Tate v. Apfel

• Decision Date: 09 February 1999
• Docket Number: No. 98-2058,98-2058
• Citation: 167 F.3d 1191
• Parties: , Unempl.Ins.Rep. (CCH) P 16186B Robert TATE, Plaintiff-Appellant, v. Kenneth APFEL, Commissioner, Social Security Administration, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1191

167 F.3d 1191

60 Soc.Sec.Rep.Ser. 67, Unempl.Ins.Rep. (CCH) P 16186B

Robert TATE, Plaintiff-Appellant, v. Kenneth APFEL, Commissioner, Social Security Administration Defendant-Appellee.

No. 98-2058.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 20, 1998.

Decided Feb. 9, 1999.

E. Gregory Wallace, Buies Creek, NC, argued, for Appellant.

Chris C. Yu, Social Security Administration, Dallas, TX, argued, for Appellee.

Before RICHARD S. ARNOLD, FAGG, and HALL, ¹ Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge.

Robert Tate appeals the district court's affirmance of the Administrative Law Judge's ("ALJ") decision denying his request for disability insurance benefits and supplemental security income. The district court had jurisdiction to review the final decision of the Commissioner of the Social Security Administration pursuant to 42 U.S.C. § 405(g). We have jurisdiction to review the decision of the district court pursuant to 28 U.S.C. § 1291, and we reverse.

I.

Robert Tate applied for disability benefits based on his seizures, high blood pressure, and nervousness. The ALJ found that while Tate suffered from seizures, hypertension, nervousness, anxiety, depression, and headaches, he retained the residual functional capacity to perform unskilled, light work. On appeal, Tate challenges the ALJ's ruling that he did not suffer from epilepsy or severe seizures.

Tate had previously applied for disability benefits because of his seizures. An ALJ rejected his application on November 22, 1991, in part because of evidence in the record that Tate did not lose consciousness during his seizures, the seizures occurred less than once a month despite below-therapeutic levels of convulsive medications in Tate's bloodstream, the seizures did not involve psychomotor movements, and because the seizures may have been related to drug withdrawal.

In the instant case, the ALJ expressly considered all medical evidence, regardless of its date, to the extent that it was relevant in evaluating Tate's current disability status. ² Records entered into evidence from Tate's prior disability proceedings established that Tate experienced a grand mal seizure ³ on November 2, 1989, while hospitalized for a depressive illness under the care of Dr. Randall Moskovitz. An electroencephalogram ("EEG") ⁴ conducted on November 6, 1989, apparently did not reveal any abnormalities in Tate's brain functioning. However, an EEG conducted under sleep-deprived conditions on November 7, 1989, was characterized as "abnormal." Dr. Evelyn Ogle, the electroencephalographer, indicated that the second EEG could be consistent with Tate's recent seizure episode, but noted that the "underlying pathology cannot be determined by the EEG alone." A neurologist, Dr. Srinath Bellur, first prescribed Dilantin, an anti-convulsant, to control Tate's seizures on November 20, 1989. Tate apparently suffered a second seizure on December 11, 1989.

Records from Dr. Chanh Van Huynh, Tate's treating physician, indicate that Tate reported having six seizures from October, 1989, through October 18, 1990. Dr. Van Huynh reported observing one of Tate's seizures, which involved a loss of consciousness, disorientation, myalgia, ⁵ and tiredness that would last up to six hours. Dr. Van Huynh increased Tate's Dilantin levels in response to the below-therapeutic levels of the drug in Tate's blood stream and additional reports of seizures.

On January 4, 1991, Dr. David Loe, a psychologist, reported that Tate "likely exaggerates his symptoms for secondary gain." Dr. Loe also stated that Tate's wife described Tate's seizures as not involving any loss of consciousness, and not including any psychomotor reactions. On August 31, 1991, Dr. Gerald Fowler, a psychiatrist, evaluated Tate's condition. Among other findings, Dr. Fowler noted that medications such as Depakote and Tegretal might be able to better control Tate's seizure disorder, but that Tate's current financial situation precluded such treatments. The ALJ in the prior disability proceeding rejected Dr. Fowler's opinion in its entirety, in large part because "Dr. Fowler invariably finds social security claimants to be disabled." Another examining psychiatrist, Dr. B. Eliot Cole, suggested on January 9, 1992, that more modern anti-convulsants instead of Dilantin should be considered to control Tate's seizures.

