Nettles v. Schweiker

• Court: U.S. Court of Appeals — Eighth Circuit
• Writing for the Court: Before ROSS and McMILLIAN; ROSS
• Citation: Nettles v. Schweiker, 714 F.2d 833 (8th Cir. 1983)
• Decision Date: 18 August 1983
• Docket Number: No. 82-2127,82-2127
• Parties: Glenville J. NETTLES, Appellant, v. Richard S. SCHWEIKER, Secretary of Health & Human Services, Appellee.

Page 833

714 F.2d 833

2 Soc.Sec.Rep.Ser. 415

Glenville J. NETTLES, Appellant, v. Richard S. SCHWEIKER, Secretary of Health & Human Services, Appellee.

No. 82-2127.

United States Court of Appeals Eighth Circuit.

Submitted June 13, 1983.

Decided Aug. 18, 1983.

Murrey L. Grider, Pocahontas, Ark., for appellant.

J. Paul McGrath, Asst. Atty. Gen., Washington, D.C., George W. Proctor, U.S. Atty., Little Rock, Ark., Frank V. Smith, III, Regional Atty., Charlene M. Seifert, Asst. Regional Atty., U.S. Dept. of Health and Human Services, Dallas, Tex., for appellee.

Before ROSS and McMILLIAN, Circuit Judges, and COLLINSON, ^* District Judge.

ROSS, Circuit Judge.

Glenville Nettles appeals from the district court's ¹ entry of summary judgment affirming the Secretary of Health and Human Services' final decision denying disability benefits. Because the administrative law judge failed to shift the burden of proof to the Secretary as required in the present case, and applied the Medical-Vocational Guidelines to determine disability without adequately considering appellant's evidence relating to a nonexertional impairment, we reverse and remand for further proceedings.

Nettles, a forty year old plumber with a high school education, was injured on October 3, 1979, when he fell from a scaffold while on the job. As a result of the fall, he underwent surgery for a subtalar fracture dislocation of his left foot, and was hospitalized from October 3 to October 9, 1979. Records of Nettles' treating physician and surgeon, Dr. Glenn E. Dickson, indicate that on November 13, 1979, Nettles' foot looked good, but he was in moderate pain requiring an ankle corset and pain medication. An examination on December 11, 1979, revealed that Nettles was developing degenerative changes in the subtalar joint. By March 4, 1980, Dr. Dickson reported that Nettles had developed "a lot of subtalor [sic] arthritis" ² which is very painful and would probably require a triple arthrodesis. On April 15, 1980, the subtalar joint looked "very bad," and Nettles still required the use of a cane to walk. ³

In a letter dated November 20, 1980, Dr. Dickson stated that Mr. Nettles had:

developed significant subtalor [sic] osteoarthritis. An injury of this type does require several months to heal and frequently does end up requiring a triple arthrodesis.

Mr. Nettles was last seen in my office October 7, 1980. I do not feel that within the next six months that [sic] he will be able to do any type of gainful employment that would require any significant amount of standing or walking.

Record at 94. Dr. Dickson also filed disability certificates for the periods of October 3, 1979, to November 30, 1980, and October 3, 1979, to April 1981, stating that Nettles could be expected to be totally incapacitated during that time.

At the hearing before the ALJ, Nettles testified that he was still unable to walk without the use of a cane and that he was taking Darvocet N-100 several times daily for the constant severe pain in his foot. He testified that although the medication dulled the pain, it also made him drowsy, particularly when he was sitting. Nettles also stated that he could walk for short distances using his cane and could occasionally drive short distances before having to take pain medication which caused him to become too drowsy to drive. However, he indicated that he had been unable to perform any household chores or to engage in his hobbies of hunting and fishing since the accident. On a typical day Nettles would talk on the CB radio, try to walk around a little, watch television and retire to bed early. Nettles' testimony as to his activities and constant pain were corroborated by his wife.

On April 21, 1980, Nettles filed an application for disability benefits for the period commencing October 2, 1980. When the Social Security Administration denied benefits both initially and on reconsideration, Nettles sought a review hearing before an administrative law judge. After a hearing on November 20, 1980, the ALJ held on January 8, 1981, that Nettles was not entitled to disability benefits under sections 216(i) and 223 ⁴ of the Social Security Act. The ALJ found that although Nettles was incapable of returning to his former employment, he was not disabled in light of his residual functional capacity (RFC) to engage in sedentary work, and his age, education and work experience. See 20 C.F.R. § 404.1569, App. II, § 201.28 (1982).

After the ALJ's decision was approved by the appeals council on April 30, 1981, Nettles sought judicial review of the Secretary's final decision. See 42 U.S.C. § 405(g). On September 7, 1981, the district court entered summary judgment in favor of the appellee Secretary on the grounds that there was substantial evidence in the record to support the Secretary's findings.

