United States District Court, District of South Dakota
Opinion Filed Mar 30, 1998
Formatting courtesy of The State Bar of South Dakota
and South Dakota Continuing Legal Education, Inc.
222 East Capitol Ave.
Pierre, SD 57501
ERNEST G. OPP,
KENNETH S. APFEL,
Commissioner of Social Security,
[1998 DSD 9]
United States District Court
District of South Dakota - Western Division
MEMORANDUM OPINION AND ORDER
Opinion Filed March 30, 1998
RICHARD H. BATTEY, CHIEF JUDGE
NATURE AND PROCEDURAL HISTORY
[¶1] Pending before the Court are cross motions for summary judgment by both parties in this social security case. On December 21, 1992, plaintiff filed for disability insurance benefits under Title II of the Social Security Act 2, USC §§ 401-433. Plaintiff's date last insured was June 30, 1983, and he indicated a disability onset date of July 22, 1979. Plaintiff's Brief at 3; (A.R. 41). Initially, his application was denied through the reconsideration stage and a hearing was held before an Administrative Law Judge (ALJ) on November 17, 1993. The ALJ found that Opp was not disabled. (A.R. 21 (Finding 8)). Upon appeal to this Court, the case was remanded to determine the physical and mental demands of Opp's past relevant work. (A.R. 585).
[¶2] A second hearing in front of an ALJ was held on September 3, 1996. At the hearing Opp was represented by counsel, Catherine R. Enyeart. (A.R. 518). On February 2, 1997, the ALJ issued his decision denying Opp's claim for disability insurance benefits for the period beginning July 22, 1979, and ending June 30, 1983. The ALJ determined that Opp was not disabled prior to June 30, 1983, according to social security regulations. (A.R. 512; Finding 7). On September 2, 1997, the Appeals Council declined review of the ALJ's determination. (A.R. 481-84). On October 29, 1997, Opp 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] Opp testified that he had repeated chest pains throughout 1979 and 1980. (A.R. 556-58). On July 16, 1981, plaintiff complained of neck pain which had persisted for the previous five months. (A.R. 463). An examination at that time revealed that his lungs were clear, he had a slight spine deformity and arthritis of the spine. (A.R. 463). He continued to complain of chest pain in June and September of 1982. Examination and an electrocardiogram revealed pulmonary emphysema and minimal criteria for ischemia. (A.R. 464). In September of 1983, after the date last insured, Opp complained of hip pain emanating from an injury in 1978 (no records reveal treatment for the injury). An x-ray of the hip did not reveal any permanent problems. (A.R. 464-65). On October 25, 1985, he underwent a treadmill test without pain. (A.R. 465). On November 1, 1985, an x-ray revealed L5-S1 spondylolysis and first-degree spondylolisthesis as well as moderately demineralized bones in the hip. (A.R. 465). Opp continued to complain of chest pains and in August 1986 underwent quadruple bypass surgery in Denver. (A.R. 467). For a year following the surgery Opp complained of no chest pain. On February 10, 1988, after a cardiac cathertization he was "ready to dance." (A.R. 468). Opp was born on December 13, 1928. He was 55 years old when last insured and was 68 years old at the time of the second hearing. (A.R. 528).
[¶6] B. ALJ DECISION
[¶7] In evaluating Opp's claim of disability, the ALJ applied the five-step sequence specified in 20 CFR §§ 404.1520 (Title II), 416.920 (Title XVI). (A.R. 28-32).(fn1) The ALJ first determined that while Opp had worked periodically after the alleged onset date he had not engaged in substantial gainful activity since June 30, 1993. (A.R. 505; A.R. 511 (Finding 1)). In step two of the sequential evaluation, the ALJ considered all the medical evidence relating to Opp's heart condition, including those records relating to his condition well beyond the date last insured, and concluded that it did not constitute a severe physical impairment for the relevant period. (A.R. 506-507). In reaching this conclusion, the ALJ also considered Opp's complaints of hip and neck pain as well as a laceration of his hand dating back to 1969. (A.R. 507-508). The ALJ concluded in step three of the sequential evaluation that Opp's impairments did not meet or equal an impairment listed in 20 CFR Part 404, Subpt. P, App. 1. Id.
[¶8] In step four of the sequential evaluation, the ALJ determined that based on the medical evidence and testimony, Opp was capable of performing his past relevant work as an inspector for a manufacturer of motors. (A.R. 509; A.R. 512 (Finding 7)). The ALJ found support for this determination from the medical record as well as from the testimony of Dennis Parker, a vocational expert. (A.R. 509). The ALJ made a determination that Opp's subjective complaints were not credible. (A.R. 510). In reaching this conclusion, the ALJ considered the medical evidence for the relevant period, Opp's activities before, during, and after the relevant period, as well as the factors listed in 20 CFR § 404.1529. The ALJ concluded that during the relevant period Opp had the residual functional capacity to perform a past relevant job and was thus not disabled. (A.R. 509; A.R. 512 (Finding 7)).
STANDARD OF REVIEW
[¶9] 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 U.S. 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))).
[¶10] 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 FSupp. 20, 22 (E.D. Ark. 1979), aff'd per curiam, 615 F2d 1288, 1289 (8th Cir. 1980).
[¶11] In support of his motion for summary judgment, Opp contends that the ALJ's decision was in error for the following reasons: (1) determining that a medical expert was not needed to assess the medical evidence; (2) concluding that Opp retained the residual functional capacity to perform his past relevant work as an inspector at a manufacturing plant; and (3) finding that Opp had the residual functional capacity for a full range of light work even though he was at an "advanced age." Plaintiff's Brief at 12 -13.
