1

The Honorable Lawrence L. Piersol, United States District Court for the

District of South Dakota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-3213

___________

Glenn Delph, *

*

Appellant, * Appeal from the United States

* District Court for the Eastern

v. * District of Arkansas.

*

Michael Astrue, Commissioner, *

Social Security Administration, *

*

Appellee. *

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 Submitted: June 13, 2008

 Filed: August 15, 2008

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Before LOKEN, Chief Judge, COLLOTON, Circuit Judge, and PIERSOL1

, District

Judge.

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PIERSOL, District Judge.

Glenn Delph was found disabled as of April 11, 1988, by the Social Security

Administration (SSA). SSA found that Delph’s degenerative disk disease of the

cervical and lumbar spine, back injury, mood disorder, and schizoaffective disorder

precluded work and rendered him disabled. He was awarded disability insurance
2

The Honorable John F. Forster, Jr., United States Magistrate Judge for the

Eastern District of Arkansas, to whom the case was referred for decision by consent

of the parties pursuant to 28 U.S.C. § 636(c).

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benefits (DIB) and supplemental security income (SSI) payments. On December 10,

1998, SSA notified Delph that a records review revealed his condition had improved

and he was no longer disabled. That determination was upheld after a hearing before

an Administrative Law Judge (ALJ). Delph filed suit in district court. In a decision

issued on January 17, 2003, the district court held that the ALJ failed to follow the

eight-step sequential process required in medical improvement cases. The case was

remanded for further administrative proceedings. 

During the pendency of his appeal in district court, Delph had filed a second

application for DIB and SSI on October 17, 2001. The second application alleged the

same disability onset date as the first application, and SSA consolidated the second

application with the case on remand. An ALJ held a hearing on August 26, 2003.

Delph was present and represented by a lawyer. The ALJ denied Delph’s second

application for benefits, and again found that Delph’s condition had improved and he

was no longer disabled as of December 1, 1998. After SSA’s appeals council denied

his request for review on March 22, 2005, the ALJ’s decision became the

Commissioner’s final decision and Delph filed another civil action in district court.

On September 21, 2006, the district court2

 affirmed SSA’s final determination and

dismissed Delph’s case with prejudice. This appeal followed. For the reasons set

forth below, we affirm the judgment of the district court. 

I

Delph began working as a process specialist in a paper mill in 1978. At times,

Delph’s work required him to lift 100-pound rolls of paper, and he injured his back

in 1988. He was referred to Dr. Blackwell, an orthopedic surgeon. Dr. Blackwell’s

initial impression after examining Delph on April 19, 1988, was “lumbosacral strain
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with stiffness.” Dr. Blackwell prescribed medication and exercise therapy. An

attempt by Delph to return to work in June was unsuccessful. He was referred to a

neurologist, Dr. Abraham, who recommended physical therapy, medication and

decreased activities for Delph’s back pain. Medical records from treating physicians

indicate that Delph suffered from muscle spasms in his back shortly after his injury

in 1988, and muscle spasms were still present in March and April of 1995. A report

from the University of Arkansas for Medical Sciences indicated that in April 1995

Delph could walk with a cane for only up to three or four blocks per day. 

At the time of the initial determination of disability in 1995, Delph was 37 years

old and had two years of college. As part of the initial determination process, he was

referred by SSA for both a medical and a psychological examination. A psychological

consultative examination was performed by Barry McDonald, Ph.D., on June 21,

1995. Dr. McDonald described Delph as functioning “at the upper end of the

Borderline range of intelligence.” He was concerned about the discrepancy between

Delph’s low IQ and his high average reading ability, noting that it is “strongly

suggestive of a drop or reduction from a previous, higher level of intellectual

functioning due to major psychological maladjustment or organicity.” Dr. McDonald

diagnosed mood disorder, anxiety disorder, cognitive disorder, probable pain disorder

with psychological factors (Axis I); and personality disorder with passive-dependent

and socially avoidant and possibly dysthymic and schizoid traits predominating (Axis

II). 

