SSR 82-34c: SECTIONS 216(i) and 223(d) (42 U.S.C. 416(i) and 423(d)) DISABILITY INSURANCE BENEFITS -- INABILITY TO PERFORM PREVIOUS WORK -- ADMINISTRATIVE NOTICE OF THE EXISTENCE OF OTHER WORK

20 CFR

404.1503-404.1513 [1]

SSR 82-34c

Boyce v. Harris , 492 F.SUPP. 751 (USDC, South Carolina 1980), New v. Harris , 505 F.SUPP. 721 (USDC, S.D. Ohio, E.D. 1980), and Turner v. Harris , USDC, C.D. California, Civ. No. CV80-1117-LTL(P)

(1/8/81)

CHAPMAN, District Judge:

The plaintiff brought this action pursuant to Section 205(g) of the

Social Security Act, as amended (42 U.S.C. 405(g)), to obtain judicial

review of a final decision of the Secretary of Health, Education, and

Welfare, denying his claim for disability insurance benefits under Title

II of the Social Security Act.

The plaintiff filed an application for a period of disability and for

disability insurance benefits on March 31, 1978, alleging that he became

unable to work on January 7, 1978. The application was denied initially

and on reconsideration by the Social Security Administration. On February

15, 1979, the plaintiff requested a hearing. The administrative law judge,

before whom the plaintiff, his counsel and a witness appeared, considered

the case de novo, and on May 29, 1979, found that the plaintiff was

not under a disability as defined in the Social Security Act, as amended.

The administrative law judge's finding became the final decision of the

Secretary of Health, Education and Welfare, when it was approved by the

Appeals Council on August 23, 1979.

The only issue before the Court is whether the final decision of the

Secretary is supported by substantial evidence. Substantial evidence is

defined as that evidence which a reasonable mind would accept to support a

particular conclusion. It is more than a mere scintilla but may be

somewhat less than a preponderance. Laws v. Celebrezze, 368 F.2d

640 (4th Cir. 1966); Thomas v. Celebrezze, 331 F.2d 541 (4th Cir.

1964).

is whether the final decision of the

Secretary is supported by substantial evidence. Substantial evidence is

defined as that evidence which a reasonable mind would accept to support a

particular conclusion. It is more than a mere scintilla but may be

somewhat less than a preponderance. Laws v. Celebrezze, 368 F.2d

640 (4th Cir. 1966); Thomas v. Celebrezze, 331 F.2d 541 (4th Cir.

1964).

"Disability" is defined by the Social Security Act as the "inability to

engage in any substantial gainful activity by reason of any medically

determinable physical or mental impairment . . . 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)(1)(A).

The Court in Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir.

1972), stated:

Effective February 26, 1979, the Secretary has promulgated new

regulations, 20 C.F.R. §§ 404.1502 to 1513 and Subpart P, App. 2 (1979),

to consolidate and elaborate upon long standing medical-vocational

evaluation policies for adjudicating disability claims in which an

individual's age, education, and work experience must be considered in

addition to the medical experience. 43 Fed.Reg. 55,349 (1978). The new

regulations define each factor to be considered in determining whether

disability exists. 20 C.F.R. §§ 404.1505 to 1511. More importantly, they

direct a finding of disability or no disability where the findings of fact

in a particular case coincide with the criteria established in the rules

and tables of Subpart P, Appendix 2. 20 C.F.R. § 404.1513.

It is the duty of this Court to give careful scrutiny to the whole record

to assure that there is a sound foundation for the Secretary's findings,

and that his conclusion is rational. Thomas v. Celebrezze, 331 F.2d

541, 543 (4th Cir. 1964).

findings of fact

in a particular case coincide with the criteria established in the rules

and tables of Subpart P, Appendix 2. 20 C.F.R. § 404.1513.

It is the duty of this Court to give careful scrutiny to the whole record

to assure that there is a sound foundation for the Secretary's findings,

and that his conclusion is rational. Thomas v. Celebrezze, 331 F.2d

541, 543 (4th Cir. 1964).

This Court is empowered to enter, upon the pleadings and transcript of

the record, a judgment affirming, modifying, or reversing the decision of

the Secretary, with or without remanding the cause for a rehearing.

This gentleman was born on March 23, 1943, and was 36 years old at the

time of his hearing. He is married with two children, ages 15 and 18, has

a ninth-grade education and has worked in textiles primarily as a loom

fixer. The plaintiff testified that he had to quit work because of severe

pain and that he has trouble walking. He was receiving benefits from

workmen's compensation for an injury he received in 1971 when he slipped

on a patch of oil. He has not worked since 1978.

The Secretary has adopted the findings of the administrative law judge,

who concluded:

* * * *

On June 6, 1974, the plaintiff underwent surgery for a herniated nucleus

pulposus. [1] A partial

hemilaminectomy [2] was performed

at L-4. The plaintiff continued to complain of pain following the surgery

and a lumbar myelogram performed by Dr. Max Ken (an orthopedic surgeon) on

November 25, 1977, revealed that he was suffering from a herniated disc.

On January 14, 1978, Dr. Kent performed a lumbar laminectomy and a

bilateral lateral transverse process spinal fusion at L-4 to S-1.

Herniated discs at L-4, L-5 and L-5, S-1 were removed.

ff continued to complain of pain following the surgery

and a lumbar myelogram performed by Dr. Max Ken (an orthopedic surgeon) on

November 25, 1977, revealed that he was suffering from a herniated disc.

On January 14, 1978, Dr. Kent performed a lumbar laminectomy and a

bilateral lateral transverse process spinal fusion at L-4 to S-1.

Herniated discs at L-4, L-5 and L-5, S-1 were removed.

The plaintiff's postoperative course was satisfactory. On January 31,

1978, Dr. Kent reported that the plaintiff was having no further pain in

his legs but was experiencing minimal back pain. On March 31, 1978, Dr.

