Paul Anderson v. Jo Anne B. Barnhart ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-4119
___________
Paul Anderson, Jr., *
*
Appellant, * Appeal from the United States
* District Court for the
v. * Southern District of Iowa.
*
Jo Anne B. Barnhart, Commissioner *
of Social Security, *
*
Appellee. *
___________
Submitted: May 14, 2003
Filed: September 29, 2003
___________
Before BOWMAN, HEANEY, and BYE, Circuit Judges.
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BOWMAN, Circuit Judge.
Paul Anderson, Jr., appeals the decision of the District Court1 affirming the
Administrative Law Judge's (ALJ) denial of his application for disability insurance
benefits and supplemental security income benefits. Because this decision is
supported by substantial evidence, we affirm.
1
The Honorable Charles R. Wolle, United States District Judge for the Southern
District of Iowa.
Anderson was forty-three years old at the time of the ALJ's decision and had
completed two years of community college. Anderson is 5'10" tall and weighs 270
pounds. He has previously been employed as a warehouse worker, child care worker,
pattern cutter, upholsterer, home health aid, and baker, but he has not engaged in
substantial gainful activity since the fall of 1999. Anderson has degenerative disc
disease and suffers severe impairment in his right shoulder. He has also been
diagnosed for mild depression and morbid obesity. On September 2, 1998, Anderson
filed his applications for benefits, alleging that he has been unable to work since
March 12, 1997, because of back problems, a shoulder injury, a hand injury, aches
and pains, and depression. His applications were denied initially and on
reconsideration. Subsequently, he requested a hearing before an ALJ at which he
testified about his impairments. A vocational expert also testified during the hearing
and responded to the ALJ's hypothetical questions about a person with Anderson's
profile and whether a person with such impairments could perform other work in the
national economy. Following the hearing, the ALJ denied Anderson's request for
benefits, concluding that although Anderson had severe degenerative disc disease and
was unable to perform his past relevant work, he was not disabled and retained the
residual functional capacity to perform other work. Social Security Administration
(SSA) Decision at 11–12 (Apr. 14, 2000). The Appeals Council of the Social
Security Administration and the District Court affirmed the ALJ's decision. On
appeal, Anderson argues that the ALJ improperly discounted his treating physicians'
opinions and his complaints of pain and functional limitations.
We must affirm the ALJ's decision "if the record contains substantial evidence
to support it." Edwards v. Barnhart, 314 F.3d 964, 966 (8th Cir. 2003). "Substantial
evidence is less than a preponderance but enough so that a reasonable mind could
find it adequate to support the decision." Id. We consider evidence that both
supports and detracts from the ALJ's decision, but "we cannot reverse the decision
merely because there exists substantial evidence supporting a different outcome." Id."Rather, if, after reviewing the record, we find that it is possible to draw two
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inconsistent positions from the evidence and one of those positions represents the
[ALJ's] findings, we must affirm the decision of the [ALJ]." Young v. Apfel, 221
F.3d 1065, 1068 (8th Cir. 2000) (citations and quotations omitted).
To receive disability benefits, Anderson must demonstrate that he has a
physical or mental disability that has lasted at least one year and that prevents him
from engaging in any substantial gainful activity. See 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A) (2000). In making this determination, the ALJ employs the familiar
five-step sequential test laid out in the social security regulations: (1) whether
Anderson has engaged in substantial gainful activity since filing his claim; (2)
whether his physical and/or mental impairments are severe; (3) whether his
impairments are of listing-level severity; (4) whether his impairments prevent him
from doing past relevant work; and (5) whether Anderson is able to perform other
work in the national economy given his age, education, and experience. See 20
C.F.R. § 404.1520(a)–(f) (2003). Both sides agree that the key issue in this appeal
concerns the ALJ's analysis in the fifth step, i.e., whether the ALJ erred in
determining that Anderson, despite his impairments, could perform other work in the
national economy and was therefore not legally disabled.
As noted, the ALJ found that Anderson had severe degenerative disc disease
and impairment of his right shoulder but concluded that he still retained the residual
functional capacity to perform other work. The ALJ did not find Anderson's
testimony regarding the intensity and severity of his impairments to be credible.
