Cunningham v. Apfel

• Decision Date: 08 May 2000
• Docket Number: No. 99-2984,99-2984
• Citation: 222 F.3d 496
• Parties: (8th Cir. 2000) LOIS CUNNINGHAM, APPELLANT, v. KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, APPELLEE Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 496

222 F.3d 496 (8th Cir. 2000)

LOIS CUNNINGHAM, APPELLANT, v. KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, APPELLEE

No. 99-2984

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: May 8, 2000

Filed: August 4, 2000

Appeal from the United States District Court for the District of Minnesota. [Copyrighted Material Omitted] Before McMILLIAN, John R. Gibson, and Beam, Circuit Judges.

Beam, Circuit Judge

Lois Cunningham appeals the district court's judgment affirming the denial of her application for Social Security disability benefits. We reverse and remand.

I. BACKGROUND

Cunningham is a sixty-year-old woman with a ninth-grade education. She has been employed as an electronics assembler, solderer, and fishing tackle assembler. Cunningham asserts that she has been unable to engage in substantial gainful activity since June 1, 1993, because of hypertension, diabetes, back and leg pain, heart problems, carpal tunnel syndrome, chronic obstructive pulmonary disease, a thyroid condition, hearing loss, and incontinence.

Cunningham applied for disability benefits on April 15, 1994. In addition to the above-listed ailments, records of her application for benefits contain notations that "she forgets a lot" and her "fingers go numb." Her application was denied initially and on reconsideration. She then requested, and was granted, a hearing before an administrative law judge (ALJ). She was not represented by an attorney at the hearing.

At the hearing, Cunningham testified that she had "a lot of back pain" and trouble with her right hand "going to sleep and going numb." She also testified that she was a diabetic and took insulin every day. She stated that she took medication when she "was having chest pain." She further testified that her back pain was getting "worse and worse," and that just prior to the time she stopped working she was having pain in her back and numbness in her leg. Her daily activities included walking over a mile each day, and cooking and cleaning. She testified that she could generally care for her personal needs and could drive, but was unable to travel long distances without stretching. She also stated that she was no longer able to knit, crochet or assist in canning fruit or vegetables because of numbness in her hands.

The medical records submitted to the ALJ showed that Cunningham sought medical treatment from 1992 through 1995 for complaints of aching and numbness in her hands, feet and toes; back pain; fatigue; high blood pressure; anxiety; edema; shortness of breath; hearing loss; diabetes; and rapid heartbeat. A sensory exam in 1994 showed "a stocking/glove¹ distribution sensory loss to pin-prick in the upper and lower extremities." She was diagnosed with "lower extremity paresthesias² secondary to diabetes." Her treating physician stated in a letter that she had complications of diabetes including peripheral neuropathy. She was also diagnosed as suffering from angina, sciatica, a bulging disc, hypothyroidism, hypertension, mild pulmonary hypertension, and early chronic obstructive pulmonary disease.

An impartial medical expert testified that he had reviewed Cunningham's medical records. He stated that none of Cunningham's numerous impairments were of a level of severity to be presumptively disabling. With respect to the diabetes, he stated "[t]here are notes that she has neuropathy from this, but I couldn't find any documentation of abnormalities in the neurological findings." He testified that she should be restricted to light work, should not work at heights, should not drive at work and should not "do work where there would be repetitive flexion of the wrist . . . such as a meat cutter" or do work "that would require repetitive use of the fingers such as a keyboard, a computer, [or] typewriter." He also stated that she should not do work requiring repetitive bending or twisting of the trunk and should be limited to only occasional squatting, stooping, and kneeling.

A vocational expert also testified. He was asked whether there were jobs in the economy for a hypothetical worker with Cunningham's work experience, with the limitations set forth in the medical expert's testimony, and for whom "ordinary use of fingers and wrists would be okay." He responded that such jobs did exist and that such a hypothetical worker could perform Cunningham's former job as an electronics assembler or forty or fifty other assembler-type jobs.

The ALJ issued her decision on February 2, 1996. She stated "there is no documentation in the medical record of end organ damage or peripheral neuropathy related to diabetes." She found no evidence of neurological changes as documented by an EMG or a neurological exam by a specialist. She also noted "there is very little documentation in the record with regard to a back impairment" and that "carpal tunnel symptoms are not a significant problem." Accordingly, she found Cunningham was not precluded by her impairments from performing her past work as an electronics assembler, circuit board solderer, or fishing tackle assembler.

