Gary Finch v. Michael Astrue ( 2008 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 08-1425
    ___________
    Gary W. Finch,                       *
    *
    Appellant,              *
    * Appeal from the United States
    v.                             * District Court for the
    * Southern District of Iowa.
    Michael J. Astrue, Commissioner      *
    of Social Security,                  *
    *
    Appellee.               *
    ___________
    Submitted: September 24, 2008
    Filed: November 24, 2008
    ___________
    Before WOLLMAN, SMITH, and GRUENDER, Circuit Judges.
    ___________
    WOLLMAN, Circuit Judge.
    Gary Finch appeals from the district court’s1 order affirming the
    Commissioner’s denial of disability insurance benefits. We affirm.
    1
    The Honorable Charles R. Wolle, United States District Judge for the Southern
    District of Iowa.
    I.
    Finch is a sixty-three-year-old man with a high school education, two years of
    community college, and training in heating and refrigeration repair. For twenty years
    he worked for the same company as a heating and air conditioner servicer and
    appliance servicer. According to Finch, he was let go in 1999 because he was unable
    to keep up with the workload. He lives alone and is able to care for his basic needs
    and perform some household chores.
    Finch filed for disability on June 28, 2000, basing his claim on a lack of
    mobility in his back, neck, and right arm, as well as vertigo. His date last insured is
    December 31, 2004. Following a hearing and a supplemental hearing, an
    administrative law judge (ALJ) denied Finch’s claim. After the Appeals Council
    denied his request for review, Finch filed a civil action in the United States District
    Court. On March 16, 2004, the district court remanded his case for further
    proceedings at the request of the Social Security Administration. On August 24, 2005,
    a second hearing was held before the ALJ. The ALJ concluded that the combination
    of Finch’s impairments was severe, but that he did not have an impairment or
    combination of impairments listed or medically equal to a listed impairment. The ALJ
    found that although Finch was unable to perform his past relevant work, there were
    jobs in the national economy that he could perform and thus concluded that Finch was
    not disabled.
    After the Appeals Council denied Finch’s request for review, he again filed a
    complaint in federal district court. The district court granted summary judgment to
    the Commissioner, affirming the ALJ’s decision.
    On appeal Finch argues that the Commissioner’s decision should be reversed
    because the ALJ failed to properly credit Finch’s subjective complaints of pain, did
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    not properly evaluate the evidence in determining Finch’s residual functional capacity,
    and improperly substituted his own opinion for that of a medical examiner’s.
    II.
    We will uphold the Commissioner’s decision if it is supported by substantial
    evidence on the record as a whole. Harvey v. Barnhart, 
    368 F.3d 1013
    , 1015 (8th Cir.
    2004). “Substantial evidence is ‘less than a preponderance but is enough that a
    reasonable mind would find it adequate to support’ the conclusion. Eichelberger v.
    Barnhart, 
    390 F.3d 584
    , 589 (8th Cir. 2004) (quoting Krogmeier v. Barnhart, 
    294 F.3d 1019
    , 1022 (8th Cir. 2002)). This standard of review requires us to consider the
    evidence that supports the Commissioner’s decision as well as the evidence that
    detracts from it. Eichelberger, 
    390 F.3d at 589
    . That we would have come to a
    different conclusion, however, is not a sufficient basis for reversal. 
    Id.
     “If, after
    review, we find it possible to draw two inconsistent positions from the evidence and
    one of those positions represents the Commissioner’s findings, we must affirm the
    denial of benefits.” Mapes v. Chater, 
    82 F.3d 259
    , 262 (8th Cir. 1996).
    A.
    Finch argues that the ALJ erred in assessing his credibility. The ALJ found that
    Finch’s complaints of pain were not entirely credible in light of the evidence as a
    whole. To assess a claimant’s credibility, the ALJ must look to the claimant’s daily
    activities; the duration, frequency, and intensity of pain; precipitating and aggravating
    factors; dosage, effectiveness, and side effects of medication; and functional
    restrictions. Polaski v. Heckler, 
    739 F.2d 1320
    , 1322 (8th Cir. 1984). The claimant’s
    work history and the absence of objective medical evidence to support the claimant’s
    complaints are also relevant. Wheeler v. Apfel, 
    224 F.3d 891
    , 895 (8th Cir. 2000).
    “An ALJ may discount a claimant’s subjective complaints only if there are
    inconsistencies in the record as a whole.” Porch v. Chater, 
    115 F.3d 567
    , 572 (8th Cir.
    1997). “[Q]uestions of credibility are for the [ALJ] in the first instance. If an ALJ
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    explicitly discredits a claimant’s testimony and gives a good reason for doing so, we
    will normally defer to that judgment.” Karlix v. Barnhart, 
    457 F.3d 742
    , 748 (8th Cir.
