Bun MONTGOMERY, Appellant, v. Shirley S. CHATER, Commissioner of Social Security, Appellee

69 F.3d 273, 1995 U.S. App. LEXIS 31043
CourtCourt of Appeals for the Eighth Circuit
DecidedNovember 2, 1995
Docket95-1387
StatusPublished
Cited by56 cases

This text of 69 F.3d 273 (Bun MONTGOMERY, Appellant, v. Shirley S. CHATER, Commissioner of Social Security, Appellee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bun MONTGOMERY, Appellant, v. Shirley S. CHATER, Commissioner of Social Security, Appellee, 69 F.3d 273, 1995 U.S. App. LEXIS 31043 (8th Cir. 1995).

Opinions

RICHARD S. ARNOLD, Chief Judge.

In this Social Security case, Bun Montgomery appeals the denial of his claim for disability benefits. The Administrative Law Judge concluded that Montgomery could not return to his past work, but that he has the residual functional capacity to perform other work. The Commissioner, however, failed to identify jobs within the economy which Montgomery could perform. Therefore, we reverse and remand.

I.

Bun Montgomery applied for disability insurance benefits in April of 1990, claiming disability based on congestive heart failure and irritable bowel disease. Montgomery’s claim was initially denied, and a hearing before an ALJ ensued. At the time of the hearing, Montgomery was 48 years old and a high school graduate, and had attended college for two years. He had worked in the past as a machine designer, a manufacturing engineer, a contractor, and a manufacturing engineer/manager.

Following the five-step analysis prescribed by the regulations, 20 C.F.R. § 404.1520, the ALJ concluded that Montgomery has severe coronary artery disease (postoperative status), and that his impairments prevent him from returning to his past work. The ALJ, however, stated that Montgomery retains the residual functional capacity

to perform the requirements of work except for lifting of more than 15 pounds at a time maximum, walking farther than three blocks at a time, exposure to extremes of heat and humidity, work which does not allow for position changes every 60 minutes, work which would not allow for three to four bathroom breaks daily, work which involves detailed or complex tasks, or work which involves stress at a level greater than 5 (on a progressive scale of 1 to 10)....

The ALJ then turned to a Vocational Expert (VE) for a listing of jobs available in the national and regional economy which are compatible with Montgomery’s residual functional capacity. After consulting the Dictionary of Occupational Titles, the VE testified that Montgomery could perform low-stress [275]*275sedentary1 work as a Cashier II, a Charge Account Clerk, and an Order Clerk. Relying on the VE’s testimony, the ALJ concluded that there were jobs in the economy which Montgomery could perform, and denied Montgomery’s disability claim. The Commissioner adopted the ALJ’s ruling as her final decision, and the District Court affirmed. Montgomery now appeals. On appeal, we affirm the District Court if the ALJ’s decision is supported by substantial evidence on the record as a whole. Shannon v. Chater, 54 F.3d 484, 486 (8th Cir.1995).

II.

As an initial matter, Montgomery claims that the ALJ failed to consider all the evidence when determining whether he retained any residual functional capacity despite his impairments. Specifically, Montgomery maintains that sufficient weight was not given to the fact that he was receiving disability payments from his employer’s insurance carrier. This argument has no merit. Montgomery has produced no evidence which indicates that the carrier’s decision to pay him disability benefits is relevant to his Social Security disability claim. See Jelinek v. Bowen, 870 F.2d 457 (8th Cir.1989) (discussing when independent disability determination is relevant to resolution of disability claim). Moreover, the fact that the carrier’s decision to award benefits may support Montgomery’s Social Security claim is not a basis for reversal. In appropriate cases, such a decision is only one piece of evidence to consider. Here, the ALJ did not mention the insurance disability decision in his opinion, but this does not mean he did not consider it.

III.

Montgomery also challenges the ALJ’s hypothetical to the VE on two grounds. First, he claims that the hypothetical question posed to the VE was flawed because it failed to encompass all of his impairments. The record before us belies this claim. The hypothetical posed to the VE included all of Montgomery’s impairments which the ALJ concluded were credible. See Chamberlain v. Shalala, 47 F.3d 1489, 1495 (8th Cir.1995).

Second, Montgomery challenges the ALJ’s use of a stress scale with a range of one to ten when posing the hypothetical to the VE. According to Montgomery, the ALJ had no basis for using the stress scale, or for attaching a five to the level of stress he could endure. The use of a stress scale, however, is an acceptable shorthand for identifying a claimant’s stress tolerance. See generally Mitchell v. Sullivan, 925 F.2d 247 (8th Cir.1991) (stress scale relevant when stress determination supported by the evidence). In this case, the psychological report and the psychiatric report support the ALJ’s conclusion that Montgomery does not suffer from a mental disorder which would preclude work. The psychiatric report also supports the ALJ’s conclusion that on a scale of one to ten, Montgomery could endure a moderate level of stress. See generally Morse v. Shalala, 16 F.3d 865, 874 (8th Cir.1994) (subsequent history omitted) (stress determination must be supported by evidence of claimant’s psychological condition). We think that “five” is an acceptable numerical equivalent of “moderate.”

IV.

Having concluded that the ALJ’s hypothetical was not flawed, we turn to the question of whether the Commissioner carried her burden of demonstrating that jobs existed in the economy which Montgomery could perform. See Smith v. Shalala, 46 F.3d 45, 47 (8th Cir.1995). Montgomery claims that the VE’s testimony conflicted with the Dictionary of Occupational Titles, and therefore that the Commissioner has not met her burden. We agree.

The ALJ asked the VE to assume, inter alia, that Montgomery could lift 15 pounds maximum and endure stress at a level no greater than 5 on a progressive scale of 1 to [276]*27610. The ALJ also asked the VE to consider Montgomery’s age, education, and past work experience. In response, the VE confirmed the ALJ’s assumption that Montgomery could not return to his past work, but indicated that Montgomery could perform sedentary, unskilled2 work. He cited the following jobs listed in the Dictionary of Occupational Titles: Cashier II, DOT #211.462-010;3 Charge Account Clerk, DOT #205.367-014; and Order Clerk, DOT # 209.667-014.4

None of these positions is compatible with Montgomery’s abilities as set forth in the ALJ’s hypothetical. The Cashier II position is classified as light5 work, which requires the ability to lift 20 pounds. The ALJ concluded that Montgomery was capable of lifting only 15 pounds, which is the benchmark for sedentary work.

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Bluebook (online)
69 F.3d 273, 1995 U.S. App. LEXIS 31043, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bun-montgomery-appellant-v-shirley-s-chater-commissioner-of-social-ca8-1995.