Muncy v. Apfel

• Decision Date: 11 January 2001
• Docket Number: No. 00-2210,00-2210
• Citation: 247 F.3d 728
• Parties: (8th Cir. 2001) ELMER D. MUNCY, APPELLANT, v. KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY, APPELLEE. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 728

247 F.3d 728 (8th Cir. 2001)

ELMER D. MUNCY, APPELLANT, v. KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY, APPELLEE.

No. 00-2210

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: January 11, 2001

Filed: April 12, 2001

As amended April 19, 2001

Appeal from the United States District Court for the Western District of Missouri

[Copyrighted Material Omitted] Loken and Bye, Circuit Judges, and Bataillon, ¹ District Judge.

Bataillon, District Judge.

Elmer Muncy was originally awarded disability benefits under Title II of the Social Security Act, 42 U.S.C. 401 et seq., in July 1987 and supplemental disability benefits under Title XVI of the Social Security Act, 42 U.S.C. 1381 et seq., in June 1988. Muncy now appeals the judgment of the district court affirming the final decision of the Commissioner of Social Security discontinuing his benefits.

Our review is limited to determining whether the Commissioner's decision is supported by substantial evidence in the record as a whole, that is, evidence that reasonable minds would accept as adequate to support the Commissioner's conclusion. 42 U.S.C. 405(g), 1382 (c)(3); Richardson v. Perales, 402 U.S. 389, 401 (1971); Holz v. Apfel, 191 F.3d 945, 947 (8th Cir. 1999). The review is more than "a search of the record for evidence supporting the Secretary's findings." Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir. 1987). In determining substantiality, the court must also balance the weight of evidence that detracts from the Commissioner's decision. Because of the insufficiency of the record with regard to Muncy's mental status, we must remand this matter to the Commissioner for further proceedings.

I. Background

A. Medical Record

Muncy was forty-one at the time of the hearing before the administrative law judge (ALJ) in April 1997. He is functionally illiterate, although he finished tenth grade in special education classes. He worked a series of hard physical labor jobs until 1986 when he suffered a heat stroke while working as an oil field roustabout. He tried several other jobs, but found that he had developed severe heat intolerance. The medical records do not reveal an exact cause for the heat intolerance.

The medical records do show, however, that Muncy has several health problems apart from heat intolerance, including obesity; hypertension; spinal arthritis; a small herniated disk at the L5-S1 level; a pinched nerve; headaches; and chronic sinusitis, sore throats, and earaches. In addition, he claims significant pain on the left side of his body as a result of an accident in 1991 when he fell through the rotting floor of his Housing Authority apartment. He alleges that he has experienced pain, periodic numbness, spasms, and swelling in various parts of the left side of his body since the accident, along with chronic neck, buttock, lower back, and leg pain.

In 1993, a neurosurgeon discovered that the calf of Muncy's left leg had atrophied one inch and that he had sensory hypalgesia along the L4 dermatome down the calf into the big toe, likely caused by the piriform muscle compressing the perineal portion of the sciatic nerve. Also in 1993, a neurologist diagnosed headaches and neck pain resulting from the 1991 injury. Nerve conduction studies showed a slight prolongation of the ulnar distal motor latency, suggesting a mild ulnar neuropathy. An MRI of Muncy's cervical spine showed a mid-thoracic vertebral lesion.

In 1996, another neurosurgeon found some limitation of motion in Muncy's neck and low back with spasms in the low back on both sides. Grip strength was 240 on the dominant right hand and 80 on the left. The doctor found numbness in the entire left hand and left foot. He diagnosed chronic cervical and lumbrosacral arthritis, by history; chronic cervical strain; chronic lumbrosacral strain; small, central, herniated lumbar disc; and cerebral concussion, Grade I, by history. The doctor said that Muncy could lift twenty pounds occasionally, and could sit no more than thirty minutes at a time and no more than six hours a day.

More than one doctor, however, has suggested that Muncy demonstrates drug-seeking behavior and questioned his attempts to procure pain medications. The neurologist whom Muncy saw in 1993 questioned why Muncy continued to complain of such significant pain, and wondered if "there is some secondary gain associated with these complaints." Administrative Record (AR) 340.

B. Mental Status

Muncy's mental status is of primary concern in this appeal. During his initial benefit determination in 1988, a psychologist found that on the WAIS-R Muncy's full scale IQ was 59, verbal IQ was 57, and performance IQ was 64, placing him in the mild range of retardation. That result qualified him for benefits under the section 12.05(B) listing for mental retardation. Section 12.05(B) requires a "valid verbal, performance, or full scale IQ of 59 or less." 20 C.F.R. Pt. 404, Subpt. P, App. 1.

