KEVIN S. LOCKHART,
Plaintiff,
v.
KENNETH S. APFEL,
Commissioner of Social Security,
Defendant.
[1999 DSD 18]
United States District Court
District of South Dakota, Western Division
CIV. 98-5119
MEMORANDUM OPINION AND ORDER ON REMAND
Larry D. Plank, Rapid City, SD
Attorney for Plaintiff
Diana J. Ryan, U.S. Attorney's Office, Rapid City, SD
Attorney for Defendant.
Filed June 9, 1999
Richard H. Battey, Senior District Judge
I. PROCEDURAL HISTORY
[¶1] In an opinion dated July 9, 1997, Administrative Law Judge Jon L. Lawritson ("ALJ") denied plaintiff Kevin S. Lockhart ("Lockhart") disability benefits under Title II of the Social Security Act ("the Act"), 42 USC §§ 401-433. Lockhart then requested that the Appeals Council review the ALJ's decision, but the Appeals Council declined. On December 14, 1998, Lockhart filed a complaint with this Court urging that the ALJ's decision be reversed. Pursuant to this Court's briefing schedule, Lockhart filed a motion for summary judgment (Docket #9) on April 15, 1999. The Commissioner of Social Security ("Commissioner") filed his response also seeking summary judgment (Docket #12) on May 3, 1999. Lockhart has replied. This Court has jurisdiction to proceed pursuant to 42 USC § 405(g).
II. FACTS
[¶2] Lockhart was born on January 7, 1958, and was 39 years old at the time of his administrative hearing. AR 20, 74. Lockhart has a high school education and has worked as a telephone lineman, heavy equipment operator, and back hoe operator. AR 97. Lockhart has maintained each of his past jobs for considerable periods of time.
[¶3] Lockhart suffered injuries to his lower back in 1994, while working as a lineman for Black Hills Power & Light ("BHP"). AR 33, 184. During the course of repairing a power line, Lockhart lost his footing and fell down a power pole. Id. Lockhart continued to work after the fall in hopes that the pain from his injuries would go away. Id. Lockhart reinjured himself in November 1994, when he inadvertently stepped into a hole and jarred his back. Id. After this injury, Lockhart was examined by several doctors and given an MRI. He was eventually diagnosed with spondylolisthesis and back instability. AR 132. On February 22, 1995, Lockhart had spinal decompression and fusion surgery, both anterior and posterior, supplemented with a transpedicle screw fixation. AR 118, 184. Although Lockhart engaged in a vigorous rehabilitation program, he was released from his employment with BHP. AR 169, 215, 207. Lockhart has not worked since leaving BHP.
[¶4] At the administrative hearing held on May 7, 1997, Lockhart testified that he is constantly bothered by severe lower back pain. AR 34. He also suffers from weakness in his legs, an inability to concentrate, and bladder urgency. Lockhart stated that he can sit for no more than 45 minutes at a time and can stand for no more than 15 minutes at a time without increasing his pain and discomfort. AR 38-39. He also testified that he can walk for approximately 20 minutes at a time, but only if the ground is soft and level. AR 40. Though he can bend, kneel, and reach, such actions substantially increase his pain. AR 41.
[¶5] In an attempt to reduce his pain and increase his mobility, Lockhart has tried a host of techniques and equipment including a TENS unit, traction unit, special chairs and mattresses as well as physical therapy and exercise. AR 36. Lockhart takes up to 2000 mg of Naprosyn for his pain on a daily basis. AR 35-36.
[¶6] At the time of the administrative hearing, Lockhart was attending classes at South Dakota School of Mines & Technology in pursuit of an engineering degree. AR 31-32. His ability to take a full credit load was limited, however, by his doctor's orders that he sit for no more than 10 credit hours a week. AR 38, 166. Lockhart also testified that his ability to concentrate is also adversely affected by the pain. AR 42.
III. DECISION BY 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 Lockhart had not engaged in any substantial gainful activity since November 16, 1994. At the next step, the ALJ found that Lockhart did suffer from a severe medical impairment (a collapsed L3-4 disc), but that he did not suffer from an impairment or combination of impairments listed in, or medically equal to one listed in the regulations. See Appendix 1 to Subpart P of Part 404, 20 CFR § 404.1501 et seq.
[¶8] Next, the ALJ determined, as per the fourth step of the sequential process, that Lockhart would be incapable of returning to any past relevant work. In this regard, the ALJ determined that Lockhart would be unable to perform the heavy lifting required in his past work as a telephone lineman, back hoe operator, or heavy equipment operator.
