United States District Court, District of South Dakota
Opinion Filed July 16, 1998
Formatting courtesy of The State Bar of South Dakota
and South Dakota Continuing Legal Education, Inc.
222 East Capitol Ave.
Pierre, SD 57501
DAVID BARBER,
Plaintiff,
v.
KENNETH S. APFEL,
Commissioner of Social Security Administration,
Defendant.
[1998 DSD 17]
United States District Court
District of South Dakota - Western Division
CIV 98-5001
MEMORANDUM OPINION
Filed July 16, 1998.
RICHARD H. BATTEY, CHIEF JUDGE
I. PROCEDURAL HISTORY
[¶1] On March 29, 1995, plaintiff David J. Barber ("Barber") filed an application for disability benefits under Title II of the Social Security Act ("the Act"), 42 USC §§ 401-33. Barber alleges an onset date of May 18, 1993. His applications were denied initially and upon reconsideration. Barber then requested a hearing before an Administrative Law Judge ("ALJ"). A hearing was held by ALJ Jon L. Lawritson on November 5, 1996, and on December 26, 1996, he issued on opinion denying Barber benefits. Barber filed a request for review before the Appeals Council which was denied. Barber then filed a complaint with this Court seeking relief.
[¶2] This Court has jurisdiction to proceed pursuant to 42 USC § 405(g).
II. FACTS
[¶3] Barber was born on January 21, 1956. Currently, he is forty-two. Barber completed thirteen years of education. AR 11. Barber worked as a power lineman for a power company in Nebraska for seven years and has done over-the-road trucking for eighteen years. AR 11. In 1977, Barber was in an accident and suffered a head injury. AR 59. As a result, Barber was hospitalized and was in a coma for ten to twelve days. AR 11, 60. He testified that after the injury he was different. AR 59. In 1993, Barber was in a motorcycle accident. This accident did not render Barber unconscious. AR 11.
[¶4] Barber alleges that he suffers from pain in his knees, back pain, and a mental impairment. In his disability report dated May 18, 1993, Barber complained of pain in his knees, but he did not mention any memory difficulties or any difficulties dealing with anger or working with others. AR 126. Following the 1977 accident which Barber alleges triggered his mental impairment, Barber attended trade school to become a lineman. AR 130. He attended school five days a week from September of 1986 to May of 1987. AR 130.
[¶5] Barber stated that his back bothers him once or twice a week. AR 72. When it bothers him, he takes over-the-counter medication and uses a heating pad. AR 73. At the time of the hearing Barber was taking Motrin prescribed by a doctor for the pain in his knees. AR 73.
[¶6] Barber testified that he is only able to sit for forty-five minutes to an hour because of his knees. AR 53. According to Barber, at most he is able to stand for half an hour in one location. AR 53. One block is the farthest that Barber can walk before his knees start to bother him. AR 54. Barber stated that he does not do any lifting from the ground to his waist and that from waist level he is able to lift from fifty to eighty pounds. AR 54. Barber testified that his back begins to bother him after he walks two to three steps. AR 55. In addition, Barber stated that he is only able to be in car from a half hour to an hour before the stiffness of his knees begins to bother him. AR 56.
[¶7] Barber stated that he is unable to have an indoor job because he feels "penned." AR 58. Barber does not enjoy repetitive work and does not have a good memory. AR 59. Barber testified that sometimes he does not know the day of the week. AR 59. Barber stated that it is part of his life to write notes to himself on paper when he thinks of things so that he will remember them. AR 59. According to Barber, when he is unable to do a certain activity he will become frustrated and angry. AR 57-58. When Barber was working for York he stated that he was disciplined a couple of times for losing his patience with others. AR 61. Barber testified that he has wants to do things his way and that sometimes results in problems in his life and at work. AR 62. Barber stated that since his head injury his patience has been short. AR 60.
[¶8] At the time of the hearing, Barber testified that he was driving a truck for his father. AR 63. He had been driving truck for his father for about a year and a half. AR 72. He testified that he would like to be able to work faster. AR 63. The number of days Barber drives truck during the week will vary. AR 68. Barber testified that his memory can cause him problems while trucking. Ar 68. He is required to make notes to himself so that he will remember to talk to people. AR 68. Barber testified that he spends a couple hours a day washing bugs off the truck. AR 63. When he takes a trip from Rapid to Sioux Falls, Barber usually washes the bugs off when he stops the truck. AR 64. Barber also stated that when driving a truck from Rapid City to Kadoka he will stop the truck and get out once or twice to give his knees a break. AR 64. Every month, his father's company pays $650 on Barber's truck. AR 70. The company also gives him money for bills every month. AR 70. According to Barber, the amount the company gives him may vary. AR 70
[¶9] The vocational expert testified that Barber could perform the light sedentary job of an assembly line worker. The expert stated that for the general category of assemblers there are 404 jobs locally, 3,900 in South Dakota, and 1,900,000 nationally. The expert testified with a reasonable degree of probability based upon his experience that approximately one-third would be sedentary jobs. The vocational expert also testified that Barber could perform the electric meter reader job and that there are 122 of these jobs in South Dakota and 49,800 nationally. AR 91.
