Jack Dixon v. Jo Anne B. Barnhart ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-2105
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Jack Dixon, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Arkansas.
JoAnne B. Barnhart, Commissioner *
of Social Security, *
Appellee. *
*
___________
Submitted: November 7, 2002
Filed: April 4, 2003
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Before MURPHY, and MELLOY, Circuit Judges, and FRANK1 District Judge.
___________
MELLOY, Circuit Judge.
1
The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota, sitting by designation.
1
Appellant Jack Dixon appeals the district court’s affirmance of his termination
of disability benefits. We reverse and remand for further development of the factual
record.
I.
Appellant Jack Dixon was born on August 21, 1948. He received a ninth grade
education and worked as a truck driver and heavy equipment operator. Dixon
suffered a job related injury on January 9, 1989, when he fell off a loading dock and
injured his tail bone, resulting in an L1 vertebral body compression fracture,
paralumbar muscle strain, myositis with myospasticity, and a coccygeal contusion.
Dr. Hermie Plunk, a primary care physician, was Dixon’s treating physician. Dr.
Plunk has continued to treat Dixon throughout this appeal. Dixon also had trouble
with his vision for a number of years. Dixon received treatment for his vision
problems from Dr. Roger Baker, an ophthalmologist. Dr. Baker concluded Dixon had
only hand motion vison in the right eye, and 20/25 vision in the left eye.
In June of 1989, Dixon filed an application for disability insurance benefits and
for supplemental security income benefits alleging a disability onset date of January
9, 1989, due to an injured tail bone and poor vision. On May 3, 1990, Dixon was
awarded benefits on his claim with an onset date of January 9, 1989.
In 1994, while Dixon was still receiving disability benefits based on his back
and vision problems, he began to have heart problems. Dr. Fraser Richards
successfully performed coronary artery bypass surgery on Dixon on June 1, 1994.
Dixon continued to see his primary care physician, Dr. Plunk, for cardiac problems,
hypertension, and anxiety, while also seeing Dr. Richards for his cardiac problems.
From June 21, 1994, through December 17, 1996, Dr. Plunk saw Dixon a number of
times for cardiac and non-cardiac symptoms and for medication management.
Dixon was admitted to the hospital on May 24, 1997, for chest pain. While in
the hospital, a cardiac catheterization revealed coronary atherosclerotic disease
2
ranging from mild stenosis in some arteries to severe stenosis or total occlusion in
others. Tests performed on Dixon revealed he had sinus bradycardia. He was
diagnosed with non-cardiac chest pain, coronary artery disease, hypertension, and a
history of tobacco abuse. Dixon was discharged on May 26, 1997, with a medication
regime that included Ecotrin, Nitroglycerin, Norvasc, and Xanax. The medication
regime was altered throughout 1997 by Dr. Plunk and Dr. Richards as Dixon
continued to experience symptoms. A June 13, 1997, stress test revealed that Dixon
failed to achieve the target heart rate and that he had abnormal blood pressure.
The Social Security Administration continued to review Dixon’s disability
award through the continuing disability review process. A March 17, 1998, report
by Dr. Plunk, performed at the request of the Social Security Administration, stated
that Dixon’s physical ability to perform activities of daily living were limited by
coronary artery disease, post CASG triple bypass surgery, unstable angina,
hypertension, hystoplasmosis, hiatal hernia, difficulty hearing, and decreasing vision.
Dr. Richards, Dixon’s treating cardiac surgeon, gave no opinion on Dixon’s work-
related or daily living activities.
In a letter dated April 26, 2000, Dr. Plunk reiterated her previous diagnosis and
concluded: “[Dixon’s] overall health condition at this time is weakened yet stable
with medication. He cannot work in extreme heat or cold. He cannot lift over ten
pounds. He cannot return to his previous occupation in construction as a heavy
equipment operator nor truck driver. I do not expect his condition to improve.”
On May 3, 1998, Dr. Robert Redd reviewed the medical evidence in Dixon’s
record to make a capacity assessment2. Dr. Redd did not treat nor did he examine
2
At the request of the Social Security Administration, Dr. Robert Redd
evaluated the medical records of Dixon.
3
Dixon. Dr. Redd did not have the statements of Dr. Plunk or Dr. Swingle regarding
Dixon’s work limitations. Dr. Redd concluded that Dixon had a medium level
residual functional capacity (RFC) reduced by vision-related limitations.
Dixon also underwent, at the request of the Social Security Administration, a
consultative examination performed by Dr. Charles Swingle on May 5, 1998. Dr.
Swingle diagnosed Dixon with post-bypass coronary artery disease, hypertension,
blindness in the right eye, hiatal hernia, and histoplasmosis. Dr. Swingle stated that
Dixon was “probably unable to be gainfully employed due to the severity of [coronary
artery disease] and blindness in [the] right eye.”
