John Ernest Wilcutts v. Kenneth S. Apfel ( 1998 )

United States Court of Appeals
For The Eighth Circuit
______________
No. 97-3873
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John Ernest Wilcutts, *
*
Appellant, *
*
v. * Appeal from the United
States
* District Court for the
Western
Kenneth S. Apfel,1 * District of Missouri.
Commissioner of Social Security *
*
Appellee. *
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Submitted: April 16, 1998
Filed: May 11, 1998
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1
Kenneth S. Apfel was confirmed by the Senate and sworn in on September
29, 1997, to serve as Commissioner of Social Security. In accordance with Fed. R.
App. P. 43(c)(1), Kenneth S. Apfel should be substituted for John J. Callahan,
Ph.D., as the defendant in this suit. No further action need be taken to continue this
suit by reason of the last sentence of Section 205 (g) of the Social Security Act, 42
U.S.C. § 405 (g).
Before RICHARD S. ARNOLD,2 Chief Judge, LOKEN, Circuit
Judge, and PRATT3, District Judge.
PRATT, District Judge
John Ernest Wilcutts appeals from the judgment of the
United States District Court for the Western District of
Missouri which upheld the final decision of the
Commissioner that he is not entitled to Supplemental
Security Income benefits based on disability.
At the time of the administrative hearings and
decisions,4 Wilcutts was 51 and 52 years of age
respectively. Wilcutts injured his right shoulder and
elbow while lifting tiles on May 28, 1991. AR at 250. On
August 14, 1991, Wilcutts underwent surgery to repair a
right rotator cuff tear and marked subacromial impingement.
AR at 204. On March 17, 1992, it was noted, after an
examination, that the rotator cuff had pulled loose, at
least partially. AR at 222. On January 26, 1993, Larry
R. Robbins, D.O., a certified disability examiner, saw
Wilcutts on behalf of the State of Nevada Industrial
2
The Hon. Richard S. Arnold stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on April 17,
1998. He has been succeeded by the Hon. Pasco M. Bowman II.
3. The Hon. Robert W. Pratt, United States District Judge for the Southern
District of Iowa, sitting by designation.
4.Wilcutts appeared before an Administrative Law Judge (ALJ) on January 6,
1994. This ALJ issued his decision May 5, 1994. The ALJ’s decision was
reviewed by Administrative Appeals Judges who, on October 7, 1994 remanded the
case for vocational expert testimony. Wilcutts appeared before a second ALJ on
April 4, 1995. The second ALJ issued a Notice Of Decision - Unfavorable on
August 15, 1995. The second ALJ’s decision was affirmed by the Appeals Council
on June 21, 1996.
Insurance System for a rating of the Workers’ Compensation
injury. AR at 266-274. Dr. Robbins opined that Wilcutts’
case could be adjudicated and closed with an award of 14%.
AR at 274. Dr. Robbins offered no opinion about Wilcutts’
ability to work
other than noting the limitation of motion on Wilcutts’
right shoulder. AR at 273-74. Dr. Robbins stated
explicitly that for purposes of his evaluation, Wilcutts’
other complaints were not considered. AR at 273.
Wilcutts also suffers from congenital low back
problems with recurrent lumbosacral sprains. X-rays showed
“a congenital low back situation with very short 12th ribs
and or a transitional S-1 vertebra.” AR at 198, 471.
Wilcutts has complained of cervical pain, (AR at 242),
and right elbow pain, (AR at 246). On April 1, 1982, while
at work, a nail gun exploded rupturing Wilcutts’ right eye.
AR at 332. The eye was removed on April 11, 1982. AR at
313. Thereafter, Wilcutts was fitted with a prosthetic
eye. AR at 46.
On September 21, 1994, Wilcutts underwent a
laparoscopic cholecystectomy. AR at 475. On September 22,
1995, Wilcutts underwent a Hartmann Sigmoid Colectomy
because of perforated diverticulitis in his sigmoid colon.
AR at 558. At the April 1995 hearing, Wilcutts testified
that since the surgery he has experienced diarrhea with a
frequent need to use a bathroom. AR at 85, 95.