[¶10] Barber's father testified that he pays him whatever he needs. AR 99. He does not pay him on an hourly or a weekly basis. AR 99. As of October 1996, his father paid him a little less than $4,000 for the year. AR 100. The company also pays $643 a month for a truck upon which Barber's name and his parent's name are on the title. AR 100. His father testified that Barber is a third-owner of the truck. AR 100. Barber's father also testified that he is often late, that he is very meticulous which slows his performance down, and that he gets upset easily. AR 102. If Barber is working with people and something goes wrong, he loses his temper. AR 103.
[¶11] In a mental residual functional capacity assessment performed on September 21, 1995, Barber was found to not be significantly limited as to his understanding and memory, concentration and persistence, social interaction, and adaption with the exception of two categories. AR 149. As to his ability to carry out detailed instructions and maintain attention and concentration for extended periods, Barber was found to be moderately limited. AR 149. The medical consultant who performed the assessment noted that although Barber may have some memory difficulties "he compensates and does not appear restricted from meaningful interaction with the environment/job . . . ." AR 151.
[¶12] In a psychiatric review technique that was also performed on September 21, 1995, Barber was found to seldom have deficiencies of concentration. AR 168. Barber also participated in a psychiatric review on August 17, 1995. AR 170. The conclusion there was that Barber "appears to exhibit effects of residual brain damage . . . ." AR 171. However, the reviewer noted that it would be presumptuous to draw any conclusions without a full neuropsychological and neurological evaluation. AR 171.
[¶13] On February 25, 1997, James C. Gardiner, Ph.D., ABPN, performed a neuropsychological evaluation of Barber. These tests were performed after the decision of the ALJ was issued; however, the Appeals Council did consider this evidence in declining to review the decision of the ALJ. For the evaluation, Dr. Gardiner interviewed Barber and Barber's counselor, reviewed the medical records, and administered a neuropsychological test. AR 11-13. Dr. Gardiner concluded that "[t]here is evidence that [Barber] has suffered a traumatic brain injury as a result of an automobile accident in 1977."
III. DECISION OF THE ALJ
[¶14] 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 Barber has been performing substantial gainful activity since May of 1995. However, the ALJ did find that Barber did not perform substantial gainful activity from November 9, 1993 through April of 1995. Second, the ALJ found that Barber suffered from severe impairments. The ALJ stated that Barber has degenerative arthritis of both knees and "is status post surgery for herniated disc of the lumbar spine with degenerative disease of other levels." The ALJ concluded that the record did not support a determination that Barber has an organic mental impairment. In the opinion of the ALJ, the impairments which Barber suffers from do not fit within the listed severe impairments in Appendix 1 to Subpart P. See Appendix 1 to Subpart P of Part 404, 20 CFR §§ 404.1501 et seq. (1997).
[¶15] The ALJ's last step in determining whether Barber is disabled was to consider whether he could perform past work or other work within the national economy. In reaching a conclusion, the ALJ concluded that Barber's testimony as to the severity of his limitations was not fully credible. In assessing Barber's credibility, the ALJ considered Barber's testimony, including his complaints of pain, his daily activities, and his statements as to his limitations on his functional capacity. The ALJ also thoroughly considered the medical evidence contained in the record. The ALJ found that Barber could not perform any past relevant work. However, the ALJ concluded that Barber is able to perform jobs within the national economy. Barber could work as a meter reader or assembler in a semi-conductor industry, and the ALJ concluded that these jobs exist in significant numbers within the national economy.
IV. STANDARD OF REVIEW
[¶16] 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), 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).
[¶17] 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 reweigh 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
[¶18] For Barber 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). A disability is defined as an
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). In determining when a disability has occurred in a case, the ALJ must follow five prescribed steps.(fn2) See Evaluation of Disability Rule, 20 CFR § 404.1520 (1997). In order for Barber to be eligible for benefits, he is required to show that he was unable to perform any substantial gainful activity for at least twelve consecutive months prior to his date-last-insured. Specifically, Barber has stated four objections to the ALJ's conclusion: (1) that the record does not contain substantial evidence that Barber is capable of performing work in the national economy as a meter reader or assembler of semi-conductors; (2) the ALJ's failure in considering claimant's diagnosed mental disorder requires remand and that the Appeals Council's failure to complete a Psychiatric Review Technique Form (PRTF) requires remand; (3) that it was an error to conclude that Barber's work for his father was substantial gainful activity; and (4) that the case should be remanded for consideration of new and material evidence.
