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Podedworny v. Harris

September 28, 1984

DAVID J. PODEDWORNY, APPELLANT
v.
PATRICIA ROBERTS HARRIS, SECRETARY OF HEALTH AND HUMAN SERVICES OF THE UNITED STATES, APPELLEE



On Appeal from the United States District Court for the Eastern District of Pennsylvania

Author: Becker

Before: ADAMS, BECKER, Circuit Judges, and SAROKIN, District Judge*fn*

Opinion OF THE COURT

BECKER, Circuit Judge.

This is a Social Security disability case in which we are called upon to review the manner in which the Secretary of Health and Human Services has applied the medical-vocational guidelines or "grids" to deny disability insurance benefits to appellant David J. Podedworny. This is the second time this case has been before this court, and appellant's application for benefits has now been pending for five and one-half years. He is a 57 year-old man with a ninth grade education who suffers from advanced cardiovascular disease and who has never performed any work but that of a crane operator in a steel mill. The Secretary found him not disabled under the grids because of her conclusion that he possessed transferable skills. As will appear, the Secretary's decision is not supported by substantial evidence for a number of reasons. First, the ALJ failed to give sufficient weight to testimony offered by appellant and his personal physicians about the pain suffered by appellant. Second, the ALJ's conclusion that appellant retained the capacity to engage in certain sedentary labor was based on an improper hypothetical question that was posed to the vocational expert. Finally, the ALJ's finding that appellant had transferable skills was unsupported because the ALJ failed to identify specific transferable skills and the jobs to which those skills could be transferred. Each of these errors would require a remand to the Secretary for reconsideration. However, when these matters are considered together, and in light of the evidence developed in two hearings before the ALJ, it appears highly unlikely that the Secretary could, after a third proceeding, develop a record that would support a finding that the appellant is not disabled. Because there appears to be no value to a remand in this case and because appellant has already waited so long for a proper determination of his disability, we have decided to vacate the order of the district court and remand with a direction for an award of benefits.

I.

Appellant first applied for disability insurance benefits on January 23, 1979, alleging disability as of May 1, 1978, due to angina, hypertension, and gastritis. The application was denied throughout the proceedings before the Secretary and the district court, but this court found the ALJ's conclusions concerning appellant's disability unsubstantiated by the evidence and remanded the case to the district court for further remand to the Secretary. Podedworny v. Harris, 672 F.2d 904, (3d Cir. 1981). Appellant's case returned to the ALJ who, after conducting another hearing, recommended in a decision dated April 5, 1982, that appellant be denied benefits. After this decision was affirmed by the Appeals Council, appellant again sought review in the district court. On July 14, 1983, that court granted summary judgment for the Secretary, finding the Secretary's conclusion supported by substantial evidence. Appellant now seeks review of that judgment.

The evidence adduced before the ALJ reflects that appellant spent his entire work life, from 1946 until his illness in May, 1978, as a crane operator at Lukens Steel Company in Coatesville, Pennsylvania. Appellant's job was to operate a crane from a stationary cabin some ninety feet above the floor of the mill, using two hand controls and one foot control to move large quantities of scrap metal into a furnace. He attended school only through the ninth grade. Appellant left his job after he began to experience dizziness and blurred vision as the result of various conditions described below. The company's doctors agreed that he could not safely perform the job of crane operator.

Appellant's condition has deteriorated further since 1978. He now complains of prolonged dizziness and headaches, chest pains, double vision, and shortness of breath and fatigue after only minimal exertion. At the time of his first hearing, appellant placed the frequency of his chest pain at four times a day to three times an hour; the pain was accompanied by sweating and relieved only by nitroglycerine. Appellant also experienced double vision six to eight times a day for periods of two to three minutes. The dizzy spells, sometimes accompanied by double vision, occurred five to six times a day, and lasted for three to four minutes. At the time of the second hearing, appellant testified that his symptoms were worse; his dizziness was constant, his chest pain often lasted for hours, and he was forced to take as many as ten nitroglycerine pills in one day. Appellant testified that he experienced shortness of breath after walking seventy-five to one hundred feet, and that he even had to take a break after climbing the set of four, then five steps in his two-level house.

