Allen R. Prosch v. Kenneth S. Apfel ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 99-1666
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Allen R. Prosch, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Kenneth S. Apfel, Commissioner of *
Social Security, *
*
Appellee. *
___________
Submitted: October 20, 1999
Filed: February 3, 2000
___________
Before WOLLMAN, Chief Judge, LAY and LOKEN, Circuit Judges.
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WOLLMAN, Chief Judge.
Allen Prosch appeals from the district court’s1 judgment affirming the denial of
his application for social security disability benefits under Title II of the Social Security
Act, 42 U.S.C. § 401 et seq. We affirm.
1
The Honorable Paul A. Magnuson, Chief Judge, United States District Judge
for the District of Minnesota.
I.
Prosch was born on February 4, 1941, and has a college degree in management
and marketing. His past relevant work includes that of a multi-punch press machine
operator, sheet metal worker, bus driver, and insurance salesperson. Prosch filed the
current application for disability insurance benefits on April 18, 1994, alleging an onset
disability date of June 1, 1993, which he later amended to February 9, 1991, the date
of his 50th birthday. Prosch claimed that he was unable to work because of back pain
caused by a series of back injuries and a degenerative back condition.
The Social Security Administration denied Prosch’s application initially and
again on reconsideration. Prosch then requested and received a hearing before an
administrative law judge (ALJ). The ALJ evaluated Prosch’s claim according to the
five-step sequential analysis prescribed by the social security regulations. See 20
C.F.R. §§ 404.1520(a)-(f); see also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987)
(describing the five-step analysis). The ALJ determined that Prosch was not presently
engaged in substantial gainful activity and that he had severe impairments, including
low back pain with degenerative disc disease and depression, but that his impairments
did not meet the criteria found in the Listing of Impairments. See App. 1, Subpart P,
Regulations No. 4. The ALJ further found that although Prosch was unable to perform
any of his past relevant work, he possessed the residual functional capacity to perform
a limited range of sedentary work.2 Therefore, the ALJ, after receiving the testimony
of a vocational expert, concluded that Prosch could perform a significant number of
jobs in the national economy and thus was not disabled.
2
“Sedentary work involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small tools.
Although a sedentary job is defined as one which involves sitting, a certain amount of
walking and standing is often necessary in carrying out job duties. Jobs are sedentary
if walking and standing are required occasionally and other sedentary criteria are met.”
20 C.F.R. § 404.1567(a).
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The Appeals Council denied Prosch’s request for further review, and the ALJ’s
decision thereby became the final decision of the Commissioner. Prosch then sought
review in the district court, which affirmed the Commissioner’s decision. On appeal,
Prosch contends that: (1) the ALJ failed to grant proper weight to the opinion of his
treating physician; and (2) the hypothetical question posed to the vocational expert did
not adequately reflect Prosch’s physical impairments.
II.
“Our role on review is to determine whether the Commissioner’s findings are
supported by substantial evidence on the record as a whole.” Clark v. Apfel, 141 F.3d
1253, 1255 (8th Cir. 1998). Substantial evidence is less than a preponderance, but is
enough that a reasonable mind would find it adequate to support the Commissioner’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). “We may not reverse the Commissioner’s
decision merely because substantial evidence supports a contrary outcome.” Id.
A.
We first consider Prosch’s contention that the ALJ failed to grant proper weight
to the opinion of his treating physician, Dr. Paul Crowe. At the administrative hearing,
Prosch submitted a residual functional capacity evaluation performed by Dr. Crowe in
which Dr. Crowe opined that Prosch had been unable to perform any form of sedentary
work since 1990. This evaluation, if given the controlling weight that Prosch claims
was proper, would have required the ALJ to find that Prosch was unable to perform any
job in the national economy and therefore was disabled. The ALJ, however, rejected
Dr. Crowe’s opinion in favor of the evaluations of three other physicians. Prosch
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contends that the ALJ failed to provide sufficient reasons for doing so and thus erred
in rejecting Dr. Crowe’s opinion.
The opinion of a treating physician is accorded special deference under the social
security regulations. The regulations provide that 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.”
