Robert Tate v. Kenneth Apfel ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-2058
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ROBERT TATE, *
*
Plaintiff-Appellant, *
* Appeal from the United States District
* Court for the Eastern District of
* Arkansas.
v. *
*
KENNETH APFEL, Commissioner, *
Social Security Administration, *
*
Defendant-Appellee. *
___________
Submitted: November 20, 1998
Filed: February 9, 1999
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Before RICHARD S. ARNOLD, FAGG, and HALL,1 Circuit Judges.
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HALL, Circuit Judge.
Robert Tate appeals the district court's affirmance of the Administrative
Law Judge's ("ALJ") decision denying his request for disability insurance benefits
and supplemental security income. The district court had jurisdiction to review the
final decision of the Commissioner of the Social Security Administration pursuant to
1
The Honorable Cynthia Holcomb Hall, United States Circuit Judge for the
Ninth Circuit, sitting by designation.
42 U.S.C. § 405(g). We have jurisdiction to review the decision of the district court
pursuant to 28 U.S.C. § 1291, and we reverse.
I.
Robert Tate applied for disability benefits based on his seizures, high blood
pressure, and nervousness. The ALJ found that while Tate suffered from seizures,
hypertension, nervousness, anxiety, depression, and headaches, he retained the
residual functional capacity to perform unskilled, light work. On appeal, Tate focuses
his challenges to the ALJ's ruling that he did not suffer from epilepsy or severe
seizures.
Tate had previously applied for disability benefits because of his seizures. An
ALJ rejected his application on November 22, 1991, in part because of evidence in
the record that Tate did not lose consciousness during his seizures, the seizures
occurred less than once a month despite below-therapeutic levels of convulsive
medications in Tate's bloodstream, the seizures did not involve psychomotor
movements, and because the seizures may have been related to drug withdrawal.
In the instant case, the ALJ expressly considered all medical evidence,
regardless of its date, to the extent that it was relevant in evaluating Tate's current
disability status.2 Records entered into evidence from Tate's prior disability
proceedings established that Tate experienced a grand mal seizure3 on November 2,
1989, while hospitalized for a depressive illness under the care of Dr. Randall
2
It was proper for the ALJ to consider the evidence from the prior
administrative hearing in this second, separate proceeding. See Burks-Marshall v.
Shalala, 7 F.3d 1346, 1348 n.6 (8th Cir. 1993) ("Evidence from the record of a prior
claim may be relevant to a claim of disability with a later onset date.").
3
We have previously explained that "[a] grand mal seizure is characterized by
a loss of consciousness with generalized tonic-clonic seizures. A tonic-clonic seizure
is a spasm consisting of a convulsive twitching of the muscles." Flanery v. Chater,
112 F.3d 346, 347 n.2 (8th Cir. 1997) (citation omitted).
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Moskovitz. An electroencephalogram ("EEG")4 conducted on November 6, 1989,
apparently did not reveal any abnormalities in Tate's brain functioning. However, an
EEG conducted under sleep-deprived conditions on November 7, 1989, was
characterized as "abnormal." Dr. Evelyn Ogle, the electroencephalographer,
indicated that the second EEG could be consistent with Tate's recent seizure episode,
but noted that the "underlying pathology cannot be determined by the EEG alone."
A neurologist, Dr. Srinath Bellur, first prescribed Dilantin, an anti-convulsant, to
control Tate's seizures on November 20, 1989. Tate apparently suffered a second
seizure on December 11, 1989.
Records from Dr. Chanh Van Huynh, Tate's treating physician, indicate that
Tate reported having six seizures from October, 1989, through October 18, 1990. Dr.
Van Huynh reported observing one of Tate's seizures, which involved a loss of
consciousness, disorientation, myalgia,5 and tiredness that would last up to six hours.
Dr. Van Huynh increased Tate's Dilantin levels in response to the below-therapeutic
levels of the drug in Tate's blood stream and additional reports of seizures.
On January 4, 1991, Dr. David Loe, a psychologist, reported that Tate "likely
exaggerates his symptoms for secondary gain." Dr. Loe also stated that Tate's wife
described Tate's seizures as not involving any loss of consciousness, and not
including any psychomotor reactions. On August 31, 1991, Dr. Gerald Fowler, a
psychiatrist, evaluated Tate's condition. Among other findings, Dr. Fowler noted that
medications such as Depakote and Tegretal might be able to better control Tate's
seizure disorder, but that Tate's current financial situation precluded such treatments.
