Barker v. Shalala

• Decision Date: 26 August 1994
• Docket Number: No. 93-6122,93-6122
• Citation: 40 F.3d 789
• Parties: , Unempl.Ins.Rep. (CCH) P 14196B Gerald BARKER, Plaintiff-Appellant, v. Donna E. SHALALA, Secretary, Department of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 789

40 F.3d 789

46 Soc.Sec.Rep.Ser. 150, Unempl.Ins.Rep. (CCH) P 14196B

Gerald BARKER, Plaintiff-Appellant, v. Donna E. SHALALA, Secretary, Department of Health and Human Services, Defendant-Appellee.

No. 93-6122.

United States Court of Appeals Sixth Circuit.

Argued Aug. 8, 1994.

Decided Aug. 26, 1994 ^*.

Robert E. Francis (argued and briefed), Francis Law Office, Cadiz, KY, for plaintiff-appellant.

W. Brady Miller, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Louisville, KY, Susan Kelm Story (briefed), Dept. of Health and Human Services, Office of Gen. Counsel; Mack A. Davis, Dept. of Health & Human Services; Bruce Granger, Mary Ann Sloan, and Holly A. Grimes, Dept. of Health and Human Services, Office of Gen. Counsel, Atlanta, GA, for defendant-appellee.

Before: MARTIN, NELSON, and DAUGHTREY, Circuit Judges.

PER CURIAM.

This is an appeal from a district court decision affirming a denial of social security disability benefits and supplemental security income. Asserting that the ruling was not supported by substantial evidence, the plaintiff contends that an administrative law judge misconstrued evidence of a mental disability and admitted vocational evidence improperly. We do not find the plaintiff's contentions persuasive, and we shall affirm the judgment of the district court.

I

The plaintiff, Gerald Barker, who is now 31 years old, hurt his back at work on February 11, 1986. Over the next year and a half he sought treatment from various doctors. These physicians uniformly found that Mr. Barker's injury was not severe and was treatable. They prescribed medications and exercise, but Mr. Barker continued to complain of persistent pain.

On July 8, 1987, Mr. Barker filed a claim for disability insurance benefits and supplemental security income, alleging that the injury to his lower back had left him completely and totally disabled. His claim was denied at the initial and reconsideration levels, and he requested a hearing before an administrative law judge.

The ALJ arranged to have Mr. Barker referred to Carol F. Ruff, Ph.D., a clinical psychologist, for a psychological evaluation. Dr. Ruff made a diagnosis of "clinical somatoform pain disorder," a condition in which one perceives pain that lacks a physiological basis. She also found that Mr. Barker possessed borderline intellectual capacity, and that he suffered from an undefined "personality disorder." She noted, on the other hand, that the plaintiff had an intact memory with no major deficits in intellectual capacity, and that his behavior was basically appropriate.

Mr. Barker told Dr. Ruff that he had graduated from high school and was able to read and write; that he was able to get along adequately with his then-wife; and that the only medication he took for his back pain was Doan's pills and Tylenol. Mr. Barker reported that he experienced occasional depression. He denied having any crying spells, claimed that his appetite was good, and noted that he typically slept well as long as he remained on his back. He told Dr. Ruff that his daily activities consisted of lying around the house or sitting down and watching television, but that he tried to get out every day for one or two hours to visit his mother or other relatives. He said that his wife did all the chores around the house, but that he was able to take out the trash approximately twice a week. He also accompanied his wife to the grocery store.

Dr. Ruff expressed the opinion that Mr. Barker was a demanding and dependent individual who was constantly frustrated when his perceived needs were not met. She stated that he might develop somatic symptoms in reaction to his stress or frustration. She found that the plaintiff was able to understand, retain, and follow most instructions, and that he had a good ability to follow work rules and to maintain his personal appearance. She rated as only fair his ability to relate to co-workers, to deal with the public, to use judgment, to interact with supervisors, to deal with work stresses, to function independently, to maintain attention and concentration, to behave in an emotionally stable manner, to relate predictably in social situations, and to demonstrate reliability.

The ALJ referred Mr. Barker to Charles A. Barlow, M.D., who had treated the plaintiff in 1986. Dr. Barlow found Mr. Barker to be "completely normal," with no objective evidence indicating an inability to engage in work, up to and including strenuous heavy lifting.