Cunningham appealed the decision to the Appeals Council and submitted additional medical evidence. The additional evidence included records of two back surgeries in 1974, treatment at a pain clinic in 1976, carpal tunnel surgery in 1984, a hysterectomy in 1993, treatment for depression in 1995, as well as records of numerous visits to physicians.³

The Appeals Council denied Cunningham's request for review and affirmed the ALJ, finding that the additional evidence did not provide a basis for changing the ALJ's decision. It found that the evidence either predated the alleged onset date, or was subsequent to the February 1996 ALJ decision and thus was not material. With respect to the evidence that related to the period between the alleged onset date and the ALJ's decision, the Appeals Council found no evidence that showed that Cunningham's condition was more severe than had been determined by the ALJ.

Cunningham then appealed to the district court. The matter was referred to a magistrate judge, who recommended a remand. The magistrate judge found that the ALJ's findings were not supported by substantial evidence. He recommended a remand for findings on Cunningham's residual functional capacity. The district court, however, declined to adopt the recommendation of the magistrate judge and instead affirmed the ALJ.

Cunningham appeals. She contends that the ALJ's decision is not supported by substantial evidence because the ALJ failed to consider Cunningham's mental limitations; failed to adequately develop the record; and posed an inadequate hypothetical to the vocational expert.⁴

II. DISCUSSION

Our role on review is to determine whether the Commissioner's findings are supported by substantial evidence on the record as a whole. See Clark v. Apfel, 141 F.3d 1253, 1255 (8th Cir. 1998). Substantial evidence is less than a preponderance, but is enough that a reasonable mind might find it adequate to support the ALJ's conclusion. See Cox v. Apfel, 160 F.3d 1203, 1206-07 (8th Cir. 1998). In determining whether existing evidence is substantial, we consider "evidence that detracts from the Commissioner's decision as well as evidence that supports it." Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999).

We first determine the effect of the evidence submitted to the Appeals Council. The regulations provide that the Appeals Council must evaluate the entire record, including any new and material evidence that relates to the period before the date of the ALJ's decision. See 20 C.F.R. 404.970(b). The newly submitted evidence thus becomes part of the "administrative record," even though the evidence was not originally included in the ALJ's record. See Nelson v. Sullivan, 966 F.2d 363, 366 (8th Cir. 1992). If the Appeals Council finds that the ALJ's actions, findings, or conclusions are contrary to the weight of the evidence, including the new evidence, it will review the case. See 20 C.F.R. 404.970(b). Here, the Appeals Council denied review, finding that the new evidence was either not material or did not detract from the ALJ's conclusion. In these circumstances, we do not evaluate the Appeals Council's decision to deny review, but rather we determine whether the record as a whole, including the new evidence, supports the ALJ's determination. See Nelson, 966 F.2d at 366.

We review the action under the Commissioner's familiar sequential process. Under the regulations, the disability determination involves a step-by-step analysis of a claimant's current work activity; the severity of his or her impairments; and an assessment of the claimant's residual functional capacity in light of his or her age, education and work experience. See 20 C.F.R. 404.1520(a); Braswell v. Heckler, 733 F.2d 531, 533 (8th Cir. 1984). If the claimant suffers from an impairment that is either included in, or equal to, an impairment listed in the Commissioner's itemization of presumptively disabling impairments (the Listings), the claimant will be determined disabled without consideration of his or her age, education, or work experience. See Braswell, 733 F.2d at 533. If the Commissioner finds that the claimant does not have an impairment that meets the Listings, the Commissioner next considers the claimant's residual functional capacity and the physical and mental demands of the claimant's past work and determines whether the claimant can still perform that work. See 20 C.F.R. 416.920(e). If the claimant is unable to perform his or her past work, the burden of proof shifts to the Commissioner to prove, first, that the claimant retains the residual functional capacity to perform other kinds of work, and, second, that other such work exists in substantial numbers in the national economy. See Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000).

Because Cunningham has since filed a second application and has been awarded benefits...