Fraga v. Bowen, 86-2594

Citation810 F.2d 1296
Decision Date16 January 1987
Docket NumberNo. 86-2594,86-2594
Parties, Unempl.Ins.Rep. CCH 17,195 Antonio FRAGA, Plaintiff-Appellant, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services, Defendant-Appellee. Summary Calendar.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

John R. Heard, San Antonio, Tex., for plaintiff-appellant.

Helen M. Eversberg, U.S. Atty., John F. Paniszczyn, Asst. U.S. Atty., San Antonio, Tex., Harry S. Gold, Atty., Baltimore, Md., for defendant-appellee.

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

Before CLARK, Chief Judge, and GARWOOD and HILL, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellant Antonio Fraga (Fraga) appeals the district court's summary judgment in favor of defendant-appellee Otis R. Bowen, Secretary of Health and Human Services (Secretary) dismissing Fraga's suit, which sought to set aside the Secretary's denial of his claim for Social Security disability insurance benefits under 42 U.S.C. Sec. 423(a) (1982).

Fraga had applied for the benefits claiming that his back condition and hypertension resulted in complete disability. In his appeal to this Court, Fraga asserts that the Administrative Law Judge (ALJ) made several fact-findings not supported by substantial evidence; that he erroneously relied exclusively on the Medical-Vocational Guidelines in 20 C.F.R. Part 404, Subpart P, App. 2, Secs. 200.00-204.00 in determining the existence of other jobs that Fraga could perform; that he erred in failing to consider some of Fraga's impairments and in failing to consider the combined effect of all of his impairments; and, therefore, that he wrongly determined that Fraga was not disabled within the meaning of the Social Security Act. We find that substantial evidence supports the ALJ's factual findings; that he was entitled to rely on the Medical-Vocational Guidelines; that he properly considered, both singly and in combination, each of Fraga's impairments; and, therefore, that he did not err in determining that Fraga was not disabled. Accordingly, we affirm the judgment of the district court upholding the ALJ's decision.

Facts and Proceedings Below

At the time of the Secretary's decision, Fraga was fifty-three years old. He weighed approximately one hundred eighty-six pounds and was five feet, eight inches tall. He lived with his wife and two daughters. He had attended school for six years in Mexico and could read and write in English. He last worked in March 1983 as a steel fitter/inspector for Engels, Inc. In that job he assembled pieces of steel; cut, burned, and sometimes welded steel; and inspected the work of others. According to Fraga, the job involved frequent lifting or carrying of up to ten pounds, and occasional lifting of up to fifty pounds. Prior to working for Engels, Inc., Fraga had worked since 1957 as a steel fitter for several other companies, except for a three-month period during which he had worked as an insurance collection agent.

Fraga filed an application for disability insurance benefits on December 19, 1983, claiming disability since April 1, 1983, due to a back injury that resulted from a fall at work on March 7th of that year. The Social Security Administration (SSA) denied his claim for benefits initially and upon reconsideration. Fraga subsequently sought a de novo hearing before an ALJ, which he received on June 26, 1984. Fraga appeared in person at the hearing and was represented by counsel.

At his June 1984 hearing before the ALJ, Fraga testified that he injured his back lifting some steel pipe at work on March 7, 1983. He said he had worked on and off after his injury, until he was hospitalized in April 1983 due to continued pain, but that he had not worked since the hospitalization. He stated that he was treated in May 1983 with chemical injections. Fraga testified that following his treatment he felt better for awhile, but that pain eventually developed in his hip. He said he was rehospitalized in April 1984, at which time Dr. Warren F. Neely (Dr. Neely), his treating physician, recommended surgery. Instead, Fraga said, he elected to undergo physical therapy and use a TENS unit. He stated that as of the date of the hearing he felt these measures had not eliminated the pain, that his condition had recently worsened, and that he thought surgery would be necessary in the future. Fraga testified that at the time of the hearing he constantly had pain in the center of his back and in his right hip, but that it waxed and waned in intensity. He said his appetite was good, that he normally slept approximately from 10:30 p.m. to 7:30 a.m., that he drove up to twenty or thirty miles a week, and that he could comfortably walk about one-half block, which he did for exercise. He also said he attended church, but had to leave before the service was over due to discomfort from prolonged standing. He did no yardwork nor household chores, and spent most days alternating between sitting in the back yard, walking, and lying down. Fraga testified further that he needed glasses for poor vision and that he had suffered from hypertension since 1977, for which he took medication. He said he also took pain medication for his back.

