Stefania Harris v. Jo Anne B. Barnhart ( 2004 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 03-1512
    ___________
    Stefania Harris,                    *
    *
    Appellant,              *
    * Appeal from the United States
    v.                            * District Court for the Western
    * District of Missouri.
    Jo Anne B. Barnhart, Commissioner,  *
    Social Security Administration      *
    *
    Appellee.               *
    ___________
    Submitted: November 21, 2003
    Filed: January 30, 2004
    ___________
    Before MELLOY, RICHARD S. ARNOLD, and COLLOTON, Circuit Judges.
    ___________
    COLLOTON, Circuit Judge.
    Stefania Harris applied for disability insurance benefits and supplemental
    security benefits under Titles II and XVI of the Social Security Act. The
    Commissioner of the Social Security Administration denied Harris's application. An
    administrative law judge ("ALJ") determined that Harris's history of diabetes did not
    meet the criteria for presumptive disability under 20 C.F.R. Part 404, Subpart P,
    Appendix 1, and that Harris was "not disabled" within the meaning of the Social
    Security Act during the period for which she sought benefits. The Social Security
    Appeals Council denied review, and the district court1 affirmed the decision of the
    Commissioner. We affirm.
    I.
    We review de novo the district court's decision to uphold the denial of social
    security benefits. Pettit v. Apfel, 
    218 F.3d 901
    , 902 (8th Cir. 2000). Our task is to
    consider whether the Commissioner's decision is supported by substantial evidence
    in the record as a whole. Chamberlain v. Shalala, 
    47 F.3d 1489
    , 1493 (8th Cir.
    1995). We consider both evidence that supports and detracts from the ALJ's decision,
    but even if inconsistent conclusions may be drawn from the evidence, the decision
    will be affirmed where substantial evidence on the record as a whole supports the
    ALJ's decision. 
    Id. We do
    not re-weigh the evidence presented to the ALJ, and it is
    "the statutory duty of the ALJ, in the first instance, to assess the credibility of the
    claimant and other witnesses." Bates v. Chater, 
    54 F.3d 529
    , 532 (8th Cir. 1995)
    (internal quotation and citation omitted).
    II.
    The Commissioner follows a five-step process to determine whether a claimant
    is disabled. See generally 20 C.F.R. § 404.1520; Bowen v. Yuckert, 
    482 U.S. 137
    ,
    140-42 (1987); Cox v. Apfel, 
    160 F.3d 1203
    , 1206 (8th Cir. 1998). At step two, the
    ALJ hearing the case must determine whether the claimant has a medically severe
    impairment or combination of impairments. If the impairment is severe, then the ALJ
    proceeds to step three to determine whether the impairment is equal to an impairment
    listed by the Social Security Administration as precluding substantial gainful activity.
    1
    The Honorable Gary A. Fenner, United States District Judge for the Western
    District of Missouri.
    -2-
    For a claimant to show that her impairment matches a listed impairment, she must
    show that she meets all of the specified medical criteria. Deckard v. Apfel, 
    213 F.3d 996
    , 997 (8th Cir. 2000).
    Harris argues the ALJ incorrectly found at step three that she did not meet the
    criteria for "nephrotic syndrome," as described at 20 C.F.R. Part 404, Subpart P,
    Appendix 1, § 6.06B. To meet the requirements of section 6.06B, the medical
    evidence must show, among other things, "nephrotic syndrome," with "significant
    anasarca," that has persisted "for at least three months despite prescribed therapy."
    
