Warburton v. Apfel

• Decision Date: 23 April 1999
• Docket Number: No. 98-3636,98-3636
• Citation: 188 F.3d 1047
• Parties: (8th Cir. 1999) Michael D. Warburton, Appellant, v. Kenneth S. Apfel, Commissioner of Social Security Administration, Appellee. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1047

188 F.3d 1047 (8th Cir. 1999)

Michael D. Warburton, Appellant, v. Kenneth S. Apfel, Commissioner of Social Security Administration, Appellee.

No. 98-3636

United States Court of Appeals FOR THE EIGHTH CIRCUIT

Submitted: April 23, 1999

Filed: September 1, 1999

Appeal from the United States District Court for the District of Nebraska. [Copyrighted Material Omitted] Before WOLLMAN¹ and LOKEN, Circuit Judges, and JACKSON,² District Judge.

WOLLMAN, Chief Judge.

Michael D. Warburton appeals from the district court's ³ judgment affirming the denial of his claim for disability benefits under Title II of the Social Security Act, 42 U.S.C. 401-433, and supplemental security income benefits under Title XVI of the Social Security Act, 42 U.S.C. 1381-1383f. We affirm.

I.

Warburton was born on July 30, 1953, and has a high-school education as well as some community college training. His past relevant work includes that of a bricklayer, a "roughneck" in the oil industry, and a bartender. Warburton filed the current application on January 4, 1994, seeking benefits for the period beginning on June 1, 1990. He claims to be disabled due to restrictions of his motion by the residuals of a 1988 injury, mental impairment, and stress.

On July 27, 1988, Warburton was working as a bricklayer when the scaffolding on which he was standing collapsed. He fell approximately thirty feet and sustained severe back injuries. Following an initial period of hospitalization and rehabilitation, Warburton completed training in neon sign bending. He has not worked as a neon sign bender, however, due to complaints of numbness in his hands and back pain caused by prolonged standing. From May to October of 1991 Warburton was employed as a bartender, working from twenty-five to forty hours per week. Until July of 1995, Warburton worked approximately four hours per week mowing lawns for his landlady.

The Social Security Administration denied Warburton's application originally and on reconsideration. Warburton then requested and received a hearing before an administrative law judge (ALJ). The ALJ considered the evidence of disability, applying the five-step analysis prescribed by the Social Security Regulations. See 20.-3- C.F.R. 404.1520(a)-(f); see also Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987) (describing the five-step analysis). The ALJ concluded that Warburton had not engaged in substantial gainful activity and exhibited a severe impairment. The ALJ went on to find, however, that Warburton did not meet any listed impairment as described in 20 C.F.R. Part 404, Subpart P, App. 1. Applying the criteria set forth in Polaski v. Heckler, 739 F.2d 1320, 1321-22 (8th Cir. 1984) (subsequent history omitted), the ALJ found that Warburton's subjective complaints of pain were not credible. Although the ALJ found that Warburton could not perform his past relevant work as a bricklayer, roughneck, or bartender, he found that Warburton could perform certain light and sedentary occupations based on a vocational expert's (VE) response to a hypothetical question. The ALJ therefore found that Warburton was not disabled within the meaning of the Social Security Act.

The Appeals Council denied Warburton's request for further review, and the ALJ's decision thereby became the final decision of the Commissioner. Warburton appealed to the district court, which affirmed the Commissioner's decision. Warburton appeals, contending that the hypothetical question posed to the VE did not accurately reflect all of his disabilities and that the ALJ failed to fully develop the record regarding his mental impairments.

II.

"Our role on review is to determine whether the Commissioner's findings are supported by substantial evidence on the record as a whole." Clark v. Apfel, 141 F.3d 1253, 1255 (8th Cir. 1998) (internal citations omitted). Substantial evidence is relevant evidence that a reasonable mind would accept to support the Commissioner's conclusion. See Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993). To determine whether existing evidence is substantial, "we must consider evidence that detracts from the [Commissioner's] decision as well as evidence that supports it." Id. (internal citations omitted). We may not reverse the Commissioner's decision merely because substantial evidence supports a contrary outcome. See Smith v. Shalala, 987 F.2d 1371, 1374 (8th Cir. 1993).

In order to constitute substantial evidence, testimony from a VE must be based on a properly phrased hypothetical question. See Roe v. Chater, 92 F.3d 672, 675 (8th Cir. 1996). Such a hypothetical "should precisely set out the claimant's particular physical and mental impairments." House v. Shalala, 34 F.3d 691, 694 (8th Cir. 1994) (internal citations omitted). The hypothetical need not use specific diagnostic terms, however, where other descriptive terms adequately describe the claimant's impairments. See Roe, 92 F.3d at 676.

The ALJ formulated the following hypothetical question: It seems that he would occasionally be able to lift 20 pounds and frequently lift 10 pounds, but, that he cannot do repetitive bending or stooping. He also can't do repetitive reaching. He has continued low back pain, he has intermittent numbness of the upper extremities, he's obese, in addition, he can't do stooping or bending, he can't do twisting. He appears to be difficult to understand and to communicate with, so that he has difficulties in his social life. He has difficulties in forming friendships. He prefers to be alone, that in a stressful situation, that he tends to deteriorate. Assuming that the Administrative Law Judge finds that he could not perform [the] job of meeting people nor perform a job in which there is high stress, that he has some difficulty in getting along with coworkers or supervisors . . . Could he do other work in the national economy?

J.A. at 85-86.

Warburton testified that he could not work with his hands in front of his body for periods longer than one-half hour. He contends that the ALJ erred in failing to include this limitation in the hypothetical question. The hypothetical's only acknowledgment of this impairment was the reference to "intermittent numbness of the upper extremities." We conclude that this was an accurate characterization of Warburton's ability to use his hands and arms in light of his testimony that he was able to serve drinks, cook hamburgers, operate a cash register, type for thirty minutes, mow lawns, and clean his home.

Warburton also claims that the hypothetical question...