Donald A. Newton v. Shirley Chater

__________
96-1096
__________
Donald A. Newton, *
*
Plaintiff-Appellant, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Shirley S. Chater, *
Commissioner of Social *
Security, *
*
Defendant-Appellee. *
__________
Submitted: June 14, 1996
Filed: August 9, 1996
__________
Before MORRIS SHEPPARD ARNOLD and MURPHY, Circuit Judges, and JACKSON,*
District Judge.
__________
MURPHY, Circuit Judge.
Donald A. Newton appeals from a district court decision affirming the
Social Security Commissioner's denial of his applications for disability
insurance and supplemental security income benefits. We reverse and
remand.
I.
Newton applied for disability insurance benefits on April 22, 1993
under Title II of the Social Security Act, 42 U.S.C. § 401 et
*
The HONORABLE CAROL E. JACKSON, United States District
Judge for the Eastern District of Missouri, sitting by
designation.
seq., and for Supplemental Security Income (SSI) benefits under Title XVI
of the Act, 42 U.S.C. § 1381 et seq. He alleged disability from October
30, 1992, based on illiteracy, memory lapses, alcoholism, and hypertension.
His applications were denied initially and on reconsideration.
A hearing before an administrative law judge (ALJ) was held in
November 1994. Newton was 37 years old at the time. His previous jobs
included unskilled or semi-skilled work pouring iron, cutting sod, sweeping
floors, applying hot roofing materials, and doing construction tasks.
These jobs involved medium to very heavy labor, did not require reading or
writing, and were not highly technical in nature.
Since his alleged onset date of disability, Newton has worked at two
jobs. During June to September of 1994, he worked at the Black Hawk
Foundry as a grinder and a metal beater, which involved carrying weights
between 150 to 200 pounds. He earned between $6.50 and $7.26 per hour and
worked at least forty hours per week. He testified at the hearing that he
drank during lunch, but stated he was fired because of an eye injury, from
which he has fully recovered. Newton also worked for one week with Rose's
Wood Products in October 1994, but said he quit because his drinking
prevented him from going to work in the mornings. He testified that he has
looked for other work.
According to intelligence tests, Newton has an I.Q. score of 77,
which is in the borderline range of mental deficiency. Newton testified
that he attended special education classes until the ninth or tenth grade,
but that his reading and arithmetic abilities were at a second grade level.
He said he could not read street signs but did read comic strips and
letters from his girlfriend. He also alleged difficulties with counting
and making change and claimed to have trouble remembering things. Near the
end of the hearing, however, he stated he had been able to concentrate and
2
answer questions during it.
Several medical reports were also introduced into evidence. Stephen
Paul Singley, M.A., evaluated Newton in May 1993. Newton was easily able
to recall his date of birth, the address where he had lived for one month,
and several things about his past. Singley concluded that Newton might
have dyslexia and was "quite incapable . . . of maintaining competitive
employment" if his daily functioning was similar to that during the
interview. Dr. Norman A. Scott reviewed Newton's medical records in July
1993 and concluded that he had moderate deficiencies of concentration,
persistence, or pace resulting in the failure to complete tasks in a timely
manner. Dr. Scott nevertheless concluded that Newton was capable of
completing independent simple activities. Dr. Janet S. McDonough reached
a similar conclusion based on her review in November 1993 of Newton's
records, reporting that he could concentrate well enough to complete
simple, routine tasks.
Newton testified that he suffered from uncontrollable alcoholism.
He claimed two different companies had fired him for drinking on the job
and that he had been arrested three times for driving under the influence.
He stated he drank daily, using money from collected cans to fund his
habit. He has been through eight treatment programs and says he often
starts drinking within a few days after finishing a program. Newton's
treating physician, Dennis Straubinger, D.O., reported in March of 1993
that Newton was no longer using alcohol and that he was capable of working
as of March 25, 1993. Dr. D.V. Domingo, a psychiatrist who examined Newton
in May 1993, also reported that Newton had stated he was no longer using
alcohol, which was substantiated by a lack of alcohol smell on his breath.
