Sandra Taylor v. Shirley Chater ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 96-3501
___________
Sandra G. Taylor, *
*
Plaintiff - Appellant, * Appeal from the United States
* District Court for the
v. * Western District of Missouri.
*
Shirley S. Chater, Commissioner *
of Social Security, *
*
Defendant - Appellee. *
___________
Submitted: March 12, 1997
Filed: July 9, 1997
___________
Before McMILLIAN, FLOYD R. GIBSON, and JOHN R. GIBSON, Circuit Judges.
___________
JOHN R. GIBSON, Circuit Judge.
Sandra G. Taylor appeals the district court's affirmance of a denial
of Social Security benefits. Because the record does not contain
substantial evidence to support the finding of the Administrative Law
Judge, but instead contains substantial evidence of Taylor's disability,
we reverse and award benefits to Taylor.
In July of 1993, Taylor applied for disability insurance benefits
and supplemental security income benefits, alleging that she had been
disabled beginning
March 15, 1989 due to severe back pain.1 The Department of Health and
Human Services, Social Security Administration, denied her application, as
well as her request for reconsideration. Taylor then requested a hearing
before an ALJ. At the time of the hearing on June 22, 1994, Taylor was 38
years old and had a high school degree. Taylor had worked at a cafeteria
from October of 1975 to March of 1989, except for a three year period that
Taylor took off to give birth to a child and to have back surgery. Her job
at the cafeteria involved carrying trays, cleaning tables, filling in as
a server, and filling coffee stations with ice, tea, and coffee, as well
as doing whatever else needed to be done.
Taylor started to have problems with her back during the 1980's. In
December of 1985 Taylor had a spinal fusion. After the surgery, Taylor did
not go back to work until 1987 and then continued to work until March 1989.
Toward the end of her employment, Taylor began suffering back problems
again, which affected her ability to do her work, and eventually caused her
to quit.
In 1989, Taylor saw Dr. Marion Wolf about her back pain. In 1990,
she again saw Dr. Wolf who then referred her to Dr. Jim Cook. In November
of 1990, Dr. Cook attempted an epidural block on Taylor's back. In 1993,
Dr. Charles Ash examined Taylor and observed that she had limited motion
in her spine and believed that her x-rays indicated that she might suffer
from pseudarthrosis. Stedman's Medical Dictionary
1
Taylor met the special insured status requirements of Title II of the Social
Security Act on March 15, 1989, the date she alleges onset of disability, and last met
the requirements on June 30, 1991. Therefore, for the purpose of Taylor's disability
insurance benefits claim, one issue before the ALJ was whether Taylor was a disabled
individual under Title II of the Act beginning March 15, 1989 or on or before June 30,
1991. For the purpose of her supplemental security income claim, another issue was
whether, at the time or after she protectively filed the application for supplemental
security income benefits on July 9, 1993, she was a disabled individual under the
provisions of Title XVI of the Act.
-2-
defines pseudarthrosis as "[a] new, false joint arising at the site of an
ununited fracture." Stedman's Medical Dictionary 1449 (26th ed. 1995).
He further commented that Taylor had "significant impairment of function
of the back." In January of 1993, Taylor saw Dr. Paul Olive about her
back pain. In November of 1993, Dr. Aly Mohsen diagnosed Taylor with
pseudarthrosis, chronic pain syndrome, as well as other complications
related to her back.
At the hearing Taylor testified that she suffered back pain daily.
Taylor's activities were limited because she could only sit for fifteen to
twenty minutes at a time before she had to stand or lie down. She also
stated that she could only stand for fifteen or twenty minutes at a time
before she had to sit or lie down. In addition, Taylor testified that she
had to lie down at least two or three times per day. Taylor said that she
could not reach down or bend, and that she simply got down on her hands and
knees and crawled in order to do an activity that required leaning over.
For example, Taylor explained that she must get down on her hands and knees
and crawl around the bed to make it. She testified that she had trouble
washing dishes for twenty minutes, and that she needed help taking care of
her home. She stated that she could walk only about one block before she
needed to rest, and that she had difficulty walking up the two stair steps
in her home. She also stated that she never attempted to lift more than
ten pounds.2
During the hearing, the ALJ called a vocational expert to testify.
The ALJ asked the vocational expert a hypothetical question about whether
an individual that could only lift occasionally a maximum of ten pounds,
and frequently carry less than ten pounds, who could stand or walk for up
to a total of two hours per eight-hour work day
2
During the hearing, Taylor's counsel examined her about her condition both
before and after June 30, 1991. The description provided in this paragraph accurately
describes her testimony concerning her condition both before and after June 30, 1991.
