Dan Gieseke v. Carolyn Colvin , 770 F.3d 1186 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-1395
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Dan Gieseke
lllllllllllllllllllll Plaintiff - Appellant
v.
Carolyn W. Colvin, Acting Commissioner
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: September 11, 2014
Filed: November 3, 2014
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Before WOLLMAN, LOKEN, and MURPHY, Circuit Judges.
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LOKEN, Circuit Judge.
An Administrative Law Judge (“ALJ”) concluded that Dan Gieseke was not
disabled and denied his applications for Social Security disability insurance benefits
and supplemental security income. Gieseke sought judicial review of the adverse
agency decision and now appeals the district court’s1 decision denying relief. Like
the district court, we conclude that the ALJ’s determination is supported by
substantial evidence on the administrative record as a whole and therefore affirm.
Welsh v. Colvin, 765 F.3d 926, 927 (8th Cir. 2014) (standard of review).
I.
Gieseke’s long history of low back pain was aggravated by a work injury in
2006. After physical therapy, he returned to work subject to restrictions. He last
worked in October 2008. His disability application listed lower back issues,
dizziness, and leg problems as limiting conditions that prevent him from working.
After a hearing at which Gieseke and a vocational expert (“VE”) testified, the
ALJ found that Gieseke has severe impairments -- degenerative disc disease of the
lumbar spine, obesity, and a history of substance abuse. He can lift and carry twenty
pounds occasionally and ten pounds frequently; can stand and sit for six hours a day;
can occasionally balance, stoop, kneel, crouch, or crawl; should never be around
heights or moving machinery or be required to climb ropes, ladders, or scaffolds; and
requires a cane when standing. He is unable to perform his past relevant work. He
has the residual functional capacity (“RFC”) to perform light work but is impeded by
limitations that “erode the unskilled light occupational base.” Crediting the VE’s
answer to a hypothetical question incorporating these limitations, the ALJ found that
Gieseke has the RFC to perform cashier, security guard, and usher positions that exist
in sufficient numbers in the national economy and in Iowa to render him not disabled.
1
The Honorable Charles R. Wolle, United States District Judge for the Southern
District of Iowa.
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II.
A. Gieseke argues the ALJ erred in not giving controlling weight to the
opinion of Gieseke’s treating physician, Dr. Alan Bollinger. Responding in
December 2011 and July 2012 to forms listing the Social Security Administration’s
(“SSA”) estimates of Gieseke’s physical limitations, Dr. Bollinger opined that
Gieseke was limited to lifting less than ten pounds occasionally or frequently,
standing for less than two hours per workday, frequently changing sitting position
during the workday, and never climbing, stooping, kneeling, crouching, or crawling.
These limitations, substantially more restrictive than the ALJ’s RFC findings, would
mean that Gieseke was unable to perform the full range of sedentary work. At his
age, education, and work history, this requires a finding that he is disabled under the
SSA’s “Grids.” See 20 C.F.R. Pt. 404, Subpt. P, App. 2, tbl. 1.
“A treating physician’s opinion is given controlling weight if it is well-
supported by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence.” House v. Astrue, 500 F.3d
741, 744 (8th Cir. 2007) (quotation omitted). Here, like the district court, we
conclude that substantial evidence supports the ALJ’s decision to give no weight to
Dr. Bollinger’s opinions. The opinions were not supported by objective medical
evidence in the administrative record, which showed degenerative lumbar disc
disease that did not require surgery and a normally-aligned spine. Based almost
entirely on Gieseke’s subjective complaints, Dr. Bollinger’s opinions were rejected
by two state agency medical advisors, who reviewed the medical file and concluded
that Dr. Bollinger based his opinions on minimal exams, and that the imaging
evidence did not support the level of impairment Dr. Bollinger found. In addition,
Dr. Robert Bender performed an SSA physical exam in May 2012 that did not
corroborate Dr. Bollinger’s assessment. Dr. Bender noted that Gieseke’s alleged
symptoms did not match his medical history or “heavily muscled” body.
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B. Gieseke argues that the SSA Grids require a determination that he is
disabled, specifically, 20 C.F.R. Pt. 404, Subpt. P, App. 2 , § 201.00(g) and Table No.
1, § 201.10. However, both those provisions are premised on an RFC that limits the
claimant to sedentary work. Here, the ALJ found that Gieseke has the RFC to
perform a range of light work. Gieseke’s only challenge to that finding is that the
ALJ should have given controlling weight to Dr. Bollinger’s opinion that Gieseke is
limited to sedentary work. Thus, our conclusion that the ALJ did not err in giving Dr.
Bollinger’s opinion no weight forecloses his contention that the Grids required a
determination that he is disabled.
C. When a claimant cannot perform his past relevant work, the Commissioner
has the burden of producing evidence that he has the RFC to adjust to other work.
See 20 C.F.R. § 404.1520(a)(4)(v); Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir.
2004). In making this determination, the ALJ may rely on testimony by a VE that is
“based on a correctly phrased hypothetical question that captures the concrete
consequences of a claimant’s deficiencies.” Cox v. Astrue, 495 F.3d 614, 620 (8th
Cir. 2007). Here, responding to the ALJ’s proper hypothetical question, the VE
identified unskilled light jobs from the Dictionary of Occupational Titles (“DOT”)
that Gieseke can perform even though he must use a cane when standing -- cashier,
DOT 211.462-010; security guard, DOT 372.667-038; and usher, DOT 344.677-014.
The VE testified that being limited to use of one arm when standing would reduce
by ten to twenty percent the number of jobs in those categories a person can perform.
The VE based this estimate on a 2008 study in the Journal of Forensic Vocational
Analysis entitled “Employer Validation of Jobs Performed with One Arm.”
Gieseke argues that this testimony created an unexplained conflict between the
VE’s testimony and the DOT that requires remand for an additional hearing. See
generally Welsh, 765 F.3d at 929-30. We agree with the district court there was no
conflict. The DOT provides “generic job descriptions that offer the approximate
maximum requirements for each position,” not the number of jobs that exist in each
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category. Wheeler v. Apfel, 224 F.3d 891, 897 (8th Cir. 2000). Thus, when a
claimant has a limitation that affects his ability to perform every job within a generic
range, such as Gieseke’s need to use a cane, the VE may reduce his estimate of the
number of existing jobs the claimant can perform. Welsh, 765 F.3d at 930. Implicitly
recognizing that this type of testimony does not create a “conflict” with the DOT,
Gieseke argues the VE’s testimony was unreliable because it was based on a Journal
of Forensic Vocational Analysis study, rather than her own experience. That issue
is judicially reviewable. But as we explained in Welsh, whether “the VE’s
explanations were based upon insufficient personal experience and unreliable
scholarly literature . . . were fact issues for the ALJ to resolve.” Id. The ALJ deemed
the VE’s testimony reliable. After careful review, we conclude that substantial
evidence supports the ALJ’s finding that a person with Gieseke’s RFC can perform
a sufficient number of existing jobs based on the VE’s testimony.
The judgment of the district court is affirmed.
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