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THORNTON v. HECKLER

May 28, 1985

ROBERT THORNTON, Plaintiff
v.
MARGARET M. HECKLER, Secretary of Health and Human Services, Defendant.



The opinion of the court was delivered by: GLASSER

GLASSER, United States District Judge:

This challenge to the defendant Secretary's denial of plaintiff's claim for disability insurance benefits is before me for the second time, following a remand to the Secretary. At this juncture the parties have cross-moved for judgment on the pleadings. For the reasons set forth below, plaintiff's motion is granted and defendant's motion is denied. This action is remanded to the Secretary for the sole purpose of calculating benefits due to the plaintiff.

 Background

 Plaintiff, who is now 60 years old and has a limited education, alleges disability due to a heart condition. On December 9, l980, the Administrative Law Judge ("ALJ") rendered a decision that plaintiff was not entitled to receive benefits because he could perform his former work as the operator of a vacuum cleaner repair business. The decision of the ALJ became the final decision of the Secretary when it was affirmed by the Appeals Council on March 13, 1981.

 Plaintiff thereafter timely commenced an action in the district court. In a Report and Recommendation dated May 4, 1983, Magistrate Chrein found that the medical evidence in the record supported the conclusion that plaintiff was severely impaired, but retained the residual functional capacity to perform sedentary work. However, the Magistrate recommended that this action be remanded to the ALJ for a determination of the exertions requirements of plaintiff's past work, which were not specified at all in the record originally before the ALJ. *fn1" By Memorandum and Order dated February 2, 1984, I accepted the Magistrate's Report and Recommendation in its entirety, notwithstanding the timely objection of the plaintiff.

 At the hearing on remand on June 20, 1984, the ALJ received testimony from the plaintiff and from David Vandergoot, a vocational expert ("VE"). The ALJ accepted the VE's conclusion that the plaintiff's past work was heavy and skilled *fn2" in nature, Tr. 152, and the ALJ thus concluded that plaintiff could not return to his former work. Tr. 130. However, the ALJ went on to complete the sequential analysis, *fn3" i.e., to determine whether plaintiff possessed the residual functional capacity to engage in any other form of substantial gainful activity. The ALJ found that plaintiff could perform the semi-skilled sedentary job of electrical inspector.

 At this point it is relevant to note that in evaluating whether this plaintiff can perform any type of work, transferability of skills is the determinative factor. This requirement is dictated by the relevant medical-vocational guidelines ("the grid") promulgated by the Secretary which are set forth in the margin. *fn4" Section 201.00(f) accompanying the grid regulations further limits the Secretary's ability to determine that a claimant such as Mr. Thornton can perform substantial gainful activity. That section provides:

 
In order to find transferability of skills to skilled sedentary work for individuals who are of advanced age (55 and over), there must [sic] be very little, if any, vocational adjustment required in terms of tools, work processes, work settings, or the industry.

 (emphasis added). See infra at 5. With respect to these factors, VE Vandergoot testified at several points that this plaintiff would likely have more than "very little" vocational adjustment to the sedentary occupation of electrical inspector. Specifically, the VE felt that plaintiff would require some adjustment with respect to two aspects of that position: (1) plaintiff would require approximately 30 days of training to adjust to the different types of products and different skills necessary for that job, and (2) plaintiff would experience more than very little psychological adjustment to (a) being an employee and co-worker, instead of an employer, (b) production and time requirements, and the inability to control his time and activities. Tr. 155, 156, 159, 161-2, 168, 169. *fn5" In the terms of § 201.00(f) supra note 3, the VE described the areas where plaintiff would need more than very little adjustment to be "industry" and "work settings." *fn6" Tr. 156, 168-69.

 The ALJ received no other testimony or documentary evidence regarding the transferability of plaintiff's skills to the occupation of electrical inspector. However, he rejected the VE's opinion that plaintiff would require more than "very little" adjustment to such work within the meaning of § 201.00(f). The ALJ therefore concluded that plaintiff was not under a disability because he could perform that job.

 Plaintiff asserts two bases for his appeal from the Secretary's denial of benefits on remand. First, he asserts that the abilities which the VE and ALJ determined him to have, supra note 3, are not "skills" but are merely "aptitudes;" thus, plaintiff urges, he cannot be found to have transferable skills. Second, plaintiff contends that even if his abilities are deemed to be skills, he should be found disabled under § 201.00(f) because he would require more than very little vocational adjustment within the meaning of that regulation.

 Discussion

 The only issue to be decided by this Court is whether the Secretary's determination that plaintiff is not disabled because he can perform sedentary, semi-skilled work as an electrical inspector is supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971). It is well settled that once a claimant has established that he is severely impaired, the burden of proof shifts to the Secretary to demonstrate that there is other work which the ...


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