20 C.F.R. § 404.1527(d)(2). Consistent with the regulations, we have stated that a
treating physician’s opinion is “normally entitled to great weight,” Rankin v. Apfel, 195
F.3d 427, 430 (8th Cir. 1999), but we have also cautioned that such an opinion “do[es]
not automatically control, since the record must be evaluated as a whole.” Bentley v.
Shalala, 52 F.3d 784, 785-86 (8th Cir. 1995). Accordingly, we have upheld an ALJ’s
decision to discount or even disregard the opinion of a treating physician where other
medical assessments “are supported by better or more thorough medical evidence,”
Rogers v. Chater, 118 F.3d 600, 602 (8th Cir. 1997), or where a treating physician
renders inconsistent opinions that undermine the credibility of such opinions, see Cruze
v. Chater, 85 F.3d 1320, 1324-25 (8th Cir.1996).
Whether the ALJ grants a treating physician’s opinion substantial or little weight,
the regulations 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); see also
SSR 96-2p. Prosch contends that the ALJ failed to do so in this case. We disagree,
for we believe that the ALJ provided two good reasons for refusing to grant Dr.
Crowe’s opinion controlling weight.
First, the ALJ found that Dr. Crowe’s opinion that Prosch had been disabled
since 1990 was suspect in light of an opinion given by Dr. Crowe some three weeks
earlier in which he concluded that Prosch had been “totally disabled . . . since May 13,
1976,” a conclusion that he apparently reached after reviewing the very same
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information that formed the basis of his subsequent opinion. In evaluating the reliability
of a treating physician’s opinion, both the regulations and our case law require the ALJ
to consider the opinion in light of the record as a whole. See 20 C.F.R. § 404.1527(b)-
(c); Bentley, 52 F.3d at 785-86. The ALJ therefore did not err in considering Dr.
Crowe’s first opinion--that Prosch had been disabled since 1976--in evaluating the
reliability of his second opinion--that Prosch had been disabled since 1990. Contrary
to Prosch’s assertions, this remains so even though Prosch did not offer Dr. Crowe’s
first assessment in support of his disability claim but rather relied solely on Dr.
Crowe’s second evaluation. Dr. Crowe’s first opinion was part of the record and thus was
properly considered by the ALJ in weighing the reliability of Dr. Crowe’s subsequent
opinion.
Furthermore, we find that, in light of the contents of Dr. Crowe’s first opinion,
the ALJ did not err in discounting the reliability of Dr. Crowe’s subsequent opinion.
We have recognized that it is proper for an ALJ to accord a treating physician’s opinion
less deference when the treating physician offers an additional assessment that
undermines the reliability of the opinion relied upon by the claimant. See Cruze, 85
F.3d at 1325 (according a treating physician’s opinion less deference where the treating
physician offered inconsistent opinions); see also Johnson v. Chater, 87 F.3d 1015,
1018 (8th Cir. 1996). In his first opinion, Dr. Crowe concluded that Prosch had been
totally disabled since 1976, a conclusion that is wholly inconsistent with the undisputed
evidence that Prosch performed substantial gainful activity, including full-time
employment, throughout the 1980s and until 1991. The ALJ was therefore justified in
finding that Dr. Crowe’s first opinion undermined the reliability of his second opinion,
given some three weeks later and apparently based upon the same information that Dr.
Crowe relied upon in reaching the first opinion.
Second, the ALJ discounted the reliability of Dr. Crowe’s opinion that Prosch
had been disabled since 1990 because the ALJ found that Dr. Crowe’s evaluation was
inconsistent with the medical evaluations of three other physicians. It is well
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established that an ALJ may grant less weight to a treating physician’s opinion when
that opinion conflicts with other substantial medical evidence contained within the record.
See, e.g., Haggard v. Apfel, 175 F.3d 591, 595 (8th Cir. 1999); Rogers, 118 F.3d 600,
602 (8th Cir. 1997). Moreover, an ALJ may credit other medical evaluations over that
of the treating physician when such other assessments “are supported by better or more
thorough medical evidence.” Rogers, 118 F.3d at 602; see also Pena v. Chater, 76 F.3d
906, 908 (8th Cir. 1996); Ward v. Heckler, 786 F.2d 844, 846-47 (8th Cir. 1986).
