Virgil L. CRADY, Plaintiff-Appellant, v. SECRETARY OF HEALTH & HUMAN SERVICES, Defendant-Appellee

NELSON, Bеfore MERRITT and CONTIE, Judges, and Circuit Senior Judge. PER CURIAM. question presented in this social se-

curity appeal is whether the Health and Human Services made too “me- application age catego- chanical” an ries in the set out at 20 404, Subpt. App. 2. Because we con- properly applied, clude that the Secretary’s findings and because the are evidence, supported by substantial we shall affirm the denial of benefits. claimant, Virgil Crady, was born in of 1929. He attended school October through grade. At the third time of before the administrative law judge height was 5'6" in lbs., weighed 124 down somewhat from weight his normal of 135 lbs. Since 1970 employment junk- his main had been as a laborer, yard working “heavy” capacity. exertional quit claimed to have this work junkyard dust irritated because respiratory system. trouble, history had a of heart alcohol, high pressure, past blood abuse of (His left and difficulties with his knee. operated following knee was an accident 1979.) July suffered in The case arises from the denial of the application filed Mr. disability supple- insurance bеnefits and security mental income benefits. first application, submitted on December 1980, alleged disability “[ijnactive from TB trouble,” leg disability & with a onset date 5,May 1980. This de- February nied on 1981. Mr. did appeal agency. that decision within April application, The second filed on 1982, again since asserted “[ejmphyse- 1980. This listed ma, back, TB” as the Kelly leg, bad bad inaсtive Kelly, argued, R. Michael and Alb- ers, Louisville, disabling conditions. Notice de- Ky., plaintiff-appellant. medical 18,1982; disability was sent on June reconsideration. ‍‌​​‌‌​‌‌​​​‌​‌‌‌‌​​​‌​​​‌​​‌​‌​‌‌​‌​​‌​​​‌​‌‌​‌​‍The acknowledged nial of letter reconsideration, sought unsuc- “spent great that the AU had deal of cessfully. According reviewing to Mr. testi- time the extensive medical mony, drinking in the summer of he was evidence in attempt this case in an to reach attorney decision,” 1982 and did not inform expressed a fair agreement denied; conse- reconsideration had been conclusion that there had been no request hearing quently, timely for a showing of a impairment severe meeting Crady’s filed. Mr. at- before an ALJ was listings Appendix the in 1. “I also under- subsequеntly attempted, without torney agree you stand and applying the se- success, agency to convince the that a be- quential Grid,” evaluation and the let- [the] request hearing ought for to lated be continued, ter “in all except finding areas allowed. (That finding # 8.” reads as follows: years old, claimant is 54 which is “[t]he on June application The third was filеd approaching (20 defined as advanced alleged and 1983. It the same onset date 416.963)”.) Pointing CFR 404.1563and out trouble, disability on heart claimed based 404.1563(a)says that 20 C.F.R. “we will § emphysema, high pressure, blood arthritis apply these mechanical- knee, left and bad nerves. After of the situation,” ly in a attorney borderline the denied, Crady sought benefits were Mr. suggested Crady placed that Mr. in the an and obtained before AU. age” category (age over). “advanced 55 or Crady met The AU determined that Rule 202.01 of the Table No. requirements for insured status under the finding directs a of “disabled” for unskilled Act; had not Security the Social that he persons of limited education or less who gainful activity engaged substantial light are limited work are of “ad- 5, 1980; although he suf- since that age;” promoting Crady vanced the medically various determinable fered from higher age category would thus have impairments, impair- he did not have an changed finding presum- disability, the “Listing Impair- forth in the ment set ably. P, 404, Subpart in 20 ments” decision, change his The AU did not 1; Appendix Crady was unable to although appeals council told Mr. perform past junk- relevant work as a “carefully considered each of that it had laborer, yard but retained the residual by your representa- raised the contentions capacity perform functional a wide September tive in his letter dated activities; range light of unskilled work 1984,” grant appeals council declined tо was 54 old and had a sought judicial review. Mr. review education; marginal that he did not have timely decision an action agency’s any skills that were transferable to work States District Court filed United jobs; skilled or semi-skilled and that Mr. Kentucky. District Western being “person approaching ad- who, magistrate, to a matter was referred (see 404.1563), vanced page report, ten rec- carefully in a drafted 202.10, Rule as set forth in Table No. of complaint be dismissed. ommended that con- the Medical-Vocational Guidelines magistrate’s accepted court The district Appendix Subpart tained in 2 of 20 C.F. judg- and entered a final recommendation R. Part “warrants a that the ap- dismissing complaint. This ment meaning clаimant is not disabled within the died at about the peal followed. find of the Act....” The AU went on to appeal. time of the not under a ‘dis- claimant was “[t]he Security ability,’ as defined the Social

