Gagnon v. Secretary of Health and Human Services

Decision Date04 December 1981
Docket NumberNo. 81-1187,81-1187
Citation666 F.2d 662
PartiesRoger GAGNON, Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee.
CourtU.S. Court of Appeals — First Circuit

David B. Green, Providence, R. I., on brief for plaintiff, appellant.

Paul F. Murray, U. S. Atty. and Everett C. Sammartino, Asst. U. S. Atty., Providence, R. I., on brief for defendant, appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Roger Gagnon appeals from a decision of the district court finding substantial evidence to support the Secretary's determination that Gagnon is not disabled from engaging in all substantial gainful activity. Specifically, Gagnon claims that the Secretary misapplied the regulations governing disability, including the Medical-Vocational Guidelines 1 used in determining whether jobs exist in the national economy for claimants of various proven strength abilities. Because we find that the administrative law judge (ALJ) misapplied the Secretary's new Medical-Vocational Guidelines in his decision, we vacate the Secretary's determination and remand to the Secretary for further proceedings and findings.

Roger Gagnon, who was born in 1926, suffered amputation of his right leg, below the knee, after a train accident when he was two years old. Through the use of a prosthesis, Gagnon was able to stand and walk adequately for most of his life. Although he earned a college degree in pharmacy, he never worked in this field. Instead, he spent some 21 years in the construction industry as a member of a team of workers operating a pile driver, equipment used to place the foundations of large buildings. Gagnon testified at the administrative hearing that, while this was "very heavy" and "exceedingly dangerous" work involving the lifting of heavy weights, he was able to sit frequently while the machines were in operation. For this reason and because he "was brought up ... in the construction business," he found this work easier than pharmacy, in which "I was on my leg constantly."

In September 1978 at the age of 52, Gagnon applied for disability benefits. He complained that he was unable to return to his construction job or to do any other work because his amputated leg was infected and because he found it difficult to use his prosthesis. He further claimed that he was prevented from working because of back pain caused by uneven postural development, a side effect of amputation at an early age; by fainting spells caused by a diabetic condition; and by various environmental sensitivities. The very fact that he had only one leg further limited the number of jobs he might be able to do, given his other disabilities. After an initial denial of the application, a hearing was held before an administrative law judge. Gagnon, the only witness, appeared with a paralegal representative and testified regarding his work history, his daily activities, and his current difficulties. Gagnon stated that he was in constant pain, that he wore his prosthesis as little as possible, and that he could not carry any weight while walking. However he also indicated that he could walk up to one-half mile and stand for up to two hours at a time. Besides Gagnon's testimony, the record before the ALJ consisted of written reports from three physicians, Drs. Lury, Pike, and Cinquegrana.

In his opinion, the ALJ followed the sequential analysis required by Social Security regulations, 20 C.F.R. § 404.1503, and concluded that Gagnon was not currently working; that he suffered from a severe impairment; but that his impairment was not among or equal to those listed in Appendix 1 to Subpart P of section 404. 2 Furthermore, the ALJ found that although Gagnon's impairment did prevent him from engaging in his past work, Gagnon retained the "residual functional capacity to engage in employment of a light exertional level." 3 The ALJ made no finding, however, on the effect, if any, of Gagnon's additional complaints including his postural complications, his pain, his environmental restrictions, and his lack of agility due to the fact that he was missing a leg. Such restrictions are referred to in the Secretary's regulations as "nonexertional" factors and may, in a given case, limit the number of jobs for which an individual might qualify. 4 In reaching his ultimate conclusion that Gagnon was not disabled, the ALJ simply applied Rule 202.13 of Appendix 2 to Subpart P, which automatically dictates a finding of "not disabled" for a person with Gagnon's age, education, work experience and adaptability who retains the capacity to do the full range of jobs requiring light work skills.

On appeal, Gagnon raises three objections to the ALJ's analysis. First, he argues that his impairment is among those listed in Appendix 1 to Subpart P, requiring a finding of disability as compelled under 20 C.F.R. § 404.1503(d). He cites in particular Rule 1.10(c)(3), which lists as one such impairment "amputation of one lower extremity along with inability to use a prosthesis effectively without obligatory assistive devices" due to "stump complications persistent." Second, Gagnon argues that Rule 202.13 does not compel an automatic finding of no disability in his case because he cannot perform the full range of light work due to his "nonexertional" limitations (see above). Gagnon's third claim is that the ALJ failed to take adequate account of his claims of pain, particularly pain in his back.

We find no merit in either the first or the third of Gagnon's claims. Rule 1.10(c)(3) would apply only if Gagnon lacked ability to use a prosthesis "effectively." While the ALJ did not address this claim directly, it is clear from his opinion that he found Gagnon able adequately to use a prosthesis. There is substantial evidence to support such a finding. As the ALJ noted, Gagnon wore a prosthesis every day for many years, and just prior to the hearing, Dr. Lury reported that Gagnon could stand for up to four hours a day. Dr. Cinquegrana termed Gagnon's use of his prosthesis "satisfactory" and indicated that a new type of prosthesis might be still better. Moreover, Gagnon himself reported that he could stand for up to two hours and walk half a mile. Reviewing on a substantial evidence standard, as we must under 42 U.S.C. § 405(g), we find no error in the Secretary's evident conclusion that Gagnon could effectively use a prosthesis.

Nor do we find error in the ALJ's evaluation of Gagnon's claims of pain. Although the ALJ did not address these claims separately, they are acknowledged and considered throughout his opinion. Indeed the ALJ's conclusion that Gagnon cannot return to his past work appears to rest largely on Gagnon's report of low back pain, along with the three physicians' findings of varying degrees of back trouble. While pain may be disabling in a particular case, Miranda v. Secretary, 514 F.2d 996 (1st Cir. 1975), the actual degree of a claimant's pain is for the Secretary to evaluate in the light of the supporting medical evidence. We think there is adequate support for the ALJ's implicit finding that Gagnon's pain does not, in and of itself, disable him.

Gagnon's second claim, however, that the ALJ misapplied the Medical-Vocational Guidelines by failing to make an explicit finding respecting Gagnon's "nonexertional" limitations, has merit, and we accordingly remand for proper application of the Secretary's regulations. While the ALJ supportably found that Gagnon retained the strength capacity to do "light work," 5 he took no explicit account of Gagnon's non-strength limitations. Section 200.00(e) of Appendix 2 to Subpart P, 20 C.F.R. § 404, however, requires such consideration before the Guidelines may be fully applied. This regulation states in part that,

(e) Since the rules are predicated on an individual's having an impairment which manifests itself by limitations in meeting the strength requirements of jobs, they may not be fully applicable where the nature of an individual's impairment does not result in such limitations, e.g., certain mental, sensory, or skin...

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