SSR 82-34c: SECTIONS 216(i) and 223(d) (42 U.S.C. 416(i) and 423(d)) DISABILITY INSURANCE BENEFITS -- INABILITY TO PERFORM PREVIOUS WORK -- ADMINISTRATIVE NOTICE OF THE EXISTENCE OF OTHER WORK

20 CFR 404.1503-404.1513[1]

SSR 82-34c

Boyce v. Harris, 492 F.SUPP. 751 (USDC, South Carolina 1980), New v. Harris, 505 F.SUPP. 721 (USDC, S.D. Ohio, E.D. 1980), and Turner v. Harris, USDC, C.D. California, Civ. No. CV80-1117-LTL(P) (1/8/81)

The plaintiff, in Boyce, who was born in 1943 and has a ninth-grade education, applied for disability insurance benefits in March 1978, alleging that he has been unable to work since January 1978. Although the plaintiff has had three back operations and was unable to perform his former job, the evidence of record showed that the plaintiff had recovered sufficiently by June 1978 to perform light work. When the Social Security Administration (SSA) determined, under its vocational factors regulations, that the plaintiff was not disabled and denied his application, the plaintiff appealed. Although the plaintiff's impairment prevented him from returning to his former job, the court found that the vocational factors regulations permitted SSA to consider the plaintiff's age, education, work experience, and residual functional capacity in determining whether he could perform other work. As part of the process of adopting these regulations, SSA had taken administrative notice of the existence of numerous unskilled light and sedentary occupations in the national economy. On that basis, SSA concluded that the plaintiff could perform any of 1600 unskilled light and sedentary occupations in the national economy. In affirming SSA's determination that the plaintiff was not disabled, the court upheld the vocational factors regulations and held that SSA had complied with them. The court further held that SSA's application of the vocational factors regulations to the facts in the plaintiff's case supported its decision that the plaintiff could do various unskilled entry-level jobs and that because this decision was supported by substantial evidence, testimony from a vocational expert was unnecessary.
(Similar conclusions were reached in New v. Harris, 505 F.SUPP 721 (USDC, S.D. Ohio, E.D. 1980) and in Turner v. Harris, USDC, C.D. California, Civ. No. CV80-1117-LTL(P) (1/8/81), and this ruling is based on those two decisions as well as the Boyce case. The New and Turner decisions appear immediately after the Boyce decision. Ed.)

CHAPMAN, District Judge:

The plaintiff brought this action pursuant to Section 205(g) of the Social Security Act, as amended (42 U.S.C. 405(g)), to obtain judicial review of a final decision of the Secretary of Health, Education, and Welfare, denying his claim for disability insurance benefits under Title II of the Social Security Act.

The plaintiff filed an application for a period of disability and for disability insurance benefits on March 31, 1978, alleging that he became unable to work on January 7, 1978. The application was denied initially and on reconsideration by the Social Security Administration. On February 15, 1979, the plaintiff requested a hearing. The administrative law judge, before whom the plaintiff, his counsel and a witness appeared, considered the case de novo, and on May 29, 1979, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended. The administrative law judge's finding became the final decision of the Secretary of Health, Education and Welfare, when it was approved by the Appeals Council on August 23, 1979.

The only issue before the Court is whether the final decision of the Secretary is supported by substantial evidence. Substantial evidence is defined as that evidence which a reasonable mind would accept to support a particular conclusion. It is more than a mere scintilla but may be somewhat less than a preponderance. Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966); Thomas v. Celebrezze, 331 F.2d 541 (4th Cir. 1964).

"Disability" is defined by the Social Security Act as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months," 42 U.S.C. 423(d)(1)(A).

The Court in Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972), stated:

The scope of judicial review by the federal courts is specific and narrow under §205(g) of the Act. That section provides that '. . . the findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . .' The fact that the record as a whole might support an inconsistent conclusion is immaterial, for the language of § 205(g) precludes a de novo judicial proceeding and requires that the court uphold the Secretary's decision even should the court disagree with such decision as long as it is supported by 'substantial evidence.'

Effective February 26, 1979, the Secretary has promulgated new regulations, 20 C.F.R. §§ 404.1502 to 1513 and Subpart P, App. 2 (1979), to consolidate and elaborate upon long standing medical-vocational evaluation policies for adjudicating disability claims in which an individual's age, education, and work experience must be considered in addition to the medical experience. 43 Fed.Reg. 55,349 (1978). The new regulations define each factor to be considered in determining whether disability exists. 20 C.F.R. §§ 404.1505 to 1511. More importantly, they direct a finding of disability or no disability where the findings of fact in a particular case coincide with the criteria established in the rules and tables of Subpart P, Appendix 2. 20 C.F.R. § 404.1513.

It is the duty of this Court to give careful scrutiny to the whole record to assure that there is a sound foundation for the Secretary's findings, and that his conclusion is rational. Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964).

This Court is empowered to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing.

This gentleman was born on March 23, 1943, and was 36 years old at the time of his hearing. He is married with two children, ages 15 and 18, has a ninth-grade education and has worked in textiles primarily as a loom fixer. The plaintiff testified that he had to quit work because of severe pain and that he has trouble walking. He was receiving benefits from workmen's compensation for an injury he received in 1971 when he slipped on a patch of oil. He has not worked since 1978.