The consultative medical examination was done by Harold Chakales, M.D., on

May 3, 1995. Delph was walking with an antalgic gait and using a cane. Dr.

Chakales reported that xrays of the lumbar spine showed degenerative disc disease

with Smoral’s nodes at L4-L5 and L5-S1. Examination of the lumbar spine showed

straightening of the lordosis, 70 degrees forward flexion and 10 degrees of lateral tilt.

Examination of the cervical spine showed 20% restriction in all planes of motion.

Delph lacked 10-15 degrees of hyperextension of shoulders and forearms in both of
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his upper extremities. Dr. Chakales’ diagnoses were lumbar degenerative disc disease,

cervical degenerative disc disease, psychophysiological musculoskelatal system

reaction manifested by chronic neck pain and low back pain, and chronic pain

syndrome. He found that Delph was a “poor rehabilitative candidate.” 

Based upon the records and consultative examinations, the ALJ found that

Delph’s physical and mental restrictions precluded him from doing even sedentary

work, and a fully favorable decision awarding him benefits was issued on September

27, 1995. 

Between the disability determination in 1995 and the 1998 review initiated by

SSA, Delph continued to seek treatment at the Family Medical Center. The medical

records show that much of the treatment during that time period was for high blood

pressure, but Delph often complained of neck, back and knee pain. For example, on

October 16, 1996, Delph complained of chronic neck pain after running out of his

prescription for Voltaren. Dr. Brillhart prescribed Daypro and suggested physical

therapy if the pain did not improve. In June 1997, Delph complained of headaches

and increasing neck pain extending into the right shoulder. He also mentioned left

knee pain. He was given a prescription for Voltaren and physical therapy was

recommended. A CT scan of his left knee in July 1997 showed arthritis with mild

degenerative changes. His knee pain apparently was alleviated by a steroid injection

on October 10, 1997.

During the review process in 1998, Delph was referred to S.A. Broughton,

M.D., for a psychiatric consultative examination, and to Khalid Mahmood, M.D., for

an internal medicine consultative examination. Dr. Broughton conducted an

examination on October 27, 1998. He diagnosed Delph with adjustment disorder with

depressed mood (Axis I); history of chronic back and neck pain and hypertension

(Axis III); and an Axis IV rating of moderate. Delph had a Global Assessment of

Functioning (“GAF”) score of 60. 
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The consultative medical exam was conducted on October 20, 1998. Dr.

Mahmood diagnosed hypertension and degenerative disc disease of the cervical and

lumbar spine with questionable radiculopathy. He concluded that Delph had

“moderate physical disability because of severe neck pain and lower back pain.

However patient can sit, stand and walk without any problems.” Delph was no longer

using a cane to walk and he had a normal gait. 

A Psychiatric Review Technique Form dated December 9, 1998 was completed

by an agency physician, Farrell Hillman, M.D. Dr. Hillman recognized that Delph had

an affective disorder (an adjustment disorder with a depressed mood). He found that

the mental impairment slightly affected Delph’s activities of daily living, but there

were no work restrictions. A Residual Functional Capacity Assessment Form was

completed by another agency physician, Dan M. Spoor, M.D., on December 10, 1998.

After reviewing the records, Dr. Spoor concluded that Delph could lift 25 pounds

frequently and 50 pounds occasionally. He felt Delph could stand and walk 6 hours

in an 8-hour day. Delph was completely restricted from climbing ladders and

scaffolds and to only occasionally stooping and crouching. His reaching on the right

was limited.

In a decision issued December 10, 1998, SSA determined that Delph’s

impairments had improved, that the improvements increased his ability to work, and

that he was no longer disabled. Thus, his social security payments ended in December

1998. Delph appealed that determination within SSA. SSA took Delph’s case under

consideration and began gathering additional information.

