Rena Heino v. Michael J. Astrue ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-3138
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Rena L. Heino, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Michael J. Astrue, Commissioner of *
Social Security Administration, *
*
Appellee. *
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Submitted: May 12, 2009
Filed: August 27, 2009
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Before RILEY, SMITH, and COLLOTON, Circuit Judges.
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SMITH, Circuit Judge.
Rena L. Heino appeals from the district court's1 affirmance of the administrative
law judge's (ALJ) denial of Heino's applications for disability insurance benefits
(DIB) and social security income (SSI). Heino raises a number of arguments, each of
which we address below. After careful review, we affirm the district court.
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
I. Background
Rena L. Heino, age 26, applied for DIB and SSI on December 5, 2003. She
alleged a disability onset date of March 31, 2002, stating that she could not work
because of migraine headaches, obesity, fibromyalgia with severe pain, a torn rotator
cuff in her left shoulder, asthma, osteoarthritis in the hips and knees, and knee
problems due to her weight and injuries sustained in a motor vehicle accident. When
she applied for DIB and SSI, Heino was 5'1" tall and weighed 230 pounds, down from
a high of 325 pounds. Her past surgeries included a gastric bypass and knee
replacement. She reported that her migraine headaches occurred several times a week
and previously required hospitalization for several days. The Social Security
Administration (SSA) denied Heino's benefit claims, and Heino filed a request for a
hearing before an ALJ.
Following a hearing, the ALJ found that Heino had a history of obesity for
which she underwent gastric bypass surgery in 1999. According to the ALJ, Heino
lost much weight after the surgery as intended but unfortunately gained it back due to
stress at home. The ALJ also noted that Heino suffered from subacromial bursitis and
had a dislocated left shoulder from a car wreck in December 1998. Heino had been
treated with an acromioplasty in March 1999. In May 2003, she had normal strength
in the shoulder, but a few weeks later she had decreased strength and range of motion
but no complaint of pain. A magnetic resonance imaging gave no indication of a tear
or impingement. In July 2003, Heino received an injection of xylocaine and Depo
Medrol for pain with apparently good results.
Heino also injured her left knee in the December 1998 car wreck and reinjured
the knee during a subsequent fall. Because the knee showed substantial cartilage
degeneration, Heino underwent a full knee replacement in July 2003. Heino recovered
well and, by December 2003, was walking "two miles three to four times daily." In
March 2006, she had to undergo a surgical knee treatment under anesthesia due to
increasing pain.
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Additionally, Heino has bronchial asthma that is controlled with inhalers. She
also has complained of headaches, including migraines. According to the ALJ's
assessment of the medical record, Heino's migraine headaches are infrequent. The
medical evidence indicated that Heino has degenerative disc disease in the cervical
and lumbar spine. But examining physicians have deemed her muscle strength in her
arms and legs, motor strength, and reflexes normal. Heino also has emotional
impairments. She has a history of situational depression that was exacerbated by the
birth of twins, for whom she is the sole caregiver. She also has a history of post-
traumatic stress disorder.
The ALJ noted that Heino's impairments are severe, limiting her to the
performance of low stress work, and that she has only "fair ability to handle complex
work." But the ALJ nonetheless concluded that "she is only mildly restricted in her
activities of daily living" and has "mild difficulties maintaining concentration,
persistence and pace."
The ALJ characterized Heino's description of her limitations as follows:
[Heino testified that] she could lift less than 10 pounds and that she
could not carry a gallon of milk, which weighs about eight pounds. She
indicated that she could walk one or two blocks but that she could not
negotiate stairs. She stated that she used a walker and that when
shopping would need to sit and rest at least once. She indicated that she
could stand for only a couple of minutes and that her knees were not
stable. It was her testimony that she could sit for a maximum of 30
minutes and that because of her weight she could not sit comfortably in
a chair. She reported that she could bend, stoop and squat to some degree
but not when her back went out. She indicated further that she could
reach with her left arm, did not have a good enough grip to allow her to
open jars and experienced stiffness and soreness in her fingers when
typing on a computer. She alleged problems with pushing, pulling and
reaching as well.