[¶19] A. New and Material Evidence
[¶20] 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). 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."). When Barber submitted his brief to the Appeals Council, he also submitted the following additional evidence: (1) neuropsychological testing report completed on February 25, 1997, by James C. Gardiner, Ph.D., ABPN, Board Certified Neuropsychologist, and (2) Indian Health Services psychotherapy notes. AR 6. This evidence was considered by the Appeals Council but did not persuade it to change the ALJ's decision or to grant Barber a review of the ALJ's decision. AR 3.
[¶21] Barber again offers additional evidence. This time the motion is made to this Court. There is no indication in the instant case that the Appeals Council considered the new evidence currently proffered by Barber. Therefore, the Court must determine if the case should be remanded to consider the new evidence.
[¶22] To warrant remand under 42 USC § 405(g) for new evidence, the claimant must show that "there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." See Jones v. Callahan, 122 F3d 1148, 1154 (8th Cir. 1997); Smith v. Shalala, 987 F2d 1371, 1375 (8th Cir. 1993). Moreover, "[t]o be material, new evidence must be non-cumulative, relevant, and probative of [the claimant's] condition for the time period for which benefits were denied, and there must be reasonable likelihood that it would have changed the [Commissioner's] determination." Woolf v. Shalala, 3 F3d 1210, 1215 (8th Cir. 1993).
[¶23] The new evidence which Barber seeks to introduce is a report by Medical and Vocational Rehabilitation Consulting Services, Inc. The report reviews the records of Barber. The report goes through the information which the ALJ had before him when making his decision. The report looks at the medical history of Barber, the functional capacity assessment of Barber, and the education and work history of Barber. In addition, the individual writing the report did not examine Barber directly. The report concludes that Barber suffers from a neuropsychological impairment which would significantly "limit his employability and affect his performance in virtually any type of employment." See Docket #12, Exhibit A, MVR Consulting Services Report at 4. The report also states that Barber does not have the speed or accuracy to read meters or record data in a timely fashion. Both Barber and his father testified as to this fact and the ALJ did not discredit this testimony when assessing Barber's credibility. There was ample evidence in the record that defendant does not always perform tasks at a fast pace. In addition, as to the information contained in the report which takes into account the neuropsychological evaluation by Dr. Gardiner (which was not taken into account by the ALJ), this information was taken into account by the Appeals Council and is on the record for this Court to consider. Therefore, this Court does not find that the report by MVR Consulting Services creates a reasonable likelihood that the Commissioner's decision would change given that the majority of the report is evidence which is already a part of the record which is before this Court.
[¶24] Barber also seeks to introduce new evidence of performance evaluations from past relevant work from 1989 through 1991. The records represent that he has a difficulty working and getting along with others and that he could be more self-motivated. The ALJ had evidence in the record that Barber had difficulty working with others and was a slow worker and not necessarily always motivated. Barber testified that while working at York he was disciplined for losing his patience with others. The Court does not find that these reports would have a reasonable likelihood of changing the ALJ's opinion as to the fact that Barber suffers from a mental impairment.
[¶25] B. Countable Earnings
[¶26] Barber also argues that the ALJ erred in determining that he has been performing substantial gainful activity (SGA) since May of 1995. Barber was working for his father driving a truck since May of 1995. Barber's father testified that over a period of ten months he gave his son $4,000. Barber did not receive a regular salary, but he did receive approximately $400 a month to assist him in paying his monthly bills. The ALJ also concluded that Barber "is also receiving compensation for his services in the form of an ownership interest in the truck that he drives." AR 27. The truck is titled in Barber's name, his mother's name, and his father's name. The truck payment is $643 a month which the company pays. In addition, it is $300 a month to insure the truck which the company also pays. The ALJ concluded that "the company's purchase of this asset in the claimant's name represents additional compensation for services." AR 27. The ALJ concluded that claimant's combined compensation which he was receiving from his father's company totaled more than $500 a month when you include as compensation one-third of the payments made for Barber's truck and one-third of the payments made for insurance of the truck. Accordingly, since Barber exceeded the $500 bench mark, the ALJ found that he has been performing SGA since May of 1995.
[¶27] Barber argues that his father put him on the title of the truck so that he could inherit the truck at some later date. However, Barber's name would not have to be on the title for him to inherit the truck.
