Gossett v. Bowen, 86-2149

• Decision Date: 05 December 1988
• Docket Number: No. 86-2149,86-2149
• Citation: 862 F.2d 802
• Parties: , Unempl.Ins.Rep. CCH 14282A Benjamin S. GOSSETT, Plaintiff-Appellant, v. Otis R. BOWEN, M.D., Secretary, Department of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 802

862 F.2d 802

24 Soc.Sec.Rep.Ser. 48, Unempl.Ins.Rep. CCH 14282A

Benjamin S. GOSSETT, Plaintiff-Appellant, v. Otis R. BOWEN, M.D., Secretary, Department of Health and Human Services, Defendant-Appellee.

No. 86-2149.

United States Court of Appeals Tenth Circuit.

Dec. 5, 1988.

Rehearing and Rehearing En Banc Denied Feb. 13, 1989.

Paul F. McTighe, Jr., Tulsa, Okl., for plaintiff-appellant.

Edwin L. Meese, U.S. Atty. Gen., Dept. of Justice, Washington, D.C., Roger Hilfiger, U.S. Atty., Muskogee, Okl., Gayla Fuller, Chief Counsel, Region VI, Patrick A. Hudson, Principal Regional Counsel, Social Sec. Disability Litigation Branch, and Marguerite Lokey, Asst. Regional Counsel, Office of the General Counsel, U.S. Dept. of Health and Human Services, Dallas, Tex., for defendant-appellee.

Before LOGAN, SETH and BALDOCK, Circuit Judges.

SETH, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Cir.R. 34.1.8. The cause is therefore ordered submitted without oral argument.

Benjamin Gossett ("claimant") appeals from the district court's order affirming the decision of the Secretary of Health and Human Services ("the Secretary") to deny Mr. Gossett's application for Social Security disability benefits. For reversal, Mr. Gossett argues that the Secretary's decision was not supported by substantial evidence on the record as a whole because the Administrative Law Judge (ALJ) improperly relied on the medical-vocational guidelines ("grids") in finding Mr. Gossett was not disabled. In particular, Mr. Gossett claims that the Secretary applied the grids without adequately considering his nonexertional limitations. Because the Secretary's decision is supported by substantial evidence in the record, and for the reasons discussed below, we affirm the judgment of the district court.

Mr. Gossett, a high school graduate now 35 years old, has worked intermittently on railroads as a trackman and as a machine operator. Between stints on the railroads he operated a bulldozer for a sanitation department, constructed hotbox detectors for an electronic firm under contract with a railroad, and drove trucks for a national trucking operation. Under the regulations promulgated pursuant to the Social Security Act, the claimant is a younger individual, with a high school education, at least unskilled, who has previously engaged in work of at least medium type. See 20 C.F.R. Secs. 404.1563-.1568, 416.963-.968. Mr. Gossett has endured a succession of physical misfortunes over the years. He was treated for rattlesnake bite when young, and as a teenager he suffered a laceration of the ulnar nerve of his wrist while swimming. He apparently sustained several injuries while competing in rodeos, including a back injury from a jolt during a bull ride. In 1975, while driving on a country road, he collided with a cow and sustained a contusion of his left shoulder and left knee, partial separation of the acromioclavicular joint, back strain, and an injury to his right knee. He underwent surgery a year after the accident to repair a chronic tear, anterior cruciate ligament, of the right knee.

In May 1983, while removing ballast from between railroad ties with a pickax, the claimant inadvertently struck the end of a tie with great force, thereby twisting and dislocating his wrist. In August 1983 he fell and twisted his right knee, injuring it anew. He received medical attention for his wrist only after he injured his knee. The claimant's physician and surgeon, James W. Long, determined that surgery on both his knee and wrist would be necessary. He first underwent surgery for an arthroscopic subtotal medial meniscectomy of his right knee. Less than a month later, another surgeon, A.B. Hathcock, performed a mid-carpal fusion of Mr. Gossett's right wrist, which required that a graft be taken from the iliac crest of his left pelvis. Three weeks later, after complications in recovery of the left pelvis wound, exploratory surgery disclosed a sponge in the wound, which was removed. In July 1984, Mr. Gossett began seeing Dr. Donald Sutmiller. In March 1985, in response to the claimant's complaints of joint pain, swelling and stiffness, Dr. Sutmiller prescribed medication for what he diagnosed as multiple degenerative joint disease. In a report dated April 13, 1985, Dr. Sutmiller stated that he regarded Mr. Gossett's expressions of pain sincere, though Mr. Gossett's range of motion was satisfactory. The doctor opined that Mr. Gossett suffered from arthritis of multiple joints, "mostly ... due to old trauma," and "probably including his right knee and ankle and elbow, his left hip and hsoulder [sic], both wrists, and his back."

