Robert L. Johnson v. Shirley S. Chater

UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
_____________
No. 96-2210MN
_____________
Robert L. Johnson, *
*
Plaintiff-Appellant, * On Appeal from the United
* States District Court for the
v. * District of Minnesota.
*
Shirley S. Chater, Commission- *
er of the Social Security *
Administration, *
*
Defendant-Appellee. *
___________
Submitted: December 13, 1996
Filed: March 17, 1997
____________
Before McMILLIAN and MAGILL, Circuit Judges, and WEBBER,1 District Judge.
_____________
WEBBER, District Judge.
Robert L. Johnson appeals from the district court's2 final judgment,
affirming the Social Security Administration decision denying disability
insurance benefits, and from the district court's order denying Johnson's
motion to amend the final judgment. We affirm.
I.
1
The Honorable E. Richard Webber, United States District Judge
for the Eastern District of Missouri, sitting by designation.
2
The Honorable Paul A. Magnuson, United States District Judge
for the District of Minnesota.
Johnson applied for disability insurance benefits on March 4, 1992.
His application was denied initially and upon reconsideration. He then
requested a hearing before an administrative law judge (ALJ). At the time
of his hearing on September 23, 1993, Robert L. Johnson was a 53-year old
man with a 9th-grade education, no vocational training and an employment
history reflecting only unskilled jobs. He had been employed as a truck
driver and electrician's helper from 1967 to 1991. He had engaged in no
income producing work activity since December, 1991. His marketable skills
have been compromised by a series of disabling injuries. In 1962, he
suffered a back injury when a boom, forty feet in length fell on his head
and back, and thereafter his ability to lift was gradually restricted. He
received a shoulder injury in a motorcycle accident in 1991, and lost an
eye in an air compressor incident in 1992, which has impaired his depth
perception. These separate injuries have cumulatively restricted his
activities. Johnson has complained of repetitive severe back pain which
radiates into his left leg and for which he takes Advil. After the
hearing, the ALJ found that Johnson was not under a "disability," as
defined in the Social Security Act, and was not entitled to disability
insurance benefits.
After Johnson's request for review by the Appeals Council of the
Social Security Administration was denied, Johnson brought this action in
United States District Court for the District of Minnesota, seeking review
of the ALJ's decision, which became the final decision of the Secretary of
Health and Human Services (Secretary) pursuant to 42 U.S.C. § 405(g). See
Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992). On December 8,
1995, the district court granted the Secretary's motion for summary
judgment, affirming the Secretary's decision to deny benefits. On December
18, 1995, Johnson moved to alter or amend the judgment pursuant to Rule
59(e) of the Federal Rules of Civil Procedure. On
-2-
April 10, 1996, the district court denied this motion, and Johnson timely
appealed.
This Court's review is limited to whether the decision of the
Secretary to deny disability benefits is supported by substantial evidence
on the record as a whole. Lorenzen v. Chater, 71 F.3d 316, 318 (8th Cir.
1995). Substantial evidence is less than a preponderance, but enough so
that a reasonable mind might accept it as adequate to support a conclusion.
Pickney v. Chater, 96 F.3d 294, 296 (8th Cir. 1996). We must consider
both evidence that supports and evidence that detracts from the Secretary's
decision, but the denial of benefits shall not be overturned even if there
is enough evidence in the record to support a contrary decision. Johnson
v. Chater, 87 F.3d 1015, 1017 (8th Cir. 1996) (citing Woolf v. Shalala, 3
F.3d 1210, 1213 (8th Cir. 1993)). To determine whether the Secretary's
final decision is supported by substantial evidence, the court is required
to review the administrative record as a whole and to consider:
1. The credibility findings made by the ALJ.
2. The plaintiff's vocational factors.
3. The medical evidence from treating and consulting
physicians.
4. The plaintiff's subjective complaints relating to
exertional and non-exertional activities and
impairments.
5. Any corroboration by third parties of the plaintiff’s
impairments.
6. The testimony of vocational experts when required
which is based upon a proper hypothetical question which
sets forth the claimant's impairment.
Cruse v. Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989) (quoting Brand v.
Secretary of HEW, 623 F.2d 523, 527 (8th Cir. 1980)).
-3-
The ALJ conducted the five-step sequential evaluation process
outlined in the regulations of the Social Security Administration at 20
C.F.R. § 404.1520 and 20 C.F.R. § 416.920 for the evaluation of Johnson's
disability. The ALJ found that Johnson had not engaged in substantial
gainful activity since the alleged onset of his disability on September 2,
1991; that Johnson suffered from severe impairments in the form of a disc
herniation at the L4-5 vertebrae, a distal supraspinatus tendon tear at his
left shoulder, and a prosthetic implant right eye; that his impairments,
while severe, did not, either individually or in combination, meet or
medically equal the level of severity of any impairment listed in 20 C.F.R.
