Jerry Gregg v. Jo Anne B. Barnhart ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-1451
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Jerry Gregg, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
Jo Anne B. Barnhart, Commissioner * Southern District of Iowa.
of Social Security, *
*
Appellee. *
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Submitted: October 23, 2003
Filed: December 30, 2003
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Before RILEY, BOWMAN, and SMITH, Circuit Judges.
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SMITH, Circuit Judge.
Jerry Gregg appeals the denial of his application for Social Security disability
benefits. The district court1 upheld the decision of the Commissioner, and we affirm.
1
The Honorable Ronald E. Longstaff, Chief Judge, United States District Court
for the Southern District of Iowa.
I.
Jerry Gregg filed for Social Security disability benefits with the Social Security
Administration ("SSA") in April 1999, alleging that he became disabled in January
1996.2 The SSA denied his application when the March 2000 decision of
Administrative Law Judge ("ALJ") Jan E. Dutton became the final decision of the
Commissioner. The district court, finding that the ALJ's decision was supported by
substantial evidence and not affected by error of law, affirmed. Gregg appeals,
alleging that the ALJ failed to properly develop the record, made improper credibility
determinations, and asked the vocational expert an inadequate hypothetical question.
Gregg has several physical conditions, which he argues render him disabled
within the meaning of the Social Security Act. He injured his neck at the fifth
vertebra, for which he had surgery. He was diagnosed with bilateral foraminal
stenosis in his spine, degenerative disc disease, and nerve damage in his right arm.
He experiences pain in his neck, shoulder, hip, and right leg. The ALJ found that his
impairments were severe, but determined they were not severe enough to meet the
criteria of the "Listing of Impairments" of the Act and accompanying regulations.
Relying on the testimony of a vocational expert, the ALJ found that there were jobs
in significant numbers in the national economy which Gregg could perform. She
concluded that he was therefore not disabled for purposes of awarding Social Security
disability benefits.
II.
Gregg first argues that the ALJ failed to adequately develop the record as to his
alleged mental impairments. Battles v. Shalala, 36 F.3d 43, 44 (8th Cir. 1994) (noting
ALJ has duty to develop the record fully and fairly). "There is no bright line test for
2
Gregg amended his disability onset date from October 1, 1994, to January 11,
1996.
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determining when the [Commissioner] has . . . failed to develop the record. The
determination in each case must be made on a case by case basis." Id. at 45.
Gregg's argument rests on the results of a psychiatric examination performed
by Hector Cavillin, M.D. in January 2001.3 In the report, Cavillin opined that Gregg
currently suffered from a major depressive disorder, "reactive to a chronic medical
condition which is the pain and disability associated with the lifting injury of
September, 1994." He further stated: "It is difficult to state how long he has been
suffering from the current level of depression," but medical records dating back to
1995 through 1997 suggest that Gregg was suffering from depression during that time
period. The Appeals Council dismissed this report as immaterial to whether Gregg
was disabled on or before March 31, 2000.
Gregg contends that either the ALJ should have recognized the need for
additional mental-health information–without the benefit of Dr. Cavillin's January
2001 report–or the Appeals Council should have remanded the matter to the ALJ for
further development of this issue. However, an ALJ is not obliged "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." Pena v. Chater, 76 F.3d 906, 909 (8th Cir. 1996).
Moreover, at the time of the ALJ's ruling, neither Gregg's family doctor nor any other
treating physician knew of any depression-related issues. Further, Gregg testified at
the hearing that he did not believe he had any mental problems. Gregg has not shown
that the Appeals Council failed to give Dr. Cavillin's statement proper consideration.
Further, the ALJ's treatment of Gregg's alleged mental disability was not contrary to
Eighth Circuit law.
3
This report was submitted ten months after the ALJ issued her written
decision denying benefits. Cavillin's report was submitted to–and considered by–the
Appeals Council as new evidence; however, it was omitted from the certified record.
On April 22, 2002, Gregg filed a motion for leave to supplement the district court's
record, which was granted. The district court record was modified on May 21, 2002.
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III.
Gregg next argues that the ALJ's credibility determination was improper. The
ALJ must give full consideration to all evidence relating to Gregg's subjective
complaints, including his prior work record; observations by third parties and
physicians regarding his disability; Gregg's daily activities; the duration, frequency,
and intensity of pain; precipitating and aggravating factors; dosage, effectiveness, and
side effects of medication; and his functional restrictions. Polaski v. Heckler, 739
F.2d 1320, 1322 (8th Cir. 1984).
The ALJ discounted Gregg's allegations that he was unable to work due to his
impairments. She based her credibility determination on several factors, including (1)
Gregg's receipt of non-employment income; (2) no consistent medical treatment; (3)
no physician's opinion that Gregg was disabled; (4) no objective medical evidence in
support of his allegations of pain; (5) no evidence that Gregg's condition deteriorated;
and (6) Gregg's performance of daily activities that were inconsistent with his
allegations. Specifically, the ALJ noted that although Gregg had not engaged in
substantial gainful activity since 1996, his ability to continue to work twenty hours
per week as a farmer belied a finding of total disability.
With regard to daily activities, the ALJ found that Gregg tended livestock,
including moving hay bales and feed, for one-half to two hours per day. The ALJ also
noted that Gregg has not consistently sought treatment for his condition since the
alleged disability onset date. Gregg challenges this by arguing that he has followed
through with all treatment recommended by his physicians. However, the minimal
treatment sought and received by Gregg since his surgery–medication and trigger
point injections–succeeded in at least temporarily reducing his pain.
The duty of deciding questions of fact, including the credibility of Gregg's
subjective testimony, rests with the Commissioner. Nelson v. Sullivan, 966 F.2d 363,
366 (8th Cir. 1992). The crucial question is not whether Gregg experienced pain, but
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whether Gregg's credible subjective complaints prevent him from performing any
type of work. McGinnis v. Chater, 74 F.3d 873, 874 (8th Cir. 1996). If an ALJ
explicitly discredits the claimant's testimony and gives good reason for doing so, we
will normally defer to the ALJ's credibility determination. Russell v. Sullivan, 950
F.2d 542, 545 (8th Cir. 1991). Here, the ALJ's decision was supported by substantial
evidence in the record.
IV.
Gregg also argues that, at his hearing, the ALJ asked the vocational expert a
hypothetical question that inadequately described his physical limitations.
Consequently, according to Gregg, the vocational expert's opinion that there is work
which he can perform, is flawed. Gregg again bases his argument on the ALJ's
rejection of his claims of extreme pain and mental depression. As explained above,
the ALJ properly considered Gregg's claims of physical limitation and disabling pain.
We agree with the district court that the ALJ's opinion correctly applied the law
and was supported by substantial evidence on the record as a whole. Accordingly, the
judgment of the district court is affirmed.
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