Rivers v. Schweiker

• Decision Date: 07 September 1982
• Docket Number: No. 81-1413,81-1413
• Citation: 684 F.2d 1144
• Parties: Eva M. RIVERS, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1144

684 F.2d 1144

Eva M. RIVERS, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human

Services, Defendant-Appellee.

No. 81-1413.

United States Court of Appeals, Fifth Circuit.

Sept. 7, 1982.

North Central Texas Legal Services, Roger Gette, John G. Heike, Dallas, Tex., for plaintiff-appellant.

James Rolfe, U. S. Atty., Martha Joe Stroud, Asst. U. S. Atty., Dallas, Tex., Gabriel L. Imperato, Attorney, Dept. of Health and Human Services, Baltimore, Md., for defendant-appellee.

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

Before BROWN, WISDOM and RANDALL, Circuit Judges.

RANDALL, Circuit Judge:

Plaintiff-Appellant Eva M. Rivers appeals from a judgment of the district court affirming the Secretary of Health and Human Services' decision denying her social security disability benefits. Because we find no merit in Rivers' contentions on appeal, we affirm the judgment of the district court.

I. Facts and Procedures Below

Eva Rivers, age forty-four, was employed as a cook in 1978. She was able to read and write and had worked as a cook, bus person, dishwasher and maid. On November 1, 1978, she suffered a back injury in a fall at work. The injury resulted in constant pain in the lower back which radiated down the left leg. She experienced numbness in her fingers and had difficulty picking up things because of the injury. She wore a back brace and took medication to help relieve the pain. She had difficulty remaining in one position for any length of time, in sleeping, in doing any housework and was most comfortable sitting when her back was "rested up against something." She also had other medical problems, taking daily insulin injections for chronic diabetes and suffering, at times, from hypertension.

These circumstances and her alleged inability to work led her to seek social security disability insurance benefits and supplemental income benefits in March, 1979. ¹ The request was initially and upon reconsideration denied by the Texas Rehabilitation Commission, the state contract agency empowered to evaluate claims for social security benefits. Rivers then requested a hearing by an administrative law judge (the "ALJ"). At the hearing, Rivers testified that she had trouble sleeping and sitting. A friend testified that Rivers could do no housework, had trouble getting up after being seated, could not lift anything and had complained of continuing pain.

Additionally, written reports of Rivers' injuries, diagnosis, treatment and prognosis were introduced into evidence. The reports were set forth in detail in the decision of the ALJ. Briefly, those reports showed that subsequent to the 1978 fall Rivers underwent extensive medical examinations and various treatment because of continuing back pain. Several reports assessing Rivers' medical condition and capacity to perform work were prepared. Dr. Paul Goodfried, an orthopedic surgeon, one of Rivers' examining and treating physicians, prepared an extensive report, including an assessment, for the Social Security Administration, of Rivers' ability to perform in a work setting, described in the parlance used by the Social Security Administration as her "residual functional capacity." ² He found her capable, in an eight-hour work day, of standing and walking for one to two hours, sitting for three to four hours and lifting and carrying ten pounds occasionally. She could bend occasionally but could not stoop, kneel, squat, crouch, crawl or climb. Dr. David Blacklock, a medical advisor with the Texas Rehabilitation Commission, prepared an assessment of Rivers' residual functional capacity from a review of the record evidence (not an examination) on July 23, 1979. He found Rivers capable of standing and walking for eight hours, sitting for eight hours, and lifting and carrying 25 pounds frequently and 50 pounds occasionally. She had full use of her hands, fingers and feet and could occasionally bend, stoop, kneel, squat, crouch, crawl, and climb.

Subsequent to the hearing before the ALJ, Rivers submitted additional medical reports detailing her treatment for the back pain and noting surgery for an abcess of the thigh. Additionally, at the request of the ALJ, Rivers was examined by Dr. Jack Woolf, a neurosurgeon. He prepared an assessment of residual functional capacity in which he found Rivers capable of sitting and standing two hours at a time, standing for two hours and walking for one hour. Among other findings, she was found capable of lifting six to ten pounds occasionally.

At a supplemental hearing Dr. Woolf testified regarding Rivers' impairments. He stated that, in preparation of the assessment of Rivers' residual functional capacity, he considered her medical condition and her subjective complaints. He was cross-examined by Rivers' attorney.

