Shepherd v. Callahan

• Decision Date: 01 July 1997
• Docket Number: Civil No. 4-96-CV-90541.
• Citation: 969 F.Supp. 526
• Parties: Henry M. SHEPHERD, SSN: 478-84-3269, Plaintiff, v. John CALLAHAN, Ph.D.,<SMALL><SUP>1</SUP></SMALL> Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Southern District of Iowa

969 F.Supp. 526

Henry M. SHEPHERD, SSN: 478-84-3269, Plaintiff, v. John CALLAHAN, Ph.D.,¹ Commissioner of Social Security, Defendant.

Civil No. 4-96-CV-90541.

United States District Court, S.D. Iowa, Central Division.

July 1, 1997.

George W. Appleby, Des Moines, IA, for Plaintiff.

John E. Beamer, Asst. U.S. Atty., Des Moines, IA, for Defendant.

MEMORANDUM OPINION AND ORDER OF REVERSAL

PRATT, District Judge.

Plaintiff Henry M. Shepherd seeks judicial review of the Social Security Commissioner's decision denying his insurance benefits under Title II and Title XVI of the Social Security Act, 42 U.S.C. §§ 401 et seq., and 1381 et seq. This court may review a final decision by the Commissioner. 42 U.S.C. § 405(g).

BACKGROUND

Plaintiff filed an application for disability benefits on April 20, 1994, claiming an onset of disability date of January 26, 1993. His applications were denied initially and upon reconsideration. After a hearing, Administrative Law Judge Jean M. Ingrassia (ALJ) issued a decision on May 5, 1995, denying benefits. On May 17, 1996, the Appeals Council denied Plaintiff's request for review. Plaintiff filed this Complaint on July 16, 1996.

STANDARD OF REVIEW

In reviewing administrative decisions, it is the duty of the Court to evaluate all of the evidence in the record, taking into account whatever in the record fairly detracts from the ALJ's decision. Universal Camera Corp., v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464-65, 95 L.Ed. 456 (1951); Piercy v. Bowen, 835 F.2d 190, 191 (8th Cir.1987).

Easter v. Bowen, 867 F.2d 1128, 1131 (8th Cir.1989). In Gavin v. Heckler, 811 F.2d 1195 (8th Cir.1987) the Court, in articulating the appropriate role upon review, wrote:

We believe, however, that the magistrate failed to review the record in the manner dictated by precedent of both this court and the United States Supreme Court. It is not sufficient for the district court to simply say there exists substantial evidence supporting the Secretary and therefore the Secretary must be sustained. The substantial evidence test employed in reviewing administrative findings is more than a mere search of the record for evidence supporting the Secretary's findings. Parsons v. Heckler, 739 F.2d 1334, 1339 (8th Cir.1984). While such a broad-based search is appropriate where a reviewing court considers the sufficiency of evidence to support a jury's verdict, see. e.g., DeWitt v. Brown, 669 F.2d 516, 523 (8th Cir.1982) ("a jury verdict will be sustained so long as there is `substantial evidence' or `a reasonable basis in fact' for the jury's conclusion") (quoting Gisriel v. Uniroyal, Inc., 517 F.2d 699, 701 n. 6 (8th Cir.1975)), it is not to be employed on review of an administrative decision.

There is a notable difference between "substantial evidence" and "substantial evidence on the record as a whole." See Jackson v. Hartford Accident and Indemnity Co., 422 F.2d 1272, 1277 (8th Cir.) (Lay, J., concurring), cert. denied, 400 U.S. 855, 91 S.Ct. 86, 27 L.Ed.2d 92 (1970). "Substantial evidence" is merely such "relevant evidence that a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. National Labor Relations Bd., 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938); Smith v. Schweiker, 728 F.2d 1158, 1162 (8th Cir.1984). "Substantial evidence on the record as a whole," however, requires a more scrutinizing analysis. Smith v. Heckler, 735 F.2d 312, 315 (8th Cir. 1984). In the review of an administrative decision, "[t]he substantiality of evidence must take into account whatever in the record fairly detracts from its weight." Universal Camera Corp. v. National Labor Relations Bd., 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951). Thus, the court must also take into consideration the weight of the evidence in the record and apply a balancing test to evidence which is contradictory. See Steadman v. Securities and Exchange Commission, 450 U.S. 91, 99, 101 S.Ct. 999, 1006, 67 L.Ed.2d 69 (1981). It follows that the only way a reviewing court can determine if the entire record was taken into consideration is for the district court to evaluate in detail the evidence it used in making its decision and how any contradictory evidence balances out.

