Hernandez v. Heckler, 82-1576

• Decision Date: 13 May 1983
• Docket Number: No. 82-1576,82-1576
• Citation: 704 F.2d 857
• Parties: Margarito G. HERNANDEZ, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 857

704 F.2d 857

1 Soc.Sec.Rep.Ser. 366

Margarito G. HERNANDEZ, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services Defendant-Appellee.

No. 82-1576

Summary Calendar.

United States Court of Appeals Fifth Circuit.

May 13, 1983.

Richard O. Gonzales, David G. Hall, Texas Rural Legal Aid, Inc., Del Rio, Tex., for plaintiff-appellant.

Hugh P. Shovlin, Asst. U.S. Atty., San Antonio, Tex., H. Paul Smith, Dallas, Tex., for defendant-appellee.

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

Before CLARK, Chief Judge, POLITZ and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Margarito Hernandez seeks review of a final decision of the Secretary of Health and Human Services denying his claim for disability insurance benefits and supplemental security income. See 42 U.S.C. Secs. 405(g) and 1383(c)(3). Finding that the evidence was sufficient to sustain the Secretary's decision and that the Secretary used proper procedures in reaching his decision, we affirm.

Hernandez, born on February 22, 1937, worked primarily on jobs involving heavy labor. On May 30, 1974, he fell on his back while pulling a heavy load and has not worked since that day. After submitting three unsuccessful applications for disability insurance benefits and SSI, Hernandez again applied for these benefits on January 27, 1978. In this application, Hernandez claimed that he became disabled on May 30, 1974 because of pain in his lower back and spondylolisthesis of the fifth lumbar spine.

This application was denied both initially and on reconsideration by the Social Security Administration. Hernandez then requested and received a hearing de novo before an Administrative Law Judge. After summarizing the medical evidence and Hernandez' testimony at the hearing, the ALJ first found that Hernandez' exertional impairments prevented him from performing his past work but did not prevent him from performing sedentary work. He then found that Hernandez' capacity to perform sedentary work and his vocational characteristics coincided with the characteristics set forth in the Social Security Administration's Medical-Vocational Guidelines. See 20 C.F.R. subpart P., app. 2, Secs. 200.00-204.00 (1982). Application of this guideline directed a finding that Hernandez was "not disabled." ¹ The ALJ also noted that Hernandez' non-exertional limitations did not affect this result. This decision was approved by the Appeals Council on September 4, 1980. The district court granted summary judgment on February 8, 1982. Hernandez appeals.

This court's role on appeal is limited to a determination of: (1) whether substantial evidence exists in the record to support the decision that claimant is not disabled, see Western v. Harris, 633 F.2d 1204 (5th Cir.1981); and (2) whether the Secretary applied the proper legal standards in evaluating the evidence, see Smith v. Schweiker, 646 F.2d 1075, 1076 (5th Cir.1981). Hernandez invokes both reviewing functions in his attack on the ALJ's conclusion that the Secretary met the burden of showing that Hernandez could perform some type of substantial gainful activity. ² Specifically, Hernandez claims: (1) that the Secretary considered his impairments separately rather than in combination as required by 20 C.F.R. Sec. 404.1526(a) (1982); (2) that the ALJ failed to give appropriate weight to the opinion of the treating physician; (3) that the ALJ improperly applied the Medical-Vocational Guidelines; and (4) that the Secretary did not meet his burden because he failed to offer a vocational expert's testimony regarding the jobs Hernandez was capable of performing. Hernandez thus urges us to remand the case to the ALJ. We will examine each contention separately.

Failure to Consider Combined Effects of Impairments

Citing 20 C.F.R. Sec. 404.1526(a) (1982), Hernandez argues that the ALJ incorrectly considered his exertional impairments separately from his non-exertional impairments rather than in combination. 20 C.F.R. Sec. 404.1526(a) provides:

We will decide that your impairment(s) is medically equivalent to a listed impairment in Appendix 1 if the medical findings are at least equal in severity and duration to the listed findings.... If you have more than one impairment, and none of them meets or equals a listed impairment, we will review the symptoms, signs, and laboratory findings about your impairments to determine whether the combination of your impairments is medically equal to any listed impairment.

Id. (emphasis added).

