United States District Court, District of South Dakota

Lyons v. Apfel, 1998 DSD 6

Opinion Filed Feb, 1998

Formatting courtesy of The State Bar of South Dakota
and South Dakota Continuing Legal Education, Inc.
222 East Capitol Ave.
Pierre, SD 57501

ROYCE D. LYONS,
Plaintiff,
v.
KENNETH S. APFEL,(1)
Commissioner of Social Security,
Defendant.
[1998 DSD 6]

United States District Court
District of South Dakota - Western Division
CIV 97-5067

MEMORANDUM OPINION AND ORDER

Filed Feb 18, 1998.

Richard H. Battey, Chief Judge

I. PROCEDURAL HISTORY

[¶1] On August 15, 1994, Royce D. Lyons (Lyons) filed an application for disability insurance benefits under Title II of the Social Security Act (the Act), 42 USC §§ 401-33, and Supplemental Security Income (SSI) benefits under Title XVI, 42 USC §§ 1381-1383. The claims were denied initially and upon reconsideration. Lyons then requested an administrative hearing which was held on June 12, 1996. In an opinion dated September 20, 1996, the Administrative Law Judge (ALJ), Eugene Anthony, issued an opinion denying Lyons benefits. Lyons filed an appeal with the Appeals Council which was denied. Accordingly, Lyons is before this Court requesting review of the decision made by the ALJ.

II. FACTS

[¶2] Lyons was born on September 1, 1949. He graduated from high school and completed five years of college level education. AR 211. He served two tours in Vietnam, and the doctors have concluded that his mental impairments may be linked to his service in Vietnam. AR 273, 322.

[¶3] In August of 1993, Lyons contacted Dr. Vosler complaining of depression and stated that he wanted to see a psychiatrist. On October 4, 1994, Lyons filled out a disability report claiming that he suffered from two disabling conditions, Post Traumatic Stress Disorder (PTSD) and Attention Deficit Disorder. AR 77. In his application for disability benefits, Lyons stated that he was seeing Dr. Tom Shannon, psychiatrist, as often as necessary; Dr. Pablo Faustino, psychiatrist, twice a month; Dr. Chris Elia, psychologist, weekly; Dr. John Edwards, psychiatrist, once; and Dr. Timmie Buckhalter, psychologist, biweekly. AR 86.

[¶4] Since 1992, Lyons has had several jobs, and he testified he has been fired from them all. AR 160. Lyons testified that he believes the attention deficit disorder affects his ability to work because he has problems concentrating. AR 50-52. Lyons testified that at work he would start feeling claustrophobic and need to get away. AR 52. Lyons also stated that he has difficulty getting along with the people with whom he works. AR 55. Lyons stated that he has problems working because he is hyperactive, moody, and stand-offish, and he has trouble with verbal instructions. AR 160. According to Lyons, he has a problem concentrating, and he does not have any long-term memory. AR 160. He has a difficult time starting and finishing a task. AR 160.

[¶5] Lyons has been living with his mother for three or four years, and she is mostly responsible for the household chores. In September of 1994, according to Lyons, his household chores included the cooking, the cleaning, the shopping, and vehicle maintenance. AR 87. However, in June of 1996, at the administrative hearing, Lyons stated that he rarely goes to the grocery store and that he is often late on paying his bills. AR 59-60. At the hearing, Lyons also testified that he is responsible for the outside chores. AR 60. Lyons is responsible for the gardening and the yard work, but if he loses interest in these household chores his mother will finish them. AR 159.

[¶6] Lyons is not able to golf pursuant to his doctors' orders because of the stress which he places on himself while golfing. However, Lyons has started working with horses and finds it enjoyable. AR 87. Some weeks he may work with the horses as much as two to three hours a day. AR 88. Other weeks he may only work with the horses one to two days out of the week. AR 88, 159. Lyons also stated that he tries to stay away from most social activities. AR 88. Lyons rarely visits other people; however, he may visit his family and friends weekly, but he ordinarily does not stay and socialize. AR 61, 159.

