Barbara Jones v. JoAnne B. Barnhart ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-2416
___________
Barbara Jones, on behalf of *
David R. Morris, deceased, *
*
Plaintiff-Appellant, * Appeal from the United States
* District Court for the
v. * Western District of Missouri.
*
Jo Anne B. Barnhart, *
*
Defendant-Appellee. *
___________
Submitted: November 6, 2002
Filed: January 10, 2003
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Before McMILLIAN, MURPHY, and MELLOY, Circuit Judges.
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MURPHY, Circuit Judge.
Barbara Jones appeals from the judgment of the district court1 upholding the
decision of the Commissioner of the Social Security Administration (SSA) which
denied her deceased husband's application for disability insurance benefits and
supplementary security income benefits. We affirm.
1
The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri, presiding.
I.
David R. Morris, now deceased, was born in 1952. He had a tenth grade
education and worked in various semi-skilled and unskilled jobs. On November 10,
1997, he applied for disability insurance benefits and supplementary security income
under Titles II and XVI of the Social Security Act (the Act). Morris complained that
he had been unable to work since February 2, 1997, due to symptoms related to heart
problems, including shortness of breath, dizziness, chest pains, and a reduced
capacity for aerobic activity. He also reported leg pain and impairment, headaches,
back pain, lightheadedness or fainting, and blurred vision.
Morris went to the Truman Medical Center-West (TMC) several times and was
treated and discharged each time, except in February 1997 when he was admitted for
hospitalization. During the course of this hospitalization Morris was examined by
cardiologists. He was discharged on March 10, 1997, with a final diagnosis of
alcoholic cardiomyopathy, congestive heart failure, left ventricle thrombus,
hypertension, possible pneumonia, alcohol abuse, and alcohol withdrawal. Morris
was prescribed medication and seen and treated regularly by TMC physicians through
the hospital's various outpatient clinics. He missed two clinic appointments in June
and July 1997.
Morris continued to work after the onset of his symptoms. He was laid off
from his job as a dish washer at a casino in February 1997, but managed to find
various general labor jobs through an employment agency. In August 1997, he began
working temporarily as a rotary machine operator, but was not hired for a permanent
job at the end of a 90 day probationary period because he was unable to pass the
required physical exam.
After his claim was denied initially and on reconsideration, Morris requested
a hearing before an administrative law judge (ALJ). A full hearing was held on
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August 21, 1998, at which Morris appeared and testified; he was represented by an
advocate who was not an attorney. Morris did not submit any report from his
physicians discussing how his physical condition could be expected to impact his
functional abilities, but he testified that his physicians had limited his activities to
lifting no more than ten pounds. The Commissioner submitted a residual functional
capacity assessment prepared by physicians in the state disability determination
section who had reviewed Morris' medical records. They concluded that he was able
to lift twenty pounds occasionally, but no more than ten pounds frequently; that he
could stand and/or walk up to six hours in an eight hour workday; that he could sit
with normal breaks for about six hours; that his ability to push and pull was not
limited; that he had no manipulative, visual, or communication limitations; and that
he had some postural and environmental limitations. In addition, a vocational expert
testified as to Morris' employment opportunities and capabilities.
The ALJ denied Morris' application, finding that he was not disabled within the
meaning of the Act. In reaching this decision, the ALJ employed the five step
sequential analysis prescribed by SSA regulations, see 20 C.F.R. §§ 404.1520,
416.920 (2002); see also Bowen v. Yuckert, 482 U.S. 137, 140–41 (1987) (describing
the five step process). In step one the ALJ determined that Morris met the disability
insured status requirement and had not been engaged in substantial gainful activity
since the onset of his condition. He found at step two that Morris had a severe
impairment of cardiomyopathy, but that it did not meet or equal one of the
impairments listed in the regulations as being so severe as to require an immediate
finding of disability (step three), see 20 C.F.R. pt. 404, subpt. P, app. 1 (listing such
impairments). The ALJ assessed Morris' residual functional capacity (RFC) and
determined that it showed that he could no longer perform his past relevant work
(step four), but that there were jobs existing in significant numbers in the national
economy that Morris had the ability to perform (step five).
