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TRAVIS v. BOWEN

March 13, 1986

MACK TRAVIS, Plaintiff,
v.
OTIS R. BOWEN, Defendant



The opinion of the court was delivered by: OBERDORFER

OBERDORFER, U.S.D.J.

 MEMORANDUM

 Plaintiff brings this action under the Social Security Act, 42 U.S.C. §§ 405(g) and 1383(c)(3), to review a decision made by the Secretary of Health and Human Services denying plaintiff's claims for disability insurance benefits and Supplemental Security Income benefits. Plaintiff alleges that he became disabled in July of 1977 due to a slipped disc in his back. On behalf of the Secretary, an Administrative Law Judge (ALJ) considered plaintiff's case de novo and determined that plaintiff had the ability to engage in sedentary work activity as defined by the Social Security Act, and thus was not "disabled" within the meaning of the Act. The Appeals Council denied plaintiff's request for review, and the decision became final on August 5, 1985.

 To qualify for disability insurance benefits, one must be "under a disability" as defined by the Social Security Act. 42 U.S.C. § 423(a)(1)(D). The term "disability" is defined as:

 
[an] inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or 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). A physical or mental impairment is "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(C). To find a disability, a two step test must be met. First, a medically determinable impairment must be shown to exist; and second, there must be a factual determination that the impairment renders the plaintiff unable to perform substantial gainful employment. 42 U.S.C. § 1382c(a)(3)(A); Torres v. Schweiker, 682 F.2d 109, 111 (3d Cir. 1982), cert. denied, 459 U.S. 1174, 74 L. Ed. 2d 1020, 103 S. Ct. 823 (1983). The Secretary is authorized to prescribe criteria for determining an individual's ability to engage in substantial gainful employment. 42 U.S.C. § 1383c(a)(3)(D).

 In weighing the evidence to determine whether or not a disability exists, the ALJ must weigh all the evidence and may not ignore evidence that suggests an opposite conclusion. Whitney v. Schweiker, 695 F.2d 784, 488 (7th Cir. 1982). Under the Act, the burden of proving the existence of a disability falls on the claimant. Id. at 786. However, the burden of going forward shifts to the Secretary to prove that there is available some other kind of "substantial gainful employment" that the claimant can perform, once he establishes that his impairment is of such severity that it precludes him from performing his former work. McNeil v. Califano, 614 F.2d 142, 145 (7th Cir. 1980).

 Judicial review is limited to determining whether or not the administrative findings are supported by "substantial evidence" based on the record as a whole. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971) (citation omitted).

 Plaintiff argues that "the overwhelming evidence of record shows the claimant suffers from a vertebrogenic disorder pursuant to Section 1.05(C) [of 20 C.F.R. § 404, Subpart P, App. I]". Memorandum of Points and Authorities in Support of Plaintiff's Motion for Summary Judgment at 10 (filed Jan. 24, 1986). To find an individual to suffer from a vertebrogenic disorder, this section requires that the ALJ find the claimant to exhibit both pain, muscle spasm, and significant limitation of motion in the spine; and appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss. 20 C.F.R. § 404, Subpart P, App. I, § 1.05(C). In this case, the ALJ found:

 
The record does not show an impairment which meets or equals the severity of any impairment listed in Appendix 1, 20 CFR. While claimant has had herniated discs in the lumbosacral spine, there has never been evidence of the clinical signs and findings specified at section 1.05(C) such as appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss.

 Transcript of Proceedings (Tr.) at 25 (filed Nov. 12, 1985).

 Plaintiff does not dispute defendant's contention that no medical evidence supports a finding under the second prong of the test under section 1.05(C) -- radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss. In fact, several doctors have affirmatively found the absence of such symptoms. Tr. at 167, 169-174, 188. Plaintiff testified as to motor loss and muscle weakness, but the ALJ found his testimony not entirely credible. Tr. at 28. In light of the lack of medical evidence supporting plaintiff's testimony and the deference due the ALJ in assessing credibility, the ALJ's finding that plaintiff's ailment failed to meet the requirements of section 1.05 does not lack support by substantial evidence.

 Plaintiff next argues that the ALJ erred in finding that plaintiff has the residual capacity to perform other work in the national economy. The ALJ's decision indicates that he considered plaintiff's residual functioning capacity along with his age, education, and past work experience to determine, pursuant to the "grid" system contained in Appendix 2 of 20 C.F.R. § 404, that plaintiff is not "disabled." The use of the grid system is a legitimate way for the Secretary to meet his burden of proving that substantial gainful employment for the claimant exists in the United States economy. Heckler v. Campbell, 461 U.S. 458, 76 L. Ed. 2d 66, 103 S. Ct. 1952 (1983). But if an individual suffers from a "nonexertional impairment," then the grids cannot be conclusively applied. Wilson v. Heckler, 743 F.2d 218, 222 (4th Cir. 1984); Grant v. Schweiker, 699 F.2d 189 (4th Cir. 1983). Nevertheless, "not every malady of a 'nonexertional' nature rises to the level of a 'nonexertional impairment.' The proper inquiry . . . is whether a given nonexertional condition affects an individual's residual functional capacity to perform work of which he is exertionally capable." Smith v. Schweiker, 719 F.2d 723 (4th Cir. 1984). Whether a particular ailment rises to the level of a "nonexertional impairment" is a question of fact to be resolved by the Secretary. Id. at 725. The ALJ is required ...


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