Donald Sird v. Shirley Chater ( 1997 )


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  •                                     ___________
    No. 96-2466
    ___________
    Donald Sird,                            *
    *
    Plaintiff-Appellant,      *
    *    Appeal from the United States
    v.                                 *    District Court for the
    *    Southern District of Iowa.
    Shirley S. Chater, Commissioner         *
    of Social Security Administra-          *
    tion,                                   *
    *
    Defendant-Appellee.
    ___________
    Submitted:    December 13, 1996
    Filed:   January 27, 1997
    ___________
    Before BOWMAN and LAY, Circuit Judges, and STROM,1 District Judge.
    ___________
    LAY, Circuit Judge.
    Donald Sird seeks supplemental security income (SSI) benefits based
    on disability under Title XVI of the Social Security Act, 42 U.S.C. § 1381
    et seq.       On January 27, 1995, following an administrative hearing, an
    Administrative Law Judge (ALJ) found that Sird was not entitled to any
    benefits.     The Appeals Council   denied review and on review to the district
    court, the ALJ decision was upheld.2        We reverse and vacate the judgment;
    we remand to the
    1
    The Honorable Lyle E. Strom, United States District Judge for
    the District of Nebraska, sitting by designation.
    2
    Sird filed his original application for SSI benefits on
    September 27, 1991, alleging disability since 1990. The ALJ denied
    benefits, and the Appeals Council reversed and remanded. The ALJ
    again denied benefits, and the Appeals Council again reversed. The
    ALJ denied benefits a third time.      The Appeals Council denied
    review in August 1995. In May 1996, the district court affirmed
    the ALJ decision, almost five years after Sird's initial request.
    It is this ruling Sird appeals.
    Secretary for the purpose of awarding benefits.
    Sird has an IQ score falling within the range listed in 20 C.F.R.,
    pt. 404, subpt. P, app. 1, § 12.05(c) (hereinafter § 12.05(c)).         This
    section provides that an individual meets the required level of severity
    for disability based on mental retardation if the individual has "[a] valid
    verbal, performance, or fullscale IQ of 60 through 70 and a physical or
    other mental impairment imposing additional and significant work-related
    limitation of function."   § 12.05(c) (our emphasis).
    The ALJ, however, found that while Sird may meet the first prong of
    § 12.05(c), he did not have "a physical or other mental impairment imposing
    additional and significant work-related limitation of function."        ALJ
    Decision, dated Jan. 27, 1995, at 7 (quoting § 12.05(c)).     Relying on a
    vocational expert's opinion that Sird could perform light or sedentary work
    available in the community, the ALJ denied Sird benefits.
    The issue here, therefore, rests upon whether Sird has a physical or
    mental impairment, besides his conceded mental impairment, which imposes
    a "significant work-related limitation of function."    If so, he qualifies
    as disabled under § 12.05(c), and the inquiry ends.
    Besides borderline intellectual capacity, the ALJ found Sird suffered
    from a history of alcoholism, a history of chronic obstructive pulmonary
    disease, and a history of urinary tract infection.      ALJ Decision at 15.
    The ALJ then found that the combination of these impairments restricts Sird
    as follows:
    He must avoid extremes of hot and cold conditions.       He must
    avoid moving machinery, more than moderate levels of
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    dust, fumes, and smoke.     He should perform no work that
    requires clear oral communication.     He is able to do only
    simple, routine, repetitive work with no written material or
    math computation. His work should not require constant, very
    close attention to detail or use of independent judgment for
    decisionmaking. He should have no more than occasional contact
    with the public and needs occasional supervision. He is able
    to work at no more than a regular pace.
    
    Id. at 16.
    This finding necessarily incorporates a determination that Sird's
    ability to work has been additionally impaired in the period since he
    performed past relevant work.     A vocational expert testified Sird's past
    relevant    work included work as a forklift driver, a box marker, a
    construction worker, and a truck-driver helper.      
    Id. at 14.
      Since these
    jobs are obviously more strenuous than the "light" and "sedentary" work the
    vocational expert testified Sird could perform, the ALJ concluded Sird
    could not perform his past relevant work.3     In our opinion, this finding
    cannot be squared with the later finding that Sird does not have an
    impairment significantly limiting his ability to work that is unrelated to
    his IQ.
