William Johnson v. Kenneth Apfel ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-2517
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William B. Johnson, *
*
Appellant, *
*
v. * Appeals from the United States
* District Court for the District
Kenneth S. Apfel, Commissioner * of Nebraska
of Social Security *
*
Appellee. *
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Submitted: December 15, 2000
Filed: February 21, 2001
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Before McMILLIAN and MURPHY, Circuit Judges, and BOGUE,1 District Judge.
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BOGUE, District Judge.
William Johnson appeals from the District Court’s2 order upholding the decision
of the Commissioner of Social Security Administration (SSA) denying Johnson’s
petition for disability benefits. In his appeal, Johnson alleges the Administrative Law
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The Honorable Andrew W. Bogue, Senior United States District Judge for the
District of South Dakota, sitting by designation.
2
The Honorable Thomas M. Shanahan, United States District Judge for the
District of Nebraska.
Judge (ALJ) failed to give sufficient weight to the testimony of his treating physician,
failed to give proper weight to the vocational expert’s opinion, and improperly
determined that Johnson’s personal activities demonstrated he was not disabled. We
conclude that the ALJ did not err in her decision to deny benefits, accordingly, we
affirm.
I.
Johnson was employed as a pharmacy director at Memorial Hospital of Dodge
County for over ten years until his position was eliminated on December 31, 1993. He
continued to work at the hospital through January 21, 1994, but he has remained
unemployed since April 12, 1995, despite his continued search for new employment.
Johnson’s duties as the pharmacy director included preparing budgets and supervision
of the daily activities of the pharmacy. This position required little contact with the
public. Johnson has suffered from anxiety and depression that he claims has become
progressively worse over the years, further, he suffers from stuttering. His primary care
physician was Dr. John C. Denker who had prescribed him Xanax for the past twelve
years to treat his depression and anxiety. Johnson then was referred to a series of
psychiatrists including, Dr. Henderson, Dr. Meyer, and finally, Dr. Severa. Dr. Severa
placed Johnson on a host of medications which improved his speech problem,
depression, and anxiety, but produced side effects such as lethargy and lack of mental
acuity.
At the administrative hearing, the ALJ utilized the familiar “five-step sequential
evaluation process for determining whether an individual is disabled.” Riley v. Shalala,
18 F.3d 619, 621 (8th Cir. 1994). At step one, the ALJ found Johnson had not been
gainfully employed since April 12, 1995. The testimony demonstrated that Johnson has
met step two’s requirement, as he has impairments which limit his ability to work. The
ALJ found at step three that Johnson’s anxiety, depression, and stuttering did not meet
or equal the listed impairments under the Social Security Act. At step four, the
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vocational expert testified that Johnson would not be able to return to his past relevant
work because of his psychological disorders and speech limitation. The ALJ
recognized the fact that Johnson did not lose his job because of his disabilities, rather,
his position was eliminated. Further, Johnson held a position for nearly ten years that
the vocational expert and the doctors stated he would not be able to perform. The ALJ
continued to step five despite the evidence which contradicts Easterday’s finding.
The crux of this appeal is the analysis of step five. The vocational expert, Linda
Easterday, stated Johnson could fulfill the job requirements of several positions that
exist in significant numbers in the local area, but went on to state she believed Johnson
could not maintain employment due to his depression. Easterday’s reasoning was
based upon the theory that if Johnson took an unskilled position, his self esteem would
be damaged to the point he could not remain at work. The ALJ rejected this last
opinion of the vocational expert and found Johnson was not disabled. Johnson
appealed the decision to the district court arguing his treating physician’s opinion was
not afforded sufficient weight, the vocational expert’s opinion was not given controlling
weight, and that his daily activities were improperly considered. The district court
affirmed the ALJ and Johnson now appeals from that decision. This Court agrees with
the district court and affirms the decision based upon the following rational.
II.
The decision of the ALJ must be affirmed if it is supported by substantial
evidence in the record as a whole. Smith v. Shalala, 31 F.3d 715, 717 (8th Cir. 1994).
Substantial evidence is less than a preponderance, but enough so that a reasonable mind
might find it adequate to support the conclusion. Oberst v. Shalala, 2 F.3d 249, 250
(8th Cir.1993). The ALJ is in the best position to determine the credibility of the
testimony and is granted deference in that regard. Polaski v. Heckler, 739 F.2d 1320(8th Cir. 1984).
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A.
The ALJ received testimony and opinions from Dr. Linda Schechel, Dr. Denkel,
Dr. Meyer, and Dr. Severa. Johnson argues that insufficient weight was given to his
treating physician, Dr. Severa’s, opinion. Johnson began treatment with Dr. Severa
after he filed for disability benefits and it is Dr. Severa’s opinion that Johnson relies
upon to prove his impediments prevent him from attaining and retaining employment.
