Baldeo K. Singh v. Kenneth S. Apfel , 222 F.3d 448 ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 99-2366
___________
Baldeo Singh, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Kenneth S. Apfel, Commissioner of *
Social Security, *
*
Appellee. *
___________
Submitted: March 17, 2000
Filed: August 21, 2000
___________
Before RICHARD S. ARNOLD, LAY, and BEAM, Circuit Judges.
___________
BEAM, Circuit Judge.
Baldeo Singh appeals the district court's judgment affirming the denial of his
application for Social Security disability benefits. We reverse and remand.
I. BACKGROUND
Singh is a forty-five-year-old man with a high school education plus one year
of training as a machinist. He has been employed as a janitor, laborer, school bus
monitor and a machine operator. He worked consistently until he was involved in an
automobile accident on September 10, 1992. Since then, he has been involved in two
other automobile accidents, in 1993 and 1995, and also fell on ice and injured his back.
Singh asserts that he has been unable to engage in substantial gainful activity since the
first accident because of back pain, diabetes, headaches, frequent urination, and
stomach problems.
Singh applied for disability benefits on August 23, 1994. His application was
denied initially and on reconsideration. He then requested, and was granted, a hearing
before an administrative law judge (ALJ). At the hearing, Singh testified that he has
suffered from back and neck pain since his accident in 1992. He also stated that he has
problems with balance and walks only with the aid of a cane. He testified that he can
stand for only five minutes and cannot sit through an entire movie. His daily activities
consist of eating, watching television, lying down and generally staying around the
house. Singh had back surgery to remove a herniated disc in 1994. He testified that
his pain worsened after the surgery and that he now suffers from numbness, weakness,
and spasms in his legs.
A review of the medical evidence shows that Singh first sought medical
treatment for severe back pain in September 1992, shortly after the first car accident.
Since then, he has been treated by a neurologist, Dr. Lowell H. Baker, on a monthly
basis. Singh has also had chiropractic treatments twice weekly and has had countless
nerve blocks. Doctors' and nurses' notations indicate that Singh consistently reported
that he suffered a great deal of pain (i.e., reports of "unbearable pain," "can't sit or lie
down," "spending most of time in bed," "symptoms persist, flare" "lower back is
terrible, can't sit, stand or lie down," "sharp shooting pain from lower back down to
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feet," "symptoms increased," "headaches are terrible," and "neck is tight
continuously"). Singh has also been treated for severe headaches, urinary frequency,
peptic ulcer disease, and diabetes.
Singh was referred to a surgeon, Dr. Thomas Bergman, in 1994. Dr. Bergman's
records indicate that Singh "simply [had] not gotten any better with all modes of
conservative modalities including chiropractic treatments, exercise programs and
injections." Dr. Bergman diagnosed "left S1 radiculopathy"1 and recommended
surgery. In June 1994, Singh underwent a lumbar microdiscectomy.2 After the surgery,
he continued to complain of severe pain. He was then diagnosed with persistent nerve
root irritation. Epidural steroid injections were then recommended and Singh has
received several of these injections.
Singh has undergone several diagnostic procedures. A CT scan before his
surgery in 1994 revealed "a large left posterolateral disc herniation at L5-S1 results in
compression of the thecal sac and left S1 nerve root." An MRI after the surgery
showed "soft tissue change . . . consistent with granulation tissue/fibrosis" and
"enhancement of the left sided nerve roots . . . consistent with nerve root irritation."
An MRI in 1995 showed post-surgical changes, "small recurrent disc herniation with
associated fibrous retraction of the left S1 nerve root" and "continued enhancement of
the left S1 nerve root likely representing irritation of the nerve root."
Singh's treating neurologist, Dr. Baker, performed a Residual Functional
Capacity (RFC) assessment on Singh. Dr. Baker stated that Singh should be limited
1
Radiculopathy is a disease of the nerve roots. See Dorland's Illustrated Medical
Dictionary 1404 (28th ed. 1994) (Dorland's) .
2
A discectomy is the excision of an intervertebral disc. See Dorland's at 492.
A microdiscectomy is "debulking of a herniated nucleus pulposus using an operating
microscope or loupe for magnification." Dorland's at 1036.
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to fifteen minutes of uninterrupted standing and two hours of standing, in total, per day
and to one hour of uninterrupted sitting and two hours of sitting, in total, per day.
Singh's treating chiropractor also performed an RFC assessment, and recommended
essentially the same restrictions.
