Tanya Buckner v. Kenneth S. Apfel ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-3856
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Tanya Buckner, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Kenneth S. Apfel, Commissioner, *
Social Security Administration, *
*
Appellee. *
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Submitted: April 12, 2000
Filed: May 22, 2000
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Before WOLLMAN, Chief Judge, MAGILL, Circuit Judge, and FRANK,1 District
Judge.
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WOLLMAN, Chief Judge.
Tanya Buckner appeals from the district court’s order to remand for further
administrative proceedings her application for supplemental security income benefits
under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. We reverse and
remand.
1
The Honorable Donovan W. Frank, United States District Judge for the District
of Minnesota, sitting by designation.
I.
Buckner was born on January 21, 1970, and has a high school education,
although most of her classes were special education courses. Her work experience
includes that of a maid, janitor, and caretaker in a daycare facility. Buckner filed the
current application for supplemental security income benefits on August 24, 1994,
alleging as an onset disability date the date of her birth. In her application, Buckner
stated that she was “not certain” of the basis of her disability. She did, however,
indicate that she had received childhood disability benefits and, in a subsequent
submission, reported that her impairments included depression, anxiety, and the “need
[for] IQ testing.”
The Social Security Administration denied Buckner’s application initially and
again on reconsideration. Buckner then requested and received a hearing before an
Administrative Law Judge (ALJ). The ALJ evaluated Buckner’s claim according to the
five-step sequential analysis prescribed by the social security regulations. See 20
C.F.R. §§ 404.1520(a)-(f); see also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987)
(describing five-step analysis). At steps one and two, the ALJ determined that Buckner
had not engaged in substantial gainful activity at any time relevant to the decision and
that she suffered from a severe impairment, mild mental retardation. At step three, the
ALJ found that her impairment was not listed in or medically equal to those listed in 20
C.F.R. Part 404, Subpart P, Appendix 1, and thus did not give rise to a conclusive
presumption of disability. At step four, the ALJ determined that Buckner possessed the
residual functional capacity to perform work as a janitor or maid, which the ALJ
deemed to be past relevant work. The ALJ therefore concluded that Buckner was not
disabled and found it unnecessary to determine whether she could perform other work
within the national economy, as is considered at step five.
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The Appeals Council denied Buckner’s request for further review, thus making
the ALJ’s decision the final decision of the Commissioner. Buckner then sought review
in the district court, asking the court to reverse the Commissioner’s denial of benefits.
The Commissioner answered Buckner’s complaint and shortly thereafter filed a motion
to remand her claim pursuant to sentence four of 42 U.S.C. § 405(g) for further
administrative action. The Commissioner stated that remand was necessary to further
evaluate Buckner’s ability to perform past relevant work. In her response, Buckner
likewise urged the court to order a “sentence four” remand, but additionally requested
that the court in its remand order make a finding of disability and remand for
calculation of benefits only or, alternatively, that the order direct the Commissioner to
reconsider several findings made by the ALJ, not only whether Buckner could perform
past relevant work.
The district court issued an order to remand for further consideration of
Buckner’s ability to perform past relevant work, but stated that such remand was
pursuant to sentence six of 42 U.S.C. § 405(g) rather than sentence four. Buckner
appeals, contending that the court erred in issuing a sentence six remand and also in
failing either to make a disability finding or to expand the scope of the remand. The
Commissioner joins Buckner in arguing that the district court improperly based its
remand order on sentence six, but supports the court’s findings regarding the
substantive scope of the remand.
II.
We consider first whether the district court erred in granting a sentence six,
rather than a sentence four, remand. Section 405(g), which governs judicial review of
final decisions made by the Commissioner, authorizes only two types of remand orders:
(1) those made pursuant to sentence four, and (2) those made pursuant to sentence six.
See Melkonyan v. Sullivan, 501 U.S. 89, 98-99 (1991); Hafner v. Sullivan, 972 F.2d
249, 250-51 (8th Cir. 1992). Sentence four, by its terms, authorizes a court to enter “a
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judgment affirming, modifying, or reversing the decision of the Secretary, with or
without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). A sentence four
remand is therefore proper whenever the district court makes a substantive ruling
regarding the correctness of a decision of the Commissioner and remands the case in
accordance with such a ruling. See Melkonyan, 501 U.S. at 98.
