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CARRENARD v. SHALALA

June 2, 1993

ANTOINE CARRENARD, Plaintiff,
v.
DONNA E. SHALALA, Secretary of Health and Human Services, Defendant.


Nickerson


The opinion of the court was delivered by: EUGENE H. NICKERSON

NICKERSON, District Judge:

 Plaintiff brought this action against the Secretary of the Department of Health and Human Services of the United States pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to review a decision of the Secretary that plaintiff was not disabled.

 In 1989 the plaintiff filed applications for disability insurance benefits and for Supplemental Security Income. The applications were denied, and an Administrative Law Judge found in August 1990 that plaintiff was not disabled.

 A new hearing was held in June 1991 before a different Administrative Law Judge, who found that plaintiff was not under a disability. The Appeals Council denied review.

 The Administrative Law Judge made the following findings.

 Plaintiff met the special earnings requirement on May 31, 1986, the date that he says he became disabled and continued to meet them through December 31, 1990. He has not worked since May 31, 1985. The medical evidence establishes that he has chronic pulmonary disease, hypertension, and possible cardiac disease by history, all medically "severe" impairments, but that he does not have a listed impairment or combination of impairments. His allegation of disabling chest pain and shortness or breath is not supported by medical evidence and is thus not credible. He has the residual functional capacity to perform work-related functions except for work involving heavy lifting, climbing, heights, moving machinery, and extremes of noise and humidity. He can perform his past relevant work as building superintendent, "as performed in significant numbers in the national and local economy", and he is thus not disabled.

 In the body of his decision the Administrative Law Judge said, "Due to the 'heavy' exertional nature of claimant's precise past job, he [plaintiff] could not be able to return to it, even if his exertional capacity for 'medium' work was unencumbered by nonexertional restrictions"; but the concept of "'past relevant work' encompasses not only past work as actually, specifically performed, but as customarily performed in significant numbers in the local and national economy, see 20 C.F.R. 404.1520(e), 1565; 416.920(e), 965."

 The Administrative Law Judge went on to misquote the testimony of the Secretary's vocational expert as saying that in the category of "building superintendent (non-supervisory)" jobs exist in significant numbers in the local and national economy at all exertional levels from "light" upwards. In fact, the vocational expert was testifying concerning "maintenance supervisor" in any industry. That definition had nothing to do with a building superintendent performing the kind of chores that plaintiff did. The definition refers almost exclusively to people who supervise other workers.

 Plaintiff testified without refutation that he worked for a realty firm as a superintendent in a six-story building having 54 apartments. He was the sole employee taking care of the building. He did heavy lifting, such as moving radiators and carrying sacks of sand, concrete, and ladders, and also did plumbing, painting, plastering, repairing the boiler, doing electrical repairs, doing concrete work, and moving and walking around most of the day.

 As the Administrative Law Judge stated, this was "heavy" work, and plaintiff would not be able to return to it.

 The pertinent sections of the regulation relating to past work is contained in 26 C.F.R. §§ 404.1520(e) and 416.920(e). Those sections read as follows: "Your impairment(s) must prevent you from doing past relevant work. If we cannot make a decision based on your current work activity or on medical facts alone, and you have a severe impairment(s), we then review your residual functional capacity and the physical and mental demands of the work you have done in the past. If you can still do this kind of work, we will find that you are not disabled."

 This regulation means that if a claimant can do work which has physical and mental demands comparable to the work he has done in the past, he will be found not disabled. The regulation plainly does not mean what the Administrative Law Judge construed it to mean, namely, that if there are jobs in the national economy that require only some of the physical demands of past work, a plaintiff is not ...


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