Kevin Byes v. Michael J. Astrue

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-3544

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Kevin Byes, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Arkansas.

Michael J. Astrue, Commissioner, *

Social Security Administration, *

*

Appellee. *

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Submitted: June 15, 2012

Filed: August 2, 2012

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Before LOKEN, GRUENDER, and BENTON, Circuit Judges.

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BENTON, Circuit Judge.

Kevin E. Byes applied for disability insurance benefits and supplemental

security income on July 30, 2007, claiming disability since November 2005. An

Administrative Law Judge (ALJ) upheld the Commissioner’s denial of benefits. The

district court1 agreed. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

1

The Honorable Beth M. Deere, United States Magistrate Judge for the Eastern

District of Arkansas, to whom the case was referred by consent of the parties pursuant

to 28 U.S.C. § 636(c).

Byes, born August 9, 1965, was 40 years old at the time of his alleged onset,

and 44 years old at the time of the ALJ’s decision. He has a tenth grade education,

including special education classes. He testified he can read and write grocery lists,

read parts of the newspaper, and had past work experience as a farmer, laborer, truck

driver, and road maintenance worker. Byes also stated that these jobs required him

to write reports and use technical skills and knowledge.

Beginning with a doctor’s visit in September 2006, Byes sought treatment from

medical professionals six times. Doctors diagnosed and treated him for a variety of

conditions including: cellulitis, a tooth abscess, hernias, back and neck pain,

headaches, myalgia, and arthritis.

An ALJ reviewed Byes’s claim according to the five-step analysis in the Social

Security regulations.2 See 20 C.F.R. §§ 404.1520(a)-(f), 416.920(a)-(f). On

December 16, 2009, the ALJ decided: (1) Byes had not engaged in substantial gainful

activity since November 1, 2005, the alleged onset date; (2) Byes suffers from several

severe impairments, including: arthritis, irritable bowel syndrome, hernia, and chronic

obstructive pulmonary disease; (3) Byes does not have an impairment or combination

of impairments so severe to automatically receive benefits; (4) Byes has the residual

functional capacity to perform light work, and cannot perform any of his past relevant

work as a laborer, farmer, road maintenance worker, and truck driver that require

medium exertional levels; (5) considering Byes’s age, education, work experience,

and residual functional capacity, Medical-Vocational Rule 202.18 directs a finding

of “not disabled.” The ALJ concluded that Byes was not disabled from November

1, 2005 through the date of the decision.

2

“The five-part test is whether the claimant is (1) currently employed and (2)

severely impaired; (3) whether the impairment is or approximates a listed impairment;

(4) whether the claimant can perform past relevant work; and if not, (5) whether the

claimant can perform any other kind of work.” King v. Astrue, 564 F.3d 978, 979 n.2

(8th Cir. 2009).

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The district court agreed with the ALJ’s decision, except for one point. Byes

appeals, arguing that the ALJ’s finding that he had no mental impairments is not

supported by substantial evidence on the record as a whole. Byes also objects to the

district court’s harmless-error ruling.

This court reviews de novo the district court’s decision affirming the denial of

benefits. Travis v. Astrue, 477 F.3d 1037, 1040 (8th Cir. 2007). This court reverses

the findings of the Commissioner only if they are not supported by substantial

evidence or result from an error of law. See 42 U.S.C. § 405(g) (“The findings of the

Commissioner of Social Security as to any fact, if supported by substantial evidence,

shall be conclusive.”); Johnson v. Astrue, 627 F.3d 316, 319 (8th Cir. 2010). In this

substantial-evidence determination, the entire administrative record is considered but

the evidence is not reweighed. Shelton v. Chater, 87 F.3d 992 (8th Cir. 1996). See

also Lopex ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). Substantial

evidence is less than a preponderance, but enough that a reasonable mind would find

it adequate to support the Commissioner’s conclusion. Travis, 477 F.3d at 1040. In

determining whether evidence is substantial, this court considers “evidence that

detracts from the Commissioner’s decision as well as evidence that supports it.” Id.,

citing Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000). “If substantial evidence

supports the Commissioner’s conclusions, this court does not reverse even if it would

reach a different conclusion, or merely because substantial evidence also supports the

contrary outcome.” Id.

I.