Dr. Domingo concluded that if Newton stayed sober, he could carry out
instructions, interact appropriately with people around him, and maintain
attention and concentration for simple jobs such as janitorial work.
3
Newton was suffering no physical impairments except for numbness in
his right fingers due to an injury some eight years before the hearing.
(He writes with his left hand, but claimed he did most things with his
right hand.) Despite surgery to repair a nerve in his right wrist, he said
certain fingers could not feel objects. He stated on a prehearing
questionnaire that he did not take painkillers or any kind of medication.
Newton testified that his daily activities included riding his bike
to collect cans for money, visiting with his girlfriend and friends,
walking around, smoking cigarettes, occasional vacuuming, and fishing with
his eleven-year-old son. He also reported on his benefits application that
he liked to watch race cars and television.
The ALJ posed two hypothetical questions to the vocational expert,
G. Brian Paprocki. The first hypothetical described a younger individual
with no physical limitations, a ninth or tenth grade education, a
borderline range of intelligence, a minimal ability to read and write, an
ability to perform only simple tasks, and an ability to control a drinking
problem. The vocational expert testified that such a person could work as
a foundry worker, commercial cleaner, roofer, or horticultural worker. In
the ALJ's second hypothetical, the individual had all of the above
limitations plus an inability to control his drinking. The expert assumed
such a person would not regularly report to work and could therefore not
hold employment. Newton's attorney then asked the expert about the effect
of the reported deficiency in concentration, persistence, and pace on
Newton's ability to work. The expert responded that these basic work
habits were necessary for a person to maintain employment, and that a
moderate deficiency in these abilities would cause problems on an ongoing
daily basis, "regardless of . . . what the job required from a physical
or skill standpoint."
4
The ALJ issued a decision in February 1995, denying disability
insurance benefits. The ALJ found that Newton was not disabled due to the
performance of substantial gainful activity from June to September 1994 at
the Black Hawk Foundry. The ALJ found that Newton had borderline
intellectual functioning and a history of substance abuse. The ALJ
indicated on an attached Psychiatric Review Technique Form that Newton
often had deficiencies of concentration, persistence, or pace, but found
him capable of maintaining concentration and attention for simple work.
The ALJ stated that Newton had no impairment or combination of impairments
sufficient to meet the requirements in the regulations. The ALJ further
noted that Newton's recent foundry work showed he had no physical
limitations, he could control his drinking problem, and his daily
activities were not greatly restricted. Based on these findings, the ALJ
concluded Newton could perform his past work as a roofer, commercial
cleaner, horticultural laborer, and foundry worker.
Newton pursued his administrative claim further and then turned to
federal court. The Appeals Council denied review in May 1995. The
district court affirmed the Commissioner's decision in December 1995,
concluding that it was supported by substantial evidence on the record as
a whole and not affected by any error of law. On appeal, Newton argues
that he was entitled to a trial work period in 1994, that the hypothetical
question posed to the vocational expert erroneously excluded his
deficiencies of concentration, persistence, or pace, that the ALJ
improperly discredited his complaints of uncontrollable alcoholism, and
that the evidence supported a finding of disability.
II.
The Commissioner's decision to deny disability insurance benefits
will be affirmed unless it is unsupported by substantial evidence in the
record as a whole or based on legal error. Keller
5
v. Shalala, 26 F.3d 856, 858 (8th Cir. 1994). Our review encompasses
evidence that both supports and detracts from the Commissioner's decision.
Mapes v. Chater, 82 F.3d 259, 262 (8th Cir. 1996).
A.
Newton argues that his work from June to September 1994 should not
have been considered as evidence of substantial gainful activity showing
that he was not disabled. He argues that his work constituted a trial work
period which could not be considered in determining his eligibility for
disability insurance benefits. The Commissioner responds that Newton
should not be allowed to raise the issue for the first time on appeal and,
in any event, he is not entitled to a trial work period because he was
never awarded benefits. She contends that the ALJ properly considered
Newton's 1994 work in assessing his alleged disability.
