Nelson v. Sullivan
| Decision Date | 03 June 1992 |
| Docket Number | No. 91-2390MN,91-2390MN |
| Citation | 966 F.2d 363 |
| Parties | , Unempl.Ins.Rep. (CCH) P 16773A Darrell E. NELSON, Appellant, v. Louis SULLIVAN, Secretary of Health and Human Services, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Lionel Henry Peabody, Duluth, Minn., argued, for appellant.
Michael C. Messer, Chicago, Ill., argued, (Thomas B. Heffelfinger, Robert M. Small, Donna Morros Weinstein, Richard A. Urbin and Grace M. Kim, Chicago, Ill., on the brief), for appellee.
Before JOHN R. GIBSON, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and LOKEN, Circuit Judge.
Claimant Darrell Nelson appeals from the district court's 1 order denying him supplemental security income benefits under Title XVI of the Social Security Act. Because substantial evidence on the record as a whole supports the Secretary's decision, we affirm.
Darrell Nelson was forty-six years old, 5'11" and weighed approximately 300 pounds at the time of the hearing on July 26, 1989. He has a seventh grade education and has past relevant work experience as a construction worker, truck driver, landscape laborer, and ore controller. He last worked in 1978.
On August 29, 1988, Nelson filed an application for supplemental security income (SSI) under Title XVI of the Social Security Act. 2 He alleged that he had been disabled since August 31, 1979, due to arthritis. 3 His application was denied initially and on reconsideration, and an administrative hearing was held on July 26, 1989. On September 22, 1989, the ALJ found Nelson was not disabled and was capable of performing a limited range of sedentary work. Nelson filed a request for review by the Appeals Council, and the Appeals Council received and considered new evidence submitted by Nelson. On February 27, 1990, the Appeals Council concluded there was no basis upon which to grant review, denied the request, and ruled that the ALJ's decision stood as the final decision of the Secretary. Nelson then brought an action in district court alleging the ALJ's decision was not supported by substantial evidence on the record as a whole. The court referred the matter to a magistrate who recommended that the Secretary's decision be reversed and Nelson's motion for summary judgment be granted. On April 23, 1991, the district court rejected the magistrate's recommendation and affirmed the Secretary's decision denying benefits. 764 F.Supp. 1347.
At the administrative hearing, Nelson testified that he suffers from pain in his left knee, ankle, foot pain, and right shoulder pain, weakness in his right wrist, hearing loss, depression, severe headaches and sleep apnea. 4 He also testified that he can walk two blocks, stand for 15-20 minutes, sit for 15-90 minutes, lift up to 10 pounds, be on his feet for a total of four hours and sit a total of four hours. He testified he spends approximately four hours a day visiting with his parents, friends, or ex-wife; that he shops for groceries, does light housework, and watches three hours of television daily. He stated that he limits his driving to 25 miles, that he gave up arts and crafts due to memory loss, and that he has difficulty reading and understanding instructions. He stated that his sleeping disorder caused headaches, but admitted the use of a therapeutic inhaler (CPAP) and Tylenol helped control the sleep apnea.
In addition to listening to Nelson's testimony, the ALJ reviewed numerous medical reports and hospital records. Between 1973 and May 20, 1987, the date of the final decision denying Nelson's prior application, the record showed that Nelson received treatment for complaints of hearing and musculosketal problems, and that he underwent one vocational and one psychiatric assessment. His treating physicians during this period found that Nelson was restricted from performing work that involved being on his feet all day, running, climbing, or excessive bending, but that he could perform work that did not involve such activities.
On June 17, 1987, Matthew Eckman, M.D., examined Nelson, reviewed his medical history and concluded that Nelson had a tendency toward depression but did not appear to have a chronic, severe mental condition. He also recommended that Nelson lose weight. On July 8, 1987, Dr. P.J. Windberg, M.D., examined Nelson for complaints of sleep apnea and recommended that he lose weight and undergo a sleep study. Nelson was hospitalized for a sleep evaluation that indicated he suffered from sleep apnea, which could be controlled by the use of nasal CPAP treatment. In September of 1987, Nelson was enrolled in a weight loss program but gained weight. During the next six months he was evaluated for complaints of left foot pain, left shoulder pain, and stiffness in the neck; the reports showed mild degeneration in the joints.