On March 22, 1999, Daniel H. Donahue, Ph.D., a state agency psychologist,

conducted a records review. Dr. Donahue noted evidence of depression which caused

some deficiencies of concentration, persistence or pace, moderate difficulties in

maintaining social functioning, and slight restriction of activities of daily living.

Based on these limitations, Dr. Donahue concluded that Delph “is able to perform
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work where interpersonal contact is incidental to work performed, e.g. assembly work;

complexity of tasks is learned and performed by rote, few variables, little judgment;

supervision required is simple, direct and concrete.” 

Delph continued to seek treatment at the Family Medical Center. His chief

complaint on June 2, 1999 was severe neck pain and he was given a refill of his

Amitriptyline prescription. On November 16, 1999, Delph complained of low back

pain. Vioxx and Flexeril were prescribed. Delph sought treatment on December 22,

1999 for both back and neck pain. Again, Vioxx and Flexeril were prescribed, along

with physical therapy. He began physical therapy on December 27, 1999. Delph was

seen at the Family Medical Center again on March 28, 2000 for severe neck pain. He

mentioned that he was trying to go to school but he was “very upset” and said, “he

doesn’t think he’s getting anywhere.” In addition to continuing the Amitriptyline and

Flexeril, Delph was told to start taking 800 milligrams of ibuprofen twice a day. An

MRI of his cervical spine was ordered. The MRI, dated April 1, 2000, showed

degenerative changes extending from the C3-4 to C6-7, osteophytes and a slight

narrowing of the spinal canal at C5-6 and C6-7, and a probable disc herniation at C4-

5. Delph was referred to a neurosurgeon.

An administrative hearing regarding cessation of Delph’s benefits was held on

November 15, 2000. Delph testified that he was a senior in college with a 2.8 grade

point average, and he attended classes 12 hours a week. Delph no longer used a cane

to walk. He said he felt depressed sometimes, but he was not being treated for the

depression. 

Neurosurgeon T. Glenn Pait, M.D., evaluated Delph on January 11, 2001, and

August 23, 2001 for his complaints of severe neck pain. On August 23, 2001, Delph’s

motor and sensory findings were intact, and his strength was 5/5 except for the left

biceps and triceps which were 4/5. He had “some degree of limitation” of range of

motion of the cervical spine. Dr. Pait gave Delph some Vioxx samples and suggested
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a repeat MRI in order to determine whether surgery would be appropriate. After

another MRI was done, Dr. Pait met with Delph on October 25, 2001, and he

recommended surgery. Delph filed his new application for social security benefits on

October 17, 2001.

SSA had another consultative medical examination of Delph conducted on

January 9, 2002 by Syed Masood, M.D. Dr. Masood noted decreased range of motion

with the cervical and lumbar spine, hips, knees, and ankles; uncontrolled

hypertension; severe back and neck ache; and disc prolapse in the lumbar area. He

determined that Delph had difficulty lying down, standing, walking, and that “he will

not be able to carry or handle objects.” 

Jerry Thomas, M.D., performed a functional capacity assessment of Delph on

January 23, 2002. He found the following exertional limitations: occasional lifting

or carrying of 10 pounds; frequent lifting or carrying of less than 10 pounds, standing

or walking at least 2 hours in an 8-hour workday; sitting for a total of about 6 hours

in an 8-hour workday; pushing and pulling with upper extremities is limited; over

head work is restricted. Delph also was found to be limited to only occasionally

climbing, balancing, stooping, kneeling, crouching and crawling.

At the administrative hearing on August 26, 2003, Delph testified that he has

a lot of pain in his neck, back, arm and both knees. He reported trouble with turning

his head from side-to-side; he could only lift his arms about halfway over his head;

and stooping, bending, and lifting hurt his back. Delph said he had not taken any

prescription medications for four or five months because he could not afford them.