-3-
and sit for up to six hours per eight-hour work day, could do dining room
attendant work. The expert testified that this hypothetical person could
not work at Taylor's past job at the cafeteria, but could work in other
sedentary, unskilled positions such as an addresser,3 a patcher,4 or a food
and beverage order clerk.5 Taylor's counsel then altered the hypothetical
by asking the vocational expert to assume that the hypothetical individual
described by the ALJ could stand or sit only ten to fifteen minutes at a
time, would have to get up and move around frequently, and would have to
lie down two or three times per day. The vocational expert stated that no
jobs in the national or regional economy could be performed by an
individual with these limitations.
The ALJ found Taylor's testimony that she had disabling back pain on
a daily basis "inconsistent, self-serving, and exaggerated" and therefore
found Taylor not credible. He found the vocational expert's testimony,
however, to be credible, and thus determined that although Taylor could not
perform her past job at the cafeteria, she could perform sedentary-type
unskilled work that existed in the economy. The ALJ therefore concluded
that Taylor was not disabled as defined in the Social Security Act.
The Appeals Council of the Social Security Administration denied
Taylor's request for review, and she brought this action in federal
district court. Taylor and the Commissioner both filed motions for summary
judgment. On June 11, 1996, the district court granted summary judgment
in favor of the Commissioner affirming the denial of benefits. Taylor
appeals.
3
The vocational expert described an addresser as one who addresses envelopes
and similar items for mailing and sorts mail.
4
The vocational expert explained that a patcher covers wired electrical
appliances with insulating fabric.
5
The vocational expert explained that a food and beverage clerk takes food and
beverage orders over a closed communication system.
-4-
On appeal, Taylor argues that there is no substantial evidence in the
record to support the ALJ's rationale for disbelieving her testimony, and
therefore asserts that the hypothetical question posed to the vocational
expert did not include all of Taylor's impairments. Because a vocational
expert's testimony based on an insufficient hypothetical question does not
constitute substantial evidence, Taylor argues the district court erred in
denying her claim.
Our review is limited to whether the Commissioner's decision to deny
disability benefits is supported by substantial evidence on the record as
a whole. See Lorenzen v. Chater, 71 F.3d 316, 318 (8th Cir. 1995).
Substantial evidence is less than a preponderance, but enough that a
reasonable mind might find it adequate to support the conclusion. See
Johnson v. Chater, 108 F.3d 942, 944 (8th Cir. 1997).
We conclude that the Commissioner's decision to deny benefits to
Taylor is not supported by substantial evidence. The ALJ found that
Taylor's testimony was not credible. An ALJ may discount a claimant's
subjective complaints only if there are inconsistencies in the evidence as
a whole. See Johnson, 108 F.3d at 947. The ALJ stated in his opinion that
Taylor testified that she suffered from "daily intractable pain at all
times since March 1989" and from "daily disabling back pain since 1989."
The ALJ found this testimony "inconsistent, self-serving, and exaggerated."
In support of this conclusion the ALJ stated that Taylor had admitted in
her testimony that occasionally her back pain had been relieved or had
improved.
There is no substantial evidence in the record to support the ALJ's
conclusion that Taylor's testimony was inconsistent. Taylor testified that
her pain had gotten worse since March 1989 and that her back problems
placed great limitations on her activities. Though she did state that she
had suffered and continues to suffer pain on a daily basis, she also
testified that some days were better than others and that some treatments
had at least temporarily improved her condition. Read in context, Taylor's
testimony demonstrates that Taylor's back problems have caused her
significant pain from 1989
-5-
to the hearing, though at times certain procedures had temporarily relieved
or lessened some of her pain. In sum, Taylor's testimony of her disabling
back pain is substantially supported by the record, and there are no
inconsistencies in the record which justify the ALJ's refusal to credit
Taylor's subjective complaints of back pain. The whole record of the
hearing provides substantial evidence that Taylor suffered a great deal of
pain because of her back problems.
The ALJ commented further that Taylor had not seen a doctor
regularly, and that none of the medical reports indicated that she had ever
told a doctor that her condition required her to lie down during the day.
He concluded that "[i]f she is lying down that much, it is apparently an
'inactivity' of personal choice." The administrative record indicates that
Taylor saw a doctor for her back pain several times since 1989. Further,
the lack of information contained in any of the reports completed by
Taylor's doctors does not qualify as an inconsistency in the evidence as
a whole. The medical reports certainly made no attempt to catalog Taylor's
every pain and her behavior resulting from the pain.
We see no inconsistencies in the record that justify finding Taylor
not credible.
