Vicki Banks v. Larry G. Massanari, 1 Commissioner of Social Security Commission

HEANEY, Circuit Judge,

dissenting.

I respectfully dissent. The administrative law judge utterly failed in his responsibility to develop the record fully, to state the evidence accurately and completely, and to follow faithfully the social security regulations and precedents of this court.

Vicki Banks’s hearing was held on September 22, 1997. It lasted twenty minutes at most, from 9:00 a.m. to 9:20 a.m. (Admin. Tr. at 35, 45, 52.) After Banks’s attorney completed his questioning of her, the ALJ asked Banks no questions and called no additional witnesses. The ALJ’s lack of attention to the witnesses’ testimony and the record is vividly illustrated by the very first statement in the “Evaluation of Evidence” section of his opinion: that Banks was born on April 30, 1995. (Id. at 16.) The fact is that Banks, a black woman, was born in 1957 and was 39 years old at the time of the disability hearing.

The ALJ accepted Banks’s statement in her application for disability benefits that she had been employed by agencies of the United States government from 1988 to 1995. The fact is, however, that Banks was employed by private contractors that did work for the United States government throughout that time. She was employed by the Rehabilitation Institute of Kansas City in 1988 and was paid $8,922. She was employed by Porsha Alexander of America in 1989 and 1990 and was paid $10,080 and $13,317, in those years, respectively. She was employed by George Kim in 1991 and 1993 and received $10,919, and $11,496, respectively. In 1993, she was employed by Kim for part of the year and Riteway Magic Supply Company, Inc. for the rest of the year and earned a total of $13,112. In 1994, Banks was employed by Riteway Magic Supply Company, Inc. and was paid $11,867. In 1995, she was employed by Kelly Services, Inc. of Detroit and earned $3,458, by Rite-way Magic Supply and earned $1,419, and by Wootens Enterprises of Kansas City and was paid $5,200. (Id. at 79-80.) What is not clear from the record is whether, during the 1988 to 1995 period, Banks was participating in the federal program to hire handicapped personnel. If so, she was not working in the competitive economy, and she cannot be said to have been gainfully employed during this period of time. This is an issue that can only be resolved at a hearing. That the ALJ failed to resolve this issue is simply another indication of his lack of attention to the record.5

*830The administrative decision discusses a number of health problems that Banks allegedly had:

[H]eadaches, depression, a history of heroine [sic] addiction with current methadone treatment, poor sleep and energy, low motivation, blindness in her left eye, nervousness, a tendency to get upset and to feel shaky if someone yells at her, and intermittent pain and pins and needles in her hands.

Id. at 16. Banks has had no income since she was last employed. For a time Banks lived on the streets and more recently has been housed and fed by friends. (Id. at 47.) She does not even receive food stamps.

The record also reveals that Banks was involved in a serious automobile accident when she was only three months old when she lost the use of her left eye and has remained totally blind in that eye ever since. A scar runs from the front to the back of her head, and she has suffered from headaches most of her life. Banks was sexually abused by her father and was introduced to heroin by him at age 14. (Id. at 48.) This addiction lasted until Banks was introduced to a methadone program. She has continued in this program until the date of the hearing.

The ALJ discusses at some length the claimant’s medical reports from the Truman Medical Center. The reports of this center are set forth on pages 207-225 of the administrative transcript. I have made a conscientious effort to read these records in an attempt to determine whether the ALJ fairly set forth the claimant’s medical history. Unfortunately, the records are illegible, particularly pages 207-212 of the administrative transcript where the pertinent information appears to be set forth. If I am unable to read them, I doubt that the ALJ had any greater success. This is one more reason why this case should, at a minimum, be remanded to the ALJ for further hearing at which time he could request that the Truman Medical Center prepare readable copies of its records.

Whatever the status of the medical history, Banks is entitled to a finding of disability pursuant to 20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing 12.05(C), because she has a “valid verbal, performance, or full-scale IQ score between 60 and 70 and a physical or other mental impairment imposing additional and significant work-related limitation of function.” As to the first prong, Banks received a psychological evaluation by Dr. Small and Dr. Sisk. Both doctors tested Banks and both reached identical results: Banks’s scores in both IQ tests were: verbal, 66; performance, 66; and full scale, 64. These scores are within the limits established by the regulations.6 As to the second prong, Banks clearly met the second requirement of the standard by virtue of the fact that she is blind in one eye. It cannot be denied that blindness in one eye is a physical impairment, which imposes additional and significant work-related limitations of function. It is not for the ALJ or this court to read into the regulation language that changes its meaning. In Cook v. Bowen, 797 F.2d 687, 690 (8th Cir.1986), we held that the second prong of 12.05(C) is met when a *831claimant has a physical or additional mental impairment that has a more than slight or minimal effect upon the ability to perform work. In Warren v. Shalala, 29 F.3d 1287, 1291 (8th Cir.1994), we affirmed that test. The question was again presented to this court in Sird v. Chater, 105 F.3d 401, 403 (8th Cir.1997), and we again affirmed our holding in Cook.

