Debbie Johnson v. Shirley S. Chater

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No. 96-2614
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Debbie A. Johnson, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Shirley S. Chater, Commissioner *
of the Social Security *
Administration, *
*
Appellee. *
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Submitted: December 13, 1996
Filed: March 6, 1997
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Before McMILLIAN and MAGILL, Circuit Judges, and WEBBER,1 District Judge.
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MAGILL, Circuit Judge.
Debbie Johnson appeals the denial of Social Security Disability
Insurance and Supplemental Security Income benefits. The Social Security
Commissioner (Commissioner) denied Johnson benefits after determining that,
although Johnson could not return to her former work, she could perform
jobs that existed in significant numbers in the national economy.
Johnson's sole claim on appeal is that the vocational expert's testimony
is insufficient to meet the Commissioner's burden of proof. We disagree
and affirm.
1
THE HONORABLE E. RICHARD WEBBER, United States District Judge
for the Eastern District of Missouri, sitting by designation.
I.
Johnson claims to be disabled because of a back injury she suffered
in a car accident in January 1992. She applied for disability benefits on
July 26, 1993. The Commissioner denied her initial request for benefits
and again denied her request for benefits on reconsideration. Johnson
appealed the denial to an administrative law judge (ALJ). After holding
a hearing, the ALJ denied Johnson's request for disability benefits.
Johnson appealed the ALJ's decision to an administrative appeals council,
which also denied Johnson's request for disability benefits. Johnson then
sought judicial review of the council's denial of benefits in district
court.2 The district court affirmed the decision of the Commissioner to
deny benefits. Johnson now appeals the district court's decision.
Johnson is thirty-six years old and has had severe back problems ever
since she was involved in a car accident in January 1992. She has two
herniated disks, and alleges obesity, headaches, and dizziness as further
causes of severe impairment. She has been examined by a variety of
physicians who have come to a variety of different conclusions about her
medical condition. None of the physicians, however, has advised her to
stop working. At least one physician has concluded that Johnson should not
lift anything above thirty pounds. Johnson's own remarks to her treating
physicians about her headaches and dizziness are inconsistent. She has
stated that her headaches and dizziness are severe enough to require
missing work two days a week, but she has also denied having headaches and
dizziness. The ALJ found that Johnson held a job as a telemarketer after
her alleged onset of disability date, but that she quit the job because of
a pay cut.
2
The Honorable Charles R. Wolle, United States District Judge
for the Southern District of Iowa.
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Johnson is a single parent who lives with her eleven-year-old
daughter in a two-story duplex. She has stated that, although her daughter
normally washes the dishes, she does light housekeeping and the cooking.
In addition, Johnson drives her daughter to and from school and drives to
and from work and church. This amounts to about thirty miles of driving
each week.
According to the ALJ, Johnson's impairments or combination of
impairments do not meet or equal the criteria of any impairment listed in
the Social Security Regulation's Listing of Impairments. See 20 C.F.R.
§ 404, Subpt. P, App. 1. Johnson takes no medication for her lower back
pain, although she describes the pain as persistent. Johnson has not
sought medical treatment since October 1993. She has never been treated
for her alleged headaches and dizziness.
Although the ALJ determined that Johnson could not return to her past
relevant work, the ALJ also found that Johnson is capable of performing
jobs that "exist[] in significant numbers in the national economy . . . .
Examples of such jobs are: addresser, document preparer, and telemarketer."
ALJ Op. at 13, Finding No. 11. In support of this finding, the ALJ noted
that the vocational expert said that Johnson could perform sedentary,
unskilled labor like that of an addresser or a document preparer, of which
"there are 200 positions in Iowa and 10,000 positions nationwide." ALJ Op.
at 10. The ALJ specifically noted that the vocational expert had stated
that these figures were "just a representative sampling of a larger number
of jobs the claimant was capable of doing," including telemarketing, a job
in which the claimant was employed at the time of the hearing. Id.
(emphasis added).
Based on the ALJ's findings that Johnson is able to perform jobs that
exist in significant numbers in the national economy, the Commissioner
denied Johnson's request for disability benefits. On appeal, Johnson
maintains that there do not exist in "significant
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numbers" jobs that she is capable of performing and, as a result, the
Commissioner did not meet her burden of proof to show that Johnson is not
disabled under the Social Security Act.
II.
