Venita M. Reeder v. Kenneth S. Apfel ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-2917
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Venita Reeder, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Kenneth S. Apfel, Commissioner, *
Social Security Administration, *
*
Appellee.
________________
Submitted: February 18, 2000
Filed: June 2, 2000
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Before RICHARD S. ARNOLD, LOKEN, and HANSEN, Circuit Judges.
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HANSEN, Circuit Judge.
Venita Reeder appeals the district court's summary judgment order in favor of
the Commissioner of Social Security, affirming the Commissioner's decision to deny
her social security disability insurance benefits. We reverse in part and remand for
development of the record through proper IQ testing.
I.
Ms. Reeder applied for disability insurance benefits, complaining that she
suffered disabling conditions of angina, hiatal hernia, and spurs on her spine. She was
initially denied benefits and requested reconsideration. In her reconsideration report,
she asserted recent developments of back pain, head pain, and complained that she had
to stop driving "because sometimes I didn't know where I was for a long time."
(Admin. R. at 134.) Following the denial of her request for reconsideration, she timely
requested a hearing before an Administrative Law Judge (ALJ).
At the time of the hearing in March of 1997, Ms. Reeder was 54 years old, had
only a fourth grade education, and was not represented by counsel. She complained
of intermittent chest pain, but stated she was not taking medication because she could
not afford it. Also, she did not think her physical health prevented her from working
as much as did her mental health condition. (See id. at 45 ("I think . . . the mental
health is why I can't work.").) Her past work record includes mostly seasonal farm
labor as a fruit picker, and for a short time, she cared for disabled people in her home.
Ms. Reeder testified that she loves plants, does some yard work, reads magazines,
occasionally goes fishing, and enjoys visits from her son.
Medical records indicate that Ms. Reeder was treated in a hospital emergency
room for chest pain in 1995. Her treadmill test and EKG were both negative at that
time. Two consultative physical examinations, one in 1993 and one in 1996, revealed
mild arthritis, obesity, mental depression, hiatal hernia, and possible angina. One
doctor advised her to cut back on nicotine and caffeine, noting that she had reported
smoking one pack of cigarettes a day and drinking one pot of coffee a day. Philip A.
Hestand, Ph.D., performed a consultative psychological evaluation of Reeder in 1995.
He diagnosed her with major depressive disorder and alcohol dependence in remission
with schizoid and dependent personality traits and poor coping skills, though she
retains the ability to manage her own funds. He did not perform any valid IQ testing
but estimated her IQ as in the range of 70-79. He noted that she may have exaggerated
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her complaints somewhat and stated that her mental health problems would not improve
without treatment.
At the hearing, a vocational expert testified that a person with marginal
education, an IQ of 80 (as estimated by the ALJ), depression, and requiring close
supervision could perform Reeder's past unskilled work as a farm laborer picking or
packing fruit.
Following the hearing, the ALJ found that Ms. Reeder has been diagnosed with
major depressive disorder and that she complains of chest pains. The ALJ
characterized her impairments as severe, but he concluded that they did not meet or
equal the level of severity required for a listed impairment. The ALJ found that Ms.
Reeder's subjective complaints of pain were not fully credible and noted that she
experiences no physical limitations due to her symptoms. Assuming an estimated IQ
of 80, the ALJ concluded that Reeder could return to her past relevant work as a fruit
picker and packer, and therefore, she was not disabled. The Appeals Council denied
Ms. Reeder's request for review of the ALJ's decision, making the ALJ's determination
the final agency decision.
Ms. Reeder timely sought judicial review in the district court and consented to
a trial before a magistrate judge, to whom we shall refer as the district court. The case
was submitted on motions for summary judgment. The district court concluded that the
medical evidence did not support an allegation of disability. Ms. Reeder argued that
the ALJ failed to adequately develop the record regarding her mental limitations by not
obtaining a valid IQ test. The district court disagreed, noting that the ALJ did order a
consultative examination for mental disorders and that Dr. Hestand reported that her
mental health would not improve without treatment, which Ms. Reeder has never
sought. The district court concluded that the record did not support Ms. Reeder's
allegation of a disabling condition because any condition that could be helped with
treatment cannot be considered disabling.
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Ms. Reeder also argued that her past earnings as a seasonal fruit picker and
packer were insufficient to amount to substantial gainful activity and thus cannot
qualify as past relevant work. The district court reasoned that although her jobs were
seasonal, she reported being engaged in this type of work for at least five years, and
thus, the ALJ did not err in determining that this could constitute past relevant work.
The district court concluded that there was substantial evidence in the whole record to
support the ALJ's determination in this case. Ms. Reeder appeals.
II.
A.
In this appeal, Ms. Reeder first argues that the ALJ's decision is not supported
by substantial evidence, because the ALJ failed to adequately develop the record
regarding her intellectual functioning. We review the district court's grant of summary
judgment to the Commissioner under a de novo standard. See Gasaway v. Apfel, 187
F.3d 840, 842 (8th Cir.), panel reh'g granted on other grounds, 195 F.3d 345 (8th Cir.