Kent reported that the plaintiff was still having some discomfort in his

back but that his legs were markedly improved.

On June 15, 1978, Dr. William B. Jones, an orthopedic surgeon, examined

the plaintiff and found that he was not totally disabled and he would be

better off performing a variety of gainful employment tasks rather than

sitting home. It was Dr. Jones' opinion that the plain tiff was disabled

from working as a loom fixer, but could perform standup jobs such as a

service station attendant or bench work standing up and lifting weights of

25 to 30 pounds.

The determination that the plaintiff was unable to return to his

customary work shifted to the Secretary the burden of establishing that

the plaintiff had sufficient capacity to engage in a specific job which

exists in the national economy. Taylor v. Weinberger, 512 F.2d 664

(4th Cir. 1975).

In Taylor v. Weinberger, supra, the Fourth Circuit Court of

Appeals expressly rejected the contention that the Secretary may establish

vocational ability solely by administrate notice or medical evidence.

* * * *

There is indication in the testimony that the plaintiff's back was

healing slowly, but the same doctor indicated that the pain resulting from

this condition was minimal and that neither the pain nor the back

condition prevented plaintiff from engaging in substantial gainful

activity.

e Secretary may establish

vocational ability solely by administrate notice or medical evidence.

* * * *

There is indication in the testimony that the plaintiff's back was

healing slowly, but the same doctor indicated that the pain resulting from

this condition was minimal and that neither the pain nor the back

condition prevented plaintiff from engaging in substantial gainful

activity.

The underlying rationale of Taylor v. Weinberger seems to have

been made obsolete by the new Vocational Factors Regulations 20 C.F.R. §§

404.1503-404.1513. It is the obvious purpose of these regulations to allow

the Secretary to make findings of disability or lack of disability based

on certain specific criteria including age, educational level, degrees of

work experience and residual functional capacities. One purpose of these

regulations is to allow the Secretary to decide cases more promptly and

without the necessity of hearing from a vocational expert in every case in

which the claimant cannot return to former employment because of physical

limitations.

In adopting these regulations the Secretary has taken notice that there

are at least 200 separate unskilled sedentary occupations, some 1600

unskilled light and sedentary occupations and some 2500 unskilled medium,

light sedentary occupations in the national economy. The words

"sedentary", "light" and "medium" are specifically defined in 20 C.F.R. §

404.1510. The physical exertion required for these jobs, whether or not

the employee must walk, stand or remain seated and other facts relating to

the employment have been taken into consideration in arriving at the new

regulations. The record reflects that the Secretary has complied with the

regulations and made the necessary findings to support his decision that

the plaintiff was able to perform various unskilled, entry-level jobs

hese jobs, whether or not

the employee must walk, stand or remain seated and other facts relating to

the employment have been taken into consideration in arriving at the new

regulations. The record reflects that the Secretary has complied with the

regulations and made the necessary findings to support his decision that

the plaintiff was able to perform various unskilled, entry-level jobs.

This decision is supported by substantial evidence and, therefore, the

decision of the Secretary must be affirmed and the Clerk of Court shall

enter judgment in favor of the defendant.

AND IT IS SO ORDERED.

DUNCAN, District Judge.

Plaintiff Leonard New brings this action under 42 U.S.C. § 405(g) and §

1383(c)(3) for review of a final decision of the Secretary of Health,

Education and Welfare (now Secretary of Health and Human Services) denying

his applications for social security disability insurance and supplemental

security income benefits. This matter is before the Court on the

cross-motions of the parties for summary judgment.

Plaintiff filed his application for disability insurance benefits on

February 23, 1978 alleging that he became disabled in 1971, at age 35, by

black lung trouble, ulcers, and a nervous condition. Plaintiff filed his

application for supplemental security income benefits on March 2, 1978.

Both applications were denied initially and upon reconsideration by the

Bureau of Disability Insurance of the Social Security Administration.

Plaintiff requested a hearing before an administrative law judge.

On June 14, 1979 plaintiff, who was not represented by counsel, appeared

and testified at the hearing. On July 23, 1979 the administrative law

judge issued a decision finding that Mr. New is not disabled within the

meaning of the Act. On January 15, 1980 the Appeals Council denied

plaintiff's request for review and adopted the administrative law judge's

decision as the final decision of the Secretary of Health, Education and

Welfare.

ed by counsel, appeared

and testified at the hearing. On July 23, 1979 the administrative law

judge issued a decision finding that Mr. New is not disabled within the

meaning of the Act. On January 15, 1980 the Appeals Council denied

plaintiff's request for review and adopted the administrative law judge's

decision as the final decision of the Secretary of Health, Education and

Welfare.

The facts of record are fully and fairly set out in the administrative

law judge's July 23, 1979 decision which is incorporated herein by

reference.

Plaintiff Leonard New was born June 23, 1936. He has a seventh grade

education. He has worked as a construction laborer, bulldozer operator,

mechanic, service state attendant, and loader operator.

Plaintiff testified that his most serious problem is with his lungs. He

said that Dr. Jindra told him that he had only 45 percent air capacity in

his left lung and that he was permanently and totally disabled for the

rest of his life because the condition would not improve and there was

nothing he could do for it. Plaintiff said that he has a strangling

sensation in his lungs and a cough.

Mr. New also testified that he has constant pain and hurt in his back and

legs. He said that he gets muscle spasms. He takes Talwin as needed for

the pain because, he testified, "I don't like to fool with drugs." He

takes maybe one or two Talwin tablets then goes two or three days without

any paid medication, "and then I'll start hurting real bad again, and then

I'll take another one." He said that the Talwin "eases things off . . . it

still hurts, but it don't hurt as bad."

hat he gets muscle spasms. He takes Talwin as needed for

the pain because, he testified, "I don't like to fool with drugs." He

takes maybe one or two Talwin tablets then goes two or three days without

any paid medication, "and then I'll start hurting real bad again, and then

I'll take another one." He said that the Talwin "eases things off . . . it

still hurts, but it don't hurt as bad."

