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ROBINSON v. HECKLER

August 14, 1984

CLAUDE W. ROBINSON, Plaintiff,
v.
MARGARET M. HECKLER, Secretary of Health and Human Services, Defendant



The opinion of the court was delivered by: OBERDORFER

 Claude Robinson brings this action under section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to obtain judicial review of the final decision of the Secretary of Health and Human Services terminating his disability benefits. Although Robinson's initial application for benefits was denied, Administrative Law Judge Nathan A. Bork determined, on June 10, 1980, that the claimant had been disabled ever since his back was injured in a 1975 work-related traffic accident. Specifically, after considering the medical record and the testimony of a vocational expert, Judge Bork concluded: "it might be stretching a point to find that [Robinson] is able to perform sedentary work." R. at 198.

 In December of 1982, the Social Security Administration (SSA) notified Robinson that it no longer considered him disabled. The SSA's notice declared that the claimant was able to perform "medium work." R. at 200. On January 7, 1983, an examiner in the South Carolina Disability Determination Division filed a report determining that plaintiff's disability had ceased in December of 1982 and that benefits would cease in February of 1983. R. at 232-33. A termination notice was mailed to Robinson on January 17 (R. at 202-04), and the claimant requested reconsideration on February 2. R. at 205. On March 22, a different disability examiner issued a new report, which revised the January 7 determination but did not alter the decision to terminate benefits. R. at 229-31. An official notice of reconsideration upholding the termination was mailed on March 22. R. at 206. Robinson then requested an administrative hearing (R. at 208-09), which was held before Administrative Law Judge Thomasine G. Mason on June 6, 1983. In an opinion issued on July 11, Judge Mason concluded that Robinson "has the residual functional capacity to perform medium to light truck driving and other medium and light work activities." R. at 14. Specifically, she found that Robinson has "the residual functional capacity to perform the full range of medium work" and that "his capacity for the full range of medium work had not been compromised by his additional nonexertional limitations." R. at 15, 16. Judge Mason therefore held that Robinson's disability had terminated in December of 1982 and that his entitlement to benefits ended in February of 1983. R. at 16. The Appeals Council denied review. R. at 3-4. Having exhausted his administrative remedies, the claimant sought review of the Secretary's final decision in this Court.

 Robinson has moved for summary judgment, and the Secretary has moved for a judgment of affirmance. In accordance with Igonia v. Califano, 186 U.S. App. D.C. 161, 568 F.2d 1383, 1389 (D.C. Cir. 1977), claimant's motion for summary judgment will be treated as a motion for judgment of reversal made pursuant to Fed. R. Civ. P. 7(b)(1).

 A claimant under the Social Security Act bears the burden of proving that he is disabled. See 42 U.S.C. § 423(d)(5). It is not disputed, however, that Robinson has not engaged in substantial gainful activity since he was injured in 1975 or that he suffers from a severe impairment that prevents him from resuming his past relevant work. R. at 15. Since Robinson is unable to return to his former occupation as a construction driver, the Secretary bears the burden of establishing that Robinson can perform other substantial gainful employment existing in the national economy. E.g., Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983); Torres v. Secretary of Health and Human Services, 677 F.2d 167, 168 (1st Cir. 1982); Belton v. Schweiker, 535 F. Supp. 1319, 1322 (D.D.C. 1982).

 To determine whether a claimant is able to perform these other jobs, the Secretary refers to the "grid," a set of tables which take administrative notice of the types and number of jobs that exist in the national economy. See 20 C.F.R. Subpart P, Appendix 2 -- Medical-Vocational Guidelines (1983); Heckler v. Campbell, 461 U.S. 458, 103 S. Ct. 1952, 1954, 76 L. Ed. 2d 66 (1983). The grid classifies claimants as "disabled" or "not disabled" on the basis of age, education, work experience, and residual functional capacity. If there is substantial evidence in the record to support the Secretary's conclusion that the grid applies to a claimant, and if the grid dictates a finding that the claimant is "not disabled," the Secretary's burden is satisfied. See Heckler v. Campbell, 461 U.S. at , 103 S. Ct. at 1954. But if the grid does not accurately describe the claimant's medical and vocational characteristics, the Secretary can satisfy her burden only by considering the testimony of a vocational expert. See id., 103 S. Ct. at 1955 n.5, 1957 n.11, 1959 n.14; Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983); Torres v. Secretary of Health and Human Services, supra, at 170.

 This inquiry is affected by another consideration. In a disability termination case, the prior ruling of disability gives rise to a presumption that the disability continues to exist. Dotson v. Schweiker, 719 F.2d 80, 82 (4th Cir. 1983); Patti v. Schweiker, 669 F.2d 582, 586-87 (9th Cir. 1982); Crosby v. Schweiker, 650 F.2d 777, 778 (5th Cir. 1981); Rivas v. Weinberger, 475 F.2d 255, 258 (5th Cir. 1973); Arandjelovic v. Schweiker, No. 82-2607, slip op. at 5 (D.D.C. Sept. 2, 1983). *fn1" Although this presumption does not affect the ultimate burden of proof, it imposes on the party against which it is directed the burden of going forward with evidence to rebut the presumption. Patti v. Schweiker, supra, at 587; Fed. R. Evid. 301. The Court must therefore "ascertain whether the Secretary's finding of improvement to the point of no disability is supported by substantial evidence." Simpson v. Schweiker, 691 F.2d 966, 969 (11th Cir. 1982) (emphasis in original). Because Administrative Law Judge Bork held in 1980 that Robinson's back condition was so severe that "it might be stretching a point to find that he is able to perform sedentary work," the Secretary's determination can be affirmed only if there is substantial evidence in the record to support the finding that Robinson's back problem improved to the point that he could perform "medium work."

 Substantial evidence is "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938)); see also Hoska v. United States Department of the Army, 219 U.S. App. D.C. 280, 677 F.2d 131, 135 (D.C. Cir. 1982). In this case, the Secretary's determination must be reversed because there is no substantial evidence that Robinson's back condition has improved to the point that he can do "medium work." *fn2"

 Judge Bork based his disability determination on Robinson's back problems. He observed that although the claimant had undergone a discectomy in 1977,

 
he continues to experience back problems and cannot sit, stand or walk for prolonged periods. He is unable to bend without pain and lifting is limited to objects of light weight.
 
He experiences considerable difficulty sleeping and when rising in the morning his back is so stiff he is barely able to walk.

 R. at 197. In reaching this conclusion, Judge Bork considered the medical records, including two reports which concluded that the claimant was totally ...


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