[¶7] Lyons stated that he takes care of all his personal needs. AR 158-62. He shaves a couple times a month.

[¶8] Lyons estimates that he has worked fifty to sixty jobs in his lifetime. In 1991 and 1992, Lyons worked as a blackjack dealer in Nevada. AR 97. This job lasted approximately a year. In 1993, he worked as a rough carpenter for Alan Loken and Marv Thompson. AR 97. Both jobs lasted three months. Lyons finished the job for Thompson, but the job for Loken ended because Lyons could not get along with his coworkers. AR 97. During the fall of 1994, Lyons was self-employed for two months. As of September 30, 1994, Lyons was employed by CWT in Fort Meade, South Dakota. AR 90. Lyons started working for CWT on July 17, 1994. His job with CWT lasted at least four months. AR 90. In late November of 1994, through mid-January of 1995, Lyons worked as a trucker hauling livestock. AR 98. The record reveals that the job lasted at least six weeks. AR 98.

[¶9] Prior to 1992, Lyons also held several jobs. See AR 94-97. He worked as a bartender, a cook, a sales clerk, an assistant manager, a bus driver, a truck driver, a night guard, an insurance salesman, and an oiler. According to Lyons, several of these jobs ended because of his difficulty in getting along with other people.

[¶10] At the administrative hearing Dr. Douglas J. Wessel, psychologist, testified as a medical expert. AR 39. Based upon an examination of the exhibits submitted, Dr. Wessel diagnosed Lyons with post traumatic stress disorder, bipolar disorder Type II, and alcohol abuse in remission since September of 1992. AR 39. Dr. Wessel testified that Lyons' disorders relate back to his experiences in Vietnam. AR 43. He rejected a diagnosis of Attention Deficit Disorder for Lyons. AR 44. Dr. Wessel noted that the record revealed that Lyons has received sufficient medical treatment and that he has complied with his treatment. AR 42-43. Dr. Wessel felt that Lyons' mental impairments only slightly restrict his daily activities and slightly restrict his social functioning. AR 47. As to Lyons' deficiencies of concentration, persistence, and pace, Dr. Wessel rated them as happening often. AR 48. Although, the doctor noted that Lyons' current medication was helping control these deficiencies. AR 48. Dr. Wessel noted that after Lyons had been taking his medication the neuropsychological evaluation of Dr. Gardner revealed that his concentration and attention were in the high average category. AR 48, AR 205. Dr. Gardner noted overall improvement in Lyons' cognitive skills resulting from his treatment, cognitive rehabilitation, medication, and individual psychotherapy. AR 206. The record reveals that Dr. Gardner diagnosed Lyons with Attention Deficit Disorder and PTSD. AR 203-05.

[¶11] In May of 1994, the vocational rehabilitation specialist noted that he was concerned about Lyons' ability to maintain long-term employment. However, the specialist did note that he had good concentration in his cognitive rehabilitation therapy and that he was a hard worker. In a functional capacities assessment dated March 16, 1995, the narrative section concludes that Lyons' work with horses reveals tolerance, persistence, and cognitive skills. AR 120. The assessment found that Lyons was not significantly limited as to his understanding and memory, sustained concentration and persistence, and adaption. As to social interaction, Lyons was not significantly limited, except for his ability to accept instructions where he was found to be moderately limited. AR 118-119.

[¶12] In 1994, Lyons was on medication to control his temper. AR 77. In March of 1995, Lyons was also taking sleeping pills, Lithium, Prozac, Trazodone, Perphenazine, and Benzitropine for his condition. AR 158, 160.

III. OPINION OF THE ALJ

[¶13] Both Lyons and Dr. Douglas Wessel (Dr. Wessel) testified at the administrative hearing, and the ALJ received exhibits one through twenty-nine.