Further, the ALJ found that Anderson had the residual functional capacity to lift
twenty pounds occasionally and ten pounds frequently and that he could do work at
shoulder or chest level but could not perform overhead work with his right arm. In
addition, the ALJ determined that there were no restrictions on Anderson's lower
extremities and that he could sit, stand, or walk for eight hours a day with normal
breaks. In light of those restrictions, the ALJ concluded that although Anderson
could not perform his past relevant work, he could still perform other jobs in the
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national economy, including telephone solicitor, gate tender, and general clerk as well
as other unskilled light and sedentary positions. SSA Decision at 12.
Anderson first argues that the ALJ improperly discounted the statements of his
treating physicians. In particular, he argues the ALJ gave controlling weight to the
"one time examining opinion" of Dr. James D. Brokke, a consulting physician,
instead of Dr. K.A. Garber, his family doctor (and Dr. Brokke's associate), and Dr.
Kirk D. Green, a specialist in orthopedic surgery. Br. of Appellant at 18–19. As we
have observed, "The opinion of a consulting physician who examines a claimant once
. . . does not generally constitute substantial evidence." Kelley v. Callahan, 133 F.3d
583, 589 (8th Cir. 1998). Nonetheless, there are two exceptions to this general rule.
Cantrell v. Apfel, 231 F.3d 1104, 1107 (8th Cir. 2000). Specifically, we will uphold
the ALJ's decision to credit a one-time consultant and discount a treating physician's
opinion "(1) where [the one-time] medical assessments are supported by better or
more thorough medical evidence, or (2) where a treating physician renders
inconsistent opinions that undermine the credibility of such opinions." Id. (internal
citations and quotations omitted).
Here, the ALJ gave "little weight" to Dr. Garber's opinion "because of its
internal inconsistencies." SSA Decision at 9. In support of this conclusion, the ALJ
noted that Dr. Garber's statement concerning Anderson's need to take a break every
forty-five minutes was inconsistent with his statement that Anderson had an
unimpaired ability to walk. See Residual Functional Capacity Questionnaire from Dr.
Garber (R.F.C.Q.) at 3 (undated) [Record at 289]. In addition, the ALJ did not credit
Dr. Garber's opinion because Dr. Garber stated Anderson had physical impairments
but failed to note any limitations regarding Anderson's ability to lift and carry and to
stand and walk. See id. [Record at 290]. Finally, the ALJ stated that "Dr. Garber
modified his answers" concerning Anderson's restrictions after a discussion with
Anderson's attorney. SSA Decision at 9. Anderson disputes these findings. He
contends that there was nothing inconsistent about Dr. Garber's statement that he had
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an unimpaired ability to walk because that opinion was unrelated to Anderson's need
to take forty-five minute breaks. In addition, Anderson disputes the ALJ's finding
that Dr. Garber altered his opinion at the request of Anderson's counsel, claiming that
Dr. Garber merely provided a correction letter concerning his earlier assessment of
"no limitation" on Anderson's ability to lift and carry. See Letter from Dr. Garber to
Mr. Richard Sturgeon at the Carter Law Firm (Feb. 2, 2000) [Record at 294].
Notably, Dr. Garber also provided no explanation for his assessment that Anderson,
in addition to needing to take forty-five minute breaks, would need to be absent more
than three times per month. See R.F.C.Q. at 2,6. [Record at 293].
Based on our review of the record, we conclude that the ALJ properly credited
Dr. Brokke's opinion over Dr. Garber's assessment of Anderson. After examining
Anderson at the request of Iowa's Disability Determination Services Bureau, Dr.
Brokke opined that Anderson was limited to lifting twenty pounds, that he could lift
ten pounds repetitively, and that Anderson was not limited in standing, moving,
walking, or sitting in an eight-hour work day. Letter from Dr. Brokke to Ms. Jill
Hunt (Oct. 22, 1998) [Record at 247-48]. While Dr. Brokke did not have the same
treating relationship that Dr. Garber had with Anderson, his opinion was not tainted
with the apparent inconsistencies of Dr. Garber's assessment. See Cruze v. Chater,
85 F.3d 1320, 1324–25 (8th Cir. 1996) (noting ALJ did not err in failing to credit
treating physician's opinion because those opinions were inconsistent and not fully
supported by medical evidence).2
2
Despite a suggestion made during oral argument, the critical issue in this case
is not whether the ALJ erred in failing to ask the vocational expert if someone with
Anderson's profile would be considered disabled if that person, per Dr. Garber's
assessment of Anderson, needed to take a break every forty-five minutes and needed
to be absent from work three days a month. The ALJ did not pose this question to the
vocational expert because she did not credit the opinion of Dr. Garber.