Sentence six, in contrast, authorizes a remand in only two limited situations: (1)
where the Commissioner requests a remand before answering the complaint of a
claimant seeking reversal of an administrative ruling, or (2) where new and material
evidence is adduced that was for good cause not presented during the administrative
proceedings. See 42 U.S.C. § 405(g); Shalala v. Schaefer, 509 U.S. 292, 297 n.2
(1993); Woolf v. Shalala, 3 F.3d 1210, 1215 (8th Cir. 1993). The first of these
situations distinguishes a sentence six remand from a sentence four remand based on
timing, while the second situation does so based on substance. See Sullivan v.
Finkelstein, 496 U.S. 617, 626 (1990) (noting that sentence six authorizes an “entirely
different kind of remand” than sentence four). This substantive distinction insures that
a remand pursuant to the second part of sentence six concerns only new and material
evidence and “does not rule in any way as to the correctness of the administrative
proceeding,” as does a sentence four remand. Melkonyan, 501 U.S. at 98; see
Finkelstein, 496 U.S. at 626.
Viewing the district court’s remand order in light of the various attributes of
sentence four and sentence six remands, we conclude that the court erred by basing its
remand on sentence six. As an initial matter, neither of the conditions under which a
sentence six remand is appropriate is present in this case. The Commissioner did not
file the motion to remand until after filing his answer, and neither the district court in
its remand order nor the parties in their submissions have pointed to any newly
discovered evidence that is material to Buckner’s claim. See Schaefer, 509 U.S. at 297
n.2. Rather, the apparent purpose of the remand was to prompt additional factfinding
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and further evaluation of existing facts, neither of which is an action that supports a
sentence six remand. See Finkelstein, 496 U.S. at 626.
Conversely, we believe that the district court’s remand order meets the
substantive requirements of sentence four. Although the district court stated in its order
that it was “not making any ruling based on the correctness of the Commissioner’s
decision” and thus was not issuing a sentence four remand, the substance of its order--
the reconsideration of Buckner’s ability to perform past relevant work--demonstrates
that it was, in essence, evaluating the propriety of the Commissioner’s denial of
benefits. The court’s order effectively called into question a substantive aspect of the
Commissioner’s decision and ordered the Commissioner to give further consideration
to this issue. Such an order sufficiently implicates the merits of the Commissioner’s
decision to bring it within sentence four. See Welter v. Sullivan, 941 F.2d 674, 675
(8th Cir. 1991).
Finally, our case law supports the conclusion that the district court’s remand
order was more properly governed by sentence four than sentence six. In Welter, we
suggested that remand orders that do not expressly affirm, modify, or reverse a decision
of the Commissioner but rather direct him to cure some specific defect in the
administrative proceeding, such as the ALJ’s failure to develop the record or to
properly evaluate the evidence, are nonetheless sentence four remands. See 941 F.2d
at 675; see also Hafner, 972 F.2d at 251 (reaffirming Welter). The remand order in this
case is indistinguishable from those in Welter. See 941 F.2d at 675. Accordingly, the
district court should have remanded the case pursuant to sentence four, rather than
sentence six, of 42 U.S.C. § 405(g).
III.
We next must determine the proper scope of the sentence four remand. Buckner
urges us to find that she is disabled and to remand merely for purposes of calculating
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her disability award or, alternatively, to order the Commissioner to reconsider on
remand several findings made by the ALJ. The Commissioner, on the other hand,
argues that a finding of disability at this time would be improper and that all of the
Commissioner’s findings, except that regarding Buckner’s ability to return to past
relevant work, are supported by substantial evidence and thus should not be revisited
on remand.
A.
We consider first whether a finding of disability would be proper at this time.
Ordinarily, when a claimant appeals from the Commissioner’s denial of benefits and
we find that such a denial was improper, we, out of “our abundant deference to the
ALJ,” remand the case for further administrative proceedings. Cox v. Apfel, 160 F.3d
1203, 1210 (8th Cir. 1998). Consistent with this rule, we may enter an immediate
finding of disability only if the record “overwhelmingly supports” such a finding.
Thompson v. Sullivan, 957 F.2d 611, 614 (8th Cir. 1992); see Fowler v. Bowen, 866
F.2d 249, 253 (8th Cir. 1989); Talbott v. Bowen, 821 F.2d 511, 514 (8th Cir. 1987).
