Larsh v. Chater, 1996 DSD 40

Larsh v. Chater, 1996 DSD 40

DAVID LARSH,
Plaintiff,
v.
SHIRLEY SEARS CHATER,
Commissioner, Social Security Administration,
Defendant.
[1996 DSD 40]

United States District Court
District of South Dakota - Western Division
CIV. 96-5027

MEMORANDUM OPINION AND ORDER

Filed Nov 12, 1996

RICHARD H. BATTEY, Chief Judge

PROCEDURAL HISTORY

[ś1] On September 5, 1996, plaintiff David Larsh filed a motion moving this Court to enter summary judgment for claimant on the ground that no genuine issue as to any material fact exists and that therefore claimant is entitled to summary judgment as a matter of law (Docket #15). On October 4, 1996, defendant Chater (Commissioner) responded to Larsh's motion and filed a cross-motion for summary judgment (Docket #20). On November 1, 1996, a reply was filed by Larsh.

[ś2] Larsh filed an application for disability insurance benefits under Title II of the Social Security Act ("the Act"), 42 USC §§ 401-33, and an application for Supplemental Security Income ("SSI") benefits under Title XVI, 42 USC § 1381-1383. Initially, his applications were denied. Larsh next filed a Request for Reconsideration which was denied on December 17, 1993.

[ś3] Larsh then requested a hearing before an Administrative Law Judge ("ALJ"). The hearing was held on November 9, 1994. At that time the ALJ, believing that Larsh had not yet filed an application for Disability Insurance Benefits, requested that he file such an application.^(fn1) Pursuant to the ALJ's request, he filed the application that same day. (AR 342-345). On the day of the hearing, Larsh amended the alleged onset date of his disability; he alleged that he had been disabled since December 31, 1982.^(fn2) In his application of November 9, 1994, Larsh alleged disabling conditions of "ankle injury, hearing loss, sleeping disorder, . . . [illegible], substance abuse, depression, personality disorder, [and] PTSD [post-traumatic stress disorder]."

[ś4] In the ALJ's decision of December 12, 1994, Larsh's request for disability insurance benefits was denied. The ALJ concluded that Larsh was not disabled until January 1, 1989, and Larsh's insured status expired on March 31, 1985. The ALJ determined that prior to 1989 Larsh was able to perform a "full range of sedentary and probably light work activity." Due to the ALJ's decision, Larsh was not eligible for disability insurance benefits since his insured status expired almost four years before his disability date. Larsh is entitled to SSI benefits given the ALJ's decision that Larsh has been disabled since January 1, 1989.

[ś5] Larsh filed an appeal of the ALJ's decision, but the Appeals Council found no basis for granting Larsh's request. Larsh is before this Court seeking judicial review of the final decision made by the Commissioner which denied Larsh disability insurance benefits.

[ś6] This Court has jurisdiction under 42 USC § 405(g).

FACTS

[ś7] Larsh is currently forty-three years of age. From 1972 through 1975, Larsh served in the United States Army. (AR 34). Larsh testified while in the Army he was involved in unauthorized missions which targeted political officials who were sympathetic to the Vietcong. (AR 36). Larsh admitted to dealing drugs and being involved in the black market. According to Larsh, the army used this information to blackmail him. (AR 35-36). As a result, he felt forced to participate in these missions. (AR 36). Larsh testified that he felt he could either participate in the missions or spend the rest of his life in Leavenworth for the information the army had on him. (AR 36). First, Larsh was required to intercept and de-code messages from the enemy, but eventually, he became involved in assassinations. (AR 35-37). Larsh stated at the hearing that the last two people he killed were two journalists who had captured some of these activities on film. (AR 37). While in the army, Larsh developed a drug and alcohol problem. (AR 39, 369).