Pt. 404, Subpt. P, App. 1; and that Johnson was unable to perform his past
relevant work as a truck driver or electrician's helper. In evaluating the
fifth step, the ALJ found that there were a significant number of jobs in
the category of sedentary or light work in the national and regional
economies which Johnson could perform, and therefore, he was not disabled
under the Social Security Act.
II.
Johnson first challenges the ALJ's findings as to the fifth step,
asserting that there is no substantial evidence to support the ALJ's
finding that Johnson was capable of performing light work. Johnson asserts
he is limited to only sedentary work, cannot perform light work, and
therefore, under the Social Security guidelines, is disabled and entitled
to disability benefits.
Under the relevant guidelines, a finding that Johnson can only
perform sedentary work means that he is disabled. 20 C.F.R. Pt. 404,
Subpt. P, App. 2, Rule 201.10. If Johnson can perform light work, he is
not disabled. Id. at Rule 202.10. Under the guidelines, the functional
capacity to perform a full range of
-4-
light work includes the functional capacity to perform sedentary as well
as light work. Light work is defined as
lifting no more than 20 pounds at a time with frequent lifting
or carrying of objects weighing up to 10 pounds. Even though
the weight lifted may be very little, a job is in this category
when it requires a good deal of walking or standing, or when it
involves sitting most of the time with some pushing and pulling
of arm or leg controls. To be considered capable of performing
a full or wide range of light work, you must have the ability
to do substantially all of these activities. If someone can do
light work, we determine that he or she can also do sedentary
work, unless there are additional limiting factors such as loss
of fine dexterity or inability to sit for long periods of time.
20 C.F.R. § 404.1567(b). At the administrative hearing, the vocational
expert testified that the hypothetical claimant with Johnson’s limitations,
including the capacity to lift fifteen to twenty pounds, could perform a
range of jobs from sedentary to light work, but that if the hypothetical
claimant could lift only ten to fifteen pounds, he could perform only
sedentary work.
After reviewing the medical evidence and Johnson's testimony, and
making certain credibility findings, the ALJ concluded that Johnson
possessed the overall physical functional capacity for sedentary to light
exertional work. The ALJ found that Johnson could sit for forty-five
minutes at a time and for four to five hours in an eight-hour workday,
could stand for forty-five minutes at a time and for four hours in an
eight-hour workday, and could walk for thirty minutes at one time or for
two hours in an eight-hour workday. The ALJ found Johnson could
occasionally bend and stoop for daily activities, squat, crawl, climb
heights, crouch, kneel and balance, and frequently reach above shoulder
level with his right arm. The ALJ found that Johnson could not use his
left arm for any activities requiring reaching at or above shoulder level.
The ALJ further found that Johnson could perform repetitive
-5-
movement with his right but not his left leg, could use his hands for
repetitive action such as simple grasping, firm grasping, and fine
manipulating, but could not engage in push/pull activities with his upper
extremities. The ALJ found that, although Johnson's residual functional
capacity assessment indicated that Johnson could only lift or carry up to
ten pounds on an occasional basis, Johnson in fact had the capacity to lift
up to fifteen to twenty pounds, based on Johnson's own admissions at the
administrative hearing. The ALJ further found that Johnson's vision
impairment limited his ability to perform those sedentary or light
exertional jobs which required depth perception and binocularity, but that
Johnson's pain and other subjective complaints did not limit his capacity
for sedentary or light exertional work.
On appeal, Johnson challenges the ALJ's finding that he could lift
up to fifteen to twenty pounds on the ground that this conclusion is not
supported by substantial evidence in the record as a whole. At the
hearing, in response to questioning from the ALJ, Johnson testified that
the heaviest amount of weight he could lift occasionally during the day was
a two-gallon gas can that he used for filling his lawn mower. Johnson and
the ALJ agreed that, assuming a gallon of liquid weighed eight pounds,
Johnson lifted in the area of fifteen to twenty pounds. Johnson argues
that the ALJ's conclusion was in error. He now asserts that a gallon of
gasoline, according to the Minnesota Department of Public Service Weights
and Measures Division, weighs only 6.00 to 6.33 pounds per gallon, and that
therefore, Johnson can only occasionally lift 10 to 15 pounds. He asks
this Court to take judicial notice of the weight of a gallon of gasoline.
