PEARLINE R. FIRE THUNDER,
KENNETH S. APFEL,
Commissioner of Social Security,
[1998 DSD 28]
United States District Court
District of South Dakota
MEMORANDUM OPINION AND ORDER
Filed Sep 9, 1998
Richard H. Battey, Chief Judge
I. PROCEDURAL HISTORY
[¶1] In an opinion dated September 16, 1996, James W. Olson, an Administrative Law Judge ("ALJ"), denied plaintiff Pearline R. Fire Thunder ("Fire Thunder") Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("the Act"). Fire Thunder then requested review by the Appeals Council of the ALJ's decision, and the Appeals Council declined review. On March 25, 1998, Fire Thunder filed a complaint before this Court seeking review of the ALJ's decision denying her SSI benefits. She now urges this Court to remand the case for further development of the evidence and a new decision. The Commissioner of Social Security ("Commissioner") filed his response seeking summary judgment as a matter of law. Fire Thunder has filed her reply. This Court has jurisdiction to proceed pursuant to 42 USC § 405(g).
[¶2] Fire Thunder was born on January 17, 1965, and is currently 33 years of age. She has 11 years of education, is single, and has no children. Tr. 29-31. She has worked only briefly, doing beadwork for a reservation moccasin factory. Tr. 30. Fire Thunder suffered rheumatic fever as a child and as a consequence developed rheumatic heart disease. Tr. 110. She medicates this condition with monthly bicillion shots. In addition, Fire Thunder alleges she suffers from arthritis, a knee injury, tendinitis, and a weight problem.(fn1) Tr. 57, 64. Fire Thunder testified at the administrative hearing held on October 15, 1995,(fn2) that she believes her most severe medical problems are her wrist and left knee, which she stated frequently cause her pain and discomfort. Tr. 31. To control the pain, she takes over-the-counter ibuprofen as well as prescription Tylenol with codeine, although she testified that she does not take these very often. She sometimes wears a brace on her knee and wrist; however, the administrative record is not clear as to whether these are worn pursuant to a doctor's order. Fire Thunder also alleges that she has problems using her hands due to stiff and sore fingers. Tr. 34-35. Specifically, she claims to have difficulty writing for more than a few lines at a time and grasping heavy objects such as books.
[¶3] Fire Thunder testified that she is able to dress and wash herself, cook her own meals, and perform light household chores such as sweeping and mopping. Tr. 37. On an average day she wakes up at approximately 7:30 a.m. and spends her time watching television, collecting stamps or baseball cards and sometimes walking to the grocery store. Tr. 37-39, 60. She does not have a driver's license, and socializes with friends only by telephone. Tr. 60. Fire Thunder testified that she can stand for up to an hour, can sit for approximately one-half-hour, and can lift a gallon of milk, but likely could not carry it for very far. Tr. 40. She also testified that when doing any form of strenuous activity she suffers "strain across the chest" that she attributes to her rheumatic heart condition. Tr. 36.
[¶4] In answers to interrogatories and hypotheticals submitted by the ALJ after the administrative hearing, vocational expert Daniel Best stated that Fire Thunder could work in a variety of unskilled jobs, which allow for a sitting and standing option. Tr. 146. By way of example, Best listed ten jobs that he believed Fire Thunder could perform, all of which appeared to exist in significant numbers in the national and regional economy, with incidence rates in South Dakota ranging from 46-600 jobs. Tr. 146.
III. DECISION BY THE ALJ
[¶5] In assessing the sequential process(fn3) which is required when determining if an individual is disabled and thus entitled to SSI benefits pursuant to the Social Security Act, the ALJ first concluded that Fire Thunder had not engaged in substantial gainful activity at any time relevant to his decision. Second, the ALJ concluded that Fire Thunder did suffer from severe impairments, although he found that they did not fit within one of the impairments outlined in the Listing of Impairments, 20 CFR Pt. 404, Subpt. P, App. 1 §§ 1.00 et seq. (1997). Specifically, the ALJ concluded that Fire Thunder's rheumatic heart disease and arthralgia involving her left knee should be considered severe impairments because they more than minimally limit her ability to perform certain work-related activities. Next, the ALJ noted that Fire Thunder was a "younger individual" with an eleventh grade education and little to no work experience. On this basis he concluded that FireThunder did not have any past relevant work that needed to be considered in his opinion, and he acknowledged that the burden of proof accordingly shifted to the Commissioner to show that Fire Thunder, despite her severe impairments, still had a residual capacity to perform a significant number of jobs in the national economy.