Byes argues that the record as a whole presents an unresolved ambiguity

whether he suffers from a severe mental impairment. The ALJ has a duty to fully and

fairly develop the evidentiary record. See Snead v. Barnhart, 360 F.3d 834, 838 (8th

Cir. 2004) (“Well-settled precedent confirms that the ALJ bears a responsibility to

develop the record fairly and fully, independent of the claimant’s burden to press his

case.”). Failing to develop the record is reversible error when it does not contain

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enough evidence to determine the impact of a claimant’s impairment on his ability to

work. Cox v. Apfel, 160 F.3d 1203, 1209-10 (8th Cir. 1998). See Lauer v. Apfel,

254 F.3d 700, 703-04 (8th Cir. 2001) (holding that an ALJ must obtain and consider

medical evidence to support a determination of a claimant’s residual functional

capacity). If sufficient evidence alerts the ALJ to the possibility of a severe mental

impairment, the ALJ must further develop the record about mental impairments

before ruling on the severity of the claimant’s impairment(s). See Gasaway v. Apfel,

187 F.3d 840, 842 (8th Cir. 1999); Freeman v. Apfel, 208 F.3d 687, 692 (8th Cir.

2000) (“[I]t is reversible error for an ALJ not to order a consultative examination

when such an evaluation is necessary for him to make an informed decision.” (citation

and internal quotes omitted)).

The principal issue here is whether substantial evidence supports the ALJ’s

finding of no severe mental impairment (i.e., borderline intellectual functioning).

Byes focuses on the report of Dr. Hope M. Gilchrist, a licensed psychologist

who examined Byes at the request of the Commissioner. Dr. Gilchrist noted his

education history, reading and writing limitations, and Global Assessment of

Functioning (GAF) score of 45. She explained, “I suspect he is either Borderline

Intellectual Functioning or he has learning disabilities. . . . I am giving him a rule out3

on Learning Disabilities and Borderline Intellectual Functioning.” Borderline

Intellectual Functioning describes individuals with IQs between 71 and 84. Thomas

v. Sullivan, 876 F.2d 666, 668 n.1 (8th Cir. 1989). Borderline Intellectual

Functioning is recognized as a “significant nonexertional impairment.” See Lucy v.

Chater, 113 F.3d 905, 908 (8th Cir. 1997); Cokerham v. Sullivan, 895 F.2d 492, 496

(8th Cir. 1990).

3

“Rule out” in a medical record means that the disorder is suspected, but not

confirmed – i.e., there is evidence that the criteria for a diagnosis may be met, but

more information is needed in order to rule it out. See United States v. Grape, 549

F.3d 591, 593 n.2 (3d Cir. 2008).

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Substantial evidence supports the ALJ’s decision. Dr. Gilchrist noted that Byes

has the capacity to cope with mental cognitive work demands as long as they were not

to be read or written. Byes reported that he is able to pay bills, count change, handle

his own finances, and had written reports and used technical skills and knowledge in

his past jobs. He testified that he maintains a sizable garden and worked as a

carpenter and mechanic. Holding jobs like these for several years, even with possible

cognitive disabilities, supports the ALJ’s finding of non-disabled. See Roberts v.

Apfel, 222 F.3d 466, 469 (8th Cir. 2000); Clark v. Apfel, 141 F.3d 1253, 1255-56

(8th Cir. 1998). See also Miles v. Barnhart, 374 F.3d 694, 699 (8th Cir. 2004).

Byes relies on three prior cases: Thompson v. Sullivan, 878 F.2d 1108 (8th Cir.

1989), Dozier v. Heckler, 754 F.2d 274 (8th Cir. 1985), and Gasaway v. Apfel, 187

F.3d 840 (8th Cir. 1999). He argues that a single report that a claimant might have

a severe mental impairment may indicate the absence of substantial evidence.

Thompson is inapplicable. That case addressed whether substantial evidence

supported a finding that the claimant was engaged in substantial gainful activity,

which precludes a finding of disability regardless of any impairments. Thompson,

878 F.2d at 1110. While this court did order the exploration of any mental retardation

issues based on a single report, that analysis was only to take place “if the analysis

on remand reaches the state of determining the degree of impairment.” Id. at 1111.

Dozier better parallels Byes’s facts, in that very little evidence of a specific

condition was available. Dozier, 754 F.2d at 275-76. There, this court reversed and

remanded because the lack of sufficient evidence for any finding, and the ALJ’s

failure to order a consultative examination, prevented the ALJ from making an

informed decision. Id. at 276. True, little evidence here indicates that Byes has

Borderline Intellectual Functioning. However, substantial evidence to the contrary

allowed the ALJ to make an informed decision.