During the continuing disability review in 1994, however, another psychologist, Dr. Stevens, tested Muncy and found that on the WAIS-R, his full scale IQ was 84, verbal IQ was 84, and performance IQ was 84. An IQ of 84 placed him in the low normal range, described by "borderline intellectual functioning." Holz v. Apfel, 191 F.3d 945, 947 (8th Cir. 1999); Thomas v. Sullivan, 876 F.2d 666, 668 n.1 (8th Cir. 1989).

In his report, Dr. Stevens also noted that he had difficulty "communicat[ing] concepts to [Muncy] as he has difficulty listening." Dr. Stevens found that Muncy had a second grade reading and spelling level and a third grade arithmetic level. The results of the short form MMPI suggested "some schizoid personality traits in an individual who has some periodic situational depression and preoccupation with his condition, referred to as psychological factors affecting physical condition. This represents some emotional distress but is not at a severe level." AR 308. Muncy did not score well on work simulation testing. On the Crawford Small Parts Dexterity Test, Muncy placed in the fourth percentile on Part I and in the third percentile on Part II. Muncy could not complete the twenty-minute Valpar Simulated Assembly Work Sample because pain in his back left him stooping, holding onto the table, after only about five minutes.

Dr. Stevens concluded that before Muncy's 1991 accident, "he had some remaining vocational and earnings potentials, but the injury to his back has removed these potentials and he can now look forward to a life of chronic discomfort and feelings of uselessness. Thus, the prognosis is poor and I expect limited change in the foreseeable future." Id.

C. Hearing Testimony

Muncy testified at the hearing before the ALJ, along with his wife and his half-brother. Muncy said that his pain was worsening in his mid to upper back, neck, left leg, and left arm, and that his left leg and arm were also numb. Standing and sitting aggravated the pain. He said that he spends all day watching TV, occasionally stepping out on his porch for fresh air. He drives his wife to and from work each day and grocery shops once a week. He said he could sit ten minutes; stand five to ten minutes; walk two blocks, such as a couple of times around a large discount store; and lift a gallon of milk with his right arm. He uses a cane unless his left wrist and arm spasm. He said he could not bend, twist, or crawl.

Muncy's wife of nineteen years noted that Muncy cannot read or write or take care of the checkbook or their finances. In fact, she filled out all the Social Security applications and forms included in the Administrative Record. She says that he has trouble understanding what is read to him and concentrating on what is said to him. She testified that Muncy has "heat strokes,"during which his face turns white, his voice changes, and he trembles. She also testified that she knows Muncy is in nearly constant pain by the tearing in his eyes.

D. ALJ's Decision

The ALJ found that 1) Muncy's cervical and lumbar strain was severe enough to reduce his ability to work, but not severe enough to meet or equal the criteria of any impairment in the listings; 2) Muncy's new IQ score of 84 took him outside the criteria of section 12.05(B) of the listings ² ; 3) Muncy experienced medical improvement related to his ability to work and, as of January 1, 1996, had the residual functional capacity to perform a full range of light work, despite his illiteracy; 4) other than exertional impairments caused by his cervical and lumbar strain, Muncy had no additional non-exertional impairments to reduce the light work base; 5) occupations existed in the national and regional economies in significant numbers that Muncy could perform regardless of his impairments; and 6) while Muncy's impairments and residual functional capacity precluded him from performing his past relevant work, he was no longer disabled as of January 1, 1996. AR 17-18.

The ALJ discredited Muncy's allegations of pain because they were not based on the objective findings by treating and examining physicians, because Muncy sought medical treatment only sporadically and was not taking any pain medication, and because Muncy did not evidence discomfort during the hearing. The ALJ also noted that the medical records did not mention heat exhaustion except as a historical incident or muscular weakness. Further, the medical records showed no basis for a claim of nerve involvement related to Muncy's neck or left arm. The ALJ specifically discounted the large discrepancy in grip strength between Muncy's two hands as the result of Muncy's right-handedness, but he nowhere acknowledged the one-inch atrophy in Muncy's left calf. The ALJ noted that one of Muncy's physicians wrote that Muncy could perform significant work-related activities, but the ALJ specifically discounted the disability applications completed by Muncy's orthopedic surgeon as inconsistent with the remainder of the medical record and with...