SANDRA C. BERGMAN,
Plaintiff,
v.
KENNETH S. APFEL,
Commissioner of Social Security,
Defendant.
[1999 DSD 6]
United States District Court
District of South Dakota - Western Division
CIV 98-5077
MEMORANDUM OPINION AND ORDER
Michael John Simpson, Groves, Julius & Simpson, Rapid City, SD
Attorney for Plaintiff
Diana J. Ryan, U.S. Attorney's Office, Rapid City, SD
Attorney for Defendant
Filed Feb 22,1999.
Richard H. Battey, Senior District Judge
I. PROCEDURAL HISTORY
[¶1] In an opinion dated July 24, 1997, Jon L. Lawritson, an Administrative Law Judge ("ALJ"), denied plaintiff Sandra C. Bergman ("Bergman") disability benefits under Title II of the Social Security Act ("the Act"), and supplemental security income under Title XVI of the Act, 42 USC §§ 401-433; 1381-1383c. Bergman then requested that the Appeals Council review the ALJ's decision, and the Appeals Council declined review. On August 4, 1998, Bergman filed a complaint before this Court seeking review of the ALJ's decision. She now urges this Court to reverse the decision of the ALJ (Docket #12). The Commissioner of Social Security ("Commissioner") filed his response seeking summary judgment as a matter of law
(Docket # 17). Bergman has filed her reply. This Court has jurisdiction to proceed pursuant to 42 USC § 405(g).
II. FACTS
[¶2] Bergman was born on November 12, 1953, and is currently 46 years of age. She has a G.E.D., as well as a vocational degree in computer office careers from Western Dakota Vocational and Technical College. AR 29-30. She is presently unmarried and has two adult children who are no longer living with her. Bergman's work history includes positions as a factory worker, hotel housekeeper, secretary, and credit investigator. AR 27-32.
[¶3] Bergman alleges that she became disabled on July 17, 1997, due to spinal pain, headache, stress, fatigue, and rheumatoid arthritis. AR 80, 88. At the administrative hearing held on May 5, 1997, Bergman testified that she is tired all of the time and that she suffers from depression due to chronic back and neck pain. AR 31. In this regard, she stated: "I don't feel like I want to live sometimes in the pain I'm in and the depression I'm in. I feel I can't go on." AR 36. In addition, she testified that she had both good and bad days, though light physical activity could force her to go to bed for three days to a week. AR 31. Bergman also stated that she sometimes takes up to ten hot baths a day to control her pain. She has been prescribed pain medication for various ailments, as well as anti-depressants.
[¶4] At the time of the administrative hearing, Bergman was on unpaid medical leave from her employment as a credit investigator with Greentree Financial. Prior to taking leave, Bergman worked approximately 20 hours per week at a wage of $6.50 per hour. Her employment with Greentree began on April 22, 1996, and lasted until April 6, 1997.(fn1) Although she testified at the administrative hearing that she hoped to return to work in the future, Bergman has not returned to any form of employment.
[¶5] Upon seeking review of the ALJ's decision with the Appeals Council, Bergman submitted supplemental evidence that was unavailable at the time of the administrative hearing. This evidence consisted of the reports of Bergman's psychiatrist, Donald R. Burnap, indicating that Bergman is suffering from a long standing Dysthymic and major depressive disorder. AR 284-89. In his report, Dr. Burnap detailed visits he held with Bergman in early 1997. Dr. Burnap reevaluated Bergman in September 1997 (well after the ALJ's decision had been issued) and reported that her condition was only worsening with time. AR 287-88. By October 2, 1997, Dr. Burnap stated that Bergman's depression had become so disabling as to foreclose her ability to maintain any gainful employment for perhaps as long as two years. AR 289. Although the Appeals Council considered Dr. Burnap's reports, it nonetheless concluded that the ALJ's decision was in accord with the weight of the evidence and it declined review.
III. DECISION BY THE ALJ
[¶6] In assessing the sequential process(fn2) which is required when determining if an individual is disabled and thus entitled to benefits, the ALJ concluded that Bergman had engaged in substantial gainful activity within the meaning of 20 CFR §§404.1572; 416.972.(fn3) AR 15. This decision was based upon Bergman's own testimony which revealed that at no time in the relevant past had she been without work for more than nine months. AR 14. The ALJ also took note of Bergman's testimony that she intended to return to work as soon as she was able. Id.
[¶7] Given that Bergman had not been unemployed for any 12-month period, and fully intended to return to work in the near future, the ALJ found that Bergman had engaged in substantial gainful activity and therefore could not be considered "disabled" under the Act. See 20 CFR §§ 404.1572; 416.973.(fn4) AR 14-15. Because the ALJ determined that Bergman was not disabled at step one of the analysis, her medical complaints were not addressed. AR 15.
