Ralph E. Dukes v. JoAnne B. Barnhart ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-1757
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Ralph E. Dukes, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
Jo Anne B. Barnhart, *
Commissioner, Social Security * [PUBLISHED]
Administration, *
Appellee.
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Submitted: October 12, 2005
Filed: February 7, 2006
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Before RILEY, HANSEN, and COLLOTON, Circuit Judges.
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HANSEN, Circuit Judge.
Ralph E. Dukes (Dukes) appeals the district court's1 judgment affirming the
Commissioner of Social Security's denial of his application for Supplemental Security
Income (SSI) benefits. We affirm.
1
The Honorable Carol E. Jackson, Chief Judge, United States District Court for
the Eastern District of Missouri.
I.
Dukes applied for SSI benefits on April 24, 2000. He alleged disability due to
asthma, ulcers, depression, anxiety, and high blood pressure, all of which prevented
him from engaging in the activities of daily living. His claim was referred for a
hearing before an administrative law judge (ALJ), who held the hearing on August 21,
2002.2 The ALJ denied Dukes' application for benefits on January 28, 2003, and the
Appeals Council denied his request for review on March 30, 2004, making the ALJ's
decision the final decision of the Commissioner.
The record reflects that at the time of the hearing before the ALJ, Dukes was
48 years old and had completed a 6th grade education. He received training in the
automotive and welding fields through Job Corps and had done some work in both
areas. He has also worked as a janitor, dishwasher, and cook, but testified that he has
been unable to maintain employment due to his health. His most recent employment,
including at the time of the hearing, was working as a laundry worker for National
Linen. Dukes began working for National Linen in November 2000 and works
somewhere between 28 and 32 hours per week.
Dukes has twelve children and pays child support. He currently lives with his
oldest daughter and her four children. He often takes care of the four young children
while his daughter is at work, and he also does basic housekeeping chores such as
cleaning and cooking. Although Dukes' daughter takes care of his finances, Dukes
testified that he was able, but chose not, to do it himself.
2
Dukes' claim was initially denied and went before an ALJ in 2001. At that
time he was found to be not disabled and he appealed to the district court. The district
court remanded his claim to the Commissioner in early 2002 pursuant to the
Commissioner's request. The case then went before an ALJ a second time, which is
the ALJ hearing referred to throughout this opinion and from which this appeal arises.
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Dukes' relevant medical history involves treatment at various St. Louis area
facilities from July 1998 through February 2002. Dukes was seen approximately
eleven times in this time period, receiving treatment for complaints related to asthma,
heartburn, ulcers, high blood pressure, and high cholesterol. The records show that
Dukes' medical complaints were being well-managed through medication and that he
received counseling regarding his diet and nutrition. On several occasions Dukes
complained of pains in his arms, elbows and shoulders that he attributed to heavy
lifting. Those complaints were treated with either Tylenol or ibuprofen. Dukes was
also treated for anxiety throughout this period and had been prescribed anxiety
medication as early as 1998. That prescription was filled for the first time in June
2000, but in March 2001 Dukes reported that he had not been taking that medication
and was feeling fine without it.
Dukes was also treated at the Hopewell Center in St. Louis. A mental status
examination in February 2000 showed that Dukes had a mildly depressed mood, a
moderately acceptable memory, and no delusional, suicidal, or homicidal thoughts.
At a psychiatric evaluation later that month, the examiner noted that Dukes was
appropriately dressed, appeared somewhat anxious, and that no signs of depression
were evident. Dukes was diagnosed with having a general anxiety disorder and was
prescribed medication.
Paul Rexroat, Ph.D., conducted a psychological evaluation of Dukes on June
21, 2000. Dr. Rexroat noted that Dukes suffered no speech problems and no obvious
sensory visual or hearing difficulties, and was observed to have a generally task-
appropriate activity level. Dukes was able to talk freely with Dr. Rexroat and
appeared socially confident and comfortable. Testing showed Dukes had a full scale
IQ of 77, placing him in the borderline range of intellectual abilities. A mental status
exam showed that Dukes had slight anxiety, a mildly restricted range of emotional
responsiveness, a normal affect and energy level, a normal gait and posture, and
normal speech, but he reported auditory and tactile hallucinations. Dr. Rexroat
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determined that Dukes' symptoms were secondary to his long-term cocaine and
marijuana use. Dukes admitted using cocaine the week before the exam and to using
both it and marijuana whenever he could obtain it. The conclusions set forth by Dr.