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Anderson also argues that the ALJ improperly discounted the opinions of Dr.
Green and Dr. Robert C. Jones. Beginning in May 1997, Dr. Green began to treat
Anderson for pain in his right shoulder. The treatment culminated in February 1998
when Anderson chose not to receive further treatment for his shoulder pain and when
Dr. Green concluded that Anderson had reached maximum medical improvement.
See Report of Dr. Green (Feb. 17, 1998) [Record at 212]. Dr. Green noted that
Anderson sustained a permanent impairment to his right shoulder, see id., and that he
was limited to lifting ten pounds or less with his right arm. See SSA Decision at 9.
In June 1998, Dr. Jones, a neurological surgeon, gave a similar assessment of
Anderson's condition. See Independent Medical Evaluation of Dr. Jones (June 8,
1998) [Record at 226]. In her decision, the ALJ credited Dr. Brokke's opinion over
Dr. Green's because it was rendered "at a later point in time, when [Anderson] had
more fully recovered, and considered not only the shoulder injury, but the back
problems of [Anderson]." SSA Decision at 9. Leaving aside the merits of this
conclusion, we think it is ultimately of no consequence because the opinions of Dr.
Brokke and Anderson's treating physicians are not inconsistent concerning
Anderson's ability to lift and carry. Dr. Brokke's assessment was that Anderson was
limited to lifting twenty pounds. Dr. Jones and Dr. Green both stated that Anderson
was limited to lifting ten pounds with his right arm. We agree with the appellee that
Anderson's ability to lift ten pounds with his right arm is not inconsistent with the
ALJ's finding that Anderson has the residual functional capacity to lift twenty pounds
occasionally. See SSA Decision at 12. Consistent with this view, the ALJ
specifically found that Anderson could "do no overhead work with his right arm."
Id. Moreover, contrary to Anderson's claim, nowhere in her opinion does the ALJ
state that Anderson had recovered. See Br. of Appellant at 19. In short, we conclude
the ALJ properly evaluated the various medical opinions in this case.
Anderson next argues that the ALJ improperly evaluated the credibility of his
subjective complaints of pain and functional limitations. Specifically, he contends
the ALJ discounted his obesity as a medically determinable impairment and his
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symptoms of pain and fatigue. Here, the ALJ was required to consider all the
evidence relating to Anderson's subjective complaints including evidence presented
by third parties that relates to: (1) Anderson's daily activities; (2) the duration,
frequency, and intensity of his pain; (3) precipitating and aggravating factors; (4)
dosage, effectiveness, and side effects of his medication; and (5) functional
restrictions. See Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). While an
ALJ may not discount a claimant's subjective complaints solely because the medical
evidence fails to support them, an ALJ may discount those complaints where
inconsistencies appear in the record as a whole. Id. As we recently observed, "Our
touchstone is that [a claimant's] credibility is primarily a matter for the ALJ to
decide." Edwards, 314 F.3d at 966.
With this in mind, we turn to Anderson's claim that the ALJ failed to consider
his morbid obesity as an impairment. This claim is without merit. Although the ALJ
noted Anderson's obesity in its decision, SSA Decision at 5, 8, Anderson never
alleged any limitation in function as a result of his obesity in his application for
benefits or during the hearing. Accordingly, this claim was waived from being raised
on appeal. See Pena v. Chater, 76 F.3d 906, 909 (8th Cir. 1996) (noting that the ALJ
is under no "'obligation to investigate a claim not presented at the time of the
application for benefits and not offered at the hearing as a basis for disability'")
(quoting Brockman v. Sullivan, 987 F.2d 1344, 1348 (8th Cir. 1993)).
