Davis v. Callahan

• Decision Date: 18 September 1997
• Docket Number: No. 4-96-CV-90706.,4-96-CV-90706.
• Parties: Cheryl J. DAVIS, Plaintiff, v. John CALLAHAN, Ph.D.,<SMALL><SUP>1</SUP></SMALL> Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Southern District of Iowa

985 F.Supp. 913

Cheryl J. DAVIS, Plaintiff, v. John CALLAHAN, Ph.D.,¹ Commissioner of Social Security, Defendant.

No. 4-96-CV-90706.

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

September 18, 1997.

Gregory W. Peterson, Des Moines, IA, for Plaintiff.

Inga Bumbary-Langston, Asst. U.S. Atty., Des Moines, IA, for Defendant.

RULING ON DEFENDANT'S MOTION TO ALTER OR AMEND

PRATT, District Judge.

INTRODUCTION

The Court has Defendant's resisted Motion to Alter or Amend the Court's Order of August 12, 1997, in which it was ordered that benefits are to be awarded to Plaintiff. The Commissioner argues that the Court improperly held that the Commissioner, having found Plaintiff incapable of returning to past relevant work, bears the burden of proving with medical evidence that Plaintiff has the residual functional capacity (RFC) to do other work in the national economy and that this burden must be acknowledged by the ALJ. Counsel for the Commissioner wrote: "It appears that the Court in this case is attempting to establish a new burden of proof, i.e. proving the claimant's RFC with medical evidence." Finally, the Commissioner prays that the case be remanded pursuant to sentence four of 42 U.S.C. § 405(g). For the reasons discussed herein, the Commissioner's Motion to Alter or Amend is denied.

BURDEN OF PROOF

In Davis v. Callahan, 985 F.Supp. 907, 1997 WL 461598 (S.D.Iowa), the Court cited McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir.1982) (en banc): "This [the Commissioner's] burden includes the duty to establish by medical evidence that the claimant has the requisite RFC." The court also cited O'Leary v. Schweiker, 710 F.2d 1334, 1338 (8th Cir.1983), in which the court wrote: "[The Commissioner] must first prove that the claimant retains the capacity to do other kinds of work, a burden which includes `the duty to establish by medical evidence that the claimant has the requisite RFC [residual functional capacity]."`

In Ford v. Secretary of Health and Human Services, 662 F.Supp. 954 (W.D.Ark. 1987), Circuit Judge Arnold, sitting by designation as the district court, held that the Secretary had not met the burden of proving that Ford has a residual functional capacity for sedentary work. Judge Arnold wrote:

So far, this Court can see no evidence of any substance to support a finding that Ford has the RFC to do even sedentary work, especially in view of the fact that the claimant is without any relevant useful skills. The only evidence that would even arguably enable the Secretary to carry his burden is a form filled out by Dr. Pandit, the consulting physician, called "Medical Assessment of Ability to do Work-Related Activities (Physical)."

Ford v. Secretary, 662 F.Supp. at 956 (emphasis added). Judge Arnold also made clear that residual functional capacity is a medical question. Id. at 955.

McCoy and O'Leary are cases that are cited often for the proposition that the Commissioner must bear the two pronged burden, but they are neither the first nor the last in a long line of cases that hold this point of law. For example, in Carlson v. Schweiker, 715 F.2d 401, 402 (8th Cir.1983), the Court wrote:

Our decisions make it clear that once a claimant has successfully demonstrated that he or she is incapable of returning to his or her previous work because of disability, the burden of proof shifts to the Secretary to prove that the claimant can perform some other work in the national economy. See, e.g., O'Leary v. Schweiker, 710 F.2d 1334 at 1337-1338 (8th Cir.1983); Simonson v. Schweiker, 699 F.2d 426,428 (8th Cir.1983); McDonald v. Schweiker, 698 F.2d 361,364 (8th Cir.1983); McCoy v. Schweiker, 683 F.2d 1138, 1146-47 (8th Cir.1982) (en banc). In Carlson's case the ALJ recognized that Carlson was not able to return to his previous work as a boilermaker because of a cervical injury. At this point the burden of proof shifted to the Secretary to establish that Carlson has the residual ability to do some other kind of work. However, in finding that Carlson had "the physical ability to engage in at least `sedentary' work" the ALJ stated:

That the record of evidence establishes that the claimant has not furnished proof of the existence of any physical impairment, or combination of impairments, which have lasted or could have been expected to last for a continuous period of not less than 12 months, which have precluded him from engaging in "any substantial gainful activity;" * * * (Emphasis added.)

There is no reference, either in the transcript of Carlson's hearing or in the ALJ's decision, indicating that the ALJ recognized that the burden of proof shifted to the Secretary to show that Carlson could perform sedentary work. To the contrary, the ALJ clearly placed the burden on Carlson to show he could not do sedentary work. Therefore, we must remand this case for further proceedings in accordance with the proper allocation of the burden of proof. O'Leary v. Schweiker, supra, 710 F.2d 1334 at 1338.