Hernandez' reliance on this regulation is misplaced. The ALJ did not here follow the commands of Sec. 404.1526(a) because he implicitly determined that the procedure embodied by that regulation was inapplicable. Under the Secretary's systemized procedure for sequentially evaluating a disability claim, the ALJ first must determine whether the claimant is working, 20 C.F.R. Sec. 404.1520(b) (1982), ³ or whether the claimant does not have a severe impairment, Sec. 404.1520(c). In either case, the claimant is considered not disabled. If, however, an individual's impairment meets the durational requirement of at least twelve months and is listed in Appendix 1 of the regulations or is determined to be the medical equivalent of a listed impairment, the claimant is considered disabled. Sec. 404.1520(d). Section 404.1526(a) comes into play here by indicating how "medical equivalence" is determined. If a finding of disability vel non cannot be determined by these three steps, but the claimant does have a severe impairment, the ALJ then must evaluate the claimant's "residual functional capacity," age, education, and work experience to determine whether the claimant can do other work. Sec. 404.1520(e), (f). The ALJ's opinion in this case bypassed the first three steps and instead evaluated Hernandez' residual functional capacity and other characteristics. It thus reflects a judgment that the first three steps, including the one involving Sec. 404.1526(a), were not determinative. Hernandez has made no suggestion to the contrary. For this reason, the ALJ was not required to follow the explicit direction of Sec. 404.1526(a).

Testimony of Treating Physician

Hernandez introduced into the record the medical reports of Dr. Luis Gonzalez Rios, whom he characterizes as his "treating physician." One of these reports, dated February 4, 1978, stated that Hernandez "is totally disabled at the present time." Citing case law requiring the ALJ to accord "substantial weight" to the opinion of a claimant's treating physician, Hernandez now argues that the ALJ's opinion is flawed because it does not mention the reports of Dr. Rios and does not reveal what weight, if any, was given to the doctor's opinions. See, e.g., Wiggins v. Schweiker, 679 F.2d 1387, 1389-90 (11th Cir.1982).

While Hernandez accurately states the law regarding testimony of treating physicians, he misstates the facts regarding the status of Dr. Rios. There is no record evidence that Dr. Rios actually was Hernandez' treating physician. Dr. Rios first examined Hernandez on September 15, 1976 and diagnosed his back pain as "spondylolisthesis of L5, first grade." He made the same diagnosis on February 4, 1978, adding that the patient is "totally disabled." Dr. Rios did not see Hernandez again. Hernandez' testimony at the hearing also casts doubt on his characterization of Dr. Rios. Though testifying that Dr. Rios gave him advice and recommended surgery, Hernandez also stated that he was not then seeing a doctor, had not seen one since 1978, and had dealt only with doctors sent to him by the Social Security Administration. In short, Dr. Rios was no more familiar with Hernandez' injuries, course of treatment, and responses over a considerable length of time than were other physicians. The ALJ thus was not required to accord his testimony greater weight than that of other physicians.

Use of Medical-Vocational Guidelines

Having analyzed Hernandez' residual functional capacity, age, work experience, and education, the ALJ referred to the Secretary's Medical-Vocational Guidelines, 20 C.F.R. subpart P, app. 2, Secs. 200.00-204.00 (1982). Based on his findings, the ALJ determined that Rule 201.23 of Table 1 applied and directed a conclusion of "not disabled." Hernandez does not now dispute the four findings on which the ALJ based his determination of nondisability. He also does not argue that reliance on the guidelines is insufficient to satisfy the Secretary's burden of proof in situations where the guidelines' four factors coincide precisely with the claimant's particular situation. Instead, he argues that the guidelines were either inapplicable or of limited use because of the presence of non-exertional impairments.

First, Hernandez argues that the guidelines are inapplicable if a claimant's impairments are solely non-exertional. The guidelines state:

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 impairments. In addition, some impairments may result solely in postural or manipulative limitations.... In the evaluation of disability where the individual has solely a nonexertional type of impairment, determination as to whether disability exists shall be based on the principles in the appropriate sections of the regulations, giving consideration to the rules for specific case situations in this Appendix 2. The rules do not direct factual conclusions of disabled or not disabled for individuals with solely nonexertional types of impairments.

20 C.F.R. subpart P, app. 2, Sec. 200.00(e)(1). Hernandez then contends that his impairments are wholly non-exertional because they include severe back pain (a "postural" limitation),...