Carry v. Heckler

• Decision Date: 17 January 1985
• Docket Number: No. 84-2387,84-2387
• Citation: 750 F.2d 479
• Parties: , Unempl.Ins.Rep. CCH 15,787 Barbarine CARRY, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary, Department of Health and Human Services, Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 479

750 F.2d 479

8 Soc.Sec.Rep.Ser. 144, Unempl.Ins.Rep. CCH 15,787

Barbarine CARRY, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary, Department of Health and Human Services, Defendant-Appellee.

No. 84-2387

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Jan. 17, 1985.

Peter F. Doyle, Jr., Port Arthur, Tex., for plaintiff-appellant.

William J. Cornelius, Jr., Asst. U.S. Atty., Tyler, Tex., Karen J. Behner, OGC/HHS, Dallas, Tex., for defendant-appellee.

Appeal from United States District Court for the Eastern District of Texas.

Before WILLIAMS, JOLLY and HILL, Circuit Judges.

ROBERT MADDEN HILL, Circuit Judge.

The Secretary of Health and Human Services has denied social security benefits to claimant Barbarine Carry. Carry sought judicial review of the denial in district court, but the court entered summary judgment in favor of the Secretary. We affirm the Secretary's decision concerning Carry's residual functional capacity because the Secretary's decision was reached on the basis of a correct application of the law and is supported by substantial evidence. However, we partially reverse and remand because the Secretary failed to make findings on the issue of pain as, itself, disabling.

I. Medical History

At the time of the hearing before the Administrative Law Judge, April 7, 1981, Carry was 40 years old. She is of medium build and average height. She is divorced but cares for three children ranging in age from 7 to 17 years. She has completed her education through the eleventh grade and has no special skills or training to speak of. In the past years she has labored as a maid, a school bus driver, a flower shop attendant and a nurse's aid, the latter for some eight of the last fifteen years.

Carry's health problems began when, on May 14, 1979, she injured her back in attempting to lift a patient of the Golden Triangle Nursing Home in Port Arthur, Texas. In the following months, Carry was examined by several doctors, and she underwent therapy ranging in form from exercise and application of heat to medication.

The doctors universally agreed that Carry's problem was, and is, a "herniated nucleus pulposas, L5-S1," which, in layman's terminology, refers to a ruptured disc in the lower back. A mental health center has also reported that Carry suffers from a "generalized anxiety disorder" with an undetermined prognosis. In connection with her back condition, she underwent surgery which apparently failed to correct it completely. After surgery, Carry continued to complain of pain and limited movement in her back, radiating to her legs. For this reason, she continued to visit doctors and hospitals and to undergo physical examination and clinical testing and to receive medication and various other forms of therapy.

II. Procedural History

The procedural posture of the case is crucial to our decision. In April 1980 Carry applied for both disability insurance benefits and supplemental security income benefits. After benefits were denied administratively, Carry sought de novo consideration of her claims by an Administrative Law Judge (ALJ). After a full hearing at which Carry, represented by a paralegal, testified at length concerning the pain and discomfort she had experienced since her injury, the ALJ denied benefits. He found that Carry was not disabled within the meaning of the Social Security Act, ¹ because her medical condition was not severe enough to limit her ability to perform basic work-related functions. ² The ALJ additionally found that the "evidence alleging pain [was] not documented by sufficient credible evidence to demonstrate a degree of severity considered disabling under the Social Security Act ...." ³ The Appeals Council rendered the ALJ's decision the final order of the Secretary by denying Carry's request for review. ⁴

Under the authority of 42 U.S.C. Sec. 405(g), Carry sought judicial review of the Secretary's denial by filing a complaint in the United States District Court for the Eastern District of Texas. However, when Carry brought to the district court's attention new evidence consisting of two additional doctors' reports, the court remanded the case to the Secretary for reconsideration in light of the new evidence. ⁵ Rather than remanding to the ALJ, the Appeals Council vacated its original denial of review and entered its own findings, incorporating by reference only the ALJ's statements of the issues and of the evidentiary facts that were before him. The Appeals Council thought the new evidence was merely cumulative in relation to the evidence previously of record. However, in entering its findings, the Appeals Council extensively modified the ALJ's initial findings. It found that Carry was, indeed, suffering from a severe impairment, that the impairment prevented her from performing her past relevant work as a nurse's aide, ⁶ but that she retained the residual functional capacity to perform the full range of "light work," and, therefore, in view of her age, education and work experience, she was not disabled. ⁷ The Appeals Council made no finding concerning the evidence of pain nor was any mention made of the issue of pain as disabling in and of itself. Carry again took her claim before the district court which entered summary judgment against her.

