Newton v. Chater

• Citation: 92 F.3d 688
• Decision Date: 09 August 1996
• Docket Number: No. 96-1096,96-1096
• Parties: , Unempl.Ins.Rep. (CCH) P 15516B Donald A. NEWTON, Plaintiff-Appellant, v. Shirley S. CHATER, Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 688

92 F.3d 688

51 Soc.Sec.Rep.Ser. 434, Unempl.Ins.Rep. (CCH) P 15516B

Donald A. NEWTON, Plaintiff-Appellant, v. Shirley S. CHATER, Commissioner of Social Security Defendant-Appellee.

No. 96-1096.

United States Court of Appeals Eighth Circuit.

Submitted June 14, 1996.

Decided Aug. 9, 1996.

Thomas A. Krause, Kansas City, MO, argued (Michael DePree, on the brief), for appellant.

Christopher D. Hagen, Des Moines, IA, argued (Frank V. Smith III and Martha Bohn Budetti, on the brief), for appellee.

Before MORRIS SHEPPARD ARNOLD and MURPHY, Circuit Judges, and JACKSON, ^* District Judge.

MURPHY, Circuit Judge.

Donald A. Newton appeals from a district court decision affirming the Social Security Commissioner's denial of his applications for disability insurance and supplemental security income benefits. We reverse and remand.

I.

Newton applied for disability insurance benefits on April 22, 1993 under Title II of the Social Security Act, 42 U.S.C. § 401 et seq., and for Supplemental Security Income (SSI) benefits under Title XVI of the Act, 42 U.S.C. § 1381 et seq. He alleged disability from October 30, 1992, based on illiteracy, memory lapses, alcoholism, and hypertension. His applications were denied initially and on reconsideration.

A hearing before an administrative law judge (ALJ) was held in November 1994. Newton was 37 years old at the time. His previous jobs included unskilled or semi-skilled work pouring iron, cutting sod, sweeping floors, applying hot roofing materials, and doing construction tasks. These jobs involved medium to very heavy labor, did not require reading or writing, and were not highly technical in nature.

Since his alleged onset date of disability, Newton has worked at two jobs. During June to September of 1994, he worked at the Black Hawk Foundry as a grinder and a metal beater, which involved carrying weights between 150 to 200 pounds. He earned between $6.50 and $7.26 per hour and worked at least forty hours per week. He testified at the hearing that he drank during lunch, but stated he was fired because of an eye injury, from which he has fully recovered. Newton also worked for one week with Rose's Wood Products in October 1994, but said he quit because his drinking prevented him from going to work in the mornings. He testified that he has looked for other work.

According to intelligence tests, Newton has an I.Q. score of 77, which is in the borderline range of mental deficiency. Newton testified that he attended special education classes until the ninth or tenth grade, but that his reading and arithmetic abilities were at a second grade level. He said he could not read street signs but did read comic strips and letters from his girlfriend. He also alleged difficulties with counting and making change and claimed to have trouble remembering things. Near the end of the hearing, however, he stated he had been able to concentrate and answer questions during it.

Several medical reports were also introduced into evidence. Stephen Paul Singley, M.A., evaluated Newton in May 1993. Newton was easily able to recall his date of birth, the address where he had lived for one month, and several things about his past. Singley concluded that Newton might have dyslexia and was "quite incapable ... of maintaining competitive employment" if his daily functioning was similar to that during the interview. Dr. Norman A. Scott reviewed Newton's medical records in July 1993 and concluded that he had moderate deficiencies of concentration, persistence, or pace resulting in the failure to complete tasks in a timely manner. Dr. Scott nevertheless concluded that Newton was capable of completing independent simple activities. Dr. Janet S. McDonough reached a similar conclusion based on her review in November 1993 of Newton's records, reporting that he could concentrate well enough to complete simple, routine tasks.

Newton testified that he suffered from uncontrollable alcoholism. He claimed two different companies had fired him for drinking on the job and that he had been arrested three times for driving under the influence. He stated he drank daily, using money from collected cans to fund his habit. He has been through eight treatment programs and says he often starts drinking within a few days after finishing a program. Newton's treating physician, Dennis Straubinger, D.O., reported in March of 1993 that Newton was no longer using alcohol and that he was capable of working as of March 25, 1993. Dr. D.V. Domingo, a psychiatrist who examined Newton in May 1993, also reported that Newton had stated he was no longer using alcohol, which was substantiated by a lack of alcohol smell on his breath. Dr. Domingo concluded that if Newton stayed sober, he could carry out instructions, interact appropriately with people around him, and maintain attention and concentration for simple jobs such as janitorial work.

