755 F.2d 141
8 Soc.Sec.Rep.Ser. 343, Unempl.Ins.Rep. CCH 15,881Gene KNIPE, Plaintiff-Appellant,v.Margaret M. HECKLER, Secretary, Department of Health andHuman Services, Defendant-Appellee.
No. 84-1179.
United States Court of Appeals,Tenth Circuit.
Feb. 13, 1985.
John G. Heike of Weisbrod & Weisbrod, Dallas, Tex., for plaintiff-appellant.Mary K. Biester, Asst. Regional Atty., Dept. of Health and HumanServices, Dallas, Tex. (Gary L. Richardson, U.S. Atty., Ralph F. Keen,Asst. U.S. Atty., Muskogee, Okl., Gayla Fuller, Acting Regional Atty.,Dept. of Health and Human Services, Washington, D.C., were also on the brief), for defendant-appellee.Before HOLLOWAY, Chief Judge, and DOYLE and SEYMOUR, CircuitJudges.HOLLOWAY, Chief Judge.1Gene Knipe appeals from the denial of Social Security disability insurance benefits and supplemental security income benefits. I R. 2. On August 7, 1981,Mr. Knipe filed an application for benefits alleging that he was "disabled because of back problems, heart trouble, high blood pressure and diabetes." I R.74; see also II R. 73-76. At the administrative level the Secretary of Health andHuman Services (Secretary) determined that Mr. Knipe was not disabled under the Social Security Act, and denied Mr. Knipe's request for benefits. II R. 97-111. On May 28, 1982, after a hearing the Administrative Law Judge (ALJ)denied benefits, II R. 22, 34, and on February 7, 1983, the Appeals Councildenied Mr. Knipe's request for review. II R. 4.
* A. Facts2On March 25, 1983, Mr. Knipe brought an action in district court for review of the administrative decision. I R. 1. The district court denied Mr. Knipe's motionfor summary judgment, affirmed the ALJ's decision, and entered judgment for the Secretary. I R. 78. Mr. Knipe appeals.34At the time of the ALJ's decision, Knipe was forty-five. II R. 32-33. He had ahigh school education. He had worked as a police officer for a number of years,a security guard, and then as a driver/salesman. He left his job as a salesmanafter his second job-related back injury.5Knipe sought benefits alleging that he had essentially four impairments. First,he complained of his bad back and the pain related to it. His back injuries hadrequired his hospitalization on at least two occasions. In February 1980, X-raysshowed significant narrowing of the intervertebral disc at the lumbrosacral junction, indicating probable disc degeneration or herniation. Brief for Appellee 3. Surgery was not performed because Mr. Knipe was a diabetic withhigh blood pressure and extensive heart disease. Because of these other health problems, one physician commented that "[n]o neurosurgeon in his right mindwill operate on this patient." II R. 273. He was given conservative treatmentincluding local heat, massage, II R. 153, traction and exercise, the latter two to be continued at home. II R. 189. This treatment did provide him with somerelief from the pain. II R. 296, 298.6Second, Mr. Knipe suffered from adult onset diabetes mellitus. II R. 259.
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Hetakes insulin for this condition. II R. 284. He has "had trouble controlling [his]diabetic problem of 11 years in duration with apparently a so-called brittle typeof diabetes," II R. 194, which "necessitates the patient's having hospitalizationfor management at intervals." II R. 189. He has been in a diabetic coma on twooccasions. II R. 146.7Third, Mr. Knipe suffered from high blood pressure. This condition hasnecessitated that he take medication. See II R. 189.
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8Fourth, he suffers from severe heart disease, having had four heart attacks inthe previous three years before the hearing. II R. 26, 57, 284. He has severe leftventricular dysfunction with an ejection fraction of only 22%,
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II R. 265, andsevere diffuse three vessel coronary artery disease. II R. 265. His left anterior descending artery was totally occluded at the level of the first diagonal branch;one circumflex marginal branch had an 80% proximal stenosis and the right
B. The rulings belowcoronary artery was a small vessel with a 90% mid lesion. II R. 265. Prior tothe hearing before the ALJ, the agency reports on two occasions stated thediagnosis that Knipe had arteriosclerotic heart disease. II R. 101, 103.
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After the hearing the ALJ found that Knipe suffered from ischemic heart disease.
