Smith v. Schweiker, 83-1120

• Decision Date: 07 March 1984
• Docket Number: No. 83-1120,83-1120
• Citation: 728 F.2d 1158
• Parties: , Unempl.Ins.Rep. CCH 15,177 Cheryl A. SMITH, Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1158

728 F.2d 1158

4 Soc.Sec.Rep.Ser. 237, Unempl.Ins.Rep. CCH 15,177

Cheryl A. SMITH, Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Appellee.

No. 83-1120.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 17, 1983.

Decided March 7, 1984.

Cathleen A. Shine, Harrisonville, Mo., for appellant.

Robert G. Ulrich, U.S. Atty., Judith M. Strong, Asst. U.S. Atty., Kansas City, Mo., for appellee; Paul P. Cacioppo, Regional Atty., Region VII, Dept. of Health and Human Services, Kansas City, Mo., of counsel.

Before ROSS, ARNOLD and BOWMAN, Circuit Judges.

BOWMAN, Circuit Judge.

Cheryl Smith appeals from an order of the District Court, 559 F.Supp. 639, affirming the decision of the Secretary of Health and Human Services denying disability benefits and supplemental security income under Title II of the Social Security Act, 42 U.S.C. Secs. 401-33 and Title XVI, 42 U.S.C. Secs. 1381-83c. Smith argues that the decision of the Secretary is not supported by substantial evidence on the record as a whole. She contends that the evidence conclusively established her inability to perform her previous occupation as a meat packer and therefore that it was incumbent upon the Secretary to present evidence of other jobs in the economy that she could perform, a burden that the Secretary made no attempt to satisfy. She also contends that the ALJ did not give adequate consideration to her complaints of pain. In addition, Smith argues that the ALJ failed to develop fully and fairly the evidence at the administrative hearing and that the district court should have remanded the case to the ALJ for the consideration of new evidence. We reverse and remand for further proceedings.

Statement of the Case

Smith initially was granted disability benefits and supplemental security income on February 21, 1978 based on a period of disability which began on July 22, 1977. As a result of a continuing disability investigation, the Social Security Administration (SSA) concluded that Smith's disability ended in April 1979 because her condition had improved and she was able to do substantial, gainful work. After a hearing in April 1980, the ALJ found that Smith was not entitled to disability benefits and supplemental security income because she was not disabled. Smith was not represented by an attorney at the hearing.

The ALJ concluded that Smith's disability ended in April 1979 when she was shown to have no functional restrictions such as the inability to walk, sit, stand, or lift and carry as a result of her rheumatoid arthritic disease or other conditions. Restrictions limiting Smith's exposure to cold and mandating an hour of rest in the morning and in the afternoon were found by the ALJ to constitute only a "slight impairment." Because the impairment was slight, there was no significant limitation on Smith's ability to perform tasks consistent with her age, education, and vocational background.

Smith exhausted internal appeals within the SSA. On petition for review, the District Court granted summary judgment in favor of the Secretary of Health and Human Services on the ground that there was substantial evidence to support the administrative finding that Smith was not disabled.

Statement of the Facts

Smith was born on November 17, 1947. She has a tenth grade education but no vocational training. Her work experience includes meat packing, 1974 to 1977; assembling fog lights, 1973 to 1974; assembling radio parts, 1972; and machine operator, 1967 to 1968. As a meat packer, Smith packed frozen meat with her bare hands at room temperatures of freezing and below. She was either standing or walking all day long, constantly bending, reaching, lifting and carrying boxes of frozen sausage weighing twenty-eight pounds per box a distance of fifteen feet. In her job as a fog lights assembler, she worked seated on a bench line with occasional bending and reaching. The radio parts assembler job also involved sitting with occasional bending and reaching and lifting of small parts.

Smith testified to pain in the muscles or joints in her shoulders, knees, hips, hands, and back. Although her muscles or joints did not swell, Smith found it difficult to walk. She stated that she could not bend over the sink to brush her teeth, bake bread, open jars, or lift a skillet. She was taking medication for the pain. During the winter, particularly that of 1979, her hands and back hurt so much she hardly could do anything. Sitting up for an hour was causing problems. When she bent over she had trouble straightening up. She was doing some housework such as vacuuming and cooking. Her two sons, however, were helping with any lifting such as lifting laundry. Her sons also were doing all the yard work. At the time of the hearing, she was driving her car approximately 30 miles per week, which was one round trip to the grocery store. She was driven to the hearing by her mother because she was living 40 to 50 miles from Kansas City. Smith could no longer go fishing with her boys. She finds that she becomes easily fatigued. Smith's mother stated that she had seen Smith in so much pain that Smith had taken six aspirin and that Smith limps when her hips hurt.