He was taking Tylenol and ibuprofen. He had not been to a doctor for at least six

months because he could not afford it. Delph testified that the neck surgery

recommended by Dr. Pait was not done because he did not have insurance to cover the

cost. Delph said he was able to drive short distances, cook meals, wash clothes, make

his bed and occasionally attend church. In addition, he was a full-time college student
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from 1998 to 2001, and he obtained a bachelor’s degree in communications in 2001.

Delph acquired some computer skills while in college, including word processing

skills.

A vocational expert also testified at the August 26, 2003 hearing. After

establishing that Delph cannot perform his past relevant work, the ALJ asked some

hypothetical questions of the vocational expert. Regarding Delph’s functional

capacity as of December 1, 1998 through 2001, the ALJ asked the vocational expert

to consider a 44-year-old individual with a high school education, an ability to stand

and walk six hours, sit for six hours, lift and carry 20 pounds occasionally, ten pounds

frequently, and who is precluded from overhead work. The vocational expert said such

a person could perform the following jobs: teacher’s aide, of which there were 3,000

jobs in Arkansas and 1.1 million nationally; and hotel clerk, with 1,800 jobs available

in Arkansas and 150,000 nationally. 

In the next hypothetical question, the ALJ asked the vocational expert to

consider someone with Delph’s functional capacity beginning in 2001, the date of his

second application for benefits: a 46-year-old individual with a college degree and

some basic computer skills, including word processing, who has the ability to sit for

six hours of an eight-hour day, stand and walk two hours out of an eight-hour day, lift

and carry ten pounds occasionally, and who is precluded from overhead work. The

vocational expert responded that such an individual could perform the job of a general

office clerk, of which there were 30,000 jobs in Arkansas and 3.1 million nationally.

In a decision issued on January 27, 2004, the ALJ determined that since at least

December 1, 1998, Delph has not been disabled for Social Security purposes because

his medical condition had improved enough for him to perform basic work activities,

and jobs existed that Delph could have performed. In relation to his October

2001application for benefits, the ALJ decided that a number of jobs were available

which met Delph’s functional limitations at that time and Delph was not disabled.
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The ALJ’s decision became the Commissioner’s final decision when the SSA appeals

council denied Delph’s request for review on March 22, 2005. On September 21,

2006, the district court affirmed the Commissioner’s final decision and dismissed

Delph’s case with prejudice. This appeal followed. 

II

This Court has jurisdiction to review the Commissioner’s decisions pursuant

to 42 U.S.C. § 405(g). Judicial review of the Commissioner’s decisions is limited to

determining whether the Commissioner’s findings are supported by substantial

evidence. See Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998). “Substantial

evidence is less than a preponderance, but enough that a reasonable mind might accept

it as adequate to support a decision.” Id. We must consider evidence in the record

that fairly detracts from, as well as supports, the ALJ’s decision. See Cline v.

Sullivan, 939 F.2d 560, 564 (8th Cir. 1991). 

When benefits have been denied based on a determination that a claimant’s

disability has ceased, the issue is whether the claimant’s medical impairments have

improved to the point where he is able to perform substantial gainful activity. See 42

U.S.C. § 423(f)(1). This “medical improvement” standard requires the Commissioner

to compare a claimant’s current condition with the condition existing at the time the

claimant was found disabled and awarded benefits. The continuing disability review

process involves a sequential analysis prescribed in 20 C.F.R. § 404.1594(f). See

Dixon v. Barnhart, 324 F.3d 997, 1000-1001 (8th Cir. 2003). The regulations

provide that determining whether a claimant’s disability has ceased may involve up

to eight steps in which the Commissioner must determine the following: 

1) whether the claimant is currently engaging in substantial gainful

activity, (2) if not, whether the disability continues because the

claimant's impairments meet or equal the severity of a listed impairment,
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(3) whether there has been a medical improvement, (4) if there has been

a medical improvement, whether it is related to the claimant's ability to

work, (5) if there has been no medical improvement or if the medical

improvement is not related to the claimant's ability to work, whether any

exception to medical improvement applies, (6) if there is medical

improvement and it is shown to be related to the claimant's ability to

work, whether all of the claimant's current impairments in combination

are severe, (7) if the current impairment or combination of impairments

is severe, whether the claimant has the residual functional capacity to

perform any of his past relevant work activity, and (8) if the claimant is

unable to do work performed in the past, whether the claimant can

perform other work. 