The Secretary has adopted the findings of the administrative law judge, who concluded:

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4. That the claimant has had 3 back operations, the most recent in January 1978 when a laminectomy and spinal fusion was performed, and post-operatively had recovered sufficiently by June 1978 to perform light work.
5. That the medical evidence does not document impairments of incapacitating proportions, i.e., ones which would produce pain of such intensity that the ordinary physical activity necessary to perform light work would be impossible or contraindicated.
6. That the evidence in the record fails to show that the claimant has an anatomical or physiological condition which was demonstrated by reports of physicians that were supported by medically acceptable clinical and laboratory diagnostic procedures such as show the claimant to be under a disability within the meaning of the Social Security Act.
7. That the evidence does not demonstrate that the claimant at any time through the date of this decision was unable to engage in any substantial gainful activity because of a medically determinable impairment or combination of impairments which had lasted or can be expected to last for 12 months or end in death.
8. That the claimant is unable to perform his former job of loom fixer in the titles industry.
9. That the claimant has the residual functional capacity for light work as defined by Section 404.1510(c) of Subpart P, Regulations No. 4.
10. That the claimant is "a younger individual", as defined by Section 404.1506(b) of Subpart P, Regulations No. 4.
11. That the claimant has an 8th grade education, which is defined as a "limited education" by Section 404.1507(b) of Subpart P, Regulations No. 4.
12. That the claimant is able to perform "unskilled" work, as defined by Section 4044.1511(b) of Subpart P, Regulations No. 4.
13. That the claimant's job as a loom fixer imparted to him no skills that are readily transferable to jobs other than those that he previously held, as provided in Regulation 404.1511(e) of Subpart P, Regulations No. 4.
14. That Section 404.1513 and Rule 202.17, Table No. 2 of Appendix 2, Subpart P, Regulations No. 4, requires that the claimant, considering his maximum sustained work capacity, age, education, and work experience, be found "not disabled."

On June 6, 1974, the plaintiff underwent surgery for a herniated nucleus pulposus.[1] A partial hemilaminectomy[2] was performed at L-4. The plaintiff continued to complain of pain following the surgery and a lumbar myelogram performed by Dr. Max Ken (an orthopedic surgeon) on November 25, 1977, revealed that he was suffering from a herniated disc. On January 14, 1978, Dr. Kent performed a lumbar laminectomy and a bilateral lateral transverse process spinal fusion at L-4 to S-1. Herniated discs at L-4, L-5 and L-5, S-1 were removed.

The plaintiff's postoperative course was satisfactory. On January 31, 1978, Dr. Kent reported that the plaintiff was having no further pain in his legs but was experiencing minimal back pain. On March 31, 1978, Dr. Kent reported that the plaintiff was still having some discomfort in his back but that his legs were markedly improved.

On June 15, 1978, Dr. William B. Jones, an orthopedic surgeon, examined the plaintiff and found that he was not totally disabled and he would be better off performing a variety of gainful employment tasks rather than sitting home. It was Dr. Jones' opinion that the plain tiff was disabled from working as a loom fixer, but could perform standup jobs such as a service station attendant or bench work standing up and lifting weights of 25 to 30 pounds.

The determination that the plaintiff was unable to return to his customary work shifted to the Secretary the burden of establishing that the plaintiff had sufficient capacity to engage in a specific job which exists in the national economy. Taylor v. Weinberger, 512 F.2d 664 (4th Cir. 1975).

In Taylor v. Weinberger, supra, the Fourth Circuit Court of Appeals expressly rejected the contention that the Secretary may establish vocational ability solely by administrate notice or medical evidence.

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There is indication in the testimony that the plaintiff's back was healing slowly, but the same doctor indicated that the pain resulting from this condition was minimal and that neither the pain nor the back condition prevented plaintiff from engaging in substantial gainful activity.

The underlying rationale of Taylor v. Weinberger seems to have been made obsolete by the new Vocational Factors Regulations 20 C.F.R. §§ 404.1503-404.1513. It is the obvious purpose of these regulations to allow the Secretary to make findings of disability or lack of disability based on certain specific criteria including age, educational level, degrees of work experience and residual functional capacities. One purpose of these regulations is to allow the Secretary to decide cases more promptly and without the necessity of hearing from a vocational expert in every case in which the claimant cannot return to former employment because of physical limitations.

In adopting these regulations the Secretary has taken notice that there are at least 200 separate unskilled sedentary occupations, some 1600 unskilled light and sedentary occupations and some 2500 unskilled medium, light sedentary occupations in the national economy. The words "sedentary", "light" and "medium" are specifically defined in 20 C.F.R. § 404.1510. The physical exertion required for these jobs, whether or not the employee must walk, stand or remain seated and other facts relating to the employment have been taken into consideration in arriving at the new regulations. The record reflects that the Secretary has complied with the regulations and made the necessary findings to support his decision that the plaintiff was able to perform various unskilled, entry-level jobs. This decision is supported by substantial evidence and, therefore, the decision of the Secretary must be affirmed and the Clerk of Court shall enter judgment in favor of the defendant.

AND IT IS SO ORDERED.

DUNCAN, District Judge.

Plaintiff Leonard New brings this action under 42 U.S.C. § 405(g) and § 1383(c)(3) for review of a final decision of the Secretary of Health, Education and Welfare (now Secretary of Health and Human Services) denying his applications for social security disability insurance and supplemental security income benefits. This matter is before the Court on the cross-motions of the parties for summary judgment.

Plaintiff filed his application for disability insurance benefits on February 23, 1978 alleging that he became disabled in 1971, at age 35, by black lung trouble, ulcers, and a nervous condition. Plaintiff filed his application for supplemental security income benefits on March 2, 1978. Both applications were denied initially and upon reconsideration by the Bureau of Disability Insurance of the Social Security Administration. Plaintiff requested a hearing before an administrative law judge.

