Hailey v. Commissioner of Social Security , 284 F. App'x 100 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1362
WAYNE HAILEY,
Plaintiff - Appellant,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Danville. Jackson L. Kiser, Senior
District Judge. (4:06-cv-00039-jlk)
Argued: May 15, 2008 Decided: July 17, 2008
Before NIEMEYER and DUNCAN, Circuit Judges, and Claude M. HILTON,
Senior United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Joel Cawthon Cunningham, Jr., Halifax, Virginia, for
Appellant. Roxanne Andrews, SOCIAL SECURITY ADMINISTRATION,
Philadelphia, Pennsylvania, for Appellee. ON BRIEF: Michael
McGaughran, Regional Chief Counsel, Region III, William B. Reeser,
Supervisory Attorney, Office of the General Counsel, SOCIAL
SECURITY ADMINISTRATION, Philadelphia, Pennsylvania; John L.
Brownlee, United States Attorney, Sara Bugbee Winn, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In 2003, Wayne E. Hailey filed for Social Security disability
benefits. After two hearings before an administrative law judge
(ALJ), the Social Security Commission adopted a final decision
denying Hailey’s request for disability benefits. Hailey filed
suit in United States District Court for the Western District of
Virginia. Both parties filed motions for summary judgment and
Judge Jackson L. Kiser referred the matter to the magistrate judge
for a report and recommendation. The magistrate judge recommended
that Hailey’s motion be granted, holding that the Commission’s
decision to deny benefits was not supported by substantial
evidence. The district court rejected the magistrate judge’s
recommendation and entered summary judgment in favor of the
Commissioner, affirming the Commission’s final decision. We affirm
the district court’s ruling.
I.
Hailey’s childhood was a difficult one. He witnessed the rape
and murder of his mother and was sexually abused by a foster
father. He enlisted in the Navy in 1972, but left shortly
thereafter because he was unable to adjust to the lifestyle. He
spent a large portion of the years between 1981 and 2000 in prison
for armed robbery and second degree murder. While not in prison,
Hailey worked as a tobacco farmer. In July, 2003, Hailey quit
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working and shortly thereafter applied for Social Security
disability benefits.
In his initial application for disability benefits, Hailey
cited myriad physical ailments, such as high blood pressure,
arthritis, the inability to stay in heat, a slipped back disc, and
a “busted leg” as reasons why he was unable to work. After a
hearing, the ALJ determined that Hailey’s physical ailments did not
render him disabled because he was able to perform light work.
Hailey appealed this decision to the Commission’s Appeals Council,
who remanded the case for the ALJ to consider evidence of mental
impairment.
At the time of the second hearing, Hailey was 50 years old and
had approximately a ninth grade education. He was a part-owner of
his residence and rented out a portion of his space for storage
use. He lived without electricity and subsisted on public
assistance and food stamps. He lived with approximately 40 cats
that he cared for by donation.
Hailey spends much of his time at a convenience store located
about six miles from his residence. At the store, Hailey converses
with the store’s owners, who help him read his mail. Hailey
performs custodial duties around the store in exchange for food
from the owners.
On remand, the ALJ considered two psychologists’ reports. Dr.
Samuel Fletcher examined Hailey on May 26, 2005, at the request of
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Hailey’s attorney. After administering an IQ test, Dr. Fletcher
found Hailey to have a verbal IQ of 71, a performance IQ of 70, and
a full-scale IQ of 68. Dr. Fletcher found that while Hailey would
be able to attend work regularly, he could not perform detailed or
complex tasks and would find simple and repetitive tasks
challenging. He diagnosed Hailey with a cognitive disorder that
approached mild mental retardation and stated that Hailey suffered
from depression, alcohol and nicotine dependence, and an anti-
social personality disorder. He concluded that “[t]he stresses
encountered in competitive work frequently will result in
confusing” Hailey.
Dr. Karen Russell examined Hailey on January 12, 2006. After
administering an IQ test, Dr. Russell found Hailey to have a verbal
IQ of 85, a performance IQ of 75, and a full-scale IQ of 78. She
found that Hailey had an anxiety disorder, a history of alcohol
abuse, and an anti-social personality disorder. Ultimately, Dr.
Russell concluded that Hailey could work regularly.
II.
The Social Security Act provides that findings of the
Commissioner are conclusive if they are supported by substantial
evidence. 42 U.S.C. § 405(g); see Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996)(“Substantial evidence is such relevant evidence
as a reasonable mind might accept as adequate to support a
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conclusion”)(internal citations and quotation marks omitted). In
reviewing whether substantial evidence supports the findings of the
Commissioner, “we do not undertake to reweigh conflicting evidence,
make credibility determinations, or substitute our judgment for
that of [the Commissioner].” Johnson v. Barnhart, 434 F.3d 650,
653 (2005)(internal citations and quotation marks omitted); see
also Craig, 76 F.3d at 589(“Where conflicting evidence allows
reasonable minds to differ as to whether a claimant . . . is
disabled, the responsibility for that decision falls on [the
Commissioner]”).
The Act defines disability as “the inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for
a continuous period of not less than 12 months.” 42 U.S.C. § 423
(d)(1)(A). To determine whether a claimant is eligible for
disability benefits, the Social Security Administration established
a five-step process. See 20 C.F.R. § 416.920; see also Walls v.
Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). After finding that
Hailey satisfied the requirements of the first four steps,* the ALJ
*
The first step requires the Commission to determine whether
the claimant is currently working. The second step requires the
Commission to consider whether the claimant has a severe mental or
physical impairment. The third step requires the Commission to
determine whether the claimants impairment is medically severe.
The fourth step requires the Commission to consider whether the
claimant has the residual functional capacity to engage in his
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denied Hailey’s claim for benefits at the fifth step. The fifth
step requires that the Commissioner prove that Hailey had the
functional capacity to do any job that exists in significant
numbers in the national economy. 20 C.F.R. § 416.960 (c)(2). The
ALJ found that while Hailey’s impairments were severe and he did
not have the capacity to engage in his past work as a tobacco
farmer, he did have the functional capacity to perform light
custodial work.
In recommending that Hailey be granted summary judgment, the
magistrate judge concluded that the ALJ committed error by
discounting the opinions of Dr. Fletcher and Dr. Russell. A
relevant passage from Dr. Fletcher’s report states that:
Hailey would not be able to perform detailed and complex
tasks, and in fact often would be challenged by simple
and repetitive tasks. He might be able to maintain
regular attendance in the workplace or perform work
activities on a consistent basis, but he clearly would
need special or additional supervision. His normal
workday or workweek would not be interrupted by such
things as auditory hallucinations or paranoia. He also
would likely be able to accept instruction from
supervisors, but again requiring considerable help.
While he might be able to interact with some coworkers,
he should not be expected to be able to interact
adequately with the public. The stresses encountered in
competitive work frequently will result in confusing him.
A relevant passage from Dr. Russell’s report states that:
[Hailey] is not likely able to tolerate the usual
stressors encountered in competitive work. If work was
not interpersonally based and he was left alone to
perform simple repetitive tasks, he would quite possibly
past relevant work. See 20 C.F.R. § 416.920 (a)(4).
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perform independently without too much difficulty;
however, if there were interruptions in the work and he
was asked to be doing additional activities, he would
likely have increasing episodes of anxiety that would
then lead to him becoming possibly violent and/or walk
off the job.
At the second hearing, the ALJ heard opinion testimony from a
vocational expert (VE) about whether there were jobs available for
a person who had the limitations identified in Dr. Fletcher’s and
Dr. Russell’s reports. The VE testified a person with the
limitations described in Dr. Russell’s report could perform light
custodial work, but that a person with the limitations described in
Dr. Fletcher’s report could not. When asked by Hailey’s counsel,
quoting from Dr. Russell’s report, whether there were jobs
available for a person who “is not likely able to tolerate the
usual stressors encountered in competitive work,” the VE replied
that there were not. The magistrate judge reasoned that the VE’s
answer to this second question meant that Hailey’s mental condition
as described by both Dr. Fletcher and Dr. Russell meant that Hailey
could not find gainful employment and was therefore disabled under
the Act.
We agree with the district court that the Commissioner’s view
better comports with the two doctors’ findings when each report is
examined in total. In addition to the paragraph quoted above, Dr.
Russell’s report stated that Hailey is “likely to be able to
perform work activities on a consistent basis,” “is likely able to
maintain regular attendance in a workplace,” “would likely benefit
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from work duties that are simple and repetitive and of a rote-task
nature,” and had only a moderate limitation in his ability to
“respond appropriately to work pressures in a usual work setting.”
Moreover, while Dr. Fletcher’s report is more skeptical of Hailey’s
ability to function in a competitive work environment, he does
observe that Hailey “might be able to maintain regular attendance
in the workplace or perform work activities on a consistent basis,
but he clearly would need special or additional supervision.”
When weighing the two doctors’ opinions, the ALJ deemed Dr.
Russell’s report to be more credible. In her report, Dr. Russell
noted that Hailey had suffered a foot injury prior to his
examination by Dr. Fletcher and that this injury likely contributed
to Hailey’s lower IQ scores on Dr. Fletcher’s test. Furthermore,
Hailey’s IQ as measured by Dr. Fletcher was below the level
typically accepted by the Navy for enlistment purposes, thus
suggesting that Hailey might have been distracted during Dr.
Fletcher’s examination. As the ALJ has the responsibility to weigh
conflicting evidence and determine witness credibility, Johnson,
434 F.3d at 653, we find that the ALJ’s decision to give Dr.
Russell’s report more weight than Dr. Fletcher’s is supported by
substantial evidence.
The Fourth Circuit has stated that “for a vocational expert’s
opinion to be relevant or helpful, it must be based upon a
consideration of all other evidence in the record and it must be in
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response to proper hypothetical questions which fairly set out all
of claimant’s impairments.” Walker v. Brown, 889 F.2d 47, 50 (4th
Cir. 1989). When the VE was asked whether an individual with all
the characteristics described in Dr. Russell’s report could find
work, the VE concluded that such an individual could find gainful
employment doing light janitorial work. It was only when the VE
was asked to analyze one paragraph from Dr. Russell’s report in
isolation that he opined that such an individual would be unable to
function in a work environment. Thus, the ALJ and the Commission
were faced with a situation where one doctor’s findings led to the
conclusion that Hailey was disabled and another doctor’s findings
led to the conclusion that he was not. The ALJ identified the
reasons why he deemed Dr. Russell’s report more credible than Dr.
Fletcher’s and we believe that finding is supported by substantial
evidence. Consequently, we find that the Commissioner’s decision
to deny benefits under the Social Security Act is supported by
substantial evidence.
III.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
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