ROBERT LONG SOLDIER,
KENNETH S. APFEL,
Commissioner, Social Security Administration,
[2000 DSD 27]
Catherine R. Enyeart, Enyeart & Koehn, Hot Springs, SD
Attorney for Plaintiff
Diana J. Ryan, U.S. Attorney's Office, Rapid City, SD
Attorney for Defendant
Karen E. Schreier, U. S. District Judge
[¶1] Robert Long Soldier alleges that the administrative law judge (ALJ) erred in denying him supplemental security income benefits under Title XVI of the Social Security Act. Long Soldier filed a motion for summary judgment seeking either reversal or remand of the Administrative Law Judge's (ALJ) determination. The Commissioner of Social Security filed a cross motion for summary judgment requesting the decision of the ALJ be affirmed. This court has jurisdiction pursuant to 42 USC § 405(g). The case is remanded to the Commissioner for further administrative proceedings pursuant to 42 USC § 405(g).
[¶2] Long Soldier was born on June 11, 1949, and is currently 50 years of age. He achieved a tenth grade education and previously has worked as a security guard, a community worker, and at a solid waste management dump. At the time of the administrative determination, Long Soldier was not employed. He claims to have been disabled since May 1, 1997, as a result of his impairments.
[¶3] At the administrative hearing, Long Soldier was not represented by a lawyer. During the hearing, Long Soldier testified that both of his legs were injured by a gunshot wound suffered during a hunting accident in 1975. Surgery was performed on both legs at that time. He complains of pain in both legs. In his right leg the pain ranges between a stinging sensation at night that awakens him to a dull ache when he walks or stands for various amounts of time. His right leg feels numb periodically. His left leg causes him pain as well. The condition interferes with his ability to sleep, as his leg will "kick" depending upon the amount of walking performed during the previous day.
[¶4] Long Soldier also suffers from hypertension and/or high blood pressure. He stopped taking medication for his high blood pressure and tried to correct this condition through diet. Long Soldier admits that his blood pressure does give him difficulties if he does not follow a proper diet, including a "ringing in his ears" at night.
[¶5] Long Soldier has difficulty using his left hand due to a shoulder dislocation in 1983, which causes a continuous dull aching pain in his shoulder joint. This condition limits his ability to raise his arms overhead and lift heavy objects. Long Soldier has a family history of diabetes, but he has not yet been diagnosed. Long Soldier also uses alcohol, primarily on weekends.
[¶6] Long Soldier takes Flexeril, a muscle relaxer, to help him sleep. He uses Ibuprofen during the day for the pain. Although not prescribed by a doctor, he also uses a cane "once in a while" depending on where he has to walk and what distances. Long Soldier wears an elastic bandage "most of the days" on his right knee since a fall onto concrete. Long Soldier has an untreated back ailment that gives him difficulty in laying down or stooping over.
[¶7] Long Soldier's past work history includes work as a night watchman from 1979 to 1983, where he would check doors and walk around the protected premises. Long Soldier was required to be on his feet 15 minutes of every two hours and there was no heavy lifting requirement. While doing community work from 1991 to 1996, Long Soldier aided the elderly in "whatever they needed." This included driving duties, maintenance work, and cleaning up after the elderly. No heavy lifting was required. During 1996 and into 1997, Long Soldier worked at a solid waste management site in Wanblee, South Dakota. He took money from individuals entering the dump and at times engaged in raking. Occasionally, he helped people lift items from their cars, but generally a co-worker did "most of the heavy work."
[¶8] In describing a typical day to the ALJ, Long Soldier stated that he got up around 6 a.m. Generally, he took a bath or shower, and then ate breakfast prepared by his brother. He engaged in various daily activities, including visiting his next door neighbors, watching television, or reading. Long Soldier indicated no memory problems. He gets along with people, but he is not a member of any social activities or clubs. He does not drive a car, but sometimes cleans his room, helps do the laundry, or helps prepare meals. Long Soldier also gardens, but this was primarily limited to turning on a sprinkler.