On June 14, 1979 plaintiff, who was not represented by counsel, appeared and testified at the hearing. On July 23, 1979 the administrative law judge issued a decision finding that Mr. New is not disabled within the meaning of the Act. On January 15, 1980 the Appeals Council denied plaintiff's request for review and adopted the administrative law judge's decision as the final decision of the Secretary of Health, Education and Welfare.

The facts of record are fully and fairly set out in the administrative law judge's July 23, 1979 decision which is incorporated herein by reference.

Plaintiff Leonard New was born June 23, 1936. He has a seventh grade education. He has worked as a construction laborer, bulldozer operator, mechanic, service state attendant, and loader operator.

Plaintiff testified that his most serious problem is with his lungs. He said that Dr. Jindra told him that he had only 45 percent air capacity in his left lung and that he was permanently and totally disabled for the rest of his life because the condition would not improve and there was nothing he could do for it. Plaintiff said that he has a strangling sensation in his lungs and a cough.

Mr. New also testified that he has constant pain and hurt in his back and legs. He said that he gets muscle spasms. He takes Talwin as needed for the pain because, he testified, "I don't like to fool with drugs." He takes maybe one or two Talwin tablets then goes two or three days without any paid medication, "and then I'll start hurting real bad again, and then I'll take another one." He said that the Talwin "eases things off . . . it still hurts, but it don't hurt as bad."

Plaintiff testified that he had suffered from an ulcer condition in the past. He no longer takes prescribed medication for his ulcers. He does sometimes take Tums. Plaintiff has some loss of hearing in his right ear and fluid in the ear. But he no longer takes the prescribed drops for the ear because when they get on his neck they burn. Plaintiff testified that he is bothered by nerves. He takes one or two Valium, 5 mg. a day. They clam him down and relax him (which helps with the pain).

Plaintiff testified that during a typical day he gets up at dawn and dresses. He watches T.V., then goes outside and sits around. He drives to the store once a day and visits a neighbor. He said that he doesn't help his wife much around the house, except to pour gasoline out of the truck for the lawnmower and to sometimes screw a loose know back on a cabinet or perform a similar chore.

Plaintiff estimated that he could sit only about 30 minutes then his legs would get numb and his back would hurt so much that he would have to get up. He thought he could stand for only about 10 minutes because his lets start hurting, and they shake. He believed that he could walk about 200 feet, then he would be completely out of breath and his legs would be tired. When going up and down stairs his knees buckle. Plaintiff estimated he could lift 25 to 30 pounds.

On September 15, 1978 Dr. Louis J. Jindra reported that he had first examined Mr. New on May 10, 1978. Plaintiff suffers from dyspnea. Dr. Jindra diagnosed chronic bronchitis, emphysema, and exogenous obesity. On March 28, 1978 Dr. R.C. Estrada examined plaintiff at the request of the Secretary. He reported that he smoked one to two packs of cigarettes a day. He was 70« inches tall and weighed 228 pounds. He had an increased AP diameter of his chest. On examination, Dr. Estrada heard occasional rhonchi, but no rales. An x-ray was interpreted to show no active pulmonary infiltrate. There was evidence of chronic lung disease and fibrotic changes and fibronodular old granulomatous lesions of both lung fields. Pulmonary function studies reported plaintiff's height as 70« inches, his FEV1 as 2.13 liters, and his MVV as 103 liters. Dr. Estrada stated that these values indicated the presence of a combined restrictive and obstructive pulmonary disease.

During an April 6, 1979 hospitalization, plaintiff reported a history of 35 years of smoking two packs of cigarettes a day. He was also treated for tuberculosis in 1973. The hospital report states that plaintiff becomes short of breath on exertion after walking 100 yards. On physical examination he had a mildly increased AP chest diameter. Diffuse sibulant and sonerous rhonchi were heard on ausculation together with a prolonged expiratory time on the fourth expiration.

Although plaintiff complains of back and leg pain, the medical evidence of record indicates that he suffers from lumbosacral strain. Dr. Estrada reported that a neurological examination was negative. There wa no evidence of muscle spasm. Straight leg raising was negative. Plaintiff had a reasonably good range of motion in his lumbar spine. He was able to walk on his heels and toes. Plaintiff's treating orthopedic physician, Dr. Richard M. Ward, had plaintiff hospitalized on April 6, 1979 at the Riverside Methodist Hospital for evaluation of his low back. An examination failed to disclose any objective evidence of a serious back disorder. The height and alignment of his lumbar vertebral bodies was normal. The posterior elements were normal. On examination, there was only very mild tenderness to palpation over the lumbosacral spine area at L-3 to L-5. There was no tenderness of the paraspinal muscles. Dr. Ward ruled out a herniated nucleus pulposus.

[1] This Court's review of the decision of the Secretary is limited to a determination of whether her findings are supported by substantial evidence. 42 U.S.C. § 405(g). Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); LeMaster v. Weinberger, 533 F.2d 377, 339 (6th Cir. 1976). It is not the Court's function to resolve conflicts in the evidence or to determine issues of credibility. This is solely the province of the Secretary. Wokojance v. Weinberger, 513 F.2d 210 (6th Cir. 1975). Pain alone may be disabling, but the Secretary is not required to fully credit a claimant's subjective complaints of pain and discomfort if there is not "an underlying medical basis" for them. McCann v. Califano, 621 F.2d 829, 832 (6th Cir. 1980); Hephner v. Mathews, 574 F.2d 359, 361-362 (6th Cir. 1978).

