Michael Wayne Gaddis v. Shirley S. Chater

No. 95-2488

MICHAEL WAYNE GADDIS, *
*
Appellant. *
* Appeal from the United States
vs. * District Court for the Western
* District of Missouri
SHIRLEY S. CHATER, Commissioner *
of Social Security, *
*
Appellee. *

Submitted: January 11, 1996

Filed: February 16, 1996

Before BEAM and MORRIS SHEPPARD ARNOLD, Circuit Judges, and
JONES,* Senior District Judge.

JONES, Senior District Judge.

Michael Wayne Gaddis applied for disability insurance benefits
under Title II of the Social Security Act ("Act"), 42 U.S.C. § 401
et seq., and supplemental security income under Title XVI of the
Act, 42 U.S.C. § 1381 et seq. Gaddis alleged disability commencing
July 16, 1992, on account of tinnitus with hearing loss and related
mental impairments. Following a hearing, an administrative law
judge (ALJ) denied Mr. Gaddis' application, a decision which was
affirmed by the Appeals Council.

*
The HONORABLE JOHN B. JONES, Senior United States District
Judge for the Southern Division of the District of South Dakota,
sitting by designation.
 Gaddis sued in federal district court in Missouri for judicial
review of that decision. See 42 U.S.C. § 405(g). On cross motions
for summary judgement, the district court1 found that the decision
of the ALJ should be affirmed and granted summary judgment to the
government. Mr. Gaddis appeals arguing the ALJ committed various
errors and that his decision is not supported by substantial
evidence. We affirm.

I.
At the time of his hearing, Gaddis was a thirty-five-year-old
man who has completed high school and has taken some college
courses. He was injured on the job with Burlington Northern
Railroad on March 15, 1987, when a train whistle was activated by
an engineer while Gaddis was standing at the crossing. As a result
he suffers from tinnitus which the ALJ described as a "constant
high pitched ringing hiss in [Gaddis'] ears." The record indicates
that Gaddis cannot tolerate loud or sustained noise but that he can
hear and tolerate conversation. Gaddis testified he has difficulty
concentrating and that he now suffers "mental pain" on account of
the tinnitus. He and his wife testified that in addition to
tinnitus, he suffers from nervousness, anxiety and depression which
preclude him from working.

The ALJ analyzed the case by following the five-step analysis
mandated by 20 C.F.R. § 404.1520 (1995). After hearing all of the
evidence, and examining the entire record (including medical
records), the ALJ determined that Gaddis was not disabled as
defined by the Act. Specifically the ALJ found that despite having
"severe impairments of tinnitus and depression and anxiety" that
Gaddis retained the residual functional capacity to perform past
relevant work as a liquor store sales clerk. The ability to
perform past relevant work precludes a claimant from being termed

1
The Honorable Dean Whipple, United States District Court
Judge for the Western District of Missouri.

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disabled and recovering social security benefits. Martin v.
Sullivan, 901 F.2d 650, 652-53 (8th Cir. 1990).

II.
Our task on review is to determine whether the denial of
benefits is supported by substantial evidence in the record as a
whole. Rappoport v. Sullivan, 942 F.2d 1320, 1322 (8th Cir. 1991).
To do so, we must evaluate the evidence in the record which
supports the ALJ's decision as well as that which detracts from it.
See Turley v. Sullivan, 939 F.2d 524, 528 (8th Cir. 1991). "We may
not reverse merely because substantial evidence would have
supported an opposite decision." Shannon v. Chater, 54 F.3d 484,
486 (8th Cir. 1995).

On appeal it is argued that the ALJ erred in evaluating the
medical evidence by improperly disregarding the opinion of Gaddis'
treating psychiatrist, Dr. Christy. Dr. Christy reported that
Gaddis had anxiety and depression related to "severe and disabling
tinnitus." Gaddis' assignment of error belies the fact that the
ALJ specifically assigned the most weight to and relied on Dr.
Christy's report regarding Gaddis' depression and anxiety. The
only thing discounted was the reference to "disabling tinnitus."
The ALJ noted that Dr. Christy's characterization of Gaddis' mental
impairments as disabling was disputed by other medical evidence and
the record as a whole. It was further noted that many of Dr.
Christy's conclusions were based on the subjective complaints of
Gaddis, complaints found not wholly credible by the ALJ. Based on
our review of the record we find no error in the evaluation of the
medical evidence.

Regarding subjective complaints, Gaddis contends the ALJ erred
when he found Gaddis' complaints of disabling "mental pain"
associated with his tinnitus not credible. The ALJ considered the
subjective complaints in accordance with Polaski v. Heckler, 739
F.2d 1320, 1322 (8th Cir. 1984). Polaski provides that an ALJ can

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discount subjective complaints if there are inconsistencies in the
record as a whole. Id. at 1322.

At the outset we must note that the ALJ did not completely
reject Gaddis' complaints regarding the tinnitus and accompanying
mental pain. The record indicates that the ALJ found that Gaddis
suffers from tinnitus (as well as depression and anxiety), but that
the condition is not disabling as defined by the Act.

Further, we agree with the ALJ that inconsistencies exist in
the record which could justify discounting Gaddis' testimony
regarding the severity of his injury. One of the primary
inconsistencies related to Gaddis' motivation for seeking
disability benefits. Apparently after private disability insurance
benefits and employer disability benefits ended, Gaddis filed a
lawsuit against his former railroad employer. The record indicates
his frustration at the time required to receive financial support
through the litigation. At one point Gaddis was trying to decide
to "work for a year and a half until a settlement comes through on
his lawsuit." His doctor reported Gaddis began work in 1991 as a
salesclerk at a liquor store, worked about a week, then quit only
to start up again after his attorney told him a lawsuit will take
anywhere from one to three years to complete. Despite testifying
to an inability to work because of his condition, Gaddis at one
point conceded to Dr. Christy that "he can go out and find a
minimum wage job at any time, but he is more worried about the
future." In fact, much of the counseling done by Dr. Christy
concerned vocational and employment issues. We agree with the ALJ
that there is a "strong element of secondary gain in this case" and
that Gaddis' conduct belies his sincere belief that he is truly
disabled and unable to perform any substantial gainful activity.

Gaddis also testified that he went to extreme lengths to avoid
loud noises, yet, inconsistent with that sworn testimony, evidence
in the record described Gaddis taking a "motorcycle trip" and
shooting off fireworks on the Fourth of July. After observing the

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witnesses and fully evaluating all of the evidence, the ALJ
discredited Gaddis' subjective complaints regarding the extent of
his tinnitus. Our review indicates the credibility finding is
supported by the record and should not be disturbed.

Gaddis' final argument is that the ALJ did not properly
utilize a vocational expert's testimony and did not shift the
burden to proof to the Commissioner to prove the existence of other
work existing in large numbers he could perform in the national
economy. The ALJ determined Gaddis retained the residual
functional capacity to perform some of his past relevant work as a
liquor store salesclerk as the job is normally performed in the
national economy. Under the five-step analysis of social security
cases, when a claimant can perform his past relevant work, he is
not disabled. Martin v. Sullivan, 901 F.2d 650, 652-53 (8th Cir.
1990). Once this decision is made there is no burden shifting and
the services of a vocational expert are not necessary. Orrick v.
Sullivan, 966 F.2d 368, 372 (8th Cir. 1992).

To the extent this final argument is an attack on the
sufficiency of the evidence supporting ALJ's decision regarding
Gaddis' ability to perform past relevant work, we reject it as
well.
III.
Based on the record, we are convinced that the ALJ's decision
is adequately supported by substantial evidence. Accordingly, we
affirm.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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