Rexroat were that Dukes could understand and remember simple instructions and
could sustain concentration and persistence for simple tasks. Dr. Rexroat also stated
that Dukes had some limit in his ability to interact socially and adapt to his
environment due to his long-term drug use and addiction. Dr. Rexroat's diagnosis was
cannabis and cocaine dependence and borderline intelligence, and he assigned Dukes
a global assessment of functioning (GAF) score of 55.
On June 27, 2000, a mental residual functional capacity assessment was
performed on Dukes. He was found to have moderate limitations in the ability to
understand and remember detailed instructions, the ability to carry out detailed orders,
the ability to sustain a routine without special supervision, the ability to interact
appropriately with the general public, and the ability to complete a normal workday
without interruptions from psychologically-based symptoms.
In addition to the complaints in the medical records, Dukes made other
subjective complaints. He stated that the machines at work cause him to become
dizzy and nauseous and that the physical labor required in his job causes his legs to
hurt. He also maintains that his impairments limit his ability to engage in normal
activities of daily living. For example, Dukes claims that while he is able to do some
housekeeping that he does not have the ability to do it well. Dukes stated that his
drivers license has expired and he doesn't have a car, and so he either walks to work
or has to get a ride. Dukes also raises issues related to his disability claim regarding
his inability to read well, his failure to maintain his own finances, and his limited
social interaction.
After reviewing all the evidence before him, the ALJ determined that Dukes had
severe impairments of cannabis dependence, cocaine dependence, and borderline
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intelligence, but noted that those impairments did not meet a listed impairment. The
ALJ next evaluated the credibility and extent of Dukes' subjective complaints and
largely discredited those statements. The ALJ then determined Dukes' residual
functional capacity (RFC) and utilized the testimony of a vocational expert to
determine that Dukes could perform his past relevant work as a janitor or laundry
worker. The ALJ found that Dukes was not disabled because he was engaged in
substantial gainful employment and that even looking beyond his employment, Dukes
was not disabled based on his impairments and subjective complaints.
The Appeals Council denied Dukes' request for review, and Dukes then
appealed the denial of his application for SSI benefits to the district court. After a
thorough review of the record, the district court upheld the Commissioner's decision
on February 14, 2005. Dukes appeals.
II.
"We review de novo a district court decision affirming a denial of social
security benefits." Moore ex rel. Moore v. Barnhart, 413 F.3d 718, 721 (8th Cir.
2005). We will affirm if the record as a whole shows substantial evidence that
supports the Commissioner's findings, that is, "relevant evidence that a reasonable
mind might find adequate to support the Commissioner's decision." Id. When
reviewing the case we consider all evidence, both that in support of the
Commissioner's decision and that which detracts from it, and we will not reverse as
long as there is substantial evidence supporting the outcome. Id.
When reviewing a disability claim, the ALJ undertakes a five-part analysis,
which includes determining: (1) whether the claimant is engaged in substantial gainful
activity, (2) if the claimant has a severe impairment, (3) whether the impairment is a
listed impairment or is comparable to one, (4) if the claimant can engage in past
relevant work, and if not (5) whether any other kind of work can be performed by the
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claimant. Ellis v. Barnhart, 392 F.3d 988, 993 n.3 (8th Cir. 2005); 20 C.F.R.
§ 416.920(a)(4). In this case, it is not necessary to look beyond step one.
In order to be eligible for SSI benefits, "the claimant must show he was under
a continuing disability while his application was pending." Jernigan v. Sullivan, 948
F.2d 1070, 1072 n.3 (8th Cir. 1991). Step one of the test calls for the ALJ to
determine if the claimant engaged in substantial gainful activity during the time the
application is being reviewed. If the claimant is so engaged, then he is determined to
be not disabled and the analysis is concluded. See Comstock v. Chater, 91 F.3d 1143,
1145 (8th Cir. 1996); 20 C.F.R. § 416.920(b). Dukes applied for SSI benefits on April
24, 2000, and at that time he was unemployed. However, in November 2000, Dukes
began working for National Linen and continued to do so through the time of the
hearing before the ALJ in 2002. The ALJ determined that Dukes' employment at
National Linen constituted substantial gainful activity, and we agree.
Substantial gainful activity is defined as work activity which is both substantial
and gainful. Comstock, 91 F.3d at 1145; 20 C.F.R. § 416.972. Substantial activity
is significant physical or mental work that is done on a full- or part-time basis.
Comstock, 91 F.3d at 1145; 20 C.F.R. § 416.972(a). Gainful activity is simply work
that is done for compensation. Comstock, 91 F.3d at 1145; 20 C.F.R. § 416.972(b).
To determine if the work a person is doing is considered substantial and gainful,
factors such as the amount of compensation and whether the work is done in a special
or sheltered environment are considered. Comstock, 91 F.3d at 1145; 20 C.F.R.