[¶9] After finding that Lockhart was unable to perform his past relevant work, the ALJ acknowledged that the burden shifted to the Commissioner to identify other jobs which Lockhart could perform existing in significant numbers in the national economy. While the ALJ expressly found that Lockhart suffers from "severe back pain and urinary urgency" he went on to conclude that his complaints of pain were exaggerated and not entirely credible. Given this conclusion, the ALJ found that Lockhart maintained the residual functional capacity to perform a full range of light work and therefore was not disabled. The ALJ did not consult a vocational expert in making this determination. Rather, the ALJ relied upon the Medical-Vocational Guidelines ("the Grids") in concluding that Lockhart was not disabled. See Appendix 2 to Subpart P of Part 404, 20 CFR §§ 404.1501-1599.
IV. STANDARD OF REVIEW
[¶10] 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).
[¶11] 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
[¶12] Lockhart urges this Court to reverse the ALJ's decision, contending, in part, that the ALJ erred in concluding that Lockhart retained the ability to perform a full range of light work and therefore additionally erred in applying the Medical-Vocational Guidelines to conclude he was not disabled under the Act. This Court agrees.(fn2)
[¶13] For Lockhart to be eligible for disability benefits, he must be under a disability at the time he was insured. 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 this case, the ALJ determined that Lockhart was not under a disability because he retained the residual functional capacity to perform a full range of light work.(fn3) In reaching this decision, the ALJ concluded that Lockhart did suffer from "severe low back pain and urinary urgency," though he went on to conclude that Lockhart did not suffer from any nonexertional impairments. AR 19. The ALJ then relied solely on the Grids(fn4) (without also receiving the testimony of a vocational expert) in determining that Lockhart was not disabled under the Act.
[¶14] The claimant bears the initial burden to show that he is unable to perform his relevant work. See Butler v. Bowen, 865 F2d 173, 174 (8th Cir. 1989) (citing Talbott v. Bowen, 821 F2d 511, 514 (8th Cir. 1987)). Once this is shown, the burden shifts to the Commissioner to show that there exists work in the national economy that the claimant is able to perform. Id. If a claimant's impairments are simply exertional, that is, only affecting his ability to perform physical labor, the Commissioner may carry his burden by referring only to the Grids. See Foreman v. Callahan, 122 F3d 24, 25 (8th Cir. 1997). However, "if a claimant's ability to perform the full range of work in a particular category is limited by a nonexertional impairment, the ALJ cannot rely exclusively on the grids to determine disability but must consider vocational expert testimony." Beckley v. Apfel, 152 F3d 1056, 1059 (8th Cir. 1998) (citing Frankl v. Shalala, 47 F3d 935, 937 (8th Cir. 1995)); see also Evans v. Chater, 84 F3d 1054, 1055 (8th Cir. 1996) (where there is substantial evidence as to significant nonexertional limitations Grids not applicable); Tucker v. Heckler, 776 F2d 793, 795 (8th Cir. 1985) (Grids properly used only when claimant's impairments are primarily exertional).
[¶15] Here, the ALJ expressly found that Lockhart suffers from severe back pain and urinary urgency. It is well settled that severe pain is a nonexertional impairment. See Beckley, 152 F3d at 1059 (citing Cline v. Sullivan, 939 F2d 560, 564 (8th Cir. 1991)). Nonetheless, the ALJ discredited Lockhart's testimony regarding the effect of this nonexertional impairment on his functional limitations, concluding that "there is no support in the record for the claimant's alleged limitations in sitting, standing and walking." AR 18.
[¶16] The record, however, does not support this conclusion. To the contrary, a review of the medical evidence reveals that Lockhart's severe back pain has significantly diminished his ability to perform light work as defined in 20 CFR § 404.1567(b). To be considered capable of light work, Social Security regulations require a claimant to be able to perform a "good deal of walking or standing." 20 CFR § 404.1567(b). Additionally, the claimant must be able to sit "most of the time." Id. The medical evidence in this case shows that Lockhart is simply unable to engage in protracted amounts of walking, standing, or sitting. This being the case, he cannot be considered capable of engaging in a full range of light work pursuant to Social Security regulations and, thus, the ALJ's sole reliance upon the Grids was in error. See Beckley, 152 F3d at 1059.
[¶17] This conclusion is supported by the medical reports of Lockhart's treating and reviewing physicians. In February 1995, Lockhart underwent spinal fusion surgery. Though he appeared to do well post-operatively, he soon began to present concerns of back pain and stiffness to his physical therapist, Joleen Wilson. AR 150-51. Wilson initially attributed Lockhart's back pain to lingering difficulties from his surgery. AR 151. Lockhart's pain and stiffness continued however, and physical therapist Charles McCullough reported that Lockhart's pain was exacerbated by forward and side bending. AR 122-23. To help him control his pain and improve his mobility, Lockhart was issued a TENS unit. AR 122.
