Errol R. Gray v. Kenneth S. Apfel ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
No. 98-3193
ERROL R. GRAY, *
*
Appellant, *
*
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
*
KENNETH S. APFEL, *
Commissioner *
of Social Security, *
*
Appellee. *
Submitted: June 18, 1999
Filed: September 24, 1999
Before MURPHY and MAGILL, Circuit Judges, and REASONER,1 District
Judge.
_________
REASONER, District Judge.
Claimant appeals from the district court’s2 order affirming
the decision of the Commissioner of Social Security Administration
(“Commissioner”) denying disability insurance benefits and
supplemental security income ("SSI”). We affirm.
1
The Honorable Stephen M. Reasoner, United States District
Judge for the Eastern District of Arkansas, sitting by
designation.
2
The Honorable Richard H. Battey, United States District
Judge for the District of South Dakota.
I. Background
Erroll R. Gray (“Gray”) was 49 years old on the alleged onset
date of his disability, March 28, 1995. He had past relevant
work as a furniture delivery driver and metal finisher. In
February, 1995, Gray suffered a back injury at work and stopped
working on March 28, 1995. Gray underwent back surgery -
microdiskectomy - performed by Dr. Larry Teuber in April, 1995.3
He has not worked since that time and alleges he still suffers from
constant lower back pain and is limited in activity due to his
injury. On December 18, 1995, Gray filed an application for
disability insurance benefits and for supplemental security income
pursuant to 42 U.S.C. § 423 and § 1381a (1994) respectively. His
application was denied through the reconsideration stage and he
requested a hearing before an Administrative Law Judge (“ALJ”). A
hearing was held on March 6, 1997. The ALJ issued a decision on
May 21, 1997, that Gray was not disabled.
In assessing the sequential evaluation process, the ALJ
noted initially that Gray had not performed any substantial gainful
activity since the alleged onset date. Secondly, the ALJ found
from the medical evidence that Gray had degenerative disk disease
of the lumbosacral spine. He concluded Gray’s medical condition
constituted a severe impairment but that Gray did not have an
impairment or a combination of impairments listed in or medically
equal to the listed impairments in Appendix 1 to Subpart P. to
Social Security Regulation No. 4. The ALJ further found that
although claimant could not perform his past relevant work, in
light of the evidence of record, he still retained the residual
3
The claimant underwent a left L3 - L4 microdiskectomy for
intervertebrae disk displacement and L4 radiculopathy.
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functional capacity to perform the full range of light work.4 In
reaching this conclusion, the ALJ found that claimant’s subjective
complaints and limitations were not fully credible. In assessing
credibility, the ALJ considered the medical evidence in the record,
Gray’s own testimony concerning the degree and duration of the
pain, Gray’s daily activities, his lack of prescription medication
or even over-the-counter pain relievers for the alleged pain, and
his failure to follow through with rehabilitation. The ALJ
discounted the testimony of Gray’s vocational expert as not
supported by the evidence and potentially biased.5 For similar
reasons, the ALJ gave little weight to the testimony of Betty
Blard, who had resided with claimant for a number of years.
4
Light work involves lifting no more than 20 pounds at a
time with frequent lifting or carrying of objects weighing up to
10 pounds. Even though the weight lifted may be very little, a
job is in this category when it requires a good deal of walking
or standing, or when it involves sitting most of the time with
some pushing and pulling of arm or leg controls. To be
considered capable of performing a full or wide range of light
work, you must have the ability to do substantially all of these
activities. If someone can do light work, we determine that he
or she can also do sedentary work, unless there are additional
limiting factors such as loss of fine dexterity or inability to
sit for long periods of time.
20 C.F.R. §404.1567(b).
5
Gray was evaluated and given the General Aptitude Test
Battery (“GATB”) test by Margot Burton, a rehabilitation
consultant and placement specialist in October, 1995. Lynn
Meiners, Ph.D., performed a vocational assessment at the request
of Gray’s attorney and in connection with Gray’s disability
claim, in April, 1996, relying on Margot Burton’s GATB test
results.
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In the final step of his analysis, the ALJ concluded that
given Gray’s age, education, and past work experience, there were
significant work opportunities for him. The ALJ further found that
Gray maintained the residual functional capacity for a full range
of light work. The ALJ noted that the Medical-Vocational
Guidelines (“Grids”) revealed that there are “approximately 1600
separate sedentary and light jobs existing” in the national economy
which Gray could perform. T. 17. In conclusion, the ALJ
determined that Gray was not disabled and denied his claim. The
Appeals Council declined review and Gray filed a complaint in
district court on January 23, 1998.
II. Discussion
This Court’s role on review is to determine “whether the
Commissioner’s findings are supported by substantial evidence in
the record as a whole.” Clark v. Apfel, 141 F.3d 1253, 1255 (8th
Cir. 1998).