The ALJ's conclusion in step five was based on the testimony of the vocational
expert who had been asked in a hypothetical question whether jobs were available for
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an individual of Morris' age, education, and vocational profile who suffered from the
same symptoms and limitations as he. The expert responded that there were a
significant number of such jobs available in the economy which Morris could
perform. The ALJ concluded that Morris was not disabled under the Act and denied
his application.
Before dying from his heart condition, Morris asked the Appeals Council to
review the decision, and his wife, Barbara Jones, was later substituted as named
plaintiff. The Appeals Council denied the request for review. The ALJ's decision
thus became the final decision of the Commissioner. Jones then brought this action
in the district court pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), and the district
court decided in favor of the Commissioner. Jones appealed.
Jones argues on appeal that the ALJ erred in concluding that Morris had not
been disabled. She contends that Morris' condition met or equaled a listed
impairment, that the ALJ violated SSA Ruling 96-6p by not providing for a further
medical examination of Morris, that the ALJ incorrectly relied on the vocational
expert to determine that there were a significant number of jobs available to Morris
in the economy, and that the ALJ improperly relied on rule 201.19 of the medical-
vocational guidelines, 20 C.F.R. pt. 404, subpt. P, app. 2, to determine that Morris
was not disabled. She also contends that the Supreme Court decision in Barnhart v.
Walton, 122 S. Ct. 1265 (2002), shows that a claimant who has an impairment
expected to result in death need not demonstrate an inability to engage in substantial
gainful activity to be considered disabled under the Act.
II.
We review de novo a district court's decision affirming the denial of social
security benefits. See Lowe v. Apfel, 226 F.3d 969, 971 (8th Cir. 2000). In
conducting this review, we must "determine whether the Commissioner's decision is
supported by substantial evidence in the record as a whole." Davis v. Apfel, 239 F.3d
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962, 966 (8th Cir. 2001). Substantial evidence "is less than a preponderance, but is
enough that a reasonable mind would find it adequate to support the Commissioner's
conclusion." McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000). To determine
whether the evidence is substantial, "we consider evidence that detracts from the
Commissioner's decision as well as evidence that supports it." Id. We are not
permitted to reverse "merely because substantial evidence also exists that would
support a contrary outcome, or because we would have decided the case differently."
Davis, 239 F.3d at 966.
Jones first contends that her husband's condition met or equaled the listing for
cardiomyopathy in § 4.08 of the listings, when evaluated under § 4.02, see 20 C.F.R.
pt. 404, subpt. P, app.1, §§ 4.02, 4.08. The ALJ concluded that Morris' case did not
fall within the listed cardiac impairments partly because the listings require that the
debilitating symptoms occur while on "a regimen of prescribed treatment" and be
evidenced by certain types of medical tests, such as an exercise test. Id. § 4.02. The
conclusion that the symptoms did not occur while on a "regimen of prescribed
treatment" is supported by the evidence that his condition improved after Morris
received treatment in March 1997. For example, on April 2, 1997 Morris reported to
his doctors that he was "doing fine" in terms of shortness of breath and chest pain,
and on August 7, 1997 he denied experiencing any chest pain, shortness of breath, or
palpitations. In addition, Jones has not contended that Morris underwent the type of
tests required to meet the cardiac listings. Moreover, the record shows that a
consulting doctor from the Missouri agency responsible for disability determinations
concluded that Morris' condition did not "meet any cardiac listing" and was not the
equivalent of a listed impairment.2 The determination by a physician from such a
2
While the consulting physician did not explicitly state that Morris' condition
was not equivalent to a listing, she did state that he needed to have an RFC
evaluation. If his condition had met the equivalency requirement, there would have
been no need to measure his RFC. That procedure is only required when the
claimant's condition is determined in step three not to meet or equal a listed
impairment. See 20 C.F.R. § 404.1520(e).
