Connie L. BAKER, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Appellee.
No. 91-1167
United States Court of Appeals, Eighth Circuit.
Submitted July 29, 1991. Decided Jan. 29, 1992.
953 F.2d 552
The district court denied a downward departure, concluding that Kellett had received proper credit in his federal sentence for the fact that the state and federal charges arose from the same activity, and that the possibility of state parole was speculation. We may not review a district court‘s discretionary decision to deny a
2. Bernard Nixon contends that the district court erred in not permitting him to withdraw his guilty plea prior to sentencing. He argues that the plea agreement presented to the district court did not properly reflect the government‘s promise made during plea negotiations to move for a downward departure if Nixon cooperated in another investigation; that his first attorney provided ineffective assistance; and that he is innocent of the conspiracy charge because he was a professional shoplifter who sold what he stole to the highest bidder, which was only sometimes the Bradley ring. The district court discredited Nixon‘s allegation of a side agreement, rejected his claim of ineffective assistance of counsel, and found that he “intelligently, knowingly and understandingly” entered his guilty plea “freely and voluntarily.”
- whether defendant established a fair and just reason to withdraw his plea; (2) whether defendant asserts his legal innocence of the charge; (3) the length of time between the guilty plea and the motion to withdraw; and (4) if the defendant established a fair and just reason for withdrawal, whether the government would be prejudiced.
United States v. Boone, 869 F.2d 1089, 1091-92 (8th Cir.), cert. denied, 493 U.S. 822 (1989).
We review the district court‘s decision only for clear error. See United States v. Abdullah, 947 F.2d 306, 311 (8th Cir.1991). Here, there was none. The district court heard extensive testimony from Nixon and his former counsel and concluded that Nixon‘s allegations of a side agreement, ineffective assistance, and an unknowing, involuntary plea were unfounded. The record supports these findings. It also reflects that Nixon waited too long before attempting to withdraw his plea, that his belated assertion of innocence is not credible, and that the government would be at least somewhat prejudiced by withdrawal of his guilty plea. In these circumstances, there was no clear error in the district court‘s refusal to allow Nixon to withdraw his plea.
We have carefully considered the other issues raised by each of the appellants and conclude that they are without merit. Accordingly, the judgments of the district court are affirmed.
Rick Spencer, Mountain Home, Ark., for appellant.
William Cromwell, Asst. U.S. Atty., Fort Smith, Ark., Gayla Fuller, Karen Sharp, and Pamela Wood, Regional Counsel, U.S. Dept. of Health and Human Services, Dallas, Tex., for appellee.
Before BEAM, Circuit Judge, HEANEY, Senior Circuit Judge, and LOKEN, Circuit Judge.
LOKEN, Circuit Judge.
I.
Baker is 42 years old and has a seventh grade education. In 1969, after working as
Baker applied for SSI benefits, claiming that she was disabled as of July 1, 1987 by scoliosis and residual back problems from the 1969 auto accident, and by a mental impairment. The Secretary denied her application both initially and on reconsideration. Following a hearing, an Administrative Law Judge concluded that Baker had a severe combination of impairments, but that these were not presumptively disabling.2 The ALJ found that Baker retained the residual functional capacity to perform the full range of medium work, including her past relevant work as a grocery store clerk, meter reader, and fiberglass worker in a boat plant.3 Therefore, she was not disabled.
The Appeals Council reversed and remanded for a new hearing, concluding that the ALJ had not properly considered Baker‘s allegations of pain as required by Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984). A second ALJ then ordered a psychological examination and conducted a second hearing.
The second ALJ concluded that the medical evidence did not support Baker‘s stated inability to stand more than fifteen or twenty minutes at a time, to sit for more than thirty or forty minutes at a time, or to lift or bend; that Baker‘s testimony regarding her pain and functional limitations was not credible; that even taking her sub-
jective complaints of pain into account, her injuries did not physically impair her to the extent required by the SSI regulations; and that, while Baker‘s IQ scores were below normal, the psychological examinations revealed no mental retardation or other significant psychiatric disorders. Based upon these findings, the second ALJ concluded, as had the first, that Baker retained the residual functional capacity to perform the full range of medium work, including her prior work, and therefore was not disabled within the meaning of the Social Security Act. The Appeals Council denied Baker‘s request for further review, and she commenced this action pursuant to
II.
