Petition for Writ of Certiorari — Grimes v. Bowen

JUL 28 387

. SPANIOL, JR,

.

IN THE

Suprenw Court of the United States

OCTOBER TERM, 1987

ENNIS GRIMES,

Petitioner,

V.

OTIS R. BOWEN,

SECRETARY OF HUMAN SERVICES,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

E. RONALD GARNETT

360 Bay Street, Suite 310

Augusta, Georgia 30901

(404) 724-1144

Attorney for Petitioner

WILSON - Eves PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

Did the Petitioner have his due process rights violated

by the Administrative Law Judge in the Social Security

hearing when the Administrator Law Judge applied voca-

tional guidelines and found that the Petitioner was not

disabled within the meaning of the Social Security Act

when no vocation expert testified and the Petitioner was

not given opportunity to rebut the guidelines and assump-

tions as applied to his case that were made through the

vocational guidelines?

(i)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases Page

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Constitutional and Statutory Provisions

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IN THE

Suprenw Court of the United States

OCTOBER TERM, 1987

No.

ENNIS GRIMES,

Petitioner,

¥.

OTIS R. BOWEN,

SECRETARY OF HUMAN SERVICES,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

OPINION BELOW

The opinion of the Court of Appeals denying em bach

hearing (Appendix A, infra, pp. Al-Al) [omitted] is

unreported. The opinion of the Eleventh Circuit (Appen-

dix B, infra, pp. B1-B5) [omitted] is unreported. The

opinion of the United States District Court for the

Middle District of Georgia (Appendix C, infra, pp. Cl-

C2) [omitted] is unreported. The opinion of the Social

Security Appeals Council (Appendix D, infra, pp. D1-

D2) [omitted] is unreported. The opinion of the Ad-

ministrative Law Judge (Appendix E, infra, pp. E1-E8)

[omitted] is unreported.

2

JURISDICTION

The opinion of the United States Circuit of Appeals

for the Eleventh Circuit was entered on April 7, 1986.

The order of the United States Court of Appeals for the

Eleventh Circuit denying an em bach hearing was en-

tered on March 30, 1987. The jurisdiction of this Court

is invoked under 28 U.S.C. § 1254(1).

STATUTES, RULES AND REGULATIONS INVOLVED

42 U.S.C. § 405(g) provides in pertinent part:

Any individual, after any final decision of the Sec-

retary made after a hearing to which he was a party

. may obtain a review of such decision by a civil

action commenced within sixty days ... in the dis-

trict court of the United States for the judicial dis-

trict in which the plaintiff resides.

42 U.S.C. $ 423/a) provides in pertinent part:

(1) Every individual who—(A) is insured for

disability benefits . . . has not attained retirement

age ... shall be entitled to a disability insurance

benefit for each month beginning with the first month

after his waiting period . . . or for each month be-

ginning with the first month during all of which he

is under a disability and in which he becomes so

entitled to such insurance benefits.

42 U.S.C. § 423(d) provides in pertinent part:

... “disability” means (A) inability to engage in

any substantial gainful activity by reason of any

medically determinable physical or mental impair-

ment which can be expected to result in death or

which has lasted or can be expected to last for a

continuous period of not less than 12 months.

42 U.S.C. § 423(d) (2) provides in pertinent part:

An individual . . . shall be determined to be under

a disability only if his physical or mental impair-

3

ment or impairments are of such severity that he is

not only unable to do his previous work but, consid-

ering his age, education, and work experience, en-

gage in any other kind of substantial gainful work

which exists in the national economy.

The pertinent regulations of the Social Security Ad-

ministration are reported in the attached Appendix at

pp. E-2 to E-4 of the Decision of the Administrative

Law Judge.

STATEMENT

The Petitioner, Ennis Grimes, filed an application for

disability insurance benefits under Title II of the Social

Security Act on May 4, 1982, alleging that he had be-

come disabled as of April 23, 1982 due to degenerative

dise disease of the lower back. This claim was disap-

proved by the Respondent. Mr. Grimes exhausted his

administrative remedies in a timely fashion including

a request for a hearing. The administrative hearing was

before an Administrative Law Judge and a request for

review of the hearing decision. This last appeal resulted

in the actions of the Appeals Council of July 15, 1983,

which included the final decision of the Secretary.

From the time the Petitioner completed his high school

education, he has worked in the building industry either

as a carpenter or building inspector. His last job before

he applied for disability was with the Affiliated Building

Services of Atlanta, Georgia, as a senior maintenance-

man at Hartford International Airport. He was medi-

eally retired from that job on April 23, 1982.

On April 26, 1982, he was examined by Dr. J.H.

Spivey, an orthopedist, who found some paraspinus

muscle tightness in the back as well as decreased range

of motion in form of flexion. He gave a diagnosis of

probable chronic lombar strain and advised Mr. Grimes

that a definitive diagnosis and treatment would require

a mileogram, possible CT scan, and some EMG’s. Mr.

4

Grimes told Dr. Spivey he would think about this and

he would return to his treating physician, Dr. Jones.