Here, Dr. Crowe’s opinion conflicted with the medical assessments of every
other physician of record, all of whom concluded that Prosch was able to perform work
activities beyond those required to perform sedentary work. Dr. Bruce Cameron, who
treated Prosch in 1993 for lower back pain and a shoulder injury, found that Prosch was
able to work so long as he did not lift more than ten pounds and did not bend, walk, or
stand for more than three out of every eight hours. Dr. Paul Yellin, who examined
Prosch in February of 1994, similarly found that Prosch was capable of performing a
wide range of work activities provided that he did not regularly lift more than twenty-
five to thirty pounds. Although Dr. Yellin’s examination was performed in connection
with a workers’ compensation claim, the ALJ was entitled to consider this opinion in
relation to Prosch’s social security claim. Cf. Kirby v. Sullivan, 923 F.2d 1323, 1327
(8th Cir. 1991) (stating that disability determinations of other entities are relevant to
disability rulings made by the SSA). Also, contrary to Prosch’s contention, we believe
that the ALJ properly found that Dr. Yellin’s evaluation encompassed Prosch’s back
condition and not just an unrelated shoulder injury. Finally, Dr. Andrew Steiner, the
impartial medical expert who testified at the administrative hearing after reviewing
Prosch’s medical records, concluded that Prosch was able to perform sedentary work
if appropriate sitting and lifting restrictions were imposed.
Prosch offers two final challenges to the ALJ’s decision to reject Dr. Crowe’s
opinion, both of which rely upon the regulations. First, Prosch contends that 20 C.F.R.
§ 404.1527(d)(2) mandates that an ALJ cannot refuse to grant a treating physician’s
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opinion controlling weight unless the ALJ finds that the opinion was not “well-
supported by medically acceptable clinical and laboratory diagnostic techniques,” a
finding not made by the ALJ in this case. Although a finding that a treating physician’s
opinion is not so supported may in certain circumstances support the discrediting of a
treating physician’s evaluation, we do not believe that such a finding is required. This
conclusion is fully supported by section 404.1527(d)(2) itself, which provides that a
treating physician’s opinion is accorded controlling weight only if it is “well-supported
by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] record.” 20 C.F.R. §
404.1527(d)(2) (emphasis added).
Second, Prosch argues that the opinion of Dr. Crowe, an orthopedic specialist,
is entitled to greater weight than the opinions of the other physicians of record because
of 20 C.F.R. § 404.1527(d)(5), which provides that the opinion of a specialist is
accorded greater weight than the opinion of a general physician. We have held,
however, that this rule does not apply where the opinion of the specialist is
controverted by substantial evidence or is otherwise discredited. See Riley v. Shalala,
18 F.3d 619, 622-23 (8th Cir. 1994). Because Dr. Crowe’s opinion was contrary to
other substantial medical evidence, it accordingly was not entitled to special deference
under section 404.1527(d)(5).
In sum, we hold that substantial evidence supports the ALJ’s decision not to
abide by the opinion of Prosch’s treating physician, Dr. Crowe.
B.
Prosch also claims that the hypothetical question posed to the vocational expert
at the administrative hearing did not accurately reflect the limitations imposed on
Prosch by his back condition. Prosch’s argument, however, rests upon his belief that
the ALJ should have granted controlling weight to Dr. Crowe’s testimony and that,
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accordingly, the hypothetical should have incorporated the limitations set forth by Dr.
Crowe. This argument fails, however, in light of our holding that the ALJ properly
rejected Dr. Crowe’s opinion in favor of other substantial medical evidence. The
hypothetical posed by the ALJ properly reflected the impairments that the ALJ found
to be supported by the record; the ALJ was not required to include impairments not so
supported. See Haggard, 175 F.3d at 595 (“A hypothetical question is sufficient if it
sets forth the impairments which are accepted as true by the ALJ.” (citations omitted)).
The judgment is affirmed.
LAY, Circuit Judge, dissenting.
I must respectfully dissent.
In all due respect, I believe justice would be better served in this case by
granting benefits or, at the very least, by requiring a re-evaluation of the claimant’s
condition under the Administration’s existing rules and regulations. The majority
opinion discredits the testimony of Prosch’s treating physician, Dr. Crowe. It does so
because Prosch performed substantial gainful activity during a time period that Dr.
