to the major segment of unskilled sedentary work. Inability to

engage in substantial gainful activity would be indicated

where an individual who is restricted to sedentary work

because of a severe medically determinable impairment lacks

special skills or experience relevant to sedentary work, lacks

educational qualifications relevant to most sedentary work

(e.g., has a limited education or less) and the individual’s age,

though not necessarily advanced, is a factor which significant-

ly limits vocational adaptability.

(d) The adversity of functional restrictions to sedentary

work at advanced age (55 and over) for individuals with no

relevant past work or who can no longer perform vocationally

relevant past work and have no transferable skills, warrants a

findng of disabled in the absence of the rare situation where

the individual has recently completed education which provides

a basis for direct entry into skilled sedentary work. Advanced

age and a history of unskilled work or no work experience

would ordinarily offset any vocational advantages that might

accrue by reason of any remote past education, whether it is

more or less than limited education.

(e) The presence of acquired skills that are readily transfera-

ble to a significant range of skilled work within an individual’s

residual functional capacity would ordinarily warrant a finding

of ability to engage in substantial gainful activity regardless of

the adversity of age, or her demonstrated skill level. The

acquisition of work skills demonstrates the ability to perform

work at the level of complexity demonstrated by the skill level

Ba eR 0 a eek

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attained regardless of the individual’s formal educational

attainments.

(f) In order to find transferability of skills to skilled sedentary

work for individuals who are of advanced age (55 and over),

there must be very little, if any, vocational adjustment required

in terms of tools, work processes, work settings, or the industry.

(g) Individuals approacing advanced age (age 50-54) may

be significantly limited in vocational adaptability if they are

restricted to sedentary work. When such individuals have no

past work experience or can no longer perform vocationally

relevant past work and have no transferable skills, a finding of

disabled ordinarily obtains. However, recently completed

education which provides for direct entry into sedentary work

will preclude such a finding. For this age group, even a high

school education or more (ordinarily completed in the remote

past) would have little impact for effecting a vocational adjust-

ment unless relevant work experience reflects use of such

education.

(h) The term ‘‘younger individual’’ is used to denote an

individual age 18 through 49. For those within this group who

are age 45-49, age is a less positive factor than for those who

are age 18-44. Accordingly, for such individuals: (1) who are

restricted to sedentary work, (2) who are unskilled or have no

transferable skills, (3) who have no relevant past work or who

can no longer perform vocationally relevant past work, and

(4) who are either illiterate or unable to communicate in the

English language, a finding of disabled is warranted. On the

other hand, age is a more positive factor for those who are

under age 45 and is usually not a significant factor in limiting

such an individual’s ability to make a vocational adjustment,

even an adjustment to unskilled sedentary work, and even

where the individual is illiterate or unable to communicate in

English. However, a finding of disabled is not precluded for

those individuals under age 45 who do not meet all of the

criteria of a specific rule and who do not have the ability to

XII

perform a full range of sedentary work. The following ex-

amples are illustrative: Example 1: An individual under age

45 with a high school education can no longer do past work

and is restricted to unskilled sedentary jobs because of a severe

medically determinable cardiovascular impairment (which

does not meet or equal the listings in Appendix 1). A perma-

nent injury of the right hand limits the individual to sedentary

jobs which do not require bilateral manual dexterity. None of

the rules in Appendix 2 are applicable to this particular set of

facts, because this individual cannot perform the full range of

work defined as sedentary. Since the inability to perform jobs

requiring bilateral manual dexterity significantly com-

promises the only range of work for which the individual is

otherwise qualified (i.e., sedentary), a finding of disabled

would be appropriate. Example 2: An illiterate 41 year old in-

dividual with mild mental retardation (IQ of 78) is restricted

to unskilled sedentary work and cannot perform vocationally

relevant past work, which had consisted of unskilled agricul-

tural field work; his or her particular characteristics do not

specifically meet any of the rules in Appendix 2, because this

individual cannot perform the full range of work defined as

sedentary. In light of the adverse factors which further narrow

the range of sedentary work for which this individual is

qualified, a finding of disabled is appropriate.

(i) While illiteracy or the inability to communicate in

English may significantly limit an individual’s vocational

scope, the primary work functions in the bulk of unskilled

work relate to working with things (rather than with data or

people) and in these work functions at the unskilled level,

literacy or ability to communicate in English has the least

significance. Similarly the lack of relevant work experience

would have little significance since the bulk of unskilled jobs

require no qualifying work experience. Thus, the functional

capability for a full range of sedentary work represents suffi-

cient numbers of jobs to indicate the substantial vocational

scope for those individuals age 18-44 even if they are illiterate

or unable to communicate in English.

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4. SSR 82-41 (Policy Statement 4.b)

‘All functional limitations included in the RFC (exertional

and nonexertional) must be considered in determining

transferability. For example, exertional limitations may pre-

vent a claimant from operating the machinery or using the

tools associated with the primary work activities of his or her

PRW. Similarly, environmental, manipulative, postural, or

mental limitations may prevent a claimant from performing

semi-skilled or skilled work activities essential to a job. Ex-

amples are watchmakers with hand tremors, house painters

with severe allergic reactions to pain (sic) fumes, craftsmen

who have lost eye-hand coordination, construction machine

operators whose back impairments will not permit jolting, and

business executives who suffer brain damage which notably

lowers their IQ’s. These factors 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. If an impairment(s) does

not permit acquired skills to be used, the issue of transferabili-

ty of skills can be easily resolved.’’ See p. 2199-46 CCH

Unemployment Ins. Rptr., Para. 14, 168.

STATEMENT OF THE CASE

A. Procedural History

Petitioner, GEODECKIE QUILLEN, applied for Social

Security Disability Insurance Benefits on August 6, 1982.

This claim was denied both initially and upon reconsidera-

tion. A request for Hearing was filed and after the Hearing,

Petitioner’s claim was denied by the Administrative Law

Judge (ALJ) on September 27, 1983. The ALJ cited Voca-

tional Rule (‘‘grid’’) 201.11 in support of his findings. A Re-

quest for Review was denied by the Appeals Council on

January 26. 1984.