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In her description of her mental capabilities, the claimant testified that
she had poor short term memory resulting in difficulty remembering the
various tasks that she needed to do. She alleged that her pain caused
difficulty with her concentration and that she could not stay focused and
complete tasks. She denied any difficulty relating to the people with
whom she had contact at work but admitted that she did have arguments
with her husband, apparently regarding her children. She has entertained
thoughts of harming herself and at times has taken too much medication,
allegedly because of her pain. She spoke as well of post traumatic stress
disorder related to abuse as a child and to an abandonment disorder as an
infant, with anxiety attacks multiple times each week.
Dr. Gary J. Cromer, a medical consultant with the Disability Determination
Services of Iowa, found that Heino "could meet the exertional demands of light work."
Dr. Cromer found that she "could climb, balance, stoop, kneel and crouch
occasionally." He concluded that Heino "could reach only occasionally with her left
arm and that she had no other problems with manipulation." He also opined that Heino
"did not have any visual, communicative or environment limitations."
Dr. Claro T. Palma treated Heino for pain and completed a residual functional
capacity (RFC) assessment on October 21, 2005. Dr. Palma opined that Heino "could
walk less than one block at a time" and "could sit for 30 minutes at a time and for a
total of about two hours in an eight-hour workday and could stand for 15 minutes at
a time and stand/walk for a total of less than two hours in an eight-hour workday." He
opined that she "would have to walk about for five minutes every 30 minutes and
would need to be allowed to shift positions at will from sitting, standing or walking."
He stated that "at times she would need to take unscheduled breaks during the day."
He also concluded that "she could lift less than 10 pounds and then only occasionally."
"[S]he was significantly limited in repetitive reaching, handling and fingering, could
stoop for 10% of an eight-hour day but could not crouch at all."
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The ALJ discounted Dr. Palma's conclusion of significant limitations, noting
that Dr. Palma's own treatment records did not support his opinions. The ALJ
observed that the treatment records indicated that
as of January 31, 2005, the claimant had normal motion in all joints
except for the left hip and both knees and only mild pain. In addition, she
did not have any difficulty with normal daily activities except for getting
into and out of an automobile, running errands and shopping, which
caused problems but which she could still do.
Dr. Raja M. Junaid, a psychiatrist, assessed Heino's RFC. The ALJ
characterized Dr. Junaid's conclusions as follows:
[Heino] would probably be absent from work more than three times a
month because of her impairments or treatment and overall, that she had
only fair ability to function. More specifically, he felt that she had fair
ability to remember work-like procedures, maintain attention for two
hours at a time, maintain regular attendance, be punctual, work without
special supervision, work in proximity to others without being unduly
distracted, accept instructions, respond appropriately to criticism, get
along with co-workers, respond appropriately to work changes, deal with
normal work stress and be aware of normal hazards and take appropriate
precautions. Dr. Junaid indicated further that the claimant had fair ability
to do semi-skilled or skilled work if she took her medication. He noted
as well that she had fair ability to interact with the general public, adhere
to basic standards of neatness and cleanliness and travel in unfamiliar
places and good ability to maintain socially appropriate behavior and use
public transportation. The most significant limitation indicated by Dr.
Junaid is that the claimant is limited in her ability to tolerate stressful
work.
The ALJ found that some of Heino's limitations mentioned by Dr. Junaid were
not supported by his treatment records. "For example, [Dr. Junaid] opined that [Heino]
would be absent from work three or more times a month, but there is no reference in
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his treatment records as to absenteeism of any degree much less to three or more times
a month."
Based on the record evidence, the ALJ made the following RFC findings:
[Heino] can lift a maximum of 20 pounds occasionally and a maximum
of 10 pounds repeatedly. In a[n] eight-hour workday with normal breaks
she can stand/walk and can sit for a total of six hours each. She can bend,
stoop, squat, kneel, crawl and climb occasionally. She must avoid work
at heights. Although not capable of very complex, technical work, she
can do more than simple, routine, repetitive work. She has the capacity
for work which does not require constant, close attention to detail. She
needs occasional supervision. She can maintain a regular pace at work
but cannot tolerate high pressure. With her limitations the claimant is not
capable of her past relevant work as a home health aide, nurse aide,
telephone solicitor, telephone clerk supervisor, medical secretary or child
monitor as a result of the limitations involving stress and complexity of
work.