[¶14] In determining whether Lyons was disabled, the ALJ first considered if Lyons had engaged in substantial gainful activity since his alleged onset date, September 1, 1992. The ALJ concluded that Lyons performed substantial gainful activity until January of 1995 when the record shows he last worked. Second, the ALJ considered if Lyons' impairments or combination of impairments were severe. The ALJ found that several of Lyons' medical complaints were not severe. The ALJ held that the affective disorder and the anxiety related disorder which Lyons suffers from were severe. Third, the ALJ considered if Lyons' severe impairments met or equaled the listing of impairments. The ALJ did not find that Lyons' severe impairments met or equaled the listing of impairments.

[¶15] Fourth, the ALJ determined Lyons' residual functional capacity and the physical and mental demands of his past work. In making this finding, the ALJ noted that he is to consider the medical evidence and Lyons' subjective complaints of pain. The ALJ noted that if he were to accept all of Lyons' allegations as true, he would conclude that Lyons could not "sustain the mental demands of work at any exertional level and that a finding of 'disabled' would be warranted." However, the ALJ found that some of Lyons' allegations conflicted with other evidence in the record; therefore, the ALJ found that not all of Lyons' subjective restrictions to be credible. In reaching his conclusion, the ALJ considered that Lyons alleged that he had not been able to work since August of 1992 as a result of his mental impairments; however, the ALJ noted that Lyons did not receive treatment for these impairments until June of 1993. The ALJ also discussed the treatment received by Lyons since 1993. After Lyons had been seeking treatment and taking medication for three months, Dr. James Gardiner, Ph.D., stated that Lyons' attention and cognitive skills had improved significantly. The ALJ also relied on the fact that in June of 1994, Lyons had told Dr. DuPraw that his depression symptoms were improving.

[¶16] Conclusions reached by Dr. Elwin Upton, M.D., in May of 1995, and by Dr. Wessel were also mentioned by the ALJ. Dr. Upton noted that Lyons was well oriented, cooperative, had average intelligence, and a good fund of general knowledge. Dr. Upton also stated that Lyons did not appear depressed nor was there any evidence of concentration problems. Dr. Upton diagnosed Lyons with post traumatic stress disorder (PTSD) and alcohol dependence in remission. Dr. Upton did not diagnose Lyons with Attention Deficit Hyperactivity Disorder. Dr. Wessel agreed with Dr. Upton that a diagnosis of Attention Deficit Hyperactivity Disorder was unwarranted. The ALJ relied on the fact that none of Lyons' treating physicians and examining physicians placed any limitations on his functioning or noted that Lyons had any side effects from the medication which would prevent him from working.

[¶17] The ALJ recognized that Lyons has significant mental disorders which will place some functional limitations on this claimant. However, the ALJ concluded, "the evidence does not show that the claimant is precluded from satisfying the mental demands of all work." According to the ALJ:

The evidence from the Veterans Administration shows good results from treatment and notes continuing progress. It shows that the claimant has held many jobs in the last few years. But this also indicates that he can seek out employment when desired, and that he is capable of learning new tasks and procedures. Although the claimant alleges he cannot concentrate sufficiently to perform the tasks of a carpenter, the medical evidence does not document such deficiencies in concentration or attention. By his own testimony, the claimant has successfully worked in numerous skilled occupations, such as long haul truck driving, in which the ability to concentrate, attend to details, and persist in tasks is part of the basic job requirements. He cares for a wide range of personal and household tasks and other activities of daily living without more than a slight interference from psychologically based symptoms. Furthermore, the evidence does not demonstrate more than a moderate deficiency in the claimant's concentration, persistence or pace. Neither he nor medical evidence has not demonstrated that he is incapable of performing skilled work, much less unskilled, simple one and two step instructions.

AR 17-18. The ALJ also considered that although Lyons may have difficulty working with others that the exacerbations of his symptoms which he has experienced last only a short time and then claimant is able to resume employment. The ALJ stated that Lyons has been able to sustain employment for extended periods of time even in jobs with regular contact with other employees. The ALJ also relied on examining physicians and the physicians' therapy notes which "show the claimant can be cooperative and maintain adequate social interaction over an extended period of time." The ALJ concluded that Lyons can perform jobs which have minimal public contact such as truck driving and carpentry.