[¶28] Barber also argues that instead of the truck payment increasing his earnings the payment should be considered a subsidy and decrease his earnings. Barber relies on Social Security Ruling (SSR) 83-33 which states in pertinent part:
A. Determining "Countable Earnings."
Subsidized Earnings . . . must be deducted from gross earnings in order to ascertain "countable earnings. . . ."
1. Subsidies. An employer may, because of a benevolent attitude toward a handicapped individual, subsidize the employee's earnings by applying more in wages than the reasonable value or the actual services performed. When this occurs, the excess will be regarded as a subsidy rather than earnings.
In most instances, the amount of a subsidy can be ascertained by comparing the time, energy, skills, and responsibility involved int the individual's services with the same elements involved in the performance of the same or similar work by unimpaired individuals in the community and estimating the proportionate value of the individual's services according to the prevailing pay scale for such work.
When precise monetary evaluation is not feasible, it may be possible to determine the approximate extent of a subsidy on the basis of gross indications of a lack of productivity; for example, when unusual supervision or assistance is required in the performance of simple tasks, or the employee is extremely slow, inefficient or otherwise unproductive.(fn3)
In this case, there was no testimony by Barber's father the he was giving Barber a subsidy. Barber did not introduce evidence on the record that he is being compensated more than his services are worth. The record does not contain evidence of how much per hour other employees make at Barber's father's company. SSR 83-33 does not require that the amount of the subsidy be calculated for a conclusion to be reached that a claimant is receiving a subsidy. However, the Social Security Ruling states that if a monetary evaluation is not feasible then other factors may be considered. In this case, a monetary evaluation was feasible and the record does not set forth such an evaluation. Therefore, this Court will not conclude that at least some of the money which Barber received was a subsidy. Accordingly, this Court finds that the ALJ did not err in concluding that Barber has been performing SGA since May of 1995. There is substantial evidence in the record to conclude that Barber was performing SGA since May of 1995.
[¶29] C. Other Work Within the National Economy
[¶30] The ALJ concluded
that the claimant is exertionally limited to light work, defined as occasional lifting of up to 20 pounds and frequent lifting of up to 10 pounds (Exhibit 21). This is a conservative estimate of the claimant's lifting capacity considering his current performance of medium exertion and the 1993 testing indicating that he can lift within the heavy range of exertion. Additionally, the undersigned finds that the claimant must alternate between sitting and standing as needed and cannot stand or walk for a total of more than two hours during an eight hour workday.
AR 31. The ALJ also stated that Barber has knowledge of electrical utilities and that his knowledge can be applied to meet the requirements of semi-skilled work functions of other work. AR 33. The ALJ concluded that Barber could not perform the full range of light work given his limitations, but that there was work in the national economy which Barber could perform. Given Barber's limitations, the ALJ adopted the testimony of the vocational expert (VE) which concluded that Barber was capable of performing the job of assembler in the semi-conductor industry (DOT 726.684) and the job of meter reader (DOT 209.567-010).
[¶31] As for the job of an assembler in the semi-conductor industry, Barber argues that the ALJ erred in concluding that a significant number of jobs exist in the national economy. At the administrative hearing, the VE testified that the numbers which he provided for assembler positions within the national economy included at least three exertional levels (medium, light, and sedentary). AR 90. However, the VE did testify with a reasonable degree of probability that approximately one-third of the available assembler positions would be sedentary positions. AR 90. According to the VE, he has knowledge of benchwork occupations and that is why he is able to conclude with a reasonable degree of probability that one-third of the assembler jobs would be sedentary. However, the ALJ ultimately concludes that Barber is capable of performing light work. AR 33. If a person is capable of performing light work, then that person should be able to perform sedentary work. Therefore, based upon the experience of the VE and his testimony that there are a significant number of sedentary assembler jobs there was substantial evidence on the record for the ALJ to conclude that Barber could perform significant jobs within the national economy.
[¶32] The case which Barber relies on, Bjornholm v. Shalala, 39 F3d 888 (8th Cir. 1994), is distinguishable. In Bjornholm, the Eighth Circuit concluded that it was error for the ALJ to consider DOT (Dictionary of Occupational Titles) job classifications which provided for how many jobs were available within the national economy requiring light rather than sedentary physical exertion. Id. at 890. In Bjornholm, claimant was capable of performing sedentary work and even thought the numbers provided by the VE may have included jobs of sedentary exertion, the ALJ had no way of knowing how overstated the numbers provided by the VE were. The court concluded:
We note that the burden of proof lies with the Secretary, who must show that appropriate "work . . . exists in significant numbers either in the region where such individual lives or in several regions of the country." 42 USC § 423(d)(2)(A). The important point is that the Secretary cannot rely on statistics that indicate there are a significant number of jobs in these categories for persons who can perform all of the duties of these jobs, when the claimant can only perform some of them. We hold that the statistics must match the claimant: the Secretary must show that there are available sedentary jobs for which Bjornholm has transferrable skills. The Secretary cannot conclude that appropriate sedentary jobs exist based upon statistics for light-exertion classifications.