Newton was suffering no physical impairments except for numbness in his right fingers due to an injury some eight years before the hearing. (He writes with his left hand, but claimed he did most things with his right hand.) Despite surgery to repair a nerve in his right wrist, he said certain fingers could not feel objects. He stated on a prehearing questionnaire that he did not take painkillers or any kind of medication.

Newton testified that his daily activities included riding his bike to collect cans for money, visiting with his girlfriend and friends, walking around, smoking cigarettes, occasional vacuuming, and fishing with his eleven-year-old son. He also reported on his benefits application that he liked to watch race cars and television.

The ALJ posed two hypothetical questions to the vocational expert, G. Brian Paprocki. The first hypothetical described a younger individual with no physical limitations, a ninth or tenth grade education, a borderline range of intelligence, a minimal ability to read and write, an ability to perform only simple tasks, and an ability to control a drinking problem. The vocational expert testified that such a person could work as a foundry worker, commercial cleaner, roofer, or horticultural worker. In the ALJ's second hypothetical, the individual had all of the above limitations plus an inability to control his drinking. The expert assumed such a person would not regularly report to work and could therefore not hold employment. Newton's attorney then asked the expert about the effect of the reported deficiency in concentration, persistence, and pace on Newton's ability to work. The expert responded that these basic work habits were necessary for a person to maintain employment, and that a moderate deficiency in these abilities would cause problems on an ongoing daily basis, "regardless of ... what the job required from a physical or skill standpoint."

The ALJ issued a decision in February 1995, denying disability insurance benefits. The ALJ found that Newton was not disabled due to the performance of substantial gainful activity from June to September 1994 at the Black Hawk Foundry. The ALJ found that Newton had borderline intellectual functioning and a history of substance abuse. The ALJ indicated on an attached Psychiatric Review Technique Form that Newton often had deficiencies of concentration, persistence, or pace, but found him capable of maintaining concentration and attention for simple work. The ALJ stated that Newton had no impairment or combination of impairments sufficient to meet the requirements in the regulations. The ALJ further noted that Newton's recent foundry work showed he had no physical limitations, he could control his drinking problem, and his daily activities were not greatly restricted. Based on these findings, the ALJ concluded Newton could perform his past work as a roofer, commercial cleaner, horticultural laborer, and foundry worker.

Newton pursued his administrative claim further and then turned to federal court. The Appeals Council denied review in May 1995. The district court affirmed the Commissioner's decision in December 1995, concluding that it was supported by substantial evidence on the record as a whole and not affected by any error of law. On appeal, Newton argues that he was entitled to a trial work period in 1994, that the hypothetical question posed to the vocational expert erroneously excluded his deficiencies of concentration, persistence, or pace, that the ALJ improperly discredited his complaints of uncontrollable alcoholism, and that the evidence supported a finding of disability.

II.

The Commissioner's decision to deny disability insurance benefits will be affirmed unless it is unsupported by substantial evidence in the record as a whole or based on legal error. Keller v. Shalala, 26 F.3d 856, 858 (8th Cir.1994). Our review encompasses evidence that both supports and detracts from the Commissioner's decision. Mapes v. Chater, 82 F.3d 259, 262 (8th Cir.1996).

A.

Newton argues that his work from June to September 1994 should not have been considered as evidence of substantial gainful activity showing that he was not disabled. He argues that his work constituted a trial work period which could not be considered in determining his eligibility for disability insurance benefits. The Commissioner responds that Newton should not be allowed to raise the issue for the first time on appeal and, in any event, he is not entitled to a trial work period because he was never awarded benefits. She contends that the ALJ properly considered Newton's 1994 work in assessing his alleged disability.

Newton asserted in his district court brief that he was "entitled to a trial work period" and that his work during 1994 should not be fatal to his disability claim. That brief cited the trial work provisions in both the federal statutes and regulations, as well as Lacy v. Sullivan, 810 F.Supp. 1038, 1040-42 (S.D.Iowa 1992), which discussed the effect on a disability claim of activity during a trial work period. Newton...