James Harvey v. Jo Anne B. Barnhart ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-2578
___________
James Harvey, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Jo Anne B. Barnhart, Commissioner, *
Social Security Administration, *
*
Defendant - Appellee. *
___________
Submitted: January 16, 2004
Filed: May 24, 2004
___________
Before MELLOY, BRIGHT, and HANSEN, Circuit Judges.
___________
MELLOY, Circuit Judge.
James Harvey appeals the district court’s1 order affirming the Commissioner’s
determination he retained the residual functional capacity to perform his past relevant
work and, therefore, was not disabled. We affirm.
1
The Honorable Robert E. Larsen, United States Magistrate Judge for the
Western District of Missouri.
An administrative law judge (“ALJ”) determined that Harvey suffered from
various mental and physical impairments that, collectively, were severe. However,
the ALJ determined that these impairments neither met nor were equivalent to a listed
impairment. The ALJ also determined that Harvey and Harvey’s wife were not
credible and that Harvey exaggerated his symptoms as well as his physical and mental
limitations. Reviewing records of objective medical tests, reports from treating
physicians, testimony from consulting physicians and a psychiatrist (only some of
whom personally examined Harvey), testimony from a vocational expert, and
testimony regarding Harvey’s work history, daily activities and limitations, the ALJ
determined that Harvey retained the residual functional capacity to perform his past
relevant work as a security guard. The Social Security Appeals Council denied
further review, and the ALJ’s opinion became the Commissioner’s final agency
action. The district court affirmed. Harvey appeals.
We review the record as a whole and must affirm the Commissioner’s findings
if supported by substantial evidence. See Cunningham v. Apfel, 222 F.3d 496, 500
(8th Cir. 2000) (standard of review). In our review, we must consider evidence that
is contrary to, as well as evidence that supports, the Commissioner’s findings. Id.
Here, substantial evidence in the record as a whole clearly supports the
Commissioner’s credibility and residual functional capacity determinations.
A consulting psychiatrist who examined but did not treat Harvey stated, inter
alia, “symptom magnification syndrome”; “[q]uery secondary gain and/or
malingering”; “[i]t is difficult to predict this individual’s abilities to perform work-
related functions based upon objective findings”; and “I doubt that he would be able
to remain at work and remain productive during the course of an eight hour day.”
This opinion, which clearly supports the Commissioner’s credibility determination,
was equivocal at best regarding Harvey’s residual functional capacity. Nevertheless,
Harvey points to this opinion as evidence that the record shows he does not possess
the residual functional capacity to perform his past work as a security guard. This
-2-
and other evidence that Harvey cites in support of his position is largely based on his
own subjective complaints.
Harvey’s medical records showed, however, that his symptoms were basically
controlled or controllable. His medical records showed some limitation in ability to
lift and use his right hand, but did not contain any objective evidence of limitations
that were as severe as those Harvey claimed in his application for benefits. The
medical records contained no objective basis for a finding that Harvey had memory
problems and contained only limited instances where Harvey claimed to have
memory difficulties. Harvey did not mention memory loss or other mental health
impairments on his application for benefits.
Harvey’s treating physicians viewed him as not credible. They refused his
requests for powerful prescription pain killers, noted repeatedly that his complaints
were out of proportion with any identifiable medical causes, and recorded opinions
such as “[patient] reports pain out of proportion to physical findings. Will not refill
percocet, instruct [patient] to use Tylenol as needed”; “[patient] states that his Ultram
is not relieving his pain. [Patient] had an x-ray in February that found only mild
degenerative changes. . . . [patient] is a poor historian, as he changes his story
frequently and repeatedly asks the same questions. [Patient] admits to past crack,
cocaine, and PCP use and claims it has affected his memory”; “atypical presentation,
but [patient’s] history is so difficult to obtain with confidence”; and “Probable drug
seeking behavior. . . . I have explained to [patient] that I usually do not prescribe
such a high dose narcotic for joint pain. I reviewed recent X-ray of his right knee
which shows borderline [degenerative joint disease] changes only.”
Finally, Harvey’s testimony before the ALJ was inconsistent with prior
statements to physicians, inconsistent with his employment record, and internally
inconsistent regarding his ability to perform various functions in daily life (reading,
lifting, sitting, standing, etc.). For example, although he claimed that he was unable
-3-
to read, he claimed elsewhere that, because his impairments prevented him from
sleeping, he regularly arose at three in the morning to read the Bible until his wife
awoke hours later. Further, although he claimed he could not sit for more than thirty
to sixty minutes and although he claimed the need to use crutches or a non-prescribed
walker, he claimed elsewhere that he participated in activities that required greater
lengths of sitting and that he could walk a mile, rest, and then walk another mile.
We write further only to address Harvey’s specific challenges to the ALJ’s
reliance on a particular, non-examining consulting physician and a vocational expert.
Harvey argues first that the ALJ should not have relied on the opinion of consulting
physician Dr. Sophia Kahn in light of the fact that she merely reviewed medical
records and failed to personally examine Harvey. It is true that we do not consider
the opinions of non-examining, consulting physicians standing alone to be
“substantial evidence.” See Jenkins v. Apfel, 196 F.3d 922, 925 (8th Cir. 1999)
(finding that, where no other evidence supported an ALJ’s residual functional
capacity determination, the opinion of a non-examining consulting physician was not
“considered substantial evidence in the face of the conflicting assessment of a treating
physician”). However, the ALJ in this case did not rely solely on Dr. Kahn’s opinion
to reach his conclusions. Rather, the ALJ relied on Dr. Kahn’s opinion as one part
of the record, which, as a whole and as described above, clearly provides substantial
support for his findings.
Harvey also argues that Dr. Kahn was unqualified to offer an opinion on issues
of mental health and that, even if the ALJ considered the rest of her opinion, it was
error to admit Dr. Kahn’s testimony regarding Harvey’s mental impairments. While
it is true Dr. Kahn was an internist rather than a psychiatrist, she testified that she
underwent “regular” psychiatric training, treated psychiatric problems as a part of her
practice, and previously assessed patients’ difficulties in the areas of concentration.
Further, the ALJ’s reliance on her testimony regarding mental health issues was
limited. Dr. Kahn testified, essentially, that there was no objective basis in the
-4-
medical records for Harvey’s subjective complaints of memory problems. Because
her testimony regarding mental health issues was limited, and because she did possess
adequate qualifications by virtue of education and experience, we reject Harvey’s
attack on her qualifications.
Finally, we reject Harvey’s claim that the ALJ posed improper hypothetical
questions to the vocational expert. Harvey correctly notes that, for a vocational
expert’s opinion to be relevant, an ALJ must accurately characterize a claimant’s
medical conditions in hypothetical questions posed to the vocational expert.
See Smith v. Shalala, 31 F.3d 715, 717 (8th Cir. 1994) (stating that “[u]nless the
hypothetical question comprehensively describes the limitations on a claimant’s
ability to function, a vocational expert will be unable to accurately assess whether
jobs do exist for the claimant”). Harvey, however, fails to show that the ALJ in this
case mischaracterized Harvey’s symptoms and limitations. The fact that the ALJ
omitted from his hypothetical questions those aspects of Harvey’s subjective
complaints that the ALJ considered non-credible does not render the questions faulty.
See Roberts v. Heckler, 783 F.2d 110, 112 (8th Cir. 1985) (noting that “the
hypothetical is sufficient if it sets forth the impairments which are accepted as true
by the ALJ”).
We affirm the judgment of the district court.
______________________________
-5-