Luebertha Ingram v. Shirley S. Chater ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-2533
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Luebertha Ingram, *
*
Plaintiff-Appellant, *
*
v. * Appeal from the United States
* District Court for the Eastern
Shirley S. Chater, Commissioner * District of Arkansas.
of the Social Security *
Administration, *
*
Defendant-Appellee. *
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Submitted: December 9, 1996
Filed: February 25, 1997
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Before WOLLMAN, BRIGHT, and MURPHY, Circuit Judges.
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BRIGHT, Circuit Judge.
Luebertha Ingram appeals from the district court's order
affirming the denial of disability insurance benefits and
supplemental security income by the Commissioner of the Social
Security Administration (Commissioner). The district court found
substantial evidence to support the determination that Ingram was
not disabled and granted the Commissioner's motion for summary
judgment. We affirm in part, reverse in part, and remand for
further proceedings.
FACTUAL BACKGROUND
Luebertha Ingram filed an application for disability insurance
benefits and supplemental security income on March 9, 1993. She
asserted an inability to work since 1990 due to back and leg pain
and migraine headaches. Ingram, who is in her late forties, was
previously employed as a factory worker and, until the onset of her
health problems, had a consistent work record.
Three doctors examined Ingram. Dr. D. J. Brewer, a chiro-
practor, examined Ingram prior to her claim for benefits. At the
request of the Commissioner, Ingram saw Dr. Richard L. Hester on
April 13, 1993. Ingram also saw Dr. Ramon Lopez on July 27, 1993.
Finally, Dr. Hester treated Ingram on at least a dozen occasions
after April 13, 1994.
The Commissioner denied Ingram's initial claim for benefits,
as well as her claim on reconsideration. Ingram then received a
hearing before an administrative law judge (ALJ) and the ALJ
affirmed the denial of Ingram's claim. The Appeals Council
declined to review the ALJ's determination, thereby making the
ALJ's decision the final ruling of the Commissioner. The district
court then affirmed the ALJ and Ingram brought this appeal.
DISCUSSION
"Our review of the denial of benefits is limited to
determining whether the decision is supported by substantial
evidence on the record as a whole." Groeper v. Sullivan, 932 F.2d
1234, 1237 (8th Cir. 1991). Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion. Smith v. Shalala, 987 F.2d 1371, 1374 (8th Cir.
1993). "In assessing the substantiality of the evidence, we must
consider evidence that detracts from the Secretary's decision as
well as evidence that supports it." Id. We may also reverse the
Secretary's findings if the Secretary applies an erroneous legal
standard. Nettles v. Schweiker, 714 F.2d 833, 835-36 (8th Cir.
1983). Finally, the ALJ "must minimally articulate his reasons for
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crediting or rejecting evidence of disability." Scivally v.
Sullivan, 966 F.2d 1070, 1076 (7th Cir. 1992).
To receive disability benefits, Ingram must establish a
physical impairment lasting at least one year that prevents her
from engaging in any substantial gainful activity. Smith, 987 F.2d
at 1373. Ingram bears the burden of proof on this issue. Id. In
determining whether a claimant is disabled, the Commissioner
utilizes a five-step sequential evaluation:
First, the Secretary determines whether the claimant is
presently engaged in a ``substantial gainful activity.'
Second, the Secretary analyzes whether the claimant has
a severe impairment--one that significantly limits the
claimant's physical or mental ability to perform basic
work activities. Third, the Secretary determines whether
the claimant has an impairment that meets or equals an
impairment listed in the regulations; if so, the
Secretary finds that the claimant is disabled without
considering the claimant's age, education, and work
experience. Fourth, the Secretary considers the
claimant's residual functional capacity and the physical
and mental demands of the claimant's past work to
determine whether the claimant can still perform that
work. If the claimant has the residual capacity to
perform that work, the Secretary finds that the claimant
is not disabled. Finally, if the Secretary determines
that the claimant cannot perform the past work, the
Secretary determines whether any substantial gainful
activity exists in the national economy which the
claimant can perform.
Id. (citations omitted).
