Joan M. Porch v. Shirley S. Chater ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 95-4025
___________
Joan M. Porch, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Shirley S. Chater, *
Commissioner of the Social *
Security Administration, *
*
Appellee. *
___________
Submitted: January 15, 1997
Filed: May 23, 1997
___________
Before BEAM, ROSS, and HANSEN, Circuit Judges.
___________
BEAM, Circuit Judge.
Joan M. Porch appeals the district court's affirmance of a denial of
Social Security benefits. Because the record does not contain substantial
evidence to support the finding of the Administrative Law Judge (ALJ), we
reverse and remand for an award of benefits.
I. BACKGROUND
Porch is a fifty-four-year-old woman with degenerative disc disease
and carpal tunnel syndrome. She has a twelfth-grade education and one year
of vocational training as a licensed practical nurse (LPN). She was
employed as an LPN from 1973 until 1988. She began to suffer back pain in
January 1989 and underwent surgery for a herniated disc in March 1989. She
continues to suffer back pain and also suffers from carpal tunnel syndrome.
This case has a long and complicated history. Porch applied for
disability benefits on June 20, 1989, alleging a disability onset date of
January 1989.1 Her application was denied initially and on
reconsideration. She then requested and was granted a hearing before an
administrative law judge. After the hearing, the ALJ found that Porch's
allegations of disabling pain were not credible and denied benefits.
Although he found she could not return to her former employment, he found
there were jobs in the national economy that she could perform such as that
of a nurse who administers insurance physicals. Porch appealed the ALJ's
decision to the Appeals Council.
The Appeals Council first remanded the action to the ALJ because the
audiotape recording of the hearing could not be located. That remand order
was later vacated when the recording was found. The Appeals Council then
denied Porch's request for review. Porch then appealed to the district
court. While that appeal was pending, the Commissioner moved to remand the
action, admitting that the ALJ had failed to properly evaluate Porch's
subjective complaints of pain pursuant to our decision in Polaski
1
Porch continued to meet the earnings requirements until
December 1992 so the issue is whether she was disabled before then.
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v. Heckler, 739 F.2d 1320 (8th Cir. 1984).2 In an order dated December 3,
1992, the district court found that although the Secretary's motion to
remand was not proper under 42 U.S.C. § 405(g),3 a remand was appropriate
because "[a remand] will be more direct than waiting for a full record."
Admin. R. at 273. The district court further noted that this case "has
already been unduly delayed by the workload of the United States Courts and
should not be delayed any further." Id. The action was remanded for
further proceedings.
On May 17, 1993, another hearing was held before the same ALJ. Porch
testified that she suffers from constant, steady pain in her upper and
lower back and additional sharp, shooting pains in her back that occur
three or four times a day. She has numbness in both hands and muscle
spasms in her thumbs. She testified that it is difficult for her to write
and that she can write for about ten minutes. She can lift nothing heavier
than a gallon of milk and often drops things. She can walk only one block.
She also has numbness in her right leg and often falls when her legs "give
out." She testified that she can stand for only twenty to thirty minutes
and can sit for only twenty minutes. She cannot drive, and when riding in
an automobile, must recline with pillows.
2
Polaski requires the fact finder to consider the claimant's
prior work record, observations by third parties and treating and
examining physicians relating to: 1) the claimant's daily
activities; 2) the duration, frequency and intensity of the pain;
3) dosage, effectiveness and side effects of medication; 4)
precipitating and aggravating factors; and 5) functional
restrictions. Polaski, 739 F.2d at 1322.
3
Under 42 U.S.C. § 405(g), the Commissioner is entitled to a
remand on motion and on a showing of good cause only before she
files an answer. Here, she had filed an answer before moving to
remand.
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Porch stated that doctors have recommended surgery for both her back
and hands but she cannot afford it. She currently takes Motrin4 four times
a day for pain and inflammation and Methocarbamol5 for muscle spasms. She
testified that these medications produce side effects including
constipation, upset stomach, and fatigue. She wears a brace on her right
wrist, a brace on her back, and uses a cane. She spends most of her day
lying on the couch with her feet elevated and a heating pad on her back.
Porch's husband also testified at the hearing. He stated that his
wife ordinarily gets up twice during the night because of pain. He stated
that she drops dishes and falls when walking. He testified that she cannot
do laundry, wash dishes, or drive. The record also contains the affidavits
of Porch's daughters, who essentially corroborate the testimony of Porch
and her husband. The daughters stated that their formerly energetic mother
suffers from debilitating pain.