Dr. F. Joseph George, with the Jonesboro Eye Clinic, also treated Dixon in
1998 and 1999. Dr. George concluded that Dixon’s best corrected central visual
acuity was the ability to count fingers with the right eye and 20/20 vision in the left
eye. This represented a slight improvement in Dixon’s left eye vision. Dr. George
did not believe that the poor vision in the right eye could be improved with treatment.
Dr. George did note early cataract changes in each eye.
Pursuant to the continuing disability review process, Dixon received a notice
of disability cessation on May 18, 1998. The communication notified Dixon that he
was no longer disabled as of May 1, 1998, and that his final benefits payment would
be made on July 31, 1998. This decision was affirmed on reconsideration before a
disability hearing officer on June 24, 1999. On June 27, 2000, an ALJ upheld the
determination that Dixon was no longer disabled within the meaning of the Social
Security Act. Dixon was not represented by counsel at the hearing. The Appeals
Council declined to review the decision. After retaining counsel, Dixon sought
judicial review of the ALJ’s final decision and on March 28, 2002, a United States
Magistrate Judge affirmed the ALJ’s determination that Dixon was no longer
disabled. On appeal, Dixon contends the ALJ’s decision was not supported by
substantial evidence.
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II.
We review the denial of benefits pursuant to the continuing disability review
process for substantial record evidence to support the ALJ’s decision. See Muncy v.
Apfel, 247 F.3d 728, 730 (8th Cir. 2001). Substantial evidence is relevant evidence
that reasonable minds might accept as adequate to support the decision. Hunt v.
Massanari, 250 F.3d 622, 623 (8th Cir. 2001). Therefore, the narrow issue on appeal
is whether there is substantial record evidence to support the ALJ’s determination that
Dixon could perform medium work.
The continuing disability review process is a sequential analysis prescribed in
20 C.F.R. § 404.1594(f). The regulations for determining whether a claimant’s
disability has ceased may involve up to eight steps in which the Commissioner must
determine (1) whether the claimant is currently engaging in substantial gainful
activity, (2) if not, whether the disability continues because the claimant’s
impairments meet or equal the severity of a listed impairment, (3) whether there has
been a medical improvement, (4) if there has been medical improvement, whether it
is related to the claimant’s ability to work, (5) if there has been no medical
improvement or if the medical improvement is not related to the claimant’s ability to
work, whether any exception to medical improvement applies, (6) if there is medical
improvement and it is shown to be related to the claimant’s ability to work, whether
all of the claimant’s current impairments in combination are severe, (7) if the current
impairment or combination of impairments is severe, whether the claimant has the
residual functional capacity to perform any of his past relevant work activity, and (8)
if the claimant is unable to do work performed in the past, whether the claimant can
perform other work. 20 C.F.R. § 404.1594(f).
The ALJ first determined that Dixon had not been engaged in substantial
gainful work activity. In the next step, the ALJ concluded that “[w]hile the claimant’s
current conditions and/or impairments . . . are potentially severe within the meaning
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of the Regulations, there is no evidence in this claim to show that they have been so
pervasive and/or severe as to meet or medically equal one of the impairments listed
in Appendix 1, Subpart P, Regulations No. 4.” ALJ Decision, July 27, 2000, at 3.
The ALJ continued in the sequential analysis and determined that there was medical
improvement in Dixon’s impairments. Next, the ALJ found that Dixon’s medical
improvement was related to his ability to do work and his RFC had increased to at
least the medium duty level3. The ALJ then determined that Dixon’s current
impairments were still severe, but that he had the RFC to perform medium work.
Specifically, the ALJ concluded:
In assessing the claimant’s residual functional capacity consideration is
given to the above factors regarding the wide range of daily activities
performed by him including driving, gardening, mowing, shopping, and
reading which discredit the assessment reached by Dr. Plunk in his April
26, 2000 correspondence. Testimony disclosed he rarely experiences
back discomfort and treatment notes disclose a negative cardiolite study
in July 1999. Based upon these considerations he is assessed residual
functional capacity to lift/carry 50 pounds occasionally and 25 pounds
frequently; stand/walk 6 hours in an 8 hour day; sit 6 hours in an 8 hour
day; and push/pull using the upper and lower extremities.
ALJ Decision, July 27, 2000, at 5. Finally, the ALJ determined that Dixon could not
perform his past relevant work, but, according to testimony from a vocational expert,
there were jobs within the economy which Dixon could perform.
The ALJ based his decision on three principal factors. First, the ALJ correctly
noted that Dixon’s back pain had improved and that Dixon rarely experienced back
discomfort. Second, the ALJ found persuasive the fact that Dixon was able to engage
in a wide range of certain daily activities, such as driving, gardening, mowing,
3
“Medium work involves lifting no more than 50 pounds at a time with frequent
lifting or carrying of objects weighing up to 25 pounds.” 20 C.F.R. § 404. 1567(c).
