Comstock v. Chater

• Decision Date: 05 August 1996
• Docket Number: No. 95-4074,95-4074
• Citation: 91 F.3d 1143
• Parties: , Unempl.Ins.Rep. (CCH) P 15528B Jerry P. COMSTOCK, Appellant, v. Shirley S. CHATER, Commissioner of Social Security Administration, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1143

91 F.3d 1143

51 Soc.Sec.Rep.Ser. 361, Unempl.Ins.Rep. (CCH) P 15528B

Jerry P. COMSTOCK, Appellant, v. Shirley S. CHATER, Commissioner of Social Security Administration, Appellee.

No. 95-4074.

United States Court of Appeals Eighth Circuit.

Submitted May 17, 1996.

Decided Aug. 5, 1996.

Betsy Ann T. Stewart, Independence, MO, argued, for appellant.

Alleen S. VanBebber, Asst. U.S. Atty., Kansas City, MO, argued (Anita L. Mortimer, on the brief), for appellee.

Before BOWMAN, HEANEY, and WOLLMAN, Circuit Judges.

WOLLMAN, Circuit Judge.

Jerry Comstock appeals the district court's ¹ order affirming the denial of his application for Social Security disability benefits. We affirm.

I.

Jerry Comstock was forty-one years old when he first applied for Social Security disability benefits in 1982. Comstock had completed the eleventh grade and had worked as a machinist, janitor, dock hand, gas station attendant, and golf course grounds keeper. In his claim for benefits, he alleged that he became disabled as of April 7, 1981, due to a back injury occurring on that date. His claim was denied initially and upon reconsideration. In 1985, Comstock again applied for disability benefits, alleging a disability onset date of April 21, 1985, because of back problems. This application was also denied. Finally, in Comstock's third application for disability benefits in 1986, he was found disabled as of September 30, 1986, and was awarded benefits.

In 1989, Comstock requested that the denial of his first application be reopened. The Social Security Administration denied his application originally and upon reconsideration. After conducting a hearing, the Administrative Law Judge (ALJ) also denied the claim, finding that Comstock was not disabled during the relevant period beginning April 7, 1981, and continuing through September 30, 1986. The Appeals Council denied Comstock's request for review and the district court affirmed the ALJ's decision. Comstock appeals, alleging that the ALJ erred in (1) finding that Comstock engaged in substantial gainful employment from 1983 through 1986; (2) failing to properly consider Comstock's combination of impairments; (3) discrediting Comstock's testimony regarding his subjective complaints of pain; and (4) finding that Comstock could return to his past relevant work as a gas station attendant.

II.

A denial of disability benefits will be upheld if it is supported by substantial evidence on the record as a whole. Baumgarten v. Chater, 75 F.3d 366, 368 (8th Cir.1996). Substantial evidence is that which a reasonable mind would find as adequate to support the ALJ's decision. Id.

Under the Social Security disability program, a claimant is considered disabled if he "is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment[.]" 42 U.S.C. § 1382c(a)(3)(A). The first step in determining whether a claimant is disabled is to ascertain whether the claimant engaged in substantial gainful employment during the relevant period. 20 C.F.R. §§ 404.1520(b), 416.920(b). If a claimant engages in substantial gainful activity, there can be no finding of disability, even if the claimant does in fact have an impairment. Id.; Thompson v. Sullivan, 878 F.2d 1108, 1110 (8th Cir.1989).

To qualify as substantial gainful activity, the work activity must be both substantial and gainful. 20 C.F.R. § 416.972. Substantial work includes physical or mental work, even if done on a part-time basis. 20 C.F.R. § 416.972(a). Gainful work merely means work done for compensation. 20 C.F.R. § 416.972(b). In determining whether a claimant is substantially gainfully employed, criteria such as the claimant's level of earnings from the work activity and whether the claimant is working in a special or sheltered environment are relevant. 20 C.F.R. § 404.1574(a). Under the regulations, substantial gainful activity is presumed if the claimant's average earnings are greater than $300 per month. ² 20 C.F.R. § 404.1574(b)(2)(vi).

The ALJ found that Comstock engaged in substantial gainful employment during 1983, 1984, 1985, and a significant portion of 1986. There is substantial evidence contained in the record to support the ALJ's conclusion. First, Comstock's earnings in 1983 and 1984 exceeded $300 per month. Although Comstock did not submit a tax return for 1985, he testified at the hearing that he continued to work at his job as a gas station attendant until the station closed in the fall of that year. In 1986, Comstock continued to earn a significant amount of income until his onset disability date of September 30. In any event, even assuming that Comstock did not engage in any substantial gainful employment during the relevant period, we find that he was not entitled to benefits for the reasons discussed below.

If a claimant has not been substantially gainfully employed during the relevant period, the next step in making a disability determination involves deciding whether the claimant suffers from a severe impairment. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant suffers from an impairment, a determination must be made as to whether that impairment meets or equals an impairment listed in the regulations; if so, the claimant is considered disabled. 20 C.F.R. §§ 404.1520(d), 416.920(d) and Part 404, Subpart P, Appendix 1. The ALJ found that Comstock had the following severe impairments: chronic low back pain syndrome with history of L5,S1 disc excision, tendinitis of the left shoulder, obesity, hypertension, dysthymic disorder, and alcohol abuse. The ALJ concluded, however, that none of Comstock's impairments, singly or in combination, met any of the impairments listed in the regulations. Finally, the ALJ determined that Comstock could perform light, and probably medium work, including his past relevant work as a gas station attendant.

The objective medical evidence in the record supports the ALJ's determination that Comstock's combined impairments did not constitute a disability as defined in the regulations. The record reveals that Comstock suffered a back injury in 1981 for which he underwent surgery. X-rays taken of Comstock's lumbar spine in 1982 showed no significant abnormalities, except for mild narrowing at the L5,S1 intervertebral disc space. Although there was some conflicting evidence, most of the tests performed on Comstock during this period revealed that Comstock's motor and sensory components of the nervous system were intact, that he had only slight limitation of flexion and extension, and that his reflexes were normal.

In March 1982, Dr. Tietgen, Comstock's treating physician, noted that Comstock "could get on and off the examination table without difficulty" and he "carried himself well." He recommended, however, that Comstock "avoid heavy lifting, working in a bent over position or long periods of standing." In June 1982, Dr. Hopkins agreed that Comstock should avoid physical exertion and long periods of standing, but concluded that Comstock should be able to perform some type of gainful employment. In an examination conducted by Dr. Harper in August 1982, Comstock was able to heel and toe walk normally and displayed no weakness in his motor examination. All of the residual functional capacity assessments performed in 1982 and 1986 indicated that Comstock could stand and/or walk for six hours and sit for six hours in a normal workday, as well as lift twenty-five pounds frequently and fifty pounds maximum.

From October 1982 through 1984, it appears that Comstock failed to seek significant medical treatment for back pain. After Comstock resumed treatment in April...