Baker v. Apfel, 98-1368

• Decision Date: 10 November 1998
• Docket Number: No. 98-1368,98-1368
• Parties: , Unempl.Ins.Rep. (CCH) P 16141B Wayne T. BAKER, Appellant, v. Kenneth S. APFEL, Commissioner of Social Security Administration, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1140

159 F.3d 1140

59 Soc.Sec.Rep.Ser. 16, Unempl.Ins.Rep. (CCH) P 16141B

Wayne T. BAKER, Appellant, v. Kenneth S. APFEL, Commissioner of Social Security

Administration, Appellee.

No. 98-1368.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 21, 1998.

Decided Nov. 10, 1998.

Karen Pope Greenaway, Fayetteville, AR, argued (L.R. Loriane Pickell, on the brief), for appellant.

Steven A. Ford, Assistant Regional Counsel, Social Security Administration, Dallas, TX, argued, for appellee.

Before RICHARD S. ARNOLD, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

BEAM, Circuit Judge.

Wayne Baker appeals the ruling of the district court affirming an administrative law judge's denial of social security disability benefits. Because the administrative law judge (ALJ) failed to consider Baker's inability to work on a full-time basis, there is not substantial evidence to support the ALJ's decision. Accordingly, we reverse.

I. BACKGROUND

Baker, who was forty-nine years old at the time of the hearing in November 1994, spent most of his life working in unskilled or semi-skilled positions requiring physical labor. He was employed as a survey crew supervisor, poultry grower, production worker, and equipment installer. He suffers from arthritis in his knees, right hip, and right shoulder, and chronic back pain. The record contains no evidence of a limited range of motion, but shows that his joint and back pain results in the need to alternate between sitting and standing, as well as limits his ability to stoop, lift, and carry. His other impairments include muscle tension headaches, migraine headaches, and depression. Baker began experiencing headaches in 1991, and both the intensity and frequency of the headaches increased over time. His personal physician referred him to a headache clinic where he was given anti-depressants and taught relaxation techniques to help minimize the tension headaches. The migraine headaches, however, continued unabated. These headaches are often accompanied by nausea and sensitivity to light. The only effective pain medication for the migraines is an injection of Demerol, a narcotic pain drug similar to morphine. The record shows that Baker requires these injections, given by his physician or by the local emergency room, two and sometimes three times per week. ¹ In addition, he takes various medications for depression and non-migraine pain. These include Vicodin, Lorcet Plus, Flexeril, Vistaril, Prozac, and Sinequan.

On August 23, 1993, Baker stopped working as a production worker at a food processing plant because of his impairments. He claims that the pain and the effects of his medications prevent him from performing any type of work. Although he has not worked since that time, he has attended college full-time at Arkansas Tech University, studying psychology and rehabilitation science. He attends class for four hours on Monday, Wednesday, and Friday, and for approximately two hours on Tuesdays and Thursdays. Baker receives accommodations at school. He is allowed to alternate between sitting and standing during class and is allowed to make up for classes and exams missed due to his pain and to medication. Baker testified that between the beginning of the semester and the hearing on November 18, he missed six to seven days due to his headaches. He maintains a 3.1 average in his classes.

At the hearing, Baker testified that he experiences significant pain from the headaches as well as pain in his knees, hip, and shoulder, and that this pain prevents him from working. He also testified that the constant pain and the effects of his medications inhibit his ability to concentrate and focus on a task.

The ALJ found that Baker suffered from severe headaches, and pain in his neck, back, knees, shoulders, hip, and arm, but found Baker's assertions of disabling pain were not credible. Particularly, the ALJ relied on the fact that, with the help of medication, Baker was able to attend school on a full-time basis and maintain a 3.1 average, as well as engage in various domestic and social activities. These facts, the ALJ concluded, are inconsistent with pain so disabling as to interfere with concentration, focus, and light work activities. The ALJ also found that Baker could return to his previous work as a surveyor, or in the alternative, that there exist a significant number of jobs in the national and local economies that Baker could perform given his impairments. Thus, the ALJ determined that Baker was not disabled under the Social Security Act.

