Jerry L. POPE, Appellant, v. Otis BOWEN, Secretary of Health and Human Services of the United States, Appellee

886 F.2d 1038, 1989 U.S. App. LEXIS 15038, 1989 WL 115408
CourtCourt of Appeals for the Eighth Circuit
DecidedOctober 4, 1989
Docket88-2622
StatusPublished
Cited by15 cases

This text of 886 F.2d 1038 (Jerry L. POPE, Appellant, v. Otis BOWEN, Secretary of Health and Human Services of the United States, 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
Jerry L. POPE, Appellant, v. Otis BOWEN, Secretary of Health and Human Services of the United States, Appellee, 886 F.2d 1038, 1989 U.S. App. LEXIS 15038, 1989 WL 115408 (8th Cir. 1989).

Opinion

JOHN R. GIBSON, Circuit Judge.

Jerry L. Pope appeals from the judgment of the district court entered in favor of the Secretary of the Department of Health and Human Services denying him disability insurance and supplemental security income benefits under the Social Security Act, 42 U.S.C. §§ 423, 1381a (1982). The administrative law judge found that Pope had not engaged in substantial gainful activity since December 9, 1985 and that he was unable to perform his past relevant work. *1039 The ALJ concluded, however, that Pope did retain the residual functional capacity to perform sedentary work. Based on this finding, the AU denied benefits to Pope and the denial was affirmed by the district court. On appeal, Pope asserts that the AU failed to recognize the shift of the burden of proof to the Secretary after finding that Pope could not resume his regular work. Pope also asserts that substantial evidence does not support the Secretary’s determination that he can perform a full range of sedentary work but rather substantial evidence establishes that he does not have such capability and therefore it is error to rely on the Medical-Vocational Guidelines. We reverse and'remand to the Secretary for further consideration.

I.

Pope, now forty-five years old, has a history of heart disease which first became evident in June or July 1982. On April 26, 1985, quadruple coronary artery bypass surgery was performed on him. On December 16, 1985, Pope applied for disability benefits and supplemental security income with the Secretary of the Department of Health and Human Services. The Secretary denied benefits to Pope and a hearing before an AU followed on October 22, 1986. The AU concluded that Pope was not entitled to benefits, and Pope subsequently requested review by the Appeals Council of the Social Security Administration. The Appeals Council noted that although the AU did not explicitly state that the burden of proof had shifted because of Pope’s inability to perform his past work, the AU nevertheless met his burden of proof by correctly utilizing the Medical-Vocational Guidelines, 20 C.F.R. pt. 404, subpt. P, app. 2. The Appeals Council denied Pope’s request for review which made the AU’s decision the final decision of the Secretary. Pope appealed the Secretary’s decision to the district court under 42 U.S.C. § 405(g). The district court held that the outcome of the case was clear regardless of who bore the burden of proof and therefore denied Pope’s claim for benefits. This appeal followed. Our task is to determine whether the Secretary’s decision is supported by substantial evidence on the record as a whole. 42 U.S.C. § 405(g).

At the hearing before the AU, Pope presented evidence of the medical opinion of his treating physician, Dr. Martin Aro-now. The AU found that Dr. Aronow was not entirely consistent in his opinion of Pope’s disability status. On two occasions, January 9, 1986 and April 2, 1986, Dr. Aronow stated that Pope was totally disabled. On December 13, 1985, however, on the date of Pope’s treadmill stress test, he found that Pope demonstrated a normal physical work capacity with no significant arrhythmia, unremarkable EKG, and no is-chemic lesion identified with submaximal stress. The AU also noted that Dr. Aro-now’s subsequent opinion of disability was not supported by the findings of the Cardiac Surgery Associates. In a letter dated January 13, 1986, based on a June 10, 1985 examination, the Cardiac Surgery Associates, of which Pope’s surgeon, Dr. Richard Toon is a member, stated that Pope was walking over two miles per day without difficulty and that there were no long term limitations imposed on his activities.

The AU found that Pope was a credible witness who testified openly and candidly about his condition. The AU acknowledged Pope’s allegation of constant pressure in his chest and his claim that he started to experience angina when he became active. He further recognized Pope’s testimony that he could walk 200 feet without chest discomfort, stand four to five minutes, use his hands and arms, although not repetitively, lift five to ten pounds without problem, and sit without problem. The AU found that these restrictions would not preclude sedentary work.

The AU found that Pope had not engaged in substantial gainful activity since December 9, 1985 and was unable to perform his past relevant work as fire inspector, safety inspector, police officer or security supervisor. The AU found, however, that Pope had the residual functional capacity to satisfy the physical exertion requirements of work except for prolonged walking and standing, repeated bending, and lifting weights in excess of ten pounds. *1040 The AU determined that Pope retained the residual functional capacity to perform the full range of sedentary work and concluded that he was not disabled.

II.

Pope asserts as error the AU’s failure to expressly recognize that the burden of proof shifts to the Secretary upon a finding that he could not perform his past work. The Secretary concedes that the AU did not expressly recognize the burden shift and acknowledges that our holdings require such a burden shift. Relying on Kirksey v. Heckler, 808 F.2d 690, 692-93 (8th Cir.1987), the Secretary urges this court, however, to affirm the AU’s decision if there is evidence on the record as a whole to demonstrate that there is other gainful work in the national economy that is available to him. The Secretary also offered Pope’s own testimony that he could walk 200 feet, stand four to five minutes, lift five to ten pounds, and sit without problem as evidence that he is capable of performing sedentary work.

As the Secretary recognizes, we have frequently declared that the AU must expressly acknowledge the shift in the burden of proof and if the AU does not do so, we will not assume that the AU implicitly shifted the burden of proof. This failure to shift the burden of proof constitutes reversible error unless all of the evidence is so strongly against the claimant's position that a proper allocation of the burden of proof would not have changed the outcome. Struempler v. Bowen, 822 F.2d 40, 41-42 (8th Cir.1987). See Butler v. Secretary of Health & Human Services, 850 F.2d 425, 426 (8th Cir.1988); Wolfe v. Heckler, 741 F.2d 1084, 1086 (8th Cir.1984).

Upon examining the record before us, we cannot conclude that the evidence is so strongly against Pope’s position that a proper allocation of the burden of proof would not have changed the outcome. Struempler, 822 F.2d at 42. Dr. Aronow, Pope’s treating physician since 1983, found Pope to be totally disabled from any work. Dr.

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886 F.2d 1038, 1989 U.S. App. LEXIS 15038, 1989 WL 115408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jerry-l-pope-appellant-v-otis-bowen-secretary-of-health-and-human-ca8-1989.