Act, through this any time the date of Crady’s' application Had decision....” first, disability insurance been days not have been awarded with September two after benefits сould

On decision, prior respect any period to June the AU issued the filing requesting being twelve ‍‌​​‌‌​‌‌​​​‌​‌‌‌‌​​​‌​​​‌​​‌​‌​‌‌​‌​​‌​​​‌​‌‌​‌​‍months before sent the a letter counsel application. 423(b); Heckler, of the U.S.C. 20 Peck v. 738 F.2d 1112 § Cir. 404.621(a); 1984)(survivor Bowen, benefits). C.F.R. see Rohrich v. previous When a § (8th Cir.1986).1 reopened, 796 F.2d may benefits fact, however, awarded retroactively had twice before basеd on the date of original See, application. applications e.g., alleging filed for benefits Green v. Mathews, 550 F.2d 458 onset date in of 1980. When the same presented ap- claim has been in successive Although it has argued sometimes been plications, may apply the AU choose to filing that the date of the doctrine of judicata.” “аdministrative res for benefits is the date as of which the 404.957(c)(1), 416.1457(c)(1). 20 C.F.R. §§ determination of disability ought to be However, regulations provide also for made, no argument such presented reopening determinations oth- provisions here. of 20 C.F.R. erwise appeal. final because of failure to 404.620 make it clear applicant that if an 404.987, 416.1487. Determi- applies §§ for benefits before he has become by agency regarding nations disabled or has otherwise met all the re- may reopened benefits within 12 months quirements entitlement, for but then meets of the date of the notice of the initial requirements all (including requirement reason,” any determination “for disability) and within before there has been an AU “good hearing decision, four of that date for cause.” will re- 404.988(a), (b).2 inmain effect issued, until the decision is may paid and benefits from the first Although Crady’s filing month that the claimant met all the re- expressly request reopening, did not it quirements for entitlement. The relevant ‍‌​​‌‌​‌‌​​​‌​‌‌‌‌​​​‌​​​‌​​‌​‌​‌‌​‌​​‌​​​‌​‌‌​‌​‍again 5,May asserted an onset date of determining time for whether the claimant hearing, 1980. At the administrative appears disabled thus to be the date of Crady’s AU observed that Mr. claim for the AU’s decision. The decision date is “the same benefits” had been denied twice point relevant cut-off analysis for of all before. The AU stated “I don’t care what factors on which the determination of dis- they’ve done why they’ve before or done it ability based, vel nоn is including the independent but I’ll make an decision as to age. claimant’s See Varley Secretary v. you whether are entitled to these benefits Services, Health & Human 820 F.2d upon based the evidence received here to (6th Cir.1987). 780 day....” The AU made an extensive analysis of the claimant’s medical condition We Secretary’s review the findings to through mid-1982, period as to which no they determine whether supported are by benefits could have been awarded absent evidence; i.e., substantial “such relevant reopening. Bowen, Rohrich v. 796 F.2d evidence as a person reasonable might ac- 1031 opinion cept adequate as support a conclusion.” prior makes reference to the adverse Houston v. Health and Hu- determinations, does judi not refer to res Services, man 736 F.2d Cir. cata, peri and concludes that there was no 1984) (quoting Perales, Richardson v. disability subsequent od of to the claimed 389, 401, U.S. 91 S.Ct. 28 L.Ed. 5,May onset appears date of It (1971)). 2d 842 obvious reopened prior that application, may as he do even Notwithstanding Crady’s testi express there is no statement that he has mony that his left knee occasionally gave done Califano, so. ached, Wilson 580 F.2d 208 way and justified AU was (6th Cir.1978); Heckler, Jelinek v. determining F.2d that this condition was not a (8th Cir.1985); see Taylor also impairment severe regulations. under the Crady’s accompanying 1. Mr. supplemental security periods 2. For incomе the supplemental security only per- income would years respectively. are 12 months and two payments beginning mit for the months 416.1488(a), (b). June of 1983. 20 C.F.R. § 416.335. required The nervous condition Although July, may accident have been course was une- surgery, post-operative Crady’s history related to Mr. of alcohol thought ventful, treating physician abuse, and the but he informed the AU that he work, returning to as Crady capable quit drinking had in 1982. Mr. Crady ex- by Dr. Cald- he in fact did. Examinations plained problem he that had a with alcohol and Dr. February well in of 1981 past, recently most beginning in 1979 no restriction of of 1982 disclosed year—a in which his wife died and he X-rays of left knee taken in motion. injury suffered the knee at work. The limits, essentially within normal 1981 were September, 1982, medical notations August of 1983 showed and those taken problem, refer to an alcohol but the ab- degenerative joint only “[m]inor sence of further notations confirms Mr. changes_” August In of 1983 Mr. Cra- Crady’s testimony abusing that he was not gave history Miller a medical dy 1983-84; argued alcohol in it is not knee condition as described the appeal anything other рroblem” problem and “not a “occasional a reformed alcoholic at that time. currently.” Perhaps Crady’s significant most appeal It is admitted on respira- medical ailment consisted of a during the hypertension was under control tory/pulmonary variously restriction as- August relevant time frame. emphysema, bronchitis, cribed to chronic to in the hypertension was referred fibrosis, pulmonary histoplas- and healed medical records as “now treated.” mosis or tuberculosis without disease. Mr. experienced Crady did tell the AU he had Crady quit testified that he work in pain of severe chest four or five incidents longer 1980 because he could no tolerate years prior hearing, аnd nitro- in the two to junkyard. the dust at the He further at- glycerine prescribed. An