[¶6] In his opinion, the ALJ outlined the factors he considered in making his determination: "Factors such as medical treatment, statements of treating and examining physicians, and the claimant's daily activities and work history are considered."(fn4) After specifically discussing various medical evidence on the record, including progress notes written by consulting physician, Dr. Richard Beasley, and neurologist, Dr. Matthew Simmons, the ALJ concluded that Fire Thunder's allegation that she is unable to work because of pain to her wrist, and knee, and a pulling sensation in her chest she attributed to her rheumatic heart condition, simply was inconsistent with her daily activities, as well as the medical evidence on the record as a whole. Consequently, the ALJ found that Fire Thunder's testimony as to the disabling effects of her impairments was not fully credible.
[¶7] Also as a basis for this conclusion, the ALJ pointed to the fact that Fire Thunder only infrequently took medicine for her pain, and seldom sought medical treatment for her many alleged problems. In addition, the ALJ cited Fire Thunder's daily activities as inconsistent with her assertions that she is unable to perform any work activity. Finally, the ALJ noted his acceptance of the vocational expert's testimony that there exists numerous, unskilled entry level sedentary jobs that Fire Thunder could perform.(fn5) Based upon these specific findings, and the record as a whole, the ALJ ultimately concluded that Fire Thunder could not be considered disabled under Title XVI of the Social Security Act.
IV. STANDARD OF REVIEW
[¶8] 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 less than a preponderance, but enough evidence that a reasonable mind might find it adequate to support the conclusion. Fines v. Apfel, 149 F3d 893 (8th Cir. 1998) (citing Oberst v. Shalala, 2 F3d 249, 250 (8th Cir. 1993)). See also 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)); 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).
[¶9] 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.
[¶10] For Fire Thunder to be eligible for SSI, she must first be determined to be under a disability. 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.
42 USC § 423(d)(1). In determining when a disability has occurred in a particular case, the ALJ must follow the requisite five steps.(fn6) See Evaluation of Disability Rule, 20 CFR § 404.1520 (1997). Fire Thunder, in a somewhat unique set of circumstances, urges this Court to remand her case for further development of the evidence and accordingly, a new decision. Specifically, Fire Thunder has presented four objections to the ALJ's conclusions and his procedural approach to this case: (1) that Fire Thunder did not get the opportunity to knowingly waive her right to representation by an attorney at the administrative hearing; (2) that the ALJ failed to develop the record in regard to Fire Thunder's potential mental impairments; (3) that the ALJ failed to explain his conclusion that Fire Thunder failed to meet or equal one of the listed impairments found at 20 CFR Pt. 404, Subpt. P, App. 1 §§ 1.00 et seq. (1997); and (4) that the post hearing vocational evidence is inadmissible where Fire Thunder was not given notice or opportunity to exercise her rights regarding post hearing evidence.