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state agency is to be treated by an ALJ as "expert opinion evidence" and given
"appropriate weight." SSR 96-6p, [2002 Supplementary Pamphlet] Soc. Security
Reporting Service: Rulings (West) at 129, 131 (July 2, 1996). Although Jones has
pointed out that the record indicates that Morris was taking multiple heart
medications and suffered from symptoms associated with heart disease, she has not
directed our attention to any medical opinion that states that Morris' condition met or
equaled a listed impairment. We thus conclude that the ALJ's determination that
Morris' condition did not meet or equal a listed impairment was supported by
substantial evidence.
Jones also argues that the ALJ violated SSA Ruling 96-6p at step three by not
producing medical opinion evidence on the issue of whether Morris' condition was
the equivalent of a listed impairment. In support of her argument, Jones quotes only
the third sentence from the following paragraph of the ruling:
The administrative law judge or Appeals Council is responsible
for deciding the ultimate legal question whether a listing is met or
equaled. As trier of the facts, an administrative law judge or the
Appeals Council is not bound by a finding by a State agency medical or
psychological consultant or other program physician or psychologist as
to whether an individual's impairment(s) is equivalent in severity to any
impairment in the Listing of Impairments. However, longstanding
policy requires that the judgment of a physician (or psychologist)
designated by the Commissioner on the issue of equivalence on the
evidence before the administrative law judge or the Appeals Council
must be received into the record as expert opinion evidence and given
appropriate weight.
SSR 96-6p, [2002 Supplementary Pamphlet] Soc. Security Reporting Service:
Rulings (West) at 131 (emphasis added). Jones' reliance on the language in the third
sentence is misplaced.
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When the paragraph is read as a whole and in full context, it is apparent that
it does not require the ALJ to provide a new medical evaluation for a claimant
whenever a state medical or psychological consultant has addressed the issue of
equivalency. Instead, the ruling requires the ALJ to accept findings made by a
physician "designated by the Commissioner" as expert opinion evidence. 20 C.F.R.
§§ 404.1526(c), 416.926(c) (providing that a state medical consultant is considered
a physician "designated by the Commissioner"). Indeed, "the requirement to receive
expert opinion evidence into the record" on the issue of equivalence "may be satisfied
by [various types of] documents signed by a State agency medical or psychological
consultant." SSR 96-6p, [2002 Supplementary Pamphlet] Soc. Security Reporting
Service: Rulings (West) at 131. It is true that another part of 96-6p directs the ALJ
to "obtain an updated medical opinion from a medical expert," but that directive only
applies to certain conditions which Jones has not alleged here. Id. at 132. In this
case, the ALJ satisfied the requirements of 96-6p by receiving into evidence the
opinion of a state physician addressing the issue of whether Morris' condition was
equivalent to any listed impairment.
Jones also argues that the ALJ erred in step five of the disability analysis by
finding that there were a significant number of jobs available for Morris and that he
was therefore not disabled within the meaning of the Act. Jones contends that the
vocational expert's testimony that Morris was qualified to be an information clerk,
telephone solicitor, or surveillance system monitor3 conflicted with the Dictionary of
Occupational Titles (DOT). She asserts that those jobs, as described in the DOT,
required a higher skill level (SVP) than Morris had and that he was only capable of
unskilled work.
3
We note that the ALJ described this job to be a security system monitor, a job
title which does not appear in the Dictionary of Occupational Titles. We conclude
that the ALJ was referring to the job of surveillance system monitor (DOT 379.367-
010) because that is the title used by the vocational expert in her testimony in the
record.