See id. (citing 20 C.F.R. § 404.1594(f)). 

This sequential analysis for cessation of benefits includes the five steps to be

followed in an initial disability determination. See 20 C.F.R. §§ 404.1520(a)(4),

416.920(a)(4); Smith v. Shalala, 987 F.2d 1371, 1373 (8th Cir. 1993) (the five-step

process for making the initial disability evaluation is: (1) whether claimant is engaged

in substantial gainful activity, (2) whether claimant has a severe impairment, (3)

whether the impairment meets or equals the severity of a listed impairment, (4)

whether claimant has the residual functional capacity to perform past relevant work

activity, and (5) if claimant is unable to do past work, whether claimant can perform

other work). In evaluating Delph’s 2001 application for benefits, the first four of the

five steps required no analysis in addition to that undertaken by the ALJ in addressing

the 1998 cessation of benefits issue. Step five, however, was handled separately by

the ALJ when he determined Delph’s functional capacity as of 2001 and decided

whether work was available for him within those restrictions.

The ALJ first found that Delph has not engaged in substantial gainful activity.

In the next step, the ALJ concluded that Delph’s impairments do not meet or equal a

listing in the impairments listed in Appendix I, Subpart P, Regulations No. 4. Step
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three was whether Delph’s medical impairments have improved. Improvement is

measured from “the most recent favorable decision” that the claimant was disabled.

20 C.F.R. § 416.994(b)(1)(i). In this case, the most recent favorable decision was

September 27, 1995. The ALJ determined that Delph’s medical condition

significantly improved after September 27, 1995. Next, in step four, the ALJ found

that Delph’s medical improvements increased his functional capacity and were related

to his ability to perform work activity. Because of these findings, the ALJ skipped

step five and moved on to step six in the sequential analysis. At step six, the ALJ

noted that Delph’s impairment or combination of impairments are severe within the

meaning of the Regulations. A determination then had to be made at step seven

whether Delph retained the residual functional capacity to perform the requirements

of his past work. The ALJ found that Delph could not perform his past work. In the

final step the ALJ, relying on the vocational expert’s opinion, determined that work

was available for Delph within his restrictions as of December 1998. In regard to

Delph’s 2001 application, in what is to be the fifth step of an initial disability

determination, the ALJ concluded that beginning in 2001 Delph had a college degree

and some computer skills, and his physical abilities were restricted to lifting only ten

pounds occasionally, no overhead work, standing and walking for only two hours in

an eight-hour workday, and sitting up to six hours. Relying on the testimony of a

vocational expert, the ALJ found that Delph was capable of work as a general office

clerk and that significant numbers of those jobs existed in the state and national

economies. The ALJ then concluded that Delph was not disabled within the meaning

of the Social Security Act. 

On appeal, Delph argues that his condition did not improve after September

1995. Medical improvement “is determined by a comparison of prior and current

medical evidence . . . .” 20 C.F.R. § 404.1594(c)(1). The regulations define medical

improvement as:

[A]ny decrease in the medical severity of your impairment(s) which was

present at the time of the most recent favorable medical decision that you
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were disabled or continued to be disabled. A determination that there has

been a decrease in medical severity must be based on changes

(improvement) in the symptoms, signs and/or laboratory findings

associated with your impairment(s). 

20 C.F.R. § 416.994(b)(1)(i). The SSA initially found Delph disabled because his

back injury and degenerative disc disease in the cervical and lumbar spine, mood

disorder, schizoaffective disorder, and IQ of 81 precluded him from performing

sedentary work. A careful reading of the ALJ’s decision reveals that he compared

Delph’s prior and current medical evidence to determine whether there have been

changes associated with his impairment. 