[¶11] Although Fire Thunder has outlined four issues for judicial review, as a threshold matter, this Court would point out that issues one, two, and four have been waived by Fire Thunder's failure to bring them before the Administrative Appeals Council. Weikert v. Sullivan, 977 F2d 1249 (8th Cir. 1992); see also Johnson v. Chater, 108 F3d 942, 945 (8th Cir. 1997) (affirming the district court's refusal to address new factual issues not first presented to the ALJ or Appeals Council); James v. Chater, 96 F3d 1341 (10th Cir. 1996) (holding that a failure to raise issues at the administrative level could effectively "sandbag" the Appeals Council and hence, the failure operates as a waiver of such issues at the judicial level). In Weikert, the Eighth Circuit Court of Appeals, having occasion to examine this issue in a context similar to the case at hand, stated: "Weikert's failure to raise the argument at the agency level would ordinarily prevent him from raising it in judicial proceedings." 108 F3d at 1253. In support of this position, the Court of Appeals cited with approval the Sixth Circuit case of Hix v. Director, Office of Workers' Compensation Programs, 824 F2d 526, 527 (6th Cir. 1987). In Hix, the court emphasized the well-known requirement that the claimant in any administrative proceeding must exhaust her administrative remedies first, before seeking judicial review: "a court should not consider an argument that has not been raised in the agency proceeding that preceded the appeal." Id. at 527.
[¶12] Accordingly, this Court is not required to address issues one, two, and four; nonetheless, a review of these issues shows that even if they were not waived by Fire Thunder, they are still without merit.
[¶13] A. Whether Fire Thunder Knowingly Waived Her Right to Attorney Representation?
[¶14] Fire Thunder argues that she did not knowingly waive her "right" to be represented by an attorney during the administrative hearing. While it is true that a claimant seeking Social Security benefits has a statutory right to representation, this right does not mandate that the representative be an attorney, and the representative may in fact be "any person" who meets the qualifications in the regulations. 42 USC § 406; 20 CFR §§ 1700, 1705(b). Fire Thunder appointed, as was her right, Rhonda Akers to represent her before the Agency. Akers was not an attorney, but appears, instead, to have been an employee of Indian Health Services at the time she represented Fire Thunder. Tr. 22. Despite her contention that she did not knowingly waive assistance of counsel, in at least two different points in her application process prior to the administrative hearing, Fire Thunder received notice of her right to hire an attorney for any subsequent proceedings, but she chose to use representative Akers instead.(fn7) Tr. 71, 93.
[¶15] Counsel for Fire Thunder has contended that the ALJ was required by Wingert v. Bowen, 894 F2d 296 (8th Cir. 1990), to question Fire Thunder at the hearing regarding her desire to be represented by a non-attorney, and she contends that his failure to do so in a detailed and express manner requires remand. This characterization of Wingert, however, is incorrect. Unlike the case at hand, in Wingert the claimant chose to represent himself at the administrative hearing, and it was on this basis that the Court articulated the standard that some questioning of the claimant in regard to a waiver of his right to representation should take place on the record. This line of questioning on the record was to assure that an unrepresented claimant had a "reasonable grasp of the regulations and procedure involved" in order to properly represent himself. Id. at 298. In Fire Thunder's case she was already properly represented by Akers, an employee of Indian Health Services. Moreover, an examination of the hearing transcript indicates that the ALJ did, in fact, assure himself that Akers was present to represent Fire Thunder, and that Akers had discussed the relevant issues with her.(fn8) Tr. 27.
[¶16] B. Did the ALJ Fail to Develop the Record Regarding Possible Mental Impairments?
[¶17] Fire Thunder asserts that the ALJ should have developed the record further in the face of her subjective symptoms, history, and the observations by two physicians noting her apprehension, hyperventilation, stress, and tension, These observations, Fire Thunder contends, should have red flagged the possibility that she could be suffering from psychological impairments. This position is without merit. A review of the record indicates that Fire Thunder never alleged that she suffered from any psychological impairments, nor did she assert this at the administrative hearing, even in the face of the ALJ's questions asking if she had "[a]nything else to say ... [as] now's the time?" Tr. 42. There is no question that the ALJ has a duty to develop the record; nonetheless, he "is under no duty to 'go to inordinate lengths to develop a claimant's case.'" Battles v. Shalala, 36 F3d 43, 44 (8th Cir. 1994). Fire Thunder bases her contention on a number of comments written by Dr. Beasley, indicating that Fire Thunder appeared to be an "anxious individual and is very timid and certainly concerned about whether this disease [rheumatic heart disease] is debilitating or not." Tr. 110. Dr. Beasley also stated that Fire Thunder appeared to be "apprehensive." Tr. 111. However, none of Dr. Beasley's evaluations diagnosed Fire Thunder with any mental impairments. Comments such as those by Dr. Beasley and Dr. Simmons are an insufficient basis to warrant a consultative psychological evaluation where Fire Thunder presented no evidence at the administrative hearing indicating that psychological impairments should be considered. Brockman v. Sullivan, 987 F2d 1344, 1348 (8th Cir. 1993); see also Matthews v. Bowen, 879 F2d 422, 424 (8th Cir. 1989) (holding that where a mental disability was not alleged, and only minimal anxiety was evident, ALJ was not in error when he did not order a consultative examination).