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While an ALJ cannot rely on expert testimony that conflicts with the job
classifications in the DOT unless there is evidence in the record to rebut those
classifications, see Porch v. Chater, 115 F.3d 567, 572 (8th Cir. 1997), we see no
conflict in this case. The DOT indicates that a surveillance system monitor position
requires an SVP of 2, which makes it an unskilled position under SSA rulings, see
SSR 00-4p, [2002 Supplementary Pamphlet] Soc. Security Reporting Service:
Rulings (West) at 242, 245 (Dec. 4, 2000). The vocational expert testified that there
were approximately 75,000 such jobs nationwide. Cf. Weiler v. Apfel, 179 F.3d
1107, 1110–11 (8th Cir. 1999) (affirming ALJ's "not-disabled" determination where
evidence supported one available occupation offering a significant number of jobs).
Moreover, the record indicates that Morris could perform the other two jobs identified
by the vocational expert even though the DOT lists them as requiring an SVP of three
or four. Morris' work history indicated that he had worked at jobs with equally high
SVP ratings and had even written reports at one job. We conclude that there is
substantial evidence supporting the ALJ's determination that there were a significant
number of jobs in the economy that Morris could perform.
Jones further contends that the ALJ relied on rule 201.19 of the medical-
vocational guidelines, 20 C.F.R. pt. 404, subpt. P, app. 2, to determine that Morris
was not disabled and that his reliance was not supported by the evidence. Rule
201.19 directs an ALJ to conclude that a claimant with abilities similar to Morris is
not disabled if he can perform a full range of sedentary work. See id. In discussing
the evidence and his decisionmaking process, the ALJ stated that rule 201.19 would
require a finding of not disabled only "[i]f claimant were capable of performing a full
range of sedentary work." The ALJ then found that "claimant cannot perform a full
range of sedentary work" and proceeded to consider whether there were jobs available
to Morris in the economy. It is thus clear that the ALJ did not rely on rule 201.19 in
determining that Morris was not disabled. Had he relied on that rule, it would have
been unnecessary to undertake the additional process of determining the availability
of jobs in the national economy. See 20 C.F.R. pt. 404, subpt. P, app. 2, § 200.00(b).
Moreover, there was substantial evidence to support the conclusion that there was a
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significant number of jobs in the economy available to Morris. We thus cannot
conclude that the ALJ committed error by relying on rule 201.19 to find Morris not
disabled.
Jones also contends that Barnhart v. Walton, 122 S. Ct. 1265 (2002), shows
that it was improper to determine that Morris was not disabled. Her argument on this
point is unclear, but she suggests that the statement in Walton that the statutory
definition of disability uses "parallel phrasing," id. at 1270, indicates a person may
be found disabled if he either is unable "'to engage in any substantial gainful activity'"
or has a "'physical or mental impairment which can be expected to result in death,'"
id. at 1268 (quoting the definition of disability under both Title II, 42 U.S.C. §
423(d)(1)(A), and Title XVI, 42 U.S.C. § 1382c(a)(3)(A), of the Act4). Because
Morris subsequently died from the ailments causing his impairment, Jones concludes
that his impairment must have been expected to result in death and that he therefore
should have been deemed disabled. This argument is without merit. Walton held
only that the SSA had permissibly interpreted §§ 423(d)(1)(A) and 1382c(a)(3)(A)
to mean that "the 'inability' (to engage in any substantial gainful activity) must last,
or must be expected to last, for at least 12 months" and that "the term 'expected to
last'" is "applicable only when the 'inability' has not yet lasted 12 months." Id.
Walton did not deviate from the principle that disability under the Act requires that
a person must have both an inability to engage in any substantial gainful employment
and an impairment meeting the statutory requirements. See id. at 1269 (definition
4
Sections 423(d)(1)(A) and 1382c(a)(3)(A) define the term "disability" as an
inability
to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a
continuous period of not less than [twelve] months . . . .
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (2000).
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"requires a certain kind of 'inability'" and "it requires an 'impairment'"). The ALJ
could properly determine that even though Morris had a severe impairment, he did
not meet the Act's requirements for disability status because he did not have an
inability "to engage in any substantial gainful activity." §§ 423(d)(1)(A),
1382c(a)(3)(A).
For these reasons, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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