Hargis v. Sullivan, 90-6188

• Citation: 945 F.2d 1482
• Decision Date: 04 October 1991
• Docket Number: No. 90-6188,90-6188
• Parties: , Unempl.Ins.Rep. (CCH) P 16291A, 2 NDLR P 111 Donald G. HARGIS, Plaintiff-Appellant, v. Louis W. SULLIVAN, Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1482

945 F.2d 1482

35 Soc.Sec.Rep.Ser. 201, Unempl.Ins.Rep. (CCH) P 16291A,

2 NDLR P 111

Donald G. HARGIS, Plaintiff-Appellant, v. Louis W. SULLIVAN, Secretary of Health and Human Services,

Defendant-Appellee.

No. 90-6188.

United States Court of Appeals, Tenth Circuit.

Oct. 4, 1991.

Eric G. Melders, Oklahoma City, Okl., for plaintiff-appellant.

Rodney A. Johnson, Asst. Regional Counsel, U.S. Dept. of Health and Human Services, Dallas, Tex. (Timothy D. Leonard, U.S. Atty., and Eleanor Darden Thompson, Asst. U.S. Atty., W.D. Okl., Gayla Fuller, Chief Counsel, and Karen J. Sharp, Chief, Social Sec. Branch, Office of Gen. Counsel, U.S. Dept. of Health and Human Services Dallas, Tex., with him on the brief), for defendant-appellee.

Before McKAY, Chief Judge, and ALDISERT ¹ and McWILLIAMS, Circuit Judges.

McKAY, Chief Judge.

Mr. Donald G. Hargis appeals from an order of the district court affirming the denial of his application for disability insurance and supplemental security income benefits by the Secretary of Health and Human Services under Title II and XVI of the Social Security Act. See 42 U.S.C. §§ 416(i), 423, 1381. Mr. Hargis complains that the decision of the Secretary is not supported by substantial evidence.

I.

Mr. Hargis suffered a back injury on April 30, 1985, while he was employed as a long-haul truck driver. He was hospitalized and received treatment for his injury around that time. On April 27, 1987, he complained of an increase in back pain and sought further treatment. Dr. Stan Pelofsky, a neurosurgeon and the appellant's treating physician, noted that Mr. Hargis stated he experienced a "great degree of back pain and lower extremity radicular pain." Record, vol. 2, at 161. Dr. Pelofsky believed Mr. Hargis was a candidate for hospitalization and a lumbar myelography. Mr. Hargis then was admitted into St. Anthony Hospital through the emergency room on May 18, 1987, upon his complaints of excruciating back pain radiating to his left leg and numbness. At that time, Dr. Pelofsky recommended that Mr. Hargis undergo a myelography, to which the patient agreed. Mr. Hargis also underwent post-myelographic CT scanning and evaluation of cerebrospinal fluid. The results, in Dr. Pelofsky's opinion, did not reveal evidence of a surgical lesion. Dr. Pelofsky concluded that Mr. Hargis suffered from degenerative lumbar disc disease made symptomatic or aggravated by his employment as a truck driver and discharged petitioner to a regimen of conservative therapy. The treating physician noted that because his job was the source of his medical problems, Mr. Hargis would have to change his employment.

Mr. Hargis nevertheless attempted to return to his previous job as a long-haul truck driver. He hitched a ride as a passenger in a tractor-trailer rig to determine whether his back could sustain the stress placed on it by the rigors of travel. He was forced to terminate the trip before he reached his destination and flew home. On November 19, 1987, Dr. Pelofsky reported that Mr. Hargis had exacerbated his cervical pain and left arm radicular pain syndrome. Dr. Pelofsky once again recommended that Mr. Hargis not continue his employment as a truck driver. He nevertheless felt that the patient would be an excellent candidate for vocational rehabilitation.

Mr. Hargis filed applications for disability and supplemental social security benefits on September 18, 1987. The claimant alleged disability since May 18, 1987, due to pain in his lumbar back region. After his applications were denied initially and on reconsideration, Mr. Hargis requested a hearing de novo before an administrative law judge. With the aid of counsel, Mr. Hargis, an examining psychiatrist, and a vocational expert testified at the administrative hearing on June 30, 1988.

