Anna Mickelis v. Shirley S. Chater ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-1929
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Anna Mickelis, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
John J. Callahan, Commissioner *
of Social Security, * [UNPUBLISHED]
*
Appellee. *
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Submitted: March 4, 1997
Filed: April 16, 1997
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Before BOWMAN, WOLLMAN, and BEAM, Circuit Judges.
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PER CURIAM.
Anna Mickelis appeals the District Court’s grant of summary judgment
affirming the decision of the Social Security Commissioner to deny her
supplemental security income (SSI) benefits. We reverse and remand with
instructions to the District Court to remand the case to the Commissioner
for further proceedings.
In her September 22, 1992 application for SSI benefits, Mickelis
alleged disability beginning October 18, 1991, due to seizures; her
application was denied initially and on reconsideration. At a hearing
before an Administrative Law Judge (ALJ), Mickelis complained of leg pain
from varicose veins and
recounted her sporadic work history, including work as a trimmer operator,
gambling ticket machine tender, cashier/waitress, motel maid, and day-care
worker. Mickelis testified that she was terminated from her job as a maid
because she did not clean enough rooms. She also testified she last worked
in 1986 or 1987 at Burger King, but she was fired after two weeks, she
thought, because she was too slow and unable to wrap breakfast sandwiches
quickly enough. Other evidence established that Mickelis suffers from
varicose veins and a seizure disorder under reasonable control.
Pursuant to a request by Mickelis’s attorney at the hearing, the ALJ
ordered a psychiatric evaluation. The psychiatrist diagnosed Mickelis with
depression, present all her life and with some awareness of her
limitations, and mixed developmental disorder. The psychiatrist described
Mickelis’s ability to follow work rules, relate to co-workers, and interact
with supervisors as good, but her ability to deal with the public, use
judgment, deal with work stresses, function independently, and maintain
attention and concentration as poor. He noted that Mickelis was friendly
and conscientious, but had limited education and poor recent memory and
problem-solving abilities. He stated that Mickelis had no ability to
understand, remember, and carry out complex or detailed job instructions,
and poor ability to understand, remember, and carry out simple
instructions. He noted that her ability to maintain her personal
appearance, behave in an emotionally stable manner, relate predictably in
social situations, and demonstrate reliability were good. It was his
opinion that Mickelis would need a prolonged period of supported employment
in order to master a job, and that she was unable to manage benefits in her
own best interest.
In a December 1993 decision, the ALJ determined that the evidence
established that Mickelis had severe varicose veins, mixed
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developmental disorder, and a seizure disorder, but that she did not have
a listed impairment or combination of impairments. The ALJ found that
Mickelis is limited to sedentary work due to the pain in her legs, but he
rejected her testimony that she must elevate her legs. The ALJ
acknowledged the psychiatrist’s findings concerning Mickelis’s inability
to follow instructions, but noted that Mickelis exhibited “certain
strengths” and believed that she would be a good worker after a period of
supported employment. The ALJ found that Mickelis’s mental impairments did
not prevent her from performing her past relevant work, because (1)
Mickelis’s allegations of disabling mental impairments surfaced only on
appeal, after it was clear her exertional impairments were not disabling,
and (2) Mickelis’s impairments were life-long and had not prevented her
from working in the past. The ALJ concluded that Mickelis could return to
her past work, making gambling tickets or wrapping sandwiches.
The Appeals Council denied review, and Mickelis appealed to the
District Court. The District Court granted summary judgment to the
Commissioner.
We will affirm the Commissioner’s denial of SSI benefits unless it
is unsupported by substantial evidence in the record as a whole or based
on legal error. See Newton v. Chater, 92 F.3d 688, 691-92 (8th Cir. 1996).
We conclude that the ALJ’s determination that Mickelis is able to
return to her past work as a machine tender or sandwich wrapper is not
supported by substantial evidence, as the ALJ failed to consider the impact
of Mickelis’s mental impairments on her ability to do these jobs. See
Nimick v. Secretary of Health & Human Servs., 887 F.2d 864, 866-68 (8th
Cir. 1989). The psychiatrist found that Mickelis suffers from a number of
functional impairments
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that appear to be inconsistent with the ability to perform her past work
and opined that Mickelis required a period of work in a supported
environment. There is no indication that her past work provided such an
environment. Because the ALJ agreed that a psychiatric evaluation was
necessary and ordered one, he may not disregard the findings of that
evaluation merely because they do not comport with his determination. Cf.
Pratt v. Sullivan, 956 F.2d 830, 834 (8th Cir. 1992) (per curiam) (holding
that ALJ may not substitute his own unsubstantiated conclusion concerning
mental impairment for express diagnosis of examining psychiatrist). The
ALJ also was not free to discount the psychiatric evaluation based on
Mickelis’s failure to allege a disabling mental impairment on her
application for benefits, because the evidence suggests that Mickelis’s
mental impairments may have kept her from appreciating the extent of her
impairments.
We also conclude that the ALJ failed to develop the record
appropriately because he did not obtain an IQ test, which was needed for
his analysis of Mickelis’s developmental disorder under section 12.05 of
the impairment listings. See Boyd v. Sullivan, 960 F.2d 733, 736 (8th Cir.
1992) (holding that ALJ has burden to develop record fully and fairly, even
if claimant is represented by counsel, which includes duty to order
examination if claimant’s records do not provide enough information); 20
C.F.R. pt. 404, subpt. P, app. 1, § 12.05 (1996).
Even apart from Mickelis’s mental impairment, we find no support in
the record for the conclusion that Mickelis’s job at Burger King--which
lasted only two weeks and which Mickelis apparently was unable to perform--
qualifies as past relevant work. See Hogg v. Shalala, 45 F.3d 276, 278
(8th Cir. 1995) (concluding that claimant’s work as nurse’s aide for “short
time period” was not relevant work). Moreover, the ALJ found that Mickelis
is
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limited to sedentary work, but there is no evidence that her job at Burger
King was a sedentary job. Two similar jobs listed in the Dictionary of
Occupational Titles--fast-foods worker and waiter/waitress, take out--are
classified as light work, not sedentary work. See Dictionary of
Occupational Titles 241 (4th ed. 1991). Additionally, the ALJ did not
explicitly consider the impact of Mickelis’s seizure disorder on her
ability to perform her past work as a machine tender, a job that she held
before contracting her seizure disorder; we note that non-examining agency
physicians indicated that Mickelis should avoid all exposure to machinery.
See Sells v. Shalala, 48 F.3d 1044, 1046 (8th Cir. 1995) (holding that ALJ
must investigate fully and make explicit findings as to physical and mental
demands of claimant’s past relevant work and compare these findings with
claimant’s capabilities; conclusory finding that claimant can perform past
relevant work without these findings does not constitute substantial
evidence supporting denial of benefits).
We find no error in the ALJ’s rejection of Mickelis’s allegation that
she must elevate her legs throughout the day to alleviate pain, as the ALJ
properly evaluated Mickelis’s subjective complaints using the factors
specified in Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984).
On remand, if the ALJ determines after further review that Mickelis
cannot perform her past relevant work, any hypothetical question posed to
a vocational expert must take into account all of Mickelis’s impairments,
including mental impairments. See Pickney v. Chater, 96 F.3d 294, 296 (8th
Cir. 1996).
For the reasons stated, we reverse and remand this matter to the
District Court with instructions to remand to the Commissioner for further
proceedings consistent with this opinion.
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A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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