Based upon the ALJ's conclusion that Taylor was not credible, the ALJ
rejected Taylor's testimony that she could only stand or sit for fifteen
minutes before changing positions, and that she had to lie down at least
two or three times per day. The ALJ omitted these limitations from the
hypothetical he presented to the vocational expert who testified during the
hearing. He asked the expert whether an individual with certain
limitations could perform dining room work. The limitations he listed
included:
lifting and/or carrying the maximum of ten pounds on occasional
basis and less than that on a frequent basis and is able to
stand and /or walk up to a total of about two hours in an
eight-hour work day and sit for up to six hours in an eight-
hour work day. Both of those with usual breaks. And is able
to push and/or pull either hand or foot controls and same
weight
-6-
basis as for lifting and carrying and is limited on climbing to
only occasionally doing climbing of ramps and stairs. Also is
limited to only occasionally stooping and should not do
kneeling, crouching or crawling in work activities and is able
to do balancing on frequent basis. The individual should work
in an atmosphere of [sic] work station that avoids concentrated
exposure to extreme cold and extreme heat and hazards such as
working around heavy machinery or uneven surfaces.
The expert responded that this hypothetical individual would not be
able to do dining room attendant work. The expert explained, however, that
an individual with Taylor's vocational background and the limitations
outlined in the hypothetical could work in some unskilled, sedentary jobs
such as an addresser, a patcher, or as a food and beverage order clerk.
Testimony from a vocational expert is substantial evidence only when
the testimony is based on a correctly phrased hypothetical question that
captures the concrete consequences of a claimant's deficiencies. See Porch
v. Chater, No. 95-4025, 1997 WL 272322, at *5 (8th Cir. May 23, 1997);
Pickney v. Chater, 96 F.3d 294, 297 (8th Cir. 1996). Therefore, the
hypothetical question answered by a vocational expert must include all
those impairments that are substantially supported by the record as a
whole. See Porch, No. 95-4025, 1997 WL 272322 at *5. Here, the ALJ's
hypothetical seemed to be based largely on Taylor's residual functional
capacity assessment checklist. Residual functional capacity checklists,
though admissible, are entitled to little weight in the evaluation of a
disability. See Gilliam v. Califano, 620 F.2d 691, 693 (8th Cir. 1980).
The hypothetical included an unsupported claim that Taylor could stand or
walk for up to two hours and sit for up to six hours in an eight-hour work
day. Taylor's testimony was that she could only sit or stand for a maximum
of fifteen to twenty minutes at a time before needing to change position,
and that she had to lie down at least two to three times per day. The
hypothetical thus incorrectly characterized Taylor's impairments. Because
the ALJ credited the vocational expert's opinion that was grounded on a
hypothetical that incorrectly characterized Taylor's
-7-
deficiencies, there is no substantial evidence to support the expert's
testimony that there are jobs in the economy that Taylor can perform. See
id. at 693-94. See also Olson v. Shalala, 48 F.3d 321, 323 (8th Cir. 1995)
(ALJ incorrectly credited testimony of a vocational expert based on
hypothetical which directly conflicted with record as a whole indicating
claimant was incapable of sitting for any length of time).
Taylor's counsel then asked the vocational expert to alter the
hypothetical by increasing the hypothetical individual's limitations as
follows: that the individual could stand and sit only for ten to fifteen
minutes at a time; would have to get up and move around frequently; and
would have to lie down two or three times per day. Because substantial
evidence exists in the record to show that Taylor suffered from these
impairments, she was entitled to have the vocational expert consider them,
along with the other impairments listed in the ALJ's hypothetical. See
Pickney, 96 F.3d at 297. In response to the second hypothetical, the
vocational expert testified that there would be no jobs in the national or
regional economy that could be performed by an individual with these
limitations. The ALJ thus incorrectly denied benefits to which Taylor was
entitled.6
Although remand to the district court with instructions to remand to
the Commissioner for further proceedings is the normal remedy, remand is
not necessary where the record overwhelmingly supports a finding of
disability. See Olson, 48 F.3d at 323. Here, when Taylor's counsel
presented a hypothetical to the vocational expert that properly
characterized Taylor's disabilities, the expert testified that there were
no jobs in the national or regional economy that such a hypothetical
individual could perform. Taylor is thus disabled within the meaning of
the Social Security Act. Moreover, our review of the record indicates that
Taylor's disability existed before, as well as after, June 30, 1991.
6
Substantial evidence in the record indicates that Taylor suffered from these
additional limitations both before and after June 30, 1991.
-8-
Accordingly, we reverse the district court's decision and remand the
case to the district court with directions to grant summary judgment in
favor of Taylor, and to remand the case to the Commissioner with directions
to grant benefits to Taylor.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-9-