When reviewing the Commissioner's decision to deny benefits to a
claimant, this Court must determine "whether there is substantial evidence
based on the entire record to support the ALJ's factual findings, and
whether his decision was based on legal error." Clark v. Chater, 75 F.3d
414, 416 (8th Cir. 1996); see also 42 U.S.C. § 405(g) (1994). Substantial
evidence is "such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Clark, 75 F.3d at 416 (quotations and
citation omitted). This Court must consider "both evidence that supports
and evidence that detracts from the Secretary's decision, but we may not
reverse merely because substantial evidence exists for the opposite
decision." Johnson v. Chater, 87 F.3d 1015, 1017 (8th Cir. 1996). The ALJ
may discount subjective complaints that are inconsistent with medical
reports, daily activities, and other evidence. See Haynes v. Shalala, 26
F.3d 812, 814-15 (8th Cir. 1994).
The ALJ found that Johnson could not return to her past relevant
work. As a result, the burden shifted to the Commissioner to prove that
Johnson is not disabled under the Social Security Act. See Pickner v.
Sullivan, 985 F.2d 401, 403 (8th Cir. 1993) ("Only after the claimant
establishes that a disability precludes performance of past relevant work
will the burden shift to the Secretary to prove that the claimant can
perform work."); Evans v. Shalala, 21 F.3d 832, 835 (8th Cir. 1994). The
burden was on the Commissioner to demonstrate that there are other jobs
available in the national economy that Johnson can perform. See Evans, 21
F.3d at 835; see also 42 U.S.C. § 423(d)(2)(A) (1994); 20 C.F.R.
§ 404.1560, § 404.1561 (1996).
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One way in which the Commissioner can meet the burden of proof
necessary to show that a claimant who suffers from nonexertional pain is
not disabled under the Social Security Act is through the testimony of a
vocational expert. Evans, 21 F.3d at 835. Hypothetical questions posed
to the vocational expert "need only include those impairments that the ALJ
accepts as true." Haynes, 26 F.3d at 815; see also House v. Shalala, 34
F.3d 691, 694 (8th Cir. 1994).
To decide whether work exists in significant numbers, this Circuit
has adopted the standards set forth in Hall v. Bowen, 837 F.2d 272, 275
(6th Cir. 1988). See Jenkins v. Bowen, 861 F.2d 1083, 1087 (8th Cir. 1988)
(adopting Hall). After discussing certain factors that a judge might
consider in making this determination, such as the reliability of the
claimant's and the vocational expert's testimony, the Hall court stated
that "[t]he decision should ultimately be left to the trial judge's common
sense in weighing the statutory language as applied to a particular
claimant's factual situation." Jenkins, 861 F.2d at 1087 (quoting Hall,
837 F.2d at 275).
Here, the Commissioner met her burden of showing that Johnson is not
disabled because the vocational expert's testimony was sufficient to show
that there exist a significant number of jobs in the economy that Johnson
can perform. The vocational expert testified that a person like Johnson
could perform sedentary, unskilled labor. The vocational expert noted that
the addresser and document preparer jobs were sedentary, unskilled labor
that Johnson could perform, and that there existed 200 jobs of addresser
or document preparer in Iowa and 10,000 in the national economy. The
vocational expert further testified that these figures were merely
representative of a larger category of jobs that Johnson could perform,
including telemarketing. The vocational expert did not give figures to
describe the total number of unskilled, sedentary jobs in Iowa or the
national economy. However, at the
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time of the hearing before the ALJ, Johnson was engaged in one of the
sedentary jobs that the vocational expert said she was capable of
3
performing, telemarketing.
Finally, the Commissioner's decision to deny Johnson disability
benefits is bolstered by the fact that Johnson received unemployment
compensation during the time she claims to have been disabled. This Court
has noted that "[a] claimant may admit an ability to work by applying for
unemployment compensation benefits because such an applicant must hold
himself out as available, willing and able to work." Jernigan v. Sullivan,
948 F.2d 1070, 1074 (8th Cir. 1991); see also Barrett v. Shalala, 38 F.3d
1019, 1024 (8th Cir. 1994). Applying for unemployment benefits "may be
some evidence, though not conclusive, to negate" a claim of disability.
Jernigan, 948 F.2d at 1074.
III.
Because the Commissioner's decision to deny benefits was supported
by substantial evidence, we affirm.
3
Johnson relies on several district court cases to attempt to
bolster her contention that 200 jobs in Iowa is not a significant
number of jobs and that the Commissioner consequently failed to
show that Johnson is not disabled. See, e.g., Jimenez v. Shalala,
879 F. Supp. 1069, 1076 (D. Colo. 1995) (holding that "200-250 jobs
spread across Colorado is not significant"); Waters v. Secretary,
827 F. Supp. 446, 449 (W.D. Mich. 1992) (holding that 1000 jobs in
Michigan, all of which would require at least 180 miles of travel
to get to them, is not a significant number). These cases are
unpersuasive, however, particularly in light of the overall record
before this Court. The cases Johnson cites are all fact-intensive,
and none stand for the proposition that 200 jobs in Iowa is not a
significant number.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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