§§ 416.973, 416.974(a). The claimant is presumed to be engaged in substantial
gainful activity if his or her earnings from that activity exceed the limits set by the
regulations. Comstock, 91 F.3d at 1145; 20 C.F.R. 416.974(b)(2) (setting
compensation levels by year).
The record is clear that Dukes' earnings in 2001 from his work at National
Linen averaged $1053.16 per month, more than $400 over the limit determined by the
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regulations.3 The work done by Dukes involved very physical duties and was done
in return for compensation. Dukes' work at National Linen clearly meets the
definition of substantial gainful activity. Even if we assume, as Dukes contends, that
his employer has made some exceptions for him, Dukes has failed to show that special
conditions existed that would lead to a finding that the work he has done should not
be considered substantial gainful activity. See 20 C.F.R. § 416.973(c) (listing
examples of special conditions). Because he is engaged in substantial gainful activity
and has failed to rebut the presumption created by his earnings, Dukes is ineligible to
receive SSI benefits.
III.
Because Dukes cannot satisfy the first step of the five-part test, there is no need
to consider the remaining steps in evaluating his disability claim. However, if we
were to do so, as the ALJ and district court did, we would agree that Dukes is not
disabled.
Dukes alleges errors in the ALJ's assessment of his RFC and the ALJ's
conclusion that Dukes could perform his past relevant work. Specifically, he argues
that the ALJ erred by finding that his subjective complaints were not credible and that
the ALJ failed to consider several limitations. Dukes further contends that the
hypothetical question presented by the ALJ to the vocational expert (VE) was flawed
for failure to include certain factors.
Before the ALJ could determine Dukes' RFC, he first had to assess Dukes'
credibility as to his subjective complaints. The ALJ applied the factors discussed in
Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984), and determined that Dukes
3
While the regulations list earnings amounts only through 2000, a detailed
description of the formula for calculating them is available at
http://www.ssa.gov/OACT/COLA/SGA.html.
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was not fully credible when it came to his claims of limitations and the extent of his
symptoms. In discrediting subjective claims, the ALJ cannot simply invoke Polaski
or discredit the claims because they are not fully supported by medical evidence.
Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000). Instead, the ALJ must make an
express credibility determination that explains, based on the record as a whole, why
the claims were found to be not credible. Id. at 971-72.
"Where adequately explained and supported, credibility findings are for the ALJ
to make." Id. at 972. In this case, the ALJ adequately explained his findings and the
inconsistencies in the record on which he based his decision. Particularly, the ALJ
discussed the absence of hospitalizations due to health problems, limited treatment of
symptoms, the ability to control the various ailments through medication, Dukes'
employment during the application period, his overall poor work record, his failure
to diligently seek medical care, and Dukes' abilities to regularly perform household
chores and shoot pool for recreation. Because we find that the ALJ adequately
explained the inconsistencies in the record on which he relied, we uphold his
credibility finding.
After the ALJ determined Dukes' RFC, he proceeded to step four of the
analysis, which involved determining if Dukes could return to his past relevant work.
At this step, the ALJ may use a VE to assist him in making that decision by providing
expert advice. Dukes contends that the ALJ posed an improper hypothetical question
to the VE because relevant factors the VE should have considered in forming her
opinion were omitted. A hypothetical question posed to a VE "need only include
those impairments and limitations found credible by the ALJ." Vandenboom v.
Barnhart, 421 F.3d 745, 750 (8th Cir. 2005). In addition, "the claimant bears the
burden to establish that he or she cannot return to past relevant work." Id. The factors
included in the hypothetical to the VE in this case are supported by the record and are
consistent with the ALJ's credibility determination. From our review of the record,
it is clear that the VE's analysis and opinion included both those factors the ALJ
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accepted as true and the factors set forth by Dukes. The VE stated that if she was
looking at just the GAF score in question that she would not expect that the person
would be able to maintain employment, but that when all the factors were considered
as a whole, including those Dukes contends were improperly omitted, she was still of
the opinion that employment could be maintained by a person of such characteristics.
The fact that Dukes was employed at the time of the hearing in a field of work
identified by the VE, laundry laborer, supports the determination that Dukes failed to
meet his burden of establishing that he could not engage in past relevant work. We
do not find error in the hypothetical posed to the VE or in the ALJ's determination of
Dukes' RFC and work abilities.
Even though Dukes is not disabled because he engaged in substantial gainful
activity, if we assume, arguendo, that Dukes satisfied the first step of the test, we
would uphold the determination that Dukes was not disabled because he could
perform his past relevant work.
IV.
Accordingly, we affirm the judgment of the district court.
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