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Wolfe v. Chater

July 03, 1996

JOHN E. WOLFE, PLAINTIFF-APPELLANT,
v.
SHIRLEY S. CHATER, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION,*FN1 DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Middle District of Florida. (No. 92-349-CIV-FTM-21D). L. Clure Morton, Judge.

Before Birch and Barkett, Circuit Judges, and Henderson, Senior Circuit Judge.

Author: Birch

BIRCH, Circuit Judge:

In this appeal, we review the district court's order affirming an Administrative Law Judge's ("ALJ") denial of a claimant's request for disability consideration and disability insurance benefits under sections 216(i) and 223 of the Social Security Act, as amended. 42 U.S.C. §§ 416(i), 423 (Supp.1995). The district court determined that the ALJ did not err in refusing to reopen two prior ALJ decisions and in relying on vocational expert testimony from prior hearings in reevaluating and adjusting the claimant's educational level and past work level in applying the Medical Vocational Guidelines found in the Code of Federal Regulations ("C.F.R."). We find that the district court erred by not holding that the ALJ's reconsideration on the merits of the prior applications constituted a de facto reopening of those decisions. We also find that the district court erred by not finding that there was insufficient evidence for the ALJ to hold that the claimant's educational level was "marginal." On that ground, we remand the case to the district court with direction to remand to the Commissioner of Social Security to make further findings of fact.

I. BACKGROUND

John Wolfe was born on September 28, 1931, and worked for twenty-five years as a truck assembly line worker at a General Motors plant in Michigan. His duties at the plant included light metal finishing, medium metal welding, and heavy truck assembly of doors and gates. In January of 1982, Wolfe injured his back in an automobile accident. Since undergoing back surgery in April of 1982, Wolfe has been advised to limit his activities and to avoid activities that could cause back strain. He claims that he has not engaged in any work activities since his accident.*fn2

Wolfe first applied for Social Security benefits in 1983. He claimed that he was disabled because of a heart condition, post lumbar laminectomy, and bone fusion, as well as vertebrae and nerve damage. The Secretary of the Department of Health and Human Services (the "Secretary") denied Wolfe's application for disability insurance benefits. Wolfe applied for reconsideration of his application, but reconsideration was denied. He then requested an administrative hearing before an ALJ. After the administrative hearing, at which Wolfe was represented by counsel,*fn3 the ALJ determined that Wolfe could not perform his past relevant work but that there were other jobs that Wolfe could perform, that such jobs existed in significant numbers in the national economy, and that, therefore, Wolfe was not "disabled" under the Social Security Act. The ALJ based his determination in part on the testimony of vocational expert Forrest VanValin and in part on the Medical Vocational Guidelines (the "grids"), found at 20 C.F.R. § 404, Subpart P, App. 2 (1995). Wolfe did not appeal the ALJ's 1984 decision, which adjudicated the period from January 22, 1982, to March 8, 1984. The ALJ's determination thus became the final decision of the Secretary.

In 1985, Wolfe filed a second application for benefits, which was denied by the Secretary. He again requested reconsideration and a hearing. After the hearing in 1986, at which Wolfe waived his right to counsel, a second ALJ denied Wolfe's claim and found that Wolfe was not disabled during the adjudicated period, January 22, 1982, to June 12, 1986. Because Wolfe did not appeal the decision of the second ALJ, it became the final decision of the Secretary.

In 1991, Wolfe filed the current application for benefits covering the period from June 13, 1986, through December 31, 1987. At a hearing before a third ALJ, Wolfe, who was represented by counsel, alleged that there were errors in the two previous decisions that warranted reopening those decisions. The errors, Wolfe contended, concerned Wolfe's alleged functional illiteracy. The third ALJ reached the following conclusions concerning Wolfe's educational level:

In the prior decisions, findings were made that the claimant's education was at a "limited" seventh grade level (Exhibit B-1 and Exhibit C-1). However, the representative notes that Mr. Wolfe has continually contended functional illiteracy and his psychological testing in the record from September 13, 1985 reflects a significant reduction in reading and spelling below a third grade level and math at a fifth grade level. The claimant's intelligence scores from verbal, performance and full-scale I.Q. were within normal range 88-97.

The Administrative Law Judge does not find the claimant to be "illiterate" within the meaning of existing regulations (20 CFR 404.1564). The claimant is able to perform rudimentary reading and spelling at a second grade level. His intelligence testing in March 1985 states that his spelling and reading were below a third grade level and that the claimant had significant difficulties in reading. This is interpreted by the Administrative Law Judge as having a reading and spelling level tested just below third grade level or in a second grade level of functioning. This is not illiteracy. This is functioning on a marginal education level.

R2-16-34-35.

The third ALJ also determined that although the prior decisions had erroneously labeled Wolfe as functioning at a "limited" rather than a "marginal" educational level, the errors were not reversible because there were jobs in the national economy that Wolfe could perform at either educational level. Based on the determination that Wolfe's previous work for General Motors was semi-skilled, light work with transferable skills, that Wolfe was physically able to perform light work, that he had a marginal educational level, and that he was approaching advanced age, the ALJ determined that pursuant to the grids in the Code of Federal Regulations, Wolfe was not classified as disabled. Therefore, the ALJ concluded that he would not reopen the prior decisions. The ALJ went on to find that Wolfe was not disabled during the period covered by his third application for benefits.

The Social Security Appeals Council denied review of the third ALJ's decision and the district court, pursuant to 42 U.S.C. § 405(g), affirmed this denial. We have jurisdiction over this appeal under 28 U.S.C. § 1291. We review the Secretary's factual findings for substantial evidence and the Secretary's conclusions of law de novo. 42 U.S.C. § 405(g) (Supp.1995); Barnes v. Sullivan, 932 ...


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