ALJ'S FINDINGS

Plaintiff met the earnings requirement of the Act on his alleged onset of disability date and continued to meet them through the end of March, 1997. Tr. P. 154. The ALJ, following the sequential evaluation found at 20 C.F.R. §§ 404.1520, 416.920, found that Plaintiff has not engaged in substantial gainful activity since January 26, 1994. The ALJ found that Plaintiff has severe impairments: degenerative disc disease with complaints of pain in his neck; headaches; and, depression. The ALJ found that none of Plaintiff's impairments are severe enough to meet or equal an impairment listed in Appendix 1, Subpart P, Regulations No. 4. The ALJ found that Plaintiff is unable to do any of his past relevant work, but, at step 5, found that there is unskilled work which exists in significant numbers that Plaintiff is capable of performing.

BURDEN OF PROOF

Initially, it was Plaintiff's burden to prove that he is unable to perform his past relevant work. Once that burden was met, the burden of proof shifted to the Commissioner:

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, 1147 (8th Cir.1982) (en banc). In O'Leary v. Schweiker, 710 F.2d 1334, 1338 (8th Cir. 1983), the Court wrote:

The Secretary's burden in this regard is twofold. He or she must first prove that the claimant retains the capacity to do other kinds of work, a burden which includes "the duty to establish by medical evidence that the claimant has the requisite RFC [residual functional capacity]." McCoy v. Schweiker, supra, 683 F.2d at 1147. The claimant's RFC is the claimant's physical capacity to do work which is defined in the Secretary's regulations as sedentary, light, medium, heavy, or very heavy. (FN4) If there is evidence that the claimant is also suffering from a nonexertional limitation, such as a mental, sensory or skin impairment, an environmental restriction, or pain, the Secretary's burden includes showing that these impairments do not preclude the claimant from performing other work.

Once the claimant's capabilities are established, the second aspect of the Secretary's burden is to demonstrate that there are jobs available in the national economy that realistically suit the claimant's qualifications and capabilities. McMillian v. Schweiker, supra, 697 F.2d at 221; Cole v. Harris, 641 F.2d 613, 614 (8th Cir.1981). In determining whether there are jobs available that a claimant can perform, the Secretary must consider the claimant's exertional and nonexertional impairments, together with the claimant's age, education, and previous work experience. McMillian v. Schweiker, supra, 697 F.2d at 221; McCoy v. Schweiker, supra, 683 F.2d at 1146-1148.

See also Soth v. Shalala, 827 F.Supp. 1415, 1417 (S.D.Iowa 1993).

In the case at bar, the ALJ found:

The claimant has the residual functional capacity to perform the exertional and nonexertional requirements of work except for lifting no more than 20 pounds occasionally, lifting no more than 10 pounds repetitively, alternating sitting and standing every hour, limited overhead lifting, and no quick head or neck movements. He has no difficulties in standing, walking, or sitting, and has had no effect on his memory or concentration or dealing with the public. The claimant is able to do simple, routine, repetitive work but is unable to do complex, technical work. (20 C.F.R. §§ 404.1545 and 416.945).

Tr. P. 54. If Plaintiff's only impairment was the injury to his neck, with no nonexertional limitations, the ALJ's residual functional capacity finding would be supported by substantial evidence. On May 20, 1994, Plaintiff's treating neurologist, Michael L. Pogel, M.D., wrote that Plaintiff should be limited to lifting 45 pounds and that Plaintiff has no difficulty standing, moving about, walking, or sitting for an 8 hour work day. Tr. P. 234. That statement, however, is not the only evidence in the record regarding Plaintiff's ability to work on a sustained basis. On other occasions Dr. Pogel stated that Plaintiff is unable to do anything without suffering for it. For example, on April 14, 1994, it was noted that carrying a couple pieces of firewood can cause pain the next day. Tr. P. 232. On June 29, 1994, Dr. Pogel wrote that Plaintiff's chronic pain was getting worse. Tr. P. 238. In McCoy, supra, 683 F.2d at 1147, the Court wrote that residual functional capacity "is not the ability merely to lift weights occasionally in a doctor's office; it is the ability to perform the requisite physical acts day in and day out, in the sometimes competitive and stressful conditions in which real people work in the real world".

Defendant argues that Dr. Pogel stated, several times, that he believed Plaintiff is disabled because he cannot be trained for a sedentary job. Defendant argues that those portions of Dr. Pogel's opinion which were outside of his area of expertise should be disregarded. This court agrees and has disregarded those portions of the record which state Dr. Pogel's opinion regarding Plaintiff's ability to be retrained for sedentary work or the existence of such work.

In addition to the injury to his neck, Plaintiff suffers from another severe impairment, the severity of which, in the opinion of the Court, the ALJ did not fully...