There is no dispute that Ingram meets the first two prongs of
the test, so only the third and fourth steps are at issue here.
Specifically, the ALJ determined that Ingram did not meet the
criteria of a listed impairment for purposes of step three. Add.
at 19. Under step four, the ALJ concluded that Ingram "has the
residual functional capacity to perform work-related activities
except for work involving lifting and carrying more than 20 pounds
. . . . [and her] impairments do not prevent [her] from performing
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her past relevant work." Id. Ingram contests both findings, as
well as the ALJ's credibility determinations.
I.
Ingram first argues that she is entitled to benefits because
she is disabled due to obesity. A woman is presumed to be disabled
due to obesity when she establishes the following medical listing:
9.09 Obesity: Weight equal to or greater than the
values specified in Table . . . II for females (100
percent above desired level), and . . .:
A. History of pain and limitation of motion in any
weight-bearing joint or the lumbosacral spine (on
physical examination) associated with findings on
medically acceptable imaging techniques of arthritis in
the affected joint or lumbosacral spine . . . .
20 C.F.R. pt. 404, subpt. P, app. 1 § 9.09. We first consider
whether Ingram meets the Table II requirements of obesity, then
determine whether she meets the criteria outlined under § 9.09A.
A.
During the ALJ hearing, Ingram testified that she weighed 240
pounds and that her height was 5'5". These measurements are
insufficient for purposes of establishing obesity under Table II,
and the ALJ found that "there is no evidence that the claimant has
met the height and weight requirements . . . for more than twelve
consecutive months . . . ." Add. at 11. It is undisputed,
however, that every examining doctor placed Ingram's height and
weight in the obesity category under Table II and that these
reports extend over a twelve-month period. In addition, no medical
evidence suggests Ingram ever failed to meet the requirements of
Table II.1 Indeed, the district court observed:
In 1990, Dr. Brewer found Ingram was 5'0" and weighed 241
pounds. From April 1993 through November 1994, Dr. Hester found
Ingram as 5'3" and weighed between 253 and 267 pounds. In July
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Defendant relies on the fact that plaintiff testified
that she was 5'5" and weighed 240 pounds. However, the
medical evidence always shows that she was shorter and,
usually, heavier. The Step 3 determination is based on
medical evidence. Clearly, the ALJ would have been
entitled to discount her testimony if she testified that
she was shorter than medical records indicated; it would
be unfair to hold plaintiff to the height that she
testified to when medical records clearly show that her
testimony was incorrect.
Add. at 28 n.2 (citations omitted). We agree with the district
court and conclude that there is no substantial evidence in the
record to support the ALJ's determination on this issue.
Accordingly, we hold that Ingram meets the requirements of Table II
and is obese for purposes of § 9.09.
B.
Ingram must also satisfy the criteria of § 9.09A which
requires a "history of pain and limitation of motion in any weight-
bearing joint or the lumbosacral spine (on physical examination)
associated with findings on medically acceptable imaging techniques
of arthritis in the affected joint or lumbosacral spine." 20
C.F.R. pt. 404, subpt. P, app. 1 § 9.09A. The ALJ rejected this
portion of Ingram's claim in rather conclusory fashion. The ALJ
stated only that Ingram failed to demonstrate "the other required
secondary body system effects for the requisite time period with
the required clinical and laboratory findings specified for such a
body system by the listed impairment found in Section 9.09. . . ."
Add. at 11. The district court affirmed, holding that Ingram did
not meet any of the criteria under § 9.09A because she failed to
produce x-ray evidence of arthritis and did not establish a history
1993, Dr. Lopez found Ingram was 5'4" and weighed 258 pounds.
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of pain or limitation of motion. Ingram challenges these
conclusions.2
As an initial matter, we must first determine the proper legal
standard concerning the amount of pain or limitation of motion
necessary under § 9.09A because the ALJ and district court did not
do so. Section 9.09A, by its plain language, requires only a
history of pain and limitation of motion, but does not state that
a particular level of pain or limitation must be demonstrated.