[¶18] After Lockhart began attending South Dakota Schools of Mines & Technology, his treating physician, Dr. Larry Teuber, observed that Lockhart was "finding it difficult to sit for long periods of time and the credit load he has been taking has been somewhat stressful and is causing a lot of aching . . . [w]e have talked about his credit load, we should limit this and we will also provide a letter to this effect." AR 166. Lockhart's pain continued to worsen, prompting his visit to neurologist Dr. J.D. Sabow in November 1996. Dr. Sabow noted that Lockhart's chronic back pain is "made worse by trying to sit too long, stand too long, [or] walk too long . . . ." Dr. Sabow recommended that Lockhart be seen by Dr. Teuber again for re-scanning, concluding that "at this time [Lockhart] is 100% disabled." AR 185.
[¶19] In August 1997, Dr. Teuber referred Lockhart to Dr. Brett Lawlor for further evaluation.(fn5) Dr. Lawlor also concluded that Lockhart's function was "significantly limited by his pain" and he recommended that Lockhart receive facet injections to reduce the pain and normalize his motion. AR 226. He also encouraged Lockhart to put extra effort into his physical therapy program in the hopes of improving his "level of function." AR 228.
[¶20] The medical evidence noted above provides objective proof that Lockhart's nonexertional impairment (severe pain) diminishes his residual functional capacity to perform a full range ofactivities.(fn6) Although this pain may not be severe enough to be disabling, Lockhart is entitled to have a vocational expert testify as to the effect of this impairment on his residual functional capacity. See Beckley, 152 F3d at 1059. Accordingly, on remand a vocational expert should be called and asked to give an opinion as to whether, in light of his nonexertional impairments, Lockhart is able to perform any jobs in the local or national economy on a full-time basis. See id.; (citing Easter v. Bowen, 867 F2d 1128, 1130 (8th Cir. 1989)).(fn7) Testimony of a vocational expert is required for the Commissioner to meet his burden in this case. See id.
VI. CONCLUSION
[¶21] After a complete review of the record presented in this case, this Court finds that Lockhart suffers from a nonexertional impairment of chronic and severe back pain. Because the medical evidence also shows that Lockhart's pain diminishes his ability to engage in a full range of light work, the ALJ's sole reliance upon the Grids was in error. Accordingly, it is hereby
[¶22] ORDERED that Lockhart's motion seeking reversal of the ALJ's decision (Docket #9) is granted. The decision of the ALJ is reversed and the case is remanded for further administrative proceedings consistent with this opinion.
[¶23] IT IS FURTHER ORDERED that the Commissioner's motion for summary judgment (Docket #12) is denied.
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.].
(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. Lockhart also argues that his case should be remanded to the Commissioner on the basis of newly discovered evidence. Lockhart has presented this Court with supplemental evidence consisting of a letter written by Dr. Rand Schleusener dated December 23, 1998, and a medical report written by Dr. Craig G. Mills dated May 19, 1998. Section 405(g) generally precludes consideration on review of evidence outside the record before the Commissioner during the administrative proceedings. See Delrosa v. Sullivan, 922 F2d 480, 483 (8th Cir. 1991). Remand is appropriate only upon a showing by the claimant "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." 42 USC § 405(g); see also Thomas v. Sullivan, 928 F2d 255, 260 (8th Cir.1991). To be considered material, the new evidence must be "non-cumulative, relevant, and probative of the claimant's condition for the time period for which benefits were denied." See Woolf v. Shalala, 3 F3d 1210, 1215 (8th Cir. 1993). Furthermore, it must be reasonably likely that the Commissioner's consideration of this new evidence would have resulted in an award of benefits. See id. Because this Court finds that the information contained in both the letter and medical report is merely cumulative (and therefore not material), Lockhart's argument for remand on the basis of newly discovered evidence is without merit.
3. According to Social Security regulations, "light work" involves:
lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities.
20 CFR § 404.1567(b).
4. The Grids are fact-based generalizations about the availability of jobs for people of varying ages, educational backgrounds, and previous work experiences, with differing degrees of exertional impairments. See Appendix 2 to Subpart P of Part 404, 20 CFR §§ 404.1501-1599.
5. Because Dr. Lawlor's report was not available at the time of the administrative hearing, it only became part of the record after being considered by the Appeals Council. AR 7. When supplemental reports are considered by the Appeals Council, the reviewing district court must decide "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) (emphasis added) (citations omitted). Thus, 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." Id.
6. The Court is mindful that it may not reverse the Commissioner's decision simply because substantial evidence would have supported an opposite decision. Woolf, 3 F3d at 1213. However, where the record is devoid of substantial evidence to support the findings of the ALJ (as in this case), the decision must be reversed. Murphy, 953 F2d at 384.
7. Additionally, it appears that the ALJ failed to consider the effect of Lockhart's bladder urgency and inability to concentrate on his ability to perform a full range of light work. On remand, these nonexertional impairments should also be addressed.
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