Singh's medical records were reviewed by Dr. Thomas Comfort and Dr. Robert
Hammerstrom. Those doctors also completed RFC assessments. Dr. Comfort stated
that Singh could perform medium work and Dr. Hammerstrom stated that Singh could
perform light work. Dr. Andrew Steiner also reviewed Singh's medical records and
testified at the hearing. He testified that Singh's impairments would limit him to
performing sedentary work.
William Villa, a vocational expert, also testified at the hearing. He was asked
whether a hypothetical individual with back pain, headaches, stomach problems,
diabetes, and frequent urination, limited to sedentary work that allowed him to alternate
positions, could find work in the national economy. Villa testified that such an
individual could perform such sedentary jobs as a security system monitor, inspector
or cashier. Villa also stated, however, that these jobs would not be available for a
person who had to take frequent restroom breaks or for a person who could only sit for
two hours out of an eight-hour shift.
After the hearing, the ALJ found Singh retains the residual functional capacity
for sedentary work and denied his claim. The ALJ rejected Dr. Baker's RFC
assessment as unreliable and unsupported by objective medical evidence. The ALJ
stated "the assessment provides no objective medical basis for these restrictions on
standing/walking and sitting . . . [and] appear[s] to be based almost exclusively on the
claimant's allegations of pain." She similarly rejected Singh's subjective allegations of
pain, stating "there is no basis for concluding that the claimant's pain rises to the level
of disability." The Appeals Council affirmed the decision, as did the district court.
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Singh appeals. He contends that the ALJ did not give appropriate weight to the
opinion of his treating physician; did not credit his subjective complaints of pain; and
failed to pose an appropriate hypothetical question to the vocational expert.
II. DISCUSSION
Under the Commissioner's regulations, the disability determination involves a
step-by-step analysis of any current work activity, the severity of the claimant's
impairments, the claimant's residual functional capacity and age, education and work
experience. See 20 C.F.R. § 404.1520(a); Braswell v. Heckler, 733 F.2d 531, 533 (8th
Cir. 1984). If the claimant suffers from an impairment that is included in the listing of
presumptively disabling impairments (the Listings), or suffers from an impairment equal
to such listed impairment, the claimant will be determined disabled without considering
age, education, or work experience. See Braswell, 733 F.2d at 533. If the
Commissioner finds that the claimant does not meet the Listings but is nevertheless
unable to perform his or her past work, the burden of proof shifts to the Commissioner
to prove, first, that the claimant retains the residual functional capacity to perform other
kinds of work, and, second, that other such work exists in substantial numbers in the
national economy. See Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000). A
claimant's residual functional capacity is a medical question. See id. at 858.
Our role on review is to determine 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). Substantial evidence is less than a preponderance,
but is enough so that a reasonable mind would find it adequate to support the ALJ's
conclusion. See Cox v. Apfel, 160 F.3d 1203, 1206-07 (8th Cir. 1998). In determining
whether existing evidence is substantial, we consider "evidence that detracts from the
Commissioner's decision as well as evidence that supports it." Warburton v. Apfel, 188
F.3d 1047, 1050 (8th Cir. 1999).
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We first consider Singh's contention that the ALJ failed to grant proper weight
to the opinion of his treating neurologist, Dr. Lowell Baker. Dr. Baker restricted Singh
to sitting for only two hours out of an eight hour day, and for only one hour without
interruption. The ALJ, however, rejected Dr. Baker's opinion in favor of the
evaluations of consulting physicians who had not examined Singh.
A treating physician's opinion should not ordinarily be disregarded and is entitled
to substantial weight. See Ghant v. Bowen, 930 F.2d 633, 639 (8th Cir.1991). A
treating physician's opinion regarding an applicant's impairment will be granted
controlling weight, provided the opinion is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in the record. See Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir.
1998). By contrast, "[t]he opinion of a consulting physician who examines a claimant
once or not at all does not generally constitute substantial evidence." Id. Likewise, the
testimony of a vocational expert who responds to a hypothetical based on such
evidence is not substantial evidence upon which to base a denial of benefits. See
Nevland, 204 F.3d at 858.
The record here is replete with evidence that substantiates the opinion of Singh's
treating physician, Dr. Baker. Singh has consistently sought medical treatment for his
pain and has undergone numerous procedures, including surgery, to alleviate the pain.
His pain can be directly attributed to an objective finding–a diagnosis of persistent
nerve root irritation and more recently, to a recurrent herniated disc. Dr. Baker's
diagnosis and opinion are amply supported by clinical data. There is no evidence in the
record to support the ALJ's residual functional capacity finding other than the
non-treating physicians' assessments. These assessments alone cannot be considered
substantial evidence in the face of the conflicting assessment of a treating physician.
