SSR 87-11c: SECTIONS 205(g) AND 223(d) OF THE SOCIAL SECURITY ACT (42 U.S.C. 405(g) AND 423(d)) DISABILITY -- LOSS OF USE OF LIMB PREVENTS PERFORMANCE OF PAST WORK -- "EMPLOYABILITY" IMMATERIAL IN DETERMINING ABILITY TO DO OTHER WORK

20 CFR 404.1520(f)(1) AND 404.1566(c)

SSR 87-11c

Odle v. Secretary of Health and Human Services , 788 F.2d 1158 (6th

Cir. 1985)

PER CURIAM:

Plaintiff-appellant, Joseph Odle, Jr., appeals from the District Court

order affirming the decision of the Secretary of the Department of Health

and Human Services ("the Secretary") denying social security disability

insurance benefits. Appellant was born on October 16, 1928, attended but

did not complete the eighth grade, and worked as a tractor-trailer

driver-dockman for twenty-three years. Appellant initially filed an

application for social security disability insurance benefits on October

27, 1982 alleging disability, beginning November 18, 1981, from arthritis

and an injury to the tendons of his left hand. The Secretary denied the

application initially and again on reconsideration. Appellant requested a

hearing before an Administrative Law Judge ("ALJ"). Although the ALJ found

that appellant suffered from a severe impairment, the ALJ concluded that

given appellant's residual functional capacity and his age, education, and

work experience, other jobs existed in significant numbers in the national

economy which appellant could perform. Accordingly, the ALJ concluded that

appellant was not disabled. The Appeals Council denied appellant's request

for review of the ALJ's decision. Appellant brought this action in the

United States District Court for the Western District of Kentucky. For the

reasons set forth below, we affirm the District Court order granting

summary judgment for the Secretary and dismissing the complaint.

Accordingly, the ALJ concluded that

appellant was not disabled. The Appeals Council denied appellant's request

for review of the ALJ's decision. Appellant brought this action in the

United States District Court for the Western District of Kentucky. For the

reasons set forth below, we affirm the District Court order granting

summary judgment for the Secretary and dismissing the complaint.

On November 18, 1981, appellant injured his left upper extremity while

lifting heavy boxes from a pallet to a tractor-trailer. When splinting did

not relieve appellant's pain, Dr. Thomas W. Wolff performed exploratory

surgery, which revealed extensive synovitis of the left wrist, on December

15, 1981. Dr. Wolff also admitted appellant to the hospital in February

1982 for a series of stellate blocks. Dr. Wolff later prescribed

aggressive physical therapy sessions. Appellant underwent another series

of stellate blocks in August 1982. In a April 6, 1983 letter, Dr. Wolff

stated that appellant has a PIP joint flexion contracture of the index and

small fingers on his left hand. The letter concluded: "Mr. Odle does have

a permanent disability rating of 45% to the left small finger, 30% to the

left index finger, 10.5% left hand, 29.5% left upper extremity and 14.5%

total body. He has limited wrist motion due to pain." At the

administrative hearing, appellant testified that since the incident he has

experienced continuous pain in his left shoulder, arm, and hand. Appellant

stated his hand "tingles all the time,"

nent disability rating of 45% to the left small finger, 30% to the

left index finger, 10.5% left hand, 29.5% left upper extremity and 14.5%

total body. He has limited wrist motion due to pain." At the

administrative hearing, appellant testified that since the incident he has

experienced continuous pain in his left shoulder, arm, and hand. Appellant

stated his hand "tingles all the time,"

Dr. Charles R. Taylor, an orthopedic surgeon, stated that since surgery

appellant has had limited use of his left wrist. Dr. Taylor reported that

appellant retained the maximum capacity to lift and/or carry twenty

pounds, that appellant could frequently lift and/or carry ten pounds,

stand and/or walk a total of about six hours per eight hour day, sit a

total of about six hours per eight hour day, and that appellant could push

and pull except with his left hand. Dr. Taylor indicated that appellant

could frequently climb, balance, stoop, kneel, crouch, and crawl, and that

appellant's medical condition did not limit his reaching, handling,

fingering, feeling, seeing, hearing, or speaking. Dr. Winfrey P.

Blackburn, a general surgeon, reached almost identically the same

conclusion.

Dr. William F. Kelly, a vocational expert, testified at the

administrative hearing that appellant could work as a clerk for a

self-service station, self-parking lot, or drug-store, or as an unarmed

guard or doorkeeper. Dr. Kelly stated that appellant could perform the

jobs with one arm. Dr. Taylor concluded that appellant could perform a

full range of light work as defined in the Dictionary of Occupational

Titles. Dr. Taylor gave machine tending and non-complex clerical work as

examples of the types of jobs appellant could perform. Dr. Hugh F.

Stallworth reached the same conclusions.

ard or doorkeeper. Dr. Kelly stated that appellant could perform the

jobs with one arm. Dr. Taylor concluded that appellant could perform a

full range of light work as defined in the Dictionary of Occupational

Titles. Dr. Taylor gave machine tending and non-complex clerical work as

examples of the types of jobs appellant could perform. Dr. Hugh F.

Stallworth reached the same conclusions.

Appellant raises the question whether substantial evidence supports the

Secretary's finding that appellant was not disabled. Under 42 U.S.C. §

405(g), "[t]he findings of the Secretary as to any fact, if supported by

substantial evidence, shall be conclusive. . . ." The Supreme Court has

defined substantial evidence as " 'more than a mere scintilla. It means

such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.' " Richardson v. Perales, 402, U.S. 389, 401,

91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971), quoting Consolidated Edison

Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216-17, 83 L.Ed. 176

(1938). We may not overturn the Secretary's findings unless this panel

determines that substantial evidence does not support those findings. Kirk v. Secretary , 667 F.2d 524, 535 (6th Cir. 1981), cert.

denied, 461 U.S. 957, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983). The

ALJ's findings of fact became the Secretary's findings when the Appeals

Council allowed the ALJ's decision to stand as the final decision of the

Secretary.