Plaintiff moves for summary judgment and remand on the grounds that (1) the administrative law judge erred in his evaluation of plaintiff's nervousness; (2) the administrative law judge erred in his finding that plaintiff's lack of regular usage of pain medication demonstrated that his pain was not disabling; and (3) the Secretary failed to meet his burden of demonstrating that plaintiff can perform substantial gainful work in his lessened capacity.

The administrative law judge's decision notes that Dr. Jindra diagnosed only chronic bronchitis, emphysema, and exogenous obesity and did not mention plaintiff's nervousness. The questionnaire sent to Dr. Jindra did not specifically ask him for information concerning plaintiff's psychiatric condition. The administrative law judge also noted that Dr. Ward, plaintiff's treating orthopedic surgeon, stated that Mr. New had a good ability to relate to others and to take care of his personal needs, and that there had been no change in his interests, habits, or impairment to his recent or remote memory.

Plaintiff contends that the administrative law judge should have asked Dr. Jindra to specifically comment on Mr. New's nervousness because he testified at the hearing before the administrative law judge that he had discussed his nervous condition with Dr. Jindra.

Dr. Jindra did indicate his diagnosis of plaintiff in his report to the Secretary. Plaintiff has the burden of presenting evidence of disability. Although plaintiff was not represented by counsel before the administrative law judge, he was represented by counsel on the appeal to the Appeals Council. If Dr. Jindra had inadvertently failed to include information concerning plaintiff's nervous condition, then counsel could have brought that information to the attention of the Appeals Council.

[2] Moreover, there was considerable other evidence in the record that plaintiff's nervous condition does not amount to a severely limiting impairment. Daily he is able to go to the store and visit with a neighbor. There do not appear to be any severe restrictions in his daily activities which are the result of a mental or emotional condition. Under these circumstances, the administrative law judge did not err in his assessment of Mr. New's nervous condition.

[3] The administrative law judge discounted plaintiff's subjective complaints of severe, disabling pain:

[T]he claimant's complaints of constant severe pain are not accepted as credible in view of the apparent lack of regular usage of pain medication and the claimant's testimony as to his daily activities.

Plaintiff asserts that his daily activities are limited, and that he does not use drugs because of his fear of over-medication.

Talwin is a non-narcotic, non-prescription analgesic. Plaintiff testified that it gave him relief, but that he nonetheless did not take Talwin daily despite his testimony that he was in constant, severe pain. Under these circumstances, the administrative law judge's comment on his sporadic pain medication was not error.

Plaintiff did testify, overall, that his daily activities were limited. Nonetheless, he did admit to quite a bit of daily activity. He drives to the store once a day, and he drives to visit a neighbor once a day. Although he watches some television, he normally goes outside and occupies himself there for some portion of each day. The administrative law judge had the right to consider plaintiff's account of his daily activities in reaching his determination on the issue of credibility.

Finally, plaintiff contends that there was not substantial evidence in the record for the administrative law judge's assertion that plaintiff has the physical capacity to perform light work and that his reliance on the Medical-Vocational Guidelines to demonstrate that there are jobs plaintiff can perform was erroneous.

[4] Plaintiff is unable to perform his previous jobs; therefore, the Secretary had the burden of demonstrating that he could perform substantial gainful work in his lessened capacity. Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980); Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978).

Plaintiff clearly is suffering from chronic obstructive pulmonary disease and some low back pain resulting from lumbosacral strain. In addition, he has some hearing loss and fluid in his right ear which does not preclude substantial gainful activity. He was previously treated for ulcers, but the ulcers are presently not an impairing condition. He also suffers from some nervousness which is relieved, to some significant degree, by Valium, 5 mg. The administrative law judge had the difficult job of determining whether these combined impairments preclude plaintiff from engaging in all substantial gainful activity.

Plaintiff himself testified that his most serious disability was his pulmonary disease. Although the condition certainly does limit his ability to perform substantial gainful activity, there are no medical reports of record indicating that the condition is totally disabling. To be disabled by a chronic obstructive airway disease on the basis of pulmonary function studies values alone, a person of plaintiff's height would have to have an FEV1 equal to or less than 1.4 liters and an MVV equal to or less than 45 liters. Plaintiff's actual pulmonary function studies values are greatly in excess of these. Section 3.02, Subpart P. Appendix 1 -- Listing of Impairments.

[5] Similarly, although plaintiff testified that he has severely disabling low back pain, complete tests rule out any disc defect, and the only substantiated diagnosis is chronic lumbosacral strain without any evidence of significant muscle spasm. Under these circumstances, the Court concludes that there is substantial evidence in the record for the administrative law judge's determination that physically plaintiff retains the residual functional capacity for light work as that term is defined in 20 C.F.R. § 404.1510(c).

Plaintiff contends that the Medical-Vocational Guidelines set out in Subpart P, Appendix 2 are not applicable to his case because he also suffers from the non-exertional nervous condition. The Guidelines provide that "they may not be fully applicable where the nature of an individual's impairment does not result in" physical limitations in the claimant's ability to meet strength requirements of jobs. Section 200.00(e), Subpart P, Appendix 2 -- Medical-Vocational Guidelines. When there are combined exertional and non-exertional impairments which result in both strength limitations and non-exertional limitations, the Medical-Vocational Guidelines are applied first to determine whether plaintiff may be disabled by strength limitations alone. If he is not disabled by strength limitations alone, then the Guidelines "provide a framework for consideration of how much the individual's work capability is further diminished in terms of any types of jobs which would be contraindicated by non-exertional limitations." Section 200.00(e)(2), Subpart P, Appendix 2 -- Medical-Vocational Guidelines.

