Bowling v. Shalala, 94-30093

• Citation: 36 F.3d 431
• Decision Date: 18 October 1994
• Docket Number: No. 94-30093,94-30093
• Parties: , Unempl.Ins.Rep. (CCH) P 14254B Elbert L. BOWLING, Plaintiff-Appellant, v. Donna E. SHALALA, Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 431

36 F.3d 431

45 Soc.Sec.Rep.Ser. 610, Unempl.Ins.Rep. (CCH) P 14254B

Elbert L. BOWLING, Plaintiff-Appellant, v. Donna E. SHALALA, Secretary of Health and Human Services Defendant-Appellee.

No. 94-30093

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

Oct. 18, 1994.

Elbert L. Bowling, pro se.

Rebecca L. Rome, Asst. Regional Counsel, Office of Gen. Counsel, Dept. of HHS, Dallas, TX, Lyman E. Thornton, III, Asst. U.S. Atty., L.J. Hymel, U.S. Atty., Baton Rouge, LA, for appellee.

Appeal from the United States District Court for the Middle District of Louisiana.

Before DUHE, WIENER and STEWART, Circuit Judges.

PER CURIAM:

In this Social Security case, pro se Plaintiff-Appellant Elbert L. Bowling appeals the district court's affirmance of the denial of disability insurance benefits by Defendant-Appellee Donna E. Shalala, Secretary of Health and Human Services (the Secretary), under 42 U.S.C. Sec. 405(g). On appeal Bowling complains that the Secretary's decision is not supported by substantial evidence and that the Administrative Law Judge (ALJ) failed to develop the record adequately. Verbalizing for the first time in this circuit the appropriate test for determining when a defective hypothetical question posed by an ALJ to a vocational expert will produce reversible error--and applying that test to the instant facts--we find such error and therefore vacate and remand this case for further proceedings consistent with this opinion. Also recognizing the possibility that in developing the record the ALJ may have failed to discharge the heightened duty to explore for relevant facts when the claimant is proceeding pro se, we conclude that here any such error would be harmless in light of our vacating and remanding this case for other reasons, i.e., the flawed handling of the hypothetical question.

I FACTS AND PROCEEDINGS

Bowling, a 38-year old high school graduate with an associate degree in computer electronics, has proceeded pro se throughout this entire action. His past relevant work experience is as an electrician. He has a history of congenital bladder and kidney problems which required five renal surgeries "by the time [he] was six years old," and also suffers from knee problems, back problems, hypertension, pain, and anxiety.

Following a work related injury, Bowling underwent surgery on May 28, 1986, to correct petellofemoral chondromalacia of the left knee. After over a year's physical therapy and rehabilitation, Bowling was released to return to work on July 7, 1987, subject to a number of limitations and restrictions.

He filed for disability insurance benefits on April 14, 1987, alleging disability resulting from his left knee surgery and from high blood pressure, with an onset date of May 26, 1986. He requested and obtained a hearing before an ALJ, after which the ALJ ruled that Bowling was not disabled. That decision was vacated by the Appeals Council (AC) and remanded to the ALJ for a "complete evaluation of pain as a disabling factor."

A subsequent hearing was held on February 15, 1989, before a different ALJ (second ALJ) who found that Bowling was disabled for a closed period from May 28, 1986, through July 7, 1987, but not thereafter. During this February 1989 hearing, the second ALJ would not permit Bowling to introduce evidence of back problems, informing him that if he wished to submit a claim for disability resulting from back problems, he should file another application.

On May 5, 1989, Bowling filed another application for disability insurance benefits and for supplemental security income (SSI) benefits as well, asserting a new onset date of November 1, 1987, and listing as ailments knee, back, nerve and kidney problems. On January 31, 1990, a hearing was held before yet another ALJ (third ALJ), who determined that Bowling could not perform his past relevant work but could perform a full range of light work. The third ALJ thus concluded, relative to Bowling's May 1989 application, that he was neither disabled nor eligible for any benefits except those previously awarded for the closed period.

On February 11, 1991, the AC interpreted the May 1989 application as an appeal of the March 1989 ruling, re-opened that decision and remanded to the third ALJ. In this remand order the AC agreed with the second ALJ's determination regarding a closed period of disability. The AC determined, however, that the second ALJ "did not address the issue of medical improvement" and directed that on remand the third ALJ "consolidate both files ... [and] obtain updated medical evidence from [Bowling's] treating source and a medical assessment describing [Bowling's] ability to perform work related activities." That ALJ was also directed to make specific findings as to whether Bowling's impairment had medically improved, with reference to 20 C.F.R. Sec. 404.1594.