Additional medical records and reports were submitted at Tate's second disability hearing, which is the subject of this appeal. Dr. Charles Swingle, a treating physician, submitted a report dated December 20, 1993, explaining that Tate suffered from approximately two grand mal seizures a week. In addition, a neurologist, Dr. Michael Deshazo, examined Tate in January of 1994, apparently at the request of the Social Security Administration. Dr. Deshazo reported on January 24, 1994, that Tate suffered from a seizure disorder based on his history, but noted that no real workup had been conducted to assess the severity of Tate's condition since Tate's abnormal EEG in 1989. Dr. Deshazo found at that time that Tate's "seizures are apparently uncontrolled," and opined that Tate "could benefit from a more comprehensive evaluation of his epilepsy." Dr. Deshazo also stated that Tate may benefit from new medications or an adjustment in his current medications. An additional note from Dr. Deshazo on January 25, 1994, stated that Tate's Dilantin and Phenobarbital levels were still below the therapeutic range, despite an increase in his Dilantin dosage, and suggested that increasing these medications to their therapeutic level "might also be of help in controlling [Tate's] ... seizure disorder."

Tate himself testified at the second administrative hearing. Tate explained that he was thirty-six years old, and that he had left college after three years because of financial troubles. Tate claimed that his seizures had increased in frequency since his last administrative hearing, and that he now suffered from two to three seizures a week, which were not controlled by his medications. He also stated that he suffered from a nervous disorder with depression, and that he became nervous around crowds. Tate's daily activities consisted of waking up at 7:00 a.m. and going to his mother's house with his children. His mother, Linda Tate, would look after him and he would assist her with the dishes, making the bed, and vacuuming. While Tate stated that he watched television, he did not read because he could not concentrate. Tate also testified that he had no problems relating to family members and neighbors, and that he would only drive once every two weeks because of a fear that he would have a seizure and get into an accident. Tate would go to sleep each night at around 9:00 p.m. In addition to his testimony, Tate's disability report also emphasized that he suffered from hypertension and constant headaches.

Tate's wife, Barbara Tate, also testified at the hearing. Mrs. Tate submitted a statement that as of December 18, 1993, she had witnessed Tate have thirty-five seizures, observing two in the previous month. Twenty-five of these seizures had occurred during the past year. Mrs. Tate testified that Tate would be unconscious or unaware of what was going on around him for approximately fifteen or twenty minutes following a seizure, and that it would take up to two-and-a-half hours for Tate to fully recover from an episode. Mrs. Tate further verified that Tate regularly took his prescribed medication.

In addition, Tate's friend, Orval Shockley, testified at the hearing, and filed a report on December 16, 1993, stating that he had observed Tate have six seizures in 1993. Tate's mother filed a written statement on December 18, 1993, averring that she had observed her son have a total of thirty seizures, the last two occurring in November, 1993. She estimated that Tate had suffered between nineteen and twenty seizures in the past year.

The ALJ found that Tate satisfied the requirements of the Social Security disability insured status and that he had not engaged in substantial gainful activity since the alleged onset date. But while he found that Tate suffered from seizures, hypertension, nervousness, anxiety, depression, and headaches, he found that these ailments did not meet or equal a listed impairment under relevant Social Security regulations. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 (1998). In reaching this decision, the ALJ generally discounted the credibility of Tate's family members and friend because their testimony was "based upon an uncritical acceptance of the claimant's complaints; and, to some degree is motivated by the desire to see [Tate] ... obtain benefits." The ALJ also rejected Tate's subjective reports of pain because of a lack of objective medical findings, Tate's poor work record, Tate's daily activities, the fact that Tate could control his seizures with medication, the fact that Tate has not sought out medical treatment, and a finding that Tate exaggerated his symptoms.

The ALJ found that while Tate could not perform his past relevant work, which included positions as a laborer, warehouse worker, route driver/loader and unloader, truck driver, and security guard, Tate retained the residual capacity to perform unskilled, light work. The ALJ relied on the testimony of a vocational expert, Dr. Vance Sales, to reach this conclusion.

The appeals council denied Tate's request for review on October 9, 1996, and the district court affirmed on March 31, 1998.

II.

We must affirm the ALJ's decision if it is "supported by substantial evidence on the record as a whole." See Cox v. Apfel, 160 F.3d 1203, 1206 (8th Cir.1998). "Substantial evidence is less than a preponderance, but enough that a reasonable mind might accept it as adequate to support a decision." Id. at 1206-1207. Importantly, in conducting our review of the record, "we also take into account whatever in the record fairly detracts from [the...