In November of 1988, Edwin Luh, M.D., reviewed the medical evidence and concluded that Nelson was capable of performing significant work-related activities despite his physical and mental conditions. Owen Nelson, Ph.D., also reviewed the record and found that Nelson did not exhibit a mental impairment that was disabling. On January 19, 1989, S.K. Goff, M.D., examined Nelson and recommended a physical therapy program of exercise and conditioning, and concluded that Nelson was able to perform sedentary to light activities on a permanent basis. One week later Nelson enrolled in a physical therapy program and was released after achieving his therapy goals. In April of 1989, Nelson was examined for complaints of chest tightness and shortness of breath, and the examining physician stated the symptoms were possibly related to his obesity.
On September 22, 1989 the ALJ found that Nelson had medically determinable impairments relating to degenerative changes in his left shoulder and in the cervical and thoracic spine, degenerative arthritis of the left knee, surgeries on the left ankle, obesity, sleep apnea, a mild dysthymic disorder, and a passive/dependent personality disorder. The ALJ found, however, that Nelson did not have an impairment or combination of impairments medically equal to one defined in the Social Security regulations. One week after the ALJ rendered his decision, Dr. Windberg submitted a report stating that Nelson had been disabled by sleep apnea from July 1987 to April 1989, and Nelson's condition was equivalent to minor motor epileptic seizures as described in Section 11.03 of the listed impairments.
Before reviewing the Secretary's decision, we must determine what role, if any, is played by the evidence of sleep apnea submitted to the Appeals Council by Dr. Windberg on September 29, 1989, one week after the ALJ rendered his decision. When new and material evidence is submitted to the Appeals Council,
[t]he Appeals Council shall evaluate the entire record including the new and material evidence submitted if it relates to the period on or before the date of the administrative law judge hearing decision. It will then review the case if it finds that the administrative law judge's action, findings, or conclusion is contrary to the weight of the evidence currently of record.
20 C.F.R. § 404.970(b). The newly submitted evidence is to become part of what we will loosely describe here as the "administrative record," even though the evidence was not originally included in the ALJ's record. Browning v. Sullivan, 958 F.2d 817, 823 n. 4 (8th Cir.1992). If the Appeals Council does not consider the new evidence, a reviewing court may remand the case to the Appeals Council if the evidence is new and material. See Williams v. Sullivan, 905 F.2d 214, 217 (8th Cir.1990). If, as here, the Appeals Council considers the new evidence but declines to review the case, we review the ALJ's decision and determine whether there is substantial evidence in the administrative record, which now includes the new evidence, to support the ALJ's decision. 5 Browning, 958 F.2d at 823.
Nelson argues the ALJ's decision was not supported by substantial evidence on the record. Crucial to Nelson's argument is the ALJ's failure to consider sleep apnea as a condition equivalent to a listed impairment. We must uphold the ALJ's decision if it is supported by substantial evidence on the record as a whole. 6 McMillian v. Schweiker, 697 F.2d 215, 220 (8th Cir.1983).
In reviewing the Secretary's decision, we must consider: "(1) whether, according to Polaski v. Heckler, [751 F.2d 943, 948 (8th Cir.1984) ], the Secretary considered all of the evidence relevant to claimant's complaints of pain, and (2) whether that evidence contradicted [the claimant's] account, so that the Secretary could discount [the claimant's] testimony for lack of credibility." Benskin v. Bowen, 830 F.2d 878, 882 (8th Cir.1987). Moreover, it is the statutory duty of the ALJ, in the first instance, to assess the credibility of the claimant and other witnesses. Tucker v. Heckler, 776 F.2d 793, 796 (8th Cir.1985).
We find the ALJ properly interpreted the record in finding that Nelson was not entitled to SSI benefits. Nelson had the burden of establishing that he had a medically determinable physical of mental impairment and that impairment rendered him unable to engage in any substantial gainful employment. 20 C.F.R. §§ 416.905(a), 416.909 (1991). The ALJ found that although Nelson had a number of medical impairments, Nelson failed to meet his burden of establishing that his medical condition had deteriorated after the initial denial of benefits on March 11, 1987.
Here, as in Browning, the evidence submitted to the Appeals Council does not overcome the evidence supporting the ALJ's decision. Browning, 958 F.2d at 823 (citing Ward v. Heckler, 786 F.2d 844, 846 (8th Cir.1986)). The ALJ made express credibility findings, and set forth the inconsistencies that led to his denial of benefits. See ...
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