United States District Court, District of South Dakota
Opinion Filed Jan 20, 1998
Formatting courtesy of The State Bar of South Dakota
and South Dakota Continuing Legal Education, Inc.
222 East Capitol Ave.
Pierre, SD 57501
KENNETH J. McKEE,
KENNETH S. APFEL,
Commissioner of Social Security,
[1998 DSD 2]
United States District Court
District of South Dakota-Western Division
MEMORANDUM OPINION AND ORDER
Opinion Filed Jan 22, 1998
Richard H. Battey, Chief Judge
NATURE AND PROCEDURAL HISTORY
[¶1] Pending before the Court is plaintiff's motion to reverse, or in the alternative remand, the decision of the commissioner of social security denying him disability insurance and defendant's motion for summary judgment to affirm. Plaintiff protectively filed for disability insurance benefits on November 1, 1994. After being denied through the reconsideration level, he timely requested a hearing which was held before an Administrative Law Judge (ALJ) on July 30, 1996. (A.R. 12). At the hearing, Kenneth J. McKee (McKee) was represented by counsel, James D. Leach. Id. McKee, Lynn Meiners, Ph.D., a psychologist, and vocational expert Robert Peregrine provided testimony at the hearing. (A.R. 33-116). Plaintiff's date of birth is October 9, 1951. He was 44 years of age on the date of the ALJ's decision.
[¶2] On August 23, 1996, the ALJ issued his decision denying McKee's claim for disability insurance benefits. (A.R. 24). The ALJ determined that McKee was not disabled according to the regulations. (A.R. 22). On June 6, 1997, the Appeals Council declined review of the ALJ's determination. (A.R. 3-4). On July 31, 1997, McKee commenced this action to review the Commissioner's final decision denying his claim. See Docket #1.
[¶3] This Court has jurisdiction under 42 USC § 405(g) and 42 USC § 1383(c)(3).
[¶4] A. MEDICAL EVIDENCE
[¶5] In the late 1970s McKee underwent surgery to repair a torn ligament in his left shoulder. (A.R. 69). In 1991 he had carpal tunnel surgery on his left wrist. (A.R. 70). In 1992 a double hernia operation was performed. Id. McKee has permanent nerve and skin damage on his right hand from severe burns received as a child. Id.
[¶6] McKee's last day of work was February 12, 1993, at which time he underwent surgery to repair a herniated disc caused from his work as a miner. (A.R. 71). He enrolled in a work hardening program in the summer of 1993 which resulted in increased back pain. (A.R. 72). His treating physician, Dr. Larry Teuber, recommended that he lift no more than 10 pounds, or a maximum of 20 pounds, no more than twice a day. (A.R. 85). On February 28, 1995, Dr. Teuber also diagnosed McKee with degenerative lumbar disc disease and low back pain with bilateral leg aching caused by degenerative arthritis of the lumbar spine. (A.R. 225). On April 22, 1996, Dr. Teuber indicated that McKee suffered from post laminectomy syndrome cause by chronic nerve root injury. (A.R. 236).
[¶7] There also exists substantial evidence concerning McKee's mental condition. McKee testified that he has contemplated suicide and that he has crying spells once or twice a week which last for ten minutes to an hour. (A.R. 77-79). He has tried using Prozac and amitriptyline but discontinued them due to the side effects and expense. (A.R. 79-80). After a series of tests, Dr. Meiners diagnosed McKee's depression as "moderate to severe." (A.R. 243). She also concluded that he was unemployable due to his mental condition. (A.R. 244). She determined that McKee met the requirements of the 20 CFR Pt. 404, Subpt. P, App. 1 §12.04 listing for affective disorders. (A.R. 51-53). A PRTF submitted by Dr. Margaret Carver, McKee's treating psychiatrist, after the ALJ hearing also indicates that McKee's condition satisfies the § 12.04 listing. (A.R. 248-56).