Mr. Grimes was next seen by Dr. W.B. Wildstein in

connection with a determination of eligibility for long-

term disability benefits under an insurance policy taken

in connection with his work with Affiliated Building

Services of Atlanta, Georgia. Dr. Wildstein advised that

clinically, Mr. Grimes had a lumbosacral ruptured dise

and restricted Mr. Grimes to any prolonged sitting,

standing or lifting above twenty-five (25) pounds. Dr.

Wildstein advised that Mr. Grimes was a candidate for

a long-term disability, which at the time of the hearing

was being paid by the Connecticut General Insurance

Company on a monthly basis.

In the interim, Dr. Spivey, made a referral to a neuro-

surgeon, Dr. Robert Sears of Macon, Georgia. Mr.

Grimes was seen by Dr. Sears on June 1, 1982, at which

time he found some decrease in the range of motion in

his back and a virtual absence of the left knee jerk

reflection, with a fairly clear cut S-1 dermatome on the

left possible straight leg raises on the left at forty (40)

degrees. Dr. Sears also stated that Mr. Grimes had

quite a classical and straight forward lumbosacral rup-

tured disc on the left. In view of the chronicity of the

clear cut clinical picture that a myelogram was

indicated.

Because of significant limitations he was experiencing,

Mr. Grimes applied for rehabilitative services from the

State of Georgia, Department of Vocational Rehabilita-

tion, who sent him to Dr. Richard Tyler, an orthopedic

surgeon. Dr. Tyler’s examination included observation

of severe pain in the back with flexation and mobiliza-

tion of the left hip and positive straight leg raising bi-

_ laterally causing pain in the left hip, which radiated

down the left leg. Pain was present in the lower part

of the back especially on the left, with palpation or per-

5

cussion. X-rays showed decrease in the dise space at

L-5, S-1, and Dr. Tyler recommended, for diagnostic

purposes, a myleogram.

During this time, his physician, Dr. Jones, observed

on more than one occasion marked limitation of motion

and significant muscle spasm in the back. On February

2, 1983, a lumbar spine CT scan was performed which

showed considerable hypertrophic degenerative spurring

with narrowing of the neural foramen bilaterally,

slightly more markel on the left with moderate narrow-

ing on the left at this level and Dr. Sears’ physical ex-

amination revealed limited straight-leg raising as well

as some wasting of the left calf muscle.

Mr. Grimes testified at his hearing that this condition

severely limited his ability to walk, stand, bend or stoop

or even sit down and enjoy his lunch during his break.

The pain and numbness in his back, radiating into his

legs necessitated that he spend about 75% of his time

during the day lying down.

Based upon this medical, clinical and testimonial evi-

dence of record, the Administrative Law Judge deter-

mined that Mr. Grimes retained the ability to perform

a job which would require standing and/or walking two

of eight hours each day with lifting of up to ten pounds;

e.g., sedentary work. While Mr. Grimes was found un-

able to return to his past relevant work, he was deter-

mined that he was not disabled in light of his young

age (46 years old) and high school education based on

the Secretary’s Medical-Vocational Guidelines.

EXISTENCE OF JURISDICTION BELOW

The judgment of the Eleventh Circuit and the Request

for En Bach Hearing to the Eleventh Circuit is attached

as Exhibit A. The jurisdiction of this Court was in-

voked under 28 U.S.C. § 1254(1).

6

ARGUMENT

The decision below should be reversed because the

action of the Administrative Law Judge in deciding Mr.

Grimes’ case violated the Petitioner’s due process rights

in applying medical vocational guidelines as set forth in

20 C.F.R. part 404, subpart P, Appendix 2.

The Petitioner concedes that the Supreme Court in

the case of Heckler v. Campbell, 461 U.S. 458, 103 Sup.

Ct. 1952, 76 L.2d 66 (1983), upheld the use of medical-

vocational guidelines to determine a claimant’s rights to

disability benefits. The Court also rules that the use of

the guidelines does not conflict with the Social Security

Act nor those guidelines arbitrary or capricious.

The Court noted that the Social Security Administra-

tion is required to make two determinations in any case

where the medical-vocational guidelines are used. First,

it must access each claimant’s individual abilities. This

inquiry involves a determination of historic facts. The

regulations require the Social Security Administration to

make those findings on the basis of evidence produced

at the hearing. This affords a claimant ample oppor-

tunity to present evidence related to his abilities and to

offer evidence that the guideiines do not apply to him.

Second, the Social Security Administration must de-

termine the type and number of jobs that exist in the

national economy with a claimant, who meet the criteria

of the guidelines, can perform. This issue is not unique

to each claimant, thus, it is the type of issue that may

be resolved fairly through rule making. Since requiring

the Social Security Administration to relegate the exist-

ence of jobs in the national economy, at each hearing

would hinder the overburdened agency, the use of the

guidelines would not arbitrary and capricious. Heckler

v. Campbell, supra.

The guidelines provide that any finding of fact made

pursuant to the guidelines can be rebutted by a claimant,

see 20 C.F.R., part 404, subpart P, Appendix 2. Peti-

7

tioner contends that he was never given the opportunity

to rebut any factors relied on by the Administrative Law

Judge in using the medical-vocational guidelines. At Pe-

titioner’s Social Security hearing, the only evidence pre-

sented was Petitioner’s testimony and medical records; it

was not known to the Petitioner that these guidelines

would be used until the Administrative Law Judge ren-

dered his decision, thus depriving him of the opportunity

to rebut the presumption or demonstrate that the guide-

lines do not adequately apply in his case.