Substantial evidence is relevant evidence which a
reasonable mind would accept as adequate to support the
Commissioner’s conclusion. In determining whether the
existing evidence is substantial, ‘we must consider
evidence that detracts from the [Commissioner’s] decision
as well as evidence that supports it.’ We may not
reverse the Commissioner’s decision merely because
substantial evidence exists in the record that would have
supported a contrary outcome.
Pierce v. Apfel, 173 F.3d 704, 706 (8th Cir. 1999) (citations
omitted).
After the claimant has established that he is unable to
perform his past relevant work, the burden shifts to the
Commissioner to show that the claimant has the physical residual
capacity to perform a significant number of other jobs in the
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national economy that are consistent with his impairments and
vocational factors such as age, education, and work experience.
See Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998). “If an
applicant’s impairments are exertional, (affecting the ability to
perform physical labor), the Commissioner may carry this burden by
referring to the medical-vocational guidelines or ‘Grids,’ which
are fact-based generalizations about the availability of jobs for
people of varying ages, educational backgrounds, and previous work
experience, with differing degrees of exertional impairment.” Id.However, when a claimant is limited by a non-exertional impairment,
such as pain or mental incapacity, the Commissioner may not rely on
the Grids and must instead present testimony from a vocational
expert to support a determination of no disability. See Id.;
O’Leary v. Schweiker, 710 F.2d 1334, 1338-39 (8th Cir. 1983).
Gray contends that the ALJ erred in relying on the Grids to
conclude that he was not disabled because the ALJ ignored evidence
of non-exertional impairments, including his limited mental ability
and subjective complaints of pain. Gray further contends the ALJ’s
adverse credibility determinations, discounting the testimony of
the vocational expert and other witnesses, are not supported by
substantial evidence.
With respect to the evidence of Gray’s mental capacity, Gray
relies on this Court’s decision in Simons v. Sullivan, 915 F.2d
1223 (8th Cir. 1990) for reversal. In Simons, this court reversed
the denial of disability benefits because the ALJ ignored
undisputed vocational expert testimony6 that the plaintiff was not
presently qualified intellectually for “light work”, although he
6
The Eighth Circuit noted that the ALJ did not even address
the vocational expert’s testimony. Simons at 1224.
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was physically qualified to perform the work. The Court concluded:
The vocational expert’s undisputed testimony is that
Simons currently does not have the mental ability and
training to perform light and sedentary work. This
opinion is neither supported nor contradicted by the fact
that Simons has a ninth grade education. We are in no
position to gauge the educational requirements of light
work as defined in the Guidelines, but we acknowledge
that Simons’ education is minimal. Given the
uncontradicted testimony of a vocational expert who has
first hand knowledge of the claimant, we must reverse the
ALJ and direct the Secretary to grant Simons an award of
benefits.
Simons at 1225.
The facts in Simons are distinguishable from the facts in this
case. In Simons, the vocational counselor gave uncontroverted
testimony that Simons was not intellectually qualified to perform
light work, although he was physically able to do so. In other
words, Simons mental limitations alone were sufficient to prevent
him from performing light work. On the other hand, claimant’s
rehabilitation consultant and vocational expert in this case
concluded that Gray could not work because of the combination of
his mental (general learning ability) and physical limitations
(limited finger and manual dexterity). As noted by the ALJ,
there is no medical evidence that either one of these limitations
restrict Gray’s ability to work. The only objective evidence
supporting the experts’ assessment of Gray’s mental and physical
limitations came from GATB testing done by Margot Burton, the
rehabilitation consultant. This testing, performed by a non-
medical expert, is not competent medical evidence of a mental or
physical impairment. See 20 C.F.R. §416.913 (listing sources of
medical evidence); Jones v. Callahan, 122 F.3d 1148, 1153 n. 5 (8th
Cir. 1997). Other than the aptitude testing obtained during
litigation, there is no medical evidence regarding claimant’s vague
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allegation of limited mental ability.
On the other hand, a review of the record reveals substantial
evidence to support the conclusion of the ALJ that Gray is mentally
capable of working. Unlike Simons who only completed the ninth
grade, Gray was able to complete a high school education and
vocational training without any apparent difficulty, and
subsequently used his vocational training for four years. He
also learned the skills necessary to work as a metal finisher and
painter. Gray does not allege a deterioration of his mental
abilities and did not seek significant ongoing medical treatment
for his allegedly disabling mental impairment. In light of the
complete absence of medical evidence establishing a mental
impairment and in view of the evidence suggesting that Gray does
have the mental capacity to succeed in some jobs in the national
economy, the ALJ did not err in rejecting the opinions of
claimant’s vocational expert and concluding that Gray was not
disabled.7
Gray also argues that the ALJ’s credibility determinations
with regard to his complaints of pain are not supported by
substantial evidence. In analyzing a claimant’s subjective
complaints of pain, an ALJ must examine:
(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. Other relevant factors include the
claimant’s relevant work history and the absence of
objective medical evidence to support the complaints.