The ALJ in the prior disability proceeding rejected Dr. Fowler's opinion in its
entirety, in large part because "Dr. Fowler invariably finds social security claimants
to be disabled." Another examining psychiatrist, Dr. B. Eliot Cole, suggested on
4
An EEG "measures the electrical conduction capacity of the brain." Delrosa
v. Sullivan, 922 F.2d 480, 483 n.3 (8th Cir. 1991)
5
Myalgia is a term that refers to muscular pain. See Stedman's Medical
Dictionary 1009 (25th ed. 1990).
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January 9, 1992, that more modern anti-convulsants instead of Dilantin should be
considered to control Tate's seizures.
Additional medical records and reports were submitted at Tate's second
disability hearing, which is the subject of this appeal. Dr. Charles Swingle, a treating
physician, submitted a report dated December 20, 1993, explaining that Tate suffered
from approximately two grand mal seizures a week. In addition, a neurologist, Dr.
Michael Deshazo, examined Tate in January of 1994, apparently at the request of the
Social Security Administration. Dr. Deshazo reported on January 24, 1994, that Tate
suffered from a seizure disorder based on his history, but noted that no real workup
had been conducted to assess the severity of Tate's condition since Tate's abnormal
EEG in 1989. Dr. Deshazo found at that time that Tate's "seizures are apparently
uncontrolled," and opined that Tate "could benefit from a more comprehensive
evaluation of his epilepsy." Dr. Deshazo also stated that Tate may benefit from new
medications or an adjustment in his current medications. An additional note from Dr.
Deshazo on January 25, 1994, stated that Tate's Dilantin and Phenobarbital levels
were still below the therapeutic range, despite an increase in his Dilantin dosage, and
suggested that increasing these medications to their therapeutic level "might also be
of help in controlling [Tate's] . . . seizure disorder."
Tate himself testified at the second administrative hearing. Tate explained that
he was thirty-six years old, and that he had left college after three years because of
financial troubles. Tate claimed that his seizures had increased in frequency since his
last administrative hearing, and that he now suffered from two to three seizures a
week, which were not controlled by his medications. He also stated that he suffered
from a nervous disorder with depression, and that he became nervous around crowds.
Tate's daily activities consisted of waking up at 7:00 a.m. and going to his mother's
house with his children. His mother, Linda Tate, would look after him and he would
assist her with the dishes, making the bed, and vacuuming. While Tate stated that he
watched television, he did not read because he could not concentrate. Tate testified
that he had no problems relating to family members and neighbors. Tate would only
drive once every two weeks because of a fear that he would have a seizure and get
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into an accident. Mr. Tate went to sleep each night at around 9:00 p.m. In addition
to his testimony, Tate's disability report also emphasized that he suffered from
hypertension and constant headaches.
Tate's wife, Barbara Tate, also testified at the hearing. Mrs. Tate submitted a
statement that as of December 18, 1993, she had witnessed Tate have thirty-five
seizures, observing two in the previous month. Twenty-five of these seizures had
occurred during the past year. Mrs. Tate testified that Tate would be unconscious or
unaware of what was going on around him for approximately fifteen or twenty
minutes following a seizure, and that it would take up to two-and-a-half hours for
Tate to fully recover from an episode. Mrs. Tate further verified that Tate regularly
took his prescribed medication.
Tate's friend, Orval Shockley, also testified at the hearing, and filed a report on
December 16, 1993, stating that he had observed Tate have six seizures in 1993. In
addition, Tate's mother filed a written statement on December 18, 1993, averring that
she had observed her son have a total of thirty seizures, the last two occurring in
November, 1993. She estimated that Tate had suffered between nineteen and twenty
seizures in the past year.
The ALJ found that Tate satisfied the requirements of the Social Security
disability insured status and that he had not engaged in substantial gainful activity
since the alleged onset date. But while he found that Tate suffered from seizures,
hypertension, nervousness, anxiety, depression, and headaches, he found that these
ailments did not meet or equal a listed impairment under relevant Social Security
regulations. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 (1998). In reaching this
decision, the ALJ generally discounted the credibility of Tate's family members and
friend because their testimony was "based upon an uncritical acceptance of the
claimant's complaints; and, to some degree is motivated by the desire to see [Tate] .
. . obtain benefits." The ALJ also rejected Tate's subjective reports of pain because
of a lack of objective medical findings, Tate's poor work record, Tate's daily
activities, the fact that Tate could control his seizures with medication, the fact that
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Tate has not sought out medical treatment, and a finding that Tate exaggerated his
symptoms.