At the time of his disability hearing, Mr. Hargis was forty-six years old and had obtained a high school education. His past relevant work was as a truck driver and farmer. Mr. Hargis testified that in addition to his back problems, he has had two neck surgeries, one in 1980 in which a disc was removed, and another in 1983. He underwent physical therapy for over a year, and was treated with a TENS unit for approximately three months. Mr. Hargis also participated in an exercise program at a local hospital for approximately seven months, until he could no longer afford it. He now walks to a convenience store that is around 200 yards from his home twice a day. He testified that he could lift approximately five pounds and drives his pickup into town twice a week. Although Mr. Hargis was able to sit throughout his testimony at the proceeding, at one point his arm began to quiver due to the pain in his back. When asked whether he had attempted to find lighter work, the claimant replied: "Sir, I'm in so much pain, I don't know what I could concentrate on doing." Record, vol. 2, at 41. At the conclusion of the proceeding, the administrative law judge referred the claimant for further psychological and psychiatric testing.

After considering the testimony and evidence submitted by Mr. Hargis and the reports supplied after Mr. Hargis underwent further psychological evaluation, the administrative law judge found that the claimant suffered from chronic lumbosacral strain and depression. The administrative law judge nevertheless found that those ailments did not render Mr. Hargis so disabled that he could not engage in substantial gainful activity and denied his application for social security disability payments.

The Appeals Council denied Mr. Hargis' request for review, rendering the decision of the administrative law judge the final decision of the Secretary. 20 C.F.R. §§ 404.981, 416.1481 (1989). The district court found that the Secretary's findings were supported by substantial evidence. Mr. Hargis now brings this appeal.

To qualify for disability benefits, the claimant must establish a physical or mental impairment expected to result in death or last for a continuous period of twelve months which prevents the claimant from engaging in substantial gainful activity. 42 U.S.C. § 423(c)(1)(A) (1988). The Secretary has established a five-step sequential evaluation process for determining disability. See 20 C.F.R. §§ 404.1520, 416.920 (1990). The first two steps, that the claimant is not presently engaged in substantial gainful activity and that he suffers from a medically severe impairment or combination of impairments, are not at issue. Mr. Hargis' complaint is with the Secretary's findings in the third and fifth steps of the sequential evaluation process. The Secretary found that Mr. Hargis' impairments are not found on or medically equal to the Secretary's list of impairments conclusively presumed to be disabling. 20 C.F.R. § 404, Subpt. P, App. 1 (1989). While the Secretary found that Mr. Hargis is unable to return to his past relevant work as a truck driver, the fourth step in the sequential evaluation process, he determined that the claimant had the residual functional capacity to perform other work in the national economy in view of his age, education, and work experience. He therefore denied the claimant's application for social security disability. See generally Bowen v. Yuckert, 482 U.S. 137, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987).

Mr. Hargis complains that the Secretary erred when he did not find that his mental impairments precluded him from performing even sedentary work. He also takes exception to the Secretary's finding that, despite his impairments, Mr. Hargis could perform work in the national economy other than his previous employment. Mr. Hargis asserts that, due to his back ailments and attendant pain along with his psychological impairment, the Secretary's finding is not supported by substantial evidence. He finally proffers medical evidence not available at the earlier proceedings and asks this court to remand the cause for further proceedings in light of this new evidence. We address, in turn, each of Mr. Hargis' claims.

This court reviews the Secretary's decision to determine only whether his findings are supported by substantial evidence and whether the Secretary applied correct legal standards when making his decision. Williams v. Bowen, 844 F.2d 748 (10th Cir.1988); Turner v. Heckler, 754 F.2d 326, 328 (10th Cir.1985). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Teter v. Heckler, 775 F.2d 1104, 1105 (10th Cir.1985). We cannot reweigh the evidence or substitute our judgment for that of the Secretary. Jordan v Heckler, 835 F.2d 1314, 1316 (10th Cir.1987); Brown v. Bowen, 801 F.2d 361, 362 (10th Cir.1986).

II.

The Secretary has promulgated a special technique to ensure that all evidence needed for the evaluation of a claim which involves a mental impairment is obtained and evaluated. This technique was designed to work in conjunction with the sequential evaluation process set out for the evaluation of physical impairments. See 20 C.F.R. §§ 404.1520a, 416.920a (1990). ² Mr. Hargis challenges the Secretary's use of that procedure when finding that he does not suffer from an affective mental disorder that precludes him from performing even sedentary work. He submits that the severity of his depression meets the Secretary's listings under section 12.04. 20 C.F.R. § 404, Subpt. P, App. 1, § 12.04 (1990). Such a finding would establish that the claimant is presumptively disabled without consideration of the vocational factors relevant to the claimant's other arguments. See 20 C.F.R. § 404, Subpt. P, App. 1 (1990).

Section 12.04 sets out a two-part test that must be met before a claimant may be found to suffer from a disabling mental disorder. The administrative law judge found that the claimant met the first prong of the test, which establishes a loss of specific cognitive abilities or affective changes: depressive syndrome characterized by sleep disturbance, decreased energy,...