O'Leary v. Schweiker

• Decision Date: 30 June 1983
• Docket Number: No. 82-2223,82-2223
• Parties: Charlotte M. O'LEARY, Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1334

710 F.2d 1334

2 Soc.Sec.Rep.Ser. 259

Charlotte M. O'LEARY, Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human

Services, Appellee.

No. 82-2223.

United States Court of Appeals,

Eighth Circuit.

Submitted May 20, 1983.

Decided June 30, 1983.

Steven M. Watson of Marks, Clare, Hopkins, Rauth & Cuddigan, Omaha, Neb., for appellant.

Ronald D. Lahners, U.S. Atty., and Paul W. Madgett, Asst. U.S. Atty., Omaha, Neb., for appellee.

Before LAY, Chief Judge, and HEANEY and FAGG, Circuit Judges.

HEANEY, Circuit Judge.

Charlotte M. O'Leary appeals from an order of the district court affirming the Secretary of Health and Human Services' final decision, which denied O'Leary's application for Social Security disability benefits. O'Leary was born March 1, 1943. She left high school in the tenth grade and married her present husband, David O'Leary. The O'Learys have five children. During the first years of her marriage when her children were very young, Charlotte O'Leary worked intermittently as a gift wrapper, a nurse's aide, and a lineworker. In October, 1965, after the birth of her last child and when she was approximately twenty-two years of age, Charlotte went to work at the Omaha Works of the Western Electric Corporation. She was a regularly employed benchhand at Western Electric until she injured her back in 1976, while lifting a heavy pan of parts. ¹

O'Leary went to see Dr. Robert Klein, an orthopedic surgeon, concerning her injury in 1976. Dr. Klein's diagnosis was acute lumbar strain, and O'Leary was admitted to the hospital on November 2, 1976, for conservative treatment, including physical therapy and an exercise program. She received a lumbar myelogram, the results of which were consistent with disc herniation at the L5-S1 level.

When O'Leary's symptoms failed to improve, she was readmitted to the hospital in January, 1977, for removal of a herniated disc. When her back and leg problems still persisted after her laminectomy, she filed for disability benefits in March, 1977. O'Leary returned to the hospital in June, 1977, for a therapeutic caudal block because she continued to experience pain in her back and right leg. This procedure did not provide any significant benefit, however, and she continued to see Dr. Klein and to take Empirin # 3 and aspirin on a daily basis for her pain.

O'Leary's application for disability benefits was denied initially and upon reconsideration. Although the disability examiner concluded that O'Leary was unable to return to her past work, the examiner stated that she retained the residual functional capacity for sedentary work and a narrow range of light work. At O'Leary's request, a hearing was held before Administrative Law Judge (ALJ) Edgerton. O'Leary supplemented the record with more recent medical reports from her treating physician, Dr. Klein, and the ALJ received testimony from O'Leary and a vocational expert at the hearing. On January 16, 1978, the ALJ held that the claimant could not return to her past work as a benchhand, but concluded that she retained the residual functional capacity to do sedentary work. The Appeals Council affirmed this decision, and O'Leary appealed to the United States District Court. Both parties filed motions for summary judgment. The late United States District Judge Robert V. Denney held that the record did not contain substantial evidence to support the Secretary's decision, and granted the claimant's motion for summary judgment. ² O'Leary v. Califano, No. 78-0-370 (D.Neb. Jan. 29, 1980).

Judge Denney noted that the only evidence which supported the Secretary's decision was the ALJ's evaluation of the medical reports and the ALJ's observation of the claimant during the hearing. Judge Denney found that the medical reports indicated that O'Leary could not do any prolonged sitting and that the ALJ's conclusion to the contrary was not supported by the record. Judge Denney further noted that while the ALJ's observations of O'Leary during the hearing were evidence in support of his finding that she could engage in sedentary activity, the record contained evidence that directly contradicted these observations. He stated:

The [claimant's] testimony is that she cannot sit for more than thirty minutes without experiencing severe pain. This testimony is corroborated by the uncontradicted medical opinion of Dr. Klein. In light of this evidence, the administrative law judge's observations do not amount to substantial evidence supporting the conclusion that the [claimant] is able to engage in sedentary activity.

Id., slip op. at 6.