Newton asserted in his district court brief that he was "entitled to
a trial work period" and that his work during 1994 should not be fatal to
his disability claim. That brief cited the trial work provisions in both
the federal statutes and regulations, as well as Lacy v. Sullivan, 810 F.
Supp. 1038, 1040-42 (S.D.Iowa 1992), which discussed the effect on a
disability claim of activity during a trial work period. Newton has
sufficiently raised the trial work period issue, and it is properly before
us.
Under the Social Security Act, every insured individual under the age
of 65 who has filed an application for benefits and is under a disability
is entitled to benefits. 42 U.S.C. § 423(a)(1). Disability means the
"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 12 months." 42 U.S.C. § 423(d)(1)(A).
A person
6
becomes entitled to disability benefits for each month after five
consecutive months of being under a disability. Id. §§ 423(a)(1)(D) &
(c)(2)(A).
A determination of disability is made according to a five-step
sequential process. See 20 C.F.R. § 404.1520. These steps take into
account whether a claimant is working, whether the claimant's physical or
mental impairments are severe, whether the claimant's impairments prevent
a resumption of work done in the past, and whether the claimant's
impairments preclude any other type of work. Id. The regulations also
require a separate sequential process for evaluating allegations of mental
impairments in adult claimants. See id. § 404.1520a(a).
If a claimant is working in a substantial gainful activity, he will
be considered not disabled under step one regardless of his medical
condition, age, education, and work experience. Id. § 404.1420. Any work
performed during a period of claimed disability may show that a claimant
can engage in substantial gainful activity. Id. Relevant factors include
amount of earnings and whether the work was conducted in a sheltered or
special environment. Id. § 404.1574.
Work done during a trial work period, however, may not be considered
in determining whether a claimant's disability has ceased during that
period.2 42 U.S.C. § 422(c)(2); 20 C.F.R. § 404.1592(a); Walker v.
Secretary of Health and Human Services, 943 F.2d 1257, 1260 (10th Cir.
1991); McDonald v. Bowen, 818 F.2d 559, 565 (7th Cir. 1986); Hunter v.
Department of HHS, 851 F.
2
Our review on this issue is limited to Newton's claim for
disability insurance benefits because trial work provisions no
longer apply to claims for supplemental security income benefits.
See Employment Opportunities for Disabled Americans Act, Pub.L.
No. 99-643, 100 Stat. 3574 (1986) (amending 42 U.S.C. § 1382c by
eliminating provisions on trial work period).
7
Supp. 75, 79 (E.D.N.Y. 1994); Lacy v. Sullivan, 810 F. Supp. 1038, 1041
(S.D.Iowa 1992); Tepfer v. Secretary of HHS, 712 F. Supp. 156, 158
(W.D.Ark. 1989). This provision enables a claimant to test his or her
ability to work. 42 U.S.C. § 422(c)(2); 20 C.F.R. § 404.1592(a). Work
performed during the trial period may only be considered in determining
whether a disability ended at some point after the trial period. 20 C.F.R.
§ 404.1592(a). In addition, a claimant's disability may be found to have
ended during the trial work period "if the medical or other evidence shows
that [the claimant is] no longer disabled." Id. § 404.1592(e)(2).
In order to be entitled to a trial work period, a claimant must be
entitled to disability insurance benefits. 42 U.S.C. § 423(a); 20 C.F.R.
§ 404.1592(d)(2)(i). As noted, a claimant becomes entitled to disability
insurance benefits after filing an application and waiting five consecutive
months during which he or she is under a disability that has lasted or can
be expected to last twelve months. 42 U.S.C. §§ 423(a)(1)(D) & (c)(2)(A).
The trial work period begins with the month in which the individual becomes
entitled to disability insurance benefits, but it may not begin before the
month in which the application for benefits is filed. Id. § 422(c)(3); 20
C.F.R. § 404.1592(e). The trial period ends at the close of the ninth
month, whether consecutive or not, in which services have been performed,
or at the month in which evidence besides the trial work shows the claimant
is not disabled. Id. § 404.1592(e)(1) & (2).