EKG in had been exposed tested to shortness of breath if to September myocardi- of 1982showed an old fumes, dust or or when the weather was ischemia, as of al infarction and recent but hot,” humid,” “real “real or “real cold.” August, Crady taking Although Crady being testified to short prescribed nitroglycerine of one at a rate walking only couple of of breath after a most, per tablet month at and the chest blocks, applications disability say symptoms by Crady were described Mr. places, and his com- that he walked most severe_” himself as “not ... too Dr. frequent trips suggested ments to the AU merely suspected coronary artery Miller librаry. the local to angina, disease and and lat- considered the only pulmonary ter to be “mild and and intermittent” The record contains four “compensated.” studies, performed between function (A and October of 1983. subse- of 1980 etiology The of the claimed “bad nerves” pulmonary function test is not inter- quent record, is not revealed but Mr. test, showing first while vаl- preted.) The told the AU that “I’ve had bad nerves all predicted, discon- had to be ues lower my suggests life.” record no recent Crady was intoxicated tinued because Mr. treatment, psychiatric except for a notation found May, time. A test at the indicating point at one improvement with bronchodilators minimal pills.” May on undefined “nerve acknowledged a moderate obstructive and that he had re- told Upton nonetheless ventilatory defect. Dr. 1960s, psychiatric ceived assistance in the pulmo- only a “mild loss concluded that Upton thought currently but Dr. there was exam, The third nary reserve” existed. “adequate compensa- psychological tion_” performed August is incom- reprе- At the after plete; were taken no observations sented that his hands when he trembled October, 1983, study nervous, bronchodilation. became but said he was not seek- only “mild obstruc- complete; it found a ing Upon treatment for in- is the condition. “significant improvement ‍‌​​‌‌​‌‌​​​‌​‌‌‌‌​​​‌​​​‌​​‌​‌​‌‌​‌​​‌​​​‌​‌‌​‌​‍quiry, the acknowledge claimant did tive defect” patient’s walking reading post and which moves settled his nerves. bronchodilator pulmonary into made, function ‘near normal’ val- nation is accept we cannot the sug- justified ues.” The 1983 test gestion AU’s of counsel that the disability deter- any pulmonary inference that ought restriction mination to have been made as of light work, not preclude would and there appeals time the review, council denied opinion no medical to the contrary. A rather than June as of the date of the AU’s 29, 1983, letter from Dr. decision. Metallana also indicates that no deterioration had occurred It is claimed that the AU could not April, 1982, through early from rely grid on the to reach a conclusion of no disability because testimony Given that cоmplaints various breathing was more difficult with ex “compensated,” were either treated,” “now posure heat, cold, to humidity, or dust con 1983-84, during or under control substan stituted evidence of respiratory problem supports tial evidence the AU’s conclusion with both exertional and nonexertional no disability even components. Where nonexertional limita pointed have the opposite would conclu exist, grid tions is but a framework for if sion the AU had acted after Mr. Crady’s determination. birthday 55th instead of before that birth Subpt. App. 200.00(e)(2). day. proceeded The AU could have ifas fully AU did not credit Mr. Crady’s already had age 55, reached testimony, although sure, grid’s age categories be because the times stated that environmental conditions are not to treated “mechanically” be —and breathing condition, exacerbated his on oth thought if the appropriate AU had it er suggest occasions he did not that as a Mr. Crady treat as if he already had problem. In the absence opin of a medical reached “advanced the time of the ion indicating restrictions, environmental decision, of disability could have we think upon, could relied be been made under Rule 202.01 of No. Table expert vocational was not required to 2. The fact that are not to testify to the available where claimant applied mechanically, however, obvious exposеd heat, would cold, or dust. ly does not mean that a claimant must be reasons, moved For mechanically age foregoing to the the catego next and for the ry reasons chronological whenever his set forth in age magistrate’s the is close re- port, judgment category. the is AFFIRMED. A report medical dictated CONTIE, Senior Judge, said that Mr. “ap- dissenting. peared older age 52,” than his stated of but The majority has failed to take into ac- that observation binding not was on the count that the Judge’s Administrative Law AU, who saw Mr. at hearing held (AU’s) finding that was unable to two later. The AU observed Mr. perform past relevant work shifted the Crady on the witness stand for more than burden to the Secretary to establish Cra- hour, half аn and we are in position dy’s ability to work. more troubling, Even say that the placing AU erred Mr. Cra- however, majority phrases the the main dy in “approaching age” advanced cate- question presented in this case as whether gory, any more we say could it would applied AU in the have been put error to him in the “ad- “grid” mechanically. too I bеlieve the vanced category. The AU’s use of proper question applied whether the AU the former category permissible, “grid” itself too mechanically. Be- required, not having placed the cause the applied “grid” itself too claimant in category, the AU was mechanically, I dissent. correct in his conclusion that “the frame- of work Rule 202.10 ... By warrants” the showing “a medical basis for im- was not pairment prevents disabled. him from engaging For the reasons indicated our discussion particular occupation,” Hephner v. date as of which a disability Mathews, 359, determi- Cir.1978), F.2d prima facie case the claimant establishes case, the AU disability. In instant HIGLEY, Edward Lewis capable of re-

