Hays v. Sullivan

• Decision Date: 11 July 1990
• Docket Number: No. 89-1593,89-1593
• Citation: 907 F.2d 1453
• Parties: , Unempl.Ins.Rep. CCH 15558A Jackie L. HAYS, Jr., Plaintiff-Appellant, v. Louis W. SULLIVAN, Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1453

907 F.2d 1453

30 Soc.Sec.Rep.Ser. 467, Unempl.Ins.Rep. CCH 15558A

Jackie L. HAYS, Jr., Plaintiff-Appellant, v. Louis W. SULLIVAN, Secretary of Health and Human Services,

Defendant-Appellee.

No. 89-1593.

United States Court of Appeals, Fourth Circuit.

Argued May 11, 1990.

Decided July 11, 1990.

Deborah Kay Garton, Hensley, Muth, Garton and Hayes, Bluefield, W.Va., (William A. Kolibash, U.S. Atty., Betsy C. Steinfeld, Asst. U.S. Atty., Wheeling, W.Va., on brief) for plaintiff-appellant.

Robert S. Drum, Asst. Regional Counsel, (Beverly Dennis, III, Chief Counsel, Region III, Charlotte Hardnett, Chief, Social Security Litigation Div., on brief), Office of the General Counsel, Dept. of Health and Human Services, Philadelphia, Pa., for defendant-appellee.

Before ERVIN, Chief Judge, and RUSSELL and SPROUSE, Circuit Judges.

ERVIN, Chief Judge:

Jackie L. Hays, Jr. ("Hays") appeals from the decision of the district court affirming the determination of the Secretary of Health and Human Services (the "Secretary") that Hays was not eligible for disability insurance benefits because he had the residual functional capacity for a full range of "light work." Because the denial of benefits in this case is supported by substantial evidence, the judgment below is hereby affirmed.

I.

Hays was 33 years old at the time of his administrative hearing, has a general equivalency diploma, and had been employed for approximately three years as an electronic assembly technician, which involved skilled labor and "heavy" to "very heavy" work. ¹

Hays applied for disability insurance benefits on November 21, 1986, alleging that he has been disabled since January 11, 1986, due to a back injury sustained at work. ² The Department of Health and Human Services denied Hays' application for benefits originally and upon reconsideration. Thereafter, an administrative law judge ("ALJ") conducted a formal hearing and determined that Hays was not disabled because he had a residual functional capacity for a full range of "light work." The Appeals Council subsequently denied Hays' request for review of the ALJ's decision, which then became the final decision of the Secretary. Reviewing the ALJ's decision upon referral by the district court, a federal magistrate concluded that the denial of benefits was supported by substantial evidence, and recommended that the Secretary's determination be affirmed. On cross-motions for summary judgment, the lower court adopted the magistrate's proposed findings of fact and recommendation, and entered final judgment in favor of the Secretary.

On appeal, Hays argues that the Secretary's decision is not supported by substantial evidence because the ALJ improperly evaluated Hays' physical impairment and accompanying pain under the regulations. More specifically, Hays contends that his back injury constitutes a musculoskeletal impairment as that medical condition is defined in 20 C.F.R. Chapter III, Part 404, Subpart P, Appendix 1, Sec. 1.05(C) (1989). In addition, Hays insists that his disability claim was improperly evaluated under the medical-vocational guidelines contained in 20 C.F.R. Chapter III, Part 404, Subpart P, Appendix 2 (1989), that the ALJ erred in failing to use vocational expert testimony, and that the Secretary's conclusion that he could perform "light work" is not supported by substantial evidence.

II.

Judicial review of a final decision regarding disability benefits under the Social Security Act, 42 U.S.C. Secs. 301 et seq. (the "Act"), is limited to determining whether the findings of the Secretary are supported by substantial evidence and whether the correct law was applied. See 42 U.S.C. Sec. 405(g) ("The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive...."); Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 1422, 28 L.Ed.2d 842 (1971); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir.1987). The phrase "supported by substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. at 401, 91 S.Ct. at 1427 (citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). Elaborating on the foregoing definition, this court has defined "supported by substantial evidence" as:

evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is "substantial evidence."

Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir.1966), quoted in Shively v. Heckler, 739 F.2d 987, 989 (4th Cir.1984), and Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir.1972). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Secretary if his decision is supported by substantial evidence. See Laws v. Celebrezze, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 529 (4th Cir.1962). Ultimately, it is the duty of the administrative law judge reviewing a case, and not the responsibility of the courts, to make findings of fact and to resolve conflicts in the evidence. King v. Califano, 599 F.2d 597, 599 (4th Cir.1979) ("This Court does not find facts or try the case de novo when reviewing disability determinations."); Seacrist v. Weinberger, 538 F.2d 1054, 1056-57 (4th Cir.1976) ("We note that it is the responsibility of the Secretary and not the courts to reconcile inconsistencies in the medical evidence, and that it is the claimant who bears the risk of nonpersuasion."); Blalock v. Richardson, 483 F.2d at 775 ("[T]he language of Sec. 205(g) precludes a de novo judicial proceeding and requires that the court uphold the Secretary's decision even should the court disagree with such decision as long as it is supported by 'substantial evidence.' ").

III.

The principal question on appeal is whether Hays' back injury satisfies the definition of a musculoskeletal impairment contained in 20 C.F.R. Chapter III, Part 404, Subpart P, Appendix 1 (1989) (the "Listings"). If a claimant's physical impairment satisfies any of the medical conditions set forth in the Listings, the individual is considered to be disabled under the Act. See 20 C.F.R. Sec. 404.1520(d). Section 1.05(C) of the Listings provides as follows:

1.05 Disorders of the spine:

* * * * * *

C. Other vertebrogenic disorders (e.g., herniated nucleus puplosus [sic], spinal stenosis) with the following persisting for at least 3 months despite prescribed therapy and expected to last 12 months. With both 1 and 2:

1. Pain, muscle spasm, and significant limitation of motion in the spine; and 2. Appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss.

In our view, Hays' condition does not satisfy the express requirements of section 1.05(C). First, his doctors have recommended that he submit to surgery to correct his back problems and relieve his pain. He has refused to do so. Hays claims that he doesn't want the surgery because it would have to be performed at a VA hospital and he has had bad experiences at such facilities. The Secretary insists that Hays has refused the surgery because he doesn't want to work, he fears losing his workman's compensation benefits, and he desires to remain eligible for social security disability benefits. In the terminology of section 1.05(C), the Secretary argues that, even if Hays does have a vertebrogenic disorder, it has continued for more than three months and is expected to last twelve months solely because Hays has refused remedial treatment, most particularly surgery. Essentially, the Secretary believes that but for Hays' own recalcitrance he would not be medically disabled. There is considerable merit to the Secretary's contentions.

Second, there is little medical evidence to suggest that Hays suffers from any type of "vertebrogenic disorder." ³ Hays has been diagnosed as having chronic lumbar radiculopathy, ⁴ a bulging of an intervertebral disc, ⁵ and mild sciatica. ⁶ However, none of Hays' attending physicians have found any evidence, either through examination or testing, of a herniated nucleus pulposus, ⁷ spinal stenosis, ⁸ prolonged nerve root compression, or problems with his motor, sensory, and reflex systems. Other than confirming the slight bulging of an intervertebral disc, his computerized axial tomograph scans, lumbosacral magnetic resonance scan, and myelogram were all normal. Hays also had a normal gait, and his straight-leg raising and heel-and-toe walking capabilities were largely unimpaired.

We have examined the administrative record in this case, looking for evidence of a spinal disorder sufficient to satisfy the requirements of section 1.05(C). The evidence indicates only that Hays had a small bulge in one of his discs, that he probably was experiencing some amount of pain, that his pain was not alleviated by noninvasive treatment or physical therapy, and that he refused to undergo corrective back surgery. We agree with the Secretary that this evidence is insufficient to establish a disability under the Listings.

Elaborating upon the specific requirements of Section 1.05(C), Section 1.00(B) of Appendix 1 states:

There must be a detailed description of the orthopedic and neurologic examination findings. The findings should include a description of gait, limitation of movement of the spine given quantitatively in degrees from the vertical position, motor and sensory abnormalities, muscle spasm, and deep tendon reflexes. Observations of the individual during the examination should be reported; e.g., how he or she gets on and off the examining table. Inability to walk on heels or toes, to squat, or to arise from a squatting position,...