Given the facts that the Petitioner never knew these

vocational guidelines were being applied to his case, he

was deprived of his right of confrontation, and his right

of rebuttal.

This case is one that should be granted Certiorari in

that the balance which must be struck between a claim-

ant’s due process rights and the use of these vocational

guidelines has not been fully addressed by this Court.

This question was specifically left unanswered in the

Heckler v. Campbell decision.

The Petitioner’s case provides an opportunity to

squarely address this issue, given the facts that no voca-

tional expert, that the guidelines were used in determin-

ing that he was not disabled and that Petitioner was not

made aware of these guidelines and what their effect

would be and never was given the opportunity to rebut

them.

CONCLUSION

For the reasons aforementioned as respectfully sub-

mitted, that this Writ of Certiorari should be granted.

Respectfully submitted,

E. RONALD GARNETT

360 Bay Street, Suite 310

Augusta, Georgia 30901

(404) 724-1144

Attorney for Petitioner

APPENDICES

APPENDICES

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APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 86-8340

ENNIS GRIMES,

Plaintiff-Appellant,

versus

OTIS R. BOWEN,

Secretary of Health and Human Services,

Defendant-Appellee.

Appeal] from the United States District Court for the

Middle District of Georgia

ON PETITION FOR REHEARING AND SUGGESTION

FOR REHEARING EN BANC

(Opinion February 23, 11 Cir., 1987, ——— F.2d ——)

(March 30, 1987)

Before TJOFLAT, HATCHETT and CLARK, Circuit

Judges

PER CURIAM

(“) The Petition for Rehearing is DENIED and no

member of this panel nor other Judge in regular active

service on the Court having requested that the Court

A2

be polled on rehearing en bane (Rule 35, Federal Rules

of Appellate Procedure; Eleventh Circuit Rule 26), the

Suggestion for Rehearing En Bane is DENIED.

( ) The Petition for Rehearing is DENIED and the

Court having been polled at the request of one of the

members of the Court and a majority of the Circuit

Judges who are in regular active service not having voted

in favor of it (Rule 35, Federal Rules of Appellate Pro-

cedure; Eleventh Circuit Rule 26), the Suggestion for

Rehearing En Banc is also DENIED.

( ) A member of the Court in active service having

requested a poll on the reconsideration of this cause en

bane, and a majority of the judges in active service not

having voted in favor of it, rehearing en banc is

DENIED.

ENTERED FOR THE COURT:

/s/ Judge Tjoflat

United States Circuit Judge

Bl

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 86-8340

ENNIS GRIMES,

Plaintiff-Appellant,

versuS

OTIS R. BOWEN,

Secretary of Health and Human Services,

Defendant-Appellee.

Appeal from the United States District Court for the

Middle District of Georgia

(February 23, 1987)

Before TJOFLAT, HATCHETT and CLARK, Circuit

Judges.

PER CURIAM:

Ennis Grimes appeals from the district court’s decision

affirming the Secretary’s denial of disability insurance

benefits. We affirm.

The Administrative Law Judge (AJL), whose deci-

sion the Appeals Council declined to review, found that

Grimes, who met the earnings requirement of the Social

Security Act, was not engaged in substantial gainful

activity, had a severe impairment, was unable to perform

his past relevant work as a carpenter, and retained the

residual functional capacity (RFC) for at least sedentary

B2

work as defined in 20 C.F.R. § 404.1567 (1985). After

considering Grimes’ RFC, his age of forty-six years, edu-

cation, and work experience, the ALJ concluded that

Grimes was not disabled.

Grimes contends that the district court should have set

aside the Secretary’s final decision because that decision

was based on the ALJ’s personal observations of Grimes

rather than the evidence persented at the hearing. The

Secretary contends that his decision was correct because

the ALJ’s finding that Grimes can perform sedentary

work is supported by substantial evidence.

If the ALJ’s decision is supported by substantial evi-

dence, we must affirm it. Flynn v. Heckler, 768 F.2d

1273, 1274 (llth Cir. 1985). Substantial evidence is

relevant evidence that ‘‘a reasonable person would accept

as adequate to support a conclusion.” Bloodsworth v.

Heckler, 703 F.2d 1238, 1239 (11th Cir. 1983) (citations

omitted).

20 C.F.R. § 404.1567(a) (1985) defines sedentary work

as follows:

Sedentary work. Sedentary work involves lifting no

more than 10 pounds at a time and occasionally lift-

ing or carrying articles like docket files, ledgers, and

small tools. Although a sedentary job is defined as

one which involves sitting, a certain amount of walk-

ing and standing is often necessary in carrying out

job duties. Jobs are sedentary if walking and stand-

ing are required occasionally and other sedentary

criteria are met.