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9Knipe also complained of troubles with his legs which may be attributable tothe above health problems. See II R. 134. He had numbness in his left great toeand adjacent areas. II R. 153; see also II R. 63-54, 275. Knipe testified thatwhen he stands for several hours his legs become swollen. II R. 63-64; see alsoII R. 134. There is also atrophy of his intrinsic foot muscles. II R. 153.10Further compounding the above health problems is Mr. Knipe's mentalimpairment which he alleges is attributable to brain damage from one of hisheart attacks. II R. 13. Although it is unclear whether Knipe explicitly assertedthat this was a separate impairment before the ALJ, the ALJ did refer to a psychological evaluation of Mr. Knipe. II R. 28. This evaluation stated that"with regard to [Mr. Knipe's] neuropsychological status, test data (the Hainscored Bender Gestalt) is indicative of organic impairment. The difficultywhich Mr. Knipe seems to experience in putting both conceptual and concretethings together ... could well be a reflector of this type impairment." II R. 285.The evaluation also found that Knipe had a verbal I.Q. of 82, a performanceI.Q. of 76, and a full scale I.Q. of 78. II R. 285. He had an eighth grade readinglevel, a sixth grade spelling level, and a third grade arithmetic level. Id.
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Theevaluation did find that Knipe was "socially sensitive" and that his strengthswere his "common sense" and his "facility with the English language."However, his "[w]eaknesses were apparent in his ability to think and reasonabstractly as well as his visual-motor coordination in both familiar andunfamiliar settings. He has difficulty putting concrete things together with hishands as well as generalizing from his knowledge of concepts." II R. 285.11With this brief summary of Mr. Knipe's impairments as our backdrop, we nowturn to the decisions of the ALJ, the Appeals Council, and the district court.12The ALJ stated that the issues were whether Knipe "is entitled to a period of disability and to disability insurance benefits under Sections 216(i) and 223respectively of the Social Security Act; and whether the claimant is disabledunder Section 1614(a)(3) of the Social Security Act." II R. 22. The ALJ foundthat the claimant had "the following impairments: ischemic heart disease,controlled diabetes mellitus, controlled herniated intervertebral disc, L4, right,treated conservatively." II R. 32.
IIDisability under the Listing of Impairments13In concluding that Knipe was not disabled, the ALJ first reasoned that the preponderance of the medical evidence demonstrated that Knipe did not suffer from an impairment equal to any impairment in the Listing of Impairments. IIR. 31. See Listing of Impairments, 20 C.F.R. pt. 404, subpt. P, app. 1 (1982)(Listing of Impairments). He reached this conclusion apparently believing thatneither the claimant's diabetes, heart disease, nor back troubles met the Listingof Impairments. The ALJ concluded that although the claimant suffered from acombination of impairments which would prevent him from performing his past occupations of patrolman or security guard, which was work requiring amedium level of exertion, these impairments would not prevent him fromengaging in light work on a sustained basis. II R. 31. Finally the ALJ explainedthat Knipe is 45 years old and under Regulations 404.1563 and 416.963 he is ayounger individual. Under Regulations 404.1564 and 416.964, he has a highschool education and above, and he has performed primarily skilled work.Given this, Rule 202.21 of the Medical Vocational Guidelines, 20 C.F.R. pt.404, subpt. P, app. 2 (1982) (the grids), directs that Mr. Knipe be found notdisabled. II R. 32. The Appeals Council concluded that there was no basisunder the regulations for granting Knipe's request for review of the ALJ'sdecision.14The district court affirmed and entered summary judgment for defendant. Thecourt reasoned that the finding of the Secretary and the inferences based onthose findings cannot be disturbed if supported by substantial evidence. I R. 75;see 42 U.S.C. Sec. 405(g). The court said that the record reflected that Knipehad a twelfth grade education with work experience as a truck driver, salesman,security guard, and sheriff's deputy; that he had testified that his daily activitiesconsisted of limited lawn mowing and sitting around his mother's house; andthat Knipe stated he could walk two or three blocks and drive an automobileshort distances. I R. 77. The court concluded that the decision was supported bysubstantial evidence and that the "evidence clearly reflect[ed]" that Knipe had aresidual functual capacity to do light work. I R. 77, 78.
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1516Mr. Knipe applied for disability insurance benefits, 42 U.S.C. Sec. 423(a)(1),and supplemental security income benefits. 42 U.S.C. Sec. 1382(a)(1). Under each, a claimant must be disabled to qualify for benefits. See, e.g., 42 U.S.C.Secs. 423(a)(1), 1382(a)(1). Our scope of review of a disability awarddetermination is restricted. We must uphold the decision if it is supported bysubstantial evidence. See 42 U.S.C. Sec. 405(g); Tillery v. Schweiker, 713 F.2d