At the time of the decision allowing benefits in September 1995, records from

the University of Arkansas for Medical Sciences showed degenerative disc disease in

Delph’s neck and low back, continued muscle spasms in both areas, positive straight

leg raising and, at the time, Delph was walking with a cane. The consultative

examination by Dr. Chakales on May 3, 1995 confirmed the degenerative disc disease.

Delph was walking with an antalgic gait and using a cane. He had 20 percent

restriction of motion in all areas of his neck. The consultative mental health

evaluation by Dr. McDonald on June 21, 1995 revealed a number of problems. Delph

was reported to be moving slowly, groaning and using a cane to walk. He was

occasionally tearful during the evaluation. He reported spending his time watching

television and reading as his mother and sister did all of the chores. His IQ was 81.

Based on this information the ALJ concluded that Delph was not able to do even

sedentary work due to the combination of his physical and mental restrictions. 

While there is no doubt that Delph continued to suffer from depression, neck,

back and knee problems, and hypertension, there is substantial evidence in the record

to support the ALJ’s decision that medical improvement occurred after September

1995. Delph sought virtually no treatment for his depression, and Dr. Broughton’s

October 1998 report evidences a vast improvement in Delph’s mental health.
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Although he still suffered from degenerative disc disease and arthritis, his pain

appeared to be controlled with medication and a steroid injection in his left knee. He

stopped using a cane to walk and his gait became normal. Delph was able to attend

school full time in 1998. He drove back and forth to school, cooked, did laundry and

needed no significant help with his personal needs. The ALJ’s decision must be

upheld.

Delph asserts that the ALJ failed to consider the worsening of his cervical

impairment. He points out that the radiology report of the April 2000 MRI indicates

a change on the right side of the disc interspace at the C4-5 level when compared to

the June 1, 1995 MRI. After the MRI in 2000, Delph was diagnosed with a herniated

disc at C4-C5. He was referred to a neurosurgeon and that is when Delph started

treatment with Dr. Pait who eventually recommended surgery on the cervical spine.

The Court agrees that the diagnosis of a herniated disc in 2000 may be evidence that

the condition of Delph’s cervical spine did not improve, but the ALJ’s decision

indicates that the herniation was considered. The decision contains references to Dr.

Pait’s medical records, and those records are not extensive as Delph saw him on only

a few occasions. Our role on review is limited to determining whether the

Commissioner’s findings are supported by substantial evidence on the record as a

whole. See Clark v. Apfel, 141 F.3d 1253, 1255 (8th Cir. 1998). Despite evidence of

a change in Delph’s cervical spine, the record as a whole contains substantial evidence

in support of the ALJ’s decision that Delph’s condition improved. 

Delph appears to contend that the ALJ ignored some significant nonexertional

impairments that affect his residual functional capacity. He does not elaborate on this

issue or explain what impairments he is referring to, but he cites to the law requiring

vocational expert testimony to establish there are jobs available for a person with the

claimant’s particular characteristics, including nonexertional limitations. See, e.g.,

Sanders v. Sullivan, 983 F.2d 822, 823 (8th Cir. 1992). The ALJ in this case

specifically addressed Delph’s nonexertional limitations and determined that they do
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not limit his ability to perform basic work activities. Dr. McDonald listed an

assortment of disorders after his psychological evaluation of Delph in June 1995.

Since that time, Delph has undergone a number of mental health evaluations and his

mental health records have been reviewed by specialists. The recent records show no

significant psychological or psychiatric problems. The ALJ acknowledged that Delph

suffers from depression. The ALJ found, however, that the evidence does not reveal

any significant restrictions on Delph’s activities as a result of the depression. Delph

points to no record evidence to the contrary. The ALJ’s findings are supported by

substantial evidence. 

III

The judgment of the district court is affirmed.

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