    Id. Anasarca is
    a generalized infiltration of edema fluid into subcutaneous connective
    tissue. Stedman's Medical Dictionary 70 (27th ed. 2000). Edema is the accumulation
    of an excessive amount of watery fluid in cells or intercellular tissues. 
    Id. at 566-67.
    In addition, the medical record must include the results of laboratory tests
    documenting proteinuria of 10 grams per 24 hours or greater. 20 C.F.R. Part 404,
    Subpart P, Appendix 1, § 6.06B.
    Harris has not pointed to evidence showing that she satisfies the specific
    medical criteria for this listing. In support of her claim, Harris offers only her
    diagnoses of diabetic nephropathy and renal insufficiency. These diagnoses are not
    by themselves sufficient to demonstrate that Harris's condition meets the requisite
    medical criteria. We agree with the district court that there is no evidence that Harris
    suffered from significant anasarca. The only evidence of record regarding the
    presence of edema indicates that Harris had "rare" or "trace" edema in her extremities.
    (Administrative R. 225, 297). On other occasions, examinations found that Harris
    had no edema at all. (R. 219, 226, 266, 267, 297). We further note that results of
    tests conducted at the University of Kansas Medical Center in May 2001 show that
    Harris did not meet the criterion regarding proteinuria listed at Section 6.06B. (R.
    267). Accordingly, there is substantial evidence to support the ALJ's determination
    that Harris did not meet the requirements for presumptive disability.
    -3-
    III.
    At the fourth step of the five-step process, the ALJ was required to assess the
    claimant's residual functional capacity, see Young v. Apfel, 
    221 F.3d 1065
    , 1069 n.5
    (8th Cir. 2000), which is defined as what a claimant "can still do despite [his or her]
    limitations." 20 C.F.R. § 404.1545(a)(1). The RFC is a function-by-function
    assessment of an individual's ability to do work-related activities based upon all of
    the relevant evidence. Depover v. Barnhart, 
    349 F.3d 563
    , 565 (8th Cir. 2003). Once
    the RFC is determined, the issue at step five is whether the claimant is able to perform
    other work in the national economy in view of her age, education, and work
    experience. E.g., 
    Bowen, 482 U.S. at 142
    .
    Harris contends that the ALJ erred at step four in determining her RFC,
    because the ALJ failed to consider properly her vision loss, headaches, and fatigue.
    She also objects to the ALJ's finding at step five that she was able to work in the
    national economy in such positions as a cashier, duplicating machine operator, or
    laundry worker/folder. Harris complains that the determination of her ability to work
    was based on a flawed hypothetical that the ALJ promulgated to a vocational expert.
    We conclude that the RFC determined by the ALJ was supported by substantial
    evidence. The ALJ did include Harris's vision loss in his findings, noting that Harris's
    best corrected visual acuity was 20/100 in her right eye, and 20/50 in her left eye.
    The ALJ found that because of her vision, Harris should avoid driving.
    The ALJ's analysis of Harris's vision is supported by the record. A consultative
    ophthalmologist reported that Harris's left eye had "excellent vision," with "no active
    diabetic retinopathy," and that Harris's eyesight would not result in work-related
    limitations on sitting, standing, walking, lifting, carrying, handling objects, hearing,
    speaking, and traveling. (R. 230). Harris acknowledged in testimony that she could
    see clearly with glasses, and that she reads a newspaper. (R. 350-52). Harris cites no
    -4-
    evidence from treating physicians that would require greater limitations due to
    eyesight, and we are not persuaded that the ALJ's conclusion is unsupported by
    substantial evidence.
    The ALJ also considered Harris's complaints of headache and fatigue, but
    found that there was "no substantiation for any debilitation from headaches," and "no
    basis for significant fatigue as long as her blood glucose is reasonably well
    controlled." We conclude that the ALJ's analysis considered a variety of factors
    consistent with Polaski v. Heckler, 
    739 F.2d 1320
    , 1322 (8th Cir. 1984), and we are
    not convinced that the ALJ's conclusions regarding Harris's subjective complaints fail
    the substantial evidence test.
    The record provides adequate support for the ALJ's determination to reject
    Harris's subjective complaint of debilitating headaches and fatigue. A consulting
    physician who examined Harris in 1997 concluded that while Harris reported chronic
    headaches, "she has not been limited by them over the years and I would suspect that
    these are not limiting either." (R. 226). Indeed, Harris testified that she worked for
    an average of 24 hours per week during 2001. (R. 347, 356). See Browning v.
    Sullivan, 
    958 F.2d 817
    , 821 (8th Cir. 1992) (part-time work may demonstrate ability
    to perform substantial gainful employment). It was also not unreasonable for the ALJ
    to note that Harris's daily activities, including part-time work, cleaning house,
    attending church, and dining out with her boyfriend, were inconsistent with her claim
    of disabling pain. See Riggins v. Apfel, 
    177 F.3d 689
    , 692-93 (8th Cir. 1999); Haynes
    v. Shalala, 
    26 F.3d 812
    , 814-15 (8th Cir. 1994).
    The history of Harris's treatment for headaches also supported the ALJ's
    credibility determination. The ALJ was presented with evidence that in recent years,
    Harris took only over-the-counter medication for her headaches. See 
    Riggins, 177 F.3d at 692-693
    (mere use of non-prescription pain medication is inconsistent with
    disabling pain); Nelson v. Sullivan, 
    966 F.2d 363
    , 367 (8th Cir. 1992) (same). Harris
    -5-
    suggests that her failure to use stronger medication was due to the prohibitive expense
    of visits to an emergency room. If a claimant truly has no access to health care, then
    the absence of such care would not tend to disprove her subjective complaints of pain.
    But in evaluating the credibility of Harris's subjective complaints, it was permissible
    for the ALJ to consider the lack of evidence that Harris had sought out stronger pain
    treatment available to indigents. 
    Riggins, 177 F.3d at 693
    ; Murphy v. Sullivan, 
    953 F.2d 383
    , 386-87 (8th Cir. 1992). Accordingly, we believe the evidence as a whole
    provides adequate support for the ALJ's rejection of Harris's claim of debilitating
    headaches.
    In her testimony before the ALJ, Harris based her claim of fatigue largely on
    severe headaches. (R. 257). Given our conclusion that the ALJ properly rejected the
    claim of debilitating headaches, it follows that the record also supports the ALJ's
    finding that Harris did not suffer from significant fatigue as a result of such
    headaches. Harris claims it is obvious that fatigue arising from her condition of
    proteinuria will result in the need to lie down for several hours each day. We think
    whether there is a "need" to lie down is a medical question that requires medical
    evidence. The record does not contain any evidence from a physician that Harris's
    medical condition requires her to lie down for hours each day, and it does contain
    evidence that seems inconsistent with Harris's subjective claims. We cannot fault the
    ALJ for relying on testimony of the independent medical advisor that the record did
    not support a finding of significant fatigue.
    Harris attacks the ALJ's reliance on the independent medical advisor who
    testified at the hearing. She asserts the advisor testifies frequently in disability
    benefit proceedings, that he usually opines that the claimant is not disabled, and that
    his opinion has been rejected by courts in other cases. (The Commissioner notes that
    courts have affirmed other decisions in which this same advisor was a testifying
    expert.) We believe the credibility of any such medical advisor should be evaluated
    on a case-by-case basis, depending on the evidence of record in the proceeding. It is
    -6-
    well settled that an ALJ may consider the opinion of an independent medical advisor
    as one factor in determining the nature and severity of a claimant's impairment. See,
    e.g., Freeman v. Apfel, 
    208 F.3d 689
    , 692 (8th Cir. 2000); 20 C.F.R.
    §§ 404.1527(f)(2)(iii), 416.927(f)(2). Harris's counsel did not question the
    qualifications or competence of the medical advisor during the administrative hearing
    when there was an opportunity to make a record on such things, and we are not
    sympathetic to an effort to impugn the advisor's credibility with collateral materials
    during judicial review. We find nothing in these administrative proceedings from
    which to conclude that the medical advisor was an incompetent witness, or that his
    opinion was contradicted by credible evidence from treating physicians or otherwise
    inconsistent with the record.
    IV.
    Finally, Harris argues that the ALJ erroneously concluded at step five that she
    is capable of performing work that exists in significant numbers within the regional
    and national economies. She contends that the hypothetical situation presented to the
    vocational expert at the hearing did not accurately reflect the limitations on her ability
    to work.2
    2
    Our cases are inconsistent on where the burden of persuasion lies during step
    five of the Commissioner's process. Compare Young v. Apfel, 
    221 F.3d 1065
    , 1069
    n.5 (8th Cir. 2000) ("burden of production" shifts to Commissioner, but "burden of
    persuasion" remains with claimant) and Roth v. Shalala, 
    45 F.3d 279
    , 282 (8th Cir.
    1995) (same) with Griffon v. Bowen, 
    856 F.2d 1150
    , 1153-54 (8th Cir. 1988)
    ("burden of persuasion" shifts to Secretary). See also, e.g., Bowen v. 
    Yuckert, 482 U.S. at 146
    n.5 ("the Secretary bears the burden of proof at step five"); Singh v. Apfel,
    
