Ray v. Bowen, 86-2341

• Decision Date: 09 January 1989
• Docket Number: No. 86-2341,86-2341
• Parties: , Unempl.Ins.Rep. CCH 14451A Rhonda Kay RAY, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary, Department of Health and Human Services, Defendant- Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 222

865 F.2d 222

24 Soc.Sec.Rep.Ser. 246, Unempl.Ins.Rep. CCH 14451A

Rhonda Kay RAY, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary, Department of Health and Human

Services, Defendant- Appellee.

No. 86-2341.

United States Court of Appeals, Tenth Circuit.

Jan. 9, 1989.

Frederick W. Newall, Colorado Springs, Colo., for plaintiff-appellant.

Robert N. Miller, U.S. Atty., and James R. Cage, Asst. U.S. Atty., Denver, Colo., for defendant-appellee.

Before SEYMOUR, SETH and BRORBY, 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.

Rhonda Kay Ray ("claimant") appeals from the district court's order affirming the decision of the Secretary of Health and Human Services ("the Secretary") to deny Miss Ray's application for social security disability benefits. For reversal, Miss Ray 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 that Miss Ray was not disabled. In particular, Miss Ray claims that the Secretary applied the grids without adequately considering her nonexertional limitations. Because we conclude that the Secretary's decision is supported by substantial evidence on the record, and for the reasons discussed below, we affirm the judgment of the district court.

Miss Ray is now thirty years of age, has a ninth grade education, and has worked variously as a motel maid, a nurse's aide, a counter clerk at a dry cleaning establishment and as a factory worker. Miss Ray claims that she became disabled as of August 30, 1983, when knee pain forced her to quit her job as a maid in a motel. Shortly afterward she applied for disability and disability insurance benefits, specifying "kneecaps are out of joint, arthritis in legs." The Social Security Administration denied her claim initially and upon reconsideration.

The claimant obtained a de novo hearing before an ALJ on May 22, 1984. On August 13, 1984, the ALJ issued a decision denying her claim, finding that Miss Ray was capable of performing the full range of sedentary work and that jobs requiring sedentary work existed in substantial numbers in the national economy. The Appeals Council considered a short letter from an orthopaedic specialist that the claimant submitted after the ALJ announced his decision, but nonetheless affirmed the ALJ's decision. Miss Ray then brought suit in the United States District Court for the District of Colorado, seeking to overturn the denial of benefits. The district court ruled that the ALJ's decision was supported by substantial evidence, and entered judgment on behalf of the Secretary.

The reports of four physicians and the claimant's testimony during her hearing before the ALJ comprise the principal evidence in this case. The three physicians whose reports the ALJ considered agreed that the claimant's chief health problem was her severe obesity. Miss Ray is five feet, eleven inches tall, and weighed approximately 280 pounds at the time she applied for disability benefits. As J. Casey Elgin, D.O., stated in a brief note:

"Rhonda Ray's major health problem is her severe obesity. This has created stress on her knees and makes it painful for her to walk or stand for long periods of time. It will probably not improve until she loses approximately 140 lbs. This is entirely under her control and is the only way to take the stress off her knees."

Another physician, Janet Ely, M.D., reported that she first treated the claimant in June 1983 for knee and hip pain. Dr. Ely diagnosed the claimant as suffering from chrondomalacia of the patella, and prescribed a weight reduction program, anti-inflammatory medication, and an exercise program. Dr. Ely reported that the claimant's compliance was poor, and resulted in little improvement.

The record contains two reports from Roland J. Brandt, D.O., an orthopaedic specialist to whom Dr. Ely referred Miss Ray. Dr. Brandt's examination essentially confirmed Dr. Ely's diagnosis. He stated in October 1983:

"I do feel that [Miss Ray] is capable of performing a capacity requiring minimal walking or suspended sitting or would be limited with repeated walking long distances or over uneven terrain."

Dr. Brandt further opined that Miss Ray's limitations were temporary in nature, and that her progress depended entirely on her motivation and vigorous participation in an exercise program. He again examined Miss Ray more than five weeks later, but stated that "I don't have any new feelings since the last report."

Shortly after Miss Ray requested the Appeals Council to review the ALJ's decision, the Council received a one-paragraph letter from Milo L. Messner, M.D. Dr. Messner described the "Patellar-Femoral type pain" the claimant was suffering from and predicted that she would probably require surgery at some point. He concluded that Miss Ray "is basically at the present time incapacitated from any type of activity that would require getting up and down from a sitting position or using stairs."

In a social security hearing such as this one, the claimant bears the burden of proving a disability, as defined by the Social Security Act, that prevents him from engaging in his prior work activity. Reyes v. Bowen, 845 F.2d 242, 243 (10th Cir.); 42 U.S.C.A. Sec. 423(d)(5) (1983). Once the claimant has established 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. Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir.); Reyes, 845 F.2d at 243; Williams v. Bowen, 844 F.2d 748, 751 (10th Cir.). The Secretary meets this burden if the decision is supported by substantial evidence. Gossett, 862 F.2d at 804; see Campbell v. Bowen, 822 F.2d 1518, 1521 (10th Cir.). "Substantial evidence" requires "more than a scintilla, but less than a preponderance," and is satisfied by "such evidence that a reasonable mind might accept to support the conclusion." Campbell, 822 F.2d at 1521; Brown v. Bowen, 801 F.2d 361, 362 (10th Cir.). The determination of whether substantial evidence supports the Secretary's decision is not simply a "quantitative exercise," for evidence is not substantial if it is overwhelmed by other evidence or if it really constitutes mere conclusion. Fulton v. Heckler, 760 F.2d 1052, 1055 (10th Cir.); Knipe v. Heckler, 755 F.2d 141, 145 (10th Cir.).

The ALJ found that Miss Ray was incapable of performing work she has performed in the past, particularly work as a maid or nurse's aide. An individual is disabled within the meaning of the Social Security Act, however, only if his impairments are so severe 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."

42 U.S.C.A. Sec. 423(d)(2)(A) (1983). The ALJ considered these factors--age, education, and work experience--as well as the claimant's residual functional capacity ("RFC"), found that she was capable of performing work for which jobs exist in substantial numbers in the national economy, and thus concluded that she was not disabled. This finding was the fifth in a five-step inquiry we have outlined in Gossett v. Bowen, 862 F.2d 802, 804-05 (10th Cir.), and in Reyes v. Bowen, 845 F.2d 242, 243 (10th Cir.). The ALJ's step five finding is the linchpin of his determination that Miss Ray is not entitled to disability benefits, and Miss Ray argues that this finding is not supported by substantial evidence.

To determine whether work that the claimant can perform is available in the national economy, the ALJ relied on the medical-vocational guidelines--the "grids." Automatic application of the grids is appropriate only when a claimant's RFC, age, work experience, and education match a grid...