Harris v. Secretary of Health and Human Services

• Decision Date: 26 June 1987
• Docket Number: No. 85-2898,85-2898
• Citation: 821 F.2d 541
• Parties: , Unempl.Ins.Rep. CCH 17,418 E.L. HARRIS, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 541

821 F.2d 541

18 Soc.Sec.Rep.Ser. 124, Unempl.Ins.Rep. CCH 17,418

E.L. HARRIS, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.

No. 85-2898.

United States Court of Appeals, Tenth Circuit.

June 26, 1987.

Gary J. Martone, Albuquerque, N.M., for plaintiff-appellant.

Edwin L. Meese, U.S. Atty. Gen., Washington, D.C., William L. Lutz, U.S. Atty., D.N.M., Gayla Fuller, Chief Counsel, Region VI, Patrick A. Hudson, Principal Regional Counsel, Social Security Disability Litigation Branch, and Karen J. Behner, Asst. Regional Counsel, U.S. Dept. of Health and Human Services, Dallas, Tex., for defendant-appellee.

Before BARRETT and ANDERSON, Circuit Judges, THOMPSON, District Judge. ^*

PER CURIAM.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed R.App.P. 34(a); 10th Cir.R. 34.1.8(c) and 27.1.2. The cause is therefore ordered submitted without oral argument.

Claimant E.L. Harris appeals from the denial of his claim for Social Security disability benefits. He applied for such benefits in September 1982, claiming that a painful, injured back prevented him from working. At the time, he was forty-nine years old and had a seventh grade education. He had worked for approximately thirty years as an oil field "roughneck." His job required heavy lifting and carrying of pipes and equipment. An on-the-job injury led to a disc operation in September 1980. The claimant was able to return to work approximately ten months later but was able to remain less than two months before requiring a second operation to fuse the L-4 and S-1 vertebrae on his spine. In August 1982, after a eleven-month convalescence, the claimant's doctor again released him to return to work. After approximately two weeks in the oilfields, he was hospitalized because of acute back strain. X-rays of the lumbar spine revealed a moderate amount of spondyloarthrosis along with some arthritis on the lower lumbar and lumbosacral facets. The claimant filed for disability insurance benefits at this time. Although further surgery was not anticipated, the claimant's condition continued to deteriorate. Dr. Robert P. Hayes, the orthopedic surgeon who treated him from 1980 on, reported that the claimant had become totally and permanently disabled from any type of work. Dr. Hayes reported that the claimant suffered from a marked limitation of range of motion, pain on flexion and extension, bilateral muscle spasms upon walking and standing, diminished reflexes, and muscular weakness--all supported by physical examinations, laboratory tests, and clinical observations of the results of claimant's treatment. Claimant testified that he suffered from almost constant pain, including neck pain and pain radiating to his legs. He reported that he experienced the pain while both sitting and standing and that he also had difficulty sleeping and getting out of bed in the morning, in spite of his pain medication. Dr. Hayes indicated that the claimant could do no lifting, no climbing, no prolonged riding, standing, or sitting. In a letter filed after the conclusion of the ALJ hearing, Dr. Hayes opined that the claimant's medical impairment met the definition of a disabling spinal impairment listed in the Social Security Regulations at Sec. 1.05 of 20 C.F.R. Sec. 404, subpt. P, app. 1.

An administrative law judge (ALJ) denied Harris' disability claim. Although recognizing that the claimant could not return to his former employment, the ALJ nonetheless found that the claimant retained the residual functional capacity for light work. Although crediting the claimant's pain to the extent that it precluded The claimant appeals the decision of the district court. Because we find that the ALJ lacked substantial evidence to support his determination that the claimant had the residual functional capacity to perform a full range of light work, we reverse and remand for an award of benefits. We do not remand for additional fact-finding because there is enough evidence in the record of claimant's inability to perform a full range of either light or sedentary work to negate the usefulness of any additional proceedings.

any heavy lifting or prolonged standing or walking, the ALJ found no nonexertional limitations restricting the claimant's ability to perform a full range of light work. Apparently, because the claimant had made a good recovery initially from his spinal fusion operation and because x-rays, a neurological exam, and a CAT scan did not fully explain the level of claimant's pain, the ALJ discounted the medical opinions supporting the claimant's testimony of the severity of that pain. The Appeals Council affirmed the ALJ decision. Harris then filed an action in federal district court for review of the administrative actions. The district court upheld the ALJ's decision, discounting the medical evidence of claimant's difficulty in motion, flexion, and extension and upholding the finding that the claimant's pain was not disabling.