    222 F.3d 448
    , 451 (8th Cir. 2000) (stating that "burden of proof" shifts to
    Commissioner, without specifying burden of "production" or "persuasion"); James,
    Burdens of Proof, 
    47 Va. L
    . Rev. 51, 51 (1961) ("burden of proof" is used in our law
    to refer to "two separate and quite different concepts": the burden of persuasion and
    the burden of production) (quoted in Omaha Indian Tribe v. Wilson, 
    575 F.2d 622
    ,
    -7-
    We conclude that the hypothetical accurately reflects Harris's residual
    functional capacity as found by the ALJ. The question included limitations on
    Harris's vision, stating that Harris "should not have a clerical type job where she had
    to read extensively or do any type of fine manipulation, because of her visual acuity
    or lack thereof . . . ." We perceive no error in the ALJ's failure to include Harris's
    subjective complaints of headaches and fatigue in the hypothetical, because we have
    upheld the ALJ's findings on those issues. See 
    Depover, 349 F.3d at 567
    ; 
    Riggins, 177 F.3d at 694
    . We note, moreover, that the hypothetical did include some
    limitations based on fatigue, including that Harris could only stand for four hours in
    an eight-hour day, that she could only "occasionally walk on a level surface 1 to 2
    blocks," and that she should avoid uneven terrains and surfaces.
    Having employed a hypothetical that was supported by substantial evidence in
    the record as a whole, the ALJ was entitled to rely upon the opinion of the vocational
    expert that there are a significant number of jobs in the economy that Harris could
    perform. Weiler v. Apfel, 
    179 F.3d 1107
    , 1111 (8th Cir. 1999). Accordingly, the
    judgment of the district court is affirmed.
    633 n.22 (8th Cir. 1978), rev'd on other grounds, 
    442 U.S. 653
    (1979)). The
    Commissioner recently promulgated a new rule designed to clarify that although a
    burden of production shifts to the Commissioner at step five, the ultimate burden of
    persuasion remains with the claimant. 68 Fed. Reg. 51153, 51155 (Aug. 26, 2003).
    We need not opine regarding the location of the burden of persuasion prior to the new
    rule, because we conclude that even if the Commissioner bore that burden at step five,
    there is substantial evidence to support her decision.
    -8-
    

