Robert J. Lauer v. Kenneth S. Apfel ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-1705
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Robert J. Lauer, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the District
* of Minnesota.
Kenneth S. Apfel, *
Commissioner of Social Security, *
*
Appellee. *
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Submitted: November 17, 2000
Filed: April 4, 2001
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Before LOKEN, LAY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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MORRIS SHEPPARD ARNOLD, Circuit Judge.
When Robert Lauer applied for disability insurance benefits the Social Security
Administration denied his application initially and on reconsideration. Following a
hearing, an administrative law judge (ALJ) also determined that Mr. Lauer was not
disabled. The Appeals Council denied Mr. Lauer's request for review.
Mr. Lauer appealed to the district court, which upheld the administrative
decision. He then appealed to this court. In this appeal, he contends that the ALJ's
decision was contrary to law and not supported by substantial evidence because the
ALJ substituted his own opinion for that of the treating and examining professionals,
and failed to include in the hypothetical question posed to the vocational expert all of
the limitations caused by Mr. Lauer's mental impairments.
We review de novo a district court decision upholding the denial of social
security benefits. See Pettit v. Apfel, 218 F.3d 901, 902 (8th Cir. 2000). When
reviewing an ALJ's decision, we determine whether it is based on legal error and we
examine the evidence supporting and detracting from the decision to determine whether
the ALJ's factual findings are supported by substantial evidence in the record as a
whole. See id. In Mr. Lauer's case, we vacate the judgment and order the district court
to remand the case to the Social Security Administration for further proceedings.
I.
An ALJ generally follows a five-step process to determine whether a claimant
is disabled. See 20 C.F.R. § 404.1520; see also Bowen v. Yuckert, 482 U.S. 137,
140-42 (1987).
The ALJ in Mr. Lauer's case first concluded that Mr. Lauer had not engaged in
substantial gainful activity since his alleged onset date, and next found that the
combination of his physical and mental impairments created a "severe impairment," i.e.,
one that "significantly limit[ed] [his] physical or mental ability to do basic work
activities," see 20 C.F.R. § 404.1520(c). The ALJ concluded, however, that
Mr. Lauer's impairments did not meet the criteria for any of the listed impairments that
are acknowledged by the Social Security Administration to be so severe as to result in
a conclusive presumption of disability. See Yuckert, 482 U.S. at 141; see also 20
C.F.R. § 404.1520(d).
The ALJ therefore considered Mr. Lauer's residual functional capacity to
determine whether Mr. Lauer could return to his past work. See 20 C.F.R.
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§ 404.1520(e). "Residual functional capacity" (RFC) is defined as "what [the claimant]
can still do" despite his or her "physical or mental limitations," see 20 C.F.R.
§ 404.1545(a). The ALJ determined that Mr. Lauer lacked the RFC to return to his
past work of repairing appliances.
After the ALJ determined that Mr. Lauer could not do his past work, the social
security commissioner was required to prove that Mr. Lauer had the RFC to perform
other kinds of work, and that the jobs that he could perform exist in substantial numbers
in the national economy. See Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000). The
ALJ, relying on the opinion of a vocational expert, concluded that Mr. Lauer could
perform such other jobs as an assembly worker, a parking ramp cashier, or a security
guard, and that such work was available in the economy. Mr. Lauer challenges the
ALJ's conclusion that he can perform other work, arguing that there was insufficient
medical support for the ALJ's determination of his RFC, and that this erroneous RFC
determination was the basis for the vocational expert's opinion with respect to what
other jobs Mr. Lauer could do.
II.
When determining whether a claimant can engage in substantial employment, an
ALJ must consider the combination of the claimant's mental and physical impairments.
See Cunningham v. Apfel, 222 F.3d 496, 501 (8th Cir. 2000). Mr. Lauer does not
contest the ALJ's determination of the degree to which his physical impairments
affected his RFC. The ALJ also found, however, that Mr. Lauer had two mental
impairments, depression, see § 12.04A, § 12.04C, and a somatoform disorder (which
manifests as "[p]hysical symptoms for which there are no demonstrable organic
findings or known psychological mechanisms"), see § 12.07 (all three sections from 20
C.F.R. part 404, subpart P, appendix 1), and Mr. Lauer challenges the ALJ's finding
that his mental impairments limited his RFC only by restricting him to brief and
superficial contact with the public.
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Mr. Lauer contends that the ALJ's conclusion that his mental impairments limited
only the degree to which he was able to interact with the public was not sufficiently
supported by medical evidence, and that the ALJ improperly substituted his own lay
opinion for the opinions of treating or examining professionals. See Pratt v. Sullivan,
956 F.2d 830, 834 (8th Cir. 1992) (per curiam). Although the ALJ "bears the primary
responsibility for assessing a claimant's residual functional capacity based on all
relevant evidence," Roberts v. Apfel, 222 F.3d 466, 469 (8th Cir. 2000), we have also
stated that a "claimant's residual functional capacity is a medical question," Singh, 222
F.3d at 451. "[S]ome medical evidence," Dykes v. Apfel, 223 F.3d 865, 867 (8th Cir.