Wilcutts receives chiropractic treatment from Robert
L. Cavins, Jr., D.C. On December 28, 1993, Dr. Cavins
opined that Wilcutts should lift no more than ten pounds
“and only in a non-repetitious manner.” AR at 294. Dr.
Cavins opined that Wilcutts could not walk or stand more
than three hours in an eight hour day and only thirty
minutes at a time. Dr. Cavins said that Wilcutts could sit
four hours of an eight hour day and thirty minutes at a
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time. AR at 293. Dr. Cavins said Wilcutts should never be
required to climb or balance and that his reaching and
handling ability was limited. AR at 294.
The record reflects that Wilcutts underwent two
examinations by psychologists. He was seen by Frances J.
Anderson, Psy.D., on April 29, 1993 at the request of
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Disability Determination Services. Dr. Anderson administered
a Wechsler Adult Intelligence Scale-Revised (WAIS-R) on which
Wilcutts achieved a verbal IQ of 86, a performance IQ of 93,
and a full scale IQ of 88. The full scale IQ was, according
to Dr. Anderson, in the low average range of intelligence.
AR at 280. To assist in the determination of Wilcutts’
eligibility for medical assistance and general relief, he was
seen by Kenneth R. MacDonald, Ph.D., who administered a
mental status examination. Wilcutts told Dr. MacDonald: “I
cannot read and can barely write my name.” AR at 305.
During the mental status examination, Wilcutts was unable to
recite the alphabet. AR at 307. Dr. MacDonald concluded his
report:
John Wilcutts is a 51 year old Caucasian
male, who has been married five times.
He is currently living with his wife in
a trailer in Branson. He has a long
history of severe back difficulties
which remain acute. He shows a problem
intellectually and is likely to be in
the Borderline range of intelligence.
He does show a maladaptive life-style.
There is no information to suggest a
psychotic process, although memory
functions for remote events was
disturbed, recent memory appears to be
intact. His daily activities are
restricted due to physical and financial
limitations. Independent living skills
are intact. He has not been able to
obtain substantial or gainful employment
since his last injury involving his
shoulder. Mr. Wilcutts’ history of
physical problems when combined with his
difficulty with reading and writing, as
well as his financial problems,
indicates a persona with a maladaptive
life-style who may benefit from further
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assistance.
AR at 308. Thereafter, Dr. MacDonald diagnosed, on Axis
I, Dysthymia. The Axis II diagnosis was borderline
intellectual functioning and personality disorder not
otherwise specified. Dr. MacDonald opined that the
severity of psychosocial stressors was extreme and that
Wilcutts’ global assessment of functioning was 50,
“serious symptoms.” Id. Dr. MacDonald also completed a
mental residual functional capacity
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form that indicated Wilcutts is markedly limited in his
ability to perform activities within a schedule, maintain
regular attendance, and to be punctual within customary
tolerances. Dr. MacDonald opined that Wilcutts is
moderately limited in his ability to remember locations
and worklike procedures; to understand and remember
detailed instructions; to carry out detailed
instructions; to maintain attention and concentration for
extended periods; to work in coordination with or
proximity to others without being distracted by them; the
ability to make simple work-related decisions; and, to
complete a normal workday and workweek without
interruptions from psychologically based symptoms and to
perform at a consistent pace without an unreasonable
number and length of rest periods. AR at 303.
At the January 1994 hearing, when asked about his
ability to read, Wilcutts responded: “Very little
outside of my name and maybe dog and cat or some small
word.” AR at 46. At the time that the application was
made, an interviewer at the Social Security
Administration wrote: “Appeared to not be able to read
very well if at all.” AR at 142. In a letter dated
August 23, 1995, which was submitted to the Appeals
Council, Wilcutts’ wife stated that he is unable to read
and write. AR at 486.
Both administrative law judges found that Wilcutts,
although unable to do his past relevant work, has the
residual functional capacity for light work. The first
ALJ held that Rules 202.11 and 202.125 of the Medical
5. The first ALJ held that the issue of transferability of skills was irrelevant
since both rules mandate a finding of not disabled. Rule 202.11 provides that an
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Vocational Guidelines (Grid), 20 C.F.R. Pt. 404, Subpt.
