John J. Devaul v. Secretary of Health and Human Services , 865 F.2d 257 ( 1988 )

865 F.2d 257

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
John J. DeVAUL, Plaintiff-Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.

No. 87-4118.

United States Court of Appeals, Sixth Circuit.

Dec. 13, 1988.

Before ENGEL, Chief Judge, WELLFORD, Circuit Judge and WILLIAM K. THOMAS,* Senior District Judge.

PER CURIAM.

1

John DeVaul appeals a summary judgment entered in the United States District Court for the Southern District of Ohio affirming the Secretary of Health and Human Services' denial of supplemental security income benefits.

2

DeVaul was born June 3, 1958 and has a high school education. He has worked in the past as a security guard. DeVaul, variously described as 5'7" and 5'9"' tall, weighs 425 pounds. On June 3, 1985, he applied for supplemental security income benefits alleging that he became disabled in December 1983, at age 25, by obesity. The application was denied initially and upon reconsideration. The administrative law judge issued a decision after a de novo hearing finding that although DeVaul met the height and weight requirements for obesity set out in 20 C.F.R. pt. 404, subpt. P, App. I, Listing 10.10, he failed to meet the remaining requirement that there be a history of pain and limitation of motion in any weight bearing joint "associated with x-ray evidence of arthritis in a weightbearing joint" because there was no such x-ray evidence of arthritis. He further found that DeVaul retained the ability to perform a full range of sedentary work and a very narrow range of light work. The administrative law judge therefore determined that DeVaul was not disabled under the Act. The Appeals Council denied review. On review, the district court found substantial evidence to support the administrative law judge's determination and affirmed the decision of the Secretary to deny benefits.

3

On appeal, DeVaul contends that although none of the examining physicians actually used the word "arthritis" that the record contains sufficient x-ray evidence to prove the existence of some degree of arthritis within the standards of the Act. DeVaul further contends that in addition to the x-ray evidence present, that the arthroscopy evidence present should also be considered and is further evidence of the presence of arthritis. Therefore, he concludes that the decision of the district court affirming the Secretary's denial of benefits should be reversed and benefits awarded.

4

In an opinion and order filed in the district court October 6, 1987, United States District Judge Joseph P. Kinneary agreed with the Secretary that DeVaul had failed to establish all of the specific requirements related to disability by reason of obesity as set forth in 20 C.F.R., Part 404, Subpart P, App. 1, Listing 10.10. Although meeting the weight requirement itself, DeVaul had failed to establish the requisite x-ray evidence of arthritis in a weight-bearing joint required by the regulation. Judge Kinneary found that the Secretary's decision not to infer such findings in the absence of evidence thereof was proper and is supported by substantial evidence. We agree.

5

Accordingly, the judgment of the district court is AFFIRMED.

*

The Honorable William K. Thomas, Senior Judge, United States District Court of the Northern District of Ohio, sitting by designation