Raymond J. Wermers v. Kenneth S. Apfel ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-3438
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Raymond J. Wermers, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota
Kenneth S. Apfel, Commissioner *
of Social Security, * [UNPUBLISHED]
*
Appellee. *
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Submitted: November 7, 2000
Filed: November 15, 2000
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Before McMILLIAN, BOWMAN, and MORRIS SHEPPARD ARNOLD,
Circuit Judges.
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PER CURIAM.
Raymond J. Wermers appeals from the final judgment entered in the District
Court1 for the District of South Dakota affirming the Social Security Commissioner’s
decision to deny his application for supplemental security income (SSI). For reversal,
1
The Honorable Lawrence J. Piersol, United States District Judge for the District
of South Dakota.
appellant argues the denial of benefits is not supported by substantial evidence because
the administrative law judge (ALJ) erred in: (1) concluding he was not severely
disabled from neurological complications following a 1976 fall, and not finding his
onset date retroactive to 1976; (2) permitting the vocational expert (VE) to testify as
to his vocational abilities; (3) misstating his physical abilities in hypothetical questions
to the VE; (4) considering Dr. Theresa Campbell’s opinion; and (5) not referring him
for a consultative medical examination. For the reasons discussed below, we affirm the
judgment of the district court.
At a hearing before the ALJ, Wermers testified that he suffers from back and
neck pain and neurological problems. Following the hearing, the ALJ found that
Wermers’s impairments were not of listing-level severity and that Wermers retained the
residual functional capacity to perform medium-exertional, unskilled work.
Considering the factors set forth in Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.
1984), the ALJ discounted Wermers’s subjective complaints of disabling pain, finding
them inconsistent with the medical evidence and the information Wermers provided in
written reports.
We conclude substantial evidence in the record supports the ALJ’s decision. See
Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000) (standard of review). First, the
only evidence of any neurological complications from Wermers’s 1976 fall was his
testimony, which the ALJ properly discredited based on the lack of supporting medical
evidence and on Wermers’s description of his daily activities. See Johnston v. Apfel,
210 F.3d 870, 875 (8th Cir. 2000) (ALJ’s finding that claimant’s impairments were not
severe was supported by inconsistencies between subjective complaints, medical
record, and daily activities). Wermers, moreover, cannot receive SSI benefits for any
months preceding the filing of his application. See Cruse v. Bowen, 867 F.2d 1183,
1185 (8th Cir. 1989). Second, the VE was qualified to testify. Third, in the
hypothetical questions to the VE, the ALJ accurately characterized Wermers’s
testimony--to the extent the ALJ found it credible--about his physical abilities. See
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Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999); Haggard v. Apfel, 175 F.3d
591, 595 (8th Cir. 1999). Fourth, the ALJ properly considered Dr. Campbell’s opinion,
because it was formed after examining Wermers and reviewing his x-ray results, and
it was consistent with other treating physicians’ diagnoses. Cf. 20 C.F.R.
§ 416.927(d)(2) (2000) (treating physician’s opinion is accorded controlling weight
when it is well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with other substantial evidence in record). Last, the
ALJ was not obligated to order a consultative examination, because he had sufficient
evidence from Wermers’s treating physicians to make a determination regarding the
alleged physical impairments. See id. § 416.917 (when claimant’s medical sources do
not give ALJ sufficient medical evidence about impairments to determine whether
claimant is disabled, ALJ may order consultative examination).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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