The ALJ called a vocational expert (VE) to testify at the hearing.
He classified Porch's past relevant work as an LPN as heavy, physically
demanding, skilled work. The ALJ asked the VE, in a hypothetical question,
whether a claimant who wore a brace on her wrist, could walk about a block,
could stand for twenty
4
Motrin is a nonsteroidal anti-inflammatory agent. It is
indicated for relief of rheumatoid arthritis, osteoarthritis, and
mild to moderate pain. Physician's Desk Reference 2565 (49th ed.
1995).
5
Methocarbamol is indicated for the relief of discomforts
associated with acute, painful musculoskeletal conditions. Its
mode of action may be related to its sedative properties and it may
act as a central nervous system depressant. Physician's Desk
Reference at 2015.
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minutes, could sit for an hour and took medications that caused the side
effects of an upset stomach and constipation could return to work as an
LPN. The VE stated that a person with those impairments would be unable
to return to an LPN position. He stated, however, that such a claimant
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could perform the jobs of a nurse consultant6 or a cardiac technologist,7
6
A nurse consultant:
advises hospitals, schools of nursing, industrial
organizations, and public health groups on problems
related to nursing activities and health services:
Reviews and suggests changes in nursing organization and
administrative procedures. Analyzes nursing techniques
and recommends modifications. Aids schools in planning
nursing curriculums, and hospitals and public health
nursing services in developing and carrying out staff
education programs. Provides assistance in developing
guides and manuals for specific aspects of nursing
services. Prepares educational materials and assists in
planning and developing health and educational programs
for industrial and community groups. Advises in services
available through community resources. Consults with
nursing groups concerning professional and educational
problems. Prepares or furnishes data for articles and
lectures. Participates in surveys and research studies.
United States Dep't of Labor, Employment and Training Admin.,
Dictionary of Occupational Titles, Vol. 1 § 075.127-014 (4th ed.
1991) (DOT).
7
A cardiopulmonary technologist:
performs diagnostic tests of cardiovascular and pulmonary
systems of patients to aid physician in diagnosis and
treatment of heart, lung and blood vessel disorders:
Prepares patient for test and explains procedures to
obtain cooperation and reassure patient. Conducts
electrocardiogram, phonocardiogram, echocardiogram,
stress testing, and other tests to aid in diagnosis of
cardiovascular system, using variety of specialized
electronic test equipment, recording devices, and
laboratory instruments. Conducts tests of pulmonary
system to aid physician in diagnosis of pulmonary
disorders, using spirometer and other respiratory testing
equipment. Operates multichannel physiologic monitor, as
part of cardiac catheterization team, to measure and
record functions of cardiovascular and pulmonary systems
of patient during cardiac catheterization. Alerts
physician to instrument readings outside normal ranges
during cardiac catheterization procedures. Provides test
results to physician.
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classifying both positions as
DOT § 078.362-030.
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sedentary. On questioning from Porch's attorney, the VE conceded that
neither of these positions could be performed by a person who experienced
tiredness or lack of precision or accuracy as a result of medication or
lack of sleep. He also stated that both of the jobs would require some
charting and writing and that an individual "couldn't attend to the
tiredness . . . by withdrawing from the task [or] . . . to the strength
loss by withdrawing from writing." Admin. R. at 342.
The medical evidence shows that Porch first began to experience back
pain in January 1989. After eight visits to a chiropractor did not
alleviate the pain, she saw an orthopedic surgeon, Dr. Victor Guerrero.
He diagnosed a herniated disc and degenerative disc disease. Porch
underwent surgery on the ruptured disc on March 31, 1989. The surgery
relieved the pain and numbness Porch had been suffering on her left side.
Five weeks or so after the surgery, however, Porch began to suffer pain and
numbness on her right side. A CT scan showed a bulging disc. Her doctor
recommended surgery but Porch had lost her insurance and could not afford
it. In 1989, she was diagnosed with carpal tunnel syndrome. Her most
recent MRI showed no herniated discs but "narrowing of the Secal Sac at the
C6-7 level" and "changes consistent with post-op scarring" in the lumbar
spine. Dr. Barton Clemmons submitted a letter dated July 5, 1990, stating
that Porch has had a disabling condition since 1989 that is consistent with
Section 1.05 of the
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Commissioner's listing of presumptively disabling conditions, 20 C.F.R. Pt.