[¶12] A. Medical Expert
[¶13] Opp argues that the ALJ committed legal error by not using a medical expert in determining that he was not disabled. Specifically, Opp contends that a medical expert was necessitated to interpret the medical data relating to his coronary artery disease and other maladies. Plaintiff's Brief at 13-16. To support his argument Opp cites language from the Social Security Administration Hearings Appeals and Litigation Law Manual (HALLEX). Id. The HALLEX indicates when the use of a medical expert is mandatory and when it is discretionary. For purposes of interpreting " background medical test data" a medical expert must be used and an ALJ has the discretion to use a medical expert to assist in understanding a "Disease Process." HALLEX I-2-534 at Plaintiff's Brief Appendix II. Opp's argument is unpersuasive.
[¶14] The gravamen of Opp's argument is that the HALLEX should be considered binding authority on this Court. He does not cite, nor could the Court find, any authority to support this position. In fact, of the few times the HALLEX is even mentioned in the case law one case directly contradicted its mandates. DeChirico v. Callahan, 134 F3d 1177 (2d Cir. 1998) (finding that the HALLEX guidelines which do not require the ALJ to consider files more than four years old did "not purport to alter the statutory duty to develop the record fully by reviewing older materials when doing so is necessary to render a fair determination"); Gallegos v. Shalala, 1994 WL 706933 (D. Colo. 1994) (noting that where the HALLEX guidelines and case law contradict, case law is to be followed). This case presents a similar situation. The HALLEX mandates the use of a medical expert to determine background medical data but statute does not require it when there is sufficient evidence to reach a conclusion. 20 CFR § 416.927(c)(3) and (4); Naber v. Shalala, 22 F3d 186, 189 (1994) (noting that an "ALJ is permitted to issue a decision without obtaining additional medical evidence so long as other evidence in the record provides a sufficient basis for the ALJ's decision.")(citing 20 CFR § 416.927(c)(4)). Moreover, an ALJ "may reject the conclusion of any medical expert, whether hired by a claimant or by the government, if inconsistent with the medical record as a whole." Bentley v. Shalala, 52 F3d 784, 787 (8th Cir. 1995) (citing Bland v. Bowen, 861 F2d 533, 535 (8th Cir. 1988)).
[¶15] The medical evidence in this case supports the ALJ's finding that Opp was not disabled prior to 1983. What little evidence there is during the period in question, 1979 to 1983, does not indicate that Opp was disabled. Opp apparently concedes this by focusing his argument on the medical evidence relating to his condition after 1985. Plaintiff's Brief at 14. The medical evidence subsequent to the date last insured also supports the ALJ's decision. In 1983 he had an x-ray of his hip which revealed no permanent damage. (A.R. 464-65). A chest exam on November 1, 1985, revealed no evidence of pulmonary or cardiac disease. (A.R. 128). An x-ray of his hip in 1985 revealed only moderate demineralization. (A.R. 129). While Opp did undergo quadruple bypass surgery this was not until 1986, over three years after the date he was last insured. Test data indicated that his bypass operation was a success and so did Opp himself by proclaiming in 1988 that he was "ready to dance." (A.R. 486). These facts do not substantiate Opp's claim that the onset of his arterial disease and hip pain was during the period in question. They do support the ALJ's decision not to enlist the aid of a medical expert and his decision that Opp was not disabled prior to 1983.
[¶16] B. Past Relevant Work
[¶17] Opp next contends that the ALJ failed to develop the record concerning the environmental demands of his past relevant work as a hydraulic motor inspector in a manufacturing plant. Plaintiff's Brief at 16. Specifically, Opp argues that the use of solvents and other chemicals in this position caused great discomfort in breathing and skin irritation which, combined with his other impairments, precluded him from returning to this job. Id. 16-17. According to Opp it is common sense that breathing these solvents causes discomfort especially for someone with emphysema. Id.
[¶18] With the assistance of the vocational expert, the ALJ concluded that Opp retained the ability to perform work as an inspector. (A.R. 509). In social security cases "[t]he claimant bears the burden of proving a disability. Smith v. Shalala, 987 F2d 1371, 1373 (8th Cir. 1993) (citing Locher v. Sullivan, 968 F2d 725, 727 (8th Cir. 1992). While Opp testified that his past relevant work caused him discomfort this does not equate to an inability to perform it. He claimed that breathing the chemicals caused him discomfort yet he continued to smoke up to two packs a day during this period and during the time period for which he is seeking disability. (A.R. 96). The Court finds that the ALJ's decision concerning Opp's ability to perform past relevant work was supported by substantial evidence.
[¶19] C. Residual Functional Capacity for Light Work
[¶20] Opp argues that since the ALJ was in error in concluding that he retained the ability to perform past relevant work that the analysis should have proceeded to step five to determine if there were sufficient jobs in the economy which he could perform. Plaintiff's Brief at 18. However, the Court finds that the ALJ did not err at step four of the analysis rendering this argument moot.
[¶21] Accordingly, it is hereby
[¶22] ORDERED that Opp's motion for summary judgment (Docket #8) is denied.
[¶23] IT IS FURTHER ORDERED that the Commissioner's motion for summary judgment (Docket #10) is granted. Judgment shall be issued against plaintiff and in favor of Kenneth S. Apfel, Commissioner of Social Security. Costs shall not be assessed against the plaintiff.
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.