Plaintiff testified that he had suffered from an ulcer condition in the

past. He no longer takes prescribed medication for his ulcers. He does

sometimes take Tums. Plaintiff has some loss of hearing in his right ear

and fluid in the ear. But he no longer takes the prescribed drops for the

ear because when they get on his neck they burn. Plaintiff testified that

he is bothered by nerves. He takes one or two Valium, 5 mg. a day. They

clam him down and relax him (which helps with the pain).

Plaintiff testified that during a typical day he gets up at dawn and

dresses. He watches T.V., then goes outside and sits around. He drives to

the store once a day and visits a neighbor. He said that he doesn't help

his wife much around the house, except to pour gasoline out of the truck

for the lawnmower and to sometimes screw a loose know back on a cabinet or

perform a similar chore.

Plaintiff estimated that he could sit only about 30 minutes then his legs

would get numb and his back would hurt so much that he would have to get

up. He thought he could stand for only about 10 minutes because his lets

start hurting, and they shake. He believed that he could walk about 200

feet, then he would be completely out of breath and his legs would be

tired. When going up and down stairs his knees buckle. Plaintiff estimated

he could lift 25 to 30 pounds.

ld get numb and his back would hurt so much that he would have to get

up. He thought he could stand for only about 10 minutes because his lets

start hurting, and they shake. He believed that he could walk about 200

feet, then he would be completely out of breath and his legs would be

tired. When going up and down stairs his knees buckle. Plaintiff estimated

he could lift 25 to 30 pounds.

On September 15, 1978 Dr. Louis J. Jindra reported that he had first

examined Mr. New on May 10, 1978. Plaintiff suffers from dyspnea. Dr.

Jindra diagnosed chronic bronchitis, emphysema, and exogenous obesity. On

March 28, 1978 Dr. R.C. Estrada examined plaintiff at the request of the

Secretary. He reported that he smoked one to two packs of cigarettes a

day. He was 70« inches tall and weighed 228 pounds. He had an increased AP

diameter of his chest. On examination, Dr. Estrada heard occasional

rhonchi, but no rales. An x-ray was interpreted to show no active

pulmonary infiltrate. There was evidence of chronic lung disease and

fibrotic changes and fibronodular old granulomatous lesions of both lung

fields. Pulmonary function studies reported plaintiff's height as 70«

inches, his FEV1 as 2.13 liters, and his MVV as 103 liters. Dr. Estrada

stated that these values indicated the presence of a combined restrictive

and obstructive pulmonary disease.

During an April 6, 1979 hospitalization, plaintiff reported a history of

35 years of smoking two packs of cigarettes a day. He was also treated for

tuberculosis in 1973. The hospital report states that plaintiff becomes

short of breath on exertion after walking 100 yards. On physical

examination he had a mildly increased AP chest diameter. Diffuse sibulant

and sonerous rhonchi were heard on ausculation together with a prolonged

expiratory time on the fourth expiration.

f smoking two packs of cigarettes a day. He was also treated for

tuberculosis in 1973. The hospital report states that plaintiff becomes

short of breath on exertion after walking 100 yards. On physical

examination he had a mildly increased AP chest diameter. Diffuse sibulant

and sonerous rhonchi were heard on ausculation together with a prolonged

expiratory time on the fourth expiration.

Although plaintiff complains of back and leg pain, the medical evidence

of record indicates that he suffers from lumbosacral strain. Dr. Estrada

reported that a neurological examination was negative. There wa no

evidence of muscle spasm. Straight leg raising was negative. Plaintiff had

a reasonably good range of motion in his lumbar spine. He was able to walk

on his heels and toes. Plaintiff's treating orthopedic physician, Dr.

Richard M. Ward, had plaintiff hospitalized on April 6, 1979 at the

Riverside Methodist Hospital for evaluation of his low back. An

examination failed to disclose any objective evidence of a serious back

disorder. The height and alignment of his lumbar vertebral bodies was

normal. The posterior elements were normal. On examination, there was only

very mild tenderness to palpation over the lumbosacral spine area at L-3

to L-5. There was no tenderness of the paraspinal muscles. Dr. Ward ruled

out a herniated nucleus pulposus.

[1] This Court's review of the decision of the Secretary is limited to a

determination of whether her findings are supported by substantial

evidence. 42 U.S.C. § 405(g). Richardson v. Perales, 402 U.S. 389,

401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); LeMaster v.

Weinberger, 533 F.2d 377, 339 (6th Cir. 1976). It is not the Court's

function to resolve conflicts in the evidence or to determine issues of

credibility. This is solely the province of the Secretary. Wokojance v.

Weinberger, 513 F.2d 210 (6th Cir. 1975)

antial

evidence. 42 U.S.C. § 405(g). Richardson v. Perales, 402 U.S. 389,

401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); LeMaster v.

Weinberger, 533 F.2d 377, 339 (6th Cir. 1976). It is not the Court's

function to resolve conflicts in the evidence or to determine issues of

credibility. This is solely the province of the Secretary. Wokojance v.

Weinberger, 513 F.2d 210 (6th Cir. 1975). Pain alone may be disabling,

but the Secretary is not required to fully credit a claimant's subjective

complaints of pain and discomfort if there is not "an underlying medical

basis" for them. McCann v. Califano, 621 F.2d 829, 832 (6th Cir.

1980); Hephner v. Mathews, 574 F.2d 359, 361-362 (6th Cir.

1978).

Plaintiff moves for summary judgment and remand on the grounds that (1)

the administrative law judge erred in his evaluation of plaintiff's

nervousness; (2) the administrative law judge erred in his finding that

plaintiff's lack of regular usage of pain medication demonstrated that his

pain was not disabling; and (3) the Secretary failed to meet his burden of

demonstrating that plaintiff can perform substantial gainful work in his

lessened capacity.