Anderson's other contention that the ALJ improperly discounted his subjective
claims of pain and fatigue is similarly of no avail. In support of this argument,
Anderson contends the ALJ improperly evaluated his use of narcotic pain
medications, improperly stated that he was manipulative in trying to "convince" Dr.
Richard Martin, a psychologist, that he was experiencing physical pain, and
erroneously found that he was attending school. Br. of Appellant at 27–32. The
ALJ's credibility determinations did not rest on these findings alone and included
determinations that Anderson was capable of performing significant daily activities
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and that his allegations of pain were inconsistent with other medical evidence in the
record. Because the ALJ's findings are well supported in the record, we see no reason
to disturb the ALJ's credibility findings that Anderson challenges.
For instance, the record supports the ALJ's finding concerning Anderson's
possible overuse of narcotic pain medications. Dr. Martin noted that "There is a
significant possibility of past/present problems with substance abuse . . . and
[Anderson's] extensive present use of (presecribed) pain medications."
MSE/Disability Evaluation of Dr. Richard Martin at 3 (Nov. 3, 1998) [Record at 253].
While we appreciate Anderson's need for prescribed medications to treat the severe
pain caused by his shoulder impairment, we do not think that undercuts the ALJ's
finding on Anderson's overuse of medications. See SSA Decision at 9. A claimant's
misuse of medications is a valid factor in an ALJ's credibility determinations. See
Anderson v. Shalala, 51 F.3d 777, 780 (8th Cir. 1995) (observing that claimant's
"drug-seeking behavior further discredits her allegations of disabling pain").
Relatedly, we find nothing improper in the ALJ's reference to Dr. Martin's
observation that Anderson was "somewhat manipulative" in his efforts to "convince"
him of his pain. See MSE/Disability Evaluation at 2 [Record at 252]. As a treating
psychologist, Dr. Martin was within his field of expertise in making such an
observation, and the ALJ properly considered this evidence in making a credibility
determination. See Jones v. Callahan, 122 F.3d 1148, 1152 (8th Cir. 1997) (noting
that ALJ may consider evidence that a claimant has exaggerated his symptoms when
evaluating claimant's subjective complaints of pain). Finally, we do not think the
ALJ's credibility determination hinged on whether Anderson was attending school
during the relevant period of his disability (even if, as he maintains, he was only
taking correspondence courses). Based on the record as a whole, we conclude the
ALJ's determination that Anderson's complaints of pain were not fully credible is
supported by substantial evidence.
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For the reasons stated, we hold that the ALJ's decision is supported by
substantial evidence in the record, and we accordingly affirm the judgment of the
District Court.
HEANEY, Circuit Judge, dissenting.
I respectfully dissent. The ALJ in this case failed to adequately consider the
medical opinion of Paul Anderson’s treating doctor; improperly ignored Anderson’s
undisputed account of his own pain and abilities; and, as a result, posed the wrong
question to the vocational expert regarding Anderson’s future in the competitive job
market. For these reasons, I would reverse and remand to the Commissioner.
Paul Anderson, a right-hand dominant person, injured his right shoulder at his
place of employment in March of 1997. He required surgery on August 18, 1997, and
has been unable to obtain steady work since his injury. He has been diagnosed with
severe degenerative disc disease and an impaired right shoulder. No one disputes the
existence of Anderson’s injury; the ALJ, however, concluded that despite his injury,
Anderson can find other work in a full time competitive economy.
In making this determination, the ALJ improperly disregarded the opinion of
Anderson’s treating physician, Dr. Garber. She discounted Dr. Garber’s Residual
Functional Capacity Questionnaire because of perceived internal inconsistencies in
his report. Most of the inconsistencies the ALJ describes, however, are not
inconsistencies at all, but rather lingering questions she had about the medical reasons
for Anderson’s limitations. The ALJ contends that there are several points in the
report where Dr. Garber indicated a restriction on Anderson’s ability to work, but did
not provide an explanation for the restriction. Dr. Garber answered each question on
the Residual Functional Capacity Questionnaire as it was framed. He indicated that
Anderson would need to take a break every forty-five minutes and would need
frequent rests on the job. The ALJ takes issue with this assessment because Dr.
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Garber did not explain why such breaks would be necessary, but the undisputed
record reflects that there is no space on the form to provide such an explanation.