[¶18] C. Whether the Post-Hearing Admission of Vocational Evidence is Inadmissible?
[¶19] Like issues one and two, issue four was not argued before the Appeals Council and therefore, this Court is not required to consider it. However, upon scrutiny by this Court, the issue reveals itself to be without merit as well. Fire Thunder contends that the record shows no indication that she received any sort of notice about her rights regarding two post hearing reports, and this failure is a violation of due process. This is simply not the case. Rhonda Akers, as Fire Thunder's appointed representative, did receive notice that the ALJ had accepted post-hearing information. Tr. 142. Although this correspondence did not describe the new evidence in detail, it did put representative Akers on notice that additional evidence was being received by the ALJ. Moreover, upon the appointment of attorney Lisa Koehn, Koehn requested and received copies of all the exhibits in the administrative record. Included in these exhibits was a copy of the letter sent to Akers indicating that new evidence had been received, as well as copies of the post-hearing reports themselves.(fn9) One need not speculate as to why the matter was not pursued with the Appeals Council.
[¶20] While it is true that due process requires that a claimant be given the opportunity to cross-examine and subpoena the individuals who submit reports, Richardson v. Perales, 402 U.S. 389, 402, 91 S. Ct. 1420, 1427, L. Ed. 2d 842 (1971), it is not required that the ALJ inform the claimant's attorney of the claimant's right to cross-examine the vocational expert. Coffin v. Sullivan, 895 F2d 1206, 1212 (8th Cir. 1990). When the claimant's attorney (or in this case appointed representative) "fails to object to the post-hearing reports or remains silent when the opportunity to request cross-examination arises, the right to cross-examination is waived." Id. (citing Hudson v. Heckler, 755 F2d 781, 784-85 (11th Cir. 1985) (holding that claimant's non-attorney, legal representative had an opportunity to cross-examine a testifying doctor, but in failing to respond to notice, waived that right)). In view of the notice provided to representative Akers, and later to attorney Koehn, Fire Thunder's rights of due process were not violated. See Chamberlain v. Shalala, 47 F3d 1489, 1496 (8th Cir. 1995).
[¶21] D. Whether the ALJ's Failure to Consider Fire Thunder's Obesity at "Step Three" of the Sequential Analysis Requires Remand?
[¶22] Unlike the issues discussed previously, issue three was raised at the Appeals Council level. At step three of the sequential process,(fn10) the ALJ was required to determine whether Fire Thunder's impairments met or equaled one of the Listing of Impairments, 20 CFR Pt. 404, Subpt. P, App.1 §§ 1.00 et seq. (1997). Specifically, Fire Thunder contends that her case must be remanded because the ALJ failed to consider her obesity as meeting the applicable Listing of Impairments, 20 CFR Pt. 404, Subpt. P, App. 1 § 9.09. While this Court agrees that the ALJ did not expressly consider Fire Thunder's obesity or explain why he believed it did not meet or equal the listing of impairments found at § 9.09, it is also true that Fire Thunder did not allege disabling obesity on her application for SSI, nor did she testify at the administrative hearing that her weight was disabling. Further, it is clear, based simply on the objective record, that Fire Thunder did not meet the requirements for this listed impairment. For Fire Thunder to be disabled under § 9.09, she must have weighed at least 282 pounds for 12 consecutive months. Fire Thunder testified at the administrative hearing that she weighed 247 pounds. Further, the administrative record is replete with medical records that indicate her weight varied dramatically during the years prior to the administrative hearing, and only once do they indicate that she weighed close to the 282-pound requirement. See, e.g., Tr. 64, 99, 111, 143. The ALJ did specifically find that Fire Thunder's rheumatic heart condition, and arthritic knee, though severe, could not meet or equal any of the listed impairments found in the regulations, though she has not challenged these findings. Therefore, the ALJ's conclusion that Fire Thunder did not meet any of the listed impairments is supported by substantial evidence.