    2006) (quoting Dixon v. Sullivan, 
    905 F.2d 237
    , 238 (8th Cir. 1990)).
    The ALJ addressed the Polaski factors and noted inconsistencies in the record
    that led him to conclude that Finch was not as limited as he claimed. The ALJ noted
    that Finch is able to care for himself and maintain his home, including mowing the
    lawn, removing snow (albeit slowly), driving, and visiting friends. Finch reported
    falling off a ladder on two occasions. Finch was thrown from a horse on two
    occasions and was involved in a motorcycle accident. The ALJ recognized that Finch
    had been hospitalized as a result of some of these mishaps, but he found it noteworthy
    that Finch was able to engage in the activities that gave rise to those accidents during
    the time that he was allegedly unable to work.
    The ALJ also concluded that Finch’s complaints were not supported by
    objective medical evidence. The record shows that an objective medical cause has not
    been established for Finch’s complaints of low back pain and abdominal pain. Finch’s
    subjective complaints of pain were inconsistent with the findings of consultative
    examiners. In January 2005, Stanley Smith, Ph.D., described Finch as appearing to
    be in only mild discomfort, yet Finch described his pain level at a seven out of ten.
    Christine Deignan, M.D., Rodney Carlson, M.D., and Lori O’Dell McCollum, Ph.D.,
    all concluded that Finch was less limited than he asserted. Finch’s treating physician,
    William Davidson, M.D., described Finch as having a histrionic personality. Finch’s
    pain clinic physician, Michael A. Swanson, M.D.—whose notes reflect repeated
    skepticism about the information Finch provided to him—described Finch’s pain
    history as inconsistent.
    Finch argues that he has consistently sought medical treatment and has an
    unbroken earnings record from 1961 to 1999. Although these two factors weigh in
    Finch’s favor, it was for the ALJ to weigh all the evidence and make a credibility
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    finding. After reviewing that evidence, we cannot say that the ALJ’s credibility
    determination is not supported by the record as a whole.
    B.
    Finch argues that the ALJ’s residual functional capacity assessment is in error
    because it ignored Finch’s treating physician’s opinion and failed to take into account
    Finch’s cognitive limitations. Although a treating physician’s well-supported opinion
    is generally accorded substantial weight, “it is not conclusive because the record must
    be evaluated as a whole.” Howe v. Astrue, 
    499 F.3d 835
    , 839 (8th Cir. 2007) (citing
    Charles v. Barnhart, 
    375 F.3d 777
    , 783 (8th Cir. 2004)); see also Singh v. Apfel, 
    222 F.3d 448
    , 452 (8th Cir. 2000). Moreover, “[t]he ALJ may reject the conclusions of
    any medical expert, whether hired by the claimant or the government, if they are
    inconsistent with the record as a whole.” Wagner v. Astrue, 
    499 F.3d 842
    , 848 (8th
    Cir. 2007). The ALJ is charged with the responsibility of resolving conflicts among
    medical opinions. Id.
    1.
    Finch’s primary challenge to the ALJ’s physical residual functional capacity
    determination is his contention that the ALJ dismissed the opinion of Finch’s treating
    physician, Dr. Kurt Andersen, particularly Dr. Andersen’s statement that Finch could
    not sit or stand for more than fifteen minutes at a time without experiencing increased
    pain. The ALJ found instead that Finch could sit or stand for thirty minutes at a time.
    The ALJ did not dismiss Dr. Andersen’s opinion, but instead detailed the ways
    in which it was inconsistent with other medical opinions in the record. Specifically,
    the ALJ noted that Dr. Carlson, a consultative physician, concluded that Finch could
    sit or stand for six hours with normal breaks during an eight-hour work day. Another
    consultative physician, George X. Trimble, M.D., confirmed this assessment.
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    Although a third consultative physician, Dr. Newton B. White, agreed with Dr.
    Andersen that Finch could not sit or stand for more than fifteen or twenty minutes, the
    ALJ noted inaccurate statements in Dr. White’s opinion that undermined his
    conclusion.
    Additionally, the ALJ noted that at the time Dr. Andersen made his February
    2003 assessment, Finch was recovering from a pelvic fracture and deep vein
    thrombosis, from both of which ailments he experienced a full recovery. Although
    Dr. Andersen made similar statements in January and April of 2005, he qualified them
    by stating that they were based on Finch’s subjective pain reports and an MRI study
    that did not provide an explanation for Finch’s low back pain complaints. Given that
    the ALJ found Finch’s subjective reports of pain not entirely credible, a residual
    functional capacity assessment based on those reports was appropriately not given
    substantial weight. Accordingly, the ALJ’s rejection of Dr. Andersen’s opinion
    regarding Finch’s physical limitations is supported by substantial evidence in the
    record.
