entitling her to benefits under Appendix 1 of 20 C.F.R. Pt. 404, Subpt. P (1992).
20 C.F.R. § 404.1520 allows for situations in which a claimant's impairment might be deemed to "equal" a listed impairment. The ALJ's refusal to find that the combination of some number of Mrs. Rooney's multiple impairments was equivalent to a listed impairment is remarkable. Her Appendix 1 Chronic Pulmonary Insufficiency tests alone might warrant a finding of equivalence; one component of the relevant tandem pulmonary function readings barely surpasses the critical volume threshold, while the other is substantially deficient. Medical equivalence is defined in 20 C.F.R. § 404.1526 as "medical findings that are at least equal in severity and duration to the listed impairment." In Huseby v. Heckler, 746 F.2d 447, 449 (8th Cir. 1984), the court found that although plaintiff's pulmonary insufficiency failed to meet the precise requirements of the Listing of Impairments, the combination of plaintiff's impairments warranted an outright reversal and an order that benefits be granted. The inquiry might well have ended with this step-three finding of impairment equivalence, but the ALJ refused to find such an equivalence, and this court cannot say that the refusal was arbitrary.
The ALJ then proceeded to a step-four evaluation of whether the plaintiff retained the residual functional capacity to perform her past relevant work. He concluded that she had remained capable of doing so until October, 1991. He based this conclusion on the assumption, for which there is no foundation in either the record or common sense, that her past relevant employment was the sedentary work of an auditor. Although it is true that for the fourth step, the claimant has the burden of proving inability to do her former work, the ALJ's identifying her former work as that of an auditor was not supported by substantial evidence. Ohrbach's employed the plaintiff for over thirty years as a sales manager. This was her past relevant employment. It is impossible to believe that Ohrbach's would hire a partially blind and ailing fifty-year-old to be an auditor. Mrs. Rooney had earned the store's good will, and it attempted to accommodate her despite her impairments. It behooves HHS to encourage employers and employees to seek alternatives to the cessation of employment. These attempts will be undermined if a failed accommodation can then be used against a plaintiff in her claim for benefits.
Having decided, against the evidence, that Mrs. Rooney's employment was auditing, the ALJ found nothing in the medical record prior to October, 1991, to indicate that she could not sit for six hours a day and review papers -- the physical requirements of a sedentary job. But sales jobs, managerial or otherwise, are listed in the Dictionary of Occupational Titles as at least "light" in their exertional requirements. As defined in 20 C.F.R. § 404.1567(b), such work entails frequent lifting and significant periods of walking and standing. The proper step-four inquiry should have been whether the plaintiff was capable of performing the "light" exertions of her previous work as a sales manager.
In this regard, it is noteworthy that in June of 1988, a doctor from the same state agency that determines disability for Social Security purposes examined Mrs. Rooney to determine her welfare status. This doctor listed nine impairments, including disc disease and chronic obstructive pulmonary disease -- neither of which is an overnight phenomenon -- in an assessment of Mrs. Rooney's employability. He found her "temporarily unemployable" (Tr. 250). Mrs. Rooney was over fifty years old when this report was made. Although this report is not binding on the Secretary, it is evidence of plaintiff's disabilities. In December of 1988, another state agency doctor found chronic spinal strain, bronchitis, asthma, shortness of breath and obstructive restrictive effects on PFT (pulmonary function test) on minimal exertion (Tr. 265-274). The diagnoses of these two physicians do not even take into account plaintiff's blindness and oral cancer.
According to the ALJ's own finding, the plaintiff was incapable of "prolonged standing and walking, lifting and carrying over ten pounds," at least after December, 1988. In other words, after that date, she was incapable of performing "light" work, such as that required by her past relevant employment as a sales manager. This was at a time when her coverage had not yet expired.
