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BELTON v. SCHWEIKER

April 7, 1982

Bernice S. BELTON, Plaintiff,
v.
Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant



The opinion of the court was delivered by: GREEN

MEMORANDUM OPINION

Plaintiff brings this action under 42 U.S.C. § 405(g) for review of the decision of defendant Secretary of Health and Human Services denying plaintiff's claim for disability insurance benefits under Title II of the Social Security Act. Plaintiff's claim for benefits was heard and denied by an Administrative Law Judge (ALJ) with the Social Security Administration. Plaintiff requested that the Appeals Council of the Social Security Administration review the ALJ's decision, but that request was denied, making the ALJ's decision the final decision of defendant. The issue before this court is whether the Secretary's final decision is supported by "substantial evidence" in the administrative record or whether there is "good cause" as to necessitate remanding the case for further development. See 42 U.S.C. § 405(g).

 Section 223(d)(2)(A) of the Social Security Act, 42 U.S.C. § 423(d)(2)(A) provides that a person "shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy ..." The plaintiff's vocational background is considered along with her "residual functional capacity" (what she can still do despite her limitations) in arriving at a disability decision. 20 C.F.R. § 404.1545.

 Plaintiff in this case is a 58 year old woman with an eighth grade education who has worked for 37 years in food preparation and food service. For most of her career, plaintiff worked as a cook, but following numerous operations on her hands which left her unable to lift heavy pots, she moved from the kitchen to the salad bar, where she prepares cold dishes and desserts.

 In regard to her vocational abilities and education, plaintiff testified that she "ha(d) not done anything but cook" for 34 years (Id. at 53) and most of her experience has been in hotel and restaurant kitchens, although she has done some short-order cooking and "a little" baking. She attended school through the eighth grade and does not claim to read or write well.

 On the basis of plaintiff's testimony, the testimony of a vocational expert, and medical evidence submitted by both parties, the ALJ found that plaintiff is not entitled to disability insurance benefits under the Social Security Act. Although he accepted plaintiff's subjective complaints of pain as credible and found physical impairments including a history of lumbar laminectomy and disc excision, osteoarthritis of the lumbosacral and cervical spines, and cervical radioculopathy, the ALJ determined that plaintiff retained some residual functional capacity to work. While the findings state that plaintiff is of advanced age and limited education and that she is no longer able to perform her past relevant work as a cook, the ALJ found that plaintiff has work skills which can be applied to meet the requirements of work functions for other jobs. Examples of such other jobs, according to the ALJ, are cashier in a cafeteria or cashier in a parking lot.

 The plaintiff challenges the ALJ's findings to the effect that she is capable of performing "light work" (ALJ's Finding of Fact # 6) ("Finding # 6"), that she is a skilled worker (Finding # 9), and that her work skills are transferable to the job of a cashier (Finding # 9). Plaintiff claims that the evidence in the administrative record does not support the final decision of the ALJ and the defendant and that the decision should be reversed.

 The first concern with the ALJ's findings of fact focuses on the inconsistency between Finding # 4 and Finding # 6, both of which address the plaintiff's residual functional capacity, or what she can do despite her limitations. See 20 C.F.R. § 404.1545. Finding # 4 states that:

 
"The claimant has the residual functional capacity to perform work-related functions except for work involving more than light exertion or significant bending, lifting, stooping, carrying, or prolonged walking, sitting or standing."

 Finding # 6 states that:

 
"The claimant has the residual functional capacity for at least light work as defined in Regulation 404.1510."

 Light work, which is defined in Regulation 404.1567(b), not 404.1510 as stated by the ALJ,

 
"involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing or pulling of arm or leg controls. To be considered capable of performing a full ...

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