The Social Security Administration has promulgated 20 C.F.R. § 404.1520

e does not support those findings. Kirk v. Secretary , 667 F.2d 524, 535 (6th Cir. 1981), cert.

denied, 461 U.S. 957, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983). The

ALJ's findings of fact became the Secretary's findings when the Appeals

Council allowed the ALJ's decision to stand as the final decision of the

Secretary.

The Social Security Administration has promulgated 20 C.F.R. § 404.1520

(1985), which establishes a five-step sequential process for evaluating

claims for social security disability insurance benefits. Under the first

step, the Security determines whether a claimant currently engages in

substantial gainful activity. If so, the claimant does not qualify as

disabled. Second, the Secretary examines the severity of the claimant's

impairment or impairments. If the claimant does not have a severe

impairment or impairments, the claimant cannot qualify as disabled. Third,

the Secretary compares the claimant's impairment or impairments to the

"Listing of Impairments" in 20 C.F.R. Part 404, Subpart P, Appendix 1. The

Secretary will find the claimant disabled if Appendix 1 lists the

claimant's impairment or impairments or if the claimant's impairment or

impairments qualify as the medical equivalent of a listed impairment.

Fourth, if the claimant's impairment and impairments do not meet or equal

a listed impairment, the Secretary next determines whether the claimant

can perform the claimant's past work. If so, the claimant does not qualify

as disabled. Finally, if the claimant cannot perform past work, the

Secretary considers the claimant's residual functional capacity and the

transferability of any skills the claimant may possess to determine

whether the claimant qualifies as disabled. Cf. Salmi v. Secretary of

Health and Human Services, 774 F.2d 685, 687-88 (6th Cir. 1985) (claim

for supplemental security income benefits).

disabled. Finally, if the claimant cannot perform past work, the

Secretary considers the claimant's residual functional capacity and the

transferability of any skills the claimant may possess to determine

whether the claimant qualifies as disabled. Cf. Salmi v. Secretary of

Health and Human Services, 774 F.2d 685, 687-88 (6th Cir. 1985) (claim

for supplemental security income benefits).

In this case, the ALJ found that appellant has not engaged in substantial

gainful activity since November 18, 1981. Although the ALJ also concluded

that appellant suffers from a severe left hand and arm impairment, the ALJ

found that appellant does not have an impairment or combination of

impairments that meets the Listing of Impairments" or qualified as the

medical equivalent of a listed impairment. The ALJ concluded that

appellant could not perform his past relevant work as a truck driver, but

determined that appellant could perform a number of other jobs that exist

in significant numbers in the national economy. Accordingly, the ALJ

decided appellant was not disabled at the fifth and last step of the

sequential evaluation process.

The loss, or the loss of the use, of an arm or hand is not disabling per

se. Cases have held that an individual who has lost or has lost the use of

an arm or hand can still engage in substantial gainful activity. See,

e.g., Knott v. Califano, 559 F.2d 279 (5th Cir. 1977); May v.

Gardner, 362 F.2d 616 (6th Cir. 1966). Appellant undisputedly has full

use of his right arm and hand. Substantial evidence supports the

Secretary's determination that appellant's right hand and arm enable him

to perform a number of jobs which exist in substantial numbers in the

national economy.

antial gainful activity. See,

e.g., Knott v. Califano, 559 F.2d 279 (5th Cir. 1977); May v.

Gardner, 362 F.2d 616 (6th Cir. 1966). Appellant undisputedly has full

use of his right arm and hand. Substantial evidence supports the

Secretary's determination that appellant's right hand and arm enable him

to perform a number of jobs which exist in substantial numbers in the

national economy.

Appellant contends that the ALJ improperly discounted the report of

Robert Tiell, a vocational psychologist. Appellant submitted Mr. Tiell's

report, which stated that, based upon medical reports and findings,

appellant's residual physical functioning, and Tiell's experience in job

development and placement, "Mr. Odle has experienced a significant

occupational loss and for all practical purposes is unable presently to

engage in any substantial gainful employment." The ALJ, however,

discounted Mr. Tiell's report because Tiell apparently considered

appellant's employability based upon his experience in job development and

placement as an additional factor in his assessment of appellant's work

capacity. The ALJ made a rational interpretation of Mr. Tiell's report.

Under 20 C.F.R. § 404.1566(c), the Secretary does not consider

employability when determining whether a claimant qualifies as disabled.

Rather, when a claimant cannot perform prior work, the Secretary must

decide whether, considering the claimant's residual functional capacity

and the claimant's age, education and past work experience, the claimant

can perform any other jobs that exist in significant numbers in the

national economy. The ALJ concluded that Dr. Kelly was the only of the two

vocational experts who utilized the appropriate standard. Dr. Kelly

testified that appellant could work as a clerk in a self-service station,

self-parking lot, or drugstore, or as an unarmed guard or doorkeeper

d past work experience, the claimant

can perform any other jobs that exist in significant numbers in the

national economy. The ALJ concluded that Dr. Kelly was the only of the two

vocational experts who utilized the appropriate standard. Dr. Kelly

testified that appellant could work as a clerk in a self-service station,

self-parking lot, or drugstore, or as an unarmed guard or doorkeeper.

Consequently, substantial evidence supports the Secretary's finding that

appellant retained the capacity to perform jobs that exist in significant

numbers in the national economy.

Accordingly, we affirm the District Court order granting summary judgment

for the Secretary and dismissing appellant's complaint.