Hardy v. Social Security ( 1999 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30964
CAROL HARDY,
Plaintiff-Appellant,
v.
KENNETH S APFEL, Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
(97-CV-2137)
September 27, 1999
Before REAVLEY, HIGGINBOTHAM and DENNIS, Circuit Judges.
PER CURIAM:*
Carol Hardy appeals the district court’s affirming the
denial of her application for Social Security disability
benefits. We vacate and remand.
On September 28, 1992, plaintiff Hardy filed an application
for supplemental security benefits. On August 15, 1994, Hardy
received a hearing before an administrative law judge (the
“ALJ”). Following the hearing, the ALJ submitted written
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
interrogatories to a vocational expert, Jeffery Peterson. Hardy
then requested and received a supplemental hearing before a
second ALJ on September 20, 1995 to allow the opportunity to
cross-examine the vocational expert. On March 14, 1996, the ALJ
determined that Hardy was not disabled because she could perform
a significant number of “other jobs” in the national economy.
Hardy filed a request for review of the decision by the Appeals
Council. The request for review was denied. Hardy then sought
judicial review of the ALJ’s determination. The district court
affirmed the ALJ’s decision with regard to plaintiff Hardy’s
disability application and dismissed the plaintiff’s action with
prejudice.
This court’s review is limited to two inquiries: 1) whether
the decision is supported by substantial evidence in the record,
and 2) whether the proper legal standards were used in evaluating
the evidence. See Greenspan v. Shalala, 38 F.3d 232, 236 (5th
Cir. 1994).
The Social Security Act, as amended, permits the payment of
insurance benefits to persons who have contributed to the program
and who suffer a physical or mental disability. 42 U.S.C. §
423(a)(1)(D). A claimant is not entitled to disability benefits
unless he establishes that he is unable “‘to engage in any
substantial gainful activity by reason of [a] medically
determinable physical or mental impairment... which has lasted or
can be expected to last for a continuous period of not less than
12 months.’” See Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir.
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1994) (quoting 42 U.S.C. §§ 416(i), 423(d)(1)(A)). In making
this determination, a five-step sequential evaluation process is
applied: (1) a claimant who is working, engaging in a substantial
gainful activity, will not be found to be disabled no matter what
the medical findings are; (2) a claimant will not be found to be
disabled unless he has a “severe impairment”; (3) a claimant
whose impairment meets or is equivalent to an impairment listed
in Appendix 1 of the regulations will be considered disabled
without the need to consider vocational factors; (4) a claimant
who is capable of performing work that he has done in the past
must be found “not disabled”; and (5) if the claimant is unable
to perform his previous work as a result of his impairment, then
factors such as his age, education, past work experience, and
residual functional capacity must be considered to determine
whether he can do other work. See Bowling, 36 F.3d at 435. The
burden of proof is on the claimant for the first four steps, but
shifts to the Secretary at step five. Id. (citing Anderson v.
Sullivan, 887 F.2d 630, 632-33 (5th Cir. 1989)).
Having reviewed the parties’ briefs and the record, we find
that the ALJ’s finding that Hardy can engage in some kind of
gainful employment is not supported by substantial evidence.
Without satisfactory explanation, the ALJ failed to sufficiently
consider clinical psychologist Dr. Charles B. Cox’s opinion
regarding Hardy’s inability to deal with the public, to handle
work stresses, to function independently, to demonstrate
reliability or to maintain attention or concentration. The ALJ
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also failed to address Dr. Cox’s observations that Hardy
exhibited “very sluggish” mentation, “little or no initiative”
and a poor memory and Dr. Cox’s opinion that Hardy’s emotional
and intellectual status would further deteriorate “due to a trend
toward apathy and withdrawal.” The ALJ’s failure to adequately
consider the opinion of Dr. Cox is particularly troubling given
the fact that Dr. Cox was the only expert to prepare a Mental
Assessment of Ability to Do Work-Related Activities form
concerning Hardy. Moreover, the ALJ failed to evaluate or take
into account the vocational expert’s opinion that the additional
limitations discovered by Dr. Cox would preclude Hardy from
performing any substantial gainful activity. In sum, the medical
evidence in the record does not provide substantial support for
the ALJ’s conclusion that Hardy suffered no disability.
Therefore, we VACATE the district court’s order dismissing
Hardy’s complaint, and REMAND to the district court with
instructions to remand this case to allow the ALJ an opportunity
to reconsider her findings in light of the apparent lack of
substantial evidence available to support them.
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