[¶9] Long Soldier sits down because of leg pain after about ten to twenty minutes and it takes him over twenty minutes to walk one-half mile, including an abundance of rest. He cannot walk more than a quarter of a mile without stopping. He also has difficulty climbing stairs. The amount of weight he could lift at one time was not conclusively established at the hearing. At one point Long Soldier said one or two pounds, and at another he indicated he could lift a gallon of milk.
[¶10] Long Soldier applied for supplemental security income on May 28, 1997. The ALJ denied the application after applying the five-step procedure that embodies a set of presumptions about disabilities, job availability, and their interrelation. See Cleveland v. Policy Mgt. Sys. Corp., 526 US 795, 119 SCt 1597, 1602-03, 143 LEd2d 966 (1999). (fn1) The ALJ determined that Long Soldier had not engaged in substantial gainful activity since May 1, 1997. The ALJ found that Long Soldier's mental impairment due to admitted alcohol use did not pose more than a minimal effect on his ability to perform basic work activities and was not a severe impairment. Next, the ALJ found that the residual effects from Long Soldier's gunshot wounds "in the right lower extremity" did significantly affect his ability to do basic work activities and was severe. However, the ALJ found that although Long Soldier's impairment was severe, it was "not attended with those specific clinical signs or diagnostic findings that meet or equal the degree of severity set forth in the appropriate listing of impairments." See Appendix 1 to Subpart P of Part 404, 20 CFR §§ 404.1501 et seq. ("Listed Impairments"). The ALJ found that Long Soldier had no level of impairment or combination of impairments fitting within that listing.
[¶11] The ALJ then examined "whether the claimant can perform his past relevant work or any other work in the national economy." The ALJ began by evaluating Long Soldier's residual functioning capacity (RFC). The ALJ evaluated the testimonial evidence and the medical records submitted at the hearing. He found that Long Soldier's statements concerning his impairments and their impact on his ability to work were not credible in light of discrepancies between his assertions and the lack of medical evidence. The ALJ determined, in light of the evidence, that Long Soldier had the RFC to lift and carry ten pounds frequently and twenty pounds occasionally; could stand thirty to sixty minutes at a time and walk one-quarter to one-half mile at a time for a total of four to six hours during the day. The ALJ also determined that Long Soldier could sit without difficulty, and could perform only occasional climbing, stooping, kneeling, and operation of right foot controls. Finally, the ALJ determined Long Soldier should avoid reaching or lifting above the left shoulder level.
[¶12] Because Long Soldier's prior employment was not performed at a level of substantial gainful activity, the ALJ determined he had no past relevant work experience. In determining whether there are other jobs in the national economy that Long Soldier could perform, the ALJ considered Long Soldier's limited education, lack of transferable skills, and the uncontested testimony of the vocational expert. The ALJ agreed with the testimony of the vocational expert and found that an individual with an RFC such as Long Soldier's could perform several different unskilled light occupations. These included work in protective service such as a school bus monitor, personal service such as locker room attendant, and assembler. The ALJ established both regional and national opportunities for such positions.
[¶13] The ALJ further determined that even if Long Soldier's RFC were less, a significant number of unskilled sedentary occupations were available. The ALJ considered an RFC which included standing no more than twenty minutes at a time, walking no more than ten minutes at a time, and standing and walking in combination no more than one-third of the day, lifting and carrying no more than five pounds frequently or ten pounds occasionally. Based on the testimony of the vocational expert, the ALJ concluded Long Soldier could engage in positions including surveillance system monitor, assembler, and hand packer. Long Soldier's application was denied.
[¶14] A social security claimant bears the burden of proving disability. See Baumgarten v. Chater, 75 F3d 366, 368 (8th Cir. 1996). The decision of an ALJ must be upheld if there exists substantial evidence on the record as a whole supporting the determination. See id.; Metz v. Shalala, 49 F3d 374, 376 (8th Cir.1995). 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, 894 (8th Cir. 1998).