The ALJ may discount subjective complaints of pain if
7
As previously noted, the ALJ in Simons ignored the
claimant’s vocational expert’s undisputed testimony. Here the
ALJ specifically addressed the testimony of Gray’s vocational
expert along with the other evidence of record.
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inconsistencies are apparent in the evidence as a whole.
Spradling v. Chater, 126 F.3d 1072, 1074-75 (8th Cir. 1997) (citing
Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984)).
At the hearing, Gray testified he is unable to walk because of
constant pain radiating from his waist to his shoulders,
accompanied by numbness, tingling, and partial paralysis in his
lower extremities. He stated that the April, 1995 surgery only
helped decrease some of the pain in his left lower extremity and
that his pain was so severe that it required him to lie down
approximately one and one half hours, at least once per day. Gray
estimated that he could lift and carry a maximum of 30 pounds, walk
no farther than one half block, and perform no repetitive bending,
squatting, or climbing and that he must change positions,
alternating standing and sitting, to decrease the level of pain.
Gray argues that the ALJ may only discount subjective complaints of
pain if there are inconsistencies in the evidence as a whole, see
Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984) and that the
ALJ’s decision does not identify any “inconsistencies” which would
lead one to reject Gray’s pain complaints.
In fact, the ALJ did make a finding that the severity and
duration of Gray’s alleged pain was disproportionate to the
impairment established in the medical records. Additionally, the
ALJ found that Gray’s inconsistent statements regarding his pain
cast doubt upon his credibility. For example, the ALJ noted that
Gray stated in an October, 1995 examination with Dr. Teuber that he
had never had any improvement in his pain. However, Dr. Teuber’s
records revealed that Gray had previously made two clear statements
that he had complete resolution of his pain after the operation and
that he had significant improvement in his weakness.
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The ALJ also noted that Gray did not take prescription or
over-the-counter medications for his alleged disabling pain8 and
failed to follow through with suggested rehabilitation treatment.
“The ALJ may properly consider both the claimant’s willingness to
submit to treatment and the type of medication prescribed in order
to determine the sincerity of the claimant’s allegations of pain.”
Thomas v. Sullivan, 928 F.2d 255, 259 (8th Cir. 1991) (citations
omitted). Dr. Teuber also noted Gray’s lack of interest in doing
any sort of activity, and that Gray had just been sitting at home
and drinking beer to relax. See T. at 134. Dr. Teuber also
expressed concern about Gray’s lack of interest in returning to
work. See id.Finally, the ALJ observed that Gray engaged in extensive daily
activities, which is inconsistent with the level of pain alleged.
See Lawrence v. Chater, 107 F.3d 674, 676 (8th Cir. 1997) (plaintiff
dressed and bathed herself, did some housework, cooking and
shopping); Pena v. Chater, 76 F.3d 906, 908 (8th Cir. 1995) (daily
caring for one child, driving when unable to find a ride and
sometimes going to grocery); Nguyen v. Chater, 75 F.3d 429 (8th Cir.
1995) (visiting neighbors, cooking own meals, doing own laundry and
attending church); Novotny v. Chater, 72 F.3d 669, 671 (8th Cir.
1995) (carrying in grocery bags, carrying out garbage, driving wife
to and from work inconsistent with extreme, disabling pain);
Shannon v. Chater, 54 F.3d 484, 487 (8th Cir. 1995) (plaintiff
cooked breakfast, “sometimes” needed help with household cleaning
and other chores, visited friends and relatives and attended church
twice a month); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)
8
The evidence reveals that Gray took Tylenol III for a short
time, but discontinued its use because it had little effect.
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(plaintiff lived alone, drove, shopped for groceries and did
housework with some help from neighbor). The evidence suggests
that Gray was able to care for himself, do household chores, drive
a car for short distances, and perform other miscellaneous
activities. The ALJ concluded that Gray’s unemployment was due to
his own choice rather than the result of disabling impairments.
While Gray testified that he could only perform these daily
activities with significant pain and breaks, the ALJ discredited
Gray’s limitations as not supported by the record as a whole.9
III. Conclusion
In light of the medical and other evidence of record, the
ALJ’s credibility determinations are supported by substantial
evidence and the ALJ properly concluded that Gray does not suffer
from a non-exertional limitation that precludes reliance on the
grids to determine Gray’s capacity to work. The judgment is,
therefore, affirmed.
9
Gray reported dramatic improvement in left leg weakness and
back pain following back surgery in April, 1995. Drs. Teuber and
Caughfield noted that claimant demonstrated normal to only
minimally abnormal deficits on physical examination. Furthermore,
a lumbar MRI revealed no evidence of recurrent or residual disc-
herniation, and only very mild central disc protrusion without
nerve root impingement Dr. Caughfield also noted that claimant
had only a ten percent impairment to the body as a whole.
Claimant reported in December, 1995 that he could lift 20 pounds
and testified at his hearing in March, 1997 that he could lift up
to 30 pounds. This evidence along with Dr. Caughfield’s medical
opinion arguably provides substantial support for the ALJ’s
determination that claimant could perform light work.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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