Waite v. Bowen, 86-2214

• Decision Date: 08 April 1987
• Docket Number: No. 86-2214,86-2214
• Citation: 819 F.2d 1356
• Parties: , Unempl.Ins.Rep. CCH 17,373 Roger WAITE, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary, Department of Health and Human Services, Defendant- Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1356

819 F.2d 1356

18 Soc.Sec.Rep.Ser. 5, Unempl.Ins.Rep. CCH 17,373

Roger WAITE, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary, Department of Health and Human

Services, Defendant- Appellee.

No. 86-2214.

United States Court of Appeals,

Seventh Circuit.

Submitted April 8, 1987. ^*

Decided April 30, 1987. ^**

Opinion May 28, 1987.

As Amended June 1, 1987.

Kim R. Genich, Madison, Wis., for plaintiff-appellant.

Donna Morros Weinstein, Chief Counsel Reg. V. Dept. Health and Human Services, Chicago, Ill., for defendant-appellee.

Before CUMMINGS, WOOD, and COFFEY, Circuit Judges.

CUMMINGS, Circuit Judge.

Roger Waite appeals the district court's judgment upholding the decision by the Secretary of Health and Human Services in which Waite was denied Social Security benefits. Waite challenges the Secretary's decision that he does not suffer an impairment that meets or equals one listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. He also challenges the Secretary's conclusion that he is able to do some light and sedentary work with his limitations. Waite also argues that he has newly discovered evidence which warrants a remand for further consideration. We affirm.

I.

Waite, a thirty-eight-year-old former truck driver who has earned a general education diploma, was injured in a motorcycle accident on September 9, 1983. His injuries included a broken left leg, a dislocated left wrist, and a left temporal hematoma, all of which required surgery. His most serious injury, however, was to the nerve network in his left arm which left it completely and permanently paralyzed.

Waite was released from the hospital on December 29, 1983, walking with the use of a cane. An examination in February 1984 showed nearly complete recovery from all injuries except the left arm paralysis accompanied by some pain. It also revealed that his leg had essentially healed and that he had a full range of motion of the hip and knee. The report indicated that Waite was able to walk without a cane, although he was using one for additional stability.

Waite applied for benefits, and a hearing was held before an Administrative Law Judge (ALJ) on April 26, 1984. Waite testified that he had not worked since the accident and his daily activities were limited to watching television, reading, and visiting friends. He complained of pain in his paralyzed left arm and of occasional headaches. He also stated that he felt no pain in his leg, but that there was some stiffness. After the hearing, the ALJ received additional evidence, including a report of a vocational expert. The expert reported that someone with Waite's impairments, background, and education could perform certain light and sedentary occupations such as a retail sales clerk, a telephone operator, a ticket agent, a self-service gas station attendant, a crossing guard, and a security guard/doorkeeper.

The ALJ concluded in a written opinion on June 17, 1985 that Waite was not disabled within the meaning of the Act. The ALJ reasoned that Waite's impairment did not meet or exceed one of the list of specific impairments and that he was able to perform other work within the economy. Waite appeals, arguing that his impairments did meet certain listings or their equivalents and that the ALJ's analysis of his residual functional capacity was not supported by the record. He also alleges that newly discovered medical evidence demonstrates that he continues to suffer leg limitations, pain, and headaches so that the case should be remanded to the Secretary for reconsideration.

II.

Waite submits that he met the listed impairments of section 1.13 which requires benefits to be awarded for "soft tissue injuries of an upper or lower extremity requiring a series of staged surgical procedures within 12 months after onset for salvage and/or restoration of major function of the extremity, and such major function was not restored or expected to be restored within 12 months after onset." 20 C.F.R. Part 404, Subpart P, Appendix 1, Sec. 1.13. Waite argues that the "thrust" of listing 1.13 is the loss of the major function of an extremity which was not restored or expected to be restored within 12 months, and that he qualified under this listing because he permanently lost the use of his left arm. In support, Waite cites a letter from one of his treating physicians expressing the opinion that his impairments met listing 1.13.

