Margie M. PENN, Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Appellee

896 F.2d 313, 1989 WL 167996
CourtCourt of Appeals for the Eighth Circuit
DecidedFebruary 13, 1990
Docket89-1175
StatusPublished
Cited by20 cases

This text of 896 F.2d 313 (Margie M. PENN, Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, 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
Margie M. PENN, Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Appellee, 896 F.2d 313, 1989 WL 167996 (8th Cir. 1990).

Opinion

*314 FLOYD R. GIBSON, Senior Circuit Judge.

Margie M. Penn appeals the decision of the district court 1 affirming the Secretary of Health and Human Services’ decision denying disability insurance benefits and supplemental security income benefits. We reverse.

I. BACKGROUND

Margie M. Penn applied for disability benefits and supplemental security income benefits under Titles II and XYI of the Social Security Act, 42 U.S.C. §§ 401-433, 1381-1383 (1982), alleging disability since August 1984 due mainly to arthritis and atopic dermatitis. Her applications were denied initially and on reconsideration. Penn then requested a hearing before an Administrative Law Judge (“ALJ”). A hearing was held on June 19, 1986, after which the AU rendered a decision denying benefits. The Appeals Council denied Penn’s request for review, rendering the AU’s decision the final decision of the Secretary. Penn next sought review of the Secretary’s decision in federal district court. The district court referred the case to a magistrate 2 , who recommended that the Secretary’s decision be reversed. The district court declined to follow the magistrate’s recommendation and instead affirmed the Secretary’s decision denying benefits. This appeal followed.

Penn is 45 years old and has a 9th grade education. She worked as a nurse’s aide continuously from 1967 through 1982. She claims that she has been unable to work since September 1984. Her medical history indicates that she has a lifelong history of atopic dermatitis and a recent history of arthritis, asthma, high blood pressure, poor circulation, obesity, and psychological problems.

The record reveals that Penn first sought medical treatment for arthritis in June 1983, at which time she was experiencing pain in her hip and back. Her physician diagnosed acute somatic dysfunction of the right lumbosacral area and left shoulder aggravated by chronic postural strain and obesity. Penn’s physician also noted that Penn had chronic degenerative changes on the thoracic and lumbar spine. Those diagnoses were repeated on several later occasions on the basis of both office examinations and x-rays. Her physician prescribed pain medication and instructed her to wear a lumbar support to help relieve the pain.

Penn also has a lifelong problem of atopic dermatitis, a chronic inflammatory condition of the skin. For this problem Penn has used topical and oral steroids, which have caused excessive thinning of her skin, aggravated her arthritis, and decreased her resistance to infection. The record indicates that she has repeatedly sought treatment for her dermatitis and has been treated as an inpatient for it on at least three occasions.

Penn also suffers from asthma, which causes attacks of shortness of breath and limits her ability to do manual labor. In 1981 she was diagnosed as having obstructive pulmonary disease, and that diagnosis has been repeated in recent years. She uses an inhaler and takes medication to combat her shortness of breath.

Penn also has a history of psychological problems. She was treated as an inpatient in 1978, at which time she was diagnosed as having chronic depressive neurosis with severe psychomotor retardation. She was diagnosed again in 1981 as having atypical dissociative disorder. Records also indicate that she sought treatment for depression and anxiety in 1985 and was diagnosed with chronic dysthymic reaction in early 1986.

Two physicians completed Functional Capacity Reports in which they assessed Penn’s ability to work. Penn’s treating physician, Dr. R. Lewis, expressed the opinion in a report dated June 12, 1986, that because of her impairments Penn could not sit for more than four hours per day and *315 could not stand or walk for more than two hours per day. Dr. Lewis further stated that Penn has respiratory restrictions, severe osteoarthritis, and difficulties with mental concentration. Record at 191-93. The second physician, Dr. Stanley Vreezel-aar, stated in a report dated November 11, 1986, that Penn could not sit, stand, or walk for more than two hours per day. Record at 240-42.

Penn testified that she experiences constant pain in her hip and back whether she is sitting dr standing. She stated that she gets frequent headaches from muscle spasms in her neck and spine. She is able to do housework for only one hour at a time up to four hours in a day and can walk for only ten minutes at a time. She testified that she takes medication for pain, which does not relieve it, and that she also takes shots which bring a little relief. Two or three days each week she lays on the couch all day due to fatigue and pain. Penn also explained that the salve she uses to treat her atopic dermatitis has caused severe thinning of her skin and poor circulation, which bring about pain in her legs when she stands. Regarding her psychological condition, Penn testified that she is nervous, gets upset easily, and has difficulty concentrating and remembering things. She also stated that because of nervousness and shortness of breath she often has difficulty sleeping. Record at 39-56.

The ALJ found, and the Secretary does not dispute, that Penn is unable to return to her past relevant work as a nurse’s aide. Thus, as the ALJ noted, the burden shifted to the Secretary to prove the existence of alternate jobs in significant numbers that Penn could perform. The AU disbelieved Penn’s subjective complaints of pain and discredited Dr. Lewis’s opinion that Penn could not work an eight-hour day. The AU stated that Penn was not “persuasive or convincing with regard to [the] severity of her symptoms” and that Dr. Lewis’s report and Penn’s subjective complaints were not supported by clinical findings. Opinion of A.L.J. at 6, Record at 16. Accordingly, the AU determined that “the claimant does retain the capacity to work a normal eight hour shift, as long as she is allow [sic] to sit or stand at will.” Id.

Because Penn had significant nonexer-tional limitations, the AU sought the opinion of a vocational expert (“VE”) to determine whether there were jobs in the national economy that she could perform. The AU posed two different questions to the VE setting forth a hypothetical claimant’s impairments. In response to the first the VE stated that there are jobs in significant numbers that the claimant could perform; in response to the second the VE stated that there are no jobs that the claimant could perform.

The AU ultimately concluded that Penn was not disabled, relying in part on the VE’s answer to the first hypothetical question in which the VE stated that there are jobs in the national economy that the claimant in the hypothetical question could perform.

We find that the Secretary’s decision is not supported by substantial evidence in the record as a whole and thus reverse and remand the district court’s decision.

II. DISCUSSION

A. Subjective Complaints of Pain

It is well established in this circuit that an AU must give serious consideration to a claimant’s subjective complaints of pain. Smith v. Schweiker,

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Bluebook (online)
896 F.2d 313, 1989 WL 167996, Counsel Stack Legal Research, https://law.counselstack.com/opinion/margie-m-penn-appellant-v-louis-w-sullivan-md-secretary-of-health-ca8-1990.