Rescinded 1981
SSR 76-35c: Sections 216(i) and 223 (42 U.S.C. 416(i) and 423)—Disability Evaluation of Impairments—Combination of Impairments
20 CFR 404.1501
SSR 76-35c
York v. Secretary of Health, Education, and Welfare, U.S.D.C., N.D. Ill., No. 75 C 476 (10/24/75)
The plaintiff's claim for disability insurance benefits and a period of disability under sections 223 and 216(i) of the Social Security Act was denied by the Secretary. The claimant alleged that certain gunshot wounds had rendered him unable to engage in substantial gainful activity because they resulted in a hernia, paralysis of his right leg, headaches, and nausea. On appeal to the U.S. District Court, it was held, the alleged impairments, some of which (i.e., the hernia) were correctable through surgery, and others of which (i.e., the alleged paralysis, headaches and nausea) were not supported by clinical evidence, individually or in combination, were not sufficiently severe to prevent the claimant from engaging in substantial gainful activity. While the claimant suffered some limitation due to his injury, he retains the functional capability for light work. His age, education, and past work experience are consistent with the ability to perform such work.
LYNCH, District Judge:
Plaintiff brought this action pursuant to Section 405(g) of Title 42 of the United States Code seeking judicial review of a final decision of the Secretary of Health, Education and Welfare denying his claim for disability insurance benefits under 42 U.S.C. Section 423 and for a period of disability under 42 U.S.C. Section 416(i).
Plaintiff's original application was originally denied and was again denied on reconsideration by the Bureau of Disability Insurance of the Social Security Administration. An administrative law judge considered the case de novo and found that plaintiff was not under a disability. It is this decision which plaintiff now seeks to overturn. This Court must determine whether the decision of the Administrative Law Judge was supported by substantial evidence. The evidence before that judge can be summarized as follows.
Plaintiff's alleged disability stems from certain gunshot wounds suffered by him in 1969. Certain physical impairments are said to have resulted from these wounds including a hernia, a limp in one leg, headaches and vomiting. The Court will consider each one of the alleged impairments individually.
THE HERNIA
Plaintiff was shown to be suffering from a large ventral hernia. This fact was verified by three doctors. However, it must be noted that one doctor stated that he recommended to the plaintiff that he wear an abdominal support and defendant disregarded this recommendation although it should be noted that the doctor acknowledged that wearing support would be hot, uncomfortable and unsanitary.
Another doctor advised plaintiff to have his condition repaired surgically. Although plaintiff could apparently have had this done surgically without charge at Cook County Hospital due to his status as a public aid recipient, he declined to do so.
THE LIMP
Plaintiff asserts that he suffers from paralysis in his right leg. Although two doctors indicated that plaintiff walked with a limp, they stated that there was little indication of paralysis.
Clinical evidence indicated that signs of sciatica were present in plaintiff's right side leading to a reduced knee jerk and a slight atrophy of the calf in the plaintiff's right leg. Although one doctor felt that plaintiff could not stand and walk between six and eight hours a day, he stated that plaintiff could occasionally climb stairs or ladders, he could frequently lift up to ten pounds, and could reach overhead. Dr. Miller described plaintiff's condition as a "moderate disability from an orthopedic viewpoint."
It must be further noted that plaintiff had a 15 degree restriction in flexion and 5 degree restriction in rotation of his neck. Plaintiff also suffered form a 10 degree loss of flexion and 5 to 10 degrees loss of rotation in the thoracic lumbar area. There was minimal degenerative arthritis in the cervical spine.
HEADACHES and VOMITING
Evidence of these impairments was limited to plaintiff's complaints at the time of the hearing. He had also indicated to one doctor that he had suffered from nausea. There was some evidence to the effect that the gastro-intestinal problems were related to plaintiff's hernia condition.
PLAINTIFF'S EDUCATIONAL BACKGROUND AND WORKING EXPERIENCE
Plaintiff was born in 1927. He completed high school and attended classes in drafting at Cameron College.
Plaintiff worked as a pattern maker in the furniture industry from 1947 to 1965. His job involved knowing how to read blueprints and being able to draft patterns. From 1965 to 1966 he worked as a setup man in the furniture industry. From 1966 to 1973, plaintiff worked for a funeral home performing general maintenance work. Doctor Conte, one of the examining doctors, reported in November of 1973 that plaintiff had done some carpentry work around his house and that he did this work without any apparent problem.