[ś8] Larsh graduated from high school prior to entering into the army. Beginning in 1976, Larsh started college four different times through a vocational rehabilitation program. (AR 34, 42). Larsh never completed any of the programs. (AR 34). Larsh quit college in 1991 because he had just come out of a divorce, he lost all the interest in the business that he and his ex-wife had owned, his health was failing, and he was having problems sleeping. (AR 35).

[ś9] After leaving the army, Larsh was employed as a logger until 1982. (AR 37). While he was working as a logger, he stated that he took drugs. (AR 39). Another logger stated that Larsh and he did drugs such as LSD, amphetamines, and marijuana. (AR 381-83). In 1981, Larsh's ankle was injured when a log rolled onto his foot. (AR 38). He returned to work, but he kept reinjuring his ankle and eventually his production decreased to the point where he could no longer made a living as a logger. (AR 38).

[ś10] After Larsh quit logging, he worked in his ex-wife's chain saw shop. (AR 39-40). Larsh worked in the shop from January of 1983 through June of 1988. (AR 329). Larsh would work at night because he could not deal with the customers. (AR 382-83). Larsh testified that if he was around customers he would fight with them and end up physically kicking them out of the store. (AR 40-41). Larsh did not earn any income from work in his ex-wife's shop. (AR 329). After his divorce, Larsh opened a pawn shop from April 1990 to April 1992. (AR 329). However, the pawn shop failed. According to Larsh, he closed the business because of his failing health and he was going through bankruptcy. (AR 329).

[ś11] Larsh also claims disability benefits based on his hearing loss and sleeping disorder. Larsh testified that he has had the hearing loss since he was in the military. (AR 41, 376). Larsh testified that his sleeping disorder also began in 1975 while he was still in the army and that when he returned to the states his disorder continued. (AR 41).

[ś12] In an SSI application filed on May 11, 1993, Larsh alleged that he was disabled due to a hearing impairment, depression, high blood pressure, lack of sleep, and an ankle injury. (AR 54). On the day of the hearing, November 9, 1994, Larsh alleged he was disabled because of an "ankle injury, hearing loss, sleeping disorder, . . ., substance abuse, depression, and a personality disorder, PTSD." (AR 342). On the application filed the date of the hearing, it is noted that the original file date of this application was May 11, 1993; however, it is not clear who added this information to Larsh's application. (AR 342).

STANDARD OF REVIEW

[ś13] The decision of the ALJ must be upheld if it is supported by substantial evidence on the record as a whole. 42 USC § 405(g); Metz v. Shalala, 49 F3d 374, 376 (8th Cir. 1995) (citing Sullins v. Shalala, 25 F3d 601, 603 (8th Cir. 1994), cert. denied US , 115 SCt 722, 130 LEd2d 627 (1995)); Smith v. Shalala, 987 F2d 1371, 1373 (8th Cir. 1993)). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support such a conclusion. Shannon v. Chater, 54 F3d 484, 486 (8th Cir. 1995) (citing Richardson v. Perales, 402 US 389, 401, 91 S. Ct. 1420, 1427, 28 LEd2d 842 (1971)). See also Onstead v. Sullivan, 962 F2d 803 (8th Cir. 1992) (quoting Whitehouse v. Sullivan, 949 F2d 1005, 1007 (8th Cir. 1991)). Review by this Court extends beyond a limited search for the existence of evidence supporting the Commissioner's decision to include giving consideration to evidence in the record which fairly detracts from the decision. Brockman v. Sullivan, 987 F2d 1344, 1346 (8th Cir. 1993); Locher v. Sullivan, 968 F2d 725, 727 (8th Cir. 1992); Turley v. Sullivan, 939 F2d 524, 528 (8th Cir. 1991). However, the Court's role under section 405(g) is to determine whether there is substantial evidence in the record as a whole to support the decision of the Commissioner and not to reweigh the evidence or try the issues de novo. Murphy v. Sullivan, 953 F2d 383, 384 (8th Cir. 1992). Furthermore, a reviewing court may not reverse the Commissioner's decision "merely because substantial evidence would have supported an opposite decision." Woolf v. Shalala, 3 F3d 1210, 1213 (8th Cir. 1993); Smith v. Shalala, 987 F2d at 1374 (citing Locher, 986 F2d at 727 (quoting Baker v. Heckler, 730 F2d 1147, 1150 (8th Cir. 1984))). The Court must review the Commissioner's decision to determine if an error of law has been committed. Smith v. Sullivan, 982 F2d 308, 311 (8th Cir. 1992); Nettles v. Schweiker, 714 F2d 833, 836 (8th Cir. 1983). The Commissioner's conclusions of law are only persuasive, not binding, on the reviewing court. Smith v. Sullivan, 982 F2d at 311; Satterfield v. Mathews, 483 FSupp 20, 22 (E.D. Ark. 1979), aff'd per curiam, 615 F2d 1288, 1289 (8th Cir. 1980). As long as the ALJ's decision is supported by substantial evidence, then this Court cannot reverse the decision of the ALJ even if the Court would have decided it differently. Smith v. Shalala, 987 F2d at 1374.

