SSR 81-35c: SECTION 1614(a)(3) (42 U.S.C. 1382c(a)(3)) SUPPLEMENTAL SECURITY INCOME -- DISABILITY -- COMBINATION OF IMPAIRMENTS -- ABILITY TO DO LIGHT WORK
20 CFR 416.905(a) and 416.910(c)
STEPHENS v. HARRIS, 5th Circuit, Civ. No. 80-7057 (10/1/80)
- After the Social Security Administration denied the claimant's application for supplemental security income (SSI) benefits as a disabled individual, she was granted a hearing. The administrative law judge (ALJ) found that the claimant could not do her former job, but that she could do light work. The ALJ further determined that, under Rule 202.10, Appendix 2, Subpart I of Regulations No. 16, the claimant was not disabled and upheld the denial of her application. When the claimant filed an appeal, she argued that the ALJ's finding that she could do light work was improper because the ALJ had failed to hear evidence and to make findings regarding the exertional level of her former job. She asserted that the ALJ should have taken testimony from a vocational expert to determine what work she could do. She also contended that her hearing before the ALJ was conducted in a prejudicial manner because she was not represented by counsel. In affirming the ALJ's determination, the court found that there was substantial medical evidence in the record to support the finding that the claimant could do light work. Consequently, the court held that the ALJ's finding that the claimant could do light work was not refuted by the failure to make findings regarding the claimant's former job and that, under 20 CFR 416.905(a), the testimony of a vocational expert was unnecessary; further, the ALJ was not required to make findings as to specific jobs which the claimant could perform since the rules in Appendix 2, Subpart I of Regulations No. 16, incorporate a finding that jobs exist at the various exertional levels. Accordingly, the ALJ had the authority, under Social Security Administration regulations, to determine that the claimant was not disabled. The court further held that a review of the transcript showed that the ALJ had not conducted the hearing in an improper manner; therefore, the claimant was not prejudiced by lack of counsel.
In this social security disability claim, the administrative law judge found that the claimant (appellant) could no longer perform her former work, but that she was nevertheless capable of "light" work, and consequently found no disability. Appellant urges, inter alia, that because there were no findings as to the exertional level of her former work, the administrative law judge improperly found that she could perform "light" work. Because there is substantial medical evidence in the record to support the finding that appellant is presently capable of light work, we affirm.
Appellant left her job as a textile factory worker in April 1978 at the age of 53. One month later, she applied for disability benefits, alleging pain in her arms, neck, back, legs, and feet. Following denial of her claim by the Social Security Administration, she was granted a hearing by the Board of Hearings and Appeals. Based upon the testimony of appellant and the medical evidence in the record, the administrative law judge concluded that appellant was unable to work at her former job. He further found, however, that she retained capacity to perform "light" work, and, taking notice that such jobs exist "in significant numbers in several regions of the country," he concluded that appellant was not disabled.
We note at the outset that our review of the findings of the Secretary of Health and Human Services is quite limited. Our sole function is to determine whether there is substantial evidence in the record to support the conclusion of the Secretary. We may not independently weigh conflicting evidence or substitute our judgment for the judgment of the Secretary. Flowers v. Harris, 616 F.2d 776 (5th Cir. 1980); Fortenberry v. Harris, 612 F.2d 947 (5th Cir. 1980); White v. Harris, 605 F.2d 876 (5th Cir. 1979).
The burden is on the claimant to establish disability. If, however, the claimant proves that she is unable to perform her previous job, the burden shifts to the Secretary to show that the claimant is able to perform some other "substantial gainful activity," and that such jobs exist in significant numbers in the national economy. Flowers v. Harris, 616 F.2d 776 (5th Cir. 1980); Fortenberry v. Harris, 612 F.2d 947 (5th Cir. 1980); White v. Harris, 605 F.2d 876 (5th Cir. 1979). With these factors in mind, we examine the findings of the administrative law judge.
In February 1979 the Department of Health and Human Services adopted new Medical-Vocational Guidelines which provide a framework for determining disability of claimants who, although unable to perform past work, do retain some functional capacity. Application of the guidelines requires a determination of a claimant's age, education, skill level of past work, and "residual functional capacity" (categorized according to exertional capability as "sedentary," "light," or "medium"). The regulations contain a table for each category of residual functional capacity. Given the findings of age, education, and skill for a particular claimant, the table directs a finding either of disability or no disability. Because the administrative law judge found appellant to be capable of "light" work, her age to be "closely approaching advanced age," her education as "limited or less," and her previous experience as "unskilled," he applied Rule 202.10 of Table No. 2, which directed a finding of no disability.