III. Procedural Rules

To go forward with her claim, Carry had to shoulder the weighty procedural and evidentiary burdens that abound in this area of the law. First, the claimant bears the burden of proving disability. Oldham v. Schweiker, 660 F.2d 1078, 1083 (5th Cir.1981). ⁸ To establish a prima facie case of disability, the claimant must show she can no longer perform her former work. Callais v. Schweiker, 694 F.2d 427, 428 (5th Cir.1982); see 42 U.S.C. Sec. 423(d)(2)(A). The burden then shifts to the Secretary to show that there is other substantial gainful employment in the national economy that the claimant can perform. Id. The Appeals Council concluded that, although Carry discharged her burden, the Secretary also came forward with enough evidence to carry her responsive burden and merit a finding of "no disability." We are asked to review this finding.

On appeal, Congress adds to Carry's already heavy burden by declaring that the Secretary's fact findings are conclusive if supported by substantial evidence. 42 U.S.C. Sec. 405(g). In addition, conflicts in the evidence, including the medical evidence, are to be resolved, not by a reviewing court, but by the ALJ. Oldham v. Schweiker, 660 F.2d at 1083. The thrust of Carry's argument before us is that the record is replete with evidence of her disability. This we may concede. We may even agree that the evidence preponderates in her favor. Even so, regardless of our evaluation of preponderance, we may not reverse unless we find that there is not substantial evidence to support the ALJ's findings. Patton v. Schweiker, 697 F.2d 590, 592 (5th Cir.1983); Olson v. Schweiker, 663 F.2d 593, 595 (5th Cir.1981). Thus, the first issue presented is whether there is substantial evidence in the record to conclude that Carry's residual functional capacity permits her to perform light work.

IV. Discussion

A. Residual Functional Capacity

Once the Secretary has determined that the jobless claimant has a severe impairment which does not meet or equal a listed impairment in Appendix 1, but prevents the claimant from doing her past relevant work, see 20 C.F.R. Sec. 404.1520(b)-(e), she must determine whether the impairment prevents the claimant from "engag[ing] in any other kind of substantial gainful work which exists in the national economy ...." 42 U.S.C. Sec. 423(d)(2)(A); 20 C.F.R. Sec. 404.1520(f). This determination is, in turn, based on the claimant's residual functional capacity, age, education and past work experience. 20 C.F.R. Sec. 404.1520(f).

The Secretary defines residual functional capacity as "what [the claimant] can still do despite [her physical and mental] limitations." 20 C.F.R. Sec. 404.1545(a). It is a medical assessment to which all of claimant's limitations are relevant, even those that do not constitute symptoms crucial to diagnosis and treatment. Id. The claimant's ability to engage in physical activities such as walking, standing, lifting, carrying, pushing, pulling, reaching and handling are to be considered in evaluating the "exertional" aspect of residual functional capacity. 20 C.F.R. Sec. 404.1545(b). The assessed exertional aspect is then labelled according to the categories set out in 20 C.F.R. Sec. 404.1567. "Light work," the category in which Carry was found to be included, is defined as follows:

Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities ....

20 C.F.R. Sec. 404.1567(b). If there is substantial evidence in the record to support a finding that Carry is capable of such work, we must affirm on the first issue. ⁹

The evidence of Carry's ailment was well-developed. More than a dozen doctors reported on various aspects of her health. Yet there is little conflict in the record as to Carry's residual capacity to do light work. On September 12, 1980, Dr. Paul Richmond, a doctor connected with the Social Security Administration, assessed Carry's residual functional capacity as permitting her to stand and walk for six to eight hours per eight hour day, to sit for the same period, to lift, carry, push or pull 25 pounds of weight frequently and 50 pounds occasionally, ¹⁰ to use her hands and arms for simple grasping and fine manipulation, to use her feet for repetitive movements...