United States District Court, District of South Dakota
Opinion Filed July 14, 1998
Formatting courtesy of The State Bar of South Dakota
and South Dakota Continuing Legal Education, Inc.
222 East Capitol Ave.
Pierre, SD 57501
CARMELITA LONG VISITOR,
Plaintiff,
v.
KENNETH S. APFEL,
Commissioner of Social Security,
Defendant.
[1998 DSD 15]
United States District Court
District of South Dakota - Western Division
CIV 97-5102
MEMORANDUM OPINION
RICHARD H. BATTEY, CHIEF JUDGE
I. PROCEDURAL HISTORY
[¶1] On March 20, 1995, plaintiff Carmelita Long Visitor (Long Visitor) filed an application for Supplemental Security Income benefits under Title XVI, 42 USC § 1381-1383. Her application was denied through the reconsideration stage and she requested a hearing before an Administrative Law Judge (ALJ). On August 1, 1996, a hearing was held before an ALJ in Rapid City, South Dakota. The ALJ denied Long Visitor's claim and the Appeals Council declined review. Long Visitor filed a complaint in this Court on November 26, 1997. In her disability application Long Visitor stated that her disability began in 1969.
[¶2] Pending before the Court are cross-motions for summary judgment.
II. FACTS
[¶3] Long Visitor was born on May 1, 1950. AR 91. She is currently forty-eight years old and has a high school diploma.
[¶4] Long Visitor worked as a motel maid in June and July of 1995, a job in which she cleaned 18 rooms over the course of six or seven hours. AR 51. Shortly after leaving the motel job she began cleaning offices, apartments, and other facilities at Wesleyan Native-American Ministries, for 20 hours a week. AR 52-55. She was employed in this capacity at the time of the hearing. AR 55. Aside from these two jobs, Long Visitor has never been employed.
[¶5] In 1969, when Long Visitor was 18 years old, she was taken to the medical center at the University of Nebraska where she was diagnosed with idiopathic thrombocytopenia purpura. AR 126. Her platelet count was well below normal and her skin demonstrated internal hemorrhaging. She was given a blood transfusion and treated with Prednisone. AR 126. She returned to the University of Nebraska in January 1970 due to excessive bleeding, anemia, and bruising at which time her spleen was removed. AR 119, 122. Long Visitor again returned to the University of Nebraska in February 1971, due to excessive bleeding, a rash, bruises, and low platelet levels. AR 115-117. These problems apparently resolved over time. Plaintiff's Brief at 5. From 1971 to 1988 there is no indication that Long Visitor suffered from of any significant medical problems. AR 253. Since 1988 she has intermittently suffered from anemia, for which she takes iron pills, and allergy flare ups. She also complains of frequent headaches. AR 48-49. She has not been hospitalized for any of her maladies during the last ten years nor has any doctor recommended hospitalization. AR 56-57. She takes over-the-counter pain relievers and antihistamines for her headaches and allergies.
[¶6] Long Visitor suffered the loss of her child in March 1995 from pneumonia. AR 157. She testified that since then she often feels depressed, tired and "[s]ometimes wants to feel dead." AR 46. She underwent a General Aptitude Test Battery (GATB) on April 21, 1995. AR 147-151. The results of the GATB indicate that she ranged from the 2nd percentile in some categories to the 53rd percentile in others. The majority of her scores were in the 10 to 20 percentile range.
[¶7] Long Visitor testified that on a typical day she wakes at 8 a.m., cleans the house, and prepares for work at noon. AR 58-59. She does the dishes, vacuums, sweeps, takes out the garbage, and maintains the yard. AR 59. She experiences some difficulty mowing the lawn due to her allergies, but otherwise maintains her home without difficulty. She works from noon to 5 p.m. four days a week. Long Visitor also does some sewing, plays bingo, and frequently socializes with friends. AR 58-59.
III. DECISION OF THE ALJ
[¶8] In assessing the sequential process(1) which is required when determining if an individual is disabled pursuant to the Social Security Act, the ALJ first concluded that although Long Visitor was employed after the date of application this did not amount to substantial gainful activity. AR 14. Second, the ALJ found that Long Visitor did not suffer from a "severe" impairment because the limitations placed upon her work activities were not substantial. AR 14. The ALJ also concluded, at step three, that the impairments from which Long Visitor suffers did not fit within one of the listed severe impairments in Appendix 1 to Subpart P. AR 15.
[¶9] At the fourth step, residual functional capacity, the ALJ considered whether Long Visitor could perform past work or other work within the national economy. In reaching a conclusion, the ALJ concluded that Long Visitor's testimony as to her subjective complaints and her limitations was not fully credible. AR 17. In assessing credibility, the ALJ considered the medical evidence contained in the record, non-medical evidence such as her daily activities, and her treatment. AR 15-17. Based upon the evidence in the record and the testimony of a vocational expert, the ALJ determined that Long Visitor maintained the residual functional capacity to perform all work activity "on an exertional and nonexertional basis with the sole exception of avoiding hazards." AR 18; AR 19 (Finding #6).