Document Info

Docket Number: 03-1512

Filed Date: 1/30/2004

Precedential Status: Precedential

Modified Date: 10/13/2015

Authorities (17)

Bowen v. Yuckert , 107 S. Ct. 2287 ( 1987 )

Samuel HAYNES, SS # 431-78-5306, Plaintiff-Appellant, v. ... , 26 F.3d 812 ( 1994 )

Lorraine POLASKI, Et Al., Appellees, v. Margaret M. HECKLER,... , 739 F.2d 1320 ( 1984 )

Danny N. Depover v. Jo Anne B. Barnhart, Commissioner, ... , 349 F.3d 563 ( 2003 )

Elvie L. Riggins v. Kenneth S. Apfel, Commissioner, Social ... , 177 F.3d 689 ( 1999 )

Viola BROWNING, Appellant, v. Louis W. SULLIVAN, M.D., ... , 958 F.2d 817 ( 1992 )

Jeffrey BATES, Appellant, v. Shirley S. CHATER, ... , 54 F.3d 529 ( 1995 )

Gary W. ROTH, Appellant, v. Donna E. SHALALA, Secretary of ... , 45 F.3d 279 ( 1995 )

Ivan N. Pettit v. Kenneth S. Apfel, Commissioner, Social ... , 218 F.3d 901 ( 2000 )

Sheila J. Young v. Kenneth S. Apfel, Commissioner of Social ... , 221 F.3d 1065 ( 2000 )

Russell L. GRIFFON, Appellant, v. Otis R. BOWEN, Secretary ... , 856 F.2d 1150 ( 1988 )

Darrell E. NELSON, Appellant, v. Louis SULLIVAN, Secretary ... , 966 F.2d 363 ( 1992 )

Rosalie A. Deckard v. Kenneth S. Apfel, Commissioner of the ... , 213 F.3d 996 ( 2000 )

Annie MURPHY, Appellant, v. Louis W. SULLIVAN, Secretary of ... , 953 F.2d 383 ( 1992 )

Sharon K. COX, Appellant, v. Kenneth S. APFEL, Commissioner ... , 160 F.3d 1203 ( 1998 )

Lavonzo CHAMBERLAIN, Appellant, v. Donna E. SHALALA, ... , 47 F.3d 1489 ( 1995 )

No. 98-1480 , 179 F.3d 1107 ( 1999 )

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