Buck v. Bowen, 88-2760

• Decision Date: 14 September 1989
• Docket Number: No. 88-2760,88-2760
• Citation: 885 F.2d 451
• Parties: , Unempl.Ins.Rep. CCH 14899A Marilyn J. BUCK, Appellant, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 451

885 F.2d 451

27 Soc.Sec.Rep.Ser. 86, Unempl.Ins.Rep. CCH 14899A

Marilyn J. BUCK, Appellant, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services, Appellee.

No. 88-2760.

United States Court of Appeals Eighth Circuit.

Submitted June 14, 1989.

Decided Sept. 14, 1989.

James W. Stanley, North Little Rock, Ark., for appellant.

Joseph B. Liken, Dallas, Tex., for appellee.

Before BEAM, Circuit Judge, BRIGHT, Senior Circuit Judge, and HANSON, ^* Senior District Judge.

HANSON, Senior District Judge.

Marilyn Buck appeals from the judgment of the District Court ¹ affirming the decision of the Secretary denying her claim for disability benefits. We find that the Secretary erred by relying solely on the use of the Medical-Vocational Guidelines to establish the existence of substantial gainful employment available to the claimant, as claimant suffers nonexertional impairments not contemplated by the Guidelines, and that the Secretary improperly discredited one of the psychological reports. Accordingly, we reverse the decision of the District Court and remand the case for further proceedings.

FACTS

Appellant Buck filed an application for disability insurance benefits on June 26, 1984, alleging disability since December 1981. The Secretary denied benefits after a hearing, but this denial was reversed by order of a federal district court on December 10, 1985. The court ordered reconsideration of the case pursuant to revised mental impairment criteria promulgated under section five of the Social Security Disability Benefits Reform Act of 1984, Pub.L. No. 98-460. On September 25, 1985 Administrative Law Judge (ALJ) F.J. Howell issued a recommended decision finding Buck disabled as of August 1, 1985, based on a combination of mental and physical impairments. Specifically, Howell found "claimant has severe intervertebral disc disease with a history of a cervical spine fusion and degenerative arthritis, a major affective disorder, depression and a personality disorder". (Tr. 213) Buck then filed a notice contesting the disability onset date. The Appeals Council responded by remanding the case for a supplemental hearing and new decision. On December 2, 1987, ALJ Newbern Chambers issued a new recommended decision denying benefits. This opinion was adopted by the Secretary, and subsequently affirmed by the district court below. This appeal followed.

Buck is a forty-five year old woman with a ninth-grade education and past relevant work experience as a waitress. Her nonmental problems include a wide assortment of physical ailments which are fully and adequately discussed in the opinions of the District Court and ALJ Chambers. Because we accept the findings of the Secretary with regard to these physical problems of Buck we decline to list these ailments in this opinion and instead incorporate by reference the relevant portions of the opinions of the District Court and Secretary. The ALJ found that these impairments resulted in claimant being "unable to perform her past relevant work as a waitress". (Tr. 181). The ALJ also found that although these limitations prevented Buck from engaging in any heavy or strenuous physical activities, she did "retain the residual functional capacity, on an exertional basis, for at least light work activities." (Tr. 176)

Buck was also found to suffer from mental impairments. Because the ALJ's findings A series of two psychological evaluations and one psychiatric examination was conducted on Buck. The first of these examinations was performed by Dr. Douglas Stevens on January 15, 1986. Stevens conducted a number of tests on Buck including the Wonderlic Personnel Test, the Beck Depression-Hopelessness Inventory, the Symptom Check List-90, the Minnesota Multiphasic Personality Inventory, the Crawford Dexterity Test, the Valpar Simulated Assembly Work Sample and the Valpar Upper Extremity Range of Motion Work Sample. Based on these tests, and his examination of Buck, Stevens concluded that Buck suffered from:

with regards to these disorders are problematic this aspect is discussed in detail.

major depression, a schizoid personality disorder and psychological factors affecting physical condition, the latter condition interacting with her physical pain. * * * She shows a pervasive loss of interest in almost [sic] activities, sleep disturbance psychomotor agitation, decreased energy, feelings of worthlessness, difficulty concentrating and thoughts of suicide. She also displays a significant personality disorder (12.08) with pathologically inappropriate hostility, seclusiveness, persistent disturbance of mood * * * and intense and unstable interpersonal relationships with impulsive loss of emotional control * * *. These emotional impairments result in functional impairments * * *. There is a moderate restriction of activities of daily living, but marked difficulties in maintaining social functioning. She displays frequent deficiencies of concentration, persistence and pace, resulting in failure to complete tasks in a timely manner. She also displays deterioration in a work-like setting, resulting in an exacerbation of symptoms and a withdrawal from the situations. Based upon these factors I believe that this lady * * * is vocationally disabled at this time. I would strongly recommend that she involve herself in an ongoing therapeutic treatment program, utilizing both chemotherapy and counseling.

(Tr. 332).

The second examination was a two hour evaluation conducted by Dr. Vasilos on August 18, 1987. Vasilos made no conclusions regarding the existence of major depression or other affective disorders. Instead, he conducted tests on Buck which would indicate the existence of an organic or psychotic brain disorder, of which he found none. In general Vasilos gave Buck a positive report, although he did, based on the tests he performed and his observations of Buck, find that she may have some limitations in dealing with work stresses, maintaining attention and concentration, recalling instructions, behaving in an emotionally stable manner, relating predictably in social situations and demonstrating reliability. He did not conclude that any of these problems would be disabling. (Tr. 470-474)

Buck's final examination was performed by Dr. Eugene Watermann on September 15, 1987. The record does not indicate if Watermann conducted any tests on Buck during his examination or the length of this examination. Watermann concluded that Buck suffered from untreated depression. Using DSM-III (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Third Edition (1980)) nomenclature Watermann Diagnosed Buck's condition as being:

[b]etween Major Depressive Illness and Dysthymic Disorder. The depression is not severe at this time and has been long standing. I think she would most properly disgnosed (sic) as Dysthymic Disorder. * * * This is a woman who says her disability is due to her arthritis and her heart problem and not due to her mental problems, and I agree with her. I think she is suffering from an untreated depression and she is in need of treatment and the prognosis for her responding to treatment is good. I read Dr. Doug Stevens' report and agree that she is depressed. However. I think her (Tr. 480).

prognosis with treatment and medication is good.

ALJ Chambers, based on his review of these reports, found that due to the "lack of other credible evidence to corroborate the existence of a severe mental impairment, Dr. Stevens' report is afforded very little, if any weight as to credibility." (Tr. 179). Chambers also concluded that: "there is little or no medical evidence of a significant emotional impairment" (Tr. 178); "the emotional disorder suffered by the claimant does not significantly compromise her ability to perform basic work-related activities at the light exertional level" (Tr. 179); "[t]here are no episodes of deterioration or decompensation in a work setting documented" (Tr. 179); and "[t]he claimant retains the residual functional capacity for a full range of light work." (Tr. 181).

However, Chambers also found that: Buck had been prescribed Ativan, a powerful anti-anxiety drug (Tr. 178); "[t]here are also some indications of difficulties in maintaining social functioning" (Tr. 179); "[h]er ability to tolerate stress is limited" (Tr. 179); and that Buck could perform "most routine unskilled light work which requires little personal interaction with virtually no decisionmaking responsibility" (Tr. 180).

Based on these findings and his findings on physical impairments Chambers then determined that Buck was not disabled. In doing so he recognized that because Buck had established that she no longer could perform her former job the burden was on the...