Pursuant to 28 USC § 1331 and 42 USC § 405(g), Peti-

tioner appealed to the United States District Court for the

Eastern District of Michigan. The matter was referred to

Magistrate Marcia G. Cooke who on December 31, 1984,

recommended denial of Petitioner’s Motion for Summary

Judgment. As it pertains to this appeal, the Magistrate agreed

that the ALJ’s reliance on grid 201.11 was misplaced since a

pulmonary impairment meant Petitioner’s skills could not

transfer to an industrial setting. She found, however, that

Quillen could do sedentary unskilled jobs and ruled the grids

wholly inapplicable. Petitioner objected citing the complete

applicability of grid 201.10. The District Court found Peti-

tioner’s objections unpersuasive and by Judgment of April 9,

1985 (amended June 13, 1985) denied Petitioner’s Motion for

Summary Judgment and dismissed the complaint.

Petitioner appealed to the United States Court of Appeals

for the Sixth Circuit citing his eligibility under grid 201.10.

The Court stated the facts of the case in a manner wholly ac-

ceptable to Petitioner for purposes of this appeal. Nonetheless,

the Court ruled that the grids do not apply and affirmed the

Court below. Rehearing was denied on July 9, 1986.

LLL

B. FACTS OF THE CASE (Pages correspond to

the Opinion of the Sixth Circuit filed May 29,

1986.)

GEODECKIE QUILLEN was born in 1932 and has a

limited education. (P.1) His past work was semi-skilled and

medium to heavy exertionally. (P.1) There is no disagreement

that he suffers from physical impairments which preclude him

from returning to his former line of work. (P.2) There is no

dispute that he can perform sedentary work. (P.3) Petitioner

has a non-exertional limitation which does not allow for the

transferability of his work skills to sedentary work. (P.4)

The Court of Appeals in affirming the District Court thus

found that Petitioner could perform sedentary unskilled work

and was disqualified. For purposes of this appeal, it is agreed

that all of the above (except Plaintiff’s disqualification for

benefits) is true and accurate including the physical ability to

do sedentary unskilled work.

Petitioner’s argument as set forth below will show that the

Court of Appeals has misunderstood the grids and thus failed

to properly apply the age factor in violation of the Statutes and

Regulations involved as set forth above.

ARGUMENT

Petitioner submits that the Court of Appeals erred in its

decision of May 29, 1986. With the highest respect to that

Court it is counsel’s reasoned belief that the decision of the

Court with reference to the use as the Vocational Rules

(‘‘grids’’) constitutes a grotesque misapprehension of the pur-

pose and philosophy behind the grids and works to circum-

vent this Court’s clear pronouncements on the grids stated in

Heckler v Campbell, 103 S Ct 1952 (1983).

Basically, the Court below has ruled that Mr. Quillen has

impairments precluding a return to his former work (p.2).

The Court then went on to find, after lengthy analysis that

substantial evidence shows that Petitioner had the capacity to

perform a limited range of sedentary work (pp. 2-4).

For purposes of this petition it is necessary at this point to

restate the operative facts which are not disputed herein:

1. Petitioner was 52 years old at the time’of the hearing.

This is defined by Social Security Regulations as ‘‘closely

approaching advanced age.’’ 20 C.F.R., Part 404, Subpart

P, Appendix 2, Rule 201.00(g).

2. Petitioner attended sixth grade. This is a ‘‘limited’’

educational background under the ‘‘grid’’ framework.

3. Petitioner’s past work history was semi-skilled.

4. Petitioner has impairments which limit his maximum

sustained work capability to sedentary work.

The ALJ took the position that Mr. Quillen had transfer-

able skills. He, therefore, applied Vocational Rule 201.11 and

found Petitioner not disabled. This Rule holds that one who

has:

1. Maximum sustained work: capability limited to

sedentary work as a result of severe medically determinable

impairments;

2. Is closely approaching advanced age;

3. Is of limited or less education;

4. Has previous work experience of a skilled or semi-

skilled background; and

5. Whose skills are transferable;

is deemed to be not disabled.

Petitioner argued that he had a non-exertional impairment

which precluded the use of the skills. He contended that this,

therefore, brought him precisely within the ambit of grid

201.10. This rule with the same first four factors as the grid

above, states that if a claimant’s skills are non-transferable he

is deemed to be disabled.

The Magistrate, as adopted Ly the District Court and the

Court of Appeals, ruled that because he had a non-exertional

impairment which precluded use of his otherwise transferable

skill the grid could not be used. Petitioner submits that this 1s

illogical and clearly blatantly erroneous. In the context of

Social Security Law it is the full equivalent of throwing out the

baby with the bath water.

What the Court below has done is distinguish between:

a. Skills non-transferable,

b. Skills not usable because of a non-exertional limita-

tion.

There is absolutely no rational or reasonable means of making

such a distinction. In situation ‘‘a’’ the claimant’s work skills

cannot be used in sedentary work because there is no seden-

tary work that can make use of the skills. In situation ‘‘b’’ the

claimant’s (Quillen) work skills cannot be used because a non-

exertional limitation (here his pulmonary condition) does not

allow for the transferability of the skills (exactly what the

Court has found.) In neither case, can the claimant transfer

his skills. He is thus precisely within the ambit of the grid. The

grid is tailored to him.

Social Security recognizes this fact in Rule 201.00(g) which

states:

‘Individuals approaching advanced age (age 50-54)

may be significantly limited in vocational adaptability if

they are restricted to sedentary work. When such indi-

viduals have no past work experience or can no longer per-

form vocationally relevant past work, and have no trans-

ferable skills, a finding of disability ordinarily

b>]

obtains...

In essence, if the only work a claimant of Petitioner’s age,

educational background, and previous work experience can

do is unskilled sedentary work, he is disabled. This is the en-

tire philosophy of the grids and it makes no difference why the

skills are non-transferable.

Merely because one of the factors to be considered is non-

exertional in nature, does not mean it is necessary to discard

the grid. In essence the dispute between Petitioner and the

Secretary on this issue in the courts below involved transfera-

bility of skills. If Petitioner’s skills are transferable Rule

201.10 applies and he is disabled. If all any 50-54 year old

with a limited education can do is sedentary unskilled work,

he is disabled as that term is applied in the law.

