Smith v. Schweiker

• Decision Date: 18 May 1984
• Docket Number: No. 82-3062,82-3062
• Citation: 735 F.2d 267
• Parties: , Unempl.Ins.Rep. CCH 15,326 Ray L. SMITH, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant- Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 267

735 F.2d 267

5 Soc.Sec.Rep.Ser. 272, Unempl.Ins.Rep. CCH 15,326

Ray L. SMITH, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant- Appellee.

No. 82-3062.

United States Court of Appeals Seventh Circuit

Argued June 6, 1983.

Decided May 18, 1984.

Jeanne Sathre, Carr, Korein, Kunin, Schlichter & Brennan, East St. Louis, Ill., for plaintiff-appellant.

Robert L. Simpkins, Asst. U.S. Atty., Frederick J. Hess, U.S. Atty., East St. Louis, Ill., for defendant-appellee.

Before BAUER and FLAUM, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

FAIRCHILD, Senior Circuit Judge.

This is an appeal from a district court judgment affirming a decision by the Secretary that claimant Ray Smith had ceased to be entitled to Social Security disability insurance benefits.

I.

On December 13, 1976, Smith fell and was hit by a rail car while working as a switchman in the Granite City Steel Works in Granite City, Illinois. Smith suffered a broken neck, a fracture and dislocation of the back, a broken clavicle, a collapsed lung, and multiple cuts and burns. He later developed a bleeding gastric stress ulcer and seizures.

Smith applied for and received disability insurance benefits from the date of his injury. In June 1980, the Social Security Administration (SSA) notified Smith of its determination that he had become able to do substantial gainful work in June 1979, and his entitlement to disability insurance benefits had ended in August 1979. ¹ Smith requested a hearing.

At the time of the hearing, June 25, 1981, Smith was 24 years old and had completed high school. Prior to his accident, he had been a physical laborer working among other jobs as a switchman and stock boy.

The medical evidence presented to the Administrative Law Judge (ALJ) established that Smith's spinal injury resulted in partial paralysis of the arms and legs. Smith has made a good partial recovery but continues to show neuromuscular limitations of the wrists, hands, legs, and feet. He has only trace response of the ulnar wrist flexors and extensors and marked weakness in the small hand muscles. Weakness is especially pronounced in the right hand. Smith has limited ability to extend his fingers or manipulate his thumb. In the legs, Smith exhibits restricted motion of the hips; he also suffers from spasms in his ankles. Smith has some general spasticity in the hands and feet, and some nerve damage. He has recovered enough from his injuries to walk without a cane though he requires bilateral ankle braces.

In the summer of 1978, Smith was examined by Dr. Ronald Hertel, a board certified orthopedic surgeon. Dr. Hertel's report noted atrophy of the musculature of both hands, and an absence of wrist and finger extensors. He also observed a nonunion of the right clavicle where the fracture occurred, but ruled treatment for that condition unnecessary.

Dr. Hertel felt that Smith's condition would permit his return to a light form of work. In November 1978, Dr. Franz Steinberg, the claimant's principal treating physician following his accident, and Dr. Lawrence Harmon both stated that Smith was a good candidate for vocational rehabilitation.

In 1979, Dr. Steinberg summarized Smith's condition for the Illinois Disability Determination Services. Dr. Steinberg indicated Smith continued to exhibit a moderate impairment of the hands, particularly the right hand, and of the wrists, as well as decreased sensation in those areas, though he had learned to compensate for these limitations. The doctor noted that Smith's walk still exhibited some "pelvic instability," and that he had a tendency to hyperextend the right knee. Smith could stand on his toes but was unable to stand on his heels or right leg. The doctor also noted that Smith suffered from chronic, fairly severe lower back pain, and had limited motion in that portion of his back. Dr. Steinberg concluded that Smith would be able to return to sedentary work if it did not involve any climbing or operation of foot controls nor a great deal of walking, bending, or stooping. The doctor stated that Smith was limited in use of his hands, though in a subsequent phone inquiry Dr. Steinberg indicated Smith's left hand was normal and his right hand could perform most fine and gross manipulations.

In a letter dated April 24, 1980, Dr. John Calvert, Medical Director for Granite City Steel, informed the Illinois Bureau of Disability Adjudication Services that the company had no jobs that Smith was capable of filling. Dr. Calvert concluded that even office jobs were inappropriate for Smith because "[t]he findings present in his right hand do not allow him to do any typing."