The ALJ then examined the vocational expert (VE), Carma Mitchell, and posed
a hypothetical based on Heino's limitations. The VE testified that an individual such
as Heino "would be able to transfer the skills that [she] had acquired, including
knowledge of clerical systems, communicating to give and receive information,
scheduling and maintaining records, to use semi-skilled work as an information clerk
. . . appointment clerk . . . and order clerk and service dispatcher."
The ALJ then posed a second hypothetical to the VE that included an additional
limitation that Heino would be able to perform "no gross or fine manipulation for
periods of time greater than ten to fifteen minutes at a time." To this hypothetical, the
VE responded that no jobs existed in the national market that such a claimant could
perform.
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After discounting Heino's assertions and Dr. Palma's opinions and giving
limited weight to the opinion of Dr. Junaid, the ALJ concluded that Heino was not
disabled and was "capable of substantial gainful activity in work existing in
significant numbers in the region in which she lives and in the national economy."
Therefore, the ALJ concluded that Heino was not entitled to DIB or SSI benefits.
The SSA Appeals Council denied Heino's request for review and Heino
appealed to the district court. Upon review, the district court found that the ALJ gave
sufficient reasons for discounting Heino's credibility. Moreover, the district court
reviewed the record and found that the ALJ's reasons for partially rejecting the
opinions of Dr. Palma and Dr. Junaid were supported by substantial evidence on the
record as whole, adopting the reasons stated in the ALJ's decision. The court stated
that "to varying degrees, the doctors' treatment notes do not support their
conclusions." The district court then found that the ALJ properly considered Heino's
history of obesity in the RFC hypothetical posed to the VE. Lastly, the district court
found that the ALJ properly discounted portions of Heino's testimony and the treating
physicians' opinions and could therefore exclude that testimony from the hypothetical
questions. As a result, the district court affirmed the ALJ's decision.
II. Discussion
Heino first argues that the ALJ failed to give proper weight to the diagnosis of
her treating physicians. Second, she argues that the ALJ erred in rejecting her
subjective complaints of pain. Third, Heino asserts that the ALJ erred in evaluating
the SSA's obesity standards. Finally, she contends that the ALJ posed an improper
hypothetical to the VE.
We review de novo the district court's decision to uphold the ALJ's denial of
social security benefits. Travis v. Astrue, 477 F.3d 1037, 1040 (8th Cir. 2007). We
will affirm the ALJ's decision if it is supported by "substantial evidence on the record
as a whole." Wagner v. Astrue, 499 F.3d 842, 848 (8th Cir. 2007).
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Substantial evidence is merely such relevant evidence that a reasonable
mind might accept as adequate to support a conclusion. Substantial
evidence on the record as a whole, however, requires a more scrutinizing
analysis. In the review of an administrative decision, the substantiality
of evidence must take into account whatever in the record fairly detracts
from its weight. Thus, the court must also take into consideration the
weight of the evidence in the record and apply a balancing test to
evidence which is contradictory.
Jackson v. Bowen, 873 F.2d 1111, 1113 (8th Cir. 1989) (internal quotations and
citation omitted). We will not reverse the ALJ's "denial of benefits so long as the
ALJ's decision falls within the available zone of choice." Bradley v. Astrue, 528 F.3d
1113, 1115 (8th Cir. 2008) (internal quotations and citations omitted). The ALJ's
decision "is not outside the zone of choice simply because we might have reached a
different conclusion had we been the initial finder of fact." Id. (internal quotations and
citations omitted). "If, after reviewing the record, the court finds it is possible to draw
two inconsistent positions from the evidence and one of those positions represents the
ALJ's findings, the court must affirm the ALJ's decision." Goff v. Barnhart, 421 F.3d
785, 789 (8th Cir. 2005).
A. Treating Physicians
Heino first argues that the ALJ failed to give proper weight to her treating
physicians—Dr. Palma and Dr. Junaid. "In deciding whether a claimant is disabled,
the ALJ considers medical opinions along with 'the rest of the relevant evidence' in
the record." Wagner, 499 F.3d at 848 (quoting 20 C.F.R. § 404.1527(b)). The ALJ
must resolve conflicts among the various opinions. Id. The ALJ may reject these
conclusions "if they are inconsistent with the record as a whole." Id. (internal
quotations and citations omitted). In Wagner, we explained how the ALJ must weigh
medical opinions:
The regulations provide that "unless [the ALJ] give[s] a treating source's
opinion controlling weight . . . [the ALJ] consider[s] all of the following
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factors in deciding the weight [to] give to any medical opinion": (1)
examining relations[;] (2) treating relations; (3) supportability of the
opinion; (4) consistency; (5) specialization; and (6) "any factors [the
applicant] or others bring[s] to [the ALJ's] attention." 20 C.F.R.
