Velma R. Zeiler v. Jo Anne B. Barnhart ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-1073
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Velma R. Zeiler, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Jo Anne B. Barnhart, Commissioner *
of Social Security Administration, *
*
Defendant - Appellee. *
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Submitted: September 16, 2004
Filed: October 7, 2004
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Before MURPHY, McMILLIAN, and BENTON, Circuit Judges.
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MURPHY, Circuit Judge.
Velma Zeiler's application for disability insurance benefits under Title II of the
Social Security Act was denied by an administrative law judge (ALJ). Her case was
made part of a simplified appeals process being tested; under the test procedure the
ALJ's decision represents the final decision of the Commissioner and an appeal is
taken directly to federal court. Zeiler thus appealed to the district court,1 which
affirmed the Commissioner's decision. Zeiler appeals, and we affirm.
1
The Honorable William A. Knox, United States Magistrate Judge for the
Western District of Missouri.
Zeiler was born in 1941 and has a high school education. She worked full time
as a clerk and later as an assembly line worker. After her assembly plant relocated
in 1994, she occasionally cleaned houses and offices. She says that she became
disabled in April 1994 and that a narrowing of the space between her shoulder joints
causes pain and restricts her movement.2 Zeiler reports worse pain in her right
shoulder. The record shows that she repeatedly sought medical treatment for shoulder
problems and that pain medication was often prescribed.
X-rays of both shoulders taken in April 1998 appeared normal, but an MRI of
the right shoulder taken about six months later revealed mild acromioclavicular
hypertrophic changes with narrowing of the humeral-acromial joint space and mild
tendinosis of the supraspinatous tendon. According to G.E. Finke, D.O., a January
1999 x-ray of Zeiler's right shoulder indicated mild degenerative joint disease of the
acromioclavicular joint and narrowing of the acromion humeral head distance. Dr.
Finke suspected rotator cuff tendon injury or changes. George Adam Flowers, M.D.,
an orthopedist, examined Zeiler on January 26 and February 2, 1999. He studied a
previous MRI and concluded that her rotator cuff was intact. He observed that she
had excellent range of motion and notable pain, and he interpreted an x-ray of her
right shoulder to be consistent with osteoarthritis, noting some high riding of the
glenohumeral joint. On September 17, 1999, Zeiler saw Kirk D. Ridley, M.D., her
family doctor. Dr. Ridley assessed probable arthritis and bursitis and a possible
rotator cuff tear. When he saw her again on November 15, 1999, he noted grinding
and crepitance in her shoulder and difficulty in totally abducting her arm over her
head; he also observed that the MRI report indicated no rotator cuff tear.
2
The disability report she filed also listed bronchial asthma and mental and
emotional problems. The ALJ found that these complaints did not arise from
medically determined impairments, and Zeiler does not contest these findings on
appeal.
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Zeiler's insured status ended on December 31, 1999. The record reflects that
she continued to have shoulder complaints. In May 2000 an arthroscopic
decompression acromioplasty procedure was performed on her right shoulder, and in
August 2000 a decompression acromioplasty arthroscopic procedure with
debridement of the shoulder joint was performed on her left shoulder.
Zeiler applied for disability insurance benefits in March 2000. She filled out
a work history report for the Social Security Administration in which she described
her work as a clerk, assembly line worker, and house cleaner. She indicated that she
never lifted more than ten pounds in these positions. She also filled out a
questionnaire for the Missouri Department of Elementary and Secondary Education
Division of Vocational Rehabilitation in May 2000. On that form she claimed no
problems sitting, standing, walking, kneeling, or squatting. She reported no problems
using her hands unless lifting, pulling, or pushing was involved, and no problems
climbing stairs unless she pulled on the hand rail. She claimed problems lifting and
carrying, reaching forward and backward, and working or reaching overhead. She
stated that she exercises by walking and engages in everyday activities as her pain
allows, including buying food, cooking, and caring for her flowers.
When Zeiler's application was denied she sought a hearing, and one was held
on July 26, 2001. Zeiler and her husband testified, and she was represented by an
attorney. The ALJ asked her about her work and medical history and daily activities.
She testified that she goes grocery shopping with her husband, drives, visits with
family, goes to church about once a month, watches television, reads, and talks on the
phone. She said she could walk for ten to fifteen minutes and lies down thirty to forty
five minutes daily. No physicians testified at her hearing, and no state agency
physician rendered an opinion.
The only opinion in the record stating that Zeiler should not work was that of
Jim G. Lemons, Ed.D. Dr. Lemons is a licensed psychologist who sent Zeiler's
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attorney a letter on July 23, 2001, stating that Zeiler's pain "render[s] her incapable
of gainful employment on a permanent basis." Dr. Lemons knows Zeiler because he
has been treating her husband for chronic pain, but he has not opened an official
record for her. He states that he has worked with Zeiler's husband "over the recent
years" and notes that Zeiler has faced issues resulting in chronic pain "[i]n more
recent months."
The ALJ engaged in the five step analysis outlined in 20 C.F.R. § 404.1520.
In the first step he found that Zeiler did some cleaning work after the alleged onset
date of her disability but that her earnings during this period were too low to qualify
the employment as substantial gainful work. Second, the ALJ found that Zeiler
suffered from "mild acromioclavicular hypertrophic changes with narrowing of
humeral-acromonial joint space and mild tendinosis of the supraspinatus tendon" and
that these impairments were severe. Third, he found that the impairments, although
severe, do not meet or medically equal one of the impairments listed in the
regulations as requiring a finding of disability. The ALJ's analysis stopped at the
fourth step because he found that Zeiler's impairments did not prevent her from doing
her past relevant work at the expiration of her covered period.