The law requires a consideration of a claimant’s age,

educational background and work history as well as his im-

pairments in determining whether he is disabled. This is the

philosophy behind the grids and it is this philosophy that the

Court below has missed. The Court below incorrectly ruled

that the grid is only applicable where exertional impairments

preclude skill transferability (p. 4, citing 200.00(e)(1)). The

cited Rule, however, precludes grid application ‘‘where the

individual has solely a non-exertional type of impairment.’’

(e.g. psychiatric)

Here Petitioner’s impairments are exertional to the extent

that he can only do sedentary work and he is non-exertionally

limited to unskilled work, but it can not be said that his im-

pairments are solely non-exertional.

Petitioner submits again that what the Court has done is

distinguish between a claimant whose work had skills that do

not transfer and apply the grids and one like Petitioner whose

skills are not transferable because of an impairment and not

apply the grids. The net result is the same, i.e., the skills are

non-transferable. Such a distinction is more than between

form and substance, it is rather like Holland and the

Netherlands.

What the Court of Appeals did was rule that Petitioner

could do sedentary unskilled work. This omits a consideration

of the age factor which is mandated by statute and built into

the grids. Looking at all ages under grids 201.01 et seq. and

using the same educational, vocational, and functional factors

as Petitioner has, one can see how this works. If a claimant has

the residual functionai capacity for sedentary work, limited

education, and semi-skilled work history with non-transfer-

able skills the grids operate as follows:

If claimant is 18-44 he is not disabled under 201.25.

If claimant is 45-49 he is not disabled under 201.19.

If claimant is 50-54 he is disabled under 201.10.

If claimant is 55 and over he is disabled under 201.02.

Thus, if any claimant over 50 can do only sedentary unskilled

work, he is considered disabled.

This Court has ruled that the Secretary may rely on the

grids to determine a claimant’s right to benefits, Heckler v

Campbell, 103 S. Ct. 1952 (1983). The Secretary may rely on

his rule-making authority to determine issues that do not re-

quire a case-by-case consideration. FPC v Texaco, Incs., 373

US 33, 41-4 (1964). The Sixth Circuit seeks to circumvent this

by inventing an exception where skills are non-transferable

due to a nonexertional impairment. No such exception is con-

templated by the Campbell decision. Indeed the Secretary has

published a ruling in line with Petitioner’s position in this

Case.

Social Security Ruling 82-41 states precisely what Petitioner

contends is the law:

‘‘If an impairment(s) does not permit acquired skills to

be used, the issue of transferability of skills can be easily

resolved.’’ SSR 82-41 at 6.

An illustration is given of a jeweler who loses use of his hand.

While jewelry making is a skill it is not transferable since he no

longer has the use of both hands.

Thus Petitioner’s position is wholly in accord with the Secre-

tary’s own rulings on this matter. In point of fact, the Secre-

tary’s opposition to Petitioner in the Courts below was based

on there being transferability as found by the ALJ but not by

the Magistrate or the Court of Appeals. Plaintiff thus chal-

lenges the Secretary to adhere to his stated position in SSR

82-41 and admit that the Sixth Circuit’s decision is clearly er-

roneous and based on the factual findings that the Court

determined were supported by substantial evidence Quillen

should be awarded benefits.

To give one final illustration to the Court, one need con-

trast two men — one fictional John Doe, the second the real

Geodeckie Quillen. .

Both were born July 15, 1932.

Both had a sixth grade education.

Both are limited to sedentary work by a severe impairment.

Mr. Doe worked as a widget maker. This is medium to

heavy semi-skilled work but the skills obtained do not transfer

to sedentary work. In other words there is no sedentary work

Mr. Doe can do that makes use of his skills. All he can do is

sedentary unskilled work. He has no advantage over other

workers and thus considering his age and educational back-

ground, Grid 201.10 dictates a finding of disabled.

Mr. Quillen worked as a plater repairman for Firestone Steel

Products. This is medium to heavy semi-skilled work. His

non-exertional pulmonary condition does not allow for the

transferability of his work skills. In other words he cannot per-

form the sedentary work in which he could use his skills. All he

can do is sedentary unskilled work. He has lost his advantage

over other workers and thus considering his age and education

background, Grid 201.10 also dictates a finding of disabled.

This is no difference whatsoever between these men under

the law.

WHEREFORE, Petitioner prays that the Court grant cer-

tiorari and reverse the decision of the Sixth Circuit and either

order the Secretary to award benefits or remand for proper

consideration of the grids under Heckler v Campbell.

Respectively submitted,

BERNSTEIN & BERNSTEIN, P.C.

BY: /s/ MIcHAEL J. CANTOR

MICHAEL J. CANTOR

Attorneys for the Petitioner

3000 Town Center, Suite 1601

Southfield, MI 48075-1298

(313) 350-3700

APPENDIX

TABLE OF CONTENTS

PAGE

ORDER OF COURT OF APPEALS May 29, 1986.. = A-1

ORDER OF COURT OF APPEALS July 9, 1986... —_B-1

MAGISTRATE’S REPORT AND |

RECOMMENDATION..................0-. C-1

JUDGMENT AND ORDER OF DISTRICT

Be D-1

AMENDED ORDER AND JUDGMENT........ E-1

ACTION OF APPEALSCOUNCIL ............ F-1

DECISION OF ADMINISTRATIVE LAW

A-1

NOT RECOMMENDED FOR PUBLICATION,

LOCAL RULE 24

No. 85-1445

UNITED STATES

COURT OF APPEALS

FOR THE SIXTH CIRCUIT

GEODECKI QUILLEN,

Plaintiff-A ppellant, ON APPEAL FROM

THE UNITED STATES

DISTRICT COURT

SECRETARY OF HEALTH AND FOR THE EASTERN

HuMAN SERVICES, DISTRICT OF MICHIGAN

Defendant-A ppellee.

Decided and Filed

V.

Before: Contie and Ryan, Circuit Judges; and Brown,

Senior Circuit Judge.

Per Curiam. Plaintiff-Appellant Geodecki Quillen (plaintiff)

appeals from a judgment entered by the district court affirm-

ing the decision of the Secretary of Health and Human Serv-

ices (Secretary) denying plaintiff social security disability

benefits. On appeal, plaintiff principally claims the decision of

the Secretary was not supported by substantial evidence. For

the reasons set forth below, we affirm the judgment of the

district court.

