Joe Pickney v. Shirley S. Chater ( 1996 )

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No. 95-3595
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Joe Pickney, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Arkansas.
Shirley S. Chater, *
Commissioner, Social Security *
Administration, *
*
Appellee. *
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Submitted: April 11, 1996
Filed: September 17, 1996
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Before BEAM and MURPHY, Circuit Judges, and NANGLE,* District Judge.
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BEAM, Circuit Judge.
Joe Pickney appeals the denial of Social Security benefits. Because
the Administrative Law Judge (ALJ) failed to include Pickney's mental
impairments in the hypothetical question posed to the vocational expert,
we reverse and remand.
I. BACKGROUND
Pickney is forty-eight years old. He has a tenth grade education and
was previously employed as a truck driver, a carpenter's helper and a
machinery driver at a rock quarry. He filed this application for Social
Security benefits on March 11, 1991, alleging a disability onset date of
August 10, 1988. On that date, Pickney was involved in a truck accident
and suffered
*The Honorable JOHN F. NANGLE, United States District
Judge for the Eastern District of Missouri, sitting by
designation.
multiple injuries, including a scalp laceration and underlying skull
fracture of the frontal bone, a frontobasilar skull fracture, splenic
rupture, meningitis due to a cerebrospinal fluid leak and a fibular
fracture. As a result, he suffers from vision and knee problems. He is
also sensitive to exposure to the sun and has memory problems.
After his application for benefits was denied initially and on
reconsideration, Pickney appealed and a hearing was held before an ALJ.
At the hearing, Pickney testified that he has very little peripheral
vision, memory problems and pain in his knee. Pickney's wife corroborated
his testimony. A vocational expert then testified that Pickney could not
return to his former work. In response to a hypothetical question posed
1
by the ALJ, the vocational expert stated that there are unskilled jobs in
the national economy that a man with Pickney's experience and limitations
(lack of peripheral vision and sun sensitivity) could perform. At the
close of the hearing, the ALJ kept the record open for submission of
additional evidence. Pickney submitted reports of examinations by a
psychologist and an internist.
In his report, the psychologist, Dr. Russell Dixon, noted that
Pickney has a full scale I.Q. on the Wechsler Adult Intelligence Scale-
Revised (WAIS-R) of 78, a verbal I.Q. of 82 and a performance I.Q. of 76,
which puts him in the range of "Borderline Intellectual
1
The hypothetical question was:
Let me ask you this--assuming that I find that he doesn't
actually experience any mental limitations other than--
well, the hypothetical didn't include any so let me ask
you to assume that I would find that he didn't experience
any mental limitations and that the only restrictions he
would have would be those related to his age and
education. What period of vocational adjustment, if any,
would be necessary then?
Administrative Transcript at 65.
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Functioning." Administrative Transcript at 275. Dr. Dixon also found
"[n]europsychological test performance compatible with the residuals of a
closed head injury--level of impairment--moderate--adaptive abilities are
significantly compromised." Id. at 277. He further found "simple problem
solving was mildly impaired," "two-step problem solving was severely
impaired," "slowing of right hand motor speed," "abstract reasoning . . .
in the impaired range," "spatial problem solving . . . in the impaired
range," and "moderate generalized neuropsychological dysfunction in an
individual with probable premorbid Borderline Intellectual Functioning."
Id. at 275-77.
Dr. John Ashley, an internist, noted that Pickney's primary problem
is "the loss of useable vision bilaterally, which is not due to injury to
the eyeballs themselves, but is due to brain damage secondary to the
fracture and possibly to the meningitis and small brain abscess, which
developed following the injury." Id. at 280. He also noted that Pickney
experiences "considerable difficulty in thinking and in acting as a result
of his brain injury." Id. Dr. Ashley's diagnosis included "mild dementia,
secondary to brain damage, with memory loss, confusion, difficulty with
speech . . . [and] incoordination in anything involving balance." Id. at
281.
The ALJ considered these reports but found "[t]he claimant's
borderline functioning has resulted in only a slight restriction of
activities of daily living, slight difficulties in maintaining social
functioning with often deficiencies of concentration and never any episodes
of deterioration or decompensation in work or work-like settings."2 Id.
2
The special procedures for mental impairment claims also
require either the ALJ or a psychiatrist to complete a Psychiatric
Review Technique Form (PRTF). Pratt v. Sullivan, 956 F.2d 830, 834
(8th Cir. 1992). Here, the ALJ completed the PRTF and found
evidence of Organic Mental Disorder and Mental Retardation and
Autism. On making these findings the ALJ was required to complete
a functional limitation checklist, or "B" criteria of the listings,
for each of those mental disorders. See generally Pratt, 956 F.2d
at 834 n.7. His findings correspond with those "B" criteria. The
ALJ essentially found that although Pickney has evidence of the
disorders, his limitations were not of listing-level severity.
