Norman R. Pelkey v. Jo Anne Barnhart ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-1097
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Norman P. Pelkey, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Arkansas.
Jo Anne B. Barnhart, *
Commissioner, Social Security *
Administration, *
*
Appellee. *
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Submitted: October 14, 2005
Filed: January 3, 2006
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Before ARNOLD, MURPHY and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
Norman P. Pelkey appeals the decision of the district court1 affirming the
administrative law judge’s (“ALJ”) denial of his application for disability insurance
benefits under Title II of the Social Security Act. See 42 U.S.C. §§ 416(i), 423.
1
The Honorable J. Thomas Ray, United States Magistrate Judge for the Eastern
District of Arkansas, to whom the case was referred for final disposition by consent
of the parties pursuant to 28 U.S.C. § 636(c).
Because the decision of the ALJ is supported by substantial evidence on the record as
a whole, we affirm.
I. BACKGROUND
Pelkey claims that he has been disabled since January 22, 2001, due to a spinal
disc condition associated with arthritis. Pelkey was 61 years old at the time of the
administrative decision. He has a high school diploma and an associate’s degree in
management. Pelkey began experiencing lower back pain after injuring his back in
1972 while serving in the Air Force. He was honorably discharged in 1985, and from
then until 2001 he worked as a medical clinic manager.
Pelkey’s claim for disability insurance benefits was denied initially, upon
reconsideration and after a hearing before the ALJ. The ALJ evaluated Pelkey’s
disability claim according to the five-step sequential evaluation process prescribed by
the Social Security regulations. See Goff v. Barnhart, 421 F.3d 785, 789-90 (8th Cir.
2005); 20 C.F.R. § 404.1520(a)-(f). “If a claimant fails to meet the criteria at any step
in the evaluation of disability, the process ends and the claimant is determined to be
not disabled.” Goff, 421 F.3d at 790 (quoting Eichelberger v. Barnhart, 390 F.3d 584,
590 (8th Cir. 2004)).
At the first step of the analysis, the ALJ examines the claimant’s work activity.
If the claimant is gainfully employed, then he is not disabled within the meaning of
the Social Security Act. The ALJ concluded that Pelkey had not performed
substantial gainful activity since his alleged onset date of January 22, 2001. Second,
the ALJ determines whether the claimant has a severe medically determinable physical
or mental impairment or combination of impairments, where severe impairment is
defined as one which “significantly limits [the claimant’s] physical or mental ability
to do basic work activities.” 20 C.F.R. § 404.1520(c). The ALJ found that Pelkey had
degenerative joint disease of the cervical spine and of the lumbar spine. Third, the
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ALJ determines based on the medical evidence whether the severe impairments meet
the criteria of a listed impairment which is presumed to be disabling. The ALJ
concluded that they did not. After assessing the claimant’s residual functional
capacity (“RFC”), at the fourth step the ALJ considers whether the claimant can do
his past relevant work based on his RFC. See 20 C.F.R. § 404.1545 (defining RFC
as “the most [a claimant] can still do despite” his “physical or mental limitations”).
The ALJ concluded that Pelkey retained the RFC to frequently lift and/or carry up to
10 pounds, occasionally lift and/or carry up to 20 pounds, stand and/or walk for about
six hours in an eight-hour workday, and sit for about six hours in an eight-hour
workday. See 20 C.F.R. § 404.1567(b) (defining light work). Based on the RFC, the
ALJ found that Pelkey was able to perform his sole past work as a medical clinic
manager and, therefore, was not disabled under the Social Security Act. Thus, the
ALJ did not reach the fifth step of the analysis.
The Social Security Appeals Council declined review, making the ALJ’s
determination the final decision of the Commissioner of the Social Security
Administration (“Commissioner”). The district court affirmed the decision of the
Commissioner. Pelkey appeals, arguing that the ALJ erred in discrediting Pelkey’s
subjective complaints of pain and in failing to address a disability determination by
the Veterans Administration (“VA”).
