UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
March 11, 1985
EDITH F. STINE, APPELLANT
MARGARET M. HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 82-1518) District Judge: Honorable Sylvia H. Rambo
Before: GARTH, BECKER, and ROSENN, Circuit Judges
MEMORANDUM OPINION OF THE COURT
ROSENN, Circuit Judge.
The plaintiff, Edith Stine, appeals from a denial of her motion for summary judgment judgment and a grant of summary judgment in favor of the defendant, Margaret Heckler, Secretary of Health and Human Services (the Secretary). On appeal, the plaintiff raises three issues. First, she alleges that the impairment to both of her wrists is an exertional impairment directing the use of the medical/vocational guidelines ("grids"), 20 C.F.R. § 404, subpart P, App. II at either table 2, Rule 202.06 (light work) or table 1, Rule 201.06 (sedentary work). She contends that both rules would require the finding of disability in this case.
Second, she claims that because she was at the time of the hearing and is today a person of "advanced age" (55 years or older), 20 C.F.R. § 404.1563(d), the Secretary was required in accordance with her regulation but failed to make specific findings concerning the particular skills plaintiff acquired in her past work which could be transferred to any new jobs which the vocational expert testified she could perform. Furthermore, she urges that in adopting the vocational expert's conclusion, the Secretary did not give age serious consideration and that the expert's testimony did not carry the Secretary's burden of proving that there are significant jobs in the national economy which plaintiff could perform. Finally, plaintiff argues that the Secretary's decision denies Stine equal protection under the fourteenth amendment because a similarly situated person would be found disabled under the grid tables (Rules 201.06 and 202.06), even though there are many more occupational categories that can be identified for such individuals than can be found for her. We vacate the judgment of the district court and remand.
The plaintiff, born October 12, 1925, graduated from high school in 1944 with a general diploma. She has neither any additional academic nor formal vocational training. For the past fifteen years she was employed as a bakery finisher at the Riverside Bakery in State College, Pennsylvania. Her duties included the mixing of pastry ingredients, applying toppings to cakes, and carrying cake mixture and trays of pastries weighing between twenty and seventy pounds a distance between three and thirty feet. She also squeezed decorative toppings from pastry tubes and about twice each week relieve the clerk at the front counter during the one-half hour lunch period to sell baked peroducts. (products)
The plaintiff discontinued work in May 1979 after her injury to her hand the previous March. In September 1979, Dr. Yoder, the family physician and board certified specialist in orthopedic and general surgery, performed a release of de Quervain's tenosynovitis to her left wrist. Stine returned to work the following month where she remained until December 21, 1979. In December 1979, Dr. Yoder performed a right de Quervain's release and Stine returned to part-time work the following mid-February. In a letter dated March 20, 1980, to the Disability Determination Division (DDD) Dr. Yoder stated that although Stine continued to have symptoms in the wrist, "I think it unlikely she will be disabled from all gainful employment." In April 1980, however, Dr. Wharen, a board certified specialist in physical medicine and rehabilitation, performed a nerve conduction study on the plaintiff which indicated that she "now suffers from Carpal Tunnel Syndrome on right." On May 2, 1980, Stine permanently terminated her employment and two weeks later Dr. Yoder performed a Carpel Tunnel release on her right wrist. At the request of the Social Security Administration, Stine submitted to a consultative evaluation by Dr. Stanley Askin, a board certified specialist in orthopedics, who gave as his impression that she had non-specific arthralgias and that further surgery could not be expected to provide symptomatic relief. He stated that "[t]here is no orthopedic reason at present why Mrs. Stine cannot return to work." He supported this conclusion with a physical capacities evaluation.
On July 29, 1980, Dr. Yoder wrote DDD advising them that Stine had continued disability because of the pain and condition of her wrists. On October 31, 1980, he wrote to Attorney Richard L. Kalin reporting that her wrists were disabled to the point "where she is unable to work in the bakery at Riverside." He indicated, however, that he would withhold any statement regarding her disability at this point because he believed that through continued treatment her hands might improve and her disability might not be permanent. He performed a Carpal Tunnel release on Stine's left wrist in April 1981.