[6] In the present case, plaintiff's physical limitations do not preclude light work. The question, then, is whether his nervousness results in non-exertional work related limitations. There is no evidence of any of the types of non-exertional limitations on employment as set in § 12.04, Subpart P, Appendix 1 -- Listing of Impairments. Further, there is no evidence that plaintiff would be unable to follow work instructions, would be unable to get along with his supervisors and co-employees, or would be unable to concentrate on and pay attention to work processes. Under these circumstances, the Court concludes that the administrative law judge did not err in applying the Medical-Vocational Guidelines to determine that plaintiff, considering his age, education and prior work experience, is able to engage in substantial gainful activity generally available in the national economy.

[7] Plaintiff contends that because the Medical-Vocational Guidelines do not refer to specific jobs, the Secretary has not discharged his duty of demonstrating that plaintiff can perform substantial gainful work. He relies upon a statement in Hephner v. Mathews, 574 F.2d 359, 362-363 (6th Cir. 1978) that a "finding of capacity to work" cannot be "expressed . . . in terms of a vague catch-all phrase such as 'light' work." Instead, it must be "in terms of specific types of jobs." First, the administrative law judge's determination that plaintiff retains the residual functional capacity to perform light work is not standardless. The term "light work" is defined by 20 C.F.R. § 404.1510(c). Second, the Medical-Vocational Guidelines have been adopted by the Secretary since the decision in Hephner to reduce the need for vocational testimony and to attempt to eliminate variance in individual cases where the claimants have essentially the same physical and non-exertional limitations. The Medical-Vocational Guidelines are based on administrative notice the Secretary has taken of jobs generally available in the national economy. The Secretary evaluated information contained in the Dictionary of Occupational Titles, published by the Department of Labor, County Business Patterns, published by the Bureau of Census, Census Reports, Occupational Analyses, prepared by the Social Security Administration, the Occupational Outlook Handbook, published by the Bureau of Labor Statistics, and other generally available information relating to the age, educational, work experience, and exertional demands of various jobs. See, 20 C.F.R. 1566(d) (August 20, 1980). Since "these tables and rules are based on a wealth of information available about jobs existing in the national economy" vocational expert testimony is unnecessary in most cases. Jones v. Harris, ¶ 17,074 CCH Unemployment Ins. Rptr. (E.D. Tenn. March 18, 1980). The Court has carefully reviewed the record and concludes that there are no unusual facts in the present case which would have required the administrative law judge to seek the assistance of a vocational expert.

WHEREUPON, the Court HOLDS that plaintiff's motion for summary judgment and remand is without merit; and, therefore, it is DENIED. The Court FURTHER HOLDS that defendant's motion for summary judgment is meritorious; and, therefore, it is GRANTED.

The decision of the Secretary of Health, Education and Welfare is AFFIRMED. This action is hereby DISMISSED.

LYDICK, District Judge:

PROCEEDINGS

On March 21, 1980, plaintiff filed a complaint to review the decision of the Secretary of Health, Education and Welfare denying his claim for disability insurance benefits.

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APPLICABLE LAW

It is clear that the burden of proof is on the plaintiff to establish entitlement to benefits under the Act. Harmon v. Finch, 460 F.2d 1229, 1231 (9th Cir. 1972), cert. denied, 409 U.S. 1063 (1972), reh. denied, 410 U.S. 918 (1973); Waters v. Gardner, 452 F.2d 855, 857 (9th Cir. 1971); Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971); Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965); McMullen v. Celebrezze, 335 F.2d 811, 814 (9th Cir. 1964), cert. denied, 382 U.S. 854 (1965), reh. denied, 382 U.S. 922 (1965).

The statutory definition of "disability" is "much narrower than the word itself, standing alone, might indicate," since it requires that the claimant "be unable to 'engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which could be expected to result in death or which has lasted or could be expected to last for a continuous period of not less than 12 months.'" Harmon v. Finch, supra, at 1230, quoting 42 U.S.C. § 423(d)(1)(A). The statutory definition has been incorporated in the Social Security regulations. 20 C.F.R. § 404.1501(a)(i).

The definition was further restricted by the Congress, effective January 2, 1968, by enacting the following provisions set out in 42 U.S.C. § 423(d)(2)(A): "(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." Harmon v. Finch, supra, at 1230-1231; Chavies v. Finch, 443 F.2d 356, 357 (9th Cir. 1971). These restrictive definitions were enacted in part to correct court decisions that the Congress considered to be too liberal. Harmon v. Finch, supra, at 1231.

The Social Security Act requires that the plaintiff's disability be demonstrated by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. § 423(d)(3). The Act further provides that a claimant shall not be considered to be under a disability unless the claimant furnishes such medical and other evidence of the existence thereof as the Secretary may require. 42 U.S.C. § 423(d)(5).

The implementing regulations of the Social Security Administration, 20 C.F.R. § 404.1524(c), provides in pertinent part as follows:

[S]uch evidence shall also describe the individual's capacity to perform significant functions such as the capacity to sit, stand, move about, travel, handle objects, hear or speak. . . . The clinical and laboratory findings shall be sufficiently comprehensive and detailed to permit the making of independent determinations by the Administration . . . as to the nature and limiting effects of the individual's physical or mental impairments for the period in question, his ability to engage in physical or mental activities, and the probable duration of such impairment.