In determining that Zeiler had the residual functional capacity (RFC) to
perform the requirements of her past relevant work, the ALJ considered Zeiler's
description of her symptoms and the medical opinions in the record. He found her
subjective complaints not fully credible and her symptoms not as limiting as she
alleged. He considered her testimony regarding her daily activities and the medical
evidence regarding her condition prior to the expiration of her insured status. He
determined that during her insured period she had full range of motion in her
shoulders, had some weakness in her biceps and triceps, was being treated
symptomatically for arthritis pain, and could sit, stand, and walk unimpaired. Based
on this assessment, the ALJ determined she had the RFC to do a full range of light
work with no overhead lifting. He then examined the requirements of her past work
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as she had described it and found that she could have met the demands of her work
as a clerk and assembler because they required only light exertion.
Zeiler argues on appeal here that the ALJ did not consider the functional
demands of her prior work activity when deciding that she could perform her past
relevant work and that his assessment of her RFC was not supported by substantial
evidence on the record as a whole. We review de novo a district court's decision
affirming the denial of social security benefits. See Lowe v. Apfel, 226 F.3d 969, 971
(8th Cir. 2000). In conducting this review, we must "determine whether the
Commissioner's decision is supported by substantial evidence in the record as a
whole." Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001). Substantial evidence "is
less than a preponderance, but is enough that a reasonable mind would find it
adequate to support the Commissioner's conclusion." McKinney v. Apfel, 228 F.3d
860, 863 (8th Cir. 2000). To determine whether the evidence is substantial, "we
consider evidence that detracts from the Commissioner's decision as well as evidence
that supports it." Id. We are not permitted to reverse "merely because substantial
evidence also exists that would support a contrary outcome, or because we would
have decided the case differently." Davis, 239 F.3d at 966.
Zeiler first argues that the ALJ's decision does not indicate he considered the
functional demands of her past work and that it does not therefore meet the
requirements set in Groeper v. Sullivan, 932 F.2d 1234 (8th Cir. 1991). In Groeper
we held that an ALJ must make explicit findings on the demands of the claimant's
past work. Id. at 1239. Here the ALJ found that in her work as a clerk and assembler
Zeiler never had to lift more than ten pounds and stood much of the day. The ALJ
relied on Zeiler's own description of her past duties in making these findings, and he
also noted that she had stopped her assembly work in 1994 because the plant
relocated. There is substantial evidence in the record to support the ALJ's
characterization of her past work as requiring light exertion.
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Zeiler also argues that the ALJ did not properly assess her RFC. She makes
three contentions: the RFC finding is not based on medical evidence, the ALJ did not
consider the effects of her nonexertional impairments, and the ALJ did not consider
her allegations of pain. She cites Lauer v. Apfel, 245 F.3d 700 (8th Cir. 2001), for the
proposition that the RFC is a medical question. She contends that the RFC
assessment in her case is invalid because it is based on the ALJ's own opinion of her
abilities. Zeiler's reliance on Lauer is misplaced because in that case the ALJ had
substituted his opinion for that of a treating psychiatrist and examining psychologist,
but here there was no expert opinion of disability. The only opinion in the record was
from Dr. Lemons, but that letter does not bear much weight in this analysis because
he was not treating Zeiler and he did not give an opinion as to her condition during
the relevant time period. When determining a claimant's RFC, the ALJ should
consider all relevant evidence, including medical records, the observations of doctors
and third parties, and the claimant's own descriptions. See Krogmeier v. Barnhart,
294 F.3d 1019, 1024 (8th Cir. 2002). The ALJ's opinion indicates he properly
considered the available medical evidence and the testimony of Zeiler and her
husband when determining her RFC.
Zeiler next contends that the ALJ failed to consider the effect of her
nonexertional impairments when assessing her RFC. She argues that her testimony
indicated she has problems concentrating because of her pain medication, has lost
grip strength, and needs to lie down during the day. The rest of the record does not
substantially support these allegations, however. She did not complain to her doctors
that her pain medication made concentration difficult. During a January 1999 visit
to an orthopedist, her intrinsic hand strength was measured at 5/5. The Commissioner
further notes that any loss of Zeiler's grip strength is accommodated by the ALJ's
decision that she is limited to light work. Finally, there is no medical evidence
supporting Zeiler's claim that she needs to lie down during the day.
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Zeiler's last contention regarding the RFC assessment is that the ALJ failed to
consider her allegations of pain. Subjective complaints of pain cannot be disregarded
solely because there is no supporting medical evidence, but they can be discounted
if the ALJ finds inconsistencies in the record as a whole. Johnson v. Chater, 108 F.3d
942, 947 (8th Cir. 1997). Zeiler complains that the ALJ disregarded her testimony and
that of her husband when he wrote, "Considering the record as a whole, the
Administrative Law Judge finds the claimant's subjective complaints to be not fully
credible." The quoted statement is not merely a cursory statement as she suggests,
for it leads into the ALJ's discussion of the testimony by Zeiler and her husband about
her daily activities and her treatment history. There is substantial evidence in the
record to support the ALJ's finding that Zeiler was not as limited as she claimed. In
addition to the evidence cited by the ALJ, her responses to the May 2000
questionnaire are inconsistent with her testimony that she could not stand or walk for
long periods, and the month long car trip she took in 1995 is inconsistent with a
finding of disability. The ALJ properly considered Zeiler's symptoms when
determining her RFC.
There was substantial evidence in the record as a whole to find that Zeiler was
not disabled when her insured status expired. Accordingly, we affirm the judgment
of the district court.
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