The ALJ found that while Tate could not perform his past relevant work, which
included positions as a laborer, warehouse worker, route driver/loader and unloader,
truck driver, and security guard, Tate retained the residual capacity to perform
unskilled, light work. The ALJ relied on the testimony of a vocational expert, Dr.
Vance Sales, to reach this conclusion.
The appeals council denied Tate's request for review on October 9, 1996, and
the district court affirmed on March 31, 1998.
II.
We must affirm the ALJ's decision if it is "supported by substantial evidence
on the record as a whole." See Cox v. Apfel, 160 F.3d 1203, 1206 (8th Cir. 1998).
"Substantial evidence is less than a preponderance, but enough that a reasonable mind
might accept it as adequate to support a decision." Id. at 1206-1207. Importantly, in
conducting our review of the record, "we also take into account whatever in the
record fairly detracts from [the ALJ's] . . . decision." Id. at 1207. "We may not
reverse the Commissioner merely because substantial evidence exists supporting a
different outcome." Black v. Apfel, 143 F.3d 383, 385 (8th Cir. 1998).
The Social Security Administration has promulgated a sequential process to
determine whether a claimant qualifies for disability benefits. See 20 C.F.R. §
404.1520(a) (1998); Cox, 160 F.3d at 1206. If the claimant suffers from impairments
that meet or equal a listed impairment in the regulations, the claimant is
presumptively "disabled without regard to age, education, and work experience."
Cox, 160 F.3d at 1206.
Tate claims that he satisfies the requirements of the listed impairment of
epilepsy. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 11.02 (1998).6 The ALJ found
6
Section 11.02 states:
Epilepsy–major motor seizures, (grand mal or psychomotor),
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that Tate's impairments did not qualify under the Social Security Administration's
listings because his impairments were not sufficiently severe. The ALJ did not
discuss his reasons for discounting the severity of Tate's seizures until he examined
whether Tate retained the residual capacity to perform Tate's past work or other jobs
in the economy. We find, however, that these conclusions regarding the severity of
Tate's seizures are not supported by substantial evidence in the record as a whole. We
cannot ascertain on this record whether the ALJ correctly characterized the severity
of Tate's seizures, let alone whether Tate satisfies the requirements of section 11.02.
In denying Tate's claim, the ALJ discredited Tate's complaints of disabling
seizures. We have held that "[w]hen assessing the credibility of a claimant's
subjective allegations of pain . . . the ALJ must consider the claimant's prior work
history; daily activities; duration, frequency and intensity of pain; dosage,
effectiveness and side effects of medication; precipitating and aggravating factors;
and functional restrictions." Baker v. Apfel, 159 F.3d 1140, 1144 (8th Cir. 1998)
(citing Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984) (subsequent history
omitted)). "'An ALJ may discount a claimant's subjective complaints only if there are
inconsistencies in the record as a whole.'" Jackson v. Apfel, 162 F.3d 533, 538 (8th
Cir. 1998) (quoting Porch v. Chater, 115 F.3d 567, 572 (8th Cir. 1997)). Here, the
ALJ engaged in this analysis, but we do not agree that the record supports his
conclusions.
First, the ALJ noted in passing that Tate had a poor work record, but only
stated that this fact did not add to Tate's credibility. Second, the ALJ found that
documented by EEG and by detailed description of a typical seizure
pattern, including all associated phenomena; occurring more frequently
than once a month, in spite of at least 3 months of prescribed treatment.
With:
A. Daytime episodes (loss of consciousness and convulsive
seizures) or
B. Nocturnal episodes manifesting residuals which interfere
significantly with activity during the day.
20 C.F.R. Pt. 404, Subpt. P, App. 1 § 11.02 (1998) (emphasis removed).
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Tate's daily activities conflicted with his claims of total disability. The ALJ relied on
the fact that Tate drives once every two weeks, often helps wash dishes, makes the
bed, vacuums, and stays at his mother's house when she looks after his children.
Based on these activities, the ALJ determined that "Tate appears to function at a
largely normal level on a daily basis with the single exception that he does not engage
in gainful work activity."
But these activities are not inconsistent with seizures occurring twice a week
and severe headaches. Initially, Tate's wife testified that Tate does not always
complete these housekeeping tasks. More importantly, we have explicitly held that
claimants may have a disabling seizure disorder and still be able to perform some
daily home activities. See Flanery v. Chater, 112 F.3d 346, 350 (8th Cir. 1997)
(finding that while seizures "may not be totally disruptive in a home environment,
[they] . . . could hardly be accommodated in the workplace."); see also Burress v.