This court must affirm if substantial evidence on the record as a whole supports the Secretary‘s decision. Substantial evidence is “something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions does not prevent an administrative agency‘s findings from being supported by substantial evidence.” Cruse v. Bowen, 867 F.2d 1183, 1184 (8th Cir.1989), quoting Consolo v. Federal Maritime Comm‘n, 383 U.S. 607, 620 (1966). We must search the record for evidence contradicting the Secretary‘s decision and give that evidence appropriate weight when determining whether the overall evidence in support is substantial. Cline v. Sullivan, 939 F.2d 560, 564 (8th Cir.1991).
Both ALJs found that Baker can perform the full range of medium work.4 By her own admission, none of Baker‘s past jobs ever required her to lift more than ten pounds. Thus, they are properly classified as either light or sedentary work.5 The medical evidence showed that her only discernible physical impairments are a small degree of lumbar rotoscoliosis and some residual effects of her 1969 auto accident, namely, some scarring on her back and left foot and some muscle atrophy in her lower back. The consulting psychiatrist opined that she has suffered some moderate impairment of her ability to make occupational adjustments, but has a good ability to adjust to jobs that do not involve complex instructions. This evidence, combined with the physician‘s assessment of her functional capabilities, adequately support the ALJs’ findings that she can perform her past jobs.
There is also substantial evidence supporting the ALJ‘s finding that Baker‘s allegations of pain and pain-related functional limitations are not credible. Under this court‘s decision in Polaski v. Heckler, an ALJ must look at five factors when determining the credibility of the claimant‘s subjective allegations of pain: (1) the claimant‘s daily activities; (2) the duration, frequency and intensity of the pain; (3) aggravating and precipitating factors; (4) dosage, effectiveness and side effects of medication; and (5) functional restrictions. 739 F.2d at 1321-22. An ALJ who determines that the claimant‘s testimony as to pain is not credible must make specific findings explaining that conclusion. Ghant v. Bowen, 930 F.2d 633, 637 (8th Cir.1991).
In this case, the ALJ fully considered Baker‘s allegations of pain and made the requisite findings explaining his conclusion that they were not credible. The ALJ did not dispute that Baker is in some pain, but “[t]he question is not whether [Baker] suffers any pain; it is whether she is fully credible when she claims that her back hurts so much that it prevents her from engaging in her prior work.” Benskin v. Bowen, 830 F.2d 878, 883 (8th Cir.1987). The ALJ found that Baker‘s “virtual lack of medical treatment for the past 15 years, her very limited use of even over the counter analgesics, her poor work record, her daily activities and other inconsistencies in the records [render] the claimant‘s testimony regarding her pain and functional limitations ... not very credible.” After careful review, we conclude that the record supports these findings, and they provide
We conclude, in light of a record in which the medical evidence is scant and the claimant‘s testimony about her pain and functioning is fraught with inconsistencies, that the above findings are supported by substantial evidence in the record as a whole and justify the Secretary‘s decision that Baker is capable of performing her prior work and therefore is not disabled. See Thomas v. Sullivan, 928 F.2d 255, 259-60 (8th Cir.1991).
The judgment of the district court is affirmed.
HEANEY, Senior Circuit Judge, dissenting.
I respectfully dissent for the reason that there is not substantial evidence to support the Secretary‘s findings that Baker retains the residual functional capacity to engage in her past work.
First, the ALJ determined that Baker‘s past relevant work was classified as “medium” work.
Step four of the sequential analysis used in Social Security disability determinations requires the ALJ to review the claimant‘s residual functional capacity and the physical and mental demands of the claimant‘s past work. See
The Social Security Administration explains the ALJ‘s responsibility in determining a claimant‘s ability to perform her past relevant work as follows:
The decision as to whether the claimant retains the functional capacity to perform past work which has current relevance has far-reaching implications and must be developed and explained fully in the disability decision. Since this is an important and, in some instances, a controlling issue, every effort must be made to secure evidence that resolves the issue as clearly and explicitly as circumstances permit.
It is for the ALJ to develop the record to point out any discrepancy between the physical requirements of jobs as they exist in the national economy and the way in which they are actually performed.
In this case the Secretary classified Baker‘s past relevant work as medium work without any such analysis. To have the residual functional capacity to perform “medium work,” an individual must be able to lift or carry up to twenty-five pounds frequently and be able occasionally to lift up to fifty pounds.
