Richard Fredrickson v. Jo Anne B. Barnhart ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2428
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Richard Fredrickson, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Jo Anne B. Barnhart, Commissioner *
of Social Security Administration, *
*
Appellee. *
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Submitted: January 16, 2004
Filed: March 2, 2004
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Before WOLLMAN, MORRIS SHEPPARD ARNOLD, and COLLOTON, Circuit
Judges.
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WOLLMAN, Circuit Judge.
Richard Fredrickson appeals from the district court’s1 order affirming the
Commissioner’s denial of his application for social security disability insurance
benefits and supplemental security income. We affirm.
1
The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri.
I.
Fredrickson, born July 8, 1954, has a high-school education and has worked
as a roofer, an oil field worker, and a truck driver. On July 7, 1999, he fell 15 feet off
a roof and suffered a severe traumatic injury to his right leg, the repair of which
required numerous surgical procedures, including the internal fixation of the broken
bones with plates and screws and the grafting of bone, muscle and skin tissues.
Fredrickson suffered some infectious complications that required irrigation and
debridement of his calf and knee. He was seen by several doctors and participated
in physical therapy in the months following his accident.
The record reflects the gradual healing of Fredrickson’s injury. Radiology
reports note appropriate interval healing. Dr. Kimberly J. Templeton, his principal
treating physician, noted in December 1999 that Fredrickson was already capable of
partial weight-bearing and that he should attain full weight-bearing status and the
ability to perform a sit-down job by July 2000. Admin. Record (A.R.) at 164.
Fredrickson attended only 14 out of 25 physical therapy appointments, but the
physical therapy reports nevertheless indicate gradual and continuing improvement
in range of motion and weight-bearing capacity. The physical therapist noted that by
January 14, 2000, Fredrickson was able to walk without an assistive device. In a
letter dated May 2, 2001, Dr. Templeton noted the presence of significant scar tissue
and expressed her opinion that Fredrickson was probably suffering from post-
traumatic arthritis, although she indicated that she did not have MRI confirmation of
that diagnosis. A.R. at 261-62. She did not specify any physical or work-related
restrictions for Fredrickson.
Three individuals testified at the hearing before the ALJ: Fredrickson, Dr.
Lynn I. DeMarco (a records-review physician called by the ALJ), and Richard
Sherman, Ph.D. a vocational expert. Fredrickson testified that he was in almost
constant pain, ranging from dull to throbbing and shooting pains, and that his leg was
not improving but getting worse. He described his limitations as the inability to walk
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without assistance and the ability to stand for only ten minutes and sit for only thirty
minutes before pain or spasms require him to change positions. He testified that he
often has to lie down and elevate his leg. He takes six Hydrocodone and three
Neurontin tablets each day for pain relief, medication which he claimed made him
drowsy.
After examining Fredrickson’s medical records, Dr. DeMarco opined that
Fredrickson had achieved a good result, given the severity of the injuries. Dr.
DeMarco acknowledged that scarring and degenerative arthritis could cause some
pain, A.R. at 306, but asserted that no evidence in the record supported Fredrickson’s
claims that he would be in significant pain while sitting or at rest. Dr. DeMarco
further opined that unless Fredrickson was a person having virtually no pain
tolerance, he should not experience pain of any significance while at rest. A.R. at
325. In response to the hypothetical question posed by the ALJ, Dr. Sherman testified
that although Fredrickson could not return to his past work, he could work as an
electrical assembler, a surveillance systems monitor or a telephone solicitor, all of
which positions are present in significant numbers in the national economy and in
Missouri. A.R. at 333-34.
In concluding that Fredrickson was not in fact disabled, the ALJ followed the
five-step analysis prescribed by the social security regulations. See 20 C.F.R. §
404.1520 (2001); Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002). First,
the ALJ concluded that Fredrickson had not worked since his accident. Second, he
acknowledged that Fredrickson’s impairment was severe. Third, he found that
Fredrickson’s impairment did not meet or equal an impairment listed in appendix 1.
See 20 C.F.R. Pt. 404, Subpt. P, App. 1 (2001). Fourth, he determined that
Fredrickson had the RFC to perform “sedentary” work but was not able to return to
his past employment. Fifth, the ALJ concluded, based on the testimony of the
vocational expert, that Fredrickson could perform several jobs in the national
economy.
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II.
We review de novo a district court’s decision upholding the denial of social
security benefits. O’Donnell v. Barnhart, 318 F.3d 811, 816 (8th Cir. 2003). We will
affirm the denial if substantial evidence supports the ALJ’s findings. Id. Substantial
evidence is “less than a preponderance but is enough that a reasonable mind would
find it adequate to support” the decision. Krogmeier, 294 F.3d at 1022. We examine
the record as a whole and if substantial evidence supports the Commissioner’s
decision, we may not reverse even if we might have decided the case differently. Id.