404, Subpt. P, App. 1 ("the Listings").8
The ALJ stated that he fully credited Porch's subjective complaints
of pain and found her testimony credible and persuasive. He stated that
she had a good work record and that there was ample objective evidence of
underlying medical conditions in the record which could reasonably be
expected to cause the complaints she has. However, his acceptance of her
testimony was limited to finding that "she is unable to sit more than one
hour without change of position" and that her pain medications cause side
effects of constipation and nausea. Admin. R. at 195. The ALJ thus found
Porch was unable to return to her former work as an LPN, but that she had
"marketable skills which were transferable to sedentary jobs which were
within her residual functional capacity," relying on the VE's testimony.
Id. The ALJ discounted the physician's letter stating that Porch had a
disability consistent with a presumptively disabling condition because he
found "[t]he claimant has consistently shown the ability to walk and stand
without significant neurologic deficits; her ability to walk and stand is
limited by pain, not by denervation." Id. at 194. Accordingly, he found
that Porch is not disabled under the Social Security regulations.
8
Section 1.05 of the Listings deals with disorders of the
Spine. Subsection (C) of that section describes "[o]ther
vertebrogenic disorders (e.g., herniated nucleus puplosus, spinal
stenosis) with the following persisting for at least 3 months
despite prescribed therapy and expected to last 12 months" with
both: 1) pain, muscle spasm, and significant limitation of motion
of the spine; and 2) appropriate radicular distribution of
significant motor loss with muscle weakness and sensory and reflex
loss. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.05(C).
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The Appeals Council again affirmed, as did the district court. On
appeal, Porch contends that the Commissioner's decision is not supported
by substantial evidence and that the Commissioner failed to meet her burden
of showing that there are jobs in the national economy that Porch can
perform.
II. DISCUSSION
Our task on appeal is to determine whether the Commissioner's
decision is supported by substantial evidence in the record as a whole.
Siemers v. Shalala, 47 F.3d 299, 301 (8th Cir. 1995). Substantial evidence
is less than a preponderance, but enough that a reasonable mind might find
it adequate to support the conclusion. Oberst v. Shalala, 2 F.3d 249, 250
(8th Cir. 1993). In our review of the record, we consider evidence that
detracts from the decision as well as evidence that supports it. Siemers,
47 F.3d at 301.
Under the Commissioner's regulations, the disability determination
involves a step-by-step analysis of any current work activity, the severity
of the claimant's impairments, the claimant's residual functional capacity
and age, education and work experience. 20 C.F.R. § 404.1520(a); Braswell
v. Heckler, 733 F.2d 531, 533 (8th Cir. 1984). If the claimant suffers
from an impairment that is included in the Listings or is equal to such an
impairment, the claimant will be determined disabled without considering
age, education, or work experience. Braswell, 733 F.2d at 533. If the
Commissioner finds that the claimant does not meet the Listings but is
nevertheless unable to perform his or her past work, the Commissioner must
determine whether there is any substantial gainful activity in the national
economy that the claimant can perform. Smith v. Shalala, 987 F.2d 1371,
1373 (8th Cir. 1993). The Commissioner has the burden to show that the
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claimant can perform other work. Smith v. Shalala, 46 F.3d 45, 47 (8th
Cir. 1995). Ordinarily, the Commissioner can rely on the testimony of a
vocational expert to satisfy this burden. Long v. Chater, 108 F.3d 185,
188 (8th Cir. 1997).
On review of the record in this case, we find the ALJ's decision is
not supported by substantial evidence for several reasons. First, the
Commissioner did not meet her burden of showing that there are other jobs
in the economy that Porch can perform. The VE testified that Porch could
perform jobs such as those of a nurse consultant or a cardiac technologist.
The expert identified each of those jobs with reference to the Dictionary
of Occupational Titles (DOT), a Labor Department guide to job ability
levels that has been approved for use in Social Security cases. 20 C.F.R.
§ 1566(d)(1). The VE focused on the physical demands and strength ratings
of the jobs as found in the DOT in forming his opinion that Porch could do
those jobs. However, in addition to physical demands and strength ratings,
the DOT also sets forth the "General Educational Development" levels
required for each job. See United States Dep't of Labor, Employment and
Training Admin., Dictionary of Occupational Titles, Vol. II, Appendix C at
1009 (4th ed. 1991). These are set forth on a six-level scale in each of
three areas: 1) reasoning development; 2) mathematical development; and 3)
language development. Id. at 1010-1011.
