Brown v. Apfel

• Decision Date: 16 January 1998
• Docket Number: No. Civ. 3-97-CV-90037.,Civ. 3-97-CV-90037.
• Citation: 990 F.Supp. 714
• Parties: Patricia A. BROWN, Plaintiff, v. Kenneth S. APFEL,<SMALL><SUP>1</SUP></SMALL> Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Southern District of Iowa

990 F.Supp. 714

Patricia A. BROWN, Plaintiff, v. Kenneth S. APFEL,¹ Commissioner of Social Security, Defendant.

No. Civ. 3-97-CV-90037.

United States District Court, S.D. Iowa, Davenport Division.

January 16, 1998.

COPYRIGHT MATERIAL OMITTED

William Bauer, Burlington, IA, for Plaintiff.

Gary L. Hayward, Asst. U.S. Atty., Des Moines, IA, for Defendant.

MEMORANDUM OPINION AND ORDER

PRATT, District Judge.

Plaintiff, Patricia A. Brown, filed a Complaint in this Court on February 19, 1997, seeking review of the Commissioner's decision to deny her claim for a period of disability and disability insurance benefits under Title II and Title XVI of the Social Security Act, 42 U.S.C. §§ 401 et seq., 1381 et seq.. This Court may review a final decision by the Commissioner. 42 U.S.C. § 405(g). For the reasons set out herein, the decision of the Commissioner is reversed and the Commissioner is ordered to award benefits.

BACKGROUND

Plaintiff filed an application for disability benefits on May 20, 1994. Her application was denied initially and upon reconsideration. After a hearing, Administrative Law Judge Jean M. Ingrassia (ALJ) issued a decision on March, 18, 1996, denying benefits. On December 13, 1996, the Appeals Council denied Plaintiff's request for review. Plaintiff filed this Complaint on February 19, 1997.

STANDARD OF REVIEW

When reviewing a denial of benefits, we will uphold the Secretary's final decision if it is supported by substantial evidence on the record as a whole. 42 U.S.C. § 405(g); Whitehouse v. Sullivan, 949 F.2d 1005, 1006 (8th Cir.1991). Substantial evidence is that which a reasonable mind might accept as adequate to support the Secretary's conclusion. Whitehouse, 949 F.2d at 1006 (Citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)). In assessing the substantiality of the evidence, we must consider evidence that detracts from the Secretary's decision as well as evidence that supports it. Locher, 968 F.2d at 727 (citing Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir.1984)). We may not, however, reverse the Secretary's decision "merely because substantial evidence would have supported an opposite decision." Id. (quoting Baker, 730 F.2d at 1150).

Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir.1993). In making this inquiry, a court should neither consider a claim de novo nor abdicate its function to carefully analyze the entire record. Brinker v. Weinberger, 522 F.2d 13, 16 (8th Cir.1975).

In Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir.1987) then Chief Judge Donald P. Lay explained the difference between the "substantial evidence" review and "substantial evidence on the record as a whole" review. Judge Lay wrote:

In the review of an administrative decision, "[T]he substantiality of evidence must take into account whatever in the record fairly detracts from its weight." Universal Camera Corp. v. National Labor Relations Bd., 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951). Thus, the court must also take into consideration the weight of the evidence in the record and apply a balancing test to evidence which is contradictory. See Steadman v. Securities and Exchange Commission, 450 U.S. 91, 99, 101 S.Ct. 999, 1006, 67 L.Ed.2d 69 (1981). It follows that the only way a reviewing court can determine if the entire record was taken into consideration is for the district court to evaluate in detail the evidence it used in making its decision and how any contradictory evidence balances out.

As will be shown below, although there is some substantial evidence in the record to support the ALJ's decision, when the evidence which detracts from that decision is taken into account, the ALJ's decision is not supported by substantial evidence on the record as a whole.

ALJ'S FINDINGS

Plaintiff last met the earnings requirement of the Act at the end of December, 1997. Tr. at 127. That is to say, Plaintiff must prove that she became disabled on or before that date. Grebenick v. Chater, 121 F.3d 1193, 1196 (8th Cir.1997). The ALJ, following the sequential evaluation found at 20 C.F.R. § 404.1520, found, at the first step, that Plaintiff has not engaged in substantial gainful activity since October 30, 1992. At the second step, the ALJ found that Plaintiff has severe impairments: dysthymic disorder, degenerative joint disease, and hypertension. At the third step, the ALJ found that none of Plaintiff's impairments are severe enough to meet or equal any of the impairments listed in Appendix 1, Subpart P, Regulations No. 4. Tr. at 24. At the fourth step, the ALJ found that Plaintiff is able to do her past relevant work as a general office helper. Tr. at 25.