The record reveals that Grimes could lift up to 25 pounds;

his heart condition would not prevent him from engaging

in sedentary or light work on a regular sustained basis;

he could sit reasonably well without a great deal of pain;

he could extend his knees in the sitting position without

difficulty and enjoyed a range of motion in the hips, knees,

and ankles; and he could hold up both arms, make a tight

BS

fist with both hands, walk, turn his head, see, hear, read,

write, and count money. One doctor suggested that

Grimes might solve his back pain problems by changing

to a more sedentary type job, and Grimes’ most recent

medical checkup revealed that his back pain had lessened

tremendously and that his condition had improved

greatly. Because a reasonable person would accept the

foregoing evidence as adequate to support a conclusion

that Grimes can perform sedentary work, the Secretary’s

decision is supported by substantial evidence.

Grimes contends that the district court erred in affirm-

ing the Secretary’s ruling because it was not based on a

full and complete record. Specifically, he argues that

additional testimony concerning an old wrist injury was

given at the hearing but does not appear in the transcript.

The Secretary asserts that Grimes’ allegation of the

“missing testimony” was never raised during the admin-

istrative proceedings, nor did Grimes make an effort to

submit “additional evidence” to the district court. The

Secretary adds that Grimes, who has at all times been

represented by counsel, has not shown good cause for

his failure to offer the additional evidence at the admin-

istrative level, so as to justify a remand. This additional

evidence issue was not raised during the administrative

proceedings or in the district court. Thus, we do not

consider it. See Wheeler v. Heckler, 784 F.2d 10738,

1076-77 (11th Cir. 1986) (issues not raised at either the

administrative proceedings or the district court will not

be considered on appeal).

Grimes contends that the ALJ erred in not indicating

explicitly the weight he accorded each item of evidence.

An ALJ must indicate the weight accorded each item of

evidence and the basis for his decision. Cowart v.

Schweiker, 662 F.2d 731, 735 (11th Cir. 1981). After

reviewing the opinion of each of Grimes’ examining

physicians, their supporting clinical findings, laboratory

findings, and Grimes’ subjective complaints of pain, the

B4

ALJ concluded that the clinical findings did not support

Grimes’ allegations of severe disabling pain. He gave

great weight to the clinical findings, laboratory findings,

and the supporting medical opinions. He discounted, how-

ever, the opinion of the treating physician, Dr. J.R. Jones,

that Grimes was totally disabled. In so doing, the ALJ

implicitly explained that Dr. Jones’ opinion was due little

weight because neither Dr. Jones’ clinical findings nor

the record evidence supported Dr. Jones’ conclusion. Con-

trary to Grimes’ contentions, the ALJ examined each

item of evidence and accorded various quantums of

weight to the same. Grimes’ final contention is therefore

meritless.

Inasmuch as the ALJ’s decision is supported by sub-

stantial evidence, and Grimes did not present his “missing

testimony” claim to the district court, the district court’s

decision is

AFFIRMED.

Cl

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

MACON DIVISION

Civil Action No. 83-324-3-MAC

ENNIS GRIMES, S.S. # 255-56-1916,

Plaintiff,

Vs.

OTIS R. BOWEN, Secretary of Health and Human Services,

Defendant.

[Filed March 3, 1986]

MEMORANDUM OPINION

The plaintiff, Ennis Grimes, brings this action pur-

suant to the provisions of Section 205(g) of the Social

Security Act, 42 U.S.C. § 405(g), seeking judicial review

of a final adverse decision by the Secretary of Health and

Human Services. An application for disability insurance

benefits under Section 223 of the Act, 42 U.S.C. § 423, was

filed on May 4, 1982. The application was denied ad-

ministratively and that position was sustained upon re-

consideration by the Social Security Administration. On

October 5, 1982, the plaintiff requested a hearing and on

March 15, 1983, an administrative law judge found that

plaintiff was not entitled to disability insurance benefits.

This position was approved by the Appeals Council, thus

becoming the final decision of the Secretary for purposes

of appeal to the district court. The case is now properly

before this court.

C2

The scope of judicial review in disability cases is nar-

row and limited to determining whether the decision of

the Secretary is supported by substantial evidence. Rich-

ardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.

842 (1971); Walden v. Schweiker, 672 F.2d 835 (11th

Cir. 1982). The court has reviewed the entire record

and, after a careful consideration of the plaintiff’s con-

tentions, is of the opinion that the decision of the Secre-

tary is supported by substantial evidence. Accordingly,

the decision of the Secretary must be and the same hereby

is affirmed.

An appropriate order in conformity with this opinion

will be entered.

DATED this 3rd day of March, 1986.

/s/ [Illegible]

U.S. District Judge

D1

APPENDIX D

DEPARTMENT OF HEALTH & HUMAN SERVICES

Social Security Administration

Refer to: SGC 255-56-1916

Office of Hearings and Appeals

PO Box 2518

Washington DC 20013

July 15, 1983

ACTION OF APPEALS COUNCIL ON

REQUEST FOR REVIEW

Mr. Ennis Grimes

812 Benjamin Street

Fort Valley, GA 31030

Dear Mr. Grimes:

The request for review of the hearing decision in your

case has been considered.