[¶10] In the final step of the analysis the ALJ acknowledged that the burden shifted to the Commissioner to prove that there were significant jobs which Long Visitor could perform in the national and regional economies. The ALJ determined that given Long Visitor's age, education, and past work experience there were significant work opportunities for her. The ALJ took administrative notice of "approximately 2500 separate unskilled sedentary, light, and medium occupations which can be identified, each occupation representing numerous jobs in the national economy." AR 18 (citing Appendix 2, Medical Vocational Guidelines, Section 204.00). He went on to conclude that based upon the evidence Long Visitor was not disabled.
IV. STANDARD OF REVIEW
[¶11] 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, 573 U.S. 1076, 115 S. Ct. 722, 130 L. Ed. 2d 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 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 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).
[¶12] 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 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))). 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 F. Supp. 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.
V. DISCUSSION
[¶13] In support of her motion for summary judgment, Long Visitor contends the ALJ's decision was in error for the following reasons: (1) failure to adequately develop the record concerning Long Visitor's intellectual and emotional impairments by ordering a consultative examination, and (2) improperly concluding at step five that Long Visitor was not disabled. Plaintiff's Brief at 8.
[¶14] It is Long Visitor's contention that the ALJ was put on notice by the evidence that her psychological problems should have been more thoroughly examined. She claims that in the face of the low GATB scores, the testimony by the Vocational Expert (VE), and her medical history it was incumbent upon the ALJ to order a consultative examination. According to Long Visitor this omission constitutes a failure to adequately develop the record and is reversible error. Plaintiff's Brief at 8-11.
[¶15] While it is true that the ALJ has a duty to adequately develop the record in these cases, there is no evidence that the ALJ failed to do so in this instance. The record indicates that the ALJ thoroughly considered all the evidence presented in reaching his decision that Long Visitor was not disabled. An examination of the evidence lends support to his decision not to order further examination. First, no medical examiner gave pause to suggest that Long Visitor had any significant problems. Dr. Richard Beasley examined Long Visitor in May 1995 and concluded that she could perform normal work except those occupations which could puncture her skin. AR 136. Second, her alleged emotional problems were referenced only in regards to the death of her son in 1995. The colloquy that took place between Long Visitor and her attorney in which she mentioned she wished she were dead dealt with her feelings since her child died in 1995. AR 46. Her feelings of sadness are understandable given the loss of a child, but such emotions do not give rise to a need for further examination into her mental condition. Third, Long Visitor's activities since 1995 demonstrate that she is more than capable of maintaining employment. She worked an average of 20 hours a week while she was allegedly suffering from what her counsel deems severe mental impairments. From this alone the ALJ was justified in not purchasing a consultative exam. In the end, 20 CFR § 404.1519(a) indicates that a "consultative examination may be purchased when the evidence as a whole" is not sufficient to support a decision on the claim. The ALJ considered all the evidence before determining that a consultative exam was not warranted. That decision is supported by substantial evidence in the record.
[¶16] Long Visitor also claims that the Commissioner did not meet the burden, at step five, of showing that she was not disabled. The Court need not address this argument since the ALJ determined at step two that Long Visitor's impairment "was not severe by Social Security definition because it places no substantial limitation upon the claimant's basic work activities." AR 15 (citing 20 CFR 416.921). Accordingly, the ALJ was not required to proceed any further in the five-step analysis. McCoy v. Schweiker, 683 F2d 1138, 1141 (8th Cir. 1982) (noting that "[i]f a severe impairment is not found, the claimant must be found not disabled.") See also 20 CFR § 404.1520 (c) ("If you do not have any impairments or combination of impairments which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are, therefore, not disabled.") The ALJ's decision that Long Visitor's impairment was not severe was supported by substantial evidence and he was thus not required to proceed beyond step two of the required analysis. To that effect, Long Visitor's argument that the ALJ erred at step five is moot.
[¶17] Accordingly, it is hereby
[¶18] ORDERED that the Commissioner's motion for summary judgment is granted. The decision of the ALJ is affirmed. Judgment is entered accordingly.
Dated this day of July, 1998.
Footnotes
1. The steps are summarized as follows:
(1) First, a determination is made whether claimant is currently engaged in substantial gainful activity; if so, she must be found not disabled.
(2) If claimant is not engaged in substantial gainful activity, the next question is whether she 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. (1997)].
(4) If the impairment is not listed in Appendix 1, the next inquiry is whether claimant can perform relevant past work. If she can, a finding of no disability is required.
(5) Finally, if claimant cannot perform relevant past work, the question then becomes whether she can nevertheless do other jobs that exist in the national economy, despite her having a severe impairment that prevents return to her previous work.
McCoy v. Schweiker, 683 F2d 1138, 1141-42 (8th Cir. 1982). See also 20 CFR § 404.1520; 1 Harvey L. McCormick, Social Security Claims and Procedures § 410, at 346 (4th ed. 1991).