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at 18. He noted:
This is a different inquiry than whether the mental limitations
should have been posed to the vocational expert.
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[w]hile the undersigned recognizes that the hypothec [sic]
directed to the vocational expert did not specifically include
limitations in detailed/complex work (which is based on the
claimant's borderline IQ), the undersigned recognizes the
vocational expert testified the jobs identified were unskilled,
based on an assumption of a head injury. Thus, it appears
these additional limitations were assumed by the vocational
expert.
Id. at 19. Accordingly, the ALJ found that Pickney retains the residual
functional capacity to perform jobs that exist in significant numbers in
the national economy.
Pickney appealed to the district court and the district court
affirmed, noting "substantial evidence in the record as a whole supports
the ALJ's conclusion that plaintiff did not meet or equal listing 12.02
(organic mental disorder) or 12.05 (mental retardation or autism)."
Pickney v. Chater, No. J-C-93-423, Memorandum and Order at 7 (E.D. Mo.
Sept. 28, 1995). Additionally, the district court found that "the
hypothetical question posed to the vocational expert properly included all
impairments that were supported by substantial evidence, and excluded
plaintiff's other alleged impairments." Id. at 9. On appeal, Pickney
asserts error in the failure of the ALJ to pose a hypothetical to the
vocational expert that included Pickney's mental impairments.
II. DISCUSSION
We must affirm the decision of the ALJ if it is supported by
substantial evidence in the record as a whole. Smith v. Shalala,
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31 F.3d 715, 717 (8th Cir. 1994). Substantial evidence is less than a
preponderance, but enough so that a reasonable mind might find it adequate
to support the conclusion. Oberst v. Shalala, 2 F.3d 249, 250 (8th Cir.
1993). The testimony of a vocational expert is required when a claimant
has satisfied his initial burden of showing that he is incapable of
performing his past relevant work. Johnston v. Shalala, 42 F.3d 448, 452
(8th Cir. 1994).
Testimony from a vocational expert constitutes substantial evidence
only when based on a properly phrased hypothetical question. Cruze v.
Chater, 85 F.3d 1320, 1323 (8th Cir. 1996) When a hypothetical question
does not encompass all relevant impairments, the vocational expert's
testimony does not constitute substantial evidence. Hinchey v. Shalala,
29 F.3d 428, 432 (8th Cir. 1994). Thus, the ALJ's hypothetical question
must include those impairments that the ALJ finds are substantially
supported by the record as a whole. See Stout v. Shalala, 988 F.2d 853,
855 (8th Cir. 1993).
In this case, the ALJ acknowledged that Pickney has mental
impairments and that finding is supported by objective evidence--the I.Q.
scores. The ALJ did not merely fail to mention the mental impairment, he
expressly directed the vocational expert to assume that Pickney had no
mental impairments. We disagree that the vocational expert could either
assume that Pickney had mental impairments because of his head injury or
that his mental impairments were irrelevant for performance of unskilled
jobs.
That Pickney's Borderline Intellectual Functioning was not of
listing-level severity does not alter our conclusion. A claimant with a
mental disorder of listing-level severity would be entitled to benefits on
that basis alone. See Pratt v. Sullivan, 956 F.2d 830, 835 n.11 (8th Cir.
1992). That is not the issue here, however. It has long been the rule in
this circuit that a hypothetical question posed to an ALJ must contain all
of
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claimant's impairments that are supported by the record. See Ledoux v.
Schweiker, 732 F.2d 1385, 1388 (8th Cir. 1984). A hypothetical question
posed to a vocational expert must capture the concrete consequences of
claimant's deficiencies. See, e.g., Roe v. Chater, 1996 WL 447738, *2 n.2
(8th Cir. Aug. 9, 1996) (the hypothetical stated: "history of bipolar
affective disorder, low average intelligence, developmental dyslexia,
history of conversion reaction . . . able to do more than simple, routine,
repetitive work, not relying on written instruction or on written matter,
and not requiring constant, close supervision to detail" ). Pickney's
Borderline Intellectual Functioning is supported by the record and he was
entitled to have the vocational expert consider this along with Pickney's
other impairments.3
III. CONCLUSION
For the reasons stated above, we reverse and instruct the district
court to remand to the Commissioner for proceedings consistent with this
opinion.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
3
It is of no consequence whether the Borderline Intellectual
Functioning pre-dated the accident or not--the vocational expert
still had to consider it in conjunction with Pickney's other
impairments. The fact that the reports were received in evidence
after the hearing is similarly of no consequence since the ALJ
could have posed a proper hypothetical to the vocational expert by
way of interrogatory or could have reconvened the hearing.
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