We initially note that an ALJ is not bound by a doctor's conclusion that a claimant is "disabled" because he meets the requirements of a certain listing. See Garrison v. Heckler, 765 F.2d 710, 713 (7th Cir.1985); 20 C.F.R. Sec. 404.1527 (physician's conclusions not dispositive). Moreover, we disagree with Waite's interpretation of listing 1.13. First, a different listing directly addresses the loss of function of an extremity. Section 1.09 involves the loss of function due to neurological deficits, and for benefits it requires the loss of both hands, both feet, or one hand and one foot. Waite's interpretation of listing 1.13 would place it in conflict with listing 1.09 because a claimant who has permanently lost the use of an extremity would qualify for benefits under listing 1.13, but he would not meet the more specific requirements of listing 1.09. Likewise, Waite's reading of the regulations would make the two listings duplicative because a claimant paralyzed in two extremities would qualify under both listings. We do not think such anomalous results were intended.

Instead, listing 1.13 clearly requires the imposition of a series of surgical procedures to restore major function of the extremity. Despite the lack of any decision interpreting this regulation, we agree with the district court and the Secretary's interpretation of this listing: it is directed at the loss of the use of one extremity, not in itself disabling under the regulations, where restoration of function will require repeated staged surgical procedures over a lengthy period, thus making an individual who would otherwise be capable of substantial gainful employment unavailable for work because of these repeated surgical procedures. This interpretation is supported by the phrases "staged surgical procedures" for "salvage and/or restoration." Under Waite's interpretation, this language would be unnecessary. If the regulations, as Waite claims, were intended to grant benefits to one who has lost the use of an extremity for twelve months or more, then the wording of the listing would have been that simple. Because Waite did not undergo a series of operations to restore the function of his left arm (everyone agreed at the outset that it was permanently lost), he did not meet the requirements of listing 1.13.

III.

Waite claims that the ALJ erred in deciding whether his impairments were medically equivalent to a listed impairment, in violation of 20 C.F.R. Sec. 404.1526. He first argues that the ALJ failed to consider whether his impairments were medically equivalent to any of those listed. In his findings, however, the ALJ stated, "The medical evidence establishes that the claimant has a loss of motor and sensory function of the left arm, but he does not have an impairment, or a combination of impairments listed, or medically equal to one listed in Appendix 1, Subpart P, of Social Security Regulations No. 4." (emphasis added). This is sufficient articulation to demonstrate that the ALJ considered the issue of medical equivalence. See Stephens v. Heckler, 766 F.2d 284, 287-88 (7th Cir.1985).

Waite also contends that the ALJ did not attempt to secure the opinion of one or more physicians designated by the Secretary to determine medical equivalence, contrary to the requirements of 20 C.F.R. Sec. 404.1526(b). Yet the record contains an opinion of a state agency physician that the severity of Waite's impairments did not meet or equal any of the listings. Waite argues that this opinion was premature and therefore did not support the ALJ's conclusion because it was made on November 11, 1983, before much of the medical evidence existed. Nevertheless, the record reveals that the state agency reaffirmed its opinion on February 1, 1984 after reviewing the entire files of Waite's medical history. Hence, this argument is without merit.

Waite alleges that the record does not support the ALJ's conclusion that his injuries did not equal the listed impairments in section 1.13 or section 11.08. If the record as a whole contains substantial evidence to support the ALJ's factual determinations, however, then we must affirm unless there has been an error of law. Orlando v. Heckler, 776 F.2d 209, 213 (7th Cir.1985).

We have already demonstrated why Waite's injuries did not equal listing 1.13 because it requires a series of operations to restore an impaired limb, and Waite had no such operations. Moreover, the purpose of listing 1.13 is to allow a period of recovery for surgical restoration of an impaired limb, the functional loss of...