The inquiry should then have progressed to a step-five analysis of Mrs. Rooney's capacity to perform some other kind of work in the period after 1988. See Berry, supra, 675 F.2d at 467. Once a disability claimant proves that her impairment prevents her from continuing her previous employment, the burden falls on the Secretary to prove that the claimant retains the residual functional capacity to perform alternative substantial gainful work which exists in the national economy. Id. See also Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980). At this stage, not only a claimant's impairments, but her age, education, and work experience are factored into the determination of her ability to work. 20 C.F.R. § 404.1560(c) tells claimants:
If we find that you can no longer do the kind of work you have done in the past, we will then consider your residual functional capacity together with your vocational factors of age, education and work experience to determine whether you can do other work. By other work we mean jobs that exist in significant numbers in the national economy.
Plaintiff became a "person approaching advanced age," as defined in 20 C.F.R. § 404.1563(c), when she turned fifty in 1985. The ALJ found that plaintiff had a limited education, under 20 C.F.R. § 404.1564, and that she did not have any acquired work skills transferable to other employment, under 20 C.F.R. § 404.1568. To assess the impact of these factors on a claimant's capacity to work, the Secretary must refer to the Medical Vocational Guidelines (the "grids"), outlined in 20 C.F.R. Pt. 404, Subpt. P, App. 2 (1986). The grids are rules, organized into tables, which list the exertional requirements and vocational factors which will lead to a directed step-five determination of either "disabled" or "not disabled".
According to the ALJ's own findings, the plaintiff should have been found disabled, at least after 1988. At that time she was limited to sedentary work, which would place her in Table No. 1. That table includes Rule 201.09 which mandates that a claimant who is capable only of sedentary exertions, who is closely approaching advanced age, who has a limited education and skills that are not transferable, is to be found disabled. Rule 200.00 provides that where, as here, a claimant's residual functional capacity and vocational factors coincide with all the criteria of a particular rule, the rule directs a determination of disability. Had the ALJ conducted a step-five analysis, he would have found the plaintiff disabled at least as of December, 1988, when she was still in insured status. Simply on the basis of her strength limitations and the vocational factors of her age, education and skills, the grids absolutely direct a determination of "disabled" starting in December, 1988, the date after which the ALJ found plaintiff could no longer sustain "light" exertions.
For the period between 1985 and 1988, the ALJ found that plaintiff remained capable of performing the "light" exertions of her previous job as a sales manager. He supported this conclusion by saying that there is nothing in her medical record, prior to December, 1988, to indicate that she could not perform "light" tasks. Clearly, Ohrbach's disagreed with the ALJ's assessment. The store felt it necessary to move plaintiff from her "light" job to a "sedentary" job, and even this temporary sedentary position proved to be beyond her capacities.
Although in 1987 the Secretary deemed that Mrs. Rooney was able to perform the lifting and walking exertions of "light" work, this finding is not mirrored in the reports of doctors who examined her. Indeed, the medical evidence is that these activities may very well have been beyond the plaintiff's capacity when she was first denied benefits. Besides repeated surgical procedures for cancerous oral lesions, the presence of irregular heartbeats and hypothyroidism (Tr. 170-173), and the left optic neuropathy which led to her eventual blindness (Tr. 181-182), plaintiff's treating physician Dr. Steven Diamond diagnosed her conditions in January of 1986 as including upper respiratory infection, asthma, bronchitis, and chest and lower back pain.
To sustain its finding that Mrs. Rooney was capable of "light" work-related tasks, the Secretary relied on the slim reed of residual functioning capacity assessments made by state doctors who never actually examined her. While it may be standard procedure to rely on assessments made by nonexamining state doctors, these doctors are supposed to base their evaluations on reports filed by a claimant's treating physicians, which normally include direct appraisals of the claimant's functional capacities. Although it is true that Mrs. Rooney's physicians did not state in the records they forwarded to HHS that she had lost the "residual capacity to work," it is also true that treating physicians do not necessarily make conclusory statements to meet governmental agency standards when reporting the medical findings of their examinations. Plaintiff's treating physicians were never asked for assessments of her capacity to do work, either "sedentary" or "light". Mrs. Rooney was, at that time, proceeding pro se and perhaps did not know to ask them to make such assessments. To make matters worse, the medical records completed by agency doctors are shamefully inarticulate. Where forms ask for verbal assessments, officials have scrawled mute dashes here and there, and lines are drawn through entire sets of boxes meant to be checked off individually. Many of the agency forms are completely unintelligible. The record is a testament to inattention and disregard.