Even assuming the ALJ was incorrect in classifying Baker‘s work as medium, I do not believe the evidence in the record as a whole supports that Baker can perform her past relevant work, even if defined as light or sedentary work. Baker‘s employment history consists of three jobs performed for very short periods within the past fifteen years, totaling approximately one year of employment. Although the record does not contain an earnings record, Baker‘s undisputed testimony was that she worked for two months reading and repairing water meters, four months at a fiberglass boat factory rolling out fiberglass, and seven months as a stocking clerk at a grocery store. She also worked in a Comprehensive Employment and Training Act (CETA) program cleaning roads for an undisclosed period.
The CETA employment and the meter reader jobs should not even be considered as part of her past relevant work. First, under
As for Baker‘s other jobs, whether defined as medium, light, or sedentary work, Baker testified that she could not continue to perform those jobs. Baker testified that she could not continue working at the grocery store because she had problems bending to lift a ten-pound bag of potatoes. (Admin.R. at 74-75.) She also reported to the consulting physician that although she was laid off at the Ranger Boat Company after three months, she thought it was because she could not do the “rather heavy work in the assembly of boats.” (Id. at 206.) Neither the ALJ nor the majority point to evidence in the record to show that she can continue to perform those or similar jobs in the national economy.
In my view, the ALJ‘s reasons for discrediting Baker‘s complaints of disabling pain are not supported by the record. The ALJ noted that Baker did not receive regular medical treatment. First, Baker testified that she saw three physicians: Dr. Charles Ledbetter, Dr. Bob Aarons, and Dr. Roland Bailey. Baker‘s medical records from these doctors are not contained in the administrative record. Second, Baker and her mother both testified that she did not go more often to the doctor
The ALJ also noted that Baker‘s daily activities were not consistent with one who could not engage in her past relevant work. The record does not support such a finding. The ALJ found that Baker did most of the housework, some of the laundry and cooking; raised two children; drove short distances; read the newspaper and the Bible; and watched television. Baker‘s daily routine, according to her testimony and supported by that of her husband and mother, consisted of washing a few dishes for fifteen or twenty minutes and vacuuming for five or ten minutes before needing to sit down. (Admin.R. at 79-80; 113-16.)
We have often noted that an ability to do light housecleaning or to drive a car does not necessarily indicate an ability to perform gainful employment. See Easter v. Bowen, 867 F.2d 1128, 1130 (8th Cir.1989); Yawitz v. Weinberger, 498 F.2d 956, 960 (8th Cir.1974) (per curiam). Baker‘s performance of household duties, during which she must rest every ten or twenty minutes, does not support a conclusion that she is capable of working “day in and day out, in the sometimes competitive and stressful conditions in which real people work in the real world.” McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir. 1982) (citation omitted). See also Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir. 1989) (ability to do light housework with assistance, attend church, or visit with friends on phone does not qualify as ability to do substantial gainful activity).
The ALJ also pointed to the lack of objective evidence and diagnoses to support Baker‘s complaints of pain. Again, this court has cited repeatedly the proposition that the ALJ may not disregard the claimant‘s complaints of pain solely because the objective medical evidence did not fully support them. See, e.g., O‘Leary, 710 F.2d at 1342. Here, there is a paucity of objective evidence. The minimal extent to which Baker exerts herself and the simple tasks she performs on a daily basis, however, support her contentions of pain, and does not demonstrate that she can engage in what was previously described as her past work.
Finally, although Baker‘s mental condition alone is not so severe as to warrant a finding of disability, substantial evidence fails to support the ALJ‘s finding that her mental condition did not limit her ability to perform the full range of medium work. The consulting psychologist‘s report states clearly that Baker‘s ability to make occupational adjustments and personal-social adjustments was “seriously limited, but not precluded.” The psychologist reported that Baker‘s limitations included borderline to low average IQ; difficulty with planning and organizing; possible mental confusion; poor coping skills and poor general adjustment; difficulty with memory; and excessive anxiety in social situations. The psychologist concluded that Baker‘s physical limitations restricted the amount and type of work she could do. This hardly paints a picture of a person who could perform the full range of medium work. Because there are nonexertional impairments significant enough to diminish the claimant‘s residual functional capacity to perform the full range of work contemplated by the Medical-Vocational Guideline‘s categories, the testimony of a vocational expert is required. See Thompson v. Bowen, 850 F.2d 346, 350 (8th Cir.1988).
Accordingly, in light of Baker‘s pain and limited mental ability, both nonexertional impairments, I would remand to the Secretary for further development of the record, including vocational expert testimony as to the existence of work in the national economy which a person with Baker‘s impairments can perform.