In this case, the ALJ's decision of no disability was premised on
Newton's work at the Black Hawk Foundry during 1994. At step one of the
sequential evaluation process the ALJ found that Newton's work from June
to September of 1994 amounted to substantial gainful activity and that he
was therefore not disabled. The ALJ then went on to evaluate Newton's
allegations of disability based on his alleged learning disability,
alcoholism, memory lapses, and hypertension. The ALJ cited the 1994 work
as
8
evidence that Newton's daily activities were fairly unrestricted, he had
no physical limitations, he could control his use of alcohol, and his
alleged impairments did not prevent him from returning to his past relevant
work.
The ALJ erred in basing a decision of no disability on Newton's 1994
work without considering whether it qualified as falling within a trial
work period. If Newton was disabled for five consecutive months before he
began work in June 1994, then he would have been entitled to disability
insurance benefits and a trial work period. 42 U.S.C. §§ 422(c)(3) &
423(a)(1); 20 C.F.R. § 404.1592(e). If he was eligible for a trial work
period in June 1994, then his services for nine months thereafter would
constitute trial work. 20 C.F.R. §§ 404.1592(a) & (e). His trial work
could only show that his disability ended at some point after his trial
period. Id. (emphasis added). The Commissioner could determine that his
disability ended during the trial work period, however, based on medical
or other evidence besides his trial work. Id. § 404.1592(e)(2).
The Commissioner argues that Newton was not entitled to a trial work
period because he had not yet been awarded benefits. She cites 20 C.F.R.
§ 404.1592(d)(1), which states that "[t]hose who are receiving disability
insurance benefits . . . generally are entitled to a trial work period" and
Social Security Ruling 82-52, which states that when a "return to work
demonstrating ability to engage in [substantial gainful activity] occurs
before approval of the award and prior to the lapse of the 12-month period
after onset, the claim must be denied." She interprets these provisions
to mean that only those claimants who are awarded and receiving benefits
may have a trial work period.
While courts must give deference to an agency's interpretation of its
own regulations, courts are not bound by them and they are not conclusive.
White Industries, Inc. v. F.A.A., 692 F.2d 532,
9
534 (8th Cir. 1982). Social Security rulings are intended to bind only the
Social Security Administration. 20 C.F.R. § 422.406(b)(1). They have
neither the force nor effect of law or Congressionally promulgated
regulations. See Heckler v. Edwards, 465 U.S. 870, 874 n.3 (1983).
The cited regulation, 20 C.F.R. § 404.1592(d)(1), does not exclude
those who have not yet received benefits from engaging in trial work. That
provision does not state that only those who are receiving benefits are
entitled to a trial work period, only that they "generally are entitled"
to one. The only express requirement in the regulations for entitlement
to a trial work period is that a person be "entitled" to disability
insurance cash benefits. Id. § 404.1592(d)(2)(i). Under the statute,
entitlement to such benefits is not conditioned upon receipt of a benefits
award, but only upon the passage of five consecutive months of disability
lasting twelve continuous months. 42 U.S.C. §§ 423(a)(1)(D) & (c)(2)(A).
A claimant may thus actually become entitled to disability benefits before
adjudication of his claim, and then the claimant's trial work period would
also begin before an award of benefits is approved.
The agency ruling, SSR 82-52, is inconsistent with the statutory
provisions governing the start of a trial work period. Under SSR 82-52,
a trial work period may begin only after benefits have been awarded and the
claimant has had a disability for twelve consecutive months.3 According
3
It is also unclear whether SSR 82-52 even applies in this
case. The ruling provides that a disability claim should be
denied if the claimant works before an award is approved and
before "the lapse of the 12-month period after onset [of
disability]." The ruling does not elaborate on whether the
period of twelve consecutive months begins immediately following
the alleged onset disability date, or at some point after the
onset date. If the former interpretation were correct, then SSR
82-52 would not seem to apply here because Newton's 1994 work at
the Black Hawk Foundry occurred well after the twelve consecutive
months following his
alleged onset disability date of October 30, 1992. Neither party
addressed this possibility in their briefs, and we have found no
case law on point. In light of our conclusion that Newton may be
entitled to a trial work period under the regulations, we find it
unnecessary to resolve this issue.
