Garland Ross v. Kenneth S. Apfel ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_____________
No. 99-2405MN
_____________
Garland M. Ross, *
*
Appellant, *
* On Appeal from the United
v. * States District Court
* for the District of
* Minnesota.
Kenneth S. Apfel, Commissioner of *
Social Security Administration, *
*
Appellee. *
___________
Submitted: March 17, 2000
Filed: July 11, 2000
___________
Before RICHARD S. ARNOLD, LAY, and BEAM, Circuit Judges.
___________
RICHARD S. ARNOLD, Circuit Judge.
Garland Ross appeals the denial of his application for social-security disability
benefits. He argues that the Administrative Law Judge (ALJ) based the denial on
insubstantial evidence. The District Court upheld the denial. We agree with the
claimant that the denial was not based on substantial evidence on the record as a whole,
and we therefore reverse.
I.
Mr. Ross is a 42-year-old man, and was first diagnosed with sickle cell anemia
when he was six months old. Despite having sickle cell anemia, he worked as a factory
laborer for Honeywell Corporation from 1978 to 1995. From May of 1995 on, his
condition worsened. In March of 1995, Mr. Ross applied for disability insurance
benefits. His claim was denied initially and on reconsideration. He filed a request for
a hearing, which was held on September 12, 1996. A supplemental hearing was held
on February 21, 1997.
The ALJ decided that Mr. Ross was not entitled to disability benefits. The ALJ
found that he had not engaged in substantial gainful activity since May 14, 1995. The
ALJ found that Mr. Ross had a severe impairment, but not one that qualified him for
benefits under the impairments listed in the regulations. The ALJ found that the
claimant's impairments prevented him from performing his past relevant work.
However, the ALJ found that Mr. Ross retained the residual functional capacity to
perform a limited range of sedentary work. Although he testified that his severe pain
and fatigue limited his capacity to perform any work activity, the ALJ did not believe
him.
The ALJ found that there were substantial inconsistencies in the record, and
concluded that Mr. Ross's complaints of debilitating pain and fatigue were not credible.
Specifically, the ALJ found that the objective medical evidence did not document
physical abnormalities that could reasonably produce the type of pain he claimed, and
that the claimant's overall daily activities were inconsistent with a complete inability to
work. The ALJ also discredited the opinions of the treating physician, Dr. Londer, as
not being adequately supported by appropriate clinical and diagnostic findings. The
Vocational Expert testified that, given a residual-functional-capacity assessment that
the claimant could perform a limited range of sedentary work, there were a significant
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number of jobs in the national economy that Mr. Ross could perform. Therefore, the
ALJ concluded that he was not eligible for benefits.
Mr. Ross appealed the ALJ's decision. The Appeals Council denied his request
for review. He then appealed to the United States District Court for the District of
Minnesota. That Court affirmed the ALJ's decision.
II.
We review the decision of the ALJ to determine whether his findings are
supported by substantial evidence on the record as a whole. Jenkins v. Apfel, 196 F.3d
922, 924 (8th Cir. 1999). Mr. Ross argues that the ALJ's credibility determination
under Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984), is not supported by the
record. He specifically challenges three of the ALJ's findings, all of which are essential
to the ALJ's holding that he is capable of sustaining substantial gainful activity at the
sedentary level. First, the claimant challenges the ALJ's finding that the objective
medical record does not document physical abnormalities reasonably capable of
producing the intractable pain and fatigue that he alleged. Second, he maintains that
the ALJ did not give the opinions of his treating physician, Dr. Londer, adequate
weight. Third, he challenges the ALJ's finding that his daily activities are inconsistent
with a complete inability to do any work.
A.
At the hearing, Mr. Ross testified that his sickle cell anemia causes him severe
pain and fatigue. He testified that he had no pain-free days. On the days when the pain
is most severe, he takes his medication and lies still. On these days, he will spend the
whole day in bed. When he is in so much pain that he cannot deal with it at home, he
goes to the emergency room. However, Mr. Ross testified that three or four days out
of the week the pain was somewhat better.
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The ALJ found that "the objective record does not document physical
abnormalities reasonably capable of producing the intractable pain or other symptoms
alleged by the plaintiff." To support this, the ALJ referred to the testimony of Dr.
Hammarsten, a medical expert who testified at the hearing. Dr. Hammersten
commented on a medical report dated October 13, 1996, that stated that Mr. Ross had
a microcytosis, which is a feature not associated with sickle cell anemia. Moreover,
a microcytosis would suggest the presence of an alpha-thalassemia trait, which would
be beneficial to Mr. Ross's condition.
