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
JAMES BALL,
Plaintiff,
v.
KENNETH S. APFEL,
Commissioner of Social Security,
Defendant.
[1998 DSD 16]
United States District Court
District of South Dakota - Western Division
CIV 98-5014
MEMORANDUM OPINION
I. PROCEDURAL HISTORY
RICHARD H. BATTEY, CHIEF JUDGE
[¶1] On June 15, 1995, plaintiff James Ball (Ball) filed an application for disability insurance benefits and Supplemental Security Income benefits under titles II and XVI, 42 USC §§ 401-03, 1381-1383. His application was denied through the reconsideration stage, and he requested a hearing before an Administrative Law Judge (ALJ). On January 10, 1997, a hearing was held before an ALJ in Rapid City, South Dakota. Ball alleged an onset date of January 15, 1993. The ALJ found that Ball was disabled but that the onset date was August 5, 1996. Ball appealed the ALJ's determination of the onset date to the Appeals Council. The Appeals Council denied review. Ball filed a complaint in this Court on February 18, 1998.
[¶2] Pending before the Court are cross-motions for summary judgment concerning the onset date of Ball's disability.
II. FACTS
[¶3] Ball was born on August 15, 1966. AR 86. He is currently thirty-one years old, single, and has a GED.
[¶4] The following is a listing of Ball's work experience since 1985 and where this information appears in the record:
1985 - Copy runner, 2 months (AR 39)
1986 - Car wash attendant, 8-9 months (AR 39-40)
1987 - Bouncer, 3 months (AR 41)
1991 - Car wash attendant, 9 months (AR 41)
1991-92 - Car salesman, 8 months (AR 41-42)
1992 - Bartender, 3 months (AR 51)
1992 - Car salesman, 1 month (AR 50)
1992 - Landscaping, 2 months (AR 51)
1993-94 - Car wash attendant, 9 months (AR 42)
1994-95 - Car wash attendant, 9 months (AR 43-44)
1995 - Cab driver, 1 month (AR 54)
1996 - Car wash attendant, 8 months (AR 44-45)
Most of these jobs ended due to Ball's inability to get along with other employees. He earned as much as $15,374 and as little as $17 per year from 1985 to 1996. AR 158.
[¶5] Ball was hospitalized for 5 days in 1984 at the Rapid City Psychiatric Unit for a psychological evaluation. AR 179. Treatment was recommended, but Ball never followed up on the suggestion. He was diagnosed with borderline personality disorder in March 1985 by Dr. Ulises Pesce. AR 182. Dr. John Troy diagnosed Ball as suffering from mixed personality disorder and adult antisocial behavior in 1988. AR 188. Ball underwent a physical exam in 1995 which indicated mild back pain and a limit of lifting 50 pounds on a frequent basis. AR 192.
[¶6] Ball began seeing a psychiatrist, Dr. Donald Burnap, in January, 1987. He continued to periodically visit Dr. Burnap until November 1995. Throughout this time period Dr. Burnap indicated that Ball was unemployable. AR 199, 201 - 06. He concluded on May 31, 1995, that Ball was disabled. AR 208. In June 1995, Dr. Burnap performed a disability evaluation on Ball and noted that in the prior six years Ball had at least four episodes of major depression and generally suffered from mixed personality disorder with borderline features. AR 214-15.
III. DECISION OF THE ALJ
[¶7] In assessing the sequential process(fn1) which is required when determining if an individual is disabled pursuant to the Social Security Act, the ALJ first concluded that Ball had engaged in substantial gainful activity since the alleged onset date. AR 17-19. It was determined by the ALJ that Ball was not disabled up until August 5, 1996, the day after he was last gainfully employed. The ALJ proceeded through the five-step analysis using August 5, 1996, as the potential onset date. At step two, the ALJ found that Ball did suffer from a "severe" impairment, namely, mixed personality disorder with episodes of major depression. AR 19. The ALJ also concluded, at step three, that the impairments from which Ball suffers did not fit within one of the listed severe impairments in Appendix 1 to Subpart P. AR 19.