2000) (per curiam), must support the determination of the claimant's RFC, and the ALJ
should obtain medical evidence that addresses the claimant's "ability to function in the
workplace," Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000).
Therefore, although in evaluating Mr. Lauer's RFC, see 20 C.F.R. § 404.1545(c),
the ALJ was not limited to considering medical evidence, we believe that the ALJ was
required to consider at least some supporting evidence from a professional. Cf. Ford
v. Secretary of Health and Human Services, 662 F. Supp. 954 (W.D. Ark. 1987) (RFC
was "medical question," id. at 955, and medical evidence was required to establish how
claimant's heart attacks affected his RFC, id. at 956), cited with approval in Nevland,
204 F.3d at 858.
III.
Dr. John Bohrod, Mr. Lauer's treating psychiatrist, and Dr. Richard Henze, the
licensed psychologist who administered the Minnesota Multiphasic Personality
Inventory and the Wechsler memory and intelligence tests to Mr. Lauer at the request
of the Social Security Administration, agreed that Mr. Lauer's ability to perform
significant work-related functions was limited or nonexistent. For example, on the
forms assessing Mr. Lauer's mental RFC, each rated as "poor or none" Mr. Lauer's
ability to deal with work stresses and to deal with the public. In addition, Dr. Bohrod
stated that "all" of Mr. Lauer's "work activities" were "severely limited," while
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Dr. Henze described Mr. Lauer's condition as "incapacitat[ed]." The ALJ stated that
he did not "adopt" the opinions of these professionals, in part because the treating
psychiatrist did not rely on testing and in part because the psychologist who later
administered tests to Mr. Lauer was not a treating doctor (although he met with
Mr. Lauer three times and reviewed his medical records).
Even if the ALJ provided ample reasons for his decision not to adopt the
opinions of Dr. Bohrod, see 20 C.F.R. § 404.1527(d)(2) (describing when treating
doctor's opinions are "controlling") or of Dr. Henze, we have located no medical
evidence to support the ALJ's conclusion that Mr. Lauer's mental impairments, the
existence of which the ALJ acknowledged, limited only the degree to which he could
interact with the public. On appeal, the social security commissioner argues that the
ALJ's conclusion is supported by the medical records of an earlier treating psychiatrist,
Dr. Scott McNairy, and by the mental RFC assessment of a nonexamining consultant,
Dr. Daniel Larson.
Dr. McNairy was Mr. Lauer's first psychiatrist. Mr. Lauer went to see
Dr. McNairy after more than two years of treatment by a chiropractor, neurologists,
and physical therapists for neck and back pain and headaches following a motor vehicle
accident. Dr. McNairy observed at that time that Mr. Lauer was "feeling rather
hopeless about his chances for recovery," and the doctor prescribed an antidepressant
for Mr. Lauer and diagnosed him with somatic pain disorder and possible
"psychological factors affecting physical condition." Although Dr. McNairy advised
Mr. Lauer to go to a pain clinic, Mr. Lauer was reluctant to do so because he thought
that it would be no different from what he had been doing on his own at a fitness
center.
Although the social security commissioner argues that Dr. McNairy never
indicated that Mr. Lauer was unable to engage in work-related activities, Dr. McNairy
was never asked to express an opinion about that issue and he did not do so. Under the
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circumstances, we conclude that the absence of an opinion does not constitute
substantial evidence supporting the ALJ's findings. Cf. Rosa v. Callahan, 168 F.3d 72,
81 (2d Cir. 1999) (consultant's reports that were "silent on the issue" did not meet
commissioner's burden of establishing that claimant could perform sedentary work).
We note, furthermore, that Dr. McNairy also did not state that Mr. Lauer could
engage in full-time employment and did not discharge him from treatment; to the
contrary, Dr. McNairy continued to see Mr. Lauer for therapy and to prescribe
antidepressants for him until Dr. Bohrod became Mr. Lauer's psychiatrist (about six
months before the ALJ hearing). We simply do not know the degree to which
Dr. McNairy believed that Mr. Lauer's mental impairments affected his ability to
perform work-related activities, nor do we know how Dr. McNairy would have
responded to Dr. Bohrod's or Dr. Henze's opinions or to the results of the psychological
tests that Dr. Henze administered to Mr. Lauer.