In determining the substantiality of the evidence supporting the Commissioner’s
decision, we consider the evidence that detracts from as well as that which supports
the decision. Id.
The ALJ must determine a claimant’s RFC based on all of the relevant
evidence. McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000). “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.” Harris v. Barnhart, No. 03-1512,
2004 U.S. App. LEXIS 1411, at *5 (8th Cir. Jan. 30, 2004). An ALJ’s determination
of a claimant’s RFC must find support in the medical evidence. Krogmeier, 294 F.3d
at 1023.
Subjective complaints of pain are often central to a determination of a
claimant’s RFC. The ALJ may not disregard such complaints “solely because the
objective medical evidence does not fully support them.” Polaski v. Heckler, 739
F.2d 1320, 1322 (8th Cir. 1984). In evaluating subjective complaints of pain, the ALJ
should examine: (1) the plaintiff’s daily activities; (2) the duration, frequency and
intensity of the pain; (3) dosage, effectiveness and side effects of medication; (4)
precipitating and aggravating factors; and (5) functional restrictions. Brown v.
Chater, 87 F.3d 963, 965 (8th Cir. 1996) (listing the Polaski factors). The ALJ may
discount subjective complaints “if there are inconsistencies in the evidence as a
whole.” Goodale v. Halter, 257 F.3d 771, 774 (8th Cir. 2001) (citation omitted). If
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the ALJ gives a good reason for discrediting the claimant's credibility, the court “will
defer to [his] judgment even if every factor is not discussed in depth.” Dunahoo v.
Apfel, 241 F.3d 1033, 1038 (8th Cir. 2001). The ALJ did not find Fredrickson’s
testimony regarding pain to be credible because of the inconsistencies between
Fredrickson’s testimony and the medical evidence, the lack of evidence that
Fredrickson had complained of such pain to his physicians, and the existence of
evidence pointing to Fredrickson’s potential lack of motivation to return to work (the
sporadic work record reflecting relatively low earnings and multiple years with no
reported earnings).
We agree with the Commissioner that the record contains the inconsistencies
that the ALJ noted and that Fredrickson’s claims of disabling pain do not correspond
with the evidence of satisfactory healing and increased motion or with his doctors’
consistently expressed expectation for continued improvement.2 In addition, while
Fredrickson claims that he cannot walk without assistance, the observations and
expectations of both the doctors and the physical therapists were that he would be
able to do so by July 2000. Indeed, and as noted above, a January 2000 physical
therapy report stated that Fredrickson was already walking without an assistive device
on several different surfaces. A.R. at 179. Accordingly, substantial evidence on the
record as a whole supports the ALJ’s finding that Fredrickson could perform
sedentary work. In so ruling, we note that the hypothetical question posed to the
vocational expert accurately stated the extent of the impairments that the ALJ
2
There is no evidence in the record that Fredrickson complained of such severe
pain to his physicians or that they prescribed that he elevate his foot or lie down daily.
Multiple doctors indicated that his injuries were healing well throughout the year
following his accident. See, e.g., A.R. at 123, 147, 192, 210. Although both Dr.
DeMarco and Dr. Templeton indicated that loss of articular cartilage in the knee joint
can cause pain due to bone-to-bone interaction, and Dr. Templeton noted the
possibility of “post-traumatic arthritis” in her May 2001 letter, neither doctor
suggested that such pain should prevent Fredrickson returning to work.
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accepted as having been established. See Roberts v. Heckler, 783 F.2d 110, 112 (8th
Cir. 1985) (per curiam).
Finally, we conclude that the ALJ did not err in rejecting Fredrickson’s
contention that his impairment is equal to that set forth in listing 1.03(B), “Arthritis
of a major weight-bearing joint,” which at the time provided:
Reconstructive surgery or surgical arthrodesis of a major weight-bearing
joint and return to full weight-bearing status did not occur, or is not
expected to occur, within 12 months of onset.3
20 C.F.R. Pt. 404, Subpt. P, App. 1 (2001). Fredrickson “has not pointed to evidence
showing that [he] satisfies the specific medical criteria for this listing.” Harris, 2004
U.S. App. LEXIS 1411, at *4. Accordingly, based on the ALJ’s findings regarding
the extent of pain experienced by Fredrickson and the short duration of his non-
ambulatory status, substantial evidence supports the finding that Fredrickson’s
impairment did not equal the listed impairment.
The judgment is affirmed.
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3
Listing 1.03 has since been amended, but our analysis of Fredrickson’s status
remains the same under both versions of the listing. See 20 C.F.R. Pt. 404, Subpt. P,
App. 1 (2004).
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