Thomas v. Schweiker

• Decision Date: 04 February 1982
• Docket Number: No. 81-1333,81-1333
• Parties: Mary E. THOMAS, Plaintiff-Appellant, v. Richard SCHWEIKER, Secretary, Health and Human Services, Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 999

666 F.2d 999

Mary E. THOMAS, Plaintiff-Appellant, v. Richard SCHWEIKER, Secretary, Health and Human Services,

Defendant-Appellee.

No. 81-1333

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Feb. 4, 1982.

Dick Alcala, San Angelo, Tex., for plaintiff-appellant.

Clinton E. Averitte, Asst. U. S. Atty., Lubbock, Tex., for defendant-appellee.

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

Before CLARK, Chief Judge, RUBIN and SAM D. JOHNSON, Circuit Judges.

PER CURIAM:

Mary E. Thomas appeals a judgment of the district court affirming the Secretary of Health and Human Services determination that she is ineligible for supplemental security income benefits. Thomas has no quarrel with the Secretary's conclusion that, despite her illnesses, she has the strength to perform sustained sedentary work. She asserts that the Secretary's error was in failing to appreciate that her respiratory affliction precludes her from taking those sedentary jobs which demand a tolerance for dust, heat, and fumes. We agree with Thomas. Accordingly, we reverse the judgment of the district court and remand this case with instructions that it be returned to the Secretary for further proceedings consistent with this opinion.

I.

There is no dispute over the essential facts. Thomas is forty-eight years old, has a sixth grade education, and no vocational skills. Though in years past she was employed as a domestic, she has since mid-1979 not engaged in work beyond maintaining a home for her two minor children. Her ailments are tied to her obesity-at 5'2 she weighs in excess of 240 pounds-and her smoking habit. Thomas has been hospitalized at least twice since July 1979; her attending physicians have consistently diagnosed chronic respiratory impairments. Thomas first applied for supplemental security income disability benefits in August 1979. ¹ Her application was denied, both on initial review and on reconsideration, after a physician and a disability examiner evaluated the evidence and determined that she is not disabled within the meaning of section 1614 of the Social Security Act (the Act), 42 U.S.C. § 1382c. She then requested and received a hearing de novo before an administrative law judge (ALJ) of the Social Security Administration. The ALJ found that, although Thomas cannot return to her previous employment, she retains the capability to perform sedentary work. The ALJ took administrative notice of Social Security Administration regulations which indicate that work exists in the national economy for people of Thomas' age, education, work experience, and limitation to sedentary work, and concluded on the strength of these that Thomas is not disabled.

Thomas sought review of the ALJ's recommended decision before the Appeals Council. Review was denied, making the decision of the ALJ the final ruling of the Secretary of Health and Human Services. On appeal to the district court under section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), the Secretary's decision was upheld as supported by substantial evidence. This appeal followed.

II.

A.

We note at the outset the confined sphere within which we may conduct our review. Section 205(g) restricts our review, as it restricted that of the district court, ² to determining whether the record as a whole contains substantial evidence supporting the Secretary's findings. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Millet v. Schweiker, 662 F.2d 1199 (5th Cir. 1981). Substantial evidence is simply such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Anderson v. Schweiker, 651 F.2d 306, 308 (5th Cir. 1981).

As limited as the statutory scope of review may be, the parties have in this case narrowed it still further. Thomas raises only a single issue on appeal. She claims that the same proof which showed her inability to return to her previous employment, because of a reduced capacity for sustained exertion, also shows that she is unable to do certain types of work within her exertional capacity because she cannot tolerate the environment in which the work must be performed. She argues, in essence, that the Secretary failed to meet his burden of proving that there is other substantial gainful employment activity in the economy which she can perform. ³ Her contention requires a review of the record developed at the administrative hearing.

B.

At her hearing, Thomas testified that she has difficulty in breathing, coughs and chokes often, and has asthmatic attacks of five to fifteen minutes duration several times a day. She cooks, grocery shops, and does housework, all the while interspersing her periods of activity with frequent rest breaks, and at one point attempted to paint her apartment. The latter effort resulted in her January 1980 hospitalization for asthmatic bronchitis aggravated by toxic fumes. Medical evidence was also introduced at the hearing. In substance, it indicated that three physicians had found Thomas to be afflicted with chest pains, shortness of breath, a nonproductive cough, and bilateral and symmetric inspiratory and expiratory wheezes. Two of the doctors diagnosed chronic asthmatic bronchitis; the third found aggravated emphysema. Certain clinical findings pointed to the possibility of an incipient heart impairment; those symptoms did not regularly appear, however, and only one of the three doctors diagnosed pulmonary disease.