1999). We consider the Commissioner's denial of benefits to determine whether
substantial evidence on the whole record supports the decision. See Holland v. Apfel,
153 F.3d 620, 621 (8th Cir. 1998). We bear in mind that the administrative hearing is
not adversarial in nature, and the ALJ has a duty to develop facts fully and fairly,
especially in a case where the claimant is not represented by counsel. See Cox v.
Apfel, 160 F.3d 1203, 1209 (8th Cir. 1998).
The mental retardation listing of § 12.05(D) directs a finding of disability if the
claimant has "[a] valid verbal, performance, or full scale IQ of 60 through 70 and a
physical or other mental impairment imposing additional and significant work-related
limitation of function." 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05. In this case, the
ALJ ordered a consultative mental health examination, but the examiner only provided
an estimated range when considering Ms. Reeder's intellectual capacity, and no valid
IQ testing was performed. While the consultative examiner estimated that her
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functioning was within a range of 70 through 79, the ALJ disregarded this estimated
range without giving any reasons for doing so. Absent any medical evidence to support
his own contrary conclusion, the ALJ instructed the vocational expert to assume an IQ
of 80. We conclude, and the Commissioner does not deny, that this was error.
The Commissioner asserts that the ALJ's error in not relying on the physician-
estimated IQ is harmless because the estimate of a consulting physician is not entitled
to controlling weight and may be discounted if it is inconsistent with the record as a
whole. The Commissioner contends that the record demonstrates that Reeder had
engaged in substantial gainful activity with this limitation in intellectual functioning in
the past and that nothing in the record suggests a worsening mental condition. The
ALJ's opinion, however, does not list any reasons for disregarding the consultative
examiner's estimated IQ range. Our review of the record convinces us that there exists
other record evidence that raises a question concerning Ms. Reeder's level of mental
and intellectual functioning.
Ms. Reeder testified before the ALJ that she felt "dumb," that "God didn't give
me no sense," and that she often could not remember what to do when she was at a job.
(See Admin. R. at 45-46.) Her education achievements do not surpass the fourth-grade
level, even though she attended school through the eighth grade. While she had
performed fruit picker and packer jobs in the past, she indicated that she recently had
to stop driving a car because she sometimes did not know where she was for a long
time and she thought her mental health was what made her unable to work. These
factors, when combined with the consultative mental health examiner's estimate of an
IQ between 70 and 79, indicate the existence of a question concerning Ms. Reeder's
present intellectual functioning. We conclude that the ALJ erred by making his own
estimate of Ms. Reeder's IQ level, absent any support in the medical evidence and
without specifically discrediting the estimate of the sole mental health examiner in this
case. For these reasons, and because the examiner estimated an IQ range that includes
a level constituting a listed impairment, we conclude that the ALJ erred by ignoring the
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opinion of the consulting mental health examiner and not further developing the record
through valid IQ testing. See Gasaway, 187 F.3d at 844-45 (remanding for IQ testing
and further development of the record with respect to current mental impairments).
In addition to satisfying the IQ requirement, Listing 12.05 requires a showing
that the claimant suffers an additional and significant work-related limitation of
function. See Holland, 153 F.3d at 621. Ms. Reeder contends that the ALJ erred by
not considering all of her physical complaints and their combined effect. The ALJ
found that Ms. Reeder suffered severe impairments, but the ALJ did not specifically
enumerate which impairments he considered as severe. (See Appellant's Adden. at
AD-3.) In his listed findings, the ALJ merely states that "the claimant has complained
of chest pain and has been diagnosed with major depressive disorder," neither of which,
alone or in combination, amount to a listed impairment. (See id. at AD-6.) At one
point, the ALJ concluded that Ms. Reeder suffered no physical impairments, so it
appears that he credited only the major depressive disorder. The ALJ also found that
Ms. Reeder has the mental capacity to perform a variety of daily activities without
limitation, citing her ability to read, visit relatives, and perform yard work. However,
the transcript reveals that the ALJ did not conduct a very probing inquiry into her
activities. Ms. Reeder testified that she likes to read about flowers, she has one son
who visits her, and she did not mention any other relatives. While Ms. Reeder stated
that she loves flowers and put a lot in her yard, that was the extent of her testimony.
The ALJ did not ask her probing questions to determine her intellectual functioning and
did not ask questions relating to her physical capacity, such as how long of a period of
time she could work in the yard, whether she was standing or sitting, or whether anyone
helped her. (See Admin. R. at 49.) Little can be gleaned from the ALJ's cursory
inquiry.
Further, the record indicates that Ms. Reeder has been diagnosed with major
depression, obesity (not severe enough itself to satisfy a listed impairment), mild
arthritis, hiatal hernia, and possible angina. The ALJ's discussion and findings do not
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mention the diagnosis of obesity or mild arthritis, and the ALJ does not explicitly
consider the combined effect of these impairments. Additionally, medical records
indicate some limitations on Ms. Reeder's ability to stand, sit, and lift, which the ALJ
does not mention or discredit in his opinion. Although a deficiency in opinion-writing
is not a sufficient reason to set aside an ALJ's finding where the deficiency had no
practical effect on the outcome of the case, see Senne v. Apfel, 198 F.3d 1065, 1067
(8th Cir. 1999), the ALJ is not free to ignore medical evidence but rather must consider
the whole record. The activities listed by Ms. Reeder are not so extensive as to
preclude the possibility of any limitations by reason of her obesity or her mild arthritis,
especially when the medical evidence itself lists some limitations, which the ALJ did
not address. Additionally, the conflicts in the record (noted above) indicating some
trouble with her mental or intellectual functioning indicate a need for further
development of the record.