Plaintiff was born in 1932 and has a limited education. Plain-

tiff last worked as a plater repairman for Firestone Steel Prod-

ucts on April 26, 1982. This job was classified as semi-skilled

and required medium to heavy lifting, stooping and bending.

A-2

Plaintiff filed an application for social security disability

benefits on August 6, 1982, claiming disability due to back

and knee problems. This application was denied initially and

upon reconsideration. Plaintiff received review of his applica-

tion before an administrative law judge (ALJ), who in a deci-

sion dated September 27, 1983, denied plaintiff’s request for

benefits. The ALJ found that plaintiff had demonstrated

medical impairments, severe post-laminectomy syndrome and

chronic obstructive lung disease, but had retained the residual

functional capacity to perform a full range of sedentary work.

Thereafter, the Appeals Council on January 26, 1984, denied

plaintiff’s request for review.

Plaintiff filed the instant action in district ccourt on March 6,

1984, seeking review of the final decision of the Secretary. The

district court appointed a magistrate to consider this clain: and

to file a report and recommendation. The magistrate recom-

mended that the decision of the Secretary be affirmed and this

recommendation was adopted by the district court on April 9,

1985.' Thereafter, plaintiff filed an appeal with this court on

May 30, 1985.

There is no disagreement in the instant case that plaintiff

suffers from physical impairments which preclude him from

returning to his former line of work. The evidence presented

by plaintiff and noted by the ALJ in his report indicates that

plaintiff suffers from post-laminectomy syndrome and chronic

obstructive lung disease. The issue is whether plaintiff’s

medical conditions rise to the level of ‘‘disability’’ within the

meaning of the regulations such that plaintiff cannot ‘‘engage

' An amended order and judgment, again adopting the magistrate’s report,

was subsequently filed on June 13, 1985 recognizing plaintiff's objections to

the magistrate’s report. The April 9th order had erroneously stated that

neither party had objected to the magistrate’s report and recommendation.

A-3

in any other kind of substantial gainful work which exists in

the national economy... . .’’ 42 U.S.C. § 423(d)(2)(a) (1982).

The ALJ found that plaintiff had residual functional capacity

to perform a full range of sedentary work. Similarly, the

magistrate found that plaintiff was capable of unskilled work

in a clean environment. Citing the testimony of the vocational

expert, the magistrate stated that ‘‘given plaintiff’s ability to

do only sedentary work, there are 6,000 to 8,000 unskilled

sedentary jobs which could be performed despite [plaintiff’s]

pulmonary deficiency and lower back pain.’’ Report and

Recommendation of the Magistrate at 6.

Plaintiff disagrees with the magistrate’s conclusion that

there are 6,000 to 8,000 jobs in the Detroit area that he is able

to perform. Plaintiff claims that this conclusion, which was

based on the testimony of the vocational expert, does not take

into account the fact that plaintiff suffers from a severe limita-

tion of forward flexion. Moreover, plaintiff claims, according

to the testimony of the vocational expert, the 6,000 to 8,000

jobs require a forward flexion of at least forty-five degrees, a

range of motion which the plaintiff lacks.

Plaintiff’s contention is based on the following testimony

by the vocational expert:

ALJ: [H]e indicated that the forward [flexion] of the in-

dividual was only to fifteen degrees as compared to what

ninety would be full forward [flexion]. Would that in any

way affect sedentary work?

Expert: [I]t would be my general observation that people

...do sedentary work either at a machine or either at a

bench. Assuming a totally upright position to be ninety

degrees if my geometry is right today. I would say the

[sic] most people work at a position that approximates

forty-five degrees, that is they don’t bend all the way over

to ninety but you do tilt forward to a bench, to a

A-4

machine, to a table, and it would seem to me again it

would seem that you would have half of the normal full

range of forward [flexion].

ALJ: Are you telling me that anyone that [sic] doesn’t

have a forty-five degree [flexion] can’t do anything?

Expert: If I’m understanding as I say the geometry [is]

correct, it would seem very difficult.

Joint Appendix at 94. Certainly, this testimony, although

somewhat vague, supports plaintiff’s position that the

number of unskilled, sedentary jobs the magistrate found

plaintiff capable of performing was far more limited in

number than indicated by the magistrate in his report.

However, the vocational expert also indicated that one who

could sit, eat, read and write at a table was capable of perform-

ing sedentary work. There is no dispute that plaintiff can per-

form these tasks. Moreover, contrary to plaintiff’s claims of

severe motion limitation, there is evidence in the record from

Dr. Newman, plaintiff’s last treating physician, indicating

that plaintiff has a forward flexion of forty-five degrees which

would permit him to perform a full range of sedentary work.

Plaintiff next claims that the magistrate failed to address

why plaintiff’s case did not fit within Rule 210.10 of 20

C.F.R., Part 404, Subpart P, App. 2 (1985) (the grid). Plain-

tiff maintains that his advanced age, limited education and

non-transferable job skills direct a finding under Rule 201.10

of disabled.?

2 Rule 210.10 directs a finding of disabled where the claimant is closely

approaching advanced age, has less than a high school education and has

skills which are not transferable. A thorough discussion of the mechanics

of the grid is contained in Kirk v. Secretary of Health and Human Services, 667

F.2d 524 (6th Cir. 1981), cert. denied, 461 U.S. 957 (1983).

A-5

Plaintiff’s reliance on Rule 201.10 is misplaced. The grid is

only directly applicable where exertional impairments or limita-

tions preclude the transferability of work skills. 20 C.F.R.,

Part 404, Subpart P, App. 2, Section 200.00(e)(1). In the in-

stant case, plaintiff has an exertional and a nonexertional

limitation. The nonexertional limitation, plaintiff’s pulmonary

condition, does not allow for the transferability of his work

skills. Therefore, as recognized by the magistrate, it is inap-

propriate to utilize the grid in any manner other than as a

guide. 20 C.F.R., Part 404, Subpart P, App. 2, Section

200.00(d).

Accordingly, the judgment of the district court is affirmed.

