Opinion · Court of Appeals for the Sixth Circuit
James D. WEAVER, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee
James D. WEAVER, Plaintiff-Appellant, v. Sec’y OF HEALTH & Hum. SERVICES, Defendant-Appellee, 722 F.2d 310 (6th Cir. 1983)
- Type
- Opinion
- Court
- Court of Appeals for the Sixth Circuit
- Jurisdiction
- Federal
- Date
- 1983-12-07
- Topic
- litigation
finding that an ALJ’s personal observations during the hearing are properly considered in conjunction with other evidence, but may not be the sole basis for discounting subjective complaints | discussing the “thoroughly discredited ‘sit and squirm’ test,” and noting “the ALJ must cite some other evidence for denying a claim for pain in addition to personal observation” | defining skills as “learned abilities” and “aptitudes” as “innate abilities” (emphasis added) | “the ALJ must cite some other evidence for denying a claim for pain in addition to personal observation” | “the ALJ must cite some other evidence for denying a claim for pain in addition to personal observation” | “the ALJ must cite some other evidence for denying a claim for pain in addition to personal observation” | “the ALJ must cite some other evidence for denying a claim for pain in addition to personal observation” | “the ALJ must cite some other evidence for denying a claim for pain in addition to personal observation” | “the ALJ must cite some other evidence for denying a claim for pain in addition to personal observation” | “the ALJ must cite some other evidence for denying a claim for pain in addition to personal observation” | “the ALJ must cite some other evidence for denying a claim for pain in addition to personal observation” | “the ALJ must cite some other evidence for denying a claim for pain in addition to personal observation” | '[T]he ALJ must cite some other evidence for denying a claim for pain in addition to personal observation.' (emphasis in original) | “the ALJ must cite some other evidence for denying a claim for pain in addition to personal observation” | “the ALJ must cite some other evidence for denying a claim for pain in addition to personal observation” | “an aptitude is an innate ability while a skill is a learned ability” | “the ALJ must cite some statements in treatment notes. See, e.g., Francis v. Comm’r of Soc. Sec., 414 Fed. Appx. 802, 804 (6th Cir. 2011) (the physician’s statement “is not a ‘medical opinion’ at all—it merely regurgitates [the patient’s] self-described symptoms” | skills must be directly transferable to overcome this presumption
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WEAVER v. SECRETARY OF HEALTH HUMAN SERVICES,722 F.2d 310(6th Cir. 1983)
JAMES D. WEAVER, PLAINTIFF-APPELLANT, v. SECRETARY OF HEALTH AND HUMAN
SERVICES, DEFENDANT-APPELLEE.
No. 82-1505.
United States Court of Appeals, Sixth Circuit.
Argued June 13, 1983.
Decided December 7, 1983.
Leonard R. Gilman, U.S. Atty., Geneva S. Halliday, Asst. U.S. Atty. (argued), Detroit, Mich., for defendant-appellee.
Before JONES and WELLFORD, Circuit Judges, and ALLEN, District Judgefn*.
[2] A series of injuries left Weaver with a condition requiring "a total laminectomy at the L4-L5 level." Tr. at 86. A laminectomy is an "excision of the posterior arch of a vertebra."DorlandsIllustrated Medical Dictionaryat 84 (25th Ed. 1974). After a period of rehabilitation, Weaver attempted to return to work but was unable to remain on the job. His inability to return to his former employment is undisputed.
[3] Weaver was employed as a mechanic on boxmaking machines. His work involved the use of "cutting torches, welders, pipe threading machines, grinders, drills and drill presses, saws, torches, arc welders, pipe wrenches, various other wrenches, screw drivers, hammers, chain falls, jacks (hydraulics), fork lifts and lifting machines [on occasion]." Tr. at 60, 94. A vocational expert found that Weaver's skills were transferable to such jobs as "inspection, bench assembly and repair, and processing (machine inspection). The jobs would be found in the related automobile industry, plastics industry, and electronic industry. Adjustment would be minimal in view of the light machine repair he was assigned in 1/3/77." Tr. at 137. We note in passing that although the job described is mentioned in the transcript at pp. 101 and 104, we find no evidence of what skills this "light machine repair" job required; and the expert does not disclose where he learned that Weaver possessed such skills.
[4] The vocational expert appears to have relied on Weaver's work history as given in his disability application, Tr. 101-04, for his analysis. Tr. at 135-37. The vocational expert lists a number of job-related skills which he considers transferable. Those skills are "average intelligence, high average space relations, average form relations, above average finger dexterity, and manual dexterity in terms of the tools he used." Tr. at 136. The expert then found the jobs listed above as prospective jobs for Weaver.
[5] Transferability of skills is the subject of 20 C.F.R. Subpart P, Appendix 2, Sec. 201.00(f). "In order to find transferability of skills to skilled sedentary work for individuals who are of advanced age (55 and over), there must be little, if any, vocational adjustment required in terms of tools, work processes, work settings, or the industry." The Administrative Law Judge (ALJ) found that Weaver was capable of doing sedentary work and that he was over 55, but made absolutely no reference to whether his skills were transferable to another prospective position. Instead, the ALJ appeared to rely on the vocational expert's finding that Weaver's skills as a mechanic were transferable to the new jobs envisioned by the vocational expert.
[6] The only case discussing transferability of skills under 201.00(f) isBlake v. Secretary,528 F. Supp. 881(E.D.Mich. 1981). TheBlakecourt held that although "[h]and-eye-foot coordination and manual dexterity might be considered skills if acquired from work activity requiring rapid, repetitive or fine manipulation . . ., [p]laintiff's prior work experience [pulling and pushing knobs and buttons] has conferred no `substantial vocational asset' to overcome the vocational limitations due to her age, limited education and medical impairments. . . ."528 F. Supp. at 886.