We do not decide today whether or not Ms. Reeder has an additional and
significant work-related limitation of function to satisfy the second prong of Listing
12.05. However, because the ALJ's opinion raises so many questions and appears to
have ignored some of the medical evidence of other impairments, we cannot conclude
that the ALJ's error in not further developing the record as to Ms. Reeder's intellectual
functioning is harmless.
Ms. Reeder also contends that the ALJ erred by not accurately considering the
combined effect of her impairments and not accurately relating those impairments to
the vocational expert. Any hypothetical questions presented to a vocational expert
"must fairly reflect the abilities and impairments of the claimant as evidenced in the
record" in order to be relevant in determining a claimant's residual functional capacity.
Cox, 160 F.3d at 1207. The hypothetical question presented to the vocational expert
in this case stated the ALJ's estimated IQ of 80, which is not supported by medical
evidence in the record and which the Commissioner agrees was error. On remand, the
ALJ must be careful to make credibility findings regarding all alleged impairments and
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to include all credited impairments in any hypothetical question presented to the
vocational expert.
Finally, Ms. Reeder contends the ALJ erred by determining that she could return
to her past relevant work as a fruit picker and packer. Specifically, she contends that
the low level of income she earned through this past employment does not satisfy the
requirement of substantial gainful activity under the earning guidelines of the
regulations. See 20 C.F.R. § 404.1574(b).
To be relevant, past work must have been done within the last 15 years, lasted
long enough for the person to learn to do it, and constituted "substantial gainful
activity." See 20 C.F.R. § 404.1565(a). The regulations define substantial gainful
activity as work activity that involves doing significant physical or mental activities,
even if done on a part-time basis, and work that is done for pay or profit, whether or
not a profit is realized. See id. § 404.1572(a), (b). A claimant's earnings "will
ordinarily show" that a claimant has engaged in substantial gainful activity if the
"earnings averaged more than $300 a month in calendar years after 1979 and before
1990," and "more than $500 a month in calendar years after 1989." Id. §
404.1574(b)(2)(vi), (vii). The regulations also state that earnings "will ordinarily show"
no substantial gainful activity when the claimant's monthly earnings averaged less than
$190 in calendar years after 1979 and before 1990, and less than $300 in calendar
years after 1989. Id. § 404.1574(b)(3)(vi), (vii). However, "the fact that your earnings
are not substantial will not necessarily show that you are not able to do substantial
gainful activity." Id. § 404.1574(a)(1).
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Ms. Reeder's average monthly earnings in 1990 were $221, and for the years
from 1985 to 1989 she averaged between $175 and $193 per month. She asserts that
her intermittent work does not support a finding that she was engaged in substantial
gainful activity because, with only one exception, her average monthly earnings
(averaged over 12 months) were below the guidelines. To the contrary, the
Commissioner suggests that her earnings satisfy the regulations by averaging her
monthly income only over the four or five months when she was actually seasonally
employed, rather than over the entire year.
We find it unnecessary to engage in this averaging debate. Even assuming Ms.
Reeder's earnings were below the guidelines, we find no error here. "Although
earnings below the guidelines will 'ordinarily' show that an employee has not engaged
in substantial gainful activity, earnings below the guidelines will not conclusively show
that an employee has not engaged in substantial gainful activity." Pickner v. Sullivan,
985 F.2d 401, 403 (8th Cir. 1993) (citing 20 C.F.R. § 404.1574(a)(1)). The regulations
state that work may be considered substantial even if it is part-time, see id. §
404.1572(a), which is similar to seasonal work. While work that is only "off-and-on"
will not be considered, see id. § 404.1565(a), work may be considered gainful even if
no profit is realized if it is the type of work usually done for pay or profit. See id. §
404.1572(b).
Ms. Reeder consistently engaged in seasonal fruit-picking work for several
years. This work is usually done for pay and involves significant physical or mental
activities. Mrs. Reeder learned the job, was capable of performing this type of work,
and was able to do the job the entire season--season after season. Her low earnings are
more the result of her choice to work only seasonally than an indicator of a physical or
mental inability to work the entire year. See Pickner, 985 F.2d at 403 (noting that low
earnings were partially due to the fact that the claimant worked only part-time, and
noting that work done on a part-time basis may be considered substantial). Regardless
of her low earnings, we conclude that Ms. Reeder's seasonal work was substantial
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gainful activity. Thus, we conclude that the ALJ properly considered Ms. Reeder's past
fruit-picking work to be past relevant work without reference to the earning guidelines
of the regulations.
III.
For the reasons stated, we reverse in part and remand for further development
of the record and for further proceedings consistent with this opinion.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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