Cox v. Apfel, 98-1717

• Decision Date: 23 November 1998
• Docket Number: No. 98-1717,98-1717
• Parties: , Unempl.Ins.Rep. (CCH) P 16154B Sharon K. COX, Appellant, v. Kenneth S. APFEL, Commissioner of Social Security, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1203

160 F.3d 1203

59 Soc.Sec.Rep.Ser. 208, Unempl.Ins.Rep. (CCH) P 16154B

Sharon K. COX, Appellant, v. Kenneth S. APFEL, Commissioner of Social Security, Appellee.

No. 98-1717.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 25, 1998.

Decided Nov. 23, 1998.

Teresa M. Meagher, Leawood, KS, argued, for appellant.

Mark S. Naggi, Social Security Administration, Kansas City, KS, argued (James Curt Bohling, on the brief), for appellee.

Before RICHARD S. ARNOLD, BEAM, and HANSEN, Circuit Judges.

BEAM, Circuit Judge.

Sharon Cox appeals the district court's order affirming an administrative law judge's denial of social security disability benefits. Because the administrative law judge (ALJ) failed to fully consider the ramifications of an implanted morphine pump, and failed to adequately develop the record, there is not substantial evidence to support the ALJ's decision. Accordingly, we reverse and remand for further proceedings.

I. BACKGROUND

Sharon Cox is a fifty-two year-old woman with a high school education and a history of depression, back pain, and arthritis. Her past relevant work was as a legal secretary until June of 1993. In November 1985, she slipped and injured her back while at work. Shortly thereafter, she began to experience pain in her lower back and legs and embarked upon a long search for pain relief. This search included trying different doctors, tests, drugs, and therapies. In 1991 and 1992, Cox had three surgeries performed on her lower back to remove two lipoma, repair a herniated muscle, and remove a sac of fluid. Her pain continued unabated despite the fact that her doctors could find no specific cause. In April 1993, she was eventually referred to Dr. Chaplick at the Pain Management Center of the Baptist Medical Center. Dr. Chaplick administered a morphine epidural nerve block which proved temporarily effective. Based on this success, and on the ineffectiveness of any of her past treatments, Dr. Chaplick recommended the implantation of an intrathecal narcotic infusion pump. ¹ The pump was surgically implanted in early May 1993, and Cox has required ever increasing doses of morphine since that time.

On June 28, 1993, Cox lost her job as part of a forty-five person lay-off at the law firm where she was working. She applied for, and received, unemployment insurance benefits for approximately the next six months. In order to qualify for unemployment benefits, Cox certified that she was able and willing to work.

In July 1993, the pump failed and Cox received epidural injections every other day until the pump was repaired in August. In October 1994, Cox began to experience pain and swelling in her right leg and swelling in her feet. She was diagnosed with degenerative arthritis and edema, and treated with more pain medication, diuretics, and a sequential gradient pump to push the excess fluid out of her legs. Cox's entire right knee was eventually replaced in March 1995.

Cox applied for disability benefits in November 1993, alleging that she was disabled as of June 28, 1993, by the extreme pain in her lower back and legs, which is aggravated by sitting or standing for more than fifteen to twenty minutes at a time. In December 1993, Cox was examined by an orthopedic surgeon at the request of the Commissioner. Dr. Thomas-Richards recommended a psychological evaluation, and concluded that, although Cox could physically perform sedentary work, her reliability, productivity, and attendance would be marginal due to her dependence on morphine.

Prior to being fitted with the morphine pump, Cox was given a psychological examination to determine her suitability for the procedure. The psychologist who administered the exam, Dr. Montgomery, noted that Cox was depressed, that the depression may exaggerate her perception of pain, and that Cox may use her pain in a manipulative manner. Dr. Montgomery described Cox as being in a "desperate situation" attempting to work in spite of her severe pain, and a high risk for suicide if the pump did not prove effective. Cox's other physicians often noted a probable "psychogenic" or "psychosocial" overlay to her complaints of pain.

In May 1994, Cox's treating physician at the time, Dr. Chaplick, reported that Cox showed signs of depression. He felt that Cox was increasingly tolerant of her medications and that she "may overdo her medications" at times. Dr. Chaplick stated that he was not aware of Cox's concentration situation, but that she did suffer from some memory loss. Nevertheless, he believed she had the mental ability to do some kind of work. He stated that he would like to see Cox reduce the amount of medication and concluded that "if she could learn to tolerate the pain, then she could learn to sustain work activity."

Cox was twice denied disability benefits, and in June 1994, filed a request for a hearing before an ALJ. At the hearing, in September 1995, Cox testified that she had certified her ability to work in order to obtain unemployment benefits, and that she actively sought employment during the six months following her lay-off. She does not drive because the morphine blurs her vision, although she also stated that she can read and watch television. She does not participate in any household chores that require standing or walking. Cox testified that she is unable to work due to constant pain in her back and legs, and swelling in both her legs which requires her to elevate them periodically. She denied any serious mental impairments and stated that she did not feel severely depressed.

The ALJ found that Cox was not disabled. He found that her claims of disabling pain were not credible. He also concluded that her leg pain and edema from arthritis had been controlled. The ALJ relied primarily on the lack of a medically discernable cause for Cox's pain, two doctor's opinions that she could work if she reduced her medications, and the comment that she may use her pain in a manipulative fashion. The ALJ concluded that Cox could perform sedentary work, provided she had the option to sit or stand at will, and is limited to work involving no more than normal stress. The Appeals Council declined to review the case and the district court affirmed. Cox appeals to this court, arguing essentially that the record lacks substantial evidence to support the ALJ's ruling, and that the ALJ failed to develop the record.

II. DISCUSSION

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; (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).

Our standard of review is a narrow one. We will affirm the ALJ's findings if they are 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).

In the last step, the Commissioner has the burden to establish that jobs realistically suited to the claimant's residual functional capabilities are available in the national economy. See Talbott v. Bowen, 821 F.2d 511, 514-15 (8th Cir.1987). In determining availability of such jobs, the claimant's impairments, together with her 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 from a vocational expert concerning availability of jobs which a person with the claimant's particular residual functional capacity can perform. See 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).

In this case, the ALJ asked the vocational expert if there were jobs available for an individual limited to sedentary work, who must have the option to sit or stand, and who cannot tolerate greater than normal stress. The vocational expert responded in the affirmative. As discussed below, the question did not adequately account for Cox's impairments, thus the testimony of the vocational expert cannot be used as substantial evidence that Cox is not disabled. 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 question posed to the vocational expert was inadequate for two reasons. First, the ALJ improperly discounted Cox's subjective complaints of pain. Second, because the ALJ failed to properly develop the record, there is no way to determine whether...