SCOPE OF REVIEW

Under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), the jurisdiction of the court is limited to the question of whether or not the findings of the Secretary of Health, Education and Welfare are supported by substantial evidence. If they are, the Secretary's findings are conclusive. Harris v. Richardson, 468 F.2d 1260 (9th Cir. 1972), cert. denied, 410 U.S. 986 (1973); Harmon v. Finch, 460 F.2d 1229, 1230 (9th Cir. 1972), cert. denied, 409 U.S. 1063 (1972), reh. denied, 410 U.S. 918 (1973); and Chavies v. Finch, 443 F.2d 356, 357 (9th Cir. 1971).

Therefore, the ultimate question to be determined by the Court is whether the final decision of the Secretary is supported by substantial evidence reasonably based on the record as a whole. Walker v. Mathews, 546 F.2d 814, 818 (9th Cir. 1976); Beane v. Richardson, 457 F.2d 758, 759 (9th Cir. 1972, cert. denied, 409 U.S. 859 (1972); Rhinehart v. Finch, 438 F.2d 920, 921-922 (9th Cir. 1971).

PLAINTIFF'S CLAIMS

On January 25, 1979, plaintiff filed an application for disability insurance benefits alleging that he became unable to work on August 1, 1978, at age 41, because of lower back pain.

In his motion for summary judgement, plaintiff alleges that by utilizing the new regulations, 20 C.F.R. §§ 404.1503-404.1513; Subpart P, Appendix 2, the Secretary has failed to comply with the ruling in Hall v. Secretary of Health, Education and Welfare, 602 F.2d 1372 (9th Cir. 1979), requiring that the Secretary identify specific jobs which a claimant is capable of performing, and thus has failed to satisfy the Secretary's burden of showing alternate employability through vocational capacity. [Memo in Spt of Mot S/J 9.] Other cases are also cited in support of this argument. [Id. at 9-18.]

SECRETARY'S DECISION

On October 2, 1979, the administrative law judge held a hearing in which the plaintiff appeared in person and testified and was represented by the same attorney who represents him in the present action.

After careful consideration of the entire record, the administrative law judge made the following pertinent findings:

. . .
3. The medical evidence discloses finds of chronic sprain/strain of the lumbar spine, with x-ray evidence of small myelographic defects at L4-5, consistent with the possibility of a herniated disc.
4. The medical evidence, including expert medical opinion, warrants a finding that the claimant can sustain sedentary work activity without undue symptom exacerbation.
5. The claimant's allegations of severe pain and disabling limitation appeared exaggerated, out of proportion to the medical findings as well as medical opinion and, consequently, cannot be reasonably accepted as accurate or credible.
6. The medical evidence together with the claimant's testimony, appearance, and demeanor at the hearing, warrants a finding that the claimant can sustain sedentary work activity without undue symptom exacerbation.
7. The claimant is unable to return to his past relevant work as either an automotive detail man or janitor in that such occupations exceed the claimant's present residual functional capacity.
8. The claimant is a younger individual at age 42, has a limited 10th grade education, and past relevant work experience of an unskilled nature.
9. The claimant's residual functional capacity for sedentary work activity, together with the above vocational factors, match the criteria of Rule 201/24, Table 1, Appendix 2, Subpart P of Regulations No. 4, wherein the Secretary directs a factual conclusion that the claimant is not under a "disability" within the meaning of the Social Security Act, as amended.

DISCUSSION

* * * * *

It was the finding of the administrative law judge that the plaintiff was able to perform sedentary work. It will be noted from the proposed Findings of Fact that the doctors who gave an opinion on plaintiff's work capability indicated that he was either capable of light or sedentary work. Accordingly, the administrative law judge's decision is not in conflict with, but was rather supported by, the medical evidence of record.

The plaintiff does not dispute the fact that the administrative law judge made his determination by following the procedure set out in the new regulations. Plaintiff contends that the fundamental issue in this case is whether, once the claimant can no longer return to his former employment, the Secretary can satisfy the burden of showing alternate employability only through reference to the newly enacted Social Security regulations, 20 C.F.R. §§ 404.1502-404.1513 (1980), which became effective February 26, 1979. [43 F.R. 55379, November 28, 1978.] Plaintiff argues that reliance on the regulations alone is insufficient and cites Hall v. Secretary of Health, Education and Welfare, 602 F.2d 1372 (9th Cir. 1979), to support the argument that the Secretary must identify specific jobs which the claimant is capable of performing, preferably through the testimony of a vocational expert, and that reliance solely on the regulations is merely a theoretical determination of whether a particular claimant is capable of performing substantial gainful activity. [Opp. 1-2; Pltf's Supp. Memo. 1-5.]

Hall did not involve a ruling on the new regulations. The issue then is whether Hall should be applied to a case involving the application of the new regulations or whether the new regulations provide sufficient vocational guidance to permit the administrative law judge to dispense with the use of a vocational expert in plaintiff's case.

The use of the new regulations was approved by the court in Hicks v. Califano, 600 F.2d 1048 (4th Cir. 1979), in a case where the appeal before the court was pending at the time the regulations became effective on February 26, 1979. Said the court:

. . . The regulations define each factor to be considered in determining whether disability exists. 20 C.F.R. §§ 404.1505 to 1511. More importantly, they direct a finding of disability or no disability where the finds of fact in a particular case coincide with the criteria established in the rules and tables of Subpart P, Appendix 2. 20 C.F.R. § 404.1513.
Id. at 1050. The court ordered that the case
be remanded to the Secretary for determination of the nature and transferability of claimant's skills, and, upon making such a determination, the Secretary should be ordered to find claimant disabled or not disabled as required by the new regulations.
Id.

