Kirksey v. Heckler

808 F.2d 690, 1987 U.S. App. LEXIS 863
CourtCourt of Appeals for the Eighth Circuit
DecidedJanuary 8, 1987
DocketNo. 86-1114
StatusPublished
Cited by13 cases

This text of 808 F.2d 690 (Kirksey v. Heckler) 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
Kirksey v. Heckler, 808 F.2d 690, 1987 U.S. App. LEXIS 863 (8th Cir. 1987).

Opinion

LAY, Chief Judge.

William Kirksey appeals from the judgment of the district court1 entered in favor of the Secretary of Health and Human Services denying him disability benefits under 42 U.S.C. § 423 (1982).

Background

William Kirksey is a fifty-seven year old certified welder with a seventh grade education. In July 1981, Kirksey’s back was injured when someone at work jumped on it. Kirksey later informed examining physicians that he had experienced backaches for several years prior to the incident, but that the pain increased after his injury. That same year, Kirksey was laid off from his job. Until that time, he had worked as a welder for thirty years.2 Kirksey received treatment for his back injury from a chiropracter, who told Kirksey he had a slipped disc. Periodic chiropractic treatments following the injury helped relieve some of his pain.

On April 19, 1984, Kirksey applied for disability benefits claiming dermatitis, high blood pressure, a “bad back,” and liver disease as his disabling conditions.3 On May 22, 1984, Kirksey underwent a consultative examination by Dr. Christine Deignan. Dr. Deignan noted that he had moderate hypertension which was poorly controlled and a rash on his left leg which had no functional significance. She fur[692]*692ther noted that x-rays revealed degenerative arthritic changes in the lumbar area of his spine and a large bony spur bridging the right side of Ll-2. He told Dr. Deignan that he was able to walk the seven or eight blocks to his doctor’s appointments without any pain. Dr. Diegnan made no observations as to the existence or extent of Kirksey’s disability. On June 29, 1984, Dr. William Minks, after apparently reviewing Kirksey’s medical records, concluded that Kirksey had failed to document an impairment which restricts his function. On July 5, 1984, the Secretary denied Kirksey’s application for benefits noting that his high blood pressure can be controlled with medication and that his liver tests fall within normal limits. The Secretary also noted that he did not have a back problem of sufficient severity to render him disabled and concluded that he was capable of securing work as a welder.

Kirksey was examined by orthopedic doctors at the University of Iowa Hospitals on August 17, 1984, where it was determined that due to the arthritic degeneration of his lower back, Kirksey was permanently unable to pursue heavy labor, but was capable of performing light work. They recommended that he avoid lifting over twenty pounds and constant bending. A second examination by Dr. Ross on September 13, 1984, revealed results identical to the assessment he had given Kirksey a year earlier. Dr. Ross concluded that Kirksey does have low back pain but that there was little in the way of objective findings. He did not believe that Kirksey’s symptoms would cause a severe restriction of function. In a report filed with the Secretary by Dr. Cendana, she opined that Kirksey was unable to pursue heavy labor and that he should avoid lifting over twenty pounds.

Kirksey requested a hearing which was held before a Social Security Administration Administrative Law Judge (AU) on December 20, 1984. At the time of the hearing, Kirksey appeared without counsel and the record demonstrates his inability to fully understand the questions asked him by the AU. The AU concluded that the arthritic degeneration in Kirksey’s spine did render him incapable of performing his past relevant work as a welder. Without indicating whether the burden of proof had shifted to the Secretary, the AU concluded that Kirksey was capable of lifting and carrying up to fifty pounds and could thus perform a full range of medium work. Having concluded that Kirksey’s allegations of low back pain were not credible, the AU found that Kirksey was of an advanced age, had a limited education, and previous work experience as a welder. The AU applied Rule 203.12 of the Medical-Vocational Guidelines {see 20 C.F.R. Part 404, Subpart P, Appendix 2 (1986)), and directed a finding of not disabled. The district court affirmed holding that although the AU failed to expressly recognize the need to shift the burden of proof to the Secretary once Kirksey had proven he was incapable of returning to his past relevant work, this failure was harmless in this case since the record clearly indicated that Kirksey would have been denied benefits regardless of the allocation of the burden of proof. Kirksey thereafter appealed to this court.

This constitutes another case which requires a remand because both the AU and the Secretary failed to follow the law now well established in this circuit. The Secretary has committed two basic errors: (1) upon finding that the claimant cannot perform his prior relevant work, the AU failed to transfer the burden of proof to the Secretary to show that there exists other gainful activity in the national economy which Kirksey is capable of performing given the nature of his impairment; (2) the AU, notwithstanding overwhelming evidence of nonexertional pain, found the allegations of pain not credible and erroneously applied the grid to establish that there was no exertional impairment to prevent the claimant from doing “medium work.”

It is true that if the evidence on the record as a whole demonstrates that, notwithstanding a finding that the claimant cannot do his prior work, there is available to him other gainful work in the national economy, then the failure of the Secretary [693]*693to transfer the burden of proof would not constitute reversible error. See, e.g., Lanning v. Heckler, 777 F.2d 1316, 1317 (8th Cir.1985). The district court so ruled. Upon analysis of the record as a whole we cannot agree with this ruling.

In the present ease the transfer of the burden of proof is critical to the outcome of this case. Here, the Secretary found that Kirksey can do medium work which, according to the Guidelines, involves “lifting no more than fifty pounds at a time with frequent lifting or carrying of objects weighing up to twenty-five pounds.” 20 C.F.R. § 404.1567(c) (1986). There exists substantial evidence to support this finding which is corroborated by the reports of Drs. Ross and Minks, consulting general practitioners. On the other hand, Kirksey’s examining physician concluded that he should avoid lifting objects of over twenty pounds and should avoid frequent bending. This opinion was corroborated by two orthopedic specialists at the University of Iowa who concluded that Kirksey’s impairment was permanent and that he should avoid constant bending and lifting of objects not weighing more than twenty pounds.

Aside from this conflicting evidence, what becomes determinative here is whether the Secretary properly used the grid. The Secretary failed to follow the succinct admonitions of this court’s en banc opinion in McCoy v. Schweiker, 683 F.2d 1138, 1148 (8th Cir.1982). In that case, we observed, quoting Gagnon v. Secretary of Health and Human Services, 666 F.2d 662, 666 n. 8 (1st Cir.1981):

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Kirksey v. Heckler
808 F.2d 690 (Eighth Circuit, 1987)

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Bluebook (online)
808 F.2d 690, 1987 U.S. App. LEXIS 863, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirksey-v-heckler-ca8-1987.