Section 404.970 of Social Security Administration Regu-

lations No. 4 (20 CFR 404.970) provides that the Appeals

Council will grant a request for review of a hearing deci-

sion where: (1) there appears to be an abuse of discre-

tion by the administrative law judge; (2) there is an

error of law; (3) the administrative law judge’s action,

findings, or conclusions are not supported by substantial

evidence, or (4) there is a broad policy or procedural

issue which may affect the general public interest. This

section also provides that where new and material evi-

dence is submitted with the request for review, the entire

record will be evaluated and review will be granted where

the Appeals Council finds that the administrative law

judge’s action, findings, or conclusion is contrary to the

weight of the evidence currently of record.

D2

The Appeals Council has concluded that there is no basis

under the above regulations for granting your request

for review. Accordingly, your request is denied and the

hearing decisions stands as the final decision of the Secre-

tary in your case.

In reaching this conclusion, the Council considered the

contentions made by your attorney in his brief submitted

with the request for review and the additional medical

records whick. included a February 2, 1983 X-ray, lumbo-

sacral X-ray film, office visits of February 12, 1983 and

March 11, 1983, at the Neurological Institute of Central

Georgia and the February 16. 1983 medical statement by

Charies K. Buafo, M.D. However, the Council concluded

that this additional evidence does not provide a basis for

changing the administrative law judge’s decision.

If you desire a court review of the hearing decision, you

may commence a civil action in the district court of the

United States in the judicial district in which you reside

within sixty (60) days from the date of receipt of this

letter. It will be presumed that this letter is received

within five (5) days after the date shown above unless a

reasonable showing is otherwise made. See section 205

(g) of the Social Security Act, as amended (42 U.S.C.

405(g)) and section 422.210 of Social Security Ad-

ministration Regulations No. 22 (20 CFR 422.210).

If a civil action is commenced, your complaint should

name the Secretary of Health and Human Services as

the defendant and should include the Social Security

number(s) shown at the top of this notice.

Sincerely yours,

/s/ Thomas D. Jones

THOMAS D. JONES

Member, Appeals Council

(Acting)

ee:

Rudolph H. Patterson, Esq.

Macon, GA 31297-4199

El

APPENDIX E

DEPARTMENT OF

HEALTH AND HUMAN SERVICES

Social Security Administration

Office of Hearings and Appeals

DECISION

In the case of Claim for

Period of Disability and

Ennis Grimes Disability Insurance Benefits

(Claimant)

255-56-1916

(Wage Earner) (Leave (Social Security Number)

blank if same as above)

This case is before the Administrative Law Judge upon

a timely request for hearing. A hearing was held on

November 23, 1982, in Macon, Georgia. Claimant was

present and participated. He was represented by Rudolph

N. Patterson, his attorney at law.

ISSUES

The general issues before the administrative law judge

are whether the claimant is entitled to a period of dis-

ability and to disability insurance benefits under sections

216(i) and 223, respectively, of the Social Security Act.

The specific issues are whether the claimant was under a

“disability” as defined in the Act and, if so, when such

“disability” commenced and the duration thereof; and

whether the special earnings requirements of the Act are

met for the purpose of entitlement.

LAWS AND REGULATIONS

Section 216(i) of the Social Security Act (42 U.S.C.

416(i)) provides for the establishment of a period of

disability, and section 223 of the Act provides for the

E2

payment of disability insurance benefits where the re-

quirements specified therein are met.

Section 223(d)(1) of the Act defines disability as the

“inability to engage in any substantial gainful activity

by reason of any medically determinable physical or

mental impairment which can be expected to result in

death or which has lasted or can be expected to last for a

continuous period of not less than 12 months... .”

Section 223(d)(2)(A) of the Act provides that an in-

dividual “shall be determined to be under a disability

only if his physical or mental impairment or impairments

are of such severity that he is not only unable to do his

previous work but cannot, considering his age, education,

and work experience, engage in any other kind of sub-

stantial gainful work which exists in the national econ-

| ad

Section 223(d)(3) of the Act defines a “physical or

mental impairment” as “an impairment that results

from anatomical, physiological, or psychological abnor-

malities which are demonstrable by medically acceptable

clinical and laboratory diagnostic techniques.”

Section 404.1520(d) of Social Security Administration

Regulations No. 4 (20 CFR 404.1520(d)) provides, in

effect, that in cases where individuals with a severe im-

pairment or impairments are not actually engaging in

substantial gainful activity, they may be found disabled

if their impairment or impairments meet the duration

requirement and are either listed in Appendix 1 of Sub

part B, Regulations No. 4, or are determined to be medi-

cally or equivalent of a listed impairment.

Regulation 404.1520(2) (20 CFR 404.1520(e)) provides,

as pertinent herein, that where a decision cannot be made

based on current work activity (404.1520(b)) or on

medical facts alone (404.1520(c) and (d)), a review

will be made of the individual’s residual functional ca-

E3

pacity and the physical and mental demands of work

done in the past. If the individual can still do this kind

of work, the individual will be found to be not disabled.

Regulation 404.1545(a) provides, as pertinent herein,

that the individual’s residual functional capacity includes

an assessment of an individual’s impairments which may

affect the ability to function in a work setting. It may

include descriptions and observations of limitations that

go beyond the symptoms that are important in the diag-

nosis and treatment of the individual’s medical condition.