P, App.2, mandated a finding of not disabled. The second
ALJ held that Wilcutts possesses skills which are
transferable to light and sedentary work and, therefore,
is not disabled.
individual closely approaching advanced age with a limited education and a work
background of skilled or semi-skilled work with no transferable skills is not
disabled. Rule 202.12 provides that an individual with the same profile except for
the possession of transferable skills is also not disabled.
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DISCUSSION
In Frankl v. Shalala, 47 F.3d 935, 937 (8th Cir.
1995), we stated our standard of review in Social
Security cases:
We will uphold the Secretary’s final
decision if it is supported by
substantial evidence on the record as a
whole. Substantial evidence is that
which a reasonable mind might accept as
adequate to support the
[Commissioner’s] conclusion. In
assessing the substantiality of the
evidence, we must consider evidence
that detracts from the [Commissioner’s]
decision as well as evidence that
supports it. We may not, however,
reverse the [Commissioner’s] decision
merely because substantial evidence
also would have supported an opposite
decision.
(internal quotations and citations
omitted).
(Quoting Smith v. Shalala, 987 F.2d 1371, 1373-74 (8th
Cir. 1993))
In Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir.
1987) the Court discussed the difference between
“substantial evidence” and “substantial evidence on the
record as a whole.” “Substantial evidence on the record
as a whole” wrote then Chief Judge Lay, “requires a more
scrutinizing analysis” than the “substantial evidence”
test. The Court went on to say:
In the review of an administrative
decision, "[t]he substantiality of
evidence must take into account whatever
in the record fairly detracts from its
weight." Universal Camera Corp. v.
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National Labor Relations Bd., 340 U.S.
474, 488, 71 S. Ct. 456, 464, 95 L. Ed.
456 (1951). Thus, the court must also
take into consideration the weight of
the evidence in the record and apply a
balancing test to evidence which is
contradictory. See Steadman v.
Securities and Exchange Commission, 450
U.S. 91, 99, 101 S. Ct. 999, 1006, 67
L. Ed. 2d 69 (1981). It follows that the
only way a reviewing court can determine
if the entire record was taken
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into consideration is for the district
court to evaluate in detail the evidence
it used in making its decision and how
any contradictory evidence balances out.
Gavin v. Heckler, 811 F.2d at 1199. In short, a
reviewing court should neither consider a claim de novo,
nor abdicate its function to carefully analyze the entire record. Brinker
v. Weinberger, 522 F.2d 13, 16 (8th Cir. 1975).
Both administrative law judges found that Wilcutts is unable to return to his past
relevant work. In his decision, the second ALJ recognized that the burden had shifted
to the Commissioner. AR at 24. In so doing, the second ALJ cited Talbott v. Bowen,
821 F.2d 511 (8th Cir. 1987). In Talbott, 821 F.2d at 514-15, Judge Lay wrote:
If the ALJ finds that the claimant cannot return to his past
relevant work, the burden of proof shifts to the
[Commissioner], who then has the duty to establish that the
claimant is not disabled within the meaning of the Act.
Lewis v. Heckler, 808 F.2d 1293, 1297 (8th Cir. 1987);
Tucker v. Heckler, 776 F.2d 793, 795 (8th Cir. 1985).
....
In presenting evidence that a claimant is not disabled, the
[Commissioner] must prove by medical evidence that the
claimant has the residual functional capacity to do other
kinds of work and that there are jobs available in the
national economy that realistically suit the claimant.
O’Leary v. Schweiker, 710 F.2d 1334, 1338 (8th Cir. 1993)
In McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir. 1982)(en banc), the Court wrote
that the most important issue in a disability determination is the issue of residual
functional capacity. The residual functional capacity which must be found, wrote the
Court, is the ability to do the requisite physical acts day in and day out, in the
sometimes competitive and stressful conditions in which real people work in the real
world. Cf. Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir. 1989).