DISCUSSION

PAST RELEVANT WORK

The ALJ found that Plaintiff is able to do her past relevant work as a general office helper, and therefore was not disabled. Plaintiff argues that the record does not support a finding that Plaintiff worked as a general office helper of flee helper during the 15 year period relevant to this case. The Court agrees. In Groeper v. Sullivan, 932 F.2d 1234, 1238-39 (8th Cir.1991), the Court wrote:

This court has held, in accord with Ruling 82-62, that an ALJ has an obligation to "fully investigate and make explicit findings as to the physical and mental demands of a claimant's past relevant work and to compare that with what the claimant herself is capable of doing before he determines that she is able to perform her past relevant work." Nimick v. Secretary of Health and Human Servs., 887 F.2d 864, 866 (8th Cir.1989). Accord Kirby, 923 F.2d at 1326-27. The ALJ's failure to fulfill this obligation requires reversal. Id. at 1327.

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The ALJ must also make explicit findings regarding the actual physical and mental demands of the claimant's past work. ... A conclusory determination that the claimant can perform past work, without these findings, does not constitute substantial evidence that the claimant is able to return to his past work. Id. at 1327.

In the case at bar, the record contains no evidence, whatsoever, to support a finding that Plaintiff has ever worked as a general office helper, let alone within the last 15 years. Plaintiff, in a list of jobs she had done in the last 15 years, stated that between 1980 and 1984, she had worked at several jobs at which her duties were "clerical". Tr. at 248-49. In his report of September 15, 1994, Prasad Mikkilineni, M.D., noted that Plaintiff had "worked as a key punch operator at different places". Tr. at 175. No other description of Plaintiff's clerical duties appears in the record. The Dictionary of Occupational Titles describes the job of office helper (DOT# 239.567-010) which was identified by the vocational expert (Tr. at 253):

Performs any combination of [the] following duties in business office of commercial or industrial establishment: Furnishes workers with clerical supplies. Opens, sorts, and distributes incoming mail, and collects, seals, and stamps outgoing mail. Delivers oral or written messages. Collects and distributes paperwork, such as records or time cards, from one department to another. Marks, tabulates, and files articles and records. May use office equipment, such as envelope-sealing machine, letter opener, record shaver, stamping machine, and transcribing machine. May deliver items to other business establishments [DELIVERER, OUTSIDE (CLERICAL) 230.663-010]. May specialize in delivering mail, messages, documents, and packages between departments of establishment and be designated Messenger, Office (clerical). May deliver stock certificates and bonds within and between stock brokerage offices and be designated Runner (financial).

There is no evidence that Plaintiff did any of the duties required of an Office Helper in any of her past work. At the hearing, the ALJ questioned Plaintiff about her work as a buss person at the "county poor farm". Tr. at 40. Plaintiff was questioned about her work as a machine operator. Tr. at 40-41. Plaintiff was questioned about her work as a production worker at Midwest Biscuit. Tr. at 41. She was questioned about the work as a home health aide. Tr. at 41-42. Plaintiff was also asked to describe her work as a production line worker at Lamont Limited. Tr. at 42-43. Nowhere, however, was Plaintiff asked to describe her "clerical" work. Because the ALJ did not fully develop the record regarding the nature of Plaintiff's past work, the decision is not supported by substantial evidence on the record as a whole and requires reversal. The vocational expert testified that all of the jobs, about which the record was developed, would be precluded because of the exertional limitations in the ALJ's hypothetical question which is discussed below.

PLAINTIFF'S ABILITY TO DO OTHER WORK

At the hearing, the ALJ asked the vocational expert to consider the following hypothetical:

Mr. Johnson, we have a 53-year-old individual with a 12th grade education. Work activity as set out in Exhibit 50. She's had examinations by Dr. Beatty in September of '94. ... And again — and again in February of '95, and it was Dr. Beatty's opinion that claimant can lift about 30 pounds, stand, move about, walk and sit for eight hours. ... I think that's a little probably generous. She could probably sit for six hours in an eight-hour day, but she would need to alternate between sitting and standing every hour. She should occasionally bend and stoop, twist, squat, kneel, crawl and climb. There's no indication in the record that she would have any problems with gross or fine manipulation. ... In addition to what we've described as her physical problems, using both Dr. Beatty and the recent examinations at the University of Iowa, which we have at Exhibit 46 from January of '96. She's also been treated for a dysthymic disorder, situational depression due to family problems and also money problems. They've described her as having hysterical reaction. I would say she should probably not do complex technical work activity....