The pragmatic truth is that plaintiff was not capable of continuing her previous employment; this was the determination made by her employer. Orbach's was clearly not disenchanted with Mrs. Rooney as an employee; on the contrary, the store did what it could to retain her services, albeit in a "sedentary" capacity. She was a fifty-year-old woman with a litany of impairments who had worked hard all her life. There is no indication that the unsuccessful experiment with auditing was due to any malingering on plaintiff's part. A plaintiff's long and honorable work history justifies the inference that when she stopped working she did so for the reasons testified to. Singletary v. Secretary of H.E.W., 623 F.2d 217, 219 (2nd Cir. 1980). Accord Leftenant v. Schweiker, 543 F. Supp. 989, 993 (S.D.N.Y. 1982).
If we accept the ALJ's questionable assessment that plaintiff could still perform "light" work between 1985 and 1988, however, the grid applicable to this earlier period would be Table No. 2. Although this grid alone, given only plaintiff's exertional limitations, would not lead to a directed determination of disabled, the addition of her other "nonexertional" impairments might well have tipped the scales in favor of a determination of disability. In using the grids, Rule 200.00(e)(2) provides that:
Where an individual has an impairment or combination of impairments resulting in both strength limitations and nonexertional limitations, the rules in this subpart are considered in determining first whether a finding of disabled may be possible based on the strength limitations alone and, if not, the rule(s) reflecting the individual's maximum residual strength capabilities, age, education, and work experience provide a framework for consideration of how much the individual's work capability is further diminished in terms of any types of jobs that would be contraindicated by the nonexertional limitations.
20 C.F.R., Pt. 404, Subpt. P, App. 2 (1986).
In other words, Rule 200.00 provides, as outlined above, that if a claimant meets the exertional and vocational criteria of a particular rule, that rule directs a disability determination. If, however, not every criterion is met, a claimant's nonexertional impairments (i.e., those that do not bear directly on physical strength) are also to be factored into the disability assessment. Plaintiff's "nonexertional impairments" included her partial blindness, benign oral cancer, thyroid disfunction, and chest and lower back pain. Therefore, even if the ALJ was correct in finding that she retained the strength to perform "light" work, a step-five analysis using the grids as a framework and plaintiff's nonexertional impairments as aggravating circumstances, might well have found her disabled for the period between 1985 and 1988.
A careful review of the entire medical and procedural record compels a determination that the plaintiff was disabled within the meaning of the Social Security Act, at least since December, 1988. At this stage, it is next to impossible to say what a timely hearing, a more developed record, and a correct application of the five-step sequential analysis would have determined with regard to plaintiff's disability between 1985 and 1988. Equity and good conscience preclude making Mrs. Rooney wait any longer for the fair adjudication of her claim. Though plaintiff might have been able to augment the record earlier, had the Secretary properly informed her of her rights, the burden should now be on the Secretary to prove that the plaintiff was not disabled in the relevant period. The Secretary cannot realistically do this now. Therefore, the 1987 application and the original date of April 27, 1985, will be used for determining the onset of plaintiff's disability.
Accordingly, plaintiff's motion for judgment on the pleadings is granted. Plaintiff is hereby awarded disability benefits from April 27, 1985, to the present time and continuing.
Dated: Brooklyn, New York
March 8, 1995
David G. Trager
United States District Judge
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