Regulation 404.1545(b) provides, as pertinent herein,

that assessment of physical abilities (e.g., strength) in-

cludes an assessment of the severity of the individual’s

impairments and a determination of residual functional

capacity for work activity on a regular and continuing

basis. The assessment also includes the evaluation of

the individual’s ability to perform physical activities

such as walking, standing, lifting, carrying, pushing,

pulling, reaching, handling, and the evaluation of other

physical functions.

Regulation 404.1545(c) provides, as pertinent herein,

that the assessment of mental impairments includes a con-

sideration of factors such as the individual’s ability to

understand, to carry out and remember instructions, and

to respond appropriately to supervision, co-workers, and

work pressures in a work setting.

Regulation 404.1545(d) provides, as pertinent herein,

that some medicaly determinable impairments, such as

skin impairments, epilepsy and impairments of vision,

hearing or other senses, postural and manipulative limita-

tions, and environmental restrictions do not limit physi-

cal exertion, but will also be considered in addition to

physical limitations in determining the individual’s re-

sidual functional capacity.

Regulation 404.1561 provides, as pertinent herein, that

where residual functional capacity is not sufficient to

E4

enable an individual to do past relevant work, an assess-

ment is made to determine what work if any, the indi-

vidual can do, taking into consideration residual func-

tional capacity, age, education, and work experience.

Regulation 404.1567 provides that for the purpose of de-

termining exertional requirements of work in the na-

tional economy, jobs are classified as “sedentary,” “light,”

“medium,” “heavy,” and “‘very heavy.”

Regulation 404.1568 provides that for the purposes of

assessing the skills reflected by an individual’s work

experience and of determining the existence of work in

the national economy which the individual is competent

to do, occupations are classified as “unskilled,” ‘“semi-

skilled,” and “skilled.”

Regulation 404.1568(d) provides that individuals are

considered to have transferable skills when the skilled or

semi-skilled work functions which they have demon-

strated in their past work can be applied to meet the

requirements of skilled or semi-skilled work functions of

other jobs or kinds of work. This regulation essentially

states that transferability depends largely on the simi-

larity of occupationally significant work functions among

different jobs, but that complete similarity is not neces-

sary to warrant the inference of transferability.

Regulation 404.1569 discussed Appendix 2 of Subpart P,

Regulations No. 4, which sets forth rules reflecting the

major functional and vocational patterns encountered in

cases where individuals are not engaging in substantial

gainful activity and are prevented by a severe medically

determinable impairment from doing vocationally rele-

vant past work. This regulation further provides, in

effect, that when the findings of fact made as to all

factors (age, education, work experience, residual func-

tional capacity, and transferability of skills) coincide

with the criteria of a rule, that rule will be used to

decide whether the individual is disabled.

E5

EVIDENCE AND OTHER MATTERS CONSIDERED

The Administrative Law Judge has carefully considered

the testimony taken at the hearing, the documents de-

scribed in the List of Exhibits attached hereto and spe-

cifically the medical reports of Dr. J.A. Spivey, Dr. W. B.

Wildstein, Dr. James R. Jones, Dr Richard Typer, and

Dr. Charles Buafo.

Consideration has also been given to all claims, asser-

tions, and other proposed findings of claimant, as well as

to the determinations heretofore made by the Social

Security Administration. A new and independent deci-

sion is herein made, based on a thorough evaluation of

all evidence and all applicable Social Security laws.

EVALUATION OF THE EVIDENCE

In order to be found disabled within the meaning of the

Social Security Act, as amended, an individual must have

a physical or mental impairment which can be expected

to result in death or has prevented or can be expected

to prevent the individual from engaging in substantial

gainful activity for a period of at least 12 continuous

months. Allegations of inability to work due to physical

or mental impairments must be substantiated by clinical

or laboratory findings documenting physiological or psy-

chological abnormalities. Statements of the applicant, in-

cluding claimant’s own description of impairments, are

alone insufficient to establish the presence of a physical or

mental impairment.

Section 223(d) (2) (A) of the Social Security Act, as

amended, provides that: “An individual . . . shall be

determined to be under a disability only if his physical

or mental impairment or impairments are of such sever-

ity that he is not only unable to do his previous work

but cannot, considering his age, education, and work

experience, engage in any other kind of substantial gain-

ful work which exists in the national economy regard-

E6

less of whether such work exists in the immediate area

in which he lives or whether a specific job vacancy exists

for him or whether he would be hired if he applied for

work.”

The medical evidence shows that the claimant’s conditions

are not attended by clinical findings that meet or equal

in severity the requirements of Appendix No. 1, Subpart

P, of Regulations No. 4. Moreover, the claimant is not

currently engaging in substantial gainful activity. Claim-

ant met the special earnings requirements of Title II of

the Social Security Act, as amended, on the date he al-

leged he became unable to work and continues to meet

them through the date of this decision. Consequently,

the issue before the Administrative Law Judge is whether

claimant’s impairments prevent him from performing his

usual work and if so, whether those impairments prevent

him from performing other types of substantial gainful

activity.

