In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 03-3498

DOLLIE SMITH,

Plaintiff-Appellant,

v.

JO ANNE B. BARNHART, Commissioner

of Social Security,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 02-C-724—Thomas J. Curran, Judge.

____________

ARGUED SEPTEMBER 20, 2004—DECIDED OCTOBER 26, 2004

____________

Before POSNER, KANNE, and EVANS, Circuit Judges.

POSNER, Circuit Judge. Under the rules governing social

security disability benefits, an applicant who can perform

his “past relevant work” (defined as substantial gainful employment that he had performed, in the not too remote past,

long enough to have learned how to do it, 20 C.F.R.

§§ 404.1560(b)(1), .1565(a)) is disentitled to benefits.

§§ 404.1520(f), .1560(b)(3); Wolfe v. Shalala, 997 F.2d 321, 323

(7th Cir. 1993). On this basis the administrative law judge

denied Dollie Smith’s claim and the district court affirmed
2 No. 03-3498

the denial. Smith’s past jobs had included tax preparer, director of a program for helping old people, and management

and information specialist. All three jobs had required her

to spend at least half her work time writing and typing.

Among a really formidable list of ailments that precipitated

her application for disability benefits is arthritis in both her

hands which she testified makes it impossible for her to do

as much writing and typing as her past jobs demanded. The

administrative law judge determined, with we conclude

substantial basis in the record, that despite her ailments

Smith is able to do sedentary work; and since her past jobs

were sedentary the judge concluded that she could do them

and so he didn’t have to go on to decide, as he would have

had to do had he found her incapable of resuming her past

relevant work, whether other jobs that she could perform

exist in sufficient number in her region to preclude an

award of benefits. Barrett v. Barnhart, 355 F.3d 1065, 1067

(7th Cir. 2004). The distinction can be crucial, as in a case in

which the past relevant work no longer exists in the economy;

nevertheless, if the applicant has the physical and mental

ability to perform it, he is barred from obtaining disability

benefits. Barnhart v. Thomas, 540 U.S. 20 (2003).

The administrative law judge’s error, which requires us to

remand the case to the Social Security Administration, lay

in equating Smith’s past relevant work to sedentary work in

general. He should have considered not whether she could

perform some type of sedentary work but whether she could

perform the duties of the specific jobs that she had held.

E.g., Strittmatter v. Schweiker, 729 F.2d 507 (7th Cir. 1984);

Lowe v. Apfel, 226 F.3d 969, 972-73 (8th Cir. 2000); Kirby v.

Sullivan, 923 F.2d 1323, 1326-27 (8th Cir. 1991); Gunnels v.

Bowen, 867 F.2d 1121, 1123-24 (8th Cir. 1989). For example,

selling tickets in a movie theater is a sedentary job, and one

that does not require much if any writing or typing, and so

we can assume that Smith’s arthritis would not prevent her
No. 03-3498 3

from holding such a job. But selling tickets in a movie

theater was not one of Smith’s past relevant jobs. Those jobs

required that she spend most of her time writing and

typing.

Suppose, to demonstrate the starkness of the administrative law judge’s error (which the district court repeated by

failing to consider that Smith’s past work had required that

she be able to type and write for most of the work day), that

in Smith’s region there are no sedentary jobs that do not

require more writing or typing than she is physically able to

do. The logic of the judge’s ruling would be that she

nevertheless is not disabled because she can perform some

sedentary work, and this would be flatly contrary to the

law, as the cases cited above make clear. The basic principle

is stated not only in the cases we have cited, all of which involve sedentary work (Lowe and Kirby are factually similar

to this case), but in other cases, involving light or medium

work, as well. Nolen v. Sullivan, 939 F.2d 516, 518-19 (7th Cir.

1991); Schnorr v. Bowen, 816 F.2d 578 (11th Cir. 1987); Valencia

v. Heckler, 751 F.2d 1082, 1086-87 (9th Cir. 1985).

But a complication arises because, although a merely

“similar” job, or the same “type of work,” will not do as the

applicant’s past relevant work, Evans v. Shalala, 21 F.3d 832,

834 (8th Cir. 1994), the administrative law judge can “base

his comparison on the functional demands and job duties of

the [applicant’s past] occupation as generally required by

employers throughout the national economy.” Orlando v.

Heckler, 776 F.2d 209, 215-16 (7th Cir. 1985); see also Steward

v. Bowen, 858 F.2d 1295, 1301 (7th Cir. 1988). As the Social

Security Administration explains in a policy statement on

which the courts have relied, on the one hand “a broad

generic, occupational classification of [the applicant’s past

job], e.g., ‘delivery job,’ ‘packaging job,’ ” will not do, but on

the other hand an applicant who “cannot perform the
4 No. 03-3498

excessive functional demands and/or job duties actually

required in the former job but can perform the functional

demands and job duties as generally required by employers

throughout the economy” should not be found to be disabled. Social Security Ruling 82-61 (emphasis added). The

word we have italicized, which was omitted in the quotation from the ruling in the Steward and Orlando cases, is the

key to threading the needle. The issue is not whether the

applicant for benefits can return to the precise job he held,

which is hardly likely to have been kept open for him, but

whether he can return to a “job” he held that exists at other

employers. However, the job must not be described so

broadly as to encompass a range of physical and mental

abilities some of which the applicant may not have; and that

is the case if the job is described merely as “sedentary

work.” See also Pinto v. Massanari, 249 F.3d 840, 846 (9th Cir.

2001). Picking out the line in an individual case is of course

a task for the agency, subject to light judicial review; hence

the need for a remand.

Yet it might appear that a remand would be futile because

Smith, if she can do sedentary work, albeit not her past

relevant work, would not be disabled. But that is not

correct. Because she was above the age of 60 at the onset of

the alleged disability, the government will have to prove

either that Smith has skills that she can transfer to a new job

with little or no difficulty or that she has recently completed

education that would facilitate her “direct entry into skilled

sedentary work.” 20 C.F.R. 404 Subpart P, App. 2, §§ 201.00(d),

(f), 201.06-.09; 20 C.F.R. §§ 404.1563(e), .1568(d)(4); Tom v.

Heckler, 779 F.2d 1250, 1253-54 (7th Cir. 1985). And even

then, if Smith’s arthritis is found to be sufficiently severe (a

matter for determination by the administrative law judge on

remand), a vocational expert will have to be consulted to

determine whether there are jobs that Smith can still
No. 03-3498 5

perform in reasonable proximity to where she lives. Luna v.

Shalala, 22 F.3d 687, 691 (7th Cir. 1994).

VACATED AND REMANDED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—10-26-04