Since the court found an error in the administrative law judge's use of the vocational expert's testimony at the initial hearing, the administrative law judge was ordered to present to the vocational expert not just the fact of the claimant's back impairment due to arthritis but to present to the vocational expert the medical evidence with respect to all of the claimant's disabilities. Id. at 1051. The court, however, did not indicate that a vocational expert's opinion was necessary in addition to the administrative law judge's determination under the new regulations.

Plaintiff cites O'Banner v. Secretary of Health, Education and Welfare, 587 F.2d 321, 323 (6th Cir. 1978), and Wilson v. Califano, 617 F.2d 1050 (4th Cir. 1980), to show that other circuit follow a rule similar to that of the Ninth Circuit in Hall. [Supp. Memo. 2.] Although this is true, these two cases, like Hall, did not involve a ruling on the new regulations.

In Phillips v. Harris, 488 F.Supp. 1161 (W.D. Va. 1980), also cited by plaintiff, the court held that the promulgation of the new regulations clearly constituted a valid exercise of the Secretary's statutory responsibility under 42 U.S.C. § 405(a), and that the new regulations were "not patently defective." Id. at 1165. However, the court found that the way in which the new regulations were applied in that case precluded a finding of substantial evidence to support the Secretary's decision. Id.

Thus, in case of both plaintiffs Mullins and Phillips, the administrative law judge had found that they suffered from some sort of emotional impairment, which impairments under § 404.1504(d) of the new regulations result in "non-exertional limitations." Id. at 1166.

. . . When "non-exertional limitations" are present, the regulations provide that the rules of Appendix II cannot be applied so as to require a finding of not disabled. See Rule 200.00(e) of Appendix II to Subpart P of the Administrative Regulations No. 4. Thus, in the instant cases, the Law Judge erred in finding that the new regulations required a finding of not disabled.

Id. at 1166. The court also found that the administrative law judge had not given sufficient consideration to the emotional impairment of the claimants. Id.

Phillips further held that "the Secretary has failed to discharge the burden of going forward with evidence of capacity for a specific alternate job in the national economy and proof of transferable skills." Id. at 1167. The court acknowledged that 20 C.F.R. § 404.1509(c) provides that in determining whether jobs, as classified by their exertional and skill requirements, existed in significant numbers, administrative notice could be taken of reliable job information available from various governmental and other publications such as the "Dictionary of Occupational Titles." Nevertheless, the court held that this determination was not within the administrative law judge's discretion based solely on his own expertise. Id. at 1167.

In that case, claimant Phillips was over 50 years of age and functionally illiterate. Claimant Mullins was 53 years old and her work experience was limited to that of a cook. The court drew attention to Rule 201.00(g) of Appendix 2 to Subpart P, which acknowledges that "individuals approaching advanced age (age 50-54) may be significantly limited in vocational adaptability if they are restricted to sedentary work." Id. at 1168. It was the opinion of the court that

. . . In close cases such as those at hand, it cannot be said that the final decision of the Secretary is supported by "substantial evidence" when that decision is based, in essence, on nothing more than speculation by the administrative law judge.

However, the court also concluded that while it found it necessary to remand the cases for further development,

The opinion of the court should not be read to indicate that testimony of vocational experts is always necessary in cases when the sequential evaluation of the new regulations reaches step five ... In cases of prima facie disability decided subsequent to entry of this opinion ... the final decision of the Secretary will be reversed when reasonable questions regarding the transferability of work skills are not resolved in an appropriate manner. The court is of the opinion that the existing case law in this circuit is sufficient to apprise the Secretary as to what constitutes an appropriate response in a given factual situation.
Id. at 1169.

Certain facts distinguishing Phillips from the present case should be pointed out. Plaintiff, in the present case, does not suffer from any emotional or mental impairment. He alleged that he became unable to work at age 41, thus being classified as a younger individual, being well under age 50. 20 C.F.R. § 404.15(6)(b) [sic]. Therefore, his age is not considered to affect significantly his ability to adapt to a new work situation. Id. Moreover, he is not illiterate. As will be elaborated on below, the administrative law judge's decision was not based on pure speculation.

Defendant has attached to defendant's supplemental memorandum a copy of the opinion in Stallings v. Harris, No. 79-1051 (W.D. Tenn. 7/10/80). This case views the administrative law judge's discretion under the new regulations in a different light. The following excerpt from the opinion is worthy of consideration:

Plaintiff contends that the agency's administrative notice of materials contained in studies and treatises constitutes an improper substitution for its burden of proof in cases in which it is determined that a claimant is unable to perform his or her previous work. The agency concedes that in such cases it has an obligation to demonstrate the availability of jobs that the claimant has the functional and vocational capacity to perform. See, e.g., Gray v. Finch, 427 F.2d 598 (6th Cir. 1970).
As defendant correctly notes, however, the regulations are consistent with this judicial burden because they require complete consideration of a claimant's individual circumstances. In place of vocational testimony that jobs exist or do not exist that a claimant can perform, the regulations have incorporated extensive information from the same sources that a vocational expert would utilize. In addition, this information is specifically related to previous individualized findings with respect to a claimant's functional and vocational capacity. Thus the regulations meed the agency's burden in a manner that may afford more consistent and uniform results.
Id. at 6.

The administrative law judge found the plaintiff to be capable of sedentary work, which is defined as work entailing lifting 10 pounds maximum and involving sitting, although a certain amount of walking and standing may be necessary to carry out job duties. 20 C.F.R. § 404.1510(b). Sedentary work involves the lowest level of exertional requirements.