On remand to the Secretary, ALJ Edgerton held a second de novo hearing at which O'Leary, her husband, and a vocational expert testified. The ALJ also received further medical evidence, including additional reports from O'Leary's treating physician and reports from two consulting physicians, Dr. Michael O'Neil, an orthopedic surgeon, and Dr. Charles Graz, a psychiatrist. On August 21, 1980, the ALJ again found that the claimant could not return to her past work, but that she could perform some kinds of sedentary work. On October 15, 1980, the Appeals Council affirmed this decision, and O'Leary appealed to the United States District Court. The parties' cross-motions for summary judgment were referred to a United States Magistrate, who recommended that the decision of the Secretary be affirmed. United States District Judge C. Arlen Beam adopted this recommendation on July 9, 1982, and this appeal ensued.

Over six years have elapsed since O'Leary initially applied for Social Security disability benefits. Notwithstanding the long delay that has already occurred, we have no alternative but to reverse and remand this case for further proceedings. The following three reasons compel this action.

I. Burden of Proof.

First, the ALJ did not properly allocate the burden of proof in assessing whether the claimant was able to perform any substantial gainful activity. Once O'Leary demonstrated that she could not return to her previous work because of her disability, the burden shifted to the Secretary to establish that there was other work in the national economy that she could perform. See McDonald v. Schweiker, 698 F.2d 361, 364 (8th Cir.1983); McMillian v. Schweiker, 697 F.2d 215, 220-221 (8th Cir.1983); McCoy v. Schweiker, 683 F.2d 1138, 1146-1147 (8th Cir.1982) (en banc); McGhee v. Harris, 683 F.2d 256, 258 (8th Cir.1982); Stone v. Harris, 657 F.2d 210, 211 (8th Cir.1981).

Although the initial claims examiner and the ALJ had previously determined that the claimant could not return to her former position as a benchhand, the ALJ commenced the second hearing by stating:

Now, the issue that is before me with respect to your application is the same as it was before the last time that you had a hearing. You must prove by the greater weight of the evidence that you became unable to engage in substantial, gainful work activity for a continuous 12-month period because of a medical impairment or a combination of impairments that are shown to exist by the medical evidence.

There was no evidence presented at the second hearing that the claimant could perform her past job as a benchhand. The vocational expert, Ms. Anita Howell, stated that in her opinion the claimant could not perform her former job and the ALJ specifically found that she could not do so in his August 21, 1980, decision. Yet there is no reference other than the ALJ's initial statement--either in the transcript of the second hearing or in the ALJ's opinion--with respect to the issue of the burden of proof. It thus seems clear that the ALJ failed to recognize that the burden shifted to the Secretary to show that the claimant could perform other work. ³

On appeal, the Secretary argues that the ALJ's decision should be affirmed despite the ALJ's apparent failure to shift the burden, implicitly contending that the ALJ is not required to consider where the burden of proof lies in Social Security disability cases. The Secretary appears to reason that the hearing before the ALJ is a nonadversarial one and that therefore burden of proof concepts are inappropriate. We have consistently rejected this view of the process. The ALJ is required to follow this Court's teachings with respect to where the burden lies, and must recognize that the burden shifts to the Secretary once the claimant proves that he or she is unable to perform his or her past work.

The Secretary's burden in this regard is twofold. He or she 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]." McCoy v. Schweiker, supra, 683 F.2d at 1147. The claimant's RFC is the claimant's physical capacity to do work which is defined in the Secretary's regulations as sedentary, light, medium, heavy, or very heavy. ⁴ If there is evidence that the claimant is also suffering from a nonexertional limitation, such as a mental, sensory or skin impairment, an environmental restriction, or pain, the Secretary's burden includes showing that these impairments do not preclude the claimant from performing other work.

Once the claimant's capabilities are established, the second aspect of the Secretary's burden is to demonstrate that there are jobs available in the national economy that realistically suit the claimant's qualifications and capabilities. McMillian v. Schweiker, supra, 697 F.2d at 221; Cole v. Harris, 641 F.2d 613, 614 (8th Cir.1981). In determining whether there are jobs available that a claimant can perform, the Secretary must consider the claimant's exertional and nonexertional impairments, together with the claimant's age, education, and previous work experience. McMillian v. Schweiker, supra, 697 F.2d at 221; McCoy v. Schweiker, supra, 683 F.2d at 1146-1148.

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