The administrative law judge's decision notes that Dr. Jindra diagnosed

only chronic bronchitis, emphysema, and exogenous obesity and did not

mention plaintiff's nervousness. The questionnaire sent to Dr. Jindra did

not specifically ask him for information concerning plaintiff's

psychiatric condition. The administrative law judge also noted that Dr.

Ward, plaintiff's treating orthopedic surgeon, stated that Mr. New had a

good ability to relate to others and to take care of his personal needs,

and that there had been no change in his interests, habits, or impairment

to his recent or remote memory.

not specifically ask him for information concerning plaintiff's

psychiatric condition. The administrative law judge also noted that Dr.

Ward, plaintiff's treating orthopedic surgeon, stated that Mr. New had a

good ability to relate to others and to take care of his personal needs,

and that there had been no change in his interests, habits, or impairment

to his recent or remote memory.

Plaintiff contends that the administrative law judge should have asked

Dr. Jindra to specifically comment on Mr. New's nervousness because he

testified at the hearing before the administrative law judge that he had

discussed his nervous condition with Dr. Jindra.

Dr. Jindra did indicate his diagnosis of plaintiff in his report to the

Secretary. Plaintiff has the burden of presenting evidence of disability.

Although plaintiff was not represented by counsel before the

administrative law judge, he was represented by counsel on the appeal to

the Appeals Council. If Dr. Jindra had inadvertently failed to include

information concerning plaintiff's nervous condition, then counsel could

have brought that information to the attention of the Appeals Council.

[2] Moreover, there was considerable other evidence in the record that

plaintiff's nervous condition does not amount to a severely limiting

impairment. Daily he is able to go to the store and visit with a neighbor.

There do not appear to be any severe restrictions in his daily activities

which are the result of a mental or emotional condition. Under these

circumstances, the administrative law judge did not err in his assessment

of Mr. New's nervous condition.

[3] The administrative law judge discounted plaintiff's subjective

complaints of severe, disabling pain:

Plaintiff asserts that his daily activities are limited, and that he does

not use drugs because of his fear of over-medication.

ult of a mental or emotional condition. Under these

circumstances, the administrative law judge did not err in his assessment

of Mr. New's nervous condition.

[3] The administrative law judge discounted plaintiff's subjective

complaints of severe, disabling pain:

Plaintiff asserts that his daily activities are limited, and that he does

not use drugs because of his fear of over-medication.

Talwin is a non-narcotic, non-prescription analgesic. Plaintiff testified

that it gave him relief, but that he nonetheless did not take Talwin daily

despite his testimony that he was in constant, severe pain. Under these

circumstances, the administrative law judge's comment on his sporadic pain

medication was not error.

Plaintiff did testify, overall, that his daily activities were limited.

Nonetheless, he did admit to quite a bit of daily activity. He drives to

the store once a day, and he drives to visit a neighbor once a day.

Although he watches some television, he normally goes outside and occupies

himself there for some portion of each day. The administrative law judge

had the right to consider plaintiff's account of his daily activities in

reaching his determination on the issue of credibility.

Finally, plaintiff contends that there was not substantial evidence in

the record for the administrative law judge's assertion that plaintiff has

the physical capacity to perform light work and that his reliance on the

Medical-Vocational Guidelines to demonstrate that there are jobs plaintiff

can perform was erroneous.

[4] Plaintiff is unable to perform his previous jobs; therefore, the

Secretary had the burden of demonstrating that he could perform

substantial gainful work in his lessened capacity. Allen v.

Califano, 613 F.2d 139, 145 (6th Cir. 1980); Hephner v.

Mathews, 574 F.2d 359, 362 (6th Cir. 1978).

al-Vocational Guidelines to demonstrate that there are jobs plaintiff

can perform was erroneous.

[4] Plaintiff is unable to perform his previous jobs; therefore, the

Secretary had the burden of demonstrating that he could perform

substantial gainful work in his lessened capacity. Allen v.

Califano, 613 F.2d 139, 145 (6th Cir. 1980); Hephner v.

Mathews, 574 F.2d 359, 362 (6th Cir. 1978).

Plaintiff clearly is suffering from chronic obstructive pulmonary disease

and some low back pain resulting from lumbosacral strain. In addition, he

has some hearing loss and fluid in his right ear which does not preclude

substantial gainful activity. He was previously treated for ulcers, but

the ulcers are presently not an impairing condition. He also suffers from

some nervousness which is relieved, to some significant degree, by Valium,

5 mg. The administrative law judge had the difficult job of determining

whether these combined impairments preclude plaintiff from engaging in all

substantial gainful activity.

Plaintiff himself testified that his most serious disability was his

pulmonary disease. Although the condition certainly does limit his ability

to perform substantial gainful activity, there are no medical reports of

record indicating that the condition is totally disabling. To be disabled

by a chronic obstructive airway disease on the basis of pulmonary function

studies values alone, a person of plaintiff's height would have to have an

FEV1 equal to or less than 1.4 liters and an MVV equal to or less than 45

liters. Plaintiff's actual pulmonary function studies values are greatly

in excess of these. Section 3.02, Subpart P. Appendix 1 -- Listing of

Impairments.

disabled

by a chronic obstructive airway disease on the basis of pulmonary function

studies values alone, a person of plaintiff's height would have to have an

FEV1 equal to or less than 1.4 liters and an MVV equal to or less than 45

liters. Plaintiff's actual pulmonary function studies values are greatly

in excess of these. Section 3.02, Subpart P. Appendix 1 -- Listing of

Impairments.