The ALJ takes the position that because Banks did custodial work at a time when she was blind in her left eye, that she can do that work now. This position, however, is inconsistent with the regulations.

There is an additional reason why Banks meets the requirements of 12.05(C). The ALJ found, and the district court agreed, that Banks had additional severe impairments, which include a depressive disorder and right carpal tunnel syndrome. Notwithstanding this finding, the ALJ found that neither of these conditions was of such significance that they satisfied the requirements of the second prong. I agree that there is not sufficient evidence in the record to support the claimant’s view that the carpal tunnel syndrome in the right hand satisfied the second prong, but there was some evidence that the depressive disorder was sufficient for this purpose. Both the psychiatric consultant, Dr. Sisk, to whom Banks had been referred by the appellee, and the claimant’s treating physician at the Truman Medical Center assessed Banks’ psychological, social, and occupational functioning pursuant to the Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed.2000) as falling within the GAF (Global Assessment of Functioning) scale of 41-50. This scale is defined as follows:

Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).

Id.

Clearly both Banks’s treating physician and Dr. Sisk believed she fell within this category, and clearly there is sufficient evidence in the record to support a finding that Banks has a serious impairment in her social, occupational, and school functioning, and reached the point where she was unable to keep a job. If the record was legible, it would be possible to develop their reasons for making this finding. At the very least, an inquiry should have been addressed to both doctors asking them to give their reasons for stating that Banks had a serious impairment, an impairment that, independent of her blindness, would satisfy the second prong of 12.05(C).

The ALJ failed to perform his duties in another manner. Instead of calling a vocational expert to testify as to whether there was work in the national economy that Banks could perform, he submitted a written interrogatory to the expert, together with all medical reports and exhibits. The expert acknowledged reading and understanding the reports and exhibits and gave the following answers to the proposed hypothetical:

12. Assume an individual of the claimant’s age, education and work experience. Assume that the claimant has a medically diagnosed history of an early childhood skull fracture that required drainage of a subdural hematoma (but which did not preclude the claimant from working as a custodian at a level of substantial gainful activity for a period years), mild right carpal tunnel syndrome (she is right-handed), blindness in the left eye, borderline intellectual functioning, depression, and a history of opioid dependence with current methadone treatment. As a result of these impairments, the claimant is limited to *832performing medium work, but she cannot perform a full range of medium work because she cannot continually, repetitively, or frequently flex her right wrist although she can flex her right wrist occasionally, has no depth perception, and is limited to performing unskilled simple, routine and repetitive tasks not involving more than occasional, superficial interaction with co-workers, supervisors, and the general public.
A. With those limitations, could the claimant:
(1)return to any past work? No.
(3) perform any other substantial gainful activity?
(4) If so, list the occupations, describe the work settings and duties and identify the numbers of occupations existing in the [sic] within a 100 mile radius of Kansas City, Missouri? No.
13. Assume that the claimant is limited to performing no more than light work with the [sic] all of the same nonexer-tional limitations listed above in hypothetical No. 12 above.
A. With those limitations could the claimant:
(1) return to any past work? No. ■
(2) if so, which work? No.
(3) perform any other substantial gainful activity? No.

(Admin. Tr. at 144-45 (emphasis added)).

Despite this response from the vocational expert, which incorporated all of the available evidence, the ALJ decided to reject the vocational expert’s opinion. At the very least the ALJ should have called the vocational expert to testify at the September 22 hearing. If this had been done, Banks’s attorney could have questioned the expert.

Instead, the ALJ found that the claimant’s activities of daily living were inconsistent with her claim that she was unable to work. Among the activities that he found inconsistent were watching television, visiting friends, and going to church. How many times must we give instructions that these activities do not indicate that a claimant is able to work full time in our competitive economy? In Baumgarten v. Chater, 75 F.3d 366, 369 (8th Cir.1996), we reiterated that “the ability to do activities such as light housework and visiting with friends provides little or no support for the finding that a claimant can perform full-time competitive work,” (quoting Hogg v. Shalala, 45 F.3d 276, 278 (8th Cir.1995)). This standard has correctly been applied by this court in numerous other cases. See Rainey v. Department of Health & Human Servs., 48 F.3d 292, 293 (8th Cir.1995), (holding that heating food, visiting relatives, and watching television were “activities we have held are not substantial evidence of the ability to do full-time work.”); Kouril v. Bowen, 912 F.2d 971, 976 (8th Cir.1990) (stating that “[disability does not require total incapacity. It requires that an individual be unable to engage in substantial gainful activity.”); Cline v. Sullivan, 939 F.2d 560, 565 (8th Cir.1991) (holding that claimant’s “ability merely to perform the limited service of pouring coffee or removing the excess plates from a table on an occasional basis does not compel a conclusion that a claimant is capable of performing the full range of sedentary work on a sustained basis.”); Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir.1989) (stating that claimant’s “ability to do light housework with assistance, attend church, or visit with friends on the phone does not qualify as the ability to do substantial gainful activity.”); Easter v. Bowen, 867 F.2d 1128, 1130 (8th Cir.1989) (holding that “[a]n applicant need not be completely bedridden or unable to perform any household chores to be considered disabled.”).