Pitzer v. Sullivan, 908 F.2d 502, 505 (9th Cir. 1990) (requiring
claimant to demonstrate "disabling" pain is an "additional
The district court made the following comments regarding
Ingram's claim under § 9.09A:
There is no plain X ray, computerized axial
tomographic X ray or magnetic resonance imaging which
shows arthritis in knees, ankles, hips or lumbosacral
spine.
Plaintiff points to Dr. Ramon E. Lopez's X rays of
the lumbar spine showing degenerative lumbar disc disease
at L5-S1. Degenerative disc disease is not arthritis, of
course.
Plaintiff also points to an April, 1994, examination
by Dr. Richard L. Hester. . . . Dr. Hester's notes
indicate, "She has some slight pain to palpation of the
left knee. There is some slight pain with range of
motion. It's not particularly swollen or warm to touch,
either."
He also recorded laboratory findings: "X-rays of the
knee and arms are relatively unremarkable. There is
possibly some slight loss of cartilage in the knee."
It should also be noted that when plaintiff
presented to Dr. Hester in April, 1994, with complaints
of pain in both knees and hands, she indicated that this
had started bothering her just within the last several
weeks.
While Dr. Lopez recorded a reduced ranged of motion
in the hips and spine, Dr. Hester had examined her three
months before and found no limitation of motion.
Add. at 28-29 (citations omitted).
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requirement" that "flies in the face of the plain language" of
§ 9.09A); Carnes v. Sullivan, 936 F.2d 1215, 1219 (11th Cir. 1991).
At least three circuit court of appeals agree that, for purposes of
§ 9.09A, a claimant need only demonstrate a minimal amount of pain
and limitation of motion. See Hughes v. Shalala, 23 F.3d 957, 959
(5th Cir. 1994) ("There is no requirement that the pain be severely
limiting [or] that the limitation of motion be marked . . . . The
listing requires only limitation of motion . . . ."); Carnes, 936
F.2d at 1219 ("The ALJ . . . imposed unjustifiable new requirements
to Listing [9.09A] by requiring Carnes to show that her arthritis
is more than minimal, and that her limitation of motion is
``significant.'"); Pitzer, 908 F.2d at 505. "Moreover, the
regulation also says that long-term obesity is usually associated
with other disorders, and it is ``the advent of such disorders
[that] is the major cause of impairment.'" Pitzer, 908 F.2d at 505
(quoting 20 C.F.R. pt. 404, subpt. P, app. 1); see also Carnes, 936
F.2d at 1215.
Indeed, the amount of x-ray evidence of arthritis necessary
for purposes of § 9.09A is identical to that necessary to demon-
strate a history of pain and limitation of motion. For example,
the Eleventh Circuit holds that "an obese claimant need present no
more than evidence of minimal degenerative joint changes to meet
the required showing of ``X-ray evidence of arthritis . . . .'"
Carnes, 936 F.2d at 1219; see also Hughes, 23 F.3d at 959 ("The
listing [only] requires . . . any amount of x-ray evidence of
arthritis."); Holden v. Shalala, 846 F. Supp. 662, 667-668 (N.D.
Ill. 1994) ("minimal" evidence of arthritis in knees of obese
claimant sufficient); Johnson v. Bowen, 687 F. Supp. 1284, 1307
(W.D. Wis. 1988) ("[T]he degree of severity of the arthritis
necessary to satisfy this section is very low."). "To require
[Ingram] to produce X-ray evidence of more advanced arthritis is
. . . to ignore the ``profound effect of excessive weight on a
weight-bearing joint' which justifies the ``relatively modest
pathological threshold' imposed . . . ." by § 9.09A. Carnes, 936
F.2d at 1219 (quoting Johnson, 687 F. Supp. at 1307).
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We adopt the standard articulated by these courts that a
claimant must demonstrate only a minimal amount of pain, limitation
of motion and x-ray evidence of arthritis for purposes of § 9.09A.
Finally, we note that Ingram is not "required to show that her
symptoms of pain and limitation of motion were caused by arthritis
and not just by her obesity." Carnes, 936 F.2d at 1219; see also
Pitzer, 908 F.2d at 505.
