Sherwin v. Secretary of Health and Human Services, 81-1885

• Decision Date: 19 July 1982
• Docket Number: No. 81-1885,81-1885
• Citation: 685 F.2d 1
• Parties: Waldemar P. SHERWIN, Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 1

685 F.2d 1

Waldemar P. SHERWIN, Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee.

No. 81-1885.

United States Court of Appeals First Circuit.

Argued May 6, 1982.

Decided June 22, 1982.

Rehearing Denied July 19, 1982.

Richard K. Latimer, with whom Kistin, Babitsky, Latimer, Oppenheim, Kalnins & Beitman, Falmouth, Mass., was on brief, for plaintiff, appellant.

Robert J. Triba, Asst. Regional Atty., Dept. of Health and Human Services, with whom William F. Weld, U. S. Atty., and Ralph A. Child, Asst. U. S. Atty., Boston, Mass., were on brief, for defendant, appellee.

Before PHILLIPS, ^* Senior Circuit Judge, BOWNES and BREYER, Circuit judges.

BREYER, Circuit Judge.

The appellant, Waldemar Sherwin, is a 46 year old man with a ninth grade education. In February 1979, when he was 44, Sherwin applied for Social Security disability benefits because of arthritic joint pain and "pericarditis." After a hearing, an Administrative Law Judge denied the claim on the ground that Sherwin was not "disabled" within the meaning of the relevant statute, 42 U.S.C. § 423(d). Sherwin exhausted all internal appeals with the Social Security Administration (SSA). The district court upheld the SSA's denial of benefits. Sherwin appealed, attacking the validity of the "Grid" used by the SSA in evaluating his case. We reject this attack and affirm the SSA's denial.

To help understand this case, we begin by repeating the basic legal structure for evaluating a disability claim, see Vazquez v. Secretary of Health, Education and Welfare, 683 F.2d 1 (1st Cir. 1982). The ultimate question is whether Sherwin is disabled within the meaning of 42 U.S.C. § 423(d). That provision defines "disability" as

inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment ... (lasting at least a year and) of such severity that (the claimant) ... 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 such work.

It is well established that, in applying this statutory standard, the claimant has the burden of showing a disability serious enough to prevent him from working at his former jobs, at which point the burden shifts to the Secretary to show the existence of other jobs in the national economy that the claimant can nonetheless perform. Torres v. Secretary of Health and Human Services, 677 F.2d 167, 168 (1st Cir. 1982); Pelletier v. Secretary of Health, Education and Welfare, 525 F.2d 158 (1st Cir. 1976). To simplify the task of proving the existence of a disability in these cases, the Secretary has promulgated a set of Medical-Vocational Guidelines ("the Grid"). 20 C.F.R. Part 404, Subpart P, Appendix 2 (1981) (hereinafter referred to as "Grid, § "). The Grid is designed to help the Secretary, when appropriate, satisfy his burden of proving the existence of other jobs in the economy that the claimant can perform. Sherwin showed that he could not perform his prior job as a forklift operator; thus the Grid came into play.

The Grid is basically a matrix, combining different permutations of the four essential factors set out in the statute (age, education, work experience, and residual work capacity) and stating, as to each combination, whether a claimant with those characteristics is "disabled" or "not disabled." It consists of three separate tables, one for those who retain the residual exertional capacity to perform "sedentary" work, one for those who retain the residual capacity to perform "light" work, and one for those who retain the residual capacity to perform "medium" work. Each table has five columns for rule number, age, education, work experience, and decision. Thus, each row on the table presents a different combination of age, education, and work experience categories. The ALJ simply selects the proper table and row based on the characteristics he finds the claimant to possess, and reads the decision, "disabled" or "not disabled" from the right-hand column in that row. See Appendix.

The Secretary's instructions for the use of the Grid are explicit. The ALJ is to determine the claimant's relevant characteristics. Each of these "findings of fact is subject to rebuttal and the individual may present evidence to refute such findings." Grid, § 200.00(a). Once found, the claimant's characteristics will either fit squarely within one of the rules in the table or they will not. If they do-if the "findings of fact ... coincide with all of the criteria of a particular rule"-then "the rule directs a conclusion as to whether the individual is or is not disabled." Id. If the facts do not fit squarely within a rule because they reveal a borderline case or a case lying between two rules, those rules still "provide guidance;" they are to be given "consideration," and they "provide an overall structure for evaluation." Id. § 200.00(d). If instead, the facts do not fit squarely within a rule because the claimant has a combination of impairments-particularly if the claimant has a nonexertional impairment-the guidelines suggest still more individualized consideration. Id. § 200.00(e).

