Totz v. Sullivan, 91-1658

• Decision Date: 08 April 1992
• Docket Number: No. 91-1658,91-1658
• Citation: 961 F.2d 727
• Parties: , Unempl.Ins.Rep. (CCH) P 16548A, 2 NDLR P 306 Hal E. TOTZ, Appellant, v. Louis W. SULLIVAN, Secretary of United States Department of Health and Human Services, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 727

961 F.2d 727

37 Soc.Sec.Rep.Ser. 75, Unempl.Ins.Rep. (CCH) P 16548A,

2 NDLR P 306

Hal E. TOTZ, Appellant, v. Louis W. SULLIVAN, Secretary of United States Department of

Health and Human Services, Appellee.

No. 91-1658.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 15, 1991.

Decided April 8, 1992.

Ralonda Jackson Mason, St. Cloud, Minn., argued (Ann Cofell, on the brief), for appellant.

Gary Sultz, HHS Regional Counsel, Chicago, Ill., argued (Robert Small, Asst. U.S. Atty., of Minnesota, Donna Weinstein and Richard Urbin, HHS Counsel, on the brief), for appellee.

Before LAY, ^* Chief Judge, ARNOLD, ^** Circuit Judge, and STUART, ^*** Senior District Judge.

LAY, Chief Judge.

Hal Totz appeals from the district court's order affirming the Secretary of Health and Human Services' denial of Totz's application for supplemental security income benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383c (1988). We reverse and remand for further proceedings before the Secretary.

BACKGROUND

At the time of the evidentiary hearing in February of 1989, Totz was thirty-nine years old and had an eighth grade education. ¹ He was then living with his father and brother. His daily activities included watching television, reading, bird-watching and performing light chores around the house. Totz worked as a laborer in a poultry The Administrative Law Judge (ALJ) followed the five-step analysis mandated by 20 C.F.R. § 404.1520 (1990), finding in part that the claimant has "severe" impairments but does not have an impairment or combination of impairments qualifying under the "listed impairments." The ALJ also found that Totz was unable to perform his past work but could perform entry-level sedentary work. This last finding was held to be dispositive on the issue of disability. It was supported by the testimony of Karen Ihli, a vocational expert, who, in response to a hypothetical put forth by the ALJ, ⁵ opined that there were jobs available in the Minnesota economy for an individual with Totz's limitations. ⁶ On appeal, Totz contends the district court erred in affirming the ALJ's decision to deny benefits since the hypothetical put forth to the vocational expert was not accurate. Totz also urges that the ALJ failed to examine the combined effect of his various conditions; failed to take account of his subjective complaints of pain; and failed to fully develop the record.

                processing plant (Armour Foods) continuously from 1967 until he was laid off in April of 1983.   He claims a disability onset date of May 28, 1983, arising from a combination of physical and mental impairments including cerebral palsy, 2 lower back pain, 3 heart palpitations 4 and low intelligence.   Totz's primary impairment is the cerebral palsy which hinders his locomotion.   He suffers stiffness in both legs and walks with a scissored gait.   He is unable to walk on ramps or uneven surfaces, loses his balance easily, and is limited in his ability to walk distances.   Totz is also limited in his ability to stand, sit, lift, balance, bend, squat, crawl, climb, and reach overhead, all as a result of cerebral palsy and back pain.   At the evidentiary hearing, Totz testified that he experiences back pain every day which increases with exertion, lifting, walking (distances), or standing for more than fifteen minutes, and that he is unable to sit continually for more than one hour at a time
                

DISCUSSION

Initially we find no merit to the contention that the ALJ considered Totz's impairments only in isolation, and not the combined effects of all of Totz's impairments. See 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(F) (1988). In holding that Totz did not have a "listed impairment," see 20 C.F.R. Part 404, Subpart P, Appendix 1 (1990), the ALJ specifically found that even "when all of the medical findings are combined" they fail to meet the qualifications for a listed impairment. Also, in determining Totz's residual functional capacity, ⁷ the ALJ incorporated restrictions regarding each of Totz's limitations. The hypothetical included (1) Totz's Secondly, we find there exists substantial evidence on the record as a whole indicating that the ALJ correctly factored in Totz's subjective complaints of pain in determining that Totz's pain was not disabling. The ALJ specifically noted that Totz experienced pain, but concluded the pain was not disabling since (1) Totz took no pain medication; (2) Totz's medical treatment was minimal; and (3) Totz was able to perform a variety of daily activities inconsistent with disabling pain. See Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.) (putting forth the factors on which to focus in determining the credibility of a claimant's assertion of disabling pain), supplemented, 751 F.2d 943 (8th Cir.1984), vacated, 476 U.S. 1167, 106 S.Ct. 2885, 90 L.Ed.2d 974 (1986), adhered to on remand, 804 F.2d 456 (8th Cir.1986), cert. denied, 482 U.S. 927, 107 S.Ct. 3211, 96 L.Ed.2d 698 (1987). Thus, the ALJ properly examined the correct factors and reasonably concluded that Totz's pain was not disabling. ⁸

                mental limitations (limited to simple, routine, one and two step instructions);  (2) Totz's lower back problems (no prolonged sitting or standing;  no reaching, bending, squatting, etc.);  (3) Totz's heart condition (no strenuous physical activities such as lifting more than twenty pounds or walking long distances);  and (4) Totz's cerebral palsy (cannot walk on uneven ground or work at unprotected heights).   Thus, we believe the ALJ fairly considered the combined effects of Totz's limitations
                

However, we do find a problem in the factual detail the ALJ used in developing the hypothetical question for the vocational expert. It is well settled that the hypothetical question posed to a vocational expert must fully set forth a claimant's impairments. Shelltrack v. Sullivan, 938 F.2d 894, 898 (8th Cir.1991). Testimony elicited by hypothetical questions that do not relate all of a claimant's impairments cannot constitute substantial evidence to support a finding of no disability. Id.; see also Penn v. Sullivan, 896 F.2d 313, 316-17 (8th Cir.1990).

As part of the hypothetical in the instant case, the ALJ described a man who could sit six hours of an eight-hour work day. This description is not supported by substantial evidence upon the record as a whole. Totz did not testify regarding the total hours he could sit in one eight-hour day; he only stated that "if I sit too long like say ... even an hour I have to get up and walk around." Ad.Tr. at 30. However, Totz's physical therapist, Greg Campbell, reported that Totz should be limited to one hour of sitting per work-day. ⁹ Dr. W. Leland Lindquist, Totz's attending physician, reported that Totz could sit for only four hours of an eight-hour day. Dr. Leonard Goldman, a consultive neurologist who examined Totz for purposes of his disability claim, reported that Totz could sit for "several hours" of an eight-hour work day. Only Dr. Alan Suddard, who never actually examined Totz, reported that Totz could sit for six hours of an eight-hour work day. Despite the existence of clearly conflicting medical opinions, the ALJ did not ask the vocational expert if any jobs would be available for a claimant who was unable to sit for six hours per eight-hour work day. Nor did the ALJ give any reason...