MARY TODD, PLAINTIFF-APPELLANT,
v.
MARGARET M. HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT-APPELLEE

11th Cir. | 1984-07-17
No. 83-7319
736 F.2d 641 Court of Appeals for the Eleventh Circuit (1984) Positive Treatment
Cited by 11 cases

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Holding

The court held that the Administrative Law Judge (ALJ) failed in his duty to fully and fairly develop the facts, improperly required objective medical evidence for pain, and erred in classifying the claimant's education, requiring reversal.


Facts & Procedural History

The claimant sought Supplemental Security Income disability benefits for ischemic heart disease. The ALJ denied benefits, finding the claimant's pain …

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Opinion of the Court
PER CURIAM:

PER CURIAM:

Todd appeals the district court’s affirmance of the Secretary’s denial of Supplemental Security Income disability benefits. We reverse.

Claimant asserts that she meets the requirements of20 C.F.R. Part 404, Subpart P, Appendix 1, Listing 4.04 (1983), (ischemic heart disease with chest pain of cardiac origin as described in 4.00 E). Evidence in the record suggests that Todd meets the subjective requirement of Listing 4.04. 2 Rec. at 100. However, while there are several pages of electrocardiogram reports in the record, the doctors did not correlate these tests to the terms used in the listing. See id. at 94-95, 102, 113-21. Todd was represented by a paralegal at the hearing before the Administrative Law Judge. The AU has a duty to develop the facts fully and fairly. Ford v. Secretary of Health and Human Services, 659 F. 2d 66, 69 (5th Cir.1981) (Unit B). The AU failed to fulfill this duty when he did not ask the physicians to compare their electrocardiogram results with the readings included in the listing. Furthermore, the AU did not consider Appendix 1 in making his disability determination, even though the Secretary has established a sequential approach for disability determination in20 C.F.R. Sec. 404.1520 (1983).

In his report the AU stated that “[t]he claimant’s allegations of pain and discomfort are noted, however, the medical evidence fails to support a finding that this pain and discomfort is severe enough to place a significant restriction on her occupational activities.” 2 Rec. at 13. In this circuit the AU must recognize that pain alone can be disabling, even when there is no objective medical evidence to support the claimant’s testimony about pain. Gaultney v. Weinberger, 505 F. 2d 943, 945 (5th Cir.1974). The AU improperly required objective medical evidence to support Todd’s claim of disabling pain.

The AU found that claimant could perform a wide range of sedentary work. 2 Rec. at 13. However, the AU made no attempt to relate the evidence to the elements of sedentary work. Todd testified that she could not sit for long periods, id. at 35; the only report in evidence concerning Todd’s ability to sit or lift or carry is a physical capacities evaluation made by a disability examiner who did not evaluate Todd but only reviewed her record, id. at 123. The AU’s finding that claimant can perform sedentary work is not supported by substantial evidence. See Hall v. Harris, 658 F. 2d 260, 265-66 (4th Cir.1981).

To make his disability determination, the AU relied on the Medieal-Vocational Guidelines,20 C.F.R. Part 404, Sub- part P, Appendix 2 (1983) (“the grids”). The AU implicitly found that claimant had a marginal education. 2 Rec. at 13. However, Todd testified that although she had completed three grades of school, she never learned to read and write except for her name. Id. at 25. 20 C.F.R. Sec. 404.1564(b)(1) (1983) defines illiteracy as

the inability to read or write. We consider someone illiterate if the person cannot read or write a simple message such as instructions or inventory lists even though the person can sign his or her name. Generally an illiterate person has had little or no formal schooling.

A “marginal” education, on the other hand, is defined as

ability in reasoning, arithmetic, and language skills which are needed to do simple, unskilled types of jobs. We generally consider that formal schooling at a 6th grade level or less is a marginal education.

In Broz v. Schweiker, 677 F. 2d 1351 (11th Cir.1982), vacated and remanded sub nom. Heckler v. Broz, — U.S. —, 103 S.Ct. 2421, 77 L.Ed.2d 1311, adhered to, 711 F. 2d 957, modified, 721 F. 2d 1297 (11th Cir.1983), we held the grids invalid to the extent they treated the age/ability to adapt factor as a legislative rather than adjudicative fact. Broz I, 677 F. 2d at 1360. We explained in Reeves v. Heckler, 734 F. 2d 519 (11th Cir.1984) how the Secretary could use the age grids in establishing claimant’s ability to adapt. The determination we described in Reeves has not been made in this case. The record indicates that the AU applied the grids mechanistically. On remand to the Secretary, Todd must be given the opportunity to offer evidence on her inability to adapt.1 In the absence of such evidence the AU’s use of the age grids would be dispositive of the issue.

REVERSED and REMANDED.

. We have already determined that this case must be remanded to the Secretary on grounds other than the Secretary's application of the grids. Consequently, there is no need for the claimant to make a proffer of evidence to the district court on her ability to adapt. Rather, on remand to the Secretary, the Secretary must reconsider the case in light of Broz and Reeves if the ALJ applies the grids to Todd.

Footnotes
20 C.F.R. Sec. 404.1564(b)(2) (1983). Under these definitions, the AU erred in not finding that Todd was illiterate.

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Citator

Cited By

  • L.G. Caulder, Jr. v. Bowen, 791 F.2d 872 (11th Cir. 1986)
    …inal roots was unsubstantiated and that Dr. Rollins recommended further examination; yet the AU failed to order further evaluation. The AU is charged with the responsibility of ensuring that the record is fully and fairly developed. Todd v. Heckler, 736 F. 2d 641 (11th Cir.1984); Cowart v. Schweiker, 662 F. 2d 731, 735 (11th Cir.1981). Although the claimant has the burden of proving that he is under a disability, the AU must inquire fully into the matters at issue. Ford v. Secretary of Health & Human Servi…
  • Cannon v. Bowen, 858 F.2d 1541 (11th Cir. 1988)
    …hese findings are inconsistent and neither is supported by the record. The AU never asked the doctors to compare Cannon’s EKGs to the readings set out in appendix 1 to see if Cannon’s tracings satisfied its medical requirements. In Todd v. Heckler, 736 F. 2d 641 (11th Cir.1984), we held that the AU failed to develop the facts fully and fairly when he did not ask physicians to compare the EKG results of the claimant with the readings included in the listing. The case must be remanded for a full development o…
  • Smith v. Bowen, 792 F.2d 1547 (11th Cir. 1986)
    …AU had failed to fulfill his duty to fairly and fully develop the facts because he had not asked Smith to undergo a consultative psychiatric examination. As Smith points out, the AU is charged with developing a fair and full record. Todd v. Heckler, 736 F. 2d 641, 642 (11th Cir.1984). This obligation exists whether or not the claimant is represented by counsel. Cowart v. Schweiker, 662 F. 2d 731, 735 (11th Cir.1981). Consultative examinations are not required by statute, but the regulations provide for t…

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