20 CFR 404.1503-404.1513

SSR 82-35c

Jones v. Harris, 1A Unemployment Insurance Reporter (1980 Transfer Binder) ¶ 17,074 (E.D. TENN., Northern Div. 1980)

The plaintiff, who is 39 years old land has an eleventh grade education, applied for Disability Insurance Benefits, alleging that he was totally disabled because of a back injury and the pain resulting from it. Although the plaintiff is unable to perform the tasks required by his former occupation, the evidence of record fails to show that he suffers from any exertional or nonexertional impairments or symptoms, including pain, which would prevent him from performing unskilled sedentary work. When the Social Security Administration (SSA) determined, under Rule 201.24 in Table 1 of Appendix 2, Subpart P, Regulations No. 4, that the plaintiff was not disabled and denied his application, the plaintiff appealed. He contended that SSA had failed to prove that there was work in the national economy which he could perform. Held, live testimony regarding the existence o work in the national economy which the plaintiff could perform is unnecessary because the rules and tables in Appendix 2 (as pointed out in 20 CFR 404.1513) are based on a wealth of available information concerning the existence of such jobs. Further held, SSA's finding that the plaintiff meets each of the criteria in Rule 201.24 is supported by substantial evidence and thus SSA's determination that the plaintiff is not disabled must be affirmed.

TAYLOR, District Judge:

The plaintiff is a 39-year-old man with an eleventh grade education. He has had some mechanical training and experience, but his occupation at the time of his injury was a grocery store stock clerk. Around the first of April, 1977, plaintiff suffered a herniated disc while working. Although this injury was surgically treated, plaintiff claims the injury to his back, with attendant pain, totally disables him.

Plaintiff's application for disability benefits was filed on October 3, 1977. His claim was denied initially and upon reconsideration. Plaintiff reapplied for benefits, and was denied again. An administrative hearing on plaintiff's claim was held on July 17, 1979. The administrative Law Judge (ALJ) found plaintiff not to be disabled and denied benefits. This decision was approved by the Social Security Appeals Council, thereby becoming the final decision of the Secretary of Health, Education and Welfare. The only question before this Court is whether the Secretary's finding of no disability is supported by substantial evidence.

The plaintiff's treating physician, Dr. James Riccardi, an orthopedic surgeon, reported that plaintiff could not perform repetitive heavy lifting as was required in his former occupation. Dr. Riccardi felt plaintiff could perform a full range of sedentary work and characterized plaintiff's pain as mild and intermittent.

Doctor Samuel Marcy, an orthopedic surgeon, said repeated bending and stooping could cause "rapid recurrence of significant back pain" and that "light work" as defined by the Social Security Administration would be too strenuous. Dr. Marcy concluded that "bench-type vocational rehabilitation work would be in order."

Doctor Edward Tauxe, an orthopedic surgeon, said plaintiff is "unable to do significant bending, stooping, and lifting."

The ALJ found that plaintiff is prevented from doing his former occupation but is not prevented from performing sedentary labor. The ALJ specifically discounted pain, insofar as it would prevent sedentary work, because of lack of objective medical findings consistent with such pain.

In the opinion of the Court, these findings are all supported by substantial evidence, and in fact are not contradicted in the record. In 20 C.F.R. § 416.910 sedentary work is defined as occasionally lifting no more than ten pounds, and sitting with occasional walking and standing. The recommendations of Dr. Tauxe and Dr. Marcy against stooping, bending, or significant lifting are not inconsistent with this definition of sedentary labor.

Plaintiff complains that the Secretary has not carried his burden of proving that there is work in the national economy which plaintiff can perform, as required by Hephner v. Matthews, 574 F.2d 359, 361 (6th Cir. 1978). It is true that the record contains no concrete evidence in this regard. In the past such evidence was usually provided by the testimony of a vocational expert. The Secretary now relies on the regulations found at 20 C.F.R. §404.1513 and Appendix 2 to Subpart P of the Social Security Regulations. Section 200.00(b) of Appendix 2 provides as follows:

The existence of jobs in the national economy is reflected in the "Decisions" shown in the rules; i.e. in promulgating the rules, administrative notice has been taken of the numbers of unskilled jobs that exist throughout the national economy at the various functional levels, . . . Thus, when all factors coincide with the criteria of a rule, the existence of such jobs is established. . . .

The ALJ found that plaintiff is a younger individual, between 18 and 44, with a limited education, had only unskilled work experience and could perform sedentary labor. The ALJ further found that plaintiff suffered no non-exertional impairments, such as pain, which would prevent him from performing a full range of sedentary labor. Each of these findings is supported by substantial evidence. Thus, plaintiff fits all the criteria found in Table No. 1 of Appendix 2, Rule 201.24. This rule directs a finding of not disabled in such a case, on the grounds that significant numbers of jobs do exist which a person of plaintiff's age, experience, background and physical capacity could perform, Section 201.00(h), 20 C.F.R. Subject P, App. 2. As Regulation number 404.1513 points out, these tables and rules are based on a wealth of information available about jobs existing in the national economy, making live testimony on such information unnecessary. The Secretary carries his burden of proof by supporting with substantial evidence findings that claimant meets each criterion in a particular rule in Appendix 2.

Accordingly, it is ORDERED that the Secretary's decision in this case be, and the same hereby is, affirmed.

Order Accordingly.

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