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
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 ...