10
to the statute and regulations,
11
though, a trial work period starts in the month that entitlement to
disability benefits begins, which is the month following five consecutive
months of being under a disability that has lasted or is expected to last
a total of twelve continuous months. 42 U.S.C. § 423(d)(1)(A) (emphasis
added); 20 C.F.R. § 404.1592(e); Walker, 943 F.2d at 1260; Hunter, 851 F.
Supp. at 79; Lacy, 810 F. Supp. at 1041. In other words, under the
statute, a claimant need not have had a disability for twelve consecutive
months before he may test his ability to work.
Moreover, conditioning trial work periods upon prior receipt of
benefits would subject claimants to the vagaries of the administrative
office in which the claim was filed. An individual whose claim is
efficiently processed might be able to begin trial work after expiration
of the five-month waiting period and award of benefits, in contrast to
another claimant who filed in a busier or less efficient office. See
Tepfer, 712 F. Supp. at 159. Claimants could be discouraged from working
prior to an adjudication, and, under SSR 82-52, they would be forced to
remain idle for at least one year. This situation would be inconsistent
with the trial work period policy to encourage people to return to work as
soon as possible. 42 U.S.C. § 422(c); Walker, 943 F.2d at 1260; McDonald,
818 F.2d at 1264; Hunter, 851 F. Supp. at 78.
The language in the statutes and regulations does not require that
a trial work period be conditioned on a prior receipt of benefits and/or
the lapse of a twelve month period of disability. See 42 U.S.C.
§ 422(c)(2); 20 C.F.R. § 404.1592(a); Walker, 943 F.2d at 1260; McDonald,
818 F.2d at 565; Hunter, 851 F. Supp. at 79; Lacy, 810 F. Supp. at 1041;
Tepfer, 712 F. Supp. at 158. The
12
Commissioner thus erred in considering Newton's summer 1994 work as
evidence of substantial gainful activity to support a finding of no
disability without first determining whether he had been entitled to a
trial work period during that time.
B.
Newton also challenges a hypothetical question posed to the
vocational expert. In support of a finding of no disability, the ALJ cited
the vocational expert's response to a hypothetical question which described
a person with a minimal ability to read and write, a borderline range of
intelligence, a ninth or tenth grade education, an inability to perform
highly skilled or technical work, a capacity for simple jobs, and a
demonstrated ability to control his drinking problem. Newton argues that
this question was defective because it omitted medical evidence of his
deficiencies of concentration, persistence, or pace resulting in a failure
to complete tasks in a timely manner.
A hypothetical question must precisely describe a claimant's
impairments so that the vocational expert may accurately assess whether
jobs exist for the claimant. Smith v. Shalala, 31 F.3d 715, 717 (8th Cir.
1994). A vocational expert cannot be assumed to remember all of a
claimant's impairments from the record. Whitmore v. Bowen, 785 F.2d 262,
263-64 (8th Cir. 1986). An expert's testimony based upon an insufficient
hypothetical question may not constitute substantial evidence to support
a finding of no disability. Id.
There is no dispute in the medical evidence that Newton suffers from
deficiencies of concentration, persistence, or pace, or that these were not
mentioned in the hypothetical question. Dr. Scott found that Newton had
moderate deficiencies in his ability to carry out detailed instructions,
maintain attention and concentration for extended periods, perform
activities within a
13
schedule, maintain regular attendance, be punctual within customary
tolerances, complete a normal work week, and perform at a consistent pace
without an unreasonable number and length of rest periods. Dr. McDonough
found that Newton was markedly limited in his ability to carry out detailed
instructions and moderately limited in his ability to maintain attention
and concentration for extended periods. Consistent with these findings,
the ALJ stated on the Psychiatric Review Technique Form attached to the
decision that Newton "often" has deficiencies of concentration,
persistence, or pace.