[5] Similarly, although plaintiff testified that he has severely

disabling low back pain, complete tests rule out any disc defect, and the

only substantiated diagnosis is chronic lumbosacral strain without any

evidence of significant muscle spasm. Under these circumstances, the Court

concludes that there is substantial evidence in the record for the

administrative law judge's determination that physically plaintiff retains

the residual functional capacity for light work as that term is defined in

20 C.F.R. § 404.1510(c).

Plaintiff contends that the Medical-Vocational Guidelines set out in

Subpart P, Appendix 2 are not applicable to his case because he also

suffers from the non-exertional nervous condition. The Guidelines provide

that "they may not be fully applicable where the nature of an individual's

impairment does not result in" physical limitations in the claimant's

ability to meet strength requirements of jobs. Section 200.00(e), Subpart

P, Appendix 2 -- Medical-Vocational Guidelines. When there are combined

exertional and non-exertional impairments which result in both strength

limitations and non-exertional limitations, the Medical-Vocational

Guidelines are applied first to determine whether plaintiff may be

disabled by strength limitations alone

ability to meet strength requirements of jobs. Section 200.00(e), Subpart

P, Appendix 2 -- Medical-Vocational Guidelines. When there are combined

exertional and non-exertional impairments which result in both strength

limitations and non-exertional limitations, the Medical-Vocational

Guidelines are applied first to determine whether plaintiff may be

disabled by strength limitations alone. If he is not disabled by strength

limitations alone, then the Guidelines "provide a framework for

consideration of how much the individual's work capability is further

diminished in terms of any types of jobs which would be contraindicated by

non-exertional limitations." Section 200.00(e)(2), Subpart P, Appendix 2

-- Medical-Vocational Guidelines.

[6] In the present case, plaintiff's physical limitations do not preclude

light work. The question, then, is whether his nervousness results in

non-exertional work related limitations. There is no evidence of any of

the types of non-exertional limitations on employment as set in § 12.04,

Subpart P, Appendix 1 -- Listing of Impairments. Further, there is no

evidence that plaintiff would be unable to follow work instructions, would

be unable to get along with his supervisors and co-employees, or would be

unable to concentrate on and pay attention to work processes. Under these

circumstances, the Court concludes that the administrative law judge did

not err in applying the Medical-Vocational Guidelines to determine that

plaintiff, considering his age, education and prior work experience, is

able to engage in substantial gainful activity generally available in the

national economy.

ld be

unable to concentrate on and pay attention to work processes. Under these

circumstances, the Court concludes that the administrative law judge did

not err in applying the Medical-Vocational Guidelines to determine that

plaintiff, considering his age, education and prior work experience, is

able to engage in substantial gainful activity generally available in the

national economy.

[7] Plaintiff contends that because the Medical-Vocational Guidelines do

not refer to specific jobs, the Secretary has not discharged his duty of

demonstrating that plaintiff can perform substantial gainful work. He

relies upon a statement in Hephner v. Mathews, 574 F.2d 359,

362-363 (6th Cir. 1978) that a "finding of capacity to work" cannot be

"expressed . . . in terms of a vague catch-all phrase such as 'light'

work." Instead, it must be "in terms of specific types of jobs." First,

the administrative law judge's determination that plaintiff retains the

residual functional capacity to perform light work is not standardless.

The term "light work" is defined by 20 C.F.R. § 404.1510(c). Second, the

Medical-Vocational Guidelines have been adopted by the Secretary since the

decision in Hephner to reduce the need for vocational testimony and

to attempt to eliminate variance in individual cases where the claimants

have essentially the same physical and non-exertional limitations. The

Medical-Vocational Guidelines are based on administrative notice the

Secretary has taken of jobs generally available in the national economy

en adopted by the Secretary since the

decision in Hephner to reduce the need for vocational testimony and

to attempt to eliminate variance in individual cases where the claimants

have essentially the same physical and non-exertional limitations. The

Medical-Vocational Guidelines are based on administrative notice the

Secretary has taken of jobs generally available in the national economy.

The Secretary evaluated information contained in the Dictionary of

Occupational Titles, published by the Department of Labor, County

Business Patterns, published by the Bureau of Census, Census

Reports, Occupational Analyses, prepared by the Social Security

Administration, the Occupational Outlook Handbook, published by the

Bureau of Labor Statistics, and other generally available information

relating to the age, educational, work experience, and exertional demands

of various jobs. See, 20 C.F.R. 1566(d) (August 20, 1980). Since "these

tables and rules are based on a wealth of information available about jobs

existing in the national economy" vocational expert testimony is

unnecessary in most cases. Jones v. Harris, ¶ 17,074 CCH

Unemployment Ins. Rptr. (E.D. Tenn. March 18, 1980). The Court has

carefully reviewed the record and concludes that there are no unusual

facts in the present case which would have required the administrative law

judge to seek the assistance of a vocational expert.

WHEREUPON, the Court HOLDS that plaintiff's motion for summary judgment

and remand is without merit; and, therefore, it is DENIED. The Court

FURTHER HOLDS that defendant's motion for summary judgment is meritorious;

and, therefore, it is GRANTED.

The decision of the Secretary of Health, Education and Welfare is

AFFIRMED. This action is hereby DISMISSED.

LYDICK, District Judge:

PROCEEDINGS

On March 21, 1980, plaintiff filed a complaint to review the decision of

the Secretary of Health, Education and Welfare denying his claim for

disability insurance benefits.

* * * * *

APPLICABLE LAW

meritorious;

and, therefore, it is GRANTED.

The decision of the Secretary of Health, Education and Welfare is

AFFIRMED. This action is hereby DISMISSED.

LYDICK, District Judge:

PROCEEDINGS

On March 21, 1980, plaintiff filed a complaint to review the decision of

the Secretary of Health, Education and Welfare denying his claim for

disability insurance benefits.