With the appropriate legal standards now before us, we
consider Ingram's claims in turn. We first determine whether
Ingram adequately demonstrates a history of pain, limitation of
motion, and x-ray evidence of arthritis in her knees. Next, we
consider whether Ingram demonstrates such evidence in her spine.
Ingram is entitled to benefits if she makes this showing for either
her knees or her spine.
i.
Dr. Hester's initial examination in 1993, without the benefit
of an x-ray, resulted in a diagnosis of obesity and probable lumbar
muscular strain but detected no limitation of motion in Ingram's
knees. Admin. Tr. at 153. Dr. Hester's next physical examination
on April 13, 1994, however, included an x-ray of Ingram's knees and
Dr. Hester observed that Ingram suffered from "slight pain to
palpation to the left knee" and "some slight pain with range of
motion." Admin. Tr. at 164. More significantly, Dr. Hester's
assessment changed once again when he saw Ingram on July 26, 1994,
and determined that Ingram had "mild to moderate pain with range of
motion of either knee."3 Id. at 169. Likewise, on July 23, 1993,
Dr. Lopez detailed some restricted motion in Ingram's left knee.
Id. at 157.
Medical evidence from Dr. Hester dated July 26, 1994 through
January 3, 1995 was not submitted to the ALJ, but was made part of
the record on appeal to the Appeals Council. Admin. Tr. at 6.
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The Commissioner accurately summarized that Dr. Hester
"consistently described [Ingram's history of pain and limitation of
motion] as only slight, mild or minimal . . . ." Appellee's Br. at
10. This statement, in light of the standard set forth above,
concedes that Ingram demonstrates a sufficient showing of pain and
limitation of motion for purposes of § 9.09A. Accordingly, we
determine that Ingram meets the pain and limitation of motion
requirement of § 9.09A for her knees.
Ingram next argues that x-ray evidence demonstrates some
arthritis in her knees.4 Dr. Lopez took x-rays of Ingram's knees
but made no observations regarding arthritis. Dr. Hester, on the
other hand, noted there was "possibly some slight loss of cartilage
in the knee" and diagnosed Ingram as having "[p]robable early
osteoarthritis of both hands and knees." Admin. Tr. at 164.
Indeed, within two days Dr. Hester diagnosed osteoarthritis, id. at
163, and ten days later he noted "exacerbat[ed] . . . osteoarthri-
tis." Admin. Tr. at 162. Dr. Hester's diagnosis of osteoarthritis
remained essentially unchanged through Ingram's last visit with Dr.
Hester on January 3, 1995. Admin. Tr. at 172.
Even though the Commissioner did not challenge this contention
in either her brief or during oral argument, we are reluctant to
interpret these statements as clearly articulating x-ray evidence
of some arthritis in Ingram's knees. In particular, Dr. Hester's
qualification that such arthritis is "probable," despite his
subsequent diagnosis, gives us pause. Accordingly, we remand to
the ALJ for the limited purpose of determining whether Ingram
demonstrates some x-ray evidence of arthritis in her knees. If so,
she is entitled to benefits.
Ingram also argues that the x-ray evidence of Dr. Brewer
should be considered. Dr. Brewer is a chiropractor. Under the
regulations, chiropractors are not considered "acceptable medical
sources." 20 C.F.R. § 404.1513(a)(1995). Therefore, we decline to
rely on Dr. Brewer's conclusions.
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ii.
The record regarding limitation of motion in Ingram's spine is
unclear. Indeed, the district court noted a disagreement between
Dr. Hester and Dr. Lopez on this point. Add. at 29. The ALJ did
not, however, articulate specific findings concerning this
evidence. Accordingly, we remand to the ALJ to determine whether
Ingram demonstrates a history of pain and limitation of motion in
her spine.
Dr. Lopez observed that "X-rays of the lumbar spine revealed
a first degree spondylolisthesis at L5-S1 with narrowing of the
interspace. There were also degenerative changes and sclerosis of
the facet joints at the same level." Admin. Tr. at 156. Because
no other doctor x-rayed Ingram's spine, these conclusions of Dr.