    Neither party presented evidence that Sird's mental impairments have
    deteriorated since performing his past relevant
    3
    The Dictionary of Occupational Titles (DOT) classifies jobs
    in part with a physical demands rating. The rating system assigns
    a rating of "sedentary," "light," "medium," "heavy," or "very
    heavy" to each job the DOT lists.     While the vocational expert
    testified Sird could perform only jobs in the "light" or
    "sedentary" category, his past jobs are assigned significantly
    higher physical demands ratings. According to the DOT, the jobs of
    forklift driver (921.683-050) and box marker (652.685-018) require
    "medium" physical demands, while truck-driver helper (905.687-010)
    is assigned a rating of "heavy", and construction worker (869.687-
    026) is assigned a rating of "very heavy."
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    work.4    Therefore, it is a reasonable assumption that the ALJ's opinion
    limiting Sird to light or sedentary work, as opposed to the heavier work
    he was performing before, is related not to his mental impairment, but to
    the physical impairments pointed out above.
    The       issue   thus    boils   down    to    whether   these     limitations    are
    sufficiently significant to find that Sird qualifies for benefits under
    § 12.05(c).         The ALJ found that Sird could perform some light or sedentary
    jobs.     On this basis, the ALJ denied benefits because Sird was not
    prevented from performing all gainful activity.                   We respectfully submit
    this analysis is circuitous.              The issue is not whether the claimant can
    perform       gainful     activity;    rather,     it   is   whether   he   has   a   physical
    impairment, other than his conceded mental impairment, which provides
    significant work-related limited function--in other words, whether the
    second prong of § 12.05(c) is met.
    Our court originally reviewed this issue in Cook v. Bowen, 
    797 F.2d 687
    (8th Cir. 1986).             There, we held that the second prong of § 12.05(c)
    is met when the claimant has a physical or additional mental impairment
    that has a "more than slight or minimal" effect on his ability to perform
    work.    
    Id. at 690.5
           In Warren v.
    4
    The Secretary's regulations "expressly define mental
    retardation as denoting 'a lifelong condition.'"       Branham v.
    Heckler, 
    775 F.2d 1271
    , 1274 (4th Cir. 1985) (quoting 20 C.F.R.,
    pt. 404, subpt. P, app. 1 § 12.00(B)(4)). "[I]n the absence of any
    evidence of a change in a claimant's intelligence functioning, it
    must be assumed that the claimant's IQ [has] remained relatively
    constant." Luckey v. Dept. of Health & Human Serv., 
    890 F.2d 666
    ,
    668 (4th Cir. 1989) (per curiam).
    5
    Other circuits have approached the issue along the same
    lines. See, e.g., Nieves v. Secretary of Health & Human Serv., 
    775 F.2d 12
    , 14 (1st Cir. 1985) ("An impairment imposes significant
    limitations when its effect on a claimant's ability to perform
    basic work activities is more than slight or minimal."); Edwards v.
    Heckler, 
    755 F.2d 1513
    , 1515 (11th Cir. 1985) ("That 'significant'
    involves something more than 'minimal' but less than 'severe'
    follows from the regulations.")
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    Shalala, 
    29 F.3d 1287
    (8th Cir. 1994), we reaffirmed that test, relying in
    part on a Fourth Circuit opinion which held that to be "significant" the
    functional limitation under § 12.05(c) "need not be disabling in and of
    itself."   Branham v. Heckler, 
    775 F.2d 1271
    , 1273 (4th Cir. 1985).            As the
    Branham court reasoned, "If the plaintiff's physical impairment were
    required to be independently disabling, section 12.05(c) would be rendered
    meaningless.     Therefore,   something    less   than      a   preclusion   from   any
    6
    substantial gainful employment must apply."           
    Id. The Branham
    court went on to hold that if a claimant cannot perform
    his past relevant work, he "experiences a significant work
    6
    With all due respect to Judge Bowman's dissent, the issue
    cannot be one of whether the petitioner can perform substantial
    gainful activity; the effect of this investigative focus is to
    empty § 12.05 of meaning. What the dissent overlooks is that the
    purpose of § 12.05(c) is to compensate a claimant with an IQ in the
    60-70 range and a limitation of function that affects his work.