The Administrative Law Judge (ALJ) conducted two hearings in this case. At the last hearing, Stine testified that her hands had improved after the fourth operation and she admitted to being able to do some lifting but complained that she did not have her previous strength and that she still could not lift or close her hands or pick up anything with them when they became stiff or numb. She stated that this condition occurred frequently during the day and for as much as fifteen minutes at a time. She claimed that her condition affected her ability to lift, twist jars, or write for more than fifteen or twenty minutes. She also testified to the limitations that her hands imposed in her daily personal routine. In response to questions propounded to him by the ALJ, Dr. Yoder on October 31, 1981, agreed with the ALJ's preliminary conclusions that Stine's problems with her hands "have not precluded her from lifting five pounds or writing for five minutes for any continuous period of twelve months since December 1979," except for the one month periods following each of her four surgeries. Finally, there is some testimony that Stine has some hearing loss in each ear, a mild impairment in speech discrimination, and could be considered a borderline candidate for using a hearing aid.
Dr. George E. Stouffer, Director of the Psychological Services Bureau, testified as a vocational expert on the question of whether positions of substantial gainful employment were available in the national economy for a person with Stine's impairments. In response to a hypothetical posed by the ALJ concerning a person capable of sedentary work with limitations in the use of her hands, Stouffer responded that a person with these restrictions could perform the jobs of hostess, dispatcher of motor vehicles, switch board operator, desk clerk, cashier, receptionist, and catalogue order clerk. He stated that there were between thirty to fifty of each of these jobs in a thirty mile radius area of plaintiff's Port Matilda residence and that these jobs also exist elsewhere in the national economy. He further stated that such positions are "entry type jobs in which the training time would be 30 days or less."
On cross-examination, Stouffer agreed that most of these jobs involved a certain amount of stress and that the positions of hostess, desk clerk, cashier, receptionist, and catalogue order clerk involved interpersonal skills. Stine's counsel then qualified the ALJ's hypothetical and asked Stouffer whether an individual who had contact with customers in a bakery for no more than one-half hour one or two times a week could have obtained the interpersonal skills necessary to perform the jobs cited. Stouffer did not respond directly but observed that "the same skills may have been necessary in dealing with the public but not the same extended period of time." Stouffer did agree, however, that Stine could not perform all types of sedentary work (i.e., those in machine trades and bench work industries) and that a full range of light work would also be precluded. Nonetheless, he still believed that Stine could perform the jobs that he had recited.
When interrogated concerning the difficulty of transferring from one occupation to another for a person of advanced age, Stouffer replied that he did consider her age. He stated, however, that he would "suspect" the making of such a transfer would be difficult but that he had not seen any "real objective research to that." He also stated that although additional aptitude or preference tests or interview might be desirable to determine her ability to perform the jobs, they would not be "essential."
The ALJ found that the record demonstrates that the vocational expert considered age. The ALJ concluded, however, that "transferability of skills was not a real factor" because the jobs cited by the vocational expert were entry level jobs. The district court held, and we agree, that there was substantial evidence to support the findings of the Secretary that the vocational expert considered age. In concluding that Stine's impairment was not "an overall exertional impairment," the ALJ stated that it was restricted to her hands. The district court stated that although plaintiff's impairment is in part exertional, it is largely non-exertional and that the use of the grids was not justified. We need not decide the issue of whether claimant's impairment is exertional or non-exertional in light of the result we reach. The impairment is non-exertional to the extent that Stine's problem with her hands affects grip, manipulation, and fine dexterity. See 20 C.F.R. § 404.1545(d). The impairment also has an effect on her exertional capacity since the pressure on Stine's hands prevents her from lifting or carrying an object weighing more than five pounds. The court concluded that use of the grids was not justified because "the guidelines should not be used unless the claimant's characteristics easily fit one of the categories in the guidelines." 20 C.F.R. § 404.1569.
