Fox v. Heckler, 84-1657

• Decision Date: 05 November 1985
• Docket Number: No. 84-1657,84-1657
• Citation: 776 F.2d 738
• Parties: , Unempl.Ins.Rep. CCH 16,419 James FOX, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health & Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 738

776 F.2d 738

11 Soc.Sec.Rep.Ser. 216, Unempl.Ins.Rep. CCH 16,419

James FOX, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health & Human Services,

Defendant-Appellee.

No. 84-1657.

United States Court of Appeals, Seventh Circuit.

Argued April 24, 1985.

Decided Nov. 5, 1985.

Gregory A. Kahre, Bonahoom, Chapman, McNellis & Michaels, Ft. Wayne, Ind., for plaintiff-appellant.

Joan Leese Lowes, Asst. Regional Atty., Dept. of Health and Human Services, R. Lawrence Steele, U.S. Atty., Ft. Wayne, Ind., for defendant-appellee.

Before COFFEY and FLAUM, Circuit Judges, and GIBSON, Senior Circuit Judge. ^*

COFFEY, Circuit Judge.

James Fox appeals the final determination of the Secretary of Health and Human Services ("Secretary") that he is not disabled. We affirm.

I.

Mr. Fox, a 43 year old man with an eighth grade education applied for disability benefits and Supplemental Security Income ("SSI") on August 25, 1981 alleging that the complications from injuries he received in automobile accidents in 1967 and 1971 met or were the equivalent of a severe impairment listed in 20 C.F.R. 404.1598 (1983) and rendered him disabled as that term is used in the regulations. In the alternative, Fox argued that his impairments were so significant and severe as to prevent him from engaging in substantial gainful activity. Fox submitted medical evidence in an attempt to establish the following impairments:

"(1) Herniated Disk, Low Back Derangement with radiculitis; also described as Lumbar myofasciitis; Lumbar Disk Disease;

(2) Severe degenerative arthritis of the left knee with some degenerative changes of right knee; Traumatic arthritis, both legs and feet, Ankylosis of Left Knee;

(3) Contracture of left little finger;

(4) Mental dullness resulting from residuals of head injuries; post-traumatic encepolopathy;

(5) Pain."

In addition, Fox informed the Secretary that for the past one and a half years he had been employed in a sheltered workshop at the Anthony Wayne Rehabilitation Center assembling telephones.

After Fox's application was denied, he requested a hearing before an administrative law judge who, after holding a hearing and reviewing the evidence, found that Fox's impairments did not prevent him from performing light work and that a significant number of jobs at this exertional level existed in the national economy. Both the Appeals Council of the Department of Health and Human Services and Magistrate Gene Lee, of the United States District Court for the Northern District of Indiana affirmed the administrative law judge's determination that Fox was not disabled. On appeal, Fox argues: (1) the administrative law judge, "disregarded and failed to consider and find whether the combination of the Plaintiff's impairments is medically equal to any listed impairment thereby depriving the Plaintiff of a full and fair hearing on his claim for disability benefits;" and (2) the administrative law judge's decision that Fox is not disabled is not supported with substantial evidence. ¹

II.

To be considered disabled under the Social Security Act, a claimant must be unable to perform any substantial gainful work due to a medical condition that has existed or can be expected to last for a continuous period of at least 12 months. 42 U.S.C. 423(d)(1)(A). The impairment must be so severe as to prevent the claimant from working not only in the claimant's usual occupation, but in any other substantial gainful work existing in the national economy. 42 U.S.C. 423(d)(2)(A).

"Social Security regulations prescribe a sequential inquiry to be followed in determining whether a claimant is disabled. The following steps are addressed in order: (1) Is the claimant presently unemployed? (2) Is the claimant's impairment 'severe?' (3) Does the impairment meet or exceed one of the list of specific impairments? (4) Is the claimant unable to perform his or her former occupation? (5) Is the claimant unable to perform any other work within the economy? An affirmative answer leads either to the next step or, on steps 3 and 5, to a finding that the claimant is disabled. A negative answer at any point, other than step 3, stops inquiry and leads to a determination that the claimant is not disabled."

Zalewski v. Heckler, 760 F.2d 160, 162 n. 2 (7th Cir.1985).