B-1

No. 85-1445

United States Court of Appeals

for the Sixth Circuit

GEODECKIE QUILLEN,

Plaintiff-A ppellant,

ORDER

¥ %

SECRETARY OF HEALTH AND

HuMAN SERVICES,

Defendant-A ppellee

BEFORE: CONTIE and RYAN, Circuit Judges, and

BROWN, Senior Circuit Judge

The Court having received a petition for rehearing en banc,

and the petition having been circulated not only to the original

panel members but also to all other active judges of this Court,

and no judge of this Court having requested a vote on the sug-

gestion for rehearing en banc, the petition for rehearing has

been referred to the original hearing panel.

The panel has further reviewed the petition for rehearing

and concludes that the issues raised in the petition were fully

considered upon the original submission and decision of the

case. Accordingly, the petition is denied.

ENTERED BY ORDER OF THE COURT

/s/ JOHN P. HEHMAN

John P. Hehman, Clerk

C-1i

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GEODECKI QUILLEN,

Plaintiff, Civil No. 84-CV-1397-DT

VS. Hon. Robert E. DeMascio

SECRETARY OF HEALTH

AND HUMAN SERVICES,

Defendant.

MAGISTRATE’S REPORT AND RECOMMENDATION

This is an action timely filed under §205(g) of the Social

Security Act, as amended, 42 U.S.C. §405(g), to review a

final decision of the Secretary of Health and Human Services

denying plaintiff’s application for disability benefits. Motions

for Summary Judgment have been submitted by both parties.

Geodeckie Quillen, born on July 15, 1932, has a marginal

(fifth grade) education and work experience as a job setter for

17 years, a semi-skilled and heavy job, and as a plater repair-

man for 3 years, a semi-skilled and medium job (Tr. 113, 86).

He filed for disability insurance benefits on August 6, 1982,

alleging disabling back problems. After exhausting admini-

strative remedies, he filed the complaint on March 26, 1984.

At his de novo hearing plaintiff testified that he retired early

because there were no light jobs available where he worked

(Tr. 48). He was and is restricted to light activity due to con-

stant lower back pain radiating into the right leg. He also has

breathing problems, including shortness cf breath when walking

(Tr. 58, 68, 70). He sits 30 to 40 minutes before he must stretch

and only drives about 5 miles a week (Tr. 62-64). He can walk

aia aii

C-2

2 blocks but can do no climbing (Tr. 70). He had disc surgery

in 1972 and has been undergoing treatment since that time

(Tr. 66-67). He does some gardening and tries to do yard-

work when his children are not available (Tr. 74). During the

hearing he adjusted his position and leaned to one side to ease

the pain (Tr. 78). Plaintiff’s medications include theovent,

tolectin, fiornal #3, flexoril and ascripton. He also wears a

back brace (Tr. 174).

In support of his claim, plaintiff submitted medical records

beginning with hospitalization in 1980 for back pains. X-rays

were essentially normal, however, and plaintiff responded

favorably with conservative treatment. He was discharged

with a diagnosis of degenerative disc disease (Tr. 138-41). In

August. 1981, he reentered the hospital with back and right

knee pain. X-rays of the spine showed asymmetry in the lum-

bar spine but no arthritis and only slight sacral base unlevel-

ing. X-rays of the right knee were essentially normal. He im-

proved substantially with conservative treatment and was

discharged with a diagnosis of chronic lumbar myositis and

myofibrositis (Tr. 142-51). In November, 1981, plaintiff was

examined by Dr. Ziegler, a neurologist, who reported com-

plaints of constant pain in the lumbosacral area into the legs.

Plaintiff walked with a limp. Range of motion of the lumbar-

spine was decreased, but there were no ankle spasms. He sat

on the examination table with legs forward. Although there

was no motior. weakness in the extremities, there was decreas-

ed sensory perception over dermatones on the left, which has

been present since 1971. Dr. Ziegler’s clinical impression was

chronic nerve root irritation (Tr. 152-54).

In December, 1981, plaintiff reentered the hospital with

low back and left leg pain. X-rays of the lumbar spine revealed

minimal spondylosis and curvature of the spine to the left. An

EMG showed a minimal extradural defect. Plaintiff responded

favorably to conservative treatment and was released with a

C-3

discharge diagnosis of lumbar myositis, myofibrositis, and

post-laminectomy syndrome (Tr. 132-37, 155-60). The Sec-

retary’s consultative examiner reported in September, 1982,

that plaintiff walks with a limp, has curvature of the spine but

no muscle spasm, decreased range of motion in the lumbar

spine, difficulty tip-toeing and squatting, positive straight leg

raising at 30° right and 60° left, and some sensory deficits in

the right leg with normal range of motion. Plaintiff could get

onto the examination table and lie on his back with no trouble.

X-rays of the right knee showed slight narrowing with no evi-

dence of arthritis. X-rays of the lumbar spine were fairly nor-

mal with normal disc spaces and no degenerative spotting.

The examiner concluded that plaintiff has gross limitations of

back motions but no neurological involvement to suggest

nerve root involvement (Tr. 161-65).

In November, 1982, plaintiff’s treating physician indicated

in a somewhat cryptic report that plaintiff has hypothesia in

the right calf and pain on straight leg raising although these

symptoms come and go (tr. 168-69). In May, 1983, plaintiff’s

other treating physician indicated he has been treating plaintiff

since 1980 primarily for a respiratory problem. Chest x-rays

were normal but pulmonary function testing was moderately

abnormal. Since 1980 his coughing and shortness of breath

have exacerbated a couple of times. A pulmonary function test

in January, 1983, was unofficially interpreted as indicating

severe restrictive lung disease although the doctor’s report

clinically interpreted plaintiff’s disease as moderate

(Tr. 175-77). In June, 1983, Dr. Athens indicated that plain-

tiff’s pulmonary condition is stable because he is restricted to

clean environments (Tr. 34). In July, 1983, plaintiff under-

went another consultative examination, which revealed

diminished breath sounds, decreased range of motion in the

dorsolumbar spine, tenderness, pain on straight leg raising,

decreased range of motion in the knees, some ankle spasms, a

C-4

limp, and difficulty changing positions from standing to stit-

ting. An EMG showed increased resistance and polyphasic

activity; nerve conduction studies showed delays. Neither was

accompanied by a report interpreting these findings, how-

ever. Dr. Newman interpreted these tests as demonstrative of

changes consistent with sciatic nerve root irritation. No x-rays

were performed (Tr. 178-80).