Mr. Gossett initially applied for Social Security disability benefits on February 7, 1985, alleging that he had been disabled since August 15, 1983, due to problems with his right knee, left and right wrists, and his left hip and shoulder. His disability report noted the limited mobility of both his right knee and right wrist, that he could not walk on uneven surfaces, and he could "walk on level surfaces only until knee starts swelling (swelling occurs after about 2 hrs.)." Nevertheless, he added:

"I'm an outdoors person. I drive thru the mountains. I camp out a lot. I fish & hunt. (abt 2 times in last year)."

Mr. Gossett also reported that he did not have much difficulty driving his four-wheel-drive utility vehicle with a standard shift transmission. The Social Security Administration and the Oklahoma Disability Determination Services denied his application initially and upon reconsideration.

The claimant obtained a de novo hearing before an ALJ. Both Mr. Gossett and his wife testified at the hearing as to the range of activities he engaged in at home and the extent of his pain. At one point his attorney questioned him about his limitations in walking.

"Q How long can you walk?

"A A half a mile, you know, flat--if it's good and flat, I can go about a half mile before I have to stop and sit down for a while to rest a while.

....

"Q What--what happens after you've walked for half a mile?

"A Oh, after I walk for half a mile, my leg draws slightly and my ankle gets stiff. That's because of the swelling and like the circulation."

Mr. Gossett also stated that medication he took for pain and swelling affected his ability to drive his car, and that "I don't drive my own car if I can help it." Three days after the hearing, the ALJ issued his decision that the claimant was not disabled within the meaning of the Social Security Act. The Appeals Council denied Mr. Gossett's request for a review of the hearing decision. He then brought suit in the United States District Court for the Eastern District of Oklahoma, seeking to overturn the denial of benefits. The court affirmed the decision of the ALJ and entered judgment on behalf of the Secretary.

The Social Security Act entitles every individual who "is under a disability" to a disability insurance benefit. 42 U.S.C.A. Sec. 423(a)(1)(D) (1983). "Disability" is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment." Id. Sec. 423(d)(1)(A). An individual

"shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work."

Id. Sec. 423(d)(2)(A).

Under the Social Security Act the claimant bears the burden of proving a disability, as defined by the Act, which prevents him from engaging in his prior work activity. Reyes v. Bowen, 845 F.2d 242, 243 (10th Cir.1988); 42 U.S.C.A. Sec. 423(d)(5) (1983). Once the claimant has established such a disability, the burden shifts to the Secretary to show that the claimant retains the ability to do other work activity and that jobs the claimant could perform exist in the national economy. Reyes, 845 F.2d at 243; Williams v. Bowen, 844 F.2d 748, 751 (10th Cir.1988); Harris v. Secretary of Health and Human Services, 821 F.2d 541, 544-45 (10th Cir.1987). The Secretary meets this burden if the decision is supported by substantial evidence. See Campbell v. Bowen, 822 F.2d 1518, 1521 (10th Cir.1987); Brown v. Bowen, 801 F.2d 361, 362 (10th Cir.1986). "Substantial evidence" requires "more than a scintilla, but less than a preponderance," and is satisfied by such relevant "evidence that a reasonable mind might accept to support the conclusion." Campbell v. Bowen, 822 F.2d at 1521; Brown, 801 F.2d at 362. The determination of whether substantial evidence supports the Secretary's decision, however,

"is not merely a quantitative exercise. Evidence is not substantial 'if it is overwhelmed by other evidence--particularly certain types of evidence (e.g., that offered by treating physicians)--or if it really constitutes not evidence but mere conclusion.' "

Fulton v. Heckler, 760 F.2d 1052, 1055 (10th Cir.1985) (quoting Knipe v. Heckler, 755 F.2d 141, 145 (10th Cir.1985)). Thus, if the claimant establishes a disability, the Secretary's denial of disability benefits, based on the claimant's ability to do other work activity for which jobs exist in the national economy, must be supported by substantial evidence.

The Secretary has established a five-step process for evaluating a disability claim. See Bowen v. Yuckert, 482 U.S. 137, 107 S.Ct. 2287, 2290-95, 96 L.Ed.2d 119 (1987). The five steps, as set forth in Reyes v. Bowen, 845 F.2d at 243, proceed as follows:

(1) A person who...