II. DISCUSSION
We review de novo a district court’s decision upholding the denial of social
security benefits. Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005). This
Court must affirm the Commissioner’s decision if it is supported by substantial
evidence on the record as a whole. Id. “Substantial evidence is relevant evidence that
a reasonable mind would accept as adequate to support the Commissioner’s
conclusion.” Goff, 421 F.3d at 789 (quoting Young v. Apfel, 221 F.3d 1065, 1068 (8th
Cir. 2000)). We consider the whole record, including evidence that supports as well
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as detracts from the Commissioner’s decision, and we will not reverse simply because
some evidence may support the opposite conclusion. Id. Furthermore, “we defer to
the ALJ’s determinations regarding the credibility of testimony, so long as they are
supported by good reasons and substantial evidence.” Guilliams, 393 F.3d at 801.
Pelkey first argues that the ALJ failed to adequately explain his adverse
credibility finding as to Pelkey’s complaints of pain. In evaluating a claimant’s
subjective complaints of pain, the “absence of an objective medical basis which
supports the degree of severity of subjective complaints alleged is just one factor to
be considered.” Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). The ALJ
also examines the claimant’s prior work record and observations of third parties and
physicians relating to: (1) the claimant’s daily activities; (2) the duration, frequency
and intensity of the pain; (3) precipitating and aggravating factors; (4) dosage,
effectiveness and side effects of medication; and (5) functional restrictions. Id. at
1322; see also Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir. 2004). Although
“[s]ubjective complaints may be discounted if there are inconsistencies in the evidence
as a whole,” Polaski, 739 F.2d at 1322, the ALJ “must give reasons for discrediting
the claimant,” Strongson, 361 F.3d at 1072.
In this case, “[a]lthough the ALJ did not explicitly discuss each Polaski factor
in a methodical fashion, he acknowledged and considered those factors before
discounting [the claimant’s] subjective complaints of pain.” Brown v. Chater, 87 F.3d
963, 966 (8th Cir. 1996); see also Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir.
2004) (“The ALJ is not required to discuss each Polaski factor as long as the
analytical framework is recognized and considered.”). The ALJ listed the Polaski
factors and then stated that he had “carefully consider[ed] all the evidence of record,
specifically including the credibility factors set forth above.” After discussing the
evidence, the ALJ concluded that the objective medical evidence and the record as a
whole were inconsistent with Pelkey’s testimony that his pain was totally disabling.
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In assessing Pelkey’s credibility, the ALJ first commented on Pelkey’s excellent
work record. He then recounted the daily activities Pelkey was able to perform, such
as household chores, mowing the lawn, raking leaves, shopping for groceries and
driving a car. In addition, the ALJ recounted Pelkey’s testimony that he could not
play golf or tennis. The record also contains Pelkey’s testimony that he visited with
friends on occasion and attended church. See Haley v. Massanari, 258 F.3d 742, 748
(8th Cir. 2001) (“Inconsistencies between subjective complaints of pain and daily
living patterns diminish credibility.”); Nguyen v. Chater, 75 F.3d 429, 430-31 (8th Cir.
1996) (holding that the claimant’s daily activities of visiting neighbors, cooking
meals, doing laundry and attending church were incompatible with disabling pain and
affirming denial of benefits at the second step of analysis).
Regarding intensity of pain, the ALJ stated that Pelkey testified that he “has
shooting, radiating pain in his neck and arm that has been diagnosed as arthritis.”
Pelkey also described to Dr. Thai Ky in 2001 that he experienced a dull aching pain
upon walking or prolonged standing, but the pain was absent at rest. In 2003, Pelkey
reported to Dr. William Hurst that he was having pain in his neck, arm and back.
With respect to functional restrictions, the ALJ noted Pelkey’s testimony that he can
stand for only 30 minutes and walk for only 15-20 minutes, that he avoids lifting, and
that his upper back is aggravated by reaching or stretching. In addition, the ALJ noted
that Pelkey participated in the range of daily activities described above, that no
physician indicated that Pelkey was precluded from all work, and that the state agency
medical consultant determined in January 2002 that Pelkey was able to do work at the
light exertional level.