DISCUSSION

[ś14] For Larsh to be eligible for disability insurance benefits, he must be under a disability at the same time he is insured for disability insurance benefits. See 42 USC § 423(a)(1)(A)-(D). A disability is defined as

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.

Id. § 423(d)(1). The issue for the Court to consider is whether the ALJ had substantial evidence to establish that Larsh was not disabled prior to the expiration of his insured status on March 31, 1985. See 42 USC § 423(a) & (c). See also Battles v. Sullivan, 902 F2d 657 (8th Cir. 1990) (stating that for a Larsh to be eligible under Title II Larsh must establish she was disabled prior to the expiration of Larsh's insured status); Villa v. Heckler, 797 F2d 794 (9th Cir. 1986) (stating, "While the [Secretary] could of chosen an earlier onset date . . ., the question we face is whether the chosen onset date is supported by substantial evidence, not whether an earlier date could have been supported").

[ś15] In determining when Larsh's disability occurred in this case, the ALJ followed five prescribed steps. See Evaluation of Disability Rule, 20 C.F.R. § 404.1520 (1996). The steps are summarized as follows:

(1) First, a determination is made whether a disability Larsh is currently engaged in substantial gainful activity; if so, he must be found not disabled..

(2) If Larsh is not engaged in substantial gainful activity, the next question is whether he is suffering from a severe impairment, defined as one that significantly limits the ability to perform basic work-related functions. If a severe impairment is not found Larsh must be found not disabled.

(3) If there is a severe impairment, and it is one listed in Appendix 1 to Subpart P, Larsh is found disabled on the medical evidence alone. [ See Appendix 1 to Subpart P of Part 404, 20 C.F.R. §§ 404.1501 et seq. (1996)].

(4) If the impairment is not listed in Appendix 1, the next inquiry is whether Larsh can perform relevant past work. If he can, a finding of no disability is required.

(5) Finally, if Larsh cannot perform relevant past work, the question then becomes whether he can nevertheless do other jobs that exist in the national economy, despite his having a severe impairment that prevents return to his previous work.

McCoy v. Schweiker, 683 F2d 1138, 1141-42 (8th Cir. 1982). See also 20 C.F.R. § 404.1520; 1 Harvey L. McCormick, Social Security Claims and Procedures, § 410, at 346 (4th ed. 1991).

[ś16] In reaching his conclusion, the ALJ proceeded through the five steps listed above. Larsh bears the initial burden of proof that he cannot perform past work because of a severe impairment listed in Appendix 1 or similar to an impairment listed in Appendix 1. See Basinger v. Heckler, 725 F2d 1166 (8th Cir. 1984); McCoy, 683 F2d at 1146-47. Once the ALJ reaches step five the burden of proof shifts to the ALJ to show that Larsh is able to engage in other work in the national economy. Thompson v. Bowen, 850 F2d 346, 348 (8th Cir. 1988). In Larsh's case the ALJ reached the fifth step.