The ALJ found that Thomas is afflicted with asthmatic bronchitis, obstructive pulmonary disease, and obesity. He found not wholly credible her testimony as to the severity of her pain and functional limitations; it appears that this discreditation rested at least in part on Thomas' concurrent testimony that she is able to keep house, albeit at a slow pace. The ALJ concluded that, despite the opinions of two of Thomas' treating physicians that she is completely disabled, both the clinical findings underlying the medical opinions and Thomas' own testimony indicated that while Thomas cannot return to her previous employment as a domestic, she is capable of maintaining sustained exertion equivalent to that required of sedentary work. ⁴

The conclusion that Thomas is capable of sedentary work did not, of itself, dictate a determination that she is not disabled within the meaning of the Social Security Act, 42 U.S.C. 1382c(a)(3). ⁵ The Act provides that a determination of disability can be made only upon consideration of whether the claimant's age, education, and work experience, combined with her reduced functional abilities, would make her ineligible for any other kind of substantial gainful work existing in the national economy. 42 U.S.C. § 1382c(a)(3)(B). The ALJ took these additional factors into consideration by reference to the Secretary's Medical-Vocational Guidelines, 20 C.F.R. Subpart P, App. 2 §§ 200.00-204.00 (1980).

The Medical-Vocational Guidelines set forth rules governing disability determinations in commonly-encountered patterns of functional and vocational limitations. The rules are organized in three Tables, each dealing with a different level of residual exertional capacity. The separate rules consider varying combinations of age ranges, educational levels attained, and job skills exemplified by previous employment, and direct, based on those four factors, a finding of disability or nondisability. See Salinas v. Schweiker, 662 F.2d 345 (5th Cir. 1981); Perez v. Schweiker, 653 F.2d 997 (5th Cir. 1981). Table 1 provides the rules for claimants found capable of performing sedentary work as defined by 20 C.F.R. § 404.1510(b). Based on his findings that Thomas, under fifty years of age, was a younger individual as defined by 20 C.F.R. § 404.1506(b), that she had a limited education as defined by 20 C.F.R. § 404.1507(d) and that she had been an unskilled worker as defined by 20 C.F.R. § 404.1511(b), the ALJ determined that Rule 201.18 of Table 1 applied and directed a conclusion of "not disabled." ⁶

Thomas does not dispute the four findings of residual exertional capacity, age, education, and job skill level on which the ALJ's finding of nondisability was predicated. Nor does she argue that reliance on the guidelines is insufficient to satisfy the Secretary's burden of proof where the four factors on which they are based coincide precisely with the considerations relevant to disability presented by the claimant's situation. ⁷ Rather, she argues that the ALJ erred in defining her disability as one which manifested itself only in limitations on her exertional capacity. Thomas contends that the very nature of her ailment, chronic impairments of her respiratory processes, imposes, in addition to exertional limitations, restrictions on the environment in which she is able to work. In other words, although she agrees that she is able to do sedentary work, she asserts that she can perform sedentary work only in an environment free of dust, excessive heat, and toxic fumes. It is Thomas' position that application of the Guidelines is not appropriate where the considerations relevant to disability presented by the claimant's situation include a limitation not taken into account by the Guidelines, and that the environmental restriction which she claims that her ailment imposes is just such an additional limitation. We agree.

Recent opinions of this Court establish that use of the Guidelines is inappropriate where their evidentiary underpinnings do not coincide exactly with the evidence of disability appearing on the record. Millet at 1204; Perez at 1001; accord Ferguson v. Schweiker, 641 F.2d 243, 247 (5th Cir. 1981). The Secretary's regulations directing proper use of the Guidelines explicitly state that the Guidelines do not take into consideration nonexertional limitations on the type of work which the claimant could perform, and caution that the guidelines should not be considered determinative in,...