Dr. Thomas C. Michaelson, appellant's treating physician since 1978, has examined appellant regularly and has diagnosed him as suffering from "dizziness, hypertension, epistaxis, and chest pain, the chest pain being associated with diaphoresis, pain rediating to his left arm, positional dizziness and occasional double vision, diabetes, hypertriglyceridemia, gastritis and significant obstructive lung disease." In February 8, 1982, letter concerning appellant, Dr. Michaelson stated:

As you know, I had strongly recommended that he is eligible for full disability and since his original heart attack some years ago, Mr. Podedworny has been removed from his job and has been rather sedentary. At this level, however, he has symptoms consistent with his coronary artery disease, that is a walk up a couple of flights of steps, walk down a block, gives him a considerable dyspnea and chest pain and lightheadedness. In the cold weather, it's been rather more severe and he has not really been able to get out and even cross the street to get a paper and/or his meal without significant symptoms. These symptoms are consistent with the diagnosis of a coronary artery disease and hypertension. I therefore feel he cannot be gainfully employed because he would even have trouble getting to and from work and in the wintertime, that activity would endanger his life. Again, I strongly recommend full disability for him on the basis of his coronary artery disease.

Appellant was also examined by two physicians to whom he was referred by Pennsylvania's Bureau of Vocational Rehabilitation. Those examinations, conducted by Dr. Martin Mersky in May, 1979, and by Dr. Richard Greenwood in November, 1981, essentially confirmed the findings made by Dr. Michaelson. Dr. Mersky's prognosis for appellant was "poor." He stated:

The patient's history is compatible with significant coronary artery obstructive disease and a high risk for myocardial infarction. A trial of aggressive medical therapy with nitrates for the angina is indicated. (Inderal if [sic] contraindicated due to the patient's history of wheezing and chronic obstructive lung disease.) Even if the patient's symptoms are relieved after an active trial of anti-angina medical therapy, it would be too hazardous to allow the patient to do any of even mild physical labor due to the poor prognosis, as mentioned above.*fn1

The Secretary placed prime reliance on the testimony of Dr. Edward E. Holloway, a "medical adviser."*fn2 Dr. Holloway did not examine appellant. Based upon a review of the medical reports, he agreed with Dr. Michaelson's diagnosis that appellant suffered from coronary artery disease, pulmonary function disturbance, uncontrolled diabetes mellitus, peripheral vascular disease with intermittent claudication and labile hypertensive state, and he agreed that these conditions, particularly the diabetes, could cause dizziness and intermittent blurring of vision. Dr. Holloway testified, however, that appellant's medical conditions did not individually or in combination meet the Secretary's Listings of Impairments, 20 C.F.R. § 404, Subpart P, Appendix 1. He further testified, with respect to Mr. Podedworny's residual functional capacity, that there was no limitation with regard to sitting or walking; he could stand four hours with some motion; he should not lift over 15 to 20 pounds occasionally but could lift 5 to 10 pounds routinely; he could not climb; he could use his hands and feet for repetitive movements; he had limitations with regard to crawling, squatting, bending, and reaching; he should not be at unprotected heights or around moving machinery; he should not drive for long distances; and he should not be exposed to marked changes in temperature and humidity or to dust, fumes, and gas.

Finally the ALJ called upon Dr. Thomas Gannoway, a vocational expert.*fn3 Dr. Gannoway defined Mr. Podedworny's employment as a crane operator as being skilled, light work in the equipment operating field. He noted that the "aptitudes" required for the job are spacial perception, form perception, and motor coordination. Dr. Gannaway was then asked three hypothetical questions by the ALJ. For the first hypothetical, Gannoway was asked whether appellant was able to work at his former job assuming that he had all the limitations, restrictions, and pain that were alleged in the oral and documentary record. The Vocational Expert responded that, on those assumptions, appellant could not return to his former job.