[ś17] Larsh states that the ALJ erred in not allowing him to fully develop his record and in establishing a complete record once the burden shifted. The Court holds that this case should be remanded to the ALJ for failure to fully develop the record. Given that the ALJ failed to fully develop the record in this case, the Court cannot determine if substantial evidence exists to support the ALJ's decision that Larsh was able to perform "full range of sedentary and probably light work activity."

[ś18] It is Larsh's position that mental impairments existed prior to the last insured date which prevented him from engaging in "basic work activities prior to his date last insured." Step two set forth above requires that the ALJ determine if the impairments of Larsh are severe. Larsh objects to the ALJ's finding that the medical evidence indicated that he only had impairments of a sleep-disorder, a bilateral sensorineural hearing loss, an affective disorder (dysthymia), and residuals of an ankle injury. According to Larsh, "There are records pre-dating Larsh's date last insured, which document Larsh's substance abuse, insomnia, relationship difficulties, depression and anxiety, which can be tied to his later diagnosis of personality disorder, depression and post traumatic stress disorder."

[ś19] While considering whether a mental impairment was present, the ALJ noted that there was little evidence prior to 1989 of Larsh's mental condition. He stated that prior to Larsh's divorce which began in 1988, the majority of the counseling which Larsh received was vocational and educational. The ALJ noted that in September of 1988, Larsh requested therapy to deal with his divorce and admitted that he was drinking heavily at that time. However, the ALJ relied on the fact that on September 21, 1988, Larsh's psychologist stated that Larsh was "capable of working" and "was not a danger to himself or anyone else." (Exhibit 13).

[ś20] In reaching his conclusion that Larsh's mental condition did not begin to deteriorate until January 1, 1989, the ALJ also pointed out that on January 1, 1989, Larsh told his psychologist that he was "extremely depressed, and [did not] know what to do." On that day, Larsh was diagnosed with major depression and the doctor recommended that Larsh voluntarily admit himself to treatment. In determining the onset date of Larsh's mental impairment, the ALJ noted that it was not until April of 1990 that Larsh was diagnosed with a dependant personality disorder. (Exhibit 14). The ALJ also concluded that Larsh's onset of his mental impairment was due in part to the fact that his wife received the business in early 1989 in their divorce property settlement. In determining when Larsh's mental impairment began, the ALJ stated that in January of 1989, Larsh presented himself to the VA center with complaints of depression and helplessness. (Exhibit 13).

[ś21] However, the Court "must [also] consider evidence that detracts from the Secretary's decision as well as evidence that supports it." Id.; Woolf v. Shalala, 3 F3d 1210 (8th Cir. 1993); Sykes, 854 F2d at 284. As support for Larsh's position that the onset date for his mental disorder occurred between December 31, 1982, and March 31, 1985, Larsh pointed to the medical records for support of "Larsh's substance abuse, insomnia, relationship difficulties, depression and anxiety (AR 369-380) which can be tied to his later diagnosis of personality disorder, depression and post traumatic stress disorder." In examining this medical report Larsh told the doctor that he felt depressed (AR 371) and the doctor stated that Larsh had a mild anxiety state. (AR 374). Larsh also pointed to the fact that a vocational expert who worked with Larsh for many years stated that he could never complete the vocational programs despite four attempts. (AR 337-338). The expert Beverly Blackwell stated that Larsh attempted to start his first program in 1976 but "because of his 'disability' he had a hard time completing the program." On November 7, 1994, Blackwell stated that "the only work I see Dave suited for is self-employment." Blackwell also noted that Larsh was capable of making minimal income. Larsh also relies on the fact that he stated that when he was working around customers he would end up having fights with them and physically kicking them out of the store. (AR 40-41). According to Larsh, the previous evidence substantiates that Larsh could not have performed substantial gainful activity prior to the date he was last insured. For evidence that Larsh has had psychiatric problems since the 1970s, Larsh also relies on affidavits of Craig Paranpo^(fn3) and David Lee Floretta.^(fn4)