We do not think that Dr. Hammersten's testimony about the microcytosis is
probative evidence. Even if a microcytosis is not normally associated with sickle cell
anemia, the Commissioner does not dispute that Mr. Ross does indeed have sickle cell
anemia. Moreover, Dr. Hammarsten never testified, nor does the report indicate, that
Mr. Ross actually has the beneficial alpha-thalassemia trait. Indeed, the medical
evidence suggests he does not. The lab report states the findings would be consistent
with an alpha-thalassemia trait if iron studies were normal (R. 517). Mr. Ross's iron
studies were not normal, but were highly elevated (R. 598).
The ALJ also relied on Dr. Hammersten's testimony that the prognosis for sickle
cell anemia is better than it used to be, because children are treated with penicillin.
While this may be true, there is no evidence that Mr. Ross was treated with penicillin
as a child. The ALJ also refers to the fact that several X-rays of Mr. Ross's feet and
knees were for the most part normal. However, this is not significant. Although a
person with sickle cell anemia may exhibit unusual physical features and bone changes
that can be seen on an x-ray, a negative bone scan does not mean that there is not a
serious condition.
Contrary to the ALJ's findings, we are firmly convinced that the objective
medical record does document physical abnormalities that are reasonably capable of
producing pain and fatigue consistent with Mr. Ross's testimony. Sickle cell anemia
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is characterized by "[a] painful crisis, the most common crisis and the hallmark of the
disease, . . . results from blood vessel obstruction by rigid, tangled sickle cells, which
cause tissue anoxia and possible necrosis. This type of crisis is characterized by severe
abdominal, thoracic, muscular, or bone pain." Professional Guide to Diseases 622 (6th
ed. 1998). Consistently with this description, Mr. Ross has been hospitalized and gone
to the emergency room many times with severe pain.1
Dr. Hammarsten testified that Mr. Ross suffers from the "SS" type of sickle cell
anemia, which is the more severe form of the disease. Mr. Ross's hematocrit lab values
also show that his condition is severe, and is worsening over time. Dr. Hammarsten
testified that a hematocrit value below 30 indicated severe anemia. Mr. Ross's values
have consistently gone down over time, and the last five readings have all been below
30.2
1
In 1989, Mr. Ross was hospitalized with sickle cell crises four times. Between
1990 and 1993, he was hospitalized four times for sickle cell crises, and treated in the
emergency room at least seventeen times. In 1994 he was hospitalized once. In 1995,
he was hospitalized once and went to the emergency room once. In 1997, after his
hearing, he was hospitalized twice, and went to the emergency room three times. On
August 16, 1991, he was hospitalized with a sickle cell crisis, and the attending
physician noted that he was "practically writhing with pain in his bed" (R. 237). On
March 6, 1995, he went into the emergency room with a sickle cell crisis, and the
attending physician noted, "He seems to be in obvious pain" (R. 328). On July 15,
1996, during an emergency room visit, the attending physician noted, "[he] seems to
be in significant pain" (R. 383). On April 28, 1997, during another emergency room
visit, his attending physician wrote that he was "in moderate pain, sort of writhing on
the cart" (R. 583).
2
The record shows that from September 1991 to October 5, 1995, only two
readings were below 30. In the next ten months there were ten readings below 30, and
two only slightly above 30. In the next ten months, up to May of 1997, all five readings
were below 30, and two below 26.
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Dr. Londer was Mr. Ross's treating physician since 1989. His medical opinion
both supported Mr. Ross's testimony and was consistent with the objective medical
record indicating that his condition was severe and worsening. In November of 1993,
Dr. Londer wrote, "I think that clearly due to his sickle cell disease and the pains he is
having in his joints, which I believe are real, that he should have a different type of job"
(R. 366-67). In April of 1995, Dr. Londer noted that Mr. Ross needed "a few Percocet
to cover him through this acute pain. I do believe him." (R. 362). In June of 1995, Dr.
Londer wrote, "due to complications of [sickle cell anemia] Mr. Ross has a permanent
disability. He is able to work only four hours per day" (R. 363). Also in June of 1995,
Dr. Londer wrote, "at the present time I believe that he is totally disabled. He will be
unable to work at least through September 1, 1995." (R. 360) In October of 1995, Dr.
Londer wrote, "I think given his sickle cell and the amount of pain that he certainly
does qualify for being disabled. Patient has pain and weakness secondary to sickle cell
anemia" (R. 357). In an October 1997 letter, Dr. Londer noted that Mr. Ross had
developed "increasing problems with pain, fatigue, frequent infections, and generalized
malaise" typical of sickle cell anemia (R. 515).
The ALJ disregarded Dr. Londer's opinions as to the severity of Mr. Ross's
impairments. The ALJ noted Dr. Londer's statement that he did not feel qualified to fill
out a form regarding Mr. Ross's orthopedic limitations. From this, the ALJ inferred that
Dr. Londer does not feel qualified to address his functional limitations. The ALJ also
noted that there are inconsistencies in Dr. Londer's records.