[¶8] B. ALJ DECISION
[¶9] In evaluating McKee's claims, the ALJ applied the five-step sequence specified in 20 CFR §§ 404.1520 (Title II), 416.920 (Title XVI). (A.R. 13-22).(1) The ALJ first determined that McKee had not engaged in substantial gainful activity since February 11, 1993. (A.R. 13; A.R. 23 (Finding 2)). In step two of the sequential evaluation, he determined that McKee's back injuries constituted a severe physical impairment. (A.R. 14; A.R. 23 (Finding 3)). However, the ALJ discounted McKee's claims of a severe mental impairment as not supported by the evidence. Id. The ALJ concluded in step three of the sequential evaluation that although McKee's physical impairments may be considered "severe," they are not impairments which meet or equal an impairment listed in 20 CFR Part 404, Subpt. P, App. 1. Id.
[¶10] In step four of the sequential evaluation, the ALJ determined that based on the medical evidence and testimony, McKee would be unable to return to his past relevant work as a miner because of the exertional requirements involved. (A.R. 21; A.R. 23 (Finding 6)). Under step five of the sequential evaluation, the ALJ acknowledged that the Commissioner had the burden of proving that a significant number of jobs existed in the national and regional economies which McKee could still perform considering his combined medically determinable impairments, functional limitations, age, education, and past work experience. (A.R. 21-22).
[¶11] The ALJ made a determination that McKee's allegations regarding the severity and extent of his pain and suffering were inconsistent with the overall evidence (A.R. 15-17; A.R. 23 (Finding 4)). The ALJ concluded that McKee has the residual functional capacity to perform the physical exertional and nonexertional requirements of a full range of sedentary work and a limited range of light work with some lifting and bending restrictions. (A.R. 23 (Finding 5)).
[¶12] Based in part on the testimony of Robert Peregrine, a vocational expert, the ALJ found McKee to have some transferable work skills and that jobs exist in significant numbers in the national and regional economy which McKee is capable of performing. (A.R. 23 (Finding 9)). Examples of the types of positions which McKee is capable of performing, according to the ALJ, include recreation and amusement facility attendant, park aide, security guard, school bus monitor, and crossing guard. (A.R. 22; A. R. 23 (Finding 9)). Therefore, the ALJ concluded that McKee is not disabled as defined by the Social Security Act. (A.R. 22; A.R. 24 (Finding 11)).
STANDARD OF REVIEW
[¶13] The decision of the ALJ must be upheld if it is supported by substantial evidence in 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)); 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 L. Ed. 2d 842 (1971)). 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 is to determine whether there is substantial evidence in the record as a whole to support the decision of the Commissioner and not to re-weigh 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))).
[¶14] In addition to reviewing the Commissioner's decision to determine if it is supported by substantial evidence in the record as a whole, 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, 982 F2d at 311; Satterfield v. Mathews, 483 F. Supp. 20, 22 (E.D. Ark. 1979), aff'd per curiam, 615 F2d 1288, 1289 (8th Cir. 1980).
[¶15] In support of his motion to reverse, McKee contends the ALJ's decision was in error for the following reasons: (1) the ALJ's finding that his depression was not severe was not supported by substantial evidence; (2) the ALJ and the Appeals Council failed to properly consider the PRTF submitted by McKee's treating psychologist; (3) failure to apply the multiple impairment rule of 20 CFR § 404.1523 ; (4) inadequate hypothetical questions were posed to the vocational expert; (5) holding that common sense, reading, and writing were transferable skills; (6) allowing the use of part-time jobs to satisfy the substantial gainful employment opportunities requirement of step 5; and (7) taking administrative notice without substantiation of "over 200" occupations suitable for McKee. See Brief in Support of Motion to Reverse (Plaintiff's Brief) at 1-18
[¶16] 20 CFR § 404.1520 outlines the procedure necessary to determine if a claimant is disabled. Subpart (d) of §404.1520 indicates that if the impairment involved meets or is equal to a listed impairment in Appendix 1, the claimant is disabled and the inquiry ceases. Part of this calculus includes an inquiry into the mental state of claimants when so presented. In this case, the ALJ examined the medical evidence in light of 20 CFR §404 Subpt. P, App. 1, § 1.05(C) (Listing § 1.05) and determined that claimant had not met the burden of establishing all the elements required in that section.