A. The Combination Of Impairments

Fox argues that the Social Security Administration failed to "affirmatively consider and determine on the record the combined disability effects of [his] impairments" and concludes that this alleged failure deprived him of "a full and fair hearing." A disability claimant may be determined to be disabled if he suffers from, "a combination of impairments (none of which [individually] meet or equal a listed impairment), each manifested by a set of symptoms, signs, and laboratory findings which, combined, are determined to be medically equivalent in medical severity to that listed set to which the combined sets can be most closely related." Social Security Ruling 83-19 (emphasis in original). "Any decision that an individual's impairment(s) is medically the equivalent of a listed impairment must be based on findings demonstrated by medically acceptable clinical and laboratory diagnostic techniques. Decisions of equivalence are the responsibility of a physician designated by the Secretary." Id. The ruling further provides:

"At the initial and reconsideration levels, the signature of the State agency staff physician on the SSA-831-U5/SSA-833-U5 serves as the basis for the determination [of medical equivalency] and assures that consideration by a physician designated by the Secretary has been given to the question of medical equivalence. At the hearing level, the administrative law judge is responsible for deciding the ultimate legal question of whether the listing is met or equaled. As trier of the facts, the administrative law judge is not bound by the medical judgment of a 'designated' physician regarding medical equivalency. However, the judgment of a 'designated' physician on this issue on the same evidence before the administrative law judge must be received into the record as expert opinion evidence and given appropriate weight."

Id. An examination of the record reveals a "Form SSA-831-U5" signed by one James P. Elkins, M.D. specifically stating: "The severity of the individual's impairment(s) does not meet or equal that of any impairment described in the Listing of Impairments." Moreover, the administrative law judge's opinion addressed Fox's claim:

"[Doctor Reszel] (Fox's treating physician) said that in his medical opinion, the combination of the claimant's impairments would make it extremely difficult for him to be employable. He says mental dullness would make it difficult for him to do any work involving judgment, limitation of dexterity in his hand would make it difficult for him to do work requiring using light tools even in a sitting position, and difficulty with his back and legs would make it difficult for him to do work involving standing or bending or physical strength. He said the claimant's back and knee disorder would make it difficult for him to stand for six hours repeatedly and also to sit for eight hours without significant periods of rest. He concluded that it was his medical opinion that the claimant would not be able to perform in a satisfactory way to be employable in regard to this restriction."

The administrative law judge rejected Dr. Reszel's opinion because his

"conclusions have no support from more specific medical findings. Dr. Reszel admits that his impression that the claimant is mentally dull is only from observation. However, the medical record does indicate that the claimant was given a psychological evaluation and found to have been of normal intelligence. Since Dr. Reszel is not a specialist in psychiatry and did not base his opinion that the claimant was mentally dull on any objective test, his opinion in that regard is given no more weight than the opinion a layman would be given. The claimant did not display any lack of mental ability while he was testifying at the hearing. Although Dr. Reszel seems to think that the claimant's manual dexterity is limited, he bases this opinion on the fact that the claimant has no function of the little finger of his left (non-dominant) hand. It is difficult to see how such an impairment would have any significant effect on the claimant's ability to use his hands. The claimant has, in fact, demonstrated his capacity to work on the small parts involved in working on telephones at his present place of employment and apparently puts out good quality work, although at a less than competitive pace. The reports from Anthony Wayne Rehabilitation Center did not indicate that the claimant's slowness was, in fact, directly due to his physical impairments, but was in fact effected [sic] by his impairments only and directly, through a lack of motivation. Dr. Reszel had indicated that he believes the claimant meets the requirements of Section 1.05 C of the Listing of Impairments and Appendix 1 through Subpart P of Social Security Regulations No. 4. However, although the claimant does have the spinal disorder with some evidence of significant motor loss or sensory loss to meet the criteria of that impairment. [sic]. Dr. Reszel also indicated that the claimant's knee disorder met the requirements of Section 1.03 D of the Listing of Impairments, but that Section refers to ankylosis of the hip outside the position of function. There is no evidence that the claimant has such an impairment of his hip. Furthermore, the claimant has the ability to ambulate and bear weight on his knees, although he walks somewhat awkwardly due to the limited range of motion of his left knee. But Dr. Reszel's conclusions that the claimant is unable to do any kind of work seem very inconsistent with his previous statements which seemed only to indicate that the claimant was not able to do any prolonged...