Claimant alleges disability due to moderately advanced

degenerative disc disease at L5-S1. The medical evidence

reveals that x-rays taken at Peach County Hospital on

January 27, 1982, of claimant’s lumbar spine revealed

considerable narrowing of L5-S1 intervertebral disc space,

with sclerosis of the end plates both at L5 and Sl. There

was some hypertrophy spurring present anterior with

some degenerative changes at the lateral posterior apo-

physeal joints. The other vertebrae and disc spaces were

all well preserved. Claimant was examined by orthopedic

specialist on April 26, 1982, at which time physical ex-

amination revealed minimum tightness in the paraspinous

muscles with forward flexion of 70 degrees, lateral bend-

ing of 25 degrees, and extension of 20 degrees. Claimant

could stand on his toes and heels reasonably well. He had

a negative Trendelenburg and cou!d deep knee bend satis-

factorily. Reflexes at the knees and ankles were equal

and active and extension of the knees in the sitting posi-

tion was carried out without difficulty. Dorsiflexes of the

E7

feet and toes were strong and range of motion in the

hips, knees, and ankles was within normal limits. Straight

leg raising test to 60 degrees on the left caused some dis-

comfort and to 75 degrees on the right. Abduction and

extension of the hips were carried out without difficulty.

Diagnosis was that of probable chronic lumbosacral

strain. (Exhibit 11). Dr. W. B. Wildstein of Georgia

Occupational Medicine examined claimant on May 27,

1982, and at the same time reviewed his previous records.

Dr. Wildstein was of the opinion that claimant clinically

has a lumbosacral ruptured dise and that with this prob-

lem he was unable to do any prolonged sitting, standing,

or lifting above 25 pounds. It was felt that claimant

would be a candidate for long term disability. (Exhibit

13) On June 1, 1982, claimant was evaluated by a neuro-

surgeon whose opinion was that clinically claimant ex-

hibited a classical and straightforward lumbosacral disc

rupture on the left. He suggested that a myelogram be

performed to determine what treatment was required.

(Exhibit 12) On July 15, 1982, claimant was examined

by an orthopedic surgeon in Atlanta, Georgia, whose

x-rays revealed no evidence of any fracture or dislocation.

There was, however, a decrease in the dise space at L5-

S1. Diagnosis of that was chronic low back pain syn-

drome with left sciatica. He was also of the opinion

that claimant should have a myelogram and he was

further of the opinion that claimant had a five percent

whole body permanent physical impairment and loss of

physical functioning of the whole body. (Exhibit 15)

Claim#rt was hospitalized October 18-21, 1982, at which

time he was found to have moderate swelling of the

olecranon process of the left elbow with slight tenderness

and diagnosis was that of arthritis of the lumbar spine;

degenerative dise of LS-S1 by previous history; and

arthritis of the left elbow. The medical evidence does

not reveal that claimant has ever undergone a myelo-

gram or a CAT scan of his back. Although claimant

does experience some pain and discomfort in his low

K8

back, none of the evidence shows that claimant’s musculo-

skeletal condition has resulted in advanced joint space

narrowing or significant loss of motion. The Admin-

istrative Law Judge therefore concludes that claimant’s

condition is not of sufficient severity to produce disability.

Claimant alleges that he is also disabled due to heart

condition. The medical evidence reveals that claimant

was hospitalized October 18-21, 1982, at the Peach

County Hospital at which time EKG reevaled left ven-

tricular hypertrophy, lateral ischemia, and multiple

PVC’s. Because of these chronic findings, the claimant

was transferred to the intensive care unit and EKG on

October 19, 1982, was reported as normal. On October

20, 1982, EKG revealed right ventricular hypertrophy

consistent with pulmonary disease and sinus bradycardia.

Claimant’s cardiac enzymes were as follows: SGOT 14,

LDH 66, and CPK 34. Claimant was transferred to the

Middle Georgia Hospital for cardiac evaluation. Diag-

nosis was cardiac disease of undetermined etiology and

cardiac arrhythmia. (Exhibit 17) Claimant was hospi-

talized October 21-26, 1982, at the Middle Georgia Hos-

pital at which time serial EKG’s were all normal sinus

rhythym with no acute changes. Rhythym strips on one

of the EKG’s showed multifocal PVC’s but there were

no couplets or triplets noted. Chest x-ray was within

normal limits. A stress test was done; however, claim-

ant did not develop any chest pain or any rhythym dis-

turbances; the test was therefore normal maximum stress

test. Discharge diagnosis was that of multifocal prema-

ture ventricular contractions with a history of back

pains. Dr. Charles K. Buafo stated on December 13,

1982, that claimant’s hospitalization at the Middle Geor-

gia Hospital was uncomplicated.