[¶18] Based upon the record, the ALJ held that Lyons is able to perform past relevant work. Accordingly, the ALJ concluded that Lyons was not disabled.

IV. STANDARD OF REVIEW

[¶19] 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 (8^th Cir. 1995) (citing Sullins v. Shalala, 25 F3d 601, 603 (8^th Cir. 1994), cert. denied, 573 US 1076, 115 SCt 722, 130 L. Ed. 2d 627 (1995)); Smith v. Shalala, 987 F2d 1371, 1373 (8^th 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 (8^th Cir. 1995) (citing Richardson v. Perales, 402 US 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971)). See also Onstead v. Sullivan, 962 F2d 803 (8^th Cir. 1992) (quoting Whitehouse v. Sullivan, 949 F2d 1005, 1007 (8^th 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 (8^th Cir. 1993); Locher v. Sullivan, 968 F2d 725, 727 (8^th Cir. 1992); Turley v. Sullivan, 939 F2d 524, 528 (8^th Cir. 1991).

[¶20] 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 (8^th Cir. 1992). 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 (8^th 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.

V. DISCUSSION

[¶21] For Lyons to be eligible for disability insurance benefits, he must be under a disability at the time he was insured for disability insurance benefits. See 42 USC § 423(a)(1)(A)-(D). Lyons' alleged onset date is September 1, 1992. However, the ALJ concluded that Lyons performed substantial gainful activity until January of 1995. Lyons has not directly challenged this conclusion by the ALJ.⁽²⁾

[¶22] 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).

[¶23] In determining when a disability has occurred in a case, the ALJ must follow five prescribed steps.⁽³⁾ See Evaluation of Disability Rule, 20 CFR § 404.1520 (1996). Lyons has made the following four objections to the decision reached by the ALJ: (1) that the ALJ misapplied the psychiatric review procedure prescribed by the Act and regulations; (2) that the ALJ's conclusion that Lyons is able to perform past relevant work is not supported by the record; (3) that the ALJ failed to consider a treating physician's opinion in concluding that Lyons' mental impairments did not meet the listing-level criteria; and (4) that the ALJ's assessment of Lyons' credibility was not supported by the record. Lyons does not challenge the ALJ's conclusion that several of his physical complaints were not severe. The issue for this Court is whether there is substantial evidence to support the ALJ's conclusion that Lyons' affective disorder and anxiety-related disorder were not so severe that he is incapable of performing past relevant work.

A.

[¶24] This Court will first address whether the ALJ misapplied the psychiatric review procedure which is prescribed by the Act and regulations. Lyons argues that the ALJ violated this procedure in two ways. First Lyons states that the ALJ "is required to consider claimant's social and occupational functioning during the extremes of mood and behavior. However, Judge Anthony based his decision on Lyons' functioning during the temperate phases of his bipolar illness." Plaintiff's Memorandum in Support of Summary Judgment (Plaintiff's Brief) at 15. This Court does not find that the ALJ failed to consider Lyons' deterioration in work settings. The ALJ discussed Lyons' claims that he was unable to maintain a job because of his temper, that he is unable to work with others, mood swings, anger, and that others do not want to work with him. However, the ALJ chose not to accept all of Lyons' allegations as credible. The ALJ noted that "claimant has experienced exacerbations in his symptoms in work and work like settings." AR 18. Lyons argues that the ALJ erred in assessing Lyons' ability to get a job instead of considering whether Lyons could keep a job. AR 17-18. However, the ALJ also stated that "the evidence also shows that he has sustained extended periods of gainful employment even in jobs with regular contact and interaction with supervisors, coworkers and the public." AR 18. This Court finds substantial evidence in the record that the psychiatric review was properly applied by the ALJ.

[¶25] Lyons' second objection as to the ALJ's psychiatric review is that the ALJ considered how Lyons' functioned socially within a structured program and not within the real world. This Court does not agree. The ALJ discussed Lyons' work record and medical record and found that he was able to function within the "real world."