In this case, Sherwin initially argues against the way in which the Grid was applied to him. He claims the ALJ erred in finding that he had a residual capacity to perform "sedentary" work. 20 C.F.R. § 404.1567(a) (1981). He says that constant pain in his hands or the drugs he had to take for pain relief rendered him completely disabled. We have reviewed the record, however, and find that we must reject this claim. The issue of pain was adequately explored by the ALJ; in light of the subjective nature of pain, we pay particular attention to his evaluation, see Gaultney v. Weinberger, 505 F.2d 943, 946 (5th Cir. 1974); and we have found more than enough evidence to support the ALJ's conclusion. Sherwin's own testimony, for example, indicates that he can use his hands for a wide variety of tasks (e.g., cooking, washing dishes, driving his car, shaving, buttoning his shirt), and that medication relieves his pain. His own doctor wrote that Sherwin was "disabled for his usual and customary type of work" as a forklift operator, but did not in any way indicate that Sherwin could not perform "sedentary" work. Another doctor noted that Sherwin could make a complete fist with his right hand, a partial fist with his left hand, that his grasp was "moderate and equal," and that he could "approximate his thumb to his finger slowly, but without any difficulty." Finally, while noting that Sherwin probably had some form of arthritis, "swelling sometimes in his hands," and "a little limitation of motion," the state's medical advisor testified that these conditions could go into remission, could be "treated" and "controlled for long periods of time," and did not then appear to be active in Sherwin's case.

Sherwin also argues that the side effects of the drugs that he used disabled him. He claims the ALJ should have explored this matter further. In fact, the ALJ asked Sherwin what the drugs did for him. Sherwin answered that they relieved the pain. He said nothing about side effects. Although the ALJ did not specifically refer to side effects, it is reasonable for the ALJ to assume Sherwin would have mentioned them had they been significant. Indeed, Sherwin did mention that he was taken off one drug because it bothered his stomach. Thus, the ALJ's determination that Sherwin possessed a "sedentary" residual work capacity is adequately supported. Consequently, the Grid directs a finding of "not disabled," Grid, Rule 201.24; it would do so even were Sherwin older or less well educated. See Grid, Rules 201.18, 201.23.

Sherwin's principal argument on appeal amounts to an attack on the Grid itself. We have previously upheld the Grid as a legitimate exercise of the general rulemaking authority granted to the SSA by 42 U.S.C. § 405(a). See Torres v. Secretary of Health and Human Services, supra. See also Santise v. Schweiker, 676 F.2d 925 (3d Cir. 1982); Cummins v. Schweiker, 670 F.2d 81 (7th Cir. 1982); Salinas v. Schweiker, 662 F.2d 345 (5th Cir. 1981) (Grid upheld as a valid exercise of administrative notice); Frady v. Harris, 646 F.2d 143 (4th Cir. 1981). But cf. Campbell v. Secretary of Health and Human Services, 665 F.2d 48 53-54 (2d Cir. 1981), cert. granted, --- U.S. ----, 102 S.Ct. 2956, 73 L.Ed.2d 1348, (1982); Hall v. Harris, 658 F.2d 260, 268 (4th Cir. 1981). The Grid represents an attempt to replace the live testimony of vocational experts, to "streamline" adjudication, and to achieve greater uniformity in the tens of thousands of disability cases heard each year. Cummins v. Schweiker, 670 F.2d at 83. This objective is reasonable given the fact that "(i)n fiscal 1976, for example, the agency's ALJs disposed of 180,000 cases; by contrast, during that same time period, only 130,000 civil and criminal matters were terminated by the entire Article III court system. Approximately 8,000 appeals were brought in 1978 from agency disability-related determinations to the federal district courts; this litigation 'constitute(d) the largest portion of the workload of the federal judiciary from federal agencies.' " Santise v. Schweiker, supra, 676 F.2d at 930, quoting Dobrowolsky v. Califano, 606 F.2d 403, 409 n.18 (3d Cir. 1979). See also K. Davis, 3 Administrative Law Treatise § 15.18 at 199 (1980). Moreover, since the issue at stake-the existence of jobs anywhere in the national economy-involves "legislative," not "adjudicative" facts, it seems well suited to agency rulemaking. K. Davis, 3 Administrative Law Treatise § 15.2 (1980). Promulgated after research, notice and...