I.

The regulations that guide disability insurance determinations set forth a five-step sequential process for evaluating disability. The dispute in this case concentrates on steps three and five. Neither party disputes the step-one finding that the claimant is not substantially gainfully employed, nor the step-two finding that he has a severe impairment, nor the step-four finding that he cannot return to his former substantial gainful employment.

On appeal the claimant contends that at step three the ALJ should have determined that the claimant's back impairment is the same as or medically equivalent to an impairment described in the "Listing of Impairments," 20 C.F.R. Sec. 404, subpt. P, app. 1, and thus that he is per se disabled, 20 C.F.R. Sec. 404.1520(d). He also contends that at step five the ALJ's determination that the claimant has the residual functional capacity to perform other work in the national economy is not supported by substantial evidence. As the claimant correctly points out, the standard of review of the ALJ's factual findings is that they must be supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). Finally, the claimant argues that his nonexertional limitations, particularly his pain, precluded mechanical application of the medical-vocational guidelines ("grids") to determine that he was not disabled. See 20 C.F.R. Sec. 404, subpt. P, app. 2.

II.

The claimant's first argument that he is per se disabled fails. The ALJ correctly found that the claimant does not suffer from the type of impairment of the spine that is described at Sec. 1.05(C) in Appendix 1 of 20 C.F.R. Sec. 404, subpt. P. To qualify as disabled under Sec. 1.05(C), the claimant must suffer from a vertebrogenic disorder with both (1) pain, muscle spasm, and significant limitation of motion in the spine, and (2) appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss. Although the record discloses most of these characteristics, it does not reveal a medical finding that the claimant has experienced sensory loss. Although by the spring of 1983, the claimant was reporting some numbness in both legs and burning and tenderness sensations in his lower back, Dr. Hayes does not attempt to corroborate any sensory loss. The doctor's bare statement in his letter of March 14, 1984 that the claimant has a Sec. 1.05 impairment does not meet the level of evidence required to prove the existence of such an impairment. See 20 C.F.R. Secs. 404.1527, 404, subpt. P., app. 1, Sec. 1.00(B). We, therefore, turn to the claimant's next argument.

III.

We agree with the claimant that the record does not contain substantial evidence to support the ALJ's finding that the claimant has the residual functional capacity for light work. Light work, as defined in the regulations, 20 C.F.R. Sec. 404.1567(b), requires occasional lifting of up to twenty pounds and frequent lifting of up to ten pounds. The claimant's doctor repeatedly advised that, by the time of the ALJ hearing, the claimant could do no lifting. Furthermore, the medical reports reveal limited range of motion, muscle spasms, muscle weakness, diminished reflexes, and pain, all of which support his opinion. Laboratory reports showing spondyloarthrosis, arthritis in the lumbar and lumbosacral facet joints, and some narrowing of the [spinal] canal also support the opinion. The claimant's normal neurological report does not negate the reality of his other back problems but merely limits them to non-nerve related damage. A medical opinion based on objective tests results, an evaluation of the patient's medical history, physician observations of the patient, and physician evaluation of the patient's subjective complaints of pain, as is the case here, "is medical evidence supporting a claim of disabling pain, even if the objective test results, taken alone do not fully substantiate the claim." Nieto v. Heckler, 750 F.2d 59, 61-62 (10th Cir.1984). Here, the medical opinion of disability is not based on pain alone but is also based on actual loss of strength and flexibility...