[¶8] At the fourth step, residual functional capacity, the ALJ considered whether Ball could perform past relevant work or other work within the national economy. In reaching a conclusion, the ALJ concluded that Ball's testimony as to his physical limitations was not fully credible as it conflicted with a consultative examination completed in August 1995. AR 19. However, it was found that Ball's subjective complaints concerning his mental condition were consistent with the medical evidence. AR 20. The ALJ concluded that based upon the Medical-Vocational Guidelines, the medical evidence, and the testimony of a vocational expert, Ball was unable to perform any work since August 5, 1996, and was thus disabled due to his mental impairments. AR 21; AR 23-24 (Findings #16 and 17).
IV. STANDARD OF REVIEW
[¶9] 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).
[¶10] 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
[¶11] In support of his motion for summary judgment, Ball contends the ALJ erred in his determination of the onset date of Ball's disability. The ALJ concluded that Ball was gainfully employed after the alleged onset date of January 15, 1993, and that he became disabled August 5, 1996. AR 21; AR 22 (Finding 7,8). It is Ball's contention that the work in which he engaged following his alleged onset date should not be considered substantial gainful activity because his employment was sporadic due to his nonexertional impairments. Plaintiff's Brief at 6-8. The Commissioner argues that any employment over six months in duration can "never be considered an unsuccessful work attempt regardless of the way it ended." Defendant's Brief at 11 (citing King v. Chater, 72 F3d 85, 87 (8th Cir. 1995)). Thus, the Commissioner agrees with the ALJ that the onset date was much later than alleged by Ball.
[¶12] The Court does not agree with the Commissioner's assertion that employment of more than six months' duration could never be an unsuccessful work attempt. See Tennant v. Schweiker, 682 F2d 707, 709-10 (8th Cir 1982) (the court noted that the claimant had been previously employed for a six-month period but did not consider this substantial gainful employment given his nonexertional impairments). However, the facts of Tennant and the instant case are quite different. The claimant in Tennant held 46 different jobs over a 12-year period with the longest being for six months. The Tennant court noted that "[t]here is virtually no evidence in the record to support a finding that Tennant can engage in substantial gainful employment." Id. at 710. Ball on the other hand repeatedly demonstrated that he could find and hold a job for more than six months. In fact, he held positions for more than six months after his alleged onset date on at least three occasions. Therefore, unlike Tennant, there is evidence in this case that Ball was able to engage in substantial gainful activity.
[¶13] The Court also recognizes that there is a presumption that six-month employment, in which earnings are in excess of $500 a month, is to be considered a successful work attempt. See 20 CFR §§ 404.1574(b)(2) and 416.974 (b)(2). Ball repeatedly earned over $500 dollars per month in employment stints of six months, or more, after the alleged onset date. In 1993 he worked at a car wash for nine months where he averaged over $600 per month. AR 42, 52-53, 158. He again worked as a car wash attendant from August 1994 to May 1995, a nine-month period, in which he earned over $600 dollars per month. AR 43, 98, 158. From January 1996 to August 4, 1996, a seven-month period, he earned over $700 per month working in a car wash. AR 45-46, 252. The regulations indicate that an impairment must last more than twelve months to be considered a disability. Titus v. Sullivan, 4 F3d 590, 594-95 (8th Cir. 1993) (discussing the duration of impairment requirement of the regulations); see CFR §§ 404.1505(a), 404.1509, 416.905(a). Ball's employment and earnings record demonstrate that he did not meet that requirement.
[¶14] Furthermore, in many respects it is disingenuous of Ball to assert that his employment should not be considered substantial gainful activity. The cases he relies upon in support of this proposition all involved instances in which the claimant was completely denied benefits by the ALJ and the district court. On the contrary, in the instant case the ALJ relied upon Ball's inability to obtain and hold employment to find that he was disabled. The ALJ recognized that Ball's nonexertional impairments were severe and ruled accordingly. Although the onset date of the disability is not to Ball's liking, the ALJ scrupulously examined the record and differentiated a time when Ball truly could not find or obtain employment. His determination was not arbitrary but rather the result of careful analysis of the record and Ball's circumstances.
[¶15] Given the presumption that six-month employment is considered a successful work attempt and the fact that Ball worked longer than six months on several occasions after the alleged onset date, the Court finds that the ALJ's determination of the date of onset is supported by substantial evidence.
[¶16] Accordingly, it is hereby
[¶17] ORDERED that the Commissioner's motion for summary judgment is granted. The decision of the ALJ is affirmed. Judgment is entered accordingly.
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, 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. (1997)]; (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 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).