Both of the jobs that the VE testified Porch could perform require
more general educational development than Porch's past work as an LPN
required. Compare id. at 60 & 67 (GED requirements for nurse consultant
and cardiac technologist) with id. at 72 (GED requirements for licensed
practical nurse). The position of nurse consultant requires a higher level
of development in reasoning, mathematical and language areas than the LPN
position does. Id. at
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60. The position of cardiac technologist requires a higher level of
mathematical development than the LPN position. Id. at 67. Thus, the VE's
testimony that Porch could be employed in these positions given her level
of education conflicts with the DOT. Under the DOT's classification of the
jobs, neither of the positions is compatible with Porch's ability. When
expert testimony conflicts with the DOT, and the DOT classifications are
not rebutted, the DOT controls. Montgomery v. Chater, 69 F.3d 273, 276
(8th Cir. 1995). Accordingly, the VE's testimony does not constitute
substantial evidence with which the Commissioner can meet her burden of
proving there are other jobs in the national economy that Porch can
perform. See id.
Next, although the ALJ stated that he credited Porch's testimony
regarding the side effects of her medications, he did not actually do so.
This action was remanded specifically for the ALJ to consider the side
effects of Porch's medications. Indeed, the ALJ acknowledged this mandate
9
at the hearing. He nevertheless ignored the significant side effects of
one of Porch's medications, while at the same time claiming that he was
crediting Porch's testimony. A noted side effect of the muscle relaxer
Methocarbamol is drowsiness. Physician's Desk Reference 2015 (49th ed.
1995). Porch testified that she was tired as a result of her medication.
Yet the ALJ did not include this side effect in his hypothetical question
to the VE. The VE testified, however, on questioning from Porch's
attorney, that there would be no jobs in the national economy that a person
with Porch's disabilities, with the addition of drowsiness or fatigue,
could perform.
9
At the second hearing, the ALJ stated: "In the remand order,
they wanted me to do something about the [Polaski] case, and also
they requested we do something more about the medication that the
claimant was taking, make it more defined, as I understand." Admin.
R. at 305-06.
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Similarly, though professing to credit Porch's subjective complaints
of pain, the ALJ failed to fully credit those complaints. Porch testified
that she could sit for no more than twenty minutes. The ALJ apparently
disbelieved that testimony, yet gave no reason for doing so. He stated in
his hypothetical question to the VE that she could sit for one hour. There
is no evidence to support that assertion.
An ALJ may discount a claimant's subjective complaints only if there
are inconsistencies in the record as a whole. See Johnson v. Heckler, 108
F.3d 942, 947 (8th Cir. 1997). Also, testimony from a vocational expert
constitutes substantial evidence only when based on a properly phrased
hypothetical question that captures the concrete consequences of a
claimant's deficiencies. Pickney v. Chater, 96 F.3d 294, 297 (8th Cir.
1996). Thus, the ALJ's hypothetical question must include those
impairments that are substantially supported by the record as a whole. Id.
at 296. Because the ALJ credited an opinion by the VE that was based on
a faulty hypothetical including absence of significant side effects of
medication and an unsupported assertion that Porch could sit for an hour,
the VE's testimony that there are other jobs in the economy that Porch can
perform cannot constitute substantial evidence.10
10
The ALJ also discredited medical evidence that Porch meets
the Listings for a disorder of the spine by asserting that Porch's
loss of motor control is due to pain, not denervation. There is
nothing in the record to support that conclusion. Porch testified
to significant motor loss, including numbness and falling down. In
light of our finding that there is no substantial evidence in other
respects, however, we need not consider whether Porch indeed meets
the Listings.
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III. CONCLUSION
Given the ALJ's finding that Porch's testimony should be credited,
the VE's testimony that no jobs exist in the national economy for a person
with Porch's disabilities plus medication effects, and mindful of the
significant delay Porch has already encountered, we find that substantial
evidence in this record supports a finding that Porch is disabled.
Consequently, we reverse and instruct the district court to remand to the
Commissioner for an award of benefits. See Andler v. Chater, 100 F.3d
1389, 1394 (8th Cir. 1996) (if the record contains substantial evidence
supporting a finding of disability, we may reverse and remand for entry of
an order granting benefits).
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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