The Administrative Law Judge (ALJ) found that plaintiff

has severe post-laminectomy syndrome and chronic obstruc-

tive lung disease and cannot return to his past relevant work.

The ALJ further concluded, however, that the clinical find-

ings and subjective testimony do no substantiate severe pain

which precludes all significant gainful activity. To the con-

trary, he is able to do a full range of sedentary work. There-

fore, pursuant to 20 C.F.R. Subpart P, Appendix 2, rule

201.11, he is not disabled; and benefits were denied.

The vocational expert testified that plaintiff’s transferable

skills include knowledge of mechanics, conveyor lines, and

plating lines and the ability to use a fairly wide range of hand

tools (Tr. 86). Assuming someone of plaintiff’s age, exper-

ience, and background who can do light work in a clean environ-

ment, there are unskilled jobs, such as night watchman, light

landscaping, and usual inspector for that person to perform.

Limiting that person to only sedentary work, he can still do

unskilled forms of inspection, packaging, and light bench

work (Tr. 86-87, 89-90). Plaintiff’s skills would not transfer

to sedentary jobs because no jobs involving those skills exists

in a clean environment (Tr. 86-87). However, there would be

little, if any, vocational adjustment for plaintiff to any of the

aforementioned jobs (Tr. 88-89).

The Magistrate finds that the ALJ’s reliance on the

medical-vocational guidelines to reach the conclusion that

plaintiff is not disabled was misplaced in this case. The grid in

C-5

Appendix 2 to C.F.R. Subpart P was upheld against constitu-

tional attack in Kirk v. Secretary of Health and Human Services, 667

F.2d 524 (6th Cir. 1981). However, the grid comes into play

only when the claimant’s characteristics precisely coincide with

the grid. In any other situation, the grid is used at most for

guidance. Id. at 535. In the case at bar, reliance on the grid

was inappropriate because plaintiff’s characteristics do not

precisely coincide. The ALJ relied on rule 201.11, which in-

cludes a finding that the claimant has acquired skills trans-

ferable to other employment. The vocational expert testified,

however, that plaintiff’s skills would not transfer to any semi-

skilled, sedentary or light jobs because of the industrial setting

in which they are located. Plaintiff’s pulmonary problems

preclude work in a non-clean, industrial setting. The ALJ

found: that the medical evidence shows that plaintiff’s pul-

monary dysfunction limits him to sedentary work. Reading

the ALJ’s findings and the vocational expert’s testimony in

conjunction defeats the use of the grid in this case.

Since the grid does not apply here, the vocational expert’s

testimony is pivotal. He testified that given plaintiff’s ability

to do only sedentary work, there are 6,000 to 8,000 unskilled

sedentary jobs which could be performed despite his pulmon-

ary deficiency and lower back pain. Vocational adjustment to

these entry-level jobs would be minimal. I believe this is sub-

stantial evidence that plaintiff can do sedentary work despite

his impairments.

D-2

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GEODECKIE QUILLEN,

Plaintiff

Civil

VS. No. 84-CV-1397-DT

SECRETARY OF HEALTH ~ Hon. Robert E. Demascio

AND HuMAN SERVICES,

Defendant.

ORDER ACCEPTING MAGISTRATE’S

REPORT AND RECOMMENDATION

Plaintiff filed this complaint seeking review of the Secretary

of Health and Human Services’ decision denying his applica-

tion for disability benefits. The plaintiff then filed a Motion

for Summary Judgment, which the court referred to a Magis-

trate for a Report and Recommendation. The court has re-

viewed the administrative record, supporting brief and the

Magistrate’s Report and Recommendation, to which neither

party has objected and time for filing objections has expired.

The Magistrate found that the Secretary’s decision is sup-

ported by substantial evidence. We agree with the Magistrate’s

findings and conclusions.

ACCORDINGLY, IT ISORDERED that the Magistrate’s

Report and Recommendation is hereby adopted and a Judg-

ment shall enter accordingly.

/s/ RosBert E. DEMAaAscIo

UNITED STATES DISTRICT JUDGE

Dated: April 09, 1985

E-1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GEODECKIE QUILLEN,

Plaintiff

Civil Action

VS. No. 84-1397

SECRETARY OF HEALTH Honorable Robert E. DeMascio

AND HuMAN SERVICES,

Defendant.

AMENDED ORDER & JUDGMENT

Plaintiff filed this complaint seeking review of the Secretary

of Health and Human Services’ decision denying his applica-

tion for disability benefits. The plaintiff then filed a motion for

summary judgment, which the court referred to a magistrate

for a report and recommendation. The court has reviewed the

administrative record, supporting brief and the magistrate’s

report and recommendation, together with plaintiff’s objec-

tions thereto. The Magistrate found that the Secretary’s deci-

sion is supported by substantial evidence. Plaintiff has not

raised any meritorious argument in his objections. We agree

with the Magistrate’s findings and conclusions.

NOW, THEREFORE, IT IS ORDERED that the Magis-

trate’s Report and Recommendation is hereby adopted;

E-2

IT IS FURTHER ORDERED that the plaintiff’s motion

for summary judgment be and the same hereby is DENIED

and this cause of action DISMISSED.

/s/ Rosert E. DEMascio

Robert E. DeMascio

United States District Judge

Dated: June 13, 1985

F-1

DEPARTMENT OF HEALTH & HUMAN SERVICES

Refer to:

SGC

47-38-8373

Social Security Administration

Office of Hearings and Appeals

PO Box 3200

Arlington VA 22203

Janury 26, 1984

ACTION OF APPEALS COUNCIL ON REQUEST

FOR REVIEW

Mr. Geodecki E. Quillen

a/k/a Ellis G. Quillen

254 Washington

Trenton, MI 48183

Dear Mr. Quillen:

The request for review of the Administrative Law Judge’s

decision in your case has been considered.

Social Security Administration regulations provide that the

Appeals Council will grant a request where: (1) there appears

to be an abuse of discretion by the Administrative Law Judge;

(2) there is an error of law; (3) the Administrative Law Judge’s

action, findings, or conclusiozs are not supported by substan-

tial evidence; or (4) there is a broad policy or procedural issue

which may affect the general public interest. (These provi-

sions are contained in 20 CFR 404.970 for Social Security

claims under Title II of the Social Security Act and in 20 CFR

F-2

416.1470 for supplemental security income claims under Title

XVI of the Act.)