He had non-evasive cardiac evaluations which consisted

of monitoring while in the intensive care unit, stress-

testing to assess any ventricular ectopy, and also an

initial screening for ischemic heart disease, two-dimen-

E9

tional echocardiograms to assess ventricular function. His

stress test report showed he had normal stress test with

no documentation of ventricular ectopy. A two-dimen-

tional echocardiogram was also normal. A 24-hour Holter

Monitor done while in the hospital showed ventricular

ectopy that was PVC’s and also bigeminys. The labora-

tory findings to document any evidence of myocardia in-

farction were also negative and all cholesterol levels were

within normal limits. Claimant’s chest x-ray and blood

work were all within normal limits and he was discharged

on Quinidine 300 mg by mouth four times a day for

treatment of the ventricular ectopy. Dr. Buafo stated

that he had last seen claimant on November 22, 1982, and

he supposed that claimant was getting along very well

as far as his ventricular ectopy was concerned. (Exhibit

20) None of the evidence shows that claimant has suf-

fered from any cardiovascular complications such as

angina pectoris, congestive heart failure, or stroke. The

Administrative Law Judge therefore concludes that claim-

ant’s condition is not of sufficient severity to produce dis-

ability.

Claimant testified at the hearing that he suffers from

pain, and he indicated that such pain is a major cause

of his inability to work. He further testified that he

drove to the hearing. Claimant stated that he can walk

a short distance, can stand 15 minutes, and has problems

bending, stooping, or squatting. Claimant is able to care

for his own personal needs. The record does not show

that claimant takes pain medication of such strength

that he cannot be expected to maintain adequate concen-

tration for substantial gainful activity. The clinical find-

ings do not support claimant’s allegations of severe pain.

While pain, in itself, can be of sufficient severity to pro-

duce disability, the Administrative Law Judge concludes

that claimant’s allegation of pain so severe that he can-

not engage in any substantial gainful activity is not

credible; therefore, claimant’s pain is not of sufficient

severity to produce disability

E10

There is no further evidence to indicate that claimant

is suffering from any other severe impairment.

In reaching a decision as to whether claimant is under a

“disability” as defined by the Social Security Act, as

amended, the Administrative Law Judge is fully aware

of the opinion of Dr. James R. Jones as that opinion

was expressed in a report dated July 16, 1982 (Exhibit

14). In that report Dr. Jones stated that claimant was

totally disabled to work because of chronic lumbosacral

strain and arthritis. Although Dr. Jones is of the opinion

that cliamant cannot perform any type of substantial

gainful activity, the clinical findings of Dr. Jones do not

support a finding of “disability” as defined by the Social

Security Act, and the other evidence of record does not

support such a conclusion either.. In considering the

weight to be given to Dr. Jones’ opinion, the Adminis-

trative Law Judge is guided by the provisions of Regula-

tion 404.1527 of the Social Security Regulations No. 4

which provides that the function of deciding whether or

not an individual is under a disability is the responsi-

bility of the Secretary; and a statement by a physician

that an individual is disabled is a conclusion upon the

ultimate issue to be decided by the Secretary and is not

determinative of the question of whether “disability”

actually exists. The weight to be given to such a state-

ment depends on the extent to which it is supported by

clinical findings and is consistent with other evidence of

record.

The record establishes that claimant was born on April 6,

1936, received a 12th grade education, and has worked

within the last 15 years as a carpenter and building main-

tenance superintendent. He has hand and eye courdina-

tion and can read and write. Based upon a thorough

consideration of all evidence, the Administrative Law

Judge concludes that claimant is not suffering from an

impairment, or a combination of impairments, of suffi-

cient severity to prevent him from engaging in any sub-

Ell

stantial gainful activity for a period of at least 12 con-

tinuous months. He retains the functional capacity to

perform sedentary type work.

FINDINGS

After careful consideration of the entire record, the

administrative law judge makes the following findings:

1. Claimant met the special earnings requirements of the

Act on April 23, 1982, the date that the claimant stated

he became unable to work, and continues to meet them

at least through the date of this decision.

2. Claimant has the following impairments: (1) mod-

erately advance degenerative disc disease at L5-S1 with-

out evidence of significant loss of motion, (2) ventricular

ectopy without evidence of congestive heart failure or

stroke.

3. Claimant’s allegations of pain are credible to preclude

heavy, medium, and light work activity, but are not

credible to preclude sedentary work activity.

4, Claimant has the residual functional capacity to per-

form work-related functions except for work involving

prolonged standing and heavy lifting.

5. Claimant is unable to perform his past relevant work

as a carpenter.

6. Claimant has the residual functional capacity for at

least sedentary work as defined in Regulation 404.1567.

7. Claimant is 46 years old, which is defined as younger

individual.

8. Claimant has a 12th grade education.

9. In view of the claimant’s age and residual functional

capacity, the issue of transferability of work skills is not

material.

E12

10. Regulation 404.1569 and Rule 202.21, Table No. 1,

Appendix 2, Subpart P, Regulation No. 4, direct a con-

clusion that the claimant, considering his residual func-

tional capacity, age, education, and work experience, is

not disabled.

11. Claimant was not under a “disability,” as defined in

the Social Security Act, at any time through the date of

this decision.

’

DECISION

It is the decision of the Administrative Law Judge that,

based on the application filed on June 4, 1982, the claim-

ant is not entitled to a period of disability or disability

insurance benefits under Sections 216(i) and 2238, respec-

tively, of the Social Security Act, as amended.

/s/ Robert L. Smith

ROBERT L. SMITH

Administrative Law Judge

152 New Street

Macon, Georgia 31201

Date: March 15, 1983