In further support of his credibility determination, the ALJ noted that Pelkey’s
various doctors recommended exercise and medication but never surgery. For
example, the ALJ stated that in June 2001 the orthopaedic surgeon Dr. George Higley
diagnosed Pelkey with degenerative disc disease of the cervical spine and sent Pelkey
to one session of physical therapy for home exercise instruction. The record also
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contains an evaluation by Dr. Beata Majewski on April 22, 2003, advising that Pelkey
take two medications and that he “would greatly benefit from physical therapy or low
impact aerobic exercise.” The ALJ also noted Pelkey’s testimony that “he has never
had surgery on his back, and that his treatment has consisted of medication, physical
therapy and ice packs for relief.” Although Pelkey experienced some degree of pain,
we find that good reasons and substantial evidence on the record as a whole support
the ALJ’s decision to discount Pelkey’s complaint that his pain resulted in a total
inability to work.
Second, Pelkey contends that the ALJ failed to consider the disability
assessment by the VA. We disagree. The ALJ should consider the VA’s finding of
disability, Morrison v. Apfel, 146 F.3d 625, 628 (8th Cir. 1998), but the ALJ is not
bound by the disability rating of another agency when he is evaluating whether the
claimant is disabled for purposes of social security benefits, 20 C.F.R. § 404.1504;
Fisher v. Shalala, 41 F.3d 1261, 1262 (8th Cir. 1994) (per curiam) (“There is no
support for [the claimant]’s contention that his sixty-percent service-connected
disability rating equates with an inability to engage in any substantial gainful activity
under social security standards.”).
Although he did not specifically mention the 60 percent figure, the ALJ did not
err because he fully considered the evidence underlying the VA’s final conclusion that
Pelkey was 60 percent disabled. The VA’s 60 percent rating is found in an August 11,
2001, letter, while the evidence supporting that rating is located in the VA Rating
Decision of August 6, 2001, which describes in detail a VA rating examination
performed by Dr. Ky on May 22, 2001, and VA outpatient treatment reports, including
x-rays of the spine taken on March 6, 2001, and the examination by Dr. Higley on
June 28, 2001. The ALJ discussed the rating examination and Dr. Ky’s diagnosis of
low back pain with degenerative changes at the L1, L2 and L5 levels of the spine and
bilateral pes planus (flat feet). The ALJ also mentioned the treatment reports. In
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addition, the ALJ noted that the VA originally awarded Pelkey 20 percent disability
for his back problems in 1985.
Pelkey argues that Morrison compels a different conclusion. Morrison held
that the ALJ erred in giving no reasons for rejecting a VA rating of 100 percent
disability because “an extensive physical examination documenting Morrison’s
medical problems, followed by a finding of a permanent and total disability by another
government agency, all of which occupies some thirty pages in the record, merits
more than simply an implicit rejection.” 146 F.3d at 628. By contrast, here the ALJ
did not ignore the VA rating but considered and discussed the underlying medical
evidence contained in the VA’s Rating Decision. The ALJ did not err in his
consideration of the VA’s disability determination.
Pelkey also argues that the ALJ erred in the second step of the analysis by
concluding that there was “no evidence in the record concerning a diagnosis of carpal
tunnel syndrome.” This led to the ALJ’s determination that Pelkey suffered from the
severe impairments of degenerative joint disease of the cervical and lumbar spine, but
not carpal tunnel syndrome. We need not address this argument because it has been
waived, as Pelkey did not articulate it before the district court. See Dixon v. Barnhart,
353 F.3d 602, 606 (8th Cir. 2003); Craig v. Apfel, 212 F.3d 433, 437 (8th Cir. 2000).
In summary, substantial evidence in the record as a whole supports the ALJ’s
finding that Pelkey had the RFC to perform his past relevant work as a medical clinic
manager and thus was not disabled under the Social Security Act. The ALJ arrived
at this conclusion after considering objective medical treatment records, including
those underlying the VA Rating Decision, the evaluation of the state agency medical
consultant, and Pelkey’s testimony, work history and activities.
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III. CONCLUSION
We conclude that the ALJ properly evaluated Pelkey’s credibility and
considered the VA’s disability findings. Because the denial of disability insurance
benefits is supported by substantial evidence on the record as a whole, the judgment
of the district court is affirmed.
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