On April 29, 1991, the AC issued a supplemental ruling, limiting the February 1991 remand to Bowling's claim for disability insurance benefits only. The April 1991 supplemental remand order also vacated the third ALJ's January 31, 1990, decision. In so doing, the AC noted that the third ALJ had relied on two inconsistent reports from Dr. Efrain Reyes. The AC determined that additional "medical development" was required, and ordered the third ALJ to obtain an orthopedic consultative examination and a medical assessment of Bowling.

Consistent with the second (and supplemental) remand order, a hearing was conducted on October 17, 1991, which pertained to all claims for disability insurance benefits from May 26, 1986, to the date of the October 1991 hearing, and SSI benefits from November 1, 1987, to that hearing date. The claims from and after November 1987 included the relevant impairments of left knee problems, high blood pressure, disabling pain, back problems, nerve problems, and kidney problems. Significant to our analysis here, the November 1987 hearing turned on an answer to a hypothetical question posed to the vocational expert by the third ALJ.

In a November 29, 1991, decision of the third ALJ, Bowling was granted disability insurance benefits for a closed period from May 28, 1986, through July 7, 1987, but was denied all other benefits. The denial was based on a finding that from July 7, 1987, onward Bowling's medical condition had improved, and that he had the residual functional capacity for the full range of light work reduced by some limitations. The third ALJ first determined that Bowling was unable to perform his past relevant work; then found that Bowling's "additional nonexertion limitations [would] not allow him to perform the full range of light/sedentary work," but that there were still a significant number of jobs he could perform; and concluded finally that Bowling thus was not disabled.

Bowling appealed the November 1991 decision, but his appeal was denied. After a request to re-open was also denied, Bowling filed a complaint in federal district court. Both Bowling and the Secretary moved for summary judgment, and Bowling opposed the Secretary's motion. The magistrate judge recommended that the Secretary's motion be granted, and that Bowling's motion for summary judgment be denied and his complaint dismissed. Bowling filed objections, but the district court adopted the magistrate judge's recommendation, overruled Bowling's objections, and granted summary judgment for the Secretary. Final judgment was entered accordingly, and this appeal ensued.

II ANALYSIS

A. Lack of Substantial Evidence

Bowling contends that the Secretary's finding that he was not disabled is not supported by substantial evidence. "Appellate review of the Secretary's denial of disability benefits is limited to determining whether the decision is supported by substantial evidence in the record and whether the proper legal standards were used in evaluating the evidence." Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir.1990). In applying the "substantial evidence" standard, we "may not reweigh the evidence in the record, nor try the issues de novo, nor substitute [the Court's] judgment for the Secretary's, even if the evidence preponderates against the Secretary's decision." Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir.1988). This is so because "substantial evidence" is less than a preponderance but more than a scintilla. Id.

A claimant is not entitled to disability benefits unless he establishes that he is unable "to engage in any substantial gainful activity by reason of [a] medically determinable physical or mental impairment ... which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. Secs. 416(i), 423(d)(1)(A). In determining whether a claimant is capable of engaging in any substantial gainful activity, the Secretary applies a five-step sequential evaluation process.

The rules governing the steps of this evaluation process are: (1) a claimant who is working, engaging in a substantial gainful activity, will not be found to be disabled no matter what the medical findings are; (2) a claimant will not be found to be disabled unless he has a "severe impairment"; (3) a claimant whose impairment meets or is equivalent to an impairment listed in Appendix 1 of the regulations will be considered disabled without the need to consider vocational factors; (4) a claimant who is capable of performing work that he has done in the past must be found "not disabled"; and (5) if the claimant is unable to perform his previous work as a result of his impairment, then factors such as his age, education, past work experience, and residual functional capacity must be considered to determine whether he can do other work. Villa, 895 F.2d at 1022.

"A finding that a claimant is disabled or not disabled at any point in the five-step process is conclusive and terminates the Secretary's analysis." Harrell, 862 F.2d at 475. The burden of proof is on the claimant for the first four steps, but shifts to...