Buckner asserts various reasons why she believes an immediate finding of
disability is warranted. Her strongest argument, and the only one we think merits
discussion, is that the record demonstrates that her impairments meet the listing at 20
C.F.R. Part 404, Subpart P, Appendix 1, § 12.05(C), thus giving rise to a conclusive
presumption of disability. See Yuckert, 482 U.S. at 141 (“If the impairment meets or
equals one of the listed impairments, the claimant is conclusively presumed to be
disabled.”). Section 12.05(C) provides that mental retardation is sufficiently severe to
constitute a listed disability when the claimant has: (1) “[a] valid verbal, performance,
or full scale IQ of 60 through 70,” and (2) “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(C). A physical or other mental impairment is sufficient
to satisfy the second part of this test when such impairment “has a ‘more than slight or
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minimal’ effect on [the claimant’s] ability to perform work.” Sird v. Chater, 105 F.3d
401, 403 (8th Cir. 1997) (quoting Cook v. Bowen, 797 F.2d 687, 690 (8th Cir. 1986)).2
The Commissioner concedes that Buckner satisfies the IQ portion of this test, but
contends that there is no evidence that her ability to work is limited by an additional
impairment.
After conducting an independent review of the record, we find that although
there may be some evidence that Buckner suffers from a physical or additional mental
impairment that limits her ability to work, such evidence is certainly not so
overwhelming as to warrant an immediate disability finding. As an initial matter, there
is little evidence that Buckner suffers from a limiting physical impairment, and the
evidence that does exist is controverted by other credible evidence. For example,
Buckner asserts that she suffers from obesity, periodic headaches, some dizziness, and
sore hands. However, Dr. Norman Pledger, who conducted a full physical examination
of Buckner in April of 1994, found that she possessed a normal range of motion in all
major joints and had no other cognizable physical limitation. Also, Buckner’s
employment history, although not extensive, suggests that her ability to work is not
more than slightly affected by any physical impairments that she may have. See
Holland v. Apfel, 153 F.3d 620, 622 (8th Cir. 1998); Box v. Shalala, 52 F.3d 168, 171
(8th Cir. 1995).
The record also contains little evidence that Buckner suffers from any mental
impairment in addition to her low IQ, or mild mental retardation. Buckner cites
numerous psychological tests that she has undergone since 1986 and contends that
these demonstrate that she has a learning disability, lacks good judgment, has difficulty
2
Contrary to Buckner’s assertion, we did not hold in Sird that the second part of
section 12.05(C) focuses only on whether a claimant can return to past relevant work.
See Sird, 105 F.3d at 403-04; see also Bryant ex rel. Bryant v. Apfel, 141 F.3d 1249,
1252 (8th Cir. 1998).
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concentrating and reasoning, cannot speak clearly, and is unable to get along with other
people. However, most of these asserted impairments are merely symptoms or
manifestations of Buckner’s mental retardation and thus cannot satisfy her obligation
to show an additional impairment that meets the second part of section 12.05(C). As
for those alleged impairments that may be distinct from Buckner’s mental retardation,
such as Buckner’s speech deficiency and inability to relate well with other people, we
cannot say with confidence that such impairments are sufficiently severe to limit her
ability to work. Indeed, the record contains credible evidence refuting the severity of
these alleged impairments. Dr. Pledger, for example, stated that he had no difficulty
understanding Buckner’s speech, and Dr. William Owens, who conducted a mental
health assessment of Buckner, found that she related well to him, demonstrated no
signs of a personality disorder, and had no history of psychiatric treatment. See
Holland, 153 F.3d at 622; Rucker ex rel. Rucker v. Apfel, 141 F.3d 1256, 1260 (8th
Cir. 1998).
We therefore conclude that the evidence of Buckner’s alleged physical and other
mental impairments, even when such impairments are considered together, is not so
overwhelming as to support an immediate finding of disability under section 12.05(C).
B.
Finally, we consider whether the sentence four remand of Buckner’s application
should be limited to her ability to engage in past relevant work or whether it should also
encompass other findings made by the ALJ. We may reverse and remand findings of
the Commissioner only when such findings are not supported by substantial evidence
on the record as a whole. See Clark v. Apfel, 141 F.3d 1253, 1255 (8th Cir. 1998).
