Locher v. Sullivan

• Decision Date: 06 July 1992
• Docket Number: No. 91-3580,91-3580
• Citation: 968 F.2d 725
• Parties: , Unempl.Ins.Rep. (CCH) P 16766A, 3 NDLR P 43 Craig W. LOCHER, Appellant, v. Louis W. SULLIVAN, Secretary of Health and Human Services, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 725

968 F.2d 725

38 Soc.Sec.Rep.Ser. 78, Unempl.Ins.Rep. (CCH) P 16766A,

3 NDLR P 43

Craig W. LOCHER, Appellant, v. Louis W. SULLIVAN, Secretary of Health and Human Services, Appellee.

No. 91-3580.

United States Court of Appeals,

Eighth Circuit.

Submitted June 10, 1992.

Decided July 6, 1992.

Randall J. Fuller, Anoka, Minn., argued, for appellant.

Patricia Cangemi, Asst. U.S. Atty., Minneapolis, Minn., argued (Donna Calvert, HHS, Chicago, Ill., on the brief), for appellee.

Before WOLLMAN and HANSEN, Circuit Judges, and ROY, ^* Senior District Judge.

WOLLMAN, Circuit Judge.

Craig Locher appeals from the order of the district court ¹ affirming the decision of the Secretary of Health and Human Services to deny Locher disability benefits. We affirm.

I.

In 1983, Locher, who worked for a muffler shop, was rear-ended by another driver as he drove to a second shop for parts. As a result of this accident, Locher's back was injured and a congenital back condition was aggravated. Although Locher was able to work at least part-time after the accident, by 1985 his condition had worsened to the point that he had to quit work completely.

After the accident, doctors discovered three herniated discs in Locher's lumbar spine. These caused him back and leg pain. Locher underwent numerous types of therapy and treatment for this pain, including chiropractic treatment, traction, and medications. None of these was successful in relieving his back pain. In 1989, Locher underwent surgery to decompress the nerves in his lower spine and stabilize the spine. Locher's medical records reflect that within four months after this procedure, most of Locher's back pain and all of his leg pain was gone. ²

In early 1989, Locher applied for Social Security disability benefits and Supplemental Security Income benefits. After an initial denial and subsequent hearing before an administrative law judge (ALJ), Locher was denied these benefits, and the Appeals Council denied Locher's request for review. Thus, the ALJ's decision is the final decision of the Secretary. Locher then appealed to the district court, which adopted the report and recommendation of the magistrate judge ³ that the Secretary's motion for summary judgment be granted.

Locher contends on appeal that the Secretary's decision is not supported by substantial evidence because Locher's pain is disabling as a matter of law, because the ALJ erroneously discounted Locher's subjective complaints of pain, and because the ALJ failed to present a proper hypothetical to the vocational expert (VE).

II.

The Social Security program provides benefits to people who are aged, blind, or who suffer from a physical or mental disability. 42 U.S.C. § 1382(a) (1992). The Secretary will find a person disabled if the claimant "is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment." Id. § 1382c(a)(3)(A). The impairments suffered must be "of such severity that [the claimant] is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work." Id. § 1382c(a)(3)(B). Any such impairment must last for a continuous period of twelve months or be expected to result in death. Id. § 1382c(a)(3)(A); see also 20 C.F.R. §§ 404.1509, 416.909 (1990).

The Secretary has established a five-step procedure for determining whether a claimant is disabled. ⁴ See 20 C.F.R. §§ 404.1520, 416.920 (1990). First, the Secretary determines whether a claimant is engaged in "substantial gainful activity." Id. §§ 404.1520(b), 416.920(b). Second, the Secretary determines whether the claimant has a severe impairment--"any impairment or combination of impairments which significantly limits [his] physical or mental ability to do basic work activities." Id. §§ 404.1520(c), 416.920(c). Third, the Secretary determines whether the claimant has an impairment which meets or equals one of the impairments listed in the regulations. Id. §§ 404.1520(d), 416.920(d) and Part 404, Subpart P, Appendix 1. Fourth, the Secretary, considering the claimant's residual functional capacity and the physical and mental demands of the claimant's past work, determines whether the claimant can still perform that work. Id. §§ 404.1520(e), 416.920(e). Last, the Secretary determines whether any substantial gainful activity exists in the national economy which the claimant can perform. Id. §§ 404.1520(f), 416.920(f); see also §§ 404.1505(a), 416.905(a).

We will uphold the Secretary's final decision if it is supported by substantial evidence on the record as a whole. 42 U.S.C. § 405(g) (1991); Whitehouse v. Sullivan, 949 F.2d 1005 (8th Cir.1991). In assessing the substantiality of the evidence, we must consider evidence that detracts from the Secretary's decision as well as evidence that supports it. Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir.1984). We may not, however, reverse the Secretary's decision "merely because substantial evidence would have supported an opposite decision." Id.

The claimant bears the burden of proving disability. Having shown, however, that he is unable to perform his past relevant work, the burden shifts to the Secretary to show that work exists in the national economy that the claimant is capable of performing. Tucker v. Heckler, 776 F.2d 793, 795 (8th Cir.1985); McCoy v. Schweiker, 683 F.2d 1138, 1146-47 (8th Cir.1982).

The ALJ found, and the record supports the findings, that Locher is no longer engaged in substantial gainful activity and that Locher has a severe impairment. The ALJ further found that Locher's impairment did not meet or equal an impairment listed in the regulations. This finding, too, is supported by the record. To meet a listed impairment, a herniated disc must cause both 1) "pain, muscle spasm and significant limitation of motion in the spine" and 2) "appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss." 20 C.F.R. Part 404, Subpart P, Appendix 1, § 1.05(C) (1990). While Locher complains of significant pain associated with his back problems, neurological symptoms have been notably absent. The medical records consistently state that Locher had only a "questionable" hip muscle weakness and no sensory or reflex loss.

The ALJ then found that Locher could not return to his past relevant work as a janitor or a mechanic, because doing so would require lifting up to fifty pounds, a weight beyond Locher's lifting capability. Thus, the burden shifted to the Secretary to show that there is work in the national economy that Locher could perform. The ALJ solicited the testimony of a vocational expert to aid him in making a finding at this step. See 20 C.F.R. §§ 404.1566(e), 416.966(e) (1990). The VE testified that if everything to which Locher testified were accepted as true, there were no jobs in the national economy which Locher could perform. The ALJ then asked the VE whether jobs existed for a person with Locher's skills who could lift twenty pounds occasionally and ten pounds frequently, needed to change positions every thirty minutes, and was very restricted in bending at the waist. The VE testified that there were a significant number of jobs available for such a person.

III.

Locher first contends that he is disabled as a matter of law and that the ALJ erroneously discredited his subjective complaints of pain. We address these contentions together, because both involve review of the same law and facts.

Locher testified that his pain was eight on a scale of ten and that he could sleep only about one and one half hours at a time because of the pain. During a vocational evaluation, Locher's standing tolerance averaged 4.8 minutes, with a range of 1 to 33 minutes. His sitting tolerance during paper and pencil testing averaged 17.9 minutes, with a range of 1 to 40 minutes; his sitting tolerance during work sample testing averaged 6 minutes, with a range of 1 to 28 minutes. Locher claims that because of his pain and his restricted standing and sitting tolerances, he must be considered disabled as a matter of law.

We disagree. The ALJ found that Locher's subjective complaints of pain were not completely credible, analyzing these complaints according to the standard set out by this court in Polaski v....