    2.
    Finch also argues that the ALJ should have included Finch’s limited mental
    capacity in his finding of residual functional capacity and in the hypothetical to the
    vocational expert. “In fashioning an appropriate hypothetical question for a
    vocational expert, the ALJ is required to include all the claimant’s impairments
    supported by substantial evidence in the record as a whole.” Swope v. Barnhart, 
    436 F.3d 1023
    , 1025 (8th Cir. 2006) (citing Grissom v. Barnhart, 
    416 F.3d 834
    , 837 (8th
    Cir. 2005)).
    On June 4, 2000, Finch underwent a nerve root injection that was improperly
    performed. Finch became dazed, confused, and had difficulty talking. Finch argues
    that this injection resulted in permanent decreased mental capacity. On November 8,
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    2002, Finch underwent a psychological assessment that included intellectual and
    memory testing, performed by Dr. McCollum. The results showed that Finch had a
    verbal IQ of ninety-three, a performance IQ of eighty-four, and a full scale IQ of
    eighty-nine. Dr. McCollum concluded that Finch’s intellectual functioning is in the
    low average range. Based on Finch’s past work experience and his education, she
    opined that Finch had experienced cognitive decline and had previously had at least
    average intelligence.
    The ALJ detailed Dr. McCollum’s conclusions, but gave significant weight to
    Charlene Bell’s, Ed.D., contradictory testimony. At the hearing, Dr. Bell stated that
    a diagnosis of cognitive disorder was not clinically established by the record. Dr.
    Bell’s opinion is supported by Dr. Smith, who concluded that Finch’s IQ scores were
    normal and did not necessarily represent a decline in functioning. The ALJ also noted
    that Finch’s medical records indicated that he had recovered from the effects of the
    faulty injection. The ALJ specifically found that Finch’s mental impairments did not
    restrict his daily activities, social functioning, or concentration. Although there is
    evidence in the record that might sustain a different finding, the ALJ’s determination
    is supported by substantial evidence.
    Additionally, the ALJ was not required to present Finch’s limited mental
    capacity to the vocational expert. Although a claimant’s borderline intellectual
    functioning must be included in the hypothetical to the vocational expert, Swope, 
    436 F.3d at 1024-25
    , Dr. McCollum characterized Finch’s intellectual functioning as
    within the low average range and stated that he would likely score within the full scale
    IQ range of eighty-five to ninety-three in future testing. Thus, there is substantial
    evidence that Finch does not exhibit borderline intellectual functioning.
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    C.
    Finch argues that the ALJ improperly substituted his own opinion for that of Dr.
    White, who stated that Finch’s ataxia equaled a listed impairment. An “ALJ must not
    substitute his opinions for those of the physician.” Ness v. Sullivan, 
    904 F.2d 432
    ,
    435 (8th Cir. 1990). As noted above, however, “[t]he ALJ may reject the opinion of
    any medical expert where it is inconsistent with the medical record as a whole.” Estes
    v. Barnhart, 
    275 F.3d 722
    , 725 (8th Cir. 2002).
    Dr. White testified at the hearing before the ALJ via telephone. Although it is
    not entirely clear from the record which listing Dr. White was referring to during his
    testimony, the ALJ concluded that he was likely discussing section 11.04(B). Listing
    11.04(B) involves “significant and persistent disorganization of motor function in two
    extremities, resulting in sustained disturbance of gross and dexterous movements, or
    gait and station.” Dr. White did not conclude that Finch met this listing, only that he
    equaled it. The regulations allow a finding that a claimant equals a listing when his
    impairments or combination of impairments are of equal medical significance to the
    required criteria. 
    20 C.F.R. § 404.1526
    . Medical equivalence must be supported by
    medical findings; symptoms alone are insufficient. See id.; Social Security Ruling 86-
    8. Section 404.1526(e) places “the responsibility for deciding medical equivalencies
    . . . with the [ALJ] or Appeals Council.”
    The ALJ noted that Finch’s motor functioning has not played a significant role
    in his overall clinical picture during the relevant time period. Although Finch’s
    medical records show occasional difficulty with the use of his arms and hands, other
    medical evidence shows normal grip strength and dexterity. Similar inconsistencies
    exist with respect to Finch’s leg strength and gait. Finch’s symptoms of ataxia
    resulting from the faulty injection are also inconsistent. Finally, as noted above, the
    ALJ assigned little weight to Dr. White’s opinion. Accordingly, the ALJ’s finding
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    that Finch did not equal a listed impairment is supported by substantial evidence and
    thus must be upheld.
    The judgment is affirmed.
    ______________________________
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