[¶15] When reviewing a denial of benefits, a court must take into account the entire administrative record and give consideration to evidence that both supports and detracts from the ALJ's findings. See Harwood v. Apfel, 186 F3d 1039, 1042 (8th Cir. 1999). See also Brockman v. Sullivan, 987 F2d 1344, 1346 (8th Cir. 1993). The court may not substitute its judgment for that of the ALJ simply because it disagrees with the ALJ or finds the claimant's proof more credible. See Jelinek v. Bowen, 870 F2d 457, 458 (8th Cir.1989). The court must also review the decision by the ALJ to determine if an error of law has been committed. 42 USC § 405(g). Specifically, a court must evaluate whether the ALJ applied an erroneous legal standard in the disability analysis. Erroneous interpretations of law will be reversed. See Walker v. Apfel, 141 F3d 852, 853 (8th Cir. 1998) (citing Ingram v. Chater, 107 F3d 598, 601 (8th Cir. 1997)).
[¶16] To be eligible for an award of benefits, Long Soldier must have been disabled at the time he made the claim for Title XVI benefits. Disability is defined as an inability to engage in any substantial gainful activity due to a 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 twelve months. 42 USC § 423(d)(1)(A). An individual is considered disabled only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in significant numbers either in the region where the individual lives or in several regions of the country. 42 USC § 423(d)(2)(A).
[¶17] In this case, the ALJ concluded Long Soldier was not disabled because he does not have a qualifying impairment and he maintained the ability to engage in light work, subject to certain nonexertional limitations. Long Soldier contends that the decision of the ALJ is erroneous and should be either reversed, or, in the alternative, remanded for a new hearing.
[¶18] Long Soldier alleges that the ALJ failed to adequately develop the documentary and testimonial evidence. The ALJ has a duty to fully and fairly develop the facts in the record. See Salts v. Sullivan, 958 F2d 840, 844 (8th Cir. 1992). This duty is even greater where the claimant has no representation at the administrative hearing. See id.; Highfill v. Bowen, 832 F2d 112, 115 (8th Cir. 1987); Driggins v. Harris, 657 F2d 187, 188 (8th Cir. 1981). "'Unfairness or prejudice resulting from an incomplete record - whether because of lack of counsel or lack of diligence on the ALJ's part - requires a remand.'" Salts, 958 F2d at 844 (quoting Highfill v. Bowen, 832 F2d 112, 115 (8th Cir. 1987)). When documentary evidence already before the ALJ puts the ALJ on notice of the need for further inquiry or development of the record, a remand is necessary. Highfill, 832 F2d at 115.
[¶19] After reviewing the records before the ALJ, this court finds that the ALJ failed to develop the record so that a fair determination of Long Soldier's disability status could be made. The ALJ did not obtain the medical records from Wanblee Health Center, Gordon Hospital, and Pine Ridge hospital. These records were obtained by Long Soldier's counsel, whom he hired after the administrative hearing. The information in the medical records confirms much of the testimony given by Long Soldier regarding high blood pressure and rheumatoid or gouty arthritis.
[¶20] The ALJ found Long Soldier's complaints of pain and his impairment and resulting limitations not credible because they were not supported by medical evidence. The discounting of pain or a claimant's subjective complaints of pain is proper only if there are inconsistencies in the record as a whole. See Johnson v. Chater, 87 F3d 1015, 1017 (8th Cir. 1996) (citing Smith v. Shalala, 987 F2d 1371, 1374 (8th Cir. 1993)). The new medical records supplied by Long Soldier require reevaluation of both the pain and credibility determinations. Long Soldier does not need to prove that his pain precluded him from all productive activity and limits him to life "in front of the television." Baumgarten v. Chater, 75 F3d 366, 369 (8th Cir. 1996). Further development of the record analyzing Long Soldier's complaints of pain should include all appropriate medical records, Long Soldier's testimony, and the testimony of Long Soldier's friends and acquaintances. Ramey v. Shalala, 26 F3d 58, 60-61 (8th Cir. 1994).
[¶21] The ALJ also failed to develop the record regarding Long Soldier's claim of left upper extremity impairment and any exertional limitations resulting from such an impairment. This injury is verified in the newly acquired medical records. If the ALJ had fully developed the record, such information would have been before him while making his determination. See, e.g., Kitts v. Apfel, 204 F3d 785, 786 (8th Cir. 2000).
[¶22] A district court is deemed to have good cause to remand when it possesses a reasonable desire for development of existing documentary evidence and reports omitted from the record or when it feels unsure about the adequacy and fairness of the administrative hearing because of the claimant's unfamiliarity with procedure. See Bohms, 381 F2d at 286. Remand is appropriate in this case for full development of the record and a reexamination of whether Long Soldier's testimony should be discredited in light of the medical records evidence.