[ś22] However, this Court may not merely reverse the decision of the ALJ "merely because substantial evidence would have supported the opposite decision." Woolf, 3 F3d at 1213 (citing Locher, 968 F2d at 727) (quoting Baker, 730 F2d at 1150)). However, the Court may remand the decision if it determines that the ALJ failed to fully develop the record. See, e.g., Jones v. Chater, 65 F3d 102, 104 (8th Cir. 1995) (stating that "we cannot speculate whether the ALJ rejected certain evidence" and ordering that the case be remanded to fill the void in the record); Highfill v. Bowen, 832 F2d 112, 115-16 (8th Cir. 1987) (citing Kane v. Heckler, 731 F2d 1216, 1219 (5th Cir. 1984) ("decision of ALJ based on insufficient facts is not supported by substantial evidence"); Dorsey v. Heckler, 702 F2d 597, 605 (5th Cir.1983) ("gaps in record as to material facts prevent conclusion that decision is supported by substantial evidence; remand required for taking of additional evidence necessary to adjust determination")). The Commissioner has the "duty to develop the record fully and fairly even if . . . claimant is represented by counsel." Battles v. Shalala, 36 F3d 43, 44 (8th Cir. 1994) (citing Boyd v. Sullivan, 960 F2d 733, 736 (8th Cir. 1992) (quoting Warner v. Heckler, 722 F2d 428, 431 (8th Cir. 1983))). According to the Eighth Circuit, "[A]n adequate hearing is indispensable because a reviewing court may consider only the Secretary's final decision [and] the evidence in the administrative transcript on which the decision was based." Battles, 36 F3d at 44 (quoting Higbee v. Sullivan, 975 F2d 558, 562 (9th Cir. 1992) (per curiam)).

[ś23] The law of the Eighth Circuit is that a claimant's claim should be investigated by the ALJ if the claim is presented at the time of the application or evidence of the disability is offered at the time of the hearing. Battles, 36 F3d at 45 n.2 (citing Brockman, 987 F2d at 1348). In Larsh's application filed pursuant to the ALJ's request, Larsh alleged that he suffered from a disability due to substance abuse. (AR 342). Despite evidence regarding Larsh's substance abuse, the ALJ failed to make any mention of Larsh's substance abuse in any of its medical findings from which it proceeded to conclude that no disability existed prior to January 1, 1989. See Lewis v. Califano, 574 F2d 452 (8th Cir. 1978). Despite evidence in Lewis of claimant's alcoholism, the ALJ failed to make a finding as to alcoholism. Id. at 455. In Lewis, the court concluded that it was error for the magistrate judge to make findings of fact regarding Larsh's alcoholism and for the district court to adopt those findings. Id. In Lewis, the court concluded that the ALJ failed to "develop a full and fair record." The case was therefore remanded. Id. Even if this Court feels that the evidence of Larsh's substance abuse is not sufficient to support a finding of a disability, "a district court may not, under the Social Security Act, make findings of fact to supplement those of the Secretary." Id. at 456 (citing 42 USC § 405(g); Torres v. Secretary of Health, Education & Welfare, 475 F2d 466 (1st Cir. 1973)).

[ś24] As far as substance abuse, the record presents testimony by Larsh as to his substance abuse during the relevant time frame (AR 40), affidavits of witnesses of his abuse,^(fn5) and medical reports stating that Larsh suffered from a substance abuse problem. The only remark that the ALJ made in reference to Larsh's substance abuse was that he started drinking heavily again because of his divorce. (AR 18). See Basinger, 725 F2d at 1169 (stating "[t]he subjective testimony of claimant, his family, and others must be considered by the administrative law judge, even if it is uncorroborated by objective medical evidence"). Larsh would be prejudiced by the Court's failure to remand the case if remand would affect the determination of the ALJ as to the onset date of Larsh's disability.