Appellant does not challenge the administrative law judge's findings as to age, education, or skill. She does, however, object to the finding that she was capable of "light" work. In this case the determination of functional capacity was crucial; a finding that appellant was limited to "sedentary" work would have required the administrative law judge to apply Rule 201.09 of Table No. 1, which would hecessitate (sic) a finding of disability.
Appellant (sic) attacks the finding concerning functional capacity on several grounds. First, she asserts that the administrative law judge should have taken testimony from vocational experts in order to determine what kinds of work she could perform. We disagree. The regulations permit a determination of functional capacity on medical evidence alone. White v. Harris, 605 F.2d 867 (5th Cir. 1979); 20 C.F.R. § 416.905(a). We concluded that the medical evidence in the record, accompanied by the testimony of appellant at the hearing, is sufficient to support the finding of the administrative law judge that she was capable of "light" work as defined in the regulations, and thus, vocational evidence was not necessary.
Appellant next argues that she was prejudiced by lack of counsel. She contends that the administrative law judge conducted the hearing in a manner calculated to produce the basis for a denial of benefits, and that this would not have occurred had counsel been present. Claimants for social security disability benefits do not have an absolute right to be represented by counsel, however, and lack of counsel is not a ground for reversal unless actual prejudice is shown. Cross v. Finch, 427 F.2d 406 (5th Cir. 1970). Our review of the transcript does not reveal that the administrative law judge conducted the hearing in an improper manner, and thus, no prejudice resulted from appellant's lack of representation.
Appellant's most substantial argument concerns the failure of the administrative law judge to hear evidence and make findings regarding the exertional level of her former job, or to classify the work as "light," "moderate," etc. In her brief, appellant asserts that her former work must be classified as "light"; therefore, once the administrative law judge found that she was unable to perform her former work, there was no evidentiary basis to conclude that she could do other "light" work. Here, the record is not clear as to the exertional level of appellant's past job. Although we agree with appellant that generally it would be better practice for an administrative law judge to take testimony and make findings as to the former work, we do not believe that this inadequacy in the present record requires reversal. Whether appellant's former work should have been classified as "light," as she contends, or as "more than light and possible even approaching moderate," as the Secretary now argues, does not affect the uncontroverted medical evidence which indicates that appellant is presently capable of performing "light" work, as defined by the regulations. As noted above, there was substantial medical evidence in the record to support the finding of the administrative law judge. Accordingly, the administrative law judge was authorized under the new regulations to find no disability.
 The tables are contained in 20 C.F.R. Subpart I, App. 2.
 The uncontroverted medical evidence established that appellant has polymyalgia and polyarthritis, especially of the right arm and shoulder, but without severe limitation of motion. In addition, although appellant complained of pain in her hips and legs, there was not indication of any nerve root compression, swelling or circulatory insufficiency in the lower extremities. Appellant also is diabetic, but her diabetes is controlled by diet, and has not caused any organ damage. Finally, appellant was found to have high blood pressure and a heart murmur, but her hypertension was controlled with medication. There was no evidence of any organ damage from hypertension.
 "Light" work is defined in 20 C.F.R. § 416.910(c):
Light work. Light work entails lifting 20 pounds maximum with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be only a negligible amount, a job is in this category when it requires walking or standing to a significant degree, or when it involves sitting most of the time with a degree of pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, an individual must be capable of performing substantially all of the foregoing activities. The functional capacity to perform light work includes the functional capacity to perform sedentary work.
 Appellant contends that the administrative law judge was required to make findings as to specific jobs that appellant can perform. We disagree. That tables in Subpart I, App. 2 incorporate a finding of the numbers of jobs in the national economy, at the various exertional levels, so that a result of "no disability" in the table reflects an administrative finding that such jobs do exist. See 20 C.F.R. Subpart I, App. 2 Rule 200.00(b).
 The only evidence in the record concerning the exertional level of appellant's former job is appellant's own written description of her duties as a yarn winder in a textile mill. The administrative law judge did not ask her any questions at the hearing regarding her duties in her former job.