found that Plаintiff-Appellant, occupation. turning particular to his prima out a the claimant makes Once MICHIGAN DEPARTMENT OF Secretary’s case, bur it becomes facie CORRECTIONS, al., et ability to the claimant’s den to establish Defendants-Appellees. 139, 145 F.2d Califano, 613 work. Allen v. (6th Cir.1980). Secretary prove must No. 86-1688. that, present job taking into consideration Appeals, United States Court of experience, age, such as edu- qualifications Sixth Circuit. capacity, and the exist- physical cation qualifications, match those ence of Submitted Oct. 1987. capacity perform a retains the claimant Decided Dec. job. kind of U.S.C. different 404.1520(f)(1); 423(d)(2)(A); 20 C.F.R. § Campbell, 461 U.S. Heckler v. (1983). 1952, 1953, 76 L.Ed.2d 66

103 S.Ct. can, occasion, be Secretary’s ‍‌​​‌‌​‌‌​​​‌​‌‌‌‌​​​‌​​​‌​​‌​‌​‌‌​‌​​‌​​​‌​‌‌​‌​‍burden by relying on the medical-voca-

satisfied guidelines, as the otherwise known

tional subpt.

“grid.” pt. See claim-

app. 2. If the characteristics identically description

ant do not match however, grid, is used guide framework or a to the

as a Secretary Kirk v. determination. Servs., 667 F.2d

Health & Human should not have been al- rely on a mechanical

lowed to in this bor- to meet his burden age sup- My

derline case. conclusion is approach in

ported by the Third Circuit’s (3d Heckler, 776 F.2d

Kane v.

Cir.1985). Kane, upon finding the exist-

ence of a borderline situation contem- 404.1563(a)

plated by 20 the Third remanded the instruc-

Circuit the case with age cate-

tions that the AU consider which

gory apply, and that the AU use the guide making

grid primarily as a

disability determination. agree I the Third

Because applied only should as a

that the

guide situations such as borderline

this in effectuate section 404.- order to

1563(a),I would reverse the district court’s

judgment and remand this case for further

findings. Patrick, Ky., for Harrodsburg,

David plaintiff-appellant.

Case Details

Case Name: Virgil L. CRADY, Plaintiff-Appellant, v. SECRETARY OF HEALTH & HUMAN SERVICES, Defendant-Appellee

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Oct 20, 1987

Citation: 835 F.2d 617

Docket Number: 86-5799

Court Abbreviation: 6th Cir.