Crowe opined him to be “totally disabled.” However, Dr. Crowe’s opinion simply
observed that, due to an earlier injury, claimant had been disabled since 1976. In order
to evaluate whether a physician is being honest in giving a medical opinion,
administrative law judges, magistrate judges and Article III judges are required to
acknowledge the full record. Upon review of the record, there is no question Dr.
Crowe was cognizant that the claimant had worked since 1976. It defies common
sense for the ALJ to discredit Dr. Crowe’s statement when the latter was fully aware
of Prosch’s attempt to perform lighter work.3
3
Dr. Crowe reviewed the medical records of his colleague, Dr. Salovich, who
was claimant’s orthopedic surgeon since 1978. Prosch had a serious accident at work
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Furthermore, a claim for benefits should not be denied simply because an injured
claimant previously tried to do light work and avoid a premature award of disability
benefits. Social security claims must necessarily be proven by hearsay reports by
physicians. See Richardson v. Perales, 402 U.S. 389, 402 (1971). However, the
inability of physicians to fully explicate their medical findings and opinions should not
penalize laypersons who seek benefits because of their pain and deficient residual
functional capacities.
The majority opinion further allows the opinions of nonspecialists to override the
expert opinion of treating orthopedic specialists. While I do not dispute the holdings
in Cruze and Rogers, I feel that the ALJ and the majority have failed to consider the
language in Social Security Ruling 96-2p, which provides:
Adjudicators must remember that a finding that a treating source medical
opinion is not well-supported by medically acceptable clinical and
laboratory diagnostic techniques or is inconsistent with the other
substantial evidence in the case record means only that the opinion is not
entitled to “controlling weight,” not that the opinion should be rejected.
Treating source medical opinions are still entitled to deference and must
be weighed using all of the factors provided in 20 CFR 404.1527 and
416.927. In many cases, a treating source’s medical opinion will be
entitled to the greatest weight and should be adopted, even if it does not
meet the test for controlling weight.
in 1976 and injured his back. Subsequently, he felt compelled to go to school and train
himself for light jobs, during which he continued to see Dr. Salovich. Dr. Crowe was
privy to all of Dr. Salovich’s reports which repeatedly recite Prosch’s engagement in
light work. Dr. Crowe was obviously aware of Dr. Salovich’s observations that
Prosch’s disability, throughout this period of time, was increasing in severity
notwithstanding his attempt to carry on lighter jobs. Thus, Dr. Crowe was fully aware
that Prosch continued to do light work during that time, testing his pain and endurance
without filing for benefits.
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SSR 96-2p (West Feb. 1999).
The five factors to be considered under 20 CFR 404.1527(d) are: (1) the length
of the treatment relationship; (2) the nature and extent of the treatment relationship; (3)
the quantity of evidence in support of the opinion; (4) the consistency of the opinion
with the record as a whole; and (5) whether the treating physician is also a specialist.
The ALJ failed to consider factors (1), (2) and (5).
I also dissent from the majority’s treatment of the hypothetical posed to the
vocational expert. The ALJ did not acknowledge Prosch’s four-hour sitting limitation
as a factor in his residual functional capacity assessment. This is the most important
factor in the overall evaluation of the claimant’s case. Social Security Ruling 96-8p
states:
RFC is an assessment of an individual’s ability to do sustained work-
related physical and mental activities in a work setting on a regular and
continuing basis. A “regular and continuing basis” means 8 hours a day,
for 5 days a week, or an equivalent work schedule.
SSR 96-8p (West Feb. 1999) (emphasis added).
The ALJ made no reference to Prosch’s limited ability to sit for given amounts
of time. The ALJ simply found that Prosch required a sit-stand option in any future
employment, and he was limited to two hours of standing each day. The majority
excuses this oversight by finding that since Dr. Crowe opined that Prosch had a four-
hour sitting limitation and his opinion was properly discounted, the ALJ was correct in
ignoring the limitation. However, neither the ALJ nor the majority point to any other
evidence in the record specifically rejecting that opinion. I have trouble understanding
how the ALJ could reject Dr. Crowe’s sitting limitation when it is not directly
challenged in the record. This is especially important when one considers that the
Vocational Expert specifically testified that none of the other jobs for which he found
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Prosch qualified would be available to an individual with a four-hour sitting limitation.
(Tr. 61-62.) Under the circumstances, it is difficult to deny benefits outright without
further evaluation; thus, I would remand the case.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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