Baker sought review of the ALJ's opinion by the Appeals Council and submitted additional evidence, including a Medical Source Statement from his personal physician. The Appeals Council affirmed, as did the district court. Baker appeals.

II. DISCUSSION

To receive disability benefits, Baker must establish a physical impairment lasting at least one year that prevents him from engaging in any gainful activity. See Ingram v. Chater, 107 F.3d 598, 601 (8th Cir.1997). To determine disability, the Commissioner uses the familiar five-step sequential evaluation, he determines: (1) whether the claimant is presently engaged in a "substantial gainful activity;" (2) whether the claimant has a severe impairment-one that significantly limits the claimant's physical or mental ability to perform basic work activities; ² (3) whether the claimant has an impairment that meets or equals a presumptively disabling impairment listed in the regulations (if so, the claimant is disabled without regard to age, education, and work experience); (4) whether the claimant has the residual functional capacity to perform his or her past relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to the Commissioner to prove that there are other jobs in the national economy that the claimant can perform. See Kelley v. Callahan, 133 F.3d 583, 587-88 (8th Cir.1998).

Once the claimant's impairments and physical capabilities are established, the Commissioner's burden is to demonstrate that the claimant can perform his or her past relevant work, or in the alternative, that jobs are available in the national economy, realistically suited to the claimant's residual functional capabilities. See Talbott v. Bowen, 821 F.2d 511, 514-15 (8th Cir.1987). In determining the availability of such jobs, the claimant's exertional and nonexertional impairments, together with his age, education, and previous work experience, must be considered. See Fenton v. Apfel, 149 F.3d 907, 910 (8th Cir.1998). The Commissioner may produce evidence of suitable jobs by eliciting testimony by a vocational expert concerning availability of jobs which a person with the claimant's particular residual functional capacity can perform. Id. This is generally accomplished by posing hypothetical questions to a vocational expert. The questions must fairly reflect the abilities and impairments of the claimant as evidenced in the record. See Morse v. Shalala, 32 F.3d 1228, 1230 (8th Cir.1994). If a hypothetical question does not include all of the claimant's impairments, limitations, and restrictions, or is otherwise inadequate, a vocational expert's response cannot constitute substantial evidence to support a conclusion of no disability. See Greene v. Sullivan, 923 F.2d 99, 101 (8th Cir.1991).

The expert was asked if there were jobs in the economy for a forty-eight-year-old male with a high school education, who was semi-skilled in surveying, and was limited to light work. The worker was to be on his feet six to eight hours a day and was limited to lifting no more than twenty pounds. The expert responded that there were over a thousand suitable jobs in the area for such a hypothetical worker. The question was further refined to reflect a worker capable of only sedentary work, and who needed to alternate between sitting and standing at will. The expert responded that there would still be a significant number of jobs in the area for such a worker.

The ALJ found that Baker could return to his past relevant employment as a surveyor. Based on the vocational expert's testimony, the ALJ also found, in the alternative, that there were a significant number of jobs in the area for a worker with Baker's residual functional capacity.

Our standard of review is a narrow one. We will affirm the ALJ's findings if supported by substantial evidence on the record as a whole. See Matthews v. Bowen, 879 F.2d 422, 423 (8th Cir.1989). Substantial evidence is less than a preponderance, but enough that a reasonable mind might accept it as adequate to support a decision. See Lawrence v. Chater, 107 F.3d 674, 676 (8th Cir.1997). However, the review we undertake is more than an examination of the record for the existence of substantial evidence in support of the Commissioner's decision, we also take into account whatever in the record fairly detracts from that decision. See Cline v. Sullivan, 939 F.2d 560, 564 (8th Cir.1991).

The first issue we must address is the ALJ's determination that Baker's assertion of disabling pain was not credible. When assessing the credibility of a claimant's subjective allegations of pain, however, the ALJ must consider the claimant's prior work history; daily activities; duration, frequency and intensity of pain; dosage, effectiveness and side effects of medication; precipitating and aggravating factors; and functional restrictions. See Polaski v. Heckler, ...