Lopez remain undisputed. Although the ALJ did not make any
specific determinations regarding this x-ray, the district court
discounted it because "[d]egenerative disc disease is not
arthritis, of course." Add. at 28. Although it appears that
degenerative disc disease is, in fact, evidence of arthritis,5 we
remand for the purpose of determining whether Dr. Lopez's x-ray
demonstrated "any amount of evidence of arthritis" in Ingram's
spine. Hughes, 23 F.3d at 959.
II.
Ingram makes an alternative argument that, even if she fails
to meet the criteria of a listed impairment due to obesity, the
ALJ's conclusion that she can return to her past relevant work is
not substantially supported by the evidence. Ingram has the burden
of demonstrating that she is unable to perform her previous work.
See, e.g., McGraw-Hill Concise Encyclopedia of Science and
Technology 152 (2d ed. 1989) (dividing arthritis into four groups,
including "degenerative joint disease").
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Dixon v. Sullivan, 905 F.2d 237, 238 (8th Cir. 1990). When
evaluating whether a claimant can return to past work, the ALJ:
must specifically set forth the claimant's limitations,
both physical and mental, and determine how those
limitations affect the claimant's residual functional
capacity. The ALJ must also make explicit findings
regarding the actual physical and mental demands of the
claimant's past work. Then, the ALJ should compare the
claimant's residual functional capacity with the actual
demands of the past work to determine whether the
claimant is capable of performing the relevant tasks. A
conclusory determination that a claimant can perform past
work without these findings, does not constitute
substantial evidence that the claimant is able to return
to his past work.
Groeper, 932 F.2d at 1238-39 (citations omitted). Residual
functional capacity "is not the ability merely to lift weights
occasionally in a doctor's office; it is the ability to perform the
requisite physical acts 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) (en banc).
The ALJ briefly discussed Ingram's past job duties: "[T]he
claimant retains a residual functional capacity to perform her past
relevant work experience as a machine operator as she described it
and as such work is normally performed in the national economy."
Add. at 18. The ALJ relied on Ingram's description of this work as
requiring standing and walking for twelve hours a day in addition
to constant bending. Add. at 18.
Dr. Hester and Dr. Lopez discussed Ingram's capacity to work.
Dr. Hester concluded after his first examination that Ingram could
"perform all of the work-related tasks asked of her here in the
office . . . ." Admin. Tr. at 154. As noted earlier, however, Dr.
Hester's assessment appeared to change after subsequent
examinations. Dr. Lopez concluded that Ingram "would not be able
to do work activities which require any sitting, standing, bending,
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. . . climbing, stooping, or squatting. She would be also be
unable to do any repetitive reaching or handling of objects."
Admin. Tr. at 156.
The ALJ apparently favored Dr. Hester's report and, although
it is within the ALJ's authority to resolve conflicting opinions,
Cabrnoch v. Bowen, 881 F.2d 561, 564 (8th Cir. 1989), we are unable
to determine whether the ALJ considered these reports under the
correct legal standard. See McCoy, 683 F.2d at 1147. Indeed, in
light of Dr. Hester's later reports detailing Ingram's increasing
pain and limitation of motion, there is little medical evidence
contradicting Dr. Lopez's conclusions that Ingram cannot tolerate
prolonged work. Accordingly, we remand this issue to the ALJ for
reconsideration in light of the legal standard set forth above.
III.
The ALJ made credibility assessments regarding Ingram's
alleged inability to work. An ALJ is permitted to disbelieve
subjective complaints if there are inconsistencies in the record.
Isom v. Schweiker, 711 F.2d 88, 90 (8th Cir. 1983). These
credibility assessments have support in the record.
CONCLUSION
"The decision whether to remand a case for additional
evidence, or simply to award benefits is within the discretion of
the court." Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987).
In light of our discussion, we affirm in part, reverse in part, and
remand for further proceedings consistent with this opinion.
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A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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