Rather than summarily dismissing Dr. Garber’s assessment for this reason, the ALJ
should have contacted Dr. Garber to obtain further explanation. See Cox v. Apfel,
160 F.3d 1203, 1209 (8th Cir. 1998) (noting that an ALJ has an independent duty to
fully and fairly develop the facts of the case). Just because the ALJ determined Dr.
Garber’s assessment was incomplete, does not mean the doctor’s assessment was
inconsistent.
It is clear on the record as it stands that Anderson would need to take frequent
breaks on a job due to his shoulder injury and severe degenerative disc disease. Dr.
Brokke, the consultative physician, noted Anderson experienced fatigue after his
physical examination. Dr. Brokke’s observation supports Dr. Garber’s conclusion
that Anderson would need frequent breaks on a job. If testing in a doctor’s office
tires Anderson out, certainly a few hours on the job would do the same.
The ALJ drew hasty conclusions from Dr. Garber’s statements that Anderson
has an unimpaired ability to walk, yet would require a break every forty-five minutes.
The ALJ maintains that these two statements cannot coexist. Anderson’s ability to
walk, however, does not speak to his ability to maintain a certain body position
throughout the workday. His need for breaks clearly derives from his undisputed
back and shoulder problems.
The ALJ also placed too great an emphasis on Dr. Garber’s later correction to
his Residual Functional Capacity Questionnaire. In the original report, Dr. Garber
did not place restrictions on Anderson’s ability to lift weights. He corrected this by
submitting a letter indicating Anderson could lift ten pounds occasionally, and less
than ten pounds frequently. The ALJ disregarded this opinion, noting that Dr. Garber
altered his restriction after talking to Anderson’s attorney. There is nothing to
suggest Dr. Garber altered his medical opinion because Anderson’s attorney
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convinced him to do so. Rather, it is more likely that Dr. Garber realized his mistake
and sought to rectify it by supplementing the record. Furthermore, as this court has
said before, a person’s ability to lift weights does not translate into his ability to work
in a competitive national economy. McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th
Cir. 1982) (stating that the residual functional capacity of a claimant “is not [found
by] 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”).
The ALJ continued to incorrectly label other statements in Dr. Garber’s report
as inconsistencies. These include: 1) a limitation on Anderson’s ability to handle and
finger objects; 2) a limitation on Anderson’s ability to sit for more than three hours;
and, 3) a limitation on Anderson’s ability to reach, push, and pull. The ALJ
dismissed all of these observations as unsupported by any medical explanation. Once
again, the ALJ is labeling an incomplete medical record as an inconsistent one. The
proper course for the ALJ was to seek further explanation of Anderson’s limitations,
not to dismiss them outright. Cox, 160 F.3d at 1209.
Not only did the ALJ discount the treating physician’s assessment of Anderson,
but she also improperly disregarded Anderson’s own unchallenged statements about
his pain and abilities. The ALJ found Anderson’s testimony incredible for three
reasons. First, Dr. Martin, Anderson's evaluating psychologist, noted that during his
examination of Anderson, Anderson appeared to be “convincing” him that he was in
pain. Second, the ALJ concluded that Anderson was overusing his properly
prescribed pain medications, and this was a contributing factor to his current
problems. Finally, the ALJ maintained that Anderson’s account of his pain and
abilities was inconsistent with the findings upon medical examination. Even though
the majority correctly points out that a claimant’s “‘credibility is primarily a matter
for the ALJ to decide,’” ante at 7 (quoting Edwards v. Barnhart, 314 F.3d 964, 966
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(8th Cir. 2003)), the ALJ must have a basis for discounting a claimant’s credibility.
Here there is no such basis.
Nothing in the record indicates that Anderson ever lied about the level of pain
he was experiencing. In fact, the medical history supports the notion that Anderson
was in fact experiencing severe pain. An ALJ should look to the dosage of the pain
medication as a factor in determining the credibility of a claimant’s stated level of
pain. See Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). Anderson was
on several medications to help alleviate the pain he was experiencing in his shoulder.