[¶23] Based upon the foregoing discussion, it is hereby
[¶24] ORDERED that judgment shall be entered in favor of the defendant and against the plaintiff. Costs shall not be assessed.
1. Fire Thunder is 67 inches tall and her weight has fluctuated radically in the year preceding her administrative hearing. See Tr. 64, 99, 111. At the time of her disability report she stated her weight was 241 pounds, although at at least one point, Fire Thunder weighed as much as 281 pounds. Tr. 143.
2. Because many of the contentions in this appeal center around procedural issues, it is important to note that Fire Thunder was not represented by an attorney at the administrative hearing, but instead elected to have non-attorney representative, Rhonda Akers, assist her. Fire Thunder did obtain attorney Lisa I. Koehn upon her appeal to the Office of Hearings and Appeals and later, upon appeal to this Court, Fire Thunder retained the legal services of Catherine R. Enyeart.
3. 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. (1996)].
(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).
4. The factors to be used in an ALJ's determination of a claimant's credibility were outlined in the well-cited case of Polaski v. Heckler, 739 F2d 1320, 1322 (8th Cir. 1984) (subsequent history omitted):
The adjudicator must give full consideration to all of the evidence presented relating to subjective complaints, including the claimant's prior work record, and observations by third parties and treating and examining physicians relating to such matters as:
1. The claimant's daily activities;
2. the duration, frequency and intensity of the pain;
3. precipitating and aggravating factors;
4. dosage, effectiveness and side effects of medication;
5. functional restrictions.
Polaski, 739 F2d at 1322. Polaski, 739 F2d at 1322. This Court recognizes that it may not be error for an ALJ to fail to discuss all the factors in Polaski. The Eighth Circuit has held:
Although the ALJ did not explicitly discuss each Polaski factor in a methodical fashion, he acknowledged and considered those factors before discounting [claimant's] subjective complaints of pain. What we said in an earlier case is applicable here: "An arguable deficiency in opinion-writing technique is not a sufficient reason for setting aside an administrative finding where . . . the deficiency probably had no practical effect on the outcome of the case." Benskin, 830 F2d at 883.
Brown v. Chater, 87 F3d 963, 966 (8th Cir. 1996).
5. By way of example, the ALJ pointed to jobs including that of telephone solicitor (370 in the regional economy and 104,000 in the national economy); information desk clerk (180 in the regional economy and 51,300 in the national economy); cashier (315 in the regional economy and 66,300 in the national economy); production inspector (70 in the regional economy and 18,450 in the national economy); and switchboard operator (500 in the regional economy and 88,400 in the national economy).
6. See footnote 3.
7. Both of these notices stated:
IF YOU WANT HELP WITH YOUR APPEAL
You can have a friend, lawyer, or someone else help you. There are groups that can help you find a lawyer or give you free legal services if you qualify. There are also lawyers who do not charge unless you win your appeal. Your local Social Security office has a list of groups that can help you with your appeal. Tr. 73, 93.
ALJ: Ms. Akers, you're representing Ms. Fire-Thunder, is that right?
ALJ: Are you and she prepared to proceed?
ALJ: Did you review the issues with her. Do you think I ought to go over them with you?
ALJ: Okay. Thinks she understands them? Okay.
9. The file that Koehn receive included, among other records, the interrogatories given to the vocational expert, his responses, and Dr. Matthew Simmons' neurology report.
10. See footnote 3.