All the doctors agreed that Johnson has difficulty with his speech, but the record
revealed that treatment with medication and speech therapy has improved his
communication. The ALJ noted that Johnson had no difficulty in communicating
during the two hour hearing and did not stutter once throughout the proceeding. The
ALJ’s personal observations of the claimant’s demeanor during the hearing is
completely proper in making credibility determinations. Smith v. Shalala, 987 F.2d
1371, 1375 (8th Cir. 1993). There was additional testimony that the antidepressant
medications had improved Johnson’s mental condition, although Dr. Severa stated
Johnson failed to strictly follow the prescribed dosage schedule. Thus, it is proper for
the ALJ to conclude “[i]mpairments that are controllable or amenable to treatment do
not support a finding of total disability.” Hutton v. Apfel, 175 F.3d 651, 655 (8th Cir.
1999). In addition, “[f]ailure to follow a prescribed course of remedial treatment
without good cause is grounds for denying an application of benefits.” Kisling v.
Chater, 105 F.3d 1255, 1257 (8th Cir. 1997), quoting, Roth v. Shalala, 45 F.3d 279, 282
(8th Cir. 1995).
Dr. Severa stated to Johnson’s insurance carrier that he believed Johnson’s
impairments to be severe, but did not define what he meant by severe. The other
physicians’ opinions consistently state that Johnson suffers from “moderate
impairments.” “It is the ALJ’s function to resolve conflicts among ‘the various treating
and examining physicians.’” Bentley v. Shalala, 52 F.3d 784, 787 (8th Cir. 1995). The
ALJ may reject the conclusions of any medical expert, whether hired by the claimant
or the government, if they are inconsistent with the record as a whole. Id. The ALJ
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found the severity of Johnson’s complaints were inconsistent with his work history,
daily activities, doctor’s testimony, and personal demeanor at the hearing. We find that
the ALJ’s decision resolving the conflicting medical testimony is supported by
substantial evidence taken from record as a whole.
B.
The second claim of error is that the ALJ did not accept the whole of the
vocational expert’s testimony. Easterday opined that Johnson’s depression would
prevent him from maintaining employment at an inferior position. The ALJ is to
consider a claimant’s statements, the medical records, prescribed treatment, daily
activities, efforts to work, and any evidence demonstrating how his impairments
prevent work. 20 C.F.R. § 404.1529 (1999). Johnson testified that he contiued to seek
work, that he took care of himself, completed chores around the house, attended social
functions, and handled the families finances and investments. These factors in
conjunction with the medical testimony led the ALJ to conclude Johnson’s impediments
were not disabling.
The hypothetical question posed to the vocational expert must “capture the
concrete consequences of [the] claimant’s deficiencies.” Taylor v. Chater, 188 F.3d
1274, 1278 (8th Cir. 1997). Likewise the ALJ may exclude any alleged impairments
that she has properly rejected as untrue or unsubstantiated. Long v. Chater, 108 F.3d
185, 187 (8th Cir. 1997). The ALJ did not find credible Johnson’s assertion that his
depression would prevent him from holding a job given the other evidence in the
record. Since the vocational expert was basing her opinion upon Johnson’s assertions,
this portion of the opinion was properly disregarded.
C.
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The final claim of error is that Johnson’s ability to engage in personal activities
does not constitute substantial evidence of residual functional capacity. “We will not
disturb the decision of an [ALJ] who seriously considers, but for good reasons
explicitly discredits, a claimant's testimony of disabling pain.” Pena v. Chater, 76 F.3d
906, 908 (8th Cir. 1996), quoting, Browning v. Sullivan, 958 F.2d 817, 821 (8th Cir.
1992). As clearly stated earlier in this decision, the credibility of the claimant is
important in evaluating the subjective complaints of impediments. Acts which are
inconsistent with a claimant’s assertion of disability reflect negatively upon that
claimant’s credibility. The fact that Johnson was able to carry on a normal life
contributes to the finding that his impediments were not disabling. As the decision of
the ALJ demonstrates, she did not rely solely upon her personal observations to reach
this determination, rather she considered the entire record, including the medical
testimony, the vocational expert’s opinion, Johnson’s testimony and demeanor, and the
personal work history of Johnson. The ALJ articulated the inconsistencies of Johnson’s
complaint, therefore, the ALJ’s burden has been met. Id. Any arguable deficiency,
which we do not find, in the ALJ’s opinion-writing technique does not require this
Court to set aside a finding that is supported by substantial evidence. Carlson v. Chater,
74 F.3d 869, 871 (8th Cir. 1996). We conclude that there is substantial evidence to
support the decision of the ALJ.
Accordingly, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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