*833The ALJ stated that the claimant admitted to Dr. Sisk “that her reason for seeking psychotherapy was ‘to help me get my disability.’ ” (Admin. Tr. at 21.) The ALJ then stated that “[t]his factor detracts from the credibility of the presentation the claimant made to Dr. Sisk and the conclusions he may have drawn therefrom.” (Id. at 21.) After reading Dr. Sisk’s report, I cannot agree that Banks’s credibility should be discounted because she wanted to obtain the benefits she was entitled to under the law. In the summer of 1996 not only did Banks refer herself to the Kansas City Mental Health Center, but she also referred herself to the Samuel Rogers Health Center for drug treatment. Her purpose was to make every effort to end her heroin addiction by participating in outpatient counseling six days a week from July 1996 to the date of the hearing. At that time Banks had lost her job, she had no siblings or children, she had been denied food stamps, and she was homeless. Her request for social security benefits under these circumstances, which the law permits, is not sufficient to attack her credibility. This is just another example of how this ALJ reached for any theory that could support his predetermined decision to deny benefits to Banks.

The district court cited two cases in support of its view that an ALJ may discount a claimant’s complaints if, among other reasons, she appears financially motivated to apply for disability benefits. These two cases are inapposite. In Gaddis v. Chater, 76 F.3d 893, 896 (8th Cir.1996), the testimony of the claimant was properly discredited because he conceded he could find a minimum wage job at anytime, but that he was worried about his future, thus making it clear that he was able to work. Similarly, in Dodd v. Sullivan, 963 F.2d 171, 172 (8th Cir.1992), the court was simply stating that one of the reasons the ALJ found Dodd’s subjective complaints of pain not credible was because he appeared to be financially motivated to qualify for disability benefits, and there was some evidence of malingering, given the lack of medical documentation for his claim. Here, there was no suggestion that Banks was feigning illness; rather her remarks to Dr. Sisk suggest that she was merely attempting to collect the benefits to which she was lawfully entitled.

After carefully reviewing the ALJ’s decision, I cannot come to any conclusion but that the ALJ’s decision is not supported by substantial evidence. He failed to conduct a full and fair hearing, he rejected the opinions of two psychologists who found that Banks qualified for disability benefits because of her mental retardation, and he did so without making any effort to question them to clarify their views. Further, he ignored the views of the vocational expert, whom he had selected and to whom he had posed a hypothetical question that he had composed, and did so without calling the vocational expert as a witness so that the expert could be questioned. Finally, he ignored Eighth Circuit precedent when he found that Banks’s current activities were inconsistent with her claim of disability.

The bottom line in this case appears to be that the ALJ believed that because Banks had worked as a janitor for the General Services Administration from February 1975 to September 1982 and for the Internal Revenue Service in the same capacity from February 1988 to April 1995 (when her employment was terminated), she was able to resume and continue employment from that date to the date of the hearing in September 1997. If that were his theory, then he should have made that clear to all witnesses and the claimant.

I believe this court has no alternative but to reverse the district court with directions to remand to the Commissioner with directions to award disability benefits *834to Banks, or in the alternative, to remand to conduct a full and fair hearing and answer all of the questions that are raised by the ALJ’s inadequate hearing and decision.

. The ALJ states that "[t]he claimant's work history is somewhat lacking in continuity which reflects she has not been consistently motivated to work." (Id. at 17.) This statement is belied by the record. From 1988 to mid 1995, Banks consistently worked as a custodial employee, albeit for different employers who apparently were the successful *830bidders to do the custodial work for the United States government.

. Faced with the reports of two consultants who found that Banks would he entitled to disability benefits if their findings were accepted, the ALJ summarily found that their results were of questionable validity, a curious decision given that both psychologists reached the same result, hardly coincidental. Certainly the least the ALJ could have done under these circumstances would have been to ask each consultant whether Banks, if motivated, would be expected to score in excess of 70 on all three tests.