[7] Initially,Blakestands for the proposition that there is an inherent difference between "aptitudes" and "skills." An "aptitude" is an "inclination, a natural ability, talent, or capacity for learning." A "skill" is a "learned power for doing something competently."Webster's Ninth New CollegiateDictionary.In short, an aptitude is an innate ability while a skill is a learned ability. Compare20 C.F.R. 404.1521(b) with20 C.F.R. 404.1565and404.1568.Page 312While a person may have natural talents including dexterity, general coordination, space relations, etc., that same person may not have the particular learned ability to do a specific job. In this case, the vocational expert dealt with Weaver's "aptitudes" rather than with Weaver's "skills."
[8] Furthermore,Blakestands for the proposition that a person who fits into this category on the "grid" is presumed disabled unless they have a particularly transferable skill, or "vocational asset." We find this presumption defensible. At an advanced age, a person has little time to learn a new skill and apply it to a new job, especially if that person is restricted to sedentary work by a medical disability. Rule 201.00(f) requires the Secretary to show that the disabled person has skills which are directly transferable in order to overcome the presumption. Here, neither the ALJ nor the vocational expert made any showing that Weaver needed "very little, if any, vocational adjustment . . . ." Rather, the ALJ adopted the vocational expert's findings which confused aptitudes and skills. We agree that the "presumption would be effectively negated if such basic aptitudes as the ability to see, think and uses ones [sic] hands, common to most persons, are considered transferable skills."528 F. Supp. at 886. Therefore, we reverse.
[9] Additionally, we find that the ALJ did not deal correctly with the issue of pain. The ALJ discounted Weaver's complaints of pain, as we read the ALJ's opinion, solely on the basis of his own observation of Weaver at the hearing. While we recognize that observation and credibility are factors in this complicated equation, and as such are material, relevant, and admissible, we cannot allow the dismissal of a claim for pain solely on the ALJ's observations at the hearing. This procedure amounts to the infamous and thoroughly discredited "sit and squirm" test. We do not imply that there was no evidence in the record from which the ALJ could not draw the inference of a lack of pain. However, the ALJ must citesomeother evidence for denying a claim for pain in addition to personal observation.
[10] The decision is reversed and remanded to the District Court for an award of benefits.
The only other element which may affect this claimant's ability to engage in some work activity is the allegations of pain. While it is recognized that pain of a severe and persistent nature can be in and of itself disabling, it must be also established that because it is a symptom rather than a medically determinable impairment subject to precise diagnostic measurement, that there is a high level of subjectivity in stating the degree to which it exists. The preponderance of the evidence in this case does not show that claimant presently has pain which is of the degree that would preclude all work activity. There is no question that claimant experienced back pain however after the recovery from the surgery claimant made two attempts to return to the strenuous work that he previously did. This caused him to experience discomfort, according to him, that caused him to stop. However, his present level of activity which is similar to sedentary work activity does not elicit pain to the degree experienced when trying to do the mechanic job. This conclusion is reinforcedPage 313by claimant's action at the hearing. Mr. Weaver was observed to walk to and from the hearing room without any show of discomfort on movement; he stood and turned to show the undersigned where he experiences the pain and walked to where the undersigned was seated with his medication all without effort or visual display of discomfort.
[13] The ALJ did, I believe, a thorough job of examining the full record and giving full consideration to Weaver's claim of disabling pain. It was not a "sit and squirm" analysis, so often criticized by claimants' counsel in this court.
[14] Furthermore, Dr. Rosenblatt, the physician who performed the laminectomy in March of 1980, remarked that Weaver was then "doing relatively well, but hassome pain in the right hipprimarily from the bone graftdonor site. The patient certainly will have over a year oftemporarytotal disability until the subsequent spinal fusion heals and it probably would be better for him to have onlylight workif such is available" (emphasis added). The record reflects no prescriptions being taken by Weaver for pain after October of 1980. Later, Dr. Rosenblatt's evaluation of disability was equivocal and based on what Weaver felt about performance of "his usual functions" as a shop mechanic. An April, 1981 physical capacities evaluation by a physician1indicates that Weaver could sit 3-4 hours at a time, stand 3 hours at a time, walk 2 hours at a time, and frequently lift or carry 6-10 pounds (occasionally 11-20 pounds) and could use both hands for repetitive movements and both feet for pushing and pulling of leg controls. In addition, he could occasionally bend and squat with only a "mild" restriction to being around moving machinery, none to being exposed to dust, fumes and gases.
[15] I cannot agree that the vocational expert's testimony in his record does not support a conclusion that Weaver's mechanical skills are transferable to some type of sedentary work as found by the ALJ and, at least inferentially, by the district judge.2
- The Honorable Charles M. Allen, Chief United States District Judge for the Western District of Kentucky, sitting by designation. ↩
- The name of the physician is unclear in the record. (App. 130). ↩
- I find,Blake v. Secretary,528 F. Supp. 881(E.D.Mich. 1981) inapplicable to these facts; nor does it in my view establish that 20 C.F.R. Subpart P, App. 2, 201.00(f) contains a presumption that skills are not transferable in sedentary work for a person of Weaver's age (the plaintiff inBlakewas 60 years old or older; the court held that the vocation expert confused general "aptitude" with "skills" in considering whether the latter was transferable). ↩