The scope of our review is whether the district court erred in its determination that there is substantial evidence in the record to support the Secretary's decision that Stine is not disabled within the meaning of the Social Security Act. Our threshold determination is whether under grid table Rules 202.06 (light work), 201.06 (sedentary work), or under regulation 404.1563(d), Stine acquired skills from her past work which are transferable to the jobs which the vocational expert testified she could now perform.
Rules 202.06 and 201.06 require for a decision of disability that any skills acquired from past work be "non-transferable." if skills are "transferable," a conclusion of "not disabled" is directed pursuant to Rules 202.07 (light) and 201.07 (sedentary). Moreover, it is were to be determined that Stine's past work is unskilled--an issue never discussed by the vocational expert or the ALJ -- a conclusion of disability would be directed pursuant to Rules 202.04 (light) and 201.04 (sedentary).
On the other hand, if the grid does not apply, Regulation 404, App.2, § 200.00(a) directs that "full consideration must be given to all of the relevant facts of the case in accordance with the definitions and discussions of each factor in the appropriate sections of the regulations." Because Stine, who was born October 12, 1925, was of "advanced age" (55 or over) as early as her first hearing before the ALJ on November 7, 1980, Regulation 404.1563(d) is applicable. It provides, in pertinent part, the following.
We consider that advanced age (55 or over) is the point where age significantly affects a person's ability to do substantial gainful activity. If you are severely impaired and cannot do medium work (see 404.1567(c)), you may not be able to work unless you have skills that can be used in (transferred to) less demanding jobs which exist in significant numbers in the national economy. . . . (Emphasis added.)*fn1
In Podeworny v. Harris, 745 F.2d 210, 221 (3d Cir. 1984), quoting in part, Wallace v. Secretary of Health and Human Services, 722 F.2d 1150, 1156 (3d Cir. 1983) (dicta), this court made clear that to support a finding of transferability of skills a vocational expert must identify (1) those "vocationally significant activities" which a claimant has acquired from her past job, and (2) those skilled jobs to which the particular activities can be transferred. In the case at bar, the vocational expert did not testify, and the ALJ made no finding, whether Stine's past job as a bakery finisher was "skilled," "semi-skilled," or "unskilled." If her job was "unskilled," there could be no finding of transferability. See Wallace, supra, 722 F.2d at 1155-56. See also Wallace, supra, at 1156, quoting Social Security Ruling 82-41 at § 2(d): "When job activities are at this minimal level of skill . . . the worker has very little vocational advantage over an unskilled person and does not have transferable skills."
Moreover, there was no testimony of finding concerning whether the jobs recited by the vocational expert as jobs Stine could perform were "skilled." The Social Security regulations "do not permit benefits to be denied baded on the transfer of skills to unskilled jobs." Podedworny, 745 F.2d at 221, quoting Social Security Ruling 82-41 [P] 2(b): "Transferability means applying work skills which a person has demonstrated in vocationally relevant past jobs to meet the requirements of other skilled or semiskilled jobs" (emphasis added in Podedworny). Because Stouffer's testimony cannot be considered evidence which is substantial enough to determine whether Stine possesses skills which are transferable to the jobs cited by the vocational expert, the Secretary had not met her burden of showing that there is other employment in the national economy which the claimant is capable of performing. Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir. 1979); see Santise v. Schweiker, 676 F.2d 925, 936-37 (3d Cir. 1982) (Dobrowolsky reaffirmed).*fn2
For the reasons set forth above the judgment of the district court will be vacated and the case remanded to the district court with directions to remand to the Secretary for specific findings concerning the particular skills Stine acquired in her past employment and her past employment and her ability to transfer them to any new jobs which are available to her and that she can perform, and for additional vocational evidence on whether there is employment in the national economy which the claimant is capable of performing. In light of the result we reach, we do not consider the plaintiff's equal protection claim.
Costs taxed against appellee.