* * * * *

APPLICABLE LAW

It is clear that the burden of proof is on the plaintiff to establish

entitlement to benefits under the Act. Harmon v. Finch, 460 F.2d

1229, 1231 (9th Cir. 1972), cert. denied, 409 U.S. 1063 (1972), reh. denied, 410 U.S. 918 (1973); Waters v. Gardner, 452

F.2d 855, 857 (9th Cir. 1971); Rhinehart v. Finch, 438 F.2d 920,

921 (9th Cir. 1971); Mark v. Celebrezze, 348 F.2d 289, 293 (9th

Cir. 1965); McMullen v. Celebrezze, 335 F.2d 811, 814 (9th Cir.

1964), cert. denied, 382 U.S. 854 (1965), reh. denied, 382

U.S. 922 (1965).

The statutory definition of "disability" is "much narrower than the word

itself, standing alone, might indicate," since it requires that the

claimant "be unable to 'engage in any substantial gainful activity by

reason of any medically determinable physical or mental impairment which

could be expected to result in death or which has lasted or could be

expected to last for a continuous period of not less than 12 months.'" Harmon v. Finch, supra, at 1230, quoting 42 U.S.C. § 423(d)(1)(A).

The statutory definition has been incorporated in the Social Security

regulations. 20 C.F.R. § 404.1501(a)(i).

reason of any medically determinable physical or mental impairment which

could be expected to result in death or which has lasted or could be

expected to last for a continuous period of not less than 12 months.'" Harmon v. Finch, supra, at 1230, quoting 42 U.S.C. § 423(d)(1)(A).

The statutory definition has been incorporated in the Social Security

regulations. 20 C.F.R. § 404.1501(a)(i).

The definition was further restricted by the Congress, effective January

2, 1968, by enacting the following provisions set out in 42 U.S.C. §

423(d)(2)(A): "(A) an individual . . . 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 substantial gainful work which exists in the national

economy, regardless 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." Harmon v. Finch,

supra, at 1230-1231; Chavies v. Finch, 443 F.2d 356, 357 (9th

Cir. 1971). These restrictive definitions were enacted in part to correct

court decisions that the Congress considered to be too liberal. Harmon

v. Finch, supra, at 1231.

The Social Security Act requires that the plaintiff's disability be

demonstrated by medically acceptable clinical and laboratory diagnostic

techniques. 42 U.S.C. § 423(d)(3). The Act further provides that a

claimant shall not be considered to be under a disability unless the

claimant furnishes such medical and other evidence of the existence

thereof as the Secretary may require. 42 U.S.C. § 423(d)(5).

The implementing regulations of the Social Security Administration, 20

C.F.R. § 404.1524(c), provides in pertinent part as follows:

SCOPE OF REVIEW

§ 423(d)(3). The Act further provides that a

claimant shall not be considered to be under a disability unless the

claimant furnishes such medical and other evidence of the existence

thereof as the Secretary may require. 42 U.S.C. § 423(d)(5).

The implementing regulations of the Social Security Administration, 20

C.F.R. § 404.1524(c), provides in pertinent part as follows:

SCOPE OF REVIEW

Under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), the

jurisdiction of the court is limited to the question of whether or not the

findings of the Secretary of Health, Education and Welfare are supported

by substantial evidence. If they are, the Secretary's findings are

conclusive. Harris v. Richardson, 468 F.2d 1260 (9th Cir. 1972), cert. denied, 410 U.S. 986 (1973); Harmon v. Finch, 460 F.2d

1229, 1230 (9th Cir. 1972), cert. denied, 409 U.S. 1063 (1972), reh. denied, 410 U.S. 918 (1973); and Chavies v. Finch, 443

F.2d 356, 357 (9th Cir. 1971).

Therefore, the ultimate question to be determined by the Court is whether

the final decision of the Secretary is supported by substantial evidence

reasonably based on the record as a whole. Walker v. Mathews, 546

F.2d 814, 818 (9th Cir. 1976); Beane v. Richardson, 457 F.2d 758,

759 (9th Cir. 1972, cert. denied, 409 U.S. 859 (1972); Rhinehart

v. Finch, 438 F.2d 920, 921-922 (9th Cir. 1971).

PLAINTIFF'S CLAIMS

On January 25, 1979, plaintiff filed an application for disability

insurance benefits alleging that he became unable to work on August 1,

1978, at age 41, because of lower back pain.

s, 546

F.2d 814, 818 (9th Cir. 1976); Beane v. Richardson, 457 F.2d 758,

759 (9th Cir. 1972, cert. denied, 409 U.S. 859 (1972); Rhinehart

v. Finch, 438 F.2d 920, 921-922 (9th Cir. 1971).

PLAINTIFF'S CLAIMS

On January 25, 1979, plaintiff filed an application for disability

insurance benefits alleging that he became unable to work on August 1,

1978, at age 41, because of lower back pain.

In his motion for summary judgement, plaintiff alleges that by utilizing

the new regulations, 20 C.F.R. §§ 404.1503-404.1513; Subpart P, Appendix

2, the Secretary has failed to comply with the ruling in Hall v.

Secretary of Health, Education and Welfare, 602 F.2d 1372 (9th Cir.

1979), requiring that the Secretary identify specific jobs which a

claimant is capable of performing, and thus has failed to satisfy the

Secretary's burden of showing alternate employability through vocational

capacity. [Memo in Spt of Mot S/J 9.] Other cases are also cited in

support of this argument. [ Id. at 9-18.]

SECRETARY'S DECISION

On October 2, 1979, the administrative law judge held a hearing in which

the plaintiff appeared in person and testified and was represented by the

same attorney who represents him in the present action.

After careful consideration of the entire record, the administrative law

judge made the following pertinent findings:

DISCUSSION

* * * * *

It was the finding of the administrative law judge that the plaintiff was

able to perform sedentary work. It will be noted from the proposed

Findings of Fact that the doctors who gave an opinion on plaintiff's work

capability indicated that he was either capable of light or sedentary

work. Accordingly, the administrative law judge's decision is not in

conflict with, but was rather supported by, the medical evidence of

record.

law judge that the plaintiff was

able to perform sedentary work. It will be noted from the proposed

Findings of Fact that the doctors who gave an opinion on plaintiff's work

capability indicated that he was either capable of light or sedentary

work. Accordingly, the administrative law judge's decision is not in

conflict with, but was rather supported by, the medical evidence of

record.