In this case, given that Barber is able to perform light work, he could perform sedentary work which would be less physical exertion. Therefore, this case differs from Bjornholm where the claimant could only perform sedentary work.
[¶33] Barber's argument implies that the VE's testimony that one-third of the assembler jobs are sedentary is not sufficient testimony upon which the ALJ may rely. This Court disagrees. The ALJ is allowed to use the services of a vocational expert. Whitehouse v. Sullivan, 949 F2d 1005, 1007 (8th Cir. 1991). "The [vocational] expert is only required to state his opinion as to the number of jobs available in the national economy to a person with the applicant's residual functional capacity, age, work experience, and education." Id. In this case, based upon his experience the VE stated that there were a significant number of jobs available in the national economy. Accordingly, this Court finds that there is substantial evidence on the record to support the conclusion that there are significant sedentary assembler jobs available within the national economy.(fn4)
[¶34] D. Failure to Complete a PRTF
[¶35] Barber urges that the Appeals Council erred in failing to properly complete a PRTF. However, the Appeals Council is only required to complete a new PRTF when it issues a decision. 20 CFR § 404.1520a(d). A decision to deny review is not a reviewable order which requires the Appeals Council to prepare a new PRTF. Meeks v. Secretary of Health and Human Services, 996 F2d 1215, 1993 WL 216530 (6th Cir. 1993) (unpublished). Accordingly, the Appeals Council's failure to complete a new PRTF does not require this Court to remand this case.
[¶36] E. ALJ Failed in Considering Diagnosed Impairment
[¶37] Barber argues that the ALJ erred in concluding that the medical evidence did not contain a diagnosis of a mental disorder. Barber urges that the ALJ did not consider the evidence of symptoms and limitations which Barber exhibited resulting from his mental disorder. Looking to the record this Court believes that the ALJ did consider the symptoms and limitations which Barber urged resulted in his mental disorder. The ALJ considered Barber's testimony that since his head injury he has performed tasks slowly and that his judgment has been impaired. AR 28. The ALJ noted that following plaintiff's head injury he was able to complete a training program and work as an electrical lineman which is considered to be a skilled occupation. The ALJ considered the results of Barber's psychological testing. AR 28. The ALJ noted that Barber had low scores on his visual memory and general memory. AR 28. The ALJ pointed out that the psychologist stated that "'there are no easily discernable after-effects of the 1977 [sic] closed head injury.'" AR 28 (citing Exhibit 16). Barber's testimony that he has difficulty listening to instructions and controlling his temper was also considered. AR 29. The Court finds that the ALJ thoroughly considered medical evidence in the record, and that there was substantial evidence in the record for the ALJ to conclude that Barber did not have an organic mental impairment.
V. CONCLUSION
[¶38] When considering the record as a whole, there is substantial evidence that Barber did not suffer from a mental impairment. The ALJ thoroughly examined the medical record which was before him. This Court has examined the additional medical evidence which was before the Appeals Council. Even when considering the report by Dr. Gardiner, this Court concludes that there is substantial evidence within the record to conclude that Barber is capable of performing work within the national economy. The record contains substantial evidence that there are jobs within the national economy which Barber was capable of performing during the relevant time frame.
[¶39] Accordingly, it is hereby
[¶40] ORDERED that summary judgment shall be entered in favor of the defendant.
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 his having a severe impairment that prevents return to his 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).
2. See footnote 1.
3. When determining a subsidy SSR 83-33 states:
a. The following circumstances indicate the strong possibility of a subsidy:
(1) employment is "sheltered;" or
(2) Childhood disability is involved; or
(3) Mental impairment is involved; or
(4) There appears to be a marked discrepancy between the amount of pay and the value of the services; or
(5) The employer, employee, or other interested party alleges that the employee does not fully earn his or her pay (e.g., the employee receives unusual help from others in doing the work); or
(6) The nature and severity of the impairment indicate that the employee receives unusual help from others in doing the work; or
(7) The employee is involved in a government-sponsored job training and an employment program.
4. Whether the ALJ erred in concluding that Barber was capable of performing work as a meter reader with his exertional limitations is irrelevant given there are significant number of sedentary assembler jobs within the national economy which Barber is capable of performing.