The Appeals Council has concluded that there is no basis

under the above regulations for granting your request for

review. Accordingly, your request is denied and the Adminis-

trative Law Judge’s decision stands as the final decision of the

Secretary in your case. In reaching this conclusion, the Ap-

peals Council carefully considered each of the contentions

raised by your representative in her brief dated November 29,

1983, but decided that these contentions do not provide a basis

for changing the Administrative Law Judge’s decision.

If you desire a court review of the Administrative Law

Judge’s decision, you may commence a civil action in the dis-

trict court of the United States in the judicial district in which

you reside within sixty (60) days from the date of receipt of this

letter. It will be presumed that this letter is received within five

(5) days after the date shown above unless a reasonable show-

ing to the contrary is made. See section 205(g) of the Social

Security Act, as amended (42 U.S.C. 405(g)) for claims

under Title II; section 1631(c)(3) of the Act (42 U.S.C.

1383(c)(3)) for claims under Title XVI; and 20 CFR 422.210.

If a civil action is commenced, your complaint should name

the Secretary of Health and Human Services as the defendant

and should include the Social Security number(s) shown at the

top of this notice.

Sincerely yours,

/s/ PauL J. FitzPaTRICK

Paul J. Fitzpatrick

Member, Appeals Council

cc:

Judith A. Fleming, Esq.

Detroit, MI 48226

G-1

DEPARTMENT OF HEALTH & HUMAN SERVICES

Refer to:

Social Security Administration

Office of Hearings and Appeals

Name and Address of Claimant:

Geodeckie E. Quillen

254 Washington

Trenton, Michigan 48183

NOTICE OF DECISION — DENIAL

PLEASE READ CAREFULLY

If you disagree, in whole or in part, with the enclosed deci-

sion you have the right to request the Appeals Council to

review it within 60 days after the date of receipt of this notice.

It will be presumed you received this notice within 5 days after

the date shown below, unless you show us that you did not

receive it within the 5-day period.

If you wish to request review, you (or your representative)

should file the request at your local Social Security office. The

people there will supply you with a request for review form

and will be glad to assist you in completing the form. How-

ever, if you prefer, you may file your request for review at the

hearing office or by sending a letter, requesting review, directly

to the Appeals Council, Office of Hearings and Appeals, P.O.

Box 2518, Washington, D.C. 20013.

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Unless you file a timely request for review by the Appeals

Council, you may not obtain a court review of your case under

section 205(g), 1631(c)(3), or 1869(b) of the Social Security

Act as amended.

This notice and enclosed copy of hearing

decision mailed

September 27, 1983

cc:

Name and Address of Representative:

Judith A. Fleming, Esq.

1632 First National Bldg.

Detroit, Michigan 48226

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DEPARTMENT OF

HEALTH AND HUMAN SERVICES

Social Security Administration

OFFICE OF HEARINGS AND APPEALS

DECISION

IN THE CASE OF:

Geodeckie E. Quillen

(Claimant)

CLAIM FOR:

Period of Disability and

Disability Insurance Benefits

407-38-8373

(Social Security Number)

This case is before me on a request for hearing. I have care-

fully 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 ex-

pected 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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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.

If it 1s determined that a claimant ts or ts not disabled at any point in the

review, further review ts not necessary.

Social Security Administration Regulations No. 4 requires

that I consider the following in sequence:

1. An individual who is working and engaging in sub-

stantial 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 impair-

ment’ will not be found to be ‘‘disabled’’ (20 CFR

404.1520(e));

3. If an individual is not working and is suffering from a

severe impairment which meets the duration requirement

and which ‘‘meets or equals a listed impairment in Appen-

dix 1 of Subpart P of Regulations No. 4, a finding of ‘‘dis-

abled’’ 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. Ifan individual’s impairment is so severe as to preclude

the performance of past work, other factors 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)).

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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). Ifa finding of disabled cannot be made based

on strength limitations alone, the rules established in Appen-

dix 2 are used as a framework in evaluating ‘‘disability.’’ In

cases where the individual has solely a nonexertional impair-

ment, a determination as to whether disability exists shall be

based on the principies in the appropriate sections of the regu-

lations, giving consideration to the rules for specific case situa-

tions in Appendix 2.

In applying the sequential steps outlined above, I conclude

that a decision on whether the claimant is disabled cannot be

made based on work activity or on medical facts alone. More-

over, the record establishes that the claimant cannot perform

his past relevant work. However, considering the claimant’s

residual functional capacity and his age, education, and past

work experience, I further conclude that there are other jobs

which the claimant can perform and that such jobs exist in

significant numbers in the national economy. Consequently,

it must be found that the claimant is not disabled within the

meaning of the Social Security Act.

The claimant is 51 years old and has a 4th grade education.

He worked for Firestone as a plater repairman and a job set-

ter. He is now retired from the company because they said

that with the restrictions placed on him by the doctor, there

were no jobs available to him. He said he cannot work now be-

cause of constant low back pain which radiates into his right

leg causing him to drag it. He has been hospitalized on three

occasions for traction and a myelogram and has also received

therapy for his back as an outpatient. He becomes short of

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breath on walking a block and is currently receiving shots for a

calcium deposit in his right shoulder. He can only sit for 30 to

40) minutes at a time and mentioned that on a trip to Cincin-

nati, although he was not driving they had to stop eight times

because he would get cramps in his legs. He gets up at 5:30 in

the morning, because his back pains him, and takes a muscle

relaxer; he spends the day sitting around or laying on the floor

watching television; sometimes, he may do some work in his

little garden or just sit outside and sleep.

The vocational expert who was present testified that his past

work was semi-skilled and ranged from medium to heavy. He

has transferable skills which include general mechanical abili-

ty, a knowledge of conveyor and plating lines and of hand

tools. Assuming that he is limited to light work in a clean at-

mosphere, he said the claimant is qualified to do such unskill-

ed work as nightwatchman, certain types of landscaping,

stock work and visual final inspection. If he were limited to

sedentary work in a clean atmosphere, he could do unskilled

final inspection, packaging and bench assembly of small ob-

jects. He could transfer his skills to light machine set-up and

repair if he did not need a clean atmosphere; he could also do

machine set-up at a sedentary level under these conditions.