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shopping, and reading. The ALJ believed these activities discredited the assessment
reached by Dixon’s treating physician, Dr. Plunk, and his examining physician, Dr.
Swingle. Third, the ALJ relied on the negative cardiolite study in 1999 to support his
determination that Dixon could perform medium work. We address these factors in
turn.
The ALJ determined that Dixon rarely experienced back discomfort. It is
undisputed that Dixon’s back problems have improved and we agree there is
substantial record evidence to support that determination. However, the mere fact
that Dixon’s back problems have improved does not mean, in and of itself, that Dixon
can do medium work. Dixon still suffers from poor vision and the record indicates
a significant history of cardiac problems since the initial onset of his disability and
during his award period. While the record was well-developed regarding Dixon’s
back pain, we find the record insufficiently developed regarding Dixon’s cardiac
problem and the impact it has on his ability to work.
In finding Dixon capable of performing the exertional tasks of medium work,
the ALJ relied on the statements in the record that Dixon engaged in daily life
activities of driving, gardening, mowing, shopping, and reading. The ALJ believed
these activities discredited the assessment reached by Dr. Plunk, Dixon’s treating
physician, that Dixon had a lifting limitation of ten pounds. However, the record
pertaining to Dixon’s daily activities was not fully developed. There is nothing in the
record to support the conclusion that because Dixon can perform certain daily life
activities, he can also perform the exertional tasks of medium work. “This court often
has noted . . . that a claimant’s ability to perform household chores does not
necessarily prove that claimant capable of full-time employment.” See Ekeland v.
Bowen, 899 F.2d 719, 722 (8th Cir. 1990) (citing Easter v. Bowen, 867 F.2d 1128,
1130 (8th Cir. 1989)). The fact that Dixon usually walks two miles a day at a slow
pace does not, in itself, mean Dixon can perform medium work. The ALJ failed to
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explain how Dixon’s daily life activities translate to an ability to perform the
exertional tasks required in medium work.
The Commissioner contends that the ALJ adopted most of Dr. Plunk’s
assessment, but did not agree with the ten pound limitation because the results of his
cardiolite test do not support that conclusion. The ALJ did not explain the
significance of the negative cardiolite test, nor is its significance developed in the
record. The test is mentioned in the cardiologist’s report without any explanation of
its implications. The record needs to be more fully developed regarding what
specifically the cardiolite test results, among other information, means relative to
Dixon’s ability to work, and how those particular test results may conflict with other
tests in Dixon’s medical records. Absent that information, it is not possible to
ascertain Dixon’s ability to work without engaging in medical conjecture. See
Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000) (“‘An administrative law judge
may not draw upon his own inferences from medical reports.’” (quoting Lund v.
Weinberger, 520 F.2d 782, 785 (8th Cir. 1975)). On the record as it stands, the
results of the cardiolite test provide no basis for rejecting the recommendations of Dr.
Plunk and Dr. Swingle.
Finally, we find merit in Dixon’s contention that the ALJ relied too heavily on
the opinion of the Social Security Administration’s reviewing physician, Dr. Redd.
While the ALJ’s decision does not mention Dr. Redd’s recommendation, it is record
evidence. Dixon contends Dr. Redd’s report is the only evidence in the record which
supports the ALJ’s RFC determination that Dixon can perform medium work. Dr.
Redd never examined Dixon and provided his RFC opinion based solely on Dixon’s
medical records. See Nevland, 204 F.3d at 858 (relying upon non-examining, non-
treating physicians to form an opinion on a claimant’s RFC does not satisfy the ALJ’s
duty to fully and fairly develop the record). The record indicates that Dr. Redd did
not have Dr. Plunk’s or Dr. Swingle’s recommendations and statements to inform his
RFC recommendation. We have previously stated that “[a] treating physician’s
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opinion should be accorded substantial weight.” Prince v. Bowen, 894 F.2d 283, 285
(8th Cir. 1990) (citations omitted). Dixon’s treating physician and the state’s
examining physician concluded that Dixon had, at a minimum, more severe work
restrictions than what the ALJ determined. Dr. Redd concluded that Dixon could
perform medium work. Given the contradicting recommendations in the record and
the insufficiently developed record surrounding Dixon’s cardiac problems, Dr. Redd’s
opinion does not constitute substantial record evidence that Dixon can perform
medium work. See Nevland, 204 F.3d at 858 (“The opinions of doctors who have not
examined the claimant ordinarily do not constitute substantial evidence on the record
as a whole.”).
The ALJ’s conclusions were not supported by substantial record evidence.
Specifically, the record is undeveloped regarding: Dixon’s daily life activities and
how those activities relate to his ability to work; the significance of certain test results
relied upon by the ALJ; and, what specifically Dixon’s treating and examining
physicians recommend in terms of his RFC. A more complete record needs to be
developed to ascertain what level of work, if any, Dixon is able to perform.
Accordingly, we remand the case for further proceedings to more fully develop the
record.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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