[¶26] Lyons' third objection as to the ALJ's psychiatric conclusion is that the ALJ's assessment of Lyons' deficiencies in concentration, persistence, or pace were not supported by substantial evidence contained in the record. In reaching his conclusion, the ALJ relied on that fact that Lyons had worked in numerous skilled occupations. The ALJ pointed out as one example truck driving. The ALJ also stated that Lyons did a wide range of personal and household tasks without interference from his psychological symptoms.

[¶27] Accordingly, the Court finds that there is substantial evidence in the record to support that the ALJ properly applied the psychiatric review procedure.

B.

[¶28] Lyons' second objection is that the ALJ's conclusion that he is able to perform past relevant work is not supported by the record and was an error of law. The ALJ concluded that Lyons could perform several of his past jobs including that of truck driver and carpenter. Lyons worked for Diamond Construction as a carpenter. The record appears to reveal that he worked there for approximately one month. AR 90. The record also reveals that he worked for Iverson Construction as a carpenter for three months or less. AR 91. In 1993, Lyons worked again as a carpenter. This job lasted three months and ended, according to Lyons, because he could not get along with other employees. AR 97. In 1993, Lyons also worked for Marv Thompson at Thompson Construction. This job also lasted only three months. The job ended because he finished the job. AR 97. From late November of 1994 into January of 1995, Lyons worked as a truck driver transporting sheep, goats, and cattle. This job lasted approximately six weeks.

[¶29] This Court finds that the ALJ erred in failing to fully develop the record as to Lyons' past relevant work. The Court finds that the record is insufficient to support the ALJ's conclusion that Lyons could perform past relevant work as a carpenter or truck driver. In concluding that Lyons could perform his past relevant work as a truck driver or a carpenter, the ALJ failed to investigate the demands that truck driving and working as a carpenter would have on Lyons' mental impairments.

[¶30] The Commissioner has promulgated specific guidelines that the ALJ must follow when determining if a claimant is able to perform past relevant work. Salts v. Sullivan, 958 F2d 840, 844 (8^th Cir. 1992). One such guideline is Social Security Ruling 82-62 (SSR 82-62). Id. According to the Eighth Circuit,

The ALJ must obtain detailed information regarding the mental and physical demands of the past work, and "for a claim involving a mental/emotional impairment, care must be taken to obtain a precise description of the particular job duties which are likely to produce tension and anxiety, e.g., speed, precision, complexity of tasks, independent judgments, working with other people, etc., in order to determine if the claimant's mental impairment is compatible with the performance of such work.

Id. (citing SSR 82-62, Soc. Sec. Rep. at 811-12). The Eighth Circuit has held that "the ALJ must specifically set forth the claimant's physical and mental limitations, along with the physical and mental requirements of the claimant's past work." Id. Only when the ALJ does so can an ALJ properly determine if a claimant is capable of performing past relevant work. An ALJ's conclusory statement that a claimant is able to perform past relevant work is not sufficient. Id. (citing Groeper v. Sullivan, 932 F2d 1234, 1238 (8^th Cir. 1991)).

[¶31] In this case as to step four, whether claimant is able to perform past relevant work, the ALJ stated as follows:

Step four of sequential evaluation asks whether the claimant can perform any of his past relevant work. Based on descriptions of some of his past jobs in the last 15 years, the claimant retains the functional capacity to satisfy the exertional and non exertional demands of several of his past jobs, including that of truck driver and carpenter.

Therefore, the undersigned finds that the claimant is "not disabled" at any time during the relevant period of this decision. Accordingly, he is not entitled to the benefits for which he has applied.

AR 18. This conclusory statement by the ALJ that claimant is able to perform past relevant work does not meet the requirements of SSR 82-62 and Eighth Circuit case law. The ALJ did not specifically set forth the mental requirements of Lyons' past jobs which the ALJ believed that Lyons was capable of performing. Salts, 958 F2d at 844.