The vocational expert could not have been expected to remember
Newton's deficiencies in these areas from the record alone. See Whitmore,
785 F.2d at 263-64. Since these deficiencies were not included in the
hypothetical question, the expert did not base his opinion on the full
extent of Newton's limitations and his testimony could not have constituted
substantial evidence to support the Commissioner's decision. Id.
The Commissioner contends that these deficiencies did not have to be
included in the hypothetical question because the question limited Newton's
capabilities to simple jobs. She notes that Drs. Scott and McDonough
concluded that Newton's concentration problems did not significantly limit
his abilities to follow short and simple instructions and make simple work-
related decisions, and that Dr. Domingo determined Newton could maintain
concentration for simple work.
The vocational expert stated on cross-examination, however, that
Newton's concentration and persistence problems related to basic work
habits needed to maintain employment. A moderate deficiency in these
areas, the expert testified, would cause problems on an ongoing daily
basis, "regardless of . . . what the job required from a physical or skill
standpoint." The expert's original response to the hypothetical question
may thus have been
14
different if the question had already described all of Newton's functional
limitations. See Smith, 31 F.3d at 717. Any hypothetical question on
remand should include Newton's deficiencies of concentration, persistence,
or pace so that the vocational expert might accurately determine his
ability to work.
C.
Newton contends that the ALJ erroneously discredited his complaints
of uncontrollable alcoholism by failing properly to apply the standards set
forth in Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984) (subsequent
history omitted). He asserts that the overwhelming evidence shows he
cannot control his drinking and he is thereby incapable of working.
In order to establish disability due to alcoholism, a claimant must
show that he has lost self-control to the point of being "impotent to seek
and use means of rehabilitation" and that his disability is encompassed by
the Act.4 Starr v. Sullivan, 981 F.2d 1006, 1008 (8th Cir. 1992) (citation
omitted). A key factor in assessing a claimant's ability to control his
use of alcohol is his ability to engage in substantial gainful activity.
Mapes, 82 F.3d at 263. The claimant's credibility is also assessed in
relation to daily activities; the duration, frequency, and intensity of the
4
Recent amendments to the Social Security Act eliminate
alcoholism as a basis for obtaining disability insurance and
supplemental security income benefits. See Contract with America
Advancement Act of 1996, Pub. L. No. 104-121, 110 Stat. 847, 852-
53 (amending 42 U.S.C. §§ 423(d)(2) & 1382(c)). For claims
decided by the Commissioner before March 29, 1996 (the enactment
date of the amendments), disability benefits beginning on, or
after, January 1, 1997 may not be based on alcoholism. 110 Stat.
at 853-54. The final administrative adjudication of Newton's
claim was made in May 1995, when the Appeals Council denied
Newton's request for review of the ALJ's decision. If Newton
were disabled by alcoholism, his eligibility for benefits on this
basis could not extend beyond January 1, 1997. See id.
15
subjective complaint; precipitating and aggravating factors; dosage,
effectiveness, and side effects of medication; and functional restrictions.
Polaski, 739 F.2d at 1322.
The ALJ found that Newton's alcohol usage had not been an
uncontrolled or persistently significant influence on his work abilities
based in part on his past twenty years of work and the 1994 work at the
Black Hawk Foundry. Although Newton worked fairly consistently from 1973
through 1992, it was in October 1992 that his alcoholism became allegedly
disabling. After that date, the only substantial gainful activity the ALJ
found that Newton had performed was his few months of work in 1994 at the
foundry. On remand, the ALJ may need to reexamine Newton's ability to
control his alcohol usage depending upon its determination of the trial
work period issue.
III.
The judgment of the district court is reversed and the matter is
remanded so that the court may direct further administrative proceedings
consistent with this opinion.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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