    Our relevant inquiry under § 12.05(c) is whether, in addition to
    Sird's conceded mental impairment, he has a work-related impairment
    of function. Under the findings of the ALJ, there can be little or
    no question that one exists: he can no longer do his past relevant
    "heavy" work, but instead is relegated to "light" or "sedentary"
    work. The dissent's failure to recognize this limitation as one
    that is "more than slight or minimal" is not in accordance with the
    cases of this circuit or any other.
    Judge Bowman relies upon 20 C.F.R. § 416.905(a), which states
    that to meet the definition of disability, a claimant must have a
    "severe impairment, which makes [him] unable to do [his] previous
    work or any other substantial gainful activity which exists in the
    national economy." (Judge Bowman's emphasis). This language is
    not relevant to a determination of disability under 12.05(c). If
    the defendant has, as in this case, a conceded mental impairment,
    and in addition has a significant work-related physical impairment
    of function, then whether the claimant can perform other gainful
    activity is not relevant. As the First Circuit noted, "[I]f the
    claimant meets a listed impairment [under, e.g., § 12.05(c)], the
    Secretary is required to find a claimant disabled and not consider
    whether he or she could perform other work." 
    Nieves, 775 F.2d at 13
    (emphasis added); see also 20 C.F.R. § 404.1520(d) ("If you have
    an impairment(s) which . . . is listed in appendix 1 . . . , we
    will find you disabled without considering your age, education, and
    work experience.") (emphasis added).
    -5-
    related limitation of function" and meets the second prong of § 12.05(c).
    
    Id. We think
    this conclusion is ineluctable.7
    The Secretary urges that the Fourth Circuit ruling establishes a per
    se rule and that a better practice would be to interpret § 12.05(c) under
    the Eighth Circuit's "more than slight or minimal" test.    In this case, we
    are not convinced these two tests are different in their application.     In
    both Branham and the present case, the claimants' physical impairments
    prevent     them from carrying on past relevant work.   Sird's past relevant
    work required a full range of functions, while his current physical
    limitations relegate him to light or sedentary work.       It requires little
    scrutiny to say this scenario constitutes a work-related limiting function
    that is more than slight or minimal.       In the present case, under either
    test, the claimant is entitled to benefits.
    Judgment vacated; the cause is remanded to the Secretary with
    directions to award the claimant benefits.
    BOWMAN, J., dissenting.
    I respectfully dissent.
    The regulations promulgated under Title XVI of the Social Security
    Act set out a sequential analysis for evaluating a claimant's alleged
    disability for the purposes of awarding Supplemental Security Income (SSI)
    benefits.    The administrative law judge (ALJ) follows this analysis when
    reviewing the Commissioner of Social Security's decision to grant or deny
    7
    The Fourth Circuit has followed Branham in subsequent cases.
    See Flowers v. Department of Health & Human Serv., 
    904 F.2d 211
    (4th Cir. 1990); Luckey v. Department of Health & Human Serv., 
    890 F.2d 666
    (4th Cir. 1989). The Secretary has filed an acquiescence
    to these holdings but has limited it to cases arising in the Fourth
    Circuit. AR 93-1(4).
    -6-
    benefits.     First, the ALJ determines whether the claimant is engaged in
    "substantial gainful activity."           20 C.F.R. § 416.920(b) (1996).                If so, the
    claimant is not disabled.         If not, and it is undisputed here that Sird is
    not working, then the ALJ advances to the next step and decides if the
    impairment     alleged    by    the     claimant     is   severe,       that    is,    whether   it
    "significantly limits [his] physical or mental ability to do basic work
    activities."    
    Id. § 416.920(c).
            If it is not severe (or does not meet the
    durational requirements), the applicant is not disabled.                              See 
    id. An impairment
    is disabling within the meaning of the regulations if it meets
    or equals an impairment "listed in appendix 1."                  
    Id. § 416.920(d).
    The ALJ held that Sird does not have a listed impairment, but the
    Court rejects that conclusion and holds that Sird has the impairment
    described in § 12.05C of 20 C.F.R., Part 404, Subpart P, Appendix 1 (1996).
