Pearsall v. Massanari

• Decision Date: 15 November 2001
• Docket Number: No. 01-1951,01-1951
• Citation: 274 F.3d 1211,2001 WL 1631474
• Parties: (8th Cir. 2001) DENNIS W. PEARSALL, APPELLANT, v. LARRY MASSANARI, ACTING COMMISSIONER OF SOCIAL SECURITY, APPELLEE. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1211

274 F.3d 1211 (8th Cir. 2001)

DENNIS W. PEARSALL, APPELLANT, v. LARRY MASSANARI, ACTING COMMISSIONER OF SOCIAL SECURITY, APPELLEE.

No. 01-1951

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: November 15, 2001

Filed: December 20, 2001

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

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Bowman and Morris Sheppard Arnold, Circuit Judges, and Nangle,¹ Senior District Judge.

Nangle, Senior District Judge.

Dennis W. Pearsall appeals the denial of social security disability insurance benefits. Pearsall applied for benefits in June 1997 and alleges disability since January 1, 1997, stemming from urethral stricture disease, neurogenic bladder, learning disability and nervousness. After the Commissioner denied Pearsall's application initially and upon reconsideration, Pearsall was granted a hearing before an Administrative Law Judge (ALJ). The ALJ rendered a decision in which he found that Pearsall was not under a "disability" as defined in the Social Security Act. The District Court² affirmed the Commissioner's decision to deny benefits and we affirm the District Court.

I.

At the time of the hearing in May of 1998, Pearsall was 48 years old. He has not been employed since 1977 when he worked in a Quick Shop Market. As early as December 1987, Pearsall sought medical treatment because of difficulty voiding. In January 1988, Pearsall also began seeking treatment for anxiety, nervousness, difficulty sleeping and appetite loss. At the end of January 1988, Pearsall's physician stated that Pearsall probably suffered from depression and described Pearsall's symptoms as "almost like panic attacks." Pearsall's physician then referred Pearsall to a urologist.

In March 1988, after performing urethra and bladder tests which had normal results, the urologist noted his belief that Pearsall's urinary retention was probably due to "a very high anxiety state." In March 1988, the urologist noted that he had discussed the need for psychological therapy and possibly nursing home admission for Pearsall and that he believed Pearsall's anxiety was causing his voiding problems. In April 1989, the urologist reported that Pearsall was still experiencing voiding problems and was using a suprapubic tube in order to urinate. In August 1989, the urologist noted that Pearsall was frequently having to self-catheterize in order to urinate and also noted his continuing belief that Pearsall's urological problems were based on a "severe psychological disorder that exists between [Pearsall] and his mother." The urologist continued treating Pearsall throughout the 1990's.

In June 1997, Pearsall applied for disability benefits. In connection with this application, the Commissioner sent Pearsall to several consultative examinations. In August 1997, Dr. Robert King performed a physical exam on Pearsall. During the exam, Pearsall told Dr. King that he was last employed in 1977 at the Quick Shop Market and that his days were currently spent doing yard work, watching television, listening to music and occasionally going to the library. Dr. King noted that Pearsall did not necessarily have a learning disability, but he suspected that Pearsall was mildly mentally retarded. Dr. King noted that Pearsall had no difficulty sitting, standing, walking, lifting, carrying or handling objects or traveling. Dr. King saw no reason that Pearsall could not be gainfully employed.

In August 1997, Dr. David Lutz, Ph.D., performed an intelligence quotient (I.Q.) test on Pearsall. Dr. Lutz found that Pearsall's I.Q. was in the 80's, i.e. the low average range, that Pearsall appeared to suffer from anxiety during the testing and that Pearsall would participate in the testing only with considerable encouragement. Pearsall related his school, family and social history to Dr. Lutz and told Dr. Lutz that he currently enjoyed watching television, listening to music and going to the library where he checked out movies, compact discs and cassette tapes. Pearsall told Dr. Lutz that reading made his eyes tired. Pearsall said that he could follow simple recipes and had a good appetite but had trouble sleeping. Dr. Lutz concluded that while Pearsall had some difficulties and behavioral problems, and appeared to be immature and likely anxious, Pearsall "seemed capable of understanding and remembering at least simple and probably complex instructions. He also seemed capable of sustaining concentration and persistence on at least simple and possibly complex tasks."