Certainly his treating doctors found his accounts of pain to be credible, or they would
not have continued to prescribe him pain medication. Dr. Martin’s statement that he
thought Anderson was trying to “convince” him of his pain, suggesting he was not
really in pain, is unfounded. During Anderson’s one visit with Dr. Martin, a
psychologist, he never examined Anderson’s shoulder. Even Dr. Brokke, the
consultative examiner, notes in his report that Anderson’s right shoulder became
“quite painful” only ten minutes after his physical examination of Anderson.
Anderson consistently complained to all of his medical doctors about his pain, and
none of them expressed doubt as to the sincerity of his complaints. There was no
basis for the ALJ to rely solely on the speculation of Dr. Martin, when every other
medical doctor that treated or examined Anderson believed he was in pain.
The ALJ also opined that Anderson was using too much pain medication. She
based her conclusion on the “suspicions” of more than one physician. While several
doctors expressed to Anderson the serious nature of the pain medications he was
taking,3 the only doctor who expressed such “suspicions” regarding addiction was Dr.
3
Dr. Green, while indicating he would “try to stop the Vicodin,” never
indicated this was due to Anderson’s misuse of the drug. Report of Dr. Green (Nov.
4, 1997) [Record at 215]. Similarly, Dr. Jones, the VA doctor, “warned the patient
about continued use of [Percocet],” but never revealed he was concerned that
Anderson was overusing the drug. Report of Dr. Jones (June 8, 1998) [Record at
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Martin, the evaluating psychologist. Dr. Martin’s conclusion was pure conjecture;
during Anderson’s single visit he did not evaluate the severity of Anderson’s pain,
and consequently could not know the proper level of pain medication. In fact, Dr.
Martin himself suggested further diagnostic testing was necessary to test his
“hypothesis” regarding Anderson’s perceived misuse of prescription drugs. None of
the other medical doctors expressed Dr. Martin’s concern.4 Once again, the ALJ
chose to disregard the treatment plan prescribed by all of Anderson’s other doctors,
and relied on Dr. Martin’s unsubstantiated “hypothetical” of Anderson’s drug abuse.
The ALJ further dismissed Anderson’s statements regarding his range of
motion and lifting ability as being inconsistent with Dr. Brokke’s examination. Dr.
Brokke, however, only examined Anderson once, and could not have been aware of
how Anderson would perform overtime on a job. Accordingly, the ALJ had no basis
for discrediting Anderson’s testimony regarding the level of pain he experienced as
a result of his back and shoulder problems.
Having improperly discredited Dr. Garber’s assessment of Anderson’s
capabilities and Anderson’s own account of his capabilities, the ALJ posed the wrong
question to the vocational expert regarding Anderson’s future in the competitive job
market. The ALJ told the expert that Anderson could lift twenty pounds occasionally,
could do work at shoulder or chest level, could sit, stand, or walk for six hours in an
eight-hour day with normal breaks, and was not restricted in the use of his hands or
fingers. On these facts, the vocational expert answered that Anderson could be
employed as a telephone solicitor, gate tender, or a general clerk. The facts the ALJ
detailed, however, are not Anderson’s actual capabilities. Dr. Garber’s evaluation
226]. These appear to be words of caution about potential addiction, rather than
words of rebuke about a current addiction.
4
Dr. Garber did note that Anderson was receiving pain medication from two
doctors, but nonetheless he continued prescribing Anderson pain medications.
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indicates Anderson would have to take many breaks on the job, Anderson testified
that he gets sore and would need to take many breaks on the job, and his treating
physicians all agree that Anderson cannot lift more than ten pounds. The ALJ
provided the vocational expert with an inaccurate view of Anderson’s medical
condition, and hence the vocational expert’s opinion that Anderson could find work
is not sound.
The ALJ failed to take into account important medical evidence from Dr.
Garber and from Anderson in finding Anderson was not disabled. The ALJ’s
decision was based primarily on information provided by a one-time examining
doctor, which, in my view, is not substantial evidence. Accordingly, I would reverse
the district court with directions to remand to the Commissioner for a full and fair
hearing, answering all of the questions that are raised by the ALJ’s inadequate
decision. See Payton v. Shalala, 25 F.3d 684, 686 (8th Cir. 1994) (holding where an
ALJ does not fully develop the record, the court may remand for taking of further
evidence).
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