In Nettles v. Schweiker, 714 F.2d 833, 836 (8th Cir.1983), the Court, quoting McCoy, wrote that after a claimant establishes that he or she is unable to do past relevant work, the Secretary, now the Commissioner, must prove, with medical evidence, that the claimant has the residual functional capacity for other work. The Court, at 838, held, among other things, that the Administrative Law Judge had failed to shift the burden of proving that Nettles has a residual functional capacity to do some work in the economy.

In McDonald v. Schweiker, 698 F.2d 361, 364 (8th Cir.1983), the Court noted that McDonald had shown that she was unable to do her past relevant work, and thus "the burden shifts to the Secretary to show that a claimant has the residual ability to do some other kind of work." "The Secretary," wrote the Court, "retains the burden of proof of establishing a claimant's RFC by substantial evidence." In McGhee v. Harris, 683 F.2d 256, 260 (8th Cir.1982), the Court held there was no substantial evidence in the record to support a conclusion that the claimant had the residual functional capacity to perform light or sedentary work. In Stone v. Harris, 657 F.2d 210 (8th Cir.1981), the Court held that the shift in the burden of proof had been noted by the court "time and again". The Court held the Secretary had failed to carry his burden because the finding that Stone could do sedentary work had been reached "by virtually ignoring reports of Stone's psychological problems." Id. In Bastian v. Schweiker, 712 F.2d 1278 (8th Cir.1983), the issue was whether or not the claimant was able to do sedentary work. The Court, citing McCoy, 683 F.2d at 1147, said the "assessment of a claimant's residual functional capacity would generally be the most critical question and that an ALJ's assessment of residual functional capacity must be a realistic evaluation of a claimant's `ability to perform the requisite physical acts day in and day out in the sometimes competitive and stressful conditions in which real people work in the real world.'" The Court went on:

We believe that the ALJ proceeded on the erroneous premise that although appellant could not perform light work, she was presumed capable of sedentary work until she proved otherwise. In Simonson v. Schweiker, 699 F.2d 426, 428 (8th Cir. 1983), this court condemned placing the burden on a claimant to "show that he could not perform these lighter categories of work." We stated that the "Secretary [, not the claimant] must offer substantial evidence of [the claimant's] actual ability to work before job availability in the economy becomes relevant." Id. See also O'Leary v. Schweiker, 710 F.2d 1334 at 1337-1339 (8th Cir.1983)

Bastian, 712 F.2d at 1281.

BURDEN MUST BE ACKNOWLEDGED AND PROPERLY ALLOCATED

In the government's brief, Counsel takes issue with this Court's citation to Allred v. Heckler, 729 F.2d 529 (8th Cir.1984), for the proposition that a failure to recognize the shift in the burden of proof is reversible error. Counsel wrote:

Allred relies on Eighth Circuit case law which states that "if it is determined that a claimant cannot return to the work he or she formerly performed, the burden shifts to the [Commissioner] to prove that the claimant can perform other work in the economy." Jackson v. Schweiker, 696 F.2d 630, 631 n. 1 (8th Cir.1983) (per curiam). Thus, Allred does not state that the Commissioner has the burden to prove plaintiffs RFC with medical evidence.

Interestingly enough, the Jackson case was cited by the Court of Appeals in Streissel v. Schweiker, 717 F.2d 1231, 1232 (8th Cir.1983), wherein it is written:

It was conceded at an early stage of the proceedings that Streissel could not return to the job that he had held for many years as a skilled machinist. The burden of proving that he could do light or sedentary work in a competitive work setting thus fell on the Secretary. Neither the administrative law judge (ALJ) nor the Secretary recognized that the Secretary had this burden. The government in its brief before this Court still fails to recognize this fact. We cannot assume that the ALJ or the Secretary would have reached the decision that they did had they properly apportioned the burden of proof. See Jackson v. Schweiker, 696 F.2d 630, 631 n. 1 (8th Cir.1983); Tucker v. Schweiker, 689 F.2d 777, 779 (8th Cir.1982); Tennant v. Schweiker, 682 F.2d 707, 710 (8th Cir. 1982).

A citation to Jackson was also made, along with O'Leary, in Warner v. Heckler, 722 F.2d 428, 431 (8th Cir.1983), for the proposition that the Commissioner bears a two pronged burden at step 5 of the sequential evaluation. Jackson was cited again in Carpenter v. Heckler, 733 F.2d 591, 592 (8th Cir.1984), wherein the Court wrote: "... but nothing in the record indicates that the ALJ then shifted the burden to the Secretary to prove that Carpenter could perform some other substantial gainful activity. We have repeatedly held that failure to shift this burden is...