Apfel, 141 F.3d 875, 881 (8th Cir. 1998) ("the ability to do activities such as light
housework and visiting with friends provides little or no support for the finding that
a claimant can perform full-time competitive work.") (internal quotations omitted);
Delrosa v. Sullivan, 922 F.2d 480, 485 (8th Cir. 1991) ("an applicant need not be
completely bedridden . . . to be considered disabled.") (internal quotations omitted)
(alteration in original).
Third, the ALJ considered the location, duration, frequency, and intensity of
Tate's alleged pain. While noting that Tate claimed to have headaches lasting up to
four hours and uncontrolled seizures, the ALJ found that Tate's seizures could be
managed by medication. In reaching this determination, the ALJ relied on Dr.
Deshazo's report. But Dr. Deshazo's report only stated that increasing Tate's
medications to the therapeutic level "might also be of help in controlling his seizure
disorder." In addition, Dr. Deshazo opined that Tate "might also be a candidate for
one of the newer medications." These are far from resounding endorsements that
Tate's seizures would definitely, or even probably, be controlled by medication.
Indeed, Dr. Deshazo found that Tate should undergo "a more comprehensive
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evaluation of his epilepsy" and that he might require "some in-patient monitoring off
the medication to determine his exact seizure type."
Fourth, the ALJ considered precipitating and aggravating factors, and found
that no doctor had claimed that Tate would be disabled if he maintained the proper
therapeutic levels of medication. This conclusion ignores the fact that Tate has
apparently never been at the therapeutic level of medication. The ALJ did not claim
that Tate did not take his medication, and nothing in the record suggests that he has
failed to do so. Thus, there is no evidence in the record to support the ALJ's
supposition that Tate could achieve therapeutic levels of medications in his system,
let alone that these levels would then control his seizures.
Fifth, the ALJ considered the type, dosage, effectiveness, and side effects of
the medications taken by Tate. The ALJ's analysis of this issue relied on many of the
same factors the ALJ relied on in evaluating a sixth subject, Tate's functional
limitations. In finding that these factors reduced Tate's credibility, the ALJ again
relied on the fact that Tate had never had the therapeutic level of medications in his
system. The ALJ noted that Tate had pursued neither emergency nor other forms of
treatment to the degree that one would expect if his claims of severe pain were
actually valid. The ALJ commented on Tate's failure to verify his seizures with
EEG's, adjust his medications, or follow the advice of Dr. Deshazo, who examined
Tate at the Social Security Administration's request, to pursue suggested tests to
better evaluate the nature of his seizures. These findings contributed to and were
compounded by the general lack of objective medical evidence substantiating Tate's
claims of illness.
It is true that, "[w]hile not dispositive, a failure to seek treatment may indicate
the relative seriousness of a medical problem." Shannon v. Chater, 54 F.3d 484, 486
(8th Cir. 1995). It is also true that Tate's attempts to excuse his failure to pursue more
aggressive treatment cannot be wholly excused due to his claims of financial
hardship. See Murphy v. Sullivan, 953 F.2d 383, 386-87 (8th Cir. 1992) (rejecting
claim of financial hardship where there was no evidence that claimant attempted to
obtain low cost medical treatment or that claimant had been denied care because of
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her poverty); Hutsell v. Sullivan, 892 F.2d 747, 750 n.2 (8th Cir. 1989) (noting that
"lack of means to pay for medical services does not ipso facto preclude the Secretary
from considering the failure to seek medical attention in credibility determinations.")
(internal quotations omitted).
Nevertheless, as Shannon itself notes, consideration of this factor is not
controlling. This statement is especially true on the facts of this case. No medical
report suggests that Tate has not been pursuing a valid course of treatment for his
seizures since 1989. No medical doctor has questioned the severity of Tate's seizures.
Indeed, descriptions of Tate's seizures by doctors suggest that they are at least on
occasion extremely severe. The ALJ noted that Dr. Swingle had described Tate's
seizures as involving "tongue biting, loss of consciousness, urination or fecations,
alteration of awareness, postictal antisocial behavior, and convulsive seizure."7 Dr.