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Wilcutts, while conceding that he has a residual functional capacity for light
work, argues that he should be found disabled because he is unable to read or write.
Wilcutts bases this argument on the testimony of the vocational expert who testified
that if one of the second ALJ’s hypothetical questions were modified to include
illiteracy, the jobs previously identified would not be possible. AR at 110. The
second ALJ, however, did not believe that Wilcutts was illiterate because, among other
reasons, he was able to achieve a verbal IQ score of 86. “This performance is
impossible for an illiterate person,” wrote the second ALJ. AR at 23. The second ALJ
also wrote that the WAIS-R is “a pencil and paper test.” Id. The second ALJ’s finding
that Wilcutts is not illiterate was heavily influenced by the result of the IQ test. We
believe that the second ALJ was mistaken in his view that the WAIS-R tests an
individual’s ability to read and write. The WAIS-R is administered orally. The test is
read to the subject and therefore requires only the ability to comprehend oral questions.
There is one sub-test, the vocabulary, which allows the subject to view a list of words
which he or she is asked to define. The subject, however, need not be able to read the
words which are recited by the examiner as the subject is asked to provide definitions.
There is also a part of the test where the subject manipulates objects. At oral argument,
counsel for the Commissioner did not defend the second ALJ’s statement that the
WAIS-R is proof that Wilcutts is able to read.
The burden of proof was on the Commissioner to come forward with medical
evidence that Wilcutts has the ability to work. The issue of Wilcutts’ illiteracy was
before the Commissioner when he was reviewing the second ALJ’s decision. Wilcutts
had testified at the first hearing that he could not read or write. Dr. MacDonald and the
worker at the Social Security Administration observed that Wilcutts could not read.
Wilcutts’ wife corroborated his testimony that he is unable to read. Finally, the
vocational expert testified that illiteracy would have a significant impact on Wilcutts’
ability to work. All of these factors should have alerted the Commissioner to the need
to establish whether or not Wilcutts is literate. This Court has stated numerous times
that it is the Administrative Law Judge who has the duty to fully and fairly develop the
record, even if a claimant is represented by counsel.
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The Secretary acknowledges that it is her " 'duty to develop
the record fully and fairly, even if ... the claimant is
represented by counsel.' " Boyd v. Sullivan, 960 F.2d 733,
736 (8th Cir.1992) (quoting Warner v. Heckler, 722 F.2d
428, 431 (8th Cir.1983)). This is so because an
administrative hearing is not an adversarial proceeding.
Henrie v. Dept. of Health & Human Serv., 13 F.3d 359, 361
(10th Cir.1993). "[T]he goals of the Secretary and the
advocates should be the same: that deserving claimants who
apply for benefits receive justice."
Battles v. Chater, 36 F.3d 43, 44 (8th Cir. 1994).
We do not believe the evidence in the record is so strong, at this point, to order
an award of benefits. Rather, the case will be remanded to the Commissioner for
testing to settle the question of Wilcutts’ literacy. Tests such as the Wechsler
Individual Achievement Test (WIAT), the Wide Range Achievement Test 3 (WRAT3),
or the Woodcock-Johnson Psychoeducational Battery - Revised: Tests of Achievement
(WJ-R ACH), are designed to measure people’s ability to, among other things, read and
write. Otfried Spreen & Esther Strauss, A Compendium of Neuropsychological Tests,
Administration, Norms, and Commentary 161-166, (2d ed. 1998).
In our opinion, the second ALJ failed to require the Commissioner to meet his
burden of proving that Wilcutts has the ability to read. On remand, the Administrative
Law Judge shall order an examination by a mental health professional who is qualified
to establish how well Wilcutts is able to read and write. Thereafter, it may be
necessary for the Administrative Law Judge to consult a vocational expert to determine
if work exists in significant numbers in the national economy given Wilcutts’ ability to
read and write as well as the other considerations relevant to the fifth step of the
sequential evaluation. 20 C.F.R. § 404. 920.
We remand this case to the District Court with directions to remand the case to
the Commissioner for proceedings consistent with this opinion and for a new
administrative decision.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT
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