§ 404.1527(d). The regulations provide that if the ALJ finds "that a
treating source's opinion on the issue(s) of the nature and severity of [the
applicant's] impairment(s) is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the applicant's] record, [the ALJ] will
give it controlling weight." Id. at § 404.1527(d)(2) (emphasis added).
"[T]he hearing examiner need not adopt the opinion of a physician on the
ultimate issue of a claimant's ability to engage in substantial gainful
employment." Qualls v. Apfel, 158 F.3d 425, 428 (8th Cir. 1998)
(internal quotations and citations omitted). Likewise, while a treating
physician's opinion is generally entitled to "substantial weight," such an
opinion does not "automatically control" because the hearing examiner
must evaluate the record as a whole." Wilson v. Apfel, 172 F.3d 539, 542
(8th Cir. 1999). "It is well established that an ALJ may grant less weight
to a treating physician's opinion when that opinion conflicts with other
substantial medical evidence contained within the record." Prosch v.
Apfel, 201 F.3d 1010, 1013–14 (8th Cir. 2000). "Moreover, an ALJ may
credit other medical evaluations over that of the treating physician when
such other assessments are supported by better or more thorough medical
evidence." Id. at 1014 (internal quotations and citations omitted).
Wagner, 499 F.3d at 848–49 (emphasis added and alterations added in Wagner).
Heino asserts that the ALJ improperly discounted the opinions of her treating
physicians—Dr. Palma and Dr. Junaid. The government acknowledges that Dr. Palma
and Dr. Junaid are treating physicians but responds that substantial evidence on the
record as a whole supports the ALJ's decision to discount these opinions.
The ALJ discounted Dr. Palma's opinion that Heino had severe limitations by
referencing clinical findings revealed in Dr. Palma's treatment records. Specifically,
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the ALJ noted apparent contradictions in the medical record. In early 2005, Dr. Palma
stated that Heino had "normal motion in all joints except for the left hip and both
knees and only mild pain." This observation reflected improvement in her joint
condition since her previous visit. Later that year, Dr. Palma completed a form that
indicated that Heino had disabling limitations. But, at that same time, Dr. Palma said
that Heino was "[c]apable of low stress jobs," she would "benefit from continuing
activity outside the home," and "her obesity [would] not be helped by [her] being
sedentary."
Heino argues that the "variable nature of [her] symptoms," as reported by her
treating physicians, is a result of fibromyalgia. Although the ALJ found that Heino
suffered from "severe fibromyalgia," the ALJ concluded that this impairment was not
disabling. The ALJ did give some weight to Dr. Palma's opinions but declined to give
controlling weight to his conclusion that Heino suffered under significant physical
limitations.
Heino also argues that the ALJ did not grant proper weight to the opinion of Dr.
Junaid. Dr. Junaid estimated that Heino "would be absent from work three or more
times a month." But the ALJ noted that Dr. Junaid's treatment records do not
substantiate the need for some degree of absenteeism. As a result, the ALJ gave Dr.
Junaid's opinions "only limited weight."
Moreover, Dr. Cromer stated that Heino "could meet the exertional demands
of light work." Dr. Cromer also concluded that Heino "did not have any visual,
communicative or environment limitations." Dr. Cromer noted that Heino's husband
indicated that Heino "is able to do normal daily activities, drive a car, go shopping,
and run errands." Also, Heino is the mother of two children under two years of age,
and her husband is limited in his ability to assist her in her child-raising duties. Based
on the husband's report and Dr. Cromer's own review of the medical record, Dr.
Cromer opined that Heino was not disabled.
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Although a treating physician's opinion is generally entitled to substantial
weight, that opinion does not "automatically control" in the face of other credible
evidence on the record that detracts from that opinion. Wilson, 172 F.3d at 542. "[A]n
ALJ may credit other medical evaluations over that of the treating physician when
such other assessments are supported by better or more thorough medical evidence."
Prosch, 201 F.3d at 1013–14 (internal quotations and citations omitted). The ALJ here
noted the conflicting opinions regarding Heino's ability to perform work activities and
chose not to give controlling weight to those of her treating physicians. Substantial
evidence on the record as a whole supports that decision.