In addition to assuming the same facts as the first, the second hypothetical considered appellant's age, education, and work history, and inquired whether "the work functions which he demonstrated in his previous work [could] be applied to meet the requirements of work functions of other kinds of work." Dr. Gannoway replied, "There are many transferable skills, but taken into the aggregate of the limitations and the pain to which he has testified, he could not."

The third hypothetical question assumed that appellant had:

a history of treatment for a variety of impairments . . . that he is able to sit, walk, stand for about four hours with moving around, that he could lift, at the most about 20 pounds, that he could use his hands for grasping, pushing, and pulling, and fine manipulation, and that he can use his feet for repetitive movements. That he has total restriction as to climbing, limited restriction as to squatting, bending and crawling, and that he can reach, but not too far, in other words, he can't over-extend himself. That he has full use of his upper and lower extremities.

The ALJ then asked, "Assuming that I find these facts and considering his age, his education, and work history, can the work functions which he demonstrated in his previous work be applied to meet the requirements of work functions of other kinds of work?" Dr. Gannoway responded, "Yes, they can." He then described how Mr. Podedworny would be able to transfer "occupationally significant skills" to "a number of other jobs." These "skills" were defined as the "ability to use his hands and feet dexterously, knowledge of tools and equipment, and general mechanical knowledge."

The expert divided the job categories that he thought appellant could perform into the "handling category" and the "manipulating category." He testified that jobs in the handling category which Mr. Podedworny could perform included component mounter, capacitor assembler, and box coverer. These are all routine, non-machine tasks involving little or no latitude for judgment, but call for "an inclination for routine, repetitive activities with some dexterity of the fingers, hands, eye-hand coordination, form perception and the ability and willingness to follow instructions." The expert then testified that jobs in the manipulating category of work included a bench worker assembling scientific equipment, an assembler of electric goods. Dr. Gannoway testified that mastery of all these jobs would require only brief, on-the-job training.

In his decision the ALJ agreed that appellant is not able to engage in his prior work due to his inability to climb many steps, his dizzy spells, and his blurred vision. He concluded, however, that appellant was not disabled, essentially because: (1) appellant's complaints of severe and constant pain were not substantiated by the record; (2) appellant retains the capacity to engage in a variety of sedentary exertional activities despite certain "non-exertional impairments"; and (3) appellant's work as a crane operator was skilled, and certain skills he developed are transferable to meet the requirements of certain sedentary jobs, i.e., capacitor assembler, component mounter, and box coverer.

During both appellant's original hearing and on remand, the ALJ arrived at his conclusion by applying the evaluation procedure required by 20 C.F.R. § 404.1520. After finding that appellant was not working, the ALJ considered whether appellant's impairment met or equalled an impairment listed in the Secretary's Listing of Impairments, 20 C.F.R. § 404, Subpart P, Appendix I.*fn4 After finding appellant's impairments were not included in that list, the ALJ considered whether appellant could continue the type of work he had performed in the part. After concluding that appellant could not continue that type of work, the ALJ examined the four essential factors set out in 20 C.F.R. § 404.1505: appellant's residual functional capacity, age, education, and past work experience. He then turned to the Medical-Vocational Guidelines, 20 C.F.R. § 404, Subpart P, Appendix 2. The guidelines are a matrix combining various permutations of the four essential factors noted above. See Santise v. Schweiker, 676 F.2d 925, 927-38 (3d Cir. 1982). Once the ALJ has determined as a matter of fact into which category a claimant's age, education, work experience, and residual functional capacity fit, the guidelines direct a conclusion concerning a claimant's disability. 20 C.F.R. § 404, Subpart P, Appendix 2, § 200.00(a).

The portion of the guidelines applicable to Mr. Podedworny is as follows:

Previous Work

Rule Age Education Experience ...


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