Subsequent to the supplemental hearing, a psychological evaluation was submitted by the Texas Rehabilitation Commission. The evaluation concluded that, as to intelligence, Rivers functioned in the dull normal range. The thrust of the evaluation was that Rivers could be trained for some type of office work where she did not have to sit for too long a period of time.

On March 31, 1980, the ALJ issued his decision. He first set forth the applicable Social Security law and regulations, ³ and, as previously noted, set forth the relevant medical evidence. The ALJ stated that "the issue before the administrative law judge is whether the claimant's impairments prevent her from performing her usual work; and, if so, whether those impairments prevent her from performing other kinds of substantial gainful activity."

The ALJ then evaluated the evidence, stating in relevant part:

The medical evidence reveals that the claimant's impairments are chronic lumbosacral strain, obesity, diabetes mellitus, L5 nerve root irritation and borderline hypertension. The most recent medical evidence indicates that the claimant's back condition has improved, and the claimant's treating physician indicated in his assessment of the claimant's residual functional capacity prepared on July 23, 1979, indicates the claimant capable of doing light to medium work.... While the diabetes mellitus was a contributing factor to the formation of the abscess which was removed from the claimant's right thigh, the diabetes is controlled with insulin and there has been no significant end organ damage as a result thereof, nor has there been any evidence of end organ damage as a result of hypertension. Dr. Goodfried's indication in his medical report of July 6, 1979, that with the claimant's present complaints she is unable to go back into the work force, is not controlling as this opinion is based solely on the claimant's subjective complaints. She still had the residual functional capacity to perform sedentary work.... Furthermore, Dr. Woolf's impression was that the claimant had chronic low back pain with left sciatica and ordisiogenic disease which with her other impairments did not prevent her from engaging in sedentary work.

After making this medical determination of Rivers' residual functional capacity the ALJ examined the physical requirements of the five classifications of work as established by the Social Security Administration ⁴ and concluded:

After reviewing all of the evidence of record, it is apparent that the claimant's impairments restrict her to the performance of sedentary work (which is defined by Regulations 404.1510(b) and 416.910(b) as work involving lifting 10 pounds maximum, occasionally lifting or carrying such articles as dockets, ledgers, and small tools, involving sitting, however, a certain amount of walking or standing is often necessary).

Finally the ALJ considered the vocational factors of age, education and work experience considered to be pertinent to the ultimate determination whether Rivers could perform substantial gainful activity:

Furthermore, the evidence shows that the claimant is 45 years old (which is defined as a younger individual by Regulations 404.1506(b) and 416.906(b)), has a tenth grade education (which is defined as a limited education by Regulations 404.1507(d) and 416.907(d)), and has done only unskilled work. The evidence further supports a finding that the claimant has the maximum sustained work capacity to perform sedentary work as long as no heavy lifting is involved.

The ALJ determined that Rivers' individual vocational characteristics and capacity to perform sedentary work coincided with the characteristics set forth in Medical-Vocational Guidelines (the "guidelines") established by the Social Security Administration, ⁵ 20 C.F.R. §§ 404.1501-1569 (1982), to aid the ALJ's determination of disability. The ALJ concluded that the following rule, set forth in the guidelines, should be used to determine whether Rivers was disabled.

Rule 201.18, Table No. 1, 20 C.F.R. Appendix 2. The application of this rule, as shown above, directed a finding that Rivers was "not disabled." Notably,

(T)he existence of (a) job in the national economy (was) reflected in the (ALJ Decision) shown by the rules; i.e., in promulgating the rules, administrative notice (had) been taken of the numbers of unskilled jobs that exist throughout the national economy at the (sedentary level).

20 C.F.R. Appendix 2, § 200.00(b) (1982).

Subsequent to the ALJ decision, Rivers requested review of the decision by the Appeals Council of the Social Security Administration. She stated as a basis for the appeal:

She submits as additional evidence her declaration rebutting any administratively noticed "fact" which the ALJ was required to make under the Regulations 404.1513 and 416.913 and Rule 201.18, Table No. 1 of Appendix Z, Subparts P and I of Regulations No. 4 and 16.

The decision clearly implicates an issue of broad policy which will affect the general public interest. The use of such regulations, where a vocational expert was requested by an indigent claimant, is not supported...