To qualify for insurance benefits and a period of disability under Sections 423 and 416(i) of Title 42, an individual must show that he is under a "disability" as defined in the Social Security Act. Section 423(d)(1)(A) defines disability as the "inability" to engage in any substantial gainful activity by reason of any medically determinable physical . . .impairment." Section 423(d)(2) indicates that:
(A) an individual . . . shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he 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 work.
The burden of proof rests upon the plaintiff to establish that he is entitled to disability insurance benefits under the Social Security Act. Jerald v. Richardson, 445 F.2d 36 (7th Cir. 1971). The final decision of the Secretary in the instant case found that plaintiff had failed to meet this burden. This Court believes that there is substantial evidence to support that finding.
In the case of plaintiff's hernia, he has refused to take any remedial measures to alleviate the condition. He does not wear an abdominal support, as recommended, and he refuses to submit to corrective surgery. It is true that neither of these steps is completely attractive as they may fall short of a total panacea. However, some remedial action is called for and plaintiff's unwillingness to take any steps in this direction militates against his cause. A hernia has been held to be a remediable condition and does not necessarily entitle a claimant to disability benefits under the Act. Richardson v. Secretary of Health, Education and Welfare, 371 F.2d 542 (7th Cir. 1966). It has been held that if a claimant's impairment results from his wilful and unreasonable refusal to undergo treatment or corrective surgery, the presence of that impairment will not constitute a basis for the award of disability benefits. See Flynn v. Secretary of Health, Education and Welfare, 344 F. Supp. 94 (E.D. Wis. 1972) and McCarty v. Richardson, 459 F.2d 3 (5th Cir. 1972). The weight of the evidence supports the Secretary's conclusion that plaintiff's hernia is not totally disabling under the circumstances of this case.
Definite signs of sciatica and mild atrophy in plaintiff's right leg support the conclusion that plaintiff is suffering from certain restrictions of his physical capabilities. Nonetheless, plaintiff's condition was described by a doctor as a "moderate disability" and there was no indication that plaintiff had been totally disabled. The partial loss of functional use in a leg does not necessarily establish a disability. Workman v. Celebrate, 360 F.2d 877 (7th Cir. 1966).
Concerning plaintiff's claim of nausea and vomiting, there is evidence indicating that these physical reactions are related to plaintiff's hernia and the remarks previously made regarding the hernia are equally applicable here. There is no objective clinical evidence in the record that plaintiff's complaints of headaches amount to a condition which is so constant and severe as to amount to a disability which would prevent him from engaging in substantial gainful activity.
The Court finds that plaintiff's physical impairments, either individually or in combination, fail to establish a disability as defined in the Act. Bledsoe v. Richardson, 469 F.2d 1288 (7th Cir. 1972).
The conclusion reached by this Court is further supported by the evidence in the record concerning gainful activity engaged in by plaintiff following the onset of his physical impairments. It is undisputed that he engaged in substantial work for a period of four years following the shooting incident which gave use to his various impairments. This work demonstrates that plaintiff is capable of engaging in substantial gainful activity. Kutchman v. Cohen, 425 F.2d 20 (7th Cir. 1970); Breska v. Richardson, 346 F. Supp. 1150 (E.D. Wis. 1972). There is insufficient evidence to demonstrate that plaintiff's impairments have become progressively disabling so as to preclude all work.
Plaintiff's educational background, including the completion of high school and some drafting courses in college, indicate that he is not under a severe handicap in terms of literacy or job training. In the administrative proceedings, the Secretary took administrative notice of alternative modes of substantial gainful activity that plaintiff might engage in. It is proper for the Secretary to take such notice. Floyd v. Finch, 441 F.2d 73 (6th Cir. 1971). Although there was evidence that plaintiff may no longer be able to engage in strenuous activities, there is sufficient evidence to indicate that he could perform light carpentry work or other activities which do not require great amounts of physical exertion. The ability to engage in alternative forms of substantial gainful activity precludes a finding of "disability" under the Social security Act.
Based upon the preceding analysis, the decision of the Secretary of Health, Education and Welfare is affirmed.