At an administrative hearing held on October 2, 1989, Mr. Barker testified that he continued to watch television, drive his car on a daily basis, and run errands for his mother. He stated that he was not receiving any medical treatment, and that he took only non-prescription medications for his pain. He described himself as being depressed when he had headaches.

William Weiss, Ph.D., a clinical psychologist, testified at this hearing as a medical advisor. Dr. Weiss had reviewed Dr. Ruff's report, as well as the other medical reports. He had also listened to Mr. Barker's testimony at the hearing. Dr. Weiss opined that the plaintiff's depression was only situational, not constant, and that any depression he did experience was only mild. Dr. Weiss agreed with Dr. Ruff that the plaintiff had a somatoform disorder resulting in heightened sensations of pain, but he indicated that this disorder resulted in only a slight restriction of daily activities and slight difficulty in maintaining social functioning. Dr. Weiss noted that Mr. Barker did not appear to experience deficiencies of concentration very often, and that he never had experienced episodes of deterioration at work or in a work-like setting. Dr. Weiss questioned Dr. Ruff's vague diagnosis of a personality disorder, noting that Mr. Barker did not demonstrate behavior consistent with a serious personality disorder. Dr. Ruff's diagnosis, Dr. Weiss said, was refuted by the absence of a history of alcoholism or substance abuse, persistent disturbances of mood, oddities of thought, pathological suspicion, or seclusive behavior. Dr. Weiss stated that Mr. Barker's concentration was not constantly impaired by pain, because he testified to experiencing pain only intermittently. Concluding that Barker's mental impairments were mild, Dr. Weiss emphasized once again the absence of any evidence that the plaintiff had experienced episodes of deterioration at work.

On November 29, 1989, the ALJ issued a decision finding that the plaintiff was not disabled and that he could perform his past relevant work as a tobacco warehouse laborer and construction laborer. The Appeals Council vacated this decision and remanded the case to the ALJ, ordering a reevaluation of the plaintiff's complaints of pain in accordance with Social Security Ruling 88-13. ¹ The ALJ held a supplemental hearing on February 20, 1991, at which time Mr. Barker and a vocational expert testified.

The vocational expert stated that the claimant's past work was medium to heavy unskilled work, with the exception of his work as a truck driver, which was semi-skilled. Mr. Barker possessed no transferable skills, the expert said, except for skills relevant to some light truck driving jobs. Barker testified that he was unable to lift more than 30 to 35 pounds; assuming this to be true, the expert said, he was precluded from performing his past relevant work.

The ALJ propounded a hypothetical question to the vocational expert in which he asked the expert to assume that Mr. Barker had "all the limitations, restrictions and pains to which he testified." The ALJ asked the expert to assume that Mr. Barker's lower back pains "do not last very long, but they are very severe when they do occur." The vocational expert was thus to assume that although Mr. Barker could walk on a daily basis, he did not like to move suddenly or stoop or bend. The expert was also to assume that Mr. Barker occasionally suffered from headaches, blurred vision, and numbness in his feet and hands. The ALJ further told the vocational expert to assume that Mr. Barker should avoid crowds and that he "has trouble with close relationships, and getting along with others." "He may have a volatile temper," the ALJ said, "so he should not be in places where he is ... dealing on a regular basis with other people." The question further asked the witness to assume that Mr. Barker could lift and carry up to 30 or 35 pounds as long as he did not have to stoop down and pick the weights up. The vocational expert was to assume that Mr. Barker had problems concentrating but that his memory was intact. The ALJ asked whether a person with these limitations and of plaintiff's age, education, and work history was capable of performing jobs existing in significant numbers in the national economy.

Before the vocational expert answered this hypothetical question, the ALJ asked the claimant's attorney whether the question accurately stated the limitations from which Mr. Barker claimed to suffer. Mr. Barker's attorney responded in the affirmative. The vocational expert then responded that the claimant could not perform his past work with these restrictions, but that he could perform significant numbers of jobs in the national economy, including jobs at the light exertional level such as some custodial work, some night watchman jobs, and some truck driving and delivery jobs.

The vocational expert was then asked to consider further that this individual also had borderline intellectual capacity, could read with some concentration problems, suffered from a somatoform pain disorder, as well as "some sort of personality disorder," and generally had the restrictions set forth in Dr. Ruff's psychological assessment. The vocational expert testified that such limitations would not preclude an individual from performing the jobs previously enumerated. The expert explained that these jobs involved minimal contact with the public, involved only simple instructions, and did...