B. Heino's Subjective Allegations
Heino next argues that the ALJ erred in rejecting her subjective allegations. We
disagree.
We first articulated the standard that courts should follow when evaluating
subjective complaints in Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984). In Polaski,
we stated that the ALJ must consider
the claimant's prior work record, and observations by third parties and
treating and examining physicians relating to such matters as:
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;
5. functional restrictions.
Id. at 1322.
Additionally, we noted that the ALJ "is not free to accept or reject the claimant's
subjective complaints solely on the basis of personal observations. Subjective
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complaints may be discounted if there are inconsistencies in the evidence as a whole."
Id.
The ALJ acknowledged the Polaski factors and also considered Heino's
testimony. The ALJ then stated in his findings that he "cannot give significant weight
to the claimant's assertions." We have held that an ALJ "need not explicitly discuss
each Polaski factor." Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir. 2004). "It
is sufficient if he acknowledges and considers those factors before discounting a
claimant's subjective complaints." Id. Here, the ALJ acknowledged the factors,
considered the factors in conjunction with Heino's testimony, and then discounted
Heino's assertions.
Moreover, the record demonstrates that Heino's actual activities were
inconsistent with her allegedly disabling limitations. We have held that "[a]cts which
are inconsistent with a claimant's assertion of disability reflect negatively upon that
claimant's credibility." Johnson v. Apfel, 240 F.3d 1145, 1148 (8th Cir. 2001).
Because the record contains inconsistencies as to Heino's disability, the ALJ did not
err.
Heino is the primary caregiver for her four-year old twin sons who both suffer
from neurofibromatosis and chronic lung disease. In 2004, Heino's husband reported
that she was able to feed and play with her sons and care for their dog. He also said
that she did not need reminders to care for herself or take medicine. She was able to
fold laundry, load the dishwasher, and shop for up to an hour a few times each week.
In March 2003, Heino requested and received a prescription for Vicodin because her
"[b]aby . . . weigh[ed] 19 [pounds] now and . . . is hurting her back to carry him all
day." In December 2003, she reported to Dr. J. Matthew Glasscock that she "tries to
walk at least three to four times a day, a couple of miles at a time." These activities
lend support to the ALJ's finding that Heino's impairments were not disabling.
Substantial evidence on the record as a whole supports the ALJ's decision.
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C. Obesity
Heino also argues that the ALJ failed to consider her obesity in calculating her
RFC. Upon review, we conclude that the ALJ sufficiently reviewed the record and that
his decision referenced Heino's obesity. We have held that when an ALJ references
the claimant's obesity during the claim evaluation process, such review may be
sufficient to avoid reversal. Brown ex rel. Williams v. Barnhart, 388 F.3d 1150, 1153
(8th Cir. 2004). In Brown, after his benefits were denied, the claimant argued on
appeal that the ALJ failed to properly consider his obesity. Id. We affirmed the ALJ's
denial of benefits because the "ALJ specifically referred to [the claimant's] obesity in
evaluating his claim." Id.
Here, the ALJ made numerous references on the record to Heino's obesity. The
ALJ stated that Heino was "5'1" tall and weighed 230 pounds at the time of the
hearing." He also stated that "[a]t one time she had weighed as much as 325 pounds."
In his hypothetical to the VE, the ALJ stated that Heino "has a history of obesity." The
record indicates that the ALJ considered Heino's obesity when evaluating her claim.
Because the ALJ specifically took Heino's obesity into account in his evaluation, we
will not reverse that decision.
D. Hypothetical
Finally, Heino argues that the hypothetical posed by the ALJ to the VE
improperly excluded her subjective pain allegations. But, we have held that a
hypothetical question posed to a VE need not include allegations that the ALJ found
not credible. Pertius v. Apfel, 152 F.3d 1006, 1007 (8th Cir. 1998). Because we have
already determined that the ALJ properly discounted Heino's subjective pain
allegations, the ALJ did not err in posing a hypothetical which did not include the
previously discredited allegations. See supra Part II.B. Therefore, we agree with the
district court that substantial evidence on the record supports the ALJ's conclusion that
Heino was not disabled.
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III. Conclusion
Accordingly, we affirm the decision of the district court.
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