Smith initially was awarded disability benefits after a medical team reconsidered an earlier denial and examined the medical reports of W.A. Slentz, M.D., Internist; David P. Trimble, Jr., M.D.; Gerald D. Peterson, M.D.; and Joseph E. Spurney, M.D. After performing personal examinations, each of these doctors reported positive results on rheumatoid agglutination tests. At one point, there was evidence of acute tendenitis in Smith's left wrist and of pain and swelling in the right wrist and right thumb. All of the doctors noted her complaints about widespread aches and pains, particularly pain in the left hip and left knee. There was general agreement that she had no appreciable swelling of any joints and that she had no loss of range of motion. In addition, Dr. Peterson reported that Smith had a mild loss of gripping in both hands and that she was unable to squat. After his personal examination, Peterson concluded:

If this lady were to be employed she should not be exposed to damp or extremely cold environments. She could not do frequent step or stair climbing. She could not do continuous gripping or twisting with either hand. She cannot reach over her shoulders to retieve [sic] objects frequently or to retrieve any weighted objects above 1-2 pounds. Her general lifting should be limited to about 5 pounds. She should not be expected to retrieve objects from the floor weighing more than 1-2 pounds and this should not be on a frequent basis. Her walking and standing should be limited to 2-3 hours per day. She could probably do only limited typing or keypunch activities.

Trial Transcript (Tr.)

D.F. Coburn, M.D. and S.M. Gardner, M.D., two medical consultants, performed residual functional capacity evaluations. Although they agreed that Smith could sit for eight hours per day, both recognized limitations on her ability to stand, walk, bend, squat, crawl, and climb. They also reported some limitations in her ability to use her left and right upper extremities and hands.

The medical team which awarded benefits relied primarily on the opinion expressed above by Dr. Peterson and added "[t]he medical information indicates that she does have arthritis affecting multiple joints. She has pain and some limitation of motion and is beginning to have some mild changes in some of the joints." Tr. at 54-55.

The SSA's decision to discontinue benefits because the disability ended in April 1979 was based upon records from a visit by Smith to Mehernaz Irani, M.D., in Arizona, upon a personal examination by H. Joe Pryor, M.D., after referral by the SSA for physiatric evaluation, and upon the report of Charles Sisk, M.D., Smith's treating physician. Smith visited Irani in February, 1979 for a "flare-up of rheumatoid arthritis." Tr. at 123. Medications were prescribed. Dr. Irani noted that Smith had a stiffness of grip, but no deformities in her big joints and a full range of motion.

Dr. Pryor examined Smith on April 25, 1979. He noted that she walked slowly and gingerly as if it hurt her legs to walk. After setting out Smith's history, Dr. Pryor reported that Smith complained that her symptoms were worse in the morning with stiffness in her hands, arms, and hips than later in the day when she felt pretty good. Smith also suffered from recent shoulder, neck, and arm pain. She would awaken at night with elbow stiffness. Dr. Pryor reported, in part, as follows:

[T]here is no objective evidence of synovitis or joint restriction. Her history certainly is suspicious for early rheumatoid arthritis as she described early morning stiffness, intermittent fever and night sweats, arthralgias and myalgias.... I am suspicious she may have early or palindromic rheumatoid arthritis on the basis of somewhat typical constitutional subjective symptoms and the rheumatoid agglutination test. Because there are no musculoskeletal and joint abnormalities at this time, she is suffering no functional restrictions. She can be expected to have increased constitutional symptoms with exposure to cold or if she becomes fatigued. At this time, the only restriction I would recommend would be she eliminate exposure to cold and be allowed to have one hour of rest in the mornings and afternoons.

Tr. at 130.

On August 15, 1979, Dr. Sisk reported that he had seen Smith three times since her first visit in March, 1979. According to Dr. Sisk, Smith had a "3 year history of migratory polyarthralgias without joint swelling except for diffuse swelling of hands--marked morning stiffness. Treated by other physicians as RA but poor response. Borderline rheumatoid factor results in past." Tr. at 93. He further stated, "No objective evidence of arthritis," "Severely tender" over various muscles and joints. Tr. at 94. Laboratory studies...