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 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
[¶10] Given that the Appeals Council considered the supplemental reports of Dr. Burnap, this Court's role is "limited to deciding whether the administrative law judge's determination is supported by substantial evidence on the record as a whole, including the new evidence submitted after the determination was made." Riley v. Shalala, 18 F3d 619, 622 (8th Cir. 1994) (citing Nelson v. Sullivan, 966 F2d 363, 366 (8th Cir. 1992); Browning v. Sullivan, 958 F2d 817, 822 (8th Cir. 1992)). Accordingly, this Court must "speculate to some extent on how the administrative law judge would have weighed the newly submitted reports if they had been available for the original hearing." Riley, 18 F3d at 622; see also Mackey v. Shalala, 47 F3d 951, 952 (8th Cir. 1995).
[¶11] In this case, the ALJ was originally presented with a claimant who (although at the time on unpaid medical leave) had engaged in gainful employment in the recent past. In addition, Bergman testified that she intended to return to work in the future. Thus, at the time of his decision, the ALJ had not been presented with the possibility that Bergman would remain unemployed for the continuous period of twelve months or more necessary to establish a lack of substantial gainful activity. See 20 CFR §§ 404.1509; 416.909. If these facts were the only basis for determining whether or not the ALJ's decision was based on substantial evidence, this Court would have little choice but to affirm.
[¶12] This Court faces a closer question, however, in view of the supplemental reports considered by the Appeals Council. As noted above, Dr. Burnap's reports outlined the course of Bergman's depression and upon reevaluation predicted that Bergman would be unable to maintain gainful employment in the future.(fn5) Accordingly, this Court must engage in the "peculiar task" of determining whether or not the ALJ would have found substantial gainful activity if he had been presented with an admittedly depressed claimant who had a history of gainful employment, and who testified of her intent to return to work, but whose own psychiatrist predicted that she would not be able to return to work due to her depression. Riley, 18 F3d at 622 (noting that such question creates a "peculiar task for a reviewing court").
[¶13] Given this odd posture, the Court notes that it may not reverse the Commissioner's determination "merely because substantial evidence would have supported an opposite decision." Woolf, 3 F3d at 1213. It was Bergman's burden to show that she was or would be disabled for twelve consecutive months. See Kerns v. Apfel, 160 F3d 464, 466 (8th Cir. 1998) (citing Fines v. Apfel, 149 F3d 893, 894 (8th Cir. 1998)). Because Bergman herself testified that she intended to return to work, and given her past history of gainful employment, the Court must conclude that the ALJ's decision would have been no different had he possessed the supplemental reports at the time of his decision. The Court also points out that much of Dr. Burnap's predictions regarding Bergman's future inability to maintain gainful employment were based upon Bergman's worsened condition as it existed more than two months after the ALJ's decision.
[¶14] Upon careful consideration of the record as a whole (including the supplemental reports), and given the deference this Court should show for Appeals Council decisions,(fn6) the Court finds that there exists substantial evidence in the record as a whole for the ALJ to have found that Bergman engaged in substantial gainful activity and therefore may not be considered "disabled" under the Act. See 20 CFR §§ 404.1572; 416.973. To the extent that Bergman's condition has deteriorated since the ALJ's decision, Bergman may reapply for benefits. See Jones v. Callahan, 122 F3d 1148, 1154 (8th Cir. 1997). Based upon the foregoing discussion, it is hereby
[¶15] ORDERED that Bergman's motion seeking reversal of the ALJ's decision is denied.
[¶16] IT IS FURTHER ORDERED that the Commissioner's motion for summary judgment is granted. Judgment shall be entered in favor of the defendant and against plaintiff.
1. Before working at Greentree, Bergman was employed with MPI from almost 4 years. AR 30.
2. 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).
3. Substantial gainful activity is defined as:
- Substantial work activity is work activity that involves doing significant physical or mental activities. Your work may be substantial even if it is done on a part time basis or if you do less, get paid less, or have less responsibility than when you worked before.
- Gainful work activity is work activity that you do for pay or profit.
4. 20 CFR §§ 404.1520 and 416.920 both state in pertinent part:
(a) If you are doing substantial gainful activity, we will determine that you are not disabled.
(b) If you are working and the work you are doing is substantial gainful activity, we will find that you are not disabled regardless of your medical condition or your age, education, and work experience.
5. The Court notes that Bergman's is not a case where the supplemental report presents an entirely new impairment, previously unconsidered by the ALJ. Rather, in this case, Dr. Burnap's reports outline the long-term prognosis of Bergman's major depression disorder, a condition before the ALJ at the time of the original hearing.
6. In Mackey, the Court of Appeals stated: "Although we are not bound by the Appeals Council's evaluation of this . . . evidence, we should give it considerable deference, at least when, as in this case it has support on the record." 47 F3d at 953.