“Substantial evidence is less than a preponderance, but is enough that a reasonable
mind would find it adequate to support the Commissioner's conclusion.” Prosch v.
Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000). In determining whether existing evidence
is substantial, we consider “evidence that detracts from the Commissioner's decision
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as well as evidence that supports it.” Warburton v. Apfel, 188 F.3d 1047, 1050 (8th
Cir. 1999).
1.
Initially, we agree with the district court that remand is appropriate regarding
Buckner’s ability to perform past relevant work, as this finding is not supported by
substantial evidence. In conducting his analysis at step four, the ALJ found that
Buckner had performed past relevant work as a maid and a janitor and that she was
functionally able to return to such work. The existing evidence, however, does not
support the ALJ’s finding that Buckner performed past relevant work as either a maid
or janitor.
To constitute past relevant work, a claimant must have performed the work as
“substantial gainful activity.” See 20 C.F.R. § 416.965(a); Terrell v. Apfel, 147 F.3d
659, 661 (8th Cir. 1998). Here, the ALJ specifically found at step one that Buckner
had not engaged in substantial gainful activity at any time relevant to the ALJ’s
decision. Moreover, the record suggests that Buckner’s employment at “Maid Your
Day,” the only maid work evidenced in the record, and Easter Seals, the only janitor
work so evidenced, may have produced insufficient income to be considered substantial
gainful activity without further development of the record regarding these jobs. See 20
C.F.R. § 416.974(b)(3)(vii). Thus, the ALJ’s conclusion that Buckner could perform
past relevant work, and the ALJ’s resultant finding that she was not disabled, are not
supported by substantial evidence. Accordingly, remand is necessary for additional
evaluation of existing evidence and for further development of the record regarding
Buckner’s ability to perform past relevant work.
Additionally, we note that if on remand the ALJ finds that Buckner has
performed no past relevant work or that she is unable to perform any past relevant
work, the ALJ should, of course, proceed to step five. In conducting the step five
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analysis, however, the ALJ may not rely on the vocational expert testimony that was
adduced during the initial administrative proceeding.3 Instead, the ALJ should posit a
new hypothetical that is consistent with the ALJ’s additional findings on remand,
including, but not limited to, his findings regarding Buckner’s past relevant work, if
any, and her ability to perform that and other work.
2.
Finally, we agree with the district court that remand should be limited to the
reconsideration of step four (and step five, if necessary), and should not encompass
other issues Buckner urges to be reconsidered on remand. First, as our prior discussion
suggests, we are satisfied that the ALJ’s conclusion that Buckner’s impairments do not
meet the section 12.05(C) listing is supported by substantial evidence and thus does not
merit reconsideration. Second, we are not persuaded that the ALJ failed to adequately
develop the record. Although the ALJ may not have required Buckner to undergo
every available psychological test, the record contains ample evidence regarding
Buckner’s mental impairment and the functional impact of that impairment. See
Warburton, 188 F.3d at 1051 (ALJ’s failure to order additional mental examination not
improper where record contained medical reports and testimony regarding claimant’s
condition). Third, we are satisfied that the ALJ properly discounted the testimony of
Buckner’s mother and step-uncle under Rautio v. Bowen, in which we held that an
ALJ, when assessing witness credibility, may consider whether a witness will gain
financially by the claimant’s receipt of benefits. See 862 F.2d 176, 180 (8th Cir. 1988);
see also Ownbey v. Shalala, 5 F.3d 342, 345 (8th Cir. 1993). Although the ALJ did not
specifically state that Buckner’s mother and step-uncle were motivated by financial
3
Although the ALJ did not proceed to step five in reaching his decision to deny
Buckner benefits, the ALJ did elicit testimony from a vocational expert regarding which
jobs, if any, a person with Buckner’s functional limitations could perform in the
national economy.
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considerations, we think that this is the clear import of the ALJ’s finding, as he stated
that they were motivated by “a desire to see [Buckner] obtain benefits” and then cited
Rautio.
The district court’s order is reversed, and the case is remanded to the district
court with instructions to remand it to the Commissioner pursuant to sentence four of
42 U.S.C. § 405(g) for further proceedings consistent with this opinion.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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