[¶32] The Eighth Circuit has held that remand is not required if the record contains substantial evidence that a claimant is able to perform past relevant work. Groeper v. Sullivan, 932 F2d 1234, 1238 (8^th Cir. 1991) (citing Battles v. Sullivan, 902 F2d 657, 659 (8^th Cir. 1990)). In Groeper, the record did not contain evidence as to the mental demands of the claimant's past work. The court in Groeper remanded the case to the ALJ, in part, because "[t]he ALJ failed to set forth the specific requirements of Groeper's past work." Id. at 1239. The record does not contain evidence of the mental demands of Lyons' past relevant work which would support the ALJ's conclusion. The record does not contain evidence in its descriptions submitted by Lyons as to the specific mental demands which are involved in Lyons' past relevant work including truck driving and carpentry.

[¶33] The decision of whether Lyons is capable of performing past relevant work is not a decision which the ALJ or this Court should take lightly. The Social Security ruling interpreting the regulations as to past relevant work states:

The decision as to whether the claimant retains the functional capacity to perform past work which has current relevance has far-reaching implications and must be developed and explained fully in the disability decision. Since this is an important and, in some instances, a controlling issue, every effort must be made to secure evidence that resolves the issue as clearly and explicitly as circumstances permit.

Kirby v. Sullivan, 923 F2d 1323, 1326 (8^th Cir. 1991). This Court finds that the ALJ failed to develop and explain fully why Lyons retains the functional capacity to perform past relevant work. This Court cannot find that this important decision is supported by substantial evidence in the record.⁽⁴⁾

C.

[¶34] Lyons also objects that the ALJ erred in failing to consider the medical opinion of Dr. Elia. The Court does not find this to be error. Lyons argues that Dr. Elia's opinion should have been considered because he was "a treating source." Lyons does not argue that Dr. Elia was the only treating physician, but a treating source. The ALJ is not required to discuss every piece of evidence presented, but must develop the record fully and fairly. Miller v. Shalala, 8 F3d 611, 613 (8^th Cir. 1993). The Court does not find that the ALJ erred in failing to discuss Dr. Elia's opinion.

D.

[¶35] Lyons also objects to the ALJ's credibility assessment of him. This Court finds that the ALJ's credibility determination was not error and that substantial evidence in the record supports the finding. The ALJ first discussed the testimony of Lyons. However, the ALJ concluded that this testimony was in conflict with the rest of the record. In discrediting Lyons, the ALJ thoroughly discussed the medical evidence contained in the record and that he has had several jobs in the past few years. The ALJ also discussed the independent opinion of medical expert Dr. Wessel and his reasons for relying on Dr. Wessel's conclusions. This Court does not find that the ALJ erred in assessing Lyons' credibility.

VI. CONCLUSION

[¶36] Based upon the discussion set forth above, it is hereby

[¶37] ORDERED that this case is remanded for the ALJ to determine pursuant to SSR 82-62 whether Lyons is capable of performing past relevant work.

Footnotes

1. Kenneth S. Apfel was sworn in as Commissioner of Social Security on September 29, 1997. Pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, Kenneth S. Apfel should be substituted, therefore, for Acting Commissioner John J. Callahan as the defendant in this suit. No further action need be taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 USC § 405(g).

2. Lyons indirectly challenges that he engaged in substantial gainful activity until January of 1995 by arguing that the ALJ erred in defining his work as a truck driver and a carpenter as past relevant work. Lyons argues that these jobs were unsuccessful work attempts and therefore cannot be defined or considered as past relevant work which he is capable of performing.

3. The steps are summarized as follows:

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

(2) If claimant 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, claimant must be found not disabled.

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

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

(5) Finally, if claimant 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 (8^th Cir. 1982). See also 20 CFR § 404.1520; 1 Harvey L. McCormick, Social Security Claims and Procedures § 410, at 346 (4^th ed. 1991).

4. Based upon the Court's conclusion, the Court declines to address the issue of whether the ALJ erred in defining Lyons' jobs as a truck driver or carpenter as past relevant work. Lyons' argument is essentially that if under the regulations a job is defined as an unsuccessful work attempt that the job cannot then be defined as past relevant work which a claimant is capable of performing.