    Under § 12.05C, a claimant's disability is sufficiently severe to warrant
    the award of benefits if (1) his IQ score is in the range of 60 through 70
    and (2) he has "a physical or other mental impairment imposing additional
    and significant work-related limitation of function."                    The Commissioner has
    conceded that Sird's IQ falls within the applicable range, and the Court
    now concludes that Sird has the requisite additional limitation.                                  I
    disagree.
    Because     the     ALJ    found    in   his    review   that       Sird    has    no   listed
    impairment, he completed the sequential analysis for SSI disability.                             The
    ALJ determined that Sird did not have a listed impairment but that he
    nevertheless    could     not    do     his   past   relevant    work.          See     20   C.F.R.
    § 416.920(e) (1996).      That did not end the inquiry, however.                      The ALJ went
    on to conclude that Sird retained "residual functional capacity" and,
    considering     all    pertinent      factors       (including      a    vocational       expert's
    opinion), the ALJ determined that Sird was able to "do other work" despite
    his impairment, and thus was not disabled.                  
    Id. § 416.920(f)(1).
                It is
    upon this finding that the Court seizes to reverse the decision not
    -7-
    to award SSI benefits to Sird.
    Relying on the Fourth Circuit's opinion in Branham v. Heckler, 
    775 F.2d 1271
    (4th Cir. 1985), the Court uses the ALJ's finding that Sird
    retained some ability to work (which in fact led to a conclusion of no
    disability) in order to bootstrap an "additional and significant work-
    related limitation of function" within the meaning of § 12.05C.   This seems
    to me counterintuitive--to rely on the evidence supporting a decision that
    Sird is not disabled to support the Court's holding that he is.     I reject
    the per se effect the Court wishes to give a conclusion by the ALJ--which
    will be reached only if the ALJ decides the claimant has no listed
    impairment in the first place--that the claimant's inability to perform his
    past relevant work but his retention of the capacity to perform other work
    (together with the necessary mental impairment) will qualify him to receive
    SSI benefits.
    "The law defines disability as the inability to do any substantial
    gainful activity by reason of any medically determinable physical or mental
    impairment . . . ."     20 C.F.R. § 416.905(a) (1996).        "To meet this
    definition, [a claimant] must have a severe impairment, which makes [him]
    unable to do [his] previous work or any other substantial gainful activity
    which exists in the national economy."         
    Id. (emphasis added).
        This
    provision closely tracks the language of the governing statute.        See 42
    U.S.C. § 1382c(a)(3)(A)-(B) (1994).    It is my position, and the statute and
    the regulations in plain language so state, that a person who can perform
    substantial gainful activity, regardless of a mental impairment that does
    not by itself qualify the claimant for SSI benefits, is not disabled within
    the meaning of the Social Security Act and its regulations.
    I do not believe my view is at odds with the law of this Circuit.
    We have defined an impairment that imposes a "significant limitation"
    within the meaning of § 12.05C as one whose "effect on
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    a claimant's ability to perform basic work is more than slight or minimal."
    Cook v. Bowen, 
    797 F.2d 687
    , 690 (8th Cir. 1986).   Of course, a wide range
    of limitations are covered between "slight and minimal," a finding of which
    would result in a conclusion that the claimant is not disabled, and
    "severe," a finding of which would lead to further review for a listed
    impairment.    I think in order to be "significant" as the regulation
    demands, the limitation required, while something less than severe,
    nevertheless must be substantially more than "slight or minimal."      See
    Keller v. Shalala, 
    26 F.3d 856
    , 859-60 (8th Cir. 1994) (Loken, J.,
    dissenting).   In any case, Sird's ability to perform light or sedentary
    work, albeit not his past relevant work, can only be viewed logically as
    having a positive effect on his "ability to perform basic work."
    The Commissioner's decision that Sird is not entitled to SSI benefits
    "is supported by substantial evidence on the entire record."        Box v.
    Shalala, 
    52 F.3d 168
    , 170 (8th Cir. 1995).   I would affirm the decision of
    the District Court affirming the decision of the ALJ that the Commissioner
    properly denied SSI benefits to Sird.
    A true copy.
    Attest:
    CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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