The plaintiff does not dispute the fact that the administrative law judge

made his determination by following the procedure set out in the new

regulations. Plaintiff contends that the fundamental issue in this case is

whether, once the claimant can no longer return to his former employment,

the Secretary can satisfy the burden of showing alternate employability

only through reference to the newly enacted Social Security regulations,

20 C.F.R. §§ 404.1502-404.1513 (1980), which became effective February 26,

1979. [43 F.R. 55379, November 28, 1978.] Plaintiff argues that reliance

on the regulations alone is insufficient and cites Hall v. Secretary of

Health, Education and Welfare, 602 F.2d 1372 (9th Cir. 1979), to

support the argument that the Secretary must identify specific jobs which

the claimant is capable of performing, preferably through the testimony of

a vocational expert, and that reliance solely on the regulations is merely

a theoretical determination of whether a particular claimant is capable of

performing substantial gainful activity. [Opp. 1-2; Pltf's Supp. Memo.

1-5.]

Hall did not involve a ruling on the new regulations. The issue

then is whether Hall should be applied to a case involving the

application of the new regulations or whether the new regulations provide

sufficient vocational guidance to permit the administrative law judge to

dispense with the use of a vocational expert in plaintiff's case.

ful activity. [Opp. 1-2; Pltf's Supp. Memo.

1-5.]

Hall did not involve a ruling on the new regulations. The issue

then is whether Hall should be applied to a case involving the

application of the new regulations or whether the new regulations provide

sufficient vocational guidance to permit the administrative law judge to

dispense with the use of a vocational expert in plaintiff's case.

The use of the new regulations was approved by the court in Hicks v.

Califano, 600 F.2d 1048 (4th Cir. 1979), in a case where the appeal

before the court was pending at the time the regulations became effective

on February 26, 1979. Said the court:

Since the court found an error in the administrative law judge's use of

the vocational expert's testimony at the initial hearing, the

administrative law judge was ordered to present to the vocational expert

not just the fact of the claimant's back impairment due to arthritis but

to present to the vocational expert the medical evidence with respect to

all of the claimant's disabilities. Id. at 1051. The court,

however, did not indicate that a vocational expert's opinion was necessary

in addition to the administrative law judge's determination under the new

regulations.

Plaintiff cites O'Banner v. Secretary of Health, Education and

Welfare, 587 F.2d 321, 323 (6th Cir. 1978), and Wilson v.

Califano, 617 F.2d 1050 (4th Cir. 1980), to show that other circuit

follow a rule similar to that of the Ninth Circuit in Hall. [Supp.

Memo. 2.] Although this is true, these two cases, like Hall, did

not involve a ruling on the new regulations.

the new

regulations.

Plaintiff cites O'Banner v. Secretary of Health, Education and

Welfare, 587 F.2d 321, 323 (6th Cir. 1978), and Wilson v.

Califano, 617 F.2d 1050 (4th Cir. 1980), to show that other circuit

follow a rule similar to that of the Ninth Circuit in Hall. [Supp.

Memo. 2.] Although this is true, these two cases, like Hall, did

not involve a ruling on the new regulations.

In Phillips v. Harris, 488 F.Supp. 1161 (W.D. Va. 1980), also

cited by plaintiff, the court held that the promulgation of the new

regulations clearly constituted a valid exercise of the Secretary's

statutory responsibility under 42 U.S.C. § 405(a), and that the new

regulations were "not patently defective." Id. at 1165. However, the court

found that the way in which the new regulations were applied in that case

precluded a finding of substantial evidence to support the Secretary's

decision. Id.

Thus, in case of both plaintiffs Mullins and Phillips, the administrative

law judge had found that they suffered from some sort of emotional

impairment, which impairments under § 404.1504(d) of the new regulations

result in "non-exertional limitations." Id . at 1166.

Id. at 1166. The court also found that the administrative law

judge had not given sufficient consideration to the emotional impairment

of the claimants. Id.

Phillips further held that "the Secretary has failed to discharge

the burden of going forward with evidence of capacity for a specific

alternate job in the national economy and proof of transferable skills." Id. at 1167. The court acknowledged that 20 C.F.R

also found that the administrative law

judge had not given sufficient consideration to the emotional impairment

of the claimants. Id.

Phillips further held that "the Secretary has failed to discharge

the burden of going forward with evidence of capacity for a specific

alternate job in the national economy and proof of transferable skills." Id. at 1167. The court acknowledged that 20 C.F.R. § 404.1509(c)

provides that in determining whether jobs, as classified by their

exertional and skill requirements, existed in significant numbers,

administrative notice could be taken of reliable job information available

from various governmental and other publications such as the "Dictionary

of Occupational Titles." Nevertheless, the court held that this

determination was not within the administrative law judge's discretion

based solely on his own expertise. Id . at 1167.

In that case, claimant Phillips was over 50 years of age and functionally

illiterate. Claimant Mullins was 53 years old and her work experience was

limited to that of a cook. The court drew attention to Rule 201.00(g) of

Appendix 2 to Subpart P, which acknowledges that "individuals approaching

advanced age (age 50-54) may be significantly limited in vocational

adaptability if they are restricted to sedentary work." Id. at

1168. It was the opinion of the court that

However, the court also concluded that while it found it necessary to

remand the cases for further development,

ttention to Rule 201.00(g) of

Appendix 2 to Subpart P, which acknowledges that "individuals approaching

advanced age (age 50-54) may be significantly limited in vocational

adaptability if they are restricted to sedentary work." Id. at

1168. It was the opinion of the court that

However, the court also concluded that while it found it necessary to

remand the cases for further development,

Certain facts distinguishing Phillips from the present case should

be pointed out. Plaintiff, in the present case, does not suffer from any

emotional or mental impairment. He alleged that he became unable to work

at age 41, thus being classified as a younger individual, being well under

age 50. 20 C.F.R. § 404.15(6)(b) [sic]. Therefore, his age is not

considered to affect significantly his ability to adapt to a new work

situation. Id. Moreover, he is not illiterate. As will be

elaborated on below, the administrative law judge's decision was not based

on pure speculation.