Smith was also examined in the summer of 1981 by a neurologist, Dr. Richard Sohn, who stated that the claimant's injuries make gainful employment "almost impossible." Dr. Sohn observed that impairment of the hands prevent Smith from easily handling paper, pencils, or hand controls and that spasticity in his legs make difficult repetitive movement of foot controls. Dr. Sohn concluded that Smith could only perform "work that required him to use his mind and dictate."

Smith testified before the ALJ that he had only 50 percent of a normal grip in his hands. He also stated that hand manipulations are generally difficult for him. He is able to straighten his index fingers sufficiently to do two-finger typing but any sustained writing or typing will cause his hands to cramp severely. Smith did say that he was able to drive a car. Smith testified that he is weak and unsure on his feet. In addition, he testified that he suffers from back and neck pain aggravated by prolonged sitting. On such occasions, Smith stated he must lie down to relieve the pain.

Smith further testified that his body has trouble adjusting to changes in temperature, causing muscle spasms and inducing seizures. The seizures are controlled somewhat by medication prescribed by Dr. Sohn.

Smith stated that exhaustion and pain would prevent his performing any job as a daily routine.

The ALJ found that Smith has a severe impairment which prevents his former work, but "does not preclude work of a sedentary nature"; that Smith's "pain is not so severe as to preclude sedentary work"; and that Smith's so-called "non-exertional neurological impairments and seizure disorder would not preclude sedentary work." He clearly implied a finding that Smith has the capacity to perform sustained sedentary work within the meaning of Section 201.00 of the Medical-Vocational Guidelines. See 20 C.F.R. pt. 404, subpt. P, app. 2, Sec. 201.00 (1983). Relying on that finding, he decided that in view of Smith's age, education, and work experience, Rule 201.27 of the Guidelines required a decision of "Not Disabled." See Appendix 2, Table No. 1, Rule 201.27.

The ALJ nowhere indicated how close Smith comes to possessing the capacity for sustained performance of a full range of sedentary work. It is clear, moreover, that Smith is not capable of performing a full range of such work. The issue here is whether the evidence supports putting Smith on the "grid" as having the residual functional capacity required for Table No. 1 to apply.

II.

As previously noted by this court, the determination of a disability under SSA's regulations involves a sequential evaluation. See Garfield v. Schweiker, 732 F.2d 605 at 607 n. 2 (7th Cir.1984); Wallschlaeger v. Schweiker, 705 F.2d 191, 196 (7th Cir.1983); Cannon v. Harris, 651 F.2d 513, 517 (7th Cir.1981). The ALJ found that Smith cleared all the initial hurdles including proof that a severe impairment had left him unable to perform past work. The burden then shifted to the agency to show the claimant retained the residual functional capacity to perform other work existing in the national economy. Wallace v. Secretary of Health and Human Services, 722 F.2d 1150, 1153 (3rd Cir.1983); Streissel v. Schweiker, 717 F.2d 1231, 1232 (8th Cir.1983); Van Horn v. Heckler, 717 F.2d 1196, 1198 (8th Cir.1983).

Since 1978 the Secretary has sought to meet this burden by relying in part on its Medical-Vocational Guidelines. See 20 C.F.R. pt. 404, subpt. P, app. 2 (1983). The Appendix 2 Guidelines indicate in grid form whether a significant number of jobs exist in the national economy for individuals with various impairments of physical capacity, ages, education, and work experience. See Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 1954-55, 76 L.Ed.2d 66 (1983). Where an individual's characteristics correspond to factors on the grid, the Guidelines direct a finding of disabled or not disabled.

The Guideline rules do not encompass the characteristics of every conceivable claimant but rather describe what the agency has determined to be major vocational and functional patterns. See 20 C.F.R. Sec. 404.1569 (1983). The Guidelines only apply when the claimant's vocational factors and residual functional capacity correspond with the criteria of a specific rule. Id.; Appendix 2, Sec. 200.00(d). See Campbell, 461 U.S. 458 at ---- n. 5, 103 S.Ct. at 1955 n. 5 ("the rules will be applied only when they describe a claimant's abilities and limitations accurately"). See also Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir.1984); Cannon, 651 F.2d at 517.

Smith's principal contention on appeal is that the Guidelines were improperly applied by the Secretary in this case given his unique physical limitations. The question for this court on review is whether substantial evidence in the record as a whole supports application of the Guidelines to Smith's claim of disability. See Strunk v. Heckler, 732 F.2d 1357 at 1359 (7th Cir.1984) (applying substantial evidence standard for review of Secretary's denial of disability benefits under Social Security Act).

In denying benefits to Smith, the ALJ relied upon Rule 201.27 which directs a finding of "not disabled" for an 18 to 44 year old, unskilled high school graduate capable of performing a range of "sedentary" ...