Smith, Dollie v. Barnhart, Jo Anne B. ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3498
DOLLIE SMITH,
Plaintiff-Appellant,
v.
JO ANNE B. BARNHART, Commissioner
of Social Security,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 02-C-724—Thomas J. Curran, Judge.
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ARGUED SEPTEMBER 20, 2004—DECIDED OCTOBER 26, 2004
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Before POSNER, KANNE, and EVANS, Circuit Judges.
POSNER, Circuit Judge. Under the rules governing social
security disability benefits, an applicant who can perform
his “past relevant work” (defined as substantial gainful em-
ployment that he had performed, in the not too remote past,
long enough to have learned how to do it, 20 C.F.R.
§§ 404.1560(b)(1), .1565(a)) is disentitled to benefits.
§§ 404.1520(f), .1560(b)(3); Wolfe v. Shalala, 997 F.2d 321, 323
(7th Cir. 1993). On this basis the administrative law judge
denied Dollie Smith’s claim and the district court affirmed
2 No. 03-3498
the denial. Smith’s past jobs had included tax preparer, di-
rector of a program for helping old people, and management
and information specialist. All three jobs had required her
to spend at least half her work time writing and typing.
Among a really formidable list of ailments that precipitated
her application for disability benefits is arthritis in both her
hands which she testified makes it impossible for her to do
as much writing and typing as her past jobs demanded. The
administrative law judge determined, with we conclude
substantial basis in the record, that despite her ailments
Smith is able to do sedentary work; and since her past jobs
were sedentary the judge concluded that she could do them
and so he didn’t have to go on to decide, as he would have
had to do had he found her incapable of resuming her past
relevant work, whether other jobs that she could perform
exist in sufficient number in her region to preclude an
award of benefits. Barrett v. Barnhart, 355 F.3d 1065, 1067
(7th Cir. 2004). The distinction can be crucial, as in a case in
which the past relevant work no longer exists in the economy;
nevertheless, if the applicant has the physical and mental
ability to perform it, he is barred from obtaining disability
benefits. Barnhart v. Thomas, 540 U.S. 20 (2003).
The administrative law judge’s error, which requires us to
remand the case to the Social Security Administration, lay
in equating Smith’s past relevant work to sedentary work in
general. He should have considered not whether she could
perform some type of sedentary work but whether she could
perform the duties of the specific jobs that she had held.
E.g., Strittmatter v. Schweiker, 729 F.2d 507 (7th Cir. 1984);
Lowe v. Apfel, 226 F.3d 969, 972-73 (8th Cir. 2000); Kirby v.
Sullivan, 923 F.2d 1323, 1326-27 (8th Cir. 1991); Gunnels v.
Bowen, 867 F.2d 1121, 1123-24 (8th Cir. 1989). For example,
selling tickets in a movie theater is a sedentary job, and one
that does not require much if any writing or typing, and so
we can assume that Smith’s arthritis would not prevent her
No. 03-3498 3
from holding such a job. But selling tickets in a movie
theater was not one of Smith’s past relevant jobs. Those jobs
required that she spend most of her time writing and
typing.
Suppose, to demonstrate the starkness of the administra-
tive law judge’s error (which the district court repeated by
failing to consider that Smith’s past work had required that
she be able to type and write for most of the work day), that
in Smith’s region there are no sedentary jobs that do not
require more writing or typing than she is physically able to
do. The logic of the judge’s ruling would be that she
nevertheless is not disabled because she can perform some
sedentary work, and this would be flatly contrary to the
law, as the cases cited above make clear. The basic principle
is stated not only in the cases we have cited, all of which in-
volve sedentary work (Lowe and Kirby are factually similar
to this case), but in other cases, involving light or medium
work, as well. Nolen v. Sullivan, 939 F.2d 516, 518-19 (7th Cir.
1991); Schnorr v. Bowen, 816 F.2d 578 (11th Cir. 1987); Valencia
v. Heckler, 751 F.2d 1082, 1086-87 (9th Cir. 1985).
But a complication arises because, although a merely
“similar” job, or the same “type of work,” will not do as the
applicant’s past relevant work, Evans v. Shalala, 21 F.3d 832,
834 (8th Cir. 1994), the administrative law judge can “base
his comparison on the functional demands and job duties of
the [applicant’s past] occupation as generally required by
employers throughout the national economy.” Orlando v.
Heckler, 776 F.2d 209, 215-16 (7th Cir. 1985); see also Steward
v. Bowen, 858 F.2d 1295, 1301 (7th Cir. 1988). As the Social
Security Administration explains in a policy statement on
which the courts have relied, on the one hand “a broad
generic, occupational classification of [the applicant’s past
job], e.g., ‘delivery job,’ ‘packaging job,’ ” will not do, but on
the other hand an applicant who “cannot perform the
4 No. 03-3498
excessive functional demands and/or job duties actually
required in the former job but can perform the functional
demands and job duties as generally required by employers
throughout the economy” should not be found to be dis-
abled. Social Security Ruling 82-61 (emphasis added). The
word we have italicized, which was omitted in the quota-
tion from the ruling in the Steward and Orlando cases, is the
key to threading the needle. The issue is not whether the
applicant for benefits can return to the precise job he held,
which is hardly likely to have been kept open for him, but
whether he can return to a “job” he held that exists at other
employers. However, the job must not be described so
broadly as to encompass a range of physical and mental
abilities some of which the applicant may not have; and that
is the case if the job is described merely as “sedentary
work.” See also Pinto v. Massanari, 249 F.3d 840, 846 (9th Cir.
2001). Picking out the line in an individual case is of course
a task for the agency, subject to light judicial review; hence
the need for a remand.
Yet it might appear that a remand would be futile because
Smith, if she can do sedentary work, albeit not her past
relevant work, would not be disabled. But that is not
correct. Because she was above the age of 60 at the onset of
the alleged disability, the government will have to prove
either that Smith has skills that she can transfer to a new job
with little or no difficulty or that she has recently completed
education that would facilitate her “direct entry into skilled
sedentary work.” 20 C.F.R. 404 Subpart P, App. 2, §§ 201.00(d),
(f), 201.06-.09; 20 C.F.R. §§ 404.1563(e), .1568(d)(4); Tom v.
Heckler, 779 F.2d 1250, 1253-54 (7th Cir. 1985). And even
then, if Smith’s arthritis is found to be sufficiently severe (a
matter for determination by the administrative law judge on
remand), a vocational expert will have to be consulted to
determine whether there are jobs that Smith can still
No. 03-3498 5
perform in reasonable proximity to where she lives. Luna v.
Shalala, 22 F.3d 687, 691 (7th Cir. 1994).
VACATED AND REMANDED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-26-04