Defendant has attached to defendant's supplemental memorandum a copy of

the opinion in Stallings v. Harris, No. 79-1051 (W.D. Tenn.

7/10/80). This case views the administrative law judge's discretion under

the new regulations in a different light. The following excerpt from the

opinion is worthy of consideration:

The administrative law judge found the plaintiff to be capable of

sedentary work, which is defined as work entailing lifting 10 pounds

maximum and involving sitting, although a certain amount of walking and

standing may be necessary to carry out job duties. 20 C.F.R. §

404.1510(b). Sedentary work involves the lowest level of exertional

requirements.

The preamble to the new regulations includes the following comment:

The present law of this circuit has been stated in Hall v. Secretary

of Health, Education and Welfare, 602 F.2d 1372, 1377 (9th Cir. 1979),

as follows:

n amount of walking and

standing may be necessary to carry out job duties. 20 C.F.R. §

404.1510(b). Sedentary work involves the lowest level of exertional

requirements.

The preamble to the new regulations includes the following comment:

The present law of this circuit has been stated in Hall v. Secretary

of Health, Education and Welfare, 602 F.2d 1372, 1377 (9th Cir. 1979),

as follows:

Plaintiff's case is distinguishable from Hall in that he was

represented at the administrative hearing by the same attorney who

represents him in the present case and the facts appear to have been

adequately developed. His impairment was low back pain, due possibly to a

herniated disc. His impairments therefore affected only the exertional

requirements of his work activity. 20 C.F.R. § 404.1510. He had a tenth

grade education and prior experience as an automobile detail man and

janitor.

There does not appear to be any substantial question concerning the

transferability of plaintiff's skills. The administrative law judge found

his past work experience was of an unskilled nature. Unskilled work is

defined as "work which requires little or no judgment in the performance

of simple duties that can be learned on the job in a short period of

time." 20 C.F.R. § 404.1511(b). As indicated above, there are over 200

separate unskilled sedentary occupations identified in the Supplement to

the Dictionary of Occupational Titles. There has been no showing

whatsoever that plaintiff does not have the capacity to adapt to a

sedentary type job, the duties of which can be learned on the job in a

short period of time. These were the vocational factors which were

expressly considered by the administrative law judge in his opinion.

dentary occupations identified in the Supplement to

the Dictionary of Occupational Titles. There has been no showing

whatsoever that plaintiff does not have the capacity to adapt to a

sedentary type job, the duties of which can be learned on the job in a

short period of time. These were the vocational factors which were

expressly considered by the administrative law judge in his opinion.

Therefore, on the record in plaintiff's case, there does not appear to be

any substantial reason to doubt that the plaintiff was capable of

performing numerous sedentary jobs listed in the Supplement to the

Dictionary of Occupational Titles, a publication which is utilized by

vocational experts in their testimony. Although a vocational expert, if

called to testify, would identify specific jobs from the Supplement to the

Dictionary of Occupational Titles, this does not appear to be necessary in

plaintiff's case. Plaintiff's case is not a close one, as was true in Phillips v. Harris, supra , cited by plaintiff. The administrative

law judge was not relying solely on his own expertise, his findings were

not pure speculation and there was no reasonable question as to

transferability of skills. His decision was not theoretical but had a

basis in fact. Moreover, the court in Phillips v. Harris acknowledged that where the potential for alternate work was "within the

common knowledge and experience of ordinary men," substantiation by a

vocational expert was not necessary. 488 F.Supp. at 1167, citing McLamore v. Weinberger , 538 F.2d 571, 575 (4th Cir. 1976). This was

likewise the ruling in Holguin v. Harris , 480 F.Supp. 1171, 1181

(N.D. Cal. 1979), where the court stated:

Accordingly, it appears that under the present law of this circuit, the

substantial evidence rule does not require that the decision of the

administrative law judge be further supported by the testimony of a

vocational expert.

* * * * *

538 F.2d 571, 575 (4th Cir. 1976). This was

likewise the ruling in Holguin v. Harris , 480 F.Supp. 1171, 1181

(N.D. Cal. 1979), where the court stated:

Accordingly, it appears that under the present law of this circuit, the

substantial evidence rule does not require that the decision of the

administrative law judge be further supported by the testimony of a

vocational expert.

* * * * *

IT IS ORDERED that judgment be entered in favor of defendant and against

the plaintiff, dismissing the complaint and action on the merits and

affirming the decision of the Secretary of Health, Education and

Welfare.

[1] The regulations used to make

disability determinations under titles II and XVI of the Social Security

Act were recodified effective August 20, 1980. See 45 FR 55566-55634

(1980) (recodified in 20 CFR 404.1501-404.1598 and 20 CFR

416.901-416.996). The regulations cited in this ruling have been

renumbered and rewritten as part of the recodification, but not

substantively changed. See § 404.1560-§ 404.1569 and Rule 202.10, Appendix

2, Subpart P of Regulations No. 4.

[1] Nucleus pulposus is defined

as "a semifluid mass of fine white and elastic fibers that forms the

central portion of an intervertebral disk". Dorland's Illustrated

Medical Dictionary, 25th Ed., 1974, p. 1064.

[2] Removal of the vertebral

laminae on one side only. Dorland's Illustrated Medical Dictionary, 25th Ed., 1974, p. 693.