The preamble to the new regulations includes the following comment:

In order to consider the individual's residual functional capacity in terms of the level of work his or her exertional capabilities would represent, the definitions of sedentary, light, medium, heavy and very heavy work are use [sic] as those terms are defined in the third edition of the Dictionary of Occupational Titles published by the Department of Labor. This provided a "bridge" between assessment of residual functional capacity and the identification of ranges of work and types of jobs that remain within the individual's functional capabilities. The rules attach vocational significance to the functional capability for various ranges of work in terms of the relative numbers of jobs represented by the various capabilities. [Emphasis added.]
43 F.R. 55352 (November 28, 1978). Thus,
. . . Approximately 1,600 separate unskilled light and sedentary occupations can be identified in the Supplement to the Dictionary of Occupational Titles (third edition), each occupation representing numerous jobs found throughout the national economy.
Most sedentary occupations are skilled or semi-skilled, and fall within the professional, administrative, technical, clerical, machine trade, and benchwork classifications. There are also approximately 200 separate unskilled sedentary occupations which can be identified in the Supplement to the Dictionary of Occupational Titles (third edition), each occupation representing numerous jobs found throughout the national economy. . . .
Id.

The present law of this circuit has been stated in Hall v. Secretary of Health, Education and Welfare, 602 F.2d 1372, 1377 (9th Cir. 1979), as follows:

. . . A general statement that a claimant may engage in "sedentary" work, without testimony by a vocational expert who can identify specific jobs, absent other reliable evidence of the claimant's ability to engage in other occupations, does not satisfy the substantial evidence test.
It is incumbent on the Secretary at a minimum, to come forward with specific findings showing that the claimant has the physical and mental capacity to perform specified jobs, taking into consideration the requirements of the job as well as the claimant's age, education, and background. [Citations omitted.]
Ordinarily, the better method to demonstrate this is through testimony of a vocational expert. See O'Banner, 587 F.2d at 323; Garret, 471 F.2d at 603-04. Although there is no per se rule that a vocational expert's evaluation is necessary, the Secretary must be diligent in developing the facts where, as here, the claimant was not assisted by counsel. Cox v. Califano, 587 F.2d at 991.

Plaintiff's case is distinguishable from Hall in that he was represented at the administrative hearing by the same attorney who represents him in the present case and the facts appear to have been adequately developed. His impairment was low back pain, due possibly to a herniated disc. His impairments therefore affected only the exertional requirements of his work activity. 20 C.F.R. § 404.1510. He had a tenth grade education and prior experience as an automobile detail man and janitor.

There does not appear to be any substantial question concerning the transferability of plaintiff's skills. The administrative law judge found his past work experience was of an unskilled nature. Unskilled work is defined as "work which requires little or no judgment in the performance of simple duties that can be learned on the job in a short period of time." 20 C.F.R. § 404.1511(b). As indicated above, there are over 200 separate unskilled sedentary occupations identified in the Supplement to the Dictionary of Occupational Titles. There has been no showing whatsoever that plaintiff does not have the capacity to adapt to a sedentary type job, the duties of which can be learned on the job in a short period of time. These were the vocational factors which were expressly considered by the administrative law judge in his opinion.

Therefore, on the record in plaintiff's case, there does not appear to be any substantial reason to doubt that the plaintiff was capable of performing numerous sedentary jobs listed in the Supplement to the Dictionary of Occupational Titles, a publication which is utilized by vocational experts in their testimony. Although a vocational expert, if called to testify, would identify specific jobs from the Supplement to the Dictionary of Occupational Titles, this does not appear to be necessary in plaintiff's case. Plaintiff's case is not a close one, as was true in Phillips v. Harris, supra, cited by plaintiff. The administrative law judge was not relying solely on his own expertise, his findings were not pure speculation and there was no reasonable question as to transferability of skills. His decision was not theoretical but had a basis in fact. Moreover, the court in Phillips v. Harris acknowledged that where the potential for alternate work was "within the common knowledge and experience of ordinary men," substantiation by a vocational expert was not necessary. 488 F.Supp. at 1167, citing McLamore v. Weinberger, 538 F.2d 571, 575 (4th Cir. 1976). This was likewise the ruling in Holguin v. Harris, 480 F.Supp. 1171, 1181 (N.D. Cal. 1979), where the court stated:

. . . Where the conclusion of the Secretary is within the common knowledge and experience of ordinary men, it requires no substantiation by a vocational expert.

Accordingly, it appears that under the present law of this circuit, the substantial evidence rule does not require that the decision of the administrative law judge be further supported by the testimony of a vocational expert.

* * * * *

IT IS ORDERED that judgment be entered in favor of defendant and against the plaintiff, dismissing the complaint and action on the merits and affirming the decision of the Secretary of Health, Education and Welfare.

[1] The regulations used to make disability determinations under titles II and XVI of the Social Security Act were recodified effective August 20, 1980. See 45 FR 55566-55634 (1980) (recodified in 20 CFR 404.1501-404.1598 and 20 CFR 416.901-416.996). The regulations cited in this ruling have been renumbered and rewritten as part of the recodification, but not substantively changed. See § 404.1560-§ 404.1569 and Rule 202.10, Appendix 2, Subpart P of Regulations No. 4.

[1] Nucleus pulposus is defined as "a semifluid mass of fine white and elastic fibers that forms the central portion of an intervertebral disk". Dorland's Illustrated Medical Dictionary, 25th Ed., 1974, p. 1064.

[2] Removal of the vertebral laminae on one side only. Dorland's Illustrated Medical Dictionary, 25th Ed., 1974, p. 693.

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