Mr. Quillen was hospitalized from December 30, 1981 to

January 3, 1982 with back and left leg pain. A myelogram

revealed a minimal extradural defect, he was treated with

bedrest, conservative care and pelvic traction, responded

‘‘rather faborably’’ and was discharged (Exhibit 12). He had

also been hospitalized in August 1980 and August 1981 for

pelvic traction (Exhibits 13 and 14).

In addition, he was evaluated on November 4, 1981 by

Dr. John W. Ziegler (Exhibit 15) with complaints of constant

pain in the lumbosacral area extending down the left leg with

more pain and weakness in the right knee. He walked with a

limp favoring his right leg but stood normally and was able to

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do heel, toe and tandem walking. All motions of the lumbar

spine were limited. Rhomberg and Laseque were negative.

The doctor concluded that he had nerve root irritation at

L4/L5, left, chronic and he recommended a TENS.

November, 1982, Dr. Yurkanian, the treating physician,

reported the claimant had a post-laminectomy syndrome with

hypesthesia of the right calf and pain on straight leg raising,

bilaterally (Exhibit 19).

Dr. A. N. Sinha, performed an orthopedic evaluation on

September 20, 1982 (Exhibit 17). The claimant walked with a

slight limp and range of motion of the lumbar spine was

restricted. There was difficulty tiptoeing and squatting but he

was able to get up on the examining table without trouble.

Straight leg raising was painful at 30 degrees on the right and

at 60 degrees on the left; there was no muscle atrophy in the

legs. An x-ray of the right knee showed no evidence of degen-

erative arthritis and an x-ray of the lumbar spine appeared

fairly normal. There were no neurological deficits to suggest

any persistent nerve root involvement in the lower back.

With respect to his pulmonary problem, Dr. William Athens

reported that he had known the claimant since April 15, 1980

at which time a chest x-ray was normal and pulmonary func-

tion tests revealed moderate obstructive lung disease. He was

treated with antibiotics, bronchodilators and told not to smoke

and to avoid air pollution. Since then he as been seen several

times for exacerbations.

On July 25, 1983, Dr. S.E. Newman at request of counsel

evaluated claimant. He reports claimant was 5’2%”’ weighing

236 pounds with blood pressure of 136/86. Electromyographic

examination showed increased resistance to needle insection

in the L2 through S2 area. The anterior primary divisions

demonstrated polyphasic activity at L5-S1. Claimant advised

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he has had back problems over a ten year duration. Dr. New-

man was of the opinion based upon history and clinical find-

ings that claimant would be limited in lifting, stooping, turn-

ing, twisting, prolonged sitting, standing, walking and the

like.

The claimant has not engaged in substantial gainful activity

since April 27, 1982. He has a severe impairment but it does

not meet or equal any listed in Appendix 1. I find his testi-

mony of constant severe low back pain to be exaggerated. The

clinical findings and his activity do not substantiate this

degree of pain. The most recent x-ray was ‘‘fairly normal’’

and there were no neurological deficits. While I do not doubt

that Mr. Quillen has some discomfort, it is not as severe as

alleged. He was observed at the hearing to sit in a relaxed

manner, leaned back in his chair and move his arms freely.

He also has some degree of pulmonary dysfunction and the

combination would limit him, in my opinion, to the perfor-

mance of sedentary work. His past work was medium to heavy;

therefore, he cannot return to this work. However, considering

his age, which is defined as closely approaching advanced age,

and his limited education, in combination with his semi-skilled

work background and the fact that he has transferable skills,

Rule 201.11, Table No. 1, Appendix 2, Subpart P, Regulations

No. 4 is applicable. Since Regulation 404.1569 provides that

when the findings of fact are the same as the rule, we use the

rule to decide whether a person is disabled. The claimant must

be found ‘‘not disabled’’.

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FINDINGS

After careful consideration of the entire record, I make the

following findings:

1. The claimant met the disability insured status require-

ments of the Act on April 27, 1982, the date the claimant

stated he became unable to work, and continues to meet

them December 31, 1985.

2. The claimant has not engaged in substantial gainful

activity since April 27, 1982.

3. The medical evidence establishes that the claimant

has severe post-laminectomy syndrome and chronic obstruc-

tive lung disease, but that he does not have an impairment

or combination of impairments listed in, or medically equal

to one listed in Appendix 1, Subpart P, Regulations No. 4.

4. The claimant’s allegations as to the severity of his

pain are exaggerated.

5. The claimant has the residual functional capacity to

perform the physical exertion requirements of work except

for lifting and carrying more than 10 pounds or engaging in

prolonged walking or standing. There are no nonexertional

limitations (20 CFR 404.1545).

6. The claimant is unable to perform his past relevant

work as plater repairman and job setter.

7. The claimant has the residual functional capacity to

perform the full range of sedentary work (20 CFR 404.1567).

8. The claimant is 51 years old, which is defined as closely

approaching advanced age (20 CFR 404.1563).

9. The claimant has a limited education (20 CFR

404.1564).

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10. The claimant has acquired work skills, such as

general mechanical ability, knowledge of conveyor and

plaint lines and use of hand tools which he demonstrated in

past work. Considering his residual functional capacity,

these skills can be applied to meet the requirements of semi-

skilled work activities of other work which exists in signifi-

cant numbers in the national economy (20 CFR 404. 1568).

Examples of such jobs are machine set-up.

11. Section 404.1569 of Regulations No. 4 and Rule

201.11, Table No. 1 of Appendix 2, Subpart P, Regula-

tions No. 4, direct a conclusion that, considering the claim-

ant’s residual functional capacity, age, education, and

work experience, he is not disabled.

12. The claimant was not under a ‘‘disability,’’ as defined

in the Social Security Act, at any time through the date of

this decision (20 CFR 404.1520(f)).

DECISION

It is my decision that, based on the application filed on

August 6, 1982, the claimant is not enutled to a period of

disability or disability insurance benefits under sections 216(i)

and 223, respectively, of the Social Security Act.

/s/ ALFRED J. MorapD

Alfred J. Morad

Administrative Law Judge

Dated: September 27, 1983