It is firmly established that the findings of fact regarding disability benefits are to be considered conclusive if supported by substantial evidence on the record as a whole. See, e.g., McMillian v. Schweiker, 697 F.2d 215, 220 (8th Cir.1983); Barker v. Harris, 650 F.2d 138, 139 (8th Cir.1981); 42 U.S.C. § 405(g). ⁵ In addition, it is the court's duty to review the disability benefit decision to determine if it is based on legal error (i.e., erroneous legal standards, incorrect application of the law). See, e.g., Simonson v. Schweiker, 699 F.2d 426, 428 (8th Cir.1983); Nicks v. Schweiker, 696 F.2d 633, 634 (8th Cir.1983); Adams v. Weinberger, 548 F.2d 239, 243 (8th Cir.1977); Aubeuf v. Schweiker, 649 F.2d 107, 112, 114 (2d Cir.1981). In order to qualify for disability benefits, a claimant bears the burden of proving that he or she is unable to engage in any substantial gainful activity because of a medically determinable physical or mental impairment which is expected to last for at least twelve months or result in death. See McMillian v. Schweiker, supra, 697 F.2d at 220, 42 U.S.C. § 423(d)(1)(A). However, once the claimant establishes that he cannot return to his past relevant work because of an impairment:

the burden shifts to the Secretary to prove with substantial evidence that the applicant has the RFC to do other kinds of work, and that his RFC, age, and so forth fit him to do some job that exists in the national economy. The grid, if applicable, establishes that jobs exist for certain kinds of people. The Secretary must still show that the claimant is a member of one of the groups described in the grid. This burden includes the duty to establish by medical evidence that the claimant has the requisite RFC.

McCoy v. Schweiker, 683 F.2d 1138, 1146-47 (8th Cir.1982) (en banc). See, e.g., Simonson v. Schweiker, supra, 699 F.2d at 429; McDonald v. Schweiker, 698 F.2d 361, 364 (8th Cir.1983). ⁶

In the present case it is clear that despite a finding that Nettles could not return to his previous occupation as a plumber, the ALJ failed to shift the burden to the Secretary to prove that the claimant had the RFC to do other work that exists in the national economy. We are not convinced, based on the present record, that the ALJ would have reached the conclusion that Nettles retained the capacity to perform at least sedentary work had the ALJ correctly shifted the burden of proof to the appellee. ⁷

In addition, our review of the record convinces us that the ALJ erred in relying solely on the Medical-Vocational Guidelines and the so-called "grid," ⁸ to determine that appellant was not disabled within the meaning of the Act, without giving adequate consideration to appellant's nonexertional impairment of pain. See, e.g., Simonson v. Schweiker, supra, 699 F.2d at 429; Nicks v. Schweiker, supra, 696 F.2d at 636; McCoy v. Schweiker, supra, 683 F.2d at 1148-49. As we recently reiterated in McDonald v. Schweiker, supra:

This court held in McCoy that "[i]f a claimant has a nonexertional impairment, the Guidelines and grid are not controlling and cannot be used to direct a conclusion of disabled or not disabled." 683 F.2d at 1148. Pain and psychiatric problems are both nonexertional impairments. Id.; see 20 C.F.R. § 404.1545(c), (d). If an individual has a combination of exertional and nonexertional impairments, * * * the nonexertional impairments must be given full consideration. The grid should not be used "where nonexertional impairments are so significant that the applicant does not possess the RFC on which the guidelines are based." McCoy, 683 F.2d at 1148; Torres v. Secretary of HHS, 668 F.2d 67, 69 (1st Cir.1981). Further, in Tucker v. Schweiker, 689 F.2d 777 (8th Cir.1982), this court held that because the grid is predicated on a claimant's physical capacity and does not account for nonexertional impairments, it cannot take the place of vocational expert testimony addressed to the question of what jobs a person with the claimant's physical and mental limitations can perform. Id. at 780; accord Nicks v. Schweiker, 696 F.2d 633 at 636 (8th Cir.1983).

698 F.2d at 364-65. See also Simonson v. Schweiker, supra, 699 F.2d at 428-29.

This court has consistently held that an ALJ must give serious consideration to a claimant's allegations of pain and may not disregard subjective evidence concerning pain merely because it is not fully corroborated by objective evidence. See Simonson v. Schweiker, supra, 699 F.2d at 429; McDonald v. Schweiker, supra, 698 F.2d at 365; Nicks v. Schweiker, supra, 696 F.2d at 636; Brand v. Secretary of H.E.W., 623 F.2d 523, 526 (8th Cir.1980); Northcutt v. Califano, 581 F.2d 164, 166 (8th Cir.1978). "[D]ifferent claimants have different degrees of sensitivity to pain and are entitled to be evaluated with this in mind." McDonald v. Schweiker, supra, 698 F.2d at 365 (citing Brand v. Secretary of H.E.W., supra, 623 F.2d at 526-27).

In his decision the ALJ ostensibly considered Nettles' subjective allegations of severe pain, but rejected these complaints as a matter of credibility primarily because of the absence of objective physical signs of...