Michael Morrison v. Kenneth Apfel ( 1998 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 97-3865MN
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Michael J. Morrison, *
*
Appellant, *
*
v. * On Appeal from the United
* States District Court for the
* District of Minnesota.
Kenneth S. Apfel, Commissioner *
of Social Security, *
*
*
*
Appellee. *
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Submitted: May 14, 1998
Filed: July 17, 1998
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Before RICHARD S. ARNOLD, JOHN R. GIBSON, and FAGG, Circuit Judges.
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RICHARD S. ARNOLD, Circuit Judge.
Michael J. Morrison appeals the District Court’s grant of summary judgment
affirming the Social Security Commissioner’s decision to deny Morrison’s application
for disability insurance benefits. We reverse and remand for further proceedings by the
Social Security Commissioner.
I.
On December 2, 1993, Michael Morrison filed an application with the Social
Security Administration for a period of disability and disability insurance benefits,
pursuant to 42 U.S.C. §§ 416(i), 423 (1994). After his application was denied initially
and on reconsideration, he requested and received a hearing. Morrison testified before
an administrative law judge (ALJ) on September 26, 1994. James W. Berglie, a
vocational expert, also testified at the hearing.
The evidence from Morrison’s doctors produced at the administrative hearing
showed that Morrison suffers from “progressive degenerative arthritis” which causes
multiple joint problems. Tr. at 391. At various times, the arthritis has caused him pain
in his lower back, knees, hips, hands, ankles, and shoulders. Tr. at 304, 308, 311, 315,
356. Between 1986 and 1990, Morrison underwent arthroscopic surgery several times
on his knees for problems related to his arthritis. Tr. at 315. Morrison testified at the
hearing that he could not sit for more than ten or fifteen minutes at a time; he cannot
stand for more than fifteen minutes at a time; he cannot walk for more than 200 feet at
one time; he cannot walk without a cane; and he cannot lift and carry more than ten
pounds on a regular basis. Tr. at 63, 66, 69, 71. Some of the medication Morrison
takes for pain and inflammation caused blurred vision for ten to fifteen minutes and
caused some diarrhea, which Morrison alleviates by drinking milk. Tr. 55-56.
Morrison also produced evidence at the hearing that on March 25, 1993, a doctor with
the Department of Veterans Affairs (VA) conducted an extensive medical examination
on him. The VA doctor determined that because of his medical problems, Morrison was
“unable to obtain and maintain gainful employment” and was entitled to a veteran’s
pension as of May 18, 1992. Tr. at 356.
The evidence at the hearing also revealed that Morrison is obese and has
struggled with weight problems for years. In March 1993, a few months before he filed
for disability benefits, Morrison weighed approximately 330 pounds and stood at six
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feet, one-and-a-half inches tall. Tr. at 359. Dr. Lee A. Cristoferson, one of Morrison’s
doctors, remarked in April 1993 that Morrison’s weight was his biggest problem, and
that Morrison’s obesity had caused most of the difficulties in his back, knees, and lower
extremities. Tr. at 391. Cristoferson prescribed an exercise program for Morrison in
early 1992, but Morrison, citing time and financial constraints, declined to participate.
Tr. at 316. In May 1987, when he weighed 324 pounds, Morrison underwent
gastroplasty surgery for his obesity, and subsequently lost 126 pounds. Tr. at 324.
However, he later gained the weight back.
From 1988 to 1991, Morrison worked as a chef in a restaurant, a hotel, and a
college cafeteria, but he stopped working in April 1991. Tr. at 38-39, 291. At the
hearing, the ALJ questioned James Berglie, the vocational expert, about the possible
jobs Morrison could take, given his functional limitations. The ALJ examined Berglie
using hypothetical questions, asking Berglie what type of work Morrison could perform
given the alleged standing, sitting, and walking limitations caused by his arthritis, and
given Morrison’s skills and training. Tr. at 99-102. The ALJ did not mention
Morrison’s obesity in the questions he posed to Berglie. Berglie responded that, given
Morrison’s alleged functional limitations, he could perform work as a cashier, a gate
attendant, a telemarketer, a phone dispatcher, a receptionist, and possibly as a factory
worker in some capacity. Berglie also stated that thousands of these types of jobs exist
in the regional economy in North Dakota, South Dakota, and Minnesota. Tr. at 101,
103.
In a decision filed on June 20, 1995, the ALJ denied Morrison’s application for
disability insurance benefits and held that he had the capacity to work. The ALJ’s
decision reviewed Morrison’s medical history and the statements of Dr. Cristoferson
and Dr. Joseph Sleckman, another of Morrison’s doctors. It also reviewed Morrison’s
work history and the testimony of the vocational expert. While the ALJ found that
Morrison had some “severe” impairments, he also found that through March 31, 1993,
the date he was last insured for disability insurance purposes, Morrison “was able to
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perform the light and sedentary jobs identified by the vocational expert in response to
the hypothetical situation.” Appellant’s Add. at 33. Notably, the ALJ never addressed
the report by the VA doctor that Morrison could not work and was entitled to a
government pension.