After the Social Security Administration denied Pearsall's application for benefits and his request to reconsider, but before the hearing in front of the ALJ, Pearsall was examined by Dr. Eva Wilson, Psy.D. Dr. Wilson reported that Pearsall "presented himself as an extremely nervous gentleman" who stuttered, smiled and acted in an "extremely nervous fashion" throughout the interview. She described Pearsall as "nervous, eccentric and very anxious to complete the interview" and as a person who "appears to be a loner who is very anxious and does not interact with others easily....He appears to be a middle-aged gentleman who has always been indulged by his parents, at least by his mother, and continues to be."

Dr. Wilson diagnosed Pearsall as follows:

                Axis I:         300.00 Anxiety disorder, NOS
                Axis II:        301.9 Personality disorder,NOS
                                 with dependent and avoidant
                                 characteristics
                                R/o 315.9 learning disorder, NOS
                Axis III:       Bladder and kidney surgery
                Axis IV:        Employment problems, unemployment.
                Axis V:         Current GAF (Psych) 60, moderate.
                                 Past year, 60, moderate.
                

Dr. Wilson also completed a Medical Source Statement. In this statement, Dr. Wilson indicated that Pearsall was moderately limited in his ability: to understand and remember detailed instructions; to carry out detailed instructions; to maintain attention and concentration for extended periods; to work in coordination with or proximity to others without being distracted by them; to interact appropriately with the general public; to accept instructions and respond appropriately to supervisors; to get along with co-workers or peers without distracting them or exhibiting behavioral extremes; and to set realistic goals or make plans independently of others. Dr. Wilson also noted that Pearsall was not significantly limited in his ability to: perform activities within a schedule, maintain regular attendance, sustain an ordinary work routine, work in coordination with others and make simple work-related decisions. Finally, Dr. Wilson indicated that Pearsall was not significantly limited in his ability to complete a normal work day and work week without interruption, ask simple questions, ask for assistance, maintain socially appropriate behavior and respond appropriately to changes in the work setting.

At the hearing, Pearsall testified that he was evaluated by Drs. Lutz and Wilson on behalf of the Social Security Administration. Pearsall further testified that he suffered from problems with anxiety, had difficulty being around people and concentrating, wanted to be left alone, and would go out from his home with his mother but has not gone out alone to visit friends in 25-30 years. Pearsall testified that he was 48 years old and had an eleventh grade education. He testified that, in a work setting, he would need to use the rest room at least once every 90 minutes. He said that he could read, but had difficulty because he needed glasses.

A vocational expert also testified at the hearing. The ALJ asked the vocational expert a hypothetical question about a person who had a neurogenic bladder, would require a permanent catheter change once a month, would need to urinate every 90 minutes, would occasionally suffer from incontinence, did not like to be around a lot of people, had some anxiety and problems concentrating and had some dependency characteristics. The vocational expert testified that such a person would be able to perform some jobs in the national economy, such as small parts assembler, cafeteria attendant, addresser or fishing reel assembler. Pearsall's attorney then asked the vocational expert about a hypothetical person subject to all of the limitations set forth in Dr. Wilson's Medical Source Statement. The expert responded that such a person would not be able to perform any work on a sustained basis.

In July 1998, the ALJ issued a decision denying disability benefits to Pearsall. The ALJ found that Pearsall's "testimony regarding the nature, severity and duration of his impairments is contradicted by the medical record." The ALJ noted that there was "some divergence of opinion among psychologists who have examined the claimant." The ALJ found that Dr. Lutz's opinion was supported by objective testing and a mental status examination and found Dr. Lutz's opinion that Pearsall "could at least understand and remember simple instructions and sustain concentration and persistence on at least simple tasks" to be persuasive. By contrast, the ALJ found that Dr. Wilson's opinion was "not supported by objective testing" and therefore was "entitled to lesser weight."

II.

On appeal, Pearsall asserts that: (1) the record as a whole did not support the residual functional capacity of Pearsall adopted by the ALJ; (2) substantial evidence did not support the ALJ's adoption of Dr. Lutz's medical opinion rather than Dr. Wilson's medical opinion; (3) the ALJ's reliance on the medical vocational guidelines found at 20 Pt. 404, Subpart P, Appendix 2 (the "Grids") was proscribed by the facts in this case; and (4) the hypothetical question that the ALJ posed to the vocational expert did not sufficiently relate all of Pearsall's impairments supported by the record.

To be eligible for disability insurance benefits, a claimant has the burden of establishing the...