Deshazo thought that the seizures appeared to be of a sufficient magnitude as to
preclude Tate from holding "any type of employment." At the very least, one cannot
say that "the medical records do not reveal that appellant complained of disabling
seizures and headaches or requested treatment." Johnson v. Bowen, 866 F.2d 274,
275 (8th Cir. 1989). These findings were only corroborated by the testimony of
Tate's wife, mother, and friend.8
A psychologist, Dr. Loe, did suggest that Tate might be exaggerating his
symptoms. But Dr. Deshazo, a neurologist, recommended further tests to better
evaluate the nature of Tate's seizures, especially because the results of the abnormal
EEG in 1989 were inconclusive and remote in time. To the extent that this examining
neurologist recommended further tests that were not conducted, the ALJ may have
7
Postictal refers to the period following a seizure. See Stedman's Medical
Dictionary 1245 (25th ed. 1990).
8
We note that the ALJ properly discounted the testimony of these lay witnesses
based on their incentive to see Tate obtain benefits and an uncritical acceptance of
Tate's complaints. See Ownbey v. Shalala, 5 F.3d 342, 344 (8th Cir. 1993) (per
curiam). But the testimony of these witnesses only emphasizes the lack of evidence
in the record discounting Tate's claims of seizures.
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failed in his duty to adequately develop the record. See Delrosa, 922 F.2d at 485 n.5;
see also Barrett v. Shalala, 38 F.3d 1019, 1023 (8th Cir. 1994) (noting duty of ALJ
to order additional tests when "the medical records presented to him do not give
sufficient medical evidence to determine whether the claimant is disabled.").
In evaluating Tate's functional limitations, the ALJ also rejected Tate's claim
that he was unable to concentrate because Tate had attended college for three years
and quit only because of financial difficulties. In addition, the ALJ discredited Tate's
allegations of reading problems because he did not seek treatment for this ailment.
The ALJ also rejected Tate's testimony that Tate did not like to be around crowds and
did not attend social events because he related well to his family members and had
one friend that he brought with him to the hearing. These findings largely relate to
Tate's alleged mental impairments, which are not really at issue in this appeal. But
to the extent that they are relevant, they are far from dispositive. According to Tate's
uncontroverted testimony, he ceased attending college over ten years before his
seizures, and his related concentration problems, began in 1989. Tate's ability to get
along with family members does not discredit his testimony as to his ability to deal
with strangers and friends, especially because Tate merely testified that he would get
nervous around friends and strangers. Tate's friend, Orval Shockley, verified that
Tate really only left the house to see doctors, and that very few people ever came to
visit him. Finally, Tate's failure to seek medical attention for his reading difficulties
cannot be said to affect directly his claims of seizures.
As a result, substantial evidence does not support the ALJ's determination that
Tate's seizures were not sufficiently severe to qualify under the listings or to be
otherwise disabling.9 No medical evidence supports the ALJ's conclusion that Tate's
9
This action could also be reversed on the grounds that the hypothetical
question posed to the vocational expert by the ALJ did not adequately account for
Tate's alleged seizures. The hypothetical only referred to Tate's seizures to the extent
that it stated that Tate "would have to work in an environment that would not permit
him to be at any unprotected heights or around moving equipment or dangerous
machinery, nor carrying firearms." Because we find that the ALJ's determination that
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seizures would actually be controlled by medication or explains why Tate consistently
had below-therapeutic levels of the anti-convulsants in his system. In addition, the
ALJ improperly discounted Tate's testimony regarding his seizure disorder. The ALJ
must develop the record further to determine whether Tate's seizures are actually
disabling. See Payton v. Shalala, 25 F.3d 684, 686 (8th Cir. 1994) (requiring the
record to be developed to the point where "the evidence is sufficiently clear to make
a fair determination as to whether or not the claimant is disabled.").
Tate argues that the court should grant him disability benefits on this record
because he meets the requirements of section 11.02 for epilepsy. He points to the
abnormal EEG from 1989, and testimony and reports that support his claims that his
seizures are sufficiently frequent and severe. We are not persuaded by the outdated
EEG and the current evidence in the record that Tate is in fact correct. Our holding
today by no means suggests that Tate is entitled to disability benefits outright. It may
well be that on further development of the record, EEG's, other tests, medical reports,
or changed doses of medication will support the ALJ's initial conclusion that Tate's
seizures are not sufficiently severe to qualify as a listed impairment or to support any
other finding of disability.
III.
We therefore reverse the decision of the district court. The district court should
remand the case to the Social Security Administration. On remand, the ALJ should
develop the record more fully to better ascertain the nature and severity of Tate's
seizures, and to determine whether the seizures may be controlled by medication.
REVERSED and REMANDED.
Tate's seizures only minimally affected Tate's ability to work is not supported by
substantial evidence in the record, we cannot say that the hypothetical question
adequately included all of Tate's impairments. See Cox, 160 F.3d at 1207.
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A true copy.
ATTEST:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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