These were insufficient reasons for disregarding the treating physician's opinions
as to Mr. Ross's pain. Dr. Londer's failure to complete a form detailing orthopedic
restrictions does not affect his ability to evaluate Mr. Ross's pain. Dr. Londer has been
the treating physician for years, and has frequently seen him in pain both in and out of
the hospital. Dr. Londer is perfectly capable of commenting on that pain, and
suggesting, as he has done, that there is a medical reason for it. The inconsistencies
in Dr. Londer's notes that the ALJ refers to reflect nothing more than that Mr. Ross's
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condition varies, and at certain times is more severe than others. The ALJ points to
a report on November 10, 1995, as an example of an inconsistency. In this report, Dr.
Londer states that he believes Mr. Ross to be totally disabled due to his pain and
weakness, and also that he feels well. This is not inconsistent. As Mr. Ross testified,
some days are better than others, and on that day he could have felt well. However,
Dr. Londer could still have reasonably thought that given his complete medical picture,
which included an inability to do anything on some days, he was disabled. The ALJ
similarly uses an August 24, 1995, report to show an inconsistency in Dr. Londer's
opinions. This report notes that it is very difficult to evaluate claimant when it comes
to pain. However, Dr. Londer also notes in the same report, "[W]ith his known sickle
cell disease, he certainly has a set-up for having real pain" (R. 358). In contrast to the
ALJ's findings, Dr. Londer's opinions are consistent with the medical record, and as
such are entitled to substantial weight. See Kirby v. Sullivan, 923 F.2d 1323, 1328 (8th
Cir. 1991).
Of course, Dr. Londer's opinion that Mr. Ross is disabled is not conclusive of
that issue; disability is a legal, not a medical, determination. However, his statements
provide a medical basis for Mr. Ross's pain and fatigue, and Dr. Londer repeatedly
opines that the patient is telling the truth about his pain.
B.
Mr. Ross also challenges the ALJ's finding that his daily activities are
inconsistent with an inability to do any work. At the hearing, he testified that he naps
during the day, and on more than half the days he will take more than one nap. He
testified that the pain is at its worst two days out of the week, and on these days he will
spend the whole day in bed. He rated the pain on these days as being a "ten" on a one-
to-ten scale. On three or four days a week the pain was somewhat better, and he rated
it as a "three or four" on the same scale. On these days he is able to do activities such
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as vacuuming and mowing the lawn, although he does so slowly with frequent breaks.
The ALJ found that "on a daily basis claimant's pain is not such that it would
preclude him from doing all work activity at any functional level." The ALJ refers to
many activities that Mr. Ross is able to do (mow the lawn, helping to paint his uncle's
cabin, driving, watching television, and sitting on a fishing boat), and uses these
activities to show that on a day-to-day basis the plaintiff is not unable to perform work
activity. However, the ability to perform these limited activities (with difficulty) on his
good days is not inconsistent with his testimony that on his bad days, he cannot
function at all. The ability to perform sporadic light activities does not mean that the
claimant is able to perform full time competitive work. See Burress v. Apfel, 141 F.3d
875, 881 (8th Cir. 1998); see also Social Security Ruling 96-8p (residual functional
capacity is an assessment of an individual's ability to perform sustained work-related
physical activities in a work setting for eight hours a day, five days a week, or the
equivalent work schedule).
To the extent that the ALJ did not believe Mr. Ross's testimony that on an
average of two days a week he was incapacitated by pain, that finding is not supported
by the record as a whole. As the preceding discussion indicated, there is an objective
medical basis for his claims of severe pain. This pain is also substantiated by other
witnesses. Ms. Lash, the claimant's girlfriend, testified that a couple of times a week
he will spend most of the day in bed due to pain. Although the ALJ found this
testimony inconsistent with Mr. Ross's testimony, it is not. Mr. Winston, his uncle,
corroborated his testimony about the pain he is in and the naps that he takes.
III.
For these reasons, we hold that the ALJ erred in finding that the objective
medical record did not document physical abnormalities reasonably capable of
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producing the intractable pain and fatigue alleged by Mr. Ross. We also hold that the
ALJ erred in finding that his daily activities are inconsistent with a complete inability
to do any work. Neither of these findings is supported by substantial evidence on the
record as a whole. The ALJ's residual-functional-capacity assessment that Mr. Ross
could perform a limited range of sedentary work was based on these two flawed
findings. Therefore it cannot be sustained. Since the vocational expert's testimony was
based on this assessment, we also hold that his testimony was not substantial evidence
that Mr. Ross could perform other substantial gainful activity.
In our view, the only residual-functional-capacity assessment that is supported
by the record is that Mr. Ross cannot perform any substantial gainful activity, as he
cannot maintain the attendance requirements of full time competitive employment.
Mr. Ross is disabled. Accordingly, the judgment of the District Court is reversed, and
the cause remanded with instructions to remand to the Commissioner for calculation
and award of benefits.
A true copy.
Attest.
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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