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Gasaway was reversed and remanded because, while considerable evidence

supported a finding of not disabled, multiple sources stated the contrary. The

claimant in Gasaway had attended special education classes in school because of

slow learning, had a verbal IQ of 69, and had “mental retardation” recorded in her

medical history. This court found that the ALJ had not sufficiently developed the

record. Gasaway, 187 F.3d at 843. The ample unequivocal evidence in Gasaway

contrasts with the single “rule-out” mentioned in Byes’s case, which does not indicate

a severe mental impairment and is contradicted by substantial evidence.

II.

The district court found that the ALJ had applied the incorrect grid rule, using

rule 202.18 in order to determine that Byes is not disabled. See 20 C.F.R. Pt. 404,

Subpt. P, App. 2, Table 2, Rule 202.18. The district court agreed with Byes that

substantial evidence did not support a finding that he could perform light work.

Nevertheless, it found that the ALJ’s application of 202.18 was harmless error

because, even if Byes is illiterate and limited to sedentary work, he would still be

found “not disabled” under rule 201.23.

Byes believes that the ALJ’s error was not harmless. He argues that if the ALJ

had correctly found that he could not perform light work and had recognized his

borderline-age situation, Byes was eligible for benefits under grid rule 201.17.

To show an error was not harmless, Byes must provide some indication that the

ALJ would have decided differently if the error had not occurred See Van Vickle v.

Astrue, 539 F.3d 825, 830 (8th Cir. 2008) (“There is no indication that the ALJ would

have decided differently . . . and any error by the ALJ was therefore harmless.”);

Hensley v. Barnhart, 352 F.3d 353, 357 (8th Cir. 2003) (holding that applying the

incorrect grid rule is harmless error when a claimant is not disabled under the proper

rule). Even if the ALJ had not erred, there is no indication that the ALJ would have

decided differently.

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The Commissioner

will not apply the age categories mechanically in a borderline situation.

If [a claimant is] within a few days to a few months of reaching an older

age category, and using the older age category would result in a

determination or decision that [the claimant is] disabled, [the

Administration] will consider whether to use the older age category after

evaluating the overall impact of all the factors of [the claimant’s] case.

20 C.F.R. § 404.1563(b).

The ALJ’s error was harmless for three reasons. First, section 404.1563(b)

does not require that an ALJ apply an older age category in borderline situations.

According to the regulation, the ALJ is required only to “consider whether to use the

older age category.” Id. (emphasis added). See Lockwood v. Commissioner, 616

F.3d 1068, 1072-73 (9th Cir. 2010) (“It is clear from the text of this regulation that

an ALJ is not required to use an older age category, even if the claimant is within a

few days or a few months of reaching an older age category.”); Bowie v.

Commissioner, 539 F.3d 395, 399-401 (6th Cir.2008) (holding that section

404.1563(b) “does not impose on ALJs a per se procedural requirement to address

borderline age categorization in every borderline case”).

Second, Byes’s age was not borderline. When the ALJ issued the decision,

Byes was almost eight months away from his 45th birthday. Because the borderline

rule takes into account several factors besides age, there is no bright line for how

many months constitute a borderline case. Phillips v. Astrue, 671 F.3d 699, 703-04

(8th Cir. 2012). However, eight months is too distant to be borderline. See Bowie,

539 F.3d at 397 (claimant less than two months from birthday is not borderline);

Lockwood, 616 F.3d at 1072-74 (claimant only one month and three days from

birthday is not borderline); Van Der Maas v. Commissioner of Social Sec., 198 Fed.

Appx. 521, 528 (6th Cir. 2006) (taking into account all factors surrounding claimant’s

application, 55 days is not borderline); Roberts v. Barnhart, 139 Fed. Appx. 418, 420

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(3d Cir. 2005) (persons within five to six months of their birthday are not borderline);

Lambert v. Chater, 96 F.3d 469, 470 (10th Cir. 1996)(seven months short of birthday

is not borderline). The most favorable decision – holding that four months was

borderline – comes from this court, and does not aid Byes. Phillips, 671 F.3d at 703-

04.

Third, even if the ALJ had given Byes the benefit of the higher 45-49 age

group, he would still have been not disabled. In addition to testifying that he could

perform some reading and writing, Byes testified that his past work required him to

write reports and have technical skills and knowledge. These abilities require the

ALJ to apply grid rule 201.19, indicating a finding of “not disabled.” Even if the ALJ

had not erred in finding that Byes could do light work, Byes would not have been

given the benefit of a higher age category.

The judgment of the district court is affirmed.

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