Johnson first presented this evidence and argument to the district
court in a motion to alter or amend the judgment pursuant to Rule 59(e) of
the Federal Rules of Civil Procedure, after the district court affirmed the
ALJ's decision. The district court,
-6-
recognizing the limited purpose of a Rule 59(e) motion,3 refused to
consider Johnson's argument, as the issue of the weight of gasoline and the
amount of weight Johnson could lift was not raised by Johnson at any prior
time in the proceedings, despite the availability to Johnson of such
evidence and his knowledge of the ALJ's reliance on Johnson's statement
that he could lift two gallons of gasoline plus a plastic gasoline can.
The district court noted that, despite ample opportunity to do so, Johnson
failed to present this issue to the ALJ, the Appeals Council, the
Magistrate Judge, and the district court prior to summary judgment. Even
acknowledging the lighter weight of gasoline, the district court noted that
it was unknown how much the gasoline container weighed or how much Johnson
exerted himself lifting the container of gasoline, and that the total
weight which Johnson was capable of lifting could still very well be over
fifteen pounds.
We agree with the district court that Johnson improperly attempted
to raise new factual issues in his motion to alter or amend the judgment
which could and should have been asserted earlier in the proceedings.
Evidence to correct the ALJ’s assumption concerning the weight of gasoline
should have been presented at the agency level, first to the ALJ and then
to the Appeals Council. See Weikert v. Sullivan, 977 F.2d 1249, 1254 (8th
Cir. 1992) (failure to raise argument at the agency level ordinarily
prevents party from raising issue in judicial proceedings).
3
A motion to alter or amend a judgment under Rule 59(e) is
intended to correct manifest errors of law or fact or to present
newly discovered evidence. Hagerman v. Yukon Energy Corp., 839
F.2d 407, 414 (8th Cir. 1987), cert. denied, 488 U.S. 820 (1988).
Arguments and evidence which could, and should, have been raised or
presented at an earlier time in the proceedings cannot be presented
in a Rule 59(e) motion. Garner v. Arvin Indus. Inc., 77 F.3d 255,
258-59 (8th Cir. 1996).
-7-
Johnson asserts that, under the mandatory language of Rule 201(d) of
the Federal Rules of Evidence, this Court must take judicial notice of the
weight of a gallon of gasoline. Assuming this is the proper type of fact
for judicial notice under Rule 201, this Court, when conducting appellate
review of an administrative decision, has discretion as to whether to take
judicial notice. This is so, despite the language of Rule 201(d), because
to take judicial notice of a fact such as the one Johnson suggests would
undermine the ALJ's role as the factfinder under the Social Security Act.
See Matthews v. Marsh, 755 F.2d 182, 183-84 (1st Cir. 1985) (not ordinarily
proper for appellate court to take judicial notice of new evidence not in
the record); Kemlon Prods. & Dev. Co. v. United States, 646 F.2d 223, 224
(5th Cir.) (inappropriate for court of appeals to take judicial notice of
extra-record facts), cert. denied, 454 U.S. 863 (1981); Zell v. Jacoby-
Bender, Inc., 542 F.2d 34, 38 (7th Cir. 1976) (refusing to take judicial
notice of documents filed in companion case because to do so would violate
rule that appellate court must consider only record before trial court and
exception for new evidence was not met).
Even if we were to recognize such improperly presented evidence, we
could not conclude that the ALJ's decision as to the amount of weight
Johnson could lift was in error. Here, there is no evidence of the weight
of the container or the amount of gasoline which Johnson actually carried
in it when Johnson lifted it. Under such circumstances, we decline his
invitation to enter this cavern of speculation.
Moreover, other evidence in the record corroborates Johnson’s
admission that he was able to lift fifteen to twenty pounds and thus,
supports the ALJ’s conclusion. Both Dr. Alan Suddard and Dr. Robert
Hammerstrom, physicians who examined Johnson’s medical records for the
Social Security Administration, concluded that
-8-
Johnson could lift up to twenty pounds occasionally. While Dr. Suddard’s
and Hammerstrom’s reports may be at odds with the conclusion of a Dr.
Robert Dahl, an occupational therapist who performed a work tolerance
assessment of Johnson and determined that Johnson could occasionally lift
or carry ten pounds without experiencing symptoms of pain, they do provide
additional evidence in the record to support the ALJ’s finding that
Johnson could lift fifteen to twenty pounds. We note that Dr. Dahl’s
conclusions are inconsistent with Johnson’s admission that he lifted the
two-gallons of gasoline. Together, we conclude that Johnson’s admissions
and the physicians’ reports constitute substantial evidence on the record
as a whole that Johnson was able to lift up to twenty pounds occasionally.