[¶17] The ALJ did not find the evidence of depression and other mental infirmities compelling and was skeptical of the value of Dr. Meiners' psychological evaluation of the plaintiff. He questioned the capacity of Dr. Meiners to make the sweeping pronouncements concerning McKee's inability to pursue substantial gainful employment based solely on a single one-and-a-half to two hour examination. (A.R. 19). Such a report may, according to the ALJ, indicate the presence of depression on the single day on which he was examined, but does not support a conclusion that he suffers from an ongoing mental impairment. Id. The ALJ found that McKee's ability to attend college classes and maintain a B+ average over a three-year period significantly undercut Dr. Meiners' diagnosis of a long-term mental impairment. (A.R. 19-20).
[¶18] McKee appealed the ALJ's decision to the Appeals Council and included a PRTF from Dr. Margaret D. Carver, McKee's treating psychiatrist. (A.R. 3). The Appeals Council denied McKee's request for review of the ALJ's decision. Id. In so doing the Appeals Council determined that Dr. Carver's PRTF, as well as her notes, did not provide sufficient basis for changing the decision made by the ALJ. Id.
[¶19] In considering an application for disability benefits, the ALJ is required to consider all the evidence presented in the case record. 42 USC § 423 (d)(5)(B). Furthermore, when additional evidence, not considered by the ALJ, is presented to the Appeals Council it becomes part of the record upon review by the district court. Mackey v. Shalala, 47 F3d 951, 953 (8th Cir. 1995) ("[O]ur task is only to decide whether the ALJ's decision is supported by substantial evidence in the record as a whole including the new evidence deemed material by the Appeals Council that was not before the ALJ."); Nelson v. Sullivan, 966 F2d 363, 366 (8th Cir. 1992) ("If, as here, the Appeals Council considers the new evidence but declines to review the case, we review the ALJ's decision and determine whether there is substantial evidence in the administrative record, which now includes the new evidence to support the ALJ's decision.") (citing Browning v. Sullivan, 958 F2d 817, 823 (8th Cir. 1992). Working from these two guiding principles it is clear that the ALJ thoroughly evaluated the evidence in the case including the evidence of disability based upon psychological stress and depression.
[¶20] The ALJ is not required to give Dr. Meiners' analysis particular weight. Beasley v. Califano, 608 F2d 1162, 1165 (8th Cir. 1979) ("[N]either the opinion of Dr. Sanders that Beasley is 'essentially completely disabled' nor the disability ratings given him by his former employer and the Veterans Administration are dispositive" ); Janka v. Secretary of Health, Educ. & Welfare, 589 F2d 365, 369 (8th Cir. 1978). Dr. Meiners' analysis and McKee's own testimony concerning his mental condition combined with the PRTF from Dr. Carver support the decision of the ALJ.
[¶21] Given all the evidence in the record, the Court finds that the decision of the ALJ finding that the plaintiff is not disabled is supported by substantial evidence in the record as a whole.
[¶22] Accordingly, it is hereby
[¶23] ORDERED that plaintiff's motion for reversal of the decision of the ALJ is denied. Judgment shall be issued against plaintiff and in favor of Kenneth S. Apfel, Commissioner of Social Security. Costs shall be not be assessed against the plaintiff, Kenneth J. McKee.
1. The determination of whether a claimant is entitled to Title II disability insurance benefits or Title XVI supplemental security income benefits must be made according to the following five-step sequential evaluation. See 20 CFR § 404.1520 (Title II); 20 CFR § 416.920 (Title XVI). Step One: The ALJ must determine if the claimant is engaged in "substantial gainful activity." If so, the claimant cannot be found disabled. Step Two: If the claimant is not engaged in substantial gainful activity, the ALJ must determine if the claimant suffers from a "severe impairment." Step Three: If the claimant does have a severe impairment, the ALJ must next determine if this impairment meets or equals an impairment listed in 20 CFR Part 404, Subpt. P, App. 1. If the claimant has a listed impairment, then the claimant must be found to be disabled. Step Four: If the claimant does not have a listed impairment, the ALJ must determine whether the claimant can return to his or her past relevant work. If the claimant can return to past relevant work, he or she is not entitled to benefits. Step Five: If the claimant cannot return to past relevant work, then the burden shifts to the Commissioner to demonstrate that the claimant can do some other work which exists in substantial numbers in the national economy. If the Commissioner does not carry this burden, the claimant must be found to be disabled.