[ś25] As stated previously, the Court makes no finding as to whether the evidence of substance abuse is sufficient enough to constitute a severe impairment or effect the conclusion reached by the ALJ that Larsh was able to participate in unskilled sedentary work. Given that the ALJ did not address this matter, the Court is not able to determine if the ALJ's refusal to find Larsh's substance abuse as a severe impairment is based on substantial evidence. See Jones, 65 F3d at 104 (finding that case must be remanded to the ALJ to fill the void in the record because ALJ failed to address matter). The Court "cannot speculate whether or why an ALJ rejected certain evidence." Id. This Court concludes that the ALJ erred in failing to fully develop his record.^(fn6)

[ś26] Larsh also argues that the ALJ erred in looking to the vocational guidelines to determine if Larsh was disabled or not disabled. The law of the Eighth Circuit on this point is as follows:

[U]nder the principles announced in McCoy and Tucker the law in this circuit provides that an ALJ may use the Guidelines even though there is a nonexertional impairment if he finds, and the record supports the finding, that the nonexertional impairment does not diminish Larsh's residual functional capacity to perform the full range of activities listed in the [Medical Vocational] Guidelines.

Thompson, 820 F2d at 349-50. See Tucker v. Heckler, 776 F2d 793 (8th Cir. 1985). "If [Larsh's] nonexertional impairments significantly affect her residual functional capacity then the Guidelines are not controlling and may not be used to direct a conclusion of disabled or not disabled." Id. at 350. According to the court,

"[S]ignificant" refers to whether Larsh's nonexertional impairment or impairments preclude Larsh from engaging in the full range of activities listed in the Guidelines under the demands of day-to-day life. Under this standard isolated occurrences will not preclude the use of the Guidelines, however persistent nonexertional impairments which prevent Larsh from engaging in the full range activities listed in the Guidelines will preclude the use of the Guidelines to direct a conclusion of disabled or not disabled.

Id. On remand the Court should determine if any nonexertional impairments exist and if these impairments significantly affect Larsh's residual functional capacity.

[ś27] Accordingly, it is hereby

ORDERED that this case is remanded to fill all voids in the record.

Footnotes

1. The record is unclear as to whether Larsh had actually filed the appropriate application for disability benefits on May 11, 1993. (See AR 54-62). However, the application filed by Larsh on November 9, 1994, states that the actual filing date was on May 11, 1993. (AR 342). It is not clear who listed this information on Larsh's application. (See AR 342). However, the record is clear that the ALJ requested Larsh to fill out an application after his hearing with the ALJ.

2. At the hearing, the ALJ allowed Larsh to amend the date on which he alleged his disability began. Prior to Larsh's request to amend the onset date, he alleged an onset date of January 1, 1989.

3. Larsh states in his response to the Secretary's motion for summary judgment that the affidavit of Paranpo was not available to the ALJ at the time the ALJ made his decision. Larsh's response is the first time that this argument is made to the Court. Also, Larsh does not urge that the case be remanded because this evidence is new and material as in the case of Floretta's affidavit.

4. Larsh has requested that the case be remanded since Floretta's affidavit is new and material evidence in the case and was not available to the ALJ at the time of his decision. Given the Court's conclusion, the Court does not need to address this issue.

5. However, the affidavits of Floretta and Paranto were not available to the ALJ at the time of his decision. Without the affidavits there is still evidence of substance abuse which the ALJ failed to address. Larsh testified that he used drugs and alcohol. The ALJ failed to make a finding as to Larsh's credibility and Larsh's substance abuse problem.

6. On remand the ALJ should respond to all those impairments alleged by Larsh in his application of November 9, 1996, or for which evidence is presented.