Morrison filed a timely request for review of the decision, and the Appeals
Council denied the review of the ALJ’s decision on July 17, 1996. Appellant’s Add.
at 36. Morrison then filed a complaint in the District Court. The Social Security
Commissioner and Morrison both filed motions for summary judgment, with the
Commissioner asking the District Court to affirm the ALJ’s decision, and Morrison
asking the Court to reverse or remand the case for further proceedings. On August 20,
1997, the District Court, adopting the report and recommendation of a magistrate judge,
denied Morrison’s motion and granted summary judgment in favor of the Commissioner.
Morrison now appeals.
II.
We hold that the ALJ erred in two respects. First, in his decision, the ALJ should
have addressed the determination by the VA that Morrison is permanently and totally
disabled. It is true that “the ALJ does not have to discuss every piece of evidence
presented . . ..” Miller v. Shalala, 8 F.3d 611, 613 (8th Cir. 1993). It is also true that
a disability determination by the VA is not binding on an ALJ considering a Social
Security applicant’s claim for disability benefits. See Jenkins v. Chater, 76 F.3d 231,
233 (8th Cir. 1996). We think, however, that the VA finding was important enough to
deserve explicit attention. We agree with other courts that findings of disability by other
federal agencies, even though they are not binding on an ALJ, are entitled to some
weight and must be considered in the ALJ’s decision. See Wilkins v. Callahan, 127
F.3d 1260, 1262 (10th Cir. 1997); Baca v. Department of Health and Human Services,
5 F.3d 476, 480 (10th Cir. 1993); Fowler v. Califano, 596 F.2d 600, 603 (3d Cir. 1979).
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It may be, as the Commissioner suggests, that the ALJ’s failure to address the VA
findings constituted an “implicit rejection” of the finding of disability by the VA.
Appellee’s Br. at 24. Nonetheless, an extensive physical examination documenting
Morrison’s medical problems, followed by a finding of a permanent and total disability
by another government agency, all of which occupies some thirty pages in the record,
merits more than simply an implicit rejection. If the ALJ was going to reject the VA’s
finding, reasons should have been given, to enable a reasoned review by the courts. We
are fortified in this conclusion by the fact that the Social Security Administration has
given this very instruction to its adjudicators. A 1992 memorandum from the Social
Security Administration’s Chief Administrative Law Judge to the Office of Hearings and
Appeals field personnel reminded “all ALJs and decision writers that even though
another agency’s determination that a claimant is disabled is not binding on SSA . . .,
the ALJ must evaluate it as any other piece of evidence, and address it in the decision.”
Memorandum, Social Security Administration Office of Hearings and Appeals (Oct. 2,
1992), at 3 (emphasis added).
We also hold that the ALJ erred in failing to mention obesity in the hypothetical
questions he posed to James Berglie, the vocational expert. When an ALJ poses
hypothetical questions to a vocational expert to determine the availability of other work,
the ALJ “must precisely set out all of the claimant’s impairments.” O’Leary v.
Schweiker, 710 F.2d 1334, 1343 (8th Cir. 1983). The ALJ did include Morrison’s
alleged functional limitations in the questions he posed to Berglie, including Morrison’s
need of a cane for walking, his inability to sit or stand in place for more than fifteen
minutes at a time, his inability to walk more than 200 feet at a time, the problems he had
climbing stairs, and the fact that his ankles often swelled. Tr. 100-01. We believe,
however, that Morrison’s obesity should have also been included in the hypothetical
questions. As the Commissioner notes in his brief, Dr. Cristoferson, Morrison’s treating
physician, identified obesity as Morrison’s “biggest problem” and noted that Morrison
had been “fighting [his weight problem] for years.” Tr. 391. While Morrison’s weight
does not meet the listing level at which he would be automatically
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disabled by his obesity, at the time of the hearing, he was within sixteen pounds of
meeting the listing. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 (1997). Given Morrison’s
history with weight problems and the identification of obesity as a major problem by
Morrison’s doctor, obesity may have been a legally relevant factor that the expert could
have used in determining whether other work was available for Morrison. We do not
believe that a 200-pound man with Morrison’s exertional impairments would be
regarded as indistinguishable, for disability purposes, from a 330-pound man with these
impairments. At any rate, if an expert is going to reach such a counterintuitive
conclusion, we think he should be asked to explain it.
The ALJ failed to address the VA report in his findings, and he did not include
Morrison’s pronounced obesity in the questions he posed to the vocational expert. We
therefore reverse the judgment and remand this case to the District Court, with
directions to that Court to remand to the Social Security Administration for further
proceedings consistent with this opinion.
It is so ordered.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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