[¶23] Long Soldier claims the RFC determination was improper in light of the limited evidence before the ALJ. RFC is generally the most important issue in disability determinations under the Guidelines. See McCoy v. Schweiker, 683 F2d 1138, 1147 & n.8 (8th Cir. 1982). In the case of light work, "the claimant must be able to perform 'a full or wide range of light work' on a 'sustained' basis." McCoy, 683 F2d at 1147 (citing 20 CFR § 404.1567(b) and 20 CFR Appendix 2 § 202.00). The RFC that must be found if the grid is to be used in the case of sedentary, medium, and light work includes not just the ability merely to lift weights occasionally in a doctor's office; it is "'the ability to perform the requisite physical acts day in and day out, in the sometimes competitive and stressful conditions in which real people work in the real world.'" Tang v. Apfel, 205 F3d 1084, 1086 (8th Cir. 2000) (quoting McCoy, 683 F2d at 1147). In light of the court's decision to remand this matter for further development of the record, the ALJ will have to redetermine the residual functional capacity of Long Soldier after taking into consideration the new medical evidence and other evidence presented by Long Soldier.
[¶24] Long Soldier argues that the cultural differences between non-Indian and Lakota individuals contributed to the failure to properly develop the record. Cases which have mandated reversal on cultural differences typically involve claimants with a partial or complete lack of understanding of the English language combined with limited amounts of education, or no education at all. See, e.g., Vega v. Schweiker, 549 F. Supp. 713 (S.D.N.Y. 1982). Long Soldier did not meet this standard as he demonstrated the ability to comprehend what was happening during the hearing, and he has a tenth grade level of education. During the hearing on remand, however, the ALJ should be mindful of the cultural differences of Lakota people when evaluating the credibility of Long Soldier's testimony.
[¶25] Long Soldier also claims that the burden of proof placed upon the Commissioner at Step Five was not satisfied. The ALJ must correctly determine the claimant's impairments and then develop a hypothetical question for the vocational expert that fully sets out all of the claimant's impairments. Totz v. Sullivan, 961 F2d 727 (8th Cir. 1992). Testimony elicited from hypothetical questions which do not relate all of a claimant's impairments does not constitute substantial evidence to support a finding of no disability. Shelltrack v. Sullivan, 938 F2d 894, 898 (8th Cir. 1991); see also Penn v. Sullivan, 896 F2d 313, 316-17 (8th Cir. 1990).
[¶26] As discussed, without a fully developed record, as is required of the ALJ by administrative rule, a proper RFC could not have been ascertained. This discredits the hypotheticals posed to the vocational expert. The Step Five determination made by the ALJ may have been in error and should be reexamined on remand. Accordingly, it is hereby
[¶27] ORDERED that Commissioner's motion for summary judgment (Docket 15) is denied.
[¶28] IT IS FURTHER ORDERED that Long Soldier's motion for summary judgment requesting remand (Docket 13) is granted. This case is remanded to the Commissioner in accordance with 42 USC § 405(g).
1. The ALJ must ask forms of the following questions established through Social Security Administration procedures:
(1) Are you presently working? (If so, the applicant is ineligible.) 20 CFR § 404.1520(b) (1998).
(2) Do you have a "severe impairment," i.e. one that "significantly limits" your ability to do basic work activities? (If not, applicant is ineligible.) See § 404.1520(c).
(3) Does your impairment "mee[t] or equa[l]" an impairment on a specific (and fairly lengthy) SSA list? (If so, applicant is eligible without more.) See § 404.1520(d), 404.1525, 404.1526.
(4) If your impairment does not meet or equal a listed impairment, can you perform your "past relevant work?" (If so, applicant is ineligible.) See § 404.1520(e).
(5) If your impairment does not meet or equal a listed impairment and you cannot perform your "past relevant work," then can you perform other jobs that exist in significant numbers in the national economy? (If not, applicant is eligible.) See §§ 404.1520(f), 404.1560(c).
Cleveland v. Policy Management Sys. Corp., 119 S. Ct. at 1602-03.