III.
Johnson also argues that the ALJ erred in finding that his subjective
complaints of pain were not credible. Johnson asserts that his subjective
complaints of pain were credible and that his pain was of sufficient
severity to be disabling.
Subjective complaint's of pain cannot be rejected solely because the
objective medical evidence in the record does not fully support them.
Jones v. Chater, 86 F.3d 823, 826 (8th Cir. 1996). Rather, an ALJ must
evaluate a claimant's subjective complaints of pain in accordance with the
standards set forth in Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.
1984). In evaluating a claimant's subjective complaints, the ALJ must give
consideration to a claimant's prior work record, as well as to observations
by third parties and treating and examining physicians relating to such
matters as: (1) the claimant's daily activities; (2) the duration,
frequency and intensity of the pain; (3) precipitating and aggravating
factors; (4) dosage, and side-effects of medication; and (5) functional
restrictions. Fountain v. Railroad
-9-
Retirement Bd., 88 F.3d 528, 531 n.3 (8th Cir. 1996) (citing Polaski, 739
F.2d at 531). An ALJ may discount a claimant's subjective complaints of
pain only if there are inconsistencies in the record as a whole. Ostronski
v. Chater, 94 F.3d 413, 418 (8th Cir. 1996) (citing Smith v. Shalala, 987
F.2d 1371, 1374 (8th Cir. 1993)). "While pain may be disabling if it
precludes a claimant from engaging in any form of substantial gainful
activity, the mere fact that working may cause pain or discomfort does not
mandate a finding of disability." Jones, 86 F.3d at 826.
Johnson asserts that the ALJ's findings of inconsistency regarding
his pain are not supported by the record as a whole or do not warrant a
conclusion that appellant is not credible. We disagree.
At the hearing before the ALJ, Johnson painted a bleak picture of his
daily abilities and activities, describing them as very limited. However,
as pointed out by the ALJ, Johnson's lifestyle is fairly active. Evidence
in the record indicates that Johnson walks about one mile each day and
drives occasionally. He operates a farm tractor to perform chores and
occasionally plows snow. He spends time in his garage, and he testified
that he repairs lawn mowers. He helps with household repairs such as
cleaning the furnace. He maintains an active social calendar playing cards
semi-weekly and visiting friends, relatives and neighbors. He reads about
two hours daily, goes hunting and shopping occasionally, goes to the
movies, participates in activities of organizations including his church
and watches television. The ALJ properly noted these inconsistencies.
Although Johnson complained of disabling pain, the ALJ noted that
Johnson had never taken any prescribed pain medication or complained to any
treating or examining physician that he experienced such severe pain.
Further, the ALJ noted the paucity
- 10 -
of any medical treatment sought by Johnson, in light of his subjective
complaints of such severe pain. Johnson did contact a Dr. William J. Knipp
on April 27, 1992, for examination in connection with his application for
disability benefits. However, Dr. Knipp noted the facts that Johnson was
not consulting another physician for back discomfort and had previously
reported no significant back trouble, which were inconsistent with
Johnson’s subjective complaints of disabling pain. See Comstock v. Chater,
91 F.3d 1143, 1147 (8th Cir. 1996) (ALJ properly discounted subjective
complaints of pain where applicant failed to pursue regular medical
treatment, took no medication other than aspirin, and engaged in daily
activities inconsistent with claims of disabling pain); Soger v. Railroad
Retirement Bd., 974 F.2d 90, 93-94 (8th Cir. 1992) (ALJ properly
discredited subjective complaints of pain where applicant failed to seek
medical treatment for pain, refused any pain medication and testified that
he could mow lawn, shop and walk daughter to park); Wingert v. Bowen, 894
F.2d 296, 299 (8th Cir. 1990) (applicant for benefits did not visit
physician for conditions or take any regular medication except for
aspirin).
Finally, the ALJ correctly found that Johnson had made no effort to
obtain other employment within his range of limitations. While Johnson did
testify that he tried to obtain other work in the nature of driving
tractors and moving bales for his neighbors, these jobs were clearly
outside of his limitations.
Upon careful review, we conclude that the ALJ’s findings are
supported by substantial evidence on the record as a whole and that
substantial evidence supports the conclusion that Johnson is not disabled
under the Social Security Act.
The judgment is affirmed.
- 11 -
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
- 12 -