See Henderson v. Sullivan, 930 F.2d 19, 21 (8th Cir. 1991).
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Also, Dr. Baker is a specialist, a neurologist, while the consulting physicians are
not. The Commissioner is encouraged to give more weight to the opinion of a specialist
about medical issues related to his or her area of specialty than to the opinion of a
source who is not a specialist. See Metz v. Shalala, 49 F.3d 374, 377 (8th Cir. 1995).
In any event, whether the ALJ grants a treating physician's opinion substantial or little
weight, the regulations also provide that the ALJ must "always give good reasons" for
the particular weight given to a treating physician's evaluation. 20 C.F.R §
404.1527(d)(2). The ALJ failed to do so. After first noting that Dr. Baker's opinion
was based primarily on Singh's subjective complaints, she stated only that she "declines
to accept portions of Dr. Lowell Baker's functional capacities assessment because it is
unreliable and unsupported by objective medical evidence." For the reasons stated
below, the ALJ's initial assumption on Singh's subjective complaints of pain is faulty.
Moreover, the record shows that Dr. Baker's opinion is supported by medically
acceptable clinical data. We thus find the ALJ's failure to properly credit the opinion
of Singh's treating physician is error.
Furthermore, the ALJ failed to properly credit Singh's subjective complaints of
pain, all of which were consistent with the objective medical evidence. Subjective
complaints may be discounted if there are inconsistencies in the record as a whole. See
Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984) (enumerating factors that ALJs
should consider in making the determination). An ALJ who rejects such complaints
must make an express credibility determination explaining the reasons for discrediting
the complaints. See Ghant, 930 F.2d at 637. The ALJ rejected Singh's allegations of
disabling pain without discussing the Polaski factors. She acknowledged that Singh
suffered from pain but emphasized "that there is no basis for concluding that the
claimant's pain rises to the level of disability." She did not point to any specific
inconsistencies in the record.
Our review of the record reveals no such inconsistencies. Singh's testimony
regarding his daily activities–staying around the house, watching T.V., needing help to
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shave, being unable to sit through an entire movie–are consistent with his complaints
of disabling pain. This court has repeatedly stated that a person's ability to engage in
personal activities such as cooking, cleaning or a hobby does not constitute substantial
evidence that he or she has the functional capacity to engage in substantial gainful
activity. See Kelley, 133 F.3d at 588-89.
A claimant's allegations of disabling pain may be discredited by evidence that
the claimant has received minimal medical treatment and/or has taken only occasional
pain medications. See id. at 589. However, this is not the case with Singh. The record
shows repeated and consistent visits to doctors. Singh presently takes, and has taken,
numerous prescription medications.3 He has availed himself of many pain treatment
modalities including chiropractic treatments, nerve blocks, a TENS unit, and has
undergone surgery and many diagnostic tests. Further, Singh is not an individual who
lacks an impressive work record. See, e.g., Siemers v. Shalala, 47 F.3d 299, 301 (8th
Cir. 1995) (noting unimpressive work record when discrediting subjective complaints).
In short, there is nothing in this record to justify the rejection of Singh's complaints of
disabling pain.
In view of our findings that the ALJ improperly rejected both the opinion of
Singh's treating physician and Singh's subjective complaints of pain, we find that the
hypothetical question posed to the vocational expert did not adequately reflect Singh's
impairments. Accordingly, the testimony of the vocational expert that jobs exist for
Singh cannot constitute substantial evidence on the record as a whole. See Pratt v.
Sullivan, 956 F.2d 830, 836 (8th Cir. 1992).
3
These include Parafon Forte, Wellbutrin, Relafen, Midrin, Quinine, Pamelor,
Feldene, Trazodone, Nadolol, Piroxicam, Paxil, Diazepam, Propantheline, Glucotrol,
and Prilosec.
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III. CONCLUSION
Having found that the Commissioner has not met his burden of proving that
Singh can perform other jobs in the national economy, we reverse the judgment of the
district court affirming the Commissioner's decision. The evidence supports a finding
of disability. Consequently, we reverse and instruct the district court to remand to the
Commissioner for an award of benefits. See Andler v. Chater, 100 F.3d 1389, 1394
(8th Cir. 1996) (if a claimant is disabled on the record, we may reverse and remand for
entry of an order granting benefits).
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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