The medical records indicated that Fraga was first hospitalized following his March 7, 1983, injury on April 5, 1983, at which time he reported pain in his lower back radiating into his left hip and leg. A CT scan and x-rays revealed no abnormalities, but a report by Dr. Neely noted that Fraga's symptoms were compatible with nerve root irritation on the left side of his spine. Fraga was treated conservatively with medicine and bed rest. He was readmitted on May 15, 1983, with exacerbated symptoms. A lumbar myelogram and CT scan were basically normal, with only a "mild bulge" noted in one intervertebral disk; however, a diskography showed a marked bulge to the left in that disk. After being advised that the available treatment options included surgery and chemical injections, Fraga elected the injections. The hospital discharge report written by Dr. Neely and dated May 20, 1983, noted that Fraga had significantly decreased left hip and leg pain.

Dr. Neely's progress reports showed that he saw Fraga for monthly follow-up visits between June and October 1983. The reports consistently stated that Fraga was doing "very well," that he experienced no hip or leg pain and only mild lower back pain, and that he was to engage in an active walking program. A September 26, 1983, report also noted that a repeat CT scan continued to show a protrusion in the same disk, and that Fraga had fifty percent restriction of motion at the waist upon forward bending.

Dr. Neely released Fraga to "light duty" work on November 7, 1983, which he described as work not involving repetitive stooping or bending, or lifting objects weighing more than thirty-five pounds. Dr. Neely's next report, dated February 6, 1984, contained essentially unchanged findings. It stated that Fraga continued to have mild lower back pain and restricted motion upon forward bending, but that Fraga could do light duty work, and that Dr. Neely again had recommended to Fraga that he seek such employment.

Dr. Neely's reports indicated that in late April 1984, Fraga's condition worsened. Following an April 20, 1984, visit, Dr. Neely reported that Fraga said that over the previous month he had developed pain in his right hip, radiating into his thigh, and that activity aggravated his discomfort. A repeat myelogram, x-rays, and CT scan on April 23, 1983, showed a new disk protrusion in addition to the one previously noted. Fraga was prescribed pain medication and a walking program, but Dr. Neely's next report, dated June 1, 1984, stated that Fraga's condition had not improved. The pain had persisted and examination revealed slight motor and sensory weaknesses in the right leg. In this report, which was the most recent one submitted to the ALJ, Dr. Neely stated that he prescribed a TENS unit and pain medication, and that if Fraga's symptoms persisted, surgery might be necessary.

Fraga also submitted to the ALJ a medical report, dated January 24, 1984, by Dr. Robert B. Kimmel (Dr. Kimmel). Dr. Kimmel noted that unfortunately he did not have any of Dr. Neely's notes or test results, but that based on Fraga's complaints and on his physical examination of Fraga, he felt Fraga suffered from low back pain that radiated into the left leg. He noted that Fraga complained also of numbness in the left thigh, leg, and foot, and that he walked extremely slowly. His examination revealed mild tenderness in the lumbar region of Fraga's back, but none in the hip or leg. His x-rays showed essentially the same findings that Dr. Neely's had. He also reported that Fraga had limited motion on forward bending. He recommended that Fraga not lift objects weighing over twenty-five pounds and that he not engage in prolonged walking, bending, stooping, or standing.

In an August 9, 1984, decision, the ALJ found that Fraga suffered from disk problems in his lower back, hypertension, and low back and right leg pain, but that he did not have an impairment or combination of impairments listed in, or medically equal to one listed in, Appendix 1, Subpart P, Number 4 of the SSA regulations. The ALJ also found that although Fraga was unable to perform his past relevant work as a steel fitter and inspector in the construction industry, the medical evidence failed to demonstrate that Fraga suffered from pain of such severity and duration to prevent him from engaging in all substantial gainful activity. The ALJ determined that based on Fraga's age, education, work experience, and residual functional capacity for light work, the Medical-Vocational Guidelines directed a conclusion of "not disabled," which was not significantly compromised by Fraga's nonexertional limitations, and, therefore, that Fraga was not disabled within the meaning of the Social...

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