The commissioner also contends that Dr. Larson's assessment of Mr. Lauer's
mental RFC supports the ALJ's decision. Dr. Larson lacked both the benefit of
Dr. Bohrod's assessment and the opportunity to see Dr. Henze's records. Although
Dr. Larson indicated that Mr. Lauer had only minimal work-related limitations resulting
from depression, the weight given the opinions of "nonexamining sources" such as
Dr. Larson "depend[s] on the degree to which they provide supporting explanations,"
see 20 C.F.R. § 404.1527(d)(3), and Dr. Larson provided no specific medical findings
to support his mental RFC assessment. Also, Dr. Larson never examined Mr. Lauer.
Generally, even if a consulting physician examines a claimant once, his or her opinion
is not considered substantial evidence, especially if, as here, the treating physician
contradicts the consulting physician's opinion. See Onstead v. Sullivan, 962 F.2d 803,
805 (8th Cir. 1992).
In addition, in contrast to the ALJ, Dr. Larson did not find that Mr. Lauer
suffered from a somatoform disorder, which can in itself be a disabling impairment.
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See Easter v. Bowen, 867 F.2d 1128, 1130 (8th Cir. 1989). We must reject the
commissioner's contention that the ALJ relied on Dr. Larson's assessment of the
limitations caused by Mr. Lauer's mental impairments when Dr. Larson did not even
agree with the ALJ as to the existence vel non of those impairments.
The decision of the ALJ is itself unclear as to the medical basis, if any, for his
assessment of the degree to which Mr. Lauer's mental impairments affected his RFC:
According to the ALJ, the neutral medical advisor who testified at the hearing
"concurred" in the ALJ's assessment of Mr. Lauer's "RFC," which was "based mostly"
on the opinion of one of Mr. Lauer's treating neurologists. In the first place, we note
that the neurologist, who last treated Mr. Lauer nearly a year before he sought
psychiatric treatment, did not address Mr. Lauer's mental impairments. As to the
medical advisor, who specializes in internal medicine, he did not assess Mr. Lauer's
mental RFC or indicate that Mr. Lauer's mental impairments limited him only in his
interactions with the public. Significantly, we believe, at the close of his testimony the
medical advisor agreed that a "full conclusion about [Mr. Lauer's] psychological
condition" was impossible without first obtaining the results of three standardized
psychological tests. Apparently in response to this testimony, after the hearing the
Social Security Administration asked Dr. Henze to administer the three tests to
Mr. Lauer. The ALJ rejected, however, virtually all of Dr. Henze's analysis of the test
results and never submitted the test results to the medical advisor or to any other
professional for review.
Here the ALJ concluded that Mr. Lauer suffered from mental impairments, and
that conclusion is amply supported by the evidence. We believe that to determine
Mr. Lauer's RFC, however, the ALJ had to address complex medical issues that could
be resolved only with professional assistance, and that the professional opinions in the
record do not support the ALJ's assessment of the degree to which the mental
impairments affect Mr. Lauer's RFC. We therefore conclude that the ALJ's
determination of Mr. Lauer's RFC is not supported by substantial evidence. Because
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the hypothetical question posed to the vocational expert was based upon the faulty
determination of Mr. Lauer's RFC, the vocational expert's answer to that question
cannot constitute sufficient evidence that Mr. Lauer was able to engage in substantial
gainful employment. See Cox v. Apfel, 160 F.3d 1203, 1207 (8th Cir. 1998).
If the ALJ did not believe, moreover, that the professional opinions available to
him were sufficient to allow him to form an opinion, he should have further developed
the record to determine, based on substantial evidence, the degree to which Mr. Lauer's
mental impairments limited his ability to engage in work-related activities. See
Nevland, 204 F.3d at 858; see also 20 C.F.R. § 404.1519a(b).
IV.
We therefore vacate the judgment of the district court and remand the case to the
district court with instructions to remand it to the Social Security Administration for
further consideration consistent with this opinion. We note, incidentally, that on
remand Mr. Lauer is entitled to a determination of how the combination of all of his
impairments (mental and physical) affects his ability to work. See Cunningham, 222
F.3d at 501.
LOKEN, Circuit Judge, dissenting.
Robert Lauer applied for benefits on November 14, 1994, claiming a disability
onset date of August 31, 1993, caused by continuing pain from back, neck, leg, and arm
injuries in an auto accident. His application was denied in January 1995, and he
requested reconsideration in March 1995, alleging the same disabling physical
impairments. After the denial was upheld on reconsideration, Lauer requested a
hearing on June 12, 1995. Four days later -- nearly two years after the alleged
disability onset date -- Lauer was examined by a psychiatrist for the first time. On
August 22, 1996, three weeks after the administrative hearing, Dr. Bohrod wrote to
Lauer’s attorney that Lauer “may do some independent work.” Like the district court,
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I conclude that the administrative record, fairly viewed as a whole, contains substantial
evidence supporting the Commissioner’s decision to deny disability benefits.
Accordingly, I respectfully dissent.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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